author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. STANLEY GOODRUM
    (12615)
    Dupont, C. X, and Foti and Lavery, Js.

      Argued March 17
    decision released September 26, 1995

      James B. Streeto, special public defender, for the appellant (defendant).

      Pamela S. Meotti, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b), possession of marijuana in violation of General Statutes § 2 la-279 (c), and five counts of violation of probation. The defendant claims that (1) the evidence was insufficient to support his conviction of possession of narcotics with intent to sell and conspiracy, (2) the trial court should not have given a Secondino charge, (3) the trial court gave an incorrect consciousness of guilt charge, (4) the trial court should have given the jury an instruction on nonexclusive possession, and (5) the trial court wrongfully admitted evidence of marijuana seized from the defendant’s home.

We affirm the conviction with respect to the charges of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of marijuana, and violation of probation. We reverse the conviction on the charge of conspiracy to sell narcotics. We conclude that the evidence adduced at trial was insufficient as a matter of law to support the conviction on the conspiracy count.

The jury could have reasonably found the following facts. In January, 1992, the New Haven police conducted an undercover narcotics investigation that focused on three residences: 265 Dixwell Avenue, 377 Shelton Avenue and 35 Elizabeth Street. During the investigation, detectives saw the defendant enter and exit each location and saw him use a key to enter 265 Dixwell Avenue. On January 7, the detectives obtained a warrant to search all three residences.

On the morning of January 9, Detective Thomas Trochio and Detective Hilton Wright saw the defendant leave his residence at 377 Shelton Avenue and drive to 265 Dixwell Avenue where the defendant’s brother, Moses Pipkin, and son resided. The detectives saw the defendant leave his car and enter 265 Dixwell Avenue carrying a brown paper bag. The defendant used a key to enter the front door of the building. The detectives did not see which apartment the defendant entered.

The detectives returned to the police station to assemble a team of police officers for the purpose of executing the search warrants. They returned to 265 Dixwell Avenue approximately thirty minutes later, knocked on the door to apartment A-l and announced that they had a search warrant. The defendant was not present. In the apartment were Pipkin and Gloria Daniels.

The police searched the apartment and found a brown paper bag with a McDonald’s logo in which were 200 packets containing 7.06 grams of heroin. The packets were stamped with the words “raising hell” and wrapped in rubber bands. The police also recovered nineteen packets of heroin identical to those found in the brown paper bag, nine packets containing approximately 1.33 grams of cocaine found on Daniels, with the box for a beeper with instructions, a piece of wrapping paper addressed to the defendant at 265 Dixwell Avenue, and a Quaker Oats grits container filled with rubber bands. Written on the top of the grits container was “IOU Stan and Betty. 10-C 12-P.” The officers arrested Pipkin and Daniels.

The police then proceeded to 377 Shelton Avenue to execute that portion of the warrant. The defendant and Ruth Ford were found there. Upon searching the defendant, the police found a beeper with the same serial number that was on the instructions in the beeper box found at 265 Dixwell Avenue and keys later determined to be for the front door to apartment A-l. When the police asked the defendant how much money he had in his wallet, he said, “$30 or $40.” A subsequent search of the defendant’s wallet revealed $307, mostly $20 bills.

At the Shelton Avenue residence, the police also found $1554.50, primarily in $1 bills, stored in a plastic water bottle, a jacket similar to that the defendant had been seen wearing earlier that day, six packets of marijuana, and a tray containing marijuana residue and seeds.

At trial, Pipkin testified that he had been hospitalized for three weeks and had returned to his apartment at 265 Dixwell on January 8. Pipkin stated that he gave the defendant the keys to his apartment while he was in the hospital, and that the defendant was the only person with keys to his apartment. He testified that the McDonald’s bag was not in his apartment when he returned home on the evening of January 8, or when he left the apartment early the following morning.

Pipkin further testified that when he returned to his apartment on January 9, the defendant was leaving the building and was not carrying the paper bag. He denied that the 200 packets in the paper bag were his. He stated that he first learned of that bag when the police arrived shortly thereafter and found it during their search. Pip-kin pleaded guilty to charges of possession of narcotics with intent to sell and conspiracy to sell narcotics.

Trochio testified that, in his experience and training, a user of heroin is not likely to be found with 200 packets of heroin. He also testified that the packaging of the heroin into $20 bags indicated a large scale drug operation. Wright testified that “P-dope” is a street term for heroin.

I

The defendant’s first claim is that there was insufficient evidence on the charge of possession of narcotics with intent to sell. He claims that there is no direct proof of his actual possession of the 200 packets of heroin found in a brown paper bag at 265 Dixwell Avenue, and that the circumstantial evidence failed to prove his constructive possession beyond a reasonable doubt. While we agree that the evidence linking the heroin to the defendant was largely circumstantial, we hold that it is sufficient to support the conviction.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited. State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987).” (Internal quotation marks omitted.) State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). “So far as probative force is concerned, there is no legal distinction between direct and circumstantial evidence.” State v. Gaynor, 182 Conn. 501, 506 n.3, 438 A.2d 749 (1980).

The facts underlying this claim are not in dispute. Rather, the defendant now challenges the resultant inferences drawn by the trier of fact as improperly based on speculation and conjecture. See State v. Somerville, 214 Conn. 378, 389-90, 572 A.2d 944 (1990); State v. Gaynor, supra, 182 Conn. 503.

In order to “prove possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence and exercised dominion and control over it. State v. Delossantos, 211 Conn. 258, 277-78, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985) . . . .” (Citation omitted.) State v. Lee, 32 Conn. App. 84, 98, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994). “Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternative theory of constructive possession, that is, possession without direct physical contact.” State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). “Where the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.’ ” State v. Alfonso, supra, 195 Conn. 633.

The statements and circumstances tending to buttress the inference of constructive possession are as follows. Trochio testified that the narcotics were discovered in a brown paper bag in apartment A-l only thirty minutes after the police observed the defendant enter that same apartment building carrying a similar bag. Only the defendant and Pipkin had keys to the apartment, which suggests that one of them possessed the drugs. Pipkin denied any knowledge of the drugs. He testified that the drugs were not in his apartment the night of January 8 or when he left the apartment on January 9. Pipkin first learned of the drugs when the police found them in the paper bag in the apartment. Moreover, Pipkin saw the defendant leave the apartment building just before the search occurred, and testified that the defendant was not carrying the bag. Pipkin’s testimony supports the inference that the defendant placed the drugs in the apartment on the morning of January 9. This inference gains more support from testimony that the defendant had keys to Pipkin’s apartment when he was arrested.

Additionally, the police discovered a mailing wrapper addressed to the defendant at 265 Dixwell Avenue, apartment A-l. They also observed the defendant using a set of keys to enter 265 Dixwell Avenue on numerous occasions in the weeks preceding the search. The defendant had keys to Pipkin’s apartment when he was arrested, indicating the defendant’s access to the apartment and exercise of control over its contents.

Moreover, in their search of the apartment, the police discovered a grits container with the following inscription on top: “IOU, Stan and Betty. 10-C, 12-P.” Wright testified that “P-dope” is the street term for heroin. The jury could have interpreted the information on the box top to mean that the defendant, Stanley Goodrum, and “Betty” either owed or were owed ten bags of cocaine and twelve bags of heroin. Both interpretations are consistent with the defendant’s possession of narcotics.

Also, the police recovered $307 from the defendant’s person. When the defendant was asked how much money he had on his person, he stated that he had only $30 or $40. The police then recovered from the defendant’s person $307, mostly $20 bills. Trochio testified that the packets in the paper bag were packaged to sell for $20.

The defendant claims that State v. Alfonso, supra, 195 Conn. 624, and State v. Chisolm, 165 Conn. 83, 328 A.2d 677 (1973), are factually similar cases that support his claim of insufficient evidence. We disagree.

In Chisolm, drugs and packaging materials were found in a bin in the cellar of a three-family house owned by the defendant. The defendant had not lived in the building for the previous ten years and had rented out the three apartments to tenants. In the four years preceding his arrest, the defendant had been seen in the cellar and had been seen walking toward the bin. The tenants also had access to the cellar and keys to unlock the cellar door. A key to the padlock on the bin was found on the defendant’s person when he was arrested for another offense. The tenants were uncertain, however, whether their keys also fit the padlock on the bin.

