text:
    State of Connecticut v. Leroy Scott
    (4674)
    Borden, Spallone and Bieluch, Js.
    Argued February 3
    decision released May 26, 1987

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark, assistant state’s attorney, and Thomas V. O’Keefe, former assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and one count of larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) (3). He claims that the court erred (1) in denying his motion in limine, which sought to preclude the state from cross-examining him regarding other sexual misconduct, (2) in refusing to charge that the state was required to prove, as an essential element of the sexual assault charges, that the defendant and the victim were not married to each other, and concomitantly, in refusing to rule that proof of that claimed essential element was lacking, and (3) in permitting the jury to consider two factual bases for the larceny verdict, one of which was not proven beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. Late in the evening of Monday, August 13,1984, the defendant picked up the victim in New Haven while she was hitchhiking. The victim was wearing jeans and a tee shirt, and was not carrying a purse. She had a silver ring on her finger, and was carrying a key ring with a turquoise ring attached to it. The defendant drove the victim to the top of the New Haven Coliseum parking garage, where he stripped her of her clothing, hit her and forced her to submit, in the car, to vaginal intercourse and fellatio. Thereafter, while the victim was naked and outside the car, the defendant kicked her and knocked her down. In response to her request, he gave her back her jeans and then drove away. A subsequent search of the defendant’s bedroom yielded the victim’s two rings.

I

The defendant first claims that the court erred in denying his motion in limine which attempted to preclude the state from cross-examining him about his presence with a woman at the Coliseum parking garage on the night after the assault on the victim. Specifically, he claims that the court erred by failing to rule in advance that the state was limited in its cross-examination of the defendant to the scope of his proposed direct testimony, and by ruling that the state could cross-examine him concerning a specific act of sexual misconduct. We disagree.

This claim arose in the following procedural context. The defendant was employed at the Coliseum garage. Following his arrest, he was interviewed by the New Haven police. He denied involvement in the assault on the victim, which took place on Monday, August 13, 1984. He also stated to the police, however, that on the following evening, Tuesday, August 14, 1984, he had taken a woman to level A of the garage where he engaged in consensual sexual relations with her.

By his motion in limine, the defendant sought a ruling from the court that would prohibit the state from cross-examining him about this event if he testified on his own behalf. Defense counsel represented that it was her intention, on direct examination of the defendant, not to ask any questions about Tuesday, August 14, the night following the alleged attack, about girlfriends, or about frequenting the garage for sexual purposes. Therefore, the defendant argues, the court should have ruled that the state was prohibited from cross-examining him about his presence at the garage the following evening with another woman. The state indicated that, if the defendant testified, it intended to cross-examine him about his presence at the Coliseum on Tuesday evening and who was with him. It did not, however, intend to ask him about his sexual conduct with the woman. The basis of the defendant’s argument was twofold: (1) the state’s cross-examination would exceed the scope of the defendant’s proposed direct examination; and (2) even with the state’s intended limitation, the evidence would implicitly bring into play the defendant’s sexual conduct with another woman, in violation of the Supreme Court’s decision in State v. Rothenberg, 195 Conn. 253, 262, 487 A.2d 545 (1985), and the prejudicial effect of the evidence would outweigh its probative value. The court denied the defendant’s motion. The defendant promptly stated that, in view of the court’s ruling, he would not testify, and invited the court to reconsider its ruling. The court declined to do so.

We first consider the defendant’s claim that the court’s ruling violated the rule confining cross-examination of a witness to the scope of the direct examination. We conclude that the court acted within its discretion in rejecting the claim of the defendant because the procedure employed by the defendant, namely, a motion in limine, was an inappropriate vehicle for adequately presenting to us the question of the propriety of the trial court’s ruling.

The procedure employed by the defendant was obviously based on the procedures approved by the Supreme Court in cases such as State v. Binet, 192 Conn. 618, 473 A.2d 1200 (1984), State v. Iasevoli, 188 Conn. 325, 449 A.2d 996 (1982), and State v. Nardini, 187 Conn. 513, 447 A.2d 396 (1982), and by this court in State v. Sergi, 7 Conn. App. 445, 509 A.2d 56, cert. denied, 201 Conn. 806, 515 A.2d 380 (1986), State v. Garcia, 7 Conn. App. 367, 509 A.2d 31 (1986), and State v. Murrell, 7 Conn. App. 75, 507 A.2d 1033 (1986). In those cases, the defendants were permitted to seek a ruling, prior to their direct examination, on whether certain of their prior convictions would be admissible on cross-examination to impeach their credibility. Those cases did not, however, involve the quite different question of whether certain proffered cross-examination would be within the scope of the defendant’s proffered direct examination. Nor are we aware of any cases approving use of the motion in limine as a vehicle to challenge potential cross-examination as outside the scope of what is only inchoate direct examination. Thus, the defendant’s reliance on the Burnt, Iasevoli and Nardini line of cases was unjustified.

Our Supreme Court subsequently, and prospectively, disapproved of that procedure, and now requires “that to ‘raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.’ Luce v. United States, [469 U.S. 38, 43, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984)].” State v. Harrell, 199 Conn. 255, 265-66, 506 A.2d 1041 (1986). The reasons for this new rule requiring the defendant to testify in order to challenge impeachment evidence are to supply the reviewing court with a complete record, thus permitting it to gauge the possible impact of the impeachment evidence on the verdict, and to apply a factual context within which a reviewing court can gauge the propriety of the trial court’s action in performing its subtle, balancing-type evidentiary rulings. Id., 266.

The same reasoning applies with even more force to the defendant’s attempt, in advance of any direct examination, to bar cross-examination beyond the scope of the intended direct examination. Although cross-examination is restricted to the matters covered in direct examination, except insofar as the cross-examination relates to credibility; State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985); such restriction rests in the trial court’s sound discretion. Id. A question on cross-examination is within the scope of the direct examination “if it is designed to ‘rebut, impeach, modify, or explain any of the defendant’s direct testimony.’ ” Id., quoting State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977). In determining whether cross-examination is within the scope of the direct examination, “the trial court is allowed a liberal discretion . . . .” Akers v. Singer, 158 Conn. 29, 36, 255 A.2d 858 (1969).

Given this discretion laden and fact bound standard, it is clear that a proper appellate determination of whether a trial court has erred in permitting a particular question or line of inquiry to be attacked on cross-examination can only be made upon “ ‘a complete record detailing the nature of [the defendant’s] testimony, [and] the scope of the [direct] examination . . . . ’ ” State v. Harrell, supra, 266, quoting Luce v. United States, supra, 41. Without such a record, we are “particularly ‘handicapped in any effort to rule on subtle evidentiary questions outside a factual context.’ ” Id. In order to accomplish this task, we “ ‘must know the precise nature of the defendant’s testimony which is unknowable when . . . the defendant does not testify.’ ” Id.

The assertion in this case by defense counsel that she did not intend to ask the defendant about the Tuesday night incident, about his girlfriends or about frequenting the garage for sexual purposes, cannot supplant the appellate requirement of an adequate trial record. The fact that she may not have intended to ask him such questions does not foreclose the possibility that, in answering other questions which she did ask, the defendant may have responded in such a way as to permit the trial court to exercise its broad discretion and permit the state to inquire about the Tuesday night occurrence and about his presence there with a woman. We have no way of knowing, nor could the trial court, what the scope of the defendant’s direct examination would have been, and whether, even with such limited questions directed to him by his counsel, his testimony would have embraced within its scope the proffered cross-examination by the state. Nor, for that matter, do we have any basis on which to know precisely what the state’s cross-examination would have been and whether, even if erroneously admitted, it would have been harmful enough to require reversal.

We turn, therefore, to the defendant’s further claims of error in this regard. The defendant claims that the court’s in limine ruling (1) improperly permitted cross-examination of the defendant concerning an act of sexual conduct, in violation of what the defendant claims to be the holding of State v. Rothenberg, supra, (2) improperly permitted the state to place the defendant’s character in issue, and (3) deprived him of his constitutional right to testify and to present a defense. The defendant’s claims, however, present an analysis unburdened by the law or by the facts in the record.

First, the defendant reads too expansively the language in State v. Rothenberg, supra, on which he relies. Our Supreme Court stated in Rothenberg “that sex crime defendants, like sex crime victims, should be shielded from unnecessarily prejudicial evidence of their prior sexual conduct.” Id., 262. This language is dictum, and is not the holding of the case. See id., 262-63. Our examination of the law discloses that subsequent to Rothenberg our Supreme Court has not seen fit to apply or even to repeat its broad language. See, e.g., State v. Morowitz, 200 Conn. 440, 444-47, 512 A.2d 175 (1986). Furthermore, even the dictum m Rothenberg would not shield a defendant from evidence of any prior sexual conduct, but only from “unnecessarily prejudicial evidence of [his] prior sexual conduct.” State v. Rothenberg, supra, 262. Thus, all that the broad Rothenberg language does is return the court to its traditional function of balancing the probative value of evidence against its prejudicial effect.

