State v. Cunningham

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STATE OF CONNECTICUT v. JAMES E.
CUNNINGHAM, SR.
(AC 38322)
Sheldon, Prescott and West, Js.
Argued May 23—officially released September 27, 2016

(Appeal from Superior Court, judicial district of
Fairfield, Kahn, J.)
Glenn W. Falk, assigned counsel, with whom, on the
brief, was John Boeglin, law student intern, for the
appellant (defendant).
Ryan Coyne, certified legal intern, with whom were
Harry Weller, senior assistant state’s attorney, and, on
the brief, John C. Smriga, state’s attorney, and Joseph
J. Harry, senior assistant state’s attorney, for the appel-
lee (state).
Opinion

PRESCOTT, J. The defendant, James E. Cunningham,
Sr., appeals from the judgment of conviction, rendered
after a jury trial, of murder in violation of General Stat-
utes § 53a-54a (a), and carrying a pistol without a permit
in violation of General Statutes § 29-35 (a). The defen-
dant subsequently pleaded guilty to a charge of criminal
possession of a firearm in violation of General Statutes
§ 53a-217 (a), as charged in a part B information. On
appeal, the defendant claims that the trial court violated
his sixth amendment right to present a complete
defense to the charge of murder by precluding defense
counsel during closing argument from delineating the
elements of the lesser included offense of manslaughter
in the first degree with a firearm in order to highlight
the mental state required for murder.1 We affirm the
judgment.
The jury reasonably could have found the following
facts. The victim, Daniel Speller, and the defendant
were friends who had lived together for several weeks
at a house in Bridgeport. On the night of August 5, 2012,
an altercation concerning money arose between the
defendant, who was wearing his .45 caliber pistol, and
the victim. Sometime after midnight on August 6, the
defendant shot the victim three times—in the chest,
arm, and leg—outside of the house in which they lived.
The fatal shot struck the victim in his chest and caused
him to bleed to death within minutes. The defendant
then dragged the victim down some porch stairs and
enlisted the help of a neighbor to wrap the victim’s
body in a white tarp and strap it to a metal rack mounted
to the back of the defendant’s motor vehicle, a Hummer.
The defendant drove the Hummer with the victim’s
body on it to his grandmother’s house, throwing the
murder weapon into a nearby river on his way.2 When
he arrived at his grandmother’s house, the defendant
drove the Hummer into her backyard and concealed it
in a hedge bordering a large, wooded area. At some
time during the night, he returned to the Hummer and
further covered the victim’s body with two plastic gar-
bage bags. Police ultimately discovered the concealed
Hummer and the victim’s body the next morning, at
which point the defendant told the officers, ‘‘You got
me,’’ and, ‘‘I’m not gonna give you any trouble.’’
On August 16, 2013, in a substitute information, the
defendant was charged with murder in violation of
§ 53a-54a (a),3 and carrying a pistol without a permit
in violation of § 29-35 (a).4 At his jury trial, the defendant
admitted that he had shot the victim, loaded him onto
the back of his Hummer, thrown the gun into a river,
and concealed the victim’s body in his grandmother’s
backyard, but repeatedly testified that he had shot the
victim in self-defense. Neither the state nor the defen-
dant requested a jury instruction on any lesser
included offense.
The defendant offered two theories of defense: (1)
that he had acted in self-defense and (2) that he had
not intended to kill the victim, but that he had acted
with the requisite mental state for the crime of man-
slaughter in the first degree.5 According to the defen-
dant, the shooting arose out of an altercation he had
with the victim concerning money. In the defendant’s
version of events, the victim attacked him and tried to
grab his gun, which fell to the ground. At this point,
the defendant was on the ground as the victim kicked
him. The defendant reached for the gun and shot at the
victim, who proceeded to run away across the street.
It was not until the victim was across the street that
the defendant noticed that the victim was shot. Thus,
according to the defendant, he did not intend to kill
the victim and his conduct constituted self-defense.
