author: NORCOTT, J. BORDEN, J., MCDONALD, J.,

text:
    STATE OF CONNECTICUT v. MUHDYASIM ABDALAZIZ
    (SC 15771)
    Callahan, C. J., and Borden, Norcott, Palmer and McDonald, Js.
    Argued December 3, 1998
    officially released April 20, 1999

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Opinion

NORCOTT, J.

In this certified appeal, we must decide whether the Appellate Court correctly concluded that the trial court: (1) properly refused to instruct the jury on the defendant’s theory of imperfect self-defense; and (2) did not abuse its discretion in precluding the defendant from introducing into evidence certain of the victim’s previous criminal convictions. The defendant, Muhdyasim Abdalaziz, also known as Alfredo Cotto, was convicted by a jury of assault in the first degree in violation of General Statutes § 53a-59 (a) (l), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant appealed to the Appellate Court claiming, inter alia, “that the trial court improperly (1) denied the defendant’s request for instructions on lesser included offenses, (2) denied the defendant’s request to instruct the jury on a theory of ‘imperfect self-defense,’ [and] (3) improperly precluded the defendant from offering evidence of the victim’s prior convictions . . . .” State v. Abdalaziz, 45 Conn. App. 591, 593-94, 696 A.2d 1310 (1997). The Appellate Court agreed with the defendant concerning the request for an instruction on lesser included offenses and reversed the judgment of the trial court on the assault count and remanded the case for a new trial on that charge. Id., 594. The Appellate Court further concluded that the defense of imperfect self-defense is not recognized in Connecticut; id., 601; and that the trial court had not abused its discretion in precluding the defendant from introducing into evidence certain of the victim’s prior convictions in order to establish the victim’s violent character. Id., 605. We granted the defendant’s petition for certification limited to these issues; State v. Abdalaziz, 243 Conn. 902, 701 A.2d 334 (1997); and now affirm the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following facts that the jury reasonably could have found. “The victim, Michael Juarbe, and the defendant’s wife, Carmen Rodriguez, had a five year relationship that ended in January, 1991. The defendant’s wife had one daughter from this relationship with the victim. The victim had visitation rights with this daughter. In the summer of 1991, the defendant married Rodriguez. The defendant and the victim had several confrontations leading up to April, 1992.

“On April 7,1992, the defendant drove to the victim’s New Haven apartment at approximately 10 p.m. Upon arriving at the victim’s apartment, the defendant rang the doorbell located at the back door of the victim’s premises. When the victim looked out his window, the defendant yelled to him to come out of the house to talk. The victim dressed and went to the front lawn of the apartment; where he found the defendant standing on the sidewalk. The victim noticed that the defendant’s car was parked in front of the premises and two men were sitting inside the vehicle. The victim and the defendant began to argue about the victim’s visitation rights with his daughter and about telephone calls that were made by the victim to the defendant’s home. The defendant eventually sat in the front passenger seat of his car. From that location, the defendant pulled a loaded revolver from under the car’s seat and fired approximately five shots at the victim from a distance of six to nine feet. The victim was struck by four of the bullets and sustained serious injuries. After shooting the victim, the defendant and his two companions drove away in the defendant’s car.” State v. Abdalaziz, supra, 45 Conn. App. 594.

I

The defendant first claims that the Appellate Court was incorrect when it affirmed the trial court’s refusal to instruct the jury on his theory of “imperfect self-defense.” According to that theory, if the jury found that the defendant had an honest but unreasonably held belief in the need to use deadly force, it could find that he acted with the requisite specific intent corresponding to the greater offense, but also could mitigate the defendant’s guilt downward to an offense that would be consistent with a less culpable mental state. Specifically, the defendant argues that the Appellate Court erroneously concluded that the defense of imperfect self-defense is not recognized in Connecticut. As support for this contention, the defendant claims that, in State v. Maselli, 182 Conn. 66, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981), and State v. Knighton, 7 Conn. App. 223, 508 A.2d 772 (1986), both this court and the Appellate Court implicitly have sanctioned the use of the imperfect self-defense doctrine as a theory of defense, so as to mitigate intentional conduct to the less culpable mental state of recklessness. As a result, the defendant argues that the court should have instructed the jury on an imperfect self-defense theory of defense, by which, if the defendant had an honest but unreasonable belief in the need to use deadly force, his culpability would be reduced from an intentional to a reckless mental state, thus rendering him guilty only of a lesser offense. We conclude that the doctrine of imperfect self-defense is not recognized in Connecticut and, therefore, was not available to the defendant. Accordingly, we affirm that portion of the decision of the Appellate Court.

A

We begin our review by setting out the differences between the doctrine of imperfect self-defense and an instruction on lesser included offenses. It is well settled that a defendant is entitled, under certain circumstances, to a jury instruction on lesser included offenses. In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we constructed a four prong test whereby “[a] defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (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.” (Emphasis added.)

As the fourth prong of the Whistnant test reflects, a defendant can be found guilty either of the greater offense or the lesser offense, but not both. A proper instruction on lesser included offenses is not, however, one that merely explains this “either or” requirement. In State v. Sawyer, 227 Conn. 566, 583, 630 A.2d 1064 (1993), we determined that, to assist the jury in making the transition from consideration of the greater offense to consideration of one or more lesser included offenses, the juiy must receive an “acquittal first” instruction. “Only after it has confronted and unanimously completed the difficult task of deciding the guilt or innocence of the accused as to the charged offense should the jury consider lesser included offenses. Anything less dilutes the right of the state and the defendant to have the juiy give its undivided attention and most serious deliberations to the offense with which the defendant is charged . . . .” (Emphasis added.) Id.

This scheme, of acquittal on the greater charge as a condition precedent to deliberation of charges for offenses requiring a lesser specific mental state, is wholly separate from the doctrine of imperfect self-defense. In Richmond v. State, 330 Md. 223, 623 A.2d 630 (1993), the Maryland Supreme Court accurately pinpointed the distinction between these two principles. A lesser included offense instruction is applicable where “a defendant not entitled to mitigation may present as a defense evidence of an honestly held though objectively unreasonable belief that is inconsistent with the specific intent required to convict.” Id., 234. In contrast, the doctrine of imperfect self-defense applies where “[a] defendant may intend the exact result he brings about, but be entitled to mitigation because of the circumstances that caused him to act.” Id.

The doctrine of imperfect self-defense is a doctrine of mitigation. Simply put, unlike our acquittal first process required for a lesser included offense instruction, under the doctrine of imperfect self-defense a jury must find that the defendant acted with the requisite mental state corresponding to the greater offense before the jury can consider mitigating downward to an offense that is consistent with a less culpable mental state.

