author: Spallone, J.

text:
    State of Connecticut v. Gregory Erhardt
    (6524)
    Dupont, C. J., Spallone and Foti, Js.-
    Argued October 5, 1988
    decision released January 24, 1989

      Carl D. Eisenman, public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was Dennis A. Santore, state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of robbery in the first degree, General Statutes § 53a-134 (a) (3), and attempt to commit larceny in the first degree by extortion, General Statutes §§ 53a-122 (a) (1) and 53a-49. The defendant claims that the trial court erred (1) in denying his request to compel a codefendant to answer “non-self-incriminating” questions, in violation of his right under the Connecticut constitution and General Statutes § 54-153 to compulsory process, and (2) in excluding as hearsay the testimony of a witness concerning what was told to her by an unavailable defense witness. We find no error.

The jury could reasonably have found the following facts. On February 3, 1987, the victim went to the premises at 42 Taylor Terrace in New Milford, a house he owned that was being rented by his daughter and her husband. Lisa Percoco, the defendant’s girlfriend, who was a friend of the victim’s daughter, was at the residence. The victim and Percoco were in a bedroom, partially dressed, engaging in sexual activity when the defendant entered the room and represented by his actions that he was photographing them. While the victim was attempting to dress, he was attacked by the defendant, who struck him, threw him down the stairs, put a knife to his throat, and took his wallet, which contained approximately $120. The defendant then informed the victim that, unless the victim procured $5000 and placed it in a mailbox at a designated address by 8 p.m. that night, the defendant would show the purported photographs to the victim’s wife. The victim proceeded to make telephone arrangements for the procurement and placement of the money according to the defendant’s instructions. The defendant and Percoco left the premises together.

Thereafter, the victim reported the incident to the police, who subsequently arrested the defendant and Percoco. Percoco was charged with attempt to commit larceny in the first degree by extortion. The defendant and Percoco were originally scheduled to be tried in the same proceeding, but the court granted Percoco’s motion to sever. Her trial was scheduled to follow the defendant’s.

During the course of his trial, the defendant called Percoco as a witness. Percoco was questioned in an offer of proof outside the presence of the jury. Initially, in response to defense counsel’s questions, she gave her name and testified that she knew the defendant. She refused to say how long she had known the defendant, asserting her rights under the fifth and fourteenth amendments. She went on to answer questions as to her age and birthdate. She refused to answer a question inquiring where she had been living on February 3, 1987, the date of the incident in question, again citing her fifth amendment privilege. She answered in the affirmative a question about whether she had been receiving public assistance during February, 1987. Thereafter, in obedience to the court’s order directing her to answer yes or no, Percoco affirmed that she had prepared a letter or written statement addressed to the defendant sometime after February 3, 1987. Relying on the fifth amendment privilege, she refused to answer all other questions.

Upon completing his unsuccessful line of questioning, defense counsel requested the court’s permission to call Percoco to the stand in front of the jury to ask her those questions that she had willingly answered without asserting a fifth amendment privilege. The state’s attorney objected. After a discussion between counsel and the court regarding the relevance of the testimony Percoco would willingly offer (i.e., her name, age, the fact that she knew the defendant, the fact that she was receiving public assistance, and the fact that she had sent a written document to the defendant), the state moved that the court not permit Percoco to take the stand as a witness before the jury. Percoco’s counsel árgued that Percoco had an “absolute right not to testify to anything incriminating” and that she had indicated to him that she was “not willing to answer any questions at all.” The court then questioned Percoco, who reiterated her decision not to answer certain questions. Thereafter, the court ruled that questioning of Percoco in the presence of the jury would not be permitted.

The question in this appeal is whether the court erred in permitting Percoco to exercise a “blanket privilege” by refusing to answer any and all questions in front of the jury. The defendant argues that the court’s decision in this regard resulted in the denial of his right to compulsory process under article first, § 8, of the Connecticut constitution and his statutory right under General Statutes § 54-153 to have witnesses summoned on his behalf. These claims are without merit.

