author: Spallone, J.

text:
    State of Connecticut v. Lonnie Mebane
    (6514)
    Spallone, O’Connell and Norcott, Js.
    Argued June 20 —
    decision released September 5, 1989

      James L. Radda, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of burglary in the first degree; General Statutes § 53a-101 (a) (l); of two counts of the crime of assault in the first degree; General Statutes § 53a-59 (a) (l); and of the crime of assault in the second degree. General Statutes § 53a-60 (a) (2). The defendant was acquitted of the crime of attempted sexual assault in the first degree. General Statutes §§ 53a-49, 53a-70 (a). The defendant claims that the trial court erred (1) in instructing the jury regarding the defendant’s failure to testify, (2) in permitting the state’s attorney to comment improperly on the defendant’s failure to testify, (3) in charging the jury as it did regarding identification testimony, and (4) in failing to suppress the photographic identification of the defendant made by Venus Burgess, one of the victims.

From the evidence elicited at the trial, the jury could reasonably have found the following facts. On October 20,1985, the victims, Venus Burgess and her two sons, Mickey, age eleven, and David, age six, resided at 42 McPadden Drive in Stratford. On that date, during the early morning hours, Burgess was asleep in her bedroom. Her son David was with her, and Mickey was in another bedroom. After she heard the sound of utensils rattling in the kitchen, she saw the shadow of a person at the top of the stairs. The person, carrying a knife in each hand, rushed into the bedroom to a point about two or three feet from Burgess. She observed that the intruder was a black male with short hair and a muscular build. The man began to stab David, and when Burgess attempted to intervene, the intruder punched her and told her to shut up and that he was going to kill her. Mickey then turned on the hallway ceiling light and came into the room. The man leaped at him, chased him back into the hallway, and, upon catching him, stabbed him. As Burgess was attempting to pull the air conditioner out of the window in an effort to escape with David, the intruder grabbed her, pulled her back onto the bed, choked her, positioned himself on top of her, ripped her pajamas and bit her breast. Meanwhile, he kept his face turned away from her. Burgess then bit the man on his wrist. At that point, the man looked directly at her, and Burgess was able to confirm her early impression that her attacker was black and that, he had short hair. She was also able to estimate his height as 5 feet 8 inches and to observe that he had several moles on his face. When Burgess bit the man, he said to her, “You have to die now.” She and her assailant began to struggle for possession of a serrated carving knife. During the altercation, the knife cut the fingers of both the victim and the intruder. Suddenly, during the struggle, the man jumped up and ran off. Burgess yelled out of her bedroom window for help. When she did so, she saw her assailant getting into a car parked in front of her apartment. The car was pea green with “all these other colors on it,” including red paint. The man entered the car and drove away.

Officer Herman Winkovich of the Stratford police department arrived on the scene at approximately 5:42 a.m. He found Burgess screaming and crying. Upstairs, the officers found the two children, who had both suffered stab wounds. Mickey’s intestine protruded from a wound, and David had been stabbed twice in the back.

While at the hospital, to which all three victims had been transported, Burgess remembered that she had seen her assailant on two previous occasions. The first occasion was on the “day after the hurricane” (Hurricane Gloria in September, 1985) when she and her sons were at a McDonald’s restaurant in Stratford. The second occasion was about two weeks thereafter, when she was with her brother, who identified the man as “Charlene Vinson’s baby’s father.” While sitting in the lounge of the hospital, Burgess was able to recall his name.

At the Bridgeport Hospital emergency room, it was noted that Burgess had lacerations on her hand and bruises on her body, including her breast. Mickey’s and David’s stab wounds were determined to be life threatening, having caused internal injuries. The children’s wounds presented a substantial risk of death or a serious impairment of health.

In addition to recalling that she had seen the assailant on two previous occasions, Burgess selected a photograph depicting the defendant from a photographic array on two occasions. Mickey also recognized the defendant as a person he had seen on many previous occasions and positively identified the defendant, both in court and by choosing the defendant’s photograph from an array, as the man who had stabbed him.

On the basis of Burgess’ identification, the police located and arrested the defendant. He matched the description of the attacker and had the moles and cuts and bite marks described by Burgess. The police found a car matching Burgess’ description located at the defendant’s residence, where he was apprehended. The police also seized from the car a pair of sneakers with blood stains on the tops and a pair of khaki pants which also appeared to be bloodstained. The defendant admitted ownership of the car, the sneakers and the pants.

In his first claim of error, the defendant alleges that the trial court erred in failing to instruct the jury in accordance with the mandates of General Statutes § 54-84 (b). That statute provides in relevant part: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.”

In this case, the court charged as follows: “Now, in every criminal case there is a rule which every defendant has a right to rely on. It is the rule that no defendant is obliged to take the witness stand or to offer any testimony whatsoever. Pleading not guilty to these charges, the defendant has, in effect, denied the charges on which he is being tried and put into issue every material accusation against him stated in the information. It is the prosecution, the state, which must prove him guilty and he cannot be required to testify or disprove anything. Any accused person has the right to stand mute. The fact that he does not take the stand in defense may not be considered by you as an indication of guilt or as evidence or inference of guilt. I’ve already explained to you the presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt. Here the defendant, Lonnie Mebane, did not come forward as a witness or take the stand, that was his right. I charge you that you must not allow this fact in any way to prejudice him or to consider it an indication, admission, evidence or inference of guilt in any way.” Thereafter, the defendant excepted, arguing that the statute requires the court to charge using the specific language of the statute, i.e., that “they may draw no unfavorable inferences.”

In our analysis of the defendant’s claim, we must determine whether the instruction was erroneous and, if so, whether the error was harmless. See State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986); State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); State v. Thurman, 10 Conn. App. 302, 305, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

General Statutes § 54-84 (b) serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial. State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988); State v. Sinclair, supra. It is plain error for the trial court to fail to comply with the statute. State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985); State v. Carrione, 188 Conn. 681, 683, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983). The defendant has a constitutional right to such an instruction upon request. State v. Thurman, supra, 308, citing Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L. Ed. 2d. 241 (1981), and State v. Boulware, 183 Conn. 444, 447, 441 A.2d 1 (1981). The right provided by General Statutes § 54-84 (b) is broader than the federal or state constitutions require. “ ‘While the constitutional right to a “no adverse inference” charge depends upon the defendant’s request of such a charge, the statutory right is conferred upon the defendant unconditionally, in the absence of his request that the charge not be given.’ [State v. Sinclair, supra. 585.] Our legislature has prescribed the language provided in § 54-84 (b) to be the jury instruction that must be given to reduce speculation to a minimum. State v. Cobb, supra, 324. For this reason, our Supreme Court has ‘regularly characterized as error any but the most minor departure from the language that § 54-84 (b) requires. Compare State v. Tatem, [194 Conn. 595, 483 A.2d 1087 (1984)], and State v. Carrione, supra, with State v. Boulware, supra.’ State v. Sinclair, supra, 583-84.” (Emphasis in original.) State v. Thurman, supra, 309; see also State v. Carpenter, 19 Conn. App. 48, 55, 562 A.2d 35 (1989). It was error in this case for the trial court not to include the express language of the statute in its charge.

A conclusion that the trial court failed to comply with the statute, however, does not end the analysis. An erroneous instruction can be deemed harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury was misled. State v. Cobb, supra, 325; State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982); State v. Carpenter, supra; State v. Eaddy, 16 Conn. App. 264, 269, 547 A.2d 912 (1988). The question is whether the charge as given conveyed to the jury the substantive meaning of the statutory requirement. State v. Eaddy, supra, citing State v. Townsend, supra, 625-26.

In this case, the court stated: “The fact that he [the defendant] does not take the stand in defense may not be considered by you as an indication of guilt or as evidence or inference of guilt.” Shortly thereafter, the court stated, “I charge you that you must not allow this fact [that the defendant did not take the stand] to prejudice him or to consider it an indication, admission, evidence or inference of guilt in any way.” Essentially, the defendant claims that the word “inference” should have been modified by the word “unfavorable,” as it is in the statute. We must determine whether the charge as given conveyed the substantive meaning of the statute and whether there was a reasonable possibility that the jury was misled.

In State v. Cobb, supra, the court held that the trial court’s charge to the jury, that it could draw “no inference” from the defendant’s failure to testify, was harmless error in that there was no reasonable possibility that the jury was misled and because the charge was sufficient to convey the substantive meaning of General Statutes § 54-84 (b). The court stated that a “no inference” charge would preclude the jury from drawing an unfavorable inference because “ ‘[a]n instruction prohibiting any inference would also preclude an unfavorable inference.’ ” State v. Cobb, supra, 325, quoting State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985).