Defense counsel began his closing argument by
arguing that the defendant did not have the requisite
intent to kill the victim, but rather acted with the requi-
site mental state for the crime of manslaughter, reck-
lessness: ‘‘If two of us get in an altercation and we’re
friends and we wrestle or tussle, and there is a gun
involved and someone gets shot, it’s a manslaughter.
The intent isn’t to kill your friend, but you’re in a fight.
If I wait for you outside and you come around the
corner, and I am waiting for you and I shoot you, it’s
a murder. . . . And therein lies the issue in this case
because he is not charged with manslaughter; he is
charged with murder. So, the only issue, the narrow
issue, that you have to figure out is what his intent
was.’’ Defense counsel argued that the defendant ‘‘didn’t
intend to kill [the victim]. He intended to get him off
of him.’’
Later in his closing argument, defense counsel sought
to explain to the jury the elements of murder, self-
defense, and manslaughter in the first degree by reck-
less indifference, and to supplement his explanation
with a visual presentation listing the elements, as codi-
fied by statute, via an overhead monitor. Defense coun-
sel argued to the jury: ‘‘I typically during closing
argument don’t go [into] the law with specificity, but I
think in this case it is somewhat important. It will be
brief and I’ll go through it quickly, and Her Honor will
actually direct you on what [that] is. And Her Honor’s
interpretation and statement of law is what governs this
trial, but at the same time I want everyone to understand
exactly what it is the state has to prove beyond a reason-
able doubt. The first thing—the first count that you are
going to consider is the murder count. And what I have
done is, I have basically taken what the murder count
is. And I’ll read it to you because I know from there
you really can’t see with the overhead [monitor].
***
‘‘Now, when we start talking about self-defense, and
you have that claim, and you’ll have to determine
whether or not he used—he was justified in using the
force that he used. . . . And like I said, this thing [on
the overhead monitor] was just taken straight from the
judge’s charge. . . .
‘‘And the last thing I’ll read to you because I actually
think that it’s true during this process, is the manslaugh-
ter in the first degree with a firearm. With intent to
cause serious physical—’’
At this point in the proceedings, the state objected,
and the court sustained the objection, although no basis
for the objection was stated. Defense counsel did not
ask to be heard with respect to the objection or request
that the court clarify the scope of its ruling. Rather,
he proceeded with his closing argument:6 ‘‘As I said,
manslaughter is something that happens when two peo-
ple get in an argument, in a fight, a gun is drawn, and
someone gets hurt—and friends get hurt, and that is
what this case is.
***
‘‘[T]here’s a reasonable doubt and a reasonable
hypothesis between what happened between [the vic-
tim and the defendant]. It is reasonable to think they
got into an argument and he was shot because he got
into an argument. That makes it a manslaughter. Your
problem is going to be that you can’t find him guilty of
manslaughter because the state chose not to charge
him, so you’re stuck. The state chose not to add lesser
includeds, and the state chose not to give you the option
of what he is actually guilty of. So, you have to make
the tough decision to find him not guilty because you
can’t find what his intent is.’’
In response, the state argued in its rebuttal closing
argument that the defendant chased the victim and shot
him from behind, and, thus, intended to kill the victim:
‘‘First of all, it’s murder; it’s not manslaughter. . . .
What counsel just told is, my guy is guilty, but what
the state charged with was wrong. He didn’t intend to
kill him. But if you believe that he intended to kill him,
we’re claiming self-defense. Does that make sense?7 It’s
manslaughter, but if you don’t find it is manslaughter,
then here is a defense I can use—it’s self-defense . . . .
‘‘The state proved murder, not manslaughter. He
intended to kill him. That is what the intent is of firing
a .45 caliber handgun at somebody. Your intent was
not to warn him.’’ (Footnote added.)
After closing argument, the court elaborated on its
ruling outside the presence of the jury: ‘‘There was only
one objection during the defense’s argument, and that
was to a—so, there is a record of it. Counsel put up on
the screen a slide with the elements of the offense of
manslaughter in the first degree by reckless indiffer-
ence. I sustained the objection. That is not appropriate.