Second, it is equally clear that the evidence which the defendant sought to exclude would not have contained any reference to sexual conduct of the defendant. The state agreed to refrain from eliciting that part of the defendant’s statement.

Third, even if, as the defendant argues, the jury was to infer from the defendant’s statement that on Tuesday evening he was in fact engaging in sexual conduct with another woman in the garage, we are hard pressed to conclude that it would constitute evidence of the kind of serious misconduct of the defendant which would require a conclusion that its prejudicial effect outweighed its probative value. There certainly is no suggestion that the defendant’s Tuesday evening encounter involved forcible sex. Although the notion of consensual sex in a car in a public garage at night may offend good taste, we can hardly attribute, to a jury in today’s age, such prejudice from it that would require its exclusion on this record.

II

The defendant’s next two claims concern his conviction of two counts of sexual assault in the first degree, in violation of General Statutes § 53a-70 (a). Because these two claims of the defendant are intertwined, we address them together. The defendant claims that the trial court erred by failing to charge the jury, in accordance with his request to charge, on the definition of the term “sexual intercourse.” His request to charge included the statutory definition of the term, including the last sentence of that definition: “Its meaning is limited to persons not married to each other.” General Statutes § 53a-65 (2); see footnote 3, infra. The court did give the pertinent parts of the statutory definition of the term, but did not include the last sentence of the definition in its charge to the jury. The defendant also claims that the state’s proof was deficient because it did not establish beyond a reasonable doubt that the defendant and the victim were not married to each other.

The defendant argues that, by virtue of the last sentence of the definition of “sexual intercourse”; see footnote 3, supra; the absence of a marital relationship between the defendant and the victim is an essential element of the crime of sexual assault in the first degree, and that the court’s failure to charge on that element was error of both constitutional and nonconstitutional dimensions. We disagree. We conclude that the absence of a marital relationship between the defendant and the victim is not an essential element of the crime of sexual assault in the first degree. Therefore, the court did not err in omitting from its charge that portion of the statutory definition referring to non-marriage between the defendant and the victim, and the state was not required to establish the lack of a marital status as part of its case-in-chief.

The distinction between an essential element of an offense and an exemption from, or an exception or defense to, prosecution for an offense is well known in our law. See, e.g., State v. Januszewski, 182 Conn. 142, 165-66, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); State v. Tinsley, 181 Conn. 388, 402-403, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981). The state bears the burden of proving all essential elements beyond a reasonable doubt. Id., 165. With respect to an exception, exemption or defense, however, the defendant bears the initial burden of producing evidence of the applicability of the exception, exemption or defense, and the state then bears the burden to disprove it beyond a reasonable doubt. Id.; see General Statutes § 53a-12 (a). “Whether the existence of some fact is an essential element of a crime depends upon whether the existence of that fact forms a part of the conduct prohibited by the statute; that is, whether the fact in question is part of the corpus delicti.” State v. Januszewski, supra. On the basis of the common law and statutory history from which General Statutes §§ 53a-65 and 53a-70 (a) evolved, the logic of the various provisions of the sexual assault statutes, and case law in other jurisdictions, we conclude that the absence of a marital relationship between the defendant and the victim of a sexual assault is not an essential element of the crime. Rather, the existence of a marital relationship can be raised as an exemption or defense to prosecution for sexual assault in the first degree under § 53a-70 (a).

The common law principle that a man could not be guilty of raping his wife “is traceable to a statement made by the 17th century English jurist Lord Hale, who wrote: ‘[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.’ (1 Hale, History of Pleas of the Crown, p. 629).” People v. Liberta, 64 N.Y.2d 152, 162, 474 N.E.2d 567, 485 N.Y.S.2d 207 (1984); see also note, “Abolishing the Marital Exemption For Rape: A Statutory Proposal,” 1983 U. 111. L. Rev. 201, 202 (hereinafter “Abolishing the Marital Rape Exemption”). The first case in this country recognizing the marital exemption for rape was Commonwealth v. Fogerty, 74 Mass. (8 Gray) 489 (1857), in which the court held that a rape indictment need not allege that the victim was not married to the defendant, and stated in dictum that the defendant could raise marriage as a defense. See “Abolishing the Marital Rape Exemption,” supra. The common law defined rape as “ ‘carnal knowledge of a woman forcibly and against her will.’ ” Id., 206 n.29, quoting 4 W. Blackstone, Commentaries p. 210. The general rule at common law was that the lack of marital status between the defendant and victim was not an essential element of the crime of rape, and that such a marriage was a matter of defense; 65 Am. Jur. 2d, Rape § 50, p. 788; see, e.g., State v. Smith, 85 N.J. 193, 197-98, 426 A.2d 38 (1981) (referring to the common law “exemption” as a “defense”); Commonwealth v. Chretien, 383 Mass. 123, 127-28, 417 N.E.2d 1203 (1981) (referring to the “spousal exclusion” and “common law exception”); Warren v. State, 255 Ga. 151, 153-56, 336 S.E.2d 221 (1985) (referring to the “marital rape exemption” and “common law spousal exclusion”); although there were some courts which held, based on their states’ statutory definitions, that lack of marriage was an essential element of the crime. 65 Am. Jur. 2d, supra.

The defendant claims that Connecticut’s history establishes a departure from the widely prevailing view at common law. He argues that Connecticut’s common law rule was that nonmarriage of the defendant and the victim was an essential element of the crime of rape. We disagree. Although the historical evidence is murky, we read our history to establish that in Connecticut the issue of marriage vel non between the defendant and the victim of a sexual assault was treated in conformity with the general course of the common law elsewhere.

Although we have found no Connecticut cases specifically holding that at common law Connecticut adopted the marital exemption, Chief Justice Zephaniah Swift stated, in his famous Digest, that “a husband cannot by law be guilty of ravishing his wife, on account of the matrimonial consent which she cannot retract . . ' . ” 2 Z. Swift, Digest (1823) p. 295. It is significant that the theory of constructive consent on which Swift relied was precisely that posited by Lord Hale in the seventeenth century from which the marital exemption emanated. Swift’s dictum was obviously based on Hale’s, which was generally understood to create a defense or exemption for the husband defendant. There is nothing in our common law history to compel the conclusion that Connecticut’s view of the allocation of the burdens of proof and production arising from the marital exemption differed from the view prevailing in the other states. We therefore conclude that the Connecticut law as stated by Swift also created a marital defense or exemption, and did not define nonmarriage as an essential element of the crime of rape.

We are not persuaded by the cases on which the defendant relies for his historical reading. Swanson v. Swanson, 128 Conn. 128, 130, 20 A.2d 617 (1941), was a divorce case, and held only that conviction of the husband of the crime of assault to commit rape of another woman was an infamous crime involving a violation of conjugal duty so as to be a proper ground of divorce. Rookey v. State, 70 Conn. 104, 114-15, 38 A. 911 (1897), held in pertinent part only that attempted rape was a lesser included offense of the crime of rape. State v. Wells, 31 Conn. 210, 213 (1862), held that an information charging that the defendant forcibly assaulted the victim, “a single woman,” with intent violently and feloniously to ravish and carnally know her, was sufficient. None of these cases can be read to say that the marital exemption for rape required the state to prove marriage as an essential element of the crime of rape.

The Penal Code, which became effective in 1971, incorporated the marital exemption in its definitions. As first enacted, the Code treated forcible vaginal sexual intercourse and forcible anal or oral sexual intercourse in separate but parallel sections. Forcible vaginal intercourse was labelled “rape,” which was divided into two degrees. General Statutes (Rev. to 1972) §§ 53a-72, 53a-74. Forcible anal or oral intercourse was labelled as “deviate sexual intercourse,” which was also divided into two degrees. General Statutes (Rev. to 1972) §§ 53a-75, 53a-76.

Rape in the first degree was defined as follows: “(a) A male is guilty of rape in the first degree when he engages in sexual intercourse with a female: (1) By forcible compulsion; or (2) who is incapable of consent by reason of being physically helpless; or (3) who is less than fourteen years of age.” General Statutes (Rev. to 1972) § 53a-72. The term “sexual intercourse” referred to vaginal intercourse, and was defined as follows: “ ‘Sexual intercourse’ has its ordinary meaning and occurs upon any penetration, however slight. Its meaning is limited to persons not married to each other.” General Statutes (Rev. to 1972) § 53a-65 (1). A “female” was defined as “any female person who is not married to the actor.” General Statutes (Rev. to 1972) § 53a-65 (4).