Under the circumstances of this case, the trial court did not err in refusing to compel the witness to testify before the jury. At the time she was called to testify at the defendant’s trial, Percoco was awaiting trial on charges based on the same alleged facts and circumstances that gave rise to the charges brought against the defendant. Consequently, while being questioned by defendant’s counsel outside the jury’s presence, she repeatedly asserted her fifth amendment right not to incriminate herself and declined to answer all material questions. The trial court correctly sustained her claim of privilege. In order for the trial court properly to refuse to recognize the privilege when a witness invokes it, it must be “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken and that the answer[s] cannot possibly have ... a tendency to incriminate.” (Emphasis in original.) Hoffman v. United States, 341 U.S. 479, 488, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); see also State v. Williams, 200 Conn. 310, 319, 511 A.2d 1000 (1986); State v. Simms, 170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976). To sustain the privilege against self-incrimination, it need only be evident from the implications of the question, in the context in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. State v. Simms, supra, citing Hoffman v. United States, supra, 486-87. In view of the fact that Percoco was awaiting trial on a criminal charge arising out of the same factual circumstances as the charges against the defendant, it is clear that any testimony she might give could compromise her ability to defend herself against that pending charge. See State v. Williams, supra, 319-20 (codefendant whose trial had been severed from that of the defendant and who had pleaded guilty, but was awaiting sentencing, was properly permitted by the court to invoke the fifth amendment privilege and refuse to testify at the defendant’s trial); United States v. Thornton, 733 F.2d 121, 125-26 (D.C. Cir. 1984) (trial court properly concluded that any testimony by the codefendant could tend to incriminate him). The trial court therefore acted properly in sustaining Percoco’s claimed fifth amendment privilege not to testify.

The defendant contends, however, that the court at least should have required Percoco to take the witness stand in front of the jury and answer those questions she had willingly answered outside the jury’s presence. The defendant says this would have assisted the jury in evaluating the credibility of the victim’s testimony. The defendant essentially argues that in this way the court could have accommodated his state constitutional right to compulsory process to obtain witnesses in his behalf. He refers to the decision in State v. Bryant, 202 Conn. 676, 523 A.2d 451 (1987), in support of these claims.

It is true that the defendant has a right under article first, § 8, of the state constitution to have compulsory process to produce witnesses in his behalf. Percoco, however, had a fifth amendment privilege against self-incrimination. In a conflict between the rights of the accused and the privilege of a witness, “the accused’s right to compel testimony must give way to the witness’ privilege against self-incrimination, just as the power of the state to compel testimony must give way to the privilege.” State v. Simms, supra. The decision in State v. Bryant, supra, does not alter that conclusion. In Bryant, the Supreme Court held that the trial court had erred in refusing to compel a witness to answer before the jury only those questions he had willingly answered on the voir dire. The trial court had refused to compel the witness to testify on the basis that the testimony the witness had willingly given was irrelevant. The Supreme Court held that the testimony was clearly relevant because the identity of the culprit was in issue and the witness had willingly testified, without asserting his fifth amendment privilege, to his age, height, weight, familial relationship to the defendant, and other discrete facts which would have been useful to the jury in evaluating whether the defendant was guilty of the crimes charged. In Bryant, therefore, the trial court’s refusal to compel the witness to testify was erroneous only because the witness had been willing to offer clearly relevant, and potentially exculpatory, testimony.

In this case, however, the trial court reasonably concluded that the few statements Percoco was willing to make would be irrelevant. The trial court is vested with broad discretion in ruling on questions of relevancy. State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978). The trial court did not abuse its discretion in concluding that testimony by Percoco regarding her name, age, acquaintance with the defendant, and receipt of public assistance would be unlikely to have any tendency to establish a fact or facts in issue. The trial court did not err in refusing to compel Percoco to answer before the jury those questions she had previously answered willingly, without invoking the privilege.

The defendant’s final claim of error is that the trial court erred in excluding the testimony of Karen Hine, a witness called by the defendant. In an offer of proof, Hine, welfare director for the town of New Milford, testified that Percoco had told her in a conversation in her office on the date of the events in question that she was frightened because the victim had made sexual threats on the telephone and had told her he was going to come to the house that night. Hine testified that Percoco had asked what she should do. The court sustained the state’s objection that the testimony was hearsay and irrelevant and ruled that Hine would not be permitted to testify. The defendant argues that since Percoco herself was “unavailable” by virtue of her exercise of her fifth amendment privilege, the court should have permitted Hine to testify about what Percoco had said. The defendant asserts that in this case the out-of-court declarations of the unavailable witness should have been admitted because they were relevant and reliable.

