State v. Anderson

Lavery, J.,

dissenting. Because I cannot agree with the majority’s conclusion that the trial court’s jury instruction, misstating the law on self-defense in two critical respects, was harmless beyond a reasonable doubt, I respectfully dissent.

I

It is the law in Connecticut that, “ ‘[i]f the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. [State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979)]. “[A] defendant is ‘entitled to have instructions presented relating to any theory of defense for which there *850is any foundation in the evidence, no matter how weak or incredible . . . United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).” United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976). “A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) . . . .” State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982).’ State v. Fuller, [199 Conn. 273, 278, 506 A.2d 556 (1986)]. When the legislature has created a legally recognized defense, the defendant is entitled to a proper jury instruction on the elements of that defense so that the jury may ascertain whether the state has sustained its burden of disproving the defense beyond a reasonable doubt. Id.; State v. Miller, supra, 660-61.” State v. Havican, 213 Conn. 593, 597-98, 569 A.2d 1089 (1990).

In State v. Miller, supra, 660-61, our Supreme Court stated that this fundamental constitutional right to establish a defense includes properjury instructions on the elements of self-defense “so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.”

In this case the trial court twice incorrectly instructed the jury that it was to evaluate reasonable force under a strictly objective standard, that reasonable force is “that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more.” The majority concedes that this is an incorrect statement of law; State v. Hall, 213 Conn. 579, 586, 569 A.2d 534 (1990); but concludes that the incorrect instruction on reasonable force was harmless beyond a reasonable doubt in *851the light of this court’s decision in State v. Williams, 25 Conn. App. 456, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991).

In Williams, an instruction identical to the one at issue here was found to be improper. Id., 464. In that case, the defendant was convicted of manslaughter committed under the influence of extreme emotional disturbance. Id., 457. In addition to self-defense, the jury had to decide the effect of intoxication on the defendant’s intent, as well as whether he was influenced by extreme emotional disturbance. Id., 458-60. This court found that the “average person of ordinary intelligence” instruction was clearly improper, but that within the context of that case the improper instruction was harmless error. Id., 464-66. In the present case, where self-defense was the only contested issue, the error is harmful.

The law is clear that a jury is not to use a purely objective standard in evaluating self-defense. Indeed, the statute focuses on the person claiming self-defense. State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). “The starting point of the jury’s inquiry into whether ‘reasonable force’ was used by a defendant is whether the defendant believed that deadly force was necessary to repel the attack. State v. DeJesus, [194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984)].” (Emphasis in original.) State v. Williams, supra, 464.

The defendant’s beliefs were central to his claim that he acted in self-defense. Both he and his fiancee testified that the victim was known to be arroed and had a reputation for violence. The victim was a convicted felon, drug user, drinker, and gambler. Of paramount importance was that the victim had been armed with a gun and threatened the defendant in the past, and that the defendant believed him to be a bully and was afraid of him.

*852Additional evidence relevant to the defendant’s reasonable beliefs under the circumstances was that he had been robbed at gunpoint at Stowe Village, and another time his home was broken into and he personally encountered the intruder. He testified to his belief that the Stowe Village housing project, where the incident occurred, was a high crime area, especially at night, and to his belief that there were fewer police officers there at night, which is when the incident occurred. These factors were all highly relevant to how much force he believed to be necessary under the circumstances. This accumulated evidence was relevant not to what the average person would have believed, but to what the defendant reasonably believed. He was entitled to a jury that was properly instructed on how to evaluate his reasonable beliefs.

The “Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. [General Statutes § 53a-19 (a)] requires, however, that the defendant’s belief ultimately must be found to be reasonable.” State v. DeJesus, supra; State v. Williams, supra, 464. Only after the jury has focused on the situation from the defendant’s perspective, may it decide whether his belief was reasonable. “ ‘This statutory emphasis on the defendant . . . demonstrates the function of the jury in their evaluation of the self-defense claim.’ State v. Corchado, supra.” State v. Williams, supra. The jury must evaluate the danger a defendant claims to have faced, and the reasonableness of his response to that danger.

Another difference between this case and Williams is that the trial court’s instruction in Williams was incorrect only as to the reasonable force portion of the self-defense instruction. State v. Williams, supra, *853462-63. In this case, the self-defense instruction incorrectly defined both reasonable force and the defendant’s duty to retreat.

II

The trial court instructed the jury that before using deadly physical force the defendant had a duty to retreat if he could have done so with safety. Section § 53a-19 (b) (1), however, provides that a person need only retreat if he can do so “with complete safety.” In reaching its conclusion that the incorrect instruction on the duty to retreat was harmless beyond a reasonable doubt, the majority decided that the word safety necessarily encompassed “complete safety.” Such a conclusion is not in accord with our well established rules of statutory construction.

“When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretive guidance. . . . Similarly, we presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, that it did not intend to enact meaningless provisions . . . .” (Citations omitted; internal quotation marks omitted.) Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 27 Conn. App. 412, 420, 606 A.2d 725, cert. granted on other grounds, 222 Conn. 911, 608 A.2d 694 (1992). “Our conclusion is also supported by the principle that ‘ “[n]o word in a statute should be treated as superfluous, void or insignificant

Complete safety is a higher standard than mere safety, and the language of the statute calls for that standard to be applied. If the majority’s conclusion is correct, however, the word complete serves no meaningful purpose in the statute and is nothing more than mere surplusage.

*854The defendant testified at trial that he did not have time to retreat, and that he believed had he done so he would have been shot in the back. The defendant was entitled to a correct charge on his duty to retreat’ with complete safety, as it was a pivotal question in the defendant’s self-defense claim. A commonsense reading of the statutory language indicates that the legislature intended that the state must meet the higher burden of showing that the defendant could have retreated with complete safety, not with mere safety. I would find the omission of the word complete to be harmful.

Self-defense was the only defense presented by the defendant in this case. Because the charge on self-defense was patently incorrect in two critical respects, I cannot agree that the errors were harmless beyond a reasonable doubt. I would reverse and remand for a new trial.

Accordingly, I respectfully dissent.