author: Norcott, J.

text:
    State of Connecticut v. Jose Daniel Paulino
    (9426)
    Daly, O’Connell and Norcott, Js.
    Argued September 11
    decision released October 29, 1991

      Neal Cone, assistant public defender, with whom, on the brief, was G. Douglas Nash, 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).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of possessing cocaine with intent to sell in violation of General Statutes § 21a-278 (b). The defendant was sentenced to twenty years in prison. He claims that the trial court improperly admitted inculpatory hearsay statements made by a third party, and improperly permitted unfairly prejudicial testimony by a prosecution witness, thereby denying him his federal and state constitutional rights to due process. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On May 3, 1989, shortly before 8 p.m., a 1978 Oldsmobile with two males, including the defendant, in the front seat, and a woman and a baby in the rear seat, passed an unmarked state police car on Interstate 95 in the Fairfield area at a speed of more than seventy miles per hour. State Trooper John Rodia gave chase in the unmarked car and radioed to his supervisor, Sergeant Robert Kenney, that he was doing so. Kenney, parked at a service area on Interstate 95, also saw the Oldsmobile drive past. He later identified the defendant as the passenger in the front seat.

Near exit 25, with Rodia about two car lengths behind and traveling at about eighty miles per hour, the front seat passenger in the Oldsmobile reached to his left, then swung his arm to the right, and threw a bag out the passenger side window. The bag landed near the guardrail alongside the highway. The Oldsmobile then left the highway on exit 25 and came to a stop after hitting a post near the exit ramp. When Rodia attempted to follow the Oldsmobile off exit 25, he lost control of his car, which left the ramp airborne, rolled over and went down an embankment. Rodia left the car and proceeded on foot back onto Interstate 95, where he retrieved the bag. Inside it was a brick-like package wrapped in tape, which a state toxicologist later identified at trial as a white powder that weighed one kilogram and contained 85 percent pure cocaine. The toxicologist testified that the cocaine could have been broken down for sale into ten thousand bags of the drug. Other state troopers, including Trooper Edward Alicea, also went to the accident scene, where the defendant was apprehended along with Pedro Navarro. At the state police barracks, they were given their Miranda warnings and interviewed separately by Alicea, who is fluent in Spanish.

The defendant told Alicea that he was a passenger in the Oldsmobile. He then invoked his right to counsel, and the discussion ceased. Shortly thereafter, the defendant was placed in a holding cell adjacent to Navarro. As Alicea was leaving, he overheard the defendant ask Navarro if Navarro had told the police anything. Alicea also heard the defendant tell Navarro that the defendant hoped Navarro did not tell the police anything. When Alicea interviewed Navarro, Navarro initially claimed neither he nor the defendant was the driver of the car but that it had been driven by a third male. He then admitted to lying about the third male. He also told Alicea that he was traveling to Providence, Rhode Island, to look for work, that he had never been arrested and had always been employed, and that he had known there were drugs in the Oldsmobile but had nothing to do with them. Navarro also told Alicea that the package containing the cocaine belonged to the defendant.

As a result of Navarro’s statements to Alicea, the defendant filed a pretrial motion for severance, requesting that he and Navarro be tried separately. The trial court granted the defendant’s motion.

I

The defendant first claims that the trial court abused its discretion by improperly admitting inculpatory hearsay statements made by Navarro to Alicea to the effect that the cocaine belonged to the defendant. We disagree.

During cross-examination, Alicea testified that Navarro had denied being the car’s driver. On redirect, the prosecution first elicited that the defendant, too, had denied being the driver, then proceeded to ask about ownership of the cocaine. Prior to Alicea’s testimony and outside the presence of the jury, the court had ruled that if defense counsel inquired as to Navarro’s statement that he was not the driver, the rest of his statement might be permitted to come in as well. Defense counsel told the court that he understood its ruling.

In his brief, the defendant concedes that he “opened the door” by asking about who was driving, but claims that he did not open it so wide as to permit inquiry about ownership of the cocaine. “Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. . . . This rule ‘operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.’ ” (Citations omitted.) State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). Once the door has been opened, the trial court must then engage in a balancing test of sorts in determining whether further inquiry by the opposing party is proper to allow it to undo any unfair prejudice that may have resulted from the original testimony. Id., 14. A trial court is charged with the responsibility to exclude evidence where its prejudicial tendency outweighs its probative value. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984); State v. Nardini, 187 Conn. 513, 521-22, 447 A.2d 396 (1982). A defendant who opens the door on cross-examination, however, cannot complain when the opposing party on redirect elicits from the witness highly prejudicial hearsay statements made by a third party. State v. Crowley, 22 Conn. App. 557, 561-62, 578 A.2d 157, cert. denied, 216 Conn. 816, 580 A.2d 62 (1990); State v. Aleksiewicz, 20 Conn. App. 643, 655-56, 569 A.2d 567 (1990).

Applying these principles, we conclude that the trial court properly permitted the prosecution to elicit testimony from Alicea as to ownership of the cocaine. To disallow introduction of this evidence would have greatly prejudiced the prosecution by permitting the defendant to make selective use of Navarro’s statements so as to create for the jury the erroneous impression that Navarro, who as the passenger had thrown the package from the vehicle, was exculpating the defendant. Introduction of this evidence was thus essential to cure the unfairness that resulted from defense counsel’s limited inquiry.

The defendant also asserts that the trial court’s decision to permit testimony as to ownership of the cocaine was fundamentally unfair and therefore deprived him of his rights to due process and a fair trial. Properly viewed, the defendant’s claim challenges the trial court’s decision on evidentiary grounds only. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991). Because a trial court’s ruling on such grounds is accorded great deference, we will reverse such a ruling only in cases manifesting an abuse of discretion and resulting in substantial prejudice or injustice to the defendant. Id., citing State v. Hernandez, 204 Conn. 377, 390, 528 A.2d 794 (1987); State v. Martin, 170 Conn. 161, 166, 365 A.2d 104 (1976); see also State v. Sanchez, 25 Conn. App. 21, 24, 592 A.2d 413 (1991). In reviewing claims that the trial court abused its discretion, “the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did . . . .” Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979). On the basis of our review, we cannot say the trial court abused its discretion in permitting the prosecution to elicit testimony as to ownership of the cocaine.

II

The defendant next claims that he was denied a fair trial because the trial court improperly permitted testimony by Alicea identifying the defendant as having worn a bag over his head at a pretrial hearing. None of the defendant’s objections at trial, however, may be fairly seen as addressing this specific issue. The defendant’s counsel twice requested the court to direct the witness to respond a certain way. Counsel’s final objection went to the prosecution’s line of questioning itself. Because this claim was never raised properly in the trial court, we decline to review it now. State v. Dennison, 24 Conn. App. 27, 30-31, 585 A.2d 1240, cert. granted, 219 Conn. 901, 593 A.2d 131 (1991); State v. Burroughs, 22 Conn. App. 507, 511-12, 578 A.2d 146 (1990).

