author: Norcott, J. Berdon, J.,

text:
    State of Connecticut v. Ernest Francis
    (14550)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      Argued September 23—
    decision released December 14, 1993

      Susan M. Hankins, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, and James E. Thomas, state’s attorney, for the appellee (state).
   Norcott, J.

The defendant, Ernest Francis, after a jury trial, appeals from a judgment of conviction of murder in violation of General Statutes § 53a-54a (a). The trial court sentenced the defendant to a term of fifty years imprisonment. The principal issue raised by the defendant is whether the trial court abused its discretion by precluding him from cross-examining a state’s witness about her probationary status. In addition, the defendant claims that the trial court improperly denied his motion for a judgment of acquittal for insufficiency of evidence and improperly instructed the jury regarding: (1) the element of intent to kill; (2) evidence of a “guilty connection” between the defendant and the crime charged; and (3) the jurors’ duty in returning a verdict. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On March 8,1990, the defendant and the victim were incarcerated at the Hartford community correctional center. The two men became involved in an altercation during which the victim and several other inmates attacked the defendant. During the course of this altercation, the defendant was stabbed in his leg with a shank, a prison term for a homemade weapon. The defendant believed that it was the victim who had stabbed him. Both men were subsequently released from custody.

On August 12, 1990, the defendant and the victim met again. At approximately 4 p.m. on that day, two witnesses, Jennifer Green and Sandra Brown, were on the porch of Brown’s residence at 165 Homestead Avenue in Hartford. At that time, they saw a young man, later determined to be the victim, walking toward them on Homestead Avenue, holding an “ice pop” in his hand. At the same time, two additional witnesses, Victor Lowe and Fred Faucette, were standing on the sidewalk of Homestead Avenue. They also noticed the victim.

All four witnesses then observed a red Mitsubishi automobile drive up Homestead Avenue, pass the victim, stop suddenly, back up and halt near him. The defendant then emerged from the driver’s side of the car and approached the victim. An argument ensued between the two men. This confrontation occurred twenty to forty feet from Lowe and Faucette.

While the defendant and victim exchanged words, the four witnesses observed, from different vantage points, that the defendant held his right hand behind his back. From where they were located, both Green and Brown observed that the defendant’s hand, which was behind his back, was on the handle of a knife. Upon seeing the knife, Brown commented to Green, “He wouldn’t dare do that.”

After further words had been exchanged, the victim agreed to fight the defendant. The victim did not, however, make any physical movement toward the defendant. The defendant then pulled the knife from behind his back and began to make stabbing motions at the victim. One of these stabbing motions cut the victim’s ice pop in half as the victim was retreating.

The victim ran into a nearby yard where he was pursued by the defendant. There, the defendant stabbed the victim in the upper left portion of his chest, causing his death. The defendant then reentered the car and left the scene. He was arrested in Miami, Florida, on August 17, 1990.

The defendant testified on his own behalf, relating a substantially different version of the incident. The defendant testified that, on the date of the homicide, he had been driving a car that his sister had rented. He and two passengers were driving on Homestead Avenue when the rental car was struck by an object. When the defendant got out to inspect the car, he confronted the victim who, he suspected, had thrown the object. Although the defendant did not recognize the victim initially, he soon recalled the jailhouse incident. The two men then began the argument that led to the stabbing. The defendant claimed that he had been “nervous and shaken” during this argument. He also claimed that friends of the victim had approached the two of them. At this point, the defendant reached for a folding knife in his back pocket.

The defendant also testified that when the victim had swung the hand holding the ice pop, juice from the ice pop had blinded him. The defendant further claimed that, during the struggle that ensued, he had swung his knife only once and had not realized that he had struck anything until he had noticed blood on the knife and had seen the victim fall to the ground. He then left the scene and later the state, returned to Connecticut for a short period, and then left the state again, fearing that friends of the victim would kill him.

Other facts will be discussed as they pertain to particular issues in this case.

I

The defendant first claims that the trial court violated his right to confront witnesses under the sixth and fourteenth amendments to the United States constitution by limiting his cross-examination of a state’s witness. Specifically, the defendant argues that the trial court improperly limited his cross-examination of that witness as to her status as a probationer. The state argues that the limitation was proper, and that if error, it was harmless beyond a reasonable doubt. Although we agree with the defendant that the limitation of the cross-examination was improper, we also agree with the state that the error was harmless beyond a reasonable doubt.

The facts relevant to this claim are as follows. The witness in question, Jennifer Green, was one of four witnesses to testify to the defendant’s murder of the victim. At the time she testified, Green was on probation for possession of marijuana, a misdemeanor. She had been placed on probation within one week before observing the defendant stab the victim and giving her statement to the police. During his cross-examination of Green, the defendant sought to question her as to her status as a probationer. The state objected to this question on the ground of relevance. In response, the defendant argued that Green’s probationary status would tend to show bias for the state. The trial court sustained the state’s objection.

“ ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. . . ” (Emphasis in original.) Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 374 (1974); State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982). Under the confrontation clause, the trial court should permit a defendant to expose to the jury “facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, supra, 318; State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). An important function of cross-examination is exposure of a witness’ motivation for testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Although the determination of the scope of cross-examination is within the discretion of the trial court; State v. Moye, 214 Conn. 89, 94, 570 A.2d 209 (1990); “[c]ross-examination to elicit facts tending to show . . . bias . . . is a matter of right and may not be unduly restricted.” (Internal quotation marks omitted.) State v. Santiago, supra. “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) Id.

In this case, the trial court prohibited all inquiry into Green’s potential bias arising out of her probationary status. Although the fact that a witness is on probation does not, invariably, require exposure to the jury; see Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); we conclude, in this instance, that it was improper for the trial court to preclude all inquiry into Green’s probationary status. The nearly contemporaneous occurrence of Green having been placed on probation and giving her statement to the police in connection with this case, taken in conjunction with the facts that Green continued to be on probation when she testified both at the defendant’s probable cause hearing and at his trial, were circumstances that the defendant should have been allowed to explore for bias.

This conclusion, however, does not automatically require reversal of the judgment of the trial court. The trial court’s improper preclusion of inquiry into Green’s probationary status is subject to analysis as harmless error. Delaware v. Van Arsdall, supra, 684. The defendant is not entitled to a new trial if a constitutional error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). To determine if constitutional error is harmless, “[t]he correct inquiry is whether, assuming that the damaging potential of the [precluded] cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, supra; State v. Milner, 206 Conn. 512, 529, 539 A.2d 80 (1988). Whether constitutional error is harmless in a particular case depends upon a number of factors, such as “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Delaware v. Van Arsdall, supra; see State v. Santiago, supra, 333; State v. Milner, supra.

We conclude that the trial court’s limitation of the defendant’s cross-examination of Green was harmless beyond a reasonable doubt. Contrary to the defendant’s contention, Green was not a key witness for the state. Green was one of four witnesses who saw the incident in which the defendant killed the victim. The testimony of the four witnesses did not differ in any material way. The record indicates that witnesses other than Green saw the entire incident, including the stabbing of the victim by the defendant, and testified to that effect. If Green had not testified, the trial record would have been substantially the same.