In view of the decision in State v. Cobb, supra, we conclude that the court’s instruction in this case was sufficient to communicate to the jurors that they were precluded from drawing an unfavorable inference from the fact that the defendant had chosen not to testify. In fact, the strongly admonitory language used by the court probably gave the defendant more protection against the possibility that the jury would impermissibly draw an unfavorable inference than the protection that would otherwise have been afforded by the use of the specific statutory language. We hold that, in the context of this case, the error of the trial court in not employing the specific statutory language was harmless.

With regard to the defendant’s other claims of error, we have thoroughly reviewed the record, transcripts and briefs and conclude that those claims are groundless. Nothing in the record discloses that the state’s attorney improperly commented on the defendant’s failure to testify. Nor is there any indication that the identification procedures utilized by the police failed to meet the standards enunciated in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); see also State v. Parker, 197 Conn. 595, 599, 500 A.2d 551 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985). Moreover, we find no error in the trial court’s charge to the jury regarding identification testimony.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) (1) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       General Statutes § 53a-59 (a) (1) provides: “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 . . . .”

       General Statutes § 53a-60 (a) (2) provides: “A person is guilty of assault in the second degree when ... (2) with intent to cause 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 . . . .”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. Darryl Bryant
    (7262)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 13 —
    decision released September 5, 1989

      Hyman Wilensky, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and John F. Cocheo, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after he had entered a conditional plea of nolo contendere to an amended information, of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court erred in denying his motion to suppress. We find no error.

At the hearing on the motion to suppress, the court heard testimony from the defendant and the arresting police officer, Randy Gerovitz, and found the following facts. At approximately 11 p.m. on November 11, 1987, Gerovitz saw a Cadillac Seville, with New York license plates, swerve from side to side and make an illegal u-turn. Gerovitz suspected that the driver was under the influence of alcohol and ordered him to pull over to the side of the road. Because it was dark, Gerovitz carried a flashlight and when he approached the car, he shined it into the passenger compartment. He observed the defendant, who was the driver, and four passengers in the car. He also saw a dented metal club-like object, which he suspected was a weapon, between the driver’s door and the driver’s seat. Fearing for his safety, Gerovitz ordered the defendant to get out of the vehicle. When the defendant stepped out, Gerovitz removed the metal object, which turned out to be a baseball bat and observed a second club-like object, resembling a sawed-off wooden pool cue, sticking up by the armrest between the two front seats. When Gerovitz told the defendant that he suspected these objects were weapons, the defendant assured him that they were not, and then offered to demonstrate for the officer how he used the baseball bat to prop open his trunk. The defendant directed Gerovitz to the rear of the car, explaining that he had removed the trunk’s support bars to allow the car to be used as a demonstrator vehicle for stereo speakers in conjunction with his employment. When the defendant went to the trunk and propped it open with the baseball bat, Gerovitz stood close to the rear bumper and shined his flashlight into the trunk. The flashlight’s beam fell on a partially open brown paper bag containing numerous plastic vials and end caps, which Gerovitz immediately recognized as the type of vials that are used to package the narcotic substance commonly referred to as “crack.” Gerovitz then arrested the defendant. Because the vehicle’s trunk could not be secured, the car was impounded and taken to the Groton police station. As a matter of routine procedure, the police conducted an inventory search at the station. The search produced additional drug paraphernalia and 484 vials containing a hard white substance, which was field tested and determined to be cocaine.

Several of the defendant’s claims challenging the trial court’s ruling on his motion to suppress are based on numerous brief statements of law without the analysis required by our rules of practice. See Practice Book § 4065. The defendant’s remaining claims relating to his motion to suppress may be characterized in the following manner: (1) there was no probable cause to search the passenger compartment of his car and the use of a flashlight constituted a search; (2) he was not advised that he had a right to refuse to consent to the search of his trunk; and (3) there was no probable cause to search the trunk of his car. We find no error.

The defendant’s first claim is that there was no probable cause to search his car at the scene of the traffic stop and that the officer’s use of a flashlight to look into the car constituted a search. It is well settled that objects within the plain view of an officer who is legally justified in stopping an automobile are subject to seizure and may be introduced as evidence. State v. Krause, 163 Conn. 76, 82-83, 301 A.2d 234 (1972). This standard applies to any objects within the car as long as they are observed from a lawful vantage point. Id., 83; State v. Leonard, 14 Conn. App. 134, 539 A.2d 1030, cert. granted, 208 Conn. 807, 545 A.2d 1104 (1988). When an officer discovers evidence in open view, that discovery is not considered a search. State v. Federici, 179 Conn. 46, 56, 425 A.2d 916 (1979); see also, 1 W. LaFave, Search and Seizure (2d Ed. 1989) § 2.2 (a), pp. 322-23.

Furthermore, an officer’s use of a flashlight to look into a car does not constitute an illegal search. It is well established that when a police officer is in a public area and uses a flashlight to peer through a window into the dark recesses of an automobile at night, his action does not constitute a search. State v. Graham, 200 Conn. 9, 20-21, 509 A.2d 493 (1986); State v. Federici, supra, 56 n.6; State v. Leonard, supra.

In view of this clear precedent, the defendant’s claim that there was no probable cause to search the passenger compartment of his vehicle must fail because the interior of the defendant’s car was never “searched” at the scene of the traffic stop within the meaning of the fourth amendment. Both of the items found in the passenger compartment of the defendant’s car at the scene of the traffic stop were within the officer’s plain view. The bat was visible from his lawful vantage point just outside the driver’s door. After seeing the bat between the driver’s seat and door, Gerovitz feared that it could be used as a weapon and asked the defendant to get out of his car. Once the defendant was out of the car, the sawed-off pool cue protruding from between the two front seats was immediately apparent. .

The defendant’s next claim is that Gerovitz did not advise him of his right to refuse to consent to open the car’s trunk. This claim is meritless. The defendant’s actions were entirely gratuitous and wholly unrelated to the officer’s questioning. His request that Gerovitz follow him to the trunk and watch him prop it open implied his consent to the officer’s view of the trunk’s contents. United States v. Gilbert, 774 F.2d 962, 964 (9th Cir. 1985). Even if it is assumed, arguendo, that the officer asked and the defendant consented to a trunk search, the defendant’s claim would still fail. Once a party consents to a search there is no onus on the officer to advise the consenting party of his fourth amendment rights or otherwise to make him aware of those rights. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); 3 W. LaFave, supra, § 8.2 (i), p. 210.

The defendant next claims that there was no probable cause to search the trunk of his car at the scene of the traffic stop. This assertion mirrors the defendant’s first claim and, like that claim, is meritless. The vials of cocaine in the defendant’s trunk were within the officer’s plain view after the defendant voluntarily opened the trunk. Each item was found by happenstance while the officer performed his duties. Consequently, none of the items seized was the object of a search. We conclude that the items were seized as a result of a plain view observation by Gerovitz and, therefore, were not the products of a search as the defendant claims.

There is no error.

In this opinion the other judges concurred.

       The defendant has appealed pursuant to General Statutes § 54-94a, which provides: “conditional nolo contendere plea, appeal of denial of Motion to suppress or dismiss, When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdietional defects in the criminal prosecution,”

       We note that the defendant does not question the validity of the traffic stop.

       It was well within the scope of the officer’s investigation to ask the defendant to step out onto the street. “[0]ut of a concern for the safety of the police . . . officers may, consistent with the Fourth Amendment, exercise discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon.” New York v. Class, 475 U.S. 106, 115-16, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1985), citing Pennsylvania v. Mimms 434 U.S. 106, 108-11, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977).

       The defendant also alludes to the fact that the inventory search performed at the Groton police department was illegal. Although this issue was not briefed properly, it is worth noting that a warrantless search of an automobile is not unreasonable when it is conducted pursuant to an inventory of the car’s contents incident to its impoundment. State v. Nelson, 17 Conn. App. 556, 568-73, 555 A.2d 426 (1989).


author: Norcott, J.

text:
    State of Connecticut v. Richard Lombardo
    (7002)
    Borden, Daly and Norcott, Js.

      Argued June 15 —
    decision released September 5, 1989

      James M. Ralls, deputy assistant state’s attorney, with whom were Jay F. Huntington, deputy assistant state’s attorney, and, on the brief, Eugene Callahan, state’s attorney, and Bruce P. Hudock, assistant state’s attorney, for the appellant (state).

      Robert M. Casale, with whom, on the brief, was Tara L. Knight, law student intern, for the appellee (defendant).
   Norcott, J.

The sole issue in this appeal is whether the trial court had jurisdiction to modify the defendant’s sentence pursuant to General Statutes § 53a-39. We find error.

The facts relevant to this appeal are not in dispute. The defendant was tried and convicted by a jury of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70 (a), and one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a).

