State v. Tucker

• Decision Date: 01 July 1980
• Citation: 435 A.2d 986,181 Conn. 406
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Forrest TUCKER.

Page 986

435 A.2d 986

181 Conn. 406

STATE of Connecticut v. Forrest TUCKER.

Supreme Court of Connecticut.

Argued April 3, 1980.

Decided July 1, 1980.

Jonathan E. Silbert, Sp. Public Defender, for appellant (defendant).

Linda K. Lager, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and John J. Kelly, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

PETERS, Associate Justice.

This case arises out of the death of a battered child. The defendant Forrest Tucker was charged by indictment with murder of the child, in violation of General Statutes § 53a-54a(a), ¹ and by information with risk of injury to the child, in violation of General Statutes, § 53-21. ² The trial court, O'Sullivan, J., agreed, on motion by the defendant, to sever the murder and the risk of injury counts. Thereupon the state elected to prosecute first the indictment of murder. The defendant was tried to a jury and was acquitted of murder but convicted of manslaughter in the first degree, in violation of General Statutes § 53a-55(a)(1). ³ The court, O'Brien, J., denied the defendant's motion for acquittal and for a new trial, and this appeal followed.

From the evidence presented at the trial the jury could reasonably have found the following: The victim, Charles Patten, also known as Charles Manos, Jr., or Chuckie Manos, was born on February 5, 1976, and died on June 12, 1977. He lived with his mother, Nancy Patten. In March of 1977, the defendant moved in with the mother and the child. During the period from March to June, 1977, various neighbors observed a variety of incidents involving the defendant and the child which resulted in visible injuries to the child. ⁴ The child suffered repeated bruises, black eyes and lumps on his head. These incidents of abuse were denied by the defendant.

Three specific events involving injury to the child before the day of his death are essentially undisputed. On April 27, 1977, the mother took the child to a hospital because he had fallen out of his crib and injured his left leg; defense witnesses suggested, at the trial, that this fall left the child accident prone. On May 14, 1977, while the child was in the defendant's care, he was again injured. According to the defendant, he fell off his toy horse. Concerned about the child's swollen forehead and closed eyes, the mother took him to a hospital the following day, falsely informing the hospital staff that the child's injuries had been caused by falling down a flight of stairs. Over the Memorial Day weekend, the child sustained further injuries when a bucket in which he was standing tipped over, causing him to fall out; the defendant, in close proximity, did not intervene to prevent the accident. The visible injuries attributable to these events had sufficiently faded by June 8, 1977, so that photographs taken on that day showed no bruises or marks other than a scratch above the child's left eye.

The events that led up to the child's death began with the child's normal awakening on June 10, 1977. Although he vomited once either before or after his breakfast, he was thereafter walking about. Later that morning, the child was left alone with the defendant for a period of thirty to sixty minutes. Upon the mother's return, she noticed that the child's eyes seemed to be rolling, that he was acting strangely, and that he appeared to be tired. The defendant asked whether anything untoward had occurred in the mother's absence, claimed then, and thereafter, that nothing had happened. That afternoon, the child appeared listless, and when he was undressed for his bath, it was discovered that his scrotum was bruised. The child vomited repeatedly and was obviously unwell. That evening, he was found lifeless in his crib. He was taken to the hospital and pronounced dead shortly after midnight on June 11, 1977.

The defendant left the apartment, taking the family car, to go to his place of employment during the afternoon of June 10, 1977. He called twice that evening to inquire after the child. The mother testified that during the second conversation, the defendant responded to her continued concern by saying, "Well, if he is going to die, he is going to die." The defendant testified to the contrary, saying that he had merely said, "He is your kid. Do what you want."

