Coplaw Update

September - 2007

 

 

Academy Times

 

STATE OF CONNECTICUT  v.  SCOTT SMITH

(AC 21991)

October 22, 2002

To be reasonable, force has to be designed to accomplish a legitimate objective efficiently

 Below are direct excerpts from the cited case involving the on-duty use of deadly force by a peace officer. This case established the “state of mind” test for the use of force (deadly or non-deadly) by a “reasonable officer”.

 Connecticut General Statutes '53a-55 and '53a-55a.

 General Statutes ' 53a-55 (a) provides in relevant part: ‘‘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-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 conclude that in excluding certain evidence at trial, the court deprived the defendant of his right to present a defense.

 First, the defendant argues that the state failed to prove, beyond a reasonable doubt, one of the essential elements of the crime of manslaughter in the first degree with a firearm. Second, the defendant argues that the state failed to disprove his theory of justification, in this case, self-defense pursuant to General Statutes ' 53a-22.

 To obtain a manslaughter conviction under '' 53a-55 (a) (1) and 53a-55a, the state must prove that the defendant, (1) with the intent to cause serious physical injury to another person, (2) caused the death of such person or a third person (3) using, or threatening to use by displaying or representing by his words or conduct, that he possesses a firearm. ‘‘The intent to cause serious physical injury required for a conviction of manslaughter in the first degree under ' 53a-55 (a) (1), by definition, required a jury’s finding that the defendant caused a physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of a bodily organ.’’

 The defendant concedes that ‘‘[he] caused the death of [the victim] and that he did so by use of a firearm.’’ The defendant does dispute, however, his mental state at the moment he fired the single fatal shot into the victim’s back.

 ‘‘A person’s intent is to be inferred from his conduct and the surrounding circumstances and is an issue for the [trier of fact] to decide.’’ State v. Nosik, 245 Conn. 196, 208, 715 A.2d 673, cert. denied, 525 U.S. 1020, 119 S. Ct. 547, 142 L. Ed. 455 (1998). ‘‘[A] factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.’’ State v. James, supra, 54 Conn. App. 31.

 ‘‘Because direct evidence of the accused’s state of mind is rarely available, intent is often inferred from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.’’ State v. Sanders, 54 Conn. App. 732, 738, 738 A.2d 674, cert. denied, 251 Conn. 913, 739 A.2d 1250 (1999), citing State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). A person’s ‘belief,’ like ‘intent,’ has always been determined by a jury by listening to the testimony of the defendant . . . and by evaluating the circumstances surrounding the incident as presented in other testimony and exhibits and, therefrom, determine what his belief or intent was.

 We conclude that the jury reasonably could have found that the defendant intended to cause the victim’s death. …we conclude that the jury reasonably could have concluded that the cumulative force of the evidence established the defendant’s intent to cause the victim serious physical injury beyond a reasonable doubt.

 The defendant, citing his trial testimony, concedes that he ‘‘fired the shot to disable [the victim] . . . .’’ He further concedes that ‘‘it is certainly possible, and maybe even probable, that the defendant’s ‘conscious objective’ was to [cause a serious physical injury].’’

  Connecticut case law clearly permits a jury to infer intent based solely on the undisputed facts of the case, let alone other testimony and evidence that the parties dispute. See State v. Sanders, supra, 54 Conn. App. 739 (reasonable to infer intent to cause serious physical injury to person where defendant fired gun at that person); State v. Toczko, 23 Conn. App. 502, 509, 582 A.2d 769 (1990).

A police officer is justified in using deadly physical force under the relevant self-defense statute, ' 53a-22,4 only when (1) he reasonably believes such force to be necessary (2) to defend himself or a third person from the use or imminent use of deadly physical force.

