author: Daly, J.

text:
    State of Connecticut v. Michael D’Ambrosio
    (5170)
    Borden, Daly and O’Connell, Js.
    Argued October 8, 1987
    decision released May 3, 1988

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      James A. Killen, deputy assistant state’s attorney, with whom, on the brief, were Patrick J. Clifford and James G. Clark, assistant state’s attorneys, for the appellee (state).
   Daly, 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 (a), conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-103 (a) and 53a-48 (a), criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) and 53a-59 (a) (1), and larceny in the sixth degree in violation of General Statutes § 53a-125b.

The defendant claims that the trial court erred (1) in failing to suppress evidence seized pursuant to an automobile search, (2) in denying the defendant access to the psychiatric records of a state’s witness, (3) in admitting opinion evidence to hypothetical questions, and (4) in determining there was sufficient evidence to convict the defendant of criminal attempt to commit assault in the first degree.

The jury could reasonably have found the following facts. On October 29,1985, the complainant, a seventy-nine year old woman, returned to her house on Leetes Island Road in Guilford and discovered that the rear door to the house had been smashed. Officer Michael Dennison of the Guilford police department investigated the break-in. One of the complainant’s neighbors informed Dennison that she had observed a heavy set white male in dark clothing run down the driveway and enter a dark, older model American car with a white top. The neighbor stated that she also observed the passenger of the car, who was a heavy set white male with messy, dirty blonde hair and an unkempt beard, and who also wore dark clothing. The complainant mentioned to the officer that she had been involved in a motor vehicle accident the previous day.

Approximately forty-five minutes later, an officer observed a car being driven by the defendant and carrying a passenger, a defendant in a related action, Albert Knous, which matched the neighbor’s description. The officer then processed the license plate number through the state department of motor vehicles and determined that the license plate was not registered to be on that particular car.

Another officer, Steven Spurrell, approached the vehicle which he found parked in front of the town hall and asked the defendant for his license and registration. The defendant was unable to produce either document, but indicated that the car belonged to Jonathan Schofield, a friend of his, who was working that day. At this time, another officer had arrived at the scene and both the defendant and Knous were searched for weapons. The defendant and Knous denied any knowledge of the reported burglary. Spurrell testified that he had known both the defendant and Knous as “regular customers” with the Guilford police department. On the basis of his knowledge of the two men’s previous involvement with the police, including an arrest for carrying a weapon in a motor vehicle, Spurrell checked the vehicle for weapons. A hunting knife with a seven inch blade was found under the driver’s seat. Both men were arrested for carrying a weapon in a motor vehicle.

The following day, October 30,1985, John Schofield, the owner of the seized vehicle, indicated to the police that he had allowed the defendant permission to use his car. Schofield consented to a search of his car. The police seized a metal box from the trunk of the car and from the interior of the car, they seized a motor vehicle accident report concerning the accident the previous day involving the complainant.

At trial, Knous testified for the state and acknowledged that the defendant had approached him while he was picking apples on Long Hill Road. Knous testified that the defendant told him that he had broken into a garage at 98 Leetes Island Road and cut the brake lines to the car in the garage and stole a metal tool box from the garage. At that time, the defendant informed Knous of a television set that he observed at the premises and asked Knous if he wanted to join him, steal the television and divide the proceeds of its sale. The pair proceeded to 98 Leetes Island Road where Knous entered through the rear door which he claimed was previously smashed. Upon hearing a car coming up the driveway, Knous departed without taking anything.

Additionally, the state produced expert testimony which indicated that the brake line tubing of the complainant’s car was cut by means of a knife-type instrument. Neither expert could, however, determine whether the knife which had been seized by the police was the cutting instrument used. Both experts testified that the complainant would not have been able to stop her vehicle upon descending her steep driveway which led to an intersection. Moreover, the experts testified as to what would happen when a driver applied his brakes, after the brake lines of a car had been cut.

I

In his first claim of error, the defendant claims that the trial court erred in refusing to suppress the evidence obtained from Schofield’s car. Specifically, the defendant claims error in the seizure of the knife discovered underneath the seat and the seizure of the metal tool box recovered from the trunk. We find no merit in the defendant’s argument.

A

The court did not err by allowing the knife seized from the car into evidence. The defendant maintains that a Terry stop was not justified in this case because the descriptions of the car and of the passenger were too general in nature. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In support of this argument, the defendant cites United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 261 (1981), which states that, in order to have a Terry stop withstand challenge, the “detaining officers must have a particularized and objective basis for suspecting the particular person[s] stopped of criminal activity.” The defendant argues that there was no such particularized description, such as the marker plate, the make of the car, the age of the passenger, his height, facial features, or clothing, that would supply a distinctive description to justify a Terry stop.

“[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, supra, 22. The United States Supreme Court has recognized that “it may be the essence of good police work to adopt an intermediate response.” Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Although the defendant asserts that the police need a specific and particular description, our Supreme Court has stated that “[wjhat constitutes a reasonable and articulable suspicion depends on the totality of the circumstances.” State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987).

In the present case, Spurred was justified in detaining the defendant and Knous to investigate both the misuse of the license plate and the burglary. See State v. Perez, 181 Conn. 299, 304, 435 A.2d 334 (1980). The car was stopped within two and one-half miles of the situs of the crime and within an hour of the time when the dispatcher had received the initial complaint. “ ‘Proximity in time and place of the stop to the crime is highly significant’ in the determination of whether an investigatory detention is justified by reasonable and articulable suspicion.” (Citations omitted.) State v. Aillon, supra, 400, quoting State v. Aversa, 197 Conn. 685, 691, 501 A.2d 370 (1985). Additionally, the similarities between the neighbor’s description of the culprits and their car, with the actual appearance of the car and Knous was sufficient to warrant Spurred in making an investigatory stop. See State v. Mitchell, 7 Conn. App. 46, 507 A.2d 1017, cert. granted, 200 Conn. 805, 512 A.2d 230 (1986). Furthermore, the officer would have been justified in making a stop of the vehicle for an apparent violation of improper use of registration. General Statutes § 14-147 (c); State v. Mitchell, supra, 60. Under the totality of circumstances, we cannot say that the police action was inappropriate or unreasonable under the fourth amendment.

Since the officer was justified in making the stop, he was justified in “patting down” the defendant and conducting a protective search of the passenger compartment of the car. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); Terry v. Ohio, supra, 21. Moreover, Spurred’s first hand knowledge of the criminal history of both the defendant and Knous justified the protective search. Michigan v. Long, supra, 1049-50.

B

The defendant claims that the trial court erred in admitting the gray metal tool box found in the trunk of the car pursuant to Schofield’s consent to search the car the following day. Schofield reclaimed the car from the police station the day after it was impounded because he needed it for work. The defendant claims that Schofield’s consent was involuntary and invalid. Because we find that the defendant is not entitled to challenge the search, we do not consider these issues.

In order for a defendant to challenge a search of an automobile, he must establish that he had a reasonable expectation of privacy in the area searched. State v. Manson, 13 Conn. App. 220, 535 A.2d 829 (1988). In this case, while there may be evidence that the defendant had an expectation of privacy on October 29, during the period of time he used the car; see, e.g., United States v. Rose, 731 F.2d 1337 (8th Cir. 1984) (permissive use of automobile may provide basis for assertion of fourth amendment claims); the defendant established no facts alleging that the expectation of privacy continued to the following day when the car was reclaimed by its owner. Thus, the court did not err in admitting the tool box into evidence.

