author: Dupont, C. J.

text:
    State of Connecticut v. Anthony Williamson
    (5527)
    Dupont, C. J., Daly and Norcott, Js.
    Argued November 17, 1987
    decision released April 12, 1988

      Joette Katz, public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were Robert Devlin, assistant state’s attorney, and Jack Fischer, legal intern, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that the trial court erred (1) in refusing to strike the testimony of the victim because of the state’s failure to produce her statements pursuant to Practice Book § 755, and (2) in refusing to permit the defendant access to specific privileged communications contained in the victim’s psychiatric and school records subpoenaed for use in the cross-examination of the victim. The defendant further claims that the state’s final argument at trial denied him his constitutional rights to a fair trial and to due process of law. The defendant’s first claim of error has merit and, therefore, we find error and remand the case for a new trial.

The jury reasonably could have found the following facts. The fifteen year old victim lived with her mother in an apartment building. On December 27,1985, sometime during the afternoon hours, the victim left her apartment to go shopping with $50 her mother had given her. Instead of going immediately to shop, the victim went to visit a friend who lived on the third floor of a nearby apartment building. Upon discovering that her friend was not at home, the victim walked back down the stairwell to exit the building. When she had reached the bottom of the stairwell, a man grabbed her from behind and asked her if she had any money, to which the victim responded that she did not. Thereupon, the assailant pulled a gun from a gym bag he was carrying and held it behind the victim’s ear. At this time, the victim recognized her assailant as the defendant, whom she had known for approximately ten years. The defendant proceeded to search the victim, whereupon he discovered the $50 in her right jeans pocket. The defendant took the money, slowly backed away from the victim, and told her that if she told anyone about the robbery she would be hurt.

The victim reported the incident to the police on the telephone, but did not tell the police that the robber’s name was that of the defendant until a police officer arrived at her home to investigate the incident. A short time later, the victim was transported to the New Haven police headquarters where she gave a taped statement and selected a photograph of the defendant from a book provided by the police.

At trial, the defendant claimed that the victim tried to lure him to a romantic rendezvous at her sister’s vacant apartment. The defendant testified that the victim gave him a package of cocaine to bring to the apartment but instead he kept the cocaine. When the victim realized the defendant was not interested in a sexual interlude, she told him that she “knew how to handle it.” According to the defendant, the victim was seeking revenge and fabricated the robbery incident.

The defendant first argues that the trial court erred in refusing to strike the victim’s testimony because of the state’s failure to produce her statements pursuant to Practice Book § 755.

The' following facts are relevant to the defendant’s claim. The victim first informed the state about the incident when she telephoned the New Haven police department using the 911 emergency number. The tape recording of this call was erased, in accordance with standard police procedure, approximately thirty-eight days after the alleged robbery. Following the 911 call, the victim was brought to the police station where Officer Whitney Epps took a taped statement. The victim was asked questions by him, which questions were spoken into a tape recording device. After each question, the officer turned off the machine and waited for the victim’s response. He then reactivated the machine and repeated her answer to each question into the tape recorder immediately after her response. No notes were taken during the taping procedure. The officer did not ask the victim to listen to the tape to confirm its accuracy. As was standard police practice, the tape was brought to a stenographer to type and the tape was thereafter destroyed. The officer testified that the policy of erasing tapes changed in December of 1985 while he was on vacation, that he had received a notice upon his return to that effect, but that he did not tell the typist to save the tape after it had been transcribed. The victim was never asked by the police to review the transcript of her statement. The victim first saw the transcript one day before the day of the trial and at trial attested to its accuracy.

The defendant moved to strike the victim’s testimony due to the destruction of the 911 tape and of her taped statement. The trial court denied the defendant’s motion, stating: “I think that with respect to the culpability of the police department, I don’t believe that there was any intentional destruction of the tapes; there was no order to preserve the tapes. They were destroyed and it would be better if they had not been destroyed, but I don’t believe there was any intention to thwart justice or to violate any rights of the defendant. But the principal thing, and I don’t believe there was any substantial prejudice visited upon the defendant as a result of . . . our inability to have these tapes and other papers at the time of trial. The ultimate decision here is with respect to the jury and it was amply pointed out by counsel . . . and in the evidence that the tape had been destroyed, that there were discrepancies in the statements and it comes down to the bottom line that it’s up to the jury to decide whether they’ll believe the witness or not. And all of these other tapes and other things are simply ancillary to the defendant being able to pinpoint other discrepancies. And in my judgment, this has been done adequately so I don’t think there’s any substantial prejudice to the defendant at all. And of course the extreme remedy that the defendant is seeking I don’t think is warranted at all by what is offered here, so I’m going to overrule [the defendant’s] motion to strike the testimony [of the victim]. With [that] . . . testimony still in, I think that there’s sufficient evidence for the matter to go to the jury. So I will overrule [the defendant’s] . . . motion to [strike].”

The discovery of prosecution witnesses' statements is governed by General Statutes § 54-86b, which provides in pertinent part: “In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.” This statutory provision is complemented by Practice Book § 752, which provides that “[a]fter a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

The preliminary question that this court must address is whether the 911 tape and the tape recording are encompassed by the disclosure provisions of General Statutes § 54-86b and Practice Book § 752. In order for material to fall within these disclosure provisions, they must qualify as “statements” within the meaning of § 752. The 911 tape and the tape recording qualify as “statements” pursuant to Practice Book § 749 (2), which provides that the term “statement” includes a “stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the meaning of such oral statement.”

There are four remaining requirements in order for the mandates of General Statutes § 54-86b and Practice Book § 752 to apply and thereby compel discovery. First, the witness whose prior statements are sought, must have been a witness for the prosecution and must have testified under direct examination. This condition is clearly met in this case. Second, the defendant must make a motion to the trial court for production of the witness’ statement. The defendant has satisfied this condition. Third, the statements must relate to the subject matter about which the witness has testified. There is no dispute that this condition is also satisfied. Finally, the statements sought to be produced must be in the possession of the state or its agents. Although the 911 tape and the tape recording have been destroyed, they were originally in the possession of the New Haven police department, agents of the state. The provisions of § 54-86b and § 752, therefore, encompass the 911 tape and the tape recording.

The provisions of General Statutes § 54-86b and Practice Book §§ 748 et seq. are mandatory. State v. Gonzales, 186 Conn. 426, 431-32, 441 A.2d 852 (1982). Statements of potential witnesses which may be required to be produced and made available to the defense in a criminal trial must be preserved. State v. Myers, 193 Conn. 457, 468, 479 A.2d 199 (1984). In this case, it was foreseeable by the state and its agents that the victim’s recorded statements would be required to be produced in the event of a trial. The police, therefore, were required to preserve the statements under the mandates of State v. Myers, supra. We emphasize that the destruction of the tapes in this case occurred fourteen months after the decision in State v. Myers, supra, a case which was decided in June, 1984. The 911 tape and the victim’s recorded statements in this case were made in December, 1985, and destroyed sometime in February, 1986, by the same police department as was involved in Myers. The question, then, that we must decide is whether such destruction was done in bad faith; see, e.g., State v. Santangelo, 205 Conn. 578, 590, 534 A.2d 1175 (1987); State v. Mullings, 202 Conn. 1, 9-10, 519 A.2d 58 (1987); and, if so, whether the defendant was prejudiced from the nondisclosure sufficient to warrant reversal of his conviction. State v. Milum, 197 Conn. 602, 616, 500 A.2d 555 (1985).

The intentional destruction of tapes occurring prior to the decisions in Myers and Milum does not constitute bad faith as long as a verbatim transcript has been preserved. State v. Mullings, supra. The Mullings court articulated the rationale underlying the rule: “Myers could reasonably have been interpreted as excusing the erasure of tapes as long as a verbatim transcript was preserved. In State v. Milum, supra, 614-17, however, we reiterated our disapproval of the destruction of discoverable material even though in that case a transcript had been made from the tape which subsequently was erased.” State v. Mullings, supra, 9. The destruction of the tapes in this case occurred three months after the decision in State v. Milum, supra, a case which was decided in November, 1985.