The Appellate Court did not focus on this distinction in reaching its conclusion that the doctrine of imperfect self-defense is not recognized in Connecticut. The court distinguished Connecticut from Maryland and California, two jurisdictions where the doctrine of imperfect self-defense is recognized, based upon its determination that our murder statute does not include the element of malice, while the murder statutes of Maryland and California do include the element of malice. State v. Abdalaziz, supra, 45 Conn. App. 601-603. Although the distinction essentially is accurate as to the jurisdictions discussed, it is nevertheless incomplete as a means of differentiating between the doctrine of imperfect self-defense and a lesser included offense instruction. The distinction, therefore, is not the proper means of determining whether the language in Maselli and Knighton, upon which the defendant relies, indicates Connecticut’s adoption of the doctrine of imperfect self-defense. This is because in certain jurisdictions, such as Illinois, although the murder statute does not contain the element of malice, the doctrine of imperfect self-defense is nonetheless recognized. The application of the doctrine in Illinois illustrates that it is mitigation that distinguishes the doctrine of imperfect self-defense from a lesser included offense instruction. “In Illinois, a person commits second degree murder when he commits the offense of first degree murder and either of two mitigating statutory factors is present. The statutory factor applicable in this cause is that, at the time of the killing, the defendant believed the circumstances to be such that, if they existed, they would justify or exonerate the killing but his belief was unreasonable.” People v. Bosek, 210 111. App. 3d 573, 594, 569 N.E.2d 551 (1991). “[I]n order for the jury to reach the issue of whether the defendant is guilty of second degree murder, it must already have found him guilty of first degree murder beyond a reasonable doubt.” Id., 595; see also People v. Wright, 218 Ill. App. 3d 764, 776-77, 578 N.E.2d 1090 (1991).

Other states recognizing the doctrine of imperfect self-defense manifest this requirement as well. See, e.g., People v. Flannel, 25 Cal. 3d 668, 674, 603 P.2d 1, 160 Cal. Rptr. 84 (1979) (“ ‘[a]n honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter’ ” [emphasis altered]); In re Christian S., 7 Cal. 4th 768, 773, 872 P.2d 574, 30 Cal. Rptr. 2d 33 (1994) (same); Richmond v. State, supra, 330 Md. 228 (“the doctrine of imperfect self-defense, like that of hot-blooded response to adequate provocation, does not serve to exonerate a defendant, ‘but mitigates murder to voluntary manslaughter’ ”); State v. Abeyta, 120 N.M. 233, 240, 901 P.2d 164 (1995) (“[I]f the jury rejects the theory of self-defense, it may still find the defendant acted under provocation of fear and may mitigate the charge of murder to the lesser charge of voluntary manslaughter. . . . [T]he claim of imperfect self-defense simply presents an issue of mitigating circumstances that may reduce murder to manslaughter.” [Citations omitted; internal quotation marks omitted.]).

Requiring a finding of the requisite mental state corresponding to the greater offense as a condition precedent to reduction to an offense of lesser culpability is consistent with our own construction of the concept, as reflected in our treatment of extreme emotional disturbance as a basis for mitigation of a murder charge to manslaughter. General Statutes § 53a-54a explicitly authorizes the affirmative defense of extreme emotional disturbance as a permissible means of mitigating the offense of murder to the lesser offense of first degree manslaughter. Under an instruction for extreme emotional disturbance, as with imperfect self-defense as applied by other jurisdictions, the defendant must be found to have intentionally caused the death of the victim before the crime can be mitigated downward to a lesser offense. In commenting on the United States Supreme Court’s determination in Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), that it was permissible to place the burden of proof for extreme emotional disturbance on the defendant, we stated that “the defense of extreme emotional disturbance does not serve to negate intent, but rather is raised to establish circumstances that mitigate culpability.” State v. Elliott, 177 Conn. 1, 6, 411 A.2d 3 (1979). “The purpose of the defense is to render the accused less culpable because his intentional acts were caused by an extreme emotional disturbance.” (Emphasis added.) State v. D’Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982).

Thus, the critical question in evaluating both State v. Maselli, supra, 182 Conn. 66, and State v. Knighton, supra, 7 Conn. App. 223, is whether this court or the Appellate Court endorsed a mitigation scheme or an acquittal first scheme, in the event that the defendant presents evidence that he held an honest but objectively unreasonable belief in the need to use deadly physical force.

The defendant claims that this court adopted the doctrine of imperfect self-defense on the basis of our statement in Maselli that “[t]he jury might well have concluded that for the defendant to have believed under the circumstances revealed by the evidence that the victim was about to use deadly force upon him so that it was necessary to fire eight shots at point blank range was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness.” State v. Maselli, supra, 182 Conn. 73. We disagree, and instead, interpret the relevant portions of that decision to stand for the proposition that, if evidence is presented that the defendant had an honest but unreasonable belief in the need to use physical force, such evidence may be sufficient for the jury to find the defendant innocent of the greater ciime for which specific intent is required, and guilty of the lesser included offense for which recklessness is required, and therefore, the jury should receive a Whistnant lesser included offenses instruction on that basis.

In Maselli, the defendant, a passenger sitting in the front seat of a taxi, killed the driver of the taxi by firing eight shots from a pistol at close range. Id., 68. After a jury trial, the defendant was found guilty of manslaughter in the first degree in violation of General Statutes § 53a-55, as a lesser offense included in the charge of murder in violation of § 53a-54a (a). The defendant appealed claiming, inter alia, “that the two kinds of manslaughter in the first degree submitted to the jury [were] not properly included in the charge of intentional murder set forth in the indictment . . . .” State v. Maselli, supra, 182 Conn. 68. We concluded that the charge under § 53a-55 (a) (3) properly was included in the charge as a lesser included offense, specifically stating that as a matter of law, “any lesser degree of homicide may be considered by the trier, subject to the requirements of State v. Whistnant, [supra, 179 Conn. 585], that the evidence does support a conviction of the lesser included offense and that the elements differentiating the lesser offense are sufficiently in dispute to justify finding the defendant inno cent of the greater offense but guilty of the lesser.” (Emphasis added.) State v. Maselli, supra, 72.

We then noted that the defendant did not make any claim in his brief that the evidence would not support a conviction of manslaughter under § 53a-55 (a) (3). Id., 73. In other words, the defendant did not contend that, even if we found as a matter of law that a charge under § 53a-55 (a) (3) properly could have been included as a lesser offense of murder under § 53a-54a, the actual evidence before the jury would not have permitted a lesser included offense instruction for § 53a-55 (a) (3). “During argument, however, the question did arise of the sufficiency of the evidence to support a finding that the defendant’s avowedly intentional shooting of the victim constituted ‘reckless’ conduct creating a grave risk of death to the victim under circumstances evincing an extreme indifference to human life, as proscribed by subsection (a) (3).” Id. We concluded that there was sufficient evidence to permit a Whistnant lesser included offense instruction on § 53a-55 (a) (3), stating: “It appears that the defendant claimed neither insanity nor extreme emotional disturbance at the trial, but sought acquittal solely upon the ground of self-defense. The trial court instructed the jury upon the use of deadly physical force in defense of the person in accordance with General Statutes § 53a-19, charging that ‘[i]t is the facts as they reasonably appear to the defendant at the time he acted which measure the existence of the right of self-defense.’ The jury might well have concluded that for the defendant to have believed under the circumstances revealed by the evidence that the victim was about to use deadly force upon him so that it was necessary to fire eight shots at point blank range was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness. General Statutes § 53a-3 (13).” Id., 73.

The previously quoted description by the Maryland Supreme Court in Richmond, distinguishing between the doctrine of imperfect self-defense and the application of a lesser included offenses instruction, aptly describes the quoted passage from Maselli. “[A] defendant not entitled to mitigation may present as a defense evidence of an honestly held though objectively unreasonable belief that is inconsistent with the specific intent required to convict.” Richmond v. State, supra, 330 Md. 234. This is exactly what we concluded in the quoted passage from Maselli. Nothing in the language of Maselli suggests our endorsement of the doctrine of imperfect self-defense, that is, that under Connecticut law, the jury in Maselli could have found that the defendant intended to cause the death of the victim and so caused it, and then have had his culpability mitigated to a lesser charge of first degree manslaughter in violation of § 53a-55 (a) (3).

