State v. O'Bryan ( 2015 )

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STATE v. O’BRYAN—CONCURRENCE
ESPINOSA, J., concurring in part. I agree with and
join part I of the majority opinion, which concludes
that the trial court properly instructed the jury on the
subjective belief required by the defendant, Latasha
R. O’Bryan, under our self-defense law, and that the
judgment of conviction should be affirmed. I write sepa-
rately, however, because although I agree with the
majority’s ultimate conclusion in part II that the defen-
dant was not deprived of a fair trial, I disagree with its
analysis. Specifically, I disagree with the majority that
the court’s instruction on combat by agreement was
correct and I conclude that, upon a finding of a combat
by agreement, self-defense is unavailable to the defen-
dant without qualification. I further conclude that this
error in the instruction benefited the defendant because
it allowed her to rely on a self-defense theory despite
a finding of a combat by agreement. Because I conclude
that self-defense is unavailable in a combat by
agreement, I do not need to reach the two issues raised
by the defendant as to the combat by agreement jury
instruction.
In determining whether General Statutes § 53a-19 (c)
(3) is ambiguous, I note that ‘‘[t]he process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case . . . . When construing a statute, [o]ur funda-
mental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts of
[the] case . . . . In seeking to determine that meaning
. . . [General Statutes] § 1-2z directs us first to consider
the text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) State v. Kalil, 314 Conn. 529, 557–58,
107 A.3d 343 (2014).
‘‘It is well established that we cannot accomplish a
result that is contrary to the intent of the legislature as
expressed in the [statute’s] plain language. . . . As we
recently have reiterated, a court must construe a statute
as written. . . . Courts may not by construction supply
omissions . . . or add exceptions merely because it
appears that good reasons exist for adding them. . . .
The intent of the legislature, as this court has repeatedly
observed, is to be found not in what the legislature
meant to say, but in the meaning of what it did say.
. . . It is axiomatic that the court itself cannot rewrite
a statute to accomplish a particular result. That is a
function of the legislature.’’ (Emphasis added; internal
quotation marks omitted.) State v. Singleton, 292 Conn.
734, 765–66, 974 A.2d 679 (2009).
As directed by § 1-2z, we begin with the statutory
language. Section 53a-19 (c) provides in relevant part
that the defense of self-defense is not available to justify
the use of physical force ‘‘when . . . (3) the physical
force involved was the product of a combat by
agreement not specifically authorized by law.’’ ‘‘The
agreement required by [this provision] need not be for-
mal or express.’’ State v. Silveira, 198 Conn. 454, 471,
503 A.2d 599 (1986); id. (upholding combat by
agreement instruction when there was evidence that
defendant and his companions went to assist friends
who were in trouble, which resulted in altercation with
individual who then left and returned with his own
group and fight broke out between two groups); see
also State v. Montanez, 277 Conn. 735, 747–48, 894 A.2d
928 (2006) (upholding combat by agreement instruction
when defendant’s friend urged another individual to
fight with defendant and that individual then returned
with his brother who offered to fight defendant’s friend
‘‘ ‘man-to-man’ ’’). The jury is permitted to infer ‘‘an
implicit agreement to fight from the evidence’’ pre-
sented. State v. Montanez, supra, 747.
In reviewing the language of § 53a-19 (c) (3), I con-
clude that it is plain and unambiguous. The text does
not provide for any exceptions to its rule that self-
defense is unavailable to parties to a combat by
agreement. That is, the plain language of the statute
categorically excludes self-defense as a justification for
the use of physical force when a party has engaged in
a combat by agreement. As the plain meaning of § 53a-
19 (c) (3) makes clear, the majority incorrectly con-
cludes that a defendant may claim self-defense despite
a finding of a combat by agreement. The court’s instruc-
tion provided that if the victim violated the terms of
the agreement and escalated the level of force beyond
what the two combatants had agreed on, and if the
defendant knew that the victim had done so, self-
defense may still be available to the defendant. This
instruction conflicts with the statute, which clearly pro-
hibits the use of self-defense in a combat by agreement.
See General Statutes § 53a-19 (c) (3).
