source: Caselaw Access Project

author: MCDONALD, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ERIC AMADO
    (SC 16058)
    McDonald, C. J., and Borden, Norcott, Palmer and Vertefeuille, Js.

      Argued March 23
    officially released August 15, 2000

      SusannE. Gill, senior assistant state’s attorney, with whom were Ellen A. Jawitz, assistant state’s attorney, and, on the brief, Jonathan C. Benedict, state’s attorney, for the appellant-appellee (state).

      Lauren Weisfeld, assistant public defender, for the appellee-appellant (defendant).
   Opinion

MCDONALD, C. J.

After a jury trial, the defendant, Eric Amado, was found guilty of two counts of murder in violation of General Statutes § 53a-54a two counts of felony murder in violation of General Statutes § 53a-54c,1 and one count of capital felony in violation of General Statutes § 53a-54b. The trial court merged the defendant’s felony murder and intentional murder convictions into the capital felony conviction and sentenced the defendant to life imprisonment without the possibility of release pursuant to General Statutes § 53a-35a.1 ** On appeal, the Appellate Court affirmed the judgment of conviction, concluding that the trial court properly determined that, as a matter of law, the defense of self-defense does not apply to a charge of felony murder. State v. Amado, 42 Conn. App. 348, 362, 680 A.2d 974 (1996). We granted the defendant’s petition for certification; State v. Amado, 242 Conn. 906, 697 A.2d 368 (1997); and remanded the case to the Appellate Court for reconsideration in light of State v. Johnson, 241 Conn. 702, 709, 699 A.2d 57 (1997), in which we held that a conviction for felony murder could not serve as a predicate felony for a conviction of capital felony. On remand, the Appellate Court reversed the intentional murder and capital felony convictions, concluding that the trial court improperly instructed the jury on the victims’ right to use reasonable force in defense of premises pursuant to General Statutes § 53a-20, and the defendant’s duty to retreat pursuant to General Statutes § 53a-19 (b). State v. Amado, 50 Conn. App. 607, 624, 719 A.2d 45 (1998). Because our remand was confined to the issue relating to our holding in State v. Johnson, supra, 702, the Appellate Court did not revisit its previous holding that, as a matter of law, self-defense does not apply to a charge of felony murder. Consequently, the defendant’s felony murder convictions remain in effect, but he stands to receive a new trial on the intentional murder and capital felony counts. The state and the defendant both petitioned for certification to appeal to this court, and we granted both petitions. We conclude that the trial court’s instructions concerning the defendant’s duty to retreat and the victims’ right to use force in defense of premises did not constitute clear error of constitutional magnitude, and we reverse the Appellate Court’s judgment in that respect. We also conclude that the Appellate Court, in its earlier opinion, correctly determined that self-defense is not available as a defense to a charge of felony murder. We therefore reverse the judgment of the Appellate Court in part and affirm it in part.

The evidence that was before the jury is set forth in the first Appellate Court opinion; State v. Amado, supra, 42 Conn. App. 351-56; and need not be repeated in detail for purposes of this appeal. It is sufficient to note that the jury reasonably could have found the following: “The defendant, accompanied by several other people, went to the home of Anthony Young in Bridgeport, after the defendant received information that Young had taken a quantity of cocaine from the defendant’s West Haven apartment. As the defendant stood on the porch of Young’s home, Young opened the door. After accusing Young of having his cocaine, the defendant pulled out his [nine millimeter semiautomatic handgun] and fired five shots, wounding both Young and Peter Hall, who was standing behind Young. Both men were alive when emergency medical personnel arrived at the house. Young was [found] clutching afully loaded magazine for an automatic weapon, and Hall was [found] holding a small automatic pistol. Both men later died [from their wounds].

“The defendant testified that as Young was denying complicity in the theft of the defendant’s cocaine, Hall reached for the waistband of his trousers and started to draw a gun. The defendant claimed that he pulled his gun and fired into the house in self-defense only after Young had taken a step toward him and Hall had started to draw a gun from his waistband.” State v. Amado, supra, 50 Conn. App. 613. Additional facts will be set forth as needed.

I

On appeal, the state claims that the Appellate Court improperly concluded that the defendant was entitled to prevail under State v. Golding, 213 Conn. 233, 239—40, 567 A.2d 823 (1989), on his unpreserved claim regarding the trial court’s instructions to the jury concerning self-defense, in particular, the defendant’s duty to retreat and the victims’ right to use reasonable force in defense of their premises. We agree with the state.