The definition of “female” as one “who is not married to the actor,” and the limitation on the definition of “sexual intercourse” to “persons not married to each other,” might at first glance suggest that, under the code as initially enacted, nonmarriage was an essential element of the crime of rape. We do not believe that to be the case for several reasons.

First, it is clear that these definitions were meant to incorporate the historical common law marital exemption, which was generally understood to be a defense.

Second, under the code as initially enacted, and at present, there is an affirmative defense of cohabitation. The statute provides an affirmative defense “that the defendant and the alleged victim were, at the time of the alleged offense, living together by mutual consent in a relationship of cohabitation as man and wife, regardless of the legal status of their relationship.” General Statutes (Rev. to 1972) § 53a-67 (c). The purpose of this affirmative defense is that “[p]arties not legally married to each other but living together as man and wife are treated the same as married persons. The rationale is that the same elements of privacy, consent and intimacy of relationship are likely to be present here as in the marriage situation.” (Emphasis added.) Commission to Revise the Criminal Statutes, Penal Code Comments, p. 27. Thus, the fact that a defendant who seeks to avail himself of the principle of cohabitation would have to establish that affirmative defense by a preponderance of the evidence; General Statutes § 53a-12 (b); suggests also that a similarly treated defendant who seeks to avail himself of the marital exemption would have to raise his marital status as a defense. General Statutes § 53a-12 (a).

Third, closely analogous precedents strongly suggest that, despite the code’s somewhat loose wording, it was not meant to engraft an additional essential element onto the common law definition of rape. Our Penal Code definitions regarding sexual offenses “are taken largely from the New York Revised Penal Law.” Commission to Revise the Criminal Statutes, Penal Code Comments, p. 25. Therefore, New York case law interpreting their statutes is persuasive. In People v. Liberta, supra, the New York Court of Appeals considered the constitutionality of New York’s Penal Law provisions in the context of a prosecution of a husband for forcibly raping his wife. The court consistently referred to the fact that under the Penal Law the husband could not be convicted of forcibly raping his wife as “a marital exemption.” Id., 162-67. Other jurisdictions which have been faced with the issue have also refused to recognize non-marriage as an essential element of the crime of rape. In State v. Bell, 90 N.M. 134, 140, 560 P.2d 925 (1977), the court held that, where the statute defined criminal sexual penetration as “unlawful . . . causing of a person, other than one’s spouse, to engage in sexual intercourse,” lack of marriage between the defendant and victim was not an essential element of the offense. See also Commonwealth v. Chretien, supra, 130 n.6 (“[t]he usual means of incorporating the spousal exclusion into modern rape statutes is to insert the words ‘not his spouse’ immediately following the words ‘a person’ or ‘another person’ ”).

In 1975, the Connecticut legislature revised the sexual offense sections of the Penal Code. Public Acts 1975, No. 75-619. That revision eliminated the separate definitions of vaginal intercourse and oral or anal intercourse, and substituted one comprehensive definition of “sexual intercourse”: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. Its meaning is limited to persons not married to each other.” General Statutes § 53a-65 (2). This statutory revision rendered the sexual offense statutes gender neutral. No longer are victims referred to as females. One obvious purpose of the revised statutory scheme was to refer to male and female victims in the same terms. Indeed, the prior definition of “female” as “any female person who is not married to the actor”; General Statutes (Rev. to 1972) § 53a-65 (4); was eliminated entirely.

The only reference in the definition of “sexual intercourse” to the nonmarriage of the victim and the actor was carried forward from the prior definition of “sexual intercourse”: “Its meaning is limited to persons not married to each other.” General Statutes § 53a-65 (2). It is clear that the function of this sentence in the Connecticut sexual offense statutory scheme is the same as its function in the predecessor scheme, namely, to incorporate into those sexual assault offenses which involve sexual intercourse; General Statutes §§ 53a-70, 53a-70a and 53a-71; the common law marital exemption as a defense to prosecution, and not to require proof of marriage as an essential element of the offense.

This conclusion is buttressed by reference to General Statutes § 53a-81. That statute defines the crime of adultery as “engaging] in sexual intercourse with any person other than [the defendant’s] spouse.” If the definition of sexual intercourse in General Statutes § 53a-65 (2), which is specifically applicable to § 53a-81; see General Statutes § 53a-65; requires proof of lack of marriage, the language in § 53a-81, “with any person other than his spouse,” would be superfluous. We do not read statutes in such a way. See Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 31, 521 A.2d 212 (1987).

Our conclusion is further buttressed by reading the entire sexual offense statutory scheme. By virtue of the definition of “sexual intercourse” in General Statutes § 53a-65 (2), the statutory scheme includes forcible homosexual as well as forcible heterosexual intercourse. It would be an absurd and bizarre requirement that the state would have to prove, and the jury would have to be instructed, that a male defendant was not married to his male victim. We do not read statutes so as to lead to such bizarre results. Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986).

In this case, the defendant did not produce any evidence invoking the marital exemption or defense. See State v. Januszewski, supra; State v. Tinsley, supra. There is no evidence in this record to suggest that the defendant and victim even knew each other, let alone that they were husband and wife. Thus, there was no occasion for their nonmarital status to enter the case in any way.

Ill

The defendant’s final claim is that the court erred by submitting to the jury two alternative factual bases for the larceny charge, one of which was factually insufficient. This, the defendant argues, deprived him of his constitutional rights to an adequately instructed jury, to a unanimous verdict, and to be convicted only upon proof beyond a reasonable doubt. We decline to review this claim in full because the defendant did not preserve it, and because the record does not support it. See State v. Huff 10 Conn. App. 330, 523 A.2d 906 (1987).

The defendant’s argument derives from the fact that he was charged with larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), which requires that the state prove that the property stolen was “taken from the person” of the victim. His argument is premised on the notion that, although there was evidence that the victim’s silver ring was taken from her person, namely, off her finger, there was no evidence that her turquoise ring was taken from her person because that ring was attached to the key ring which she was carrying. The defendant argues that there was no evidence that the defendant took this ring from her person, as opposed to the victim having dropped it in the defendant’s car or the defendant having discovered it in her jeans while she was unclothed outside the car. The defendant’s argument finds little support in this record.

We reject the defendant’s assertion that he sufficiently raised his claim in the trial court. The only hint that he did so is a statement made in support of his motion for a judgment of acquittal: “The larceny, taking something from a person, there is no evidence that any of the things that this young woman was missing were actually taken from her person.” (Emphasis added.) This is a far cry from clearly and distinctly informing the trial court of the specific nature of the constitutional challenges which he seeks to mount on appeal. Indeed, if anything, the defendant’s statement tended to draw the court’s attention away from the bifurcated claim which he now seeks to make. The defendant took no exceptions to the court’s charge to preserve this claim. State v. Thurman, 10 Conn. App. 302, 319-20, 523 A.2d 891 (1987).

We turn, therefore, to the defendant’s argument that this claim of error is entitled to review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We disagree that the cases on which he relies for Evans review; State v. Arnold, 201 Conn. 276, 282-83, 514 A.2d 330 (1986); State v. Reid, 193 Conn. 646, 667-68 n.22, 480 A.2d 463 (1984); State v. West, 3 Conn. App. 650, 654-55, 491 A.2d 428, cert. denied, 196 Conn. 810, 494 A.2d 906 (1985); support his position. Those cases involve the question of the sufficiency of the evidence to support a general verdict of guilty on a single count of an information charging alternative statutory methods of committing the same crime. That question is simply not involved in this case. This information charged only one way of committing the crime of larceny in the third degree, namely, that the defendant “wrongfully took property from the person of” the victim, and the jury was not presented with any statutory alternative ways of committing this offense.

Nor does the defendant’s claim fare any better under our recently clarified Evans analysis. See State v. Huff, supra, 333-34. Although the defendant does sufficiently attach a constitutional label to his claim; id., 334; a limited review of the record discloses that the label is attached “to what is analytically, at its core, a nonconstitutional claim.” Id., 335.

The state’s proof at trial was unitary. The state did not seek to differentiate between the taking of the silver ring and of the turquoise ring. Furthermore, both of them were found in the defendant’s possession. Consistent with the state’s unitary theory of this part of its case, the trial court twice charged the jury, without exception by either the state or the defendant, that the “property” which the state claimed to have been stolen from the victim’s person was “rings.” Finally, it is significant that the defendant’s trial counsel, in taking her exception to the court’s charge on larceny, did not seek to differentiate between the two rings. This “is a powerful signal that, because of the posture of the case, [she] did not hear the defect in the harmful manner which [she] presses on appeal . . . .’’Id., 338. We therefore decline to review this claim further. Id.

