State v. Pitt

612 A.2d 60, 28 Conn. App. 825, 1992 Conn. App. LEXIS 341
CourtConnecticut Appellate Court
DecidedSeptember 1, 1992
Docket9973
StatusPublished
Cited by11 cases

This text of 612 A.2d 60 (State v. Pitt) 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. Pitt, 612 A.2d 60, 28 Conn. App. 825, 1992 Conn. App. LEXIS 341 (Colo. Ct. App. 1992).

Opinion

Dupont, C. 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 The defendant claims that (1) General Statutes § 53a-55 (a) (3) is unconstitutionally vague as applied to him, (2) the trial court improperly instructed the jury on the essential elements of § 53a-55 (a) (3) by failing to instruct on the meaning of the statutory terms “extreme indifference to human life” and “grave risk of death,” and (3) the trial court improperly excluded the testimony of a defense witness who was called to testify about the victim’s alleged threats to kill the defendant. We affirm the judgment of the trial court.

The jury could reasonably have found certain facts. The defendant and the victim had an argument, during which the defendant threatened the victim with a fence picket, which ended the fight. Subsequently, the defendant drove off with some friends.

[827]*827Later that evening, in the vicinity of the defendant’s sister’s house, the defendant and the victim again got into an altercation. This time a gun was involved. Three to five gunshots were fired, one of which fatally wounded the victim. Shortly after the shots were fired, the defendant was seen with a gun in his possession coming from the area where the victim lay wounded. The defendant then fled and was apprehended four months later. There were no eyewitnesses to what actually occurred between the defendant and the victim.

The defendant’s first two claims involve § 53a-55 (a) (3). He argues that § 53a-55 (a) (3) violates his due process rights because it is unconstitutionally vague as applied to him. He also challenges the trial court’s failure to define, in its instructions to the jury, the terms “extreme indifference to human life” and “grave risk of death,” which are used in the statute.

The defendant concedes that he did not raise the claim of a due process violation at trial and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He argues that the failure of the legislature to define the terms as used in the manslaughter statute fails to give him fair warning of the effect of the statute and fails to provide a sufficient guarantee against arbitrary enforcement. The defendant’s failure to raise the constitutionality of a statute at trial, or to object to the instruction given,2 in light of the facts that the jury could reasonably have found, leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally vague as applied to him. State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). In the absence of such a record, review is precluded. State v. Golding, supra, 239-40.

[828]*828The defendant next claims that the trial court improperly instructed the jury when it failed to define the terms “extreme indifference to human life” and “grave risk of death” during its main instructions to the jury and, again, later when the jury specifically requested the definition of “extreme indifference to human life” during its deliberations. The defendant failed to preserve this claim properly. He, therefore, seeks our review under State v. Golding, supra. We conclude, however, that the defendant’s claim must fail under the third prong of Golding because the record shows that a constitutional violation does not clearly exist and he was not clearly deprived of a fair trial. Id., 240.

The defendant’s testimony is relevant to a resolution of this issue. He claimed that on the evening of the shooting, the victim came looking for him at his sister’s apartment. The victim and the defendant struggled for a gun that the victim had brought with him. The defendant gained possession of the gun and then requested that the victim leave. The two men went outside and the victim refused to leave without his gun. The defendant turned to walk back into the apartment building and the victim ran toward the defendant. The defendant then turned and fired two shots at the ground near the victim’s feet. The victim stopped. The defendant again turned to walk into the apartment and the victim again ran toward the defendant. The defendant turned and again fired two shots at the ground near the victim’s feet. The victim stopped. The defendant turned for a third time to enter the apartment. The victim again approached the defendant. This time, however, the defendant lost his balance when he turned toward the victim, and the gun went off, fatally wounding the victim.

It has long been held that a “ ‘charge should be read as a whole. . . . The whole charge must be considered from the standpoint of its effect on the jurors in [829]*829guiding them to a proper verdict . . . .’ ” (Citations omitted.) State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). Where supplemental instructions are given, as is the case here, they must be viewed together with the original instructions. State v. Toczko, 23 Conn. App. 502, 507, 582 A.2d 769 (1990). “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.” State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991); State v. Bunker, 27 Conn. App. 322, 326, 606 A.2d 30 (1992).

In State v. Spates, 176 Conn. 227, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979), the defendant claimed that the trial court’s failure to define the term “extreme indifference to human life” for the jury required a new trial. The court’s instructions, which defined the term for the jury by stating that it meant more than “mere carelessness” or “ordinary recklessness” and also charged the jury extensively on the meaning of “recklessly,” were upheld. Id., 236-37. Likewise, in State v. Bunker, supra, 325-27, which involved similar statutory language found in General Statutes § 53a-59 (a) (3),3 we recently determined that the trial court had not impermissibly diluted the meaning of “extreme indifference to human life” when it paraphrased the statutory term to mean “a high degree of disinterest to human life” where the trial court had adequately [830]*830defined the term “recklessly” to the jury and had stressed the difference between ordinary recklessness and the type of reckless assault made criminal by § 53a-59 (a) (3). We concluded that the Bunker jury was properly guided to a correct verdict because the court’s instructions “gave the jury a clear understanding of the aggravated form of recklessness required to support a conviction under § 53a-59 (a) (3).” Id., 327.

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Bluebook (online)
612 A.2d 60, 28 Conn. App. 825, 1992 Conn. App. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pitt-connappct-1992.