STATE v. RAY, 228 Conn. 147 (1993)

635 A.2d 777

(14741)Supreme Court of Connecticut

PETERS, C.J., BORDEN, BERDON, NORCOTT and KATZ, Js.

Charged with, inter alia, the crime of manslaughter in the first degree, the defendant, who was convicted of, inter alia, the lesser included offense of manslaughter in the second degree, appealed to the Appellate Court challenging the trial court’s refusal to instruct the jury on the lesser included offense of criminally negligent homicide. The Appellate Court affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court. Held that the evidence concerning the defendant’s state of mind at the time he stabbed the victim during the course of an altercation involving the defendant, the victim and two other persons in a narrow, dark hallway was sufficiently in dispute to entitle him to an instruction on the lesser included offense

Page 148

of criminally negligent homicide; accordingly, the matter was remanded to the Appellate Court with direction that it be remanded for a new trial. Requirements for lesser included offense instruction under State v. Whistnant (179 Conn. 576), reviewed.

Argued October 29, 1993

Decision released December 21, 1993

Substitute information charging the defendant with two counts each of the crimes of manslaughter in the first degree and assault in the first degree, and with one count each of the crimes of tampering with a witness and threatening, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Reilly, J.; verdict and judgment of guilty of one count each of the lesser included offenses of manslaughter in the second degree and assault in the second degree, from which the defendant appealed to the Appellate Court, Daly, Lavery and Heiman, Js., which affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court. Reversed; new trial.

Timothy H. Everett, with whom were Thomas Nolan, certified legal intern, and, on the brief, Christopher Kriesen, certified legal intern, for the appellant (defendant).

Timothy J. Sugrue, assistant state’s attorney, with whom on the brief were Michael Dearington, state’s attorney, and Cecelia B. Wiederhold, assistant state’s attorney, for the appellee (state).

BERDON, J.

The defendant, McKinley Ray, was charged in separate counts with manslaughter in the first degree in violation of General Statutes 53a-55(a)(1) and (3).[1] After a jury trial, the defendant was convicted

Page 149

of the lesser included offense of manslaughter in the second degree in violation of General Statutes 53a-56(a).[2]
The sole issue in this appeal is whether the trial court improperly refused the defendant’s request to instruct the jury on the lesser included offense of criminally negligent homicide, pursuant to General Statutes 53a-58.[3] In State v. Ray, 30 Conn. App. 95, 619 A.2d 469 (1993), the Appellate Court upheld the trial court’s refusal to give the requested instruction. The defendant

Page 150

then petitioned this court and we granted certification.[4]
We conclude that the defendant’s request should have been granted and therefore reverse the judgment of the Appellate Court.

The jury reasonably could have found the following facts. At approximately 7 p.m. on September 20, 1990, the defendant and Arthur Aldrich were sitting and talking on the front porch of their residence at 131 Portsea Street in New Haven. The defendant lived in the basement apartment at that address and Aldrich lived on the first floor. After they had been talking for half an hour, Sherie Walton, who lived on the second floor, appeared and began arguing with Aldrich. Jonathan Morris also appeared and began arguing with the defendant. Apparently, Walton’s father had arrived home inebriated, and the defendant and Aldrich had laughed at him and another man as they stumbled up the stairs. Their laughter had angered Walton and Morris. In addition, Walton had accused Aldrich of stealing and wearing a pair of her pants.

Walton’s brother, Amar (A.J.), approached the group and then joined in the argument. At some point, Morris stepped away from the argument and then returned with a brick, rock, or piece of concrete. He struck the defendant under his right eye with the object, causing the defendant to bleed. The defendant told A.J. that he did not want any trouble. Aldrich helped the defendant, who was woozy and staggering, through the front door of the building and down a dark, narrow hallway to the first floor kitchen.

A.J. and Morris, neither of whom lived in the building, forced their way through the front door and into

Page 151

the hallway. The defendant and Aldrich went back into the hallway, where fighting broke out among the four men. At some point, the defendant pulled out a pocket knife with a five inch blade that he used to open boxes at work. He stabbed Morris and A.J., who then ran from the house and collapsed outside. Morris, who was stabbed four times,[5] died as a result of a wound that penetrated three and one-half inches into his chest and heart. A.J. was stabbed several times but survived.

The defendant, who testified at trial, admitted to stabbing both victims but claimed that he had been frightened and had acted in self-defense. He stated that Morris had been swinging a brick at him in the hallway, causing glancing blows to the defendant’s head. Further, he testified that although he knew that he had stabbed Morris, Morris had continued fighting and the defendant did not know where or how many times he had stabbed Morris or whether Morris had been injured. Similarly, while the defendant knew that he had stabbed A.J., A.J. had continued fighting and the defendant did not know where or how many times he had stabbed him. Edward T. McDonough, the medical examiner who performed the autopsy on Morris, testified that Morris was stabbed three times in the right arm or shoulder and once in the chest, and that only the chest wound was life-threatening. McDonough stated that Morris’ wounds were consistent with the defendant flailing at him with the knife while Morris was moving around.[6]

Page 152

Before the defendant testified, the trial court requested counsel to file written requests to charge. The defendant did so, specifically requesting the trial court to charge the jury with respect to criminally negligent homicide as a lesser included offense of manslaughter. The trial court refused to give this instruction and the defendant excepted.

The jury found the defendant guilty of the lesser included offenses of manslaughter in the second degree in violation of General Statutes 53a-56(a), and assault in the second degree in violation of General Statutes 53a-60(a)(2). The trial court sentenced the defendant to a total effective sentence of nine years imprisonment.