The precise question which must be decided here is whether the destruction of tapes occurring subsequent to the decision in Milum, as happened in the present case, may be viewed as having been done in bad faith. Our appellate courts have not defined “bad faith.” We are aware, however, that it has recently been decided that where the loss of tapes was the result of negligence, the destruction is not viewed as having been done in bad faith. State v. Palmer, 206 Conn. 40, 59, 536 A.2d 936 (1988) (tapes were “inadvertently lost through carelessness”). In such a case, “the question then becomes to what extent, if any, the defense was prejudiced by their loss. State v. Myers, supra, 469; State v. Shaw, [185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982)].” Id.

The present case does not involve negligent destruction but, rather, involves intentional destruction. We are aware that the trial court stated that it did not “believe that there was any intentional destruction of the tapes . . . .’’When we read this statement in the context of the court’s entire oration on the matter, it becomes apparent that the trial court gave a meaning to the word “intentional” different than its ordinary usage. In saying that the tapes were not intentionally destroyed, the trial court meant that the New Haven police department did not maliciously destroy the tapes intentionally to thwart justice or to violate the defendant’s rights. The ordinary meaning of “intentional destruction” is a destruction with an intent to destroy, on purpose, with design to achieve the result of destruction. See Webster, Third New International Dictionary. This is the meaning which we have given to the words and the meaning which our cases give to the words. See e.g., State v. Shaw, supra, 386.

It is beyond question in this case that the tapes were not destroyed as the result of accident. Nor did the trial court find the destruction of the tapes to be negligent. In fact, it stated directly that “there was no order to preserve the tapes.” Unlike the loss of the tapes in State v. Palmer, supra, the destruction here was not through inadvertence, carelessness or mistake. Rather, all of the evidence indicates that at the time the typist destroyed the tape recording made by Epps, she erased that particular tape with the specific intent that it be erased so that it could be reused. Similarly, the 911 call tape was erased pursuant to police practice so that it could be reused. We, therefore, do not dispute any of the factual findings made by the trial court even though we conclude that the tapes were intentionally destroyed. The 911 call tape and the tape recording made by Epps were both destroyed in accordance with standard police procedures.

It is important to note that the destruction of the witnesses’ statements by the New Haven police department was the subject of controversy in State v. Myers, supra, decided in June 1984; and State v. Mullings, supra, decided in January, 1987. The destruction of the tapes in this case by the New Haven police department occurred in February, 1987. We also note that subsequent to the previous cases cited, and subsequent to the destruction of the tapes in this case, the destruction of a witness’ statements by the New Haven police department was the subject of controversy in State v. Santangelo, supra, decided in December, 1987.

The mandatory provisions of the rules of practice and the General Statutes have been rendered ineffective by the state’s intentional conduct in erasing discoverable material after sufficient and exhaustive warnings to comply with these provisions have been issued. Such violations can no longer be considered conduct performed in the absence of bad faith. See, e.g., United States v. Bufalino, 576 F.2d 446, 449 (2d Cir.), cert. denied, 439 U.S. 928, 99 S. Ct. 314, 58 L. Ed. 2d 321 (1978). “While we have decided that the special circumstances of the instant case militate against reversal on this ground, we will look with an exceedingly jaundiced eye upon future efforts to justify non-production of a . . . ‘statement’ by reference to ‘department policy’ or ‘established practice’ or anything of the like. There simply is no longer any excuse for official ignorance regarding the mandate of the law.” Id.

The destruction in this case exhibits a reckless disregard for the defendant’s rights under General Statutes § 54-86b, Practice Book §§ 751 et seq. and our Supreme Court’s decisions in State v. Myers, supra, and its progeny. We conclude, therefore, that such destruction exhibited bad faith.

Where, as here, the destruction is done in bad faith, the only relevant question becomes what prejudice, if any, the defendant suffered as a result of the unavailability of the 911 call tape and the tape recording. See, e.g., State v. Santangelo, supra. Ordinarily, the burden of establishing prejudice is a burden appropriately placed upon the defendant. State v. Palmer, supra, 57. The destruction of the tapes in this case, however, constitutes bad faith and, therefore, the burden effectively shifted to the state to show that the defendant was not prejudiced by the erasure of the tapes. Cf. State v. Thurman, 10 Conn. App. 302, 313, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987) (where the trial court’s instructions resulted in total noncompliance with a statutory provision, the state must prove that such noncompliance was harmless).

Our rules of practice are substantially patterned after those of the federal Jencks Act, 18 U.S.C. § 3500. State v. Shaw, supra, 385-86. The conclusion that the burden is on the state to show lack of prejudice is supported by federal cases interpreting the Jencks Act. The Court of Appeals for the Second Circuit, in United States v. Bufalino, supra, 449, stated: “Where, as here, destruction is deliberate, sanctions will normally follow [see United States v. Miranda, 526 F.2d 1319, 1324 n.4 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S. Ct. 69, 50 L. Ed. 2d 82 (1976) (listing possible sanctions)] irrespective of the perpetrator’s motivation, unless the Government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant.” See also United States v. Carrasco, 537 F.2d 372, 376-79 (9th Cir. 1976); Krilich v. United States, 502 F.2d 680, 685-86 (7th Cir. 1974), cert. denied, 420 U.S. 992, 95 S. Ct. 1429, 43 L. Ed. 2d 673 (1975); cf. Goldberg v. United States, 425 U.S. 94, 111 n.21, 96 S. Ct. 1338, 47 L. Ed. 2d 603 (1976) (“[s]ince courts cannot ‘speculate whether [Jencks material] would have been utilized effectively’ at trial . . . the harmless error doctrine must be strictly applied in Jencks Act cases”). Therefore, the failure of the New Haven police to preserve the tapes of the 911 telephone call and the tape recording required the trial court to strike the testimony of the victim unless the state demonstrated that no prejudice resulted to the defendant.

The state has not met its burden of showing no prejudice occurring to the defendant from the erasure of the tapes. This is a case in which the victim’s testimony was inconsistent with what she believed she had told investigating police officers about the alleged robbery incident. Furthermore, the victim’s testimony as to certain events contradicted the testimony of the officers with whom she had spoken shortly after the incident as to those same events. The defendant argues that because the testimony revealed inconsistencies and contradicted other witnesses’ testimony, the 911 call and the tape could have provided the most concrete sources of impeachment on cross-examination of the victim. The defendant further claims that although it is difficult to speculate as to the precise content of the erased tapes, other evidence at trial indicated that each time the victim reiterated the events, her description varied.

The state does not dispute that inconsistencies in the victim’s testimony occurred nor does it dispute that there were contradictions between the other witnesses’ testimony and that of the victim’s. Rather, the state emphasizes that alternative sources of impeachment were utilized by the defendant at trial. The state correctly notes that the defendant had access to reports from all three of the officers with whom the victim had spoken about the incident. The defendant had the report of the three officers, as well as the transcribed, adopted statement of the victim. The defendant used the inconsistencies in all of these reports to impeach the victim. The state claims, therefore, that these alternative sources of impeachment defeat the defendant’s claim of prejudice. See State v. Milum, supra, 618.

Although the defendant did have some impeachment material with which to conduct his cross-examination, it is undisputed that the victim’s version of the events varied each time she relayed it. The tape recording of the victim’s interview with the police officer was the longest and presumably the most thorough description of the incident given outside the courtroom, and might have provided the defendant with a source of impeachment more concrete than the transcript which was never signed by the victim and first seen by her six months after the interview. Furthermore, no duplication of the 911 tape existed and no one other than the victim herself could testify about its content.

The inconsistencies are extensive. The existence of some impeachment material, therefore, does not eliminate the need for the victim’s prior statements. The state has not met its burden of showing that the defendant was not prejudiced by the erasure of the tapes. We hold, therefore, that the trial court erred in not striking the testimony of the victim pursuant to Practice Book § 755.

Because a new trial is ordered, we need not address the remaining claims of error raised by the defendant. State v. Crane, 169 Conn. 242, 246, 362 A.2d 843 (1975).

There is error, the judgment of conviction is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Practice Book § 755 provides: “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in its discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”

       These four criteria are extrapolated from the express language of the disclosure provisions set forth in General Statutes § 54-86b and Practice Book § 752.