The following additional facts are relevant to this claim. During its instructions on the intentional murder and capital felony charges, the trial court initially charged the jury on the victims’ right to use reasonable force in defense of premises under § 53a-20. The trial court explained to the jury that “we all understand that we are here for the trial of [the defendant]. But the trial involves two people who are dead as well, so, we have to look at both positions. . . . [T]he two guys Young and Hall in the house . . . they have a right to be in that home and as such the law protects them from intruders, invaders, trespassers or anybody coming into the home that they do not want into that home even to the extent of using force to repel the persons attempting to come there. . . . The statute reads as follows: A person in possession or control of premises . . . is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises. . . . That’s the perspective of Young and Hall in that house. Under the law they have a right to remain there, they have a right to be armed in their house, they have a right to repel anybody that’s coming by the utilization of force, even deadly force, if they reasonably believe that they are going to be subject to a violent act or it is necessary to repel the trespass which is eminent. Now, that applies to them. . . . That’s not self-defense. Self-defense in this case is the self-defense claim that applies to the defendant.”

The trial court then proceeded to instruct the jury as to the defendant’s defense of self-defense with regard to the intentional murder charge. The trial court charged the jury as to the defendant’s duty to retreat under § 53a-19 (b). The court stated that “[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. . . . You may not be [justified] in using deadly force if [the defendant] knew that he could avoid the necessity of using such . . . with.complete safety by, one, retreating, except that an actor who used force [would] not be required to retreat if he is in his dwelling .... Now, you have to put that in the context of this case. . . . The law is clear that the issue is what the defendant reasonably believes at the time of the incident. That is the issue. What the defendant reasonably believes at the time of the incident. The question is what he reasonably believed under the circumstances as he saw them but is not the actual danger but what reasonably appeared to be—to the defendant.” The trial court later revisited the defendant’s duty to retreat, stating that “[t]he defendant may not use deadly force even in self-defense unless he has no reasonable basis of avoiding the threatened injury in some other manner. The defendant would not have been justified in standing his ground against the threatened attack to fend it off if he could with complete safety, avoid the confrontation by retreating. However, in considering whether the defendant could have retreated in safety the element of practicality must be considered.”

During deliberations, the jury requested clarification regarding the rights available to lawful residents of the house. The court recharged the jury on the substance of § 53a-20, noting that “[t]he statute . . . applies to the people that are within the house . . . .’’In addition, the trial court stated that “the occupant of the home has no obligation to retreat. When you are in your home and if you reasonably feel there’s an attempt by someone to commit a trespass and you are concerned about the use of deadly physical force you need not retreat. That is distinguished from the requirement when utilizing the defense of self-defense outside the presence of a home or workplace. The first obligation is to consider, is it possible to retreat . . . .” The trial court then instructed the jury that the defendant has a duty to retreat “if he knows that he can avoid the necessity of using such force with complete safety .... The law is clear that the issue is what the defendant reasonably believes at the time of the incident.”

The Appellate Court held that, under State v. Golding, supra, 213 Conn. 239-40, the defendant was entitled to prevail on his unpreserved claim that the trial court’s instructions to the jury violated his constitutional right to present a defense. The Appellate Court stated that “[b]ecause the [trial] court’s instructions and the defendant’s claims regarding both the duty to retreat and the victims’ rights to use reasonable force in defense of their premises are so intertwined, we will discuss them together.” State v. Amado, supra, 50 Conn. App. 615. Relying on State v. Ash, 231 Conn. 484, 651 A.2d 247 (1994), the Appellate Court majority concluded that “it was reasonably possible that th[e] mixture of correct and incorrect instructions [concerning the defendant’s duty to retreat] misled the jury.” State v. Amado, supra, 50 Conn. App. 617. The Appellate Court also concluded that “ [b]ecause the court improperly interjected instructions as to the victims’ rights to defend their premises ... it is reasonably possible that the jury was misled as to the proper method by which it should have evaluated the defendant’s self-defense claim; that is, by considering solely the defendant’s perspective concerning the circumstances.” Id., 619.

On appeal, the state argues that there is no reasonable possibility that the jury was misled by the jury charge because the court never contradicted itself as to the standard to be applied in analyzing the defendant’s duty to retreat. Merely failing to repeat the subjective standard does not amount to a violation of the defendant’s constitutional rights. The state also argues that the defendant’s claim with regard to the victims’ right to use force in defense of premises does not warrant reversal under Golding.

We reaffirm that “[a] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. . . . This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. . . . A defendant who asserts a recognized legal defense, the availability of which is supported by the evidence, is entitled as a matter of law to a theory of defense instruction.” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 227 Conn. 518, 526, 631 A.2d 1149 (1993).

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. . . . [T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” (Citations omitted; internal quotation marks omitted.) State v. Ash, supra, 231 Conn. 493-94.