Moreover, although the court should have permitted the defendant to bring Green’s probationary status to the jury’s attention, her probation was not related to the homicide at issue, nor was it for an offense of a similar type, nor was Green a suspect in the case. Cf. Davis v. Alaska, supra, 310-12. Green did not know either the victim or the defendant. Additionally, the defendant was afforded other opportunities to challenge Green’s credibility during cross-examination for bias.

We conclude that the preclusion of the defendant’s cross-examination of Green as to her probationary status was harmless beyond a reasonable doubt.

II

The defendant next claims that the evidence was insufficient to permit the jury to draw a reasonable inference that he possessed the intent to kill the victim. This argument is without merit.

The standard governing our review of sufficiency of evidence claims is well established. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991).

“ ‘In order to be convicted under our murder statute, the defendant must possess the specific “intent to cause the death” of the victim. General Statutes § 53a-54a. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11).’ ” State v. Montanez, 219 Conn. 16, 20, 592 A.2d 149 (1991). “Ordinarily, intent can only be proved by circumstantial evidence; it may be and usually is inferred from the defendant’s conduct. . . . Intent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Citation omitted; internal quotation marks omitted.) Id. “Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” Id. “The intent of the actor is a question for the trier of fact, and the conclusion drawn by the trier in this regard should stand unless it is an unreasonable one.” State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977).

The state presented evidence at trial that four witnesses observed the initial confrontation in the street, saw the defendant with a knife in his hand and saw the defendant use that knife to make stabbing motions at the victim. Lowe, who described himself as being “very observant” of the events surrounding the stabbing, saw the victim retreat to a nearby yard and saw the defendant pursue the victim and stab him in the chest. Brown testified that she had not seen the actual stabbing, but had seen the defendant’s hand “coming down with the knife,” after which the victim began staggering. Faucette testified that he had seen the defendant make “four or five” motions with the knife, one of which cut the victim’s ice pop in half. Faucette also saw the victim retreat and the defendant pursue him. Several of the witnesses saw the defendant immediately leave the scene in the car in which he had arrived without rendering any assistance to the victim. This evidence was sufficient for the jury to infer that the defendant stabbed the victim with the intent to kill him.

The defendant’s argument ultimately rests on the assertion of an “ice pop defense”: blinded by the juice of the victim’s ice pop, the defendant contends that he swung his knife randomly, and did not intend to stab the victim. The defendant contends that his version of what occurred precluded an inference that he specifically intended to cause the victim’s death. We disagree. The jury could easily have rejected the defendant’s version of the incident and could reasonably have inferred from the evidence presented at trial that the defendant possessed the requisite intent to kill the victim, and could have concluded that the state had proved this element beyond a reasonable doubt.

Ill

The defendant next claims that the trial court improperly instructed the jury regarding the element of intent to kill. Specifically, the defendant contends that the instruction violated his constitutional right to due process by relieving the state of its burden to prove that the defendant intended to cause the victim’s death. The defendant claims that the instruction improperly substituted causation for intent, thereby relieving the state of its burden of proof. Because the defendant failed to raise the claim at trial, he now seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). This claim merits little discussion. The language the defendant challenges is almost identical to language that we recently determined did not warrant reversal in State v. Boles, 223 Conn. 535, 540-42, 613 A.2d 770 (1992). The defendant argues that the present case is factually distinguishable from Boles. We disagree.

If the trial court has given a preliminary instruction on the element of intent, the subsequent use of the language challenged here cannot be viewed in isolation. The instruction neither eliminates the element of intent, nor substitutes causation therefor. Id., 542-43. We reject the defendant’s claim that a difference in the theories of defense used in Boles and in this case distinguishes the latter significantly, and requires a different conclusion herein. In both cases, the instruction required the state to prove the element of intent to satisfy its burden of proving the defendant guilty of murder. There was no constitutional error.

Because this unpreserved claim does not meet the standard required under the second prong of Golding, the defendant may not prevail thereunder.

IV

The defendant next claims that the trial court improperly instructed the jury that it could consider any false statements made by the defendant concerning the crime “as evidence tending to show a guilty connection by the accused with the crime charged.” (Emphasis added.) Because this claim was not preserved at trial, the defendant seeks to prevail under State v. Golding, supra. The defendant argues that the challenged language allowed the jury to consider his false statements as evidence of guilt rather than as evidence of consciousness of guilt. This instruction, the defendant asserts, violated his federal and state constitutional rights by reducing the state's burden of proof and by burdening his right to testify. We disagree.

Recently, we held that an unpreserved claim that the trial court improperly instructed the jury that “such [false] statements often tend to show a guilty connection by the accused with the crime charged” is not of constitutional magnitude, and thus does not meet the second prong of the test set forth in Golding. State v. Adams, 225 Conn. 270, 289-90, 623 A.2d 42 (1993). After reasserting the well established principle that jury instructions are to be considered as a whole rather than critically dissected, we stated “[i]n the present case . . . the language ‘guilty connection’ did not mandate that the jury find that the facts about which the defendant had made false statements were conclusively established. Rather, the instruction as a whole identified a permissive inference of consciousness of guilt that the jury might draw from the defendant’s false statement, an item of circumstantial evidence.” (Citations omitted.) Id., 289. In the present case, considering the charge in its entirety, we conclude that the trial court’s use of the words “guilty connection” was not fatal to the otherwise thorough and proper jury instructions. See State v. Murdick, 23 Conn. App. 692, 702-703, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991). Indeed, the trial court followed the challenged language with a proper instruction on the “consciousness of guilt,” including an appropriate factual reference to the defendant’s explanation of his flight after the crime. We fail to discern any reason to distinguish in this case our resolution of similarly challenged language in State v. Adams, supra.

V

The defendant’s final claim is that the trial court incorrectly instructed the jury as to its duty. He argues that the trial court violated his right to due process under the federal and state constitutions by incorrectly instructing the jury on the presumption of innocence and the state’s burden of proof, as follows:

“The accused justly relies upon you to consider carefully his claims, to consider carefully all of the evidence, and to find him not guilty if the facts and the law require such a verdict. He rightfully expects fair and just treatment from you.
“At the same time, the State of Connecticut and its people look to you as sworn officers of this Court to deal fairly, firmly, honestly and justly, as strong-minded men and women with the interest placed in your hands as an arm of the Court, to aid in upholding the law of the land, and to render a verdict of guilty if the facts and the law require such a verdict.
“It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law gives to every person so charged. But the law is made to protect society and innocent persons, and not to protect guilty ones.”