In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we held that a defendant is entitled to an instruction on a lesser included offense if he can demonstrate compliance with each of four conditions: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed

Page 153

the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) 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.” The state conceded before the Appellate Court that the defendant had satisfied the first two prongs of Whistnant.[7] The

Page 154

Appellate Court held, however, that the defendant’s testimony did not place the evidence “sufficiently in dispute to support a finding of criminally negligent conduct” because “[r]ational jurors using common sense could not reasonably have found that the defendant did not perceive a substantial risk of death when he stabbed Morris with sufficient force to penetrate his chest and heart.” State v. Ray, supra, 103. We disagree.

In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991); State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989). “[T]he jury’s role as fact-finder is so central to our jurisprudence that, in dose cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 68, 621 A.2d 728 (1993). Under Whistnant, the evidence is “sufficiently in dispute where it is of such factual quality that would permit the [jury] reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser

Page 155

included offense when the evidence requires either conviction on the greater offense or acquittal. . . . Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on the evidence . . . from which inferences can fairly be drawn. . . . They should not [however] be encouraged to engage in speculation.” (Citations omitted; internal quotation marks omitted.) State v. Montanez, supra, 23. On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if “we cannot as a matter of law exclude [the] possibility” that the defendant is guilty only of the lesser offense. State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982). “If, based on the admissible evidence presented at trial, the jury could reasonably have found that the defendant acted . . . with criminal negligence in causing the victim’s death, then the defendant was entitled to the charge requested.” Id., 29.

In State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980), we stated: “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 dividing line between manslaughter in the second degree, of which the defendant was convicted, and criminally negligent homicide is especially thin. To be guilty of the former, the defendant must be aware of and consciously disregard a substantial and unjustifiable risk that death will occur. General Statutes 53a-56(a) and 53a-3(13). To be guilty of criminally negligent homicide, however, the defendant must fail to perceive a substantial and unjustifiable risk that death will occur. General Statutes 53a-58 and 53a-3(14). Therefore, the issue that distinguishes the two criminal offenses is whether the defendant subjectively realized and chose

Page 156

to ignore a substantial risk of death; State v. Salz, 226 Conn. 20, 33, 627 A.2d 862 (1993); or merely failed to realize that he was creating a substantial risk of death.

The defendant claims that a jury reasonably could have found that he had failed to perceive the risk that he might cause Morris’ death. He bases this claim on the evidence that: (1)the defendant was woozy and frightened; (2) it was dark in the hallway where the stabbing occurred; (3) Morris’ wounds were consistent with the defendant flailing defensively at him with the knife while Morris moved around; (4) the defendant did not know whether he was injuring Morris or not; and (5) of the four times Morris was stabbed, three times he was stabbed in the right arm or shoulder, resulting in injuries that were not life-threatening. We agree with the defendant.

In State v. Edwards, 214 Conn. 57, 60, 570 A.2d 193
(1990), the victim was fatally shot when she attempted to take a gun away from the defendant, her brother, who was attempting to commit suicide. The defendant claimed that the trial court should have instructed the jury concerning criminally negligent homicide. We agreed, concluding that “[a] jury could infer that the defendant’s preoccupation with ending his own life caused him to fail to perceive the risk to others created by his possession of a loaded gun and his volitional struggle to retain it.” Id., 69. Similarly, in this case, a jury could infer that the defendant’s preoccupation with protecting himself caused him to fail to perceive the risk of death created by his actions. The state argues that Edwards is distinguishable because, unlike committing suicide, using a knife in self-defense necessarily contemplates creating a risk to a third party. Even if it is assumed that the defendant necessarily realized that he was creating a risk of some kind, however, a jury could nevertheless find that his preoccupation

Page 157

with protecting himself prevented the defendant from perceiving that he was creating a risk of death to Morris. Therefore, the state’s argument fails.[8]

In agreeing with the state and affirming the trial court, the Appellate Court failed to view the evidence in the light most favorable to the defendant. The court mentioned, but gave no weight to, the defendant’s testimony that he was woozy, frightened and unsure of whether he was injuring Morris. Further, the Appellate Court stated: “The testimony at trial demonstrated that while the hallway was dark, visibility was not impaired. The defendant stated that he could not see what Morris and A.J. were doing. Yet, he was able to distinguish the victims from Aldrich. He was also able to locate vulnerable areas of the victims’ bodies. The forensic testimony dispels the defendant’s claim that he blindly flailed at Morris. Morris had six stab wounds, one of which was the result of a plunge that penetrated the chest and pierced through the heart. Another wound went through Morris’ arm and punctured his chest. Rational jurors using common sense could not reasonably have found that the defendant did not perceive a substantial risk of death when he stabbed Morris

Page 158

with sufficient force to penetrate his chest and heart.” State v. Ray, supra, 102-103. This analysis ignores the defendant’s testimony that he was using his knife defensively and did not know where he was stabbing Morris. It also misconstrues the testimony of the medical examiner, McDonough, that the injuries to Morris were consistent with “many different scenarios,” including the defendant flailing at Morris with the knife while Morris was moving. From this evidence, the jury reasonably could have concluded that the fatal wound was caused, not as a result of the defendant recklessly lunging at Morris with the knife, but rather as a result of the defendant negligently stabbing Morris in the chest while blindly trying to fend him off. Viewing the evidence in the light most favorable to the defendant, we conclude that the defendant’s state of mind was sufficiently in dispute so as to entitle him to a lesser included offense charge regarding criminally negligent homicide.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial on the charge of manslaughter in the second degree.

In this opinion the other justices concurred.