II

The defendant’s second claim of error is that the court improperly denied the defendant’s request for an examination of Knous’ psychiatric records. Prior to cross-examination, counsel for the defense questioned Knous outside the presence of the jury concerning his treatment for alcoholism at Connecticut Valley Hospital. Knous stated that he had been admitted to a twenty-eight day alcohol program and that he had been drinking on the day of the burglary. The defendant argues that the trial court’s ruling denying access to Knous’s psychiatric records precluded him from cross-examining the state’s key witness on facts highly probative of credibility, capacity to perceive and ability to recall facts, thereby impairing his right of confrontation.

The defendant cites State v. Storlazzi, 191 Conn. 453, 462, 464 A.2d 829 (1983), in support of his claim of error. In Storlazzi, the court reaffirmed its holding in State v. Grosso, 172 Conn. 298, 302, 374 A.2d 239 (1977), stating “that ‘when a conviction depends entirely upon the testimony of certain witnesses . . . information affecting their credibility is material in the constitutional sense since if they are not believed a reasonable doubt of guilt would be created.’ ” State v. Storlazzi, supra. It is clear that the state relied heavily on Knous’ testimony.

The United States Supreme Court has recently held that the right to confrontation is the right to cross-examine and not the right of an all-inclusive cross-examination. In Pennsylvania v. Ritchie, 480 U.S. 39, 52-53, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), the Supreme Court held: “[T]he right of confrontation is a trial right, designed to prevent improper restrictions on.the types of questions that defense counsel may ask during cross-examination .... The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. Delaware v. Fensterer, supra, 21-22. In short, the Confrontation Clause only guarantees ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” (Emphasis in original.)

In the present case, the defendant was provided wide latitude at trial to question Knous. The trial court stated that the questioning of Knous concerning his treatment for alcoholism “might very well have something to do with the credibility of his testimony and certainly [the defendant is] at liberty to take that up in front of the jury.”

Furthermore, in State v. Burak, 201 Conn. 517, 523, 518 A.2d 639 (1986), our Supreme Court held that when the claimed impeaching material is privileged, the party must make an offer of proof that failure to produce the material would impair his confrontational rights. See also State v. Esposito, 192 Conn. 166, 179-80, 471 A.2d 949 (1984). The defendant is required to make “a plausible showing that [these psychiatric records] would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.” United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982). We have reviewed the record and agree with the trial court that the defendant failed to make the necessary preliminary showing that the failure to produce the psychiatric records was likely to impair his confrontational rights.

Ill

The defendant’s third claim of error is that the trial court erred in allowing two of the state’s witnesses to answer hypothetical questions. Specifically, the defendant argues that the state failed to demonstrate that either witness had any specialized skill or knowledge to offer an opinion beyond the ability of the average juror, as to what would occur if the car with the broken brake line had been driven.

As a preliminary matter we note that the trial court has wide discretion in ruling on the “qualification of expert witnesses and the admissibility of their opinions.” State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). Moreover, it is rare for a reviewing court to find that a trial court has erred in permitting such testimony. State v. Palmer, 196 Conn. 157, 168, 491 A.2d 1075 (1985); B. Holden and J. Daly, Connecticut Evidence § 118 (a). The trial court’s decision that a witness qualifies as an expert and that the testimony is admissible “is ‘not to be disturbed . . . “unless [its] decision has been abused or the error is clear and involves a misconception of the law.” ’ ” Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976); State v. Biller, 190 Conn. 594, 617, 462 A.2d 987 (1983).

“ ‘Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to the matter in issue; (2) that skill or knowledge is not common to the average person; and (3) the testimony would be helpful to the court or jury in considering the issues.’ State v. Kemp, [supra, 476].” State v. Vilalastra, 9 Conn. App. 667, 679, 521 A.2d 170 (1987).

One witness worked as a welder in an automobile manufacturing plant who did his own car mechanic work and was familiar with braking systems. This witness was, moreover, the party responsible for repairing the broken brake line on the complainant’s car. The second witness was a car mechanic with nineteen years experience in braking systems. The trial court did not err in deciding that these two witnesses were qualified as experts. The two witnesses enjoyed a special skill and knowledge “beyond the ken of the average juror, that, properly applied, would be helpful to the determination of the ultimate issue.” Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973).

Additionally, the defendant objected to a question to the expert brake witness as having no basis in the evidence. The question: “If you were just driving down a street at forty miles per hour and came to a stop sign and went to hit the brakes, first of all, what would happen with that pedal when you put your foot on it, the brake pedal?”

“The admissibility of a hypothetical question calls for the exercise of sound discretion as to whether the question, even though it does not contain all of the facts in evidence, presents the facts in such a manner that they bear a true and fair relationship to each other and to the whole evidence in this case, whether it is not so worded as to be likely to mislead or confuse the jury and, further, whether it is not so lacking as to be without value in the decision of the case. Healy v. White, 173 Conn. 438, 446-47, 378 A.2d 540 (1977).” State v. Hardwich, 1 Conn. App. 609, 617, 475 A.2d 315 (1987).

As in Hardwick, the question did not ask the experts to reach a conclusion based on misleading representation of facts. It merely asked them to project the result of a possible situation. We thus conclude that the trial court did not abuse its discretion in allowing the question and its answer.

IV

The defendant’s final claim is that there was insufficient evidence produced at trial from which the jury could have found the defendant guilty of criminal attempt to commit assault in the first degree in violation of General Statutes § 53a-59. The defendant argues that the element of specific intent to cause serious physical injury had not been proven.

An examination of the sufficiency of the evidence requires this court to make a bifurcated analysis. State v. Baskins, 12 Conn. App. 313, 316, 530 A.2d 633 (1987). First, we review the record and construe it in a light most favorable to sustaining the verdict. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Waterman, 7 Conn. App. 326, 338, 509 A.2d 518 (1986). Second, we determine whether, “ ‘the jury could have reasonably concluded, upon the facts established, guilt beyond a reasonble doubt.’ ” State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273, quoting State v. Cimino, supra, 211. In the present case, the review is of the specific intent of the defendant. Our Supreme Court has stated: “Intent is a mental process, and absent an outright declaration of intent, must be proved through inferences drawn from the actions of an individual, i.e., by circumstantial evidence.” State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986). Furthermore, “any inference drawn must be rational and founded upon the evidence.” State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); see also B. Holden & J. Daly, Connecticut Evidence § 66 (c).

Construing, as we must, the* evidence in the light most favorable to sustaining the verdict, the jury could have readily found the following facts: (1) the defendant was full of rage over the fact that, as a result of his accident with the complainant, his car was totalled and he could not get compensated by his insurance company; (2) the defendant had broken into the house and garage; (3) during the break-in, the defendant maliciously severed the brake lines with a hunting knife that he had brought with him for the sole purpose of doing such; (4) a car with its brake lines severed would not be able to stop when approaching oncoming traffic; (5) the steep decline of the driveway would cause the car to obtain some speed before entering the busy intersection below; and (6) the complainant due to her age and frailness, would incur serious bodily injury. Such a review of the evidence leaves us to conclude that the conviction must stand.

There is no error.

In this opinion the other judges concurred.

       When Knous was questioned by defense counsel about whether he had been “drinking to excess,” Knous replied, “I had been drinking. Excessive, I don’t know.”