       A reading of the new transcripts indicates that the court found the destruction of the 911 call tape not to have been a malicious destruction of evidence but, rather, destruction pursuant to a routine procedure of erasing and then reusing 911 tapes as a means of reducing costs.

       The state contends that the tape recording made by Epps was not destroyed pursuant to a standard police practice because the policy of erasing taped statements given at the police station had changed in December, 1985, to comport with the requirements of State v. Myers, 193 Conn. 457, 468, 499 A.2d 199 (1984), requiring an officer to save tapes even where verbatim transcripts had been made. We disagree. The transcripts demonstrate that (1) Epps received a notice that tape recordings of a potential witness’ statements should not be erased but preserved, (2) Epps failed to tell the typist who transcribed the victim’s statement to preserve the tape, and (3) in accordance with the previous long-standing practice of erasing tapes for reuse, the typist erased the tape. It is evident that at the time the tape was destroyed, the policy and accompanying order to erase tapes after their transcription was still in effect, unreplaced by the authority of a new policy. In order for there to be an actual change in policy, the change must be made known to those responsible for its enforcement and effectuation. Therefore, until a new order mandating the preservation of taped statements was sufficiently made known to all individuals responsible for such preservation, the new policy was not yet in effect. Accordingly, the tape recording made by Epps was destroyed pursuant to a standard police procedure of erasing tapes for subsequent use.

       In the absence of bad faith, the appellate courts will employ the balancing test set forth in State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982), to determine whether the trial court erred in refusing to strike the testimony. That test weighs the culpability of the state for its failure to make disclosable material available on the one hand, against any resulting prejudice to the defendant on the other. State v. Mullings, 202 Conn. 1, 10, 519 A.2d 58 (1987). Even though it is the actions of a police department that may result in the unavailability of a witness’ statement, the state is ultimately responsible for such loss and, therefore, the cases speak of the culpability of the state rather than solely the culpability of the police department. In this case, similarly, although the New Haven police department destroyed the tapes in reckless disregard for the defendant’s rights, we attribute the conclusion of bad faith to the state.

       The defendant invites this court to adopt a per se rule of reversible error in view of the presence of bad faith. We decline to accept the defendant’s invitation. Prejudice to the defendant is an indispensible element for a finding of reversible error because access to the statements of witnesses for the prosecuting authority is not a constitutional right. See State v. Palmer, 206 Conn. 40, 57, 536 A.2d 936 (1988); State v. Myers, 193 Conn. 457, 469 n.7, 479 A.2d 199 (1984).

       In State v. Santangelo, 205 Conn. 578, 590, 534 A.2d 1175 (1987), the court concluded that where the failure to preserve tapes is not the result of maliciousness or bad faith, the defendant must demonstrate a realistic possibility of prejudice in the cross-examination of the witness resulting from the erasure of the tapes in order to show reversible error.

       We are aware that in State v. Santangelo, 205 Conn. 578, 534 A.2d 1175 (1987), it was recently held that the routine destruction of a tape recording of a telephone call requesting police assistance, although inexcusable, did not prejudice the defendant. Id., 588-89. This case, however, is different from Santangelo, in three major respects.
      First, Santangelo did not involve bad faith. Therefore, not only did the court apply a balancing test which considers both the culpability of the state and the prejudice to the defendant; see footnote 5, supra; but it also placed the burden of showing prejudice upon the defendant, see footnote 7, supra. In this case, because we conclude that the state acted in bad faith, we consider solely the question of prejudice to the defendant and place the burden upon the state to show that the defendant was not prejudiced by the destruction of the tapes.
      Second, the reasons that the court gave for its decision in Santangelo do not apply here. In Santangelo, the court noted that (1) only a short period of time had elapsed since State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984), (2) a police report concerning the subject of the call for assistance was available, and (3) the crime involved was in the jurisdiction of another police department. In the present case, to the contrary, we note that (1) fourteen months had elapsed between the decision in State v. Myers, supra, and the intentional destruction of the tapes, (2) no police report concerning the subject of the 911 call was available to the defendant, and (3) the transmission of the 911 call and the related crime occurred in the jurisdiction of the same police department.
      Third, and most important, the defendant in Santangelo merely stated in his brief that the destruction of the tape recording of the call for police assistance made by the witness “deprived him of an essential tool for cross-examination.” State v. Santangelo, supra, 588-89. The defendant did not make any statement as to what might have been divulged had the tape been produced, nor as to how he was possibly prejudiced. Id., 589. In this case, however, the defendant set forth in detail the inconsistencies in the witness’ testimony and how the erasure of the 911 call tape deprived him of a concrete source of impeachment, especially in light of the fact that no notes nor reports had been made relating to the call. In fact, the trial court admitted that “there were discrepancies in the statements.” Accordingly, the result in Santangelo does not control here.

       The state also argues that the 911 emergency calls should be excepted from the mandates of Practice Book §§ 751 et seq., because the purpose of such an emergency system is not the prosecution of criminals but, rather, the protection of public safety. We do not agree with this proposition. When the 911 emergency telephone number is used by a member of the public to report a crime, the recording may relate to the investigation, apprehension, and prosecution of suspects of a crime as well as to the protection and aid of the victim of such crime. The burden of the maintenance and preservation of 911 call tapes is outweighed by the gains associated with fair trials and compliance with our practice book provisions. See United States v. Bufalino, 576 F.2d 446, 450 (7th Cir.), cert. denied, 439 U.S. 928, 99 S. Ct. 314, 58 L. Ed. 2d 1321 (1978).

       The defendant raises the claim that he is entitled to discovery of the victim’s psychiatric and school records for the purpose of impeachment on cross-examination. Ordinarily, evidentiary issues will be reviewed if such issues are likely to arise at a new trial. See, e.g., State v. Vinal, 198 Conn. 644, 652-53, 504 A.2d 1364 (1986); Devita v. Esposito, 13 Conn. App. 101, 112, 535 A.2d 364 (1987). The evidentiary issue involved here, however, will not arise at a new trial and therefore we will not address it on the merits. In this case, the defendant argues that this court must award him access to specific privileged communications, e.g., the psychiatric and school records of the victim, for use in the cross-examination of the victim at the new trial. Our disposition of the defendant’s first claim of error negates the need for access to the requested records. At the new trial the victim will not be allowed to testify on behalf of the prosecution because her testimony should have been striken pursuant to Practice Book § 755. Since her testimony will be barred, there is no need for cross-examination of the witness and, hence, no need for access to records for the purpose of impeachment of the victim upon cross-examination.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Ronald Adams
    (6041)
    Spallone, Daly and Norcott, Js.

      Argued January 20
    decision released April 12, 1988

      Dennis F. O’Toole, assistant public defender, for the appellant (defendant).

      Joseph C. Morelli, special assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, larceny in the fourth degree in violation of General Statutes § 53a-125, and tampering with a motor vehicle in violation of General Statutes § 53a-119b (c) (2).

The defendant claims that the evidence adduced at trial was insufficient to support the jury verdict convicting him of the crimes charged. The defendant further claims that the trial court erred (1) in refusing to allow him to present foundation testimony for a “missing witness” instruction to the jury, (2) in refusing to grant his motion for mistrial due to the prosecutor’s reference to his prior criminal convictions as relating to guilt during the state’s final argument, and (3) in reopening, sua sponte, his sentence and resentencing him on that very same day. We find no error.

; From the evidence produced at trial, the jury could reasonably have found the following facts. On the evening of December 13,1986, Ephram Torres and Kevin Williams observed the defendant sitting in a small white car which was parked in the rear parking lot of 85 Sumner Street in Hartford. Williams did not testify at trial, but Torres testified that he observed the defendant in the driver’s seat with his left hand on the steering wheel and with a screwdriver in his right hand which was near or on the ignition. The dome light of the car was on at the time of Torres’ observation. Believing that the defendant was calling to him, Torres approached the vehicle. Thereupon, the defendant exited the vehicle and struck Torres. A fight ensued between the two men. While Williams unsuccessfully tried to separate the combatants, a large crowd gathered prompting someone to call for the police.

Officer John Cunningham of the Hartford police department responded to the scene of the fight. During the course of his investigation that night, he observed that the identification number of the small white vehicle matched that of a vehicle reported stolen almost one month earlier by Lynn Olsen, another Hartford resident. Cunningham also noticed that the ignition had been “popped” or forcibly removed from the vehicle. The defendant was arrested and charged with the three crimes of which he was convicted.

