State v. Huckabee

SCHALLER, J.,

dissenting. The majority reverses the defendant’s manslaughter and assault convictions and remands this case for a new trial on the basis of its conclusions that the trial court improperly failed to instruct the jury on lesser included offenses and the claimed limited use of certain evidence. Because I conclude that the trial court properly refused to instruct on assault in the second and third degrees as lesser included offenses and did not abuse its discretion by declining to give a limiting instruction on the evidence, I respectfully dissent.

I

My disagreement on the first issue concerns the application of the fourth condition of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), to this case. I conclude that the evidence concerning serious physical injury was not sufficiently in dispute to warrant instructions on the charges of assault in the second and third degrees and, therefore, the trial court properly refused to instruct on those charges. Only the victim of the alleged assault, Raymond Harris, and the state’s witness, Gerard Bums, a surgeon, testified concerning the injury. Harris testified that he had two scars from the entry and exit wounds caused by the bullet, and that he suffered tingling and pain in his leg and ankle as a result of the shooting. Bums also testified that the bullet that stmck Harris produced entry and exit wounds, both of which left permanent scars.

On numerous occasions, this court has recognized that bullet wounds cause serious physical injury. State *577v. Hooks, 30 Conn. App. 232, 240, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993) (victim shot in finger); State v. Dickerson, 28 Conn. App. 290, 292, 612 A.2d 769 (1992) (victim shot in left foot); State v. Estrada, 26 Conn. App. 641, 655, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992) (victim shot once in each leg); State v. Graham, 21 Conn. App. 668, 716, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990) (victim shot in face and shoulder); State v. Woodard, 11 Conn. App. 499, 501, 528 A.2d 404, cert. denied, 205 Conn. 802, 531 A.2d 940 (1987) (victim shot in upper left arm and shoulder); State v. Dickson, 10 Conn. App. 462, 465, 523 A.2d 935 (1987) (victim shot twice in left thigh).

The defendant attempted to challenge this evidence in the course of cross-examination. The defendant elicited testimony from Harris that he has not allowed the injury to impede his daily activities. Bums testified on cross-examination that he could not comment on the present state of the injury and could not remember what the wound looked like at the time he treated it one and one-half years earlier. On the basis of these minimal concessions, the majority concludes that the defendant “clearly challenged the physical nature of the bullet wound,” and created a sufficient dispute about the seriousness of it to require the trial court to give the lesser included offense instructions.

The majority further states that “we cannot exclude the possibility that the defendant is guilty of one of the lesser offenses.” This court has concluded otherwise on two separate occasions in cases involving assault in the first degree convictions, and I would so conclude in this case. In State v. Smith, 35 Conn. App. 51, 62, 644 A.2d 923 (1994), the defendant claimed that the evidence of the permanency of a scar was sufficiently in dispute “because the victim did not seem overly bothered by the scar and did not immediately seek *578corrective surgery.”1 The victim’s plastic surgeon had testified that the victim wanted to wait and see if the scar would improve by itself. Id. We rejected the defendant’s claim, holding: “The victim’s attitude about the scar and the need for corrective surgery are completely irrelevant to the question of permanency. We are not persuaded by the defendant’s claim that the proof of permanency of the victim’s scar was sufficiently in dispute to require an instruction on the claimed lesser included offense.” Id., 62-63.

Likewise, in State v. Graham, supra, 21 Conn. App. 716, we rejected the defendant’s claim that the trial court improperly denied him the opportunity to voir dire an ophthalmologist who testified as an expert witness as to the injuries sustained by the victim. The defendant claimed that with the ophthalmologist’s testimony concerning whether he had specific medical experience with the injury involved, whether he had been suspended from practice and whether he had any interest in the case, the jury would not have concluded that the injury was serious enough to warrant a conviction for first degree assault. We concluded: “There was evidence before the jury that [the victim] was shot in the face and shoulder and can no longer see out of his left eye. In light of the evidence presented, we cannot say, as a matter of law, that the questions proposed by the defendant on appeal could have led the jury to believe that [the victim’s] injuries were not serious.” Id., 717.

“ ‘Serious physical injury’ means physical injury which . . . causes serious disfigurement, serious *579impairment of health or serious loss or impairment of the function of any bodily organ . . . .” General Statutes § 53a-3 (4). Although I recognize “the difficulty of drawing a precise line as to where ‘physical injury’ leaves off and ‘serious physical injury’ begins”; State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987); I cannot agree with the majority that a jury could consistently find the defendant not guilty of assault in the first degree but guilty of assault in the second or third degree in light of the evidence that the victim was shot and has two permanent scars, one from an entry wound and one from an exit wound.