The defendant failed to object to this language at trial, and thus seeks to prevail under State v. Golding, supra. The defendant’s attack on this jury instruction is twofold. In the first instance, he argues that the language referring to the jury as an “arm of the court” as a part of the trial court’s discussion on conviction alone presents an unbalanced, one-sided, prejudicial instruction. Our recent decision in State v. Walton, 227 Conn. 32, 62-66, 630 A.2d 990 (1993), is dispositive of this claim. In Walton, we held that the identical language: (1) did not raise an issue of constitutional dimension; and (2) even if it were considered to have raised such an issue, taking the instructions as a whole, there was no reasonable possibility that the jury was misled into believing that it would be performing its responsibilities only if it voted to convict. Id., 61-66. The same conclusions apply in this case.

The defendant also challenges the following sentence from the jury instructions: “But the law is made to protect society and innocent persons, and not to protect guilty ones.” The defendant argues that the challenged language undermined the presumption of innocence and diluted the state’s burden of proof. The defendant argues that the language could suggest to some jurors that he was singled out as a person who was actually guilty. This claim invites us to revisit an issue that has been resolved repeatedly by this court.

Identical challenges were recently resolved against defendants in State v. Walton, supra, 66-67, State v. Tucker, 226 Conn. 618, 651-52, 629 A.2d 1067 (1993), and State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992). Our recent line of cases regarding this claim is dispositive. “ ‘Those instructions, and any deviation from the previously approved language of those instructions did not, when viewed in the context of the entire charge, dilute the defendant’s presumption of innocence or lessen the state’s burden of proof . . . .’ ” State v. Stanley, supra, 696.

From a review of the record, we conclude that the court’s charge, when taken in its entirety, was sufficient to inform the jury that the defendant was presumed innocent until the state proved otherwise and that it was the state’s burden to prove him guilty beyond a reasonable doubt. There was no constitutional error in connection with this instruction. Accordingly, the defendant’s claim fails under the third prong of the test set forth in Golding.

The judgment is affirmed.

In this opinion Peters, C. J., Callahan and Borden, Js., concurred.

Berdon, J.,

concurring.

I agree with parts I, II and III of the majority opinion, and I agree that the claim pertaining to the instructions on consciousness of guilt in part IV was not preserved.

I also agree with the result in part V, but disagree specifically with footnote 19 and with the suggestion in footnote 18 that a “balanced” instruction may be given. See State v. Stanley, 223 Conn. 674, 702-703, 613 A.2d 788 (1992) (Berdon, J., dissenting).

       The defendant appeals pursuant to General Statutes § 51-199 (b) (3), which provides: “The following matters shall be taken directly to the supreme court ... an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       General Statutes § 53a-54a provides in relevant part: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

       The sixth amendment to the United States constitution, as applied to the states through the fourteenth amendment in Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065,13 L. Ed. 2d 923 (1965), provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Although the defendant also relies on article first, § 8, of the Connecticut constitution, he has failed to differentiate his state constitutional claim from his federal constitutional claim. Thus, we consider only his sixth amendment claim under the federal constitution. State v. Zarick, 227 Conn 207, 226 n.18, 630 A.2d 565 (1993); State v. Santiago, 224 Conn. 325, 328 n.4, 618 A.2d 32 (1992).

       Specifically, the following question was asked by the defendant: “Okay. All right. Now, Ms. Green, you are on probation for a criminal offense, are you not?”

       The doctrine of harmless error is rooted in the fundamental purpose of our criminal justice system—to convict the guilty and acquit the innocent. “The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U.S. 225, 230 [95 S. Ct. 2160,45 L. Ed. 2d 141] (1975), and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) . . . Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).” (Internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 460, 610 A.2d 598 (1992).

       In this regard, the defendant’s reliance on State v. Santiago, 224 Conn. 325, 618 A.2d 32 (1992), is misplaced. In that case, we held that the trial court abused its discretion by preventing cross-examination of a former police officer as to his current relationship with the Hartford police. Two facts, taken together, required that holding in Santiago. They were: (1) the fact that the witness in question was the key witness for the state, because he was the only disinterested person who saw the altercation and implicated the defendant; and (2) the fact that the witness may have had a relationship with the prosecuting authorities in the criminal case. Id., 332. In the present case, neither fact is present. First, Green was not a key witness: she was one of four witnesses who observed the murder and gave testimony to that effect. Second, there is nothing in the record to suggest that Green had a current relationship with prosecuting authorities in a criminal case. Probation for an unrelated misdemeanor is not such a relationship. Accord State v. Colton, 227 Conn. 231, 630 A.2d 577 (1993).

       The principal defense raised by the defendant at trial was that he did not possess the requisite intent to kill the victim. Other witnesses gave testimony concerning the defendant’s behavior toward the victim immediately prior to the stabbing that was relevant to the issue of intent. Victor Lowe testified to the defendant’s confrontational approach to the victim. Lowe also testified to: (1) admissions by the defendant of his dispute with the victim; (2) the fact that the defendant had his hand behind his back when he approached the victim; (3) the defendant’s pursuit of the victim; and (4) the defendant’s plunging of a knife into the victim’s chest.

       The record indicates that during cross-examination, Green testified that she found the victim attractive, held his hand as the victim was dying and felt sympathy for him.

       The defendant also argues that, at best, the evidence is consistent with a lesser degree of homicide. We note that the trial court instructed the jury on the lesser included offenses of manslaughter in the first degree; General Statutes § 53a-55a (1) and (3); manslaughter in the second degree; General Statutes § 53a-56 (a) (1); and criminally negligent homicide. General Statutes § 53a-58.

       In connection with unpreserved constitutional claims, State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), held that in order to prevail on appeal on a constitutional claim that has not been adequately preserved at trial, the defendant must meet all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” See also State v. Stanley, 223 Conn. 674, 688-89, 613 A.2d 788 (1992); State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992). “We have also held that we remain free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances. . . .” (Internal quotation marks omitted.) State v. Stanley, supra, 688; State v. Golding, supra, 240.

       The challenged language in Boles was as follows: “Now, the second element is that the defendant, acting with that intent to cause the death of another person, caused the death of that person. This means that the defendant’s conduct was the proximate cause of the victim’s death. An act or omitted act is a proximate cause of death when it substantially and materially contributes that natural continuous sequence unbroken by any intervening cause to the resulting death. It is the cause without which the death would not have occurred and it’s the predominating cause, the substantial factor, from which death followed as a natural, direct, and immediate consequence. It’s not necessary that the particular kind of harm that results from the defendant’s act be intended by him or the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct. The law considers the chain of legal causation unbroken and holds the defendant criminally responsible. ” (Emphasis added.) State v. Boles, 223 Conn. 535, 540-41, 613 A.2d 770 (1992).
      The allegedly improper language in the instant case is as follows: “The second element—we’re still under the murder charge—the second element is that the defendant acting with the intent to cause the death of another person, caused the death of that person, namely [the victim]. This means that the defendant’s conduct was the proximate cause of [the victim’s] death. And that is the proximate cause of death when it substantially and materially contributes in a natural and continuing sequence unbroken by an intervening cause, to the resulting death. It is the cause without which the death would not have occurred, and it is the predominating cause, the substantial factor from which death followed as a natural, direct, and immediate consequence. It is not necessary that the particular kind of harm that remits from the defendant’s acts be intended by him. Where the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible.” (Emphasis added.)

