Petition — Maselli v. Connecticut

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. Supreme Court, U. S.

80-799 FILED

NO. MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MATTHEW MASELLI,

Petitioner

Vv.

STATE OF CONNECTICUT,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF CONNECTICUT

SUE L. WISE

JOHN R. WILLIAMS

Williams & Wise

265 Church Street

New Haven, Conn.

(203) 562-9931

Counsel for Petitioner

November , 1980

QUESTIONS PRESENTED

1. In a murder trial in which the

defendant is the sole witness to the kill-

ing and in which the defendant's testimony

is crucial to the sole issue of self-

defense, does a jury instruction to "con-

sider the importance to the accused of the

outcome of the trial" and to consider the

defendant's "obvious interest in the ver-

dict," unconstitutionally discredit the

testimony of the defendant, undermine the

presumption of innocence, and violate the

Due Process Clause of the Fourteenth Amend-

ment?

2. In a murder case where the

defendant is convicted of the lesser

included offense of first degree man-

slaughter, an essential element of which

is the specific intent to cause serious

physical injury, does the jury instruc-

tion, “every person is presumed to intend

the natural and necessary consequences of

his acts," deny the defendant due process

of law and conflict with this Court's

decision in Sandstrom v. Montana, 442 U.S.

510 (1979)?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED.......-2eee0-

OPINION BELOW... cc cccccccccceves

JURISDICTION... cc cccccccccccccoes

STATUTES INVOLVED.......ccccccce

STATEMENT OF THE CASE......eeeeees

REASON FOR GRANTING THE WRIT.....

Il.

The Decision Below Raises

a-Significant and Recur-

ring Question Regarding

the Constitutionality of

a Criminal Jury Instruction

That Has Caused Continued

Conflict Among State Courts

and the United States Courts

GE ABMOGLS. cc cicces pe

The Decision of the Supreme

Court of ‘Connecticut is in

Direct Conflict With the

Decision of This Court in

Sandstrom v. Montana........

APPENDIX A (Supreme Court

APPENDIX B (Order Denying Motion

to Reargue)..........

APPENDIX C (Judgment of Superior

8 RT OS eS

APPENDIX D (Relevant Portion of

Charge to Jury)......

Page

ae ti Ww fe ee

(ii)

TABLE OF AUTHORITIES

Cases: Page

Blackburn v. State,

390 N.E.2d 653 (1979)... 9

,Coffin v. United States,

156 U.S. 432 (1895) ...cccccee 14,15

Commonwealth v. Green,

251 Pa. Super. 318,

SEG A. 2G 198. CASTE cavcvdéices 12

Dunbar v. State,

159 Miss. 603,

132 BG... TED CA9S4) 6 os te cob ewe 9,18

Estelle v. Williams,

625 Oia Se CoS Cs weno we ewes 15,18

Garvin v. State,

144 Ga.App. 396,

240: 36 2 925. (A997 Tc ccccuse 9

Garvin v. State,

2535 TAB. 2L3;

ZEUS -Mebamaais tao70) saccade j 9

Graves v. State,

413 P.2d 503 (Nev. S.Ct. 1966).. 9

Hickory v. United States,

£60. 2.86 60 {A0POls cus codeses 13

Hicks v. United States,

450 U.8. 442° (LESS) vccccvcers Ls

In re Winship,

397: Uv. Bae UES IO) és onccssices 15,245

Johnson v. State,

75 Wisc.2d 344,

249 W.Wi2G 593 (LOTT) cvcccteor 9

Johnson v. State,

BVT O.Wi ste Bes CLOT Abc cattecc 12

(2ii)

Kentucky v. Wharton,

441 U.S. 786 (1979) ...ccccece

Mitchell v. State,

121 Ga.App. 382,

Ava Musee. FOP CASTO) acc ccter

Morissette v. United States,

342 .8% 246 CakeE hie 3-6 o 6 a és 6%

Mullaney v. Wilbur,

421 U.S. 684 (1975) ..cccce eee

Patterson v. New York,

pCR NFB 7 A 7g Pe

Pec»le v. Bell,

38 U.8424 L266, 378 Bi. F:8.24 666,

SOs Biman 200 {i897 Shacccvaeue

People v. Johnson,

333 Ill. 469,

165 N.E. 235 (1929)..... Seeée

People v. Reynolds,

194 Col. 543,

575 P.20 1286 (1978) ..cscccce

People v. Romo,

114 Cal.Rptr. 289 (1974).....

People v. Wilkes,

2 Cal Rouse S96 TE960) 26 cece:

Reagan v. United States,

257: O.82: 300 (2E9S) 2 cecccecves

Rivera-Vargus v. United States,

307 F.Supp. 1075

(D. Puerto-Rico 1969)........

Page

(iv)

Sandstrom v. Montana,

FS em Tee eS el st) Pe

Simms v. State,

S62 By SG. S26 (2972) «co cacsive é

State v. Arroyo,

(41 Conn. L.J., No. 39)

(Leet .6e be ee cee ea wats te08e ces

State v. Bester,

367 WiBswe FOS CA9GCS) ocvccesece

State v. Bruyere,

110 R.I. 426,

293 A.2d 311 (1972) ..cccccce

State v. Cron,

14 Ohio App.2d 76,

ae Buca STL C29ST) scccvccs

State v. Eakins,

292 N.C. 445,

ro RS me 5 eee pes ee

State v. Finkelstein,

269 Mo. 612,

192. O.. SEG CASE) c cvcvcces

State v. Guthridge,

164 Conn. 145,

318 A.24 87 (1972) ..ccccccece

State v. Harrison,

(40 Conn. L.J., No. 9)

CiISTeS is es eeevee oeeeeveeneeeeeeee

State v. Moye,

(40 Conn. L.J., No. 46)

CLever vcd boanes eoeneeeeeee ee eee

23,24

(v)

\ Page

State v. Richardson,

110 Ariz. 48,

She eee Bae LLOT ST ac ceweces 12

State v. Sinclair,

a7 Riss: 356,

a26GP Be2e 262 (1970) ccccvseor Ais 12

State v. Turner,

81 N.M. 450,

Cee: Pie eee BRE CSP TUN 6 sce s edocs 12

State v. Underwood,

281 N.W.2d 337

(Minn. Sup. Ct. 1979) zccceces 9,10,

Stewart v. State,

484 S.W.2d 77 eo yy 4 ee eeneeees g

Sumrall v. Mississippi,

343 So.2d 481

(Miss. S&S. CE. L977) wccccrscces 9

Taylor v. Kentucky,

436 U.S. 478 -(1978) .. cece es 14,16

Taylor v. United States,

390 F.2d 278 (8th Cir. 1968),

cert. denied 393 U.S. 869

lc: | JAN pe aR Be ne 10

United States v. Bear Killer,

534 F.2d 1253 (8th Cir.

1976), cert. denied 429

U.S. 846 (1976) ccsccccceccces 10

United States v. Brown,

453 F.2d 101 (8th Cir.

1971), cert. denied 405

Rie, PIE Lee aay b ehh cee ence 10

United States v. Eskridge,

456 F.2d 1202

(9th Ci? . Deets ed toe ene bbb her 12

(vi)

Page

United States v. Floyd,

355 7.20 33:28 Ciz. 1927),

cert. denied 434 U.S. 851

(1977) eee c cece cece eee eeeeeee Py,

United States v. Hernandéz,

588 F.2d 346 (2d Cir: 1978).. 17

United States v. Martin,

525 F.2d 703 (2d Cir. 1975),

cert. denied 423 U.S. 1035

ROTOR. ce cares oes Pa whe hs oats a

United States v. Palmere,

578 F.2d 105 (5th Cir. 1978),

cert. denied 439 U.S. 1118

PANTO) ca hae *eeeneeeee oeeeveeeee 12

United States v. Rucker,

586 F.2d 899 (2d Cir. 1978).. 17

United States v. Saleéetko,

452: 7.2€.2393 (768 Cir. i971),

cert. denied 405 U.S. 1040

Po PPC ELE oss, Taine 66 ves 0-0 sibs 10

United States v. Schlesinger,

598 F.2d 722 (2d Cir. 1979),

cert. denied 444 U.S. 880

CEE 5s babs OREO Re cds as 17

United States v. Standing

Soldier,

538 F.2d 196 (8th Cir. 1976),

cert. denied 429 U.S. 846

PRPS Ske ak ook cd baw koa woe 10

United States v. Stirling,

571 F.2d 708 (2d Cir. 1978),

cert. denied 439 U.S. 824

ANCONA Feae be bass meeees bebe. 17

°° =

(vii)

Page

United States v. United States

Gypsum Co.,

Rae: O80. 428 CARTE) o siiccecaw's 20,21,

United States v. Vega, ~~

589 F.2d 1147 (2d Cir. 1978). 17

United States v. Wiggins,

566 F.2d 944 (5th Cir. 1978). 12

U.S. v. Figurski,

545 F.2d 389 (4th Cir. 1976). 12

OTHER SOURCES:

E. Devitt and Cl Blackman,

Federal Jury Practice and

Instructions, (3d ed. 1977).. 1l

QUESTIONS PRESENTED

1. In a murder trial in which the

defendant is the sole witness to the kill-

ing and in which the defendant's testimony

is crucial to the sole issue of self-

defense, does a jury instruction to "con-

sider the importance to the accused of the

outcome of the trial" and to consider the

defendant's “obvious interest in the ver-

dict," unconstitutionally discredit the

testimony of the defendant, undermine the

presumption of innocence, and violate the

Due Process Clause of the Fourteenth \mend-

ment?