“To review evidentiary claims, a defendant must strictly comply with the rule of Practice Book § 288 requiring the statement of grounds for each objection. Skinner v. Skinner, 154 Conn. 107, 110, 221 A.2d 848 (1966). Because the basis of the defendant’s claim differs from the ground of his objection at trial, it cannot be the basis for concluding reversible error. Birgel v. Heintz, 163 Conn. 23, 35-36, 301 A.2d 249 (1972). On appeal, ‘review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. . . . The reason for this rule is clear: it is to alert the trial court to an error while there is time to correct it . . . and to give the opposing party an opportunity to argue against the objection at trial. To permit a party to raise a different ground on appeal than was raised during trial would amount to “trial by ambuscade,” unfair to both the trial court and to the opposing party.’ (Citations omitted.) State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985) .” State v. Burroughs, supra, 511. Moreover, there can be no finding of a denial of a fair trial on this basis since ample evidence was elicited at trial from numerous witnesses as to the identity of the defendant.

Ill

Finally, the defendant claims that the trial court improperly allowed Alicea to testify as to statements the trooper overheard the defendant make to Navarro in the holding cells after the defendant had invoked his right to remain silent. We disagree.

The defendant argues that Alicea’s testimony violated the rule that use of a defendant’s silence after he has received Miranda warnings violates due process. Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 48 L. Ed. 2d 91 (1976); Anderson v. Charles, 447 U.S. 404, 407-408, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980); State v. Casey, 201 Conn. 174, 184, 513 A.2d 1183 (1986) . Doyle applies, however, only to cases involving “custodial interrogation and their focus is on the period immediately following the defendant’s receipt of Miranda warnings.” State v. Henderson, 24 Conn. App. 295, 299, 588 A.2d 224 (1991); see also State v. Apostle, 8 Conn. App. 216, 233, 512 A.2d 947 (1986). “ ‘[Interrogation’ under Miranda refers both to express questioning [and] to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” State v. Vitale, 197 Conn. 396, 411-12, 497 A.2d 956 (1985), quoting Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). A statement freely given, not elicited through interrogation and without any compelling influence, is admissible. State v. Copeland, 205 Conn. 201, 207, 530 A.2d 603 (1987); State v. Burak, 201 Conn. 517, 531, 518 A.2d 639 (1986); State v. Vitale, supra, 412.

Here, there was no custodial interrogation involved in the cell block. Alicea did not speak with the defendant there; he merely overheard the defendant freely and voluntarily asking Navarro questions.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

        Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Andrew Headley
    (9526)
    Dupont, C. J., Spallone and Lavery, Js.

      Argued September 11
    decision released October 10, 1991

      BrianM. O’Connell, special public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Christopher Mor ano, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from his conviction, after a jury trial, of the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and conspiracy to distribute narcotics in violation of General Statutes §§ 53a-48 (a) and 21a-277 (a). He claims that the trial court improperly allowed a narcotics detective, qualified as an expert, to testify that certain items found in the defendant’s apartment were indicative of the trafficking of narcotics and that that court improperly admitted the statements of an alleged coconspirator. We affirm the judgment of the trial court.

The defendant was present in a Hartford apartment that was searched by the police pursuant to a warrant. The validity of the search warrant is uncontested. In the course of the search, police officers discovered a large sum of cash, a handgun, small amounts of narcotics, a sifter, small plastic bags, and a triple beam scale. When searched, the defendant was carrying approximately $890 and wearing a beeper. The defendant and other occupants of the apartment were arrested.

While the police were tagging the seized evidence, the defendant’s beeper was activated by an incoming call. Detective Michael Manzi testified that he immediately telephoned the number displayed on the beeper’s screen and was answered by a “distinct Jamaican voice” that asked, “Are you up? Can I come by? Are you ready?” Moments later, the unknown caller hung up. Manzi testified that he had not written down the number and it was lost when the beeper was turned off.

Manzi was qualified as an expert witness on the subject of narcotics trafficking and testified that the materials seized in the defendant’s apartment were related to narcotics trafficking, leading him to conclude that the apartment was used as a drug house and that cocaine was being distributed from that location. Manzi then testified in a general sense about narcotics trafficking. He was shown each of the items found in the apartment and testified that each would customarily be used in a narcotics trafficking operation. Manzi then testified that if all of the items were found in a residence, he would conclude that it was being used as a drug factory and as a source for narcotics distribution.

The defendant claims that the hypothetical posed to Manzi were improper because General Statutes § 54-86Í precludes any expert witness’ testimony as to the mental state or condition constituting an element of the crime charged. The disputed questions, however, do not concern an opinion as to the mental state or condition of the defendant but relate solely to whether the items found within the residence indicated the existence of narcotics trafficking. We hold that General Statutes § 54-86Í is inapplicable.

The defendant also contends that the testimony was inadmissible because it did not explain a narcotics operation to the jury, but it merely restated the government’s charges. The defendant relies on two federal cases for his argument.

In United States v. Castillo, 924 F.2d 1227, 1233 (2d Cir. 1991), a police officer was qualified, over objection, as an expert regarding the typical operations of drug dealers. His testimony followed explanations and descriptions of the relevant procedures and equipment by other police officers and was held to be unnecessary. The court held that the common knowledge of the jurors and the previous testimony permitted the jury to understand the facts in issue without the need of expert testimony. In United States v. Long, 917 F.2d 691 (2d Cir. 1990), a police officer was qualified as an expert witness and provided extensive descriptions of organized crime families. The court held that these descriptions were marginally relevant and substantially prejudicial because they implicated the defendants in a much larger criminal organization, which was not at issue in the case. The court further held that other expert testimony was within the common knowledge of the jury. Id., 702; see State v. George, 194 Conn. 361, 373, 481 A.2d 1068, cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1984).

In the present case, Manzi’s testimony regarding narcotics trafficking methods was related both to the specific crime charged and to the environment necessary to conduct a narcotics operation. Moreover, it was not cumulative of prior testimony. We, therefore, conclude that Castillo and Long do not control, and defer to the trial court’s broad discretion. The court did not abuse its discretion in concluding that the jury would benefit from the admission of expert testimony. The court’s determination that such evidence was more probative than prejudicial should not be disturbed. State v. Delgado, 8 Conn. App. 273, 289, 513 A.2d 701 (1986).

The defendant’s second claim is that the statements of an alleged unknown coconspirator were admitted in violation of the criteria set forth in State v. Vessichio, 197 Conn. 644, 654-55, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). Under Vessichio, hearsay statements of a coconspirator may be admitted once the judge has made a preliminary determination that there is sufficient independent evidence to establish “ ‘(1) that a conspiracy existed ... (2) that the conspiracy was still in existence at the time the statement was made . . . (3) that the declarations were made in furtherance of the conspiracy . . . and (4) that both the declarant and the defendant participated in the conspiracy . . . .’ ’’(Citations omitted.) Id. The court must make this determination by a fair preponderance of the evidence, independent of the hearsay statements. Id.