The evidence presented at the defendant’s trial included the testimony of Olsen to the effect that some time between late evening November 11 and early morning November 12,1986, her white 1976 Ford Maverick was stolen from the parking lot of her apartment building on Asylum Street in Hartford. She testified that at the time of its disappearance, the car was locked, physically intact and in excellent condition. When she next viewed her vehicle on December 14,1986, she observed that the locks to the trunk, driver’s door and glove compartment and the ignition all had been “popped.” In addition, the driver’s door had been damaged, and the new set of tires which she had recently installed prior to the theft were badly worn.

Olsen also testified that she transferred the title to the vehicle to her insurance carrier which paid her $816 based on the “Blue Book” value of the vehicle and $100 for the stolen contents of the vehicle.

During the state’s closing argument, the state’s attorney made the following remarks in reference to the defendant: “Well, he’s indicated he’s no stranger. He knows his way around the criminal scene. He indicated on the record there he has a felony record.” The defendant promptly objected to the prosecutor’s remarks, and the court gave an immediate cautionary instruction to the jury after which it denied the defendant’s motion for a mistrial.

Thereafter, the defendant was convicted as charged. On the morning of the sentencing, April 22,1987, the trial court sentenced the defendant as follows: for burglary in the third degree, three years; for larceny in the fourth degree, one year consecutive to the previous sentence; and, for tampering with a motor vehicle, one year consecutive to the two prior sentences for a total effective sentence of five years. In the afternoon of that same day, the court recalled the defendant, vacated the previous sentence and resentenced the defendant as follows: for burglary in the third degree, five years; for larceny in the fourth degree, one year concurrent; and for tampering with a motor vehicle, one year concurrent for the same total effective sentence of five years. This appeal followed the resentencing.

I

The defendant first makes a wholesale attack on the sufficiency of the evidence supporting the jury verdict. “In reviewing allegations of insufficient evidence, we will not evaluate the evidence nor will we resolve questions of the credibility of the witnesses. State v. McCarthy, 197 Conn. 166, 179, 496 A.2d 190 (1985). We review the evidence in the light most favorable to sustaining the jury’s verdict. State v. Dickson, 10 Conn. App. 462, 464, 523 A.2d 935 (1987).” State v. Hendrickson, 12 Conn. App. 662, 670, 533 A.2d 894 (1987).

With respect to the charge of tampering with a motor vehicle, the defendant claims that the state failed to provide sufficient evidence from which the jury could have found the defendant guilty under General Statutes § 53a-119b (c) (2). The essence of the defendant’s claim is that there was no evidence in the record to prove that the defendant had any intent to do damage to the car or, in fact, did any damage to the vehicle on December 13, 1986, the date charged in the information. We disagree.

The sole witness at the trial to the acts of the defendant on December 13, 1986, was Torres. Torres testified that on the night in question he saw the defendant “playing with the steering wheel of the car with an object that looked like a screwdriver.” He also testified that he saw the defendant “playing with an object on the steering wheel” and “his [the defendant’s] left hand was holding the steering wheel and his right hand was on the ignition switch.” The jury also heard testimony from the investigating officer who testified that he “observed the ignition popped.” The owner of the vehicle testified that her car, the 1976 white Ford Maverick, was locked at the time it was stolen on November 12, 1986, and when she next saw the car, all the locks were popped and other damage was evident as well.

“The jury can draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985).” State v. Greene, 11 Conn. App. 575, 579, 528 A.2d 855 (1987). “An individual’s intention may be inferred from his or her conduct; State v. Smith, 157 Conn. 351, 354, 254 A.2d 447; Kiernan v. Borst, 144 Conn. 1, 6, 126 A.2d 569; and intent is usually established by circumstantial evidence. State v. Sul, 146 Conn. 78, 87, 147 A.2d 686; State v. Nathan, 138 Conn. 485, 488, 86 A.2d 322.” State v. Avila, 166 Conn. 569, 579, 353 A.2d 776 (1974). The question of intent is purely a question of fact to be determined by the jury. See State v. Miller, 202 Conn. 463, 486, 522 A.2d 249 (1987); State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984). In this case, the evidence was sufficient, if believed by the jury, to establish that the defendant not only intended to “damage or remove a component part of a motor vehicle” within the meaning of General Statutes § 53a-119b (c) (2), but that he actually did so.

Furthermore, we find no merit in the defendant’s claim that the crimes charged need be proven to have been committed on the precise date of the defendant’s arrest. Such precision is not required “provided it is proved (1) that the crime was committed prior to the date of the complaint, (2) that the crime was committed within the period fixed by the statute of limitations, (3) that time is not an essential element of the crime charged, and (4) that the time is not otherwise a material factor in the defendant’s case. State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 (1945); see State v. Ramos, 176 Conn. 275, 276-77, 407 A.2d 952 (1978); State v. Bitting, 162 Conn. 1, 8, 291 A.2d 240 (1971).” State v. Bowman, 3 Conn. App. 148, 155, 485 A.2d 1343 (1985). Our review of this record reveals that the state clearly proved the first two elements under Bowman and that time was neither an essential element of the crimes charged nor a material fact in the defendant’s case.

With respect to the conviction for larceny in the fourth degree, the defendant claims that there was insufficient evidence produced at trial upon which the jury could determine the market value of the car at the time of the crime or the replacement value within a reasonable time after the crime. It is the defendant’s contention that the state failed to introduce valuation evidence to conclusively establish the market value of the vehicle to be at least $500. We again disagree.

Under General Statutes § 53a-125 (a), “a person is guilty of larceny in the fourth degree when he commits larceny . . . and the value of the property . . . exceeds five hundred dollars.” Olsen testified that she received from her insurance carrier “Blue Book” value of $816 for the car and $100 for personal items stolen from within the vehicle. She further testified that she considered the amount received to be low due to the “excellent shape” of the car at the time of the theft. A victim’s opinion as to the value of his stolen property may properly be placed before the jury. See State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985). Our Supreme Court has recently commented in this regard: “The law in this state is well settled as to the competency of the owner of property to testify as to its value. ‘Our cases have ruled that the competence of the witness to testify to the value of the property may be established by demonstrating that the witness owns the property in question. . . . This rule is applicable in civil as well as criminal cases.’ (Citations omitted.) State v. Baker, 182 Conn. 52, 60-61, 437 A.2d 843 (1980); State v. Gabriel, 192 Conn. 405, 424, 473 A.2d 300 (1984).” State v. McCarthy, supra, 172. From the trial testimony of Olsen the jury could have reasonably concluded that the market value of her 1976 Ford Maverick exceeded $500 at the time of the crimes.

The defendant’s final contention regarding the insufficiency of evidence involves the conviction for burglary in the third degree in violation of General Statutes § 53a-103. The defendant’s argument takes two forms: (1) that the conviction for burglary in the third degree was based on insufficient evidence of the defendant’s intent to commit a crime inside a “building” as defined by General Statutes § 53a-100 (1); and (2) that to charge the defendant with the crime of burglary in the third degree, a felony, for the theft of a motor vehicle valued less than $1000, a misdemeanor under Public Acts 1986, No. 86-275, is inconsistent with the legislative intent of this recent legislation. We disagree.

It is now well settled that a motor vehicle is included within the definition of “building” under General Statutes § 53a-100 (l). State v. Baker, 195 Conn. 598, 600-603, 489 A.2d 1041 (1985). The first prong of the defendant’s argument must fail if we conclude that there was sufficient evidence in the record to support a conviction for a crime committed inside the vehicle. Since we have concluded that the jury could reasonably have found that the defendant tampered with a motor vehicle within the meaning of General Statutes § 53a-119b (c) (2), we find the first part of this claim to be without merit. Indeed, under the burglary statute it is sufficient that the jury find only that the defendant intended to commit a crime within the vehicle. Torres’ testimony that he saw the defendant physically seated within the Olsen vehicle with a screwdriver in his hand near the “popped” ignition clearly establishes a basis from which the jury could draw reasonable inferences and conclude that the defendant had entered or remained unlawfully inside that vehicle with the intent to commit a crime, in this case tampering with a motor vehicle.