2. In a murder case where the

defendant is convicted of the lesser

included offense of first degree man-

slaughter, an essential element of which

is the specific intent to cause serious

physical injury, does the jury instruc-

tion, “every person is presumed to intend

the natural and necessary consequences of

his acts," deny the defendant due process

of law and conflict with this Court's

decision in Sandstrom v. Montana, 442 U.S.

510 (1979)?

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MATTHEW MASELLI,

Petitioner

Vv.

STATE OF CONNECTICUT,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF CONNECTICUT

The petitioner, Matthew Maselli,

respectfully prays that a writ of ‘cert-

iorari issue to review the judgment and

opinion of Supreme Court of the State of

Connecticut entered in this proceeding on

August 12, 1980.

7’?

OPINION BELOW

The opinion of the Supreme Court of

the State of Connecticut is reported in

Vol. XLII Connecticut Law Journal, No. 7,

August 12, 1980, pp. 15-19 and appears in

the Appendix hereto. The judgment of the

Superior Court of the State of Connecticut

appears in the Appendix hereto.

JURISDICTION

The opinion of the Supreme Court of

the State of Connecticut was entered on

August 12, 1980. A timely motion to re-

argue was denied on September 18, 1980,

and this petition for certiorari was

filed within 60 days of that date. This

Court's jurisdiction is invoked under 28

U.S.C. §1257(3).

STATUTES INVOLVED

CONSTITUTION OF THE UNITED STATES,

AMENDMENT XIV:

Section l. .. .. No State shall

make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within its

**%

jurisdiction the equal protection of the

laws.

CONNECTICUT GENERAL STATUTES,

SECTION 53a-54a(a):

Sec. 53a-54a. Murder defined.

Affirmative defenses. Evidence of mental

condition. Classification. (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 or causes a suicide by force,

duress or deception; except that in any

prosecution under this subsection, it

shall be an affirmative defense that the

defendant acted 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 d>fendant's situation under

the circumstances as the defendant believed

them to be, provided nothing contained in

this subsection shall constitute a defense

to a prosecution for, or preclude a con-

viction of, manslaughter in the first de-

gree or any other crime.

SECTION 53a-55:

Sec. 53a-55. Manslaughter in the

first degree: Class B felony. (a) 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 per-

son or of a third person; or (2) with in-

tent 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 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 in-

fluence of extreme emotional disturbance

constitutes a mitigating circumstance re-

ducing murder to manslaughter in the first

degree and need not be proved in any pro-

secution initiated under this subsection;

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.

)

STATEMENT OF THE CASE

On December 10, 1975 John Keller was

shot and killed by Matthew Maselli.

Maselli was indicted by a grand jury for

the crime of murder in violation of §53a-

54a of the General Statutes of Connecticut.

At a trial to a jury, defendant

Maselli, petitioner herein, admitted kill-

ing Keller, but claimed that he had fired

a thirty-two caliber pistol at Keller to

mave his own life. Maselli, who was the

only witness to the shooting, took the

stand in his own behalf. Maselli testi-

fied, and evidence was introduced which

corroborated his claim, that he called a

cab to drive him from Stratford to Fair-

field in the early morning hours of Decem-

ber 10; that he told the driver, Keller,

who was a stranger to him, that he was a

policeman in order to persuade Keller to

drive on the Merritt Parkway where cabs

were not permitted; that a discussion

about firearms ensued; and that Keller

said he carried a .44 magnum in the cab;

and that Maselli told Keller that he was

armed with a .32 pistol. Maselli claimed

that the shooting occurred when Keller,

after saying, "I am the devil," drew what

the defendant thought was a .44 Magnum

pistol and pointed it at him. Maselli

Claimed that he responded by drawing his

own gun; thought, he was about to be killed, |

and, so thinking, fired, the entire clip at

Keller within several secords.

Despite the fact that the issues of

intent and self-defense were virtually the

only issues before the jury, the trial

court instructed not only that "Every per-

son is presumed to intend the natural and

necessary consequences of his acts,"

(Appendix, D) but also instructed the jury

that they were to "consider the importance

to the accused of the outcome of this

trial" and to include in their considera-

tion the defendant's “obvious interest in

the verdict." (Appendix, D).

The jury returned a verdict of

guilty of manslaughter in the first degree

and the defendant was sentenced to a term

of not less than ten (10) nor more than

twenty years (2) in prison (Appendix, C).

The defendant appealed his conviction

to the Supreme Court of the State of

Connecticut and tendered, inter alia, the

issue of the constitutionality of these

portions of the charge. The defendant in

his brief to the Connecticut Supreme Court

argued that the portion of the charge

drawing attention to the defendant's

interest in the outcome of the trial im-

permissibly singled out the defendant as a

witness and discredited his testimony,

thereby denying him the protection of the

presumption of innocence and due process

of law. He also argued that the portion

of the charge regarding the presumption of

intent violated this Court's ruling in

Sandstrom v. Montana, 442 U.S. 510 (1979).

The Supreme Court of Connecticut

reached the questions tendered, but held

that the reference in the charge to the

defendant's interest in the outcome was

permissible in light of a long line of

state cases permitting the court to "'‘ad-

vise the jury that in weighing the credi-

bility of an accused's testimony they can

consider his interest in the outcome of

the trial.'" (Appendix, A). Justice

Bogdanski wrote a dissenting opinion in

which he reasoned that this portion of the

charge unconstitutionally interferes with

the presumption of innocence. (Appendix,

A).

The Supreme Court of Connecticut also

held that the rule of Sandstrom v. Montana,

was not violated by the presumption of

intent section of the charge because "the

elaborate instructions upon intent given

by the trial court sufficiently qualified

the objectionable reference to the pre-

sumption as to remove the possibility of

a misunderstanding on the part of the

jury." (Appendix, A).

REASONS FOR GRANTING THE WRIT

The Decision Below Raises a

Significant and Recurring

Question Regarding the Con-

stitutionality of a Criminal

Jury Instruction That Has

Caused Continued Conflict

Among State Courts and the

United States Courts of

Appeals.

Both federal and state courts have

held, under a variety of rationales, that

an instruction singling out the defend-

ant's interest in the outcome of the case,

)

as challenged here, may be fatal to)}the

validity of a criminal conviction.?

1 See generally cases cited at 85 A.L.R.

33 especially Dunbar v. State, 159 Miss.

603, 132 So. 748 (1934) and the following

state court decisions inter alia: People

v. Wilkes, 2 Cal.Rptr. 594 (1960); People

v. Romo, 114 Cal.Rptr. 289 (1974);

Georgia: Garvin v. State, 144 Ga. App.

396, 240 S.E.2d 925 (1977); Illinois:

People v. Johnson, 333 Ill. 469, 165 N.E.

235 (1929); indiana: Garvin v. State, 255

Ind. 215, 263 N.E.2d 371 (1970); Blackburn

v. State, 390 N.E.2d 653 (1979); Iowa:

State v. Bester, 167 N.W.2d 705 (1969);

Minnesota: State v. Underwood, 281 N.W.

2d 337 (Minn.Sup.Ct. 1979); Mississippi:

Sumrall v. Mississippi, 343 So.2d 481

(Miss. S.Ct. 1977); Missouri: State v.

