State v. Terwilliger ( 2014 )

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STATE OF CONNECTICUT v. DAVID B. TERWILLIGER
(SC 19013)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued February 20—officially released December 2, 2014
Jeffrey C. Kestenband, with whom was Marc D.
McKay, for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Patricia M. Froelich, state’s
attorney, and Mark Stabile and Matthew Crockett,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
EVELEIGH, J. The defendant, David B. Terwilliger,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of intentional manslaughter
in the first degree with a firearm pursuant to General
Statutes §§ 53a-55a and 53a-55.1 The defendant con-
tends on appeal that (1) his conviction violated his
constitutionally protected right against double jeopardy
because a reasonable possibility existed that the defen-
dant was acquitted of the offense at an earlier trial, and
(2) in instructing the jury on the defendant’s chosen
defense of defense of premises, the trial court improp-
erly construed the term ‘‘crime of violence’’ too nar-
rowly, and refused to instruct the jury on the elements
of the various offenses that fall within the definition of
‘‘crime of violence.’’ We disagree with the defendant
and, accordingly, we affirm the judgment of the trial
court.
In 2005, the defendant was tried for the murder of
Donald Kennedy (Donald). The jury acquitted the defen-
dant of murder, but convicted him of the lesser included
offense of manslaughter in the first degree with a fire-
arm. See State v. Terwilliger, 294 Conn. 399, 403–406,
984 A.2d 721 (2009). The jury empaneled in the 2005
trial did not specify whether it found the defendant
guilty of intentional manslaughter in the first degree
with a firearm or reckless manslaughter in the first
degree with a firearm. ‘‘The defendant appealed to the
Appellate Court, which reversed the judgment of con-
viction and ordered a new trial after concluding that
it was reasonably possible that the trial court’s jury
instruction on defense of premises misled the jury.’’ Id.,
406. The state petitioned for certification, and this court
affirmed the judgment of the Appellate Court. Id., 400–
401. The defendant was retried in 2011. The state
charged the defendant with two counts of manslaughter
in the first degree with a firearm. Specifically, the state
charged the defendant with one count of intentional
manslaughter in the first degree with a firearm pursuant
to §§ 53a-55a and 53a-55 (a) (1), and with one count of
reckless manslaughter in the first degree with a firearm
pursuant to §§ 53a-55a and 53a-55 (a) (3). The jury con-
victed the defendant of intentional manslaughter in the
first degree with a firearm. This appeal followed.2
The jury reasonably could have found the following
facts. The defendant is married to Beverly Daniels. Dan-
iels is the mother of Christine Kennedy (Christine).
Christine married Donald, and together they had three
children, Shauna Kennedy (Shauna), Kathryn Kennedy
(Kathryn), and James Kennedy (James). In 2003, Donald
and Christine were not living together. Kathryn and her
four year old daughter were living with the defendant
and Daniels. Donald had also previously lived in the
basement of the defendant’s home with the defendant’s
permission, but since that time he had moved out and
rented an apartment in Webster, Massachusetts.
At some point during the day on January 5, 2003,
James had an altercation with another young man from
the neighborhood, Steven Gardner, which resulted in
Gardner striking James. That evening, the defendant
was inside of his home with Daniels, Kathryn, and Kath-
ryn’s daughter, when Donald unexpectedly drove to
the defendant’s house and parked in the defendant’s
driveway. Another neighborhood young man, Ben
Monahan, had just parked his car on the street with
the intention of visiting Kathryn and James. When he
walked up to the defendant’s driveway, Donald stated
to Monahan ‘‘I’m drunk and I’m pissed,’’ and that he
wanted to ‘‘beat the shit out of [the defendant]’’ because
of a recent incident between the defendant and James.
At one point, Donald asked Monahan if he wanted to
go fight some people who were standing near a car
across the street. Monahan demurred, and Donald then
saw Gardner, who was also hoping to visit Kathryn
that evening, walking toward the defendant’s residence.
According to Monahan, Donald ‘‘yell[ed] ‘[y]ou hit my
son’ [and] something along the lines of ‘I’m going to
kick your ass’ or ‘[n]o one hits my son.’ ’’ Donald then
grabbed Gardner, shoved him against a car at least once
and possibly struck Gardner at least once in the face.
Kathryn and Daniels both witnessed the confrontation
from inside the house. Kathryn yelled at Donald, asking
him to stop his behavior, while Daniels urged the defen-
dant to go outside and defuse the situation. The defen-
dant replied that he would ‘‘handle [the situation]
however the hell [he] want[ed].’’ Before leaving the
house, the defendant took from his desk a revolver that
he had previously loaded with hollow point bullets and
placed it into the pocket of his coat, where it was con-
cealed. The defendant went outside and confronted
Donald. Donald may have made a comment ‘‘like,
‘[c]ome on, let’s get this started.’ ’’ According to Kath-
ryn, the two men stared at each other. Then, the defen-
dant walked up to Donald and kicked him in the groin,
drew the revolver from his coat pocket, and fired it
once. The bullet struck Donald in the lower chest and
did not exit, causing him to fall to the ground. Daniels
immediately called 911 and requested that emergency
personnel arrive at the scene, while Kathryn took her
daughter and ran to a neighbor’s house. The defendant
walked over to the house of another neighbor, Frank
Langlois, and, after initially being resistant, handed the
jacket containing the revolver over to Langlois. Langlois
then went to check on Donald. Langlois observed that
Donald was in possession of a closed folding knife that
was attached to a chain connecting Donald’s wallet to
his pants, and Langlois detected a strong odor of alco-
hol. A subsequent autopsy revealed Donald’s blood
alcohol level was 0.15.
Prior to the defendant’s second trial in 2011, the
defendant moved to dismiss the prosecution, claiming
that the continued prosecution of him for the events
that occurred on January 5, 2003, constituted a violation
of his right against double jeopardy. The trial court
denied the motion, relying on State v. Boyd, 221 Conn.
685, 691, 607 A.2d 376, cert. denied, 506 U.S. 923, 113
S. Ct. 344, 121 L. Ed. 2d 259 (1992), and concluded
that, by failing to take steps to clarify the jury’s verdict
following the first trial while simultaneously seeking
reversal of his conviction, the defendant had waived
his right against double jeopardy. The defendant moved
for reconsideration of the denial of his motion to dis-
miss, and the trial court, again relying on this court’s
decision in Boyd, denied the motion. The defendant
subsequently renewed his motion following the trial.
In addition, at trial, the defendant specifically
requested a jury instruction on defense of premises
pursuant to General Statutes § 53a-20.3 As part of this
instruction, the defendant requested that the trial court
instruct the jury that the statutory term ‘‘crime of vio-
lence’’ included within its definition the following
crimes: murder, manslaughter in the first degree, man-
slaughter in the first degree with a firearm, manslaugh-
ter in the second degree, assault in the first degree,
assault in the second degree, assault of a victim sixty
years or older in the first degree, assault of a victim
sixty years or older in the second degree, unlawful
restraint in the first degree, burglary in the first degree,
and burglary in the second degree. The defendant also
requested that the jury be instructed regarding the ele-
ments of each of these crimes. The trial court refused
to give the defendant’s requested charge, instead
instructing the jury that the term ‘‘crime of violence’’
encapsulated the following offenses: ‘‘murder, man-
slaughter, rape, robbery, arson, burglary, assault with
the specific intent to cause great bodily harm or assault
in which a risk of great bodily harm was created.’’ The
trial court did not instruct the jury on the elements of
these crimes. This appeal followed.4
I
The defendant first claims that, because the state
cannot demonstrate that there is not a reasonable possi-
bility that the defendant was acquitted of intentional
manslaughter in the first degree with a firearm by the
jury following his trial in 2005, his 2011 conviction for
intentional manslaughter in the first degree with a fire-
arm pursuant to § 53a-55a should be vacated because
it violates his right against double jeopardy secured by
the fifth amendment to the United States constitution.
In response, the state makes the following claims: (1)
the defendant’s double jeopardy claim is unpreserved
because he failed to raise the issue at his first trial;
(2) pursuant to this court’s approach to its review of
unpreserved claimed constitutional violations; see State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989);
the defendant’s double jeopardy claim is unreviewable
because the defendant cannot show that a constitu-
tional violation ‘‘clearly exists’’; and (3) should this
court reach the merits of the defendant’s claim, the
defendant cannot establish that he was acquitted of
either intentional or reckless manslaughter in the first
degree with a firearm. We conclude that accepting the
defendant’s position would necessitate us to speculate
as to the jury’s determination in the first trial. We decline
to engage in a double jeopardy analysis on the basis of
speculation. Further, even if we were to engage in such
an analysis, under the particular circumstances of this
case, we hold that the defendant was not prejudiced.
Therefore, we affirm the conviction.
The following additional facts and procedural history
are relevant to this issue. During the first trial, the theory
of the state’s case against the defendant was that he
had acted with the intent to kill Donald. The prosecution
relied on the following evidence in an attempt to show
intent: (1) statements that the defendant made to Don-
ald shortly before he shot him, which indicated that
the defendant would shoot Donald if he did not leave;
(2) evidence indicating that the defendant initially hid
the gun from Donald by placing the gun in his coat
pocket, which the state claimed was for the purpose
of not alerting Donald to the gun’s presence until the
defendant decided to use it; (3) expert testimony that
established that the defendant fired the gun at a distance
of less than three inches from Donald’s chest; (4) testi-
mony that the defendant knew the gun was loaded with
hollow point bullets; (5) testimony suggesting that the
defendant was the initial aggressor by kicking Donald;
(6) evidence indicating that the defendant did not call
the police or take any other ameliorative action after
shooting Donald; and (7) a statement made by the defen-
dant to police indicating that, in the days leading up to
the shooting, he experienced a recurring dream in
which he shot a masked person who had been robbing
the defendant’s home.