On September 23, 1986, the court sentenced the defendant to a term of seven years, execution suspended after four years served and five years probation on the sexual assault count; seven years, execution suspended after two years served on the attempted sexual assault charge; and three years, execution suspended after one year served on the unlawful restraint count, all three sentences to be served consecutively for a total effective sentence of seventeen years suspended after seven years served and five years probation. On September 9, 1987, after serving almost one year of the sentences, the defendant filed a motion for sentence modification pursuant to General Statutes § 53a-39. On November 20,1987, the trial court, over the state’s objection, granted the defendant’s motion and modified the sentences to make them concurrent rather than consecutive. Thereafter, the state sought and was granted permission to appeal the sentence modification to this court pursuant to General Statutes § 54-96.

The state claims that § 53a-39 authorizes modification of only aggregate or total effective sentences of three years or less, and that, because the defendant’s aggregate sentence on the three counts was seventeen years, the court was without authority to modify the sentence. The defendant claims that the term “sentence” as used in § 53a-39 refers to the individual sentences imposed on the multicount information and then only to the unsuspended portion of those individual sentences. He argues therefore that the court properly modified the sentences imposed on the attempted sexual assault count and on the unlawful restraint count.

A trial court is ordinarily without jurisdiction to modify a lawful sentence that a defendant has begun to serve. State v. Walzer, 208 Conn. 420, 545 A.2d 559 (1988). The legislature, however, may confer jurisdiction to modify executed sentences. State v. Nardini, 187 Conn. 109, 123-24, 445 A.2d 304 (1982). Our legislature has provided two avenues for sentence modification. A defendant may seek a change in sentence, pursuant to General Statutes § 51-195 and Practice Book §§ 936 through 942, by petitioning the sentence review division of the Superior Court to modify sentences of three years or more, or pursuant to General Statutes § 53a-39 and Practice Book § 934, by petitioning the sentencing court to reduce sentences of three years or less. The record indicates that the defendant in this case sought modification under § 53a-39.

Section 51-195, the sentence review statute, provides that the reviewable sentence of three years or more is the total sentence on all counts of an information. Section 53a-39 refers only to a definite sentence of three years or less without reference to either individual or aggregate sentences. This omission creates an ambiguity in the statute, the resolution of which is necessary to our determination of the issue presented. When confronted with ambiguity in a statute, we must “ascertain and give effect to the apparent intent of the legislature.” Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). “In seeking to discern legislative intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to legislative practice and policy, and to judicial construction.” Petti v. Balance Rock Associates, 12 Conn. App. 353, 359, 530 A.2d 1083 (1987); Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987). Because the words of the statute do not aid us in determining whether the legislature intended the section to apply to individual or aggregate sentences on multicount complaints, we turn to the legislative history and the circumstances surrounding the 1982 amendment that made § 53a-39 applicable only to'sentences of three years or less.

A review of the legislative history reveals that the concern of the legislature when it amended the section was to eliminate an overlap in the sentence modification area that resulted when the state shifted from indeterminate to determinate sentencing in 1981. Prior to the conversion to determinate sentencing, the only definite sentence a defendant could receive was a sentence of one year or less. General Statutes (Rev. to 1979) §§ 53a-35, 53a-36. Section 53a-39 authorized modification of only those definite sentences. When indeterminate sentencing was abolished, § 53a-39 remained, but by its language applied to all definite sentences. The result of the change in sentencing was that a defendant sentenced under the new system ostensibly could petition both the sentencing court and the sentence review division for a modification of a sentence of three years or more. See State v. Millhouse, 3 Conn. App. 497, 499-501, 490 A.2d 517 (1985). By enacting Public Acts 1982, No. 82-428, the legislature amended § 53a-39, limiting the trial court’s jurisdiction under the section to modifying only sentences of three years or less. The purpose of this change was twofold. First, it was designed to eliminate the overlap that allowed a prisoner serving a definite sentence of more than three years to petition for sentence review under § 51-195 within thirty days of sentencing and then to petition repeatedly, at any time during the sentence, for modification under § 53a-39. It was also designed to allow modification of sentences of three years or less, those sentences not covered by § 51-195. See also State v. Millhouse, supra, 499-500 (purpose of amendment to limit sentencing judge or court to a review of definite sentences of three years or less, thereby creating a cohesive body of law relating to sentencing). Not specifically addressed, however, was the issue of whether a definite “sentence,” as used in § 53a-39, referred to individual or aggregate sentences on a multicount complaint.

“The legislature is presumed to act in view of existing relevant statutes and with the intention of creating one consistent body of law.” Caulkins v. Petrillo, 200 Conn. 713, 718, 513 A.2d 43 (1986). The legislative history indicates not only an awareness of § 51-195, but an intent to make § 53a-39 compatible with and the counterpart to it. “ ‘[WJhere, as here, more than one statute is involved, we presume that the legislature intended them to be read together to create a harmonious body of law . . . . ’ Berger v. Tonken, 192 Conn. 581, 589, 473 A.2d 782 (1984) . . . State v. Hanson, 12 Conn. App. 32, 44, 529 A.2d 720 (1987). We therefore must construe the two statutes on modification of sentences “in a manner which is harmonious, and consistent[,] with ‘each to leave room for the meaningful operation of the other.’ State v. West, [192 Conn. 488, 494, 472 A.2d 775 (1984)].” Id., 44-45.

The legislative history and the circumstances surrounding the amendment of § 53a-39, as well as judicial interpretation thereof, lead us to conclude that the legislature intended to develop a consistent, harmonious statutory scheme for the modification of sentences. To this end, it allowed prisoners serving total effective sentences of three years or more on multicount complaints to have their sentences reviewed pursuant to § 51-195. It also allowed prisoners serving sentences of three years or less to petition for modification of sentence pursuant to § 53a-39. It would be inconsistent for us to hold that the legislature intended one procedure to apply to aggregate sentences and the other to apply only to individual sentences. Not only would this interpretation be inconsistent with the legislature’s intent to create a harmonious statutory scheme, but it would also frustrate the stated intent of the legislature to close the loophole that allowed prisoners serving aggregate sentences of three years or more to avail themselves of both sentence review under § 51-195 and sentence reduction under § 53a-39. Our courts have “traditionally eschewed construction of statutory language that . . . thwarts its manifest purpose. . . .” Sutton v. Lopes, 201 Conn. 115, 121, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986). Penal statutes, as the petitioner argues, are to be strictly construed against the state; State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987); but “words used in a criminal statute should not be accorded the narrowest technical meaning in disregard of their context and in frustration of the obvious legislative intent. . . .” Id. If § 53a-39 is read as applying only to individual sentences, then prisoners serving aggregate sentences of, for example, six years, consisting of two year sentences on each of three counts of a multicount information, could take advantage of both avenues for a change of sentence. The total effective sentence of six years would make them eligible for sentence review, but each individual sentence of two years would be subject to modification under § 53a-39. We will not adopt an interpretation of the statute that so frustrates the intent of the legislature. We therefore conclude that the term “sentence,” as used in § 53a-39 as applied to multiple sentences imposed on multicount informations, refers to the aggregate or total effective sentence. It was, therefore, error for the sentencing court to have modified any part of the petitioner’s seventeen year sentence.

There is error, the sentence imposed on November 20,1987, is set aside, and the case is remanded with direction to reinstate the original sentence.

In this opinion the other judges concurred.

       The sentence reduction statute, General Statutes § 53a-39, states in pertinent part: “At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which he could have been originally sentenced. . . .”

       The sentence review statute, General Statutes § 51-195, provides in pertinent part: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence ... file .. . an application for review of the sentence by the review division. . . .”

       The legislative history contains the following statements concerning the purposes for the amendment of the statute: In moving for acceptance of substitute House Bill No. 5127 amending § 53a-39, Representative Alfred J. Onorato made the following statement: “[U]nder existing law at any time dining the period of a definite sentence, the sentencing court or judge, may after [a] hearing for good cause, reduce the sentence or [order] the defendant’s discharge. What this bill would do, under existing law, an individual who is sentenced to more than 3 years in prison has the right of sentence review. Those who are sentenced [to] less than 3 years of prison would have the right of modification. There’s a loophole in the law now that extends the same privilege to those who are sentenced over a year or more and this could take care of those provisions. . . .” 25 H.R. Proc., Pt. 11,1982 Sess., pp. 3594-95.
      In moving for acceptance of the bill in the Senate, Senator Howard T. Owens, Jr., stated: “On the Bill itself, Mr. President . . . it provides that under existing law at any time during the period of a definite sentence, the sentencing judge may, after a hearing for good cause, reduce the sentence, order the defendant discharged or discharged on probation or conditional discharge for a period not to exceed that [to] which he had originally been sentenced. And the Bill limits the authority to a definite sentence of three years or less.” 25 S. Proc., Pt. 10, 1982 Sess., p. 3254.
      Other comments of these legislators support the position that they were aware of § 51-195 and attempted to make § 53a-39, as amended, the counterpart to § 51-195. The following exchange took place before the judiciary committee when it was considering the amendment.
      “Rep. Onorato: . . . [Tjhose individuals who are sentenced three years or over have their remedy in that they can go to the judicial review board. Is that not correct?
      “Mr. [Clement F.j Naples: Sentence review. Yes.
      * ** *
      “Rep. Onorato: And what you’re speaking about is these individuals who don’t get up to three years. They’re kind of left in limbo? Is that what the problem is?”
      “Mr. Naples: That, among other things, yes, sir. Yes. . . .”
      Joint Standing Committee, Judiciary Hearings, Pt. 2, 1982 Sess., pp. 341-42.
      Also, in considering a later revision of the statute providing for intensive probation, Public Acts 1984, No. 84-505, Senator Owens, at a judiciary committee hearing, stated: “I’m saying that the new part of the legislation deals with intensive probation and provides that only those can be considered who face no more than three years, who are doing no more than three years. ...” (Emphasis added.) Joint Standing Committee, Judiciary Hearings, Pt. 3, 1984 Sess., p. 772.

