author: Dupont, C. J.

text:
    State of Connecticut v. Francisco Rodriguez
    (11449)
    Dupont, C. J., and O’Connell and Landau, Js.
    Argued January 18
    decision released April 25, 1995

      John R. Williams, with whom, on the brief, was David B. Bachman, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Howe, assistant state’s attorney for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction of robbery in the first degree rendered after a jury trial. The defendant claims that the trial court improperly (1) overruled his Batson challenges to the prosecution’s exercise of its peremptory challenges, (2) denied the defendant access to police internal affairs files concerning allegations of misconduct by prosecution witnesses for use in cross-examination, (3) refused to declare a mistrial after the state attempted to introduce irrelevant and prejudicial evidence of the defendant’s prior arrest record, and (4) violated the defendant’s right to due process of law in its instruction to the jury as to the definition of proof beyond a reasonable doubt. We affirm the conviction.

Certain facts are relevant to this appeal. On the evening of February 7,1991, Mark Krzos, a student at the University of New Haven, parked his 1991 GMC Jimmy (a four-wheel drive vehicle) in a parking lot behind his West Haven apartment building. The next morning, Krzos discovered that the vehicle had been stolen. When the vehicle was recovered, Krzos claimed that he did not own any of the various items the police officers found in the vehicle, including bowling equipment and an empty vial of crack cocaine.

That same evening, Edward J. Malvey III went to Nutmeg Lanes in Fairfield to participate in his weekly bowling league. He arrived at the bowling alley at approximately 9 p.m. He was unable to locate a parking spot near the bowling alley and parked his car in the dimly lit rear parking lot of the shopping center near the bowling alley. At approximately midnight, Malvey returned to his car with his bowling equipment. The shopping center had closed and the parking lot was fairly dark, although there was some lightingfrom store lights. As Malvey was placing his bowling equipment into his car, he observed a GMC Jimmy coming from the far end of the parking lot. The Jimmy stopped about twenty feet from his car. A passenger stepped out of the Jimmy and walked toward Malvey, saying “hold it right there, motherf_r.” He kept his right hand behind his body, leading Malvey to believe that he had a weapon.

The stranger took Malvey’s car keys and frisked him. When Malvey asked if he was being robbed, the stranger answered in the affirmative. Malvey gave the stranger his wallet. The stranger told Malvey to lie on the ground. Malvey noted that he had a silver automatic gun. The stranger began to search Malvey’s car. As Malvey lay on the ground, a second stranger got out of the Jimmy, approached him, and unsuccessfully attempted to remove Malvey’s wedding ring. Malvey then heard a gunshot. After he heard the shot, Malvey noticed that the first stranger was limping and appeared to have sustained an injury to his left leg. The men took Malvey’s bowling balls and threw them and some other objects into the Jimmy. The two men then left the parking lot in the Jimmy. Malvey noted that the Jimmy was going toward Bridgeport. He also noted the vehicle’s registration number. It was later determined that the vehicle was the one that had been stolen from Krzos.

Malvey reported the incident to the manager of the bowling alley, who called the police. Malvey was unable to give a detailed description of the perpetrators due to the poor lighting in the parking lot. At trial, Malvey testified that the assailant who first accosted him was approximately five feet eight or nine inches tall, darker than he, weighing between 150 and 160 pounds, and wearing dark clothing. He was shown no mug shots or photographs. At trial, one of the responding officers testified that Malvey described both his assailants as black men. The defendant and the state agree that the defendant is Hispanic. The police found a .22 caliber shell casing near Malvey’s car. The morning following the crime, Malvey was called to the Fairfield police station to identify his bowling ball, car keys and wallet. Five dollars had been removed from the wallet.

At about 12:40 a.m. on the night of the crime, Officer Angelo Pierce of the Bridgeport police department observed a GMC Jimmy parked on Pequonnock Street with the interior lights on and the motor running. Two men, one of whom was the defendant, were standing on the passenger side. When the men saw Pierce, they immediately separated and began walking away. Pierce saw the second man, later identified as Victor Garcia, throw a wallet into the grass as he walked away. Pierce stopped Garcia for “suspicious activity.” Pierce then noticed a brown Buick Riviera parked near the Jimmy. He retrieved the wallet, which contained photo identification indicating that it belonged to a Malvey. Pierce arrested Garcia. He concluded that the Jimmy was stolen because the door lock was “punched,” the steering column was heavily damaged and “gutted,” and the vehicle was running without a key in the ignition. The Jimmy matched the description and registration number given by Malvey of the vehicle his assailants were driving.

Pierce also noted that initially, as he was stopping Garcia, the defendant walked over to the Riviera and sat down. When Pierce approached the defendant and attempted to question him, Garcia began scuffling with the other police officers who had arrived, and Pierce turned to assist them. Pierce then transported Garcia to Bridgeport police headquarters for booking, and en route radioed all officers in the area to locate the brown Riviera and to detain the occupants. Once he received confirmation that this had been accomplished, he left Garcia at police headquarters and went to the location where the Riviera was stopped. There were two people in the Riviera. Pierce ordered both men out of the car and arrested the defendant for larceny of the Jimmy. When he emerged from the Riviera, the defendant stumbled and almost fell, apparently from a leg injury. The car was being driven by and was registered to a man who gave his name as Edwin Rodriguez. The defendant told Pierce his name was Heriberto Rodriguez. Another officer, however, testified that the defendant gave his name at the scene of the arrest as Roberto and an address of 105 Milne Street. Pierce noticed, but did not seize, dark colored clothing or rags in the back of the Riviera. When he and other officers later wanted to seize those items, they were unable to locate the vehicle.

The defendant was taken to the booking area at the Bridgeport police station, where he again gave his name as Heriberto and this time gave his address as P.T. Barman apartments. The defendant was later turned over to the Fairfield police, to whom he stated that his name was Heriberto. At no time did the defendant give his real name, Francisco. In addition, he offered different dates of birth throughout the arrest and booking procedures. Because of the defendant’s leg injury, which was a bullet wound, an ambulance was summoned and he was transported to Park City Hospital for treatment.

The Jimmy was brought to a garage. When it was inspected by a member of the Fairfield police department, he seized, among other items, two bowling balls, a bowling ball insert, an empty crack vial, and a stained bullet proof vest.

The defendant was charged with the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (3), and criminal impersonation in violation of General Statutes § 53a-130 (a). The charge of criminal impersonation was not pursued in a substitute information filed by the state.

The defendant began trial with Garcia as a codefendant. The defendant’s motions to sever the trials were initially denied. After jury selection had been completed and a suppression hearing held, however, the court reconsidered the motion to sever and granted it.

At trial, the defendant’s brother, Edwin Rodriguez, testified that the defendant was shot in the leg during an altercation earlier that evening. Edwin Rodriguez claimed that the defendant initially resisted being taken to the hospital because he was wanted for failure to appear in court on another matter and did not want to reveal his identity to hospital personnel. The two agreed to stop at Edwin Rodriguez’ girlfriend’s residence on Pequonnock Street to get identification for the defendant to use at the hospital. Edwin Rodriguez left the defendant waiting in the car and got the identification. He claimed that the two were en route to the hospital when they were stopped by the police.

The jury found the defendant guilty of robbery in the first degree and not guilty of larceny in the first degree and he was sentenced to serve a term of twenty years with a five year minimum mandatory sentence.

Other facts will be discussed as they pertain to particular issues in the case.

I

The Batson Claim

A state’s exercise of peremptory challenges to exclude potential jurors on the basis of race or sex violates the equal protection clause of the United States constitution. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994). “Although a prosecutor is ordinarily entitled to exercise permitted peremptory challenges ‘for any reason at all, as long as that reason is related to his Anew concerning the outcome’ of the case to be tried . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on. account of their race or on the assumption that [members of one race] as a group Avill be unable impartially to consider the State’s case against [a defendant of the same race].” Batson v. Kentucky, supra, 89. Batson applies to cases in which the defendant is a member of a cognizable racial group and the venireperson who is the subject of a peremptory challenge is a member of the same racial group. State v. Holloway, 209 Conn. 636, 641, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).

