State v. Sawyer

O’Connell, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant claims that § 53a-55 (a) (3) is unconstitutionally vague as applied, and that the trial court’s instructions to the jury were improper. We reverse the judgment of conviction.

The jury could reasonably have found the following facts. On February 17,1989, the defendant was in his apartment when he was surprised by the arrival of his girl friend, Ernestine Watkins. Also at the apartment were the victim and Franklin Damon. After Watkins had hugged and kissed the victim, she asked him for a ride. The defendant followed them and got into the back seat of the victim’s automobile. Watkins refused to get into the car and told the defendant, with whom she was angry, not to go with her, and that he should remain behind while she went to visit her uncle. The defendant then exited the car and the victim left with Watkins.

After waiting for more than an hour for Watkins to return, the defendant walked to a bar to look for her. At the bar, he observed someone hide a package near a dumpster. He retrieved the package and discovered a .357 magnum pistol that contained a live round in the chamber. He kept the gun and continued his search for Watkins. Upon learning that she had not visited her uncle, the defendant returned home. A short time later he observed the victim’s car, with the victim in the driver’s seat and Damon in the front passenger seat. He jumped into the back seat demanding to know where Watkins was. After the victim told him that she would return shortly, the defendant demanded that the victim drive him to where Watkins was. When the victim refused, the defendant put the gun to the back of the victim’s neck, and pulled back the hammer. The victim again refused, stating that he had promised to give Damon a ride home. The victim bowed his head slightly and the gun discharged, sending a bullet through his left carotid artery and killing him.

Immediately after the gun discharged, the defendant said, “Oh my God, what have I done, I didn’t mean to do it,” and ran from the scene. He turned himself in to the police the following day and handed over the weapon used in the crime.

The defendant’s claim that the trial court improperly instructed the jury that it had to be unanimous in its verdict on a greater offense before it could consider a lesser offense is dispositive of this appeal.

The issue here is whether a trial court should instruct the jury either (1) that it must unanimously find the defendant not guilty of the greater offense before it may consider a lesser included offense (acquittal first instruction), or (2) that, if it is unable to agree unanimously that the defendant is guilty of the greater offense, it may then consider a lesser included offense (reasonable efforts instruction). The defendant requested a reasonable efforts instruction but the trial court gave an acquittal first instruction.

The state argues that this issue was decided in State v. Stankowski, 184 Conn. 121, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). We do not agree that Stankowski decided this issue. None of the issues raised in the Stankowski appeal involved the proper jury instruction for consideration of a lesser included offense.¹ The state, however, appears to interpret the Supreme Court’s quotation of the jury charge at issue in Stankowski as “implicit approval of the charge.”

If Stankowski implicitly approved the acquittal first instruction, there is nothing for this court to consider and any further discussion is unwarranted. It is well established that it is not our function as an intermediate appellate court to overrule Supreme Court authority. D ’Arcy v. Shugrue, 5 Conn. App. 12, 29, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). We, however, do not agree with the state that Stankowski declares the law, even by implication, on this subject.

In Stankowski, the court merely quoted the jury charge at issue in toto in order to address the challenge to the Chip Smith charge. Appellate opinions serve as authority for only those issues actually decided by the court. State v. Darwin, 161 Conn. 413, 421, 288 A.2d 422 (1971). In State v. DellaCamera, 166 Conn. 557, 353 A.2d 750 (1974), our Supreme Court was faced with a similar situation involving implicit approval of General Statutes § 54-86b. In that case, the court enunciated, “that a case or a series of cases which merely mention or apply a statute without questioning its validity cannot serve as binding precedent on that issue.” (Emphasis added.) Id., 560. Although DellaCamera involved the implicit approval of a statute, the reasoning behind the court’s finding that that precedent had not been established is directly applicable to this case. Because our Supreme Court in Stankowski did not consider whether the jury charge was proper insofar as it may have touched on the procedure to be followed by the jury in reaching the lesser included offense, that issue remains one of first impression in this state.

A survey of the cases discloses that other jurisdictions are divided on the subject, some requiring the acquittal first instruction,² and others mandating the reasonable efforts instruction.³ Good arguments exist for either instruction and we would be faced with a Scylla and Charybdis choice were it not for the existence of a third option created in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978).

Following a thorough discussion of both instructions, the Second Circuit Court of Appeals articulated that “[w]ith the opposing considerations thus balanced, we cannot say that either form of instruction is wrong as a matter of law. The court may give the one that it prefers if the defendant expresses no choice. If he does, the court should give the form of instruction which the defendant seasonably elects. It is his liberty that is at stake . . . .” Id. Further, other federal jurisdictions have adopted this optional approach.⁴

This approach appeals to us because it allows the defendant to gamble everything on the greater charge, hoping for an acquittal or at least a hung jury, or it allows the defendant, at his option, to hedge his bet by gambling that the jury, as a result of a compromised verdict, may find him guilty of a lesser charge. Because it is the defendant’s liberty that is involved, we agree with the court in Tsanas that he should be allowed to make the choice. If the defendant fails to make a choice, however, the court may then give whichever instruction it feels appropriate under the circumstances because neither is wrong as a matter of law. Id.

