Opinion
(5484)
The defendant, who had been charged with the crime of murder, was convicted of manslaughter in the first degree. On the defendant's appeal to this court, held that because he failed to comply with the rules of practice (852) Concerning requests to charge, the trial court did not err in refusing his request to charge on manslaughter in the second degree as a lesser offense included in the crime of murder.
Argued May 14, 1987
Decision released July 28, 1987
Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford and tried to the jury before Purtill, J.; verdict and judgment of guilty of the lesser included offense of manslaughter in the first degree, from which the defendant appealed to this court. No error.
The appellant filed a motion for reargument which was denied.
Carl D. Eisenman, public defender, for the appellant (defendant).
Susann E. Gill, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas and John M. Massameno, assistant state's attorneys, for the appellee (state).
The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the first degree in violation of General Statutes 53a-55 (a)(1). The defendant claims that the trial court erred (1) in failing to charge on the lesser included offense of manslaughter in the second degree in violation of General Statutes 53a-56 (a)(1); and (2) in denying the defendant's motions for new trial and acquittal.
General Statutes 53a-55 (a)(1) provides: "(a) 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 . . .
General Statutes 53a-56 (a)(1) provides: "(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . ."
The jury could have found the following facts. During the evening of December 20, 1984, the defendant left his residence on Capen Street in Hartford and walked to the grocery store located at the corner of Barbour and Capen Streets. As he was leaving the store, he saw the victim. The victim had been seen in the store between 6:30 and 7 p.m. and was highly intoxicated. The defendant and the victim argued, and the defendant followed the victim to his apartment at 15 Barbour Street where he broke into the apartment leaving the door hanging by a hinge. The defendant struck the victim several times on the head with brass knuckles and stabbed him, causing the victim's death which was estimated to have occurred between 7:20 and 11:20 p.m. The police discovered the body later in the evening and its blood alcohol content was analyzed at .44 percent. A state's witness testified that the defendant had admitted killing the victim. The defendant claimed that he was home at the time of the killing. The defendant was charged with murder in violation of 53a-54a (a) but was convicted of the lesser included offense of manslaughter in the first degree in violation of 53a-55 (a)(1). This appeal ensued.
The defendant's first claim is that the trial court erred in denying his request to charge on the lesser included offense of manslaughter in the second degree in violation of General Statutes 53a-56 (a)(1). The defendant's request was timely filed, and he properly excepted to the court's failure to give the charge. His claim is unavailing, however, as we find this case to be controlled by the decision in State v. Ostroski, 201 Conn. 534, 518 A.2d 915 (1986). "`A proposed instruction on a lesser included offense, like any other proposed jury instruction is not appropriate unless made in compliance with Practice Book 852.' State v. McIntosh, [ 199 Conn. 155, 158, 506 A.2d 104 (1986)]. Section 852 provides in pertinent part: `Requests shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the facts supported by the evidence to which the proposition would apply. . . .' (Emphasis added.)" State v. Ostroski, supra, 557-58.
The defendant has abandoned his claim with respect to the lesser included offense of manslaughter in the first degree in violation of 53a-55 (a)(3).
We note that the defendant has failed to comport with the requirement of Practice Book 3060F (d)(1) (now Practice Book 4065 [d] [1]) that "a verbatim statement of the relevant portions of the charge as requested" be printed in his brief. We have previously noted that it is impossible for us to review such claims absent compliance with the appellate rules of practice. Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 244 n. 4, 522 A.2d 829 (1987). In this case, however, the relevant portions of the request to charge have been excerpted and included in the brief filed by the state, thereby making our review possible.
In the present case, the defendant framed his request as follows: "In accordance with State v. Whistnant, 179 Conn. 576 [ 427 A.2d 414 (1980)], the defendant requests the court to charge on the following lesser included offenses: 1. LESSER INCLUDED OFFENSES: Manslaughter, 1st degree, in violation of Section 53a-55 (a)(1) and 55(a)(3) C.G.S. and Manslaughter 2nd degree, in violation of Section 53a-56 (a)(1) C.G.S."
In this request, like the request in State v. Ostroski, supra, 558, the defendant merely asked the court to instruct the jury that it could consider the lesser included offenses.
"`[A]n "appropriate instruction" under State v. Whistnant, must contain "`a complete statement of the essential facts as would have justified the court in charging in the form requested.' Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925)." State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984).' State v. McIntosh, supra, 160. The defendant's request contains no facts at all. Moreover, although the request cites State v. Whistnant as authority for the proposition stated, we have emphasized in the past that Whistnant by itself does not provide the substantive principles of criminal law which would justify a particular instruction. State v. McIntosh, supra. While this court does not favor unyielding adherence to `rules of procedure where the interests of justice are thereby disserved'; id.; the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. `The minor burden of cooperation imposed by this section is neither unreasonable nor novel.' Id., 161." State v. Ostroski, supra, 558-59. The trial court did not err in refusing the defendant's requests to charge on the elements of General Statutes 53a-56 (a) (1).
The defendant's claim of error regarding the denial of his motions for acquittal and for a new trial relies upon his argument that the lesser included offense instruction was erroneously denied and was available to him due to the disputed and distinct mental elements of the offenses, in accord with State v. Fernandez, 5 Conn. App. 40, 496 A.2d 533 (1985). As the defendant failed to comply with the mandates of the rules of practice in submitting the request to charge, and does not enjoy a constitutional right to such a charge; State v. Ostroski, supra, 557; these claims fall with the determination that the trial court properly denied his request to charge.