Hearsay statements which are not admissible under any of the recognized exceptions to the hearsay rule may nevertheless be admissible if “(1) . . . there was a reasonable necessity for the admission of the statements], and (2) . . . the statements] [were] supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985); see also State v. Stepney, 191 Conn. 233, 249, 464 A.2d 758, cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1983); State v. Summerville, 13 Conn. App. 175, 180, 535 A.2d 818 (1988).

The defendant has failed to establish that the hearsay statements were admissible under this test and that the trial court abused its discretion in ruling that they were inadmissible. On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986). Rulings on evidentiary matters will be disturbed only upon a showing of clear abuse of discretion. Ellice v. INA Life Ins. Co. of New York, supra; State v. Acquin, 187 Conn. 647, 680, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 411 (1983).

The defendant argues that the trial court should have permitted Hine to testify about Percoco’s statements because Percoco herself had been rendered unavailable to testify about them. The unavailability of the declarant can be a factor creating a “reasonable necessity” for the admission of a hearsay statement; State v. Sharpe, supra, 665; In re Jason S., 9 Conn. App. 98, 106, 516 A.2d 1352 (1986); and the declarant is considered “unavailable” when he or she has exercised a valid testimonial privilege. Reilly v. DiBianco, 6 Conn. App. 556, 563, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 192 (1986). The fact that the declarant is unavailable to testify about her own statements, however, does not automatically mean that there is a “reasonable necessity” for the admission of hearsay offered by another witness. The hearsay statement must, in any event, contain information necessary to the resolution of the case. State v. Sharpe, supra, 664-65. The trial court in this case could reasonably have concluded that Hine’s testimony about Percoco’s statements was not necessary to the determination of whether the defendant committed the crimes with which he was charged. The information contained in the hearsay statement was not so clearly relevant and necessary to the resolution of the issues that the trial court’s refusal to permit the testimony amounted to an abuse of discretion.

The defendant also has failed to demonstrate that the hearsay statements were supported by “the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” State v. Sharpe, supra, 664. The types of statements which fall within recognized exceptions to the hearsay rule are admissible because they were made under circumstances tending to assure that the statements are reliable. For instance, a dying declaration is admissible if the declarant was conscious of his impending death; State v. Onofrio, 179 Conn. 23, 43, 425 A.2d 560 (1979); because the circumstances in which the statement is made indicate a strong likelihood that the statement is truthful. See United States v. Bailey, 581 F.2d 341, 348 (3rd Cir. 1978). Similarly, statements of the declarant made at a prior proceeding are admissible in a pending proceeding, In re Durant, 80 Conn. 140, 151-52, 67 A. 497 (1907), because statements made while the declarant was under oath and subject to cross-examination carry strong indicia of reliability. See United States v. Bailey, supra. The defendant in this case has presented no argument that the statements of the declarant, Percoco, were made in circumstances according them guarantees of reliability and trustworthiness equivalent to those justifying the admission of hearsay statements under the traditional exceptions to the hearsay rule. Rather, he argues that Hine was a credibile witness because she was disinterested and therefore the court should have permitted her testimony. Clearly, this argument is without merit. The testimony of a credible witness who faithfully reports the statement of another is no less suspect than any other hearsay evidence in the absence of a showing that the declarant’s statement was made under circumstances justifying a conclusion that the statement is reliable.

The trial court did not abuse its discretion in ruling on the admissibility of the testimony.

There is no error.

In this opinion the other judges concurred.