Batson establishes a three-step procedure for evaluating claims that a prosecutor has used peremptory challenges in a manner violative of the equal protection clause. Batson v. Kentucky, supra 476 U.S. 96-98. First, the defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. Id., 96-97. In Connecticut, however, this requirement has been abrogated, and the defendant need not make such a shoAving. State v. Holloway, supra, 209 Conn. 646. The second step becomes immediately operative. Id.

In the second step, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Batson v. Kentucky, supra, 476 U.S. 97-98. “A neutral explanation . . . means an explanation based on something other than the race of the juror. . . . Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). The prosecutor’s explanation need not rise to the level necessary to justify exercise of a challenge for cause. Batson v. Kentucky, supra, 97. The prosecutor may not, however, rebut the defendant’s prima facie case by stating merely that the peremptory challenge was exercised on the assumption or on intuitive judgment that the prospective juror would have been partial to the defendant because they were of the same race. Id. Moreover, “[i]f a prosecutor articulates a basis for a peremptory challenge that results in the disproportionate exclusion of members of a certain race, the trial judge may consider that fact as evidence that the prosecutor’s stated reason constitutes a pretext for racial discrimination.” Hernandez v. New York, supra, 363. The exercise of a peremptory challenge, however, will not be held unconstitutional solely because it results in a racially disproportionate jury. Id., 361.

The third step requires the defendant to show that the articulated reasons of the state are insufficient or merely pretextual. Batson v. Kentucky, supra, 476 U.S. 97-98. “While Batson does not address the problem of pretext, other courts have discussed the types of evidence that are salient to a showing of pretext.” State v. Gonzalez, 206 Conn. 391, 398-99, 538 A.2d 210 (1988). These include but are not limited to the following: “(1) The reasons given for the challenge were not related to the trial of the case ... (2) the prosecutor failed to question the challenged juror or only questioned him or her in a perfunctory manner . . . (3) prospective jurors of one race were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race as the challenged juror were not struck ... (5) the prosecutor advanced ‘an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically’ . . . and (6) the prosecutor used a disproportionate number of peremptory challenges to exclude members of one race.” (Citations omitted.) Id., 399; see also State v. Smith, 222 Conn. 1, 11, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992).

The defendant’s ultimate burden of proof is to show by a preponderance of the evidence that, but for the prosecutor’s invidious purpose, the juror would not have been challenged. State v. Gonzalez, supra, 206 Conn. 399-400. The defendant, however, need not show that “the peremptory challenge of every juror of the defendant’s race was due to an impermissible motive; rather, under Batson, the striking of even one juror on the basis of race violates the equal protection clause, even when other jurors of the defendant’s race were seated and even when valid reasons for the striking of some of the jurors of the defendant’s race were shown.” Id., 400. A trial court’s determination of whether the prosecutor’s reasons were valid or purposefully discriminatory is entitled to great deference. Id., 406-407.

In this case, the voir dire extended over three days, and included the questioning of thirty-six venirepersons. The jury panel finally selected was comprised of six jurors and two alternates. Of the six jurors, one stated that he was African-American and one stated that she was one-half Puerto Rican and one-half African-American. Four were Caucasian.

The defendant’s Batson claim concerns the state’s peremptory challenge of an African-American venireman, Edward Smith. Smith was the fourth venireperson to be the subject of voir dire and was questioned on the first day of the voir dire proceedings. The transcript shows that because several police officers were expected to testify, each prospective juror’s experiences with police officers in general was a concern for all counsel. The defendant claims that the state misused its peremptory challenge to excuse Smith because later the same day it accepted a white juror who expressed opinions about the police similar to Smith’s.

During voir dire, the state’s attorney asked Smith if he had ever been in the position of taking a complaint to a police officer, either in a professional or personal capacity. Smith replied that on two separate occasions, a car of his had been stolen from his Bridgeport home, that he had reported the thefts to the police, and that one vehicle was recovered but one was not. The state’s attorney did not ask him further questions concerning these contacts with the police.

Smith was then asked by the state about any “bad experiences” with police officers. He replied that he had never had any. The state’s attorney then asked if there had ever been an occasion when he felt that a police officer had been rude or inattentive. Smith related that he had once observed what he perceived to be an officer’s rude behavior toward a saleswoman in a donut shop. He opined that the officer, as a customer, was “rude” and showed “bad manners,” and that he thought the officer’s behavior was “strange.” Upon further questioning, Smith indicated that while he might have difficulty remaining neutral if the particular officer he had seen behaving rudely were testifying, he would treat testimony of other police officers as he would the testimony of other witnesses.

The state exercised a peremptory challenge to excuse Smith. The defendant’s counsel questioned the excusal under Batson. In explaining its reasons for the exercise of the peremptory challenge, the state cited concern about Smith’s experience with the “rude” police officer in the donut shop and how that experience might make Smith more inclined to believe any argument by the defense that the confusion over the defendant’s identity on the night of the crime was a result of the overzealous behavior of the police as to the defendant’s identity rather than any misrepresentations by the defendant. The court ruled that the state had evidenced a race-neutral explanation for its exercise of the peremptory challenge, and that the articulated reasons were not pretextual.

The defense again raised its Batson challenge to Smith’s excusal after the voir dire of Bruno Gallace, a white male. Gallace was the eighth venireperson to be questioned. In response to the state’s attorney’s questions regarding any experiences he had had filing complaints with the police, Gallace reported that, as a college student, he had been part of a group of students who were robbed, that his home had been robbed once, and that he had had material stolen from a work site. Gallace claimed that none of those experiences would cause him to evaluate a police officer’s testimony any differently than the testimony of any other witness, and that he had never had an experience during which he felt a police officer was being rude or inattentive.

In response to defense counsel’s question about whether he had ever observed “a police officer, not break the law, but do something which you considered to be rude or in bad taste?” Gallace responded that he had. When asked to elaborate, Gallace said that he did not believe that the experience would affect his ability to judge the credibility of any police officers who might testify. He explained that when he was sixteen years old he committed a motor vehicle infraction and was pulled over by a police officer and was “would you call it, persuaded to behave myself. In other words, I was threatened.” Gallace further described the officer as “a little bit harsh.”

The state’s attorney then asked the court for permission to question Gallace further. She asked Gallace whether, in light of what he had just told defense counsel, he would like to reconsider his negative answer to her inquiry as to whether he had ever had “a bad experience” with a police officer. Gallace replied: “Well, maybe I misread your question. Like a bad experience I — it didn’t personally — I wasn’t harmed or it didn’t really scar me, but I just remembered that this officer did this and I didn’t think it was — [defense counsel] used the term . . . ‘rude’ and I felt it was that. I wasn’t harmed by that. It wasn’t — the way you termed it, I felt like you were asking me, did anybody — did an officer ever do anything that really made an impression on me that’s going to harm me. This was rude what he — the officer did, but it didn’t affect me at all.” Gal-lace assured the state that he would treat a testifying officer “like anybody else.”

The state then asked Gallace if he had had other experiences since his motor vehicle infraction in which he felt that officers “were polite and did their job properly.” Gallace replied in the affirmative, and described an incident with a friend in which their car had broken down. He reported that the responding officer “did more than he had to do ... he brought us home even though he wasn’t supposed [to] and it — I thought it was real nice.” Gallace also told the state that when he reported the theft in his home, he felt that the responding officers “did their job.”

Counsel for both of the defendants and the prosecutor accepted Gallace as a juror. The defendant’s counsel then renewed his Batson claim, arguing that the acceptance of Gallace as a juror by the state conflicted with the reasons given for its excusal of Smith. The defendant, therefore, is using the state’s voir dire of Gallace to bolster his Batson claim as to Smith.