       The defendant points out that in State v. Boles, 223 Conn. 535, 613 A.2d 770 (1992), the theory of the defense was that a third party culprit committed the crime, whereas here, the sole issue raised by the defendant was possession of the requisite intent.

       We are also unpersuaded by the defendant’s claim that the challenged instruction created a mandatory presumption. It is clear from the record that the trial court instructed the jury that, although the intent to cause death may be inferred from circumstantial evidence, the jury was not required to draw such an inference from the defendant’s conduct.

       The relevant part of the trial court’s instruction regarding this issue is as follows: “If an accused should attempt to make false statements respecting himself and his conduct concerning the matter on trial, you may consider this as evidence tending to show a guilty connection by the accused with the crime charged.
      “There is an area of our law that is called ‘consciousness of guilt.’ Whenever a person is on trial for a criminal offense, it is proper to show that person’s conduct subsequent to the alleged criminal offense, which may fairly be inferred to have been influenced by the criminal act. The state of mind which is characterized as consciousness of guilt may be circumstantial evidence of guilt. If the defendant should attempt to thwart detection or apprehension by police, this might be shown, because such conduct might tend to show a guilty connection by the defendant with the crime charged. And flight is under this category. Flight, when unexplained, tends to prove consciousness of guilt. The flight of a person accused of crime is a circumstance which, when considered together with all the facts of this case, may justify a finding of the defendant’s guilt. However, flight, if shown, is not conclusive. It is to be given the weight to which you, the jury, think it is entitled to, under the circumstances.
      “Here, there was evidence that the defendant assumed that he was being sought for the charge, and fled from the area shortly after the alleged incident. There is also evidence tending to explain this flight, namely that the defendant fled because he feared retaliation. If you find that he was fleeing from this charge, you may consider it as evidence of his consciousness of guilt. If you find that he was not fleeing from this charge, you should not consider it evidence of his consciousness of guilt. It is up to you to give the evidence the weight to which it is entitled.”

       The defendant claims a violation of his federal and state constitutional rights under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, respectively. Although the defendant relies on article first, § 8, of the state constitution, he has failed to differentiate his state constitutional claim from his federal constitutional claim. Thus, we consider only his claim under the federal constitution. See footnote 3.

       In State v. Brown, 199 Conn. 14, 505 A.2d 690 (1986), we implicitly questioned the propriety of the use of the phrase, “guilty connection,” as a synonym for “consciousness of guilt.” We concluded that the phrase, taken in the context of the entire charge, did not deprive the defendant of a fundamental constitutional right and a fair trial. Id., 27. Nonetheless, because of the possibility of the jury’s confusing “guilty connection” as indicating evidence of guilt itself rather than evidence of consciousness of guilt; id.; it would be preferable for the trial court to omit the phrase “guilty connection” from its instructions regarding false statements made by the defendant. See State v. Walton, 227 Conn. 32, 63, 630 A.2d 990 (1993).

       The defendant has failed to differentiate his claim under article first, § 8, of the Connecticut constitution from his claim under the fourteenth amendment to the United States constitution. Thus, we consider only his claim under the federal constitution. See footnote 3.

       Nonetheless, we reiterate our suggestion in State v. Walton, 227 Conn. 32, 63, 630 A.2d 990 (1993), that it would be preferable for the trial court either to omit the challenged language itself or to balance it by reference to both instructions—acquittal as well as conviction.

       The challenged language—“But the law is made to protect society and innocent persons, and not to protect guilty ones”—is immediately preceded by language emphasizing the presumption of innocence: “It is the sworn duty of the court and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence.” It is immediately followed by language emphasizing the jurors’ duty when guilt has been proven beyond a reasonable doubt: “If and when the presumption of innocence has been overcome by evidence proving guilt beyond a reasonable doubt that an accused person is guilty of the crime charged . . . then it is the sworn duty of the jury to enforce the law, and to render a verdict of guilty.” Under these circumstances, it is unlikely that a reasonable juror would have heard the challenged language as meaning anything more than the language that followed it, namely, that if the jurors were convinced of the defendant’s guilt beyond a reasonable doubt, they are obligated to convict.
      Nonetheless, because of the possibility that a juror might hear the language differently, and might be given to understand from it that only innocent persons should be acquitted, we suggest that either: (1) the challenged sentence be omitted; or (2) it be modified to provide as follows: “But the law is made to protect society and persons whose guilt has not been established beyond a reasonable doubt, and not to protect those whose guilt has been so established.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    The Kelly-Springfield Tire Company et al. v. Edward J. Bajorski, Acting Commissioner of Revenue Services
    (14730)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.
    Argued October 27—
    decision released December 21, 1993

      Charles H. Lenore, with whom was Laura J. Folz, for the appellants (plaintiffs).

      Richard K. Greenberg, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Ann O’Leary, assistant attorney general, for the appellee (defendant).
   Peters, C. J.

In this tax appeal, the sole issue is whether, in light of the limitations on the state taxing power imposed by § 101 (a) of Public Law 86-272, 73 Stat. 555 (1959), 15 U.S.C. § 381, the state of Connecticut has the authority to levy a corporation business tax pursuant to General Statutes §§ 12-214 and 12-218 on the intrastate activities of the plaintiffs, The Kelly-Springfield Tire Company and Lee Tire and Rubber Company (taxpayers). After the defendant, Edward J. Bajorski, acting commissioner of revenue services of the state of Connecticut (commissioner), denied their respective requests for correction and refund of the taxes assessed against them, the taxpayers appealed to the trial court pursuant to General Statutes § 12-237. The trial court dismissed the taxpayers’ appeals. The taxpayers then filed a joint appeal to the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The stipulations that furnish the entire factual basis for this appeal, as set out in the record, reveal the following. Each taxpayer is a multistate corporation that, during the relevant tax years, had registered with the secretary of the state to transact business in this state. The principal business of each taxpayer is the sale of motor vehicle and truck tires to dealers throughout the United States. Neither taxpayer maintained any inventory in this state. Neither taxpayer owned any real property in this state.

In this state, the business operations of the taxpayers were principally carried out through the services of one or more local sales representatives whose only authority was the solicitation of orders from tire dealers. After orders had been solicited, out-of-state personnel approved or rejected the orders, arranged for shipments from out-of-state facilities and received payments for shipments. In the event of disputes about the tire shipments, the local sales representative’s responsibility was limited to providing information to the local dealer about the location of appropriate out-of-state contact points. Personnel at out-of-state facilities managed the receipt and storage of allegedly defective merchandise and arranged for the appropriate rectification of local dealer accounts. The local sales representative’s responsibility for credit was similarly limited to an information function. Personnel at out-of-state facilities similarly monitored the credit status of local dealers and arranged for the collection of delinquent accounts.

Apart from their sales representatives, the taxpayers’ only other operational presence in this state consisted of annual visits of their credit managers. Each taxpayer had one credit manager who personally called on all Connecticut accounts once each year, whether or not such accounts were delinquent. The stipulations do not indicate how many accounts each credit manager visited.

