State v. Byrd

Page 818

641 A.2d 818

34 Conn.App. 368

STATE of Connecticut v. Ralph D. BYRD.

No. 11365.

Appellate Court of Connecticut.

Argued Jan. 14, 1994.

Decided May 17, 1994.

Certification Granted Limited to the

Following Issues July 14, 1994.

Louis S. Avitabile, Sp. Public Defender, with whom, on the brief, was Meryl Anne Spat, for appellant (defendant).

Margaret Gaffney Radionovas, Asst. State's Atty., with whom, on the brief, were John A. Connolly, State's Atty., and Robert C. Brunetti, Asst. State's Atty., for appellee (state).

Before FOTI, FREDERICK A. FREEDMAN and SPEAR, JJ.

FOTI, Judge.

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)(1). ¹ The defendant claims that the trial court improperly (1) failed to instruct the jury on the motivation of the state's witness as a complaining witness and a possibly culpable party, (2) instructed the jury on the duty to retreat, and (3) admitted into evidence the defendant's statement to the police. He also alleges that there was insufficient evidence to allow the jury to find his defense of self-defense disproved beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. The defendant, the victim, who was the defendant's brother, and Mark Griffin were involved in selling narcotics. On April 4, 1991, after a meeting with their drug supplier, Kojak, the defendant brought forty vials of crack cocaine to the apartment that the three men shared. There, the defendant drank and played cards with Griffin and the victim and they used some of the crack cocaine. During the card game, the brothers argued about how they should share the drugs.

Later, Kojak stopped by the apartment to collect money from Griffin. The victim told Kojak that he wanted to receive his own drugs to sell. Shortly after Kojak left, the defendant and the victim had another argument, which ended with the victim grabbing the plastic bag containing the crack cocaine, putting it into his pocket, and walking toward the back door. The defendant followed and asked for the return of the drugs, reminding the victim that he was responsible to Kojak for them. The victim said that the drugs were his compensation for taking all the risks in making the drug sales.

The defendant first blocked the back door, and then blocked the front door when the victim tried to exit by that route. On the way to the front door, the defendant picked up a knife from the kitchen counter. He grabbed the victim with one hand and poked and jabbed at the victim's stomach and chest with the knife. The victim backed away from the defendant into the living room. The defendant followed and, as the two struggled violently, the defendant told the victim to let him go or he would stab the victim in the back. The defendant stabbed the victim in the back, and when the victim released him the defendant ran out the back door.

Later, the defendant turned himself in to the police. In the meantime, the victim had been pronounced dead. The cause of death was determined to be a five to six inch deep stab wound to the back. The victim also had three nonlethal stab wounds to the front of his body. The defendant admitted on two occasions, to persons other than the police, that he had either stabbed or killed his brother.

I

A

The defendant first claims that the trial court improperly failed to charge as requested on Griffin's motivation as a complaining witness and possibly culpable party. ² The trial court's charge neither characterized Griffin as a complaining witness, nor suggested that Griffin himself could have been subject to prosecution depending only on the veracity of his account of the crime. ³

Griffin, the state's chief witness, testified and was cross-examined at length. He testified that the defendant blocked the victim's exit, and that the victim forcibly attempted to remove the defendant from the doorway. He further indicated that when the defendant jabbed the knife at the victim, the victim grabbed the defendant, placed him in a headlock and began banging the defendant's head against the wall. When the struggle ended and the victim let the defendant go, the defendant ran out of the apartment, and the victim sat down on the couch and gave Griffin the drugs from his pocket. Griffin testified that the victim said that he was all right and that he just wanted to rest. Returning later to check on the victim, Griffin found him unresponsive and he called 911. Griffin denied stabbing the victim.

The defendant argues that the interest, motive and credibility of both the defendant and Griffin were the heart of the case. If the defendant did not stab the victim Griffin was the only other person who could have. The jury was specifically instructed that the defendant's interest in the outcome of the case should be factored into his credibility. The defendant argues that the trial court should have given a similar charge directed at Griffin. We do not agree.