The defendant’s second claim is that “as a matter of law . . . entering a motor vehicle to illegally obtain possession of that motor vehicle is a larceny only and not concomitantly a burglary.” We need not address this issue because, in committing the burglary in this case, the defendant did not necessarily intend to steal the automobile. There was evidence at trial from which the jury could reasonably have concluded that the defendant entered the automobile with the intent to remove the possessions within the vehicle. The jury could also have concluded that the defendant intended to damage the component parts within the vehicle without taking the vehicle itself. Accordingly, the jury could reasonably have convicted the defendant of both burglary and larceny without finding that the defendant intended to take the automobile when he first entered.

II

The defendant next claims that the trial court erred in failing to allow the defendant to present foundation testimony for an instruction to the jury that they could draw an adverse inference due to the state’s failure to produce a material witness. The “missing witness” in question was Williams, who was with Torres on the night of December 13, 1986.

At trial, by way of an offer of proof, the defendant called as a witness Frank DeDominicis, an investigator with the office of the public defender in Hartford. The investigator testified that while he never saw or met Williams, he spoke by phone to a person who identified himself as Williams approximately two months before the trial. The investigator further testified that, although Torres had provided Williams’ phone number, he never independently verified that Williams was the person with whom he spoke. The trial court refused to allow DeDominicis’ testimony, and the court thereafter refused to give the “missing witness” or the so-called Secondino instruction to the jury.

The standards for determining whether a party is entitled to a Secondino instruction and the rule itself are clear. “ ‘The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). ‘There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce.’ Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960); see D’Amico v. Manson, 193 Conn. 144, 153, 476 A.2d 543 (1984); Doran v. Wolk, 170 Conn. 226, 230, 365 A.2d 1190 (1976). ‘To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it. State v. Carrione, 188 Conn. 681, 688, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983).’ State v. Amarillo, [198 Conn. 285, 307, 503 A.2d 146 (1986)].” State v. Hart, 198 Conn. 424, 428, 503 A.2d 588 (1986). Thus, under one part of the rule, it is the defendant’s burden to show that the missing witness is one whom the state would naturally produce. “ ‘ “A possible witness whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered should be dispensed with on the general ground of expense and inconvenience, without anticipation that an inference may be invoked.” ’ State v. Carrione, supra, 688, citing State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975).” State v. Alfonso, 195 Conn. 624, 632, 490 A.2d 75 (1985).

From our careful review of this record, we conclude that the trial court did not err in refusing to give the Secondino instruction. The witnesses produced at trial were sufficient to establish each and every element of the crimes charged. Given the testimony produced at trial, the defendant failed to demonstrate why Williams was a witness whom the state would naturally produce. We conclude that the trial court’s finding that Williams’ testimony would have been “comparatively unimportant, cumulative or inferior to what has been offered” is supported by the record and accordingly the defendant was not entitled to a Secondino charge.

Ill

The defendant also claims that the trial court erred in denying the defendant’s motion for mistrial due to the prosecutor’s improper reference to the defendant’s criminal convictions during his final argument.

During the state’s final argument, the following remarks were made by the state’s attorney: “Well, ladies and gentlemen, you’ve seen the state’s witnesses: Mr. Torres; the owner of the car, Ms. Olsen; listened to their testimony; seen the accused get on the stand. You know, he says, the ignition wasn’t popped before it got there. He doesn’t know anything about this. All these strange things. Well, he’s indicated he’s no stranger. He knows his way around the criminal scene. He indicated on the record that he has a felony record.” The defendant objected and the court immediately gave this cautionary instruction to the jury: “Counsel are reminded. I’ll tell the jury. Introduction of evidence of a prior conviction is solely to test the credibility of the witness. It has no other purpose than to bring to the jury a factor which the jury may consider if it wishes, on the issue of credibility. You may continue.” The prosecutor’s next words to the jury are also relevant to our discussion here. He continued: “So you can weigh this — balance this testimony between the accused. Who’s telling the truth here about what went on. Is it the officer, Mr. Torres and Ms. Olsen? Or is it the accused . . . ?” Later, during its instructions to the jury, the trial court again repeatedly cautioned the jury that evidence of the commission of another crime other than the one charged is admitted solely for the purpose of impeaching the defendant’s credibility and not for proving the guilt of the accused.

We begin by noting that the trial court’s “determination as to the fairness of the defendant’s trial must be afforded great weight.” State v. Ubaldi, 190 Conn. 559, 563, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Therefore, “[w]here a motion for mistrial is made in response to a prosecutor’s allegedly improper [comment], the burden is on the defendant to establish that, in the context of the proceedings as a whole, the [comment] was so prejudicial that it deprived him of a fair trial.” State v. Fleming, 198 Conn. 255, 267, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). The defendant claims that no curative instruction could have cured the allegedly tainted language. We disagree.

The defendant took the witness stand at trial, and his credibility was clearly a significant issue. The defendant’s prior felony convictions pertained to his veracity. The trial court’s immediate cautionary remarks coupled with its curative instruction during the charge of law obviated any possible prejudice to the defendant. See State v. Ubaldi, supra, 562. The burden on the defendant is to show that the prosecutor’s remarks were prejudicial in light of the entire proceeding. State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982). In this case, the defendant failed to meet this burden. We conclude that with respect to this third claim there is no error.

IV

The defendant’s final contention is that the trial court erred in opening his sentence, sua sponte, and resentencing him on the same day. The defendant was sentenced during the morning session of court on April 22, 1987. After the lunch break, the court sua sponte recalled the defendant, vacated the previous sentence and resentenced the defendant. The sentence for the burglary in the third degree was increased from three to five years, and the one year sentences for the misdemeanors were imposed to run concurrently with the burglary sentence rather than consecutively; the total effective sentence of five years remained unchanged.

The trial court had reasoned that its earlier sentence was possibly illegal under the decision in State v. Johnson, 192 Conn. 471, 472 A.2d 1267 (1984), where our Supreme Court condemned the imposition of consecutive sentences for crimes which could be interpreted as constituting a single act. During that afternoon session the trial court said, “What I am talking about, Mr. Adams, you were convicted of burglary, larceny and tampering. It might be argued, or arguable that it constituted a single episode, and a more appropriate sentence instead of the sentence I imposed would be a concurrent sentence.” The court later stated: “The effective sentence imposed is the same as this morning. That is five years. . . . That will remain the same. That is the sentence of the Court. I just wanted it to be reflective of the Court’s intent. Thank you.”

The defendant’s sole claim on appeal is that once the first sentence was imposed, the trial court was without authority to change or modify that sentence unless it was somehow invalid.

“As a general rule, a criminal sentence ‘cannot be modified by the trial court, even at the same term, if the sentence was valid and execution of it has commenced.’ Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962) .... If there is no indication to the contrary in the record, it may be presumed that execution of the original sentence commenced promptly after it was imposed.” (Citations omitted.) State v. Elliot, 8 Conn. App. 566, 574-75, 513 A.2d 1285, cert. denied, 201 Conn. 813, 517 A.2d 630 (1986). In this case, without passing on the validity of the earlier sentence, we find that the record supports the conclusion that the execution of the original morning sentence had not commenced. The afternoon resentencing took place some three hours after the original sentence was imposed. The defendant had not left the courthouse, and the record does not suggest that the mittimus for the original sentence had even been drafted at the time of the resentencing. We also note that the trial court’s original intent to impose an effective sentence of five years was unaffected by the resentencing, and that, in the final analysis, the defendant, who does not claim that either sentence was illegal, was left with the same amount of time to serve. In fact, the defendant objected only to the resentencing on the burglary conviction. The defendant’s counsel, objecting to the court’s resentencing, stated, “I object to that, your Honor. You can change the consecutive sentence to concurrent sentence, but I would object to resentencing on the burglary charge.” It is somewhat inconsistent for the defendant to concede that the court could modify the misdemeanor sentences but not the felony sentence. Under these circumstances, for us to accept the defendant’s interpretation that these proceedings were illegal would strain common sense and the law.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-119b provides in relevant part: “(c) A person is guilty of interfering or tampering with a motor vehicle when: . . . (2) with intent and without right to do so, he damages any motor vehicle ■ or damages or removes any of its parts or components.”