The Appellate Court concluded that the trial court’s failure to reiterate that the defendant must have actual knowledge that he can retreat safely may have confused the jury. We disagree. The trial court correctly instructed the jury that “[t]he law is clear that the issue is what the defendant reasonably believes at the time of the incident. . . . The question is what he reasonably believed under the circumstances as he saw them but is not the actual danger but what reasonably appeared to be—to the defendant.” Although the trial court later revisited the defendant’s duty to retreat and did not repeat the subjective nature of the inquiry in its instructions to the jury, it subsequently gave another instruction that, again, expressly put forth the appropriate standard. On recharge, the trial court reiterated that the defendant has a duty to retreat “if he knows that he can avoid the necessity of using such force with complete safety .... The law is clear that the issue is what the defendant reasonably believes at the time of the incident.”

We conclude that there was not a reasonable possibility that the jury was misled because the trial court referred to the correct standard each time that it discussed the standard. This court’s holding in State v. Ash, supra, 231 Conn. 484, is distinguishable. In Ash, the trial court misstated the law “when it instructed the jury to consider ‘what was reasonable for the defendant to perceive was available as retreat’ and to view the defendant’s actions ‘as you would perceive a reasonable person to view the same situation, under the same conditions.’ ” Id., 494-95. There we held that “[t]hese words incorrectly suggested that the statute permitted the jury to measure the defendant’s knowledge of his ability to retreat according to an objective standard of reasonableness rather than the subjective standard of the defendant’s actual knowledge.” (Internal quotation marks omitted.) Id., 495. The trial court in Ash also misstated the law to the jury on recharge, through its “use of the words could perceive . . . rather than directing them to consider what the defendant did perceive . . . [that] further muddied the jury’s understanding of the proper subjective standard. . . .” (Internal quotation marks omitted.) Id., 496. On appeal, we concluded that although “the trial court first stated the statutory language correctly. ... [it was] subsequently clouded by the trial court’s misstatements of law . . . .” Id., 495. As a result, this court held that it was reasonably possible that the jury, viewing the charge in its entirety, was misled by the combination of accurate and inaccurate language on the duty to retreat.

In the present case, the trial court never instructed the jury “to view the defendant’s actions ‘as you would perceive a reasonable person to view the same situation,’ ” and the jury was not led to believe that it should measure “the defendant’s knowledge of his ability to retreat according to an objective standard of ‘reasonableness’ . . . .” Id. The trial court did not misstate the law with respect to the defendant’s duty to retreat, as the trial count did in Ash, but merely failed to repeat the subjective standard with regard to the defendant’s apprehension of an opportunity to retreat. Each time that the standard was discussed, however, the trial court properly referred to the subjective standard. We conclude that it was not reasonably possible that the jury was misled by these instructions.

The Appellate Court also concluded that the trial court’s instruction on the victims’ right to defend the premises may have misled the jury. We disagree. The trial court instructed the jury on the victims’ right to defend the premises in order to inform the jury that the victims did not have the same duty to retreat as did the defendant. This instruction was necessary so that the jury could understand that the victims had the right to repel a forcible entry into their dwelling even with deadly force under certain circumstances. The jury’s knowledge of such an instruction did not “in any way diminish their understanding of the defendant’s right to self-defense . . . [because] the trial court was careful to specify that the instruction on the right to defend property applied to the victims and that the instruction on self-defense applied to the defendant . . . .” State v. Amado, supra, 50 Conn. App. 629-30 (Lavery, J., dissenting). The trial court expressly separated its instruction regarding the victims’ right to use force in defense of the premises from its instruction regarding the defendant’s defense of self-defense. Immediately following its discussion of § 53a-20, the court noted, “[n]ow, that [instruction as to the defense of premises] applies to [the victims]. . . . That’s not self-defense. Self-defense in this case is the self-defense claim that applies to the defendant.” The court then proceeded to discuss the defendant’s defense of self-defense. The instruction regarding the victims’ right to defend their property was separate and clearly did not affect the instructions concerning the defendant’s right to the defense of self-defense. Moreover, the jury was instructed that the subjective standard applied to the person having the duty to retreat and that the victims defending their premises had no duty to retreat. We fail to see how the trial court’s instructions could have led the jury to believe that it should consider a perspective other than that of the defendant in evaluating the claim of self-defense. Thus, we reverse the judgment of the Appellate Court on this issue.