“Evidence is sufficiently in dispute where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a juiy from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal.2 State v. Manley, *580195 Conn. 567, 579, 489 A.2d 1024 (1985), quoting State v. Whistnant, supra [179 Conn. 588]. Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence . . . from which inferences can fairly be drawn. State v. Manley, supra [579], quoting Schultz v. Pennsylvania R. Co., 350 U.S. 523, 526, 76 S. Ct. 608, 100 L. Ed. 668 (1956). They should not be encouraged to engage in speculation. State v. Manley, supra, 580.” (Internal quotation marks omitted.) State v. Montanez, 219 Conn. 16, 23, 592 A.2d 149 (1991).3

I conclude that, given the uncontested testimony concerning the nature and effect of the victim’s injury sustained as a result of his having been shot by the defendant, only sheer speculation could have resulted in the jury’s finding only physical injury.

II

The defendant’s second claim is based on an alleged abuse of discretion by the trial court in refusing to give a limiting instruction on what the defendant asserts was misconduct evidence. The challenged evidence consists of the following: (1) the defendant’s street name was “Snake,” (2) the defendant sold drugs for Frank Carr, and (3) the defendant had been committed to and was on escape status from Long Lane School at the time of the incident.

With regard to the first item, the state concedes that it introduced evidence of the defendant’s street name during direct examination of Joseph Greene, a New *581Haven police detective. Greene testified that he had learned from an anonymous source that a person known as Snake was responsible for the shooting. He checked police department records and found that the defendant used that name and another alias. The purpose of the evidence was to establish how Greene was led to recognize and stop the defendant at the Chapel Square Mall in New Haven. The evidence was not offered as evidence of misconduct for the purpose of impeaching the credibility of the defendant or for showing a criminal propensity. I conclude, therefore, that Greene’s testimony on this matter does not constitute misconduct evidence. State v. Gant, 231 Conn. 43, 58, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995) (“threatening complaint merely helped explain to the jury the events that led the police to the scene of the defendant’s arrest”).

The second item, drug sale activity, was contained in the defendant’s statement. When his statement was admitted into evidence, the court ordered that information redacted. During direct examination of the defendant’s aunt, the defendant’s attorney raised the matter of the defendant’s relationship with Carr, including the fact that the defendant worked for Carr. Subsequently, the defendant’s aunt testified on cross-examination by the state that the defendant was selling drugs and collecting money for Carr.4 The state, therefore, was merely pursuing a matter initially raised by the defense in its direct examination of the defense witness.

The third item, concerning the defendant’s status with regard to Long Lane, was also initially introduced by the defendant during cross-examination of Greene. The defendant introduced evidence of one escape by the defendant from Long Lane in order to demonstrate *582that the defendant was arrested for escaping, not for murder. On redirect, the state then elicited additional testimony from Greene as to other escapes. The defendant failed to request the trial court to admit for only a limited purpose the evidence that he caused to be introduced, concerning both the defendant’s relationship with Carr and his escapes from Long Lane.

Action induced by a party ordinarily cannot be grounds for error. State v. Walton, 227 Conn. 32, 67, 630 A.2d 990 (1993); State v. Edwards, 39 Conn. App. 242, 251, 665 A.2d 611, cert. denied, 235 Conn. 924, 666 A.2d 1186 (1995). The defendant cannot claim now that the trial court improperly abused its discretion by failing to give a limiting instruction after causing the evidence to be introduced. “A defendant can present a claim of relief from induced error ‘only upon a showing that the error violated his constitutional rights.’ ” State v. Edwards, supra, 251-52, quoting State v. Harrison, 34 Conn. App. 473, 488, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994); see State v. Youdin, 38 Conn. App. 85, 98, 659 A.2d 728, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995).

The defendant cannot make this showing because: “ ‘Robing garden variety claims of improper jury instructions concerning evidentiary matters in the majestic garb of constitutional claims does not make such claims constitutional in nature. See State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988).’ State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, . 226 Conn. 905, 625 A.2d 1378 (1993).” State v. Webb, 37 Conn. App. 722, 730, 657 A.2d 711, cert. denied, 234 Conn. 915, 660 A.2d 357 (1995). “[T]he failure of the . trial court to give a limiting instruction concerning the use of evidence of prior misconduct is not a matter of constitutional magnitude.” State v. Ulen, supra, 37.