There is no error.

In this opinion the other judges concurred.

       The defendant cannot now complain that he was misled by the trial court’s acquiescence to the motion in limine procedure. First, it was he, not the trial court, who pressed the procedure to a ruling. Second, his written motion in limine by its terms did not give either the state or the court notice that he sought to preclude potential cross-examination of the defendant on the basis of the scope of his potential direct examination. The motion and its proposed order was aimed only at precluding cross-examination of the defendant “about other crimes or other acts of misconduct,” and sought only to obtain from the court a determination of “whether the probative value of the proffered evidence outweigh[ed] [its] prejudicial effect . . . . ” It was only at the end of the defendant’s oral argument on this motion that he introduced the additional argument that the potential cross-examination would exceed the scope of his proffered direct examination.
      Nor can the defendant complain that we are in effect applying State v. Harrell, 199 Conn. 255, 506 A.2d 1041 (1986), retroactively. As is noted in the text, supra, the procedures formally approved for challenging cross-examination by use of prior convictions have never been approved for challenging cross-examination based on the scope of nonexistent direct examination.

       This case was tried before State v. Harrell, 199 Conn. 255, 506 A.2d 1041 (1986), was decided.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person . . .

      General Statutes § 53a-65 (2) defines “sexual intercourse” as follows: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration maybe committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. Its meaning is limited to persons not married to each other.”

       The theories underlying the marital exemption have been thoroughly discussed and discredited. See People v. Liberia, 64 N.Y.2d 152, 474 N.E.2d 567, 485 N.Y.S.2d 207 (1984); note, “Abolishing the Marital Exemption for Rape: A Statutory Proposal,” 1983 U. Ill. L. Rev. 201. Although our legislature has not seen fit to abolish the exemption for purposes of prosecution pursuant to General Statutes § 53a-70, it has accomplished the same end by enacting General Statutes § 53a-70b, which prohibits forcible sexual intercourse between spouses or cohabitors. See State v. Preyer, 198 Conn. 190, 195-98, 502 A.2d 858 (1985).

       Rape in the second degree involved sexual intercourse with a female incapable of consent by reason of factors other than age, or sexual intercourse between a male eighteen years old or more and a female less than sixteen years old. General Statutes (Rev. to 1972) § 53a-74.

       We need not decide in this case whether the other sexual offenses, which depend on the definition of “sexual contact,” also incorporate the common law marital exemption as a defense or require proof of nonmarriage as an essential element. See, e.g., General Statutes § 53a-72a (sexual assault in the third degree); General Statutes § 53a-73a (sexual assault in the fourth degree). The definition of “sexual contact” means, in general, contact with intimate personal parts between the defendant and “a person not married to the [defendant] . . . . ” General Statutes § 53a-65 (3). We assumed in State v. Huey, 1 Conn. App. 724, 730-32, 476 A.2d 613 (1984), aff’d on other grounds, 199 Conn. 121, 505 A.2d 1242 (1986), that this definition requires proof of nonmarriage. Our historical analysis, however, casts doubt on the propriety of that assumption.

       The relevant parts of the court’s charge were as follows: “As far as property is concerned, the type of property which is the object of larceny, is broadly defined as meaning any money, personal property, real property, articles of value of any kind. Obviously, rings, which is the claim of the State in this case, are property. ” “Larceny, in effect, means stealing. Now, what’s larceny [in the second degree]? I read that statute to you a few minutes ago, and it refers to property that is taken from the person. In this case, the State claims that the defendant took rings from the possession, from the person of [the victim].” (Emphasis added.)


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. David M. McKenna
    (3728)
    Dupont, C. J., Boeden and Spallone, Js.

      Argued December 4, 1986
    decision released May 26, 1987

      Richard Emanuel, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Peter Ponziani, former assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant is appealing from a judgment of conviction, after a trial to a jury, of the crime of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b (a). The defendant contends that the trial court erred (1) in failing to find that General Statutes § 53a-56b is void for vagueness, (2) in charging the jury erroneously, (3) in admitting into evidence the results of an intoximeter test, and (4) in admitting into evidence certain photographs of the victim.

From the evidence introduced at trial, the jury could reasonably have found the following facts. On April 12, 1983, shortly before 10 p.m., on a night when the weather was dry and clear, the victim was operating her motor vehicle in a westerly direction on Route 84 in Manchester. The highway, at the time and place concerned, consisted of three westbound lanes and was well illuminated. The defendant, who was driving at a speed of seventy-five to eighty-six miles per hour, struck the victim’s vehicle from behind causing it to flip over onto the grassy center median, where it came to rest on its roof, with the victim pinned under the car. The victim, who was sixty-six years of age, died as a result of the accident. When the defendant was approached by an investigating police officer, he stated, “I was driving. I killed her.” The defendant had no external injuries and was rude, obscene and somewhat confused in his interplay with witnesses at the scene. He showed poor coordination and swayed and staggered as he walked. The defendant’s breath indicated he had been drinking alcoholic beverages. When given performance tests by a state trooper, he was hesitant in the finger-to-nose test, was unable to follow the trooper’s instructions when asked to walk a straight line, and could not complete a recitation of the alphabet. Both the trooper and an ambulance medical technician who responded to the accident testified that, based on their observations of the defendant at the scene of the accident, he was intoxicated. The defendant was given an intoximeter breath test at 10:48 p.m., which indicated that his blood alcohol level at that time was .152 percent. Expert testimony revealed that at 10 p.m., the time of the accident, the defendant’s blood alcohol level would have been .17 percent.

The defendant was charged with manslaughter in the second degree with a motor vehicle while intoxicated, a violation of General Statutes § 53a-56b (a), operating without insurance, a violation of General Statutes § 14-213b, and following too closely, a violation of General Statutes § 14-240. Subsequently, the defendant pleaded nolo contendere and was fined on the latter two charges. He elected a jury trial on the first count and was found guilty and sentenced. This appeal followed.

The defendant’s first claim, that General Statutes § 53a-56b is void for vagueness, was not raised at trial. “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). “ ‘The policy behind this rule is both ancient and sound and “does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on appeal.” ’ ” State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985). Nevertheless, because the defendant’s vagueness claim implicates a fundamental constitutional right; State v. Cavallo, 200 Conn. 664, 667, 513 A.2d 646 (1986); State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980); State v. Liebowitz, 7 Conn. App. 403, 405, 509 A.2d 43 (1986); and the record provides adequate support to review the claim; State v. Evans, supra; we will review this claim to determine whether a fundamental constitutional right was actually violated. State v. Huff, 10 Conn. App. 330, 333-34, 523 A.2d 906 (1987); State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891 (1987); cf. State v. Liebowitz, supra (no Evans review of vagueness claim where record did not clearly support that allegedly vague statute was the basis for the defendant’s conviction).

The defendant does not claim that General Statutes § 53a-56b is vague on its face, but only as applied to his particular conduct. His claim is that the term “intoxication,” an essential element of General Statutes § 53a-56b,* is unconstitutionally vague as applied to him. In reviewing this claim, we must determine whether the term “intoxication” as used in the statute “has a meaning sufficiently precise for a man of average intelligence to ‘reasonably understand that his contemplated conduct is proscribed.’ ” United States v. Mazurie, 419 U.S. 544, 553, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975), quoting United States v. National Dairy Products Corporation, 372 U.S. 29, 32-33, 83 S. Ct. 594, 9 L. Ed. 2d 561, reh. denied, 372 U.S. 961, 83 S. Ct. 1011, 10 L. Ed. 2d 13 (1963); see also State v. Cavallo, supra. Where, as here, the complainant challenges the statute as applied to his particular conduct rather than on its face, “the complainant must prove that the enactment is vague ‘ “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” Coates v. City of Cincinnati, 402 U.S. 611, 614 [91 S. Ct. 1686, 29 L. Ed. 2d 214] (1971).’ ” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7, 102 S. Ct. 1186, 71 L. Ed. 2d 362, reh. denied, 456 U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982).

