State v. Peters

673 A.2d 1158, 40 Conn. App. 805, 1996 Conn. App. LEXIS 166
CourtConnecticut Appellate Court
DecidedApril 2, 1996
Docket13599; 14240
StatusPublished
Cited by27 cases

This text of 673 A.2d 1158 (State v. Peters) 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. Peters, 673 A.2d 1158, 40 Conn. App. 805, 1996 Conn. App. LEXIS 166 (Colo. Ct. App. 1996).

Opinion

HEIMAN, J.

In this consolidated appeal, the defendant appeals in the first case from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-211 and assault in the third degree in violation of General Statutes § 53a-61.2 The defendant appeals in the second case from the judgment of conviction of a violation of probation, rendered by the court by reason of his convictions in the first case.3

The defendant claims that his conviction in the first case is fatally flawed because the trial court improperly (1) instructed the jury on self-defense in four ways, including (a) giving an incorrect definition of “initial aggressor” as the first person to use physical force, (b) making an incorrect statement that a person who acted from anger, malice or revenge could not claim self-defense, (c) failing to charge on the subjective-objective standard by replacing that standard with a totally objec[807]*807tive standard, (d) limiting the defendant’s claim of justification to the charge of assault, (2) omitted judicial gloss from its instructions regarding the elements of the crime of risk of injury, thereby depriving the defendant of his right to due process, (3) permitted the defendant’s conviction of risk of injury to stand where the evidence was insufficient to support a conviction, and (4) violated the defendant’s right not to be placed in double jeopardy by sentencing him for both risk of injury and assault in the third degree. The defendant also asserts that in the second case, the judgment of conviction of violation of probation should be reversed because the factual predicates for the violation of probation were the allegedly improper convictions of risk of injury and assault in the third degree. We affirm the judgments of the trial court.

The jury could reasonably have found the following facts. On December 7, 1991, the victim was fourteen years of age and resided on Norfolk Street in Hartford with his mother. The victim’s mother had been in a long-term relationship with the defendant and, at the time of trial, they had been married for approximately two weeks.

On December 7,1991, at the house on Norfolk Street, the defendant and the victim started to argue with each other. The defendant and the victim were both in the living room, and the defendant, using his body, began shoving the victim, forcing him into the kitchen and against a kitchen wall. While the defendant continued shoving, the victim punched the defendant, then picked up a knife, dropped it, and ran from the house.

The defendant followed the victim from the house, saying that he was going to “get” the victim, and he finally caught the victim in the yard. The defendant shoved the victim up against the door of a car and punched him in the left eye. The victim fell to the ground [808]*808and, at the same time, the defendant grabbed the victim’s sweater, ripped it, caused it to wrap around the victim’s neck, pulled on it, and choked the victim. The victim then managed to ease out of the sweater.

While the victim was lying on the ground, his mother threw herself on top of him so that the defendant would not hit him again. The victim got up and ran to his grandmother’s house on Garden Street, about one mile away from the assault. When the victim arrived at his grandmother’s house, he was crying. The victim’s left eye was black and blue, swollen and almost completely closed due to the defendant’s punch. The victim’s grandmother called the police.

I

The defendant first claims that the trial court improperly instructed the jury in four distinct areas of the law relating to self-defense. The defendant asserts that the improper instructions deprived him of his constitutionally guaranteed rights to present a defense, to due process, and to a fair trial. We are unpersuaded.

We note at the outset that the defendant failed to file a request to charge concerning the law of self-defense.4 The defendant also failed to take an exception to the trial court’s self-defense charge.5 Thus, the defendant has not properly preserved his claims regarding the charge. The defendant seeks review of this claim pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant also seeks review under the plain error doctrine.6 We afford Golding review7 to these claims because the right to establish [809]*809a defense is constitutional in nature. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

We preface our analysis of the defendant’s individual claims by once again stating, albeit briefly, the fundamental precepts that govern our review of these claims. “An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

A

We first address the defendant’s challenge to that portion of the trial court’s charge regarding the concept of “initial aggressor.” The defendant asserts that the trial court improperly defined that term. Having examined the trial court’s instruction concerning the concept of the initial aggressor in the context of the charge as a whole, we conclude that it was not reasonably possi[810]*810ble that the jury was misled as a result of that instruction.

In the course of discussing the issue of self-defense, the trial court stated: “Finally, a person is not justified in using physical force if intending to cause physical injury to another person he provokes the use of physical force by that other person or if he is the initial aggressor. That is the first one to use physical force.” An instruction that the first person to use physical force is the initial aggressor, viewed in isolation, is an incorrect statement of our law. State v. Jimenez, 228 Conn. 335, 340, 636 A.2d 782 (1994). “[A] person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent

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Bluebook (online)
673 A.2d 1158, 40 Conn. App. 805, 1996 Conn. App. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-peters-connappct-1996.