The trial court here could have considered certain evidence in making the necessary preliminary determination. Denise McCrary, the owner of the apartment in which the defendant was arrested, testified that the defendant and another man used the apartment for the sale of narcotics. She testified that the defendant used his beeper as part of that operation and that she occasionally answered the telephone and received cryptic messages. The defendant challenges only the second element of the Vessichio test, contending that there was insufficient independent evidence to establish that a conspiracy was still in existence at the time the statement was made, and that any conspiracy terminated with his arrest.

“A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” General Statutes § 53a-48 (a). The existence of a formal agreement need not be proved; it is sufficient to show that the parties are knowingly engaged in a mutual plan to perform a forbidden act. State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975); State v. Holmes 160 Conn. 140, 149, 274 A.2d 153 (1970). Because of the secretive nature of criminal conspiracies, convictions are often based on circumstantial evidence. The state sought to introduce testimony from Manzi of a telephone conversation he had with an unknown man when Manzi called a number displayed on the defendant’s beeper screen. Manzi testified that he heard a “distinct Jamaican voice, a male, and the words were . . . similar to ‘Are you up? Can I come by? Are you ready?’ ” When he attempted to engage the caller in further conversation, the caller hung up. On the basis of the detective’s experience in listening to narcotics related conversations, he testified that he believed the caller wanted to purchase cocaine.

In the case of a conspiracy to perform a violent act, such as robbery or murder, absent renunciation under General Statutes § 53a-48, a conspiracy usually terminates when the crime is consummated. In crimes involving an ongoing conspiracy, such as embezzlement, gambling, or the sale of narcotics, it is more difficult to determine when the conspiracy ends.

In State v. Hayes, 127 Conn. 543, 602, 18 A.2d 895 (1941), a conspiracy conviction was upheld where it was alleged that the crime continued to the date of the information. As a matter of law, we decline to hold that a conspiracy necessarily terminates with arrest. See United States v. Urrego-Linares, 879 F.2d 1234, 1240 (4th Cir.), cert. denied, 493 U.S. 943, 110 S. Ct. 346, 107 L. Ed. 2d 334 (1989). A conspiracy does not end with an arrest where evidence of an attempt to buy or sell illicit goods indicates a continuing participation by a coconspirator in the conspiracy. United States v. Grubb, 527 F.2d 1107, 1109 (4th Cir. 1975); see also State v. Couture, 218 Conn. 309, 323, 589 A.2d 343 (1991). Without evidence to the contrary, a defendant’s withdrawal from a conspiracy simultaneous with his arrest will not be presumed. United States v. Grubb, supra. The trial court properly applied the test set forth in State v. Vessichio, supra, to the testimony offered by the state.

On the basis of the facts of this case, we hold that the trial court could reasonably have found that it was more probable than not that the conspiracy was still in existence when the unknown caller made his statements to Manzi.

The judgment is affirmed.

In this opinion the other judges concurred.

       The testimony was as follows:
      “Q: Now, Detective, taking into consideration all the items that we have gone through so lengthily . . . that being the narcotics, the scales, the semiautomatic handgun, the packaging materials, the notation on the envelope, the sifter, the beeper, and approximately $30,000 in cash—if those were all found in a residence, and based upon your training and experience, can you come to a conclusion as to the relation of the residence to narcotics trafficking?
      “A: Yes, I can.
      “Q: And can you tell us what that conclusion would be?
      “A: My conclusion, through my experience, is that that apartment was used as a drug factory, and that cocaine was being distributed from it.”

       General Statutes § 54-86Í provides: “testimony of expert witness RE MENTAL STATE OR CONDITION OF DEFENDANT. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.”


author: Per Curiam.

text:
    Peter Kramer v. Lawrence DelPonte, Commissioner of Motor Vehicles
    (9557)
    Dupont, C. J., Foti and Landau, Js.
    Argued September 24
    decision released November 5, 1991

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Santo M. Matarazzo, for the appellee (plaintiff).
   Per Curiam.

On July 21, 1988, the plaintiff was arrested for operating a motor vehicle under the influence of intoxicating liquor in violation of General Statutes § 14-227a. After being transported to the police station, the plaintiff refused to take a urine test but instead offered to submit to a blood test. He was deemed to have refused to take the urine test and was notified by the defendant that his license would be suspended for six months in accordance with § 1.4-227b. The plaintiff appealed that decision and a hearing officer upheld the suspension, finding pursuant to the limited determination of issues as set forth in § 14-227b (f) that: “The police officer had probable cause to arrest the operator for violation of Connecticut General Statutes, Section 14-227a. The operator was placed under arrest. The operator refused to submit to such test or analysis. Said person was operating the motor vehicle.”

On appeal to the Superior Court from the ruling of the hearing officer, the court found that the police did not afford the plaintiff an opportunity to contact an attorney prior to the request to take the test, and sustained the appeal. The court did not reach the issue of whether the plaintiffs offer to take an alternative test was a refusal to take the urine test. The defendant appeals from the court’s judgment.

The parties agree, as do we, that the trial court’s ruling sustaining the plaintiff’s appeal is improper because it went beyond the four limited suspension criteria set forth in General Statutes § 14-227b (f). On remand, the trial court shall determine whether the third finding of the hearing officer, that the plaintiff refused to submit to the test, was reasonably supported by the evidence.

The judgment is reversed and the matter is remanded to the trial court for a determination of the plaintiff’s appeal.


author: Lavery, J.

text:
    State of Connecticut v. Timothy Whitfield
    (10040)
    Dupont, C. J., Spallone and Lavery, Js.
    Argued September 11
    decision released October 11, 1991

      Bruce A. Sturman, public defender, with whom, on the brief, was Gilbert Shasha, for the appellant (defendant).

      John Paul Pannone, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the denial of his motion to suppress evidence pursuant to General Statutes § 54-94U. The defendant was convicted of possession of cocaine with intent to distribute in violation of General Statutes § 21a-277 (a). Prior to trial, the defendant made a motion to suppress the cocaine seized from him, which was denied. The defendant then entered a conditional plea of nolo contendere. The defendant was sentenced to a four year term of imprisonment to run consecutive to a prior sentence, for an effective sentence of sixteen years, suspended after nine years, with three years probation. The sole issue in this appeal is whether the motion to suppress evidence was properly denied by the trial court.

On September 2,1989, Officers William C. Naholnik and Robert Strohl, Jr., of the Waterford police department responded to a call of a disturbance at a toy store at the Crystal Mall. Employees of the store gave the officers a description of five individuals who were involved in the disturbance, which was created by an air rifle being pointed at people and fired. Strohl remained at the store while Naholnik went to look for the five individuals in the mall. The defendant was one of the five. When Naholnik located the individuals, one of them was carrying a shopping bag from which the barrel of an air rifle was protruding. After Naholnik examined the air rifle and determined that it was nonlethal and legally purchased, he returned it to its owner. The officer then asked the five to return to the toy store with him to resolve the complaint. They agreed. Naholnik testified that none of the five was under arrest, nor did he search anyone.