An autopsy conducted on the child on June 12, 1977, by Daniel Sheahan, the hospital pathologist, revealed extensive external and internal injuries. The external injuries, some of which were quite recent, included injuries to the child's scalp, face, body, chest and buttocks. The internal injuries included bruises to the scalp under the hairline, multiple rib fractures, perforation of the small intestine, hemorrhage of the transverse colon, inflammation of the pancreas, and blood leakage into the abdomen. The cause of death was determined to be a blunt injury of considerable force, a punch or a blow, to the child's abdomen, which resulted in perforation of the small intestine. Such an injury would not cause death immediately but would result in death within a relatively short period after infliction of the injury.

Other medical testimony established that the injuries sustained by the child are consistent with those associated with the battered child syndrome. The type of intestinal injury in these cases differs markedly from that found in accidental abdominal injuries. The medical testimony also indicated that the child's healing rib fractures were unlikely to have been caused either by a fall from a crib or a fall from a toy horse.

As a result of investigation into the child's death, his mother and the defendant were arrested and charged with risk of injury to a child. Only the defendant was indicted for murder. Both the mother and the defendant testified at the trial which led to the conviction of first degree manslaughter that is now before us on this appeal.

The defendant claims that his conviction should be overturned because the trial court erred: (1) in instructing the jury that manslaughter in the first degree may be a lesser degree of homicide and thus may be a lesser included offense within an indictment for murder; (2) in admitting evidence of prior mistreatment of the victim by the defendant; (3) in denying the defendant's motion for acquittal because of insufficiency of the evidence to permit a finding of guilty beyond a reasonable doubt on the charge of manslaughter in the first degree; and (4) in denying the defendant's request to have the jury polled. We find none of these claims of error to be persuasive.

I

The defendant's first claim of error arises out of the trial court's instructions to the jury, which charged that the jury could convict the defendant either of murder, as charged in the indictment, or of first degree manslaughter, as a lesser included offense under General Statutes § 53a-45(c). ⁵ The state had requested that the court charge on all four degrees of manslaughter: murder in violation of General Statutes § 53a-54a; manslaughter in the first degree in violation of General Statutes § 53a-55; manslaughter in the second degree, reckless homicide, in violation of General Statutes § 53a-56; and negligent homicide in violation of General Statutes § 53a-58. The defendant had originally requested that the court charge only on murder, but thereafter the defendant made a timely objection to the charge as given, urging that once the court had charged on any one lesser degree of homicide it was obligated to charge on all of them.

The defendant's first argument in this connection reverts to his original position that the court should have limited the jury's consideration to the indicted charge of murder. The essence of the defendant's position is that there can be no lesser included offenses of the crime of murder. The defendant argues that because specific intent to cause death is a requisite element of the crime of murder, no other intent, such as that associated with lesser degrees of homicide, is necessarily encompassed by, or consistent with, the crime of murder.

This argument was extensively addressed and refuted in State v. Rodriguez, 180 Conn. 382, 398-409, 429 A.2d 919 (1980). We there held (p. 405, 429 A.2d p. 929) that, "(b)y the charge on the greater offense of murder, the defendant is put on notice that he will be put on trial for his action in causing the death of another person. Thus, having been given notice of the most serious degree of culpable intent by the murder indictment, he is implicitly given notice of those lesser included homicides that require a less serious degree of culpable intent." Applying the conditions for a lesser included offense instruction set out in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), Rodriguez further determined (p. 407, 429 A.2d p. 929) that, for the purposes of the second condition of Whistnant, "an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense."

The defendant's second argument arises out of his objection to the instructions as given and to the failure to charge on lesser degrees of homicide other than first degree manslaughter. It is by no means clear that the defendant is entitled now to raise this claim, in light of our holding in State v. Whistnant, supra, 583, 427 A.2d 414, that a charge on a lesser included offense is not constitutionally required in the absence of a timely request for such an instruction. The defendant cannot, however, sustain this argument even if this procedural obstacle could be said to have been overcome, either by the state's requested instruction or by the defendant's timely objection. In order to prevail, the defendant must demonstrate, in accordance with the fourth condition of Whistnant, supra, 588, 427 A.2d 414, that "the proof on...