Finkelstein, 269 Mo. 612, 191 S.W. 1002

(1917); Nevada: Graves v. State, 413 P.

2d 503. (Nev. S.Ct. 1966); New York:

People v. Bell, 38 N.Y.2d 116, 378 N.Y.S.

2d UP 341 N.E.2d 246 (1975); Rhode

Island: State v. Bruyere, 110 R.I. 426,

293 A.2d 311 (1572); Wonhessee: Stewart

v. State, 484 S.W.2d 77 (1972); Wisconsin:

Johnson v. State, 75 Wisc.2d 344, 249 N.

The Seventh and Eighth Circuit

Courts of Appeals have disapproved the

instruction for a number of years. As

then Circuit Judge Blackmun observed in

Taylor v. United States, 390 F.2d 278,

285 (8th Cir. 1968):

We do not hesitate to observe,

however, that the continuing and

frequent attack on an instruction

of this kind indicates that its

use leaves defense counsel with a

troubled mind. We suspect that

this discomfort would be alleviated

2 united States v. Saletko, 452 F.2d 193

(7th Cir. 1971), cert. denied 405 U.S.

1040 (1972), which incorporates views of

the Eighth Circuit but does not reverse

conviction.

3 taylor v. United States, 390 F.2d 278

(8t ir. 1968), cert. denied 393 U.S.

869 (1968); United States v. Bear Killer,

534 F.2d 125 th Cir. 1976), cert.

denied 429 U.S. 846 (1976); United States

Vv. Standing Soldier, 538 F.2d 196 (8th

Cir. 1976), cert. denied 429 U.S. 846

(1976); United States v. Brown, 453 F.2d

101 (8th Cir. I97I), cert. dezied 405 U.S.

978 (1972). Generally, these cases dis-

approve.the instruction but find no preju-

dice significant enough to warrant rever-

sal. But see State v. Underwood, n. l,

infra, which cites these cases as con-

trolling and reverses conviction based on

the crucial issue of credibility of the

defendant's testimony to claim of self-

defense, as in the case at bar.

if the defendant were included by

reference in the court's general

instructions as to all witnesses.

We would prefer that the defendant

not be singled out. His interest

is obvious to the jury. A general

reference, such as "including the

defendant", should suffice.

Similarly, the standard reference

work for federal jury instructions, E.

Devitt and C. Blackman, Federal Jury

Practice and Instructions (3d ed. 1977)

§17.12 disapprove the instruction:

[We] do not recommend that the

court point to the defendant's

special interest. The instruc-

tion does not tell the jurors

anything they do not already

know, and seems to tell them to

be careful about believing the

defendant.

Rather, they recommend the neutral in-

struction:

"A defendant who wishes to

testify is a competent wit-

ness; and the defendant's

testimony is to be judged in

the same way as that of any

other witness."

Despite these views and the dis-

approval of the instruction in at least

thirteen states, “ Many states and a major-

ity of the federal appellate courts” con-

tinue to adhere to an anachronistic

See generally annotation 85 A.L.R. 33

and 1976 and 1980 updates of annotation

for state court decisions; Arizona:

State v. Richardson, 110 Ariz. 48, 514 P.

2d 1236 (1973); Colorado: People v.

Reynolds, 194 Col. 543, 575 5 a 1286

T1978) 3 Connecticut: State v. Guthridge,

164 Conn. 145, 318 A.2d 87 (1972); Georgia:

Mitchell v. State, 121 Ga.App. 382, 173 S.

E.2d 709 (1970); New Jersey: State v.

Sinclair, 57 N.J. 56, 269 A.2d 161 (1970);

New Mexico: State v. Turner, 81 N.M. 450,

468 P.2d 421 (1970); North Carolina: State

v. Eakins, 292 N.C. 445, 233 S.E.2d 387

requiring balancing language; Ohio:

State v. Cron, 14 Ohio App. 2d 76, 236 N.E.

; Pennsylvania: Common-

wealth v. Green, 251 Pa. Super. 318, 380

A.2dq 798 (1977); Tennessee: Johnson v.

State, 477 S.W.2d 221 (1972); Wyoming:

Simms v. State, 492 P.2d 516 (1972).

3 Second Circuit, see cases cited infra,

p. 17; U.S. v. Figurski, 545 F.2d 389 (4th)

Cis: i9 ; U.S. v. Wiggins, 566 F.2d 944

(5th Cir. 1978); U.S. v. Palmere, 578 F.2d

105 (5th Cir. 1978), cert. denied 439 U.S.

1118 (1979); U.S. v. Eskridge, 456 F.2d

1202 (9th Cir. 1972); Rivera-Vargus v. U.

S., 307 F.Supp. 1075 (D.Puerto Rico, 1969).

acceptance of this instruction citing the

decision of this Court in Reagan v. United

States, 157 U.S. 301 (1895)° as control-

ling. |

Reagan was decided a mere seventeen

years after defendants in criminal trials

were first allowed to testify on their own

behalf.’ The decision in Reagan is steep-

ed in traditional evidentiary distrust of

the testimony of an accused:

"The fact that he is a defend-

ant does not condemn him as

unworthy of belief, but at the

same time it creates an inter-

est greater than that of any

other witness, and to that ex-

tent affects the question of

credibility."

- « « the court may, and some-

times ought, to remind the jury

that interest creates a motive

for false testimony; that the

greater the interest the

stronger is the temptation;

6 See Hicks v. United States, 150 U.S.

442 (1893); Hickory v. United States, 160

U.S. 40 (1896).

7 whe act of March 16, 1878 (20 Stat. 30)

allowed criminal defendants to, "at his

own request...be a competent witness."

and that the interest of the

defendant in the result of a

trial is of a character

possessed by no other wit-

ness, and is therefore a

matter which may seriously

affect the credence that

shall be given to his testi-

mony . 8

Reagan v. United States utterly fails

to recognize the inherent paradox created

by instructions which, on one hand, cau- _

tion the jury to question the defendant's

credibility, and instructions which, on the

Other hand, urge the jury to respect the

presumption of innocence. Taylor v.

Kentucky, 436 U.S. 478 (1978); Kentucky v.

Wharton, 441 U.S. 786 (1979).

The failure of the Reagan court to

appreciate this apparent conflict is

understandable since Reagan predated the

establishment of the presumption of inno-

cence as the bedrock of our system of

criminal law. Coffin v. United States,

8 It should be noted that of the seven

state decisions relied on in Reagan as

persuasive, five of those states, Califor-

nia, Iowa, Illinois, Indiana and New York,

have, in recent years, disallowed the

instruction.

156 U.S. 432 (1895); In re Winship, 397

U.S. 358, 361 (1970).

Since Coffin, and more dramatically

in recent years, this Court has promul-

gated an entire body of constitutional

criminal law firmly grounded on the found-

ation of the presumption of innocence. As

Chief Justice Burger wrote in Estelle v.

Williams, 425 U.S. 501 (1976):

The presumption of innocence,

although not articulated in the

Constitution, is a basic component

of a fair trial under our system

of criminal justice....To implement

the presumption, courts must be

alert to factors that may undermine

the fairness of the fact-finding

process. In the administration of

criminal justice, courts must care-

fully guard against dilution of the

principle that guilt is to be esta-

blished by probative evidence and

beyond a reasonable doubt [cite

omitted].

The actual impact of a parti-

cular practice on the judgment of

jurors cannot always be fully de-

termined. But this Court has left

no doubt that the probability of

deleterious effects on fundamental

rights calls for close judicial

scrutiny. Courts must do the best

they can to evaluate the likely

effects of a particular procedure,

based on reason, principle, and

common human experience. (Emphasis

added)

} 16

And as Justice Powell wrote in Taylor v.

Kentucky, supra, at 47:

This Court has declared that

one accused of a crime is entitled

to have his guilt or innocence

determined solely on the basis of

the evidence introduced at trial,

and not on the grounds of official

suspicion, indictment, continued

custody, or other circumstances

not adduced as proof at trial.

The presumption of innocence must

mean that an accused is entitled to have

his guilt or innocence determined without

jury consideration of extrinsic circum-

stances, namely, his interest in the out-

come of the trial.

This Court has not ruled on the con-

stitutionality of this instruction in over

eighty years. As a result, the propriety

of this instruction is continually in

question; the constitutionality of the

instruction is in doubt; and, generally,

both state and federal courts are in dis-

agreement and in need of guidance and

direction from this Court.