The defendant’s counsel asked the court to strike the entire panel and begin jury selection anew “in view of the obvious disparate treatment of the jurors by the state.” At this point in the voir dire, two jurors, including Gallace, had been seated. The defendant’s counsel argued that, not only were both Smith and Gallace witnesses to what they perceived to be rude conduct by the police officers, Gallace was a victim of it, and, therefore, the state’s excusal of Smith and acceptance of Gal-lace constituted disparate treatment under State v. Gonzalez, supra, 206 Conn. 399, in that “persons with the same or similar characteristics but not the same race as the challenged juror were not struck.” Counsel for Garcia concurred, and both the defendant and Garcia further requested that Smith be returned to the jury pool and seated as a juror.

The state’s attorney claimed that the peremptory challenge was based on race-neutral reasons. She explained that her challenge of Smith was based on what she had anticipated to be defense counsel's strategy of attributing to the arresting officer’s insistence the false name given by the defendant. She was concerned that defense counsel would try to attribute the confusion as to the defendant’s identity to the police officers. Over the lunch break, however, she had spoken to the arresting officer and verified that it was the defendant, not the police officers, who had created the confusion as to the defendant’s real name. Therefore, she was no longer as concerned as she had been with the venirepersons’ prior experiences with police officers. The state’s attorney also pointed out that, unlike Smith, Gallace had recounted some positive encounters with the police to offset the negative one he had described. The state agreed, however, to withdraw its peremptory challenge to Smith and to seat him on the jury-

Smith was by then unavailable, however, and could not be seated. Defense counsel renewed his motion to dismiss the entire jury panel and to begin jury selection anew. The state’s attorney reiterated her argument that there was no evidence that the distinction made by the state between Smith and Gallace was racially related, and that any distinction to be made had more to do “with the state’s assessment of the credibility of an argument ... on the alias issue” and that it had to do “with what I understood would be a defense argument and whether a juror would be particularly susceptible to that argument . . . it’s certainly [still] a concern but not as much as it was earlier.”

The court stated that dismissing the jury and beginning selection anew “would be the most cautious way to proceed in terms of appellate review,” but that, having observed both Smith and Gallace, “the reason proffered at the time by the state for the peremptory challenge made sense.” Moreover, the court stated that the reasons given by the state subsequent to accepting Gallace, including the fact that Gallace had had positive experiences with police officers, did not show bad faith on the part of the state. The court also concluded that the state’s willingness to seat Smith if he were still available evidenced the state’s good faith. The court held, therefore, that the state’s use of its peremptory challenge was not racially motivated and the reasons offered by the state for its exercise were valid and evidenced proper use of a peremptory challenge. Counsel for both defendants took exception.

If the defendant is found to have sustained the burden of proof by a fair preponderance of the evidence that but for the prosecutor’s invidious purpose, the juror would not have been challenged; State v. Gonzalez, supra, 206 Conn. 399-400; State v. Holloway, supra, 209 Conn. 644; “the trial court must then dismiss the jurors thus far selected and the remaining venire, and begin anew the jury selection process.” State v. Gonzalez, supra, 400. If the defendant had met his burden of proof, the trial court should have dismissed the jurors already selected, as well as the remaining venire, and begun the jury selection process all over again. We conclude that here the trial court was correct in not doing so. We reach this conclusion because the defendant did not meet his burden of proof.

Before discussing whether the defendant failed to meet his burden of proof, we must discuss the fact that he is not of the same race as the challenged juror. Bat-son and its Connecticut progeny are based on the premise that the impermissible discriminatory purpose violates the equal protection clause when potential jurors who are of the same race as the criminal defendant are excluded from the jury. See Batson v. Kentucky, supra, 476 U.S. 79; State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994); State v. Hinton, 227 Conn. 301, 630 A.2d 593 (1993); State v. Smith, supra, 222 Conn. 1; State v. Holloway, supra, 209 Conn. 636; State v. Gonzalez, supra, 206 Conn. 391.

Although the reported Connecticut cases involving a Batson issue concern defendants and prospective jurors of the same race, it is now clear that a criminal defendant may object to racially based exclusions of jurors through peremptory challenges, both for himself and on behalf of a rejected juror, whether or not the excluded juror is of the same race. Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). Powers held that a white defendant could question the use of a peremptory challenge to excuse an African-American venireperson. The defendant here, “as an Hispanic, was a member of a cognizable racial group”; State v. Gonzalez, supra, 206 Conn. 396; and the excused juror, Smith, as an African-American is also a member of a cognizable racial group. Batson v. Kentucky, supra, 476 U.S. 79; see also State v. Patterson, supra, 230 Conn. 385; State v. Holloway, supra, 209 Conn. 636.

A defendant may waive, expressly or impliedly, a right to make a Batson type claim, both for himself and for prospective jurors. State v. Patterson, supra, 230 Conn. 393-94. In this case, however, as in Powers, the defendant did not waive either right and expressly asserted both his own right to include Smith on the jury, and, by participating in the attempted recall of Smith, the right of Smith to participate in the trial process. Because this is so, Batson type principles are applicable to the testing of the use of a peremptory challenge to exclude Smith.

“[T]o rebut an inference of discrimination, a prosecutor must articulate a neutral explanation related to the particular case to be tried.” State v. Gonzalez, supra, 206 Conn. 398 n.5. Here, in response to the defendant’s initial Batson challenge, the state expressed concern that Smith’s negative impression of a police officer might make Smith more sympathetic to the defendant’s claim that the confusion over his identity the night of his arrest was the fault of the police officers. In response to the defendant’s renewed Bat-son challenge, after the acceptance of Gallace, the state reiterated its concern over Smith’s ability to consider the testimony of the police witnesses neutrally, but stated that having since spoken to the arresting officer, the state was no longer as concerned about that possible prejudice. The state then offered another reason for accepting Gallace but excusing Smith, which was that Gallace, unlike Smith, had recounted some positive experiences with police officers, which the state believed would “offset” the negative experience he had described.

“Prosecutors commonly seek to exclude from juries all individuals, whatever their race, who have had negative encounters with the police because they fear that such people will be biased against the government.” State v. Smith, supra, 222 Conn. 14. “[T]his concern constitutes a neutral ground for the state’s exercise of a peremptory challenge to excuse a black venireperson.” Id.

“The principles of Batson make clear that a true evaluation of a claim of purposeful racial discrimination cannot turn on a statistical comparison of the number of venirepersons of the defendant’s race that the state accepts and the number it rejects. These figures are nonetheless relevant.” State v. Holloway, supra, 209 Conn. 644; State v. Smith, supra, 222 Conn. 13. After Powers v. Ohio, supra, 499 U.S. 400, the only relevant statistical comparison may be the number of venirepersons who are in a racial minority contrasted with the number of venirepersons who are in the racial majority. The comparisons could involve different racial minorities and majorities depending upon the particular area of the country in which the jury selection occurs. The selected jury in this case included one “African-American” man and one “half Puerto Rican, half African-American” woman, and, therefore, the defendant cannot claim that the prosecution excused all the minority venirepersons.

“The purpose of requiring an articulation of neutral reasons is to dispel the inference of discrimination raised by the defendant’s prima facie case. . . . [Reliance on intuitive judgment or an affirmation of good faith is insufficient . . . .” State v. Gonzalez, supra, 206 Conn. 398. Here, however, by agreeing to accept Smith as a juror, the state did more than merely articulate its good faith. Where Smith was at the time, and the fact that, unknown to the court and the parties, it was impossible to seat him at that point, is irrelevant. The defendant’s renewed Batson claim permitted “the trial court and the prosecutor to reconsider and perhaps change their courses of conduct while that [was] still possible.” State v. Patterson, supra, 230 Conn. 392. The state did reconsider its peremptory challenge as to Smith and would have changed its course of conduct, had that been possible.

“Because the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact . . . that decision will turn on evaluation of credibility . . . [and] a trial court’s determination that there has or has not been intentional discrimination is entitled to great deference.” (Internal quotation marks omitted.) State v. Hinton, supra, 227 Conn. 323. The trial court’s ruling in this case was not improper.

