Judicial District of New London at G.A. 21


     Criminal; Whether Instructions on Charge of Assault of a Peace Officer Inadequate in that Jury was not Instructed to Consider the Reasonableness of the Force Used by Police.  The defendant was charged with assault of a peace officer in violation of General Statutes § 53a-167c after he bit a police officer on the arm.  At trial, the defendant testified that the officer grabbed him by the neck and choked him and that he bit the officer because he feared for his life.  The defendant was convicted and he appealed, claiming the trial court erred in failing to instruct the jury that it had to consider the reasonableness of the force used by the police in determining whether the officer was acting “in the performance of his duties” as contemplated by § 53a-167c at the time of the assault. The Appellate Court (133 Conn. App. 614) agreed, finding that, as the defendant had presented evidence at trial that the police had engaged in excessive force, a jury instruction on reasonable force was warranted.  The court held that the trial court was obligated to provide the jury with a detailed instruction that the state had to establish that the police officer had been acting in the performance of his duties and that a person is not required to submit to the unlawful use of physical force during an arrest, whether the arrest itself is legal or illegal.  The Appellate Court concluded that the trial court’s instruction on the “performance of duties” element was inadequate because it failed to explain that reasonable force was an inherent component of that element of the crime of assault of a peace officer.  That failure, the court opined, may have misled the jury to believe that the state could meet its burden regarding the “performance of duties” element irrespective of whether it proved that the officer utilized a reasonable degree of force. The Appellate Court reversed the defendant’s conviction and ordered a new trial, ruling that the improper instruction on the “performance of duties” element violated the defendant’s due process rights and that the error was not harmless beyond a reasonable doubt.  The Supreme Court will determine whether the Appellate Court properly deemed the trial court’s instructions to the jury regarding the charge of assault of a peace officer inadequate.