       Prior to oral argument, the defendant’s counsel informed this court by letter that the defendant was no longer confined, having served the entire modified term of imprisonment that is the subject of the present appeal. In light of this situation, the defendant contends that the issue raised in this appeal is moot. We conclude that because the trial court’s erroneous modification of the defendant’s sentence implicates his liberty interest, as well as that of similarly situated inmates, the appeal is not moot. See Payton v. Albert, 209 Conn. 23, 26 n.4, 547 A.2d 1 (1988).


author: O’Connell, J.

text:
    State of Connecticut v. Naphtali E. Brown
    (7278)
    (7279)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 14 —
    decision released September 5, 1989

      Kent Drager, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgments of conviction rendered following his guilty pleas entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to three counts of violating drug laws. The defendant claims that the court erred in accepting his pleas in that (1) it misinformed him of the mandatory minimum sentence, (2) it did not determine on the record that the defendant understood the nature of his pleas under the Alford doctrine, (3) it failed to state on the record that the defendant understood the nature of the charges against him, and (4) there was an insufficient factual basis to support the pleas. We find no error.

The following facts are dispositive of this appeal. On January 26, 1988, the defendant appeared before the trial court and changed his pleas of not guilty to guilty under the Alford doctrine to two counts of sale of cocaine, in violation of General Statutes § 21a-278 (b), and one count of conspiracy to sell narcotics in violation of General Statutes §§ 21a-277 (a) and 53a-48. The defendant waived the presentence investigation and was immediately sentenced, pursuant to a plea agreement, to three concurrent nine year terms.

The defendant concedes that he did not raise these claims of error in the trial court. When a party fails to raise an issue before the trial court, that issue is ordinarily not reviewable as a claim of error on appeal. Practice Book § 4185. “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” Id.; State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

In the present case, the defendant claims that the circumstances surrounding his pleas and sentencing should excuse him from the requirement of raising his claims of error in the trial court. The gravamen of his argument is that because he was sentenced immediately following the entry of his pleas, he had no opportunity to reflect on the court’s plea canvass and to decide whether or not to object thereto. An analysis of this contention requires us to consider the relief sought in this court. The defendant asks that he now be allowed to withdraw his guilty pleas because of the claimed deficiencies in the court’s canvass.

Practice Book § 720 explicitly provides that a plea may not be withdrawn after the conclusion of the proceeding at which sentence is imposed. This rule is understandable when viewed from the standpoint of the more common procedure that entails a lapse of several weeks between the entry of a plea and the imposition of sentence, during which a presentence investigation (PSI) is conducted. The defendant’s argument, however, overlooks the fact that the cause of his immediate sentencing was his waiver of his statutory right to a PSI. Only the defendant can initiate the waiver of a PSI. See General Statutes § 54-91a. Accordingly, the defendant brought on the immediate sentencing and thereby eliminated the period during which he could make a motion to withdraw his pleas.

We conclude that the circumstances surrounding the entry of the defendant’s pleas and sentencing do not excuse him from properly preserving his claims of error. Therefore, in order to obtain review of his claims, he must bring them within the constitutional bypass exception of State v. Evans, or, in the alternative, the plain error doctrine.

The defendant’s first claim is that the trial court erred by misinforming him of the possible mandatory minimum sentence. He appears to be asserting a violation of Practice Book § 711 as well as a constitutional violation. In light of State v. Collins, 207 Conn. 590, 595, 542 A.2d 1131 (1988), the defendant’s claim of a § 711 violation is not re viewable under the Evans bypass doctrine. State v. Coleman, 17 Conn. App. 307, 312-13, 552 A.2d 442 (1989).

Turning to the defendant’s constitutional claim, in State v. Wright, 207 Conn. 276, 289, 542 A.2d 299 (1988) , our Supreme Court held that the trial court’s failure to advise the defendant of the mandatory minimum sentence does not implicate constitutional rights unless the pleas were not intelligently and voluntarily made. Id., 289. A limited review is necessary to determine whether the knowing and voluntary nature of the plea is affected. Id., 286-87. In State v. Coleman, supra, 311-12, this court held that an error in the court’s recitation of the mandatory minimum sentence did not affect a determination that the plea was knowingly and voluntarily made. The defendant, in the present case, received the sentence he bargained for. Thus, his “less than perfect understanding of all the aspects of his situation does not ‘inevitably render his guilty plea “unknowing” and therefore involuntary . . . .’ ” Id., quoting D’Amico v. Manson, 193 Conn. 144, 154, 476 A.2d 543 (1984); see also State v. Collins, supra, 596; State v. Baker, 17 Conn. App. 466, 469, 553 A.2d 1155 (1989); State v. Risk, 17 Conn. App. 447, 451-52, 553 A.2d 1145 (1989). We conclude, after our limited review, that the defendant’s claim is not of constitutional import.

We also decline to consider this claim under the plain error doctrine because “[wjhere a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987); State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985).” State v. Wright, supra, 288. Plain error review “ ‘ “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in judicial proceedings.” ’ State v. Miller, supra, 469, quoting State v. Hinckley, supra, 87-88.” State v. Wright, supra, 288-89. Because the defendant received the sentence for which he bargained, he cannot now be heard to complain that it constituted manifest injustice. See State v. Coleman, supra, 312.

The defendant’s second claim is that the trial court erred in accepting his Alford pleas as knowing, intelligent and voluntary because the trial court did not determine nor does the record show that the defendant understood the meaning and nature of a plea under the Alford doctrine.

The defendant fails to furnish any authority, nor are we aware of any, for the proposition that failure to inquire into a defendant’s understanding of an Alford plea renders the pleas constitutionally invalid. To the contrary, there is no requirement that a defendant be advised of every possible consequence of an Alford plea. State v. Risk, supra, 456; see also Oppel v. Lopes, 200 Conn. 553, 512 A.2d 888 (1986). During its canvass, the court in the present case specifically asked the defendant whether he had discussed his guilty pleas with his attorney, and he responded that he had. We may thus assume that counsel explained the Alford plea. See Oppel v. Lopes, supra, 557; Bowers v. Warden, 19 Conn. App. 440, 442-43, 562 A.2d 588 (1989). Although a constitutional right is implicated, the defendant failed to demonstrate on appeal, that his claim is truly of constitutional proportions. Therefore, we conclude that his claim is not re viewable.

The thrust of the defendant’s next claim of error is that the trial court did not adequately determine, on the record, that the defendant understood the elements of the crime with which he was charged. We disagree.

The record indicates that the court specifically asked the defendant if his counsel had explained the elements of the crimes to him and whether he was satisfied with the explanation. This procedure has been expressly sanctioned by the United States Supreme Court as well as the Connecticut Supreme Court. Henderson v. Morgan, 426 U.S. 637, 644, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976); Oppel v. Lopes, supra, 557-59. Thus, the defendant’s claim does not qualify for review under Evans.

The defendant’s final claim of error is that the state’s asserted factual basis was inadequate to support the pleas. For many years the law of this state required recitation of a factual basis to support a guilty plea, and lacking such a basis, acceptance of the plea violated the defendant’s due process rights. See State v Eason, 192 Conn. 37, 43, 470 A.2d 688 (1984); State v. Cutler, 180 Conn. 702, 703, 433 A.2d 988 (1980); State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); State v. Battle, 170 Conn. 469, 473-74, 365 A.2d 1100 (1976). Our Supreme Court began to question this position in State v. Deboben, 187 Conn. 469, 475 n.4, 446 A.2d 828 (1982), when it observed that, “it is not at all clear that . , , proof [of a factual basis] is constitutionally mandated.” Despite this weakening of confidence in the rule, it remained the law of this state until Paulsen v. Manson, 203 Conn. 484, 490-91, 525 A.2d 1315 (1987). The Paulsen court analyzed numerous federal precedents that rejected a factual basis finding as a requirement of due process and concluded that a plea not supported by a factual basis is not constitutionally void. The Eason, Cutler, Marra and Battle cases, holding to the contrary, were expressly overruled. Paulsen v. Manson, supra, 491. Accordingly, this claim of error does not implicate a constitutional right and we deny review under Evans.