The Chisolm court held that the evidence was insufficient to support the defendant’s conviction. The court stated that “[n]o one saw the defendant with narcotics; no one saw the defendant in the bin; no one saw the defendant place anything in the bin or remove anything from it. No tenant testified that his or her key would not unlock the padlock on the bin and no testimony was offered which would establish that the defendant’s key was the only key which would unlock the padlock on the bin.” State v. Chisolm, supra, 165 Conn. 85.

In the present case, unlike in Chisolm, the defendant’s brother testified that he gave keys to his apartment to only the defendant. In Chisolm, the court found it significant that there was no evidence to indicate that the defendant alone had access to the bin, or to clarify how many people had access to the bin. Here, only the defendant and his brother had access to the apartment. Moreover, the defendant’s brother testified that he had no knowledge of the drugs until they were retrieved in the search. Thus, the evidence supported the reasonable inference that the defendant placed the drugs in the apartment.

In Chisolm, no one saw the defendant with narcotics. In this case, the police saw the defendant carry a brown paper bag into 265 Dixwell only one-half hour before they discovered 200 packets of heroin in a similar bag. When he was arrested, the defendant was carrying a key to the apartment and a beeper. The beeper box was found in the apartment where the drugs were seized. The defendant’s first name and a note that either he owed or was owed heroin and cocaine was written on top of a box containing rubber bands used to package the narcotics. The defendant’s wallet contained $307, mostly $20 bills, and the drugs were in $20 bundles. Moreover, the defendant attempted to deceive the police by lying about the amount of money in his wallet.

In State v. Alfonso, supra, 195 Conn. 624, the police found cocaine and marijuana during their search of the defendant’s apartment, which he shared with two roommates who were not present during the search. The defendant admitted that the cocaine was his, but denied any connection with the marijuana. The court overturned the defendant’s conviction for possession of marijuana because “[t]here was no other circumstantial evidence from which the jury could reasonably infer that the defendant was aware of the presence of the marijuana in the apartment.” (Emphasis added.) Id., 634. Here, abundant circumstantial evidence tied the defendant to the narcotics found in apartment A-l.

The defendant claims that his conviction cannot be sustained because the state is unable to exclude the possibility that Daniels put the drugs into the bag. Daniels was never seen with the bag nor was the bag found on her person. Rather, two police officers recovered from her person nineteen packets containing heroin stamped with the words “raising hell” and nine packets of cocaine. Daniels did not have a key for the apartment and did not reside there. “[T]he 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. . . . Proof of guilt must exclude every reasonable supposition of innocence . . . .” (Internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994). Here, as in Ford, “[ajlthough the defendant’s scenario was a possibility, the jury rejected it.” Id., 695.

Finally, on this charge, the defendant claims that the bag was not the same bag that he was carrying and that it was possible Pipkin put the drugs into the bag. The jury, in “viewing evidence which could yield contrary inferences ... is not barred from drawing those infer-enees consistent with guilt and is not required to draw only those inferences consistent with innocence.” State v. Sauris, 227 Conn. 389, 399-400, 631 A.2d 238 (1993). The jury could reasonably conclude that the bag carried by the defendant was the same bag found in the apartment and was free to credit Pipkin’s testimony denying any knowledge of the drugs.

The defendant also claims that there was insufficient evidence to convict him on the conspiracy charge. The second count, in part, alleges that the defendant on January 9, 1992, with the intent that conduct constituting the crime of sale of narcotics be performed, agreed with Pipkin, Daniels, Ford and Eudora Boyd to engage in or cause the performance of such conduct and any one of them committed an overt act in pursuance of such conspiracy. The defendant claims that the state proved neither an agreement nor an overt act.

The defendant first alleges that the state failed to prove the existence of an agreement, which is a necessary element in the crime of conspiracy. The existence of a formal agreement between the parties, however, need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. State v. Lewis, 220 Conn. 602, 607, 600 A.2d 1330 (1991); State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Lynch, 21 Conn. App. 386, 392, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. State v. Vessichio, supra, 644. Consequently, it is not necessary to establish that the defendant and his coconspirator signed papers, shook hands, or uttered the words “we have an agreement.” State v. Stellato, 10 Conn. App. 447, 453, 523 A.2d 1345 (1987). Indeed, a conspiracy can be inferred from the conduct of the accused. State v. Lynch, supra, 400.

Finally, “[t]he size of a defendant’s role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends.” United States v. Vanwort, 887 F.2d 375, 386 (2d Cir. 1989), cert. denied sub nom. Chapoteau v. United States, 495 U.S. 906, 110 S. Ct. 1927, 109 L. Ed. 2d 290 (1990). Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation. United States v. Vanwort, supra, 386; United States v. Zabare, 871 F.2d 282, 287 (2d Cir.), cert. denied, 493 U.S. 856, 110 S. Ct. 161, 107 L. Ed. 2d 119 (1989).

The state argues that there was abundant evidence from which the jury could infer an agreement between the defendant and Pipkin, the defendant and Daniels, or the defendant and both Pipkin and Daniels. The state claims the following evidence evinced an agreement.

Pipkin testified that he gave the defendant the key to his apartment while he was hospitalized. During the investigation prior to January 9, the investigating officers watched the defendant use a key to enter the building on numerous occasions. The defendant’s unlimited access to the apartment continued after Pipkin’s return from the hospital. Moreover, the drugs were found in Pipkin’s apartment after his return. In addition, the police found items indicative of drug trafficking, such as the beeper box and the note on the box top, in Pipkin’s apartment. From this evidence, the state claims, it was reasonable to infer that the defendant and Pipkin had agreed that the defendant could use Pipkin’s apartment as the base for his narcotics operation. It was also reasonable to infer that this agreement was made either when Pipkin first gave the defendant the key to his apartment before he went into the hospital or after Pipkin returned from the hospital and the defendant’s unlimited access to the apartment continued.

Pipkin also testified that both he and the defendant were friends with Daniels. When Pipkin arrived home on the morning of January 9, he saw the defendant leaving the building and found Daniels in his apartment. Pipkin had previously testified that the defendant was the only other person with a key to his apartment. Thus, it was reasonable to infer that the defendant had informed Daniels that he would be at Pipkin’s apartment on the morning of January 9 and would let her into the apartment. Moreover, the narcotics found in the bag and the narcotics seized from the person of Daniels were stamped with the identical logo. This supports the reasonable inference that the defendant carried the bag into the apartment, admitted Daniels, and gave her packets of narcotics to sell, which she placed in her purse. The state claims that the actions of the defendant, Pipkin and Daniels show a coordinated plan to use apartment A-l as a base for selling narcotics. The state, however in count one alleges that the defendant had the narcotics in the paper bag that he brought to the apartment as Pipkin was leaving.

The only evidence showing a connection between Pipkin and the defendant prior to that was that Pipkin gave the defendant a key to the apartment when he went into the hospital. Pipkin left the hospital the day before the search. Pipkin testified that he did not see the paper bag when he left on the morning of January 9 and that it was there when he returned, as was Daniels. The defendant was not there. The only person who had a key, other than Pipkin, was the defendant. Pipkin denied any knowledge of the presence of drugs in his apartment or that he had any dealings with drugs with his brother or that he had any knowledge of what went on in his apartment while he was in the hospital. The jury did not have to believe Pipkin, but there was no affirmative evidence to the contrary and the jury was not free to believe the opposite. State v. Alfonso, supra, 195 Conn. 634.

The evidence against Daniels is that she did not have a key to the apartment and that she was not there when Pipkin left but was there when he got back. Narcotics were found in the paper bag and identical narcotics were found on her. She was a friend of Pipkin and the defendant. The only reasonable inference that could be made is that the defendant let her into the apartment. How Daniels got the drugs, whether she stole them, got them from the defendant or had them on her person when she came, is a matter of speculation not inference. Possession of the drugs is sufficient for proof of the overt act in a conspiracy. State v. Walton, 227 Conn. 32, 48, 630 A.2d 990 (1993).

In order to prove the conspiracy, the state must demonstrate that this was an agreement between two or more coconspirators followed by an overt act in furtherance of the conspiracy by any one of the coconspirators. General Statutes § 53a-48. Here, we find no proof of an agreement. There is no prior evidence of any day-to-day activity at Pipkin’s apartment and no proof of any activity by anyone with Daniels except testimony that she was a friend of Pipkin and the defendant. Mere presence at the scene of a crime, even with knowledge of the crime, is insufficient to establish guilt of a conspiracy. State v. Lynch, supra, 21 Conn. App. 392; State v. Stellato, supra, 10 Conn. App. 454.

