State v. Shaw

• Citation: 185 Conn. 372,441 A.2d 561
• Court: Supreme Court of Connecticut
• Decision Date: 18 August 1981
• Parties: STATE of Connecticut v. James SHAW, Jr.

Page 561

441 A.2d 561

185 Conn. 372

STATE of Connecticut v. James SHAW, Jr.

Supreme Court of Connecticut.

Argued June 5, 1981.

Decided Aug. 18, 1981.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for the appellant (defendant).

Linda K. Lager, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., and Thomas V. O'Keefe, Asst. State's Atty., New Haven, for the appellee (state).

Before BOGDANSKI, C. J., and SPEZIALE, PETERS, HEALEY and ARMENTANO, JJ.

SPEZIALE, Associate Justice.

After a trial to a jury the defendant, James Shaw, Jr., was convicted of first degree assault in violation of General Statutes § 53a-59(a)(1). The defendant has appealed from the judgment rendered thereon, claiming the following as error: (1) the trial court's failure, in its instructions to the jury on self-defense, to charge as requested that the defendant had no duty to retreat in his dwelling and that greater-than-necessary force may be employed when in the heat of passion; (2) the trial court's denial of the defendant's motion in limine and subsequent admission of the defendant's prior manslaughter conviction for purposes of impeachment; and, (3) the trial court's denial of the defendant's motion to strike the testimony of an eyewitness and its denial of the defendant's motion for mistrial. We find no error.

The information against the defendant arose from the following incident: Shaw rented one of two bedrooms in a house owned and occupied by Wilson, the person he assaulted. Off the kitchen of this house were doors leading to both bedrooms, to a bathroom, to the hallway, and to the back door-fire escape. Wilson called Shaw to the common area of the house; a discussion escalated to an argument and then a physical altercation; Wilson and Shaw each claimed that the other initiated the tussle. Wilson went to his bedroom and grabbed his .30-30 Winchester rifle with the intention, as he testified, to order Shaw to leave; Shaw went to his bedroom and got his .22 revolver. Weapons in hand, they both entered the kitchen from their respective bedrooms. The defendant, Shaw, fired five or six shots hitting Wilson three times.

I Jury Charge on Self-Defense

In his written request to charge the defendant requested the trial court to instruct the jury, in relevant part, that "(i)f James Shaw actually believed and had reasonable grounds to believe that Andrew Wilson was using or about to use physical force or was inflicting or about to inflict great bodily harm on him, and that deadly physical force was necessary to repel such danger, James Shaw was not required to retreat or to consider whether he could safely retreat. He was entitled to stand his ground and to use such force as was reasonably necessary under the circumstances to save his life or to protect himself or others from serious bodily harm.

"I should note that the claim of self-defense is not necessarily defeated if greater force than would have seemed necessary in retrospect was used by James Shaw in the heat of passion generated by an assault upon him. A belief which may be unreasonable in retrospect may be actually and reasonably entertained in the heat of passion. For example, there was testimony here that both James Shaw and Andrew Wilson were engaged in a verbal and physical argument prior to the display of any weapons.

"I wish to emphasize that the laws of the State of Connecticut do not require an individual to retreat to avoid the use of deadly physical force if he is attacked in his own dwelling. There was testimony, for example, in this case, that James Shaw resided at 192 Cedar Street and was a legal tenant of that premises."

The trial court, however, in its instructions to the jury on self-defense did not charge as requested that the defendant had no duty to retreat in his dwelling and that greater-than-necessary force may be employed when in the heat of passion; but, instead, it instructed the jury on self-defense as follows: "Now, just what is self-defense, which the State must disprove here? Well, you, of course, heard all of the evidence, and our statutes recognize that a person can use force in defending himself, and one section of our statutes reads as follows: 'A person is justified in using reasonable physical force upon another person to defend himself, or a third person, from what he reasonably believes to be the use of imminent-the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose, except that deadly physical force may not be used unless the actor reasonably believes that such other person is using or about to use, deadly physical force, or inflicting, or about to inflict, great bodily harm.'

"Now, regardless of those provisions that I just read to you, a person is not justified in using a deadly-in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating, except that the actor shall not be required to retreat if he is in his dwelling.

"Now, at this point, I would call your attention to the testimony that would indicate that, according to another statutory definition, both Mr. Wilson and Mr. Shaw were in their dwelling. Now, I just don't think that that statute was meant to give them the right, both of them, to refuse to retreat. It would seem to me, where both parties are in their dwelling, retreat must be considered in connection with the question of self-defense. How much force is necessary? Retreat can be taken in a physical way. It can also be taken to mean desist. Here it, apparently, means physically removing yourself from the premises, but it involved also, in this use of force, the idea of desisting when the degree of force you have been using, is no longer necessary.

"Now, from these statutes that I just read to you, you can conclude that a man, who is being assaulted, or who reasonably believes he is about to be assaulted, may use such force in such a degree as he reasonably believes is necessary for his defense. The moment he steps over the line and uses more force than he reasonably believes is necessary, then he becomes a wrong doer and becomes guilty of a crime, himself. The test is not what force was actually necessary to protect himself from the user or imminent user of force, but rather the test is what force did he, acting as a reasonable man, believe to be necessary under the circumstances; and, of course, the State has the burden of proving that such force or violence, as you may find he used, was not justified. The State has that burden, the burden of disproving self-defense.

"Now, this means then that in determining whether or not excessive force was used, we do not have a hindsight proposition. The question is what did Mr. Shaw reasonably believe was necessary under the circumstances as you may find they presented themselves to him."

General Statutes § 53a-19 ¹ governs the degree of force which a person is justified in using to defend his person. One may use "deadly physical force" to defend against another person whom one "reasonably believes" is "(1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm." General Statutes § 53a-19(a). Nevertheless, "a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling ... and was not the initial aggressor ...." General Statutes § 53a-19(b). Both Wilson and Shaw appeared in the kitchen with loaded firearms capable of inflicting deadly physical harm. There was conflicting testimony as to who was the "initial aggressor." Even if the jury found Shaw to be the initial aggressor, it could not have imposed on him a duty to retreat because the trial court omitted that portion of the statute from its instruction to the jury; and, therefore, in that respect the defendant received a more favorable instruction than he was entitled to receive. The building within which the shooting occurred is clearly a dwelling. It is undisputed that the dwelling was owned by Wilson and that Wilson lived in the second floor apartment. Wilson rented the spare bedroom in his second floor apartment to Shaw, and Shaw was living there at the time of the assault. From the evidence presented the jury reasonably could have found that Shaw had the right to share the use of the kitchen and thus was in "his dwelling" when the shots were fired. Also, the trial court in its charge on self-defense commented to the jury that the testimony would indicate that both Wilson and Shaw were in their dwelling.

The question before us is whether General Statutes § 53a-19 imposes a duty to retreat upon a person in his dwelling when threatened by another person who also dwells in the same place. We have not addressed this question since the codification of the self-defense principle. The statutes which enumerate the situations where the use of force is justified "attempt to restate the common law. They should be read in the light of their common law background, and the fact that an individual section does not fully state the relevant common law rule, with all its possible applications, exceptions or implications, should not prevent a court from reading it as incorporating the full body of common law rules relevant thereto." Commission to Revise the Criminal Statutes, Connecticut Penal Code Comments 5-6 (1972).

Precodification Connecticut precedent supports the view that a lodger has a duty to retreat from common areas of the dwelling as against his resident landlord. State v. Johnson, 139 Conn. 89, 90 A.2d 905 (1952). In State v. Johnson, the defendant was living in the basement of the house of his landlord, the...