State v. Williams, 8225

• Citation: 25 Conn.App. 456,595 A.2d 895
• Decision Date: 19 September 1991
• Docket Number: No. 8225,8225
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Finley WILLIAMS.

Page 895

595 A.2d 895

25 Conn.App. 456

STATE of Connecticut v. Finley WILLIAMS.

No. 8225.

Appellate Court of Connecticut.

Argued June 11, 1991.

Decided Aug. 13, 1991.

Certification Denied Sept. 19, 1991.

Erskine D. McIntosh, Asst. Public Defender, with whom, on the brief, were William Holden, Public Defender, and Christopher McKeon, Certified Legal Intern, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Stephen J. Sedensky III, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and NORCOTT and HEIMAN, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(2) applicable to acts that do not constitute murder because of a defendant's extreme emotional disturbance. The defendant raises several challenges to various instructions given to the jury by the trial court. We affirm the judgment of the trial court.

The jury could have reasonably found certain facts. On the evening of February 15, 1988, the defendant and the victim were occupying the same apartment. That evening, the defendant consumed alcohol and, throughout the evening, the defendant and the victim had several arguments. These arguments led to two separate physical altercations before the defendant and victim were separated by others occupying the apartment. Later, the defendant and the victim were again involved in a fight in the room occupied by the victim. Early in the morning of February 16, the victim was found dead as a result of numerous blows to the head and body by a blunt instrument.

The defendant first challenges the trial court's instruction concerning circumstantial evidence as violative of his federal and state constitutional rights to a fair trial and to present a defense. The defendant concedes that this claim was not properly preserved at trial but seeks review under the Evans- Golding doctrine. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Because the jury instruction here is the same as that reviewed by our Supreme Court in State v. Ortiz, 217 Conn. 648, 665-70, 588 A.2d 127 (1991), and because our review of the record shows that there was no reasonable possibility that the jury was misled by the trial court's instruction, the defendant cannot prevail on this claim. State v. Tinsley, 24 Conn.App. 685, 689, 591 A.2d 448 (1991); State v. Willis, 24 Conn.App. 678, 682, 591 A.2d 445 (1991).

The defendant next contends that the trial court improperly instructed the jury with respect to the law on intoxication. The trial court instructed the jury that, if it decided that the defendant was intoxicated at the time of the alleged crime, it must then determine "whether his mind was so obscured that it was incapableble of possessing an intent to commit the acts constituting the crime of murder. Any intoxication, not merely a total intoxication, may be considered in determining whether the defendant possessed the requisite intent." The defendant argues that this instruction had the effect of removing from the state the burden of proving beyond a reasonable doubt that, despite the defendant's intoxication, he had the capacity to and did form the intent to kill the victim. We disagree.

"A charge to the jury is not to be clinically dissected nor are portions of the charge to be read in isolation from the entire instruction. State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). Rather the charge is to be read as a whole with a view towards its probable effect in guiding a jury to a correct verdict.... The test to be applied to any part of the charge is whether the charge, when taken as a whole, presents the case to the jury fairly and accurately, such that no injustice will be done." (Citations omitted.) State v. Toczko, 23 Conn.App. 502, 507, 582 A.2d 769 (1990). Where as here, the allegedly improper instruction is of constitutional magnitude, because the defendant is claiming that the instruction shifted the burden of proof, we must determine whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989).

Our review of the entire charge that was given to the jury reveals no reasonable possibility that the jury was misled. The trial court instructed the jury in the language of General Statutes § 53a-7, ¹ informing the jury that intoxication is not a defense but is relevant to negate the element of intent. Furthermore, the trial court carefully and repeatedly instructed the jury that the burden of proof beyond a reasonable doubt on the element of intent rested with the state; State v. Toczko, supra; noting that, in order to find the defendant guilty of the specific intent crimes on which the jury was instructed, it "ha[d] to find that he was not in such a state of intoxication as to be unable to form the required specific intent." Under these circumstances, we reject the defendant's claim.