The struggle of the judges of the

Second Circuit Court of Appeals to deal

with this instruction is illustrative of

the profound confusion this eighty year

hiatus has produced. The Second Circuit

seems to have developed a wholly unwork-

able, time-consuming "balancing" test?

which requires case-by-case review of the.

language of the entire charge in each

instance where the instruction is chal-

lenged. U.S. v. Stirling, 571 F.2d 708

(2d Cir. 1978) cert. denied 439 U.S. 824

(1978); U.S. v. Martin, 525 F.2d 703 (2d

Cir. 1975) cert. denied 423 U.S. 1035

(1975); United States v. Floyd, 555 F.2d

45 (2d Cir. 1977) cert. denied 434 U.S.

851 (1977); United States v. Rucker, 586

F.2d 899 (2d Cir. 1978); U.S. v. Vega, 589

F.2d 1147 (2d Cir. 1978); U.S. v.

Hernandez, 588 F.2d 346 (2d Cir. 1978);

U.S. v. Schlesinger, 598 F.2d 722 (2d Cir.

1979) cert. denied 444 U.S. 880 (1979).

The cases challenging this instruction

have produced a body of law, riddled with

obfuscation and conflicting rationales;

the number of cases generated by this con-

fusion underscores the need for definitive

action from this Court.

Obviously, the balancing approach of

9 Devitt and Blackman, supra, p. 240.

the Second Circuit is not consistent with

the decisions of the Supreme Court of

Connecticut which baldly allow the instruc-

tion and require no balancing language.

State v. Guthridge, n.4,infra.

Unlike many of the cases cited herein

where certiorari has been denied, the case

at bar is uniquely suited for determination

of this issue. This case turns entirely on

whether or not the jury believed that

Maselli killed Keller in self-defense.

Since Maselli was the only witness to the

shooting and since his justification was

self-defense, the trial court should have

taken every precaution to insure that his

testimony was not undermined. See Dunbar

v. State, supra; State v. Underwood, supra;

Estelle v. Williams, supra.

The actual conflict among the federal

appellate courts and state courts regard-

ing this instruction clearly justifies the

grant of certiorari to review the judgment

below. Moreover, the need to grant cert-

iorari is enhanced by the obvious conflict

between Reagan v. United States, supra,

and the most recent decisions of this Court

devoted to the edification of the presump-

tion of innocence.

”

The Decision of the Supreme

Court of Connecticut is in

Direct Conflict With the

Decision of This Court in

Sandstrom v: Montana.

In Sandstrom v. Montana, 442 U.S.

510 (1979), this Court held that the jury

instruction, "the law presumes that a per-

son intends the ordinary consequences of

his voluntary acts" unconstitutionally

shifted the burden of proof of an essen-

tial element of the crime of murder, namely

intent, from the State to the defendant,

thereby depriving the defendant of the pro-

tections of the presumption of innocence

and due process of law.

The factual similarities between

Sandstrom and Maselli are compelling; both

suffer the same constitutional infirmity,

and, therefore, Maselli's conviction should

be set aside. .

In Sandstrom and Maselli, each defend-

ant admitted shooting the victim: Sand-

strom claimed that chronic alcoholism pre-

vented him from forming the requisite

intent to "purposefully or knowingly" kill

Annie Jessen, 442 U.S. 512; similarly

Maselli claims that the killing of John

Keller was done in self-defense, and that

he intended to save his own life by shoot-

ing Keller. (Appendix, p. 3a infra)

Clearly, in both cases, intent was the sole

element of the crime of murder which was in

issue before the jury.

However, in both cases the trial court

relieved the State of its burden of proving

the element of intent by improperly charg-

ing the jury that they were free to presume

the essential element of intent from other

facts that had been proved. In Sandstrom

the trial court unconstitutionally shifted

the burden of proof by allowing the jury

to presume that Sahdstrom intended "the

Ordinary consequences of his voluntary

acts"; in Maselli, the jury was told, in

language virtually identical to the in-

struction disapproved in United States v.

United States Gypsum Co., 438 U.S. 422

(1978) that “[e]very person is presumed to

intend the natural and necessary conse-

quences of his acts." (Appendix, pp. Se,

5d infra)

Neither the Sandstrom instruction

nor the Maselli instruction pass constitu-

tional muster. These instructions allow

the jury to presume intent from proven

facts; they allow the actus rea to prove

the mens rea. The notion that an essen-

tial element of a crime can be presumed

merely by the proof of other facts or

elements was condemned more than twenty-

five years ago by this Court in

Morissette v. United States, 342 U.S. 246

(1952). That doctrine was given new vita-

lity last year in United States v. United

States Gypsum Co., supra. Furthermore,

this Court found in Gypsum that such an

instruction invaded the fact-finding

function of the jury, thereby, relieving

the State of its constitutional obligation

to prove each and every element of the

crime charged beyond a reasonable doubt.

In re Winship, 397 U.S. 358 (1970).

And, lastly, such instructions imper-

missibly shift the burden of proof of an

essential element of a crime from the

State to the defendant in violation of the

doctrines of Mullaney v. Wilbur, 421 U.S.

684 (1975) and Patterson v. New York, 432

U.S. 197 (1977).

The rationales of these cases con-

verge in Sandstrom v. Montana, supra, to

support an explicit holding that this

species of instruction -- an instruction

where the jury is asked to presume intent

-- is unconstitutional under the due pro-

cess clause of the Fourteenth Amendment.

The petitioner tendered to the

Connecticut Supreme Court the very con-

stitutional issues decided in Sandstrom

and accepted by the Supreme Court of

Connecticut in State v. Harrison,

Conn. (40 Conn.L.J., No. 9 ) (1979) and

State v. Moye, Conn. (40 Conn.L.J.

No. 46 )(1979). The Supreme Court of

Connecticut reached the question but

decided that the charge in this case was

permissible.

The Supreme Court of Connecticut

based its decision on the fact that Maselli

was convicted of manslaughter in the first

degree, rather than murder, and that the

trial court's instructions were "adequate-

ly qualified to avoid the possible misin-

terpretations found objectionable in Sand-

strom." (Appendix, p. 14a infra)

The Supreme Court of Connecticut has

quite simply misinterpreted the decision

of this Court in Sandstrom. First of all,

Connecticut has fashioned a test for Sand-

strom-type problems which is totally out

of keeping with both the letter and spirit

of that decision. In State v. Arroyo,

Conn. (41 Conn.L.J., No. 39) (1980) the

Connecticut court decided that if the

‘ court's instructions "could have been

interpreted by the reasonable juror as

either a conclusive or burden shifting

presumption thereby undermining the jury's

1 then the

instructions on intent would deprive the

responsibility as factfinder",

defendant of due process of law. "If on

the other hand, the instructions made it

clear that the jurors were permitted but

not required to infer criminal intent from

the defendant's conduct, then the instruc-

tions do not violate the defendant's four-

teenth amendment guarantees." (41 Conn.

L.J., NO. 39, pe 7).

This argument was made and roundly

rejected in Sandstrom. 442 U.S. 514.

This test is obviously at odds with

Justice Brennan's crystal clear language

to the contrary: “However, the fact that

a reasonable juror could have given the

presumption conclusive or persuasic:?--

shifting effect means that we cannot dis-

ad Cites omitted.

count the possibility that Sandstrom's

jurors actually did proceed upon one or

the other of these latter interpretations.

And that means that unless these kinds of

presumptions are constitutional, the in-

struction cannot be adjudged valid." 442

U.S. 519 (emphasis added).

There is no language in the Maselli

charge which instructs the jury on whether

Or not the presumption is permissive or

requisite.» Nor is there any qualifying

language in the charge relating to pre-

sumptions. Thus, the charge clearly runs

afoul of this Court's decision in Sand-

strom.

Furthermore, the Connecticut Supreme

Court decided that because the jury had

found Maselli guilty of the lesser includ-

ed offense of manslaughter in the first

d The Connecticut Supreme Court seems to

place great emphasis on the placement of

the presumption of intent language. (See

State v. Arroyo, infra; but see Appendix,

pp. loa-l8a.) The petitioner contends

that placement is irrelevant to the uncon-

stitutionality of the charge in the in-

stant case.

degree, the jury obviously had considered

the question of intent and had not merely

presumed intent. (Appendix, p. 18a) This

conclusion is logically and constitution-

ally erroneous. The jury's finding of

guilty on the lesser included offense

means only that the jury chose one form of

specific intent over another form of spe-

‘ it does not mean that they

cific intent;

did not presume intent from proven facts.