II

The defendant’s claim on cross appeal is that the Appellate Court improperly held, as a matter of law, that a defendant accused of felony murder may not rely on a claim of self-defense. The defendant argues that, because the trial court refused to instruct the jury on self-defense with respect to the felony murder charges, he was deprived of his statutory right to use justification as a defense; General Statutes § 53a-19; and his constitutional rights to be presumed innocent, present a defense, due process and trial before a properly instructed jury. U.S. Const., amends. V, VI, XIV; Conn. Const., art. I, §§ 8, 19. We disagree.

Whether self-defense applies to a charge of felony murder is a question of law. “This court has plenary review of the trial court’s conclusions of law . . . .” (Citation omitted.) State v. Webb, 252 Conn. 128, 138, 750 A.2d 448 (2000).

The felony murder statute, § 53a-54c, provides in relevant part that “[a] person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

In State v. Lewis, 245 Conn. 779, 812, 717 A.2d 1140 (1998), we affirmed the trial court’s refusal to give the jury an instruction on a claim of self-defense as to the defendant’s intentional murder and felony murder charges, concluding that “[o]ne who commits or attempts a robbery armed with deadly force, and kills the intended victim when the victim responds with force to the robbery attempt, may not avail himself of the defense of self-defense. It has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill. ... In sum, one who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation.” (Internal quotation marks omitted.) Id.

The defendant argues that this court’s holding in Lewis did not establish a bright line rule that a claim of self-defense, as a matter of law, is not available to an individual charged with felony murder. The defendant argues that, because in Lewis we reviewed the evidence concerning the issue of whether the defendant was the initial aggressor pursuant to § 53a-19 (c), we implicitly limited its holding to the facts of the case and did not hold that self-defense is unavailable to eveiy defendant accused of committing felony murder. We disagree. Although, in Lewis, we reviewed the evidence concerning the determination of whether the defendant was the initial aggressor, we did so only because an instruction on a claim of self-defense may have been proper as to the intentional murder charge against the defendant in that case. We expressly noted that “[e]ven if we were to assume without deciding that this evidence, viewed in the context of all the evidence regarding the killing of the victims, would have permitted a rational jury to find self-defense without resorting to speculation, the defendant was not entitled to an instruction on that theoiy of defense because he was engaged in robbing the victims when his purported justification for killing them arose.” Id., 811-12.

In United States v. Thomas, 34 F.3d 44, 48 (2d Cir. 1994), the United States Court of Appeals for the Second Circuit held that “[o]ne who commits or attempts a robbery armed with deadly force, and kills the intended victim when the victim responds with force to the robbery attempt, may not avail himself of the defense of self-defense.” The defendant in Thomas had argued that the United States District Court improperly omitted a portion of the jury charge regarding the burden of proof in a claim of self-defense, and the Court of Appeals concluded that “even if the charge failed to place the burden on the government, there was no reversible error . . . because, given the jury’s finding that the defendants committed the killing of [the victim] in an attempt to rob him, the defendants were not entitled, as a matter of law, under the circumstances, to rely on the defense of self-defense.” Id., 47-48. Thus, “[t]he [District Court’s] failure to make clear that the burden on the issue of self-defense rests on the government [could not] have prejudiced the defendants when they had no right to have the jury consider the issue at all.” Id., 48.

Other jurisdictions also have denied “a self-defense claim where the defendant was a participant in a felony and committed the homicidal act during the course of the felony.” P. Robinson, Criminal Law Defenses (1984), § 132, p. 99; see, e.g., Street v. Warden, 423 F. Sup. 611, 613-14 (D. Md. 1976) (self-defense unavailable as matter of law because conviction rested on felony murder); State v. Celaya, 135 Ariz. 248, 254, 660 P.2d 849 (1983) (accused cannot use defense that he brought upon himself); Williams v. State, 256 Ga. 655, 658, 352 S.E.2d 756 (1987) (self-defense not defense to felony murder); Street v. State, 26 Md. App. 336, 339-40, 338 A.2d 72 (1975) (self-defense unavailable as matter of law because engaged in robbery); People v. Stephens, 84 Mich. App. 250, 254, 269 N.W.2d 552 (1978) (self-defense is not defense to felony murder); Layne v. State, 542 So. 2d 237, 243 (Miss. 1989) (self-defense unavailable to person charged with felony murder); People v. Guraj, 105 Misc. 2d 176, 178, 431 N.Y.S.2d 925 (1980) (person engaged in attempted robbery without ambit of justification defense); State v. Bell, 338 N.C. 363, 387, 450 S.E.2d 710 (1994) (defendant forfeited right to self-defense as defense to felony murder); Smith v. State, 209 Tenn. 499, 503, 354 S.W.2d 450 (1961) (person engaged in committing felony cannot escape conviction through claim of self-defense).