       The state asked the first expert the following questions:
      “Q. And based on your knowledge of automobiles and your experience, do you have an opinion as to whether you were, if you were coming down that driveway without using any brakes and when you got to the bottom for the first time and you attempted to apply brakes, when the front line was cut, do you have an opinion as to whether that car would stop at all at the bottom of the driveway?
      “A. I think that if you were not anticipating any problem, having any problem, and you just drove normally down the driveway and came to the end and put the brakes on, you would just — you wouldn’t stop in time, you would go right across. It goes right on to the road and comes right onto the right at a right angle, and I think that in that situation it would just go right across the road.
      “Q. If you were just driving down a street at forty miles per hour and came to a stop sign and went to hit the brakes, first of all, would the front lines cut as it was, what would happen with that pedal when you put your foot on it, the brake pedal?
      “A. Okay ? . I said, again it would just slide. The back wheels would just slide. You would catch a little bit at the bottom, the brake pedal, and that would be the back brakes actuating and the weight would come forward on the car and there would not be enough traction on the back wheels to stop the car. It would stop eventually, but it would take a much longer time to do it.”
      The state’s second expert witness was asked the following:
      “Q. I would ask you once again and specifically your knowledge of the physical stature of Winford Andrews if she was driving down the street at between thirty to forty miles per hour without knowing that she had any difficulty in the front brakes and came to an intersection, what would happen when she put her foot on the brake pedal?
      “A. I doubt very seriously that it would stop in an intersection. She would panic first.
      “Q. Why would that be?
      “A. Because there would be that lag in the braking system where there would be no pressure at all until she got at least half way down to the floor. So, therefore, what I have done myself is I have taken my foot off the brake and hit it again. By that time she is through the intersection the dog is dead or whatever.”

       Section 53a-59 provides in relevant part: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. . . . ”


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. William Rado, Sr.
    (5387)
    Daly, Bieluch and Foti, Js.
    Argued on December 9, 1987
    decision released May 3, 1988

      Timothy C. Moynahan, with whom, on the brief, was Theresa M. Dalton, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, was Domenick Galluzzo, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of three counts of bribe receiving in violation of General Statutes § 53a-148 (a). The defendant challenges the constitutionality of the investigating grand juror and argues that the trial court erred in denying his motion to dismiss filed on the basis of insufficient evidence and in denying him access to the grand juror transcripts.

The jury could reasonably have found the following facts. The defendant, a former mayor of Naugatuck, on three occasions manipulated the process by which municipal construction contracts were awarded. Twice the defendant altered the process under which public contracts were awarded by providing Ronald Albaitis, one of the three partners in the family owned Albaitis Brothers Construction Company, with the necessary information for obtaining the contract; the defendant supplied Albaitis with the dollar figure of the lowest bid and allowed Albaitis to resubmit an altered bid after the bidding was supposedly closed. On a third occasion, the defendant awarded Albaitis’ company a $5000 brook blasting contract without requiring bidding despite the borough charter provision that advertising for bids was required for all contracts over $1000. On each of the three occasions, the defendant demanded and received a $1000 bribe for altering the process in favor of Albaitis Construction.

On November 18, 1983, the chief state’s attorney made an application to the chief court administrator pursuant to General Statutes (Rev. to 1985) § 54-47 requesting that an inquiry be made concerning certain irregularities in the conduct of public officials in the borough of Naugatuck. The grand juror, Stoughton, J., heard testimony from Albaitis and William Gogin, the town comptroller. Upon the completion of the investigation, the grand juror compiled a report. On April 10, 1985, the defendant was arrested as a result of this report. Eventually, the defendant was tried and found guilty, by a jury, of three counts of bribe receiving.

The defendant’s first claim of error is that it is unconstitutional for a judge to act as grand juror. Specifically, the defendant argues that having a judge perform the functions of a grand juror violates the separation of powers doctrine. We find that the claim is without merit.

As a preliminary matter, we must first decide whether the defendant has standing to raise this claim. “ ‘Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.’ Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). The question of standing does not involve an inquiry into the merits of the case. It merely requires the plaintiff to make allegations of a colorable claim of injury to an interest which is arguably protected or regulated by the statute or constitutional guarantee in question. Data Processing Service v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1969); Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971).” Reitzer v. Board of Trustees of State Colleges, 2 Conn. App. 196, 199-200, 477 A.2d 129 (1984).

In the present case, the defendant cannot claim that he has any cognizable legal interest in the validity of the inquiry, even when it might lead to his arrest. Unlike a search warrant, which authorizes governmental invasion of a person’s privacy interest, the one-man grand juror conducts a general investigation into the commission of a crime. The existence of a general investigation violates no one’s rights. Absent proof of a violation of a right personal to the defendant, such as his privilege against self-incrimination, the defendant lacks standing.

Even if we assume that the defendant’s claims are reviewable, he has failed to prove that the statute was unconstitutional. In reviewing the claim, we must follow the rule set forth in State v. Olds, 171 Conn. 395, 370 A.2d 969 (1976). “ ‘We approach the question with great caution, examine it with infinite care, make every presumption and intendment in favor of validity, and sustain the act unless its invalidity is, in our judgment, beyond a reasonable doubt.’ ” State v. Olds, supra, 411, quoting Edwards v. Hartford, 145 Conn. 141, 145, 139 A.2d 599 (1958). The party challenging the constitutionality of a statute bears a “heavy burden” of proving unconstitutionality beyond a reasonable doubt. State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987). The defendant has failed to meet this burden.

We begin this analysis by stating that investigating inquiries by a judge have been held, in part, constitutional. State v. Moynahan, 164 Conn. 560, 565-67, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); McCarthy v. Clancy, 110 Conn. 482, 495-97, 148 A. 551 (1930). The defendant’s argument simply stated is that the former General Statutes (Rev. to 1985) § 54-47 offends the separation of powers doctrine. He asserts that the relationship between the judge and prosecutor “is an intercourse which is foul, unhealthy, abnormal and unnatural,” because it confers to the judge the powers of the prosecutor. The defendant’s argument clearly ignores the weight of authority.

“It is rudimentary that the three branches of government do not exist in discrete, airtight compartments, and that the rule of separation of governmental powers cannot always be rigidly applied.” State v. Darden, 171 Conn. 677, 679, 372 A.2d 99 (1976). Moreover, it is clear that “ ‘[the] great functions of government are not divided in any such way that all the acts of the nature of the functions of one department can never be exercised by another . . . State v. Clemente, 166 Conn. 501, 510, 353 A.2d 723 (1974), quoting In re Application of Clark, 65 Conn. 17, 38, 31 A. 522 (1894). The test or standard used is whether the function exercised by the judge is “ ‘ “reasonably incidental to the performance of judicial duties.” ’ ” Adams v. Rubinow, 157 Conn. 150, 160, 251 A.2d 49 (1968). The sole purpose of the one-man grand jury was to determine if there was probable cause to believe that crimes had been committed. Such a determination of probable cause has traditionally been a judicial function. See State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984). Moreover, grand jury proceedings have, by our Supreme Court, been considered “an appendage of the court.” State v. Curio, 191 Conn. 27, 32, 463 A.2d 566 (1983). Finally, in McCarthy v. Clancy, supra, 499, our Supreme Court acknowledged the fact that the investigatory inquiry has been recognized as an appropriate judicial function by holding: “No question has heretofore been raised, so far as we are aware, as to the right of the General Assembly to cast upon justice the power to investigate crimes; nor do we think it is open to question. In an administrative capacity, they may pursue the investigation authorized by the statute in question . . . . ”

The defendant has, additionally, asserted that the judicial inquiry creates a pervasive judicial bias which infects the cases which have begun with the one-man grand jury. The claim is that the trial court is improperly influenced by the investigatory reporting because they all belong to the same “judicial club.” Once again, the defendant’s claim is off base.

