text:
    STATE OF CONNECTICUT v. CHARLES SPELLS
    (AC 22730)
    Flynn, West and Hennessy, Js.

      Argued November 19, 2002
    officially released April 8, 2003

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Charles Spells, appeals from the judgment of conviction, rendered after a jury trial, of three counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and one count of conspiracy to commit robbeiy in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4). On appeal, the defendant claims that the trial court improperly (1) refused to grant his request for a continuance, in violation of his constitutional right to a fair trial and in abuse of its discretion, (2) denied his motions for a new trial and to reargue, and failed to recuse itself sua sponte from considering the motions, (3) denied his motion to suppress his statement to the police, and (4) refused to instruct the jury to find him not guilty on count two of the information and denied his postverdict motion for a judgment of acquittal on that count. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 20,2000, the defendant and an accomplice entered the Cumberland Farms convenience store on Watertown Avenue in Waterbury. Both men were dressed in black and wore masks to conceal their identities. The taller man carried a shotgun, and the defendant carried a handgun. The men took $400 from the cash register. The defendant ordered a customer, Edgar Sandoval, to give him his money. When Sandoval did not respond quickly enough, the defendant struck him with the handgun and took the man’s wallet from his trousers. The defendant became angry because the wallet contained only $2 and threw it to the floor.

The taller man ordered the clerk to open the store safe. The clerk, however, did not have the key to the safe. The defendant told his accomplice to shoot the clerk. Lesley Sandoval, another customer, was scared. She gave the defendant the keys to her motor vehicle and informed him that there was more than $300 in the vehicle. The two men took the keys and left in the Sandoval vehicle.

The clerk and Edgar Sandoval could not identify the perpetrators of the crime because the men were wearing masks. They, however, provided general descriptions of the men. Both were African-American. One was about five feet, seven inches tall and in his midtwenties; the other was approximately six feet tall. These descriptions fit the defendant and his accomplice, respectively. The police found the Sandoval vehicle abandoned in a nearby parking lot and Lesley Sandoval’s purse in a nearby street. More than $300 in cash and a laptop computer were missing from the vehicle. The police also found a black neoprene mask that contained several strands of head hair in the vehicle.

On October 24, 2000, the police received a telephone call that led them to consider the defendant a suspect in the case. The police found the defendant at his apartment. He agreed to accompany them to the police station, where he confessed to the crime and implicated James Butler as his accomplice. In giving his statement to the police, the defendant provided details of the crime of which only a participant would be aware. He knew where the Sandoval vehicle had been abandoned and told the police that the keys had been thrown into a wooded area behind the vehicle. The police subsequently found the keys where the defendant said they would be. Later that day, the police executed a search warrant of the defendant’s apartment and found several black masks. One of the masks was identified by Edgar Sandoval as being similar to the one worn by the person who had robbed and assaulted him. After the defendant gave the police officers his statement, he accompanied and directed the officers to a residence where he believed Butler could be found. The defendant voluntarily provided samples of hair from his head to be compared with the hair found on the mask.

I

The defendant’s first claim is that the court, Damiani, J., abused its discretion and denied him his constitutional right to due process and a fair trial by denying his request for a continuance so that scientific testing could be conducted of various samples of human hair. We disagree.

The following facts are relevant to the defendant’s claim. On March 20, 2001, the defendant filed a motion for a speedy trial pursuant to the statute applicable to sentenced prisoners having charges pending against them. See General Statutes § 54-82c. The jury for the defendant’s trial was selected on May 11, 2001. At that time, the prosecutor informed the venire panel that personnel from the state crime laboratory would testify about hair samples taken from the neoprene mask, the defendant and Butler. The prosecutor informed defense counsel that the results of the testing would be made available as soon as possible and before the defendant’s motion to suppress was to be argued on May 18, 2001.

On May 14, 2001, the prosecutor informed defense counsel that he had just learned that the hair found on the mask and the hair sample provided by the defendant had not been sent to the state crime laboratory because the police had failed to obtain a search warrant for a sample of Butler’s hair. On May 15, 2001, defense counsel filed a motion to dismiss or, in the alternative, for sanctions against the state for disclosing, after jury selection, that there was no scientific evidence that would demonstrate that the hair found on the mask in the Sandoval vehicle “did not belong to either the defendant or Butler.”

The court held a hearing on the defendant’s motion and denied the motion to dismiss. The court stated that the prosecutor would have to try the case without the results of the scientific testing because the defendant had filed a speedy trial motion and that the court would not delay the trial. The court imposed no alternative sanctions on the state.

Defense counsel then requested a continuance to have the comparative testing performed on the samples of hair obtained from the defendant, Butler and the mask at the expense of the public defender’s office. The court questioned whether it could order Butler to submit a sample of his hair without the state’s making that request in the case against Butler as required by our rules of practice. Noting that there was not enough time to obtain DNA testing of the samples, the court denied the defendant’s motion for a continuance.

The defendant renewed his motion for a continuance, arguing that DNA testing was not needed and that microscopic testing alone could determine whether the hair on the mask matched the defendant’s or Butler’s type of hair. He stated that the hair from the mask appeared to be Negroid head hair and that the defendant was a mulatto with Caucasian head hair. The court ordered the state to determine whether the hair on the neoprene mask was Negroid or Caucasian. The court denied the defendant’s renewed motion for a continuance.

On May 18, 2001, after the state had rested its case-in-chief, the results of a microscopic examination became available. The results indicated that the sample from the mask was Negroid hair and that the defendant’s hair was Caucasian. Counsel stipulated that evidence of the test results would be presented to the jury. After the defense rested, the prosecutor informed the jury that the hair found on the neoprene mask was Negroid and that the defendant’s hair was Caucasian.

During its deliberations, the jury sent a note to the court, asking for instructions about how to consider the inconsistencies in the defendant’s signed statement. The jury subsequently convicted the defendant.

On June 14, 2001, the police gave a sample of hair from Butler’s head to the state crime laboratory. The crime laboratory issued a report on June 18, 2001, stating that the hair from the neoprene mask was Negroid and that Butler has Negroid hair. The hair samples, however, were otherwise dissimilar.

At trial and on appeal, the defendant argued that his statement and Butler’s statement implicating one another were not trustworthy. The defendant contended that he fabricated his statement to make the police happy. At trial, there was testimony that an individual the size of the defendant had struck Edgar Sandoval. In the defendant’s statement, he indicated that Butler had hit Sandoval. The state argued that the defendant had switched his role with Butler’s to minimize his culpability.

On appeal, the defendant claims that he was denied a fair trial due to surprise as a result of the state’s announcing that it would not present evidence of the comparative testing of the human hair samples. He argues that his request for a continuance was timely because a trial commences with jury selection and, therefore, his request for a speedy trial would not be implicated by the continuance. He also argued that there was time to conduct the tests before the end of the 120 day speedy trial requirement because Butler had volunteered to provide a hair sample. Because there was no evidence comparing Butler’s hair with the hair from the neoprene mask, the state was able to argue that the hair from the mask was Butler’s. Furthermore, the defendant’s request for a continuance did not come as a surprise, as it was predicated on the state’s disclosure that the test results were not available. Finally, the defendant referred to the difficulty the jury had interpreting his voluntary statement and claims that evidence that the hair on the mask was not his or Butler’s would have indicated that he falsely had placed himself at the crime scene.

“A motion for continuance is addressed to the discretion of the trial court and its ruling will not be overturned absent a showing of clear abuse of that discretion. ... In our review of the trial court’s ruling on a motion for continuance, [ejvery reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... It must be shown that the trial judge acted arbitrarily and substantially impaired [the] defendant’s ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion. . . . Our assessment of the reasonableness of the trial court’s exercise of discretion is limited to a consideration of those factors on the record known to the court at the time it rendered a decision.” (Citations omitted; internal quotation marks omitted.) State v. Wegman, 70 Conn. App. 171, 174-75, 798 A.2d 454, cert. denied, 261 Conn. 918, 806 A.2d 1058 (2002).

There are several factors to be considered when deciding whether the court abused its discretion when ruling on a motion for continuance. Such factors include “the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request; [and] the likelihood that the denial would substantially impair the defendant’s ability to defend himself .... Another set of factors has included, as part of the inquiry into a possible abuse of discretion, a consideration of the prejudice that the defendant actually suffered by reason of the denial of the motion for continuance.” (Internal quotation marks omitted.) Id., 175-76.