In State v. Sweeney, 30 Conn. App. 550, 557-59, 621 A.2d 304 (1993), we found there was sufficient evidence to support a conspiracy where the evidence established that the defendant knew of drug activity in her house, knew money given to her came from drug activity, purchased plastic bags used in drug activity and drug activity pervaded the entire residence. None of these elements was proved in this case. Also, in State v. Boykin, 27 Conn. App. 558, 564-65, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992), we found there was sufficient evidence of agreement where the defendant watched and talked with the dealer during transactions and was handed money after several such transactions. Here, we have possession of narcotics by Daniels and the defendant but no probative evidence from which a prior agreement between the defendant and Pipkin, between the defendant and Daniels or between the defendant, Pipkin and Daniels could be inferred. As to the other two names in the information, there was no probative evidence to include them as part of any conspiracy.

We conclude that there was insufficient evidence to find the necessary agreement for a conspiracy.

II

The defendant next claims that the trial court incorrectly gave a Secondino charge when it was not warranted and that the trial court incorrectly instructed the jury on consciousness of guilt. Neither of these claims was preserved and the defendant acknowledges that State v. Ramirez, 16 Conn. App. 284, 289-90, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988), controls on the reviewability issue. In Ramirez, we said: “The defendant acknowledges that no request to charge was submitted on this issue ... or an exception taken after the giving of the charge; therefore, our review of this claim is limited to a determination of whether plain error exists.” Plain error is reserved for extraordinary situations where the existence of the error is so obvious that it affects public confidence in the fairness and integrity of judicial proceedings. Id., 290. Neither claim reaches that level and we decline to review them.

Ill

The defendant next claims that the trial court’s charge was incorrect because it failed to instruct the jury that if the defendant was not in exclusive possession of the premises that there must be additional incriminating statements or circumstances buttressing the inference of possession. The defendant did not request this charge but claims review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant cannot prevail because under the third prong of Golding, the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial. The trial court gave a thorough definition of the terms “possession” and “constructive possession.” The court properly informed the jurors that they could not find that the defendant possessed the narcotic substance unless they concluded that he “knew of its presence, and that he exercised dominion and control over it.” State v. Alfonso, supra, 195 Conn. 633. Viewing this instruction as a whole, we find this instruction gave the jury “a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.” State v. Salz, 26 Conn. App. 448, 455, 602 A.2d 594 (1992), aff'd, 226 Conn. 20, 627 A.2d 862 (1993).

IV

The defendant’s last claim is that the trial court improperly allowed into evidence marijuana seized at the defendant’s residence because it constituted prior misconduct evidence. The defendant objected but did not state the grounds nor are they in the record. There is nothing to indicate that the defendant objected on the grounds asserted on appeal or that the trial court ruled on those grounds.

Appellate review of evidentiary rulings is limited to the specific legal ground raised by the objection of counsel at trial. State v. Harrison, 34 Conn. App. 473, 482, 488, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994); see also Practice Book §§ 288 and 4185. A specific objection is necessary to alert the trial court to purported error while there is time to correct it without ordering a retrial and to permit the opposing party to argue against the objection at trial. State v. Christiano, 228 Conn. 456, 464, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994); State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985). “To permit a party to raise a different ground on appeal than was raised during trial would amount to ‘trial by ambuscade,’ unfair both to the trial court and to the opposing party.” State v. Sinclair, supra, 579.

In this case, as the defendant concedes, defense counsel merely objected to the introduction of evidence concerning the marijuana; he did not state any grounds for his objection. His failure to voice the grounds for his objection renders this claim unreviewable.

The judgment is reversed only as to the conviction of conspiracy to sell narcotics and the case is remanded with direction to render judgment of not guilty on that charge.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”

       The defendant was initially charged in a single information with possession with intent to sell, conspiracy and possession of marijuana. He pleaded not guilty and elected a jury trial. On March 16, 1993, following the denial of his motion to suppress, the defendant entered a guilty plea to possession of marquana and proceeded to trial on the remaining charges. Subsequently, an information was brought against the defendant alleging violation of probation based on the guilty plea for possession of marijuana.

       See footnote 2.


source: Caselaw Access Project

author: FOTI, J. SPEAR, J.,

license: Public Domain

text:
    ANTHONY JULIAN RAILROAD CONSTRUCTION COMPANY, INC. v. MARY ELLEN DRIVE ASSOCIATES ET AL.
    (13244)
    O’Connell, Foti and Spear, Js.
    Argued April 21

    decision released September 26, 1995

      Jennifer L. Forrence, for the appellant (defendant Patrick R. Pacelli).

      Thomas B. Pursell, for the appellee (plaintiff).

       Oral argument was heard on April 21, 1995. Due to a recusal, the case was reassigned to a new panel which, with the consent of the parties, considered the case based on the briefs and the tape of the original oral argument.

   FOTI, J.

The defendant Patrick R. Pacelli appeals from the judgment of strict foreclosure of a mechanic’s lien rendered in favor of the plaintiff. Pacelli’s sole claim is that the trial court improperly awarded damages for work performed after the lien was filed when, he argues, the complaint sounded only in foreclosure of a mechanic’s lien and the case was tried solely on that theory. We affirm the judgment of the trial court.

On December 28, 1987, the plaintiff, a construction company, entered into contracts with Pacelli and three others who were principals in Mary Ellen Drive Associates and T.K.P. Associates, two general partnerships. The contract was for site development of a residential subdivision known as Nicole Estates in Milford. The plaintiff contracted to build the roadways for the subdivision. On March 23, 1988, the plaintiff and the defendants signed a waiver of mechanic’s lien related to the subdivision. On April 1, 1988, the plaintiff commenced work. The plaintiff stopped work on March 2, 1989, due to nonpayment. At this time, there remained an estimated $150,000 of work left to complete the job. On April 26, 1989, the plaintiff filed a mechanic’s lien in the amount of $400,164. The plaintiff subsequently returned to the site to perform additional work and services.

On September 13, 1989, the plaintiff commenced this action against several defendants seeking to foreclose the mechanic’s lien in the original principal amount of $400,164. The complaint, and each of the amended complaints as filed, alleged work performed after the date of the filing of the lien. The prayer for relief claimed money damages. The case was tried before a state trial referee on December 2 and 3, 1992. The first issue presented to the court was whether the plaintiff, by executing the March 23,1988 lien waiver, had waived its right to file and foreclose the mechanic’s lien. The court held that there was no waiver of the lien by the plaintiff. The court then analyzed whether the plaintiffs lien had priority over competing claims by the defendant UST Bank/Connecticut, a bank that held a mortgage on the property. The court held that the plaintiffs lien did have priority over the mortgage of UST Bank/CT. The court found for the plaintiff in the amount of $315,164 for work done prior to the filing of the hen and $87,441.42 for work performed after the filing of the hen. On January 3, 1994, the trial court rendered a judgment of strict foreclosure in favor of the plaintiff. It is the court’s award of damages for work performed after the fihng of the hen that Pacelli contests on appeal.

On appeal, Pacelh argues that the plaintiff made no claim in the complaint for damages stemming from work performed after the fihng of the lien. The defendants filed no pleading, seeking to contest the legal sufficiency of the allegations of the complaint or the prayer for relief. The defendants, at no time, sought to contest the joining of two or more causes of action, or made claim of lack of compliance with General Statutes § 52-91.

General Statutes § 49-33 allows a claim for materials furnished or services rendered to be a lien on the property subject to the payment of that claim. A mechanic’s lien may not attach to any real estate in an amount greater than the price that the owner has agreed to pay the contractor for the improvements to the real estate. Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 572, 438 A.2d 774 (1980). The amount is diminished by payments made prior to the notice of the mechanic’s lien, and the owner is also allowed credit for the reasonable cost to complete the contract satisfactorily. Id., 575. That credit should be disallowed if the work is actually done, completing the contract.

