In accordance with these principles, it is well established that evidence of the criminal convictions of a victim that predate the incident are admissible if they meet the aforementioned conditions. See State v. Abdalaziz , 248 Conn. 430, 450–53, 729 A.2d 725 (1999) (concluding that it was proper exercise of discretion to admit only some convictions); State v. Carter , supra, 228 Conn. at 428–29, 636 A.2d 821 (concluding that it was harmful error to exclude convictions, particularly when there were no other witnesses to homicide). The question before us is whether a victim's subsequent convictions could be admitted as evidence that the victim initiated the confrontation and that the defendant was not the initial aggressor, if such convictions also meet these conditions.
(Internal quotation marks omitted.) State v. Abdalaziz, 248 Conn. 430, 434-35, 729 A.2d 725 (1999). As the Supreme Court has commented recently: "It is well settled that a defendant is entitled, under certain circumstances, to a jury instruction on lesser included offenses."
Indeed, they are approved, and even mandated, in many states. See, e.g., State v. Abdalaziz, 248 Conn. 430, 729 A.2d 725, 728 (1999); State v. Gagnon, 589 N.W.2d 560, 565-66 (N.D. 1999); State v. Mann, 959 S.W.2d 503, 521 (Tenn. 1998); State v. Taylor, 141 N.H. 89, 677 A.2d 1093, 1097 (1996); see generally State v. Daulton, 518 N.W.2d 719, 721 (N.D. 1994) and cases cited therein. On these facts, where Petitioner's only claim is that his trial counsel failed to object to a jury instruction that was approved under state law, he cannot show either cause for failing to preserve what would have been a meritless objection, or that his counsel's failure to preserve that objection prejudiced him in any way.
Furthermore, to the extent that use of the vacatur approach produces any discord between vacating a judgment, generally, and vacating a judgment for the conviction of a lesser included offense, specifically, we are persuaded that this putative cost is worth the benefit accrued by realigning our law with previously existing precedent and the current federal approach. We additionally note that our overruling of Chicano 's remedy is consistent with another principle articulated by this court and reiterated since Chicano was decided, in State v. Salgado, 257 Conn. 394, 406, 778 A.2d 24 (2001), that “ ‘[a] defendant can be found guilty either of the greater offense or the lesser offense, but not both.’ State v. Abdalaziz, [248 Conn. 430, 435, 729 A.2d 725 (1999) ]; see also State v. Breton, 235 Conn. 206, 215 n. 9, 663 A.2d 1026 (1995); State v. Bagley, 35 Conn.App. 138, 150, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994) (‘a unanimous determination of guilty [on a greater offense] precludes the jury from proceeding to any lesser included offense’).” (Emphasis added.)
The defendant relies on Sawyer to support his assertion that the jury could have found him guilty either of the greater offense of intentional murder or the lesser offense of intentional manslaughter in the first degree, but not both. See also State v. Abdalaziz, 248 Conn. 430, 435, 729 A.2d 725 (1999) ("a defendant can be found guilty either of the greater offense or the lesser offense, but not both"). We agree with the defendant that the trial court improperly directed the jury to find the defendant guilty of intentional manslaughter in the first degree in the event that it found him guilty of intentional murder.
We conclude today, however, that Sawyer further mandates that a trial court declare a mistrial on a lesser included offense if the court has declared a mistrial on the greater offense because the jury could not reach a unanimous verdict on the greater offense. See State v. Abdalaziz, 248 Conn. 430, 436, 729 A.2d 725 (1999) (stating acquittal on greater offense is "condition precedent" to deliberation of lesser included charges). The principles that served to support our holding in Sawyer are equally applicable to the present case, wherein the state charged both a greater offense and a lesser included offense in separate counts of the information.
State v. Abdalaziz, 696 A.2d 1310, 1316 (Conn.App.Ct. 1997) ("The majority view is that imperfect self-defense applies to murder and homicide charges."), aff'd, 729 A.2d 725 (Conn. 1999);Richmond v. State, 623 A.2d 630, 632 (Md. 1993) (finding "the concept of mitigation has universally and historically been limited to offenses involving criminal homicide, or the `shadow' or inchoate forms of those offenses," and that "imperfect self-defense negates only that species of malice applicable to murder"); Bryant v. State, 83 Md. App. 237, 574 A.2d 29, 32-33 (Md.Ct.Spec.App. 1990) ("Imperfect self-defense is an aspect of homicide law and nothing more. Outside of homicide law, the concept doesn't exist. . . . With respect to all other crimes, the defendant is either guilty or not guilty. He either acted in self-defense or he did not. There is no `in between.'");People v. Heflin, 456 N.W.2d 10, 22 n. 22 (Mich. 1990) ("[T]he majority of jurisdictions that recognize `imperfect self-defense' use it as a method of negating the element of malice in a murder charge. . . . [I]n these jurisdictions, `imperfect self-defense' mitigates murder to voluntary manslaughter."); Cynthia K.Y.
" (Internal quotation marks omitted.) State v. Abdalaziz, 248 Conn. 430, 435-36, 729 A.2d 725 (1999). Practice Book § 42-29 provides: "Verdict; Return of Verdict
The second prong is met because assault in the third degree is a lesser offense included within the crime of assault in the first degree. State v. Abdalaziz, 45 Conn. App. 591, 598, 696 A.2d 1310 (1997), aff'd, 248 Conn. 430, 729 A.2d 725 (1999). Having determined that the defendant met the first two prongs of Whistnant, we now address the third and fourth prongs.
As charged in the informations, each count of assault in the third degree was a lesser offense included within the counts of assault in the second degree. See State v. Abdalaziz, 45 Conn. App. 591, 597, 696 A.2d 1310 (1997), aff'd, 248 Conn. 430, 729 A.2d 725 (1999). Our courts repeatedly have held that lesser included offenses are the same offenses for double jeopardy purposes.