There is no error.

In this opinion the other judges concurred.

       The defendant has requested plain error review only as to his first claim. Accordingly, on the facts of this case, we decline to extend such review to his remaining claims. State v. Speers, 17 Conn. App. 587, 602, 554 A.2d 769 (1989).

       “The Court: If you don’t understand my question, tell me. Don’t look to your attorney for the answer. It has to come from you. Do you understand?
      “The Defendant: Yes.
      “The Court: Have you discussed your guilty pleas with your attorney?
      “The Defendant: Yes.
      “The Court: Has he had adequate time to explain to you and has he in fact explained to you all of the elements which go to make up the crimes to which you have just pleaded?
      “The Defendant: Yes.
      “The Court: Are you satisfied with the advice and assistance you have received from your counsel?
      “The Defendant: Yes.”


author: Borden, J.

text:
    State of Connecticut v. Ralph Smith
    (7226)
    Borden, Spallone and Daly, Js.

      Argued May 2 —
    decision released September 12, 1989

      Louis S. Avitabile, with whom, on the brief, was Denise Dishongh, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was James Turcotte, deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the trial court’s denial of his motion to open a judgment of conviction and to set aside his guilty pleas, filed nearly one year after he had pleaded guilty and nearly eleven months after he had been sentenced. The defendant claims that the court erred in ruling that it had no authority to grant his motion and in refusing to hold an evidentiary hearing on the factual claims raised by his motion. We find no error.

On June 30,1987, the defendant pleaded guilty to a substitute information charging him with sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), two counts of risk of injury to a child in violation of General Statutes § 53-21, and sexual assault in the fourth degree in violation of General Statutes § 53-73a (a) (1) (A). On August 21, 1987, he was sentenced to an effective sentence of twelve years, execution suspended after six years, followed by five years probation. No appeal was taken, and he is serving his sentence. On July 6,1988, he moved to open the judgment of August 21, 1987, and to set aside his guilty pleas on the grounds that on the dates of his pleas and sentencing he (1) was under the influence of drugs affecting his ability to think clearly, (2) did not know the consequences or meaning of his plea agreement regarding his sentence, and (3) was denied effective assistance of counsel. The court denied his motion without an evidentiary hearing. This appeal followed.

Although the defendant entitled his motion a “Motion To Open Judgment,” and although he attempts to persuade us to analyze his claims under the rubric of the court’s inherent power to open its own “void” judgment at any time, it is clear that the essence of his motion was a request to withdraw his guilty pleas and, therefore, to set aside the judgment of conviction that followed those pleas. Indeed, his factual allegations are precisely among those contemplated by Practice Book § 721 for allowing a defendant to withdraw his plea of guilty after its acceptance but before the conclusion of the sentencing proceedings, namely, “(2) [t]he plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . . [or] (4) [t]he plea resulted from the denial of effective assistance of counsel . . . .” The defendant cannot change the nature of his motion by changing its title any more than one can make a bull a cow by giving it a female name. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). Thus, we analyze the defendant’s motion for what it is, namely, a motion to withdraw his guilty pleas entered on June 30, 1987.

Practice Book § 720 and State v. Kiss, 3 Conn. App. 400, 488 A.2d 845 (1985), dispose of the defendant’s principal claim. Practice Book § 720 provides that “[a] defendant may not withdraw his plea [of guilty or nolo contendere] after the conclusion of the proceeding at which the sentence was imposed.” State v. Kiss, supra, held that the trial court was correct in denying the defendant’s motion to withdraw his guilty plea, filed three years after sentence was imposed, as untimely because the motion was not filed before the sentence was imposed. See also State v. Brown, 19 Conn. App. 640, 563 A.2d 1379 (1989).

The defendant also poses an argument based on State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986), and Kenworthy v. Kenworthy, 180 Conn. 129, 131-32, 429 A.2d 837 (1980). He argues that Wilson established that the so-called four month rule for opening civil judgments; see Practice Book § 326; applies to criminal cases. He then argues that Kenworthy established a common law exception to the four month rule applicable to this case, namely, that at any time “a judgment rendered by the court upon the consent of the parties, which is in the nature of a contract to which the court has given its approval, can subsequently be opened without the assent of the parties if it is shown that the stipulation, and hence the judgment, was obtained by fraud, in the actual absence of consent, or by mutual mistake.” Kenworthy v. Kenworthy, supra, 131. The defendant’s argument breaks down, however, at its first step, because State v. Wilson, supra, does not apply to this case.

In Wilson, the court applied Practice Book § 326 and held that a criminal trial court could not revise its factual findings, as expressed in its original memorandum of decision, more than four months after the defendant was sentenced. State v. Wilson, supra, 437-38. Wilson did not address the issue in this case, namely, whether a defendant may be permitted to withdraw his guilty plea after the conclusion of the proceedings at which he was sentenced. The defendant would have us read Wilson so as to eviscerate Practice Book § 720, by holding that the defendant may, upon a showing of lack of proper understanding, return to the original trial court and withdraw his guilty plea at any time. Such a holding would also mean that Practice Book § 326, primarily a general civil rule, would obliterate Practice Book § 720, a specific criminal rule. We see nothing in Wilson to support such a reading, and no reason or policy to so hold.

The defendant may, of course, raise his claims by way of a petition for a writ of habeas corpus, which he has done. That is his proper remedy.

There is no error.

In this opinion the other judges concurred.

       The defendant has also filed a habeas corpus action alleging the same facts asserted in his motion in this case.

       Practice Book § 720 provides: “A defendant may withdraw Ms plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. ...”

       We therefore need not decide whether, if State v. Wilson, 199 Conn. 417, 513 A.2d 620 (1986), applied to the withdrawal of a guilty plea, the rule established in Kenworthy v. Kenworthy, 180 Conn. 129, 429 A.2d 837 (1980), would also apply.


text:
    Verkade’s Nursery, Inc. v. Philip H. Tuthill et al.
    (6877)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 12 —
    decision released September 12, 1989

      Joseph E. Moukawsher, for the appellants-appellees (defendants).

      Rod W. Farrell, for the appellee-appellant (plaintiff).
   Foti, J.

The plaintiff initiated this action to collect the balance due of $15,641.73 on a running account between the defendants, doing business as a retail nursery and garden center, and the plaintiff, a wholesale nursery. The defendants appeal and the plaintiff cross appeals from the judgment rendered by the trial court in favor of the plaintiff, awarding it $11,874.03 in damages. The defendants claim that the trial court’s findings were contrary to the evidence and thus clearly erroneous. The plaintiff claims that the trial court erred in not awarding it the full amount due on a running account. We find no error.

The court found the following facts. The parties had a continuous business relationship for a period of years, beginning in the mid-1970s. The defendants’ payments were admittedly not made promptly and a service charge was uniformly assessed by the plaintiff. Payments made were allocated, either in whole or in large part, to a running and delinquent account. Accounts were carried on a calendar year basis with charges for a new year placed on a “new account,” and any and all payments thereafter received applied to the prior year’s account until it was satisfied, with payments thereafter applied to the current or so-called “new account.” A certified public accountant retained by the parties to review the records determined a corrected balance, including interest owed, of $15,439.92.

The trial court found, and the plaintiff concedes, that the pleadings did not allege any specific failure of the defendants to pay the 1976 account balance, and that proof at trial showed that the period of indebtedness claimed commenced on April 5,1977. The court determined that a debt of $3565.89 was allegedly incurred in 1976, a period of time prior to that claimed in the plaintiff’s amended complaint. Since that amount was included in the balance of $15,439.92, the court deducted $3565.89 and rendered judgment for the plaintiff in the amount of $11,874.03.

The defendants claim that the trial court’s findings and judgment awarding the plaintiff $11,874.03 were contrary to the evidence and clearly erroneous. We disagree. “When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Cupina v. Bernklau, 17 Conn. App. 159, 161, 551 A.2d 37 (1989).

We have reviewed the record and conclude that the trial court’s findings are not clearly erroneous. The parties maintained a continuous business relationship over a twenty year period with certain payment and bookkeeping procedures followed by both parties. This arrangement included a carrying charge that was added to the outstanding balance. Payments were first applied to prior indebtedness, until that amount was paid in full. Payments thereafter were applied to the new account. The impartial accountant, hired by the parties, reported only $201.81 in errors over nine years of business dealings between the parties. The evidence presented further established that when charges were placed on a new account while payments were applied to a prior year, the plaintiff would send two bills, the first showing the balance on the previous year’s account to which payments were credited, and the second showing the balance on the new account to which purchases were charged. The defendants were therefore aware, on a monthly basis, when two accounts were running and the amount claimed due on each account.

