State v. Jacobowitz

480 A.2d 557, 194 Conn. 408, 1984 Conn. LEXIS 686
CourtSupreme Court of Connecticut
DecidedSeptember 4, 1984
Docket11795
StatusPublished
Cited by23 cases

This text of 480 A.2d 557 (State v. Jacobowitz) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jacobowitz, 480 A.2d 557, 194 Conn. 408, 1984 Conn. LEXIS 686 (Colo. 1984).

Opinion

Grillo, J.

The defendant, Harold Jacobowitz, was charged with criminal attempt to commit murder in violation of General Statutes §§ 53a-49 and dSa-Ma.1 He [410]*410pleaded not guilty, was tried by a jury of six, convicted as charged, and sentenced to eighteen years in prison. From that conviction, the defendant appeals, claiming the following as error: (1) the court’s failure to charge sua sponte on the affirmative defense of extreme emotional disturbance; (2) the trial court’s failure to charge sua sponte on lesser included offenses; (3) ineffective assistance of counsel; (4) the admission of evidence of past crimes; and (5) the lack of sufficient facts to return a guilty verdict.

The following facts could reasonably have been found by the jury: Sometime prior to October, 1981, the defendant and his wife were divorced. In October, the defendant’s ex-wife moved to a trailer park owned by the victim Robert Viens. The defendant’s ex-wife [411]*411and the victim developed a friendship and spent time together both at and outside the trailer park. The existence of this relationship enraged the defendant. Prior to October, he had made numerous phone calls to the victim, threatening him with violence if he allowed the defendant’s ex-wife to move into the park. Between October, 1981, and April, 1982, the defendant, on many occasions, made threatening phone calls both to his ex-wife and to the victim. He also threatened the victim on one occasion in person at a church in January, 1982.

The incident which led to the charges against the defendant occurred on April 7, 1982. The defendant was parked in a truck, across the street from his ex-wife’s trailer. The defendant had been waiting for a ten to fifteen minute period when his ex-wife and the victim arrived together at the trailer. The ex-wife entered the trailer, and the victim remained outside. The defendant, becoming angry at seeing his ex-wife with the victim, drove his truck toward the victim. The truck hit a parked car, which hit the victim. The defendant then backed his truck up and drove the car forward into the trailer, knocking it off its foundation. As the defendant again backed up, the corner blade of the snowplow attachment clipped the victim and knocked him to the ground, where a wheel of the truck ran over his leg.

We first address the defendant’s contention that the trial court erred in failing to charge sua sponte on the affirmative defense of extreme emotional disturbance. See footnote 1, supra, General Statutes § 53a-54a. The defendant bases this claim on a statement by this court that “[a]lthough extreme emotional disturbance is an affirmative defense, it requires no special plea, notice or other formal assertion by a defendant.” See State v. Marino, 190 Conn. 639, 651 n.11, 462 A.2d 1021 (1983).

[412]*412This court, in State v. Elliott, 177 Conn. 1, 6, 411 A.2d 3 (1979), adopted the holding in Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), that extreme emotional disturbance is an affirmative defense and that the burden of proof is on the defendant. “The purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them.” State v. Elliott, supra, 6, quoting People v. Patterson, 39 N.Y.2d 288, 302, 347 N.E.2d 898 (1976). Since manslaughter predicated on the mitigating circumstance of extreme emotional distress is a lesser included offense of murder; see State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980); the four-prong test of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), must be satisfied before a defendant is entitled to a charge on extreme emotional distress. Under the first prong of Whistnant, a defendant is entitled to an instruction “if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant . . . .” State v. Whistnant, supra, 588. Failure by the defendant in the present case to request that the trial court charge on extreme emotional distress coupled with the paucity of evidence proffered to substantiate such a charge justified the trial court’s failure so to charge. See State v. Jacobs, 194 Conn. 119, 128 n.4, 479 A.2d 226 (1984).

The defendant also claims that the trial court erred in not charging sua sponte on the lesser offenses included under criminal attempt to commit murder.2 The defend[413]*413ant’s failure to request a charge on these lesser offenses supports the trial court’s decision to limit its instruction to criminal attempt to commit murder. See State v. Jacobs, supra; State v. Whistnant, supra, 588. Yet the defendant claims that, even without the request, the court should have made the charge sua sponte because the right to a charge on lesser offenses implicates the constitutional right to a fair trial. This court does not recognize the right to have a jury charged on lesser included offenses to be one of constitutional dimension: “There is no fundamental constitutional right to a jury instruction on every lesser included offense suggested by the evidence or by the information, indictment and bill of particulars.” State v. Whistnant, supra, 583.

Little need be said relative to the defendant’s third claim of ineffective assistance of counsel. We have repeatedly held that ineffective assistance claims are more properly pursued in a petition for a new trial or a writ of habeas corpus. State v. Tirado, 194 Conn. 89, 478 A.2d 606 (1984); State v. Young, 191 Conn. 636, 653-54, 469 A.2d 1189 (1983); State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982). In this case there is nothing in the record from which we can determine whether trial counsel acted incompetently. An ineffective assistance claim cannot be properly evaluated simply by perusing the transcript. State v. Young, supra, 653.

The defendant’s fourth claimed error involves the trial court’s allowing evidence of other crimes to be admitted into evidence. During the course of the trial, the state introduced the following evidence: The victim was allowed to testify that between October, 1981, and April, 1982, the defendant made over two hundred threatening telephone calls to the victim; that at some point in that period, the defendant threw a cement block at his ex-wife’s trailer; that on March 1, 1982, [414]

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Bluebook (online)
480 A.2d 557, 194 Conn. 408, 1984 Conn. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jacobowitz-conn-1984.