The defendant argues that a bright line rule that self-defense is not available, based simply on the state’s accusation that a defendant committed felony murder, violates the fundamental principle that all defendants are presumed innocent until proved guilty beyond a reasonable doubt. We disagree. Our holding is premised on the fact that a finding, and not an accusation, of felony murder is incompatible with the defense of self-defense. Our rule as to self-defense assumes that the jury concluded that the defendant was in the course of and in furtherance of attempted robbery when the murder occurred. If the jury concluded that the defendant was not committing a felony at the time of the murder, the jury was instructed to find the defendant not guilty of felony murder. Our holding today does not violate the presumption of innocence.

Finally, our holding is consistent with the purpose underlying felony murder, which is “to punish those whose conduct brought about an unintended death in the commission or attempted commission of a felony. . . . The felony murder rule includes accidental, unintended deaths. Indeed, we have noted that crimes against the person like robbery, rape and common-law arson and burglary are, in common experience, likely to involve danger to life in the event of resistance by the victim . . . .” (Citations omitted; internal quotation marks omitted.) State v. Kyles, 221 Conn. 643, 667, 607 A.2d 355 (1992). Accordingly, when one kills in the commission of a felony, that person cannot claim self-defense, for “this would be fundamentally inconsistent with the very purpose of the felony murder [statute].” People v. Loustaunau, 181 Cal. App. 3d 163, 170, 226 Cal. Rptr. 216 (1986).

In the present case, the jury reasonably found that the defendant was engaged in the attempted robbery of the victims when the shootings occurred. The evidence indicated that the defendant arrived at the victims’ house, armed with a nine millimeter handgun, with the intention of regaining his cocaine. After the defendant accused the victims of having his cocaine, and both denied having the drugs, the defendant began shooting. The jury could, and did, find that the shootings were in the course of and in furtherance of an attempted robbery. The defendant’s testimony that the victims first utilized physical force does not require that he have a defense of self-defense. For purposes of felony murder, “it is immaterial whether the victim of the [felony] or the defendant [first utilizes physical force].” State v. Bell, supra, 338 N.C. 387. It is inconsistent with the purpose of the felony murder statute to allow a defendant who causes a death in the course of a felony to claim self-defense because the victim attempted to thwart such a felony.

The judgment of the Appellate Court is reversed insofar as it reversed the trial court’s judgment convicting the defendant of murder and capital felony and is affirmed in all other respects, and the case is remanded to the Appellate Court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “(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; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . .

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction . . .

       General Statutes § 53a-35a provides in relevant part: “For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed . . .

       The Appellate Court did not reach the defendant’s other claims regarding the trial court’s instructions on the intentional murder charges because it found that the felony murder convictions supported the capital felony conviction. State v. Amado, 42 Conn. App. 348, 363, 680 A.2d 974 (1996).

       General Statutes § 53a-20 provides: “A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises; but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in section 53a-19, or (2) when he reasonably believes such to be necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a-100, or place of work, and for the sole purpose of such prevention or termination.”

       General Statutes § 53a-19 (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 officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering 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.”

       We granted the state’s petition for certification to appeal limited to the following issues: (1) “Did the Appellate Court properly conclude that the defendant was entitled to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), on the trial court’s instructions regarding General Statutes § 53a-20, concerning the use of force in defense of premises?” (2) “Did the Appellate Court properly conclude that the defendant was entitled to prevail under State v. Golding, [supra, 213 Conn. 233], on the trial court’s instructions regarding the duty to retreat?” and (3) “If the answer to question one or two is yes, was either such improper instruction harmless in view of the affirmance of the defendant’s convictions of two counts of felony murder?” State v. Amado, 247 Conn. 953, 953-54, 723 A.2d 811 (1999). We granted the defendant’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that the defense of self-defense does not apply to a charge of felony murder as a matter of law.” State v. Amado, 247 Conn. 953, 723 A.2d 811 (1999).

       The trial court, however, refused to instruct the jury on the defense of self-defense with regal'd to the defendant’s charge of felony murder. See part II of this opinion.

       Under State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) “The first two requirements involve a determination of whether the claim is reviewable; the second two requirements involve a determination of whether the defendant may prevail.” State v. Woods, 250 Conn. 807, 815, 740 A.2d 371 (1999).

       The trial court instructed the jury that “[t]he defendant may not use deadly force even in self-defense unless he has no reasonable basis of avoiding the threatened injury in some other manner.”

       The defendant, has not provided an independent analysis of his state constitutional claim. Accordingly, we do not address that claim. See, e.g., State v. Pinder, 250 Conn. 385, 389 n.4, 736 A.2d 857 (1999).


text:
    STATE OF CONNECTICUT v. JAMEL BURKE
    (SC 16105)
    McDonald, C. J., and Borden, Norcott, Palmer and Vertefeuille, Js.
    Argued March 23
    officially released August 15, 2000

      Theresa M. Dalton, senior assistant public defender, for the appellant (defendant).