‘‘In this case neither side requested a lesser included
offense charge. Typically, those requests come from
the defense and not the state, and the defense didn’t
request it. It would be confusing to the jury and com-
pletely inappropriate to instruct them on the elements
of an offense which has not been charged. And so those
are the reasons why I sustained the objection on that
ground.
‘‘Now, I understand the defense may not have wanted
a lesser included and to give the jury that option, and
that is your call, strategically. But you can’t be
instructing them about something that is not part of
this case and has not been charged or an element of
this offense. So, for those reasons, I sustain the objec-
tion.’’ The defendant did not take further action with
respect to the court’s ruling or seek to have the slide
that listed the elements of manslaughter marked for
identification.
Following the court’s elaboration, the jury began
deliberating, and on August 23, 2013, found the defen-
dant guilty of both counts. The defendant subsequently
pleaded guilty to criminal possession of a firearm in
violation of § 53a-217 (a). On February 18, 2014, the
court imposed a total effective sentence of sixty years
of incarceration. This appeal followed.
The defendant claims on appeal that the court vio-
lated his sixth amendment right to present a defense
by precluding defense counsel during closing argument
from delineating the elements of the lesser included
offense of manslaughter in the first degree with a fire-
arm. Although the defendant concedes that he did not
preserve this claim properly at trial, he seeks review
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015). Specifically, he argues
that his claim satisfies the first prong of Golding
because, although he did not have the slide marked for
identification, the court described the contents of the
slide on the record. He also argues that his claim satis-
fies the second and third prongs of Golding because
the court violated his sixth amendment right to argue
to the jury that the state had not satisfied its burden
of proving beyond a reasonable doubt an essential ele-
ment of the offense, namely, that he intended to cause
the death of the victim. Finally, he argues that the state
cannot prove beyond a reasonable doubt that this error
was harmless.
The state responds that the defendant’s claim is not
entitled to review under Golding because the defen-
dant’s claim is not constitutional in nature and, there-
fore, fails under the second prong of Golding. The state
contends that the claim is not of a constitutional magni-
tude because it arises out of the common-law doctrine
regarding lesser included offenses. Even if this claim
satisfies the second prong of Golding, the state argues
that the defendant has failed to establish that his sixth
amendment right to present a defense was violated
because he was not precluded from making the argu-
ment that he did not have the requisite intent to commit
murder, but rather had the requisite intent to commit
manslaughter. Last, the state argues that any error was
harmless beyond a reasonable doubt. We agree with
the state that the defendant’s claim fails under the third
prong of Golding.
‘‘As we recently have noted, [u]nder Golding review
. . . 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 constitu-
tional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . .
exists and . . . 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.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Polanco, 165 Conn. App. 563, 572, 140 A.3d
230, cert, denied, 322 Conn. 906, 139 A.3d 708 (2016).
‘‘The first two [prongs of Golding] involve a determina-
tion of whether the claim is reviewable; the second two
. . . involve a determination of whether the defendant
may prevail.’’ (Internal quotation marks omitted.) State
v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert.
denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110
(2005). ‘‘Because a defendant cannot prevail under
Golding unless he meets each of those four conditions,
an appellate court is free to reject a defendant’s unpre-
served claim upon determining that any one of those
conditions has not been satisfied.’’ State v. Brunetti,
279 Conn. 39, 54, 901 A.2d 1 (2006), cert. denied, 549
U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007).
The defendant first argues that the record is adequate
for review because the court stated on the record the
basis for its ruling and described the content of the
excluded slide as having listed the elements of man-
slaughter in the first degree. Although the defendant
failed to have the slide marked for identification pur-
poses, the state concedes that the record is adequate
for review of this claim because the court described its
content on the record. We agree with both parties.
Although ‘‘[i]t is incumbent upon the [defendant] to
take the necessary steps to sustain [his] burden of pro-
viding an adequate record for appellate review’’; (inter-
nal quotation marks omitted) id., 63; the record
independently may be adequate to establish the sub-
stance of an excluded exhibit if its content is stated on
the record. See Filippelli v. Saint Mary’s Hospital, 319
Conn. 113, 151, 124 A.3d 501 (2015). Thus, in the present
case, to the extent that the defendant’s claim requires
this court to consider the contents of the slide, the
record is adequate for review because the trial court
described its content on the record.