Correspondingly, the defendant’s primary theory of
defense during the first trial was that he had been justi-
fied in using deadly force against Donald. To counter the
prosecution’s theory of the case, the defendant relied
primarily on evidence and testimony indicating that: (1)
Donald had a reputation for being a violent person;
(2) Donald was intoxicated; (3) Donald was carrying a
closed folding knife on his person, of which the defen-
dant was aware; and (4) during the confrontation, Don-
ald had knocked a telephone from the defendant’s hand
and made several threatening statements, the most seri-
ous of which was a threat to assault or possibly kill
Daniels. The defendant, however, also advanced a sec-
ond theory during the first trial, namely, that the defen-
dant had not acted with any kind of intent. This theory
was supported primarily by a statement made by the
defendant during his testimony, in which he stated that
Donald had ‘‘jump[ed]’’ at him during the confrontation,
as a result of which the defendant’s gun went off.
We now turn to the applicable standard of review
and governing legal principles. ‘‘The defendant’s double
jeopardy claim presents a question of law, over which
our review is plenary. . . . The fifth amendment to the
United States constitution provides in relevant part: No
person shall . . . be subject for the same offense to
be twice put in jeopardy of life or limb . . . . The dou-
ble jeopardy clause of the fifth amendment is made
applicable to the states through the due process clause
of the fourteenth amendment.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Burnell, 290
Conn. 634, 642, 966 A.2d 168 (2009). ‘‘We have recog-
nized that the [d]ouble [j]eopardy [c]lause consists of
several protections: It protects against a second prose-
cution for the same offense after acquittal. It protects
against a second prosecution for the same offense after
conviction. And it protects against multiple punish-
ments for the same offense.’’ (Internal quotation marks
omitted.) Id.
We now examine the merits of the defendant’s claim.5
The defendant claims that the present case involves the
joinder of a jeopardy barred offense with a permissible
charge. As a result, the defendant asserts, the state must
prove beyond a reasonable doubt that there was no
reasonable possibility that the defendant was preju-
diced by the joinder. In other words, the defendant
claims that the state must prove that it is not reasonably
possible that the jury in the 2005 trial acquitted the
defendant of intentional manslaughter in the first
degree with a firearm as defined in § 53a-55 (a) (1).
The defendant claims that the situation at issue in
the present case is similar to the one this court faced
in State v. Hedge, 297 Conn. 621, 1 A.3d 1051 (2010).
In Hedge, the defendant was charged with, inter alia,
possession of cocaine with intent to sell by a person
who is not drug-dependent in violation of General Stat-
utes § 21a-278 (b), possession of opium with intent to
sell by a person who is not drug-dependent in violation
of § 21a-278 (b), and possession of narcotics with intent
to sell within 1500 feet of a public housing project in
violation of General Statutes § 21a–278a (b). See id.,
662. The case proceeded to trial, and at the close of
evidence, ‘‘the trial court dismissed the charge of pos-
session of opium with intent to sell by a person who
is not drug-dependent on the ground that the state had
failed to prove that one of the narcotic substances that
was seized from the defendant’s vehicle was, in fact,
opium. Thereafter, the jury returned a verdict of guilty
on the failure to appear charge but was unable to reach
a verdict on the remaining two drug charges. The trial
court thereafter declared a mistrial as to those charges.’’
(Footnote omitted.) Id. The state decided to retry the
defendant, ultimately charging him with, inter alia:
‘‘transporting ‘a narcotic substance, to wit: cocaine and
heroin’ with intent to sell by a person who is not drug-
dependent . . . .’’ Id., 664. ‘‘After the state filed the
second amended information, the defendant moved to
dismiss the charges as they related to heroin on double
jeopardy grounds.’’6 Id. Because it concluded that her-
oin and opium are different drugs, the trial court denied
the motion to dismiss, and ultimately instructed the
jury regarding the aforementioned charge that it could
convict the defendant if it concluded that the defendant
had ‘‘transported ‘either’ cocaine or heroin with [the
intent to sell].’’ Id., 664–65. The jury found the defendant
guilty on this charge, but returned a general verdict.
Id., 665, 667–68. As a result, this court observed that
‘‘there is no way of knowing whether it found the defen-
dant guilty on the basis of his transportation of cocaine,
heroin or both.’’ Id., 668. On appeal, all parties agreed
that, ‘‘the second trial violated principles of double jeop-
ardy insofar as the jury was permitted to consider the
defendant’s alleged transportation of heroin with intent
to sell.’’ Id., 665.
This court also stated in Hedge that ‘‘[a]s a general
matter, when the state charges a defendant in separate
counts with a jeopardy barred offense and an offense
that is not so barred, and the jury finds the defendant
guilty on both counts, the defendant is entitled to a
new trial on the nonbarred offense unless the state is
able to prove beyond a reasonable doubt that the joinder
of the two charges did not prejudice the defendant.’’
Id., 666–67. Because this court could not be certain
that the jury had not found the defendant guilty on the
charge of unlawfully transporting a narcotic substance
with intent to sell by a person who is not drug-depen-
dent in violation of § 21a-278 (b) on the basis of a con-
clusion that the defendant had transported heroin with
the requisite intent—a conclusion that would have been
in violation of the defendant’s right against double jeop-
ardy—this court determined that it was necessary to
reverse the defendant’s conviction with regard to that
charge. Id., 668. Moreover, because, pursuant to the
trial court’s instructions, the jury could have conceiv-
ably found the defendant guilty on this charge by
determining that he was only transporting heroin with
intent to sell, this court also determined that the defen-
dant could not subsequently be retried for the unlawful
transportation of cocaine with intent to sell ‘‘unless the
state can demonstrate beyond a reasonable doubt that
he was not acquitted of that charge at his first trial.’’ Id.
This court ultimately concluded in Hedge that, in a
subsequent retrial, the state would be able to show
beyond a reasonable doubt that the defendant had not
been acquitted of unlawfully transporting cocaine with
intent to sell, given that (1) in a separate count, the
same jury found the defendant guilty of possession of
cocaine, and (2) the drugs recovered by the police con-
sisted of 189 packages of cocaine and 15 ‘‘folds’’ of
heroin, and 100 of the packages of cocaine were found
in the same bag as the folds of heroin. Id., 669. As a
result, this court concluded that ‘‘it is virtually incon-
ceivable that the jury found the defendant guilty of
transporting narcotics with intent to sell on the basis
of the defendant’s possession of heroin but also found
that he had not transported with intent to sell the much
larger quantity of cocaine, which was found in the very
same container as the heroin.’’ Id.
The defendant claims that, akin to the situation in
Hedge, the state cannot show beyond a reasonable
doubt in the present case that he was not acquitted
of intentional manslaughter in the first degree with a
firearm at his first trial. During the first trial in 2005,
the trial court instructed the jury that it could find the
defendant guilty of manslaughter in the first degree
with a firearm if it concluded that the defendant acted
intentionally or if it concluded that the defendant acted
recklessly while engaging in conduct that created a
grave risk of death to another person and actually
caused the death of that person. See General Statutes
§§ 53a-55 (a) (1) and (3), and 53a-55a (a). The trial court
also instructed the jury that, if it concluded that the
defendant had committed a lesser included offense, it
‘‘must be unanimous as to the facts of how the crime
was committed to return a guilty verdict.’’ The defen-
dant contends that this court has previously held that
a person cannot act intentionally at the same time that
he or she acts recklessly; see, e.g., Griffin v. Parker,
219 Conn. 363, 370, 593 A.2d 124 (1991); and, thus,
the jury necessarily acquitted the defendant of either
reckless or intentional manslaughter in the first degree.
Relying on Hedge, the defendant claims that the state
bears the burden of proving that the first jury did not
acquit the defendant of intentional manslaughter in the
first degree, and, because the state failed to clarify that
jury’s verdict, it cannot now meet that burden. The
defendant thus contends that the state cannot show
that there is not a reasonable possibility that his second
prosecution prejudiced his right against double
jeopardy.
The state claims that Hedge is distinguishable
because, unlike the situation in Hedge, there has been
no clear acquittal in the present case. Specifically, the
state claims that the defendant here failed to clarify the
initial verdict of the jury and, thus, failed to preserve
his claim that the second prosecution violated his right
against double jeopardy. To the extent that this court
may review unpreserved constitutional claims pursuant
to Golding, the state claims that the record is inadequate
for review because the defendant has not shown that
a constitutional violation ‘‘clearly exists.’’ In addition,
the state contends that the defendant cannot demon-
strate that an acquittal necessarily occurred in the pres-
ent case because, the state claims, this court has pre-
viously held in State v. Rodriguez, 180 Conn. 382, 403–
405, 429 A.2d 919 (1980), that a mental state involving
a specific intent to commit a crime and the mental state
of recklessness are not inconsistent with one another
for purposes of charging lesser included offenses.
The defendant contends that, in finding the defendant
guilty of manslaughter, the jury at the defendant’s first
trial must have necessarily determined that he commit-
ted the crime with either the requisite intent or reck-
lessly. See General Statutes § 53a-55 (a) (1) and (3).
Building on this logic, the defendant claims that in
deciding that he acted with one mental state, the jury
implicitly determined that he did not possess the other.