We find that General Statutes § 53a-56b is not unconstitutionally vague as applied to the defendant. The defendant essentially claims that because the statute provides no definition of the term “intoxication,” even though the term has been defined in more than one manner, the statute does not adequately define the conduct that it purports to prohibit. There can be no question, however, that under the facts of this case the defendant’s conduct was proscribed under any of the interpretations he has suggested. At the time of the accident, the defendant had a blood alcohol level of approximately .17 percent; two eyewitnesses testified that he was intoxicated; he had been driving his car somewhere between seventy-five and eighty-six miles per hour when he struck the victim; although he had no apparent injuries other than a back sprain, his speech was slurred and he staggered and weaved as he walked; he admitted to having consumed alcoholic beverages before the accident; and his breath smelled of alcohol at the accident site. A reasonable person would know that the drinking and driving behavior engaged in by the defendant is encompassed by the reference in § 53a-56b to “intoxication while operating a motor vehicle.” The defendant was therefore a “hard-core” violator to whom the statute was not vague. See State v. Pickering, supra, 65; see also State v. Katz, 122 Conn. 439, 442-43, 189 A. 606 (1937) (term “intoxicated person” in statute prohibiting sale of liquor to intoxicated person not so indefinite as to render statute unenforceable).

The defendant’s second claim focuses on alleged errors in the jury instructions. He claims that the court (1) incorrectly defined “intoxication” as an element of the crime, (2) failed to give the defendant’s requested charge on the lesser included offense of negligent homicide, and (3) diluted the jury’s perception of the state’s burden of proof by instructing that an inference could be drawn if it was “more probable than not that the fact to be inferred is true.”

The defendant neither submitted a request to charge on the element of intoxication nor did he object to the court’s charge on this issue. Consequently, we will review this claim of error only if it qualifies for review under State v. Evans, supra. The defendant claims that his right to due process of law was violated because the court’s definition of intoxication was actually a definition of the less stringent standard of “under the influence,” thereby allowing the jury to convict the defendant on less than proof beyond a reasonable doubt of every essential element of the crime. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Because this claim on its face raises an issue that implicates a fundamental constitutional right, the defendant has satisfied the first requirement of Evans review. See State v. Huff, supra, 334; State v. Thurman, supra, 306. We therefore will “review the record in a limited way and determine, on the basis of that limited review, whether the defendant’s claim is truly of constitutional proportions or is simply characterized as such by the defendant.” State v. Huff, supra; State v. Thurman, supra. Our limited review of the record reveals that this claim is not truly of constitutional proportions.

The court instructed the jury as follows: “With respect to the second element regarding intoxication, in view of the statute and in view of all the other evidence in this case you have to determine was the amount of liquor consumed by the accused of such an amount more or less sufficient to so affect his mental, nervous and physical processes that he lacked to an appreciable degree the ability to function properly with relation to the operation of his automobile.” The court’s instruction was similar to and apparently derived from previous judicial constructions of the terms “under the influence of intoxicating liquor” that first originated with the Supreme Court’s decision in State v. Andrews, 108 Conn. 209, 216, 142 A. 840 (1928). See General Statutes § 14-227a (a); Higgins v. Champ, 161 Conn. 200, 203, 286 A.2d 313 (1971); Infeld v. Sullivan, 151 Conn. 506, 509, 199 A.2d 693 (1964); State v. Switchenko, 3 Conn. Cir. Ct. 511, 515, 217 A.2d 484 (1965); see also footnote 3, supra. The defendant claims that the charge is erroneous because both the Supreme Court in Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985), and the legislature when amending General Statutes § 53a-56b have recognized a distinction between the state of being “under the influence of intoxicating liquor” and being “intoxicated.”

We disagree. The defendant appears to suggest that the Supreme Court and the legislature have recognized varying states of inebriation, with the state of being “under the influence” of intoxicating liquor referring to a lesser level than “intoxication.” Neither the legislative history of General Statutes § 53a-56b nor Supreme Court precedent, however, supports the conclusion that the phrase “under the influence” of intoxicating liquors refers to a different level of inebriation than “intoxication.” It is true that the legislature amended General Statutes § 53a-56b in 1985 to replace the term “intoxication” with the phrase “under the influence of intoxicating liquor.” See Public Acts 1985, No. 85-147 § 1; see also footnote 2, supra. The legislative history of this amendment, however, provides no indication that the legislature intended to change the meaning of the statute so as to lower the level of inebriation necessary for a conviction. Rather, the intent of the amendment was to clarify the meaning of the statute in response to a lower court opinion that apparently did hold that there was a distinction between these two phrases. The legislators speaking on the bill indicated that, because of this lower court opinion, there was a “loophole” in the law that could be remedied by substituting the “under the influence” language. The apparent intent of the legislature in enacting the amendment, therefore, was not to alter the nature of the conduct proscribed by the statute, but to correct a “language flaw” in the statute that had arisen as a result of a lower court decision. “ ‘An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.’ ” Shelton v. Commissioner, 193 Conn. 506, 514, 479 A.2d 208 (1984), quoting Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977); see also State v. Blasko, 202 Conn. 541, 556-57, 522 A.2d 753 (1987). Furthermore, we note that where the legislature has distinguished between levels of inebriation, it has not distinguished the phrase “under the influence of intoxicating liquor” from “intoxication.” See General Statutes § 14-227a (distinguishing driving while under the influence [blood alcohol .10 or greater] from driving while impaired [blood alcohol less than .10 but more than .07]; State v. Hancich, 200 Conn. 615, 619-21, 513 A.2d 638 (1986). We therefore find no support in the legislative history of General Statutes § 53a-56b that the phrase “under the influence” of intoxicating liquor refers to a different level of inebriation than the term “intoxication.”

Nor does our Supreme Court precedent support such a distinction. While the Supreme Court in Sanders v. Officers Club of Connecticut, Inc., supra, 349, stated that “[t]o be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor,” the court gave no indication that its definition of intoxication was intended as a departure from its previous interpretations of the term “under the influence” of intoxicating liquor. On the contrary, in the same paragraph, the court stated: “When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation . . . a person may be found to be intoxicated. ” (Emphasis added.) Id., 349-50. Furthermore, the definition of intoxication in Sanders is substantially similar to the definition of “under the influence” provided by the trial court in following the Andrews line of authority. Both lines of authority emphasize that the alcohol or drug must cause a significant impairment of mental or physical functioning. Sanders spoke of intoxicating liquors causing a “derangement or impairment of physical functions”; id., 349; while the trial court here spoke of liquor as causing the lack “to an appreciable degree [of] the ability to function properly.” (Emphasis added.) Cf. General Statutes § 53a-7 (“intoxication” in the penal code is defined as “a substantial disturbance of mental or physical capacities resulting from the introduction of substances in the body”). We find, therefore, that the court’s instruction on the term “intoxication,” despite its similarity to instructions that have been labeled as instructions on “under the influence,” was substantially similar in meaning to the definition of “intoxication” approved by our Supreme Court in Sanders, and that the instruction, therefore, did not unconstitutionally diminish the state’s burden of proof.

The defendant also claims error in the court’s refusal to charge on the lesser included offense of negligent homicide. General Statutes § 14-222a. We find no merit to this claim.

A defendant does not have a constitutional right to an instruction on a lesser included offense. State v. Ostroski, 201 Conn. 534, 557, 518 A.2d 915 (1986); State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986); State v. Whistnant, 179 Conn. 576, 581, 427 A.2d 414 (1980). “The right to such an instruction is purely a matter of common law as set forth in Whistnant. . . . ” State v. McIntosh, supra. Here, the defendant’s request to charge on the lesser included offense failed to conform to our rules of practice, thereby failing to satisfy the first prong of the four-part Whistnant test. State v. Whistnant, supra, 588. Practice Book § 852 provides in pertinent part: “Requests shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the facts supported by the evidence to which the proposition would apply. ...” (Emphasis added.) The request in this case failed to refer to any facts or authority. “ ‘[A]n “appropriate instruction” under State v. Whistnant must contain “ ‘a complete statement of the essential facts as would have justified the court in charging in the form requested.’ ” ’ ” State v. Ostroski, supra, 558. Here, as in Ostroski, the defendant’s request contains no facts whatsoever. Further, in Ostroski, the Supreme Court observed that “[wjhile this court does not favor unyielding adherence to ‘rules of procedure where the interests of justice are thereby diserved’ . . . the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instructions. ‘The minor burden of cooperation imposed by this section is neither unreasonable nor novel.’ ” (Citation omitted.) Id., 558, quoting State v. McIntosh, supra, 161. We therefore find no error in the trial court’s failure to instruct the jury on the elements of General Statutes § 14-222a.

The defendant also avers error in the court’s charge on circumstantial evidence. The court instructed the jury that it could draw an inference if it was “more probable than not that the fact to be inferred is true.” Despite the fact that the defendant concedes that he neither filed a written request to charge nor excepted to this challenged portion of the charge, we will follow recent precedent and review this claim under State v. Evans, supra. State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. Smith, 201 Conn. 659, 672, 519 A.2d 26 (1986); State v. Whelan, 200 Conn. 743, 755-56, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Hoeplinger, 9 Conn. App. 147, 158, 517 A.2d 632 (1986), cert. granted, 202 Conn. 805, 520 A.2d 1286 (1987); State v. Farrar, 7 Conn. App. 149, 153 n.3, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).