       Percoco claimed the privilege with respect to the following questions:
      (1) “Do you know [the victim]?”
      (2) “During January and the very early part of — first few days of February, 1987, did you have a roommate, [was your roommate the victim’s daughter]?”
      (3) “During January and the early part of February, 1987, were you living in a premises whieh was owned by someone else?”
      (4) “During January and February, 1987, were you afraid of one of the joint owners of the premises?”
      (5) “Did one of your landlords during January, 1987, make suggestions to you of a sexual nature?”
      (6) “Did you.sometime after February 3,1987, write a single page note or letter to the defendant consisting of six paragraphs?”
      (7) “Is that a copy of the note you wrote to the defendant?”
      (8) “Did you give to the New Milford police department or officers of the New Milford police department one or more statements in writing in connection [with] any event which took place in New Milford on or about February 3, 1987?”
      (9) “If any such'statements were prepared for you by the New Milford police department in connection with an event which took place on or about February 3,1987, did you at a subsequent time, that is at a later time, state that those statements were incorrect?”
      (10) “Did you sometime after February 3, 1987, in connection with an event that happened on or about February 3,1987, write to the defendant and tell him that the police would not let you handwrite your own statements?”
      (11) “Did you, in a written communication to the defendant sometime after February 3,1987, tell him that the police told you if you just signed the statement you would be permitted to leave?”
      (12) “Were you sick at the time you gave statements to the New Milford police department, if in fact you gave any statements to the New Milford police department?”
      (13) “Prior to February 3,1987, did the owner of the house in which you were living make suggestions to you to engage in sex acts?”
      (14) “Did you on February 3,1987, on or about February 3,1987, in the town of New Milford, in your residential premises, did you have occasion to witness an altercation between the defendant and someone else?”
      (15) “Sometime after February 3, 1987, anytime between February 3, 1987, and this date, did you have occasion to talk to officers of the New Milford police department on any subject whatsoever?”
      (16) “Did you attempt to, after February 3, 1987, recant or retract or withdraw statements previously made to officers of the New Milford police department?”

       The following colloquy took place:
      “The Court: Would you be willing to be sworn in as a witness?
      “Mrs. Percoco: Yes.
      “The Court: And let us assume that the court should direct you to answer certain questions, what would be your position?
      “Mrs. Percoco: I would still refer to my fifth amendment right.
      “The Court: Based on your attorney’s advice?
      “Mrs. Percoco: Yes.
      “The Court: Is that your position?
      “Mrs. Percoco: Yes.”

       Hine testified as follows:
      “She told me that she was very frightened that day, and [the victim] had made sexual threats on the telephone, and he called her and told her he was coming up to the house that night, and she asked me what she should do. I advised her not to let him into the house and to lock the door.”


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Dorothy F. Lerner v. Stephen M. Ceslik et al.
    (6194)
    Dupont, C. J., Daly and Norcott, Js.

      Argued November 17, 1988
    decision released January 24, 1989

      Richard A. Johnson, with whom, on the brief, was Robert R. Petrucelli, for the appellant (named defendant).

      Laurence P. Nadel, for the appellee (plaintiff).
   Norcott, J.

The named defendant appeals from the judgment of the trial court in favor of the plaintiff in an action for the recovery of a real estate sales commission. The trial was held before a state trial referee who ruled that the plaintiff was entitled to recover $4155 and costs. On appeal, the defendant claims that the trial court erred (1) in interpreting the terms of the contract between the parties, (2) in finding facts that were not supported by the evidence and in reaching conclusions not supported by the facts, and (3) in drawing an unfavorable inference against the defendant from the failure of a witness to testify. We find no error.

From the evidence presented at trial, the state trial referee found the following facts. The plaintiff, a real estate agent licensed in Connecticut, was employed by American Realty, a real estate brokerage business, as a real estate agent. The defendant was the owner of American Realty. On July 18,1984, the parties entered into a written contract that entitled the plaintiff to 25 percent of the gross commission as the “listing agent” for procuring the listing of a property, and the same percentage as the “selling agent” for procuring the sale of the property. The process of procuring listings of properties is known as “farming” in the real estate trade.

In late 1984 and early 1985, the plaintiff “farmed” the beach area of Milford. As a result of her effort, David Driscoll, owner of a house located at 681 East Broadway, Milford, became aware of American Realty, Driscoll having found the plaintiffs note and business card in his mailbox. Thereafter, Driscoll listed his property with American Realty for a commission of 6 percent of the selling price.

The Driscoll home was ultimately purchased by the defendant and his partner, and a commission of $8310 was credited to American Realty. Lauren Weiner, an employee at American Realty with whom Driscoll denied negotiating, was paid $2005 of that commission as “listing agent.” The plaintiff claimed that she was both the listing and the selling agent but had received no part of the commission.

I

The defendant contends first that the trial court erred in interpreting the terms of the contract between the parties. A trial court’s construction of a written agreement is an issue of fact. DiLieto v. Better Homes Insu lation Co., 16 Conn. App. 100, 104, 546 A.2d 957 (1988); Roban Realty, Inc. v. Faile, 13 Conn. App. 584, 588, 538 A.2d 242 (1988). “On appeal, we determine only whether in light of the evidence in the whole record, the court’s decision was clearly erroneous. We will not retry the facts. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn. App. 619, 627, 548 A.2d 758 (1988).