“The legislature has not provided for a separate certificate for materials and services rendered by one party upon a lienable unit under each of several separate contracts, nor for separate certificates for lienable operations on each of several buddings. It has only provided that there must be a lienable claim for materials and services rendered. Where there is a lienable claim arising from distinct contracts as to the same lienable unit of land and buildings, and where these contracts are carried out in a continuous and overlapping employment, the fair and reasonable intent of the statute is to permit the builder to file a certificate of lien for the entire claim arising under all the contracts, without reference to when the work under any particular contract was begun or ended.” Parsons v. Keeney, 98 Conn. 745, 749, 120 A. 505 (1923). The applicable statutes contain no language that would preclude a mechanic’s lien from covering work performed after the filing of the hen.

The plaintiff argues that it returned to perform work because it was obligated to do so, having posted a performance bond. It argues that the defendants were aware of the continuing improvement work, and derived benefit from this work. We agree that to hold that the lien does not attach to the subsequent work would penalize the plaintiff and require additional cost and expense for filing additional liens each time the plaintiff returned to perform additional work. “[I]t is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.” National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985).

Our mechanic’s hen statute is to be liberally construed so as reasonably and fairly to carry out its remedial intent, that is, to provide a contractor with security for his labor and services. Nickel Pine Brook Associates v. Sakal, 217 Conn. 361, 364-65, 585 A.2d 1210 (1991). The purpose of the mechanic’s lien is to give one who furnishes materials or services “ ‘the security of the building and land for the payment of his claim by making such claim a lien thereon . . . .’ ” H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981).

The facts of the allegations contained in the complaint must be construed in a light most favorable to the plaintiff. Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980). Our review of the pleadings leads us to conclude that the trial court acted properly in rendering judgment on the basis of the pleadings and evidence as presented for work done to the property after the filing of the lien.

The judgment is affirmed.

In this opinion O’CONNELL, J., concurred.

SPEAR, J.,

concurring. I concur in the result reached by the majority because I agree that the allegations of the complaint and the prayer for relief are sufficient to support the trial court’s judgment awarding damages. I write separately because the issue of whether the mechanic’s lien secured the debt for work performed after the lien was filed was not before us.

The appeal raises only one issue: “Did the court err in awarding $87,441.42 in damages to plaintiff for posthen work when the complaint sounded only in foreclosure of a mechanics lien and when the case was tried solely on that theory?” In disposing of this issue, there is no need to address the mechanic’s lien at all. The $315,164 debt that the lien secured was separately stated in the judgment, and it did not include the $87,441.42 that was awarded as damages. The court rendered a judgment foreclosing the mechanic’s lien and rendered a separate award of damages. The defendant Patrick R. Pacelli complains only of the latter. Having disposed of that issue on the ground that the plaintiffs claim for damages for work performed after the lien was filed was raised sufficiently in the pleadings, we need not decide whether the mechanic’s lien secured the debt for work performed after is was filed.

       The total of the plaintiffs claim for materials furnished and services rendered was $1,446,389. As of March 2, 1989, the plaintiff had received payments totaling $896,225, leaving a balance of $550,164.

       The $150,000 worth of work left to complete the job was applied as a credit by the plaintiff to the balance due prior to the filing of the lien.

       The plaintiff filed amended complaints on October 1, 1990, October 18, 1991, and April 10, 1992.

       The amended complaint filed on April 10,1992, alleged that “[t]he plaintiff commenced to furnish materials and services on April 21, 1988 and ceased furnishing materials and rendering such services on or about March 2, 1989, but has returned to perform additional services since the filing of the Mechanic’s Lien.”

       The plaintiffs demand for relief sought:
      “1. The amount, legal interest of property in demand is greater than Fifteen Thousand ($15,000) and 11/100 Dollars, exclusive of interest and costs.
      “2. A foreclosure of the mechanic’s lien.
      “3. Immediate possession of the premises.
      “4. Damages within the jurisdiction of the court.
      “5. A deficiency judgment against the defendants.
      “6. Reasonable attorney’s fees and costs.
      “7. Such other and further equitable relief as may be required.”

       The defendant does not challenge either of these findings on appeal.

       The trial court increased the credit for work left to complete the job prior to filing the lien from $150,000 to $235,000, leaving a balance of $315,164. The court mitigated the amount of damages due and owing the plaintiff after reviewing the data on the work that was performed.

       The defendant has no burden to move to strike a legally inadequate complaint; Stavnezer v. Sage-Allen Co., 146 Conn. 460, 461, 152 A.2d 312 (1959); he is not prevented from claiming that the plaintiff had no cause of action and that the judgment was not warranted. Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970).

       General Statutes § 52-91 provides: “There shall be one form of civil action. The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. In addition, in a contract action in which only money damages are sought and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs, the demand for relief shall also set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum.”

       General Statutes § 49-33 provides in pertinent part: “(a) If any person has a claim for more than ten dollars for materials furnished or services rendered ... in the site development or subdivision of any plot of land, and 1he claim is by virtue of an agreement with or by consent of the owner . . . of the plot of land being improved or subdivided . . . then the plot of land, is subject to the payment of the claim.”


author: FOTI, J. SCHALLER, J.,

text:
    STATE OF CONNECTICUT v. MANUEL ROSARIO
    (13317)
    Foti, Heiman and Schaller, Js.
    Argued May 25
    decision released September 26, 1995

      Paw,ela S. Meotti, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Paul Murray, assistant state’s attorney, for the appellant (state).

      Stephen V. Moran, assistant public defender, for the appellee (defendant).
   FOTI, J.

In this case, the state appeals, with the permission of the trial court, from a decision of the trial court granting the defendant’s motion to suppress certain evidence obtained pursuant to a search warrant. The sole issue presented on appeal is whether the trial court improperly granted the defendant’s motion to suppress the evidence seized in a search of the defendant’s residence. We affirm the trial court’s judgment.

On January 6, 1993, an application for a search warrant, including a supporting affidavit, was submitted to and signed by a judge of the Superior Court. The information in the affidavit may be summarized as follows. On January 6, 1992, Anthony Battistone and Arvid Leftwich, detectives with the Hartford police department (affiants), met with a confidential informant who told them that the defendant was selling drugs and that the defendant lived in the first floor apartment at 57 Benton Street in Hartford. The informant stated that he had been in the defendant’s apartment when another man came in and asked for a “package.” “Package” is the street term for 100 single packets of heroin. The man then handed the defendant money. The defendant took the money and told the informant to follow him to the basement. Once in the basement, the defendant told the informant to open the icebox and to remove a red plastic bag containing heroin. The defendant then opened a gray safe on the floor of the basement that contained more heroin and money. The defendant brought the heroin to the man and the informant then left the apartment and contacted the affiants.

The informant worked with the affiants to conduct a controlled purchase of narcotics from the defendant’s residence. Information about the controlled purchase formed the basis for a search warrant that, according to the affidavit, was executed on January 6,1992. The affidavit does not describe the controlled purchase but provides the following: “See Hartford Police Case Number 93-922 for information concerning the controlled purchase.” The affidavit also provides that when the affiants executed the first of two search warrants on January 6, 1992, a woman named Alida Nieves, who lived with the defendant, said that the drugs were in the basement. On the basis of that information, the affiants obtained a second search warrant for the basement area of 57 Benton Street. The affidavit was signed and dated January 6, 1993, by the affiants and the issuing judge. The warrant was also signed and dated January 6, 1993. The search yielded $11,761 in cash, a clear plastic bag containing a white powdery substance, 414 yellow glassine bags containing a white powdery substance, a scale, a grinder, a bottle of white lactose powder, and other drug paraphernalia. The defendant was arrested and charged with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), conspiracy to distribute narcotics by a person who is not drug-dependent in violation of General Statutes §§ 2 la-278 (b) and 53a-48, and possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a).

On November 18, 1993, the defendant moved to suppress the evidence obtained pursuant to the warrant on the ground that the information contained in the supporting affidavit was stale. He noted that the affidavit, which supported a warrant that was signed on January 6, 1993, referred to information allegedly obtained on January 6, 1992. The state argued that the references to 1992 contained in the affidavit were scrivener’s errors that did not invalidate the warrant. The defendant made a subsequent oral motion to suppress on November 24, 1993, and on January 5, 1994, the trial court, Miaño, J., issued an oral decision granting that motion. On January 26, 1994, the trial court dismissed the charges against the defendant on the state’s representation that, without the evidence, the state could not proceed. The trial court then granted the state permission to appeal pursuant to General Statutes § 54-96.