“Under Canon 3 (c) (1) of the code of Judicial Conduct ‘[a] judge should disqualify himself [or herself] in a proceeding in which his [or her] impartiality might reasonably be questioned. . . . ’ ” Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744-45, 444 A.2d 196 (1982). Our Supreme Court has held that recusal is mandated where a reasonable person, with knowledge of the facts would be led to conclude that a judge’s “ ‘impartiality might reasonably be questioned.’ ” Id., 746. In this case, such a conclusion is not warranted. The finding of probable cause by another judge is not deemed conduct which would lead a reasonable person to the conclusion that the judge’s impartiality might be questioned.

In his second claim of error, the defendant argues that the trial court erred in denying the defendant’s motion to dismiss. The defendant puts forth two arguments in support of this claim. The first argument is that the court should have granted a judgment of acquittal because his conduct was not a “decision, opinion, recommendation or vote” within the meaning of the bribe receiving statute. The second argument is a claim that the prosecution was improper. He claims that prosecution for a bribe resulting from the disclosure of information is preempted by the disclosure of bid or proposal statute, General Statutes § 53a-161b. Both arguments are without merit.

It is axiomatic that courts are required to read a statute in light of its purpose. In State v. Carr, 172 Conn. 458, 468, 374 A.2d 1107 (1977), our Supreme Court construed the bribery statute, General Statutes (Rev. 50 1985) § 53a-147, in stating that “the statute [should] be construed broadly in order to . . . prevent corruption in the public service . . . .” Furthermore, courts must interpret nontechnical words by their “commonly approved usage.” General Statutes § 1-1 (a); see also State v. Chiarizio, 8 Conn. App. 673, 680, 514 A.2d 370, cert. denied, 201 Conn. 809, 515 A.2d 379 (1986). The word “decision” is commonly used as meaning “act of forming an opinion or of deciding upon a course of action.” Webster, Third New International Dictionary. In this case, the state presented sufficient evidence that the defendant’s conduct indicated that he had made up his mind on a course of action when he embarked upon a disclosure of competing bids and in the one instance of awarding the contract without competitive bidding.

Moreover, the legislative history of the statute is helpful in construing the statute. State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); State v. Giorgio, 2 Conn. App. 204, 209, 477 A.2d 134 (1984). The original bribe receiving statute defined the scope of conduct as embracing a “decision ... or other act of discretion.” In that context a decision was equivalent to any exercise of discretion by the public servant. Although the “other act of discretion” language was later omitted in the passage of the present statute, State Senator Salvatore C. DePiano, the author of the new bill characterized the change as merely “technical.” 23 S. Proc., Pt. 12, 1980 Sess., p. 3820. The author further commented that the intent underlying the change was to “broaden the criteria under which a person could be found guilty of . . . bribe receiving . . . . ” Id. With the legislative history, it is abundantly clear that the defendant’s actions were included in the statute.

In the defendant’s second argument, he claimed that he should not have been charged with violating General Statutes § 53a-148 (a), a class D felony, but should, instead, have been charged with General Statutes § 53a-161b, a class A misdemeanor. It is firmly established in Connecticut case law, however, that a prosecutor may charge any offense reasonably supported by the facts. State v. O’Neill, 200 Conn. 268, 279-80, 511 A.2d 321 (1986); State v. Riggs, 7 Conn. App. 180, 185, 508 A.2d 67, cert. denied, 200 Conn. 804, 510 A.2d 191 (1986).

In this case, we need only examine the plain language of the statute to disregard the defendant’s claim. See State v. Ellis, 197 Conn. 436, 442, 497 A.2d 974 (1985). The statute, on its face, applies only to bidders and offerors. The plain language combined with the legislative history clearly indicates that § 53a-161b was intended to penalize collusion among contractors seeking state or municipal contracts and not the corrupt public official.

In the final issue, the defendant argues that the trial court erred in denying his motion for disclosure of transcripts of witnesses who appeared before the one-man grand jury. Before trial, the defendant sought to obtain the testimony of Albaitis and Gogin which was, after their direct testimony, given to the defendant. Although the defendant offered no compelling reasons for the disclosure, he now argues that he was deprived of his constitutional rights to confrontation and due process of law. We find no merit in these claims.

The defendant in a criminal prosecution has a constitutional right to confront the witnesses against him. Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); see also State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985). The Supreme Court, however, has held that a denial of access to grand jury transcripts is not a violation of the confrontation clause. Pennsylvania v. Ritchie, 309 U.S. 316, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). This court’s recent analysis is consistent with Ritchie in stating that “the right to confrontation is the right to cross-examine and not the right to an all-inclusive cross examination.” State v. D' Ambrosio, 14 Conn. App. 309, 316, 541 A.2d 880 (1988).

The defendant’s claim that nondisclosure of the transcript offended his due process rights is, likewise incorrect. This court has recently stated in State v. Waterman, 7 Conn. App. 326, 345, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986): “A defendant has no absolute right to inspect investigative grand jury testimony for the purpose of assisting him in preparation of a defense.” (Citation omitted.) Connecticut case law is rich with citations that the safeguarding of the secrecy of the grand jury is an important task that the trial courts assume. See, In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 709-712, 501 A.2d 377 (1985); In re Investigation of the Grand Juror, 4 Conn. App. 544, 553, 495 A.2d 1098 (1985). Because of the important interests in preserving secrecy, a party requesting disclosure must make a showing of a “particularized need. ” In re Final Grand Jury Report Concerning the Torrington Police Department, supra, 712. Further, the trial court’s decision on disclosure is entitled to every reasonable presumption of correctness. Id., 714. In this case, the defendant made no such showing. The defendant merely asserted, in conclusory terms, that a general rule of disclosure of the transcript would be more advantageous. The trial court did not err in ruling that the defendant did not meet this burden of particularized need.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-148. “bribe receiving: class d felony, (a) A public servant or a person selected to be a public servant is guilty of bribe receiving if he solicits, accepts or agrees to accept from another any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote.”

       The defendant informed Albaitis that the lowest bid on the construction contract for the drainage of the high school field was $16,295. After the silent bidding was closed, the defendant handed Albaitis the necessary bid bond and subsequently accepted the altered bid. Albaitis changed his original bid of $64,000 to $16,195 and, as a result, was awarded the contract. The second contract called for building graduation steps at the high school. Once again, after informing Albaitis of the lowest bid and after the bidding was closed, the defendant accepted Albaitis’ altered bid from $50,000 to $32,455.

       On the brook blasting contract, the defendant called Albaitis and the two inspected the brook. After inspection, Albaitis estimated the price of the work at $6500. The defendant, later, phoned Albaitis and informed him that the contract was his for $4000 with $1000 payable for receiving the contract.

       Prior to its repeal by Public Acts 1985, No. 85-611, General Statutes § 54-47 (b) provided in relevant part: “The chief state’s attorney . . . may also apply to the chief court administrator for an order that an inquiry be made to determine whether or not there is probable cause to believe that a crime or crimes have been committed.”

       See footnote 1, supra.

       General Statutes § 53a-161b. “disclosure of bid or proposal: class a misdemeanor. Unless otherwise required by law, the prices quoted in a bid or proposal for any contract to be awarded by any commission, agency or department of the state or any political subdivision of the state shall not be disclosed by the bidder or offeror prior to the opening, in the case of a bid, or prior to the award, in the case of a proposal, directly or indirectly to any other bidder or offeror or to any competitor. Any person who violates the provisions of this section shall be guilty of a class A misdemeanor.” (Emphasis added.)