Here, the defendant, due to his status as a prisoner, filed a motion for a speedy trial. The state had indicated during jury selection that it intended to introduce scientific evidence concerning the type of hair found on the neoprene mask as compared with the type of hair the defendant and Butler have. Unbeknown to the state, the police had never obtained a sample of Butler’s hair, and no forensic testing had been done on any of the samples. The defendant hoped that the testing of the hair samples would prove that neither he nor Butler had worn the mask. By the same token, the state had hoped to have evidence that Butler’s hair was on the mask.

The defendant faults the court for not granting a continuance to enable him to perform testing on a sample of hair from Butler. As the court indicated to the defendant at the hearing, it did not have the authority to order Butler to submit a hair sample sua sponte. The state had not made that request in Butler’s case. See Practice Book § 40-33. Furthermore, Butler’s counsel agreed to submit samples of his hair for full DNA testing, not merely microscopic testing, and there was not enough time for DNA testing.

At the time the court ruled on the motion for a continuance, the results of the tests performed on the samples of hair from the neoprene mask and the defendant were not available to the court. The court is not prescient and in no way could have anticipated the results. In a similar fashion, there is no way that the court could have anticipated the question from the jury regarding the defendant’s statement.

Finally, the defendant has not demonstrated that the court’s ruling was prejudicial to him. The defendant was not convicted because the results of the testing on the hair samples were unavailable. The results of the testing performed on the hair samples would have proved only that the hair found on the neoprene mask was not the defendant’s and that it was not Butler’s. The defendant was convicted on the basis of the statement he gave to the police.

At the time the defendant gave his statement, he was aware that the police had found a mask in the Sandoval vehicle and had a video surveillance tape of the robbery. When the defendant gave his statement, he provided information that only a participant in the crime could have known. The defendant confessed to the robbery and told the police that Butler was his accomplice. He also told the police that he and Butler wore masks, where the keys to the Sandoval vehicle could be found, how many people were in the store, that someone was assaulted and how much money was taken from the register. A jury may be permitted to infer certain facts from the evidence presented. See State v. Middlebrook, 51 Conn. App. 711, 720-21, 725 A.2d 351 (“ ‘[o]nce the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity’ ”), cert. denied, 248 Conn. 910, 731 A.2d 310 (1999).

We conclude that the defendant was not prejudiced by the court’s denial of his motion for a continuance. The court, therefore, did not abuse its discretion or deny the defendant his constitutional rights to due process and a fair trial.

II

The defendant’s second claim is that the court, O’Keefe, J., improperly denied his motions for a new trial and to reargue, and failed to recuse himself, sua sponte, from considering the motions. We disagree.

A

We will first address the defendant’s claims related to the motions for a new trial and to reargue. After the jury returned its verdict, the defendant filed a motion for a new trial, claiming that he was materially injured because he was not allowed to present evidence to the jury that several strands of hair found on the neoprene mask were not Butler’s. The court refused to grant a continuance of the hearing on the postverdict motions until the results of tests performed on Butler’s hair sample were available. Defense counsel argued that the evidence regarding Butler’s hair was important for the jury to consider the defendant’s claim that he had made a false confession because his will was overborne by the police, and that the defendant and Butler, in fact, had not participated in the burglary. According to the defendant, he named Butler because the two men were not getting along at the time he confessed.

The court denied the motions for a continuance and for a new trial, stating in relevant part that “my impression from the evidence, the conclusion that I reached, was that he truthfully confessed to the participation in the robbery, but lied about certain aspects of the robbery, including his role in the robbery. I think he switched around . . . who was the aggressor, and he may have even named a false accomplice, but the court’s impression was that he correctly named himself as the robber, but lied in certain aspects of the confession to . . . lessen his culpability.” The court, however, also ruled that the defendant could file a motion to reargue his motion for a new trial if the hair analysis demonstrated that the hair on the neoprene mask was not Butler’s.

The results of the test demonstrated that the hair on the neoprene mask were Negroid and that Butler’s hair was Negroid, but also that the hair samples were dissimilar in other respects. The defendant filed a motion to reargue his motion for a new trial.

The court held a hearing on the motion to reargue on November 8, 2001, at which time defense counsel made arguments similar' to those already discussed. The court denied the motion to reargue stating, “I presided over the case. I listened to the evidence. I’m familiar with the case. And the fact that the hair in this mask was not Mr. Butler’s does not in any way undermine the strength of the state’s case against [the defendant]. If the jury had known that, I don’t know what conclusions they would have drawn based on it. But not the ones that [defense counsel is suggesting]. I think that anybody could have had this mask on before Butler used it and left their hairs there. I don’t know what . . . the presence of someone’s hair in the mask means. I know what it doesn’t mean. It does not mean that [the defendant] is innocent. And that’s for sure.”

As he did at the hearing, the defendant argued, on appeal, that he was materially injured by the state’s asking the jury to infer that the hair on the mask was Butler’s because Butler, an African-American, was the same height as the second robber and the hair on the mask was Negroid. Consequently, the state asked the jury to infer that the defendant’s confession that he and Butler had committed the robbery was true. The defendant also argued that because he did not have the test results at the time of trial, he could not argue to the jury that the hair found on the neoprene mask did not match his or Butler’s type of hair, and, therefore, the defendant’s confession must have been unreliable. Furthermore, he argued that he was entitled to a new trial by a jury, rather than having the court decide his guilt in the context of the motion to reargue, because the court had information that was not available to the jury.

“Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In our review of the denial of a motion for [a new trial], we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 247, 780 A.2d 53 (2001).

The sum and substance of the defendant’s argument is that the results of the tests comparing the hair samples from the neoprene mask and from Butler were not available to him at trial. Evidence proving that the hair found on the mask was not Butler’s would not have proved that the defendant did not participate in the robbery. As the court pointed out, the hair on the mask could have come from anywhere, and the fact that it was not similar to Butler’s hair does not mean that Butler did not wear the mask. The defendant was convicted on the strength of the details about the robbery that he provided in his written statement. The court, therefore, did not abuse its discretion in denying the defendant’s motions for a new trial or to reargue.

B

We now address the defendant’s claim that Judge O’Keefe improperly failed to recuse himself, sua sponte, from deciding the defendant’s motion for a new trial. The state has argued that we should not review the claim because the record is inadequate and the defendant failed to preserve his claim for appellate review. We agree with the state.

The claims arise from the court’s apparent response to the defendant’s disruptive behavior in the courtroom. After returning its verdict, the jury was excused so that the state could prepare to present evidence on part B of the information, which alleged that the defendant was a persistent dangerous felony offender under General Statutes § 53a-40 (a) (1) (A). The transcript of the court proceedings contains the following parenthetical statement: “(physical outburst by the defendant).” The transcript then indicates that the state withdrew the part B information. Immediately thereafter, the court set the date for sentencing.

Despite his assertion of certain acts by the court, the defendant did not file a motion asking the trial judge to recuse himself from the case, or seek to construct a record of the incident or ask for a hearing to determine whether the incident prevented the court from being fair and impartial in subsequent proceedings. The burden is on the appellant to provide an adequate record for review. See State v. Collic, 55 Conn. App. 196, 209, 738 A.2d 1133 (1999). “Any factual disputes involved in a claim of judicial bias may require an evidentiary hearing and, if so, it should be conducted before another judge.” Joyner v. Commissioner of Correction, 55 Conn. App. 602, 608, 740 A.2d 424 (1999). We therefore decline to consider any portion of the defendant’s claim as it relates to the court’s response to his disruptive behavior immediately after the jury returned its verdict. The only information about the event that the transcript reveals is the parenthetical notation.

The court sentenced the defendant on July 30, 2001. Prior to sentencing, while the prosecutor was addressing the court with the state’s sentencing recommendation, the defendant spat on him. After a brief recess during which the defendant was removed from the courtroom, the court stated on the record: “All right. Just so the record is clear, just so the record is clear— upon the conclusion of the prosecutor’s remarks, the defendant turned toward the prosecutor and spit in his face, and at that point, the defendant was removed by order of the court. And I’ll allow the sentencing to continue. The defendant can hear our remarks through the communication system. ... I feel very badly for the sheriffs to have to deal with somebody like this. I feel very badly for [the prosecutor] who is a dedicated, hardworking public servant, just trying to do his job, and he does it well, trying to protect law-abiding citizens from people like [the defendant]. And to have to put up with this is disturbing. When I was a prosecutor, I was subject to threats and also disrespectful behavior by the defendants in court, and it’s bothersome. I’m sorry. I feel badly for you.” The defendant did not object to the court’s remarks. The court proceeded to imposed an effective sentence of forty-five years in prison consecutive to the sentence the defendant then was serving.