On appeal, the state argues that the trial court improperly granted the defendant’s motion to suppress evidence and that the trial court should have deferred to the issuing judge’s determination that timely probable cause existed to support the warrant. The state contends that a common sense reading of the affidavit establishes that the events described in the affidavit occurred in 1993 and that the references to 1992 were scrivener’s errors that did not affect the defendant’s substantive rights. The state notes that it was reasonable for the issuing judge to reach that conclusion and that the trial court improperly failed to defer to the reasonable conclusions drawn by the issuing judge. We disagree.

“The standard of review of an issuing judge’s determination that probable cause existed to issue a search warrant is to consider the information before the issuing judge at the time of the issuance of the warrant, together with the reasonable inferences drawn from such information, in the light most favorable to the issuing judge’s determination of probable cause. ... In determining whether probable cause exists to conduct a search, a totality of the circumstances test is used. ... In determining the existence of probable cause to search, the magistrate should make a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Citations omitted; internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 141-42, 646 A.2d 169 (1994).

“ ‘The determination of probable cause to conduct a search depends in part on the finding of facts so closely related to the time of the issuance of the warrant as to justify a belief in the continued existence of probable cause at that time. . . . Although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be reliable.’ ” (Emphasis added.) Id., 145-46. While the question of staleness must be determined on a case-by-case basis; State v. Ives, 37 Conn. App. 40, 47, 654 A.2d 789 (1995); the facts and circumstances set forth in a supporting affidavit should be current and timely, so as to indicate that the premises, person, place or thing to be searched presently contains the fruits of the crime. State v. Rose, 168 Conn. 623, 631, 362 A.2d 813 (1975).

“[I]n determining the adequacy of an affidavit in support of a search warrant, the information to establish probable cause must be found within the affidavit’s four comers.” State v. Colon, 230 Conn. 24, 34, 644 A.2d 877 (1994); see State v. Zarick, 227 Conn. 207, 217-18, 630 A.2d 565 (1993). “We have laid heavy emphasis on the need for protecting the integrity of the warrant-issuing process .... When a police officer seeks a search warrant in this state ... he knows or should know that the validity of his ensuing search will be gauged by the four comers of the documents that he presents in support of his application.” State v. Jacobs, 229 Conn. 385, 393, 641 A.2d 1351 (1994).

The state contends that there are several factors that can be gleaned from the four comers of the warrant that indicate that the reference to the year 1992 was a scrivener’s error. The state points out that the affidavit refers to a controlled purchase of narcotics that was used as the basis for obtaining a search warrant on January 6, 1992, and to Hartford police case number 93-922 for information about the controlled purchase. The state argues that it would be inconsistent for an event occurring in January, 1992, to be given a 1993 case number. Other factors also indicate that the reference to 1992 was incorrect. The state points out that the date in the body of the affidavit—January 6,1992—preceded the date on which the affidavit and warrant were signed by one year, and that it was unlikely that the affiants would wait exactly one year from the date they obtained their information before seeking a warrant. The state notes that the events in question occurred during the first week of January, a time when people often err in writing the year.

The state argues that on that basis of these factors gleaned from the four comers of the warrant application, the issuing judge could reasonably have inferred that the events in the affidavit occurred in 1993 and the reference to 1992 was a scrivener’s error. The state contends that a mere clerical error does not invalidate an otherwise proper warrant. The trial court, however, following the suppression hearing, concluded that “there [is] nothing in the body of the warrant to suggest or from which the court can reasonably infer a scrivener’s error.” The trial court noted that 1992 appeared five times in the affidavit, and it was consistent throughout the affidavit. The trial court noted that in determining whether timely probable cause existed to support the search warrant, it was bound by the four comers of the affidavit. It concluded that the information contained therein was stale.

It is tme that “[w]hen a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate.” State v. Barton, 219 Conn. 529, 544-45, 594 A.2d 917 (1991). The trial court concluded, however, and we agree, that there was nothing in the body of the affidavit to allow a reasonable inference that the information was gathered on any date other than January 6, 1992. The trial court correctly limited its review to the four corners of the affidavit. See State v. Diaz, 226 Conn. 514, 543-44 n.16, 628 A.2d 567 (1993). This limitation applies to an appellate court reviewing the same warrant application. Id. Based on the four corners of the affidavit, there was a one year lapse between the findings of fact relied on by the affiants and the issuing judge, and the issuance of the warrant. The findings were not so closely related to the time of the issuance of the warrant as to justify a belief in the continued existence of probable cause.

In State v. Abbott, 5 Conn. App. 441, 499 A.2d 437 (1985), we rejected the defendant’s argument that probable cause was lacking due to the staleness of the statements made by the informants thirty to ninety days prior to the issuance of the warrant. We held that “ [e] ven if we assume without deciding that such a delay would be the basis of a valid staleness claim if the statements were all that the magistrate had to rely on, such statements may be considered with the rest of the affidavit as part of the mosaic of probable cause. Other material in the affidavit may supplement and bring down to date the earlier materials . . . thus giving reason to believe that those circumstances still exist.” (Citation omitted; internal quotation marks omitted.) Id., 445. Here, the state points to no other information in the affidavit that supplements and revitalizes the information dated one year earlier. There is no other information that gave reason to believe that drugs were currently being sold at the defendant’s residence.

The state argues that the trial court incorrectly engaged in a de novo review of whether timely probable cause existed to support the search warrant, rather than deferring to the reasonable conclusions drawn by the issuing judge. We disagree. “The role of a reviewing court in assessing the validity of a warrant is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed.” (Internal quotation marks omitted.) State v. Radicioni, 32 Conn. App. 267, 272, 629 A.2d 432, remanded for reconsideration, 227 Conn. 921, 632 A.2d 698, rev’d, 33 Conn. App. 903, 633 A.2d 739 (1993); see State v. Duntz, 223 Conn. 207, 215, 613 A.2d 224 (1992). In its decision, the trial court stated that it could “consider only the information that [was] actually before the issuing judge at the time he or she signed the warrant.” The court discussed the reasons for its finding that the information in the affidavit was stale. It applied the proper standard of review and considered only the information before the issuing judge at the time of the issuance of the warrant. State v. Sivri, supra, 231 Conn. 141-42.

“It has long been recognized that . . . rules of criminal procedure are to be strictly construed to protect the fundamental constitutional right to liberty.” State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981). Our Supreme Court has specifically directed that strict construction of statutory provisions pertaining to search warrants is imperative. See State v. Surowiecki, 184 Conn. 95, 98, 440 A.2d 798 (1981).

We conclude that the affidavit includes facts too remote in time to have constituted probable cause on the date of the search. The search warrant was therefore based on stale information when it was executed and the subsequent seizure of evidence was invalid.

The judgment is affirmed.

In this opinion HEIMAN, J., concurred.

SCHALLER, J.,

dissenting. I respectfully disagree with the result reached in the majority opinion. I agree with the majority’s statement of the pertinent law. I disagree, however, with respect to the pivotal issue, that is, whether the trial court, in applying the substantial factual basis test, engaged in de novo review or whether it gave proper deference to the reasonable inferences drawn by the issuing judge. I believe the trial court reached its own decision as to what reasonable inferences should be drawn concerning staleness rather than deferring to the issuing judge’s reasonable inferences that led him to find probable cause.

The majority has accurately stated the facts contained within the four comers of the affidavit. As the state’s brief indicates, however, the warrant in question was the second of two search warrants pertaining to 57 Benton Street in Hartford, issued on January 6,1993, by different judges. The first warrant affidavit related facts relating to a controlled purchase of narcotics on January 5, 1993, at the first floor apartment at that address. The first warrant application, which concerned the first floor apartment, was signed by Judge Samuel S. Goldstein and executed on January 6, 1993. Because the police obtained information that the narcotics had been moved to the basement of the building, they did not pursue the matter and, instead, applied for a second warrant, the subject of this case. All the information contained in the second warrant affidavit, in fact, was obtained on January 6, 1993, not 1992, as the affidavit incorrectly stated.

Judge Raymond R. Norko found probable cause and issued the second search warrant on January 6, 1993. That search resulted in the seizure of a substantial amount of cash and narcotics. It is evident from the fact that Judge Norko found probable cause that he reasonably inferred from the facts in the affidavit that the references to January 6, 1992, were scrivener’s errors and that the underlying information actually was obtained on January 6,1993. We are entitled to presume that the issuing judge properly considered all the facts submitted for his consideration. Cf. Solomon v. Aber-man, 196 Conn. 359, 376, 493 A.2d 193 (1985). Because the underlying information, therefore, was not stale, probable cause existed.