We reach a parallel conclusion concerning the defendant’s argument as to the Appellate Court’s similar statements in Knighton. In that case, the evidence at trial showed that the defendant and victim had been involved in a confrontation earlier in the day, and later that evening returned to the same bar. State v. Knighton, supra, 7 Conn. App. 224. Although some witnesses testified that they did not see the victim with a gun, the defendant asserted that the victim was about to draw a gun on him, and therefore, he went over to where the victim stood, drew his own gun and shot the victim four times. Id., 225. The defendant was charged with murder in violation of § 53a-54a, but was convicted, after a jury trial, of manslaughter in the first degree in violation of § 53a-55. Id., 224.

On appeal, the defendant claimed, inter alia, that the trial court incorrectly charged the jurors that they could consider manslaughter in the first degree as a lesser included offense of murder. Id., 225. The Appellate Court rejected this argument, relying in large part on our holding in Maselli. Id., 236-37. The court stated— and it is upon this statement that the defendant in the present case relies — that “the jury could have concluded that while the defendant did not intend to kill [the victim], his belief that he could protect himself only by firing four shots at [the victim] ‘was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness.’ State v. Maselli, supra, [182 Conn.] 73.” State v. Knighton, supra, 7 Conn. App. 237. We interpret this statement to mean simply that the jury had before it evidence by which it could have concluded that the defendant did not intend to kill the victim, that is, he did not have the requisite mental state for a guilty verdict under the specific intent crime of murder, but instead, he acted with the lesser mental state required in order to convict the defendant of manslaughter in the first degree in violation of § 53a-55 (a) (3).

The Appellate Court went on to hold that “[additionally, the jury could have found that the conduct which resulted in the death was not limited to the actual shooting but rather encompassed the whole course of conduct the defendant engaged in: going into a crowded bar with a loaded gun; approaching the defendant, whether at his own initiative or by invitation, with a loaded gun; leaving the bar after the shooting without first securing medical attention for [the victim]. The jury reasonably could have found that through this course of conduct, the defendant did not intend to kill [the victim], nor to cause him serious physical injury, but did recklessly engage in conduct which created a grave risk of causing his death and thereby did cause his death. The court did not err in charging the jury on manslaughter.” Id. This statement also explicitly reflects the principles embodied in the application of a lesser included offense instruction, whereby the jury could have found that “the defendant did not intend to kill [the victim], nor to cause him serious physical injury”; id.; that is, the defendant did not have the requisite mental state for a finding of guilt on the greater offense. Nothing in the language of Knighton even implicitly suggests that the Appellate Court determined a process of mitigation would be permissible in these circumstances.

Unlike the mitigation scheme for extreme emotional disturbance, the doctrine of imperfect self-defense is not a part of our Penal Code. Further, the appellate courts of this state have never recognized explicitly the doctrine of imperfect self-defense nor, contrary to the defendant’s claims, have we recognized it implicitly. We conclude, therefore, that both Maselli and Knighton stand for the proposition that a defendant may present as a defense evidence of an honestly held though objectively unreasonable belief that is inconsistent with the specific intent required to convict on the greater offense and, therefore, if acquitted of that greater offense, the defendant may have the jury instructed on lesser included offenses in accordance with the requirements of Whistnant.

B

While we have concluded that the doctrine of imperfect self-defense is not available to the defendant as a matter of law, we also note that the instruction actually sought at trial in the present case, although labeled as a request for an imperfect self-defense theory of defense, was simply a request for a Maselli-type lesser included offense jury instruction.

The defendant’s references to the doctrine of imperfect self-defense in the request to charge are limited to the statements that “[i]f either [the defendant’s] belief or his response were unreasonable, the law recognizes what is called imperfect self-defense. Imperfect self-defense does not completely eliminate the defendant’s liability, but it reduces that culpability to the level of recklessness. Imperfect self-defense constitutes recklessness when it demonstrates that the defendant’s act, although not undertaken with a conscious objective to cause death or injury ‘was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness.’ ”

These statements amount to nothing more than a request for a Maselli-type lesser included offense instruction. In the first sentence, the defendant incorrectly states that the imperfect self-defense doctrine is recognized in Connecticut. In the second sentence, he accurately describes the doctrine — as it exists in other jurisdictions — as one by which the defendant’s culpability may be reduced, that is, mitigated. The third sentence essentially rephrases our statements in Maselli, and as such, constitutes a request for a Whistnant lesser included offense instruction. The same is true of the text of the actual instructions sought. The proposed instructions state that the defendant had an honest but unreasonable belief in the need to use deadly force and, therefore, he could be found guilty of the lesser included offenses of assault in the second degree in violation of General Statutes § 53a-60 (a) (3), and assault in the second degree with a firearm in violation of General Statutes § 53a-60a. This also constitutes a request for a Whistnant instruction consistent with our decision in Maselli. Simply put, that which the defendant actually sought by his requested charge of “imperfect self-defense” is exactly the lesser included offense charge which the Appellate Court already has determined he is entitled to on remand.

II

The defendant’s second claim is that the Appellate Court improperly concluded that the trial court did not abuse its discretion in precluding him from introducing into evidence four of the victim’s previous criminal convictions for the purpose of establishing the victim’s violent character. We conclude that the trial court did not abuse its discretion. Accordingly, we affirm the decision of the Appellate Court as to this issue.

The defendant sought to admit five misdemeanor offenses of which the victim had been convicted, namely, (1) assault in the third degree in violation of General Statutes § 53a-61, committed against the defendant in October, 1991, (2) assault in the third degree in violation of § 53a-61, committed against the victim’s sister in April, 1990, (3) criminal trespass in the first degree in violation of General Statutes § 53a-107, by violating a restraining order obtained by Rodriguez in March, 1990, (4) breach of the peace in violation of General Statutes § 53a-181 in March, 1990, and (5) assault in the third degree in violation of § 53a-61, committed against Rodriguez in March, 1988. The defendant sought admission of these prior convictions on the ground that, as convictions for violent crimes, they were admissible on the issue of whether the victim was the initial aggressor, pursuant to our decision in State v. Miranda, 176 Conn. 107, 109-10, 405 A.2d 622 (1978). The trial court admitted the conviction for assault in the third degree against the defendant in October, 1991, but excluded the four remaining misdemeanor convictions based on their dissimilarity from the incident of aggression at issue, and further, because, according to the trial court, “[their] relevance, if any, is minimal, and [their] prejudice is substantial,” such that their admission would do nothing but “arouse the jury against the victim.”

“In State v. Miranda, [supra, 176 Conn. 109-10], we held that evidence of a homicide victim’s violent character, regardless of the extent of the accused’s knowledge of such character, may be offered as evidence by the accused to show that the victim was the aggressor in their encounter. Although, in certain circumstances, the victim’s prior convictions of crimes of violence may be admitted, we emphasized that the accused was not authorized ‘to introduce any and all convictions of crimes involving violence, no matter how petty, how remote in time, or how dissimilar in their nature to the facts of the alleged aggression. . . .’ State v. Miranda, supra, 114.” State v. Bember, 183 Conn. 394, 399, 439 A.2d 387 (1981). We also have concluded that the trial court may exclude merely cumulative evidence related to a homicide victim’s character. State v. Mason, 186 Conn. 574, 581, 442 A.2d 1335 (1982).