Both this court and our Supreme Court have recently and thoroughly considered the ramifications of a jury instruction in a criminal case that informs a panel that it may infer a fact when it is more probable than not that such a fact exists. See State v. Miller, supra, 489-92; State v. Mullings, 202 Conn. 1,11-14, 519 A.2d 58 (1987); State v. Smith, supra; State v. Whelan, supra; State v. Rodgers, 198 Conn. 53, 56-60, 502 A.2d 360 (1985); State v. Reddick, 197 Conn. 115, 130-31, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Smith, 10 Conn. App. 624, 641, 525 A.2d 116 (1987); State v. Dullivan, 10 Conn. App. 474, 477, 523 A.2d 1353 (1987); State v. Perez, 10 Conn. App. 279, 282-91, 523 A.2d 508 (1987); State v. Acklin, 9 Conn. App. 656, 664-66, 521 A.2d 160 (1987); State v. McDonough, 9 Conn. App. 631, 633-39, 521 A.2d 160 (1987); State v. Walker, 9 Conn. App. 373, 376-77, 519 A.2d 83 (1986); State v. Hoeplinger, supra; State v. Farrar, supra, 152-53. Such an instruction is erroneous because, as applied to inferences for the finding of facts that are essential elements of the crime, it unconstitutionally dilutes the state’s burden of proving guilt beyond a reasonable doubt. See State v. Whelan, supra, 757; State v. Rodgers, supra, 57-59. Although such an instruction is erroneous in the abstract because of its overinclusiveness, it does not follow that reversal is always required. Reversal is necessary only if it is reasonably possible that the jury was misled by the trial court’s instructions. State v. Mullings, supra, 14; State v. Reddick, supra, 132.

When determining whether the circumstantial evidence-inference charge is reasonably likely to have misled the jury, our courts have focused on the bearing that the instruction has on the principal disputed factual issues in the case. State v. Mullings, supra, 12; State v. Smith, supra, 673; State v. Walker, supra, 376; State v. Farrar, supra, 156. When the state relies primarily on circumstantial evidence to prove a disputed central issue of fact, we subject the erroneous charge to “close scrutiny.” State v. Whelan, supra; State v. Farrar, supra, 155. If, on the other hand, the principal disputed issues are not proved primarily by circumstantial evidence, “ ‘the trial court’s instructions may be read as a whole to determine whether it is reasonably possible that the jury was misled by an erroneous explanation regarding the use of circumstantial evidence.’ ” State v. Whelan, supra, quoting State v. Farrar, supra, 155-56. In these cases, the jury will have had less occasion to utilize the erroneous instruction, and an appellate court should examine the whole charge to determine if the error was cured by other portions of the charge.

The central, disputed issue of fact in this case was whether the defendant was intoxicated. While the state relied on both direct and circumstantial evidence to prove this fact, the direct evidence was particularly substantial. Two witnesses who observed the defendant’s behavior at the scene of the accident testified that he was intoxicated. This was direct evidence, in the form of opinion. Both witnesses rendering these opinions provided a more than adequate foundation for their conclusions. In addition, there was testimony that a doctor who had examined the defendant had stated to the victim’s granddaughter that “the kid that did hit [the victim] was drunk.” Furthermore, the defendant had before it direct evidence of the defendant’s blood alcohol content at the time of the accident. Because of the substantial direct evidence on the issue of intoxication, we will review the charge as a whole. See State v. Mullings, supra, 13; State v. Smith, 201 Conn. 659, 673, 519 A.2d 26 (1986); State v. Walker, supra, 376 (reviewing charge as a whole where there is substantial direct evidence).

Viewed as a whole, it was not reasonably possible that the trial court’s erroneous instruction concerning circumstantial evidence misled the jury. The erroneous instruction was given only once during that portion of the charge explaining the use of circumstantial evidence in drawing inferences. State v. Mullings, supra; State v. Farrar, supra, 156. In addition, when instructing on the essential elements, the court stated that each essential element, including intoxication, had to be proven beyond a reasonable doubt. See State v. Walker, supra, 376-77. Moreover, the court made repeated references to the state’s burden of proof beyond a reasonable doubt, and properly instructed the jury on the presumption of innocence. State v. Mullings, supra; State v. Farrar, supra. We therefore find no reversible error with respect to this claim.

The defendant next claims that the trial court erred in denying his motion to dismiss and in admitting into evidence the result of an intoximeter test. The defendant asserts he was denied due process when the trial court admitted into evidence what the defendant now claims was the unreliable result of an intoximeter test. Our review of the record, however, reveals that the defendant did not raise this specific issue before the trial court. There, he asserted his due process rights were violated because he did not have adequate notice of the legal testing procedures. This court will not consider claims that were not distinctly raised and ruled upon at trial. Practice Book § 4185 (formerly § 3063); State v. Moye, 199 Conn. 389, 397, 507 A.2d 1001 (1986). Furthermore, the defendant has not claimed that this issue should be reviewed under State v. Evans, supra. We therefore decline to review this claim. See State v. Milledge, 8 Conn. App. 119, 125, 511 A.2d 366 (1986).

Finally, the defendant claims that the court erred in admitting into evidence photographs of the victim taken after her death. The defendant claims that the photographs were particularly gruesome and had no overriding probative value. The state asserts that the photographs were material to show that the victim died as a result of the accident caused by the defendant, which was an element of the state’s burden of proof. The trial court, in admitting the photographs, ruled that because they were not in color or unduly inflammatory they would not improperly influence the jury. We find no error in this ruling.

Photographic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact in issue. State v. DeJesus, 194 Conn. 376, 381, 481 A.2d 1277 (1984). There is no requirement that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible. Rather, the test for admitting the challenged evidence is its relevancy, not its necessity. State v. Haskins, 188 Conn. 432, 453,450 A.2d 828 (1982); State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Even if a photograph has the potential to prejudice the jury, it may be admitted if, in the court’s discretion, its probative value outweighs its possible prejudicial effect. State v. DeJesus, supra, 382; State v. Haskins, supra, 452-53. The trial court has wide discretion when weighing a photograph’s potential prejudice against its probative value. State v. DeJesus, supra; see also State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986); State v. Delgado, 8 Conn. App. 273, 288-89, 513 A.2d 701 (1986). We see nothing in the court’s decision that would support any allegation that it abused its discretion in admitting the photographs into evidence.

There is no error.

In this opinion the other judges concurred.

       The defendant would have standing to challenge the validity of the statute on its face only if the “challenged statute, if vague, could intrude on fundamental constitutional guarantees such as first amendment rights . . . State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986); see Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982); United States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975); State v. Pickering, 180 Conn. 54, 57 n.3, 428 A.2d 322 (1980). The defendant makes no claim that the statute implicates any such fundamental constitutional rights so as to entitle him to challenge the statute on its face.

       At the time of the incident, General Statutes (Rev. to 1983) § 53a-56b (a) provided: “A person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in the consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, intoxication shall include intoxication by alcohol or by drug or both.”
      This statute was amended by Public Acts 1985, No. 85-147, effective on October 1,1985. This amendment, in part, deleted the term “intoxication” from the statute and substituted in its place the phrase “under the influence of intoxicating liquor.” The statute currently provides: “A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.” General Statutes § 53a-56b (a).

       The defendant points to the following definitions of the term intoxication: (1) The definition in General Statutes § 53a-7, which, by its terms is confined to that particular section of the penal code: “ ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”
      (2) The definition of “driving under the influence of intoxicating liquor,” as formulated by our Supreme Court when construing what is now General Statutes § 14-227a: intoxication is established “when the evidence shows that the driver of an automobile, by reason of having drunk intoxicating liquor, had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree, the ability to function properly in relation to the operation of the machine.” This definition, first formulated in State v. Andrews, 108 Conn. 209, 216, 142 A. 840 (1928), has been followed by later courts. See text, infra.
      (3) The definition provided by the court in Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985), which involved an action under General Statutes § 30-102, the “dram shop” act (which contains the phrase “in consequence of such intoxication”): “To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be ‘dead-drunk.’ It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so.” Id.
      (4) A court could conclude that “intoxication” has an ordinary meaning, and that no specific definitional criteria are needed. See State v. Katz, 122 Conn. 439, 442-43, 189 A. 606 (1937) (sale of liquor to intoxicated person under forerunner to General Statutes § 30-86).

       See footnote 3, supra.