Relying on the taxpayers’ registration to do business and on the annual presence of their credit managers, the commissioner issued notices of assessment to the taxpayers pursuant to the Connecticut corporation business tax; General Statutes § 12-214; computed in accordance with § 12-218. The trial court agreed with the commissioner that both of the taxpayers were subject to taxation in Connecticut because they had engaged in business activities in this state that were not entirely ancillary to the solicitation of orders and were not de minimis. In their appeal to this court, the taxpayers challenge the validity of these conclusions. We disagree with the judgment of the trial court.

I

Two fundamental principles govern these tax appeals. First, pursuant to § 12-237, taxpayers who challenge the validity of tax assessments under §§ 12-214 and 12-218 are entitled to plenary judicial review of their tax liability. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 588, 522 A.2d 771 (1987); Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 421, 521 A.2d 569 (1987); Xerox Corp. v. Board of Tax Review, 175 Conn. 301, 303, 397 A.2d 1367 (1978). Second, ambiguities in the language or the applicability of statutes governing tax liability are resolved in favor of taxpayers if the issue is the authority to impose a tax, and in favor of the tax commissioner if the issue is the right to a deduction or exemption. Altray Co. v. Groppo, 224 Conn. 426, 432, 619 A.2d 443 (1993); Morton Buildings, Inc. v. Banrum, 222 Conn. 49, 54, 607 A.2d 424 (1992); The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 490 A.2d 991 (1985); Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 154, 285 A.2d 352 (1971).

In this case, the parties do not disagree about the applicability of the first principle. With respect to the second principle, however, the taxpayers contend that they are challenging the state’s authority to impose a tax, while the commissioner contends that the taxpayers should be deemed to be pursuing rights to a tax exemption. We agree with the taxpayers.

The tax that is at issue is the Connecticut corporation business tax; General Statutes c. 208; which is “in the nature of an excise tax levied against domestic and foreign corporations alike, for the privilege of doing business in a corporate capacity within this State. ...” (Citations omitted; internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Tax Commissioner, 178 Conn. 243, 247, 423 A.2d 883 (1979). Section 12-214 (a), which imposes the corporation business tax, provides that the tax is “to be measured by the entire net income . . . from business transacted within the state during the income year,” while § 12-218 provides a measure to determine the taxable net income of multistate corporations to be apportioned to this state. Altray Co. v. Groppo, supra, 432-33; Texaco Refining & Marketing Co. v. Commissioner, supra, 589-91; Schlumberger Technology Corp. v. Dubno, supra, 415-16.

We recently considered the proper characterization of issues concerning the scope of taxpayer liability under §§ 12-214 and 12-218. In Altray Co. v. Groppo, supra, a New York corporation having its primary place of business in Connecticut claimed that it had engaged in sufficient activity in New York to satisfy the “conducts business” requirement of § 12-218, thereby qualifying the corporation for an apportionment of its taxable income between Connecticut and New York. We agreed with the taxpayer that § 12-218 involves the imposition of a tax, and, therefore, that any ambiguity must be resolved in favor of the taxpayer and against the tax commissioner. Id., 432. In arriving at this conclusion, we expressly rejected the tax commissioner’s contention that a claim relating to a taxpayer’s qualification for apportionment of net income under § 12-218 should be treated as a claim for a tax exemption. Id., 433-34. We noted, furthermore, that the apportionment of the net income of a multistate taxpayer to Connecticut reflected established constraints on the state’s taxing power that derive from constraints imposed by the commerce and the due process clauses of the federal constitution. Id., 434; see Mobil Oil Corp. v. Commissioner of Taxes of Vermont, 445 U.S. 425, 436-37,100 S. Ct. 1223, 63 L. Ed. 2d 510 (1980) (due process clause); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 51 L. Ed. 2d 326, reh. denied, 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977) (commerce clause). Altray Co. v. Groppo, supra, establishes, therefore, that the taxpayers’ claims in this case must be examined with the understanding that §§ 12-214 and 12-218 are statutes that impose a tax on multistate taxpayers rather than statutes that provide an exemption for multistate taxpayers. Viewed from this perspective, any ambiguities in the applicability of the statutes in light of the available factual record must be construed in favor of the taxpayers and against the commissioner.

This rule of construction applies not only to the apportionment to this state of the intrastate income of multistate taxpayers but also to limitations on the taxability of multistate taxpayers that derive from federal statutes determining the authority of the state to impose a tax on such taxpayers. Public Law 86-272,15 U.S.C. § 381 is such a statute. Section 381 is entitled “Imposition of net income tax.” It defines and delimits the circumstances under which a state has the authority to consider a multistate taxpayer to be engaged in a “business activity” for state tax purposes. Read conjointly, 15 U.S.C. § 381 and §§ 12-214 and 12-218 are tax imposition statutes that must be construed accordingly.

II

The taxpayers maintain that the state did not have the authority to impose a corporation business tax on their net income in this state because their Connecticut activities are protected from state tax by the terms of 15 U.S.C. § 381. Subsection (a) (1) of § 381 prohibits the imposition of state net income taxes on interstate corporations whose only intrastate activity is “the solicitation of orders ... in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State . . . .” The commissioner claims, and the trial court concluded, that § 381 did not apply in the circumstances of these taxpayers because, in addition to their solicitation of orders in Connecticut, the taxpayers had also elected: (1) to qualify for doing business in this state; and (2) to have their credit managers undertake annual visits to each of the taxpayers’ accounts in this state. The question before us is whether these additional in-state activities are sufficient to permit Connecticut to impose the corporation business tax on these taxpayers.

Federal law determines the extent to which § 381 limits the authority of this state to levy a corporation business tax on interstate corporations. In Wisconsin Department of Revenue v. Wrigley, 505 U.S. ,112 S. Ct. 2447, 120 L. Ed. 2d 174 (1992), the Supreme Court of the United States recently reviewed the history and the scope of this section. The court noted that § 381 establishes “a 'minimum standard’ for imposition of a state net-income tax based on solicitation of interstate sales . . . .” Id., 2453. The court rejected the suggestion that § 381 should be construed so narrowly that “the solicitation of orders” would encompass “only the actual requests for purchases or, at most, the actions absolutely essential to making those requests.” Id., 2455. The court also rejected, however, the suggestion that § 381 should be construed so broadly as to “treat as solicitation of orders any activities that are ordinary and necessary business activities accompanying the solicitation process . . . .” (Internal quotation marks omitted.) Id. The court chose instead a middle ground that would consider as solicitation of orders “those activities that are entirely ancillary to requests for purchases—those that serve no independent business function apart from their connection to the soliciting of orders . . . .” (Emphasis in original.) Id., 2456. Applying this standard, the court concluded that providing a car and a stock of free samples to sales personnel is part of the “solicitation of orders,” but that the employment of sales personnel to repair or service the company’s products, or the maintenance of an in-state office, is not part of the “solicitation of orders.” Id., 2457.