Moreover, “the probative value of the evidence of certain convictions rests in the sound discretion of the trial court.” State v. Miranda, supra, 176 Conn. 114; see also State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Maldonado, 193 Conn. 350, 365, 478 A.2d 581 (1984). It is well settled that our review is limited to whether there was an abuse of that discretion. See State v. Small, 242 Conn. 93, 109-10, 700 A.2d 617 (1997); State v. Carter, 228 Conn. 412, 430-31, 636 A.2d 821 (1994).

The victim in the present case was the former boyfriend of Rodriguez and the father of her child. The alleged aggression was the culmination of an ongoing domestic dispute between the victim and the defendant. It was reasonable for the trial court to have determined that the four misdemeanor convictions were neither sufficiently similar in nature to the alleged aggression, nor sufficiently relevant, to be admitted. Accordingly, we conclude that the trial court did not abuse its discretion in excluding the victim’s four prior convictions on that basis. In so deciding, however, we note that in the course of the new trial that the defendant will receive on remand, our determination that the trial court’s evi-dentiary ruling did not constitute an abuse of discretion should not be understood to mean that this evidence must be excluded. The resolution of that evidentiary question in the course of the new trial shall remain within the discretion of the trial court.

The judgment of the Appellate Court is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN and PALMER, Js., concurred.

BORDEN, J.,

with whom CALLAHAN, C. J., and PALMER, J., join, concurring. I agree fully with and join the majority opinion. I write separately only to express my view that this case demonstrates an anomaly in our criminal jurisprudence that, when an appropriate case presents it again, should be eliminated. That anomaly was introduced into our law by this court’s decision in State v. Maselli, 182 Conn. 66, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981), and followed by the Appellate Court in State v. Knighton, 7 Conn. App. 223, 508 A.2d 772 (1986). The anomaly is that, on facts such as those presented in this case and in both Maselli and Knighton, where the homicidal conduct of the defendant would not permit a rational inference of a lesser state of mind than intent to kill, the court is permitted nonetheless to give a lesser included offense instruction permitting the jury to find that the defendant acted with a reckless state of mind. In my view, Maselli was ill-considered and wrongly decided, is inconsistent with the statutory concept of recklessness and with later cases that properly analyze the question involved, and should be overruled. I recognize, however, that we did not certify any such question and, therefore, it would be inappropriate to do so in the present case.

In State v. Maselli, supra, 182 Conn. 68, the defendant, who was charged with murder, had shot and killed the driver of a taxicab in which he was the sole passenger. The defendant “fired eight bullets from a .32 caliber semi-automatic revolver at close range, six of which struck the victim in the head, face and neck.” Id. On the basis of that undisputed evidence, we affirmed the trial court’s instruction of the lesser included offense of manslaughter in the first degree under General Statutes § 53a-55 (a) (3), which provides: “[U]nder circumstances evincing an extreme indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” We stated: “The jury might well have concluded that for the defendant to have believed under the circumstances revealed by the evidence that the victim was about to use deadly force upon him so that it was necessary to fire eight shots at point blank range was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness. General Statutes § 53a-3 (13)." State v. Maselli, supra, 73.

The Appellate Court properly followed the rule of Maselli in State v. Knighton, supra, 7 Conn. App. 225, which involved a barroom killing in which it was undisputed “that the defendant went over to where [the victim] was standing, drew a gun and shot [the victim] four times.” The court stated: “[T]he admission by the defendant that he had acted intentionally did not prohibit the jury from finding that he acted recklessly also. Rather, the jury could have concluded that while the defendant did not intend to kill [the victim], his belief that he could protect himself only by firing four shots at [the victim] ‘was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness.’ State v. Maselli, supra, [182 Conn.] 73.” State v. Knighton, supra, 237.

Without belaboring the points, it is my view that there are several closely related fundamental flaws in the reasoning underlying Maselli. First, it defies both reality and common sense to say that, when a defendant pumps eight bullets into the head, face and neck of a victim from close range, the jury reasonably could find that he acted with anything other than the intent to kill.

Second, the Maselli reasoning justifying an instruction on recklessness misconstrues that concept. Unlike intention, which requires that the actor’s “conscious objective [be] to cause [the] result or to engage in [the] conduct”; General Statutes § 53a-3 (ll); “[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 . . . .” (Emphasis added.) General Statutes § 53a-3 (13). The reasoning of Maselli in effect collapses the first sentence into the second, and ignores the effect of the first. The concept embodied by the first sentence is that, unlike intention, which requires a conscious objective to bring about the proscribed result, recklessness requires an awareness and conscious disregard of the proscribed substantial and unjustifiable risk. Of course, when someone intentionally kills someone else he acts grossly inconsistent with what a reasonable person would do in the same situation. That alone, however, is an insufficient basis on which a jury reasonably can find that he also acted with the kind of conscious disregard required by the definition of recklessness.

Third, the Maselli reasoning makes a mockery of the fourth requirement for a lesser included offense instruction, namely, that “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.” (Emphasis added.) State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Although we recognize, in our lesser included offense jurisprudence, that evidence of states of mind may often permit differing reasonable inferences and, therefore, despite their doctrinal differences, they may be presented to the jury, as lesser included states of mind; State v. Rodriguez, 180 Conn. 382, 404-408, 429 A.2d 919 (1980); the evidence must be “reasonably susceptible” of such inferences. Id., 404. It is fanciful, in my view, to say that, on facts such as those in Maselli, Knighton and the present case, the evidence is reasonably susceptible of an inference of recklessness, rather than intent to kill.

Fourth, the reasoning of Maselli is inconsistent with cases such as State v. Crafts, 226 Conn. 237, 250, 627 A.2d 877 (1993), in which we rejected the defendant’s claim that the evidence would have permitted a lesser included instruction on manslaughter, as opposed to the charge of murder. Our reasoning in that case was, properly in my view, that the evidence would not have permitted the jury reasonably to conclude that the defendant acted recklessly, rather than intentionally, in causing the victim’s death. Id., 251; see also State v. Rasmussen, 225 Conn. 55, 72, 621 A.2d 728 (1993); State v. Smith, 212 Conn. 593, 608-609, 563 A.2d 671 (1989); but see State v. Sivri, 231 Conn. 115, 139, 646 A.2d 169 (1994) (evidence would allow jury reasonably to infer defendant acted with lesser intent).

Eventually, we should eliminate this anomaly in our law. It only selves to permit a jury to render a verdict based on something other than a rational view of the evidence.

MCDONALD, J.,

concurring. I concur in the majority opinion. I only wish to add that under this state’s Penal Code and our cases it is neither necessary nor desirable to adopt a theory of imperfect self-defense in this state.

       The specific certified question in this appeal is: “Did the Appellate Court properly conclude that: (1) the trial court properly had refused to instruct the jury on the defendant’s theory of ‘imperfect self-defense’; and (2) the trial court did not abuse its discretion in precluding the defendant from introducing into evidence four of the victim’s previous criminal convictions for the purpose of establishing the victim’s violent character?” State v. Abdalaziz, 243 Conn. 902, 701 A.2d 334 (1997).