Although the state concedes that the record is ade-
quate for review, the state, nevertheless, contends that
the defendant’s claim is not reviewable because it is
not of a constitutional nature, and, thus, fails under
the second prong of Golding. Specifically, the state
contends that the defendant’s claim implicates his com-
mon-law right to a jury instruction on a lesser included
offense.8 According to the state, to be entitled to a
jury instruction on a lesser included offense, the party
seeking the instruction must satisfy the four-pronged
test established in State v. Whistnant, 179 Conn. 576,
588, 427 A.2d 414 (1980),9 and because the defendant
did not satisfy these four prongs, he could not argue
the elements of manslaughter, which is a lesser included
offense of murder, to the jury in his closing argument.
The state misinterprets the defendant’s claim. The
defendant’s claim does not implicate his common-law
right to a jury instruction on a lesser included offense
because he did not ask for one. Rather, the defendant
argues that the court violated his sixth amendment right
to argue that the state had failed to satisfy its burden
to prove an essential element of the crime charged
beyond a reasonable doubt, namely, that he had the
requisite intent to kill the victim. The defendant con-
tends that the prohibited argument bore directly on his
theory of the defense. Such a claim is constitutional
in nature.
The sixth amendment, which is applicable to the
states through the fourteenth amendment, guarantees
to the accused in all criminal prosecutions the right to
the assistance of counsel, which includes the opportu-
nity to participate fully and fairly in the adversary pro-
cess. Herring v. New York, 422 U.S. 853, 856–58, 95 S.
Ct. 2550, 45 L. Ed. 2d 593 (1975). ‘‘The opportunity for
the defense to make a closing argument in a criminal
trial has been held to be a basic element of the adversary
process and, therefore, constitutionally protected under
the sixth and fourteenth amendments. . . . Closing
argument is an integral part of any criminal trial, for it
is in this phase that the issues are sharpened and clari-
fied for the jury and each party may present his theory
of the case. Only then can [counsel] . . . argue the
inferences to be drawn from all the testimony, and point
out the weaknesses of their adversaries’ positions. And
for the defense, closing argument is the last clear chance
to persuade the trier of fact that there may be reason-
able doubt of the defendant’s guilt. . . .
‘‘The right to present a closing argument is abridged
not only when a defendant is completely denied an
opportunity to argue before the court or the jury after
all the evidence has been admitted, but also when a
defendant is deprived of the opportunity to raise a sig-
nificant issue that is reasonably inferable from the facts
in evidence. This is particularly so [if] . . . the prohib-
ited argument bears directly on the defendant’s theory
of the defense.’’ (Citations omitted; internal quotation
marks omitted.) State v. Arline, 223 Conn. 52, 63–64,
612 A.2d 755 (1992).
In the present case, the defendant claims that by
prohibiting him from listing the elements of manslaugh-
ter in the first degree, the court deprived him of the
opportunity to raise a significant issue bearing directly
on his theory of defense, which was that he did not
have the requisite intent to commit murder because he
had the requisite intent to commit manslaughter. The
state is correct that a defendant has no constitutional
right to a jury instruction on a lesser included offense.
There is, however, no Connecticut precedent that pre-
cludes a defendant from referring to a lesser included
offense, on which the jury is not instructed, during
closing argument as a means by which to undermine
an element of the charged offense.10 Although this claim
involves the elements of a lesser included offense, it
does not implicate the defendant’s common-law right
to a jury instruction on a lesser included offense, but
rather implicates his sixth amendment right to argue
during closing argument that the state had failed to
prove beyond a reasonable doubt an element of the
charged crime. Accordingly, the defendant’s claim is
of a constitutional magnitude, and, thus, satisfies the
second prong of Golding.