II

Internal Affairs Files

Prior to trial, defense counsel, suspecting that several of the police officers whom the state intended to call as witnesses had been investigated by the internal affairs division (IAD) of the Bridgeport and Fairfield police departments, subpoenaed the IAD records of those officers. The records were examined in camera by the court. The court ruled that none of the records contained any information that could be used to impeach any of the officers’ testimony. The court placed the records under seal and filed them with the clerk for appellate review.

During trial, the defendant, notwithstanding the court’s earlier ruling on the IAD files, moved for permission to cross-examine police witnesses concerning internal disciplinary actions in which they might have been targeted. The state objected and requested that the defense make an offer of proof. The court agreed that an offer of proof should be made because, in its review of the IAD files, it had found “nothing admissible which would go to credibility.” The court asked defense counsel if he had any information from an independent source about the officers’ misconduct. Defense counsel admitted that he had no such information but argued that he was entitled to cross-examine the witnesses on internal disciplinary action as part of the defendant’s right to confrontation. The court ruled that absent any showing or offer of proof as to specific instances and as to specific witnesses, no cross-examination on this matter would be allowed. The court informed defense counsel that if he made an offer of proof, the court would consider allowing the line of questioning. The defendant made no offer of proof, but took an exception to the court’s ruling.

The defendant now argues that he was unable to lay a sufficient foundation because the trial court would not disclose the files to him, and he therefore did not know what was in them and could not make an offer of proof as to their relevancy. He asks this court to make a de novo review of the files in order to determine whether he had any right to their contents.

Generally, personnel files are exempt from disclosure as public records under General Statutes § 1-15 et seq., more commonly known as the Freedom of Information Act (act). State v. Januszewski, 182 Conn. 142, 171, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). In enacting the act, the legislature sought to balance the public’s right to know against private needs for confidentiality. Id.

In criminal cases, however, the defendant’s request for disclosure implicates a more significant right, that of a criminal defendant to impeach the witnesses who testify against him. Id. It is this right of the defendant that is involved in determining whether the information in the IAD files, otherwise exempt under the act, should have been disclosed to the defendant by the court. Id. The competing interests of the witnesses in confidentiality and the defendant’s right to confront the witnesses against him must be balanced. Id.

“The disclosure of such information must be carefully tailored to a legitimate and demonstrated need for such information in any given case. Where disclosure of the personnel file would place in the hands of a defendant irrelevant or personal and sensitive information concerning the witness, the file should not be disclosed. No criminal defendant has the right to con duct a general ‘fishing expedition’ into the personnel records of a police officer. ” (Emphasis added.) Id., 172. Routine access to personnel files is not to be had, and requests for information should be specific and should set forth the issue in the case to which the personnel information sought will relate. Id., 173. The trial court should make available to the defendant only information that it concludes is clearly material and relevant to the issue involved. Id.

Here, the court gave the defendant an opportunity to make an offer of proof. By not availing himself of this opportunity the defendant failed to provide a showing that the personnel files might contain any material relevant to the case or might contain any material useful for impeachment of a witness. In the absence of such a showing, the records need not be released to the defendant. State v. Howard, 221 Conn. 447, 460, 604 A.2d 1294 (1992); see also State v. James, 211 Conn. 555, 579, 560 A.2d 426 (1989). The broad nature of the defense’s request to the trial court and to this court is tantamount to a “fishing expedition” of the type explicitly prohibited by Januszewski.

We, therefore, conclude that there was no abuse of discretion in the trial court’s rulings, and that, on the facts of this case, we do not need to review the personnel files.

Ill

The Defendant’s Prior Arrest Record

After the Jimmy was seized, it was dusted by Detective Peter Bravo of the Fairfield police department for latent or visible fingerprints and other evidence. Bravo found seven partial latent fingerprints. Detective David Bensey of the Fairfield police department analyzed the latent prints found by Bravo, and compared them to ink prints taken from the defendant at the time of his arrest, but was unable to make a positive match.

The Fairfield police department gave the prints to Detective Eugene Redmond of the Bridgeport police department for comparisons with fingerprint cards in their files. Redmond was able positively to match the latent prints of the defendant, who had identified himself as Heriberto Rodriguez, with a card on file for Francisco Rodriguez, born November 22, 1957. The state elicited from Redmond that at the time of the defendant’s arrest there were seven separate fingerprint cards for the defendant in the files of the Bridgeport police department because there were seven different “occasions” when the defendant’s fingerprints were taken.

The state offered the cards as full exhibits. Defense counsel then asked to voir dire the witness, but did not ask that the jury be excused during the voir dire. He asked Redmond how many of the cards from the Bridgeport files he had actually used to make his identification of the defendant. The witness answered that he had actually used only one, “from a 1990 arrest.” The defendant then asked that the jury be excused and requested a mistrial based on what he characterized as the state’s misconduct in eliciting evidence of the seven prior “occasions” when fingerprints were taken. The defendant argued that Redmond’s testimony was the equivalent of introducing evidence of prior arrests, and also argued that there had been a motion in limine to exclude evidence concerning the defendant’s prior arrest record. The state argued that it had not specifically identified the “seven different occasions” as arrests, and that it had mentioned the different “occasions” only to show that Redmond had a basis of comparison in making his identification of the defendant.

The court denied the defendant’s motion for a mistrial and, at the defendant’s request, allowed only one fingerprint card, redacted as to any reference to arrest, into evidence. The court gave a limited cautionary instruction to the jury, instructing that the admitted card was relevant only for the limited purpose of identification and that the jury should not speculate as to the reason why the fingerprints had been taken. The defendant took an exception to the denial of his motion for a mistrial but did not take exception to the cautionary instruction.

The defendant argues that his request for a mistrial should have been granted and that even though only one fingerprint card was actually admitted into evidence, the state’s reference to seven different “occasions” on which fingerprints were taken, together with Redmond’s reference to a “1990 arrest” was in effect inadmissible character propensity evidence. The defendant contends that the state’s line of questioning regarding the fingerprint cards constituted prosecutorial misconduct and that he has, therefore, been deprived of a fair trial and due process under both the federal and state constitutions. The defendant concedes that the one card admitted was relevant to the issue of identity, but insists that he was nonetheless unfairly prejudiced by the earlier references to the seven separate cards. Finally, the defendant argues that the curative instruction given by the court was insufficient to repair the prejudice to him because the number of cards referred to made it impossible reasonably to believe that the jury followed the instruction and did not speculate as to why the prints had been taken.

The state counters that the state’s attorney never used the word “arrest” when questioning Redmond, and that it was defense counsel, not the state’s attorney, who elicited the word “arrest” from Redmond. The state also claims that the cards were introduced only to show surety of comparison, and that the defendant is the one who put his identity at issue by giving a false name at the scene of the arrest. The state also notes, as did the court in its curative instruction, that fingerprints are taken for purposes other than arrest.

“[Ejvidence of criminal activities is generally inadmissible to prove the guilt of the defendant as to the crime charged. . . . Although such evidence may be admissible for other purposes, such as the impeachment of the defendant’s credibility . . . the general rule excludes the evidence so as to avoid ‘the danger of prejudice against the defendant which may result from the admission of such evidence.’ ” (Citations omitted.) State v. Onofrio, 179 Conn. 23, 28, 425 A.2d 560 (1979). Unless the defendant himself puts his character at issue, the prosecutor may not introduce evidence of the defendant’s criminal record. State v. McClendon, 199 Conn. 5, 13, 505 A.2d 685 (1986); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982).

“Under the principles of real or demonstrative evidence, authenticated fingerprints may be introduced into evidence and compared with other fingerprints found at or near the scene of a crime.” State v. Ralls, 167 Conn. 408, 417, 356 A.2d 147 (1974). “The admission of a fingerprint record containing extraneous material which in itself is incompetent, however, may constitute reversible error depending on whether the evidence of past crimes has been masked or obliterated . . . .” Id., 417-18. “Whenever a fingerprint card is introduced as evidence ... an implication of criminal history potentially arises which, of course, should be dispelled. . . . [T]he better practice is to cover every questionable element of the card, including dates and other printed matter.” Id., 418-19.