       General Statutes § 53a-59 provides in relevant part: “Assault in the first degree: Class B felony: Nonsuspendable sentences, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 29-35 provides in relevant part: “Carrying of pistol or revolver without permit prohibited. Exceptions, (a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       The defendant also takes issue with the Appellate Court’s determinations that imperfect self-defense does not apply to assault charges, and that the instructions on the lesser included offenses achieve the same result for the defendant. See State v. Abdalaziz, supra, 45 Conn. App. 603. Because we conclude that the doctrine of imperfect self-defense is not available as a theory of defense upon which the jury may receive an instruction, we need not reach, and therefore, decline to address, either of these arguments.

       This is in keeping with the self-evident principle that “the statutory definitions of intentionally and recklessly are mutually exclusive and inconsistent. . . . Where a determination is made that one mental state exists, to be legally consistent the other must be found not to exist.” (Citations omitted; internal quotation marks omitted.) State v. King, 216 Conn. 585, 593-94, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991).

       See also Criminal Jury Instruction Committee of Judges of the Superior Court, A Collection of Connecticut Selected Jury Instructions, Criminal (3d Ed. 1996) § 2.5, p. 2-10 (“Lesser Included Offenses ... If you find that the state has proven beyond a reasonable doubt each of the essential elements of this crime of , you shall find the defendant guilty of the crime of under the count. However, if you find the defendant not guilty of the crime of under this count, you shall then consider the lesser offense of under the count.” [Emphasis added.]).

       General Statutes § 53a-54a (a) provides in relevant part: “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 . . . .”

       More specifically, both of these jurisdictions require a showing of malice, although Maryland does not use the term malice in the application of the statute itself. The California statute, Cal. Penal Code § 187 (a) (Deering 1985), provides: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” See, e.g., In re Christian S., 7 Cal. 4th 768, 773, 872 P.2d 574, 30 Cal. Rptr. 2d 33 (1994) (“The vice is the element of malice; in its absence the level of guilt must decline. . . . The doctrines of imperfect self-defense and diminished capacity arose from this principle.” [Citation omitted; internal quotation marks omitted.]).
      The Maryland statute, Md. Code Ann., Crimes and Punishments § 407 (1998), provides: “First degree murder — Generally.
      “All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind or wilful, deliberate and premeditated killing shall be murder in the first degree.” As the statute is applied, malice is an indispensable element of murder. Cook v. State, 9 Md. App. 214, 217, 263 A.2d 33 (1970). For application of the doctrine of imperfect self-defense in Maryland, see, e.g., Richmond v. State, supra, 330 Md. 227, quoting State v. Faulkner, 301 Md. 482, 486, 483 A.2d 759 (1984) (“ ‘[Imperfect self-defense] operates to negate malice, an element the State must prove to establish murder. As a result, the successful invocation of this doctrine does not completely exonerate the defendant, but mitigates murder to voluntary manslaughter.’ ”).

       The Illinois statute, 720 111. Comp. Stat. Ann. 5/9-1 (West 1998 Cum. Pocket Part), provides in relevant part: “First degree murder .... (á) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
      “(1) he either intends to kill or do great bodily harm to that individual or another or knows that such acts will cause death to that individual or another . . . .” Application of the murder provision in Illinois does not require a showing of malice, but rather, of specific intent. See People v. Johnson, 66 111. App. 3d 84, 92, 383 N.E.2d 648 (1978) (“[t]he mental state necessary for the conviction of murder need only be a knowledge or intent that the acts performed by the defendant created a strong probability of causing death or great bodily harm”).

       The defense of extreme emotional disturbance pertains to two sections of the Penal Code. 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 . . . 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 (he circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude conviction of, manslaughter in the first degree or any other crime. . . .’’
      General S1 atufes § 53a-55 (a) (2) provides that a person is guilty of manslaughter in the first degree when “with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection . . .

       Criminal Jury Instruction Committee of Judges of the Superior Court, A Collection of Connecticut Selected Jury Instructions, Criminal (3d Ed. 1996) § 5.2, p. 5-3, provides in relevant part: “Affirmative Defense of Extreme Emotional Disturbance § 53a-54a (a) and § 53a-55 (a) (2) ... If you find that the defendant has sustained his burden of proving his defense by a preponderance of the evidence, then you must find him not guilty of murder. Furthermore, if you also find that the state has proven beyond a reasonable doubt that the defendant intended to cause the death of , and that he did cause the death of , but under circumstances that do not constitute murder because he was acting under the influence of extreme emotional disturbance, you must find the defendant guilty of manslaughter in the first degree. . . .’’

       The circumstances surrounding the shooting in that case included the following: "The defendant, testified that the driver appeared depressed but that his own mood was optimistic. The driver said something to the effect that there was no hope for the world. The defendant remarked, ‘Only the devil talks like that,.’ The driver responded, 1 am the devil’ and reached to his left side with his right hand to grasp what the defendant imagined was his .44 magnum. The defendant testified that when he saw the pistol in the driver’s right hand pointing in his general direction, he drew his own gun, struck the driver’s right hand which held the pistol and fired the entire clip of bullets in his own weapon at the victim.” State v. Maselli, supra, 182 Conn. 69-70.

       The jury was instructed on manslaughter in the first degree in violation of § 53a-55 (a) (1) and (3). General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person ... 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.”
      General Statutes § 53a-3 (13) defines the mental state of recklessness as follows: “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 court also concluded that the jury properly was instructed on manslaughter in the first degree under § 53a-55 (a) (1). State v. Maselli, supra, 182 Conn. 73. That issue is not relevant to the present analysis.

       Turning to the Model Penal Code for support of his interpretation of Maselli and Knighton, the defendant also contends that our holding in Maselli is similar to § 3.09 of the Model Penal Code (Official Draft and Rev. Comments 1985), which provides: “When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish justification under Sections 3.03 to 3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief that is material to the justiciability of his use of force, the justification afforded by those Sections is unavailable in aprosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.”
      Model Penal Code § 3.09 (2), as further explained in comment (2) to § 3.09 (2), does propose the application of mitigation where the actor’s belief in the need for physical force, though honestly held, is not reasonable. We read it as similar, not to our language in Maselli, but to our use of mitigation in the scheme of extreme emotional disturbance. Compare General Statutes § 53a-54a (a); see footnote 10 of this opinion. We are unpersuaded, therefore, that the Model Penal Code’s approach in this area should alter our reading of Maselli and Knighton.

       In his concurring opinion, Justice Borden cogently identifies a number of problems inherent in Maselli and Knighton, but notes that we did not certify the question of whether these cases should be overruled. We agree with the essence of his substantive remarks, and likewise believe it would not be appropriate for us to consider overruling these cases in the course of this decision. Accordingly, in this opinion we simply have sought to harmonize these two cases with the existing body of law in this area to the extent that harmony is possible, and leave for another day the resolution of the issues raised in Justice Borden’s concurrence.