Although we agree with the defendant that his claim
satisfies the second prong of Golding, we do not agree
that the court violated his sixth amendment right to
present a closing argument, and, therefore, the defen-
dant’s claim fails under the third prong of Golding. In
support of his claim, the defendant argues that his right
to present a closing argument was violated because, by
precluding him from listing the elements of manslaugh-
ter in the first degree, the court prohibited him from
arguing a significant issue that bore directly on his
theory of defense, which was that he did not possess the
requisite intent for murder because he had the requisite
intent for manslaughter. The state counters that,
although he was precluded from listing the elements
of manslaughter, the defendant was allowed to argue
his theory of defense—that he did not intend to kill the
victim, but rather that he recklessly killed the victim
and, thus, may have committed manslaughter. We agree
with the state.
We review the limits that the trial court imposes on a
defendant’s closing argument for an abuse of discretion.
‘‘The presiding judge must be and is given great latitude
in controlling the duration and limiting the scope of
closing summations. He may limit counsel to a reason-
able time and may terminate argument when continua-
tion would be repetitive or redundant. He may ensure
that argument does not stray unduly from the mark, or
otherwise impede the fair and orderly conduct of the
trial.’’ Herring v. New York, supra, 422 U.S. 862. ‘‘It is
within the discretion of the trial court to limit the scope
of final argument to prevent comment on facts that
are not properly in evidence, to prevent the jury from
considering matters in the realm of speculation and to
prevent the jury from being influenced by improper
matter that might prejudice its deliberations.’’ (Internal
quotation marks omitted.) State v. Joyce, 243 Conn. 282,
305–306, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077,
118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998). Additionally, a
trial court retains the discretion to prevent the presenta-
tion to the jury of a matter that poses an undue risk of
confusing the jury. See Crane v. Kentucky, 476 U.S.
683, 689–90, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)
(‘‘judges . . . [have] wide latitude to exclude evidence
that is [repetitive . . . only] marginally relevant or
poses an undue risk of harassment, prejudice, [or] con-
fusion of the issues’’ [internal quotation marks
omitted]).
‘‘[Although] we are sensitive to the discretion of the
trial court in limiting argument to the actual issues of
the case, tight control over argument is undesirable
when counsel is precluded from raising a significant
issue.’’ (Internal quotation marks omitted.) State v.
Joyce, supra, 243 Conn. 306. ‘‘The right to present a
closing argument is abridged . . . [if] a defendant is
deprived of the opportunity to raise a significant issue
that . . . bears directly on the defendant’s theory of
the defense.’’ State v. Arline, supra, 223 Conn. 64.
To the extent that a court’s ruling concerning the
restrictions imposed on a defendant’s closing argument
is ambiguous, the defendant bears the burden of
obtaining clarification. See State v. Ricardo R., 305
Conn. 581, 594, 46 A.3d 139 (2012) (‘‘[i]f defense counsel
believed that the trial court’s ruling [concerning the
scope of the limits placed on defense counsel’s ques-
tioning on a certain subject] was unclear, it was defense
counsel’s obligation to seek further clarification’’ [inter-
nal quotation marks omitted]).
In the present case, the defendant argues that he
was precluded from arguing his theory of defense, that
theory being that he recklessly killed the victim,
because the court prohibited defense counsel from
delineating and arguing the elements of manslaughter,
and without a listing of the elements of manslaughter,
the jury could not have understood the difference
between murder and manslaughter. The defendant con-
cedes, however, that the court’s ruling permitted
defense counsel to argue that he did not have the spe-
cific intent to murder and to present a definition of
manslaughter, but alleges that his definition of man-
slaughter was not adequate without listing all of the
elements of manslaughter.
The court’s elaboration on its ruling establishes that
it precluded the defendant from showing the slide listing
the elements of manslaughter and from delineating to
the jury, either through the slide or orally, all of the
elements of manslaughter. Concerning the slide, the
court explained: ‘‘[Defense] [c]ounsel put up on the
screen a slide with the elements of the offense of man-
slaughter in the first degree by reckless indifference. I
sustained the objection. That is not appropriate.’’ Con-
cerning listing the elements of manslaughter generally,
by slide or orally, the court explained: ‘‘It would be
confusing to the jury and completely inappropriate to
instruct them on the elements of an offense which has
not been charged. . . . [Y]ou can’t be instructing them
about something that is not part of this case and has
not been charged . . . .’’