       Model Penal Code § 240.1 (Proposed Official Draft 1962) also defined bribery as requiring a “decision, opinion, recommendation, vote or other exercise of discretion . . . .” The comment on that particular section notes: “The official action focuses on decision-making, i.e., upon the exercise of discretion by the designated person. It is designed to include minor ministerial acts as well as major decisions of policy.” (Emphasis added.) Id.

       In summarizing the proposed legislation that would become § 53a-161b, Representative Richard D. Tulisano explained that the purpose was to “disallow inside dealing between competitors to fix prices and restrict price competition in bidding against, in dealing with both the State and political subdivisions of the State. (Emphasis added.) 23 H.R. Proc., Pt. 20, 1980 Sess., p. 5938.

       “Safeguarding the confidentiality of grand jury proceedings serves a number of functions. ‘First, if [precharging] proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. . . . Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.’ ” In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 709-712, 501 A.2d 377 (1985), quoting Douglas Oil v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979).


author: Foti, J.

text:
    State of Connecticut v. David Yednock
    (5863)
    Daly, Bieluch and Foti, Js.
    Argued February 16
    decision released May 3, 1988

      John C. McBride, pro hac vice, for the appellant (defendant).

      C. Robert Satti, Sr., state’s attorney, with whom, on the brief, was Irving L. Aronson, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, injury or risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21, and delivery of liquor to a minor in violation of General Statutes § 30-86. The defendant claims on appeal that the court erred (1) in allowing an out-of-court statement of the victim to be read to the jury in lieu of her own verbal testimony, (2) in allowing the state to proceed on the original information, (3) in denying a request for a continuance, and (4) in admitting a prior oral statement of the victim for the limited purpose of impeachment only. We find no error.

From the evidence presented, the jury could reasonably have found the following facts. The victim, who was fifteen years of age at the time of the trial and fourteen years of age at the time of the offenses, had known the defendant for some time prior to the assault and had babysat for his children several times during the eighteen months prior to the assault. In early November of 1985, the victim and a girlfriend went to the defendant’s home to visit his wife. When they arrived, the defendant told them his wife was not at home but was expected to return at approximately 10:30 p.m. The girls decided to stay and visit with the defendant’s children. The defendant, who was visiting with a male friend, asked the girls if they wanted some soda. He gave them soda which had something else in it. The victim subsequently saw the defendant putting vodka in a second drink which he gave to her. She had three of these drinks. A short time later, after the defendant had taken a shower, he called the victim into the bedroom, kissed her and touched her breasts through her clothing.

Several nights later, the victim and her girlfriend again went to the defendant’s home to visit with the defendant’s wife. The defendant was the only one there. He gave the girls vodka to drink, took a shower, and went into the bedroom where he called for both girls, saying he wanted to show them something. The defendant wore only a towel. After they entered the room, the defendant closed the bedroom door and turned off the light. The victim thought he would kiss her again, so she went into the living room. She started to feel ill from drinking and was told by the defendant to go into the bedroom and lie down. After she did this, the defendant and her girlfriend came back into the bedroom; all three laid on the bed with the defendant holding both girls down. The defendant first attempted to remove the girlfriend’s pants, but the defendant let the girl go after she said she had to go to the bathroom. The defendant then removed the victim’s clothing, kissed her breasts and placed his finger in her vagina. She asked him a number of times to stop but he would not. He then got on top of her and succeeded in having vaginal intercourse with her. She told him he was hurting her and to stop, but he would not. A short time later, there was a knock at the front door. The defendant released the victim, got dressed and told the victim to get dressed. She went into the bathroom and discovered that she was bleeding from her vagina. Her girlfriend came into the bathroom and the victim told her that the defendant had forced her to have sex. After she arrived home that night, the victim told her sister what had happened, but did not tell her mother because she was embarrassed. In addition to telling her sister and the girlfriend who had been in the apartment with her, the victim also told two other girlfriends about what had happened. About a month later, she told her mother and subsequently reported the assault to the police.

I

The defendant’s first and principal claim is that the trial court erred in permitting the prosecution to read into evidence, for substantive purposes, a prior out-of-court statement of the victim. In particular, the defendant claims that the court erred in relying on State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), for its conclusion that the victim’s out-of-court statement was admissible for substantive purposes.

The facts relevant to this claim of error are as follows. At trial, the victim testified regarding the events prior to the actual alleged assault. When asked to describe the particulars of the assault, the victim told the court that she did not want to talk about it any more. When the court attempted to elicit testimony from her, she became agitated and started to cry. The court excused the victim and the jury, and called the victim’s advocate to the stand. The advocate testified that the victim was angry, frightened and emotionally upset by the prospect of testifying about the details of the assault before the jury and the defendant. After receiving the advocate’s testimony, the court concluded that the victim was under such stress that it was inappropriate to require her to give direct testimony. After recalling the victim and the jury, the prosecution was permitted to read into evidence the victim’s out-of-court statement which gave the details of the alleged assault. The victim adopted the statement and testified to the events which followed the alleged assault. The defendant’s counsel was then permitted to pursue an unlimited cross-examination of the victim, including examining her on the details of the assault as it was related in her out-of-court statement.

The defendant contends that the holding in State v. Whelan, supra, is limited to the admissibility of out-of-court statements which are inconsistent with the witness’ trial testimony and are otherwise shown to be reliable through cross-examination. Although we agree with the defendant that the trial court was mistaken in concluding that the proffered evidence and facts of this case were on “all fours” with Whelan, we cannot, however, agree that the court erred in admitting the proffered out-of-court statement under the principles articulated in that case. In addition, we note that the victim’s out-of-court statement, which was read into evidence, was not admissible under the constancy of accusation exception; State v. Ouellette, 190 Conn. 84, 459 A.2d 1005 (1983); C. Tait & J. LaPlante Connecticut Evidence (2d Ed.) § 11.22; nor was it admissible as a prior inconsistent statement admissible for impeachment purposes. State v. Villafane, 171 Conn. 644, 672, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). This case, therefore, presents issues of first impression.

In State v. Whelan, supra, our Supreme Court was asked to determine the admissibility of a prior out-of-court identification for substantive purposes. As in this case, the declarant in Whelan was available and took the stand. He testified, however, that he had no recollection of the assailant and could not or would not vouch for the credibility of his own out-of-court statement which identified the defendant as his assailant. The court then allowed the prior out-of-court identification into evidence for substantive purposes.

In Whelan, the court noted that the reason prior inconsistent out-of-court statements were not generally admissible for substantive purposes was because the “declarant was not (1) under oath and subject to punishment for perjury, (2) in the presence of the trier of fact, or subject to cross-examination” at time the statement was made. Id., 749. These are essentially the policy reasons for excluding all hearsay testimony offered for its truth. These are also the reasons prior consistent statements are generally admissible only when accompanied by an instruction that the testimony be considered solely to evaluate the witness’ credibility; State v. Brown, 187 Conn. 602, 609-10, 447 A.2d 734 (1982); and then only after the witness has testified as to the facts in the out-of-court statement.

In rejecting the orthodox view that prior inconsistent statements are not admissible for substantive purposes, the Whelan court reasoned that when a declarant is available for cross-examination, on the prior out-of-court statement, that cross-examination is likely to be meaningful. It is for the jury to determine whether to believe the prior statement or reject it. “Moreover, prior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy. . . . Quite simply, when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning both [her] out-of-court and in-court statements, ‘the usual dangers of hearsay are largely nonexistent . . . .’ California v. Green, 399 U.S. 149, 155, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).” State v. Whelan, supra, 750-51. A trial is a search for an objective account of the events upon which criminal charges are based. An evidentiary rule which requires the trial court to exclude relevant evidence the reliability of which can be tested by cross-examination serves no purpose. State v. Whelan, supra.