From the language of this charge, a rea-

sonable juror could well have concluded

that he was to presume either that the

defendant intended to kill the victim or

to presume that the defendant intended to

cause serious physical injury to the

victim.” In short, the Connecticut Supreme

. An essential element of C.G.S. §53a-54a

(a) is intent to cause the death of another

person, while an essential element of C.G.

S. §53a-55 is intent to cause serious phy-

Sical injury. (Infra, pp. 3-4)

Since the jury verdict was a general

verdict, not specifying whether the jury

relied on subsection (1) or (3) of C.G.S.

§53a-55, and since the Connecticut Supreme

Court decided that the jury might have re-

lied properly upon either subsection, the

question of intent reinains crucial. 442 U.

S. 526. (Appendix, p. lla, infra and cases

cited therein).

Court has condoned the use of an instruc-

tion that has been disapproved by this

court in both United States v. United

States Gypsum Co. and Sandstrom v.

Montana. It is the mandate of this Court

to eliminate such conflicts in our con-

stitutional law and in our criminal courts.

The conflict between the State of

Connecticut's highest court and this court

justifies the grant of certiorari to re-

view the judgment below.

CONCLUSION

For these reasons, a writ of cert-

iorari should issue to review the judgment

and opinion of the Supreme Court of the

State of Connecticut.

Respectfully submitted,

SUE L. WISE

265 Church Street

New Haven, Ct. 06510

(203) 562-9931

JOHN R. WILLIAMS

265 Church Street

New Haven, Ct. 06510

(203) 562-9931

DATED: November 14, 1980

APPENDIX A

SEUERREABEAS C:O: 82 FZ

May Term, 1980

STATE OF CONNECTICUT v. MATTHEW MASELLI

COTTER, C.J., BOGDANSKI, PETERS, PARSKEY

and D. SHEA, Js.

Argued May 13-decision released August 12,

1980

Indictment charging the defendant

with the crimes of murder and carrying a

pistol without a permit, brought to the

Superior Court in the judicial district of

New Haven, where, on motion by the state,

the trials were severed and the charge of

murder was tried to the jury before

Grillo, J.; verdict and judgment of guilty

of manslaughter in the first degree and

appeal by the defendant. No error.

Joette K. Rubin, assistant public

defender, with whom were John R. Williams

and, on the brief, Jerrold H. Barnett,

public defender, for the appellant

(defendant).

Linda K. Lager, assistant state's

attorney, with whom, on the brief, were

Arnold Markle, state's attorney, and John

J. Kelly, assistant state's attorney, for

the appellee (state).

DAVID M. SHEA, J. After a jury trial

the defendant was found guilty of man-

slaughter in the first degree in violation

of General Statutes §53a-55 as a lesser

offense included in the charge of murder

in violation of General Statutes §53a-54a

(a). In this appeal the defendant claims

error upon three grounds: (1) that the

two kinds of manslaughter in the first

degree submitted to the jury are not pro-

perly included in the charge of intention-

al murder set forth in the indictment; (2)

that the charge to the jury referring to

the defendant's interest in the outcome of

the trial prejudiced the defendant and

infringed upon his constitutional right to

testify in his own behalf; and (3) that

the charge upon the element of intent,

which referred to the presumption that a

person intends the natural consequences of

his acts, violated the principles of

Sandstrom v. Montana, 442 U.S. 510, 99 S.

Ct. 2450, 61 L.Ed.2d 39 (1979).

There is little dispute about the

facts which the jury might reasonably have

found, because most of the evidence con-

cerning the bizarre circumstances of this

homicide came from the testimony of the

defendant.

In the early morning hours of Decem-

ber 10, 1975, the defendant shot and

killed the driver of a taxicab which he

had engaged to transport him from Strat-

ford to visit a friend in Fairfield. The

defendant was the only passenger in the

cab and he fired eight bullets froma .32

caliber semiautomatic revolver at close

range, six of which struck the victim in

the head, face and neck. The taxicab,

which had been traveling west on the

Wilbur Cross Parkway in Woodbridge, hit a

center guard rail and finally came to rest

against a tree on the side of the highway.

Except for a\ small cut and a minor abra-

sion, the defendant was not injured in the

crash.

The defendant claimed that he had

shot the victim in self-defense as the cab

was proceeding along the highway. He

testified that after an evening of dis-

cussions with several associates in his

business of ; -omoting concerts and a quar-

rel with his girlfriend, he called a taxi-

cab sometime after midnight in order to

visit a friend who lived on route 59 near

Fairfield. When the taxicab arrived, he

sat in the front seat with the driver.

Because commercial vehicles are not ordi-

narily permitted on the Merritt Parkway,

the defendant said he was a policeman and,

therefore, could use that highway.

As they proceeded east on the Merritt

Parkway, the victim and the defendant

engaged in a conversation. Assuming that

the defendant was a policeman, the victim

asked if he was armed. The defendant said

he had a .32 caliber automatic. The vic-

tim said he had a .44 magnum in the cab.

After a half hour of driving easterly,

the defendant noticed that they had been

going in the wrong direction and had

reached New Haven. The driver stopped at

a phone booth and the defendant telephoned

his friend and found that they should have

gone westerly toward route 59 rather than

easterly toward exit 59.

After the taxicab was turned around

to proceed in the opposite direction the

conversation resumed. The defendant

testified that the driver appeared de-

pressed but that his own mood was optimis-

tic. 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 re-

sponded, "I 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 victin.

An examination of the taxicab by the

police at the scene disclosed a pellet air

pistol capable of firing BB shot lying

near the left foot of the victim. There

was testimony that the victim kept such a

gun in his taxicab.

The claim of the defendant that the

court erred in charging the jury upon the

lesser included offense of manslaughter in

the second degree was not the subject of

any exception taken at the trial, as re-

quired by Practice Book, 1978, §315. We

must, nevertheless, consider the matter

because the grounds relied upon, that the

indictment did not inform the defendant

of this charge and that the evidence was

insufficient to warrant its submission,

involve a claim of deprivation of a fun-

damental constitutional right and a fair

trial. State v. Troynack, 174 Conn. 89,

98, 384 A.2d 326 (1977); State v. Evans,

165 Conn. 61, 70, 327 A.2d 576 (1973).

We have recently held that by virtue

of General Statutes §53a-45 (ce)? a murder

indictment is deemed to notify a defendant

1 in the converse situation, where a

defendant has failed to request an instruc-

tion upon a lesser included offense at the

trial and claims error in its omission

upon appeal, we have held that there is no

fundamental constitutional right to a jury

instruction on a lesser included offense.

State v. Whistnant, Conn. (41 Conn.

bede¢ BOs O35 Be 35) (2960),

2 General Statutes §53a-45 (c) provides

as follows: "The court or jury before

which any person indicted for murder is

tried may find him guilty of homicide in a

lesser degree than that charged."

that upon the trial he may be found guilty

of homicide in any lesser degree than that

charged. State v. Rodriguez, Conn.

(41 Conn. L.J., No. 44, p. 12)(1980). It

is well established that the statement of

the principal charge in the indictment or

information constitutes notice of any

lesser included offense. Id., 19; see

Paterno v. Lyons, 334 U.S. 314, 320-21, 68

S.Ct. 1044, 92 L.Ed. 1409 (1948).

In charging upon manslaughter in the

first degree as a lesser offense included

in the murder indictment, the trial court

instructed the jury that the defendant

would be guilty of that crime (1) if with

intent to cause serious physical injury

to the victim he caused his death, as

provided in subsection (1) of General

Statutes §53a-55, or (2) if under circum-

stances evincing an extreme indifference

to human life, he recklessly engaged in

conduct which created a grave risk of

death to the victim and thereby caused

his death, as provided in subsection (3).?

3. The trial court did not instruct upon

manslaughter in the first degree as de-

lineated in subsection (2) of General Sta-

tutes §53a-55, i.e., "with intent to cause

Despite the defendant's complex argu-

ment to the contrary, we conclude that an

intention to cause “serious physical in-

jury" would encompass the more culpable

mental state of intending to inflict the

ultimate damage of death upon a person.

See General Statutes §53a-3 (4); Webster,

Third New International Dictionary.

Furthermore, we have declared in the con-

text of homicide "that an offense that

would be a lesser included offense but for

its requirement of a less culpable state

of mind than that required for the greater,

will be deemed a lesser included offense."