The defendant's third claim is that the trial court's jury instruction on the affirmative defense of extreme emotional disturbance (1) impermissibly directed the jury to find him guilty of manslaughter in the first degree upon a finding of a valid defense of extreme emotional disturbance and (2) precluded from the jury's consideration the lesser included offense of manslaughter in the second degree. We do not agree.

The trial court instructed the jury that "if you also find that the state has proved beyond a reasonable doubt that the defendant intended to cause the death of the decedent, and that he did cause the death of the decedent, but under circumstances which do not constitute murder because he was acting under the influence of extreme emotional disturbance, you must find the defendant guilty of manslaughter in the first degree [in violation of General Statutes § 53a-55(a)(2) ]." The defendant's argument that the instruction "misle[d] the jury to find the defendant guilty of manslaughter in the first degree if he committed the act while under the influence of an extreme emotional disturbance, regardless of the intent of the defendant," misinterprets the charge as given.

The challenged instruction requires the jury first to decide if the elements of murder have been proven beyond a reasonable doubt. Only after the jury has first found the intent required to convict the defendant of murder does the charge direct the jury to consider the claim of extreme emotional disturbance. The challenged instruction, by its very terms, has not made the defendant's intent irrelevant, but rather has made a finding regarding his intent a necessary prerequisite to a finding of guilt under General Statutes § 53a-55(a)(2). When §§ 53a-54a ² and 53a-55(a)(2) ³ are read together, it is clear that the jury was, in fact, required to return a guilty verdict under § 53a-55(a)(2) if it found beyond a reasonable doubt that the defendant intended to cause the death of the decedent and did cause the death of the decedent, but under circumstances that do not constitute murder because he was acting under the influence of extreme emotional disturbance. State v. Asherman, 193 Conn. 695, 729-33, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985).

The defendant's related claim, namely, that the challenged instruction on extreme emotional disturbance precluded jury consideration of the lesser included offense of manslaughter in the second degree, must also fail. As we have noted, the challenged instruction required the jury first to determine whether the elements of murder had been proven before it determined whether the mitigating circumstances of extreme emotional disturbance required a guilty verdict under § 53a-55(a)(2). The trial court thereafter reviewed all of the other possible verdicts in the order that the jury was to consider them if it did not find the defendant guilty of murder or manslaughter in the first degree by reason of extreme emotional disturbance.

The court appropriately instructed the jury on the lesser included offense of manslaughter in the second degree. The trial court instructed the jury that if it did not find that the state had proved the elements of the murder charge, then the instruction on extreme emotional disturbance was inapplicable to the case, and the jury was required to consider each of the remaining lesser included offenses, including manslaughter in the second degree.

The defendant's next claim is that, in instructing the jury on self-defense, pursuant to General Statutes § 53a-19, ⁴ the trial court improperly stated that the "reasonable force" to be evaluated by the jury "is the amount of force that would be used by an average person of ordinary intelligence, acting under the same circumstances." (Emphasis added.) Evidence adduced at trial showed that the defendant's intelligence was less than average, that the defendant had previously been the victim of a violent attack by an acquaintance, and that the defendant was aware of the victim's propensity for violence. The defendant argues that the court's definition of reasonable physical force impermissibly replaced the subjective-objective standard contemplated by § 53a-19 with a simple objective standard and, therefore, "took the jury too far away from the 'subjective-objective' standard in determining the degree of force."

The defendant has not properly preserved this claim for appellate review, but seeks review under State v. Golding, supra, and State v. Evans, supra. His fundamental right to present a defense includes a proper instruction on the elements of self-defense. State v. Gilchrist, 24 Conn.App. 624, 632-33, 591 A.2d 131, cert. denied,219 Conn. 905, 593 A.2d 131 (1991). Although the court's charge to the jury on self-defense contained an incorrect...