On appeal, the defendant claims that after sentencing him, the trial judge should have recused himself, sua sponte, and referred the motion for reargument of the defendant’s motion for a new trial to another court. At no time did the defendant ask the judge to recuse himself. The defendant bases his claim on the incident involving his disruptive behavior at the time the jury rendered its verdict. As we have previously held, we have no record of the incident to which the defendant refers and decline to review his claim.

The defendant also claims that the court’s remarks on the record after the defendant spat on the prosecutor are evidence of bias in favor of the prosecutor and judicial marshals, thereby requiring the judge to recuse himself. The defendant relies on canon 3 (c) (1) (A) of the Code of Judicial Conduct for his claim that the court’s comments created the appearance of impropriety. “It has long been settled that the bias or prejudice sufficient to result in a disqualification must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” (Internal quotation marks omitted.) Joyner v. Commissioner of Correc tion, supra, 55 Conn. App. 608-609. In his brief, the defendant has failed to explain how or why the court’s comments to the marshals and the prosecutor in the face of the defendant’s spitting on the prosecutor, an abusive, disrespectful and unsanitary act, were improper. The court observed the defendant’s abusive behavior in the courtroom during sentencing.

In the context of adjudicating a criminal contempt, our Supreme Court has set forth the role of the judge in the administration of justice and the dignity of the office, as well as that of the court. See In re Dodson, 214 Conn. 344, 572 A.2d 328, cert. denied sub nom. Dodson v. Superior Court, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). Our view ol’the record indicates that the defendant’s behavior was “directed against the dignity and authority of the court as an institution and not against the trial judge personally.” (Internal quotation marks omitted.) Id., 358. The court’s comments were addressed to the defendant’s behavior, which “was not a mere affront to the sensibilities of the txial judge qua trial judge; it directly hindered and interfered with the Superior Court qua Superior Court in its orderly processing of business before it. This misconduct led to obstruction and delay and was directed against the dignity of the court.” Id., 360.

We conclude, therefore, that there was no reason for the judge to recuse himself for having made a statement on the record in recognition of the difficult tasks performed by the judicial marshals and the prosecutor in the face of the defendant’s disruptive behavior. Furthermore, the remarks were made in the context of explaining why the defendant had been removed from the courtroom during his sentencing and did not create the appearance of impropriety.

III

The defendant’s third claim is that the court, O’Keefe, J., improperly denied his motion to suppress his statement to the police. The defendant claims that he did not knowingly, voluntarily and intelligently waive his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We do not agree.

The defendant filed a motion to suppress the statement he gave to the police about the robbery at the Cumberland Farms convenience store. The court held a hearing on the matter at which Eugene Coyle, a detective in the Waterbury police department, testified about the manner in which the police had obtained the defendant’s statement. On October 24, 2000, the defendant voluntarily accompanied the police to the police station. Coyle presented the defendant with a computer generated constitutional rights form and read him his rights. After Coyle read the defendant each of his rights, the defendant initialed the form next to each enumerated right. During his argument to the court that the statement should be suppressed, the defendant noted that he had not affirmatively given a knowing and intelligent waiver of his rights because he had failed to circle either the word “yes” or “no” in response to the questions, “Do you understand these rights?” and, “Are you willing to waiver (give up) these rights and answer my questions?” Instead of circling his answers, the defendant wrote his initials next to the questions. The defendant signed and dated the form. The constitutional rights form was admitted into evidence.

Immediately after the defendant signed the rights form, he gave Coyle a written statement, which the defendant also had signed. The statement was admitted into evidence. Directly above the defendant’s signature are the printed words, “I have given the above statement of my own free will without threat or promise after my Constitutional Rights have been explained to me.” When he testified during the suppression hearing, the defendant did not claim that he did not understand his constitutional rights, but that he waived them after he had returned from showing the police where they might find Butler. In other words, the defendant claims that he gave Coyle a statement before Coyle obtained his consent.

In denying the defendant’s motion to suppress, the court made the following findings. The interview was taken “in a relatively relaxed setting, with no evidence of duress or promises or threats, and the defendant was informed of his rights. . . . And an advisement is in evidence and I’ve looked at it, and it’s obvious there was an omission on the part of the — either the police or the defendant to circle a portion of the form, but the other evidence, the other pertinent evidence fills in the gaps. And based on the totality of the entire picture presented to the court, I find that there was a waiver, and that it was knowing and intelligent and voluntary, and that determination is not affected by the apparent incompleteness of the form. After the advisement and the waiver, the defendant spoke freely of the robbery and his other knowledge of the subsequent robbery.” The court credited the testimony of Coyle, rather than that of the defendant.

“The standard of review for a trial court’s ruling on a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... [0]ur review is plenary and we must determine whether the trial court’s conclusions of law are legally and logically correct and find support in the stipulated facts.” (Citation omitted; internal quotation marks omitted.) State v. Rivera, 74 Conn. App. 129, 143-44, 810 A.2d 824 (2002).

“[T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined .... The ultimate test remains .... Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. . . . [W]e review the voluntariness of a confession independently, based on our own scrupulous examination of the record. . . .

“We make such a determination by examining the totality of the circumstances surrounding the confession, and determining whether the confession [was] the product of an essentially free and unconstrained choice by the maker. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Citations omitted; internal quotation marks omitted.) State v. Edward B., 72 Conn. App. 282, 289-90, 806 A.2d 64, cert. denied, 262 Conn. 910, 810 A.2d 276 (2002).

The defendant makes no claim that he was held in lengthy detention or subjected to physical punishment. The defendant voluntarily accompanied the police to the police station and was not handcuffed. On the basis of our review of the record, we conclude that at the time he gave his statement to the police, the defendant was well acquainted with the criminal justice system. His testimony reveals him to be articulate and knowledgeable. The court concluded that his testimony that he was not informed of his constitutional rights until after he had given the police a statement was not credible. The defendant testified that he was not informed of his constitutional rights until after he had returned from showing the police where they might find Butler. While the defendant was pointing out where Butler might be found, his defense attorney telephoned Coyle and discussed the defendant’s waiver and statement. When the defendant returned to the police station, he signed a form permitting the police to take a sample of his hair.

We therefore conclude that the court properly denied the defendant’s motion to suppress.

IV

The defendant’s last claim is that the court, O’Keefe, J., improperly refused to instruct the jury to find the defendant not guilty of the second count of the information, which charged him with robbery in the first degree, and denied his motion for a judgment of acquittal as to that count because there was insufficient evidence to convict him of having robbed Edgar Sandoval. We are not persuaded.

Count two of the information charged the defendant with robbery in the first degree in violation of § 53a-134 (a) (4), alleging that he had used or threatened the immediate use of physical force on Edgar Sandoval for the purpose of preventing or overcoming resistance in the taking of Sandoval’s property. As we stated at the beginning of this opinion, the defendant had struck Sandoval with his handgun and removed the man’s wallet from his trousers. Because the wallet contained only $2, the defendant became enraged and threw the wallet to the floor.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom, the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 377-78, 796 A.2d 1191 (2002).

At trial and on appeal, the defendant claims that he could not be convicted of having robbed Edgar Sandoval because he did not keep the man’s wallet. This claim is misguided because the defendant misapprehends the intent necessary to commit robbery. This claim is controlled by our Supreme Court’s holding in State v. Anderson, 212 Conn. 31, 561 A.2d 897 (1989). In Anderson, the defendant had used a knife to rob the victim, but moments after he took the money, he returned it to her. On appeal, the defendant claimed that he did not have the intent necessary to deprive the victim of her money because he returned it. Id., 45.

“In discussing the intent to deprive another of property, an element required for a conviction of robbery in the first degree, [our Supreme Court has] stated that the accused must intend both to take the property of another and to retain it. . . . The requisite intent for retention is permanency. . . . [S]ee General Statutes § 53a-118 (a) (3) (deprive means withhold [property] or cause it to be withheld from [the victim] permanently . . .). Intent, however, can be inferred both from the defendant’s conduct and his statements at the time of the crime . . . and whether such an inference should be drawn is properly a question for the jury to decide. ... To be convicted of robbery in the first degree, therefore, it is not necessary for the jury to find that the defendant actually kept the property in question, but rather, that at the moment he took the property he intended to retain it permanently. . . . Moreover, a postoffense change of heart is not a defense to a crime.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Anderson, supra, 212 Conn. 45-46.

We have reviewed the evidence in the light most favorable to sustaining the verdict, and conclude that the jury reasonably could have found that the defendant took Sandoval’s wallet and money with the intent to retain it permanently. The court, therefore, properly denied the defendant’s request to charge and his motion for a judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Butler was arrested on October 30, 2000, and subsequently confessed to the crime and implicated the defendant.