The effect of the majority opinion would be that any evidence that suggests prior misconduct of a defendant, *583regardless of the purpose for which it was offered, and even when that evidence was offered initially by the defendant, requires a limiting instruction by the trial court informing the jury that the evidence is to be considered “solely for the purpose of evaluating the defendant’s veracity, and not his propensity to commit the crime charged.”

Our law does not dictate that every item of prejudicial evidence is misconduct evidence subject to a limiting instruction. That is nevertheless essentially what the defendant seeks. I agree that misconduct evidence admitted to show, for example, an element of the crime, identity, malice, motive, or a system of criminal activity requires a limiting instruction. State v. Ouellette, 190 Conn. 84, 94-95, 459 A.2d 1005 (1983). In this case, however, the evidence of the defendant’s street name was offered only to show how Greene was led to arrest the defendant. It is not, therefore, subject to a limiting instruction. See State v. Gant, supra, 231 Conn. 58-59.

With regard to the other challenged evidence, the defendant initially offered the evidence without indicating any limited purpose and, therefore, any possible error was induced by the defendant. Moreover, the defendant did not request that the evidence be introduced for a limited purpose until the end of his trial. A request for a limiting instruction after introducing the evidence is a belated attempt to raise a nonconstitu-tional issue, not properly preserved in the first instance.5

Accordingly, I would affirm the judgment of conviction.

For the foregoing reasons, I respectfully dissent.

The defendant in State v. Smith, supra, 35 Conn. App. 52, was convicted pursuant to General Statutes § 53a-59 (a), which provides in pertinent part: “A person is guilty of assault in the first degree when ... (2) with intent to disfigure another person seriously and permanently ... he causes such injury to such person or to a third person (Emphasis added.) The defendant requested the trial court to instruct the jury on the charge of assault in the third degree pursuant to General Statutes § 53a-61 (a) (2), which does not require that the serious injury be permanent. Id., 59.

1 find no merit, in the majority’s argument that because the parties “could not agree that the wound constituted serious physical injury” that lesser included offense instructions were warranted. Moreover, I note that the maj ority relies on precedent dealing with insufficiency of the evidence claims to posit that, whether this bullet wound was serious physical injury is a question of fact for the jury. Those cases, and that conclusion, are not inconsistent with my position. Insufficiency of the evidence claims concern whether the slate has proven the elements of a crime beyond a reasonable doubt. This is not, however, an insufficiency of the evidence claim. The Whistnant test concerns a defendant’s claim that he is entitled to an instruction on a lesser included offense “if upon the evidence he can properly be found guilty of it and the allegations of the information include the elements which constitute that lesser offense.” State v. Whistnant, supra, 179 Conn. 579. Our Supreme Court’s holding in Whistnant demonstrates that a defendant is not entitled to an instruction on all lesser included offenses. Id., 587 (holding that defendant not entitled to instruction on lesser included offense of larceny in fourth degree when charged with robbery in first degree under facts of case). No doubt, however, the state still had to prove every element of the crime charged in Whistnant beyond a reasonable doubt, and each element remained a question of fact for the jury. Likewise, in this case, the defendant is not entitled to instructions on second and third degree assault and the element of serious physical injury remains a question of fact for the jury that, the state must prove beyond a reasonable doubt.

See also State v. Torrence, 37 Conn. App. 482, 491, 657 A.2d 654 (1995) (evidence not sufficiently in dispute to warrant instruction on lesser included offense when defendant charged with robbery in first degree); State v. Ray, 30 Conn. App. 95, 102-103, 619 A.2d 469, rev’d on other grounds, 228 Conn. 147, 635 A.2d 777 (1993) (manslaughter in first degree); State v. Arline, 25 Conn. App. 653, 660, 596 A.2d 7 (1991), rev’d on other grounds, 223 Conn. 52, 612 A.2d 755 (1992) (first degree sexual assault).

The defendant objected to that testimony only as it concerned the time period involved.

The defendant also claims that the trial court improperly limited his cross-examination of Greene. I find no merit in the defendant’s claim. State v. James L., 26 Conn. App. 81, 83, 598 A.2d 663 (1991).