dissenting. I believe that the narrow view taken by the majority on when a person charged with murder is entitled to have the jury consider lesser degrees of homicide has deprived the defendant of his common law, statutory and constitutional rights.
The defendant in this case was charged with the intentional murder of his wife. He sought to have the jury instructed on the lesser included offenses of manslaughter in the first and second degrees. Manslaughter in the first degree, as far as it is applicable here, requires that the defendant cause death either with *93“intent to cause serious physical injury,” or through reckless conduct engaged in “under circumstances evincing an extreme indifference to human life.” General Statutes § 53a-55d Manslaughter in the second degree requires that the defendant “recklessly” cause death. General Statutes § 53a-56.1 2 These degrees of homicide are differentiated by gradations in the culpability of a person’s state of mind—that is, intent to kill versus recklessly causing death.
Determining a person’s state of mind is a difficult matter that usually depends upon inferences. “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. This is especially true where a person has caused the death of another person. The death of a person may be caused by a purely accidental act or omission of another, from which no criminal liability may result, or it may come about as the result of long and careful planning, for which the law prescribes severe penalties. Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proved by circumstantial evidence . . . and is, except in rare cases, a question of fact.” (Citation omitted.) State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980). For that precise reason, this court in State v. Falby, 187 Conn. 6, 444 A.2d 213 (1982), reversed a murder conviction because the trial court refused to instruct on lesser included homicides. “Since we cannot as a matter of law exclude this possibility, [i.e., that the defendant committed the homicide with less culpability than intent to cause death,] the trial court erred in refusing to instruct the jury as requested on the lesser included offenses of manslaughter in the second degree and criminally negligent homicide.” Id., 30.
*94Failure to instruct on the lesser degrees of homicide leaves the jury in what could be a dilemma: they must either set the defendant free even though they find that he did criminally cause the victim’s death, or convict him of intentional homicide. “Such a result . . . limit[s] the jury’s function of determining questions of fact and undermine[s] a defendant’s right to a trial by jury.” State v. Rodriguez, supra, 404.
The United States Supreme Court in a capital case recognized this problem of human frailty and reasoned that “the unavailability of the option . . . of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished.” Beck v. Alabama, 447 U.S. 625, 642,100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). In addition, our own legislature has made clear that a defendant charged with murder has a statutory right to instructions on lesser included offenses. General Statutes (Rev. to 1987) § 53a-45 (c) provides: “The court or jury before which any person indicted for murder or held to answer for murder after a hearing conducted in accordance with the provisions of section 54-46a is tried may find him guilty of homicide in a lesser degree than that charged.”
Accordingly, if there is any suggestion that a person charged with murder committed the homicide with a lesser degree of intent, then at his or her request the jury should be instructed on the lesser degrees of homicide. I have long been under the impression that this was our law, at least since State v. Rodriguez, supra.
Nevertheless, in this case, even if we should travel the route charted by the majority and require “sufficient” evidence, I would still conclude that the defendant was entitled to his requested instruction. The majority points out that the requirements of State v. *95Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), are superimposed on § 53a-45 (c) and must be met in order for a party to be entitled to an instruction on lesser included offenses. See State v. Rodriquez, supra, 399-407.
The majority focuses on the third prong of State v. Whistnant, supra, 588—that is, there must be “some evidence . . . which justifies conviction of the lesser offense”3—to uphold the trial court’s refusal to instruct on the lesser included offenses of manslaughter in the first and second degrees. After “clarifying” that under this prong “some” evidence means “sufficient” evidence, the majority holds that there was not enough evidence of the lesser included homicides to entitle the defendant to the instruction he sought. This is simply not the case for several reasons.
First, the fact that the victim was strangled suggests that the defendant may not have intended to cause her death. The majority tacitly concedes that the defendant would have been entitled to the requested instructions if there was evidence from which the jury could conclude that the strangulation rendered the victim unconscious and that she was still unconscious when the fatal neck and chest wounds were inflicted.4 There *96is evidence in the record that the strangulation could have rendered the victim unconscious,5 and the majority does not take issue with this. The majority concludes, however, that the victim must have been conscious when the later neck and chest injuries were inflicted since there were defensive injuries on her hands. This, however, only proves that the victim was conscious when the defensive injuries were inflicted. My reading of the record discloses nothing that would prevent a jury from finding that the defensive injuries occurred prior to the attempted strangulation, while the neck and chest wounds were inflicted afterward. In other words, there is nothing in the evidence that would prevent the jurors from concluding that the defensive injuries to the victim’s hands were inflicted first, followed by strangulation that rendered her unconscious and, after that, by the fatal wounds to the neck and chest.6
*97Second, as the state concedes, there is no evidence of a motive on the part of the defendant to kill his wife. Although the state need not prove motive, “the ‘ “presence or absence of motive ... is a circumstance to be weighed with other evidence for the jury to consider.” ’ (Emphasis added.) State v. Ruffin, 206 Conn. 678, 681, 539 A.2d 144 (1988); State v. Annunziato, 169 Conn. 517, 530, 363 A.2d 1011 (1975).” State v. Pinnock, 220 Conn. 765, 790, 601 A.2d 521 (1992). In Pinnock, this court held that where there is no evidence of a motive to commit an intentional crime, the defendant is entitled to a jury instruction that lack of motive may tend to raise a reasonable doubt. Id., 791-92. The majority claims that lack of motive is not particularly relevant to the defendant’s state of mind because the jury could find both a lack of motive and an intent to kill. Common sense, however, compels the conclusion that although the lack of a motive does not preclude a finding of intent to kill, the jury could reasonably infer from lack of a motive that the defendant did not intend to kill the victim but rather acted with a less culpable mind—that is, recklessly or with an intent to injure.