       The November 1, 2000 police report indicates that the police would obtain a search warrant to obtain a sample of Butler’s head hair.

       Butler’s defense counsel was present and indicated that Butler would voluntarily provide a hair sample for complete DNA testing.

       A sample of Butler’s hair later was submitted to the state crime laboratory and determined to be Negroid, but dissimilar to the Negroid hair found on the neoprene mask.

       The prosecutor stated in relevant part: “[D]uring the course of testimony, there was evidence that head hair was recovered from state’s exhibit two, a foam mask. The state stipulates to that fact. That we also stipulate that [the defendant] did consent and did give hair samples to the Waterbury police department, [as] has been previously testified to, and that those hair samples were sent to the state police lab in Meriden, Connecticut, and . . . the forensic lab has concluded that the hair that’s found in the mask is Negroid type head hairs, and that the hair samples from [the defendant] are human, Caucasian type of hairs. So that the hairs of [the defendant] do not match that of the foam mask, and that is our stipulation, and that the document documenting it, is an exhibit.”

       The note from the jury stated: “If the voluntary statement that [the defendant] has signed is the only piece of evidence that we are considering for our decision, and the [prosecutor] has said that [the defendant] was not truthful in this statement — are there any special instructions as to the way we read this? Could one sentence that he took part in this robbery and no other evidence provided to us whatsoever be enough to convict.” (Emphasis in original.)

       Practice Book § 40-33 provides in relevant part: “Upon application of the prosecuting authority, the judicial authority by order may direct a law enforcement officer to bring the defendant forthwith before the judicial authority for an immediate hearing on a motion made under Sections 40-32 through 40-39, if an affidavit or testimony shows that there is probable cause to believe that the evidence sought will be altered, dissipated, or lost if not promptly obtained. . . .” (Emphasis added.)
      Practice Book § 40-32 provides: “Upon motion of the prosecuting authority, the judicial authority by order may direct a defendant to participate in a reasonably conducted procedure to obtain nontesthnonial evidence, if the judicial authority finds probable cause to believe that:
      “(1) The evidence sought may be of material aid in determining whether the defendant committed the offense charged; and
      “(2) The evidence sought cannot practicably be obtained from other sources.” (Emphasis added.)

       During final argument to the jury, the prosecutor stated in relevant part: “And it’s uncontroverted Mr. Butler’s an African-American, and we would expect he has Negroid hair. And so I can’t tell you it’s Mr. Butler’s hair. I can’t tell you it’s anybody else’s hair. I can tell you that’s the type of hair on there.”

       We note that the court always has information that is not available to the jury.

       The appendix to the defendant’s appellate brief contains a photocopy of a newspaper article about the incident Newspaper articles that have not been admitted into evidence or made part of the trial court file, do not constitute a record for appellate review. The subject article was never offered into evidence or mentioned at the hearing on the motion for a new trial. See State v. Shanks, 34 Conn. App. 103, 110, 640 A.2d 155, cert. denied, 229 Conn. 921, 642 A.2d 1216 (1994); see also Practice Book § 67-4 (d) (4) (“[w]hen error is claimed in any other ruling in a court or jury case, the brief or appendix shall include the pertinent motion or pleading as well as any other pertinent documents which are apart of the trial court case file but are not included in the record” [emphasis added]).

       On that date, prior to sentencing, the court denied the defendant’s motions for a continuance, for a judgment of acquittal and for a new trial.

       The state recommended that the defendant receive an effective sentence of fifty-two years.

       The defendant also cited the following colloquy between him and the court made during his allocution, but failed to explain why it is relevant to his argument on appeal:
      “[The Defendant]: First of all, I want to let you know that nothing I did in your courtroom, I don’t regret nothing, none of it.
      “The Court: You don’t what?
      “[The Defendant]: I don’t regret none of it.
      “The Court: Good. I don’t regret it, either. It’s nothing.
      “[The Defendant]: As far as any of you all judging me, you so-called judging me or taking my life, taking me from my family, you all is not right. But you think you are doing your job, but this is not a job, this is what you are doing now. You are really hurting a lot of people’s lives whether you realize it or not. You think this is a job, you think this is what you are doing, justice. You got no right to judge nobody. What you are doing now, you are going to have to deal with this. And whatever how much time you give me, when I get out, you are going to be dead. I’m still going to be alive, and you got, to go to judgment then. Believe that.”

       The defendant, however, does not claim that the judge should have recused himself from sentencing him.

       The defendant concedes that it was not improper for the court to sentence the defendant pursuant to the jury’s verdict. The defendant argues only that it was improper for the judge to fail to recuse himself from deciding his motion for a new trial.

       Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
      “(A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding .. . .”

       The court, here, did not find the defendant in criminal contempt.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”


source: Caselaw Access Project

author: MCDONALD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TRAVIS L. WRIGHT
    (AC 21830)
    Davery, C. J., and Flynn and McDonald, Js.

      Argued October 22, 2002
    officially released April 8, 2003

      Joseph A. Moniz, special public defender, for the appellant (defendant).

      Eileen F. McCarthy, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and James Bemardi, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Travis L. Wright, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress his confession, (2) excluded portions of his psychological records and (3) gave two “Chip Smith” charges to the jury, depriving him of his constitutional rights to due process and an uncoerced jury verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 11, 1999, the lifeless body of Wieston Tarnowski, a victim of multiple stab wounds, was found in an abandoned vehicle in Stamford. While being interviewed at the Stamford police station following his arrest on June 25, 1999, on a charge of attempt to commit robbery, the defendant was asked about the Tarnowski homicide, and he indicated that he knew about the stabbing of a man in the south end of Stamford. The defendant subsequently confessed to twice stabbing a man in the chest after that man attacked him. The defendant told the police that he left that man in a vehicle in the area of Rockland Place and Atlantic Street in Stamford.

After a jury trial, the defendant was found not guilty of murder in violation of General Statutes § 53-54a and guilty of manslaughter in the first degree, as a lesser offense included within murder, in violation of § 53a-55 (a) and sentenced to seventeen years incarceration. This appeal followed.

I

The defendant first claims that the court improperly denied his pretrial motion to suppress the confession that he gave to the police. On appeal, the defendant claims that the court improperly failed to base its decision on the totality of the circumstances surrounding that confession. We disagree.

After a hearing on the motion to suppress, the court found the following facts in its memorandum of decision. “On June 25, 1999, Officer Michael Merenda of the Stamford police department went to the area of Spruce Street in Stamford, at approximately 6-6:15 a.m., on the report of a robbery. He had a description of several suspects who may have been involved in the robbery. Merenda saw three black males near the area of Fairfield Court matching this description who, upon seeing him, fled. One of the three was the defendant, who then came to a stop. Merenda detained the defendant pending further investigation.

“In the meantime, Officer David Dogali was involved in assisting the victim of this robbery, one [Alejandro] Pagan. Upon learning that Merenda had detained a suspect, Dogali drove Pagan to the detention scene. Pagan identified the defendant as one of his assailants.

“Merenda then arrested and handcuffed the defendant, placed him in his patrol car and advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), from a card carried for those purposes. The defendant said he understood those rights. Merenda asked the defendant about his involvement in the robbery; the defendant said that he had been there, but the two others had actually committed the robbery of Pagan. The defendant also denied striking Pagan. The defendant then said, T don’t want to talk to you anymore,’ so Merenda terminated the questioning and transported the defendant to the Stamford police department for booking. The defendant was then, again, administered his Miranda rights by way of a written notice of rights form. The defendant read the form, said he understood it and signed it at approximately 6:40 a.m.

“The defendant was put in a cell and remained there until later that morning. In the meantime, Officer Gregory Holt and Sergeant Anthony Luppinacci had come on duty. They, and later Officer John Lynch, would come to be involved in the questioning of the defendant. Holt and Luppinacci received a ‘thumbnail sketch’ of the Pagan robbery. They removed the defendant from his cell at approximately 11:49 a.m. They brought him into an interview room in the detective bureau. The officers did not give the defendant his Miranda rights again, then, because they saw that the earlier notice of rights form had been completed.

“The officers told the defendant that they wanted to talk to him about the Pagan robbery. The defendant appeared agreeable to this and spoke freely. The defendant admitted his involvement in the robbery, including punching Pagan and ‘running’ his pockets. The defendant also admitted having done similar robberies previously. The defendant agreed to give a written statement concerning the Pagan robbery. The officers reviewed yet another notice of rights form with the defendant and had him read and sign it. This was done at about 1:05 p.m. The officers took and typed the defendant’s statement, concluding at about 2:21 p.m.