The Whelan court noted that under California v. Green, supra, the use of prior inconsistent statements for substantive purposes does not violate the confrontation clause. State v. Whelan, supra, 751 n.6. More recently, the United States Supreme Court concluded that the use of prior consistent out-of-court identifications, offered for substantive purposes, does not offend the confrontation clause if the declarant is present at trial and subject to cross-examination. United States v. Owens, U.S. , 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). “ ‘The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is moved by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.’ ” Delaware v. Fensterer, 474 U.S. 15, 21-22, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985), quoted in United States v. Owens, supra, 957. The confrontation clause does not guarantee the defense the cross-examination it wishes, but only an opportunity for effective cross-examination. Delaware v. Fensterer, supra.

In United States v. Owens, supra, the victim gave an out-of-court identification of his attacker. During the trial, however, he testified that he was unable to identify the defendant as his asssailant. The victim did, however, testify that he clearly remembered making the out-of-court identification which named the defendant as his assailant. The court admitted the out-of-court identification for substantive purposes, reasoning that the defense could fully cross-examine the witness and the trier could judge the witness’ credibility.

In this case, the victim was able to adopt her out-of-court statement relating the details of the assault, and she was fully cross-examined on the statement itself. During her cross-examination, she corroborated particular facts represented in the statement and rejected facts, proffered by the prosecution, which were inconsistent with her out-of-court statement. The court did not, at any time, restrain defense counsel’s cross-examination. The victim’s out-of-court statement in this case, complied with the safeguards established by Whelan for the admissibility of prior out-of-court statements for substantive purposes and conforms to the requirement in Owens that the declarant be subject to a full cross-examination on his consistent out-of-court statement.

In concluding that the trial court did not err in admitting into evidence the victim’s prior out-of-court statement, we find instructive our Supreme Court’s recent decision in State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, U.S. , 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). In Jarzbek, which was decided before the legislature enacted General Statutes § 54-86g, the court concluded that the videotaped testimony of a minor, who was the victim of an alleged sexual assault, is admissible, under certain circumstances, in lieu of live testimony. The court reasoned: “Taking as our point of departure the truth-enhancing goals of the confrontation clauses, we conclude that they should not be construed so strictly as to preclude the state, in particular circumstances, from establishing a compelling need to have a minor victim of tender years testify outside the physical presence of his or her alleged sexual assaulter. We cannot discount the possibility that such a witness might be intimidated, or for any number of reasons inhibited, by the presence of the accused. For example, a minor victim may refuse to testify or may distort his or her testimony because he or she has been threatened by the defendant or is overwhelmed by feelings of guilt.” State v. Jarzbek, supra, 703. In Jarzbek, the court concluded that, after an evidentiary hearing where appropriate circumstances are shown to exist, the state should be permitted to substitute out-of-court testimony for live testimony.

In this case, after the victim refused to testify regarding the details of the assault, the court conducted a hearing on the victim’s emotional ability to give direct testimony. After the testimony of the victim’s advocate, the court concluded that it would be appropriate to admit her out-of-court statement in lieu of direct testimony. We believe that the procedure followed by the court is consistent with the conclusion that “protecting the physical and psychological well being of children is a compelling state interest.” Id., 701.

Here, the victim’s prior out-of-court statement (1) was written, (2) it was signed by the declarant, (3) she had personal knowledge of the facts stated in it, and (4) she was cross-examined on the particulars represented in the statement. Finally, the court conducted a hearing to determine the appropriateness of allowing the statement into evidence before admitting it in lieu of direct testimony. We believe, therefore, that the orthodox concerns about the trustworthiness of out-of-court statements offered for their truth was overcome by the procedures followed in this case. We also conclude that the defendant’s right to confront the witnesses against him was protected by these procedures.

II

The defendant’s second claim is that the trial court erred in permitting the prosecution to “amend” the information by withdrawing the charge of sexual assault in the first degree, and then reviving that charge on the day of trial. The defendant was originally charged with three counts: (1) sexual assault; (2) risk of injury; and (3) delivering alcoholic liquor to a minor. After the jury was selected, counsel conferred with the court in chambers. During the conference, the prosecution indicated that the victim was not going to testify regarding the sexual assault count. After the prosecution indicated a willingness to withdraw the sexual assault count, a discussion followed as to whether the appropriate procedure would be for the court to direct the verdict on that count or for the prosecution to file a substitute information. The court informed the prosecution that it preferred that the information be amended. The jury was then reconvened and court was adjourned until the next day. The court did not, at that time, give any instruction regarding the sexual assault count. The next morning, the prosecution informed the court that the victim was now prepared to testify about the assault and that the prosecution was prepared to proceed with the information as filed. Defense counsel objected, claiming that the assault charge had been withdrawn. The court ruled that the state could proceed on the information as it was originally filed. The jury was called and the court proceeded to swear them in.

The defendant contends that when the prosecution agreed that it would be willing to amend the information to withdraw the sexual assault count it effectively amended the information. In support of this argument, the defendant relies on case law from Arkansas and Louisiana. Our rules of practice provide that the prosecution may amend the information by adding counts before trial begins. Practice Book § 623. After commencement of trial, the prosecution may amend the information at any time before a verdict or finding, if no additional or different offense is charged. Practice Book § 624. For the purpose of these rules, the trial begins at the voir dire. State v. Cole, 8 Conn. App. 545, 513 A.2d 752 (1986). The policy for prohibiting the prosecution from adding to the seriousness of the crimes charged in the information, after voir dire has begun, is to guarantee an effective voir dire and to “protect a defendant’s right to fair and adequate notice of the charges against him so as to afford him an opportunity to prepare an adequate defense.” Id., 550.

In this case, defense counsel conducted the voir dire assuming that the prosecution was going to prosecute the defendant on all three counts of the information. It was only after the jury was selected and counsel conferred with the court in chambers that defense counsel learned of the prosecution’s intention to withdraw the sexual assault count. This conference occurred at 4 p.m. on November 24,1986, and trial began at 11 a.m. on November 25, 1986. We conclude that the defendant was not denied an opportunity to conduct an effective voir dire; Id., 551; because his voir dire was conducted on the assumption that he would be tried on the more serious charge.

We also conclude that the defendant was not denied an opportunity to prepare an adequate defense as a consequence of the nineteen-hour hiatus during which he believed the sexual assault count was being withdrawn.

Ill

The defendant’s third claim of error is that the trial court erred in refusing to grant the defendant’s motion for a continuance to allow time for a defense witness to arrive from out of state. Prior to trial, the prosecution informed the court that its case would take approximately one day. On the basis of that representation, the court informed defense counsel that he should be prepared to begin presenting his case at 2 p.m., Tuesday, the first day of trial. The state rested at 3:45 p.m., Tuesday, at which time defense counsel informed the court that he had several witnesses ready to proceed, but one witness was coming from out of state and would not arrive until Friday. On Wednesday, the defendant had completed his case, except for the out-of-state witness, at 11:50 a.m., at which time the court adjourned until Friday at 9 a.m. On Friday, defense counsel informed the court that the witness had not arrived and that he was unable to contact the witness. At 10:20 a.m., Friday, court was reconvened and the'defendant’s motion for a further continuance was denied.