The defendant asserts that it would have been reason-
able for the jury to convict the defendant of either
intentional or reckless manslaughter at the first trial,
and, thus, it was equally reasonable for the jury to have
acquitted the defendant under either subdivision of
§ 53a-55 (a). Thus, because the first jury’s general ver-
dict was never clarified, the defendant contends that
the state has the burden of proving beyond a reasonable
doubt that no reasonable possibility exists that the
defendant was prejudiced by his subsequent prosecu-
tion for both intentional and reckless manslaughter in
the first degree with a firearm. To put it differently,
because the state cannot prove that the defendant was
not implicitly acquitted of intentional manslaughter in
the first degree during the first trial, it cannot now prove
beyond a reasonable doubt that there is no reasonable
possibility that the defendant’s conviction for inten-
tional manslaughter at his second trial was not barred
by the double jeopardy clause.
In State v. King, 216 Conn. 585, 592–95, 583 A.2d 896
(1990), this court held that a person cannot act both
intentionally and recklessly at the same time. See id.,
593–94 (Relying on, inter alia, this court’s decision in
State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 [1986],
this court concluded that ‘‘[t]he intent to cause death
required for a conviction of attempted murder . . .
necessitated a finding that the defendant acted with
the conscious objective to cause death. The reckless
conduct necessary to be found for a conviction of
assault under the subsection charged . . . required a
finding that the defendant acted without such a con-
scious objective’’ and that ‘‘the statutory definitions of
‘intentionally’ and ‘recklessly’ are mutually exclusive
and inconsistent. ‘Reckless conduct is not intentional
conduct because one who acts recklessly does not have
a conscious objective to cause a particular result.’ . . .
Therefore, the transgression that caused the victim’s
injuries was either intentional or reckless; it could not,
at one and the same time, be both.’’ [Citation omitted.]).
During jury instructions, the trial court gave the jury
an ‘‘acquittal first’’ instruction,7 an instruction on the
elements of the crime of manslaughter in the first degree
with a firearm,8 and the relevant definitions of the terms
‘‘intent’’ and ‘‘reckless.’’ During its instructions on the
elements of manslaughter in the first degree as it is
defined in § 53a-55 (a) (1) and (3), the trial court
instructed the jury that ‘‘[t]his offense may be commit-
ted in either [of] two possible ways.’’ The trial court first
explained the elements of intentional manslaughter, as
described in § 53a-55 (a) (1), and then described the
elements of reckless manslaughter, as described in
§ 53a-55 (a) (3), referring to this subdivision as ‘‘[t]he
alternate way for a person to commit manslaughter in
the first degree . . . .’’ The jury returned a general ver-
dict, finding the defendant guilty of manslaughter in
the first degree with a firearm. The jury did not indicate
whether it found that the defendant had committed
intentional manslaughter or reckless manslaughter.
Both subdivisions (1) and (3) of § 53a-55 (a) require
that the defendant cause the death of a person; where
the two subdivisions differ is with regard to the mental
state of the defendant at the time of the act in question.
Moreover, both the state and the defendant conceded
that the defendant was the person who shot Donald.
Thus, it is argued by the defendant, the jury, in deliv-
ering its verdict, necessarily determined that the defen-
dant acted either with the intent to cause serious injury
to Donald, or it concluded that the defendant had acted
in conscious disregard of the risk that his actions would
cause Donald’s death.9 Assuming, without deciding, that
we agree with the defendant’s position, the lack of clari-
fication on this issue would cause us to speculate as
to the jury’s ultimate determination. ‘‘This is a salutary
rule that recognizes the sanctity of the jury’s delibera-
tions and the strong policy against probing into its logic
or reasoning, which would open the door to intermina-
ble speculation.’’ (Internal quotation marks omitted.)
State v. Stevens, 178 Conn. 649, 654, 425 A.2d 104
(1979).10
As the defendant states in his brief, in asserting that
the state had the burden to show that there was no
reasonable possibility of an acquittal, ‘‘any attempt to
divine the factual basis of the first jury’s verdict would
have been speculative, futile, and disingenuous . . . .’’
This is a critical distinction between the present case
and the situation in Hedge. In Hedge, at the conclusion
of his first trial, the judge clearly dismissed the charge
of possession of opium because there was no proof that
the defendant had possessed opium, thus preventing the
state from relitigating this point in a subsequent trial.
See State v. Hedge, supra, 297 Conn. 662–66. In the
present case, the jury’s verdict, as acknowledged by
both parties, was ambiguous as to its decision regarding
the defendant’s mental state. The evidence presented
at the first trial, and the arguments made by the parties
therefrom, as described previously in this opinion, was
entirely consistent with a jury verdict convicting the
defendant of either intentional or reckless manslaugh-
ter in the first degree. Thus, the jury verdict did not
necessarily depend on a finding that the defendant
lacked the intent to inflict a serious physical injury on
Donald. Therefore, we would have to resort to specula-
tion in order to divine the jury’s intention. We decline
the defendant’s invitation to do so.
We are not the first court to choose to avoid undue
speculation when faced with a general jury verdict that
convicts the defendant of a single offense but is ambigu-
ous as to the specific theory on which the jury relied in
rendering its verdict. Numerous courts, when wrestling
with the issues presented by similar verdicts, have
found that this sort of general verdict does not have
the same preclusive effect as would a general verdict
of acquittal. See, e.g., United States v. Garcia, 938 F.2d
12, 13–16 (1991), cert. denied, 502 U.S. 1030, 112 S. Ct.
868, 116 L. Ed. 2d 774 (1992); State v. Wright, 165 Wash.
2d 783, 790–91, 796–803, 203 P.3d 1027 (2009). For exam-
ple, in Garcia, the defendants were charged with, inter
alia, extortion, and at their first trial the prosecutor
argued that the defendants could be convicted of this
crime pursuant to either one of two alternative legal
theories, ‘‘extortion by wrongful use of fear and . . .
extortion under color of official right.’’ United States
v. Garcia, supra, 13. The jury convicted the defendants
of extortion, but did not indicate which of the two
theories advanced by the prosecution it had accepted.
Id. On an earlier appeal, the Second Circuit Court of
Appeals had determined that, because the jury’s reason-
ing in arriving at the conviction was ambiguous, the
court could not conclude that the jury had ascribed to
the first theory advanced—extortion by wrongful use
of fear—which, the court concluded, should not have
been presented to the jury in the first place. Id. As a
result, the court vacated the defendants’ convictions. Id.
The defendants were then retried, with the prosecution
advancing only the second, permissible legal theory. Id.
The defendants filed a motion to dismiss with the trial
court retrial, claiming that this second prosecution was
barred by the double jeopardy clause. Id. When the
issue made its way to the court on appeal, the Second
Circuit rejected the defendants’ argument. It contrasted
the situation in Garcia with the seminal case United
States v. Green, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d
199 (1957), in which the United States Supreme Court
held that a jury’s silence on one charge may sometimes
operate as an implicit acquittal.11 The Second Circuit
noted that ‘‘[i]n the present case . . . the [defendants]
were convicted on the contested charge, and the only
unanswered question was under which of two extortion
theories the jury had based its conviction. And since
the jury was never asked to state the basis for its convic-
tion on the extortion charge, its silence on the question,
unlike the silence of the jury in Green, signifies nothing.
The conclusion that the [defendants] ask us to accept
regarding the extortion theory involves unacceptable
speculation—which was precisely the reason that we
reversed the [defendants’] convictions in the first
place.’’ United States v. Garcia, supra, 15. In some
respects, the present case is even stronger than the one
faced by the Second Circuit in Garcia, because the
defendant here has not raised a sufficiency of the evi-
dence claim with regard to either relevant theory of
first degree manslaughter.
Similarly, Wright involved a case in which two defen-
dants had each been convicted of second degree mur-
der, but it was unclear pursuant to which theory each
defendant had been convicted—intentional murder or
felony murder. See State v. Wright, supra, 165 Wash. 2d
788–91. The Washington Supreme Court then decided
two cases, In re Personal Restraint of Andress, 147
Wash. 2d 602, 605, 56 P.3d 981 (2002), and In re Personal
Restraint of Hinton, 152 Wash. 2d 853, 857, 100 P.3d 801
(2004), which invalidated one of the potential alterna-
tive theories on which the defendants’ convictions had
rested. The defendants in Wright both challenged the
ability of the state to retry them on the remaining poten-
tial alternative on which their second degree murder
convictions had rested, claiming that to permit the state
to do so would violate the double jeopardy clause of
the fifth amendment to the United States constitution.
State v. Wright, supra, 791–93. The Washington
Supreme Court rejected the defendants’ claim, relying
in large part on a footnote by the United States Supreme
Court in Green: ‘‘[In] Green [the United States Supreme
Court] stated, ‘[i]t is immaterial whether second degree
murder is a lesser offense included in a charge of felony
murder or not. The vital thing is that it is a distinct
and different offense.’ [United States v. Green, supra,
355 U.S. 194 n.14] . . . . Unlike in Green, this case does
not involve a separate offense; it involves alternative
means of committing a single offense. . . . Neither the
United States Supreme Court nor this court has ever
concluded a jury’s silence bars retrial on an alternative
means of committing a single offense . . . .’’ (Citation
omitted; emphasis in original.) State v. Wright, supra,
798.12
The statute pursuant to which the defendant was
charged and convicted creates only one crime—man-
slaughter in the first degree—and treats the two subdivi-
sions at issue here as alternative ways to commit that
crime. See State v. Marino, 190 Conn. 639, 650–51, 462
A.2d 1021 (1983) (describing three subdivisions of § 53a-
55 [a] as alternative ways to commit one crime), over-
ruled on other grounds by State v. Chapman, 229 Conn.