“At about this time, Officer Holt left the interview room and Luppinacci remained with the defendant. Luppinacci asked the defendant if he had any knowledge of any other criminal activity, or about the south end homicide involving Tamowski [which Luppinacci put to many people who were arrested]. The defendant asked what Luppinacci would do for him. Luppinacci said that he would speak to the prosecutor handling the case. The defendant then gave his first oral statement about the Tamowski homicide, in which he admitted being present with others when Jerry Cook stabbed . the victim. The officers assembled a photographic array, including a photograph of Cook, and the defendant identified Cook’s photograph as being [that of] the peipetrator.

“In the meantime, the officers had determined that Cook had been incarcerated at the time of the homicide and, therefore, could not have committed it. They confronted the defendant with this information. The defendant said that he had lied to get some consideration in the Pagan robbery. But on the basis of the information the defendant had already provided, the officers were persuaded that the defendant had been at the homicide scene. They refused, however, to provide the defendant with the details that so persuaded them.

“The defendant then began taking the tack that he had not divulged anything to his questioners; he became incommunicative. He was fidgety and upset. Holt moved closer to the defendant, asking him what was wrong. The defendant became more emotional, crying. The officers tried to calm him down, and Holt put his arm on the defendant’s shoulder, reassuring him. They took a break so the defendant could compose himself. The defendant did and then told the officers a second version of the Tamowski homicide.

“The defendant substantially stated that in the evening or early morning hours of April 11, 1999, he was on the streets in the south end of Stamford where he eventually encountered the victim. The defendant stated that he attempted to disengage himself from a grappling encounter with the victim, but that the victim had persisted. It was at about this point, the defendant stated, that he pulled out a knife and twice stabbed the victim. The defendant then fled the area and threw the knife off of a bridge. This essentially concluded the defendant’s final version of the events that night. After this, the officers developed several details of the homicide with the defendant, including the use of diagrams.

“The defendant then agreed to go with the officers, in their car, to the area of the crime scene to show them where it had happened and what route he had taken in his flight therefrom, and also where he had disposed of the knife. Following this, they returned to the police department and the interview room. They asked the defendant more questions, which he answered. The defendant also described the knife he had used to stab Tamowski. The officers then began to prepare for the taking of a written statement from the defendant at about 7:40 p.m. They advised the defendant of his rights in written form, had the defendant read one or more of these rights aloud and the rest to himself. He initialed the rights and a waiver of them. The officers then began taking the defendant’s written statement, asking him questions as it was typed. When the statement was done, the defendant was given it to review and the opportunity to ‘edit’ it. The defendant remarked that the statement made him look like a liar because of his earlier, false version of events. The defendant finally initialed and signed the statement. It was completed at approximately 11:27 p.m. The defendant, who had asked to call his mother about one-half hour before, called her. The defendant was then arrested for the murder of Tamowski and returned to his cell. The following morning, Saturday, June 26, the defendant and several officers went to the vicinity of the Pulaski bridge in Stamford, which had been identified as the bridge from which the defendant threw the knife. The police performed several ground searches for the knife, with no success in recovering it. A later dive search also did not recover the knife.”

The court further found the following facts: “The defendant [at the time of the confession] was seventeen years old and in high school. He did not appear to be under the influence of any substance or of fatigue. The rights were given in English, the language which the defendant spoke and read. He also knew how to invoke those rights, especially his right to remain silent. At the scene of the arrest, Officer Merenda advised the defendant of his rights and then asked him some questions, which the defendant answered. At some point, however, the defendant responded, T don’t want to talk to you anymore.’ . . .

“[T]he defendant was given his Miranda rights a second time during his booking at the police department. He was not immediately interrogated again. After a five horn interval, the defendant was [taken to an interrogation room] for questioning by different officers. He voluntarily answered their questions. At no time did the defendant do anything which indicated that he wished to invoke his rights. To the contrary, the evidence shows that the defendant had some degree of self-sawy because, when he was asked about the south end homicide, he inquired, ‘What will you do for me?’ The defendant admitted to the officers that he had been involved in other robberies. He had been arrested and advised [of his Miranda rights] once before on an unrelated matter. He had some degree of familiarity with the legal system. . . .

“Further, the circumstances of the defendant’s interrogation were not oppressive. Throughout the course of the day, June 26, the defendant was in different places: a cell, an interrogation room or in a police car driving through Stamford. The interrogation room appears to have been of moderate size, about the same of that of a jury box. The defendant was seated in the room and was handcuffed by one hand to his chair, the other aim was free. There were generally no more than two officers present with him at any time. He was free to use a rest room; he was offered, and did partake of, food and drink. He made no complaints. He asked for his mother only once, before the very conclusion of his final written statement. He made no objection to the officer’s response that he delay that call until they were finished. It is true that the defendant lost his composure before making his final written statement to the police. This was after the defendant had been caught in earlier lies and had parried with the police to divulge incriminating information. However, he eventually regained his composure prior to making his final statement. He was willing and cooperative.”

The court also found that the defendant had well below average intelligence, having a verbal IQ of seventy-four and a full scale IQ score of fifty-nine in 1996. Once the defendant began talking to the officers, however, he showed no hesitancy to speak, and his answers were in narrative form. During his time with the police, over many hours, the police were attentive to his basic needs and requests. The court found the defendant’s statement did not appear to be motivated by coercive police tactics or by police promises or overreaching.

The court concluded that the defendant knowingly and voluntarily had waived his Miranda rights and that he voluntarily gave the statement to the police.

A

“[T]o show that the defendant waived his privilege against self-incrimination, the state must prove by a preponderance of the evidence that he knowingly and intelligently waived his constitutional right to remain silent. . . . The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. . . . [T]he question of waiver must be determined on the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. . . . The issue of waiver is factual, but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. . . .

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings ... his level of intelligence, including his IQ ... his age ... his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Internal quotation marks omitted.) State v. Jacques, 53 Conn. App. 507, 514-15, 733 A.2d 242 (1999).

“The burden upon the state to prove a valid waiver of Miranda rights is proof by a fair preponderance of the evidence and not proof beyond a reasonable doubt. ... In considering the validity of this waiver, we look, as did the trial court, to the totality of the circumstances of the claimed waiver.” (Citations omitted; internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 296, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000).

After a careful review of the evidence, we uphold the court’s factual findings and its conclusion that the defendant knowingly and intelligently waived his Miranda rights. The evidence established that the defendant was apprehended as he fled the scene of the Pagan robbery with two other men and that he was identified by Pagan as one of the men who attempted to rob him. When arrested, the defendant was advised of his Miranda rights, and he acknowledged that he understood his rights. The defendant then admitted to being at the scene of the Pagan robbery, but denied that he was involved, instead blaming the two others who were there. He later stated that he did not want to talk any further to the police officer.

The defendant then was brought to the police station and again advised of his Miranda rights, which he acknowledged understanding in writing. He subsequently was interviewed by other officers and stated that he was with his two brothers and a friend when he noticed Pagan walking onto Spruce Street. One of the individuals with the defendant stated, “Let’s get him,” and the group ran after Pagan. The defendant admitted that once they caught up to him, he punched Pagan in the head and searched his pockets, but found nothing. Pagan broke free from his attackers, fled along Spruce Street, and ran to the front porch of a house and began yelling or knocking on the front door. Afraid of being apprehended, the group ran to the Fairfield Court housing complex, where it was located by Officer Dogali and the defendant was apprehended. During an interview with the police, the defendant admitted that he had been committing robberies since he was sixteen years old and could remember that he had been involved in eight prior robberies.

After the defendant’s oral statement as to the robbery, Holt and Luppinacci took a written statement from the defendant. Prior to the taking of that statement, the defendant again was informed of his Miranda rights, and he signed and initialed a written rights waiver form. The officers then prepared a written statement concerning the Pagan robbery. When the written statement was complete, it was shown to the defendant for his review. The defendant read the statement, placing his initials after each paragraph to indicate that he read the statement. After the defendant read the statement, he initialed the statement, attesting that it was given voluntarily after being advised of his rights. The written statement, which began at 1:05 p.m., concluded at 2:21 p.m., with the defendant signing the statement.

Once the written statement was complete, Sergeant Luppinacci asked the defendant if he knew of any other criminal activity or if he had any knowledge of a stabbing that had occurred in Stamford’s south end. Luppinacci, the lead detective investigating the unsolved Tamowski homicide that occurred in April, 1998, asked this question of many who were arrested. After a short delay, the defendant asked Luppinacci what he could do for him if he provided any information. Luppinacci told the defendant that he could not personally do anything to help him, but that the sergeant would tell the prosecutor that the defendant had cooperated. The defendant then told Luppinacci that he learned about the stabbing from Alicia Cobb. When Luppinacci asked the defendant if he would mind if the police spoke with Cobb to verify his information, the defendant stated that Cobb did not tell him what had occurred, and that he was present and had observed the stabbing.