In the circumstances of this case, Wrigley counsels that the in-state visits by the taxpayers’ credit managers to in-state dealers do not constitute the “solicitation of orders.” Like repairs and servicing, proper credit practices to monitor the collectibility of payments due from dealers as a result of in-state solicitations are not themselves ancillary to “requests for purchases,” as the trial court properly concluded. The fact that credit supervision in this state was carried out by personnel other than the taxpayers’ in-state sales representatives only underscores this conclusion.

Wrigley holds, however, that § 381 does not automatically authorize state taxation of a company engaged in limited in-state business activities that are not ancillary to the “solicitation of orders.” If such in-state activities are de minimis, that is, if they establish only a trivial connection with the taxing state, § 381 continues to provide net income tax immunity. Id., 2457-58.

The difficulty in applying the de minimis test to the facts of this case arises out of the sparsity of the factual record. As noted previously, the parties have stipulated that each taxpayer sent a credit manager into this state for an annual visit with each of its dealers, whether or not those dealers were delinquent in their accounts. We do not know, however, how long these annual visits were, how many dealers were visited, or the extent to which credit information gleaned from the annual visits was made available to the in-state sales representatives to facilitate their solicitation of sales on behalf of the taxpayers. The responsibility for this factual lacuna rests with the commissioner. In accordance with the governing principles described in part I of this opinion, the commissioner has failed to establish that the taxpayers’ activities in this state were more than de minimis.

The commissioner’s position is not strengthened by the taxpayers’ decision to qualify to do business in this state. Section 381 (b) (1) expressly permits a state to impose a net income tax on corporate taxpayers whose only in-state activities are the solicitation of orders if such taxpayers are “incorporated under the laws of such State . . . .’’Asa matter of statutory construction, it would make no sense to ascribe the same significance to the act of qualifying to do business. See, e.g., Amway Corp. v. Dept. of Treasury, 176 Mich. App. 285, 438 N.W.2d 904, vacated, 433 Mich. 908, 448 N.W.2d 348 (1989); In re Allied Thermal Corp., 1983 N.Y. Tax LEXIS 778 (N.Y. Tax Commission Feb. 1, 1983); Miles Laboratories, Inc. v. Dept. of Revenue, 274 Or. 395, 546 P.2d 1081 (1976); Priv. Ltr. Rul. 88-19 (Sept. 21, 1988) (S.C. Tax Commission), available in 1988 S.C. Tax LEXIS 19; Va. Rev. Rul. 91-257 (Oct. 8,1991) (Va. Dept. of Taxation), available in 1991 Va. Tax LEXIS 279; Kelvinator Commercial Products, Inc. v. Dept. of Revenue, Docket No. 1-6632,1981 Wis. Tax LEXIS 103 (Wis. Tax Appeals Commission, Mar. 10, 1981); 1 J. Hellerstein, State Taxation (1983) If 6.10, pp. 239-40 n.103. The commissioner has cited no authority to the contrary.

The judgments are reversed and the case is remanded with direction to sustain the taxpayers’ appeals.

In this opinion the other justices concurred.

       Section 101 of Public Law 86-272,73 Stat. 555 (1959), 15 U.S.C. § 381, provides: “imposition of net income tax
      "(a) minimum standards
      “No State, or political subdivision thereof, shall have power to impose, for any taxable year ending after September 14, 1959, a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following:
      “(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and
      “(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).
      “(b) DOMESTIC CORPORATIONS; PERSONS DOMICILED ON OR RESIDENTS OF A STATE
      “The provisions of subsection (a) of this section shall not apply to the imposition of a net income tax by any State, or political subdivision thereof, with respect to—
      “(1) any corporation which is incorporated under the laws of such State; or
      “(2) any individual who, under the laws of such State, is domiciled in, or a resident of, such State.
      “(c) SALES OR SOLICITATION OF ORDERS FOR SALES BY INDEPENDENT CONTRACTORS
      “For purposes of subsection (a) of this section, a person shall not be considered to have engaged in business activities within a State during any taxable year merely by reason of sales in such State, or the solicitation of orders for sales in such State, of tangible personal property on behalf of such person by one or more independent contractors, or by reason of the maintenance, of an office in such State by one or more independent contractors whose activities on behalf of such person in such State consist solely of making sales, or soliciting orders for sales, [of] tangible personal property.
      “(d) DEFINITIONS
      “For purposes of this section—
      “(1) the term ‘independent contractor’ means a commission agent, broker, or other independent contractor who is engaged in selling, or soliciting orders for the sale of, tangible personal property for more than one principal and who holds himself out as such in the regular course of his business activities; and
      “(2) the term ‘representative’ does not include an independent contractor.”

       General Statutes § 12-214 provides in relevant part: “imposition of tax. (a) Every . . . other company carrying on, or having the right to carry on, business in this state, including a dissolved corporation which continues to conduct business . . . shall pay, annually, a tax or excise upon its franchise for the privilege of carrying on or doing business, owning or leasing property within the state in a corporate capacity or as an unincorporated association taxable as a corporation for federal income tax purposes or maintaining an office within the state, such tax to be measured by the entire net income as herein defined received by such corporation or association from business transacted within the state during the income year and to be assessed for each income year at the rate of eleven and one-half per cent. ...”
      General Statutes § 12-218 provides in relevant part: “apportionment of net income. Any taxpayer which is taxable both within and without this state shall apportion its net income as provided in this section. For purposes of apportionment of income under this section, a taxpayer is taxable in another state if in such state such taxpayer conducts business and is subject to a net income tax, a franchise tax for the privilege of doing business, or a corporate stock tax, or if such state has jurisdiction to subject such taxpayer to such a tax, regardless of whether such state does, in fact, impose such a tax. . . .”

       One of the taxpayers, The Kelly-Springfield Tire Company, owned five advertising sign faces in this state, each located at a Connecticut dealer’s facility, that had an aggregate book value of $5451. The commissioner’s brief in this court assigns no importance to this limited local property interest. His brief acknowledges that, for tax purposes, the taxpayers “owned no property at issue in this appeal . . . .”

       The taxpayer Lee Tire and Rubber Company employed only one Connecticut sales representative, while the taxpayer The Kelly-Springfield Tire Company employed three Connecticut sales representatives.


author: Berdon, J.

text:
    State of Connecticut v. McKinley Ray
    (14741)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.

      Argued October 29—
    decision released December 21, 1993

      Timothy H. Everett, with whom were Thomas Nolan, certified legal intern, and, on the brief, Christopher Kriesen, certified legal intern, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cecelia B. Wiederhold, assistant state’s attorney, for the appellee (state).
   Berdon, J.

The defendant, McKinley Ray, was charged in separate counts with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and (3). After a jury trial, the defendant was convicted of the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56 (a). The sole issue in this appeal is whether the trial court improperly refused the defendant’s request to instruct the jury on the lesser included offense of criminally negligent homicide, pursuant to General Statutes § 53a-58. In State v. Ray, 30 Conn. App. 95, 619 A.2d 469 (1993), the Appellate Court upheld the trial court’s refusal to give the requested instruction. The defendant then petitioned this court and we granted certification. We conclude that the defendant’s request should have been granted and therefore reverse the judgment of the Appellate Court.