State v. Rodriguez, supra, 20. Man-

Slaughter in the first degree as defined

the death of another person, he causes the

death of such person or a third person

under circumstances which do not consti-

tute murder because he acts under the in-

fluence of extreme emotional disturbance,

as provided in subsection (a) of section

53a-54a, except that the fact that homi-

cide 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." It is

not claimed that such an instruction

would have been appropriate in this case.

in subsection (1) of §53a-55 is a lesser

included offense in a murder indictment.

The defendant's contention that man-

slaughter in the first degree based upon

"reckless" conduct as set forth in sub-

section (3) of §53a-55 is not included in

a charge of murder was explicitly rejected

in State v. Rodriguez, supra, 20, where we

overruled State v. Troynack, supra, and

distinguished State v. Ruiz, 171 Conn.

264, 269-72, 368 A.2d 222 (1976), upon

which the defendant has relied. In view

of General Statutes §53a-45 (c), which

allows a defendant indicted for murder to

be found guilty of homicide in a lesser

degree than that charged, it is clear that

any lesser degree of homicide may be con-

Sidered by the trier, subject to the re-

quirements of State v. Whistnant,

on. een Comm. LeJd., NO. 33, pe 5, 8)

(1980), 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 innocent

of the greater offense but guilty of the

lesser. State v. Rodriguez, supra.

10a

The defendant has made no claim in

his brief that the evidence would not

support a conviction of manslaughter in

the first degree under both subsection (1)

and subsection {3) of §53a-55. During

argument, however, the question did arise

of the sufficiency of the evidence to sup-

port a finding that the defendant's avow-

edly intentional shooting of the victim

constituted "reckless" conduct creating a

grave risk of death to the victim under

circumstances evincing an extreme indiffer-

ence to human life, as proscribed by sub-

section (3).

It appears that the defendant claimed

neither insanity nor extreme emotional dis-

turbance 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 de-

fense of the person in accordance with

General Statutes §53a-19, charging that

"Ji]lt 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

lla

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).

Since we have concluded that the

court properly submitted to the jury man-

Slaughter in the first degree in violation

Of both subsections (1) and (3) of §53a-

55, we are not concerned with the further

question which the defendant raises of the

failure of the verdict to specify which of

these subsections the jury relied upon.

See Yates v. United States, 354 U.S. 298,

312, 77 &.Ct. 1064, 1073, 1 L.Ed.2d 1356

(1957); Leary v. United States, 395 U.S.

6, 31-32, 89 &.Ct. 1532, 23 L.EBa.2d 57

(1969); Sandstrom v. Montana, supra, 526.

The jury might properly have relied upon

either subsection in this case.

The defendant also neglected to

assert in the trial court his claim that

the reference in the charge to his inter-

l2a

est in the outcome of the trial denigrated

his testimony and depreciated his consti-

tutional right to testify. Practice Book,

1978, §315. Despite the absence of the

prescribed exception, the same issue has

previously been regarded as falling with-

in the principle of State v. Evans, supra,

allowing review of newly raised claims of

constitutional error. State v. Mastro-

petre, 175 Conn. 512, 525, 400 A.2d 276

(1978).

"The rule is well settled in this

state that the court may advise the jury

that in weighing the credibility of an

accused's testimony they can consider his

interest in the outcome of the trial."

State v. Guthridge, 164 Conn. 145, 151,

318 A.2d 87 (1972), cert. denied, 410 U.S.

988, 93 S.Ct. 1519, 36 L.Ed.2d 186 (1973).

The charge in this case.was substantially

identical to that given in State v. Guth-

ridge, supra, 15ln. A majority of this

court has continued to adhere to the rule.

State v. Mastropetre, supra, 525; State v.

Bennett, 172 Conn. 324, 335-37, 347 A.2d

247 (1977); State v. Jonas, 169 Conn. 566,

577, 363 A.2d 1378 (1975); State v.

l3a

Blyden, 165 Conn. 522, 528, 338 A.2d 484

(1973); State v. Moynahan, 164 Conn. 560,

575, 325 A.2d 199 (1973). Nothing in the

defendant's presentation has persuaded us

to change our view.

III

Once again we are obliged to consider

a claim of error in the charge not

brought to the attention of the trial court

in accordance with Practice Book, 1978,

§315, upon the ground that a fundamental

constitutional right of the defendant was

violated by the instruction upon the ele-

ment of intent. State v. Arroyo,

Conn. (41 Conn. L.J., No. 39, p. 6) (1980).

The trial court did include amidst

several paragraphs of instructions upon

intent the sentence: “Every person is

presumed to intend the natural and neces-

sary consequences of his acts." In Sand-

strom v. Montana, 442 U.S. 510, 525, 99 S.

Ct. 2450, 61 L.Ed.2d 39 (1979), a similar

instruction, "The law presumes that a

person intends the ordinary consequences

of his voluntary acts," was held to be

impermissible without adequate qualifying

instructions to remove the possibility

that a jury might interpret it as either

14a

(1) establishing a conclusive presumption

that a person intends the results of his

actions, or (2) as shifting the burden of

proving that element of the crime from -the

state to the defendant.

We have reviewed the instructions

upon intent given in this case and find

that they were adequately qualified to

avoid the possible misinterpretations

found objectionable in Sandstrom. The

sentence relating to the "presumption"

was followed by a detailed exposition

about inferring intent from circumstantial

evidence. The charge upon this element of

the crime was substantially similar to the

charge upon that subject which was found

to meet the requirements of Sandstrom in

q The pertinent portion of the charge

upon intent was as follows:

"The third element which must be

proved is that the person causing the

death of the person must have done so

with intent to cause the death; in other

words, the state must prove beyond a

reasonable doubt that the accused shot

Keller with intent to cause his death.

"Now, 'intent' is a mental process.

A person's intention may be inferred from

his conduct. Every person is presumed to

intend the natural and necessary conse-

quences of his acts.

l5a

State v. Arroyo, Conn. (41 Conn. L.J.,

No. 39, pp. 6, 8)(1980). The discussion

of intent was related to the principal

"Tt is often impossible, and never

necessary to prove criminal intent by

direct evidence. Ordinarily intent can be

proved only by circumstantial evidence, as

I have explained that term to you. What a

person's purpose or intention has been is

necessarily very largely a matter of in-

ference.

"A person may take the stand and

testify directly as to what his or her

purpose or intention was, and that testi-

mony you can believe or not according to

whether or not it warrants belief. But no

witness can be expected to come here and

testify th=* he looked into another per-

son's mind and therein saw a certain pur-

pose or intention.

"The only way which a jury can deter-

mine what a person's purpose or intention

was at any given time, aside from that

person's own testimony, is by determining

what the person's conduct was, and what

the circumstances were surrounding that

conduct; and from those infer what his

‘ purpose or intention was.

"A person acts intentionally with

respect to a result or to conduct describ-

ed by a statute defining an offense when

his conscious objective is to cause such

result or to engage in such conduct. To

draw such an inference, which was mention-

ed heretofore in my charge, is not only -

the privilege but it is also the duty of

the jury; provided of course the inference

drawn is a reasonable one.

"In this case, therefore, it will be

a part of your duty to draw all reasonable

l6a

offense of murder, the court concluding:

"In this case, therefore, it will be a

part of your duty to draw all reasonable

inferences from the conduct of the accused

in the light of the surrounding circum-

stances as to what purpose or intention

was in his mind at various times. In

order for the accused to be found guilty

of the charge of murder you must find be-

yond a reasonable doubt that he had an

intent to cause the death of John Keller.

If you do not find beyond a reasonable

doubt that the accused had that intent

then he is not guilty of murder."

In explaining the requirement of an

intention to cause serious physical injury

as an element of manslaughter in the first

inferences from the conduct of the accused

in the light of the surrounding circum-

stances as to what purpose or intention

was in his mind at various times. In

order for the accused to be found guilty

of the charge of murder you must find be-

yond a reasonable doubt that he had an

intent to cause the death of John Keller.

"If you do not find beyond a reason-

able doubt that the accused had that

intent then he is not guilty of murder."

17a

degree in violation of subsection (1) of

§53a-55,° the court did not repeat its

statement of the presumption condemned by

Sandstrom, a circumstance found to flaw

follows: .

"And so far as this case is concerned

a person is guilty of manslaughter in the

first degree when, with intent to cause

serious physical injury to another person

he causes the death of the person... .