       General Statutes § 53a-125 (a) provides: “(a) A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars.”

       General Statutes § 53a-103 provides in relevant part: “(a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-100 (a) (1) provides: “(a) The following definitions are applicable to this part: (1) ‘Building’ in addition to its ordinary meaning, includes any watercraft, aircraft, trailer, sleeping car, railroad car, other structure or vehicle or any building with a valid certificate of occupancy.”

       The trial court’s jury instructions set forth in pertinent part as follows:
      “In this case evidence was introduced to show the defendant was convicted of a felony in one year and a robbery in another year. Evidence of the commission of another crime other than the one charged is not admissible to prove the guilt of the defendant in this particular case. I will read that sentence again because it is important. Evidence of the commission of another crime other than the one charged is not admissible to prove the guilt of the defendant in this particular case. The commission of other crimes by this defendant has been admitted into evidence for the sole purpose of affecting his credibility. And that’s what I told you earlier. You must weigh the testimony and consider it along with all the other evidence in the case. You may take into consideration only the convictions of the defendant as bearing upon his credibility and you should determine that credibility upon the same considerations as those given to any other witness. I will restate the principle. Evidence of the commission of another crime other than the one charged is not admissible to prove the guilt of the defendant in this case. Now as you know, he’s charged with three separate offenses. Those convictions cannot be used to prove anything of the elements of those charges. The purpose of those convictions is solely on the purpose of affecting his credibility'. The evidence from which you are to decide what the facts are consists of the sworn testimony of witnesses, both on direct and cross-examination regardless of who called the witness; the exhibit which has been received into evidence; any facts to which all the lawyers have agreed. In reaching your verdict you should consider all of the testimony and exhibits received into evidence.”


text:
    State of Connecticut v. James Leonard
    (5646)
    Borden, Spallone and Norcott, Js.
    Argued February 2
    decision released April 12, 1988

      Brian M. O’Connell, certified legal intern, with whom were Aaron P. Slitt and, on the brief, William T. Gerace, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction rendered following the denial of his motion to suppress all evidence seized at the scene of his arrest. After the trial court denied the motion, the defendant, pursuant to General Statutes § 54-94U, entered a conditional plea of nolo contendere to the charge of possession of narcotics (cocaine) with intent to sell in violation of General Statutes § 21a-277 (a). The sole dispositive issue on appeal is whether it was proper for the trial court to have denied the defendant’s motion to suppress evidence based on an unreasonable search and seizure. We find no error.

“ ‘In its oral memorandum of decision the court made only limited factual findings and legal conclusions. We, therefore, must look to all the evidence produced in support of its decision.’ State v. Mitchell, 7 Conn. App. 46, 49, 507 A.2d 1017 (1986), aff d in part and rev’d in part on other grounds, 204 Conn. 187, 527 A.2d 1168, cert. denied, U.S. , 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).” State v. Carey, 13 Conn. App. 69, 73, 534 A.2d 1234 (1987).

From the evidence revealed at the suppression hearing, the trier could reasonably have found the following facts. On February 20, 1986, at approximately 11:30 p.m., the defendant was a passenger in a vehicle which he owned but which was being operated at the time by Rodney Jackson. State Trooper Robert Kenney, while operating a motor vehicle radar unit, observed the defendant’s vehicle traveling eastbound on Interstate Route 84 at a rate of speed ten miles in excess of the lawful speed limit. Kenney observed that there were two occupants in the car, and that the passenger, later identified as the defendant, appeared to be moving about within the passenger’s seat and by his movements appeared to be putting something under the front seat. Kenney stopped the vehicle and approached the driver’s side cautiously.

With the aid of his flashlight and the spotlight on his police vehicle, Kenney looked in at the driver, Jackson, and observed what appeared to be white chunks of powder on the front of his black colored sport-type jacket and in his moustache. Kenney also testified that he observed what appeared to be hard-packed white powder between Jackson’s legs and on the front seat of the vehicle. Kenney concluded that the substance was probably cocaine. When Kenney asked Jackson about the substance, Jackson became nervous, said, “It’s nothing” and began brushing the substance from his jacket. Jackson was then ordered out of the vehicle and accompanied Kenney to the rear of the vehicle.

Trooper Gerald Pennington, operating as a backup unit to Kenney, arrived at the site of the vehicle stop shortly after Kenney had approached the driver’s side of the automobile. Pennington approached the vehicle from the rear on the passenger’s side. As Kenney ordered the driver out of the car, Pennington became concerned when the defendant’s hands went out of view because the defendant started to reach down between his knees. Pennington yelled to the defendant to place his hands in full view, and when the defendant did not respond, Pennington drew his gun and rapped on the window. The defendant eventually responded and exited the vehicle.

Once the defendant was outside of the vehicle, Pennington, concerned that there might be weapons in the vehicle, reached into the car to secure the object that the defendant was handling and seized an open paper bag. Pennington’s flashlight reflected off something shiny within the bag, and while the trooper did not recognize the contents as a weapon, he did observe an open tin foil packet containing a block of hard-packed white powder which he believed to be cocaine. Samples of the white substance found on Jackson and found in the bag thereafter tested positive for cocaine. A second bag containing 100 empty glassine bags of the type used for packaging narcotics was then discovered and seized.

The trial court ruled that there was probable cause to stop the defendant’s vehicle, that the narcotic substance was in plain view of the arresting officers, and denied the motion to suppress.

Whether the police were justified in stopping the defendant’s car for a motor vehicle infraction is a clear issue of fact. State v. Lizotte, 11 Conn. App. 11, 16, 525 A.2d 971 (1987). In challenging the trial court’s finding with regard to the legality of the initial stop, “the defendant bears the burden of proving that the court’s conclusion is clearly erroneous, which is to say that it is unsupported by the facts. See Practice Book § 4061 (formerly § 3060D); State v. Stepney, 191 Conn. 233, 239, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).” State v. Lizotte, supra, 16. It is clear from the record that the defendant’s car was exceeding the speed limit on Interstate Route 84. The trial court’s finding that “[tjhere was probable cause to stop them (the defendant and Rodney Jackson, the driver); they were violating a motor vehicle statute” is clearly supported by the facts.

The next focus of our inquiry is whether the warrant-less police search of the vehicle was in violation of the defendant’s federal and state constitutional protections against unreasonable searches and seizures.

When Kenney illuminated the interior of the car with his flashlight and observed the defendant, he saw in plain view the white substance on Jackson, his clothing and the auto seat. There is really no dispute that this substance, later tested positively to be cocaine, was in plain view of the trooper. In any case, there can be no claim to an expectation of privacy to any portion of a motor vehicle which may be viewed from the outside by either an inquisitive passerby or a diligent police officer. Texas v. Brown, 460 U.S. 730, 739-40, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Graham, 200 Conn. 9, 20-21, 509 A.2d 493 (1986).

The defendant contends that there was no probable cause for a reasonable belief that the substance observed by Kenney was cocaine. “ ‘In order to establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.’ (Citations omitted.) State v. Cobuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). ‘In dealing with probable cause . . . as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). ‘Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, [742,] 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).’ Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984); see also Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).” State v. Carey, supra. Furthermore, a police officer can use his professional experience to conclude that an item is contraband even if it is not immediately apparent to the casual observer. Texas v. Brown, supra, 742. See State v. Barrett, 10 Conn. App. 667, 669, 525 A.2d 139 (1987).

The unrefuted evidence in this appeal is that Kenney, an officer with twelve years experience in the field of narcotics arrests, lawfully stopped a speeding vehicle and observed a white powdery substance on the driver; the trooper also noticed the driver’s nervous reaction and response to his inquiry about the substance. “These observations gave [him] probable cause to believe that the vehicle contained contraband and thus to seize and search the car, including the trunk, without a warrant. United States v. Johns, 469 U.S. 478, 105 S. Ct. 881, 83 L. Ed. 2d 890 (1985). Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982).” State v. Kuskowski, 200 Conn. 82, 85, 510 A.2d 172 (1986).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “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 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 nonjurisdictional defects in the criminal prosecution.”