Where, however, the jury is “at most . . . exposed to an implication of arrest without any indication of conviction, which was dispelled by the court’s cautionary instructions as to the limited purpose for which the fingerprint card was offered and as to the possibility that the prints were taken for a purpose unrelated to crime, such as employment” there is insufficient ground for a mistrial. Id. “[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated.” State v. Wooten, 227 Conn. 677, 693, 631 A.2d 271 (1993). “A determination of whether a mistrial is warranted is left to the sound judgment and discretion of the trial judge.” Id. Finally, the trial court has the discretion to determine that the probative value of a fingerprint card outweighs its prejudicial effect. State v. Baker, 182 Conn. 52, 59,437 A.2d 843 (1980).

There was no abuse of discretion by the trial court in admitting the redacted fingerprint card, which was clearly relevant to the issue of identity, as even the defendant concedes. Moreover, any prejudice to the defendant resulting from the reference by the state’s attorney to the seven other “occasions” where fingerprints had been taken, or the reference by Redmond to the defendant’s 1990 arrest in response to a question by the defendant, was cured by the trial court’s instruction, to which the defendant took no exception. “ ‘If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.’ ” State v. Wooten, supra, 227 Conn. 694. The defendant, therefore, cannot prevail on this claim.

The defendant claims that the state’s attorney’s actions amounted to “prosecutorial misconduct.” A “demonstrated deliberate effort by a prosecutor to influence the jury against the defendant through the attempted introduction of obviously inadmissible evidence may entitle the defendant to a new trial.” State v. Baker, supra, 182 Conn. 58. The defendant, however, has not shown any “demonstrated deliberate effort” by the state’s attorney. We conclude there was no impropriety in the state’s attorney’s efforts to establish the identity of the defendant.

IV

The Charge on Reasonable Doubt

The defendant’s final claim relates to the instruction given on the reasonable doubt standard. The defendant took no exception to the instruction given. In fact, the instruction given is virtually identical to the one offered by the defendant in his request to charge. In his request to charge, the defendant asked for the following instruction: “It is not required that the prosecution prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reason<able person would not hesitate to rely and act upon it in his or her most important affairs.” (Emphasis added.)

The instruction actually given by the court included the following: “A reasonable doubt is a doubt founded upon reason and common sense and not on the mere possibility of innocence. As the words imply, it is a doubt held by a reasonable person after all the evidence in the case is carefully analyzed, compared and weighed .... The state does not have to prove guilt beyond all doubt or to a mathematical or an absolute certainty. A reasonable doubt may arise not only from the evidence produced, but also from a lack of evidence, since the burden is upon the state to prove a defendant guilty beyond a reasonable doubt of every essential element of each crime charged .... Reasonable doubt is the kind of a doubt upon which reasonable persons like yourselves in the more serious and important affairs in your own lives would hesitate to act. ” (Emphasis added.)

The defendant claims that the charge given diluted the state’s burden of proof and deprived the defendant of a fair trial and due process of law under the fifth, sixth, and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution. The defendant does not articulate precisely how the state’s burden of proof was diluted by the given charge, and admits he did not except to the charge when it was given. Presumably, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), although he has not cited that case, which allows review of an unpreserved claim of constitutional error under certain conditions. The claim is reviewable under the first two prongs of Golding, but the actual review shows the defendant’s claim to be meritless.

With regard to jury instructions on the reasonable doubt standard, the United States Supreme Court has held that “so long as the court instructs the jury on the necessity that the defendant’s guilt be proven beyond a reasonable doubt . . . the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. . . . Rather, taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.” (Internal quotation marks omitted.) Victor v. Nebraska, U.S. , 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 589 (1994); see also In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

The sole authority presented by the defendant to support his argument that the “hesitate to act” formulation used in the charge in his case is unconstitutional is a critique of the formulation by a committee of federal judges, cited by Justice Ginsberg in her concurring opinion in Victor. She stated that “ ‘the analogy . . . seems misplaced. In decisions people make in the most important of their own affairs, resolution of conflicts about past events does not usually play a major role. Indeed, decisions we make in the most important affairs of our lives — choosing a spouse, a job, a place to live, and the like — generally involve a very heavy element of uncertainty and risk-taking. They are wholly unlike the decisions jurors ought to make in criminal cases.’ ” Victor v. Nebraska, supra, 114 S. Ct. 1252.

The defendant fails, however, to take note that while in her concurrence to Victor, Justice Ginsberg favors a different formulation of the reasonable doubt standard, she agrees that the “hesitate to act” formulation does pass muster under the Winship standard. Id., 1253-54. The defendant also relies on a case from the District of Columbia federal circuit court critiquing the “hesitate to act” formulation, but overlooks the line of Connecticut cases upholding that and similar formulations. State v. Gomez, 225 Conn. 347, 353 n.8, 622 A.2d 1014 (1993); State v. Thomas, 214 Conn. 118, 118-19, 570 A.2d 1123 (1990); State v. Smith, 210 Conn. 132, 147-50, 554 A.2d 713 (1989).

Those cases, both federal and state, hold that the “hesitate to act” formulation and formulations similar to it do not decrease the state’s burden of proof. The defendant is in the untenable position of asking this court to overrule both the United States and the Connecticut Supreme Courts.

We find neither a clear violation of a fundamental constitutional right nor a deprivation of a fair trial, and, therefore, the defendant’s unpreserved claim does not satisfy all of the conditions of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant makes other claims, such as the impropriety of the disclosure of his hospital records from the night of his arrest, to which he objects on the grounds of patient-doctor confidentiality, the inclusion on the jury panel of a juror who had had a prior confrontation with one of the police officers testifying for the prosecution, the state’s challenge for cause to remove an African-American woman on the stated ground that a member of her family had once been the victim of mistaken identity, and the introduction of or reference by prosecution witnesses to evidence the defendant claims is irrelevant and prejudicial, such as a crack vial and a stained bulletproof vest.
      These claims, although mentioned in the defendant’s brief, are not adequately briefed. Such claims are deemed abandoned and will not be reviewed. Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 156, 649 A.2d 540 (1994); Mulholland v. Mulholland, 31 Conn. App. 214, 215 n.1, 624 A.2d 379 (1993), aff'd, 229 Conn. 643, 643 A.2d 46 (1994).

       It is unclear from the record whether the vest was stained with blood or some other material.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       General Statutes § 53a-122 (a) provides in pertinent part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars . . . .”

       For our disposition of Garcia’s appeal, see State v. Garcia, 37 Conn. App. 619, 657 A.2d 691 (1995). We note that there are minor discrepancies in the facts of these related opinions, irrelevant to our disposition of these cases, due to the different evidence and testimony presented at the two trials.

       In Massachussetts, which has a declaration of rights prohibiting bias in the exclusion of members of a discrete community group from a jury, it has been held that the declaration applies to a challenge by an Irish Catholic defendant to the use of peremptory challenges to exclude venirepersons of a discrete ethnic group, Irish Americans, where the fact of ethnicity is based on an “Irish sounding” surname. Commonwealth v. Caldwell, 418 Mass. 777, 641 N.E.2d 1054 (1994).

       The record does not indicate the racial composition of the thirty-six venirepersons.

       At this point, the trials of the two accused had not yet been severed. Any reference to defense counsel or the defendant’s counsel applies only to counsel for the defendant in this case.

       The prosecutor argued: “I would just indicate first off that . . . Mr. Smith is not of the race of either of the defendants. I am concerned in light of the fact that there is a Bridgeport officer or officers who will be testifying; that Mr. Smith did indicate that he had referred to the incident where he saw the officer acting rudely toward another person, and it apparently made enough of an impression that it stuck in his memory and he responded when I asked about ... a negative impression .... I have some concern in light of [defense counsel’s] remarks . . . concerning the fact that he’s claiming the identity of his client was somehow the result of the officers insisting on his name being one thing when he says it’s something else. That . . . the defense might bring the officer’s conduct into question more than simply that of being an observer somehow bringing police conduct into question. And I have some concern that Mr. Smith, because of what he related, might be more amenable to believe that type of argument than someone who would regard an officer totally neutrally .... I don’t want a juror who might be perhaps ever so slightly inclined — more inclined to accept that type of a thing than someone who has a neutral view of an officer.”