Moreover, when I compare the text of § 53a-19 (c)
(3), the combat by agreement exception to self-defense,
with the text of § 53a-19 (c) (2), the initial aggressor
exception to self-defense, the absence of any language
in subdivision (3) indicating that a defendant may justify
the use of physical force in a combat by agreement
further compels the conclusion that subdivision (3)
does not allow a defendant to rely on a claim of self-
defense in a combat by agreement. ‘‘Under well estab-
lished rules of statutory construction, [w]here a statute,
with reference to one subject contains a given provi-
sion, the omission of such provision from a similar
statute concerning a related subject . . . is significant
to show that a different intention existed.’’ (Internal
quotation marks omitted.) State v. B.B., 300 Conn. 748,
759, 17 A.3d 30 (2011). Subdivision (2) of § 53a-19 (c)
explicitly includes a provision allowing the initial
aggressor to justify the use of physical force upon
another person ‘‘if he withdraws from the encounter
and effectively communicates to such other person his
intent to do so, but such other person notwithstanding
continues or threatens the use of physical force . . . .’’
Subdivision (3) of § 53a-19 (c) contains no such addi-
tional provision. The majority claims that it is ‘‘bizarre’’
that an initial aggressor would be able to use self-
defense, but a combatant to an agreement to fight would
not. However ‘‘bizarre’’ it might seem to the majority,
the legislature must not have found it so or it would
not have included a specific exception allowing for self-
defense in the initial aggressor provision and then left
such an exception out of the combat by agreement pro-
vision.
In reaching its conclusion that self-defense is avail-
able to a combatant in a combat by agreement, the
majority applies a common-law gloss on the plain lan-
guage of § 53a-19 (c) (3), stating that ‘‘the drafters of
§ 53a-19 emphasized that the justification defenses gen-
erally attempt to restate the common law.’’ (Internal
quotation marks omitted.) This approach seems incon-
sistent with the one taken in State v. Singleton, supra,
292 Conn. 764–66, in which this court rejected the defen-
dant’s claim that common-law principles permitted him,
as the initial aggressor, to use deadly force without
withdrawal when he initially used nondeadly force but
the other party escalated the force. In that case, this
court concluded that the language of § 53a-19 (c) (2)
was plain and unambiguous. Id., 765. The common-
law principles that would have allowed for such an
exception to the initial aggressor exception to self-
defense did not benefit the defendant in that case. Id.,
764–65. Instead, the court concluded that any such
exception would have to be expressly added to the
statute by the legislature. Id., 766. Query then how the
majority in the present case can use common-law princi-
ples to find an exception not explicitly written in this
provision of the same statute when a party to a combat
by agreement escalates the level of violence.
In its interpretation of the combat by agreement stat-
ute, the majority incorrectly characterizes the
agreement that combatants establish. In a combat by
agreement, the agreement is to engage in a fight; the
agreement is not to the terms of the fight. See State
v. Montanez, supra, 277 Conn. 747 (‘‘jury instruction
regarding the ‘combat by agreement’ exception to self-
defense is warranted when the evidence is ‘sufficient
to support a reasonable inference’ that . . . a mutual
combat occurred’’). A combat by agreement is a mutual
combat: a mutual decision by two or more parties to
engage in combat. Combat by agreement is not pugilism;
it is an illegal activity, with each individual in the fight
being subject to a charge of at least attempt to commit
assault in the third degree. See General Statutes §§ 53a-
49 (a) (2) and 53a-61 (a). Providing a combatant to such
a fight with the right to claim self-defense, grants that
individual the ability to avoid criminal liability using a
legal justification to an illegal act—an illegal act into
which she voluntarily entered.
Furthermore, it is unrealistic to assume, as the major-
ity does, that the combatants to a fight establish terms
prior to the commencement of the fight. This assump-
tion is contrary to our previous decisions. See, e.g.,
State v. Montanez, supra, 277 Conn. 747–48; State v.
Silveira, supra, 198 Conn. 471. The majority implies
that combatants establish ‘‘contracts’’ before engaging
in their fight. Given that fights develop without
advanced planning, and that we can find combat by
agreement even without any express agreement to fight,
it seems unlikely that the parties would establish spe-
cific terms, including the level of force to be used, prior
to the commencement of the fight. Even in the present
case, where there was testimony that the defendant and
the victim had agreed to engage in a ‘‘fair one,’’ defined
by witnesses as a fight without weapons, the parties
do not agree that that happened. The defendant claimed
at trial that she was simply assaulted and never agreed
to fight at all, and, therefore, certainly never agreed to
the particular level of force to be used.
Accordingly, I concur.