State v. Smith

• Decision Date: 04 March 2003
• Docket Number: No. 16606.,16606.
• Citation: 262 Conn. 453,815 A.2d 1216
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Scott SMITH.

815 A.2d 1216

262 Conn. 453

STATE of Connecticut v. Scott SMITH.

No. 16606.

Supreme Court of Connecticut.

Argued December 9, 2002.

Decided March 4, 2003.

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SULLIVAN, C. J., and BORDEN, NORCOTT, KATZ and VERTEFEUILLE, Js.

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

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

NORCOTT, J.

The sole issue in this certified appeal is whether the Appellate Court, in affirming the defendant's conviction of murder in violation of General Statutes § 53a-54a (a),¹ properly determined that the trial court was not required to instruct the jury on the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(1).² We conclude that the trial court was required to give the instruction and, accordingly, we reverse the judgment of the Appellate Court.

The defendant was charged with one count of murder in violation of § 53a-54a (a), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1),³ one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(3),⁴ and one count of sexual assault in the third degree in violation of General statutes § 53a-72a (a)(1).⁵ After a jury trial, the defendant was convicted of murder and sexual assault in the first degree and third degree, and was sentenced to a total of sixty years imprisonment. Thereafter, the defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the defendant's convictions. State v Smith, 65 Conn. App. 126, 128, 782 A.2d 175 (2001).⁶ We then granted the defendant's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly conclude that the trial court was not required to instruct the jury on the lesser included offense of manslaughter in the first degree?" State v. Smith, 258 Conn. 930, 783 A.2d 1032 (2001).

The jury reasonably could have found the following relevant facts, as set forth in the opinion of the Appellate Court. "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 defendaant left the room to use the bathroom. When he returned, he found the victim and Solek arguing aand 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.⁷ 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.⁸ The defendant testified in his own behalf. [See footnote 24 of this opinion.] The jury, however, found him guilty, and [the defendant's] appeal followed." State v. Smith, supra, 65 Conn.App. at 128-30, 782 A.2d 175.

On appeal to the Appellate Court, the defendant claimed that the trial court improperly had refused to instruct the jury on the lesser included offense of manslaughter in the first degree.⁹ Id., at 128, 782 A.2d 175. The Appellate Court applied the conjunctive four prong test set forth by this court in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), under which "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." (Internal quotation marks omitted.) State v. Smith, supra, 65 Conn.App. 130, 782 A.2d 175; State v. Ray, 228 Conn. 147, 152, 635 A.2d 777 (1993). Although both parties conceded that the second prong of the Whistnant test had been satisfied, the state argued that the defendant failed to meet the first, third and fourth prongs of the test. State v. Smith, supra, at 133, 782 A.2d 175.

The Appellate Court declined to address the state's argument that, by not providing "in his request to charge any discussion of the evidence that would support an instruction on manslaughter," the defendant failed to satisfy the first prong of Whistnant. Id. The Appellate Court, relying on its decision in State v. Smith, 35 Conn. App. 51, 60 n. 5, 644 A.2d 923 (1994), concluded that, because the state did not make that claim in the trial court, it could not do so on appeal. State v. Smith, supra, 65 Conn.App. at 133, 782 A.2d 175.

The Appellate Court then shifted its analysis to the third and fourth prongs of Whistnant. It relied on its decision in State v. Sotomayor, 61 Conn.App. 364, 379, 765 A.2d 1, cert. dismissed, 260 Conn. 174, 794 A.2d 996, cert. denied, ___ U.S. ___, 123 S.Ct. 313, 154 L. Ed.2d 212 (2002), for the proposition that, "[f]or the third and fourth conditions of Whistnant to be satisfied, there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense." (Emphasis in original; internal quotation marks omitted.) State v. Smith, supra, 65 Conn.App. at 133, 782 A.2d 175. Applying this rule, the court rejected the defendant's contention that his statement to the police, as well as the lack of any evidence of planning or premeditation, constituted sufficient evidence to justify an inference that the defendant "had intentionally beaten the victim into submission so that he could sexually assault her and that this resulted in her death." Id., at 133-34, 782 A.2d 175. The Appellate Court, instead, placed greater emphasis on the defendant's position at trial, namely, that "he not only did not intend to kill the victim, but that he also never intended to injure her," than on the inferences that could be drawn from his statement to the police.¹⁰ Id., at 134, 782 A.2d 175. Ultimately, the Appellate Court concluded, even "[v]iewing the evidence in the light most favorable to the defendant ... his state of mind was not sufficiently in dispute so as to entitle him to a jury instruction on manslaughter in the first degree"; id.; and, accordingly, affirmed the trial court's judgment of conviction. Id., at 144, 782 A.2d 175. This certified appeal followed.

I

In State v. Corbin, 260 Conn. 730, 744-46, 799 A.2d 1056 (2002), we reiterated the well established principles governing whether a defendant is entitled to a lesser included offense instruction under the Whistnant test: "This court repeatedly has recognized that `[t]here is no fundamental constitutional right to a jury instruction on every lesser included offense....' State v. Whistnant, [supra, 179 Conn. at 583, 427 A.2d 414]. Rather, the right to such an instruction is purely a matter of our common law. `A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (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.' Id., at 588, 427 A.2d 414.

"`In considering whether the defendant has...