State v. Webb

• Decision Date: 26 June 1995
• Docket Number: No. 12946,12946
• Citation: 657 A.2d 711,37 Conn.App. 722
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Lloyd E. WEBB.

Page 711

657 A.2d 711

37 Conn.App. 722

STATE of Connecticut v. Lloyd E. WEBB.

No. 12946.

Appellate Court of Connecticut.

Argued Feb. 21, 1995.

Decided May 2, 1995.

Certification Denied June 26, 1995.

Susan M. Hankins, Asst. Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom were Timothy J. Liston, Sr. Asst. State's Atty., and, on the brief, John T. Redway, State's Atty., for appellee (State).

Before DUPONT, C.J., and LANDAU and SCHALLER, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. ¹ The defendant claims that (1) the trial court improperly instructed the jury on self-defense, (2) the statute defining first degree reckless manslaughter is unconstitutionally vague as applied in this case, and (3) the trial court abused its discretion in permitting the introduction of the defendant's prior convictions as impeachment evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 17, 1991, the defendant and several other men were at BC's Pub in Durham drinking beer and playing pool. The defendant and Harold Zajechowski became involved in a dispute. The two went outside to fight but, after the defendant displayed a hunting knife, Zajechowski went back into the bar. The argument resumed and subsided several times and eventually the bar owner asked the defendant to leave. The defendant left the bar accompanied by Peter Bishop.

When the defendant reached his pickup truck, he noticed that a cooler of beer he had left in the back was missing. The defendant, believing that Zajechowski had taken it, tried to return to the bar, but Bishop dissuaded him. The defendant drove home and went inside while Bishop waited in the truck. The defendant returned to the truck carrying beer, cigarettes and a twelve-gauge shotgun.

The defendant and Bishop drove back to the bar just before 1 a.m. to retrieve a sweatshirt that the defendant had left behind. Before entering the bar, the defendant told Bishop he wanted to "kick some ass." The defendant retrieved his sweatshirt and returned to the truck. The defendant noticed Zajechowski leaving the bar accompanied by Donald Clarke and Michael Davis. The three men entered a Ford pickup truck and drove off, with Clarke driving. The defendant and Bishop followed.

After several miles, Clarke noticed he was being followed. He accelerated but was unable to lose the defendant. Clarke put on a pair of gloves and retrieved an aluminum baseball bat from behind his seat. He stopped the truck on Brick Lane, and said that he was going to "put an end to this stupid shit right now." Clarke exited the truck carrying the bat, with Zajechowski following behind. As Clarke approached the defendant's vehicle, he told Zajechowski to get back in the truck.

Clarke struck the driver's side window of the defendant's truck with the bat, causing it to shatter. He demanded an explanation as to why the defendant was following him. Clarke then struck the truck two more times, once on the roof of the cab and once on the rear area of the cab. The defendant opened the door of the truck and reached behind the seat for his shotgun. He then fired a single shot which struck Clarke in the chest, killing him.

I

The defendant first claims that the trial court improperly instructed the jury on self-defense. Specifically, the defendant argues that the court substituted a wholly objective standard, where both a subjective and objective analysis is required. Because the defendant did not adequately preserve this claim at trial, he can prevail only if the claim meets the conditions set out in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 4185. ²

Under Golding, a defendant can prevail on a claim not preserved for trial, only if all of the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. We conclude that the defendant cannot satisfy the third prong of Golding. ³

"The standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The charge is to be read as a whole; sections are not to be judged in isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The charge is not to be 'critically dissected in a microscopic search for possible error.' State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). The test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury in a manner to prevent injustice. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). We review the whole charge to determine whether it sufficiently guided the jury to a proper verdict. State v. Shaw, 24 Conn.App. 493, 499, 589 A.2d 880 (1991)." State v. Hester, 28 Conn.App. 469, 472, 612 A.2d 120 (1992); State v. Jenkins, 29 Conn.App 262, 272-73, 614 A.2d 1249, cert. denied, 224 Conn. 916, 617 A.2d 171 (1992).

It is well settled that a jury's evaluation of a claim of self-defense has both subjective and objective elements. State v. Hall, 213 Conn. 579, 586 n. 7, 569 A.2d 534 (1990); State v. Corchado, supra, 188 Conn. at 663, 453 A.2d 427; State v. Williams, 25 Conn.App. 456, 464, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991). "In evaluating a claim of self-defense, a trier of fact must first examine the danger that a defendant claims he faced. It is clear that here '[t]he statute focuses on the [defendant] claiming self-defense. It focuses on what he reasonably believes under the circumstances....' (Emphasis in original.) State v. Corchado, [supra, at 663, 453 A.2d 427]." State v. Williams, supra, at 464, 595 A.2d 895. " 'The jury must view the situation from the perspective of the defendant.... [T]he defendant's belief [however] ultimately must be found to be found to be reasonable.' " State v. Hall, supra at 586 n. 7, 569 A.2d 534, quoting State v. DeJesus, 194 Conn. 376, 389 n. 13, 481 A.2d 1277 (1984). "In evaluating the defendant's belief that he was faced with the imminent use of deadly physical force, the jury must first determine whether the defendant believed that an attack was imminent, and then it must determine whether that belief was reasonable." State v. Bellino, 31 Conn.App. 385, 392-93, 625 A.2d 1381 (1993), appeal dismissed, 228 Conn. 851, 635 A.2d 812 (1994) (cert. improvidently granted).

The crux of the defendant's argument is that the trial court's instruction on self-defense caused the jury to believe that it should evaluate the defendant's conduct by a solely objective test. We find this not to be the case. In its instructions, the trial court presented both the subjective and the objective parts of the test to be applied. The court did not omit the subjective part of the test; rather, it instructed the jury to "measure the justifiability of the defendant's actions from the subjective standpoint." The judge stressed this concept and repeatedly referred to the application of a two-part, subjective and objective test. The court instructed the jury that it must "[d]etermine whether the defendant believed that the use of deadly physical force was necessary and then determine whether that belief and use of deadly physical force was reasonable under the circumstances.... The danger perceived and the degree of force used are both objective and subjective tests. The objective part is that the perceived danger and the degree of force are one in which a reasonably prudent person in the same circumstances would have believed or used."

"A party is not entitled to a charge which is beyond criticism in every particular.... Rather, a charge is adequate if it is legally correct and present[s] the case to the jury in a just and fair manner." (Citations omitted; internal quotation marks omitted.) State v. Knighton, 7 Conn.App. 223, 231, 508 A.2d 772 (1986). "We conclude that the trial court's instructions, as a whole, properly included both the subjective and objective portions of the self-defense test. It properly directed the jury to consider the defendant's personal belief about the danger he was facing...." State v. Jenkins, supra, 29 Conn.App. at 274, 614 A.2d 1249. The defendant's claim, therefore, fails under the third prong of Golding, because the alleged violation does not clearly exist. "Further, because there was no manifest injustice, the defendant's claim does not warrant plain error review." State v. Boles, 223 Conn. 535, 543, 613 A.2d 770 (1992).

II

The defendant was convicted of manslaughter in the first degree with a firearm; General Statutes § 53a-55a; the elements of which are the commission of manslaughter in the first degree under General Statutes § 53a-55 and the use or threatened use of a firearm. The defendant was found guilty of committing manslaughter under § 53a-55(a)(3) while using a firearm. He claims that the statute defining first degree reckless manslaughter is unconstitutionally vague as applied in this case. Specifically, the defendant argues that § 53a-55(a)(3) is void for vagueness under the fifth and fourteenth amendments to the United States constitution ⁴ and article first, §§ 8 and 9, of the Connecticut consti...