The contract provided that a “listing agent” is “an agent who brings a signed listing into the office”; a “selling agent” is defined as an “agent who shows the property to a buyer, obtains a signed sales agreement and deposit that is accepted by the seller, and closes.” The contract also contained a paragraph regarding commissions that provided as follows: “Should an agent not be available for any prospect who wants to discuss with them the purchase or sale of any property, the prospect will be assigned to another agent, at the broker’s discretion, or if another agent happens to be available they may automatically work with the prospect and if a sale or listing materializes, that agent will receive their commission in accordance to the above commission split. The agent who was not available for the prospect is not entitled to any commission.”

The trial court concluded that, based on the terms of the written contract, the plaintiff was entitled to commissions as both a listing and a sales agent.

It is clear from the record that the trial court did not err in concluding that the plaintiff was the listing agent for the sale of the Driscoll property. The court’s findings that the plaintiff’s conduct initiated the process that led to the closing on the Driscoll house, that Driscoll dealt almost exclusively with the plaintiff, and that because of the plaintiff’s efforts Driscoll agreed to list his property with the defendant’s agency, are all abundantly supported by the evidence.

Furthermore, the court found that the paragraph in the contract regarding commissions did not deny the plaintiff her commission as the listing agent. The trial court totally discredited the defendant’s contention that Weiner, not the plaintiff, was “available” to obtain the listing agreement from Driscoll, thereby entitling Weiner to the listing commission pursuant to the terms of the contract. The defendant based this contention on the fact that Weiner typed the listing and left it in the agency’s mailbox for Driscoll to pick up. Both the evidence of the plaintiff’s conduct and the lack of credibility apparent in Driscoll’s trial testimony clearly support the trial court’s conclusion that the plaintiff was the key actor in bringing the listing to the agency. Additionally, the defendant testified that the listing agent normally presents an offer to the seller and that the plaintiff presented Driscoll with the defendant’s offer. We find the court’s conclusions that, pursuant to the terms of the contract, the plaintiff was responsible for bringing the listing to the defendant’s business and that, accordingly, she was entitled to the $2077.50 commission as the listing agent, were not clearly erroneous.

The defendant also contends that the plaintiff was not entitled to a commission as the selling agent. We disagree. The express terms of the contract provide that the selling agent must show the property to a buyer and obtain a signed sales agreement and a deposit, both of which are accepted by the seller. The final requirement is that there be a closing on the property. Our review of the record discloses that the plaintiff delivered the defendant’s offer to the seller, who accepted it, thus the plaintiff “ obtained] a signed sales agreement . . . accepted by the seller.” We find this sufficient to meet the second requirement even though the record does not indicate whether the agreement was accompanied by a deposit. Also, there was a closing at which the defendant purchased the property, meeting the third requirement. The trial court’s implicit determination that the plaintiff’s actions constituted “show[ing] the property to a buyer,” while less straightforward, is also supported by the evidence. It is undisputed that the defendant was a buyer. Although the record does not indicate that the plaintiff ever accompanied the defendant to the property, it does indicate that she brought the property to the defendant’s attention.

Although divided into three components, the conditions for earning a commission as a selling agent actually amount to a requirement that the agent produce the eventual buyer of the property. While in a normal situation this would include an actual showing of the property, we find that under the unusual circumstances of this case, in which the buyer was a broker in the listing agency and therefore did not need to rely on the plaintiff for access to the property, the plaintiff’s action in bringing the property to the defendant’s attention produced a buyer and therefore was sufficient to constitute a showing under the terms of the contract. We therefore conclude that the trial court did not err in determining that the plaintiff also was entitled to a $2077.50 commission as the selling agent.

II

The defendant’s next claim of error is that the trial court’s findings and conclusions were not supported by sufficient evidence. We find no merit in the defendant’s attempt to have us retry the evidence and factual conclusions of the trial court. “It is the province of the trial court to pass upon the credibility of the witnesses and the weight to be afforded the evidence.” Russo v. Terek, 7 Conn. App. 252, 256, 508 A.2d 788 (1986). Our only function on review is to determine whether the trial court’s findings could legally, logically and reasonably be found. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982). We have already concluded that the evidence in the record sufficiently supported the findings that the plaintiff was entitled to commissions as both the listing agent and as the selling agent. We find these conclusions dispositive of this second claim of error.

