State v. Silveira
| Citation | 503 A.2d 599,198 Conn. 454 |
| Court | Supreme Court of Connecticut |
| Decision Date | 28 January 1986 |
| Parties | STATE of Connecticut v. George SILVEIRA. |
Louis S. Avitabile, Waterbury, for appellant (defendant).
John F. Droney, Jr., Sp. Asst. State's Atty., with whom were Bradford S. Ward, Asst. State's Atty., Thomas Farrell, Certified Legal Intern, West Hartford, and, on brief, John A. Connelly, State's Atty., for appellee (State).
Before HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.
The defendant was tried by a jury, convicted of manslaughter in the first degree with a firearm, in violation of General Statutes § 53a-55a, and committed to the custody of the commissioner of correction for a term of eight to sixteen years. He claims on appeal that the trial court erred: (1) in refusing his request to charge on the defense of mistake of fact; (2) in charging incorrectly on self-defense and defense of others; and (3) in restricting the defendant's direct testimony as to his state of mind at the time of the shooting. We agree with the defendant only as to his third claim of error, but conclude that the error was harmless and had no significant effect in bringing about the verdict. Thus, we affirm his conviction.
It appears from the evidence that on March 21, 1981, shortly after 2 a.m., the defendant and several companions drove to a place called the Standing Room Only Bar in Waterbury. They had heard that some of their friends were in trouble inside the bar, and had come to assist them. Upon their arrival, the group of approximately six young men got out of their automobiles and stood across the street from the Standing Room Only Bar. Two of them, Americo Magalhaes and Carlos Montiero, entered the bar to check on their friends. They found that their information was incorrect and that their friends were not in trouble. Montiero went back outside to inform the others while Magalhaes remained in the bar to drink and talk with a friend.
The defendant and his companions waited for Magalhaes to leave the bar. Soon they noticed Clint Flammia walking toward the bar entrance. There was testimony that the defendant's group knew Flammia from a previous incident. Flammia and the defendant's group began to trade insults across the street. Before long an object, possibly a bottle, was hurled in Flammia's direction. After Flammia entered the bar, Peter Francisco, who had driven the defendant to the Standing Room Only Bar, moved his car to ensure that "in case of a quick getaway I'd be able to get out of there fast."
Meanwhile, Flammia, Bob Perugini and about ten other young men came through the front door of the bar and started crossing the street toward the defendant and his companions. The defendant was armed with "nunchackus," a martial arts weapon consisting of two wooden sticks joined by a metal chain. The defendant shouted at the advancing group to halt. He then produced a handgun and fired two shots over their heads in order to scare them. Perugini told Flammia that the defendant was only shooting blanks, and, as the crowd continued to advance, the defendant and his friends quickly retreated to their automobiles. The defendant, Montiero and Francisco got into Francisco's car and locked the doors. They then noticed Magalhaes, who had left the bar, trying to make his way through the crowd toward them. When Magalhaes reached Francisco's car he was surrounded by Flammia, Perugini and several others, who began to punch and beat him about the face and body. When Magalhaes fell to the ground his assailants continued to kick and stomp on his ribs, head and back.
The defendant, Montiero and Francisco decided to assist Magalhaes. Montiero got out of the car and immediately was struck on the head with a thick stick, and went running down the street. The defendant, concerned for Magalhaes' safety and seeking an immediate end to the beating being administered to him, again produced his handgun. The defendant testified that he fired a single shot at close range one to one and one-half feet to the right of the victim, Greg Lavorgna, who was standing with his back to the defendant on the extreme right of the group which tightly encircled Magalhaes. The defendant further testified that he did not intend to hit anybody, but considered it necessary to aim his gun closely enough to allow Magalhaes' assailants to hear the bullet whiz by, so that they would realize that he was not merely firing blanks. According to the defendant, just as he was about to pull the trigger, the victim moved slightly to his right and into the path of the bullet. Pathological examination of the victim established that the bullet entered his body through the right shoulder blade, lodging in his heart, and causing death. Additional relevant facts adduced at trial will be discussed as we consider the various issues raised by the defendant.
We first address the defendant's claim that the trial court erred by refusing his request to charge the jury on the defense of mistake of fact under General Statutes § 53a-6(a)(1) and (3). That statute provides, in pertinent part, that "[a] person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense ... or (3) such factual mistake is of a kind that supports a defense of justification." We find this claim to be without merit.
We begin by noting that the defendant was charged with manslaughter in the first degree with a firearm. General Statutes § 53a-55a. That statute incorporates the provisions of General Statutes § 53a-55(a), which contains three subsections. 1 Because the jury returned a general verdict of guilty against the defendant, we must analyze the defendant's claim with respect to each of the subsections of General Statutes § 53a-55(a) under which he might have been convicted. See State v. Reid, 193 Conn. 646, 480 A.2d 463 (1984); State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983). We may eliminate completely from our consideration subsection (2) of General Statutes § 53a-55(a), because the trial court did not instruct the jury under that subsection and thus there is no possibility that the defendant was found guilty under it. Therefore, we consider the defendant's claim that he was entitled to an instruction on mistake of fact only insofar as it relates to his possible conviction under subsections (1) and (3) of General Statutes § 53a-55(a).
General Statutes § 53a-55(a) provides, in pertinent part, that "[a] person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person ... or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." Our statutes provide by definition that General Statutes § 53a-3(13).
The defendant posits two factual theories which he claims entitled him to an instruction on mistake of fact. We consider each separately. He predicates his first claim on General Statutes § 53a-6(a)(1) which provides for the defense of mistake of fact where "[s]uch factual mistake negates the mental state required for the commission of an offense." The defendant admits that he fired a shot less than two feet to the right of the victim, who stood on the extreme right of the group of men attacking Magalhaes. The defendant argued at trial that he intended only to scare the attackers away, and that he did not intend to hit any of them. He claims, however, that he did not know, when he fired the fatal shot, that the victim would move slightly to his right and into the path of the bullet which struck him. In essence, the defendant's first claim of mistake of fact, under General Statutes § 53a-6(a)(1), is premised on his mistaken belief that the victim would stand still.
A mistake of fact results "when one makes an erroneous perception of the facts as they actually exist." State v. Gonzales, 99 N.M. 734, 737, 663 P.2d 710, cert. denied, 464 U.S. 855, 104 S.Ct. 173, 78 L.Ed.2d 156 (1983). The defense arises only where the defendant misperceives an objective state of existing fact, and does not apply to the defendant's erroneous suppositions as to the unformed intentions of another. A fact is that which has taken place, not something that might or might not take place in the future. See generally State v. Bougneit, 97 Wis.2d 687, 294 N.W.2d 675 (1980). We do not attempt to delineate the many situations where an instruction on mistake of fact might be appropriate under General Statutes § 53a-6(a)(1). We only hold that the type of "mistake" alleged here is not among them.
Almost any accident may broadly be viewed as having been caused by a mistake of one form or another. It might be said of an individual struck by lightning that he made a "mistake" in positioning himself where he did. The defendant's claim to a mistaken belief that the victim would stand still is merely a sophistic way of saying that he did not intend to commit the crime with which he was charged. "Instead of speaking of ignorance or mistake of fact or law as a defense, it would be just as easy to note simply that the defendant cannot be convicted when it is shown that he does not have the mental state required by law for commission of that particular offense." LaFave & Scott, Criminal Law § 47, pp. 356-57; see State v....
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