 The ‘‘subjective-objective,’’ test is used in evaluating self-defense claims under General Statutes ' 53a-19. See State v. Prioleau, 235 Conn. 274, 286, 664 A.2d 743 (1995). We agree that the reasonableness of the defendant’s belief under ' 53a-22 should be evaluated pursuant to the subjective-objective formulation. Under that test, the jury must first determine whether, on the basis of all the evidence, the defendant in fact honestly believed that deadly force, rather than some lesser degree of force, was necessary to repel the victim’s alleged attack. See id. If the jury determines that the defendant honestly believed that deadly force was necessary, it then turns to the second, or ‘‘objective,’’ part of the test. Here, the jury’s inquiry requires it to determine whether the defendant’s honest belief was reasonable.5 See id., 287. The defendant maintains that the state failed to introduce sufficient evidence to disprove beyond a reasonable doubt the elements of self-defense as set forth in ' 53a-22.

 ‘‘Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.’’ State v. Billie, 250 Conn. 172, 180, 738 A.2d 586 (1999).

 In determining whether expert testimony on the use of force by a police officer is properly admissible under the appropriate standard, we note that ‘‘[a]s a general proposition, the ‘objective reasonableness’ standard may be comprehensible to a lay juror. On the other hand, any ‘objective’ test implies the existence of a standard of conduct, and, where the standard is not

defined by the generic—a reasonable person—but rather by the specific—a reasonable officer—it is more likely that [federal rule of evidence] 702’s line between common and specialized knowledge has been crossed.’’ Kopf v. Skyrm, 993 F.2d 374, 378 (4th Cir. 1993) (analyzing plaintiff’s claim that court improperly excluded expert testimony concerning defendant’s use of nondeadly force in effecting arrest). In Kopf, the United States Court of Appeals for the Fourth Circuit stated that ‘‘[w]here force is reduced to its most primitive form—the bare hands—expert testimony might not be helpful. Add handcuffs, a gun, a slapjack, [M]ace, or some other tool, and the jury may start to ask itself: what is [M]ace? what is an officer’s training on using a gun? how much damage can a slapjack do? Answering these questions may often be assisted by expert testimony.’’ Id., 379. We find that reasoning persuasive in the case at hand.

 Two statutes, '' 53a-19 and 53a-22, authorize the use of deadly force in self-defense. Section 53a-19, the civilian, or nonpeace officer self-defense statute, is entitled ‘‘[u]se of physical force in defense of person.’’ It provides in relevant part for the use of deadly force in self-defense, with several relevant exceptions that we note, as follows: ‘‘[A] person is justified in using . . . deadly physical force [only if] 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.’’ General Statutes ' 53a-19 (a).

 The use of deadly force by persons other than peace officers is specifically proscribed in other subsections of ' 53a-19. Subsection (b) provides: ‘‘Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he 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 is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace office or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by urrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.’’

 Subsection (c) of ' 53a-19 provides: ‘‘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 notwithstanding 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.’’

 Section ' 53a-22, entitled ‘‘[u]se of physical force in making arrest or preventing an escape,’’ applies to peace officers. It provides in relevant part: ‘‘A  peace officer . . . is justified in using deadly physical force upon another person [to effectuate an arrest or to prevent an escape, or to defend himself or a third person from the use or imminent use of physical force while doing so] only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force; or (2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force.’’ General Statutes ' 53a-22 (c).

 We conclude that the test for evaluating self-defense claims pursuant to ' 53a-22 is a subjective-objective test. The jury is required, first, to determine whether the defendant honestly believed that the use of deadly force was necessary in the circumstances. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable police officer in the defendant’s circumstances. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (evaluating reasonableness of police officer’s belief that deadly force justified in context of fourth amendment excessive use of force claims, stating that ‘‘[t]he [objective] reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight’’); Weyel v. Catania, 52 Conn. App. 292, 296, 728 A.2d 512 (all claims that law enforcement officers have used excessive force in the course of an arrest, whether deadly force or not, should be analyzed under the reasonableness standard of the fourth amendment), cert. denied, 248 Conn. 922, 733 A.2d 846 (1999).12

 Allard’s testimony regarding the training that the defendant received on the use of deadly force was relevant to the defense. It did not invade the province of the jury on the ultimate issue of fact. Rather, it would have permitted the defendant to establish his defense by assisting the jury in evaluating whether his beliefs did in fact comport with the standard of a reasonable peace officer.