The defendants further claim that because the trial court found the 1976 balance to be outside the scope of the pleadings, the court erred in granting interest on any balances claimed by the plaintiff before April 5, 1977. We find the defendants’ argument to be without merit. The court did not find that the pre-1977 balance of $3565.89 was not actually due and owing but rather that it could not be sustained as an amount recoverable because that period was outside the scope of the pleadings. The trial court accepted the evidence submitted by the expert together with the plaintiffs records regarding the orderly and proper periodic entries of interest charges to which the plaintiff was entitled.

In its cross appeal, the plaintiff alleges that the trial court erred in denying recovery of the full amount due. Essentially, the plaintiff asks us to retry the case as to this issue. We will not retry the facts or pass upon the credibility of witnesses. The facts found were not clearly erroneous and the trial court’s conclusions were legally and logically correct. Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc., 15 Conn. App. 804, 543 A.2d 287 (1988). We will not speculate on the credibility of the testimony or the weight given by the court to the evidence supporting its factual findings. The decision of the trial court is reasonably supported by the facts and applicable law.

There is no error.

In this opinion the other judges concurred.

       The bookkeeping procedures, as noted by the trial court, were confusing. Both parties, however, apparently agreed to those procedures.


text:
    State of Connecticut v. Gregory Wynter
    (6605)
    Spallone, O’Connell and Foti, Js.

      Argued March 14 —
    decision released September 12, 1989

      Kent Drager, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Dennis O’Connor, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The defendant claims that the trial court erred (1) in allowing into evidence the defendant’s statements to the police made while he was in the hospital, (2) in excluding certain testimony by the defendant and his doctor, (3) in failing to allow the defendant to rehabilitate a critical defense witness, (4) in instructing the jury on the alternative forms of the essential element of serious physical injury, (5) in permitting acts of prosecutorial misconduct, and (6) in failing to instruct the jury on assault in the second degree as a lesser included offense. We find no error.

From the evidence adduced at trial, the jury could reasonably have found the following facts. Early in the morning of April 10, 1983, the defendant became involved in an altercation with another customer in front of the Fox Trap Cafe in Hartford. When the bouncer, victim Earnest Dailey, asked the two to move away from the front of the nightclub, the defendant displayed a knife and threatened the victim. Stating that he would return, the defendant went home, changed his clothes and returned to the cafe with his brother, Neil Wynter. At the entrance to the cafe, the defendant was told by the doorman, Leroy Swain, that the manager did not want him inside. Disregarding the admonishment, the defendant ran past Swain into the cafe, carrying the same knife that he had earlier displayed. The victim, warned that the defendant was coming after him, turned to run. The defendant followed the victim and, upon reaching him, stabbed him in the back. The defendant, still holding the knife, retreated and then again attempted to reach the victim. At that moment, the defendant was shot in the back of the leg by an unknown assailant and was attempting to crawl from the cafe when the police arrived. The defendant was subsequently convicted by a jury of assault in the first degree. This appeal ensued.

The defendant’s first claim of error is that the trial court failed to suppress certain statements he made to the police while he was in the hospital. The defendant argues that, while under the influence of medication, he was incapable of making a voluntary statement to the police and incapable of making a voluntary and knowing waiver of his Miranda rights. In response to the defendant’s written motion to suppress all statements he made to police officers in the hospital, the trial court conducted a hearing and expressly found that the “medication administered to the defendant did not render him incapable of making a determination as to his willingness to relate to the officers certain facts concerning the incident, and that they were, in fact, made voluntarily and in accordance with the constitution.” We find no error in the trial court’s denial of the motion to suppress.

The following facts are relevant. Detectives James Malcolm and Paul Vanderheiden of the Hartford police department testified at the hearing that at approximately 6 p.m. on the evening of April 10, 1983, they had gone to the hospital to interview the defendant. After a conversation with the defendant’s duty nurse, the officers entered the defendant’s room. Malcolm advised the defendant that the police had applied for a warrant for his arrest. The defendant, after being advised of his constitutional rights, stated that he understood. He chose not to remain silent, and he did not request the presence of an attorney.

Whether the statements were voluntarily, made by the defendant to the police and were therefore admissible is a question of fact to be determined by the trial court in the exercise of its discretion. State v. DeAngelis, 200 Conn. 224, 232, 511 A.2d 310 (1986). On appeal, our “deference to the trial court’s finding on questions of this nature is qualified by the necessity for an independent examination of the entire record to determine whether the trial court’s finding of voluntariness is supported by substantial evidence.” Id.

At the suppression hearing, it was the state’s burden to prove by a preponderance of the evidence that the statements were voluntarily made. State v. Toste, 198 Conn. 573, 583-84, 504 A.2d 1036 (1986). “The test of voluntariness is whether an examination of all the circumstances shows that the conduct of police was such as to overbear the defendant’s will to resist and bring about a confession, not freely self-determined.” State v. DeForge, 194 Conn. 392, 397-98, 480 A.2d 547 (1984) . “The factual inquiry into voluntariness focuses primarily on the conduct of law enforcement officials.” State v. Russo, 3 Conn. App. 137, 145, 485 A.2d 1335 (1985) . “[CJoercive police activity is a necessary predicate to the finding that a confession is not 'voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). “ ‘ “The use of drugs or the ingestion of alcoholic beverages does not in and of itself render a subsequent admission inadmissible.” ... It is one factor to be considered in determining the voluntariness of a statement.’ ” State v. Russo, supra, 146, quoting State v. Stankowski, 184 Conn. 121, 134, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981).

An examination of the record reveals no evidence of coercive police activity. The detectives made no threats or promises to the defendant, nor did they raise their voices. Moreover, the evidence supports a conclusion that the defendant was capable of deciding to volunteer statements to the police. The detectives testified that during the ten minute conversation, the defendant did not appear to be in pain. There was no slurring of his speech. He was alert, manifesting no drowsiness, his breathing was normal and the pupils of his eyes were normal. The defendant was rational, showed no confusion, and appeared to understand the detectives’ questions.

James O’Brien, a physician with a Ph.D. in pharmacy, testified that there was a good probability that the effect of the medication given the defendant at 3:15 p.m. would have been minimal by 6 p.m., the time the statements were made.

The defendant’s physician, Seymour Liebowitz, opined that the defendant’s statements were not wholly competent because of the doses of medication he had received. Liebowitz admitted, however, that he did not see the defendant after noon on April 10,1983, and did not actually know what the defendant’s condition was at 6 p.m. on that date. Liebowitz also testified that, had the defendant been under the influence of the prescribed medication, he would have displayed some of the following characteristics: slurred speech; drowsiness; diminished respiration; pupils somewhat dilated; dark eyes; and a limited attention span. None of these side effects was apparent to the interviewing detectives.

From our independent examination of the record, we cannot say that the trial court’s conclusion that the defendant’s statements were voluntarily made and, therefore, admissible was clearly erroneous. See Practice Book § 4061.

The defendant also claims that his hospital statements should have been suppressed because, while acting under the influence of medication, he did not knowingly and voluntarily waive his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A waiver oí Miranda rights may be inferred from the actions or words of the person interrogated. State v. Wilson, 183 Conn. 280, 284, 439 A.2d 330 (1981). The state bears the burden of demonstrating that the defendant understood his rights and that the defendant’s course of conduct indicated that he did in fact waive those rights. Id., 284-85.

Evidence elicited at the suppression hearing amply supports a finding by the trial court that the defendant understood and voluntarily waived his Miranda rights. The defendant indicated to the police that he understood the Miranda warnings. At no time did he indicate that he did not wish to speak to the detectives, and he did not ask for an attorney to be present. The defendant appeared to be alert and responded to the police questions in detail. Accordingly, the trial court properly admitted his statements at trial. See State v. Kuskowski, 200 Conn. 82, 88-89, 510 A.2d 172 (1986); State v. Aversa, 197 Conn. 685, 696, 501 A.2d 370 (1985); State v. Frazier, 185 Conn. 211, 226, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); State v. Wilson, supra.

In his second claim, the defendant argues that the trial court erred in excluding certain evidence concerning the voluntariness of his hospital statement. The court did not permit the defendant to testify as to whether he was capable of answering the detectives’ questions. Liebowitz was not permitted to give his opinion as to the defendant’s competence under the administered medication to make a weighty decision such as signing a surgical consent form.

The court ruled that the defendant could not testify as to his conclusion regarding whether he was able to make a decision or answer questions in light of his physical and mental condition. “A court has wide latitude in deciding whether to exclude the opinions and conclusions of witnesses.” Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 205, 470 A.2d 705 (1984). The decision whether to admit such opinions and conclusions is within the trial court’s discretion and will not be disturbed unless such discretion is abused. Turbert v. Mather Motors, Inc., 165 Conn. 422, 434, 334 A.2d 903 (1973). It is a general rule that witnesses testify to facts, not to their individual conclusions. Robinson v. Faulkner, 163 Conn. 365, 371-72, 306 A.2d 857 (1972).