The jury reasonably could have found the following facts. At approximately 7 p.m. on September 20,1990, the defendant and Arthur Aldrich were sitting and talking on the front porch of their residence at 131 Port-sea Street in New Haven. The defendant lived in the basement apartment at that address and Aldrich lived on the first floor. After they had been talking for half an hour, Sherie Walton, who lived on the second floor, appeared and began arguing with Aldrich. Jonathan Morris also appeared and began arguing with the defendant. Apparently, Walton’s father had arrived home inebriated, and the defendant and Aldrich had laughed at him and another man as they stumbled up the stairs. Their laughter had angered Walton and Morris. In addition, Walton had accused Aldrich of stealing and wearing a pair of her pants.

Walton’s brother, Amar (A. J.), approached the group and then joined in the argument. At some point, Morris stepped away from the argument and then returned with a brick, rock, or piece of concrete. He struck the defendant under his right eye with the object, causing the defendant to bleed. The defendant told A. J. that he did not want any trouble. Aldrich helped the defendant, who was woozy and staggering, through the front door of the building and down a dark, narrow hallway to the first floor kitchen.

A. J. and Morris, neither of whom lived in the building, forced their way through the front door and into the hallway. The defendant and Aldrich went back into the hallway, where fighting broke out among the four men. At some point, the defendant pulled out a pocket knife with a five inch blade that he used to open boxes at work. He stabbed Morris and A.J., who then ran from the house and collapsed outside. Morris, who was stabbed four times, died as a result of a wound that penetrated three and one-half inches into his chest and heart. A.J. was stabbed several times but survived.

The defendant, who testified at trial, admitted to stabbing both victims but claimed that he had been frightened and had acted in self-defense. He stated that Morris had been swinging a brick at him in the hallway, causing glancing blows to the defendant’s head. Further, he testified that although he knew that he had stabbed Morris, Morris had continued fighting and the defendant did not know where or how many times he had stabbed Morris or whether Morris had been injured. Similarly, while the defendant knew that he had stabbed A.J., A.J. had continued fighting and the defendant did not know where or how many times he had stabbed him. Edward T. McDonough, the medical examiner who performed the autopsy on Morris, testified that Morris was stabbed three times in the right arm or shoulder and once in the chest, and that only the chest wound was life-threatening. McDonough stated that Morris’ wounds were consistent with the defendant flailing at him with the knife while Morris was moving around.

Before the defendant testified, the trial court requested counsel to file written requests to charge. The defendant did so, specifically requesting the trial court to charge the jury with respect to criminally negligent homicide as a lesser included offense of manslaughter. The trial court refused to give this instruction and the defendant excepted.

The jury found the defendant guilty of the lesser included offenses of manslaughter in the second degree in violation of General Statutes § 53a-56 (a), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The trial court sentenced the defendant to a total effective sentence of nine years imprisonment.

In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we held that a defendant is entitled to an instruction on a lesser included offense if he can demonstrate compliance with each of four conditions: “(1)an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” The state conceded before the Appellate Court that the defendant had satisfied the first two prongs of Whistnant. The Appellate Court held, however, that the defendant’s testimony did not place the evidence “sufficiently in dispute to support a finding of criminally negligent conduct” because “[Rational jurors using common sense could not reasonably have found that the defendant did not perceive a substantial risk of death when he stabbed Morris with sufficient force to penetrate his chest and heart.” State v. Ray, supra, 103. We disagree.

In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991); State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). “[T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 68, 621 A.2d 728 (1993). Under Whistnant, the evidence is “sufficiently in dispute where it is of such factual quality that would permit the [jury] reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. . . . Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on the evidence . . . from which inferences can fairly be drawn. . . . They should not [however] be encouraged to engage in speculation.” (Citations omitted; internal quotation marks omitted.) State v. Montanez, supra, 23. On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if “we cannot as a matter of law exclude [the] possibility” that the defendant is guilty only of the lesser offense. State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982). “If, based on the admissible evidence presented at trial, the jury could reasonably have found that the defendant acted . . . with criminal negligence in causing the victim’s death, then the defendant was entitled to the charge requested.” Id., 29.

In State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980), we stated: “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. This is especially true where a person has caused the death of another person.” The dividing line between manslaughter in the second degree, of which the defendant was convicted, and criminally negligent homicide is especially thin. To be guilty of the former, the defendant must be aware of and consciously disregard a substantial and unjustifiable risk that death will occur. General Statutes §§ 53a-56 (a) and 53a-3 (13). To be guilty of criminally negligent homicide, however, the defendant must fail to perceive a substantial and unjustifiable risk that death will occur. General Statutes §§ 53a-58 and 53a-3 (14). Therefore, the issue that distinguishes the two criminal offenses is whether the defendant subjectively realized and chose to ignore a substantial risk of death; State v. Salz, 226 Conn. 20, 33, 627 A.2d 862 (1993); or merely failed to realize that he was creating a substantial risk of death.

The defendant claims that a jury reasonably could have found that he had failed to perceive the risk that he might cause Morris’ death. He bases this claim on the evidence that: (1) the defendant was woozy and frightened; (2) it was dark in the hallway where the stabbing occurred; (3) Morris’ wounds were consistent with the defendant flailing defensively at him with the knife while Morris moved around; (4) the defendant did not know whether he was injuring Morris or not; and (5) of the four times Morris was stabbed, three times he was stabbed in the right arm or shoulder, resulting in injuries that were not life-threatening. We agree with the defendant.

InState v. Edwards, 214 Conn. 57, 60, 570 A.2d 193 (1990), the victim was fatally shot when she attempted to take a gun away from the defendant, her brother, who was attempting to commit suicide. The defendant claimed that the trial court should have instructed the jury concerning criminally negligent homicide. We agreed, concluding that “[a] jury could infer that the defendant’s preoccupation with ending his own life caused him to fail to perceive the risk to others created by his possession of a loaded gun and his volitional struggle to retain it.” Id., 69. Similarly, in this case, a jury could infer that the defendant’s preoccupation with protecting himself caused him to fail to perceive the risk of death created by his actions. The state argues that Edwards is distinguishable because, unlike committing suicide, using a knife in self-defense necessarily contemplates creating a risk to a third party. Even if it is assumed that the defendant necessarily realized that he was creating a risk of some kind, however, a jury could nevertheless find that his preoccupation with protecting himself prevented the defendant from perceiving that he was creating a risk of death to Morris. Therefore, the state’s argument fails.