""Serious physical injury' means

physical injury which creates a substan-

tial risk of death.

"The court has already instructed you

with reference to intent. That is an ele-

ment involved in the first section of the

statute relating to manslaughter in the

first degree which states, 'A person is

guilty of manslaughter in the first de-

gree when, with intent to cause serious

physical injury'-and I have explained

"serious physical injury' to you-'to

another person, he causes the death of

such person.'

"Now, in order for the accused to be

found guilty of this charge, manslaughter

in the first degree, the state must prove

beyond a reasonable doubt, first, that

the person intended to cause serious phy-

sical injury to another person and that he

caused the death of such person. That

relates to the first part of the statute

that I referred to which involves

‘intent.'"

18a

the manslaughter verdict in State v.

Arroyo, supra, 6. The previous instruc-

tions upon intent were referred to gene-

rally, but the court did say expressly

that the state must have proved beyond:-a

reasonable doubt that the defendant in-

tended to cause serious physical injury to

another person in order to obtain a con-

viction of that lesser included offense.

We have no doubt but that the elaborate

instructions upon intent given by the

trial court sufficiently qualified the

objectionable reference to the presump-

tion as to remove the possibility of a

misunderstanding on the part of the jury.

We are reinforced in this conclusion by

the fact that in this case where the

defendant admitted that he intentionally

fired eight bullets at the victim, causing

his death, the verdict of the jury was for

a conviction of the lesser offense of man-

slaughter in the first degree rather than

murder, the sole differentiating element

between the two crimes being the requi-

site mental state.

There is no error.

In this opinion Cotter, C.J., Peters

and Parskey, Js., concurred.

19a

BOGDANSKI, J. (dissenting). I would

find error in the trial court's charge

concerning the defendant's testimony and

credibility. |

The defendant in this case testified

on his own behalf. Thereafter the court

charged the jury as follows: "You consi-

der, as you will of anv other witness the

interest of the accused in the case, as

you would consider that of any other per-

son who has testified. In that connection

you'll consider the importance to the

accused of the outcome of this trial. In

other words, what I'm trying to say is

that an accused person, having taken the

witness stand stands before you just like

any other witness and is entitled to the

same considerations and must have his

testimony measured in the same way as that

of any other witness, which would include

your consideration of his obvious interest

in the verdict." (Emphasis added.)

A defendant is presumed innocent until

proven guilty; Deutch v. United States,

367 U.S. 456, 471, 81 S.Ct. 1587, 6 L.Ed.

2d 963 (1961); Coffin v. United States,

156 U.S. 481, 491, 15 S.Ct. 394, 39 L.Ed.

432 (1895); and if he does not testify, no

20a

comment can be made upon his failure to do

so. Griffin v. California, 380 U.S. 609,

614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

The charge in this case placed a penalty

on the defendant's decision to testify by

relegating his assertion of innocence to a

less credible category of testimony than

that of the state's witnesses. By creat-

ing such a circumstance, the charge under

consideration substantially undermines the

presumption that the accused is innocent

by permitting the jury to attribute a

motive to the defendant that can only

attach if he is indeed guilty as charged.

"(T]he accused's right to a fair trial

in a fair tribunal is the very foundation

of due process. .. .'Every procedure which

would offer a possible temptation to the

average man. . .to forget the burden of

proof required to convict the defendant,

or which might lead him not to hold the

balance nice, clear and true between the

State and the accused, denies the latter

due process of law." Tumey v. Ohio, 273

U.S. 510, 532, 47 §.Ct. 437, 71 L.Ed. 749

[1927]; Estes v. Texas, 381 U.S. 532, 543,

85 S.Ct. 1628, 14 L.Ed.2d 543 [1965]."

Aillon v. State, 168 Conn. 541, 546-47,

2la

363 A.2d 49 (1975). To single out the

defendant for exercising his right to

testify is equally as repugnant as comment-

ing on the exercise of his right to remain

silent.

The better rule is to.limit the charge

to a general statement of the elements by

which all witnesses' testimony should be

weighed and not to single out the defend-

ant's testimony as worth less than that of

any other witness. See State v. Bennett,

172 Conn. 324, 338-40, 374 A.2d 247 (1977)

(Bogdanski, J., dissenting); State v.

Jonas, 169 Conn. 566, 578-80, 363 A.2d

1378 (1975) (Bogdanski, J., concurring and

dissenting). See, e.g., United States v.

Brown, 453 F.2d 101, 107 (8th Cir. 1971),

cert. denied, 405 U.S. 978, 92 S.Ct. 1205,

31 L.Ed.2d 253 (1972); Garvin v. State,

255 Ind. 215, 217-22, 263 N.E.2d 371

(1970); State v. Bester, 167 N.W.2d 705,

706-10 (Iowa 1969); Hall v. State, 250

Miss. 253, 265-67, 165 So.2d 345 (1964);

State v. Finkelstein, 269 Mo. 612, 618-22,

191 S.W. 1002 (1917); Graves v. State, 82

Nev. 137, 138-42, 413 P.2d 503 (1966);

Stewart v. State, 484 S.W.2d 77, 79 (Tenn.

Crim. App. 1972); and cases cited at 85

22a

A.L.R. 577; see also Bryson v. State, 291

So. 2d 693 (Miss. 1974); State v. Bruyere,

110 R.I. 426, 293 A.2d 311 (1972).

I would therefore find error, set

aside the judgment and order a new trial.

APPENDIX B

NO. 8674

State of Connecticut SUPREME COURT

vs. STATE OF CONN.

Matthew Maselli Sept. 18, 1980

ORDER

The Defendant's Motion to Reargue

having been presented to the Court it is

hereby

ORDERED Denied.

By the Court,

Donald H. Dowling

CHIEF CLERK OF

SUPREME COURT

APPENDIX C

STATE OF CONNECTICUT

No. 20838

STATE OF CONNECTICUT SUPERIOR COURT

vs. NEW HAVEN COUNTY

MATTHEW MASELLI MAY 23, 1977

PRESENT, Hon. Anthony E. Grillo, Judge.

JUDGMENT

Upon an indictment laid before the

Grand Jurors of New Haven, duly impanelled

and sworn by Arnold Markle, Esquire,

Attorney for the State, within and for

said County on December 24, 1975 charging

Matthew Maselli with the crimes of Murder

and Carrying pistol without permit, and

thence to January 7, 1976 when the Court

(Mulvey, J.) granted the Motion of the

defendant filed January 2, 1976 to reduce

bond, and reduced the bond to $75,000.,

and thence to January 23, 1976 when the

defendant filed a Motion to have counsel

present at Grand Jury Hearing, Motion to

have minutes of Grand Jury hearing tran-

scribed, Motion to suppress statement of

defendant, Matthew Maselli, and thence to

January 26, 1976 when the Court (O'Brien,

J.) denied said Motions, and when the

Court (O'Brien, J.) granted the Motion of

the defendant filed January 23, 1976 to

exclude defendant from Grand Jury room

during taking of evidence, and when said

Grand Jurors on January 26; 1976 endorsed

a true bill as to the crime of Murder, as

more fully appears by said Bill of Indict-

ment, as on file, and thence to February

10, 1976 when the defendant appeared be-

fore this Court and for plea said Not

Guilty to both counts of said indictment,

and elected to be tried by a Jury of 12 on

the first count, and to be tried by a Jury

of 6 on the second count, and thence to

March 16, 1976 when the Court (Mulvey, J.)

denied the Motion of the defendant filed

February 9, 1976 to reduce bond, and

thence to March 30, 1976 when the Court

(Mulvey, J.) granted in part the Motion

of the defendant filed March 22, 1976 for

disclosure, production, inspection and

examination, and thence to April 2, 1976

when a Discovery was filed as ordered by

the Court, and thence to April 27, 1976

when the Court (Santaniello, J.) granted

the Motion of the defendant filed April

21, 1976 to reduce bond, and reduced the

bond to $50,000., and thence to December

23, 1976 when the Court (O'Brien, J.)