       The following remarks by Representative Edith G. Prague at the Judiciary Committee hearing on February 20,1985, are typical: “This Bill [H.B. 7433] will change the language from driving while intoxicated to driving under the influence of intoxicating liquor or drugs or both and will create conformity in the language of the two criminal statutes concerning DWI. Changing the language from driving while intoxicated to driving under the influence of intoxicating liquor or drugs or both will allow the prosecution to proceed without the complications that this present language presents.
      “People who monitor the DWI cases in the courts have been outraged by the criminal getting off because of a loophole or a language flaw in the law which allows this to happen. This is an important Bill in the overall effort to tighten up our drunk driving laws.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1985 Sess., p. 332.
      Further, Representative Robert F. Frankel remarked during the House debate: “Yes, Mr. Speaker, I’d like to attempt to try to assist the Chamber in understanding the reason for the amendment. The file copy was designed to correct a problem that arose from a court decision. It was an attempt to use the right definition for under the influence, because in that court case, someone escaped from being found guilty because the statute that is on the books today, talks about intoxication, instead of about the words, ‘under the influence,’ and that is what the file copy tried to do, to put the words, ‘under the influence’ in, and take the word, ‘intoxication’ out, because the courts interpret them differently, and the file copy would indeed make the law more tough on drunk drivers . . . . ”28H.R. Proc., Pt. 9, 1985 Sess., pp. 3129-30.

       Other jurisdictions differ as to whether the term “intoxicated” is to be interpreted differently from the term “under the influence” of intoxicating liquor. See Taylor v. Joyce, 4 Cal. App. 2d 612, 41 P.2d 967 (1935) (no difference); State v. Davis, 196 N.W.2d 885 (Iowa 1972) (same); State v. Cox, 478 S.W.2d 339 (Mo. 1972) (same); cf. Jackson v. State, 456 So. 2d 916 (Fla. Dist. Ct. App. 1984) (terms not synonomous); Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (person need not be “drunk” to be convicted of driving under the influence).

       The defendant’s request to charge, which was handwritten, provided: “The defendant respectfully requests that the court charge the jury that if they find him not guilty of Manslaughter 2nd with a Motor Vehicle while intoxicated and Misconduct with a Motor Vehicle, they then may consider whether he is guilty or not guilty of Negligent Homicide with a Motor Vehicle (Sec. 14-222a).”

       In addition, under the United States Supreme Court’s holding in Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 3109, 92 L. Ed. 2d 460 (1986), the state may also attempt to prove that the error was harmless beyond a reasonable doubt. State v. Perez, 10 Conn. App. 279, 285-90, 523 A.2d 508 (1987).

       Because “[t]he condition of intoxication and its common accompaniments are a matter of general knowledge”; State v. Jones, 124 Conn. 664, 667, 2 A.2d 374 (1938); Way v. Parent, 179 Conn. 377, 380, 426 A.2d 780 (1979); State v. Katz, 122 Conn. 439, 442, 189 A. 606 (1937); Thomas v. Rose, 10 Conn. App. 71, 74, 521 A.2d 597 (1987); our Supreme Court has held that laymen may testify as to their opinion of whether a person is intoxicated.
        State v. Jones, supra; see also J. Wigmore, Evidence (Chadboum Rev. 1986) § 1974; C. Tail & J. LaPlante, Connecticut Evidence § 7.15 (c).

       Both Thomas Kerrigan, a state trooper, and Raymond Shedd, an emergency medical technician, testified that the defendant was intoxicated when they observed him at the scene of the accident. Kerrigan testified that he detected an odor of alcohol on the defendant’s breath and that the defendant admitted he had been drinking. Kerrigan administered certain performance tests to the defendant: he described the defendant’s performance on the “finger-to-nose” test as “fair” but done with “some hesitance”; he testified that the defendant was off balance and swaying during the “toe to heel” straight walk; and he stated that the defendant was unable to complete a recitation of the alphabet. Shedd also testified that the defendant had an odor of alcohol on his breath. He described the defendant as “rude and obscene, somewhat confused”; “agitated and confused”; and not “very coherent.” He also testified that the defendant’s motor coordination was not proper, stating that there was “a bit of swaying and some staggering, walking in circles,” when the defendant stood up to walk away. Shedd further testified that he had occasion “close to a thousand” times in the past to view persons who had been intoxicated.


author: Borden, J.

text:
    State of Connecticut v. Confessor Rodriguez
    (5199)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 4
    decision released May 26, 1987

      Kimball Haines Hunt, with whom, on the brief, was William J. Wholean, for the appellant (defendant).

      Patricia B. Perkins, special assistant state’s attorney, with whom, on the brief, was JohnM. Bailey, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of his conviction of the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b). The conviction followed his conditional plea of nolo contendere which was entered, pursuant to General Statutes § 54-94a, after the trial court denied his motion to suppress. The defendant appeals claiming that the trial court erred in denying his motion to suppress. We find no error.

At the hearing on the defendant’s motion to suppress, the trial court found the following relevant facts. Detective Robert L. Kanaitis of the Hartford police department received a tip from a known informant that on the next day, at about 7:30 p.m., the defendant would be arriving at 363 Capitol Avenue, in Hartford, from New York. He would be arriving in a yellow Chevrolet Monte Carlo and would be in possession of 600 silver heat sealed bags of heroin. Kanaitis testified that the informant was known to him and had provided reliable information in the past. Specifically, over the past two years, the informant had provided him with information on approximately fourteen occasions. The information had proved accurate on thirteen of the fourteen occasions, and on the fourteenth occasion was only inaccurate as to the amount of contraband. The information had led to arrests and convictions. Further, Kanaitis testified that the informant had known the defendant for one year and had been present when the defendant discussed his plans for transporting heroin from New York. Based on this tip, Kanaitis and Officer James Howard established a surveillance, the following day, in an unmarked camper parked in a lot adjacent to 363 Capitol Avenue. At about 7:15 p.m., the defendant was observed approaching the area in a vehicle with two other persons. This was not the vehicle described by the informant. Shortly thereafter, the defendant, two companions and the defendant’s seven year old son were observed walking toward a green station wagon which was parked in a lot adjacent to 363 Capitol Avenue. Thereafter, Kanaitis and Howard emerged from the camper, announced that they were armed with a search warrant and ordered the three men to place their hands on top of the vehicle.

At the time Kanaitis and Howard emerged from the camper, the defendant had been approaching the north side of the car while his two companions had been approaching the south side. As these two people placed their hands on the south side roof of the car, Howard observed a silver heat sealed bag fall to the ground between them. Howard stated “I got the dope.” Thereafter, Kanaitis arrested the defendant and Howard arrested his companions. Kanaitis conducted a search of the defendant which revealed nothing. Shortly thereafter, Officer Lawrence B. Yohe, who had been called as back-up, searched the defendant prior to transporting him to the police station. This search yielded eighteen silver heat sealed plastic bags containing heroin in the right-front coin pocket of the defendant’s jeans.

The defendant moved to suppress the evidence of the heroin claiming that the trial court erred in concluding (1) that Kanaitis had a reasonable and articulable suspicion to justify stopping the defendant in the first place under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and (2) that even if the stop was legal, the trial court nonetheless erred in holding that reasonable suspicion had ripened into probable cause to arrest the defendant based on subsequent events. Whether we find the initial stop or ensuing arrest illegal, the defendant claims that the contraband seized from him should be suppressed as a fruit of the original illegality. The state claims, on the other hand, that the initial investigative stop was permissible under Terry v. Ohio, supra, since it was based on reasonable and articulable suspicion, and that the suspicion escalated into probable cause to arrest the defendant when one of his companions dropped the silver bag which appeared to contain contraband.

I

“It is well established that police may momentarily detain an individual for investigative purposes if the police have ‘a “reasonable and articulable” suspicion that [he has] engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980); Terry v. Ohio, [supra].State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983). What constitutes a reasonable and articulable suspicion depends on the ‘totality of the circumstances.’ United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). ‘The test to be applied, however, is an objective one: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, supra, 22. In justifying the particular intrusion “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 21 . . . .’” (Citations omitted.) State v. Aversa, 197 Conn. 685, 690-91, 501 A.2d 370 (1985).

Under the circumstances of this case, the trial court did not err in determining that the officers had reasonable and articulable suspicion to believe that the defendant was engaged in criminal activity. Kanaitis had received a tip that the defendant would be arriving at 363 Capitol Avenue at about 7:30 p.m. from New York in a yellow Chevrolet Monte Carlo and would have 600 silver heat sealed bags of heroin in his possession. At the hearing, Kanaitis testified that he received this tip from a reliable informant whose information had led to arrests and convictions in the past. Further, Kanaitis testified that the informant’s tip was based on personal knowledge since he had been present when the defendant discussed his impending plans. Based on Kanaitis’ testimony, it is arguable that both the credibility and basis of knowledge prongs of the test for assessing informer information were met. State v. Kimbro, 197 Conn. 219, 236-37, 496 A.2d 498 (1985).