       The fourth amendment to the United States constitution provides in pertinent part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . This constitutional right is made applicable to the states through the fourteenth amendment to the United States constitution. Mapp
        v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72 (1961).
      Article first, § 7, of the Connecticut constitution provides in pertinent part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .” Although the defendant relies on both the federal and the state constitutions, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state constitutional claims. We decline to undertake such analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986).


author: O’Connell, J.

text:
    State of Connecticut v. Vincent Morico
    (5723)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 3, 1987
    decision released April 12, 1988

      Michael J. McClary, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).
   O’Connell, J.

This is an appeal by the defendant from a judgment of conviction of the crimes of assault in the first degree, in violation of General Statutes § 53a-59 (a) (1), and carrying a pistol or revolver without a permit, in violation of General Statutes § 29-35. The sole issue presented on appeal is whether the trial court erred in denying defense counsel’s motion to withdraw from the case. We find no error.

The following facts are not in dispute. On February 26,1986, the defendant was arrested in connection with the shooting of his former wife’s boyfriend. Two days after his arrest, the defendant was hospitalized at the Connecticut Mental Health Center. On March 14, 1986, he was transferred to Whiting Forensic Institute (Whiting). Following an examination pursuant to General Statutes § 54-56d, the defendant was found competent to stand trial and was returned to the custody of the department of correction. A readmission to Whiting followed and, after a second competency evaluation, the defendant was again adjudged competent to stand trial. The defendant was once again transferred to the custody of the department of correction, pursuant to a conclusion by the director of forensic services at Whiting that the defendant “does not suffer from a treatable mental illness that would require continued hospitalization.” The defendant was represented by an assistant public defender from the time of his arrest until August 19,1986, when he obtained private counsel.

A notice of mental disease or defect was not filed by either the assistant public defender or by private counsel. See Practice Book § 758. In addition, private counsel indicated prior to the commencement of trial that he never intended to raise a mental disease or defect defense.

After the jury had been selected, but before it had been sworn, the defendant conferred with his counsel, resulting in the counsel’s motion for permission to withdraw from the case because the defendant had become dissatisfied with his representation. The trial court addressed the defendant directly and learned that the reason for his dissatisfaction was his lawyer’s refusal to raise a mental illness defense. The record indicates that the court made a sufficient inquiry into the reasons behind the defendant’s dissatisfaction to meet its obligations under State v. High, 12 Conn. App. 685, 689, 533 A.2d 1217 (1987).

The trial court advised the defendant that the evaluations of the defendant’s mental state contained in the court record did not indicate that such a defense was warranted, and that a notice of mental disease or defect would not be accepted at that time. Further, the trial court noted that the defendant had already changed counsel once since his arrest, that a jury had been selected and that trial was about to commence. The motion to withdraw was denied, an exception was taken, the trial continued, and the defendant was ultimately found guilty of both crimes charged.

The considerations to be addressed in an examination of a motion for alternate counsel or a motion to withdraw were recently discussed by this court in State v. High, supra. “There can be no dispute that a criminal defendant has a constitutional right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985); that right, however, is not without limitation. For example, the right to counsel does not include the ‘ “unbridled right to discharge counsel on the eve of trial. . . . ” ’ (Emphasis in original.) State v. Drakeford, [202 Conn. 75, 83, 519 A.2d 1194 (1987)], quoting United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S. Ct. 118, 21 L. Ed. 2d 111 (1968). This limitation applies to both private counsel retained by an individual defendant as well as court appointed counsel. See State v. Gethers, 193 Conn. 526, 543, 480 A.2d 435 (1984), and cases cited therein. Furthermore, it is clear that the right to effective assistance of counsel does not include an ‘unlimited opportunity to obtain alternate counsel.’ State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986). Inherent in these limitations is a concern for unwarranted interruptions in the administration of justice. ‘While courts must be assiduous in their defense of an accused’s right to counsel, that right may not be “manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.” ’ United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), quoting United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied sub nom. Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963); see also United States v. DiTommaso, 817 F.2d 201, 219 (2d Cir. 1987). With these competing interests in mind, we review the actions of the trial court in this case.” State v. High, supra, 690.

“The standard when reviewing a denial of a request for alternate counsel [and of a motion to withdraw] is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request.” Id.

Our Supreme Court further enunciated that requirement, stating that “[a] request for substitution of counsel requires support by a substantial reason, and may not be used to achieve delay.” (Emphasis added.) State v. Drakeford, supra, 83. The defendant in the present case contends that his dissatisfaction with his trial counsel’s failure to present a defense of mental disease or defect on his behalf, constitutes such a substantial reason. We disagree.

The record discloses that defense counsel’s motion to withdraw was motivated by the defendant’s dissatisfaction with counsel’s failure to pursue a mental disease or defect defense. Such a failure may have been a tactical move taken by a defense attorney who had determined that such a defense was inapplicable in the present case. Under these circumstances, denial of the motion for withdrawal was not error. “Differences of opinion over trial strategy are not unknown and do not necessarily compel the appointment of new counsel. ... In United States v. Calabro [467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 985-86, 93 S. Ct. 1357, 35 L. Ed. 2d 587, reh. denied, 411 U.S. 941, 93 S. Ct. 1891, 36 L. Ed. 2d 404 (1973)], the court cited with approval the American Bar Association Project on Standards for Criminal Justice: ‘[A] defendant is entitled to make the ultimate decision only in regard to whether to plead guilty, whether to waive a jury, and whether to testify; “all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.” ’ Standards Relating to the Prosecution Function and the Defense Function, The Defense Function § 5.2 (1971).” State v. Drakeford, supra, 83.

Alternatively, if defense counsel’s failure to file a notice of mental disease or defect defense constitutes inadequate representation, then redress should be pursued in a habeas corpus proceeding and not upon direct appeal. If “this argument is, in essence, a disguised allegation of ineffective assistance of counsel, it is governed by our decisions requiring such claims to be pursued on a petition for new trial or on a petition for a writ of habeas corpus, rather than on direct appeal, so that a complete factual record can be developed.” (Footnote omitted.) State v. Gonzalez, 205 Conn. 673, 684, 535 A.2d 345 (1987). “In the absence of a factual record showing an abuse of discretion, the trial court’s failure to permit the withdrawal of counsel is not reversible error.” State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986). We conclude that the trial court did not abuse its discretion in its denial of defense counsel’s motion to withdraw.

The defendant also claims that the motion to withdraw, and the defendant’s statements in support thereof, constituted an implicit motion for continuance which should have been granted by the trial court. While the defendant’s presentation of this matter as a collateral issue raises a question as to its reviewability, because both parties have addressed it in their briefs, we have chosen to consider it. Applying the appropriate standard of review, however, we find no “clear abuse” of the trial court’s discretion. State v. Watson, supra, 610.

There is no error.

In this opinion the other judges concurred.

       In a colloquy with the court regarding the anticipated jury charge which, took place prior to trial, and in response to the judge’s statement that he would not charge the jury with regard to a mental disease or defect defense, the defendant’s trial counsel stated: “I don’t intend and never did intend to request this court to charge cm that issue, your Honor.” (Emphasis added.)

       The defense counsel’s request was phrased as follows: “I request permission to withdraw as defense counsel. I think we have fundamental differences between myself and the defendant. The defendant has just so informed me. It is a quarter after two in the afternoon. I am not sure if I have the full competency [sic] of my client, Mr. Morico. I request permission to withdraw.”

       The following colloquy ensued:
      “The Court: What do you have to say about that, Mr. Morico?
      “The Defendant: Your Honor, I feel that in the last week or so of my consultation I was trying to make Mr. Farrell understand that I felt that my mental illness would be a part of this case and I wanted him to have doctors and people who have seen me from Connecticut Mental Health for the last two years that I have been under their care. I didn’t know anything had to be submitted to the public defender or I would have had it done sooner. I thought it was going to come out in the case. I feel like I am being misrepresented and my rights are being neglected here. I feel I have the right to make my plea of temporary insanity and have the doctors brought in.
      “The Court: Mr. Morico, there’s a report in the file, in the court file which is an official court record concerning your examination for mental conditions and there’s no indication of anything like that at all.
      “The Defendant: I feel that is inadequate. That is not people that have seen me before the incident.
      “The Court: This is your second attorney, Mr. Morico. We have a jury out here ready to go. It is a little bit too late for you now to request to have your counsel withdraw and have another counsel appointed for you. If this were a situation where trial were going to be three months down the road, it might be different but there’s no — we have a jury all picked. We are ready to go. The request for counsel to withdraw from this case is denied. You have an exception to it. We will proceed with the trial.
      “[Defense Counsel]: Exception, please.
      “The Court: Bring the jury in.”