The granting or denial of a continuance is within the sound discretion of the court; State v. Olds, 171 Conn. 395, 402, 370 A.2d 969 (1976); and every reasonable presumption in favor of the proper exercise of that discretion must be given by a reviewing court. State v. McKnight, 191 Conn. 564, 577, 469 A.2d 397 (1983); M. Holden & J. Daly, Connecticut Evidence § 35. That discretion should, however, be exercised so as to accomplish the ends of substantial justice. State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976).

The trial court made every effort to comply with the requests of the defendant, delaying the trial for two days while the defendant allegedly arranged for the final witness’ attendance at trial. Under the circumstances of this case, we can find no abuse of discretion in the court’s refusal to grant the defendant’s motion for a further continuance.

We note that the defendant now claims that the out-of-state witness was critical to his case. He made no offer of proof, however, upon which the trial court could conclude that the witness’ testimony was central to the defense. “ ‘The short answer to this claim is that no offer of proof appears in the record as to the . . . content of the testimony the [defendant] sought to introduce. “Without knowing the answer that might be forthcoming we are unable to rule on this assignment of error.” ’ Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979), quoting Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971).” State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986).

IV

The defendant’s final claim is that the trial court erred in instructing the jury that an oral out-of-court statement made by the victim during an argument with the defendant’s wife was admissible for the limited purpose of testing the credibility of the victim. Approximately one month after the alleged assault, the victim and the defendant’s wife encountered each other in a local laundromat. An argument ensued regarding the victim’s accusations about the defendant. During the argument the victim allegedly stated that the defendant had “never touched” her. The defendant claims that this was an excited utterance because it was “blurted out” during the argument and was, therefore, admissible for its truth. The court disagreed and limited the statement’s use to testing the credibility of the victim.

An excited or spontaneous utterance is admissible if it “(1) follows a startling occurrence, (2) relates to that occurrence, (3) is made by someone having an opportunity to observe the occurrence, and (4) is made under circumstances that indicate that it is a spontaneous utterance caused by the excitement of the declarant and that negate an opportunity for deliberation and fabrication.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.11.a; Johnson v. Newell, 160 Conn. 269, 278-79, 278 A.2d 776 (1971). Here, the victim’s statement was not about the argument with the defendant’s wife but about the alleged assault which occurred more than a month before the argument. Thus, the statement does not meet either the first or second requirement for an excited utterance. Absent some other indicia of reliability, which would justify admitting the statement for substantive purposes; State v. Whelan, supra; we conclude that the statement was properly admitted as a prior inconsistent statement for the limited purpose of impeaching the credibility of the victim. See State v. Reid, 193 Conn. 646, 652, 480 A.2d 463 (1984).

There is no error.

In this opinion the other judges concurred.

       The declarant’s out-of-court statement was (1) written, (2) she had signed it, and (3) she had a personal knowledge of those facts when she testified and was cross-examined. State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       General Statutes § 54-86g provides: “(a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. The attorneys and the judge may question the child. The defendant may observe and hear the testimony of the child and may consult with his attorney, but the court shall ensure that the child cannot hear or see the defendant.”

       Practice Book § 623 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in his discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.”

       Practice Book § 624 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”


author: Stoughton, J.

text:
    Troy Bodak et al. v. Vito Masotti
    (5576)
    Dupont, C. J., Borden and Stoughton, Js.
    Argued February 11
    decision released May 3, 1988

      Neil F. Murphy, Jr., with whom were Philip N. Walker, and, on the brief, Lawrence J. Kiel, for the appellants (plaintiffs).

      Joseph F. Skelley, Jr., with whom, on the brief, were Patrick O’Sullivan, Deborah L. Bradley and Carl F. Yeich, for the appellee (defendant).
   Stoughton, J.

The plaintiffs appeal from a judgment rendered on a jury verdict in favor of the defendant. We find no error.

The plaintiffs claim that the court erred (1) in failing to set aside the verdict because improper comments by defense counsel induced the jury to reach its conclusion through speculation, surmise or conjecture, (2) in denying the plaintiffs’ motion in limine and permitting cross-examination which exceeded the scope of direct examination of a witness, (3) in excluding evidence of an alleged spontaneous utterance of a witness, (4) in excluding testimony by the minor plaintiff as to an alleged spontaneous utterance by him, and (5) in its charge permitting the jury to consider a special defense raising a violation of General Statutes § 14-222 as applied to the minor plaintiff, who was racing his bicycle.

This action arose out of a collision which occurred on August 23,1982, at a T-intersection in Bristol between a bicycle being ridden by the minor named plaintiff, eight year old Troy Bodak, and a pickup truck being driven by the defendant. The trial was hotly contested and the evidence sharply disputed. From the evidence which was offered, the jury might reasonably have found the following facts.

Peck Lane is a public street in Bristol which runs north and south in the vicinity of its intersection with Maywood Lane. Maywood Lane is a dead-end street which runs east and west and intersects at its east end with Peck Lane. Maywood Lane slopes generally downward toward the intersection, and Peck Lane slopes upward to the south from the vicinity of the intersection. In that vicinity, the speed limit on Peck Lane is thirty miles per hour.

During the early afternoon of August 23, 1982, the defendant was driving his truck in a southerly direction along Peck Lane and travelling at twenty-five to thirty miles per hour. Troy Bodak and Marcel Dionne, another boy of about the same age, both of whom lived on Maywood Lane, were racing on their bicycles down Maywood Lane toward the intersection with Peck Lane. The other boy was able to stop before entering Peck Lane, but Bodak skidded on some sand close to the intersection and his foot slipped off the pedal. He saw the truck as he entered the intersection, but he could not avoid it. The defendant did not see the bicycle before it entered the intersection and a collision occurred.

In a substitute complaint, the plaintiffs alleged that the defendant was negligent in that (1) he failed to yield the right-of-way to the bicycle, (2) he operated his vehicle recklessly, (3) he failed and neglected to keep his vehicle under proper control and turn his vehicle, (4) he was inattentive and failed to keep a proper lookout, and (5) he operated his vehicle at a greater speed than was reasonable.

The defendant, by way of special defense, claimed that the minor plaintiff was negligent, reciting substantially similar specifications of negligence.

After a trial, the jury returned a verdict for the defendant. The plaintiffs moved to set aside the verdict, and this appeal followed the denial of their motion.

I

The plaintiffs’ first claim is that the trial court ought to have set aside the verdict because the jury could not have found for the defendant except through speculation induced by improper comments of counsel. The thrust of the plaintiffs’ argument is that the testimony of the plaintiffs was credible, while the credibility of the defendant had been destroyed. Arguing from that premise, a most infirm foundation given the unquestioned right of the jury to determine credibility, the plaintiffs assert that the defendant introduced facts not in evidence during his argument to the jury. This tactic, say the plaintiffs, required that the court issue a curative instruction which was more detailed than its general admonition to disregard matters not in evidence.

Practice Book § 4065 (d) (2) provides that when error is claimed in a case, the brief or appendix shall include the objection, the ruling, any exception and a statement of any relevant evidence where necessary to understand the ruling. It is not enough simply to refer in the brief to pages of the trial transcript. Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 243, 522 A.2d 829 (1987). We will not ordinarily consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon adversely to the appellant’s claim. State v. Simms, 170 Conn. 206, 208, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976). The reason for this rule is so that the trial court may be alerted to an error while there is time to correct it. State v. Rogers, 9 Conn. App. 208, 212, 518 A.2d 399 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1288, cert. denied, 481 U.S. 1051, 107 S. Ct. 2185, 95 L. Ed. 2d 841 (1986).