Ill

The defendant’s final claim is that the trial court erroneously drew an unfavorable inference against the defendant from the failure of Weiner to testify. It is undisputed that Weiner was paid the listing agent’s commission for the Driscoll property closing. It is also undisputed that she was not called to testify by either party even though, according to the trial court’s memorandum of decision, she “was present in court throughout most of the hearing.” The trial court determined that Weiner’s absence “on the day she might be expected to be a witness” was unexplained, and that her testimony would have been “invaluable” in its determination of whether the plaintiff was the listing or selling agent within the provisions of the contract. The court therefore deduced “that her testimony would not help the defendant’s case.”

Even if we assume arguendo that the trial court erred in making this adverse inference, “[ejrror will warrant remedial action by this court only where it is harmful. . . . Harmful error requires a finding that the error was likely to affect the result.” (Citation omitted.) Darling v. Waterford, 7 Conn. App. 485, 488, 508 A.2d 839 (1986). We conclude that, even without the adverse inference drawn by the trial court, the evidence presented at trial was clearly sufficient to support the holding that the plaintiff was entitled to commissions as both the listing and selling agent, and therefore the inference did not affect the result.

There is no error.

In this opinion the other judges concurred.

       The named defendant is the only defendant involved in this appeal and will be referred to as the defendant in this opinion.


author: Stoughton, J.

text:
    State of Connecticut v. David Garrity
    (6469)
    Spallone, Stoughton and Norcott, Js.
    Argued October 20, 1988
    decision released January 24, 1989

      Ronald D. Williams, Jr., assistant public defender, for the appellant (defendant).

      James Ralls, deputy assistant state’s attorney, with whom, on the brief, were Susan C. Marks, assistant state’s attorney, and Warren Murray, deputy assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant was found guilty, after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 1985) § 14-227a (a), as amended by Public Acts 1985, No. 85-596. He appeals from the judgment of conviction rendered on the verdict. He claims that the trial court erred (1) in that it refused to suppress the results of alcohol breath tests, and (2) in its instructions to the jury. We find no error.

On May 26, 1986, the defendant was arrested for operating a motor vehicle while under the influence of intoxicating liquor. The state filed a bill of particulars alleging that the ratio of alcohol in the defendant’s blood was .10 percent or more by weight. The defendant moved to suppress the results of his alcohol breath tests.

At the hearing on the motion to suppress, only police officers Ray Moerler and Wayne Herrion testified. From the evidence adduced at the hearing, the trial court could have found the following. On May 26,1986, Moerler came upon an automobile accident in Norwalk. He observed that the defendant was staggering and swaying, and that there was a strong odor of alcohol on the defendant’s breath. He arrested the defendant, took him to police headquarters and advised him of his rights, including his right to remain silent and his right to consult with an attorney. He was advised of his right to refuse a chemical analysis test and of the consequences of refusal to take such a test. The defendant consented to take a test and signed a consent form. He admitted that he had been drinking beer. Moerler recorded his observations of the defendant on an alcohol influence report form. Moerler, who had been trained and certified by the department of health services to conduct chemical tests via the Intoximeter 3000, administered two such tests to the defendant. The first test, performed at 2:56 a.m., produced a reading of .15 percent blood alcohol content (BAC). The second test, at 3:39 a.m., produced a reading of .14 BAC. The Intoximeter 3000 had been checked for accuracy at 12:10 a.m. at the beginning of the workday by Herrion, who had been trained and certified in the use of the machine. The machine was again checked for accuracy at 3:35 a.m. and at 3:43 a.m. The results of the accuracy checks were recorded and kept at the station. The defendant was given a copy of the test results within twenty-four hours of the tests. The trial court denied the defendant’s motion to suppress.

At trial, the state also presented testimony that the defendant had been speeding and that, shortly after the accident, the defendant was disoriented and shaky, with unsteady balance, and that he had limited control of his faculties. In addition, both Moerler and Herrion testified that the defendant was under their observation for at least fifteen minutes prior to each breathalyzer test and that during those times he did not ingest any alcoholic beverages, or food, and that he had neither regurgitated nor smoked.

The defendant testified at trial that on the day of his arrest he had had two beers with lunch and probably only a sandwich for dinner. He claimed that he then went to a bar at 11 p.m. and drank four beers before leaving at 1 a.m. He admitted that he had been driving a little fast that night and that he felt a little high. He claimed that his equilibrium had been affected by a prior accident. His parents also testified to the effects of that accident on their son.