      Ellen A. Jawitz, assistant state’s attorney, with whom were Susann E. Gill, senior assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, and Maureen M. Keegan, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, C. J.

After a jury trial, the defendant, Jamel Burke, was convicted of felony murder in violation of General Statutes § 53a-54c and burglary in the third degree in violation of General Statutes § 53a-103 (a).1 3**The trial court sentenced the defendant to a term of imprisonment of forty-eight years. The defendant appealed to the Appellate Court, which affirmed the judgment of conviction. State v. Burke, 51 Conn. App. 798, 725 A.2d 370 (1999). The defendant then petitioned for certification to appeal to this court, which denied the petition. State v. Burke, 248 Conn. 912, 732 A.2d 180 (1999). Upon reconsideration, however, this court granted the defendant’s petition for certification, limited to the following issue: “Did the Appellate Court properly conclude that the defense of self-defense does not apply to a charge of felony murder as a matter of law?” State v. Burke, 249 Conn. 901, 732 A.2d 775 (1999).

The Appellate Court opinion sets forth the following relevant facts. “The jury reasonably could have found the following facts. On May 27, 1995, the victim, John J. Walsh, Jr., was working at the Fox Cafe as a doorman. A Fox Cafe employee found the victim on the ground in the Fox Cafe parking lot with blood flowing from his right temple. The victim was taken to the Waterbury Hospital emergency room where he was subsequently removed from life support.

“On the basis of a tip, the police questioned David Monell regarding the homicide. After questioning Monell, the police obtained a search and seizure warrant for the defendant’s person and residence. The police brought the defendant to the police station, where he gave the police a written, signed statement. The defendant indicated that on May 27, 1995, while at a party, he and Monell talked about breaking into a car to obtain a car stereo. They drove to the Fox Cafe where they noticed a Dodge Caravan with a car stereo and an alarm. They pulled into the parking lot next to the Fox Cafe, and the defendant approached the Caravan with a flashlight and a screwdriver while Monell waited in his car. Using the screwdriver, the defendant popped the front passenger window, setting off the car alarm, and reached in to open the Caravan door.

“The defendant quickly removed the car stereo from the Caravan using the screwdriver and started to walk back to Monell’s car when he heard the victim running after him. The defendant threw the stereo at the victim to stop him. The victim kept running, however, and tackled the defendant. A struggle ensued, during which the defendant swung both fists at the victim until he stopped straggling. When the defendant returned to Monell’s car, he noticed that he still had the screwdriver in his hand and figured that [he] stuck the . . . guy with the screwdriver. The defendant left the scene in Monell’s car and returned to the party. The defendant told Monell that he thought that he might have stabbed the guy.” (Internal quotation marks omitted.) State v. Burke, supra, 51 Conn. App. 800-801.

On appeal to the Appellate Court, the defendant argued that the trial court had instructed the jury improperly on his claim of self-defense. The Appellate Court rejected this argument, relying on its holding in State v. Amado, 42 Conn. App. 348, 362, 680 A.2d 974 (1996), cert. granted, 242 Conn. 906, 697 A.2d 368 (1997), that self-defense is not legally cognizable as a valid defense to a felony murder charge. We recently affirmed the Appellate Court’s judgment in State v. Amado, 254 Conn. 184, 189, 756 A.2d 274 (2000), and held that, as a matter of law, a defendant convicted of felony murder may not rely on a claim of self-defense. Thus, we conclude that the Appellate Court in this case properly concluded that the defense of self-defense does not apply to a charge of felony murder.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a.-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       The Appellate Court held, inter alia, that sell-defense is not available as a defense to a charge of felony murder. State v. Burke, 51 Conn. App. 798, 803, 725 A.2d 370 (1999).


author: VERTEFEUILLE, J.

text:
    SANDRA APPLETON v. BOARD OF EDUCATION OF THE TOWN OF STONINGTON ET AL.
    (SC 16137)
    McDonald, C. X, and Borden, Katz, Palmer and Verteieuille, Js.

      Argued April 27
    officially released August 15, 2000

      Michael C. Deakin, for the appellants (defendants).

      Gilbert Shasha, with whom, on the brief, was Juri E. Taalman, for the appellee (plaintiff).
   Opinion

VERTEFEUILLE, J.

