STATE v. DAVID B. TERWILLIGER, SC 19013

Judicial District of Windham

 

     Criminal; Whether Defendant’s Conviction for Intentional Manslaughter Violated his Constitutional Right Against Double Jeopardy; Whether Jury Instructions on Defense of Premises Were Proper.  The defendant was involved in an altercation with the victim outside the defendant’s home.  The confrontation escalated, culminating in the defendant’s shooting and killing the victim.  The defendant was tried for murder, and the jury was instructed on the lesser included offense of manslaughter in the first degree with a firearm, a conviction of which can be predicated on a finding of either intentional or reckless conduct.  See General Statutes §§ 53a-55a and 53a-55 (a) (1) and (3).  The jury acquitted the defendant of murder, but found him guilty of first degree manslaughter with a firearm without specifying whether it was intentional or reckless.  The conviction was reversed on appeal for an instructional error and, on remand, the state charged the defendant with both intentional and reckless manslaughter in the first degree with a firearm.  The defendant moved to dismiss the charges on the ground that his continued prosecution violated the constitutional prohibition against double jeopardy.  Specifically, the defendant argued that, because intentionality and recklessness are mutually exclusive and inconsistent culpable mental states, the jury, in the first trial, must have necessarily acquitted him of either intentional or reckless manslaughter.  He therefore contended that there was a reasonable possibility that he would be convicted in the second trial of an offense for which he had already been acquitted.  The trial court observed that, based on the jury instructions given in the first trial, it was impossible to determine whether the jury found the defendant guilty of intentional manslaughter or reckless manslaughter.  Thereafter, citing State v. Boyd, 221 Conn. 685 (1992), the court denied the motion to dismiss, ruling that the defendant, having taken no steps to clarify the verdict but having taken steps to have his conviction overturned, waived his right to assert double jeopardy as a bar to his subsequent prosecution on the manslaughter charges.  At trial, the court granted the defendant’s request to give a defense of premises charge pursuant to General Statutes § 53a-20, which provides, inter alia, that use of deadly force in defense of premises is justified if it is used to prevent an attempt by the trespasser to commit “any crime of violence.”  The court, however, rejected the defendant’s contention that the term “crime of violence,” which is not defined in the statute, encompassed not only murder and manslaughter, but also lesser violent crimes such as third degree assaults.  Interpreting the term “crime of violence” consistent with its common law meaning, the court concluded that, since the lesser violent crimes in question were not classified as crimes of violence at common law, they also could not be classified as such under the statute.  The defendant was found guilty of intentional manslaughter in the first degree with a firearm.  On appeal, the defendant challenges the denial of his motion to dismiss on double jeopardy grounds.   He also challenges the propriety of the trial court’s charge on defense of premises.