In agreeing with the state and affirming the trial court, the Appellate Court failed to view the evidence in the light most favorable to the defendant. The court mentioned, but gave no weight to, the defendant’s testimony that he was woozy, frightened and unsure of whether he was injuring Morris. Further, the Appellate Court stated: “The testimony at trial demonstrated that while the hallway was dark, visibility was not impaired. The defendant stated that he could not see what Morris and A. J. were doing. Yet, he was able to distinguish the victims from Aldrich. He was also able to locate vulnerable areas of the victims’ bodies. The forensic testimony dispels the defendant’s claim that he blindly flailed at Morris. Morris had six stab wounds, one of which was the result of a plunge that penetrated the chest and pierced through the heart. Another wound went through Morris’ arm and punctured his chest. Rational jurors using common sense could not reasonably have found that the defendant did not perceive a substantial risk of death when he stabbed Morris with sufficient force to penetrate his chest and heart.” State v. Ray, supra, 102-103. This analysis ignores the defendant’s testimony that he was using his knife defensively and did not know where he was stabbing Morris. It also misconstrues the testimony of the medical examiner, McDonough, that the injuries to Morris were consistent with “many different scenarios,” including the defendant flailing at Morris with the knife while Morris was moving. From this evidence, the jury reasonably could have concluded that the fatal wound was caused, not as a result of the defendant recklessly lunging at Morris with the knife, but rather as a result of the defendant negligently stabbing Morris in the chest while blindly trying to fend him off. Viewing the evidence in the light most favorable to the defendant, we conclude that the defendant’s state of mind was sufficiently in dispute so as to entitle him to a lesser included offense charge regarding criminally negligent homicide.

The judgment of the Appellate Court is reversed with respect to the conviction of manslaughter in the second degree and the case is remanded to that court with direction to remand the case to the trial court for a new trial on that count.

In this opinion the other justices concurred.

       General Statutes § 53a-55 provides in relevant part: “(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; or . . . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”
      In addition to the two counts of manslaughter in the first degree, the state charged the defendant with the following four additional counts: separate counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3), one count of tampering with a witness in violation of General Statutes § 53a-151, and one count of threatening in violation of General Statutes § 53a-62 (a) (1).

       General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”
      General Statutes § 53a-3 provides in relevant part: “(13) A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .”
      The jury acquitted the defendant of all six of the charged offenses. In addition to manslaughter in the second degree, the defendant was also convicted of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) as a lesser included offense of assault in the first degree. That conviction is not before us in this appeal.

       General Statutes § 53a-58 provides in relevant part: “(a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person . . . .”
      General Statutes § 53a-3 provides in relevant part: “(14) A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation . . . .”

       Certification was limited to the following issue: “Did the Appellate Court properly conclude that the evidence of the defendant’s state of mind was not sufficiently in dispute so as to entitle him to a lesser included offense charge regarding criminally negligent homicide?” State v. Ray, 225 Conn. 919, 625 A.2d 822 (1993).

       Although Morris was stabbed four times, he sustained six separate wounds.

       McDonough testified as follows:
      “[Edward McDonough:] [Essentially all three [of the nonfatal] wounds were on the back side of the right arm.
      “[Defense Counsel:] Okay. None of the other ones other than the chest wound were in the front of Mr. Morris, correct?
      “A. That’s correct.
      “Q. They were either in the back portion or on the side of him.

        “A. That’s correct.
      “Q. Now wouldn’t that indicate to you, Doctor, that the motion that was used to do this was sort of a flailing-type motion and not one that was directed at any one area of the body?
      “A. There could be many different scenarios as to how these wounds could be inflicted. I would have to be presented with a story or a hypothetical and I could see whether that was consistent or inconsistent with my finding.
      “Q. Let’s assume hypothetically, Doctor, that the person who incurred the injury was moving significantly prior to and during the stabbing, okay, his body was not in still motion. It was in perpetual motion. Would then it be consistent with a flailing-type motion and not one directed at one area only?
      “A. I am not quite sure what you mean by, flailing, but in general the answer to your question is, yes. Since there are wounds to several different portions of the body although being not the same side of the body it could, it would be consistent with the individual, the deceased in this case, having been moving.”

       The second prong is satisfied under State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980), in which we held that criminally negligent homicide is a lesser included offense of manslaughter. See also State v. Edwards, 214 Conn. 57, 63, 570 A.2d 193 (1990). Although the state conceded that the defendant had satisfied the first prong, the Appellate Court, on its own, held that the defendant had not. The Appellate Court stated: “The defendant failed to meet the first Whistnant requirement; his request to charge was not an appropriate instruction. He requested an instruction on criminally negligent homicide, yet failed to recite the evidence that would support such a charge. His request to charge thus lacked the necessary factual predicate. See Practice Book § 854.” State v. Ray, 30 Conn. App. 95, 100, 619 A.2d 469 (1993).
      Notwithstanding the fact that the state did not seek to rely on this conclusion as an alternative ground for affirmance; see Practice Book § 4140 (a); we have reviewed it and disagree with the Appellate Court. Practice Book § 854 provides that each request to charge shall contain “a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply.” The defendant’s request to charge the jury concerning criminally negligent homicide did not refer to any supporting evidence. The trial judge, however, required the request to be filed prior to the conclusion of the evidence. In State v. Herring, 210 Conn. 78, 105 n.25, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230,106 L. Ed. 2d 579 (1989), we held that where the trial court’s actions contribute to a defendant’s failure to comply with the first prong of Whistnant, compliance may be excused.
      Furthermore, the defendant took exception after the charge to the trial court’s omission of an instruction on criminally negligent homicide. Practice Book § 852 provides that “[t]he supreme court shall not be bound to consider error as to . . . the failure to give ... an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection.” (Emphasis added.) After the defendant took exception, the trial court, Reilly, J., stated: “Your exception is noted. You did futilely file a request to charge on that. However, in review of the evidence involved in this matter and then in looking at the appropriate sections of the Practice Book I find that I am not going to give that charge.” In view of this statement by the trial judge that he had reviewed the evidence and decided not to give the requested charge, further elaboration of the ground of objection by defense counsel was unnecessary.
      We therefore conclude that the defendant satisfied the first prong of Whistnant.

       To address this flaw in its argument, the state claims that a “knife is a deadly weapon per se and one who uses it upon a vital part of another is deemed to have intended the probable result of that act. . . .’’This argument, however, misses the point. The loaded gun discharged by the defendant in State v. Edwards, 214 Conn. 57, 570 A.2d 193 (1990), was certainly a deadly weapon, but this fact tells us nothing about the defendant’s state of mind. In State v. Smith, 185 Conn. 63, 78, 441 A.2d 84 (1981), we specifically held that a defendant who fatally stabbed one woman with a five inch knife and wounded another was entitled to a jury instruction concerning criminally negligent homicide. The decedent in Smith was stabbed six times—three times in the chest, once in the upper abdomen and twice in the shoulder. The fatal wound to her chest and at least two of the others were seven inches deep. State v. Lonnie Smith, Conn. Supreme Court Records & Briefs, April Term, 1981, Pt. 4, Defendant’s Brief p. 10, State’s Brief p. 9. We rejected the state’s argument in Smith that “to have an argument with the victim and to slash about with a five inch knife and stab her six times is beyond doubt reckless behavior.” Id., State’s Brief p. 44.