When determining if an affidavit in support of a search warrant presented a substantial factual basis on which a magistrate could have found probable cause, “[w]e are confined to the facts that appear on the face of the affidavit and those facts that may properly be inferred therefrom, testing those facts with common sense and reality and with great deference to the fact that the issuing magistrate found probable cause.” State v. Vincent, 30 Conn. App. 249, 252, 620 A.2d 152 (1993); see Illinois v. Gates, 462 U.S. 213, 235-36, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).

The trial court, however, in ruling on the motion to suppress, declined to defer to the issuing judge’s inferences and, instead, reached its own decision as to what inferences were reasonable. I note that, in doing so, the trial court had before it the factors on which the issuing judge drew his reasonable inferences. The trial court took judicial notice of the fact that “upon embarking upon a new year often times one may, in error, record the previous calendar year.” The trial court also noted that it was unlikely that the police officers “could have sat on the warrant before they brought it to a magistrate for the year.” The attention of the trial court was also drawn to the body of the affidavit that contained a reference to Hartford police case number 93-922 for information about the controlled purchase, a crucial factor supporting the warrant application. As the issuing judge was obviously aware, it is not possible for a controlled purchase on January 6, 1993, to form the basis for a warrant issued on January 6, 1992. See State v. Amendola, 152 Conn. 166, 204 A.2d 836 (1964).

Those factors, in my view, provided Judge Norko with a sufficient basis fully within the four corners of the affidavit on which to draw a reasonable inference that the information in the warrant affidavit was timely. Our law is clear that “[w]hen a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inference drawn by the magistrate.” State v. Barton, 219 Conn. 529, 544-45, 594 A.2d 917 (1991). Our Supreme Court has repeatedly held that a reviewing court must uphold “the validity of [the] warrant . . . [if] the affidavit at issue presented a substantial factual basis [including the inferences reasonably drawn from the affidavit] for the magistrate’s conclusion that probable cause existed.” (Internal quotation marks omitted.) State v. DeFusco, 224 Conn. 627, 642, 620 A.2d 746 (1993).

Our Supreme Court has also stated that “[i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s . . . conclusion that the affidavit established probable cause.” (Citations omitted; internal quotation marks omitted.) Id. “[Affidavits for search warrants . . . must be tested and intexpreted by magistrates in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, supra, 380 U.S. 108. “Probable cause is a flexible common sense standard. ... It deals with probabilities, and the application of the factual and practical considerations of everyday life on which reasonable and prudent men act.” (Citations omitted; internal quotation marks omitted.) Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 549-50, 636 A.2d 1360 (1994). “It was former Chief Justice Roger J. Traynor of the Supreme Court of California who once stated that judges must keep ‘the peace between the Constitution and common sense.’ R. Traynor, ‘The Devils of Due Process in Criminal Detection, Detention, and Trial,’ 33 U. Chi. L. Rev. 657, 680 (1966).” State v. Miller, 29 Conn. App. 207, 246, 614 A.2d 1229 (1992) (Norcott, J., dissenting), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993). Because the trial court in this case did not defer appropriately to the issuing judge’s reasonable inferences, I would reverse the judgment of the trial court.

Accordingly, I respectfully dissent.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, maybe taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who . . . possesses with the intent to sell or dispense . . . any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . . .”

       General Statutes § 53a.-48 (a) provides: “A person is guilty of conspiracy when, with intent, that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 2 la-277 (a) provides in pertinent part,: “Any person who . . . possesses with the intent to sell or dispense . . . any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . .”

       The trial court stated: “[I]f the officers for whatever reason could have sat on the warrant before they brought it to a magistrate for a year, that’s unlikely. I don’t think reasonable, efficient officers would do that. I’m bound by the four corners of the affidavit. And I think here, I can only conclude that there’s a staleness issue here. And I think I’d be inviting speculation to say t he policemen wouldn’t wait a year. That’s taking things into consideration outside the four comers.”

       The trial court could not afford deference to the issuing judge because it could not speculate, as we cannot speculate, that the issuing judge either observed the five references to 1992 or considered them to be scrivener’s errors.

       We find the state’s contention that the trial court should have considered extrinsic evidence of the alleged scrivener’s errors to be without merit. As noted, the information establishing probable cause must be found within the four corners of the affidavit. The trial court properly refused to consider information regarding a previous warrant, as well as the testimony of the affiants or the issuing judge. The state’s reliance on State v. Colon, supra, 230 Conn. 24, is misplaced. In that case, our Supreme Court held that extrinsic evidence can be used to determine whether an affidavit has been validly executed. Id., 34. The court distinguished the jurat, which is evidence of the fact that the affidavit was validly executed, from the body of the affidavit. The court reaffirmed the holding that probable cause must be determined from the four corners of the warrant. Id.

       In light of our decision upholding the trial court's conclusion that there was nothing in the affidavit to allow a reasonable inference that the reference to 1992 was a scrivener’s error, we need not address the state’s claim that a mere clerical or technical error should not invalidate a warrant.


author: LAVERY, J. DUPONT, C. J.,

text:
    STATE OF CONNECTICUT v. TIMOTHY JONES
    (13442)
    Dupont, C. J., and Lavery and Landau, Js.
    Argued May 25
    decision released September 26, 1995

      Richard F. Wareing, special public defender, with whom, on the brief, was Dwinette E. Johnson, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearing-ton, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from a judgment of conviction, after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3), respectively. The defendant was also convicted of carrying a pistol without a permit in violation of General Statutes § 29-35, but does not challenge that conviction on appeal. The defendant claims that the trial court improperly (1) instructed the jury on the issue of self-defense, and (2) admitted into evidence a photograph of the victim taken immediately before she had undergone surgery.

The jury could have reasonably found the following facts. On February 13,1992, the defendant was walking down Cedar Street in New Haven armed with a .45 caliber pistol. According to the defendant, he was carrying the pistol because he had heard that several members of the Island Brothers gang, including Boo Battle, were looking for him. As the defendant approached the intersection of Cedar and Spring Streets, he noticed a car pass by him that resembled the car that Battle drove. The defendant crossed the intersection and began walking down Spring Street, watching for the car.

As he proceeded down Spring Street, the defendant noticed that the car stopped on the opposite side of the street. Three men got out of the car, one of whom the defendant recognized as Battle. The defendant hid behind a tree, pulled out his pistol and took aim at Battle and his companions.

At that time, the victim, five year old Jasmine Booze, was seated in the front passenger seat of a car driven by her grandmother, Morine Bivens. As the defendant was about to open fire, Bivens’ car- turned left onto Spring Street. Bivens first noticed Battle and his companions running near a building to the left of her car. As Bivens continued to drive along Spring Street, she then saw the defendant, who was standing next to a tree on the right side of her automobile waving his arm up and down. Bivens did not realize that the defendant was brandishing a pistol until she heard gunfire from the right side of her car where the defendant was located. Bivens testified that no other shots were fired prior to those.

One of the first shots shattered the right front passenger window of Bivens’ car and struck the victim’s face. The victim fell onto her seat, slumping against Bivens. When Bivens realized that her granddaughter had been hit by a bullet and was bleeding, she sped away from the scene. As she drove away down Spring Street, Bivens heard several gunshots, but was unable to pinpoint the direction from which they were fired. The bullet shattered the victim’s jawbone, dislodged several teeth, damaged other teeth and lacerated her right cheek. At trial the defendant presented the affirmative defense of self-defense.

The defendant first raises two issues concerning the trial court’s instructions on self-defense under General Statutes § 53a-19. The defendant claims that the charge on self-defense contained two misstatements of the law, namely, on the definition of “initial aggressor” and on the “duty to retreat,” which, when taken individually or together, could have misled the jury. The defendant failed either to file a request to charge on self-defense or promptly to take exception to the charge after it was delivered. As a threshold matter, we must first decide whether these issues are properly reviewable by this court.

This court is not bound to review claims of error in jury instructions if the party raising the claim neither submitted a written request to charge nor excepted to the charge given by the trial court. Practice Book § 852. The defendant, however, seeks review under the standard set forth in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because jury instructions that misstate the statutory defense of self-defense violate a defendant’s fourteenth amendment right to establish a defense. See Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). Under State v. Golding, supra, 239-40, a defendant cannot prevail on his unpreserved claims unless (1) the record is adequate to review the alleged claim of error, (2) the claim is of constitutional magnitude, (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a constitutional right, and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.