529, 643 A.2d 1213 (1994). This court’s analysis of a
similarly worded statute in State v. Tanzella, 226 Conn.
601, 607–14, 628 A.2d 973 (1993), is also informative.
In Tanzella, the state charged the defendant with, inter
alia, assault in the third degree based on the theory that
the defendant had recklessly caused serious physical
injury. Id., 606. The state then sought to amend the
information, charging the defendant with having vio-
lated the same statute, but this time under the theory
that he had assaulted his victim with intent to cause
physical injury. Id. This court concluded that the amend-
ment of the information was not improper pursuant to
Practice Book (1993) § 624 (now § 36-18) because ‘‘the
[subdivisions] of the statutes in question do not consti-
tute different crimes . . . . [T]hey describe alternative
means of committing a single crime.’’ Id., 612.
The statute at issue in the present case, § 53a-55 (a),
treats intentional manslaughter and manslaughter when
committed recklessly under circumstances evincing an
extreme indifference to human life13 identically with
regard to the culpability of the offense. As a result, the
defendant was accused of committing only one crime
at his second trial, the same crime that he had been
convicted of at his first trial. Because the defendant’s
original conviction was set aside as a result of his first
appeal; see State v. Terwilliger, supra, 294 Conn. 400–
401; jeopardy on that offense continued and was not
cut off. See, e.g., State v. Boyd, supra, 221 Conn. 691.
At the second trial, the state merely chose to advance
two alternative theories when it sought to convict the
defendant of the crime of manslaughter in the first
degree with a firearm. It remains true that ‘‘it is a funda-
mental principle of the constitutional prohibition
against double jeopardy that a defendant may not be
retried for an offense of which he has been acquitted’’;
State v. Tate, 256 Conn. 262, 284, 773 A.2d 308 (2001);
and that ‘‘ ‘doubts about whether an offense is jeopardy-
barred must be resolved ‘‘in favor of the liberty of the
citizen.’’’ ’’ Id., 288, quoting Downum v. United States,
372 U.S. 734, 738, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963).
At the same time, ‘‘[t]he protection of the [d]ouble
[j]eopardy [c]lause ‘applies only if there has been some
event, such as an acquittal, which terminates the origi-
nal jeopardy.’ ’’ United States v. McCourty, 562 F.3d
458, 473 (2009), cert. denied, 558 U.S. 1100, 130 S. Ct.
1012, 175 L. Ed. 2d 634 (2009), quoting Richardson v.
United States, 468 U.S. 317, 325, 104 S. Ct. 3081, 82 L.
Ed. 2d 242 (1984).
Further, this case does not present a situation that
the double jeopardy clause was intended to prevent.
In this opinion, we previously have noted the express
purposes of the double jeopardy clause. First, there is
no showing that there was a second prosecution in this
case after an acquittal. We simply do not know, and
will not speculate on, the jury’s decision. Second, there
was no prosecution for another offense after a convic-
tion due to the appeal. Third, in view of the nature of
the statute, there were not multiple punishments for
the same offense. We are, therefore, confident that there
was no double jeopardy violation established in this
case.
The utter lack of prejudice to the defendant under
the unique circumstances of this case buttresses our
conclusion that the defendant’s double jeopardy rights
have not been violated. The Second Circuit has coun-
seled that, in a retrial, there should be ‘‘no reasonable
possibility that [a] violation of [the defendant’s] consti-
tutional rights worked to his prejudice.’’ United States
ex rel. Hetenyi v. Williams, 348 F.2d 844, 866–67 (1965),
cert. denied sub nom. Mancuse v. Hetenyi, 383 U.S.
913, 86 S. Ct. 896, 15 L. Ed. 2d 667 (1966). We are
confident that there was no prejudice to the defendant
in the present case.
In the present case, the evidence presented at both
trials by the state would have been admissible regard-
less of the implicit acquittal by the jury of one of the
charged subdivisions of § 53a-55.14 Similarly, the behav-
iors described by subdivisions (1) and (3) of § 53a-55
(a) are considered equally culpable and are subject to
identical potential punishments.
In this respect, the present case is similar to United
States ex rel. Jackson v. Follette, 462 F.2d 1041 (2d Cir.),
cert. denied sub nom. Jackson v. Follette, 409 U.S. 1045,
93 S. Ct. 544, 34 L. Ed. 2d 496 (1972). In Follette, the
defendant was accused of murdering a police officer
following an armed robbery of a hotel and charged with
both felony murder and premeditated murder, both of
which qualified as ‘‘murder in the first degree’’ under
the relevant state statute. Id., 1043. During his first trial,
the jury was instructed that ‘‘if it returned a verdict on
one count it was to remain silent on the other.’’ Id.
The jury returned a verdict of guilty for premeditated
murder, and said nothing regarding the charge of felony
murder. Id. The defendant’s conviction was affirmed on
direct appeal, but the defendant ultimately successfully
overturned his conviction based on a procedural chal-
lenge. Id.; see also Jackson v. Denno, 378 U.S. 368, 84
S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The state retried
the defendant on charges of both premeditated murder
and felony murder. United States ex rel. Jackson v.
Follette, supra, 1044. At this second trial, the jury con-
victed the defendant only of felony murder. Id. On
appeal, the defendant claimed that his conviction for
felony murder violated his right against double jeopardy
because the jury at his first trial had either acquitted
him of felony murder or else it had been ‘‘dismissed
without his consent after having been given a ‘full
opportunity to return a verdict’ on that charge without
any circumstances appearing that prevented it from
doing so.’’ Id., 1045. The court agreed with the defendant
that he had been ‘‘exposed to ‘a risk of conviction’ for
felony murder on his first trial’’ but, given that both
felony murder and premeditated murder both qualified
as ‘‘first degree murder’’ it was unclear whether convic-
tion of only one and silence as to the other qualified
as an acquittal. Id., 1045–46. The court acknowledged
that ‘‘the facts in this particular case justified a charge
of either . . . .’’ Id., 1048. The court ultimately con-
cluded that ‘‘[w]e have, in short, a case that is sui gene-
ris, not controlled by any Supreme Court case on its
facts, and not capable of simple resolution either on
an historical or logical basis. Without disregarding the
teachings of history or of the cases, we come to the
point where we must weigh on a fine scale the compet-
ing interests of the public and [the defendant].’’ (Foot-
notes omitted.) Id., 1049. The Second Circuit thus
balanced ‘‘fairness to society in obtaining a verdict on
a proper indictment and the avoidance of undue vexa-
tion to the defendant by a retrial on both original
charges . . . .’’ Id. The court noted that there did not
appear to be any evidentiary prejudice to the defendant
as a result of the retrial, and that both parties had
previously had opportunities to cure the ambiguity that
resulted when the first jury was silent as to the charge
of felony murder. Id. As a result, it concluded that
‘‘[f]airness to the public appears to us to demand that
a valid indictment end in a verdict where there has
been no conviction of a lesser-included offense . . .
no mistrial by virtue of the court’s action sua sponte
without the defendant’s consent . . . and where the
cause for reversal of the conviction of the co-equal
offense is reversible error in the admission of evidence,
at least where, as here, the same evidence is admissible
(or inadmissible) as proof of either offense charged
. . . . Nor is there any substantial unfairness to [the
petitioner]. . . . [The defendant] in any event would
have been subject to retrial on the premeditated murder
count, and . . . retrial on the felony murder count did
not subject him to a greater penalty or stigma or greater
embarrassment, expense or ordeal.’’ Id., 1050.
Applying similar logic in the present case, it cannot
be contested that the first jury concluded that the defen-
dant had committed the crime of manslaughter in the
first degree pursuant to either subdivision (1) or (3)
of § 53a-55 (a). The only potential difference in the
elements of those two charges is the mental state of
the defendant while causing the death of the victim.
Furthermore, regardless of which mental state the first
jury concluded the defendant possessed, it is plain that
both juries rejected the defendant’s chosen defenses at
each trial. Given that an actor’s mental status can only
be inferred from circumstantial evidence, such as his
or her behavior, the same evidence would have been
admissible regardless of whether the defendant was
retried on only one of the subdivisions of § 53a-55 (a)
or both of them. In addition, the penalty for committing
manslaughter in the first degree as defined under either
relevant subdivision is identical. Finally, given that
retrial on one of the subdivisions of § 53a-55 (a) would
have occurred in any event, retrial on both counts did
not subject the defendant to any ‘‘greater penalty, or
stigma, or greater embarrassment, expense or ordeal.’’
Id. Therefore, we are inexorably led to the conclusion
that the defendant has not suffered any prejudice as a
result of the second trial.
We note that the defendant had an opportunity to
clarify the verdict at his first trial, and did not do so.
We have not previously held that a defendant has any
affirmative obligation to clarify a general or otherwise
ambiguous verdict in order to preserve a subsequent
double jeopardy violation, nor will we do so today.15
We find it appropriate, however, to consider the defen-
dant’s failure to clarify the verdict at his first trial when
examining the potential prejudice of the claimed double
jeopardy violation during the latter trial. Had the defen-
dant taken steps to clarify the first jury’s verdict, he
would have been able to eliminate all speculation as
to whether his subsequent conviction was obtained in
violation of his fifth amendment rights. More import-
antly, given the ambiguity that existed following the
general verdict, we cannot conceive of a way for the
state to have proceeded following the initial reversal
of the defendant’s conviction that would have not given
rise to the defendant’s double jeopardy argument. Even
if the state had charged the defendant at the second
trial with only intentional manslaughter in the first
degree, the defendant would have been able to credibly
make the argument that, since the evidence presented
at his first trial also supported a conviction based on
either the reckless or intentional theory, the first jury
might well have convicted him based on the former
theory, which, assuming without deciding that we
would follow the dictates of King, would have acquitted
him of the latter. Had the defendant taken it upon him-
self to clarify the record, no ambiguity would have
existed, and we would not have had to speculate regard-
ing the jury’s verdict.