The issue in this certified appeal is whether the Appellate Court properly concluded that the defendants were not entitled to summary judgment on the plaintiffs claims for (1) intentional infliction of emotional distress, and (2) tortious interference with contractual relations. Following our grant of certification; Appleton v. Board of Education, 249 Conn. 927, 733 A.2d 847 (1999); the defendants, the board of education of the town of Stonington (board), Cherri Rifenburg, the principal of Deans Mill School in Stonington, and Anthony Vacca, assistant principal of Deans Mill School, appealed from the Appellate Court’s judgment reversing the trial court’s rendering of summary judgment for the defendants on the second and third counts of the plaintiffs complaint. Appleton v. Board of Education, 53 Conn. App. 252, 730 A.2d 88 (1999). We reverse in part the judgment of the Appellate Court.

The Appellate Court’s opinion provides the following undisputed facts. “The plaintiff was a tenured teacher who had a contract with the board that began in 1963. Beginning in September, 1995, Rifenburg voiced her displeasure with the plaintiff because she believed that the plaintiff failed to monitor a student properly concerning attendance at an after school program. The particular incident involved a situation in which one of the plaintiffs students boarded a school bus for home when he was supposed to be attending the after school program. The student’s parents, who were not at home at the time, registered a complaint with the school.

“Subsequently, the plaintiffs competency as a teacher was questioned by the defendants. On September 15, 1995, Rifenburg and a school psychologist met with the plaintiff in her classroom following a report by another teacher that the plaintiff was acting in a strange manner. During this period, Vacca and Rifenburg expressed concern about the plaintiffs health.

“On September 18, 1995, Rifenburg informed the plaintiff that she would be placed on a paid leave of absence. Subsequently, a series of discussions and negotiations arose between the interim superintendent of schools, the board’s attorney, counsel for the Connecticut Education Association . . . the president of the Stonington Education Association, the plaintiffs union representative and the plaintiff. The plaintiff submitted to two psychological evaluations at the defendants’ request. The evaluations indicated that the plaintiff was capable of returning to work. As a result of the negotiations, a memorandum of agreement was drafted and signed by the parties. As part of the agreement, the plaintiff agreed to sign a letter of resignation. On February 5, 1996, the plaintiff submitted a signed letter of resignation to the interim superintendent of schools, which was to be effective in June, 1996, the close of the school year. The plaintiff was allowed to return to work as a curriculum assistant until her resignation was effective.” Appleton v. Board of Education, supra, 53 Conn. App. 255-56.

After her resignation, the plaintiff brought this action alleging breach of contract against the board, intentional infliction of emotional distress against all three defendants, and tortious interference with contractual relations against Rifenburg and Vacca. The trial court granted the defendants’ motion for summary judgment on all three counts of the plaintiffs complaint. The plaintiff then appealed to the Appellate Court, which affirmed the rendition of summary judgment on the breach of contract claim, but reversed the entry of summary judgment on the claims for intentional infliction of emotional distress and tortious interference with contractual relations. Id., 268. We granted certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that, under the circumstances of this case, the defendant was not entitled to summary judgment on the plaintiffs claims for (1) intentional infliction of emotional distress and (2) tortious interference with contractual relations?” Appleton v. Board of Education, supra, 249 Conn. 927.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381 [now § 17-46], . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). . . . Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81, 374 A.2d 820 (1998).” (Internal quotation marks omitted.) Rivera, v. Double A Transportation, Inc., 248 Conn. 21, 24-25, 727 A.2d 204 (1999).

I

The defendants contend first that the Appellate Court improperly concluded that they were not entitled to summary judgment on the plaintiffs claim for intentional infliction of emotional distress. Specifically, they claim that: (1) the plaintiffs resignation from her employment is fatal to her claim for intentional infliction of emotional distress; and (2) the conduct alleged in the plaintiffs complaint and affidavit is not actionable because it was not extreme and outrageous. We agree with the second of these contentions. Therefore, we need not consider the defendants’ contention that the plaintiffs resignation was fatal to her claim for intentional infliction of emotional distress.

“In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Bell v. Board of Education, 55 Conn. App. 400, 410, 739 A.2d 321 (1999). Only where reasonable minds disagree does it become an issue for the jury. Id.

Liability for intentional infliction of emotional distress requires conduct that exceeds “ ‘all bounds usually tolerated by decent society . . . .’” Petyan v. Ellis, supra, 200 Conn. 254 n.5, quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 12, p. 60. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). “Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” Mellaly v. Eastman Kodak Co., 42 Conn. Sup. 17, 19, 597 A.2d 846 (1991).