       The defendant does not raise as error the trial court’s unwillingness to accept a notice of mental disease or defect defense, if submitted, but only claims as error the trial court’s ruling on the motion to withdraw.

       See footnote 1, supra.


text:
    State of Connecticut v. John T. Robinson
    (5765)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 1, 1987
    decision released April 12, 1988

      Joette Katz, 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., and Richard F. Jacobson, assistant state’s attorneys, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction of one count of possession of heroin with intent to sell, in violation of General Statutes § 21a-278 (b). The defendant claims the trial court erred by questioning him about his girlfriend’s incarceration, and that improper remarks made by the prosecutor during closing argument deprived him of a fair trial. We find no error. The portion of the facts that are relevant to this appeal are recited in the discussion of each of the claimed errors.

I

On direct examination, the defendant testified that on the night of the crime, he was returning to his girlfriend’s house when he was arrested. In an apparent attempt to establish a foundation for a potential adverse inference charge; Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); the state asked the defendant on cross-examination if his girlfriend was “around,” and if she was available to testify. The defendant responded that his girlfriend was “in Niantic.” The following day, after counsel for both parties had completed their questioning, the trial court raised the matter of the defendant’s responses concerning his girlfriend’s whereabouts, indicating that the meaning of “Niantic” was not clear to the jury. Defense counsel objected, whereupon the court asked the defendant directly, “Where is she?” and the defendant responded, “She is at Niantic prison for women.” The girlfriend was not a witness nor was her character in issue.

It is rudimentary that a trial judge must be circumspect in his conduct and be ever vigilant that his words or manner do not convey his opinion of the case to the jury. State v. Smith, 200 Conn. 544, 512 A.2d 884 (1986): State v. Camerone, 8 Conn. App. 317, 513 A.2d 718 (1986). To this end, we note that an examination of the record discloses that the trial court did not single out the defendant for questioning, but had been asking questions of both state and defense witnesses throughout the trial.

At trial, defense counsel objected to the court’s questioning of the defendant on two grounds: (1) that the subject matter of the questions was not within the scope of the cross-examination of the defendant; and (2) that such questioning was not relevant. The defendant now claims, however, that the defendant’s answers to the trial court’s questions were potentially prejudicial, and that the court should have, sua sponte, given a jury charge which would have cured any possible prejudice. This claim was not raised at trial, nor was its review requested in this court pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

We must apply the holding of our Supreme Court in State v. Brown, 199 Conn. 14, 29, 505 A.2d 690 (1986), in determining this appeal. In a situation very similar to the present case, the Brown court ruled that “[t]he issues counsel now raises on appeal were not raised at trial. There was no objection to any remarks made by the trial court to the witness, nor was a motion for a mistrial made or a curative instruction requested. We have nonetheless reviewed the entire transcript of [the witness’] testimony. We are satisfied that the record does not adequately support a claim that the judge’s conduct toward the witness deprived the defendant of a fundamental constitutional right and a fair trial. Therefore, since the defendant’s claims were not raised and decided in the trial court, we will not consider them.” (Emphasis added.) Id. The only distinction between Brown and the present case is that here defense counsel did object in the trial court, but on entirely different grounds from those presented to us. We conclude that the distinction is of no consequence, and that a review of the record indicates a lack of adequate support for the defendant’s first claim of error. We therefore decline to consider it further. See State v. Carter, 198 Conn. 386, 390 n.3, 503 A.2d 576 (1986) (a defendant cannot raise a claim contesting the authenticity of an out-of-state judgment on appeal, when the grounds for objection at trial were only relevancy and undue prejudice).

II

The defendant’s second claim is that he was deprived of a fair trial by fifteen improper remarks made in the prosecutor’s closing argument. Of the fifteen remarks now claimed as prosecutorial misconduct, only three were properly preserved by objection and exception. The defendant seeks review of the additional remarks under State v. Evans, supra, arguing that they implicate his right to a fair trial. State v. Findlay, 198 Conn. 328, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Pelletier, 196 Conn. 32, 33-34, 490 A.2d 515 (1985). The defendant also seeks review under the plain error doctrine. Practice Book § 4185.

Notwithstanding the defendant’s argument that each claimed error constitutes reversible error, he relies most heavily on his contention that it is the cumulative effect of all of the improper prosecutorial remarks that mandates reversal. We do not agree with either contention.

The defendant claims that through the prosecutor’s various and sundry improper remarks he attempted to shift the burden of proof onto the defendant, made personal attacks on the defense, impermissibly attacked or bolstered the credibility of witnesses, misstated evidence, misled the jury on the law and the inferences they could draw, and injected irrelevant and inflammatory considerations into the deliberation process.

A detailed discussion of each of the fifteen prosecutorial comments is not required because we conclude that no comment individually nor all fifteen comments cumulatively, deprived the defendant of a fair trial or constituted plain error.

“Ordinarily, where a criminal defendant does not object and take exception to allegedly prejudicial remarks by the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. Where counsel fails to object or to request a curative charge ‘we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was so seriously jeopardized.’ State v. TylerBarcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985). After carefully reviewing the record, we cannot say that the prosecutor’s remarks ... in this case were so abusive or prejudicial as to support a claim that the defendant has ‘clearly been deprived of a fundamental constitutional right and a fair trial.’ State v. Evans, supra. The defendant has therefore waived his right to raise the claim on appeal. See State v. TylerBarcomb, supra, 674.” (Citations omitted; footnotes omitted.) State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986).

Evans review has been denied where the claimed misconduct was not a pattern of conduct repeated throughout the trial and was not blatantly egregious. State v. Bell, 13 Conn. App. 420, 427, 537 A.2d 496 (1988). The defendant attempts to bootstrap his claimed errors into a pattern of conduct by sheer numbers and by his claim of the errors’ cumulative effect. He cannot succeed. Because we do not find that any of the comments were improper, their number is irrelevant. This would not be true if we found that each comment was slightly prejudicial but standing alone did not require reversal. Stringing together numerous prejudicial comments of that nature could rise to a pattern of prosecutorial misconduct that might qualify for Evans review. Such, however, is not the scenario in the present case. Further, this court has also declined review under the Evans doctrine when the claimed error is not adequately supported by the record; State v. Huff, 10 Conn. App. 330, 335, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987); and has recently declined to do so in a similar case claiming prosecutorial misconduct in closing argument. State v. Bell, supra. For this reason as well, we decline review.

Nor does the defendant fare better under his argument that his unpreserved claims of prosecutorial misconduct should be reviewed under the plain error doctrine. Review under this doctrine “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 the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). A review of the cases in which plain error has been noticed convinces us that the errors claimed in this case do not rise to the level of “truly extraordinary situations.” We therefore decline to review these claims under this doctrine.

The three properly preserved errors are reviewed under the standard that, “the fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984). Where it is demonstrated that a.prosecutor has made a deliberate attempt to influence a jury through improper argument, a defendant may be entitled to a new trial. We recognize, however, that prosecutors must be afforded a reasonable amount of leeway to allow for the excitement and passion that arises in the heat of argument. State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense counsel or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).

Examination of the state’s reviewable comments in the present case indicates, inter alia, that they were each made only once, were in rebuttal to a provocative defense argument, did not attack the credibility of the defendant and further, that the state had a strong case. See id.

There is no error.

In this opinion the other judges concurred.

       The defendant’s eleven page request to charge did not request a curative instruction, nor did he move for a mistrial because of the claimed judicial intervention.

       In reviewing the entire transcript, we observe that there was such an abundance of evidence concerning the defendant’s criminal background and drug use, it is unlikely the slight additional information that he had a girlfriend in prison would have prejudiced his case.

       Practice Book § 4185 provides in pertinent part that “[t]he [appellate court] may in the interest of justice notice plain error not brought to the attention of the trial court.”