State v. Hall

612 A.2d 135, 28 Conn. App. 771, 1992 Conn. App. LEXIS 334
CourtConnecticut Appellate Court
DecidedAugust 25, 1992
Docket10105
StatusPublished
Cited by8 cases

This text of 612 A.2d 135 (State v. Hall) 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. Hall, 612 A.2d 135, 28 Conn. App. 771, 1992 Conn. App. LEXIS 334 (Colo. Ct. App. 1992).

Opinion

Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3).1 He was sentenced to a term of twenty years imprisonment, suspended after fourteen years, with five years of probation. On appeal, the defendant claims that he was denied his fundamental right to a fair trial for the following reasons: (1) the trial court improperly instructed the jury as to manslaughter in the first degree under General Statutes § 53a-55 (a) (3)2 because that crime is not a lesser included offense of the crime with which he was charged; (2) there was insufficient evidence of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) to warrant a jury instruction; and (3) the prosecutor improperly commented during her closing argument on the veracity of a state’s witness and on facts not in evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At about 10 p.m. on August 20, 1989, David Walker, his brother and his uncle were sitting in front of the Mile High Restaurant on Albany Avenue in Hartford when a car driven by the victim, James Brown, skidded along the road, nearly striking a bicyclist, Clive Wilson. The victim then drove into a nearby gasoline station after which he and Wilson exchanged words.

When Wilson departed, the victim drove back onto Albany Avenue heading west. While passing a field [773]*773across the street from where Walker was sitting, the victim’s car was struck by an unidentified projectile. The victim stopped his car, got out and approached a group of youths that included Wilson, an individual known as “Tallest” and the defendant. Wilson struck the victim’s upper body with a tree branch. Tallest then threw a bottle at the victim. While the victim was backing up, trying to escape, the defendant ran up and struck him in the head with a brick. The victim stumbled and collapsed on the street. He died from his injuries two days later.

At trial, the defendant testified that he was not at the scene of the incident and denied having been involved in the events leading up to the victim’s death. He stated that he did not learn of the incident until the next day when various acquaintances mentioned it to him.

At the completion of the state’s case-iri-chief, the defendant moved for a judgment of acquittal, which the trial court denied. After all of the evidence had been presented, both the state and the defendant submitted requests to charge. The state requested a charge on the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), which requires proof that the defendant intended to cause serious physical injury, and General Statutes § 53a-55 (a) (3), which requires proof that the defendant had acted recklessly in engaging in conduct that created a grave risk of death to another. The defendant requested a charge on the lesser included offenses of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1), and criminally negligent homicide in violation of General Statutes § 53a-58. The defendant also renewed his motion for judgment of acquittal and also requested that the jury be charged on the lesser included offenses of General Statutes § 53a-55 (a) (1) and (3). The court instructed the jury [774]*774as to all of the lesser included offenses as the parties requested. The defendant did not except to the instructions as given.

After the jury returned its verdict, the defendant filed motions pursuant to Practice Book §§ 899, 902 and 905 for judgment of acquittal, a new trial, and in arrest of judgment, respectively, contending for the first time that under the facts of this case a violation of General Statutes § 53a-55 (a) (3) is not a lesser included offense of the charge of murder in violation of General Statutes § 53a-54a, and that the evidence was insufficient to support the conviction. The court denied the motions, and this appeal followed.

I

The defendant’s first two claims center on the propriety of the trial court’s charge on manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant first claims that under the facts here this crime is not a lesser included offense as defined by State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980).3 Second, he argues that even if it is a lesser included offense under Whistnant, the court’s instruction was improper because there was insufficient evidence as to the element of recklessness. Because these claims are interrelated, we consider them together.

[775]*775A

In arguing that the instruction on the lesser included offense of manslaughter in the first degree under General Statutes § 53a-55 (a) (3) was violative of State v. Whistnant, supra, the defendant first contends that because the evidence shows only that he intentionally struck the victim, the conviction for reckless manslaughter cannot stand. Since he was acquitted of the murder charge, he now claims that he is entitled to a judgment of acquittal on the reckless manslaughter charge. Second, the defendant asserts that because he denied striking the victim or being involved in his death in any way, his state of mind was never sufficiently in dispute to warrant an instruction on reckless manslaughter. We disagree.

We first note that the defendant has not properly preserved this claim for appellate review pursuant to Practice Book § 8524 and that he seeks review, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),5 of an instruction he himself requested. Ordinarily, action induced by an appellant cannot be a ground for error. See State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987); State v. Turner, 24 Conn. App. 264, 272, [776]*776587 A.2d 1050, cert, denied, 218 Conn. 910, 591 A.2d 812 (1991). “It seems a bit disingenuous for the defendant to claim the trial court committed error by instructing the jury on [first degree manslaughter] when he requested an instruction on that very issue.” State v. Scognamiglio, supra.

Although it is the general rule that a party cannot be heard to complain about such an instruction when he himself has requested it; State v. Shipman, 195 Conn. 160, 165, 486 A.2d 1130 (1985); unpreserved claims of constitutional magnitude, even when induced by the appellant, may be reviewed pursuant to Golding. See State v. Maselli, 182 Conn. 66, 70, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 866, 66 L. Ed. 2d 807 (1981); State v. Murdick, 23 Conn. App. 692, 702, 583 A.2d 1318, cert. denied, 217 Conn. 809, 586 A.2d 1233 (1991). In this case, however, because “a lesser included offense instruction is purely a matter of common law, and therefore does not implicate constitutional rights; see State v. Herring, 210 Conn.

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Bluebook (online)
612 A.2d 135, 28 Conn. App. 771, 1992 Conn. App. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hall-connappct-1992.