Naholnik and the five returned to the store, where they were met by Strohl and mall security personnel. The officers conducted a records check, which revealed no active arrest warrants for any of the five. It was decided that no criminal charges would be pressed, but the mall security personnel requested that the police officers accompany the five to the mall security office, where the security officers would issue a written disbarment to the five. A written disbarment would forbid them from returning to the mall.

During the records check, the names of the five were broadcast over the police radio. An officer on unrelated duty, upon hearing the name of the defendant broadcast on the radio, radioed to Strohl and Naholnik that he was aware that the defendant had been convicted of a narcotics offense. The officer further stated that he suspected that the defendant must have been released on probation or some other sort of release.

Outside the mall, Officer Patrick Chao responded as a backup to Strohl and Naholnik. Chao parked his cruiser in such a manner that he had an unobstructed view, through a glass door, into the hallway adjacent to the mall security office. Chao saw Naholnik and four of the five, including the defendant, in the hallway. Naholnik testified that, while waiting in the hallway, the defendant’s demeanor was good, and that all of the individuals were very cooperative. Strohl and mall security personnel were in the security office with the other individual. Chao testified that Naholnik appeared to be “real hot and warm in there,’’and that he saw Naholnik unbutton his coat, remove his hat and wipe his brow. The individuals with Naholnik, however, made no attempt to unbutton their coats or remove their winter hats. From prior experience, Chao knew that narcotics dealers would often hide narcotics in hats similar to those being worn by the individuals with Naholnik. This knowledge, combined with the prior radio transmission regarding the defendant’s drug conviction and Chao's opinion that the individuals were acting “really nervous” as they looked out at his police cruiser, led him to request via police radio that Naholnik check their hats for contraband.

Naholnik asked the four to remove their hats. They all did so, with the exception of the defendant. The officer again asked the defendant to remove his hat. Naholnik testified that the defendant then removed his hat and threw it at him. When the hat fell to the ground, Naholnik saw a plastic bag containing several smaller bags inside it, filled with what he believed to be cocaine. As the officer bent over to pick up the hat and the plastic bag, the defendant pushed him against the wall and fled from the hallway. The defendant was subsequently apprehended and arrested.

Parole Officer Joseph Garibaldi of the department of correction testified that, on the date of the incident and for approximately three months before, the defendant was under his supervision pursuant to the supervised home release program. Under this program, the defendant was allowed to serve his sentence for a prior conviction in the community, subject to certain conditions. The defendant signed a document entitled “Conditions of Community Release” during the course of the process that led to his release from the correctional facility. The document set forth twenty-one conditions of his release. Among the conditions were that (1) the defendant was still considered to be an inmate of the department of correction and was responsible for conforming to the rules of the department, (2) a failure by the defendant to report to his parole officer would be regarded as the crime of escape, (3) the defendant would not at any time use, or have in his possession or control, any illegal drug or narcotic, and (4) the defendant would abide by all conditions of his release. Garibaldi testified that while on supervised home release, the defendant was considered to be in the custody of and subject to search by the department of correction. He stated that, wherever the defendant was present, that place was merely an extension of the correctional facility. There was no evidence presented to indicate that on December 2, 1989, the Waterford police were aware that the defendant was on supervised home release.

The trial court denied the defendant’s motion to suppress, indicating that Naholnik had a reasonable and articulable suspicion of criminal activity, and ruling that the search of the defendant’s hat was reasonable, particularly since the defendant was a prisoner on supervised home release.

I

In denying the defendant’s motion to suppress, the trial court considered the defendant’s status as a participant in the department of correction’s supervised home release program. In its oral memorandum of decision, the court noted that, since the defendant was on supervised home release, his rights against unreasonable search and seizure “certainly don’t reach the level of any other individual.” Indeed, since the rights of an individual on supervised home release are unique in that they lie somewhere between those of a parolee and those of an incarcerated inmate, it is helpful to compare the consequences of home release status to those of parole and imprisonment.

The status of a participant in the department of correction’s supervised home release program is distinguishable from that of a person on parole. A sherman v. Meachum, 213 Conn. 38, 48, 566 A.2d 663 (1989). As our Supreme Court pointed out, supervision of the home release participant continues to be vested in the department of correction, as it is for someone who is incarcerated. Id. Conversely, a person on parole is considered to be in the custody and control of the board of parole. Id. If a participant in the supervised home release program flees from the supervision of the department of correction, he is guilty of the crime of escape and subject to the imposition of an additional sentence. State v. Lubus, 216 Conn. 402, 406, 581 A.2d 1045 (1990). In contrast, if a parolee does not comply with the supervisory conditions of his parole, he is merely returned to the custody of the department of correction for the remainder of his original sentence. Asherman v. Meachum, supra, 48-49.

The status of a participant in the supervised home release program is also distinguishable from that of someone actually in prison. As Garibaldi testified, an individual on supervised home release is simply serving his sentence in the community, and wherever the individual is present is an extension of the correctional facility. In many respects, however, an individual on supervised home release is more like a parolee than someone who is incarcerated. First, parolees do not enjoy absolute liberty under the United States constitution, but only conditional liberty, dependent on their compliance with the conditions of their release. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); State v. Smith, 207 Conn. 152, 165, 540 A.2d 679 (1988). Similarly, a person on supervised home release has only conditional liberty, subject to the conditions contained in the “Conditions of Community Release,” which he signs in connection with his release. Also, many of the rules that are necessitated by the housing of large numbers of prisoners in one location are not important in the supervised home release context. See Morrissey v. Brewer, supra, 495. Finally, although individuals on supervised home release have only conditional liberty and are subject to searches with lesser constitutional protection than the average citizen, the ability to search does not extend to all law enforcement officials. As with a parolee, only the individual’s parole officer has the right to search him when there is a mere suspicion that the individual may be violating the terms of his release. People v. Coffman, 2 Cal. App. 3d 681, 689, 82 Cal. Rptr. 782 (1969); People v. Way, 319 N.Y.S.2d 16, 21, 65 N.Y. Misc. 2d 865 (1971).

In the present case, Naholnik was bound to honor the defendant’s constitutional rights to the same degree as those of any other citizen. The scope of the defendant’s consent contained in the “Conditions of Community Release” is not broad enough to render the search of his hat valid. Naholnik was not working with Garibaldi nor did he have knowledge of the defendant’s status as a supervised home release participant at the time of the search. Accordingly, the trial court’s finding that Naholnik’s search of the hat was reasonable based on the defendant’s status as a participant in the supervised home release program was improper.