 As discussed in part II, the test for determining whether a police officer’s use of deadly force was reasonable is to be judged according to the subjective/objective formulation used in evaluating self-defense claims under ' 53a-19. With respect to the objective part of the test, however, the reasonableness is to be judged from the perspective of a reasonable police officer.

 FN4 General Statutes ' 53a-22, entitled ‘‘[u]se of physical force in making arrest or preventing escape,’’ provides in relevant part:

‘‘(a) For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable

the use of physical force to make an arrest or to prevent an escape from custody. A peace officer . . . who is effecting an arrest pursuant to a warrant or preventing an escape from custody is justified in using the physical force prescribed in subsections (b) and (c) of this section unless such warrant is invalid and is known by such officer to be invalid.

‘‘(b) Except as provided in subsection (a) of this section, a peace officer . . . is justified in using physical force upon another person when and to the extent that he reasonably believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he reasonably believes to have committed an offense, unless he knows that the arrest or

custody is unauthorized; or (2) defend himself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape.

‘‘(c) A peace officer . . . is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force; or (2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force. . . .’’

 FN5 The objective part of the test under General Statutes ' 53a-19 requires the jury to measure the defendant’s honest belief against the standard of a reasonable person in the defendant’s circumstances. State v. Prioleau, 235 Conn. 287. As we will discuss, we agree with the defendant that in addressing the objective part of the test under General Statutes ' 53a-22, however, the standard is that of a reasonable peace officer. As we will discuss, we conclude that the evidence adduced at trial, when viewed in a light most favorable to sustaining the jury’s verdict, was sufficient to disprove the elements of ' 53a-22 even under the ‘‘reasonable peace officer’’ standard. We note, however, that at the new trial, the defendant may introduce additional evidence supporting his claim that he was justified in using deadly force according to the standard articulated in this opinion. Accordingly, we express no opinion as to whether the state’s evidence will be sufficient to disprove the defendant’s justification defense at that time.

 FN8 The sixth amendment to the United States constitution provides in relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.’’

 FN9 The constitution of Connecticut, article first, ' 8, provides in relevant part: ‘‘In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf . . . and in all prosecutions . . . to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .’’

 Additional case law cites from author:

 In 1984, the Connecticut Supreme Court articulated the test for determining the degree of force warranted in a given case. Whether or not a person was justified in using force to protect his person or property is a question of fact that focuses on what the person asserting the defense reasonably believed under the circumstances (State v. DeJesus, 194 Conn. 376, 389 (1984)). The test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the defendant's perspective; this is the subjective component. The jury must then decide whether the defendant's belief was reasonable (DeJesus at 389 n. 13).

“…the law requires that the officers belief needs only to be reasonable, and not necessarily correct…” Jonathan C. Benedict State’s Attorney Judicial District of Fairfield, Connecticut November 21, 2006 Source : C.G.S. 51-277a http://www.ct.gov/csao/cwp/view.asp?A=1802&Q=328338

 There is no “Magical on/off Switch”...Scott v Harris

...the law requires that the officers belief needs only to be reasonable, and not necessarily correct...Jonathan C. Benedict - State’s Attorney - Judicial District of Fairfield, Connecticut - November 21, 2006

Editor's Comment: Check your "dimmer switch" during training! Not only must the officer's belief in the type of threat facing him/her have been reasonable, but, under the wording of the statute (CGS 53a-22), the degree of force used in response must be evaluated for reasonableness as well.

Reginald F. Allard, Jr.

13thjuror, LLC

www.expertcop.com; www.13thjuror.com

13thjuror@cox.net; coplaw@13thjuror.com

 

 

 


Reginald F. Allard, Jr.

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