       The request to charge provided in relevant part:
      “14. Imperfect Self-Defense
      “The defendant also requests lesser included offenses based upon the legal theory o[f] imperfect self-defense. A person acts recklessly with respect to a result described by a statute when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur. Recklessness requires that the jury find that the risk is so great that disregarding it was a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
      “Acting recklessly is inconsistent with acting intentionally. A person cannot both have a result as his conscious objective or purpose, and be disregarding the risk that the result will occur.
      “Recklessness may also be shown by evidence permitting an inference that the defendant did not intend to kill or intend to seriously injure [the victim], but mistakenly believed that he was acting in self-defense. The law permits acts in self-defense if the defendant’s belief that he needed to defend himself was reasonable, and his response was reasonable. If either his belief or his response were unreasonable, the law recognizes what is called imperfect self-defense. Imperfect self-defense does not completely eliminate the defendant’s liability, but it reduces that culpability to the level of recklessness. Imperfect self-defense constitutes recklessness when it demonstrates that the defendant’s act, although not undertaken with a conscious objective to cause death or injury ‘was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness.’ In deciding whether the defendant thought he was acting in self-defense, the jury should consider all of the circumstances surrounding the shooting, including the history between [the defendant], his wife, Carmen Rodriguez and [the victim] and [the victim’s] convictions for crimes of violence.
      “Based upon the foregoing, the defendant requests the following lesser included offenses ....
      “With respect to Count Two:
      “a. [General Statutes] § 53a-60 (a) (3)
      “1. the defendant acted recklessly;
      “2. in that although he believed he was justified in using deadly physical force;
      “3. that belief was not reasonable;
      “4. because of his reckless action, he caused serious physical injury to [the victim]; and,
      “5. he caused that serious physical injury by use of a deadly weapon.
      “b. [General Statutes] § 53a-60a
      “1. the defendant acted recklessly;
      “2. in that although he believed he was justified in using deadly physical force;
      “3. that belief was not reasonable;
      “4. because of his reckless action, he caused serious physical injury to [the victim]; and,
      “5. he caused that serious physical injury by use of a deadly weapon.
      “6. and in the commission of such offense he uses or threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver or other firearm.”

       See footnote 17 of this opinion for the relevant text of the defendant’s request to charge.

       General Statutes § 53a-60 provides in relevant part: “Assault in the second degree: Class D felony, (a) A person is guilty of assault in the second degree when ... (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . .

       General Statutes § 53a-60a provides in relevant part: “Assault in the second degree with a firearm: Class D felony: One year not suspendable. (a) A person is guilty of assault in the second degree with a firearm when he commits assault in the second degree as provided in section 53a-60, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be found guilty of assault in the second degree and assault in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information. ...”

       General Statutes § 53a-61 provides in relevant part: “Assault in the third degree: Class A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon. . . .” Although the legislature has made technical changes to § 53a-61 since 1991, the date of the victim’s conviction, the statute has remained substantively the same. Reference here is to the current revision of that statute.

       General Statutes § 53a-107 provides in relevant part: “Criminal trespass in the first degree: Class A misdemeanor, (a) A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, he enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to him by the owner of the premises or other authorized person; or (2) he enters or remains in a building or any other premises in violation of a restraining order issued pursuant to section 46b-15 or a protective order issued pursuant to section 46b-38c or 54-llc by the Superior Court. . . .” Although the legislature has made technical changes to § 53a-107 since 1990, the date of the victim’s conviction, the statute has remained substantively the same. Reference here is to the current revision of that statute.

       General Statutes § 53a-181 provides in relevant part: “Breach of the peace: Class A or B misdemeanor, (a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or his property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or malees an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which he is not licensed or privileged to do; or (7) places a nonfunctional imitation of an explosive or incendiary device in a public place. For purposes of this section, ‘public place’ means any area that is used or held out for use by the public whether owned or operated by public or private interests. ...” Although the legislature has made technical changes to § 53a-181 since 1990, the date of the victim’s conviction, the statute has remained substantively the same. Reference here is to the current revision of that statute.

       General Statutes § 53a-3 (13) provides: “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 . . .

         General Statutes § 53a-3 (11) provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .”


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    JOSEPH CECE v. FELIX INDUSTRIES, INC., ET AL.
    (SC 16041)
    Callahan, C. J., and Norcott, Katz, Palmer and Peters, -Js.
    Argued March 16
    officially released April 27, 1999

      Lucas D. Strunk, with whom, on the brief, was Jason M. Dodge, for the appellants (named defendant et al.).

      Gregory T. DAuria, assistant attorney general, with whom were William J. McCullough, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Carolyn K. Querijero sad Anthony A. Jannotta, assistant attorneys general, for the appellee (defendant second injury fund).
   Opinion

PETERS, J.

This case concerns the constitutionality of General Statutes § 31-349, as it incorporates Public Acts 1995, No. 95-277 (P.A. 95-277), which sharply limits the future liability of the second injury fund to pay workers’ compensation benefits to workers injured before the effective date of the public act. Although the constitutional challenges to the validity of the statute are grounded in both the contracts clause* and the due process clause of the United States constitution, resolution of these challenges turns on one critical issue. That issue is whether, in its initial enactment of the legislation establishing the second injury fund, the legislature entered into a contract with employees, employers and insurers in this state. We conclude that the presence of such a contractual relationship has not been established under the circumstances of the present case.

The parties submitted a stipulation of facts. The claimant, Joseph Cece, became entitled to workers’ compensation because of an injury to his neck caused by a fall that occurred on January 16,1992, in the course of his employment by the named respondent, Felix Industries, Inc. (employer). Cece’s injury allegedly was exacerbated by a preexisting multi-level degenerative condition. Cece’s employer and the employer’s insurer, CNA Insurance Company (insurer), accepted liability for the injury and entered into a voluntary agreement to pay specified benefits to Cece. Their agreement was approved by the workers’ compensation commissioner on April 27, 1993.

Relying on Cece’s preexisting medical condition, the respondents, the employer and the insurer, sought to transfer to the second injury fund, also a respondent, liability for partial payment of Cece’s workers’ compensation benefits. On February 15, 1993, in accordance with the terms of § 31-349 then in effect, the respondents gave proper notice to the second injury fund of the claim to transfer.

In 1995, the legislature revised § 31-349 to preclude the transfer to the second injury fund of any claims for new work-related injuries. See General Statutes § 31-349 (d). For injuries previously noticed, the revised statute requires a new notice to the second injury fund “by certified mail prior to October 1, 1995 . . . .” General Statutes § 31-349 (e). The respondents failed to re-notify the second injury fund of their claim for transfer of the liability for Cece’s injury. They did, however, fulfill their obligation to pay benefits to Cece for 104 weeks antecedent to transfer. Those payments ceased on December 10, 1995.

On these undisputed facts, the workers’ compensation trial commissioner upheld the respondents’ claim that the second injury fund was liable for payment of benefits to Cece. In the commissioner’s view, the initial notice to the second injury fund was sufficient to transfer liability to that fund because the subsequent changes in § 31-349 had no retroactive effect.

In response to a petition for review filed by the second injury fund, the compensation review board (board) reversed the decision of the trial commissioner and dismissed the respondents’ claim for transfer. The board observed that the re-notification provision in § 31-349 (e) as revised could not be construed as having only a prospective effect because, for the future, the revised statute precluded all transfers to the second injury fund. Relying on the analysis in Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 304-305, 695 A.2d 1051 (1997), the board held that the provision for re-notification would be meaningless unless it were held to operate retroactively. The board declined, on jurisdictional grounds, to address the respondents’ claims that the re-notification provision, if applied retroactively, violated the respondents’ constitutional rights.