II

We will now review the trial court’s denial of the defendant’s motion to suppress evidence independent of the defendant’s home release status. The court found that Naholnik’s search of the defendant’s hat was justified by a reasonable and articulable suspicion of criminal activity. “ ‘The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.’ ” State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991); State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983).

It is well settled under both the United States and Connecticut constitutions that a police officer is allowed to detain an individual briefly for investigative purposes if the officer has a reasonable and articulable suspicion of criminal activity by the individual. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2413, 110 L. Ed. 2d 301 (1990); Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Lamme, 216 Conn. 172, 176, 579 A.2d 484 (1990); State v. Mitchell, 204 Conn. 187, 194, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); State v. Anderson, 24 Conn. App. 438, 443, 589 A.2d 372 (1991). In justifying the particular intrusion, “ ‘ “[t]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 21.’ ” State v. Cofield, supra, 45.

In order to determine whether a reasonable and articulable suspicion exists such as to justify a stop based on Terry v. Ohio, supra, and its progeny, courts must consider the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987). At the suppression hearing, the evidence showed that Strohl and Naholnik were called to the toy store to respond to a disturbance. After they discussed the matter with store employees and got descriptions of the individuals responsible for the disturbance, Naholnik went into the mall to locate them. When Naholnik located the five, stopped them, and examined the air rifle, he was clearly justified in his actions, acting pursuant to a reasonable and articulable suspicion of criminal activity. This reasonable and articulable suspicion ceased, however, after Naholnik had satisfied himself that the defendant had not committed any crime.

The state argues, and Naholnik testified, that the five were free to leave at that point since they were not placed under arrest. They were never actually told, however, that they were free to leave before they were escorted by the police officers and mall security to the security office. The test for a seizure is whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497; State v. Cofield, supra, 46; State v. Martin, 2 Conn. App. 605, 611, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). The five individuals were escorted by the police officers to the security office. They were not told that they were free to leave. This is evidence of authority strong enough to have led a reasonable person to believe that he was not free to leave. See United States v. Mendenhall, supra. As a result, the defendant was seized for an investigative detention at some point before he threw his hat at the officer, revealing the cocaine. At that point, his rights against unreasonable search and seizure guaranteed by the fourth and fourteenth amendments to the United States constitution were again implicated. State v. Cofield, supra.

It was Chao who was suspicious of the individual’s behavior. Chao saw Naholnik unbutton his coat, take off his hat, and wipe his brow while the defendant and his companions kept their hats and coats on. Chao knew from past experience that drugs were often secreted in the type of hat that the individuals were wearing, and radioed to Naholnik to check their hats. Naholnik, however, testified that the defendant was very cooperative and exhibited a good demeanor. Naholnik did not perceive it as out of the ordinary that the defendant and the other three individuals did not remove their coats and hats while waiting in the hallway on a December day. The hallway led directly to the outside, with only the glass door through which Chao looked as a barrier. We accept the facts as the trial court found them. The defendant had a prior narcotics conviction, and kept his hat on while in the mall on a December day. Chao observed that Naholnik was hot inside the mall. Chao also knew from past experience that drugs were often secreted in the defendant’s type of hat. We conclude that, although Chao did have a suspicion, as a matter of law the facts are insufficient to form the basis for a reasonable and articulable suspicion. Consequently, the search of the defendant’s hat was not justified under Terry and its progeny.

In State v. Edwards, 214 Conn. 57, 71, 570 A.2d 193 (1990), our Supreme Court examined the Terry stop and its limits. “[Cjertain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.” Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Edwards, supra. “One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. . . . Determination of the means that are reasonably necessary to maintain the status quo necessarily depends upon a fact-bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect.” State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985).

The defendant does not contest that the Waterford police had a reasonable and articulable suspicion that justified detaining him briefly. The defendant claims that the constitutionally permissible scope of the Terry-type detention was exceeded after Naholnik satisfied himself that the defendant and his four companions had committed no crime and, along with the mall security forces, escorted the defendant and his companions to the mall security office so that the mall security officers could give the defendants and his companions written notice not to return to the mall. Using the Mendenhall standard, the defendant and his companions did not believe they were free to go. The defendant’s seizure exceeded the scope of the permissible stop and required a probable cause standard for the search of the hats. “A Terry stop that is justified at its inception can become constitutionally infirm if it lasts longer or becomes more intrusive than necessary to complete the investigation for which the stop was made.” State v. Mitchell, supra, 197; State v. Edwards, supra, 72. In addition, Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 61L. Ed. 2d 357 (1979) requires “reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” The original stop was based on a disturbance in the mall with an air rifle. The question of drugs never arose. The officer may have had a suspicion when he sought a search of the defendant’s hat but it was not reasonable based on objective facts, and did not provide probable cause. See United States v. Sokolow, 490 U.S. 1, 11, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

The judgment is reversed and the case is remanded with direction to grant the motion to suppress.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in pertinent part: “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 . . . 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 . . . .”

       It is proper to examine the collective information available to all the police personnel in order to determine whether the suspicion of the officer conducting the search was reasonable and articulable. State v. Mitchell, 7 Conn. App. 46, 58, 507 A.2d 1017 (1986), rev’d on other grounds, 204 Conn. 187, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).


author: Spallone, J.

text:
    State of Connecticut v. Balfour Dunn
    (9325)
    (9326)
    Dupont, C. J., Spallone and Lavery, Js.
    Argued September 11
    decision released October 10, 1991

      Susan M. Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, was John C. Bailey, state’s attorney, for the appellee (state).
   Spallone, J.

In this combined appeal, the defendant challenges various instructions given to the jury by the trial court, raises a double jeopardy claim and contends that the evidence was insufficient to sustain his conviction for attempt to commit assault in the first degree.

The defendant’s first claim requires that we once again address the issue of whether the trial court’s erroneous instruction to the jury regarding inferences drawn from circumstantial evidence impermissibly diluted the constitutional requirement that the state prove guilt beyond a reasonable doubt and instead permitted the jury to find the defendant guilty by a preponderance of the evidence. Because we reverse the judgments of conviction due to the trial court’s erroneous instruction on circumstantial evidence and order a new trial on all charges of which the defendant was convicted, we discuss only the defendant’s claim regarding that jury instruction, and his claim concerning the insufficiency of the evidence.

The defendant was charged in two separate informations with similar offenses occurring on different dates, involving different witnesses and complainants. He appeals from the judgment of conviction on one information of robbery in the third degree in violation of General Statutes § 53a-136, larceny in the second degree in violation of General Statutes § 53a-123 (a) (3) and assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and from the judgment of conviction on the other information of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (4), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2).

The jury could have reasonably found the following facts with respect to the offenses charged in the first information. On September 10,1984, James Brown was walking toward a pay telephone at the Unity Plaza shopping center on Barbour Street in Hartford when the defendant walked up to him, grabbed him by the shirt and said, “Let me see what you got in your pockets.” The defendant felt inside Brown’s pockets and took $20 out of one of them. The defendant then punched Brown once in the jaw. As a crowd gathered, the defendant told the crowd to stand back and made a gesture with his hand that gave Brown the impression that the defendant had a gun. The defendant then left the scene.