On the basis of the court’s elaboration, it is clear that
the court did not preclude defense counsel from arguing
that the defendant lacked the requisite intent to commit
murder because he may have had the requisite intent
to commit manslaughter. The court merely precluded
defense counsel from listing all of the elements of man-
slaughter in the first degree. Defense counsel was per-
mitted to argue, and did argue, that the defendant did
not intend to kill the victim, but rather had a different
mental state, and, thus, did not commit the crime of
murder. Specifically, following the court’s sustaining
the prosecutor’s objection, defense counsel used the
term ‘‘manslaughter’’ without objection three times.
Defense counsel argued that the defendant’s actions,
such as shooting the victim in the shoulder, were proof
that he did not intend to kill the victim. Additionally,
he argued that absent the requisite intent to kill the
victim, the defendant committed manslaughter, and,
thus, could not be found guilty of murder.
Furthermore, at the beginning of defense counsel’s
closing argument, without objection, he argued that the
defendant did not intend to kill the victim, but rather, at
most, may have committed manslaughter. Specifically,
defense counsel argued: ‘‘If two of us get in an alterca-
tion and we’re friends and we wrestle or tussle, and
there is a gun involved and someone gets shot, it’s a
manslaughter.’’ From this argument, the jury reasonably
could have concluded that, although the defendant shot
the victim, he did not do so with the intent to kill him.
On the basis of the arguments that defense counsel
made during closing argument, despite the court’s rul-
ing, defense counsel was able to argue, or had a fair
opportunity to argue, his theory of defense, which was
that the defendant did not have the requisite intent to
commit murder because he recklessly killed the victim
and, thus, may have committed a different crime, man-
slaughter. Defense counsel may have been precluded
from making this argument in the precise fashion that
he wished by delineating all of the elements of man-
slaughter, but such a limitation was within the court’s
sound discretion. Despite this limitation, defense coun-
sel was permitted to argue, and did argue or had a fair
opportunity to argue, his theory of defense to the jury.11
We fully are aware that the court’s explanation for
its ruling was not stated until after the conclusion of
closing arguments. Nevertheless, to the extent that
defense counsel was confused as to whether the court’s
ruling precluded him from arguing that the defendant
had the requisite mental state to commit manslaughter,
not murder, it was his duty to seek clarification from
the court regarding the precise nature of its ruling and
any limitations placed on him regarding the scope of
closing argument. See State v. Ricardo R., supra, 305
Conn. 594. Additionally, on the basis of our review of
both parties’ arguments following the court’s ruling,
neither party appeared to believe that the court’s ruling
prevented them from addressing the topics of intent
and manslaughter, as both parties did in fact make
such arguments.12 Thus, although the court explained
its ruling after the conclusion of closing arguments, we
can infer from both parties’ subsequent arguments that
they understood the court’s ruling to mean, as it later
clarified, that the parties could not list, orally or by
slide, the elements of manslaughter in the first degree.13
In sum, although the court precluded the defendant
from listing, orally or by projecting on a slide, all of
the elements of manslaughter in the first degree, the
defendant was not deprived of the opportunity to raise
a significant issue that bore directly on his theory of
defense. Rather, defense counsel was allowed to pre-
sent, and had a fair opportunity to present, his theory
of defense, which was that the defendant lacked the
requisite mental state for the crime of murder because
he did not intend to kill the victim when he shot him.
Accordingly, we conclude that the trial court did not
abuse its discretion by precluding the defendant during
his closing argument from listing for the jury, orally or
by slide, all of the elements of manslaughter in the first
degree. Therefore, a constitutional violation does not
exist, and the defendant’s claim fails under the third
prong of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On appeal, the defendant does not raise any claims that challenge his
conviction of carrying a pistol without a permit in violation of § 29-35 and
criminal possession of a firearm in violation of § 53a-217 (a).
