State v. Burke

725 A.2d 370, 51 Conn. App. 798, 1999 Conn. App. LEXIS 55
CourtConnecticut Appellate Court
DecidedFebruary 16, 1999
DocketAC 17733
StatusPublished
Cited by9 cases

This text of 725 A.2d 370 (State v. Burke) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burke, 725 A.2d 370, 51 Conn. App. 798, 1999 Conn. App. LEXIS 55 (Colo. Ct. App. 1999).

Opinion

Opinion

HENNESSY, J.

The defendant, Jamel Burke, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c1 and burglary in the third degree in violation of General Statutes § 53a-103 (a). 2 The defendant claims (1) that the trial court improperly instructed the jury on self-defense or, in the alternative, that the evidence was insufficient to disprove the defendant’s claim of self-defense, (2) that the evidence of causation was insufficient to sustain a finding of probable cause on [800]*800the felony murder charge and (3) that the trial court improperly denied the defendant’s motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that he caused the victim’s death and that the death occurred in flight from the burglary. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 27, 1995, the victim, John J. Walsh, Jr., was working at the Fox Cafe as a doorman. A Fox Cafe employee found the victim on the ground in the Fox Cafe parking lot with blood flowing from his right temple. The victim was taken to the Waterbury Hospital emergency room where he was subsequently removed from life support.

On the basis of a tip, the police questioned David Monell regarding the homicide. After questioning Monell, the police obtained a search and seizure warrant for the defendant’s person and residence. The police brought the defendant to the police station, where he gave the police a written, signed statement. The defendant indicated that on May 27, 1995, while at a party, he and Monell talked about breaking into a car to obtain a car stereo. They drove to the Fox Cafe where they noticed a Dodge Caravan with a car stereo and an alarm. They pulled into the parking lot next to the Fox Cafe, and the defendant approached the Caravan with a flashlight and a screwdriver while Monell waited in his car. Using the screwdriver, the defendant popped the front passenger window, setting off the car alarm, and reached in to open the Caravan door.

The defendant quickly removed the car stereo from the Caravan using the screwdriver and started to walk back to Monell’s car when he heard the victim running after him. The defendant threw the stereo at the victim to stop him. The victim kept running, however, and tackled the defendant. A struggle ensued, during which [801]*801the defendant swung both fists at the victim until he stopped struggling. When the defendant returned to Monell’s car, he noticed that he still had the screwdriver in his hand and “figured that [he] stuck the . . . guy with the screwdriver.” The defendant left the scene in Monell’s car and returned to the party. The defendant told Monell that he thought that he “might have stabbed the guy.” Other facts will be discussed where relevant to the issues on appeal.

I

A

The defendant first claims that the trial court improperly instructed the juiy on self-defense. Specifically, the defendant argues that the trial court misled the jury by directing it to find that the defendant’s use of force constituted deadly physical force and by injecting the right of the victim to make a civilian arrest into the self-defense instruction.

The defendant failed to raise these claims at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine.3

“In Golding, [our Supreme Court] held: [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged [802]*802claim 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. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Cole, 50 Conn. App. 312, 318, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217 (1998).

The record is adequate to review the alleged claim of error. In addition, we recognize that “the defendant has a constitutionally guaranteed due process right to establish a defense. . . . The right to establish a defense, however, is not limitless. The defense sought to be established must be legally cognizable as a valid defense to the crime charged.” (Citations omitted.) State v. Amado, 42 Conn. App. 348, 357-58, 680 A.2d 974 (1996), remanded for reconsideration, 242 Conn. 906, 697 A.2d 368 (1997), on reconsideration, 50 Conn. App. 607, 719 A.2d 45 (1998), cert. granted, 247 Conn. 953, 723 A.2d 811 (1999).4 The defendant’s claim is not of constitutional magnitude because self-defense is not legally cognizable as a valid defense to a felony murder charge; id., 362; and, therefore, does not warrant review under Golding.5

[803]*803The defendant urges this court to reconsider the bright line rule established in State v. Amado, supra, 42 Conn. App. 362, that self-defense is not available as a defense to a charge of felony murder in violation § 53a-54c. The defendant argues that the facts in this case do not comport with the rationale behind felony murder because he broke into an unoccupied motor vehicle and, therefore, was less likely to involve danger to life in the event of resistance by the victim. The defendant’s argument does not persuade us to revisit the rule articulated in Amado.

B

The defendant next claims that the evidence was insufficient to disprove his claim of self-defense beyond a reasonable doubt. This claim fails because self-defense is not available as a defense to a charge of felony murder in violation of § 53a-54c. State v. Amado, supra, 42 Conn. App. 362. Because the defendant’s claim of self-defense was not properly before the trier of fact, the state did not need to disprove that claim beyond a reasonable doubt.

II

The defendant next claims that the evidence was insufficient to sustain a finding of probable cause on the felony murder charge because the state failed to prove that he caused the death of the victim as required under the felony murder statute.

The defendant failed to raise this claim at trial and now seeks review under Golding and the plain error doctrine. The defendant’s claim is reviewable under Golding

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Burke v. Commissioner of Correction
877 A.2d 885 (Connecticut Appellate Court, 2005)
Niblack v. Warden, No. Cv93-1725 (Jul. 31, 2002)
2002 Conn. Super. Ct. 9625 (Connecticut Superior Court, 2002)
Fee v. Corrigan, No. 550179 (Apr. 3, 2002)
2002 Conn. Super. Ct. 4110 (Connecticut Superior Court, 2002)
State v. Gayle
781 A.2d 383 (Connecticut Appellate Court, 2001)
In Re Burke, No. Cr95-238335 (Mar. 27, 2001)
2001 Conn. Super. Ct. 4638 (Connecticut Superior Court, 2001)
Lapointe v. Warden, No. Cv 97-0571161 (Sep. 6, 2000)
2000 Conn. Super. Ct. 10851 (Connecticut Superior Court, 2000)
State v. Burke
732 A.2d 180 (Supreme Court of Connecticut, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
725 A.2d 370, 51 Conn. App. 798, 1999 Conn. App. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burke-connappct-1999.