Brown testified that he was acquainted with the defendant prior to this incident and had had a disagreement with him about two months earlier concerning a stereo cassette player that the defendant had accused Brown of taking. Brown admitted having seen the cassette player on one occasion, but denied having taken it.

The jury could have reasonably found the following facts with respect to the offenses charged in the second information. On October 13,1984, Frank Bell was in front of his apartment building on South Marshall Street in Hartford with a friend when he saw the defendant. Bell knew the defendant. The defendant made the comment, “I got it good,” which Bell interpreted to refer to drugs. The defendant followed Bell and his friend into the apartment building. The defendant then struck Bell several times on the back of the head with a gun. Bell fell to the ground, and his friend began screaming. The defendant then shot the gun toward the wall and told her to “shut the hell up.” When Bell “got sick of getting hit in the head,” he got up and pushed the defendant against a wall, causing him to drop the gun. The defendant then said, “Frank, don’t fight me. Just give me what you got.” The defendant retrieved the gun and put it to Bell’s nose, saying “Give it up.” The defendant tried to reach into Bell’s back pocket, but Bell pushed him away. The defendant then looked around and, noticing that Bell’s friend was gone, left the building.

At trial, the defendant testified. With respect to the September 10 incident involving Brown, the defendant stated that he had known Brown for some time prior to that date. The defendant accused Brown of having stolen a cassette player from him and said that Brown had agreed to reimburse him but had failed to do so. On September 10, according to the defendant’s testimony, he saw Brown at the Unity Plaza shopping center and asked him for payment. According to the defendant, Brown gave him $20, but the defendant told Brown that was not sufficient. A fight ensued between Brown and the defendant. The defendant then left the area.

With respect to the October 13 incident involving Bell, the defendant testified that he had known Bell for some time prior to that date. Two years earlier, the defendant explained, he had sold Bell some stereo equipment for which Bell had not yet paid in full. On October 13, according to his testimony, the defendant saw Bell outside the apartment building and asked if Bell was going to “take care of” him. Bell said “Yes,” and said that he would go to his apartment upstairs for a minute. The fight ensued, the defendant testified, when he felt that Bell was stalling about paying him. The defendant explained that he and Bell “just started tussling.” The defendant admitted that he pulled out the gun and hit Bell five or six times on the head with it. The defendant testified that the gun discharged accidently when he picked it up later in the fight.

In its general charge on circumstantial evidence, the trial court instructed the jury that “proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts.” The court’s instructions then included the all too familiar language that “[s]uch an inference may be made provided two elements in the application of the rule are satisfied. One, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt, and, two, that the inference that you are asked to draw, not only is logical and reasonable, but is strong enough that you can find that it is more probable than not that the fact to be inferred is true.” (Emphasis added.) The defendant argues that this instruction constituted reversible error because, he claims, intent was an important and disputed issue in both cases and that this disputed issue was, of necessity, resolved by inferences drawn from circumstantial evidence.

Because the defendant failed to file a request to charge on circumstantial evidence and failed to except to the court’s jury charge, we must first determine whether this claim is reviewable. The instruction was given in 1985, prior to our Supreme Court’s rulings in State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), and State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985). It is now clear both that the instruction is regarded as incorrect and that the defendant’s unpreserved claim is reviewable. State v. Holding, 213 Conn. 233, 567 A.2d 823 (1989); State v. James, 211 Conn. 555, 580-81, 560 A.2d 426 (1989); State v. McDonough, 205 Conn. 352, 354-56, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988).

“While we have consistently held such a charge to be erroneous, such error is not reversible unless it can be shown that it was reasonably possible that the jury was ‘misled [by the charge] to believe that they were to apply any standard other than that of “beyond a reasonable doubt” in determining the guilt of the accused.’ State v. Miller, [202 Conn. 463, 491-92, 522 A.2d 249 (1987) ]; State v. Robinson, [204 Conn. 207, 210-11, 527 A.2d 694 (1987)]; State v. Whelan, [200 Conn. 743, 756-57, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986)].” State v. Hufford, 205 Conn. 386, 407, 533 A.2d 866 (1987). “In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct evidence plays the major role.” State v. McDonough, supra, 358; State v. Banta, 15 Conn. App. 161, 179, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1083 (1988) . The reason for this distinction is that it is in only those cases where the verdict is dependent on jury consideration of circumstantial evidence that it is reasonably possible that the jury was misled by the erroneous instruction. State v. McDonough, supra, 360-61.

“If the principal disputed issue is intent, which is typically proven by circumstantial evidence, ‘ “we will closely scrutinize the court’s instructions” on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.’ ” State v. Hufford, supra, 407-408, quoting State v. Robinson, supra, 210. The defendant contends that “the crux of [his] trial strategy was to show through both cross-examination of the state’s witnesses and testimony of defense witnesses that the defendant had no intent to rob or assault Brown and Bell.” The state, on the other hand, argues that this case is controlled by our Supreme Court’s factual analysis in State v. Hufford, supra, and State v. Gonzalez, 206 Conn. 213, 537 A.2d 460 (1988), and that we must therefore review the erroneous instruction in the context of the charge as a whole.

In State v. Hufford, supra, the victim and the defendant gave different versions of the events that took place in the back of an ambulance on its way to the hospital. Although the trial court gave an erroneous instruction on circumstantial evidence, the Hufford court concluded that “the principal disputed issue in this case was not intent, but the credibility of the complainant. The defendant denied that he committed the crimes charged. The evidence produced to prove that the crime was committed was the direct testimony of the complainant. This evidence was contradicted by the direct testimony of the defendant and his version of the facts was corroborated by the testimony of . . . the ambulance driver. On this record, it is clear that the jury’s verdict depended not upon circumstantial evidence, but upon the credit it gave to the direct testimony of the complainant.” Id., 408. In State v. Gonzalez, supra, 227-28, because the ultimate factual issue was the credibility of the conflicting testimony of the witnesses and because the jury’s consideration of the credibility to be accorded the other eyewitnesses as opposed to the defendant was not dependent on circumstantial evidence, our Supreme Court reviewed the challenged instruction of circumstantial evidence in the context of the charge as a whole. Likewise, in our own case of State v. Banta, supra, where the jury had to decide whether what occurred was a robbery as the state claimed or a business deal gone wrong as the defense contended, we concluded that “intent was not the key issue at trial; instead, whether the crime occurred, an issue ‘ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role’; [State v. McDonough, supra, 358]; was the central matter for the jury to decide.” State v. Banta, supra.