Finally, we note that although the defendant has a
valid interest in not being subjected to successive prose-
cutions, this interest is counterbalanced by that of the
public in preserving a valid conviction. We emphasize
that this is not a situation in which the state treated
the first trial against the defendant as a ‘‘dry run’’; cf.
Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25
L. Ed. 2d 469 (1970); but instead presented essentially
the same case and made the same arguments against
the defendant in both trials. The consequences for both
alternatives are identical, and the state was unquestion-
ably permitted to retry the defendant under either subdi-
vision (1) or (3) of § 53a-55 (a) and § 53a-55a. In support
of our conclusion that there is no double jeopardy viola-
tion in this case, the minimal potential prejudice to
the defendant due to the state’s decision to charge the
defendant under the alternative subdivisions simply
does not outweigh the competing interest of ensuring
that a valid conviction is preserved.
For the foregoing reasons, and limited to the
extremely unusual circumstances presented by the pre-
sent case, we conclude that the double jeopardy clause
of the fifth amendment to the United States constitution
does not require the defendant’s conviction of man-
slaughter in the first degree with a firearm pursuant to
§§ 53a-55 (a) (1) and 53a-55a to be vacated.
II
The defendant next contends that he is entitled to
a new trial because the trial court’s jury instruction
regarding defense of premises included a definition of
the term ‘‘crime of violence’’ that was ‘‘too narrow and
vague,’’ and because the trial court declined to instruct
the jury on the elements of those offenses that it
included in the definition of ‘‘crimes of violence.’’
Although we agree with the defendant to the extent
that he suggests the definition provided by the trial
court for the term ‘‘crime of violence’’ was incorrect,
we conclude that the defendant was not entitled to an
instruction on the elements of the various statutory
offenses that he claims constitute ‘‘crimes of violence.’’
We first address the proper standard of review. ‘‘A
fundamental element of due process is the right of a
defendant charged with a crime to establish a defense.
. . . An improper instruction on a defense, like an
improper instruction on an element of an offense, is of
constitutional dimension. . . . [T]he standard of
review to be applied to the defendant’s constitutional
claim is whether it is reasonably possible that the jury
was misled. . . . In determining whether the jury was
misled, [i]t is well established that [a] charge to the
jury is not to be critically dissected for the purpose of
discovering possible inaccuracies of statement, but it
is to be considered rather as to its probable effect [on]
the jury in guiding [it] to a correct verdict in the case.
. . . 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.
. . . In reviewing the trial court’s failure to charge as
requested, we must adopt the version of facts most
favorable to the defendant which the evidence would
reasonably support. . . . A challenge to the validity of
jury instructions presents a question of law over which
[we have] plenary review.’’ (Citations omitted; internal
quotation marks omitted.) State v. Terwilliger, supra,
294 Conn. 411–12.
The defendant contends that the definition of the
term ‘‘crime of violence’’ as it is used in § 53a-20 is
coextensive with the list of crimes classified as ‘‘ ‘violent
offenses’ ’’ by the Board of Parole pursuant to General
Statutes § 54-125a (b) (2). The defendant claims that
this definition is also consistent with the definition of
the term as it appears in 18 U.S.C. § 16. The defendant
also contends that the trial court’s instructions to the
jury regarding defense of premises were flawed because
the trial court failed to instruct the jury on the specific
elements of each of the crimes that are considered
‘‘crimes of violence.’’ The defendant claims that the trial
court’s failure to instruct the jury on the elements of
the crime of burglary was particularly harmful, because
he contends that the elements of that particular crime,
as it is defined in Connecticut, are not necessarily well-
known by laypersons.
The state contends that, although it did not do so in
the defendant’s requested terminology, the trial court’s
instruction on defense of premises incorporated all of
the defendant’s requested included offenses except for
third degree assault, and also included several offenses
that the defendant had not requested. The state also
asserts that, rather than looking to the term ‘‘crime of
violence’’ as it is defined by the Board of Parole or in
18 U.S.C. § 16, this court should look to the common
law to ascertain the legislature’s intended meaning of
‘‘crime of violence’’ as it is used in § 53a-20. As a result,
the state urges this court to read § 53a-20 in light of
our decisions in cases construing other statutes which
codified justification defenses, such as State v. Havi-
can, 213 Conn. 593, 569 A.2d 1089 (1990), in which this
court examined General Statutes § 53a-19, Connecti-
cut’s self-defense statute. The state contends that, when
read in light of these decisions, the term ‘‘crime of
violence’’ as used in § 53a-20 should be defined nar-
rowly to avoid becoming duplicative. The state also
rejects the defendant’s claim that juries should be
instructed on the elements of those offenses that are
considered ‘‘crimes of violence,’’ claiming that the
defendant has failed to cite any authority for this propo-
sition, and that the language of the statute reflects that
the legislature intended to convey that the use of deadly
force by an actor should be limited to ‘‘situations with
the potential for serious violence.’’ Finally, the state
also contends that, regardless of any error by the trial
court, there is no reasonable possibility that the verdict
was affected by the court’s failure to instruct the jury
on the specific elements of the included crimes, con-
tending that there was no support in the evidence pre-
sented at trial to suggest that it would have been
objectively reasonable for the defendant to believe that
Donald was about to commit the crime of burglary
when the defendant fired his revolver. We agree with
the state.
The following additional facts and procedural history
are relevant to this issue. The defendant requested that
the court instruct the jury on several defenses, including
defense of premises as defined in § 53a-20.16 The court
agreed to instruct the jury on the defense, but did not
give the defendant’s requested charge.
In particular, the trial court disagreed with the defen-
dant’s proposed instruction regarding the term ‘‘crime
of violence’’ as it is used in § 53a-20. Section 53a-20 (2)
provides, inter alia, that a person is justified in using
deadly force in defense of premises against a criminal
trespasser ‘‘when he [or she] reasonably believes such
to be necessary to prevent an attempt by the trespasser
to commit arson or any crime of violence . . . .’’ The
defendant’s proposed instruction defined the term to
include the following statutory offenses: murder, as
defined in General Statutes § 53a-54a; manslaughter in
the first degree, as defined in § 53a-55, manslaughter
in the second degree, as defined in General Statutes
§ 53a-56; assault in the first and second degrees, as
defined in General Statutes §§ 53a-59 and 53a-60 respec-
tively, including assault of a victim sixty years or older
as defined in General Statutes §§ 53a-59a and 53a-60b;
unlawful restraint in the first degree, as defined in Gen-
eral Statutes § 53a-95; and burglary in the first and sec-
ond degrees, as defined in General Statutes §§ 53a-101
and 53a-102 respectively. In addition to an instruction
indicating that the term ‘‘crime of violence’’ encom-
passed each of these statutory crimes, the defendant
requested that the jury be instructed on the specific
elements of each referenced statutory offense. Further-
more, with regard to the requested charge regarding
burglary as a crime of violence, the defendant asked
that the jury be instructed as to offenses such as assault
in the third degree. In other words, the defendant
requested that the jury be instructed that it could find
that Donald had attempted to commit a burglary if they
were to conclude that he intended to enter the defen-
dant’s home and commit a third degree assault against
someone located therein.
The state objected to the defendant’s proposed
instruction, claiming that it was not a correct statement
of law to say that the defendant would have been justi-
fied to use deadly force against Donald to prevent an
assault in the third degree against someone inside the
defendant’s home. In addition, the state objected to the
defendant’s proposed instruction on this issue because
it felt that it would be too confusing to the jury to define
each statutory offense that conceivably qualified as a
‘‘crime of violence.’’
The trial court agreed with the state, explaining that
the common-law definition of ‘‘crimes of violence’’
included only felonies, and, thus, found that the use of
deadly force to prevent a third degree assault would
not be warranted. The trial court further concluded that
there was no evidence to support a finding that the
defendant had acted in defense of any person inside
his home, nor was there any evidence indicating that
Donald was attempting to commit a burglary when he
was shot by the defendant. The trial court, however,
agreed to include the crime ‘‘burglary’’ in a list of crimes
that it gave to the jury as examples of crimes which
might qualify as ‘‘crimes of violence’’ for purposes of
§ 53a-20 ‘‘for the jury’s edification.’’17 The defendant
objected to the court’s determination that no evidence
supported the defendant’s contentions that (1) Donald
could have been attempting to commit a burglary at
the time of the shooting, and (2) the defendant could
not have acted in defense of the persons located inside
of his home at the time of the shooting. In addition to
instructing the jury regarding defense of premises, the
trial court also instructed the jury on self-defense and
defense of persons; see General Statutes § 53a-19;18 the
elements of manslaughter in the first degree; see Gen-
eral Statutes § 53a-55; certain requested lesser included
forms of homicide, such as manslaughter in the second
degree with a firearm; see General Statutes §§ 53a-56
and 53a-56a; and criminally negligent homicide. See
General Statutes § 53a-58.
Our resolution of this issue turns on the meaning of
the term ‘‘crime of violence,’’ as it is used in § 53a-20,
which the legislature has, thus far, left undefined. ‘‘The
issue in this case presents a question of statutory inter-
pretation that requires our plenary review. See Cogan
v. Chase Manhattan Auto Financial Corp., 276 Conn.