granted the Motion of the defendant filed

December 23, 1976 to direct Clerk to sub-

poena military and medical records, and

thence to January 20, 1977 when the Court

(Grillo, J.) granted the oral Motion of

the State to sever counts for trial, and

denied the oral Motion of the defendant

for mistrial, and thence to February l,

1977 when the defendant filed a Motion for

a directed verdict, which Motion the Court

(Grillo, J.) denied, and thence to Febru-

ary 4, 1977 when all the evidence having

been submitted, said first count of said

information was committed to the Jury who

returned a verdict of Guilty to lesser

included offense of Manslaughter in the

lst Degree at 4:10 p.m., which verdict was

accepted and ordered recorded by the

Court, and when the Court (Grillo, J.)

granted the oral Motion of the State to

increase the bond and increased bond to

$100,000., and thence to February 7, 1977

when the defendant filed a Motion to set

aside said verdict, and thence to February

22, 1977 when the Court (O'Brien, J.)

granted the Motion of the defendant for

commitment under Sec. 17-244, and when

said defendant was committed to the diag-

nostic Unit of Connecticut Valley Hospital

not to exceed 60 days, and thence to March

31, 1977 when the Court (Grillo, J.)

granted the Motion of the State for return

of victim's property, and thence to April

25, 1977 when a report from Dr. Francisco

Quintana, psychiatrist, was filed, and

when the prisoner appeared before this

Court for sentence, and when the Court

imposed the following sentence:

Not less than ten, nor more

than twenty years in the

Correctional Institution,

Somers, on condition that he

be evaluated for psychiatric

treatment,

and thence to May 11, 1977 when the

defendant filed a Motion to vacate said

judgment, and thence to the present time

when the parties appeared and were heard

by the Court, and when the Court denied

the Motion filed February 7, 1977 to set

aside said verdict and granted the Motion

to vacate the judgment and vacated the

judgment entered April 25, 1977 and enter-

ed a new judgment.

Whereupon it is adjudged that said

prsioner suffer imprisonment in the Cor-

rectional Institution, Somers, for a term

of not less than ten, nor more then

twenty years, on condition that he be

evaluated for psychiatric treatment.

BY THE COURT,

Leonard J. Gilhuly

Assistant Clerk

APPENDIX D

FEBRUARY 2, 1977

RELEVANT PORTIONS OF CHARGE TO JURY

Defendant's Interest in Outcome

"Now, in that regard an accused per-

son is not obligated to take the witness

stand in his own behalf unless he wishes

to; on the other hand he has a perfect

right to take the witness stand in his own

behalf -- as this accused has seen fit to

do. Whereas, as here, an accused person

does take the witness stand to testify in

his own behalf you apply to his testimony

the same standards by which you determine

the testimony of any other witness.

You consider, as you will of any

other witness the interest of the accused

in the case, as you would consider that of

any other person who has testified. In

that connnection you'll consider the

importance te the accused of the outcome

of this trial.

In other words, what I'm trying to

say is that an accused person, having

taken the witness stand stands before you

just like any other witness and is entit-

led to the same considerations and must

have his testimony measured in the same

way as that of any other witness, which

would include your consideration of his

obvious interest in the verdict."

Tr. pp. 709-710.

Essential Elements of Crimes Charged

"Because of that rule I must explain

to you the law and the elements of each

type, of each of the types of homicide

forbidden by our Statutes. Our Statute

concerning murder, insofar as pertinent to

this case reads in part as follows: "A

person is guilty of murder when, with

intent to cause the death of another per-

son he causes the death of such person."

There are three essential elements in the

crime of murder; first, the death of one

person must be caused by another person;

secondly, the person causing the death

must be of sound mind, that is, legally

sane; and third, the person causing the

death of the person must have done so with

intent to cause the death.

The first element, namely the death

of one person must be caused by another

person lies at the basis of the crime of

Murder. You must find that to have occur-

red as a fact. In order to convict this

accused of a crime of murder you must find,

first of all, that the accused caused the

death of John Keller, the person named in

the indictment. You must find proven be-

yond a reasonable doubt that John Keller

died as a result of the shooting by him by

the accused, if you find that the accused

did shoot him.

If you find that John Keller so died

then you will have found that the accused

caused his death. This is the first thing

that must be considered by you.

The second element which the State

must prove is that at the time of the

death of John Keller the accused, the

person causing his death was of sound’

mind, that is, legally sane; that is, a

person is of sound mind, legally sane and

responsible for his criminal or unlawful

conduct if, at the time of such conduct he

does not, as a result of mental disease or

defect lack substantial capacity either to

appreciate the wrongfulness of his con-

duct, or conform his conduct to the re-

quirements of the law.

Now, as far as that's concerned keep

this in mind: There's no claim here by

the defendant that he was insame or men-

tally ill. Keep in mind also that it is

true that the burden of proving an accused

is of sound mind is upon the State; it is

also true that because most men are of

sound mind the law presumes that an accused

was of sound mind at the time of the inci-

dent in which the charge is based, unless

there is some credible evidence tending to

prove the contrary, which has been intro-

duced.

In this case, as I recall the evi-

dence no such evidence was introduced.

But as I said earlier your recollection of

the evidence controls.

The third element which must be

proved is that the person causing the

death of the person must have done so

with intent to cause the death; in other

words, the State must prove beyond a

reasonable doubt that the accused shot

Keller with intent to cause his death.

Now, “intent" is a mental process.

A person's intention may be inferred from

his conduct. Every person is presumed to

intend the natural and necessary conse-

quences of his acts.

It is often impossible, and never

necessary to prove criminal intent by

direct evidence. Ordinarily intent can be

proved only by circumstantial evidence, as

I have explained that term to you. What a

person's purpose or intention has been is

necessarily very largely a matter of infer-

ence.

A person may take the stand and

testify directly as to what his or her

purpose or intention was, and that testi-

mony you can believe or not according to

whether or not it warrants belief. But no

witness can be expected to come here and

testify that he looked into another per-

son's mind and therein saw a certain pur-

pose or intention.

The only way which a jury can deter-

mine what a person's purpose or intention

was at any given time, aside from that

person's own testimony, is by determining

what the person's conduct was, and what

the circumstances were surrounding that

conduct; and from those infer what his

purpose or intention was.

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 re-

sult or to engage in such conduct. To

draw such an inference, which was men-

tioned heretofore in my charge, is not

only the privilege but it is also the duty

of the jury; provided of course the infer-

ence drawn is a reasonable one.

In this case therefore, it will be a

part of your duty to draw all reasonable

inferences from the conduct of the accused

in the light of the surrounding circum--:

stances as to what purpose or intention

was in his mind at various times. In

order for the accused to be found guilty

of the charge of murder you must find be-

yond a reasonable doubt that he had an

intent to cause the death of John Keller.

If you do not find beyond a reason-

able doubt that the accused had that

intent then he is not guilty of murder.

As I explained to you previously,

any person indicted for murder may be

found guilty of homicide in a lesser de-

ree than that charged. So that brings us

to a consideration of the elements involved

in manslaughter in the first degree. And

so far as this case is concerned a person

is guilty of manslaughter in the first

degree when, with intent to cause serious

physical injury to another person he causes

the death of that person; or when he, under

circumstances evincing an extreme indif-

ference to human life recklessly engages

in conduct which creates a grave risk of

death to another person and thereby causes

the death of another person.

"Serious physical injury" means phy-

sical injury which creates a substantial

risk of death.

The Court has already instructed you

with reference to intent. That is an ele-

ment involved in the first section of the

Statute relating to manslaughter in the

first degree which states, "A person is

guilty of manslaughter in the first de-

gree when, with intent to cause serious

physical injury" -- and I have explained

"serious physical injury" to you -- "to

another person, he causes the death of

such person".

Now, the other part of the Statute

reads, “Or when he, under circumstances

evincing an extreme indifference to human

life recklessly engages in conduct which

creates a grave risk of death to another

person and thereby causes the death of

another person".

Now, in order for the accused to be

found guilty of this charge, manslaughter

in the first degree, the State must prove

beyond a reasonable doubt, first, that the

person intended to cause serious physical

injury to another person and that he

caused the death of such person. That

relates to the first part of the Statute

that I referred to which involves "intent".

Now, a person may also be guilty of

manslaughter in the first degree if the

State proves beyond a reasonable doubt,

first, that the accused's conduct evinced

an extreme indifference to human life;

second, that the accused's conduct created

a grave risk of death to another person;

third, that the accused caused the death

of John Keller; and fourth, that the death

of John Keller was caused by the reckless

conduct of the accused. There's no ele-

ment of specific intent involved in this

section of the Statute relating to man-

Slaughter in the first degree.

of the charge is recklessness.

Tr. pp. 711-718.

The gist

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.