There are many advantages to the approach sanctioned in Tsanas. First, this approach may avoid many inherent problems of the acquittal first instruction. One such problem is the enhanced risk of a hung jury. If the jury is unable to reach a unanimous verdict on the greater offense without being allowed to consider the lesser included offenses, the court is forced to declare a mistrial. “Because the jury cannot discuss lesser included offenses until agreeing to acquit on the charged offense, jurors cannot rectify substantial disagreement by compromising on a lesser offense composed of elements not disputed by the defendant or by the jurors. These restraints on compromise discussions thus fail to ameliorate the hung jury problem.” M. Craig, “Improving Jury Deliberations: A Recc/nsideration of Lesser Included Offense Instructions,” 16 U. Mich. J.L. Ref. 561, 568 (1983). Thus, by giving the defendant the option to request either instruction, in those cases in which the reasonable efforts instruction is chosen, a hung jury is less likely to occur.

Second, the optional approach espoused by the court in Tsanas further removes the very real danger that “[i]f the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge.” Id. Because the optional approach gives the defendant the choice of which instruction he or she prefers, the defendant is afforded the fullest possible protection and fairness. Such protection is both warranted and mandated by our system of jurisprudence which is founded on the interests of fair trials and just judgments. As stated in Tsanas, “[i]t is [the defendant’s] liberty that is at stake, and the worst that can happen to the Government under the less rigorous instruction is his readier conviction for a lesser rather than a greater crime.” Id. Furthermore, the optional approach safeguards the criminal defendant’s valued right to have his trial completed by a particular tribunal. See United States v. Jorn, 400 U.S. 470, 486, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); State v. Van Sant, 198 Conn. 369, 376, 503 A.2d 557 (1986).

Additionally, all of the reasons that favor resolution of criminal charges in a single prosecution lend further support for the optional approach. If the defendant elects the reasonable efforts instruction, exposure to retrials can be avoided, increasingly scarce judicial resources may be most effectively utilized, and the emotional trauma of compelling the defendant to live in a continued state of anxiety and insecurity is avoided. See Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). The only disadvantage to the state is loss of the greater charge, not the whole conviction. This disadvantage, however, is greatly outweighed by the advantage that both the state and the defendant obtain by having the matter resolved by a jury expressly chosen to resolve the matter.

Although we favor the reasonable efforts instruction and would like to see its adoption in Connecticut, we cannot conclude that it is mandated by law. Indeed, since neither the reasonable efforts nor acquittal first instructions are wrong as a matter of law, we believe the better reasoned approach is the Tsanas option which allows the defendant to choose the instruction to be given. This approach serves both fairness and justice. In the present case, the defendant has fulfilled the Tsanas requirement of requesting a particular instruction (i.e., reasonable efforts) and he should be given the benefit of the instruction he has elected. “In the interests of justice, we have the power to remand a case for further proceedings even in the absence of reversible error by the trial court.” In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 717, 501 A.2d 377 (1985). This is an appropriate case for such a remand.

We disagree with the state’s contention that because the defendant was not convicted of murder but of manslaughter in the first degree, he was not prejudiced by the acquittal first instruction, which deprived the jury of considering manslaughter in the second degree. Our case law provides that if a defendant is convicted of the greater offense, the failure to give proper instructions on lesser offenses constitutes reversible error. State v. Hall, 213 Conn. 579, 588-89, 569 A.2d 534 (1990); State v. Monte, 131 Conn. 134, 136-37, 38 A.2d 434 (1944). Giving instructions on the lesser offenses, however, is an empty gesture if the same instruction sets up a bar to the jury considering the lesser offense. The effect of the acquittal first instruction that the jury could not consider a lesser offense unless it unanimously agreed on an acquittal of the greater offense, does not comport with the rationale of Monte. “The jury is . . . a very practical means of securing justice. A verdict must in the end speak a conclusion to which each individual juryman gives his conscientious assent. It may not, however, represent the original views of some members, but may be the result of an open-minded discussion and an honest weighing of the opinion of others, in the consciousness that one should not be too sure of a personal judgment in which others who have heard the same evidence and have an equal desire to arrive at the truth do not concur. ... In the effort of a jury to reach a verdict with which each member can conscientiously agree, the situation presented where the alternative is between finding a defendant guilty as charged or not guilty may be quite different from one where, under the charge of the court, they have the further choice of finding him guilty of some lesser offense embraced within the information. From the standpoint of the actual process by which juries arrive at verdicts, a failure to submit to them the lesser offense as a permissible basis for their verdict may work a very serious harm to the defendant.” (Citations omitted.) State v. Monte, supra.