1, 7, 882 A.2d 597 (2005). ‘When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . When a statute is not plain and unam-
biguous, we also look for interpretive guidance to the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’ ’’ Caciopoli v. Lebowitz, 309
Conn. 62, 69, 68 A.3d 1150 (2013).
‘‘In discussing the codification of the law of self-
defense in § 53a-19, we have said that ‘[t]he statutes
which enumerate the situations where the use of force
is justified ‘‘attempt to restate the common law. They
should be read in the light of their common law back-
ground, and the fact that an individual section does not
fully state the relevant common law rule, with all its
possible applications, exceptions, or implications,
should not prevent a court from reading it as incorporat-
ing the full body of common law rules relevant thereto.’’
Commission to Revise the Criminal Statutes, Connecti-
cut Penal Code Comments 5-6 (1972).’ State v. Shaw,
185 Conn. 372, 379, 441 A.2d 561 (1981), cert. denied,
454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982);
State v. Corchado, 188 Conn. 653, 661–62, 453 A.2d 427
(1982).’’ State v. Havican, supra, 213 Conn. 598.
The law of defense of premises was initially codified
when the legislature passed the first iteration of Con-
necticut’s Penal Code through the passage of a Public
Act during the 1969 session of the General Assembly.
See Public Acts 1969, No. 828, § 20. At that time, the
relevant language of the statute provided that a person
could use deadly force in defense of premises ‘‘when
he [or she] reasonably believes it is necessary to prevent
an attempt by the trespasser to commit arson . . . .’’
Public Acts 1969, No. 828, § 20. The term ‘‘crime of
violence’’ did not appear until the Penal Code was
amended during the 1973 session of the General Assem-
bly when the term was added—without discussion—
immediately following the word ‘‘arson.’’ See Public
Acts 1973, No. 73-639 § 2. Thus, the legislature has not
yet precisely defined the term ‘‘crime of violence.’’ How-
ever, the Commission to Revise the Criminal Statutes,
the drafters of the original section, indicated in a com-
ment that the language contained in § 53a-20 ‘‘is based
on the rule of such cases as State v. Perkins, [88 Conn.
360, 91 A. 265] (1914). It adds, however, to the traditional
common law rule as to the use of deadly force to prevent
unlawful entry, the right to prevent such entry to one’s
‘place of work’ as well as one’s dwelling. It also makes
clear that deadly force is justified to prevent an
attempted arson by the trespasser.’’ Commission to
Revise the Criminal Statutes, Penal Code Comments,
Conn. Gen. Stat. Ann. § 53a-20 (West 2012), commis-
sion comment.
In Perkins, the defendant offered evidence that she
had shot and killed the decedent, her estranged hus-
band, under the following circumstances. ‘‘[The dece-
dent] came to the house of the [defendant] and
demanded admission, which was refused, and he imme-
diately proceeded to break down the doors of the house,
all the while threatening to kill the [defendant]. After he
had broken down the storm-porch door, the [defendant]
warned him that she had two revolvers, and that if he
broke through the double house-doors and attempted
to come in she would shoot him. Notwithstanding this
warning [the decedent] continued his violent assault
upon the double doors, and, as the right-hand door was
giving way, he said to the [defendant], with an oath:
‘Now I’ve got you, and I’ll cut your guts out.’ The [defen-
dant], at the time of his breaking into her house believed
that the [decedent] intended to carry out his threats to
kill her, and believed that her life was in imminent
danger from [decedent] . . . . After the [defendant]
had warned the [decedent] that she would shoot if he
broke in, and after he had broken down the right half
of the house-doors, and was attempting to enter, the
[defendant] attempted to fire a revolver at him, but it
would not work. She then thought of the shotgun, which
was kept [nearby], and fired at [the decedent]. The
[defendant] shot the [decedent], as he was breaking
into the house, to prevent his entering and taking her
life.’’ State v. Perkins, supra, 88 Conn. 362. Under these
circumstances, this court determined that ‘‘[t]he evi-
dence and claims of the parties were such as to require
a charge upon the theory that [the defendant’s] motive
in shooting the [decedent] was to save her own life or
to protect herself from bodily harm. An assault on one’s
house can be regarded as an assault on the person,
within the meaning of the law with reference to self-
defense, where the purpose of the assault is an injury
to the person of the occupant or members of his family,
to accomplish which the assailant attacks the house in
order to reach the inmate. In this connection it is . . .
settled, that . . . the [defendant] . . . may meet [an
assailant] at the threshold, and prevent him from break-
ing in, by any means rendered necessary by the exi-
gency; and, upon the same ground and reason, that
one may defend himself from peril of life, or great
bodily harm, by means fatal to the assailant, if rendered
necessary by the exigency of the assault.’’ (Emphasis
added.) Id., 363–64. This court cited State v. Patterson,
45 Vt. 308, 320–21 (1873) for that proposition, which
contains essentially the same language.
In the present case, the trial court’s instruction
defined the term ‘‘crime of violence’’ to mean ‘‘a crime
committed with violence’’ and provided examples of
such crimes, namely ‘‘murder, manslaughter, rape, rob-
bery, arson, burglary, assault with the specific intent
to cause great bodily harm or assault in which a risk
of great bodily harm was created.’’ This instruction is
consistent with the sentiment expressed by this court
in Perkins, which indicated that the common-law
understanding of defense of premises authorized the
use of deadly force only when the defendant felt that
the threat posed by an assailant or invader on the defen-
dant’s premises posed at least a risk of great bodily
harm. See State v. Perkins, supra, 88 Conn. 363–64. In
addition, this court has previously set out a list of crimes
that were considered ‘‘crimes of violence’’ at common
law in a case in which a defendant booby-trapped his
blacksmith shop to prevent anyone from breaking and
entering: ‘‘The class of crimes in prevention of which
a man may, if necessary, exercise his natural right to
repel force by force to the taking of the life of the
aggressor, are felonies which are committed by violence
and surprise; such as murder, robbery, burglary, arson,
breaking a house in the day time with intent to rob,
sodomy and rape.’’ (Emphasis omitted.) State v. Moore,
31 Conn. 479, 483 (1863). This court has previously
relied on this list to establish those crimes against which
a person could justifiably use deadly force at common
law. See State v. Havican, supra, 213 Conn. 599.
Of course, as the state points out, if a defendant
reasonably believed that an actor today were about to
commit many of the crimes listed by the court in its
‘‘crime of violence’’ instruction in the present case, then
that defendant would already have been authorized to
utilize deadly force against the actor in defense of prem-
ises pursuant to the other language contained in § 53a-
20 that indicates that a person ‘‘may use deadly physical
force under such circumstances only (1) in defense of
a person as prescribed in section 53a-19 [the defense
of persons statute] . . . .’’ This is because most of these
crimes necessarily involve an actor who is using or
about to use deadly force or an actor who is inflicting
or about to inflict great bodily harm. Thus, the term
‘‘crime of violence,’’ as it is used in § 53a-20, must neces-
sarily provide the defendant with the ability to use
deadly force against a criminal trespasser when the
trespasser is committing some crime that would not be
encompassed by the statutory language of § 53a-19.
‘‘[I]n construing statutes, we presume that there is a
purpose behind every sentence, clause, or phrase used
in an act and that no part of a statute is superfluous.’’
(Internal quotation marks omitted.) State v. Havican,
supra, 213 Conn. 600; cf. id., 601 (concluding that terms
‘‘serious physical injury’’ and ‘‘ ‘great bodily harm’ ’’ ‘‘are
two separate grounds that each justify the use of deadly
force in self-defense’’).
We think it is significant that, when codifying this
state’s law on defense of premises, the legislature
expressly listed the crime of arson immediately before
the term ‘‘crime of violence.’’ Under the doctrine of
ejusdem generis, ‘‘when a general word or phrase fol-
lows a list of specifics, the general word or phrase will
be interpreted to include only items of the same class
as those listed.’’ Black’s Law Dictionary (9th Ed. 2009).
Thus, the phrase ‘‘crimes of violence’’ must consist only
of those crimes that were considered ‘‘violent’’ at com-
mon law, and, within that class of crimes, only those
crimes the elements of which do not necessarily involve
either the use of deadly force or the infliction of great
bodily harm. Of the offenses requested to be included
by the defendant, only the offenses of burglary and
arson meet both of these prerequisites.
The issue, then, is whether the defendant was entitled
to have the jury instructed on the elements of burglary
or arson when the trial court instructed the jury as to
the meaning of the term ‘‘crime of violence.’’ Even if
we were to assume that, in a proper case, the defendant
might be entitled to an instruction on the elements
of these offenses or others that might fall within this
definition of the term, we conclude that the defendant
was not entitled to an instruction in the present case.
Although the defendant has challenged the trial court’s
definition of the term ‘‘crime of violence,’’ and its failure
to instruct on the individual elements of each crime to
fall within this definition, the defendant has not chal-
lenged on appeal the trial court’s determination that
there was no evidence whatsoever that Donald was
attempting a burglary at the time of the incident, nor
has the defendant challenged on appeal the trial court’s
refusal to instruct the jury that the defendant could
have been acting in defense of the persons within the
defendant’s home at the time of the incident.
The situation, in this respect, is not unlike the situa-
tion faced by the court in State v. Bryan, 307 Conn.
823, 60 A.3d 246 (2013). In Bryan, the defendant chal-
lenged the trial court’s refusal to instruct the jury
regarding the law on defense of others. Id., 830–31.