We find the record in this case adequate to support review of this claim, which encompasses claims that the trial court’s definition of “initial aggressor” was incorrect and that its instruction on the “duty to retreat” was also incorrect. These claims apply to both assault charges of which the defendant was convicted. We agree with the defendant that this claim is of constitutional magnitude because the fundamental right to establish a defense “includes proper jury instructions on the elements of self-defense so that a jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.” State v. Ash, 231 Conn. 484, 492-93, 651 A.2d 247 (1994); see also State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986).

The defendant claims that, in the instruction to the jury on self-defense on both charges of assault in the first degree, the trial court made two misstatements of the law and that it is reasonably possible that the jury was misled. Because the defendant’s claim is reviewable we must determine whether the trial court’s instructions clearly deprived the defendant of his constitutional right to establish a defense.

In the course of its charge, the trial court instructed the jury that: “A defendant is not justified in using physical force on another person, if he is the initial aggressor, that is, the first one to use physical force.” (Emphasis added.) In State v. Jimenez, 228 Conn. 335, 338-42, 636 A.2d 782 (1994), the Supreme Court found that a jury instruction defined initial aggressor as the first actor to use physical force was an incorrect statement of the law under § 53a-19. “Read according to its plain language, and as a whole, doubtlessly § 53a-19 contemplates that a person may respond with physical force to a reasonably perceived threat of physical force without becoming the initial aggressor and forfeiting the defense of self-defense.” Id., 341. Thus, the trial court’s instruction defining “initial aggressor” as the first one to use physical force was an incorrect statement of the law.

Because the trial court’s instruction defining initial aggressor was incorrect, our next inquiry is whether it was reasonably possible that the incorrect definition misled the jury. State v. Jimenez, supra, 228 Conn. 341. Where the claimed error is one of constitutional magnitude, we must determine whether, in light of the charge as a whole, it is reasonably possible that the jury was misled. State v. Utz, 201 Conn. 190, 196-97, 513 A.2d 1191 (1986). “In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.” (Internal quotation marks omitted.) State v. Ash, supra, 231 Conn. 493-94. “[T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995).

In State v. Brown, 35 Conn. App. 699, 709-10, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994), this court found that an identical definition of initial aggressor in a charge was not misleading because all of the evidence clearly demonstrated that the defendant was not the first to use physical force. Although the charge was not accurate when tested by the legal principles stated by our Supreme Court, it was not reasonably possible that the instruction, viewed in its entirety, misled the juiy because the question of who was the initial aggressor was not an issue in the case. Conversely, in State v. Jimenez, supra, 228 Conn. 342, the same instruction was clearly misleading to the jury because it was undisputed that the defendant was the first to use physical force and the definition of initial aggressor was central to the applicability of self-defense.

In this case, the factual issue of whether the defendant was the first to use physical force was left for the jury to decide. The jury could have reasonably found that the defendant was the first to use physical force, but that he was defending himself from what he reasonably believed to be the imminent use of physical force. These facts are similar to those in Jimenez because the definition of initial aggressor, if the jury believed the defendant was the first to use physical force, would be crucial to his defense of self-defense. It is reasonably possible, therefore, that the incorrect instruction misled the jury.

The court also instructed the jury that: “[A] defendant is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating. The law does not encourage the use of deadly force and in most circumstances a person must retreat from the perceived harm if they are able to retreat in complete safety.” (Emphasis added.) We conclude that the claim is reviewable and, therefore, we must decide whether the claimed error clearly deprived the defendant of his constitutional right to establish a defense.

The defendant claims that as a result of the trial court’s inaccurate charge to the jury on the duty to retreat, it is reasonably possible that the jury was misled. Section 53a-19 provides for the defense of self-defense and sets forth the circumstances justifying the use of physical force. Subsection (a) of § 53a-19 does impose an objective reasonableness requirement, providing in relevant part that “deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” Subsection (b) of that statute, which specifically sets out the duty to retreat, however, imposes only a subjective requirement. Subsection (b) of § 53a-19 provides in part that a person is not justified in using deadly physical force “if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating . . . .” “The statute requires both that a retreat in complete safety be available and that the defendant know of it. ‘The self-defense statute, i.e., General Statutes § 53a-19 . . . focuses on the person . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact [as to whether a safe retreat was available and whether he knew of it]. . . . This statutory emphasis upon the defendant further demonstrates the function of the jury in their evaluation of the self-defense claim.’ . . . ‘[Section] 53a-19 (b) requires recourse to retreat in lieu of the use of physical force only when the actor himself “knows that he can avoid the necessity of using such force with complete safety . . . ” (Citations omitted; emphasis in original.) State v. Quintana, 209 Conn. 34, 46, 547 A.2d 534 (1988).

In instructing the jury concerning the defendant’s duty to retreat, the trial court gave the following charge: “In addition to the three exceptions that I just stated, a defendant is not justified in using deadly physical force upon another if he knows that he can avoid the necessity of using such force with complete safety by retreating. The law does not encourage the use of deadly force and in most circumstances a person must retreat from their perceived harm if they are able to retreat with complete safety.” (Emphasis added.) These words incorrectly suggested that the statute permitted the jury to measure the defendant’s knowledge of his ability to retreat according to an objective standard of reasonableness rather than the subjective standard of the defendant’s actual knowledge. See State v. Quintana, supra, 209 Conn. 46. The parties do not dispute the fact that the jury was charged in this manner. “The parties do disagree, however, about whether these statements, when viewed in the light of the trial court’s other instructions regarding the duty to retreat and the charge as a whole, and viewed in the context of the contested facts of the case, made it reasonably possible that the jury was misled.” State v. Ash, supra, 231 Conn. 495.

The state argues that the trial court’s misstatements were harmless beyond a reasonable doubt because they were preceded and followed by correct statements of law. The state proposes that the trial court’s improper references to an objective standard were cured by the remainder of the charge on the duty to retreat. We disagree. In accordance with State v. Ash, supra, 231 Conn. 496, we conclude that the trial court’s subsequent use of the proper standard, “at best, further muddied the jury’s understanding of the proper subjective standard and, at worst, suggested to the jury that it could reject the defendant’s claim of self-defense” if it found that he was able “but did not actually know that he could have avoided using deadly physical force in complete safety by retreating.” Id.

The state further argues that the trial court’s improper charge concerning the duty to retreat was harmless beyond a reasonable doubt, relying on State v. Quintana, supra, 209 Conn. 34, which held that the trial court’s improper injection of an objective standard into its instructions on the defendant’s duty to retreat under the self-defense statute was harmless beyond a reasonable doubt because “ ‘[t]he principal factual issues . . . were not classically dependent upon [the subtleties of the law of self-defense] for their proof, as is true in cases where the principal factual issue is the . . . [defendant’s subjective knowledge of the availability of safe escape].’ ” Id., 47-48.

The case at hand is distinguishable from Quintana and is similar to Ash, in that the present case “hingefs] substantially on whether the defendant, at some point either prior to or during the fatal altercation, failed to retreat within the meaning of the self-defense statute.” State v. Ash, supra, 231 Conn. 498. In State v. Quintana, supra, 209 Conn. 47-48, the jury convicted the defendant of felony murder after being presented with two different theories on why the defendant stabbed the victim. The defendant’s witness had testified that the defendant had stabbed the victim in self-defense to thwart the victim’s unprovoked attack. Id., 47. Another witness contradicted this testimony, claiming that the defendant had stated that he used the knife while robbing the victim. Id. The Supreme Court concluded that “[t]he jury’s verdict can fairly be read to indicate a choice between these two inconsistent versions of the stabbing . . . .’’Id. Because the principal factual issues of the present case are dependent on the law of self-defense, Quintana is not dispositive of the present case.

The facts presented at trial raised a significant question about whether the defendant subjectively knew he could avoid the use of force with complete safety by retreating. The trial court’s charge on this question, which instructed the jury that if it found the defendant could objectively have effected his retreat in complete safety as soon as Battle’s confederate opened fire, precluded the defendant from claiming self-defense. We conclude that it was reasonably possible that the trial court’s instructions could have misled the jury by barring it from considering the crucial factor of whether the defendant subjectively knew he could retreat in complete safety when Battle’s confederate started shooting. In addition, we conclude when the charge on self-defense is taken as a whole in light of the facts of this case, the misstatement of the law on initial aggressor and the duty to retreat make it reasonably possible that the jury was misled.