       There is apparently a conflict, irrelevant to our analysis here, as to whether Smith was unavailable to serve on the jury because he had left the building or because he had been selected to sit on another jury.

       The court stated that while beginning jury selection anew “might be the easier thing to do, I don’t think it makes — makes sense. I don’t think it’s required by the law in this jurisdiction or under the United States Supreme Court decisions to strike the panel. Gallace was accepted after the excusal of Smith. There was only one juror. We still have only two jurors so I think the remedy would be extreme at this point. It would serve no purposeful end to strike those two jurors at this point. I think the fact that we cannot have Smith as a juror, while it might be unfortunate, it amounts to crying over spilled milk at this point. The reasons were valid at the time and the fact that the state wanted to withdraw that peremptory challenge, I think only tends to add to the good faith on the part of the state. So again, I don’t think in terms of judicial economy, is it the right thing to do nor do I think there is any prejudice to the defendants based on this ruling. So that my — I will deny the renewed motion under Batson to strike the two jurors who have been selected.”

       Whether Powers extends to the questioning by a black defendant of the use of a peremptory challenge when the venireperson is white and the venire is composed of a majority of whites or all whites, or extends to the questioning by a white defendant of a peremptory challenge of a white venireperson; Powers v. Ohio, supra, 499 U.S. 438 (Scalia, J., dissenting); is not clear. Also, it is not clear in the event of either of these situations, whether the abrogation of the first prong of Batson as provided in State v. Holloway, supra, 209 Conn. 636, would retain its applicability.

       The application of Powers v. Ohio, supra, 499 U.S. 400, where either the challenged venireperson or the defendant is not a member of a racially cognizable group because either person is a combination of many racial strains is uncertain. Another problem in the application of Powers is the determination of the venireperson’s race and how that might be established. For example, according to the United States 1990 Census of Population, “persons of Hispanic origin can be of any race.” United States Department of Commerce, Economics and Statistics Administration, Bureau of the Census, 1990 Census of Population, “General Population Characteristics — United States,” p. B-7.

       Defense counsel argued that “I don’t purport to know anything more than you had in reviewing the files. But my experience with the Bridgeport police department has lead me to believe — to be less accepting of their representations either directly or indirectly that nothing exists. Therefore, I think the best person to ask to answers like this would be the officers of both departments. And I’ve not had any experience with Fairfield police department which would lead me to believe that they would be less than forthright in divulging all the information. Still, I’m leaving room for human error factor into the situation and I frankly don’t think there’s any need to do any kind of offer of proof on the matter because it either exists or it doesn’t exist. And if it does not exist, then I assume that the officers’ credibility in the eyes of the jury is that much more bolstered, quite frankly. Of course if it is not, then they get to draw the conclusion that I — if it relates to a matter of veracity or lack thereof, then they get accepted for that. But based upon my client’s state constitutional right and his federal constitutional right to confront the witnesses, I think this particular form of examination, in front of the jury, would be acceptable and I would request permission to do so.”

       Redmond explained to the court, after the request for a mistrial, that he had first compared the seven cards on file to each other, ascertained they were all from the same Francisco Rodriguez, and then compared one of those cards to the prints supplied by the Fairfield police department.

       The court told the jury: “In your absence, [this] fingerprint card was admitted into evidence as a full exhibit, but I want to give you a couple of instructions now. The other cards which were offered were not accepted into evidence and I’m going to ask you to disregard the cards. You didn’t see the cards, but disregard all of the testimony concerning the other cards. And I want to give you an instruction concerning [this card] which I did admit into evidence. And again, that is the fingerprint card to which Detective Redmond has been testifying. And that’s been admitted into evidence for a limited purpose and that is identification. You should not speculate as to the reason for the fingerprinting of Mr. Rodriguez. There are many reasons that individuals are fingerprinted and I’m sure many of you are aware of this. Fingerprints are taken for various civil service positions, various job applications, security clearances. There really are a number of reasons that police departments are called upon to take members of the community’s fingerprints [which] are kept on file at the Bridgeport police department. Any time they’re taken by the Bridgeport police department or any other police department, for any reason, that police department keeps a record of those prints on file. So don’t speculate as to the reason here that the prints were taken originally. But again, the fingerprint card . . . is admitted for identification purposes.”

       The defendant did, however, take exception to other portions of the charge, none of which he has challenged on appeal.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    State of Connecticut v. Jose Luis Garcia
    (11805)
    Dupont, C. J., and O’Connell and Landau, Js.

      Argued January 11
    decision released April 25, 1995

      Scott Perry, certified legal intern, with whom were Brian J. Kornbrath and, on the brief, Timothy H.

      Everett, and Kristen Miller and Christopher Drew, certified legal interns, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Howe, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and one count of larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (3). The defendant claims that the trial court improperly (1) denied his motions for judgment of acquittal on both charges when the evidence was insufficient to sustain his convictions, (2) instructed the jury on the larceny charge so as to allow a conviction of an uncharged offense, and (3) admitted a vial of crack cocaine into evidence.

The jury reasonably could have found the following facts. On February 7,1991, Mark Krzos parked a black 1990 GMC Jimmy in a lot adjacent to his residence in West Haven. The following morning, he reported the vehicle missing. At about midnight on February 8, 1991, Edward J. Malvey left the Nutmeg-Bowl bowling alley in Fairfield and walked to his car, which was located in an isolated, dark area of the parking lot. As he unlocked his car, a Jimmy approached slowly and stopped in front of his car. An individual exited from the passenger side door, walked toward Malvey and stated, “Hold it right there . . . .” Malvey described this person as a man smaller than himself, of medium height and build, with a dark complexion and wearing dark clothing. After patting down Malvey and taking his keys and wallet, the person told Malvey to lay face-down on the ground. That individual then began to search the inside of Malvey’s car. While on the ground, Malvey was able to observe a weapon in the possession of the person searching his car. A second person approached and attempted to remove Malvey’s wedding ring. While searching Malvey’s car, the first person discharged a shot from his gun. Malvey saw him return to the Jimmy, apparently favoring his left leg and dragging a bowling ball bag with him. When the Jimmy sped away, Malvey was able to observe its license plate, which matched that of Krzos’ missing vehicle. Malvey reported that a key ring, his wallet containing credit cards and $7 or $8 and a bowling ball bag with equipment in it had been stolen from him. A Fairfield police officer dispatched to the scene observed a .22 caliber casing beneath the passenger side seat of Malvey’s vehicle.

At about 12:40 a.m. on February 8, 1991, Officer Angelo Pierce of the Bridgeport police department observed two men, one of whom was the defendant, standing on Pequonnock Street in Bridgeport next to a black GMC Jimmy with its lights on and motor running. This location is approximately a five to seven minute drive from the Nutmeg-Bowl in Fairfield. When Pierce pulled up behind the Jimmy, the second man, later identified as Francisco Rodriguez, walked to a Buick Riveria that was parked in front of the Jimmy. The defendant walked toward the officer’s cruiser and tossed an object into a grassy area. Pierce requested that the defendant sit in the cruiser while he retrieved the object, which proved to be Malvey’s wallet.

An examination of the Jimmy revealed that the door lock and steering column were smashed and that the vehicle was running despite the absence of an ignition key. Inside the Jimmy were items later identified by Malvey as articles taken from him in Fairfield. During the investigation, Rodriguez left the scene in the Buick with an individual later identified as his brother and was stopped by the police two blocks away. As he exited the vehicle, Rodriguez almost fell, suffering from what was determined to be a gunshot wound to his leg.

The defendant began trial with Rodriguez as a codefendant. The trial court initially denied Rodriguez’ motions to sever the trial. After jury selection had been completed, however, the court reconsidered the motion to sever and granted it.

I

A

ROBBERY OF EDWARD MALVEY

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal as to the charge of robbery in the first degree. He argues that the state did not present sufficient evidence to establish that the defendant was the second person involved in the robbery of Malvey.

