State v. Smith

• Decision Date: 21 August 2001
• Docket Number: 20829
• Citation: 782 A.2d 175
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. SCOTT SMITH20829 THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

STATE OF CONNECTICUT v SCOTT SMITH

No. AC 20829

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

August 21, 2001

Argued February 13, 2001

Counsel James B. Streeto, deputy assistant public defender, for the appellant (defendant)

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and C. Robert Satti, Jr., senior assistant state's attorney, for the appellee (state).

Spear, Dranginis and Dupont, Js.

Opinion

Dranginis, J.

The defendant, Scott Smith, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a54a (a), sexual assault in the first degree in violation of General Statutes § 53a-70 and sexual assault in the third degree in violation of General Statutes § 53a-72a. On appeal, the defendant claims the trial court improperly (1) failed to instruct the jury on manslaughter in the first degree, General Statutes § 53a-55 (a) (1), as a lesser offense included within the offense of murder, (2) failed to order a mistrial on the basis of prosecutorial misconduct, thereby violating his right to a fair trial, (3) denied his motion to suppress his confession, and (4) instructed the jury on the credibility of witnesses, thereby depriving him of his right to due process, the presumption of innocence and his right to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the evening of May 12, 1995, the defendant went to a bar in Bridgeport, where he consumed several beers and brandy, and met Timothy Solek. The two left for Solek's apartment, where they consumed more alcohol. They later returned to the bar. They then went to the home of the victim, an acquaintance, and the three played cards.

At some point in the evening, the defendant left the room to use the bathroom. When he returned, he found the victim and Solek arguing and pushing each other. The victim yelled at Solek to leave. The defendant then grabbed the victim and placed her in a choke hold. The victim resisted, gasped for air and, finally, fell to the floor.

Solek then kicked the victim in the head repeatedly and hit her in the head with a clothes iron three or four times. He also stabbed her repeatedly with a can opener. The defendant took off his pants and fondled the victim's breasts. Solek had taken off his pants, covered the victim's face with a towel, masturbated, and forcibly had anal and vaginal intercourse with her. Before the defendant and Solek left, the defendant took the victim's Walkman. They returned to Solek's apartment, where the defendant borrowed a pair of pants. At about 2:30 a.m., Solek called the police and accompanied the responding officer to the victim's apartment, where she was found dead.

The defendant subsequently was arrested at his girlfriend's home, where police recovered a pair of his jeans covered with the victim's blood. The victim's blood also was found under the defendant's fingernails and on his left hand. The defendant gave a signed, written statement at the police station. In the statement, the defendant admitted that he and Solek had been at the victim's apartment, that he got involved in a fight between Solek and the victim, and that he strangled her.¹ When the police detectives who took the defendant's statement asked whether he had killed the victim, the defendant stated, ''I guess you could say we both did, but not on purpose.'' He further admitted in the statement that he took off his pants and that, although he did not have sex with the victim, he fondled her breasts.

At trial, the state put on evidence that showed that the victim's death was caused by strangulation. ² The defendant testified in his own behalf. The jury, however, found him guilty, and this appeal followed.

I.

The defendant first claims that the court improperly failed to charge the jury on manslaughter in the first degree in violation of § 53a-55 (a) (1) as a lesser offense included within the offense of murder. ³ We disagree.

''There is no fundamental constitutional right to a jury instruction on every lesser included offense . . . rather, the right to such an instruction is purely a matter of our common law.'' (Citation omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996). ''In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), [our Supreme Court] held that a defendant is entitled to an instruction on a lesser included offense if he can demonstrate compliance with each of four conditions: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser....

''In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra [588], we view the evidence in the light most favorable to the defendant's request for a charge on the lesser included offense. . . . [T]he jury's role as fact-finder is so central to our jurisprudence that, in those cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence. . . . Under Whistnant, the evidence is sufficiently in dispute where it is of such factual quality that would permit the [jury] reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. . . . Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on the evidence . . . from which inferences can fairly be drawn. . . . They should not [however] be encouraged to engage in speculation. . . . On appeal, an appellate court must reverse a trial court's failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.'' (Citations omitted; internal quotation marks omitted.) State v. Ray, 228 Conn. 147, 152±n55, 635 A.2d 777 (1993).

''A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book [§ 42-18]. State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990); State v. Ostroski, [201 Conn. 534, 556±n 58, 518 A.2d 915 (1986)]; State v. McIntosh, [199 Conn. 155, 158±n61, 506 A.2d 104 (1986)].'' State v. Tomasko, supra, 238 Conn. 261. Practice Book § 42-18 (a) provides in relevant part: ''When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .'' Our Supreme Court has held that ''in the context of a written request to charge on a lesser included offense, [the] requirement of [Practice Book § 42-18] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.'' (Internal quotation marks omitted.) State v. Corbin, 61 Conn. App. 496, 520, 765 A.2d 14, cert. granted on other grounds, 256 Conn. 910, 911, 772 A.2d 1124, 1125 (2001).

As a general rule, ''a trial court's awareness of the factual basis for a requested charge . . . [does not constitute] an acceptable alternative to a party's compliance with the rules of practice. State v. Vega, 48 Conn. App. 178, 185, 709 A.2d 28 (1998); see also State v. Ramirez, 16 Conn. App. 284, 289, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988).'' State v. Williams, 59 Conn. App. 771, 782, 758 A.2d 400, cert. granted on other grounds, 254 Conn. 952, 762 A.2d 906 (2000). We will, however, review a claim when the defendant has substantially complied with the requirements of Practice Book § 42-18 and the court understood the grounds for the objection. State v. Williams, supra, 781±n82 (trial court understood factual basis of defendant's request where defense counsel presented oral argument outlining in detail factual basis for request to charge); see State v. Deptula, 31 Conn. App. 140, 146, 623 A.2d 525 (1993) (reading of transcript revealed that trial court and defendant's counsel understood facts relied on for requested charge), appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994).

In the present case, after the close of evidence, the defendant made a request to charge the jury on manslaughter in the first degree by a written motion and took an exception when the court did not give the requested instruction. The defendant argues that all four conditions of Whistnant have been satisfied. The defendant meets the second condition because it is well settled that ''manslaughter in the first and second degrees and criminally negligent homicide are lesser included offenses within the crime of murder.'' (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 66 n.11, 621 A.2d 728 (1993). The state argues that the defendant failed to meet the first, third and fourth conditions.

With respect to the first condition of Whistnant, the state, in its...