The defendant told Luppinacci that on the evening of April 11,1999, he attended a dance at the local YMCA and left with several individuals, including Jerry Cook and Jamal Grant. While the group members were walking in the area of Atlantic Street, they saw the victim, and Cook yelled, “There’s that guy,” meaning the man who Cook had robbed the previous day. The group proceeded to walk toward the victim. The victim then began calling the group racial names, whereupon Cook said that he was going to hurt the victim. Cook then pulled out a knife and stabbed the victim several times.

Luppinacci gave this information to Sergeant Richard Caldwell. Caldwell, who had arrested Cook earlier, checked the police database and learned that Cook was incarcerated on April 11, 1999, when the homicide occurred. The defendant subsequently was confronted with this information.

Upon being informed that Cook could not have been involved in the stabbing, the defendant dropped his head and said that he had made up the story to get some consideration on the robbery charge. On the basis of the information that the defendant gave to the police concerning the Tamowski murder, the police believed that the defendant had further information and continued asking him questions. At one point in the questioning, the defendant began to cry, but then composed himself. After two hours, the police told the defendant that if he did not have any further information to give them, they were going to take him to the cell block. At this point, the defendant confessed.

The defendant gave the following account of the events of April 11, 1999. After attending a dance at a YMCA, the defendant walked around downtown Stamford. While on Atlantic Street, the defendant needed to urinate and went behind a house on the corner of Rockland Place and Atlantic Street. While he was behind the house, the defendant saw the victim. As the defendant returned to the street, the victim followed. The victim then went behind the house. Fearing that the victim was trying to cut him off on the other side of the street, the defendant went behind the house and encountered the victim. Words were exchanged, and the victim grabbed the defendant around the neck by his shirt. The defendant knocked the victim’s hand off of his shirt, removed a knife from his pocket and stabbed the victim two times. He stated that “the first stab [hit] something hard and not feeling that it went in, and that the second stab wound — the second stab immediately thereafter went in like a piece of meat.” The victim staggered into a car and the defendant fled, throwing the knife from the Pulaski Street bridge.

During the interview, Officer Holt drew a series of three diagrams of the crime scene, and the defendant identified the location where he stabbed the victim. When the defendant had difficulty describing the street names in the area, he agreed to go with the police to show them the route that he took from the YMCA to the location of the stabbing and the route that he took from the scene. Prior to taking the defendant with them, the police brought the defendant food from McDonald’s.

After going to the crime scene, the police took the defendant back to the interview room to have him give a written statement. The statement process began at 7:40 p.m. with the police informing the defendant of his Miranda rights, and the defendant reading and initialing a waiver of rights form for the second time that day. While providing the written statement, the defendant ate a slice of pizza. After the statement was completed, it was handed to the defendant for him to review. While reading the statement, the defendant stated that it was “making him look like a liar” because of the several versions of events that he gave. The police told the defendant that the statement did not make him out to look like a liar, but that it reflected a complete version of the day’s events. The defendant signed the statement. The defendant’s family then was contacted, as he had earlier requested.

It is the defendant’s contention that the court improperly failed to consider the totality of the circumstances surrounding the statement he provided to the police. The defendant argues that his mental retardation, his lack of education, the length of the interrogation and coercive police tactics negated the fact that he signed an express waiver of his rights on two different occasions. We disagree.

The defendant was advised of his Miranda rights four times throughout the day. On each occasion, he acknowledged that he understood those rights. Shortly after his arrest and prior to being transported to the police station, the defendant informed Officer Dogali that he no longer wanted to speak to him, indicating that he understood his rights and knew how to invoke them when he wanted to do so. See State v. DaEria, 51 Conn. App. 149, 167, 721 A.2d 539 (1998). The defendant also signed a written waiver of rights form two times that day. “A defendant’s express written and oral waiver is strong proof that the waiver is valid.” (Internal quotation marks omitted.) Id.

The defendant, seventeen years old at the time of his arrest, was diagnosed in 1996 as educationally mentally retarded with an IQ of fifty-nine. However, Theresa Telesco, a school psychologist who testified at trial about the defendant’s intellectual abilities, stated that an individual’s IQ score can be substantially affected by the level of cooperation of the individual tested. The defendant’s test report revealed that when he was subjected to the IQ test, he did not fully cooperate and indicated that the results should be interpreted with caution. His school records also indicated that he was in the eleventh grade and had the ability to read. The defendant read the waiver of rights form to the police before he signed the form. When the defendant reviewed his written statement, he made corrections to it, showing that he had the ability to read, and to understand the statement and waiver of rights form that he signed.

“Even some degree of mental retardation does not by itself prevent a defendant from knowingly and intelligently waiving his Miranda rights. State v. Northrop, [213 Conn. 405, 418-19, 568 A.2d 489 (1990)] (valid waiver of Miranda rights despite evidence that defendant possessed a low intellect and was functioning at a fifth or sixth grade level when he left school); State v. Usry, [205 Conn. 298, 306-307, 533 A.2d 212 (1987)] (valid waiver of Miranda rights despite defendant’s young age, low IQ and status as special education student); State v. Boscarino, 204 Conn. 714, 744, 529 A.2d 1260 (1987) (valid waiver of Miranda rights despite testimony that defendant had low IQ and other deficiencies allegedly rendering him incapable of waiving his rights); State v. Toste, [198 Conn. 573, 581-83, 504 A.2d 1036 (1986)] (valid waiver of Miranda rights despite evidence that defendant operated at sixth or seventh grade level, had poor reading skills, had fairly low IQ and suffered from psychological disorder).” (Internal quotation marks omitted.) State v. DaEria, supra, 51 Conn. App. 168-69; see also State v. Madera, 210 Conn. 22, 45-47, 554 A.2d 263 (1989).

With respect to the circumstances surrounding the confession, the defendant was arrested shortly after 6 a.m. and arrived at the police station at 6:40 a.m. The police began questioning him about the Pagan robbery at 11:49 a.m., and he signed a written confession to that robbery at 2:21 p.m.. Thereafter, the defendant was asked whether he had any information concerning a south end homicide. This was the first time that the subject of the homicide was raised, as the earlier interview focused exclusively on the Pagan robbery. The defendant was not a suspect in the Tamowski homicide at that time. As the court noted, the question was “not reasonably designed to elicit an incriminating response.” At approximately 2:30 p.m., the defendant asked if he could help himself as to the robbery charge if he provided information about the homicide. After being told that the prosecutor would learn of his helpfulness, the defendant falsely accused Cook of being the perpetrator. In so doing, the defendant revealed that he had information that would be known only by someone who had been at the scene, and the officers continued to question him. He previously had been given his Miranda rights three times and waived them in writing prior to giving a written statement as to the Pagan robbery. After orally admitting to stabbing Tarnowski and attempting to retrace his steps to and from the crime scene, the defendant began his written confession at 7:40 p.m., and it was completed at 11:27 p.m. Our Supreme Court has stated that “[t]he mere fact that admissions are made by an accused after a long period of interrogation by a police officer does not necessarily mean those admissions are involuntary.” (Internal quotation marks omitted.) State v. Lapointe, 237 Conn. 694, 734, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). In this respect, we note that the discussion relating to the Tamowski homicide did not begin as an interrogation of a suspect. As the defendant attempted to help himself with respect to the Pagan robbery, he stated that he had witnessed the Tamowski homicide. The police then attempted to discover what truthful information the defendant might have.

While being interviewed, the defendant was offered food and drink, and had a meal from McDonald’s and a slice of pizza. See State v. Watts, 71 Conn. App. 27, 40, 800 A.2d 619 (2002). The officers who interviewed the defendant indicated that he did not appear to be under the influence of alcohol or narcotics, nor did he complain of being tired. Id. Although the defendant did become emotional during the interview, a defendant’s emotional state, by itself, does not invalidate a waiver of Miranda rights. State v. Downey, 45 Conn. App. 148, 163, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997). At no time did the defendant reveal that he did not understand his circumstances or that he had difficulty communicating with the officers. See State v. Jacques, supra, 53 Conn. App. 515. Further, there was no evidence to suggest that the police threatened or coerced the defendant. See State v. Hafford, supra, 252 Conn. 297. Finally, the evidence revealed that the defendant had experience in the criminal justice system, having previously been arrested and informed of his Miranda rights. State v. Usry, supra, 205 Conn. 305-306.