“In reviewing a jury verdict that is challenged on the ground of insufficient evidence, we employ a two part analysis. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . The evidence must be construed in a light most favorable to sustaining the jury’s verdict.” (Citations omitted; internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). In reaching its verdict, “[i]t is within the province of the jury to draw reasonable and logical inferences from the facts proven ... [as well as to] draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are ‘so unreasonable as to be unjustifiable. . . .’ ” (Citations omitted.) Id.

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. State v. Adams, 225 Conn. 270, 276-77, 623 A.2d 42 (1993), quoting State v. Stanley, 223 Conn. 674, 678, 613 A.2d 788 (1992). Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence. State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition. . . . Emphasis needs to be placed on the distinction between the word reasonable and the word possible. . . . Proof of guilt must exclude every reasonable supposition of innocence . . . [while a] mere possible hypothesis of innocence will not suffice. . . . State v. Little, supra, 672; State v. Morrill, supra, 611.” (Citations omitted; internal quotation marks omitted.) State v. Ford, supra, 230 Conn. 693.

Restated, the first issue in this case is whether the jury could have drawn reasonable inferences from the evidence presented at trial to enable it to conclude beyond a reasonable doubt that it was the defendant who accompanied Rodriguez in the robbery of Malvey. The defendant argues that the only evidence linking him to the robbery was Malvey’s wallet, which he threw aside as he approached Pierce. This evidence alone, he asserts, cannot prove the disputed issue of identification beyond a reasonable doubt. The state contends that the defendant’s conviction of robbery in the first degree was based on reasonable inferences drawn from the evidence presented. We agree.

“ ‘[T]he possession of property recently stolen, if unexplained and standing alone or without other facts pointing to a contrary conclusion, will justify the trier in drawing an inference that the possessor stole the property, and the inference may be sufficiently strong to warrant a conviction of a charge of theft.’ State v. Palkimas, 153 Conn. 555, 558-59, 219 A.2d 220 (1966); State v. Donnelly, 124 Conn. 661, 663, 2 A.2d 214 (1938).” State v. Higgins, 201 Conn. 462, 473, 518 A.2d 631 (1986). “Possession of recently stolen property puts the burden of explanation upon one charged with having stolen it. . . . In other words, the circumstantial evidence of possession of recently stolen property raises a permissible inference of criminal connection with the property, and if no explanation is forthcoming, the inference of criminal connection may be as a principal in the theft . . . depending upon the other facts and circumstances which may be proven. . . .” (Citations omitted; internal quotation marks omitted.) State v. Palkimas, supra, 559.

The fact that the defendant was in possession of Malvey’s recently stolen wallet raised a permissible inference that he had stolen it. The defendant’s explanation for his possession of the wallet was that he had picked it up from the ground when Rodriguez, whom he claimed not to have known, asked him for help. It was reasonable for the jury to reject this explanation and instead to rely on the inference. Moreover, the state presented other facts that tended to support the inference that the defendant had been involved in the robbery. The wallet that was in the defendant’s possession had been the subject of a robbery less than one hour earlier. The robbery had occurred only a short distance from where the defendant was found to be in possession of the wallet. The defendant was standing next to the vehicle used in the robbery and was with a man who had suffered the injury described by Malvey. Also, following his arrest, the defendant evinced a consciousness of guilt by giving a false name to the police.

After a review of the record, we conclude that, on the basis of the facts established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established beyond a reasonable doubt that the defendant was the second person involved in the robbery of Malvey.

B

LARCENY OF THE MOTOR VEHICLE

The defendant also argues that the evidence was insufficient to sustain a conviction of larceny in the first degree. In the information, the state charged the defendant with larceny of a motor vehicle at two different times and locations; both at the Nutmeg-Bowl in Fairfield and on Pequonnock Street in Bridgeport. The defendant argues that the state did not present sufficient evidence to justify a conviction based on either charged theory of larceny. The state posits that it presented evidence sufficient to establish that the defendant had wrongfully withheld the Jimmy in Fairfield.

We have already set forth the appellate standard of review for sufficiency of the evidence claims in part I A of this opinion. A person commits larceny “when, with intent to deprive another of property or to appropriate the same to himself ... he wrongfully takes, obtains, or withholds such property from an owner.” General Statutes § 53a-119. In order to prove that the defendant wrongfully withheld the Jimmy, the state needed to establish that the defendant kept it in his possession or control. See Webster’s Third New International Dictionary; see also General Statutes § 1-1 (a).

Further, to satisfy the specific intent element of the crime of larceny, the state needed to prove that the defendant intended to deprive another of property. “Generally, intent can be proved only by circumstantial evidence. State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979); State v. Bzdyra, 165 Conn. 400, 403, 334 A.2d 917 (1973). ‘ “Intent maybe, and usually is, inferred from conduct. State v. Cofone, 164 Conn. 162,164, 319 A.2d 381 [1972]; State v. Smith, 157 Conn. 351, 354, 254 A.2d 447 [1969]. Intention is a mental process, and of necessity it must be proved by the statements or actions of the person whose act is being scrutinized. State v. Cofone, supra, 164; State v. Mazzadra, 141 Conn. 731, 735, 109 A.2d 873 [1954], A person’s intention is to be inferred from his conduct. Kiernan v. Borst, 144 Conn. 1, 6, 126 A.2d 569 [1956].” State v. Bzdyra, [supra, 403].’ State v. Sober, 166 Conn. 81, 92-93, 347 A.2d 61 (1974). Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide. State v. Sober, supra, 93.” State v. Morrill, supra, 193 Conn. 609.

As discussed in part IA of this opinion, it was reasonable for the jury to conclude, on the basis of the cumulative evidence presented, that the defendant had accompanied Rodriguez in the robbery of Malvey at the Nutmeg-Bowl. The evidence also established that when the Jimmy stopped in front of Malvey’s car, Rodriguez exited from the passenger side door of the vehicle. Once Rodriguez began to search Malvey’s car, and before he shot himself in the leg, the second person, i.e., the defendant, approached him and attempted to take his wedding ring. Malvey testified that no other persons or vehicles were in the parking lot at that time. Thus, it was reasonable for the jury to conclude that the defendant had been the driver of the Jimmy.

“ ‘Ordinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen.’ ” In re Adalberto S., 27 Conn. App. 49, 53, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992), quoting State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961). If the defendant was the driver of the Jimmy, he was in a position to know that the steering column had been smashed and that the vehicle was operational without an ignition key. These circumstances would lead “ ‘a reasonable man of honest intentions, in the situation of the defendant, [to conclude] that the property was stolen.’ ” In re Adalbertos., supra, 53. It was reasonable for the jury to conclude that the defendant’s knowledge that the Jimmy had been stolen constituted sufficient evidence to support a reasonable inference that the defendant intended to commit larceny.

We conclude that, on the basis of the facts established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established beyond a reasonable doubt that the defendant wrongfully withheld the Jimmy from its owner while at the Nutmeg-Bowl in Fairfield.

II

The defendant next claims that the trial court’s instruction as to larceny effectively permitted the jury to convict him on the basis of an uncharged theory of liability, thereby violating his right to be informed of the nature and cause of the accusation against him as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

Specifically, the defendant argues that although the state charged him with two distinct theories of larceny, the court’s instructions allowed the jury to convict him on the basis of a third theory; that is, larceny in the city of West Haven on February 7,1991. The defendant asserts that, despite the state’s failure to charge that he took the Jimmy in West Haven, the court read the entire larceny statute and twice thereafter instructed the jury that the state must prove beyond a reasonable doubt that the defendant “wrongfully took, obtained, or withheld property from an owner.” The court also provided the jury with separate definitions for “taking,” “obtaining” and “withholding.” Finally, the defendant maintains that the court marshaled the facts in support of the theft in West Haven.

The defendant concedes that this claim was not properly preserved, but seeks review pursuant to the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as reformulated in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under the Evans-Golding test, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40.