The defendant’s final claim is that the trial court, improperly admitted into evidence a photograph of the victim’s gunshot wounds taken prior to reconstructive surgery. We disagree.

“The trial court exercises a broad discretion in admitting such evidence, and its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown. State v. Piskorski, 177 Conn. 677, 700-701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Smith, [174 Conn. 118, 123, 384 A.2d 347 (1977)].” State v. Bember, 183 Conn. 394, 408, 439 A.2d 387 (1981). “The great weight of authority is that photographs, even though gruesome, are admissible in evidence when otherwise properly admitted if they have a reasonable tendency to prove or disprove a material fact in issue or shed some light on some material inquiry. Note, 73 A.L.R.2d 769, 787. A photograph, the tendency of which may be to prejudice the jury, may be admitted in evidence if, in the sound discretion of the court, its value as evidence outweighs its possible prejudicial effect.” (Internal quotation marks omitted.) State v. DeJesus, 194 Conn. 376, 381, 481 A.2d 1277 (1984); State v. Bember, supra, 407. The test for determining the admissibility of challenged evidence is not whether the potentially inflammatory photographic evidence is essential to the prosecution’s case, but rather whether it is relevant to the prosecution’s case. State v. DeJesus, supra, 381. Upon an objection from the defendant, the prosecution must show that the photographic evidence offered is relevant. Id., 382. We conclude that the trial court’s ruling that the photograph was relevant as to whether the victim sustained a serious physical injury and that its probative value on that issue outweighed any possible prejudicial effect was not an abuse of discretion. The defendant’s claim, therefore, that the photograph should not have been admitted, fails.

The judgment is reversed as to the conviction of two counts of assault in the first degree and the case is remanded for a new trial.

In this opinion LANDAU, J., concurred.

DUPONT, C. J.,

dissenting. I respectfully dissent from the majority’s conclusion that the defendant is entitled to a new trial because I do not believe it is reasonably possible that the trial court’s instruction misled the jury.

An instruction is harmless beyond a reasonable doubt if there is no reasonable possibility the jury could have been misled. State v. Ash, 231 Conn. 484, 493 n.5, 651 A.2d 247 (1994). I agree that the defendant’s claim is reviewable under the precepts of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because there is an adequate record to review the claim and because the claim is of constitutional magnitude. State v. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994). An improper instruction as to an element of a defense is a constitutional deprivation. State v. Ash, supra, 493. I do not agree, however, that the state has failed to demonstrate the harmlessness of the alleged instruction, and conclude, therefore, that the defendant cannot prevail on this claim.

“[Tjhe question of harmlessness of a jury instruction is properly gauged by reference to both the language of the entire charge and the evidence in the case . . . .” (Citation omitted.) Id., 496. In this case, the defendant claims that the charge was flawed because it was a misstatement of two aspects of self-defense, the definition of initial aggressor, and the duty to retreat. These aspects of self-defense are related and should be considered together in evaluating whether the statements, in light of the charge as a whole, including all of the instructions given on self-defense, were misleading.

The defendant claims that the jury was misled as to the defendant’s duty to retreat, and isolates one portion of one sentence of the charge to prove his claim. He complains that the court improperly instructed the jury that “in most circumstances, a person must retreat from the perceived harm, if they are able to retreat with complete safety.” He claims that this is the improper use of an objective rather than a subjective standard.

The majority relies on State v. Ash, supra, 231 Conn. 484, in determining that the charge to the jury on self-defense was improper. The instruction in this case, however, differs from that given in Ash. In Ash, the only colorable subjective test employed in the charge was whether the defendant “could perceive” that physical force could be avoided. The Supreme Court found those words to be insufficient to allow the jury to evaluate the defendant’s claim of self-defense properly. In the present case, the trial court made numerous references to the situation from the subjective point of view of the defendant. The court stated that the defendant’s belief of the situation was to be tested by what a “reasonable person” would have believed “under the circumstances from the perspective of the defendant” and that “the danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the incident considering all the existing circumstances. The act leading to the defendant’s claim of self-defense need not be an actual threat or assault but only some act that a reasonable person seeing it from the defendant’s perspective would reasonably believe to be an assault or threat.” (Emphasis added.) The court further stated that “a defendant is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating.” (Emphasis added.) The court’s emphasis throughout its charge was on the subjective test, and I would not reverse the conviction on the ground that the jury was misled by the charge on the duty to retreat.

The defendant also claims that the jury was misled by one sentence of the charge that improperly instructed the jury that the “defendant is not justified in using physical force on another person if he is the initial aggressor, that is, the first person to use physical force.” It was improper because the first person to use physical force is not necessarily, but may be, the initial aggressor within the meaning of General Statutes § 53a-19 (c). State v. Jimenez, 228 Conn. 335, 342-43, 636 A.2d 782 (1994); State v. Brown, 35 Conn. App. 699, 709, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994). Although the statement quoted previously was incorrect, it is not reasonably possible that it misled the jury. After the statement, the court then twice instructed the jury “that a person is justified in using reasonable physical force upon another person to defend himself from what he reasonably believes to be the use or imminent use of physical force and he may use such degree of force which he reasonably believes to be necessary for that purpose.” The words “use” or “imminent use” of physical force as employed in the instruction make it clear that the defendant could either believe that he needed to use force where none had yet been employed against him or that he needed to use force because force had already been used against him, and still be entitled to the defense of self-defense. The court thus clarified that being the first to use physical force is not the paramount factor in the determination of who was the initial aggressor. Instead, the paramount factor is whether the use of physical force by the defendant was reasonable regardless of which person struck the initial blow.

In State v. Jimenez, supra, 228 Conn. 338, the court specifically instructed the jury that if it found that the defendant was the first to use physical force, then the state would have disproved the defense of self-defense. In Jimenez, the undisputed facts showed that defendant was the first to use physical force and the defendant himself testified that he was the first to use physical force. Upon review of the claim, which had been preserved, the Supreme Court held that a new trial was necessary because the instruction specifically told the jury not to consider the defendant’s claim of self-defense if the jury concluded, in accordance with the undisputed facts, that the defendant was the first to use physical force. Id., 340.

In the present case, the court did not instruct the jury that if it found that the defendant was the first to use physical force, then the state would have disproved the defense of self-defense. The court left it to the jury to decide if the defendant was the initial aggressor. Also, it was not undisputed that the defendant was the first to shoot. In fact, the defendant’s statement was that someone shot at him without provocation and that it was only then that he returned a shot. I would not conclude, therefore, that Jimenez applies and would not conclude that the instruction as to initial aggressor, when read as a whole, misled the jury.

Reviewing the charge as a whole, I believe there is no reasonable possibility that the jury was misled and I would uphold the convictions.

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or . . . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . .

       General Statutes § 53a-19 provides: .“(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable 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, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       Self-defense is a valid defense to crimes based on reckless conduct as well as intentional conduct. State v. Hall, 213 Conn. 579, 586, 569 A.2d 534 (1990); State v. King, 24 Conn. App. 586, 590-91, 590 A.2d 490, cert. denied, 219 Conn. 912, 593 A.2d 136 (1991).

       We review this claim because it may recur on retrial.

       I agree with the majority’s conclusion that it was not improper to admit the victim’s photograph into evidence.

       The majority does not discuss and the parties have not raised the issue of whether the defendant could be convicted of both General Statutes § 53a-59 (a) (1) and (3), respectively. Because the statutory definition of intentional and reckless are mutually exclusive and inconsistent, a defendant usually cannot be guilty of two crimes arising out of the same act that require such mutually exclusive states of mind as essential elements. State v. King, 216 Conn. 585, 594, 583 A.2d 896, on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1990).
      Although the defendant was convicted of violating § 53a-59 (a) under both subdivision (1), a crime requiring intent, and subdivision (3), a crime requiring an extreme indifference to human life and recklessness, both convictions should be upheld because the jury could find that the defendant intended to cause serious physical irqury to Boo Battle, while simultaneously engaging in reckless conduct by shooting into a public street. See State v. Hinton, 227 Conn. 301, 314, 630 A.2d 593 (1993).