In order to be entitled to a charge regarding the complainant's possible motive to avoid criminal prosecution, the defendant must show that the witness is the complaining witness and that there was evidence to support the assertion that the complaining witness was the culpable party. State v. Keiser, 196 Conn. 122, 133, 491 A.2d 382 (1985); State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980).

Unquestionably, Griffin was a witness for the state. That alone, however, does not qualify him as a "complaining witness." ⁴ Griffin was not a victim, nor in any other way does he qualify as a complaining witness. See State v. Cooper, supra, 182 Conn. at 212 n. 5, 438 A.2d 418 (a criminal defendant is not entitled to an instruction singling out any state's witness regarding his possible motive for falsifying testimony, but only as to a complaining witness who could himself be subject to prosecution); see also State v. Smith, 16 Conn.App. 223, 229, 547 A.2d 102 (1988) (where witness was not the complaining witness, the court did not abuse its discretion in refusing to give special cautionary instruction as to motive).

Further, the evidence introduced at trial was clearly insufficient to implicate Griffin as a culpable party. To be sufficient, evidence must directly connect the third party to the crime with which the defendant is charged. State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987). It is not enough to show that the party had a motive to commit the crime; State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974); nor is it enough to raise a mere suspicion that he may have committed the crime. ⁵ State v. Hernandez, 224 Conn. 196, 202, 618 A.2d 494 (1992). On the basis of the facts presented, the court properly refused to instruct as requested by the defendant. ⁶

B

The defendant also claims that the trial court improperly instructed the jury on the duty to retreat. The defendant recognizes the statutory duty to retreat and does not claim a statutory exception. General Statutes § 53a-19(b)(1). Rather, the defendant, citing State v. Moore, 31 Conn. 479 (1863), and relying on State v. Havican, 213 Conn. 593, 569 A.2d 1089 (1990), ⁷ claims that the duty to retreat "doesn't apply in this type of situation because, if it is during the course of a robbery, the victim of the robbery doesn't have to retreat." We do not agree.

"When reviewing the court's instruction, our role is to determine whether, taken as a whole, [it] fairly and adequately present[s] the case to a jury in such a way that injustice is not done to either party under the established rules of law." (Internal quotation marks omitted.) State v. Lee, 32 Conn.App. 84, 104, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993).

The testimony of both the defendant and Griffin establishes that the victim took drugs that were in the defendant's possession. Although at common law the victim of a robbery may have had no duty to retreat and could even pursue his adversary to ensure his safety by using deadly force; see State v. Moore, supra, 31 Conn. 479; our statutory scheme requires retreat in lieu of using deadly force, except in certain delineated circumstances. General Statutes § 53a-19. ⁸ "Connecticut is among a minority of jurisdictions ... that has followed the position ... that, before using deadly force in self-defense, an individual must retreat. Retreat is required, however, only if it can be achieved with complete safety. The underlying policy of the duty to retreat is that the protection of human life has a higher place in the scheme of social values than the value that inheres in standing up to an aggression." (Citation omitted.) State v. Anderson, 227 Conn. 518, 530, 631 A.2d 1149 (1993).

"A person is not permitted to use deadly physical force in self-defense just because that person reasonably believed that the victim was attempting to rob that person." State v. Harrison, 32 Conn.App. 687, 694, 631 A.2d 324, cert. denied, 227 Conn. 932, 632 A.2d 708 (1993). "[T]he crux ... is not whether the defendant reasonably believed he was being robbed, but whether [he] reasonably believed that the victim was using or about to use deadly physical force or was inflicting or about to inflict great bodily harm. General Statutes § 53a-19(a)." Id. ⁹

The court instructed on the justifications of defense of property, defense of person, and the duty to retreat. ¹⁰ General Statutes §§ 53a-19 and 53a-21. The court originally instructed that when the "defendant knows that if he surrenders the [disputed] property that the assailant will flee without harming him, then the defendant may ... not use deadly force but should surrender the property." In the supplemental charge, however, the court instructed that if the jury found that the victim was in the process of robbing the defendant using violence and surprise, the defendant could be...