In their appeal to this court, the respondents do not challenge the board’s decision that the revised § 31-349 (e) applies to their request to transfer liability for Cece’s injury to the second injuiy fund. They represent, however, that transfer requests often are triggered by employee claims for farther disability benefits for injuries that occur long after the original notice to the employer, the insurer and the second injury fund. In their view, such legitimate subsequent claims make it impracticable for them to avail themselves of the re-notification requirement of the revised § 31-349, codified as § 31-349 (e). In effect, they argue, the revised statute deprives them of the opportunity to transfer legitimate claims for disability benefits to the second injury fund, and thus deprives them of a defense to the payment of disability claims. Consequently, they maintain that the re-notification provision is unconstitutional because it violates both the contract clause and the due process clause of the United States constitution.

The second injury fund argues, to the contrary, that the statutory rights created by the terms of § 31-349 before its 1995 revision do not support any contractual claims against the fund. In the fund’s view, although the workers’ compensation act creates a contract between employees and their employers and the employers’ insurers, the fund is not a party to that contract. According to the fund, because its obligations are statutory rather than contractual, those obligations are merely statements of legislative policy subject to revision by subsequent legislatures. We agree with the fund and, therefore, affirm the decision of the compensation review board.

I

The second injury fund was established by the legislature in 1945 to encourage employers to hire potential employees with preexisting disabilities or injuries. To provide an economic incentive for such employment, the second injury fund provided resources to limit the direct exposure of employers and their insurers to 104 weeks of workers’ compensation payments for injuries exacerbated by the employee’s preexisting condition. See Davis v. Norwich, 232 Conn. 311, 318-21, 654 A.2d 1221 (1995); Civardi v. Norwich, 231 Conn. 287,293-94, 649 A.2d 523 (1994); Hernandez v. Gerber Group, 222 Conn. 78, 82, 608 A.2d 87 (1992). Pursuant to General Statutes § 31-354, the operations of the second injury fund always have been underwritten, not by the state, but by annual special assessment premium surcharges paid by employers or their insurance carriers.

In 1995, a blue ribbon commission, which included both government and industry representatives, reported to the legislature that the second injury fund had not been managed properly and faced substantial unfunded claims for payment. Witnesses testifying at a legislative committee hearing and on the floor of the legislature noted the fact that the problem of employment for the disabled had been attenuated by the enactment of federal and state antidiscrimination statutes.

Concluding that the second injury fund had outlived its usefulness, the legislature adopted P.A. 95-277 to revise § 31-349 in two significant respects. First, the legislature enacted § 31-349 (d), which closes the fund to any transfer of claims for injuries occurring after July 1,1995. Second, in order to permit a determination of potential fund liability for prior injuries, the legislature enacted § 31-349 (e), which requires re-notification to the fund by October 1, 1995, of all claims of which the fund already had notice. It is the constitutional validity of this re-notification requirement that the respondents have questioned.

II

As the respondents acknowledged at oral argument, their constitutional claims cannot succeed unless they can demonstrate that the legislation establishing the second injury fund in 1945 created a contractual relationship between that fund and employees, employers and insurers. Without a contractual relationship, the legislative requirement of timely re-notification of potential transfer claims does not “impair the obligation of contracts.” Similarly, without a contractual relationship, that legislative requirement does not deprive the respondents of a vested property interest entitled to due process protection.

The respondents claim, for two reasons, that the second injury fund embodies a contract between them and the fund. We find neither argument persuasive.

First, the respondents rely on our case law that, long before the creation of the second injury fund, concluded that the workers’ compensation act created a contract between employees and their employers and insurers. See, e.g., Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129, 142, 151 A. 518 (1930). That conclusion has not been questioned subsequently because it is inextricably interwoven with the principle that eligibility for workers’ compensation deprives injured employees of access to otherwise available common-law tort remedies. General Statutes § 31-284 (a); see, e.g., Dowling v. Slotnick, 244 Conn. 781, 799, 712 A.2d 396, cert. denied, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998); Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 381, 698 A.2d 859 (1997).

The respondents claim that, because the second injury fund was designed to permit the transfer of some workers’ compensation benefit payments, the fund is a party to the underlying contract between the employee and the employer or its insurer. We never have held that the fund is a contracting party for all purposes, and we decline so to hold in the context of this case. It is of paramount significance that the transfer process has no effect on the injured worker’s entitlement to payment of benefits. The only issue raised by a limitation on potential transfers is whether the burden of direct payment falls entirely, or only in part, on employers and their insurers. Access to transfers, therefore, bears no relationship to the underlying workers’ compensation contract. See Everett v. Ingraham, 150 Conn. 153, 157, 186 A.2d 798 (1962).

Second, the respondents appear to claim, interstitially, that the statutory enactment of the second injury fund itself manifested a legislative intent to impose a contractual obligation on the fund. Perhaps the legislature might have done so, but the respondents have pointed to no textual support for such an inference. As the fund reminds us, we presume that a statute does not create private vested contractual rights “absent a clear1 showing of legislative intent to the contrary.” Pineman v. Oechslin, 195 Conn. 405, 410-11, 488 A.2d 803 (1985); see also Dodge v. Board of Education, 302 U.S. 74, 78-79, 58 S. Ct. 98, 82 L. Ed. 57 (1937). That presumption is rooted in each legislature’s authority to revisit and to alter the policy decisions of its predecessors. For that reason, among others, the respondents have no claim of estoppel arising out of expectations generated by prior legislation unless they can establish a predicate contractual foundation therefor. They have been unable to do so.

In sum, we conclude that the re-notification provision contained in § 31-349, as revised in 1995, has no constitutional flaw that is cognizable either under the contract clause or the due process clause of the United States constitution. Both constitutional provisions require a showing of a contractual relationship that has not been made under the circumstances of this case.

The decision of the compensation review board is affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-349, as it incorporates P.A. 95-277, provides in relevant part: "(a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second iryury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in apermanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.

        “(b) As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund ....
      “(d) Notwithstanding the provisions of this section, no injury which occurs on or after July 1, 1995, shall serve as a basis for transfer of a claim to the Second Injury Fund under this section. All such claims shall remain the responsibility of the employer or its insurer under the provisions of this section.
      “(e) All claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer pursuant to the provisions of this section. ...”

       Article one, § 10, cl. 1, of the United States constitution provides in relevant pari.: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .”

       The fifth amendment to the United States constitution provides in relevant part,: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . . The fifth amendment is binding on the states as a result of the fourteenth amendment.

       The second injury fund does not concede that Cece’s injury qualifies, on medical grounds, for transfer to the fund.

       Like the present § 31-349 (a), General Statutes (Rev. to 1993) § 31-349 (a) imposed liability on the second injury fund for “a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone . . . .” See Williams v. Best Cleaners, Inc., 237 Conn. 490, 496-501, 677 A.2d 1356 (1996).
      General Statutes (Rev. to 1993) § 31-349 (b) contained only two conditions precedent to transfer of liability to the fund. One was that “the employer or his insurance carrier shall, ninety days before the expiration of the first one hundred four weeks of disability . . . furnish to the custodian [of the second injury fund] a copy of the agreement or award together with all information supporting his claim as to the liability of the second injury fund . . . .” The other was that the employer or his insurance carrier were required to provide notice, to the custodian, of payment of benefits for the first 104 weeks.