“In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240. The defendant’s claim does not meet the third requirement of the Evans-Golding test.

Both the United States and Connecticut constitutions guarantee a criminal defendant the right to be informed of the nature of the charge against him “with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise .... State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987), quoting State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). In order for the defendant to establish an infringement of these constitutional rights, he must demonstrate that the court’s charge caused him unfair surprise or prejudiced the preparation of his defense. State v. Scognamiglio, supra, 22.” (Internal quotation marks omitted.) Stale v. Trujillo, 12 Conn. App. 320, 326, 531 A.2d 142, cert. denied, 205 Conn. 812, 532 A.2d 588 (1987).

The essence of the defendant’s claim is that he was prejudiced in the preparation of his defense by the court’s instruction. “In determining whether a defendant has been prejudiced in the preparation of his defense, we consider the nature of his defense advanced at trial in relation to the trial court’s instruction. See State v. Newton, [8 Conn. App. 528, 536-37, 513 A.2d 1261 (1986)]. Where the record indicates that a defendant would not have changed his defense in any way had he actually been charged by the state with the particular theory of criminal liability upon which a trial court instructed the jury, the defendant’s defense cannot be said to have been prejudiced. State v. Scognamiglio, supra, [202 Conn.] 22-23; State v. Franko, supra, [199 Conn.] 491. Thus, if the defendant’s defense encompasses the uncharged theory of criminal liability as well as the charged theory, and, if believed by the jury, could lead to an acquittal under either theory, his constitutional rights have not been adversely implicated by the trial court’s instruction. State v. Franko, supra [491].” State v. Trujillo, supra, 12 Conn. App. 326-27.

The defendant asserts that, because he relied on the specificity of the long form information, he failed to raise any defense to the West Haven “taking.” He raised no alibi defense, failed to cross-examine on this issue, and presented no argument to rebut the allegation. The defendant’s theory of defense concerned only the charged larcenies in Fairfield and Bridgeport. The theft of the Jimmy in West Haven occurred at a distinct time and location and encompassed a conceptually and statutorily different method of committing larceny. Consequently, we conclude that, because the defendant’s defense did not encompass the uncharged theory of liability, he was prejudiced by the court’s charge.

Our conclusion that the defendant was prejudiced by the court’s jury charge does not end our analysis. We must next determine whether the court’s improper charge constitutes reversible error. Such a determination hinges on whether it is reasonably possible that the jury was misled by the instruction. State v. Belton, 190 Conn. 496, 502, 461 A.2d 973 (1983); State v. Trujillo, supra, 12 Conn. App. 329. At the beginning of the trial, the court read the long form information to the jury, alerting it that the defendant was on trial for the specific charges of larceny in Fairfield and in Bridgeport. The information contained no reference to the West Haven theft. Also, the jury had the information to consult in its deliberations and the court explained in its charge that the information is the formal manner of accusing a person of a crime. While the state did present evidence that the Jimmy was stolen on February 7, 1991, it did so for the narrow purpose of showing that the vehicle was recently stolen. Likewise, in its charge, the court referred to this evidence in the context of relating that the state had presented evidence that the defendant was not the owner of the Jimmy. In all other respects, the evidence presented and the arguments made at trial concerned the events in Fairfield and Bridgeport.

For these reasons, we conclude that it was not possible that the jury was misled to believe that it could convict the defendant of taking the Jimmy in West Haven. Therefore, because the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial, he cannot prevail on this claim.

Ill

Finally, the defendant claims that the trial court abused its discretion by permitting the state to introduce a crack vial into evidence. Sergeant James Woods of the Fairfield police department testified that he searched the Jimmy following the defendant’s arrest. In the course of that search, he seized an empty crack vial. Following an objection and a brief argument, the vial was admitted into evidence.

Initially, we note that the trial court’s rulings on the admissibility of evidence are accorded great deference and will be disturbed on appeal only on a showing of clear abuse of discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Erhardt, 17 Conn. App. 359, 367, 553 A.2d 188 (1989). “ ‘A trial court has broad discretion in its rulings on the relevance of evidence and in its determination of whether the probative value of evidence outweighs its prejudicial effect. Reversal is required only when there is an abuse of discretion or when an injustice has been done. State v. Baskins, 12 Conn. App. 313, 318, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987).’ ” State v. Sweeney, 30 Conn. App. 550, 556, 621 A.2d 304, cert. denied, 225 Conn. 927, 625 A.2d 826 (1993).

Evidence is considered relevant when “it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. State v. Sharpe, [195 Conn. 651, 659, 491 A.2d 345 (1985)]; State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978).” (Internal quotation marks omitted.) Ellice v. INA Life Ins. Co. of New York, supra, 208 Conn. 222, quoting State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985).

Applying these principles to the case at hand, we conclude that the trial court did not abuse its discretion in admitting the vial into evidence. The state’s theory of the case was that the defendant and Rodriguez participated together in the charged crimes. One of the crucial evidentiary facts connecting the defendant to the robbery of Malvey was his association with and physical proximity to Rodriguez on Pequonnock Street in Bridgeport. Consequently, it was necessary for the state to connect Rodriguez to the robbery. The state sought to accomplish this by first establishing that Rodriguez was a drug abuser who had used crack on the evening of February 8,1991. The state then sought to assert the possibility of a relationship between Rodriguez’ drug use and the presence of the crack vial.

The trial court could reasonably have concluded, on the basis of the evidence before it, that the crack vial’s presence in the Jimmy was sufficiently probative of a fact in issue; that is, that Rodriguez, with whom the defendant was associated, was a participant in the robbery. We conclude that the trial court did not abuse its discretion when it determined that the crack vial was relevant and, therefore, admissible evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.”
      General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars . . . .”

       For our disposition of Rodriguez’ appeal, see State v. Rodriguez, 37 Conn. App. 589, 658 A.2d 98 (1995). We note that there are minor discrepancies in the facts of these related opinions, irrelevant to our disposition of these cases, due to the different evidence and testimony presented at the two trials.

       “Where a charging document alleges, in the conjunctive, that an offense has been committed in more than one way, a guilty finding may stand if the evidence supports a conviction based upon any one of the statutory alternatives. State v. Eason, 192 Conn. 37, 42, 470 A.2d 688 (1984).” State v. Wohler, 231 Conn. 411, 415, 650 A.2d 168 (1994).

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .”
      Article first, § 8, of the Connecticut constitution provides in pertinent part: “In ah criminal prosecutions, the accused shall have a right . . . to be informed of the nature and cause of the accusation . . . .”

       In a long form information, the state charged the defendant with larceny in the first degree: “[1] at the Towm of Fairfield ... on the 8th day of February, 1991, at or about 12:10 a.m. at Nutmeg-Bowl, Villa Avenue, Fairfield; and [2] at the City of Bridgeport . . . on the 8th day of February, 1991, at or about 12:40 a.m. at the area of 88 Pequonnock Street

       The defendant takes issue with the following statements made by the court to the jury: (1) “The [Jimmy] had been taken on the day before the robbery from the owner-possessor, Mark Krzos”; and (2) “Mr. Krzos testified that the [Jimmy] was his and that it was taken late in the day of February 7, 1991.”

       Objecting to the introduction of the crack vial, the defendant stated: “The victim, Mr. Malvey, didn’t claim [the vial] as his own. I think on the medical records it was indicated, I believe, that Rodriguez told the hospital staff that he used crack at some point. There’s been no evidence about anything regarding my client with this exhibit, so I would ask since the victim disavows knowledge of it and there’s nothing to connect it to my client, that it be stricken for the purposes of this trial. It’s not relevant here.”
      The state responded: “Your Honor, I would claim it as relevant to the general circumstances. The fact that there were two participants indicated as involved in the robbery, I think evidence that might relate to one, at least relates to the other in that there is a correlation to one participant, at least indirectly shows a relationship to the second party as well.”

       The state made no claim, argument or inference to attribute the possession of the crack vial to the defendant. The sole purpose of the introduction into evidence of the vial was to link Rodriguez, and, thus, the defendant, to the crime.