We concluded that the trial court properly rejected the
defendant’s request. Id., 836. ‘‘[I]n order to submit a
defense of others defense to the jury, a defendant must
introduce evidence that the defendant reasonably
believed [the attacker’s] unlawful violence to be immi-
nent or immediate. . . . Under . . . § 53a-19 (a), a
person can, under appropriate circumstances, justifi-
ably exercise repeated deadly force if he reasonably
believes both that [the] attacker is using or about to
use deadly force against [himself or a third person] and
that deadly force is necessary to repel such attack. . . .
The Connecticut test for the degree of force in self-
defense [and the defense of others] is a subjective-
objective one. The jury must view the situation from
the perspective of the defendant. Section 53a-19 (a)
requires, however, that the defendant’s belief ultimately
must be found to be reasonable. . . . [I]n reviewing
the trial court’s rejection of the defendant’s request for
a jury charge on [defense of others], we . . . adopt the
version of the facts most favorable to the defendant
which the evidence would reasonably support.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id.,
835–36. Ultimately, we concluded that the instruction
was not warranted because ‘‘[n]o evidence . . . sup-
ports the defendant’s contention that at the time he
stabbed the victim, it was objectively reasonable for
him to believe that it was necessary to do so in order
to defend [the third party].’’ (Emphasis omitted.) Id.,
836. As a result, we noted that ‘‘even if the jury con-
cluded that the defendant himself believed that the vic-
tim represented an imminent threat to [the third party]
at the time the defendant stabbed the victim, no reason-
able jury could find the defendant’s belief to be objec-
tively reasonable. Viewed in the light most favorable to
the defendant, the evidence was insufficient to raise a
reasonable doubt in the mind of a rational juror as
to whether the defendant acted in [the third party’s]
defense.’’ Id., 838–39.
Here, the trial court’s rulings finding a lack of evi-
dence to support inferences that either (1) Donald was
attempting to commit a burglary, or (2) the defendant
was acting in defense of the persons located inside of
his home at the time of the shooting, lead inevitably to
the conclusion that no reasonable jury would be able
to find that any subjective belief that may have been
held by the defendant that Donald was attempting to
commit burglary or arson was objectively reasonable.19
As a result, any error of the trial court in instructing the
jury on the elements of these two crimes was harmless
beyond a reasonable doubt. Cf. State v. Lemoine, 256
Conn. 193, 199–200, 770 A.2d 491 (2001) (concluding no
constitutional error in self-defense instruction existed
where court did not instruct jury on defendant’s duty
to retreat, because duty of retreat ‘‘not relevant to the
. . . case because the state did not argue to the jury that
the defendant should have retreated’’ and ultimately
concluding that ‘‘[b]ecause the state made no claim that
the defendant should have retreated . . . the defen-
dant did not suffer constitutional harm by the trial
court’s omission of an unnecessary and potentially con-
fusing instruction on the duty to retreat’’).
In summary, we conclude that the term ‘‘crime of
violence’’ as it is used in § 53a-20 does not include
those crimes considered to be ‘‘crimes of violence’’ at
common law against which the defendant would
already have been authorized to defend himself pursu-
ant to the statutory framework laid out in § 53a-19.
Instead, the term involves only those offenses which
fall within the traditional common-law definition and
do not, by their essential elements, necessarily involve
the use of deadly force or infliction of great bodily
harm. We further conclude that, of those relevant
crimes requested to be included by the defendant within
the definition of ‘‘crime of violence,’’ only the crimes
of arson and burglary fall within that definition. Further,
we conclude that, on the basis of the evidence before
the trial court and its rulings thereon, a reasonable jury
could not have found that it would have been objectively
reasonable for the defendant to believe that Donald
was attempting to commit either of these crimes, and,
as a result, any error committed by the trial court in
refusing to instruct the jury on the essential elements
of those offenses was harmless beyond a reasonable
doubt.
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER and
McDONALD, Js., concurred.
1
General Statutes § 53a-55a (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree with a firearm when he commits
manslaughter in the first degree as provided in section 53a-55, and in the
commission of such offense he uses, or is armed with and threatens the
use of or displays or represents by his words or conduct that he possesses
a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .’’ We
note that, although § 53a-55a was amended by the legislature in 2007; see
Public Acts 2007, No. 07-143, § 13; that amendment has no bearing on the
merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
Manslaughter in the first degree is defined in General Statutes § 53a-55
(a), which provides: ‘‘A person is guilty of manslaughter in the first degree
when: (1) With intent to cause serious physical injury to another person,
he causes the death of such person or of a third person; or (2) with intent
to cause the death of another person, he causes the death of such person
or of a third person under circumstances which do not constitute murder
because he committed the proscribed act or acts under the influence of
extreme emotional disturbance, as provided in subsection (a) of section 53a-
54a, except that the fact that homicide was committed under the influence
of extreme emotional disturbance constitutes a mitigating circumstance
reducing murder to manslaughter in the first degree and need not be proved
in any prosecution initiated under this subsection; or (3) under circum-
stances evincing an extreme indifference to human life, he recklessly engages
in conduct which creates a grave risk of death to another person, and
thereby causes the death of another person.’’
2
The defendant initially appealed to the Appellate Court. That court was
not, however, the proper court to consider the defendant’s appeal because
the present matter involves a conviction for a class A felony, which is subject
to a maximum sentence that exceeds twenty years. See General Statutes
§ 51-199 (b) (3). Consequently, we transferred the defendant’s appeal to this
court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-4.
3
General Statutes § 53a-20 provides: ‘‘A person in possession or control
of premises, or a person who is licensed or privileged to be in or upon such
premises, is justified in using reasonable physical force upon another person
when and to the extent that he reasonably believes such to be necessary
to prevent or terminate the commission or attempted commission of a
criminal trespass by such other person in or upon such premises; but he
may use deadly physical force under such circumstances only (1) in defense
of a person as prescribed in section 53a-19, or (2) when he reasonably
believes such to be necessary to prevent an attempt by the trespasser to
commit arson or any crime of violence, or (3) to the extent that he reasonably
believes such to be necessary to prevent or terminate an unlawful entry by
force into his dwelling as defined in section 53a-100, or place of work, and
for the sole purpose of such prevention or termination.’’
4
See footnote 2 of this opinion.
5
We note that the state claims that, by failing to have the jury specify its
verdict at the first trial, the defendant waived review of the double jeopardy
claim and, following from this, the defendant cannot show that a ‘‘clear
constitutional violation’’ has occurred pursuant to State v. Golding, supra,
213 Conn. 239–40. We do not agree that the defendant’s failure to take
additional action at the first trial caused him to waive or otherwise fail to
preserve his double jeopardy claim. Indeed, as this court noted in State v.
Hedge, 297 Conn. 621, 655 n.14, 1 A.3d 1051 (2010), ‘‘the defendant raised
his double jeopardy claim in a timely manner; indeed, he did so at the first
possible opportunity after learning that the state intended to retry him
for the heroin offense.’’ Here, the defendant moved to dismiss the second
prosecution on double jeopardy grounds ten days after the state filed its
information. Given that the defendant’s claimed basis for the double jeopardy
clause violation in this case is that the state has subjected him to successive
prosecutions for the same offense, there could not actually be a potential
double jeopardy issue until the second information was actually filed against
the defendant. See, e.g., Green v. United States, 355 U.S. 184, 187–89, 78 S.
Ct. 221, 2 L. Ed. 2d 199 (1957). As we explain subsequently in this opinion,
although the defendant’s failure to clarify the first jury’s verdict does nega-
tively impact his ability to succeed on the merits of his double jeopardy
challenge, it has no impact on our ability to review the claimed violation.
6
The defendant offered the testimony of a chemist ‘‘who testified that,
although heroin and opium are distinct drugs, heroin is a chemical compound
derived from the opiate plant. She further testified that, although heroin
can be manufactured synthetically, she would have no way of knowing
whether the heroin in the present case was synthetic without examining
it.’’ State v. Hedge, supra, 297 Conn. 664.
7
Specifically, the ‘‘acquittal first’’ instruction provided is as follows: ‘‘[I]f
you find the defendant not guilty of the crime of murder . . . you shall
then consider the lesser offenses of manslaughter in the first degree with
a firearm. If you find the state has failed to prove the elements of manslaugh-
ter in the first degree with a firearm beyond a reasonable doubt, then you
will consider the lesser included offense of manslaughter in the second
degree with a firearm . . . .’’
8
Specifically, we note that the trial court instructed the jury on the ele-
ments of both intentional manslaughter in the first degree as it is defined
in § 53a-55 (a) (1) and reckless manslaughter in the first degree as it is
defined in § 53a-55 (a) (3). We also observe that, initially, the trial court
instructed the jury only regarding the elements of intentional manslaughter
in the first degree. The trial court corrected this instruction, however, to
include the elements of both relevant subdivisions of § 53a-55 (a). Neither
party has suggested that these events should impact our resolution of
this issue.
9
We note that the state disagrees with the defendant’s position, and instead
claims that this court’s decision in State v. Rodriguez, supra, 180 Conn. 382,
is controlling. We disagree with the state. Rodriguez does not stand for the
proposition that a person can simultaneously act intentionally and recklessly.