While we agree that this case is very similar to Hufford, Gonzalez, and Banta, we do not believe that our decision in this case is controlled by the factual analysis in those cases. One critical feature distinguishes this case from those cases and compels us to conclude that it is reasonably possible that the jury was misled by the court’s instruction on the use of circumstantial evidence.

Although circumstantial evidence was not the only way through which the jury could determine intent based on the parties’ presentation of their cases, the trial court directed the jury to do so in its instructions. Immediately preceding the erroneous jury charge in question, the court explained to the jurors “the distinction between direct evidence and circumstantial evidence,” noting that “this is important because you are going to have to rely in some cases on circumstantial evidence, and one of the things, when we get into it, is the element of these offenses. We are going to be discussing elements of intent and the only way you can really determine what a person intended to do is by taking a look at certain facts, and then from those facts that you find proven determine what his intent was in doing those things. ” (Emphasis added.) Later in its jury-instructions, the court discussed intent as an element of each offense of which the defendant was accused. When the court discussed the element of intent with respect to the larceny count, the court explained that “[wjhen we are talking about determining intent, we are getting back to what I said about circumstantial evidence. You can’t open a person’s mind and see what he intended to do. But, you can determine what he did, and from that you can infer what he intended to do.” (Emphasis added.) When the court discussed the element of intent with respect to the assault counts, the court explained that it was “not going to go back into intent, but, how you find a person’s intent, but I did cover that for you previously, and you will use the same guidelines of determining whether intent existed here. ” (Emphasis added.) Finally, when the court discussed the element of intent with respect to the robbery counts, the court explained that “again, you are going to have to look at intent, and the intent is something you have to determine from what occurred from the other evidence.”

Because the jury was directed to determine the element of intent with respect to each offense by explicit reference to the erroneous instruction on circumstantial evidence, we must conclude that this case is more similar to the cases of State v. Rodgers, supra, and State v. Whelan, supra, in which intent was the disputed issue for the jury to decide and where the challenged instruction was therefore subject to close scrutiny, than to the cases relied on by the state. Although the underscored portions of the court’s instructions on intent are not erroneous, because they focused the jury on the element of intent through the lens of the challenged instruction, we conclude that the verdict was necessarily dependent on jury consideration of circumstantial evidence and that it was therefore reasonably possible that the jury was misled with respect to the state’s burden of proving intent beyond a reasonable doubt. State v. Whelan, supra, 758. Accordingly, we hold that, under the unique circumstances of this case, the court’s instructions on circumstantial evidence violated the defendant’s constitutional right to have the state prove him guilty beyond a reasonable doubt and requires that we order a new trial on all issues.

With the exception of the defendant’s claim regarding the alleged insufficiency of the evidence to support his conviction for attempt to commit assault in the first degree, we do not address the remaining claims because they are not likely to arise at the new trial in this matter. We must, however, address the defendant’s claim of insufficient evidence since he would be entitled to a judgment of acquittal on that charge if he were to prevail on that claim. See State v. McIntosh, 12 Conn. App. 179, 187 n.3, 530 A.2d 191, cert. denied, 205 Conn. 808, 532 A.2d 77 (1987). The defendant maintains that the state failed to present sufficient evidence to support his conviction for an attempt to commit assault in the first degree against Bell. Specifically, the defendant maintains that the state failed to prove his intent “to cause serious physical injury to another person” (emphasis added) as required by General Statutes 53a-59 (a) (1). We disagree.

“ ‘When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. ... We then determine whether the “ ‘jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” . . .’ ” (Citations omitted.) State v. Carpenter, 214 Conn. 77, 78-79, 570 A.2d 203 (1990).

The defendant argues that, because he did not shoot Bell with his operable and loaded gun despite his apparent ability to do so and instead chose to use that same gun as a club, he could not have intended to cause serious physical injury. The defendant has not provided us with any authority that would countenance such a novel argument. While an injury inflicted from a gun blast might indeed be an indication of an intent to cause a more serious physical injury, we do not agree that a pistol-whipping with an operable gun necessarily negates an intent to cause serious physical injury. Although it would have been permissible to infer that the defendant did not intend to cause serious injury to Bell from the fact that he did not shoot Bell despite the opportunity and means to do so, the evidence did not preclude the equally permissible inference that the defendant intended to cause serious injury to Bell by hitting him in the head with the gun as many as six times, causing him to fall to the ground. See State v. Montanez, 219 Conn. 16, 21, 592 A.2d 149 (1991). The jury could have reasonably concluded beyond a reasonable doubt that the defendant attempted to cause serious physical injury to Bell.

The judgments of the trial court are reversed and the cases are remanded for a new trial.

In this opinion the other judges concurred.

       We note specifically that we do not address the defendant’s double jeopardy claim because it is based on “that strand of double jeopardy jurisprudence that ‘protects against multiple punishments for the same offense.’ ” State v. Delgado, 19 Conn. App. 245, 250, 562 A.2d 539 (1989), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). His claim is not one invoking the double jeopardy protection against successive prosecutions. See State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).


author: Fott, J.

text:
    John Giannotti v. Warden, State Prison
    (9755)
    Foti, Landau and Heiman, Js.
    Argued September 12
    decision released November 12, 1991

      Louis S. Avitabile, special public defender, with whom was Denise Dishongh, for the appellant (petitioner).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher A. Alexy, assistant state’s attorney, for the appellee (state).
   Fott, J.

The petitioner appeals from the court’s denial of his writ of habeas corpus. He challenges the court’s rejection of his claim of ineffective assistance of trial counsel. He also alleges that the habeas court was incorrect in failing to conclude that there had been ineffective assistance of appellate counsel.

The defendant was tried before a jury, which heard testimony over a three day period. The jury subsequently found the defendant guilty of sexual assault in the first degree, attempted sexual assault in the first degree, assault in the second degree, conspiracy to commit sexual assault in the first degree, and unlawful restraint in the first degree. The defendant was sentenced to a term of imprisonment of twenty-one years. This court affirmed the conviction.

Thereafter, the petitioner filed a petition for a writ of habeas corpus based on (1) a claim of ineffective assistance of counsel in violation of his rights guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, (2) the denial of his state constitutional right to voir dire because of the trial court’s limitation on the scope of questioning, and (3) the. denial of his statutory right under General Statutes § 51-61 (a) to a meaningful direct appeal and the federal constitutional right of due process because of the failure to record a portion of the voir dire. After an evidentiary hearing, the habeas court denied his petition. From this ruling, the petitioner appeals.

The following facts are relevant to this appeal. Jury selection for the petitioner’s trial commenced on January 12, 1984, and concluded the following day. Three jurors were selected on the first day, and three jurors and two alternates were chosen on the second day. Subsequently, a transcript of the second day of jury selection was available, but none could be located for the first day. The habeas court found that it was common practice at the time and location of the petitioner’s trial for defense counsel to “waive the presence of the court reporter” and that defense counsel would have called for the presence of the reporter if any issues arose that required a record. Furthermore, the habeas court found that nothing significant occurred on January 12 that would have required a remand for purposes of reconstructing the record. Finally, the habeas court found no evidence that the court restricted the voir dire examination and held that any restriction that might have occurred did not affect the outcome of the trial.