The defendant was permitted to describe his mental and physical condition at the time he gave his statements to the police. He testified that he was tired and in pain and that he could not think properly. He remembered being thirsty, but stated that his hearing and sight had not been affected by his medication. The trial court ruled, however, that he could not state that he was incapable of answering the police questions. That is a conclusion as to the issue at trial of whether the defendant was competent to volunteer statements and voluntarily and knowingly to waive his Miranda rights. The trial court properly exercised its discretion in excluding the defendant’s conclusion on an issue that was properly one for the jury to draw. State v. Delgado, 178 Conn. 448, 449, 423 A.2d 106 (1979).

The trial court also sustained the state’s objection to the relevancy of the defense’s question to Liebowitz as to whether the defendant, while under the influence of medication, would have been permitted to sign a surgical consent form.

The defendant contends that the jury could reasonably have inferred from that testimony that, if the defendant was too medicated to be competent to consent to surgery, he was too medicated to decide whether to volunteer statements to the police or knowingly waive his rights.

The defendant has a right to present expert opinion as to his mental and physical condition. State v. Vaughn, 171 Conn. 454, 458-63, 370 A.2d 1002 (1976). As with all evidence, the trial court must rule on the admissibility of such evidence, deciding if it is relevant and more probative than prejudicial. State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977). The court may, in its broad discretion, exclude evidence if it determines that such evidence will tend to confuse the jury and obscure the issues. State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986). The trial court’s ruling on the admissibility of evidence will not be reversed unless there has been an abuse of discretion or an injustice done. State v. Carr, supra; State v. Baskins, 12 Conn. App. 313, 318, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987).

In the present case, the defendant’s competence to make decisions when the police questioned him at 6 p.m. was at issue. Liebowitz had not seen the defendant since noon. He, therefore, could not testify about the defendant’s condition at the critical time. Nor was evidence offered to establish that there was a basis for comparison of the level of competence required to sign a surgical consent form and the level of competence required to volunteer statements or to waive Miranda rights. The proffered testimony of Liebowitz would have tended only to confuse the jury and to obscure the issues. The trial court did not abuse its discretion in excluding this testimony.

Next, the defendant claims error in the trial court’s ruling precluding him from pursuing collateral matters in an attempt to rehabilitate a defense witness. There is no merit to this claim.

Neil Wynter, the defendant’s brother, was called as a defense witness. He testified on direct examination that on the night in question the defendant did not have a knife, did not fight with the victim and did not stab the victim. In attempting to impeach Neil’s credibility, the state made the following offer of proof outside the presence of the jury. On the night the victim was stabbed, Neil Wynter was arrested and charged with throwing a brick through the window at the Fox Trap Cafe. At a court appearance, he applied for accelerated rehabilitation, and represented under oath to the court that he had never been granted accelerated rehabilitation on any prior occasion. Contrary to this statement, he had in fact previously been granted accelerated rehabilitation. He ultimately pleaded guilty to the misdemeanor of giving a false statement under oath.

The trial court permitted the state to impeach Neil Wynter’s credibility by introducing evidence of this prior act of misconduct. On redirect examination, the defendant requested that the court give the jury a limiting instruction. The trial court complied and instructed the jury that the fact that Neil Wynter made an “incorrect” or “false statement” in another court proceeding was to be used solely to assist them in determining his credibility. The defense also tried to rehabilitate this witness by eliciting from him an explanation of the circumstances of the misconduct. The trial court sustained the state’s objection to the introduction of evidence on a collateral matter.

“[A] witness may be impeached by evidence of specific acts of misconduct which relate to veracity. . . .” State v. McIntosh, 12 Conn. App. 179, 183, 530 A.2d 191, cert. denied, 205 Conn. 808, 532 A.2d 77 (1987). When a witness’ credibility is being attacked, the trial court enjoys liberal discretion in fixing the limits of cross-examination. State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. Dolphin, 195 Conn. 444, 459, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). “The extent to which counteracting and rehabilitative evidence may be received after the credibility of a witness has been attacked is a matter in which the trial judge necessarily has broad discretion.” United States v. Perry, 550 F.2d 524, 532 (9th Cir.), cert. denied, 434 U.S. 827, 98 S. Ct. 104, 54 L. Ed. 2d 85 (1977); Beck v. United States, 317 F.2d 865, 870 (5th Cir. 1963), cert. denied, 375 U.S. 972, 84 S. Ct. 480, 11 L. Ed. 2d 419 (1964).

The record reveals that the trial court was concerned that a further examination of the circumstances of Neil Wynter’s prior misconduct would involve “getting into a lot of extraneous things that have no bearing on this jury’s determination of the facts involving [the defendant]” and would lead the jury astray. The trial court did not abuse its discretion in limiting the scope of the defense’s redirect examination of Neil Wynter.

The defendant’s fourth and fifth claims of error on appeal were not properly preserved at trial. See Practice Book § 4185. As to each, the defendant seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). “ ‘Appellate review of newly discovered issues cannot be guaranteed by couching every claim of error in the constitutional language of State v. Evans, supra . . . .’ ” State v. DeMayo, 18 Conn. App. 297, 299, 557 A.2d 571 (1989). “Belated appellate scrutiny is warranted only for egregious errors that undermine the fairness of a trial and cast doubt on the integrity of the judicial process.” State v. Hull, 210 Conn. 481, 484-85, 556 A.2d 154 (1989). We have reviewed the record in a limited way; see State v. Thurman, 10 Conn. App. 302, 305, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987); and conclude that the defendant has failed to state a claim, adequately supported by the record, that he has been denied a fundamental constitutional right or a fair trial. Id.

The defendant’s fourth claim of error is that the trial court, in its instruction on assault in the first degree, erroneously presented the jury with alternative forms of the element “serious physical injury” for which there was insufficient evidence and also made possible a nonunanimous jury verdict. In its instructions to the jury on the elements of the crime of assault in the first degree, the court stated that the jury must find that the defendant intended to and did cause serious physical injury to the victim. The court gave the complete statutory definition of serious physical injury as “a physical injury which creates a substantial risk of death or which causes serious physical disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.” General Statutes § 53a-3 (4). The defendant argues that this definition describes four separate and distinct ways to cause serious physical injury. He contends that there was insufficient evidence presented by the state to support all four methods, raising, therefore, the possibility that the jury did not unanimously find the defendant guilty beyond a reasonable doubt on an essential element of the crime charged.

It is true that it is error for the trial judge to instruct the jury on alternative methods of committing an offense when there is insufficient evidence to support each. State v. Hufford, 205 Conn. 386, 399, 533 A.2d 866 (1987); State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987). Submitting unsupported alternative forms to the jury implicates the defendant’s constitutional right to be convicted only upon proof beyond a reasonable doubt of all elements of the offense charged. State v. Williams, supra, 363.

This court recently held in State v. Anderson, 16 Conn. App. 346, 357, 547 A.2d 1368 (1988), however, that the forms of “serious physical injury” described in the definition are not statutory alternatives. The statutory definitions are not distinct, alternative methods of committing a crime. The jurors had only to determine unanimously whether the victim suffered a serious physical injury; they did not have to agree on which type of injury. Id.

In the present case, therefore, the trial court’s general unanimity charge was sufficient to protect the defendant’s right to a unanimous verdict. Because the defendant has not “clearly been deprived of a fundamental constitutional right”; State v. Evans, supra, 70; his fourth claim of error is not reviewable.

The defendant’s second unpreserved claim is that, because of prosecutorial misconduct, he was deprived of his state and. federal rights to due process of law and a fair trial. He claims that the prosecutor repeatedly forced the defendant on cross-examination to characterize the testimony of state’s witnesses as lies and the witnesses as liars. The defendant also claims that the prosecutor indicated to the jury his personal belief in the defendant’s guilt and his personal opinion of the credibility of the witnesses.

Evans review of alleged prosecutorial misconduct is reserved for those cases where the misconduct constituted a pattern so “blatantly egregious” that the defendant is deprived of a fair trial. State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987); see also State v. Hull, supra, 485; State v. DeMayo, supra, 301. The defendant has not alleged a pattern of “blatantly egregious misconduct”; understandably so, because our examination of the transcript fails to reveal such a pattern. Under the circumstances in this case, the defendant’s claim of prosecutorial misconduct is not subject to review.

Finally, the defendant contests the trial court’s failure to charge the jury on assault in the second degree as a lesser included offense of assault in the first degree. There is no constitutional right to a jury instruction on a lesser included offense. State v. Robinson, 14 Conn. App. 40, 44, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988). Although the defendant filed a request to charge on this issue, he failed to comply with the rules of practice that require that he articulate the legal and factual basis for his request to charge. See Practice Book § 854; State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986); State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). “A request to charge is not appropriate within the meaning of Whistnant unless it complies with Practice Book § 854.” State v. Martin, 15 Conn. App. 58, 64-65, 544 A.2d 231, aff’d, 211 Conn. 389, 559 A.2d 707 (1989).