Rather, Rodriguez stands for the proposition that the same evidence may
support both mental states and, thus, the state may charge the defendant
with offenses that include inconsistent mental states. Id., 404–405. In Rodri-
guez, the defendant was charged with murder and ultimately convicted of
the lesser included offense of manslaughter. The defendant argued that
‘‘because he was charged with murder, a crime requiring the element of
specific intent to cause the death of another, the court’s charge on man-
slaughter in the first and second degrees and criminally negligent homicide,
which do not require the same state of mind, violated his right to be informed
of the crime he is alleged to have committed.’’ Id., 399. This court upheld
the defendant’s conviction, and observed that ‘‘[w]here the state is faced
with a homicide prosecution, it may . . . assume that an accused acted
with the most culpable state of mind. But where the evidence is reasonably
susceptible of another conclusion, the jury . . . should not be bound by
that assumption and forced by its verdict to choose only between the offense
with the most culpable state of mind and acquittal. Such a result would
limit the jury’s function of determining questions of fact and undermine a
defendant’s right to a trial by jury.’’ (Citation omitted.) Id., 404. Rodriguez
did not involve a situation, such as the one at issue in King, where a
defendant had actually been convicted of two offenses with differing mental
states. Compare id., 398–99, with State v. King, supra, 216 Conn. 592–94.
Thus, Rodriguez is inapplicable to the situation at hand.
10
We note that State v. Nash, SC 19265, which was recently argued before
this court, will consider the precise issue of whether a person can act both
intentionally and recklessly at the same time. We offer no opinion on this
issue at this time.
11
Specifically, the court in Green observed: ‘‘When given the choice
between finding [the defendant] guilty of either first or second degree murder
it chose the latter. In this situation the great majority of cases in this country
have regarded the jury’s verdict as an implicit acquittal on the charge of
first degree murder. But the result in this case need not rest alone on the
assumption, which we believe legitimate, that the jury for one reason or
another acquitted [the defendant] of murder in the first degree. For here,
the jury was dismissed without returning any express verdict on that charge
and without [the defendant’s] consent. Yet it was given a full opportunity
to return a verdict and no extraordinary circumstances appeared which
prevented it from doing so. Therefore it seems clear, under established
principles of former jeopardy, that [the defendant’] jeopardy for first degree
murder came to an end when the jury was discharged so that he could not
be retried for that offense.’’ (Footnote omitted.) United States v. Green,
supra, 355 u.s.190–91.
12
We recognize, as the concurrence points out, that cases such as Garcia
and Wright are not entirely apposite to the issue that is presented in this
case. Namely, although cases such as Garcia and Wright both deal with
claimed double jeopardy violations resulting from successive prosecutions,
the defendants in those cases premised their claims on the seminal United
States Supreme Court case Green v. United States, supra, 355 U.S. 184. See
United States v. Garcia, supra, 938 F.2d 14–15; State v. Wright, supra, 165
Wash.2d 796–800. In Green, as stated previously in this opinion, the acquittal
occurs either when a jury returns a verdict on one charge and remains silent
as to another, or when the jury is dismissed, in the absence of extraordinary
circumstances, without returning a verdict on the charge and without the
defendant’s consent. See Green v. United States, supra, 355 U.S. 190–91. In
other words, the double jeopardy violation occurs by operation of law
because, in delivering its verdict, the jury has terminated the jeopardy faced
by the defendant. See id., 181. Just as courts have refused to attach meaning
to such a verdict in the context of a claimed implicit acquittal, so too is it
difficult to extract much meaning from a general verdict when the issue is
determining what a jury ‘‘actually decided’’; see, e.g., Dowling v. United
States, 493 U.S. 342, 350, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990); regarding
the facts of a case during its deliberations.
13
We have previously held that this phrase serves to modify the degree
of recklessness exhibited by an actor when engaging in criminal behavior.
See, e.g., State v. McMahon, 257 Conn. 544, 552–56, 778 A.2d 847 (2001),
cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002).
14
It is useful to recall that all evidence indicating a defendant’s mental
state at the time of an offense is entirely circumstantial, and drawn from
inferences made by the jury from evidence such as the words or deeds of
the defendant at the time of the events in question. See, e.g., State v. Garner,
270 Conn. 458, 475–76, 853 A.2d 478 (2004).
15
Indeed, although we do not impose any requirement on either the defen-
dant or the state to clarify a general verdict in a case such as this one, we
observe that the state has at least an equal incentive to the defendant in
obtaining a clear verdict. Had the state done so, it would have accomplished
two things: (1) the basis on which the jury convicted the defendant would
have been clear, preventing the defendant from raising any sort of double
jeopardy argument when the defendant was retried for the offense of which
he was previously convicted after this court initially set aside that conviction;
and (2) the state could have avoided any potential risk of violating the
defendant’s right against double jeopardy in any subsequent retrial. Indeed,
the state, and not the defendant, will always be better able to anticipate
and clarify ambiguities that may give rise to future double jeopardy issues,
because ultimately it is the state, and not the defendant, who can control
whether a double jeopardy issue is ever to occur. This is because precisely
what charges are brought against a defendant in any given trial is always
an exercise in prosecutorial discretion. See, e.g., United States v. Batchelder,
442 U.S. 114, 124, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979).
16
General Statutes § 53a-20 provides: ‘‘A person in possession or control
of premises, or a person who is licensed or privileged to be in or upon such
premises, is justified in using reasonable physical force upon another person
when and to the extent that he reasonably believes such to be necessary
to prevent or terminate the commission or attempted commission of a
criminal trespass by such other person in or upon such premises; but he
may use deadly physical force under such circumstances only (1) in defense
of a person as prescribed in section 53a-19, or (2) when he reasonably
believes such to be necessary to prevent an attempt by the trespasser to
commit arson or any crime of violence, or (3) to the extent that he reasonably
believes such to be necessary to prevent or terminate an unlawful entry by
force into his dwelling as defined in section 53a-100, or place of work, and
for the sole purpose of such prevention or termination.’’
General Statutes § 53a-19 provides in relevant part: ‘‘(a) Except as pro-
vided in subsections (b) and (c) of this section, a person is justified in using
reasonable physical force upon another person to defend himself or a third
person from what he reasonably believes to be the use or imminent use of
physical force, and he may use such degree of force which he reasonably
believes to be necessary for such purpose; except that deadly physical force
may not be used unless the actor reasonably believes that such other person
is (1) using or about to use deadly physical force, or (2) inflicting or about
to inflict great bodily harm.
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, a
person is not justified in using deadly physical force upon another person
if he or she knows that he or she can avoid the necessity of using such
force with complete safety (1) by retreating, except that the actor shall not
be required to retreat if he or she is in his or her dwelling, as defined in
section 53a-100, or place of work and was not the initial aggressor . . . .
‘‘(c) Notwithstanding the provisions of subsection (a) of this section, a
person is not justified in using physical force when (1) with intent to cause
physical injury or death to another person, he provokes the use of physical
force by such other person, or (2) he is the initial aggressor, except that
his use of physical force upon another person under such circumstances is
justifiable if he withdraws from the encounter and effectively communicates
to such other person his intent to do so, but such other person notwithstand-
ing continues or threatens the use of physical force, or (3) the physical
force involved was the product of a combat by agreement not specifically
authorized by law.’’
17
The court’s ultimate instruction to the jury regarding the definition of
‘‘crime of violence’’ was as follows: ‘‘A crime of violence is a crime committed
with violence such as murder, manslaughter, rape, robbery, arson, burglary,
assault with the specific intent to cause great bodily harm or assault in
which a risk of great bodily harm was created.’’
18
With regard to the defense of persons charge, as described previously
in this opinion, the court did not instruct the jury that it could find that the
defendant had acted in defense of Daniels, Kathryn, or Kathryn’s daughter,
each of whom were in the defendant’s house at the time of the shooting.
Instead, the court limited its instruction on defense of persons, instructing
the jury that it could find only that the defendant had acted in defense of
himself or Gardner, the teenager who Donald had confronted immediately
prior to the incident with the defendant.
19
With regards to the trial court’s ruling on the crime of burglary, although
the defendant claims that the crime falls within the definition of the term
‘‘crime of violence,’’ and that the trial court should have instructed the jury on
the elements of that crime in instructing the jury on the statutory definition of
that term, the defendant has not challenged the trial court’s ruling that the
evidence did not support an inference that Donald was attempting to commit
a burglary. The only evidence relied on by the defendant to support his
claim that such an instruction was warranted was Donald’s ‘‘expressions
of anger’’ and threats toward the defendant contained in the defendant’s
statement to the police, and the fact that, according to the defendant, Donald
blocked the defendant’s path to the house during the altercation. We con-
clude that this evidence does not give rise to a reasonable inference that
Donald was attempting to commit a burglary at the time that the defendant
shot him. Nothing contained in the record suggests that Donald was
attempting to unlawfully enter or remain in the defendant’s home at the
time that he was shot, which is an essential element in the commission of
the crime of burglary. See General Statutes §§ 53a-101, 53a-102 and 53a-103.
The mere fact that, according to the defendant, Donald blocked the defen-
dant from retreating into his house does not give rise to the inference that
Donald intended to enter into the house.
Similarly, we conclude that the trial court’s ruling that it was not objec-
tively reasonable for the jury to consider whether the defendant was acting
in defense of Daniels, Kathryn, or Kathryn’s daughter also rendered it impos-
sible for a reasonable jury to conclude that any subjective belief by the
defendant that Donald was attempting to commit arson was objectively
reasonable. Although it is not an essential element of the crime of arson to
intend harm to the occupants of a building; see, e.g., General Statutes § 53a-
111; in this case, any attempt to set fire to or cause an explosion in the
defendant’s home necessarily would have carried with it the risk of serious
physical injury to the occupants therein. Thus, in this case, by concluding
that the jury could not consider whether the defendant was acting in defense
of the occupants of his house—a ruling that the defendant has not challenged
before this court—no reasonable jury could have concluded that, on the
present facts, any subjective belief by the defendant that Donald was
attempting to commit arson at the time he was shot was objectively rea-
sonable.