Opinion
(9728)
The defendant, who had been convicted of manslaughter in the first degree, sought review on remand from the Supreme Court of his unpreserved claim that the statute (53-55 [a] [3]) defining the elements of the crime is unconstitutionally vague as applied to the facts of his case. Held that the defendant's claim was not reviewable, he having failed to establish that he clearly had been deprived of a fundamental constitutional right or that the trial court committed plain error in instructing the jury on the distinction between manslaughter in the first and second degrees.
Submitted October 6, 1993
Decision released October 12, 1993
Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Byrne, J.; verdict and judgment of guilty of the lesser included offense of manslaughter in the first degree, from which the defendant appealed to this court, which reversed the trial court's judgment and remanded the case for a new trial, from which the state, on the granting of certification, appealed to the Supreme Court, which reversed the judgment of this court and remanded the case for further proceedings. Affirmed.
Lauren Weisfeld, assistant public defender, for the appellant (defendant).
Harry Weller, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Corinne Klatt, assistant state's attorney, for the appellee (state).
This appeal is a remand from our Supreme Court. State v. Sawyer, 227 Conn. 566, 630 A.2d 1064 (1993). The relevant facts are fully reported in State v. Sawyer, 29 Conn. App. 68, 614 A.2d 471 (1992), reversed, 227 Conn. 566, 630 A.2d 1064 (1993). The sole issue to be determined is the defendant's unpreserved claim that General Statutes 53a-55 (a)(3) is unconstitutionally vague as applied.
General Statutes 53a-55 (a) provides in pertinent 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."
The defendant was convicted of manslaughter in the first degree under General Statutes 53a-55 (a)(3). The defendant claims that the elements that distinguish the degrees of manslaughter were not defined meaningfully by the legislature, and that the trial court did not adequately distinguish between manslaughter in the first and second degrees in the jury instructions. He claims that no actual distinction exists between simple reckless conduct, as proscribed by General Statutes 53a-56 (a)(1), and reckless conduct aggravated by "extreme indifference to human life," as proscribed by 53a-55 (a)(3).
General Statutes 53a-56 (a) provides in pertinent part: "A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . ."
The defendant acknowledges that this claim was not preserved at the trial court. The defendant seeks review under Evans-Golding, claiming that he was deprived of a fundamental constitutional right, and as plain error under Practice Book 4185. The defendant's failure to raise the constitutionality of 53a-55 (a)(3) at trial, or to object to the instruction given, leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally vague as applied to him. State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). Without an adequate record, review is precluded. State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989).
State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
Practice Book 4185 provides: "The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. "In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge's adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception, provided that the grounds for such objection or exception and the ruling thereon as previously articulated, remain the same."
As part of this claim, the defendant alleges that the jury was not instructed properly on the distinction between the two degrees of manslaughter. In the absence of a properly preserved claim, "reversal is warranted only if the charge failed to provide the jury with the essential elements of the offense on which the conviction rests or the case must invoke plain error requiring such result in the interests of justice." State v. Woods, 23 Conn. App. 615, 623, 583 A.2d 639 (1990). The defendant acknowledges that the essential elements of each lesser included offense were given properly. "[W]here the defendant fails to object to an instruction, `the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial; State v. Cosby, [ 6 Conn. App. 164, 172, 504 A.2d 1071 (1986)]; is seriously undercut. See also State v. Kurvin, [ 186 Conn. 555, 567, 442 A.2d 1327 (1982)].' State v. Huff, 10 Conn. App. 330, 338, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987)." State v. Callahan, 21 Conn. App. 654, 660-61, 575 A.2d 704, cert. denied, 216 Conn. 803, 577 A.2d 716 (1990). Review of the claim on this basis is unwarranted.
Nor is the defendant's claim reviewable as plain error under Practice Book 4185. Plain error review "`is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.'" State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990). The claimed error here is not so egregious or obvious as to merit such review. State v. Gagnon, 18 Conn. App. 694, 712, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989).