In his request to charge, the defendant merely asked the court to instruct the jury that assault in the second degree was a lesser included offense of the crime charged. See State v. Payne, 14 Conn. App. 169, 171, 540 A.2d 87 (1988). When “[t]he defendant’s request contains no facts or propositions of law upon which the court could justify giving the charge requested”; State v. Robinson, supra, 45; the trial court is justified in denying the defendant’s request to charge on a lesser included offense. State v. Martin, supra, 65; State v. Payne, supra, 171.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] § 53a-59. assault in the first degree; class B FELONY.
      “(a) 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 (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; 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.
      “(b) Assault in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”


author: Dupont, C. J.

text:
    State of Connecticut v. Joseph Luca
    (7200)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 6 —
    decision released September 12, 1989

      Brian M. O’Connell, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgments of conviction rendered after a jury found him guilty of one count of the crime of possession of cocaine with intent to sell, in violation of General Statutes § 21a-277 (a), and three counts of the crime of sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). He received a total effective sentence of thirty years imprisonment suspended after fifteen years. The defendant claims that the trial court erred in allowing the jury to determine whether the defendant had produced substantial evidence of drug dependency, and that, therefore, the judgment should be set aside. We find error.

At trial, the defendant testified on both direct and cross-examination about his drug use. While much of the testimony was confusing as to dates, amounts and specific events, the defendant essentially testified that he had begun using cocaine on a regular basis approximately two to three years before his arrest. He also testified that he had borrowed large sums of money from family members to support both his drug and gambling habits, and that his drug use had adversely affected him both psychologically and financially. An expert witness for the defendant, a psychiatrist, testified that the defendant was drug-dependent at the time of his arrest. The psychiatrist based that conclusion largely on information obtained from the defendant.

After instructing the jury on the state’s burden of proving the elements of the crimes charged beyond a reasonable doubt, the trial court charged: “Non-drug-dependency is not an element of the offense which the state is initially required to prove. The status of being a drug-dependent person would exempt an accused person from the application of these statutes. The state has the right, in the first instance, to rely on a presumption that an accused person was not a drug-dependent person at the time of the offense. If and only if you find the defendant has introduced some substantial evidence tending to prove his drug dependence at the time of the offense, the exemption from the application of the statutes becomes an issue, and the state can no longer rely on the presumption of non-drug-dependency. At that point, the burden rests upon the state, based upon all the evidence, to prove beyond a reasonable doubt that the accused was not a drug-dependent person and therefore not entitled to the exemption provided by the statute.”

The defendant argues, for the first time on appeal, that the trial court, rather than the jury, should have initially determined whether the defendant had submitted substantial evidence of drug dependency, and that only if it concluded that there was substantial evidence, should the jury have been allowed to determine whether, based upon all the evidence, the state had proved beyond a reasonable doubt that the defendant was not a drug-dependent person. The state concedes that the charge as given was erroneous, but argues that our review is precluded by the defendant’s failure to preserve his claim properly by not filing a proper request to charge or taking an exception to the charge given on the ground he now asserts on appeal.

While it is the general practice of this court not to review claims not distinctly raised at trial, we may, in the interests of justice, notice plain error not brought to the trial court’s attention. Practice Book § 4185; State v. Phu Dinh Le, 17 Conn. App. 339, 342, 552 A.2d 448 (1989). The plain error rule is one “aimed at preserving the fundamental integrity of the adjudicative process and avoiding fundamental injustice, and not at simply detecting error, even of a constitutional nature.” State v. Cosby, 6 Conn. App. 164, 172, 504 A.2d 1071 (1986). The error in this case caused a “manifest injustice under all the circumstances of the case” because it affected the integrity or reliability of the jury’s verdict. We, therefore, will invoke our discretionary authority. See State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

General Statutes § 21a-269 places the initial burden of proving the existence of any exemption contained in General Statutes §§ 21a-240 through 2 la-285 upon the defendant. Section 21a-278 (b) exempts drug-dependent persons and, therefore, the burden of producing evidence of drug dependency rests initially with the defendant. State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The state has the right in the first instance to rely on the presumption that the defendant is not drug-dependent. Once the defendant introduces some substantial evidence tending to prove his drug dependency, however, drug dependency becomes an issue in the case, the presumption loses its operative effect, and the state then bears the burden of proving beyond a reasonable doubt that the defendant was not drug-dependent. Id., 169. It is for the court to determine whether the defendant has introduced substantial evidence of drug dependency and has therefore put the matter into issue. State v. Brown, 163 Conn. 52, 67, 301 A.2d 547 (1972).

In the present case, the court erroneously instructed the jury that it had the duty to make that initial determination. This was a clear misstatement of the law and constituted plain error. See Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 399, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987). The misstatement resulted in an unreliable verdict because the jury was faced with two different standards of proof, as well as potentially shifting burdens of proof. According to the court’s instruction, the jury first had to determine whether the defendant had produced substantial evidence of drug dependency. If it found that the defendant failed to produce substantial evidence, it could allow the state to rely on a presumption that the defendant was not drug-dependent. If, on the other hand, it found that the defendant had produced substantial evidence of drug dependency, it had to hold the state to the burden of proving beyond a reasonable doubt that the defendant was not drug-dependent. The potential for confusion in these instructions is evidenced by certain questions asked by the jury during its deliberations. The court’s erroneous charge failed to comport with the primary purpose of a charge, which is to assist the jury in applying the law to the facts, because it gave the jury the responsibility of making a factual finding that the court should have determined as a matter of law. See State v. Preyer, 198 Conn. 190, 199-200, 502 A.2d 858 (1985).

Although the state conceded that the court’s instruction was erroneous, it argues that the error was harmless. We disagree. “An important factor in determining whether to invoke the plain error doctrine is whether the claimed error 'resultjed] in an unreliable verdict or a miscarriage of justice.’ State v. Hinckley, supra, 88.” Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223, cert. denied, 206 Conn. 803, 535 A.2d 131 (1987). As previously discussed, the erroneous instruction in this case did result in an unreliable verdict because the jury was instructed to make a determination that, under ornease law, it was prohibited from making. Accordingly, we hold that the trial court’s erroneous instruction on the determination of whether the defendant had produced substantial evidence of his drug dependency requires reversal of his convictions under § 21a-278 (b).

The state also argues that the court’s instructional error had no impact on the defendant’s conviction of possession with intent to sell cocaine under General Statutes § 21a-277 (a). We agree, because unlike § 21a-278 (b), drug dependency is neither an exemption nor an element of § 2la-277 (a). The court’s error did not affect the outcome of the trial with respect to the § 21a-277 (a) charge. See State v. Suggs, 209 Conn. 733, 753, 553 A.2d 1110 (1989).

There is error in part, the judgment is set aside as to the three convictions under General Statutes § 21a-278 (b) and the case is remanded for a new trial on those charges.

In this opinion the other judges concurred.

       While the defendant did file a formal request to charge, that request did not address the issue he now raises. Exceptions to a trial court’s instructions must be sufficiently precise and clear to allow the court to cure any defects or ambiguities in the charge. Nisbet v. Olmeda, 15 Conn. App. 6, 14, 544 A.2d 642 (1988).

       The defendant has not claimed review under the plain error doctrine. On occasion, this court has declined plain error review when not claimed by the appellant. See State v. Speers, 17 Conn. App. 587, 602, 554 A.2d 769 (1989); State v. Maisonet, 16 Conn. App. 89, 546 A.2d 951 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1132, 103 L. Ed. 2d 189 (1989). These decisions do not, however, preclude review in such circumstances. See Smith v. Czescel, 12 Conn. App. 558, 533 A.2d 223, cert. denied, 206 Conn. 803, 535 A.2d 131 (1987).
      The defendant also claims, without invoking State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), that the claimed error violated his rights under the fourteenth amendment to the United States constitution and article first, § 8 of the Connecticut constitution. Because we find plain error in the trial court’s instruction, we need not address the constitutional basis of his claim.

       During deliberations, the jury sought clarification of several issues from the court. At one point, the jury sent a note, accompanied by a flow chart, to the court asking whether drug dependency was the first issue to be considered.

       In its argument on the harmlessness of the instructional error, the state argues that because the defendant failed to produce substantial evidence of his drug dependency, it was irrelevant whether the court or the jury made that initial determination. This argument hinges on the credibility of the testimony of the defendant and his psychiatrist. We have often stated that the credibility of witnesses and the weight to be accorded to their testimony is a matter to be determined by the trier of fact. State v. Coriano, 12 Conn. App. 196, 203, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987).
      Relying on statements by the trial judge made during posttrial hearings, the state argues that the court, had it exercised its proper authority, would have instructed the jury that the state did not have to prove non-drug dependency. While the statements indicate that the court did not find the defendant’s testimony convincing, they were not rulings, and were made in hindsight after a verdict had been entered. We cannot now speculate on whether the court would have made a-ruling consistent with those statements had it properly applied the law.