The conduct of the defendants in the present case is described in the plaintiffs affidavit in opposition to the defendant’s motion for summary judgment. Rifenburg’s opposing affidavit does not raise any genuine issue of material fact concerning the defendants’ conduct. The plaintiff complains that Rifenburg: “made condescending comments to [her] in front of [her] fellow colleagues questioning [her] vision and ability to read”; telephoned the plaintiffs daughter, representing that the plaintiff “had been acting differently” and should take a few days off from work; and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car. The plaintiff also asserted in her affidavit that she was subjected to two psychiatric examinations at the request of the board, and that she was forced to take a suspension and a leave of absence and, ultimately, forced to resign.

These occurrences may very well have been distressing and hurtful to the plaintiff. They do not, however, constitute extreme and outrageous conduct within the meaning of the precedents to which we referred previously. In fact, this court has noted that “it is not patently unreasonable for an employer to remove a discharged employee from its premises under a security escort.” Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997) (upholding trial court’s granting of motion to strike claim for negligent infliction of emotional distress based on circumstances of employee’s termination where employee escorted out of building by security after termination); see also Toth v. Square D Co., 712 F. Sup. 1231, 1238 (D.S.C. 1989) (holding that it was not unreasonable for employer to escort former employee off of premises after termination and that such action did not provide basis for claim of intentional infliction of emotional distress). As the defendants’ actions in the present case were not so atrocious as to exceed all bounds usually tolerated by decent society, their conduct is insufficient to form the basis of an action for intentional infliction of emotional distress. The Appellate Court’s conclusion to the contrary cannot be sustained.

II

Two of the defendants, Rifenburg and Vacca, further claim that the Appellate Court improperly concluded that they were not entitled to summary judgment on the plaintiffs claim for tortious interference with her employment contract with the board. Specifically, they contend that: (1) the plaintiff did not suffer any actual loss as a result of the alleged interference with her employment contract; and (2) she failed to make the requisite showing that they had acted outside the scope of their employment for personal gain. Because we agree with the first of these two claims, it is not necessary that we reach the second.

“A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants’ knowledge of that relationship, (3) the defendants’ intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants’ tortious conduct.” Collum v. Chapin, 40 Conn. App. 449, 452, 671 A.2d 1329 (1996). “Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss ... it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffers actual loss.” Taylor v. Sugar Hollow Park, Inc., 1 Conn. App. 38, 39, 467 A.2d 935 (1983). Therefore, in order to survive a motion for summary judgment the plaintiff must allege an “actual loss” resulting from the improper interference with her contract. Herman v. Endriss, 187 Conn. 374, 377, 446 A.2d 9 (1982). “[T]he tort is not complete unless there has been actual damage suffered.” Goldman v. Feinberg, 130 Conn. 671, 675, 37 A.2d 355 (1944).

Two facts are dispositive of the issue of whether the plaintiff suffered any actual loss. First, in its decision, the Appellate Court upheld the trial court’s ruling that the plaintiffs resignation was voluntary. Appleton v. Board of Education, supra, 53 Conn. App. 260. Whether that finding was clearly erroneous is not an issue certified for review by this court. Therefore, we will not disturb the Appellate Court’s decision upholding the trial court’s finding that the plaintiffs resignation was voluntary. Practice Book § 84-9 (“[t]he issues which the appellant may present are limited to those raised in the petition for certification, except where the issues are further limited by the order granting certification”); State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985) (stating that “[t]he only questions that we need consider are those squarely raised by the petition for certification”). Second, during her leave of absence and prior to and including the date of her resignation, the plaintiff was paid fully in accordance with her contract.

Because the plaintiff voluntarily resigned and was compensated fully until the effective date of her resignation, she has failed to show any actual loss that she suffered as a result of the conduct of Rifenburg and Vacca. The absence of any actual loss is fatal to her claim for tortious interference with contractual relations.

The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to affirm the judgment of the trial court with respect to the plaintiffs claims for intentional infliction of emotional distress and tortious interference with contractual relations; the judgment is affirmed in all other respects.

In this opinion the other justices concurred.

       Although we find the defendants’ conduct insufficient to be actionable, we do not condone their treatment of a longtime colleague and teacher.

       In her complaint, the plaintiff alleged that the defendants’ conduct caused her to lose “earnings and benefits and career economic loss . . . .” In Rifenburg’s affidavit, which was submitted in support of the defendants’ motion for summary judgment, Rifenburg indicated, however, that the plaintiff was placed on a paid leave of absence. The plaintiffs objection to the defendants’ motion for summary judgment and her affidavit in support of that objection did not refute or challenge Rifenburg’s statement that the plaintiff had received all of her pay and benefits while on the leave of absence. Therefore, we must accept as accurate the defendants’ representation that the plaintiff was fully compensated until her voluntary resignation.