The defendant exhibited self-interest and knowledge of his circumstances as to the Pagan robbery in attempting to accuse Cook of the Tamowski homicide. When that attempt failed, he confessed to stabbing Tarnowski, but claimed that he did it because Tamowski initially assaulted him. This conduct illustrates that the defendant knew what he was doing and attempted to serve his own interests as he interacted with the police.

On the basis of the totality of the circumstances, we conclude that the court properly found that the defendant knowingly, intelligently and voluntarily waived his Miranda rights prior to giving his statement to the police concerning the Tamowski homicide.

B

“Irrespective of Miranda, and the fifth amendment itself . . . any use in a criminal trial of an involuntary confession is a denial of due process of law. . . . The voluntariness of a confession must be determined by the trial court as a preliminary question of fact . . . and we scrutinize the trial court’s finding closely to ensure that it comports with constitutional standards of due process. . . .

“We have stated that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined .... The ultimate test remains .... Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. . . . [W]e review the voluntariness of a confession independently, based on our own scrupulous examination of the record.” (Citations omitted; internal quotation marks omitted.) State v. Hafford, supra, 252 Conn. 298-99.

“Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep. . . . Under the federal constitution, however, coercive police activity is a necessary predicate to the finding that a confession is not voluntary . . . .” (Citations omitted; internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 419, 736 A.2d 857 (1999).

In its memorandum of decision, the court concluded that the “defendant’s statement was freely self-determined. His will was not overborne; his capacity for self-determination was not critically impaired.” We conclude that the evidence supports this conclusion.

There was no evidence that the police used threats or coercion in obtaining the defendant’s confession. The only comments that the police made to the defendant during the course of the interview were that if he helped solve the Tamowski homicide, they would inform the prosecutor that he cooperated. “The defendant was given no specific assurances that giving a statement would affect the outcome of the criminal proceedings. Encouraging a suspect to tell the truth . . . does not, as a matter of law, overcome a confessor’s will .... Neither is a statement that the accused’s cooperation will be made known to the court sufficient inducement so as to render a subsequent incriminating statement involuntary. . . . Several courts have held that remarks of the police far more explicitly indicating a defendant’s willingness to make a statement would be viewed favorably do not render his confession involuntary. ... [A] statement [that the accused’s cooperation would be to his benefit] by a law enforcement officer falls far short of creating the compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 424.

Further, the circumstances surrounding the statement support the court’s holding that the statement the . defendant provided to the police was voluntary. We conclude that the defendant’s age, education and mental handicap do not necessitate a finding that he did not voluntarily give a statement to the police. The defendant knew how to read and write, and understood his Miranda rights and how to invoke them. He signed a rights waiver form two times. He also had prior contact with the criminal justice system. Throughout the interview, the defendant was offered, and accepted, food and drink, and was permitted to use the bathroom when needed. There was no evidence that the police used any improper tactics during the course of his confession. Accordingly, on the basis of the totality of the circumstances, our thorough review of the record reveals that the court properly found that the defendant voluntarily gave his statement to the police. Having found that the court properly concluded that the state had met its burden of proof, we uphold the court’s denial of the defendant’s motion to suppress his confession.

II

The defendant next claims that the court improperly excluded portions of his school records concerning his mental capacity. We disagree.

The following facts and procedural history are relevant to our resolution of the defendant’s claim. At trial, the defendant called Telesco, the psychologist at Westhill High School in Stamford, as a witness. Through her testimony, the defendant sought to introduce into evidence, under General Statutes § 52-180, a document titled “Report of Individual Psychological Evaluation” from the defendant’s school file. The report related to a series of tests given to the defendant in 1996 as a special education student. The seven tests covered in the report were: (1) the Wechsler Intelligence Scale for Children-Third Edition; (2) the Bender Gestalt Test of Visual Motor Integration; (3) the Vineland Adaptive Behavior Scale-Classroom Edition; (4) the Thematic Apperception Test; (5) Rorschach; (6) sentence completion; and (7) classroom observation.

The state objected, and both parties examined Telesco on voir dire. The document, in bold typeface, stated that the “[s]cores should be interpreted with caution,” a warning that Telesco stated was not standard in such reports. This warning followed the observation that the defendant did not cooperate in the testing. Telesco testified that a lack of cooperation could effect the test results and result in a lower score. Telesco also testified that of the seven tests performed, the most reliable were the Wechsler Intelligence Scale for Children and the Vineland Adaptive Behavior Scale because of their objective basis. Telesco testified that the Wechsler and Vineland tests were more rehable because they utilized objective standards in evaluating results. The Bender Gestalt test did not have the level of reliability of the Wechsler and Vineland tests because of its use of subjective evaluating techniques. Telesco also testified that the Weschsler test was used to determine the defendant’s “intellectual ability.” Of the tests given, it alone determined a subject’s IQ. Thereafter, the court requested Telesco to redact the report, leaving only the material related to the Wechsler and Vine-land tests.

The defendant now argues that the redaction of the document, eliminating the results of the Bender Gestalt Test of Visual Motor Integration and the Bender Gestalt’s conclusion that the defendant’s score of 51 placed him at an equivalent to that of a seven year old, was improper.

Appellate review of the admission of a document under § 52-180 is limited to determining whether the trial court abused its discretion. River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 795, 595 A.2d 839 (1991). With respect to opinions contained in a business record, they would be allowed into evidence if the entrant would be qualified to give the opinion in oral testimony. Id., 799. Among the factors to consider is the relevance of the statements in the business record. Id., 798.

“To gain admission of a document under the business record exception to the hearsay rule, the proponent must show that (1) the document was made in the regular course of business, (2) it was the regular course of business to make such a record, and (3) the record was made when the act, transaction or event occurred, or shortly thereafter. . . . [T]he essential hallmark of admissibility under § 52-180 is the trustworthiness of the document . . . .” (Citations omitted; internal quotation marks omitted.) State v. Damon, 214 Conn. 146, 156-57, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990).

In State v. Damon, supra, 214 Conn. 157, our Supreme Court found it within the trial court’s discretion to admit an autopsy report. In upholding the trial court’s determination, our Supreme Court looked to the testimony concerning the three requirements that must be established before a document will be allowed into evidence under the business record exception to the hearsay rule, and to “the nature of the document itself, which [was] a report derived from established routine procedures designed to record objective facts and observations . . . .” (Emphasis added.) Id.

In this case, in redacting the proffered document, the court sought to ensure that only those portions that bore an indicia of trustworthiness were admitted into evidence. The document itself stated that caution should be used in interpreting the scores. In light of this, we conclude that the court did not abuse its discretion when it admitted into evidence only that part of the report that was based on objective facts and observations.

Further, the defendant has not shown that it was more probable than not that the redaction of the document affected the verdict. The defendant argues in his reply brief that the Bender Gestalt test “was relevant to demonstrate that [he] did not have the intellectual capacity to make a voluntary confession .... The denial of this evidence to the jury excluded substantial support for [his] argument that he was coerced into confessing to a crime that he did not commit.” We disagree.

Telesco testified on voir dire that the Wechsler test was used to determine intellectual ability, breaking intellectual ability down into a few components. It was used to determine a subject’s IQ. She also testified that the Bender Gestalt test of visual motor integration tests the subject’s ability to copy a symbol or form and also is used to test visual recall. Telesco, the only witness called on the subject, testified that the Bender Gestalt test is not used to determine a subject’s IQ. The Bender Gestalt test results appeared in the report in terms of mental age, and are not used to measure a subject’s IQ, but his visual perceptual and motor integration skills.

Telesco testified before the jury that the Weschler test was an IQ test and that the normal, or average, IQ was 90 to 100. The redacted report before the jury placed the defendant’s full scale IQ at fifty-nine, within the 0.3 percentile of test results. The report thus reflected that the defendant’s full score was below the normal and only “at or above the 0.3 percent of his age peers in the standardization sample.” The report concluded that the defendant was educationally mentally retarded and that his intellectual functioning was in the deficient range. Using the report and the testimony of Telesco, the jury could conclude, if it wanted, that the defendant’s intellectual ability was deficient and that he was mentally retarded. It also could conclude that the defendant’s full scale IQ was less than that of 97 percent of his peers in the standardized sample. The jury could also conclude, as the redacted reported stated, that the defendant suffered from severe visual perceptual weakness. We conclude that even if the court improperly redacted the Bender Gestalt test of visual motor integration, that was harmless.

Ill

The defendant also claims that the court improperly gave the jury two Chip Smith charges when the court knew that the jury vote was ten to two in favor of conviction. We disagree.