It is clear from the record, and counsel agree, that the habeas court reviewed only the claim of ineffective assistance of counsel, and included as part of that review the petitioner’s claim regarding the statutory authority to waive the presence of the court reporter during voir dire proceedings. Specifically, the petitioner’s claim is that trial counsel was ineffective in failing to have a portion of the voir dire recorded, which possibly deprived him of his constitutional right to a meaningful appellate review.

In order to succeed in an appeal from the denial of a habeas writ, the petitioner must sustain a higher burden than that imposed on him in a direct appeal. Magnotti v. Meachum, 22 Conn. App. 669, 674, 579 A.2d 553 (1990). In an appeal from the denial of his habeas writ, he must prove that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Williams v. Warden, 217 Conn. 419, 422, 586 A.2d 582 (1991); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

It is agreed that there is a statutory right to have voir dire proceedings recorded. General Statutes § 51-61 (a). The petitioner claimed for the first time before the habeas court that this right is constitutional, the deprivation of which denied him a meaningful direct appeal. “A petitioner seeking a writ of habeas corpus by asserting a claim not raised on direct appeal has the burden of alleging and proving ‘by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal.’ Vena v. Warden, 154 Conn. 363, 366-67, 225 A.2d 802 (1966).” Staples v. Robinson, 193 Conn. 439, 441, 476 A.2d 580 (1984). Although on direct appeal the petitioner did not claim a constitutional right to have the voir dire proceedings recorded, the habeas court did not address whether a deliberate bypass of the proper procedure of appeal had occurred. We see no reason why the petitioner could not have advanced this constitutional claim at the time of appeal. Our Supreme Court has stated: “We are persuaded that habeas review of constitutional claims never raised in the trial court, in violation of our rules of practice, would thrust too great a burden on our criminal justice system.” Johnson v. Commissioner, 218 Conn. 403, 417, 589 A.2d 1214 (1991). “Appellate counsel would have less incentive to raise on appeal all arguable constitutional claims of the defendant if another opportunity to raise such claims were available in the habeas court.” Id., 416.

We conclude that even though the habeas court did not address the issue of deliberate bypass, the court should have applied the “cause and prejudice” standard enunciated in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), to the petitioner’s constitutional claim. In Johnson v. Commissioner, supra 417, 419, our Supreme Court adopted the federal “cause and prejudice” standard from Wainwright for habeas review of constitutional claims not raised at trial. This standard applies in cases involving procedural default, such as the failure to challenge a jury array before trial; id., 414; or failure to insist that the voir dire be recorded. The Wainwright standard requires that the petitioner show good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. Wainwright v. Sykes, supra, 84. The petitioner must establish both elements to obtain relief. Johnson v. Commissioner, supra, 419. Here, the record is clear that the petitioner failed to satisfy at least the second requirement of the Wainwright cause and prejudice standard. Thus, he is not entitled to review of his constitutional claim on the merits.

The petitioner’s second claim is limited to whether counsel’s waiver of the presence of the court reporter during voir dire fell below the standard of reasonable competence. “When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, supra, 687-88. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., 688. The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980). “ ‘What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation.’ People v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 440, 444 N.Y.S.2d 893 (1981).” Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985).

In this case, we must determine whether trial counsel’s failure to ensure the recordation of voir dire on January 12 fell below the reasonable competence exhibited by lawyers with ordinary training and skill in criminal law. Id., 639. We conclude that petitioner’s trial counsel did not fall below that standard.

The obvious purpose of General Statutes § 51-61 (a) is to ensure an adequate record on which to review the proceedings should either party seek to challenge them later. This statutory right may be waived. The habeas court found (1) that it was common practice at that time in New Haven, where the proceedings took place, to waive the presence of the court reporter during voir dire, (2) that trial counsel did so here, (3) that the reporter would have been called if any issues arose that required a record, and (4) that nothing of significance occurred, to anyone’s recollection, during the period of unrecorded voir dire.

The burden is on the petitioner to establish that counsel’s conduct falls below the Strickland standard. Quintana v. Warden, 220 Conn. 1, 5, 593 A.2d 964 (1991). The proper standard for attorney performance is that of reasonably effective assistance as measured by the bar generally. Id., 6. The petitioner has not sustained this burden. He has not demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Gulliver v. Dalsheim, 739 F.2d 104, 107 (2d Cir. 1984).

“[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’ ” Williams v. Warden, supra, 434, quoting Strickland v. Washington, supra, 690. “Judicial scrutiny of counsel’s performance must be highly deferential, and a reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Chace v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). Under the circumstances of this case, we conclude that counsel’s conduct fell within the wide range of reasonable professional assistance.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner’s claim of ineffective assistance of appellate counsel was never alleged in the habeas petition. We will not review an unarticulated claim raised for the first time on appeal. Copeland v. Warden, 26 Conn. App. 10, 13-14, 592 A.2d 477 (1991).

       For the relevant facts that the jury could have reasonably found, see State v. Giannotti, 7 Conn. App. 701, 510 A.2d 451 (1986).

       The petitioner proffers a new constitutional claim rather than a new constitutional right. A constitutional right to have voir dire proceedings recorded has not been established in this state. Because of the result reached, we find it unnecessary to determine whether recordation is a constitutional right because it is fundamental to the constitutional right to voir dire. Cf. Staples v. Robinson, 193 Conn. 439, 476 A.2d 580 (1984).

       “Prior to Wainwright, we had allowed a habeas petitioner to present constitutional claims never raised in the trial court as well as those not raised on appeal if he alleged and proved that he had not deliberately bypassed opportunities to present such claims in accordance with standard procedural rules. Walters v. Warden, 155 Conn. 316, 319, 232 A.2d 112 (1967); Vena v. Warden, 154 Conn. 363, 366, 225 A.2d 802 (1966).” Johnson v. Commissioner, 218 Conn. 403, 414 n.12, 589 A.2d 1214 (1991).

       The petitioner has not briefed his claim raised in his habeas petition that trial counsel was incompetent for failing to allege restrictions on voir dire, and we consider that claim abandoned. State v. James, 211 Conn. 555, 588, 560 A.2d 246 (1989).

       The petitioner’s arguments that perhaps trial counsel did not waive the presence of the court reporter or that the reporter was present and did not record the voir dire are as contrary to the habeas court findings as is the speculation that the voir dire had been recorded and the transcription lost.

       General Statutes § 51-61 (a) provides: “Each official court reporter, before entering upon the duties of his office, shall be sworn to faithfully perform them and shall then be an officer of the court. He shall attend the court and make accurate records of all proceedings in the court, except sessions of small claims and the arguments of counsel, provided on the request of any party, he shall make accurate records of the arguments of counsel.”