The defendant argues, however, that because the police officers were unable to corroborate any aspects of the informant’s tip, its reliability was undermined and therefore it could not justify stopping the defendant. The trial court found that the only corroboration of the tip was that the defendant arrived at the approximate time and place indicated by the informant. The court specifically gave very little weight to these corroborating facts because the place of arrival also happened to be the the defendant’s home. We are not convinced that such corroboration is necessary to justify a Terry stop. The defendant has not claimed that this seizure was an arrest, and therefore we need not decide whether corroboration of non-innocent aspects of the informant’s tip would have been required to establish probable cause to arrest. An informant’s unverified tip may not be sufficient for a narcotics arrest or search warrant, but may nonetheless carry enough indicia of reliability to justify an officers’ forcible stop of a suspect. Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); see also State v. Love, 169 Conn. 596, 363 A.2d 1035 (1975). “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations—for example, . . . when a credible informant warns of a specific impending crime—the subtleties of the hearsay rule should not thwart an appropriate police response.” Adams v. Williams, supra, 147.

In this case, it was established that the informant was credible and had personal knowledge of the information he conveyed. Additionally, the trial court specifically found that Kanaitis knew the defendant was involved in the drug trade from prior experiences with him. In assessing the reliability of information provided by an informant, “we have relied upon the reputation of past criminal behavior of the suspect as a practical consideration. State v. Ferguson, 185 Conn. 104, 115, 440 A.2d 841 (1981).” State v. Kimbro, supra, 232. Under the facts of this case, the uncorroborated tip of the known informant established reasonable and articulable suspicion to believe the defendant was engaged in criminal activity, thereby justifying an investigative stop of the defendant.

II

Immediately following an investigative stop, events or circumstances may arouse further suspicion in an officer’s mind or dispel questions that arose. If suspicion is dispelled, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances. State v. Acklin, 171 Conn. 105, 111, 368 A.2d 212 (1976). The defendant claims that the events that occurred after the stop did not raise the level of suspicion to the level of probable cause. The trial court found that the sole event to have occurred after the initial stop was that one of the defendant’s two companions dropped a silver heat sealed bag containing suspected contraband. We must determine whether this single event was sufficient to establish probable cause to arrest the defendant.

“ ‘ “Probable cause means more than mere suspicion. There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed. . . . There is often a fine line between mere suspicion and probable cause, and ‘[t]hat line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances.’ ” ’ State v. Martin, 2 Conn. App. 605, 612B-13, 482 A.2d 70 (1984), cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). Moreover, the probable-cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate and not merely on the subjective good faith of the police officers. . . .''[G]ood faith is not enough to constitute probable cause. That faith must be grounded on facts within the knowledge of the [officer], which in the judgment of the court would make his faith reasonable.” ’ United States v. Ross, [456 U.S. 798, 808, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)].” State v. Cooper, 9 Conn. App. 15, 23, 514 A.2d 758 (1986).

The defendant claims that his mere proximity to others suspected of criminal activity, without more, does not constitute facts within the officer’s knowledge sufficient to give rise to probable cause to arrest and search him. He relies on Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), reh. denied, 444 U.S. 1049, 100 S. Ct. 741, 62 L. Ed. 2d 737 (1980), and other cases, only one of which, United States v. Sporleder, 635 F.2d 809 (10th Cir. 1980), bears on his claim. These cases, however, are not on point. They involve warrantless searches of persons on the basis of their presence during the execution of a valid search warrant for a specific place. It is in this context that mere presence, without more, is insufficient to justify a warrantless search. The issue before this court is different, namely, whether there was probable cause to arrest the defendant, after a valid Terry stop, once Howard discovered that one of the defendant’s two companions had dropped the silver bag of heroin. In this context, we must decide whether the defendant’s mere presence is sufficient to ripen reasonable suspicion into probable cause to arrest, and subsequently, to search the defendant incident to that arrest.

A review of Connecticut law has revealed only one case that incidentally bears on this issue. In State v. Acklin, supra, police officers stopped a vehicle driven by Acklin on the suspicion that he and the two occupants, one of whom along with Acklin was a defendant in one of the cases on appeal, had been involved in an earlier robbery. During a patdown, an officer discovered a handgun on Acklin. After concluding that the frisk was justified, the court stated: “[ajfter the ‘frisk’ had revealed a handgun [on Acklin], the officers had probable cause to arrest the defendants and to search their persons and their automobile contemporaneously with their arrest.” (Emphasis added.) Id., 113. While this case provides some guidance, we note that the specific issue of whether the discovery of a handgun on Acklin created probable cause to arrest and search the other occupants of the automobile was not raised. In the present case, unlike in State v. Acklin, supra, the defendant and his companions were in a public place and not together in a car. In State v. Acklin, supra, the police officers might more readily have inferred joint activity with respect to the possession of the gun. This inference is more difficult to draw in this case, especially in light of the absence of testimony by either Kanaitis or Howard that the people who were in the car with the defendant when he first approached the area were the same people who were walking with him toward the station wagon.

Our research has revealed some cases in other jurisdictions involving the issue of “mere presence” in public places. In Nast v. State, 333 So. 2d 103 (Fla. 1976), the court held that a police officer lacked probable cause to arrest the defendant for possession of contraband where the officer observed the defendant in a public place in the middle of the afternoon, apparently conversing with an acquaintance who was caught, upon approach of the police officers, disposing of contraband over a seawall. In Jones v. State, 493 S.W.2d 933 (Tex. Crim. App. 1973), however, the court came to a different conclusion. In that case, officers approached a group of five men in an alley, including the defendant. Two of the men threw down objects found to contain marijuana. The court held there was probable cause to arrest the defendant as well as the other men and to conduct a search incident to the arrest. The court stated:“No doubt can be entertained that the officers had probable cause to arrest and search the two individuals that threw down the contaband as the officers, at this point, had witnessed a crime being committed in their presence. . . . Although the search of the appellant presents a slightly different question, we conclude that the facts and circumstances within the knowledge of the officers at that moment were sufficient to lead a man of reasonable caution and prudence to believe that appellant too was committing a crime and that a search of appellant would produce the instrumentality of a crime or evidence pertaining to a crime.” Id., 935-36.

We accept the proposition that the mere fact, without more, that a person is associating with or in the presence of others who are suspected of criminal activity, does not by itself establish probable cause to arrest or search that person. Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948). When there is “more,” however, probable cause may exist. In this case, the raison d’etre for the initial stop was a tip that the defendant would be bringing silver heat sealed bags of heroin from New York to Hartford. The focus of attention was on the defendant, not his two companions. When the officers approached the group and one of the companions dropped a silver heat sealed bag, the suspicion that the defendant was participating in a crime involving the transportation of such bags heightened into probable cause. This fact was sufficient to lead the officers to conclude that not only was there criminal activity afoot, but that the defendant was involved in it. On the basis of the facts and circumstances within the officers’ knowledge, they were justified in concluding there was probable cause to arrest the defendant. State v. Cooper, supra. Consequently, the searches conducted subsequent to the arrest were proper as incident to it.

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.”
      In order for a defendant to preserve the right to appeal the court’s decision, there must be some indication in the record that the plea of nolo contendere was conditional upon the right to appeal. State v. Gilnite, 202 Conn. 369, 376, 521 A.2d 547 (1987). The defendant’s written plea of nolo contendere does not indicate that it was entered conditionally pursuant to General Statutes § 54-94a. Our review of the transcript of the plea proceedings, however, establishes that the plea was entered pursuant to General Statutes § 54-94a.

       While the officers were armed with a search warrant, the state chose not to rely on it at the suppression hearing. On the contrary, the state specifically proceeded on a theory of “a simple, on-site, probable cause arrest.”

       We note some confusion in the trial court memorandum with respect to the nature of this initial seizure. The court held that at the time the officers approached the defendant and his companions, they had probable cause to search the defendant. The court also stated that “[t]his initial detention was for investigatory purposes and did not constitute an actual arrest of the person of the defendant.” The term “probable cause” whether in the context of an arrest or search, has a constant meaning. Therefore, the memorandum of decision could be read, despite the reference to an investigatory stop, to support a finding of probable cause to arrest. Since neither the defendant nor the state has characterized the initial seizure as an arrest, however, we will read the memorandum as the litigants do, namely, to uphold the initial seizure as an investigative stop.