The acquittal first instruction given in this case deprived the defendant of having the jury consider manslaughter in the second degree just as effectively as if the court had declined to instruct on that charge. Because the trial court required that the jury overcome a preliminary hurdle — a unanimous acquittal on manslaughter in the first degree before it could consider the lesser included offense of manslaughter in the second degree — it deprived the defendant of his right to have the jury consider this lesser included offense.

The dissenting opinions imply that the procedure for receiving a criminal jury verdict is uniform throughout the state. We do not agree; nor is it relevant to the issue before us. The proper jury instruction will be determined by the law and, if necessary, the procedure for receiving a jury verdict will be modified to conform to the law, not vice versa.

Because our disposition of the appeal on the lesser included offense instruction requires a retrial, we do not reach the defendant’s claim concerning the constitutionality of the manslaughter in the first degree statute. On remand the reasonable efforts jury instruction should be given if it is again requested by the defendant.

The judgment is reversed and the case is remanded for a new trial.

In this opinion Daly, Norcott and Landau, Js., concurred.

1 The claims raised in State v. Stankowski, 184 Conn. 121, 439 A.2d 918 (1981), were that the trial court improperly (1) denied his motions for judgment of acquittal, (2) admitted statements made by him while he was in police custody, (3) excluded the testimony of a child witness, (4) gave the Chip Smith charge, (5) charged the petit jury on the element of intent, (6) charged the grand jury on the element of intent, and (7) denied his post-trial motion for a new trial based on juror misconduct.

2 Among the decisions that have followed the acquittal first instruction in either its pure or hybrid forms are: Whiteaker v. State, 808 P.2d 270, 274 (Alaska App. 1991); Dresnek v. State, 697 P.2d 1059, 1064 (Alaska App. 1986); State v. Hernandez, 167 Ariz. 236, 240-41, 805 P.2d 1057 (1990); State v. Staatz, 159 Ariz. 411, 416-17, 768 P.2d 143 (1988); State v. Wussler, 139 Ariz. 428, 429-30, 679 P.2d 74 (1984); People v. Mickey, 54 Cal. 3d 612, 672-73, 818 P.2d 84, 286 Cal. Rptr. 801 (1991); People v. Nicolaus, 54 Cal. 3d 551, 580, 817 P.2d 893, 286 Cal. Rptr. 628 (1991); People v. Kurtzman, 46 Cal. 3d 322, 324-25, 758 P.2d 572, 250 Cal. Rptr. 244 (1988); Middlebrooks v. State, 156 Ga. App. 319, 320, 274 S.E.2d 643 (1980); Lamar v. State, 243 Ga. 401, 403, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979); State v. Van Dyken, 242 Mont. 415, 791 P.2d 1350, cert. denied, 498 U.S. 920, 111 S. Ct. 297, 112 L. Ed. 2d 251 (1990); People v. Boettcher, 69 N.Y.2d 174, 181-84, 505 N.E.2d 594, 513 N.Y.S.2d 83 (1987); State v. McNeal, 95 Wis. 2d 63, 66-68, 288 N.W.2d 874 (1980); Dillon v. State, 137 Wis. 655, 667-68, 119 N.W. 352 (1909).

3 Among the decisions that have followed the reasonable efforts instruction in either its pure or hybrid forms are; People v. McGregor, 635 P.2d 912, 914 (Colo. App. 1981); State v. Yamashira, 8 Hawaii App. 595, 817 P.2d 123 (1991); State v. Ferriera, 8 Hawaii App. 1, 791 P.2d 407 (1990); State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982); People v. Handley, 415 Mich. 356, 358-60, 329 N.W.2d 710 (1982); State v. Thomas, 401 Ohio St. 3d 213, 218-20, 533 N.E.2d 286 (1988), cert. denied, 493 U.S. 826, 110 S. Ct. 89, 107 L. Ed. 2d 54 (1989); Tarwater v. Cupp, 304 Or. 639, 645, 748 P.2d 125 (1988); State v. Allen, 301 Or. 35, 38-40, 717 P.2d 1178 (1986); State v. Labanowski, 117 Wash. 2d 405, 816 P.2d 26 (1991).

4 Among the decisions from circuit courts that have adopted the optional approach are: Wright v. United States, 588 A.2d 260, 262 (D.C. App. 1991); United States v. Jackson, 726 F.2d 1466, 1469-70 (9th Cir. 1984); Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir. 1980); Catches v. United States, 582 F.2d 453, 459 (8th Cir. 1978).