2
The murder weapon was never recovered.
3
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 or causes a suicide
by force, duress or deception . . . .’’
4
General Statutes § 29-35 (a) provides in relevant part: ‘‘No person shall
carry any pistol or revolver upon his or her person, except when such person
is within the dwelling house or place of business of such person, without
a permit to carry the same issued as provided in section 29-28. . . .’’
5
The elements of manslaughter in the first degree by reckless indifference
are set forth in General Statutes § 53a-55 (a), which provides in relevant
part: ‘‘A person is guilty of manslaughter in the first degree when . . . (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.’’
6
The state did not object to any other further reference to manslaughter
by counsel for the defendant during the remainder of the argument.
7
We note that contrary to the state’s contention, these two theories are
not necessarily inconsistent with each other. The defense of self-defense
may be used as a defense to the charge of murder and to the charge of
manslaughter in the first degree. State v. King, 24 Conn. App. 586, 590–91,
590 A.2d 490 (self-defense is valid defense to manslaughter in first degree),
cert. denied, 219 Conn. 912, 593 A.2d 136 (1991).
8
There is no constitutional requirement that a trial court instruct the jury
on a lesser included offense. State v. Ortiz, 217 Conn. 648, 659, 588 A.2d
127 (1991) (‘‘a lesser included offense instruction is purely a matter of
common law, and therefore does not implicate constitutional rights’’).
9
‘‘A [party] 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.’’ State v. Whistnant, supra, 179 Conn. 588.
10
Other states hold that a defendant may refer to a lesser included offense
or a lesser related offense, with which the defendant is not charged and
the jury not instructed, during closing arguments as part of the defendant’s
theory of defense. See, e.g., People v. Valentine, 143 Cal. App. 4th 1383,
1388, 49 Cal. Rptr. 3d 948 (2006) (although defendant was not entitled to
jury instruction on lesser included offense, he could ‘‘argue to the jury [during
closing argument] that his culpability was as one who was in possession of
stolen property but not one who committed a robbery’’), review denied,
2007 Cal. LEXIS 617 (Cal. January 24, 2007). We need not decide whether
a court may preclude any and all reference to an uncharged lesser included
offense, because we conclude, in this case, that the court did not preclude
the defendant from arguing his theory of defense that he did not have the
requisite intent to commit murder, but may have had the requisite intent to
commit manslaughter.
11
At oral argument before this court, the defendant also argued that his
sixth amendment right to present a closing argument was violated because
this right includes the right to an unimpeded, uninterrupted closing argu-
ment. Although the state’s objection momentarily interrupted the natural
flow of defense counsel’s summation, such an interruption did not prevent
defense counsel from presenting a closing argument or arguing his theory
of defense. Additionally, we note that the defendant cites to no law in
support of his contention that his sixth amendment right to present a closing
argument encompasses the right to an uninterrupted closing argument.
Rather, parties are obligated to object to closing arguments that they deem
improper. See State v. Francione, 136 Conn. App. 302, 316, 46 A.3d 219 (if
defendant believes that prosecutor’s closing argument is improper, defen-
dant should object to improper argument during closing argument), cert.
denied, 306 Conn. 903, 52 A.3d 730 (2012). Just as a defendant may object
to a prosecutor’s improper closing argument, a prosecutor likewise may
object to an improper closing argument by the defendant. Accordingly, the
interruption caused by the prosecutor’s objection during defense counsel’s
closing argument did not violate the defendant’s sixth amendment right to
present a closing argument.
12
We note that, contrary to the defendant’s contention, the prosecutor
did not list the specific elements of manslaughter in the first degree during
his rebuttal closing argument, and, thus, the state was not permitted to
make the argument that the defendant was precluded from making.
13
Moreover, we note that the defendant in his brief on appeal does not
contend that defense counsel was confused as to the scope and meaning
of the court’s ruling. The only argument that the defendant alleges that he
was precluded from making was listing all of the elements of manslaughter
in the first degree.