       The respondents appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       The respondents refer, in passing, to comparable provisions in the Connecticut constitution, but they advance no reasoned argument that the Connecticut constitution affords them rights that are greater than those afforded by the United States constitution. For this reason, we decline to consider any possible rights that the respondents might have under the state constitution.

       General Statutes § 31-354 provides in relevant part: “(a) There shall be a fund to be known as the Second Injury Fund. Each employer, other than the state, shall, within thirty days after notice given by the State Treasurer, pay to the State Treasurer for the use of the state a sum in payment of his liability under this chapter .... Such sum shall be an amount sufficient to (1) pay the debt service on state revenue bond obligations authorized to be issued under and for the purposes set forth in section 31-354b including reserve and covenant coverage requirements, (2) provide for costs and expenses of operating the Second Injury Fund, and (3) pay Second Injury Fund stipulations on claims settled by the custodian or other benefits payable out of the Second Injury Fund and not funded through state revenue bond obligations and shall be determined in accordance with the regulations adopted pursuant to the provisions of section 31-349g. . . .”

       The respondents have advanced no such claim.

       In light of our rejection of the respondents’ claim that they have an enforceable contract with the second injury fund, we need not address their arguments that the terms of that contract provided the respondents with a defense to payment of compensation benefits dating from the occurrence of Cece’s injury.


author: PER CURIAM.

text:
    EMPLOYERS’ INSURANCE OF WAUSAU ET AL. v. SECOND INJURY FUND ET AL.
    (SC 16021)
    Callahan, C. J., and Norcott, Katz, Palmer and Peters, Js.
    Argued March 16
    officially released April 27, 1999

      Lucas D. Strunk, for the appellants (plaintiff Continental Casualty Company et al.).

      Gregory T. D’Auria, assistant attorney general, with whom were William J. McCullough, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Carolyn K. Querijero and Anthony A. Jannotta, assistant attorneys general, for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

In this declaratory judgment action, two questions have been reserved to this court concerning the constitutionality of each of two provisions of General Statutes § 31-349, as it incorporates Public Acts 1995, No. 95-277 (P.A. 95-277). These provisions sharply limit the future liability of the second injury fund to pay workers’ compensation benefits to workers injured before the effective date of P.A. 95-277. This case is a companion case to Cece v. Felix Industries, Inc., 248 Conn. 457, 728 A.2d 505 (1999), also decided this day.

In Cece, we concluded that § 31-349 (e), which was added in the 1995 revision of the statute, had no constitutional flaw, either under the contracts clause or the due process clause of the United States constitution. In the absence of a contract relationship between the second injury fund on the one hand and employers or their insurers on the other hand, we held that the legislature had the authority to require the fund to be re-notified promptly of potential future claims for transfer of payments to the fund.

In this case, the declaratory judgment action brought by the plaintiffs against the defendants, principally the second injury fund, raises similar issues of constitutionality concerning two provisions in the revised § 31-349. After the parties had agreed on a stipulation of facts, the trial court reserved the questions of law for the advice of this court.

The plaintiffs’ first claim is that the re-notification provision, now codified as § 31-349 (e), is unconstitutional because it impairs their contract rights and deprives them of their right to due process. As we held in Cece, there is no merit to this claim.

The plaintiffs’ second claim is that the limitations provision, now codified as § 31-349 (b), is unconstitutional on the same grounds. Pursuant to § 31-349 (b) (1), even after timely re-notification, an employer or insurer intending to transfer liability to the second injury fund must now notify the custodian of the fund “by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier . . . .”

Although § 31-349 (b) (1) contains a further limitation on access to the second injury fund, the grounds for the plaintiffs’ challenges to its constitutionality are indistinguishable from those advanced in Cece. Again, the premise underlying their constitutional claims is that the second injury fund had a contractual relationship with employees, employers and insurers in this state. In Cece, we expressly held that premise to be unsustainable. We conclude, therefore, that § 31-349 (b) (1) passes constitutional muster.

The questions reserved to this court were:

(1) “Does Public Act 95-277, § 3 [codified as General Statutes § 31-349 subsections (b) and (e)] violate Article I, § 10 of the United States Constitution?” The answer to this question is “No.”

(2) “Does Public Act 95-277, § 3 [codified as General Statutes § 31-349 subsections (b) and (e)] deprive the plaintiffs of a vested property right without due process of law in violation of the Fourteenth Amendment of the United States Constitution and Article 1, § 8 of the Connecticut Constitution?” The answer to this question is “No.”

No costs will be taxed in this court to either party.

       General Statutes § 31-349, as it incorporates P.A. 95-277, provides in relevant part: “(a) The fact that an employee has suffered aprevious disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.
      “(b) As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund ....
      “(d) Notwithstanding the provisions of this section, no injury which occurs on or after July 1, 1995, shall serve as a basis for transfer of a claim to the Second Injury Fund under this section. All such claims shall remain the responsibility of the employer or its insurer under the provisions of this section.
      “(e) All claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer pursuant to the provisions of this section. . . .”

       Article one, § 10, cl. 1, of the United States constitution provides in relevant part: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .”

       The plaintiffs cite the fourteenth amendment to the United States constitution, which incorporates the fifth amendment. The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .”

         We declined to consider possible claims of unconstitutionality under the Connecticut constitution because they had not been briefed separately. The same absence of independent briefing compels the same result in this case.

       The named plaintiff has withdrawn from this action. The remaining plaintiffs are workers’ compensation insurers and administrators, as well as self-insured employers, doing business in Connecticut. They are Constitutional Casualty Company, Transportation Insurance Company, Forge Insurance Company, American Casualty Company, National Fire Insurance of Hartford, Transcontinental Insurance Company, Roadway Express, Connecticut Transit, Gallagher Bassett Services, Inc., Olin Brass-Somers Thinstrip, United States Surgical Corporation, EBI and Central Insurance.

       The other defendants are Christopher Burnham, custodian of the second injury fund; Kevin Saba, state of Connecticut, assistant treasurer; and Jesse Frankl, chairman, Connecticut workers’ compensation commission.

       The reserved questions were reserved to this court.

       Notably, at oral argument in this court, when this case and Cece were argued jointly, counsel presenting all the litigants’ constitutional claims made no distinction between the two cases.

       Because the plaintiffs have briefed no argument that the Connecticut constitution entitles them to relief greater than that afforded by the United States constitution, we presume that the statutory provision that is at issue does not violate the Connecticut constitution.


text:
    HERMAN ROMAN v. EYELETS FOR INDUSTRY, INC., ET AL.
    (SC 15959)
    Berdon, Norcott, Katz, McDonald and Peters, Js.
    Argued March 17
    officially released April 27, 1999

      Dominick C. Statile, for the appellants (defendants).

      Deborah McGill-Membrino, for the appellee (plaintiff).
   Opinion

PER CURIAM.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was granted improvidently.

The appeal is dismissed.

       We granted the defendants’ petition for certification to appeal limited to the following issue: “Did the Appellate Court misapply General Statutes § 31-294c by affirming a compensation review board decision holding that a claimant who had an accepted, compensable leg and ankle injury is not barred from bringing a back claim, allegedly occurring from the same accident, more than one year after the date of the accident, without filing a written notice of claim for the back injury within the first year or otherwise satisfying one of the exceptions to the written notice of claim requirement?” Roman v. Eyelets for Industry, Inc., 245 Conn. 912, 912-13, 719 A.2d 1165 (1998).