Third, there was evidence that the defendant and the victim argued the night of the crime over the planning of the defendant’s birthday party, and that the defendant was under extreme pressure to complete house renovations before the party. The majority concludes that these facts are not relevant “viewed in the context of the circumstances of the victim’s death.” The majority, again, seems to be relying on its assumption that the victim was conscious at the time the fatal wounds were inflicted to conclude that evidence of how the incident got started is irrelevant to the issue of whether the defendant intended to kill his wife. Similarly, with regard to the fourth area of evidence—the cover-up—the majority dismisses this evidence as irrelevant because it assumes that the victim was conscious *98when the fatal injuries were inflicted. As pointed out above, there was nothing in the evidence to preclude the jury from accepting the scenario that the victim received the defensive wounds prior to the strangulation.
Surely, these four areas provide evidence upon which the jury could have reasonably concluded that, when the incident leading to death started, the defendant did not necessarily intend to kill his wife. The jury in this case should have been given the option of deciding whether the victim was conscious when the fatal injuries were inflicted, and whether the defendant acted with the intent to kill or with a less culpable state of mind. No one can know for certain what happened, and while expert testimony is helpful, the jury may disregard it entirely if it chooses. See Mather v. Griffin Hospital, 207 Conn. 125, 145, 540 A.2d 666 (1988) (“[t]he jury is under no obligation to credit the evidence proffered by any witnesses, including experts . . . even if that evidence is uncontroverted”); Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983) (“a trier is not required to believe testimony merely because it is not directly contradicted . . . nor is the trier bound by the opinions of experts”). Deciding issues of intent as a matter of law in such cases invades the province of the jury.
What is particularly troubling to me is that, if the jury had been instructed on lesser homicides at the request of the state or the defendant and had found the defendant guilty of manslaughter, I am positive that the majority would have upheld the conviction. It is inconceivable that this court would have ordered the trial court to render a judgment of not guilty7 if this defendant had been convicted of manslaughter, since *99there is sufficient evidence to support an intentional homicide. These two offenses are distinguishable merely by a less culpable state of mind. Therefore, the evidence is “sufficient” to justify a conviction of manslaughter and the defendant should have received the instruction he requested.
Judge Cardozo, writing for a unanimous New York Court of Appeals, summed up the issue of intent when reversing a murder conviction for failure to instruct the jury on a lesser included offense as follows: “Whenever intent becomes material, its quality and persistence— the deranging influence of fear or sudden impulse or feebleness of mind or will—is [a] matter for the jury if such emotions or disabilities can conceivably have affected the thought or purpose of the actor.” People v. Moran, 246 N.Y. 100, 103, 158 N.E. 35 (1927). I believe that, where intent is at issue, any evidence suggesting a less culpable state of mind is sufficient to satisfy the third prong of State v. Whistnant, supra, 588, and justify instructions on lesser included offenses.
In sum, I would hold that the trial court erred in refusing to instruct the jury on the lesser included offenses. I would therefore reverse the conviction on this ground and order a new trial.8
See footnote 10 of the majority opinion.
See footnote 10 of the majority opinion.
The majority assumes that the first prong has been satisfied, and I agree. See footnote 12 of the majority opinion. The second prong has also been satisfied. See footnote 11 of the majority opinion. The majority does not reach the fourth prong, which requires that “the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). The differentiating element between murder and manslaughter is the state of mind of the defendant-intent to kill versus recklessness or intent to injure. As I indicate in my analysis of the third prong, infra, there is ample evidence in this case that the defendant may have acted recklessly or with intent to injure without the intent to kill required for murder. Therefore, this prong need not be considered separately.
On page 72 of its opinion, the majority states: “The defendant’s theory . . . fails because of the complete lack of evidence that the victim *96was strangled into unconsciousness before she was killed. . . . [T]he evidence in the record compelled the jury, if it found the defendant was the perpetrator, to find that he had intended to kill his wife.”
The defense pathologist testified that strangulation could cause unconsciousness in ten to fifteen seconds, and that the victim may well have been strangled for a longer period of time. There is certainly nothing in the record to preclude the jury from concluding that the strangulation, which was sufficient to cause petechial hemorrhages, rendered the victim unconscious. Indeed, the defense pathologist testified that it may take one minute or more for strangulation to cause such hemorrhages.
For example, the jury could have found that the defendant and his wife got into an argument and that the defendant recklessly assaulted his wife with a knife. The wife sustained some defensive wounds to her hands and then knocked the knife away from the defendant. Angered at this, the defendant hit his wife and then choked her until she lost consciousness. Though he did not intend to kill his wife, the defendant mistook her unconscious state for death and attempted to cover up his crime. To do this, he covered up the strangulation marks on her neck by cutting her with a sharp instrument and stabbed her with a homemade spear to make it look like a maniac burglar had committed the crime. These injuries to the neck and chest actually caused the wife’s death. My point is not that this is the more likely scenario, but that it is a possible scenario.
When “a defendant is convicted of a lesser offense than that charged, that conviction is an implicit acquittal on the greater offense.” State v. Rodriguez, 180 Conn. 382, 398-99, 429 A.2d 919 (1980).
I agree with parts II and III of the majority opinion and would not reach the issues in parts IV, V and VI.