The following facts are needed for our resolution of the defendant’s claim. The jury began deliberations on November 22,2001. On the first day back after a holiday recess, the jury sent a note to the court indicating that it had discounted the murder charge and was deliberating on the lesser included offense of manslaughter, but was deadlocked, with ten jurors voting guilty and two jurors voting for acquittal. After hearing argument from the defendant and the state, the court gave the jury a Chip Smith charge. On the following day, the jury sent a second note to the court, indicating that it still was deadlocked. The court, over the defendant’s objection, gave a second Chip Smith charge to the jury. After deliberating for a day and one half after receiving the second Chip Smith charge, the jury found the defendant guilty of manslaughter in the first degree.

The defendant does not contest the validity of Chip Smith charges in general. Rather, it is the defendant’s sole contention that the charges given in this case were unduly coercive because the court knew that the jury vote was deadlocked ten to two in favor of conviction.

“Although a defendant is not entitled to an instruction that a jury may hang ... he is entitled to a jury unfettered by an order to decide. . . . Ajuiy that is coerced in its deliberations deprives the defendant of his right to a fair trial under the sixth and fourteenth amendments to the federal constitution .... Whether a jury [was] coerced by statements of the trial judge is to be determined by an examination of the record. . . . The question is whether in the context and under the circumstances in which the statements were made, the jury [was], actually, or even probably, misled or coerced.” (Citation omitted; internal quotation marks omitted.) State v. Spyke, 68 Conn. App. 97, 116, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002).

“The puipose of the [Chip Smith] instruction is to prevent a hung jury by urging the jurors to attempt to reach agreement. It is a settled part of Connecticut jurisprudence. . . . Better than any other statement ... it makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors . . . .” (Citation omitted; internal quotation marks omitted.) State v. O’Neil, 261 Conn. 49, 60, 801 A.2d 730 (2002).

“[A] Chip Smith charge, while encouraging a continued search for unanimity, also stresses that each juror’s vote must be his [or her] own conclusion and not a mere acquiescence in the conclusions of his [or her] fellows. . . . The language of the charge does not direct a verdict, but encourages it.” (Citation omitted; internal quotation marks omitted.) State v. Feliciano, 256 Conn. 429, 440, 778 A.2d 812 (2001).

“By asking the jurors to consider the views and arguments of others, the court’s instructions embodied the very essence of the jury system, which is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. ... It would defy logic to suggest that a juror should not listen with deference to the views of others, particularly when a majority of the others holds a different view of the case than his own. No juror should possess the blind determination that the verdict shall represent his opinion, deaf to those whose equal intelligence and integrity have brought them to a different place. . . . The charge in the present case, when read as a whole, properly informed the jury that each member had the individual responsibility to consider the opinion of the others and to satisfy him or herself of the correctness of his or her opinion and not merely to acquiesce in the conclusion of others.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 441-42.

The fact that the court knew that the jury’s vote was ten to two in favor of conviction does not render the court’s Chip Smith instructions unduly coercive. When the vote tally is disclosed to the court voluntarily and without solicitation, the fact that the court knew of the split before giving a Chip Smith charge does not constitute error. Id., 443 n.6; see also United States v. Meyers, 410 F.2d 693, 697 (2d Cir.), cert. denied, 396 U.S. 835, 90 S. Ct. 93, 24 L. Ed. 2d 86 (1969); United States v. Sawyers, 423 F.2d 1335, 1340 (4th Cir. 1970); United States v. Cook, 663 F.2d 808, 809 n.3 (8th Cir. 1981).

When read as a whole, the court’s instructions to the jury, including the two Chip Smith charges, were not unduly coercive. The court clearly stated that each juror’s individual vote must be based on his or her own conclusion and not on mere acquiescence to the conclusion of other jurors. In the second Chip Smith charge, after which a verdict was returned, the court charged the minority jurors that they were not to doubt their position because it was contrary to that of the majority. Accordingly, after our careful review of the record, we conclude that the court’s charge was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the defendant claims that both his federal and state constitutional rights were violated, he has failed to brief his state constitutional claims separately. Claims not briefed are deemed abandoned. Accordingly, we do not address any state constitutional claims. See State v. William C., 71 Conn. App. 47, 54 n.5, 801 A.2d 823, cert. granted on other grounds, 262 Conn. 907, 810 A.2d 277 (2002).

       “We may consider the testimony adduced both at the trial and at the suppression hearing when determining the propriety of the trial court’s ruling on a motion to suppress a confession.” (Internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 390 n.5, 736 A.2d 857 (1999).

       The court instructed as follows: “Ladies and gentlemen, I am going to give you a further legal instruction, which you are duty bound to follow. I believe that it is an appropriate legal instruction, and as I have said before, you must take the law as I give it to you. You should understand, though, that in giving this instruction, I am in no way suggesting or intimating to you that the position of the majority or the position of the minority is wrong. So, having said that, please keep this in mind. The court feels that this matter has been well tried. You have heard the evidence, and the court is of the opinion that it should give you these additional instructions regarding this matter to see whether or not it is within your reach to arrive at a verdict in this matter.
      “So, with this in mind, the court wishes to state to you at the outset that these additional instructions are not to be construed by you to be coercive in any manner or to compel you to arrive at a verdict. The instructions are designed to aid you in considering your own positions individually in weighing your individual positions against the collective position or the position of other members of the jury and, after having done so, to reconsider whatever conclusions that you ma/y have individually reached. Not to suggest to you in any manner that you are compelled, to reach a verdict or must reach a verdict.

      “The instruction that I shall give you now is only to provide you with additional information so that you may return to your deliberations and see whether you can arrive at a verdict. Along these lines, the court would like to state the following to you. Although the verdict to which each of you agrees must express his or her own conclusion and not a mere acquiescence in the conclusion of your fellow jurors, yet in order to bring your minds to a unanimous result, you should consider the question you have to decide not only carefully, but also with due regard and deference to the opinions of each other. In conferring together, you ought to pay proper respect to each other’s opinion and listen with an open mind to each other’s argument.
      “If much the larger number of you reach a certain conclusion, as in this case you have told me by your note you have, a dissenting juror or jurors should consider whether his opinion or her opinion is a reasonable one when the evidence does not lend to a similar result in the minds of so many of you who are equally honest and equally intelligent with yourself; who have heard the same evidence with the same attention, with equal desire to arrive at the truth and under the same sanction of the same oath.
      “If the majority of you are for one decision, as again your note has indicated you are, the minority ought seriously to ask themselves whether they may not reasonably or ought not to doubt their own conclusions when they are not concurred in by most of those with whom they are associated, and they may well distrust the weight or sufficiency of the evidence upon which they rely when it fails to bring the minds of their fellow jurors to the same conclusions that you hold. I have stated this to you in order to get you to further consider in your deliberations the opinions of your fellow jurors. This is all.” (Emphasis added.)

       The court instructed as follows: “I have your note, of course, and I have reviewed it with counsel. And I would say this to you. From your note and the circumstances presented, I do not believe that further deliberations would be necessarily fruitless. I would say this to you. Any jury verdict must be unanimous, and any future jury would have the same unanimity requirement. I am duty bound to give to you the following instruction, which you must accept, as I have asked you to accept all of my instructions. This again is not meant to indicate that the court thinks the position of the majority is right or wrong.

      “Previously in my charge, I have said this to you. To support a verdict, it must be a unanimous one. But that did not mean that each juror should pursue his own deliberations and judgment with no regard to the arguments and conclusions of his fellows. Or that having reached a conclusion, he should obstinately adhere to it without a conscious effort to test its validity by other views entertained by other jurors equally wise and justly resolved to do their duty.
      “To put it another way succinctly, although the verdict to which a juror agrees must, of course, be his own conclusion and not mere acquiescence in the conclusion of his fellows, yet in order to bring twelve minds to a unanimous result, the jurors should examine with candor the questions submitted to them, and with due regard and deference to the opinions of each other. In conferring together, the jury ought to pay proper respect to each others’ opinions. The jurors ought not to doubt the conclusions of a judgment which is not concurred in by most of those with whom you are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of your fellows.
      “So, I am going to ask you to go back to the jury room and discuss this case further once the clerk sends in the exhibits and the information. I would say to you, though, if you reach an impasse, you can so notify the court with a simple statement the you cannot agree or that you have reached an impasse. You may now go back.” (Emphasis added.)

       We note that our Supreme Court has exercised its supervisory powers over the administration of justice to require trial courts to use a Chip Smith charge that emphasizes the jurors’ duty not to merely acquiesce in the majority’s view. State v. O’Neil, supra, 261 Conn. 74-75.