The plaintiffs in their brief have quoted only one remark from the defendant’s argument: “We call this a dart out . . . somebody darts out from between two parked cars.” The full quotation is as follows: “This is an unfortunate accident. This is what we call a dart out. Somebody darts out from an intersection; somebody darts out from between two parked cars.” The plaintiffs did not object to this argument at the time it was made, nor did they complain about it at the conclusion of the arguments. After a discussion between court and counsel, the plaintiffs’ counsel said specifically: “We have avoided the — we call this a duck out case.” The plaintiffs’ claim has not been properly preserved for review, but even if it had been, we do not consider it to be of merit.

After the arguments had taken place, there was an off-the-record conference between the court and counsel concerning the charge to be given. It is obvious that the trial court attempted to resolve some of the conflicting claims made by counsel at this conference. Thereafter, the court entertained comments on the record, and counsel for the plaintiffs complained that during argument counsel for the defendant brought up a formula which was confusing and improper, and the plaintiffs’ counsel said: “[Tjhat’s what we objected to . . . .” We take this to be an objection to a portion of the defense counsel’s argument, although the record is far from clear on this point. The objection was that no expert had testified to the time it would take a vehicle to travel a particular distance.

During his argument to the jury, the defense counsel made the following observation: “Now, we’ll talk about measurements, ok? If you can do long division, and I’m sure you all can, and you take 5280, which is how many feet is in a yard, and divide it by 60, which is 60 miles an hour, you can discover that a vehicle going 60 miles an hour, covers 88 feet in a second. And a truck or car going half that speed covers half that distance, 44 feet in a second. Now, we know, at least we have uncontradicted testimony, that Mr. Masotti said he was going 25 to 30 . . . .” It is true that this is confusing because it uses “yard” where it should have used “mile,” and because it omits some steps in the calculation. Nevertheless, it is a familiar formula and reaches a correct result. Defense counsel excepted to the charge as follows: “And the second is to the fact that the court did not accept or, I should say charge out, what we objected to strenuously in terms of counsel’s discussion of measurement, distance, time— effectively a mathematical formula that was not in evidence.”

The jury members were capable of transposing miles per hour to feet per second through the use of figures and methods known to elementary school children, and there was no impropriety in suggesting that they do so.

The plaintiffs also complain that the defense counsel referred to potential psychological problems of a witness and broached the concept of pecuniary interest. They have not printed the argument to which they object, nor did they raise this claim before the trial court. Therefore, we decline to consider it.

II

The plaintiffs next claim that the trial court erred in refusing to grant a motion in limine by which they sought to limit cross-examination of a police officer. The record contains no written motion in limine filed by the plaintiffs. In their brief, the plaintiffs assert that they called Kenneth Sámele, a police officer, in order to have him describe the scene of the accident. They • claim that the court erred in permitting the defense counsel to go beyond the scope of the direct examination, to establish a point of impact through Sámele, and to elicit comments from Sámele on the operation of the defendant’s vehicle.

The plaintiffs have printed only one of the questions asked of Sámele, together with the objection thereto. They have not printed any of his answers, any other objections to questions, any other rulings by the court or any exceptions. For the reasons stated earlier, these claims of the plaintiffs are simply not reviewable.

Even if there were a ruling of the court which had been properly preserved for review, our reading of the transcript demonstrates that, outside the presence of the jury, the plaintiffs’ counsel asked Sámele if he had determined what he thought was the point of impact, and in the presence of the jury asked Sámele whether he had taken measurements from which he could estimate how far he found Bodak from a corner of the intersection. These questions opened the door sufficiently so that defense counsel could explore the measurements which in fact were taken from what Sámele thought was the point of impact.

Ill

The plaintiffs also claim that the court erred in excluding certain testimony which they have characterized as spontaneous utterances.

The first of these statements was made by Marcel Dionne to his mother about twenty minutes after the accident. After Dionne had run to his house to get a pillow for Bodak, and after the ambulance had arrived, Mrs. Dionne went home with Dionne. Two policemen went along and questioned Dionne about what had happened. After Dionne had given some information, his mother decided that the boy was becoming hysterical and she told the police to leave. Dionne then told his mother that the man in the truck was not looking. The plaintiffs sought to introduce this statement as a spontaneous utterance.

Whether the utterance was spontaneous and made without opportunity for deliberation and reflection is a question for the trial judge, and his conclusion controls unless it be found to have been an unreasonable exercise of discretion. State v. Chesney, 166 Conn. 630, 634, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974); Perry v. Haritos, 100 Conn. 476, 485, 124 A. 44 (1924). We find no such abuse of discretion. In any event, Dionne had testified similarly before the jury. Ordinarily, a party may not strengthen the testimony of a witness by showing that he had made previous statements to the same effect. State v. Pollitt, 205 Conn. 61, 76, 530 A.2d 155 (1987); State v. Harris, 10 Conn. App. 217, 237, 522 A.2d 323 (1987).

The plaintiffs also claimed at trial that Dionne had been impeached by the suggestion of bias because of his friendship with Bodak, and that the statement was admissible as a prior consistent statement to rehabilitate the witness. This exception to the general rule does not apply unless the claimed bias has arisen after the making of the statement. State v. Pollitt, supra, 77. The plaintiffs claim in their brief, for the first time, that the statement should have been admitted as a response to a suggestion of recent fabrication. See State v. Dolphin, 178 Conn. 564, 568 n.5, 424 A.2d 266 (1979). Since this claim was not made in the trial court we refuse to consider it. State v. Simms, supra, 208. Furthermore, there was no finding by the trial court that the witness had been impeached by a suggestion of recent fabrication, and such a finding must be made before the prior consistent statement can be admitted. State v. Ouellette, 190 Conn. 84, 98, 459 A.2d 1005 (1983).

The second of the claimed spontaneous utterances was made by Bodak in the hospital recovery room. The boy remembered being in the ambulance, waking up in the operating room, and then waking up in the recovery room. At that time, he saw his mother and his godmother, and he remembered telling his mother that the driver of the truck was not looking because he did not want to be blamed for riding on Peck Lane. The trial court did not abuse its discretion in deciding that this was not a spontaneous utterance. Bodak testified at the trial, as did Dionne, that the defendant was looking to his left at the time of the accident. The plaintiffs have claimed in their brief that the statement made by Bodak at the hospital was admissible for rehabilitative purposes. We have examined the transcript of Bodak’s testimony and find that no such claim was made in the trial court. Therefore, we decline to consider it now.

IV

Finally, the plaintiffs claim that the court erred in charging that the minor plaintiff who was racing his bicycle could be guilty of reckless driving pursuant to General Statutes § 14-222.

Practice Book § 4065 (d) (2) requires that when error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. The plaintiffs have failed to comply with this rule. References in their brief to pages in the transcript do not constitute compliance. Shenefield v. Greenwich Hospital Assn., supra, 243. Furthermore, we have examined the transcript and conclude that the trial court was not clearly alerted by any exception to the charge to the claim made in the brief that the operator of a bicycle could not be guilty of reckless driving.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs have printed only the following excerpt from Samele’s testimony:
      “Q. And it’s true, is it not that in addition to interviewing him you did other things as part of your investigation of this accident?
      “Mr. Murphy: Objection, Your Honor. Leading question.
      “Mr. O’Sullivan: This is cross-examination, Your Honor.
      “Mr. Murphy: It’s cross-examination but as the Court well knows he’s effectively using the officer as his witness at this juncture.
      “The Court: I know. I indicated previously that I would allow full direct and cross-examination by both counsel of this police officer.
      “So objection overruled.”