The defendant’s first claim is that the trial court erred in refusing to suppress the results of the breathalyzer test. The defendant rests this claim on three different grounds. First, the defendant claims that at the suppression hearing the state never presented any evidence that either Moerler or Herrion had observed the defendant for the fifteen minutes prior to the breathalyzer test as required by General Statutes § 14-227a (e) and the requirements of testing set forth in §§ 14-227a-l through 14-227a-10 of the Regulations of Connecticut State Agencies. The defendant’s claim is that the trial court could not find that Moerler complied with the fifteen minute observation period required by regulation § 14-227a-10 (b) (1) (A) because no such evidence was presented at the suppression hearing. The defendant claims, moreover, that there was no evidence that Moerler had ever been instructed as to this observation period.

At the conclusion of the suppression hearing, the defendant argued that the lack of evidence regarding the observation period required that the breath test must be suppressed. The trial court denied the motion to suppress and found that it could infer that the tests were done according to the proper methods. The defendant claims that the trial court erred in drawing this inference (1) because it was unwarranted by the evidence, and (2) because it was impermissible in a criminal case.

At trial, and before the breathalyzer test results were admitted into evidence, Moerler and Herrion repeated the testimony that they had given at the suppression hearing. In addition, they testified that the defendant had been under their observation for at least fifteen minutes prior to the breathalyzer test and that in this period he had neither ingested nor regurgitated anything, nor had he smoked or drunk anything that would have affected the test. This additional evidence came in without objection by the defendant. Furthermore, the defendant did not object when the breath test results were actually entered into evidence at trial. Here, the evidence adduced at trial remedied any suppression hearing deficiencies claimed by the defendant. Since the defendant did not object to introduction of the testimony concerning the observation period; Practice Book § 288; he cannot and does not claim that the trial court lacked the evidence from which to determine that the test results were admissible. See State v. Keeby, 159 Conn. 201, 202-203, 268 A.2d 652, cert. denied, 400 U.S. 1010, 91 S. Ct. 569, 27 L. Ed. 2d 623 (1971). Therefore this claim lacks merit.

The defendant next claims that the conditions precedent to admission were not met because the police failed to maintain a log book properly, as required by regulation § 14-227a-10 (b) (2) (B), and thus the tests were not performed in accordance with the approved methods as required by General Statutes § 14-227a (c) (3). Specifically, the defendant argues that the police did not note in the log book that the breathalyzer machine had been checked for accuracy at the end of the work day. The results, however, were recorded, the records maintained elsewhere and copies of the results were mailed to the 'defendant.

The defendant does not allege that the accuracy checks were not made, nor does he argue that he was unaware of the accuracy test results or that he was in any way deprived of exculpatory material. See State v. Scott, 16 Conn. App. 172, 547 A.2d 77 (1988) (claim that lost log book contained exculpatory evidence). Rather, the defendant simply asserts that General Statutes § 14-227a, as a penal statute must be strictly construed against the state. Therefore, he argues that the regulation requiring that the information be recorded in the log book must be followed exactly in order for the test results to be admissible. We find the test results were properly admitted.

In State v. Smith, 16 Conn. App. 156, 547 A.2d 69 (1988), and (State v. Desso, 16 Conn. App. 165, 168, 547 A.2d 74 (1988), we did not require literal compliance with the “continuous observation” regulation because such compliance would defeat the purpose of the regulation. Here also we must look to the purpose of regulation § 14-227a-10 (b) (2) (B). The regulation states that “[a]ll test results of each subject’s analysis and calibration shall be recorded in the log book maintained by the police agency. This log book shall be made available for examination by the department.” This regulation clearly is concerned with providing a record of the test results for the department of health services and is in no way connected with promoting the underlying validity of the test itself. Since the log book requirement at issue cannot be satisfied until after the test is completed, it cannot affect the accuracy of the test. Nor can the defendant’s position that the log book requirement is an absolute condition precedent for admission be sustained by the language of General Statutes § 14-227a (c) which states “evidence respecting the amount of alcohol or drug in the defendant’s blood or urine . . . shall be admissible and competent provided: ... (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of health services . . . .” (Emphasis added.) The requirement in General Statutes § 14-227a (c) that regulations be followed evinces an interest in promoting the accuracy and reliability of the actual testing process, and not with the recording mechanics. We also note that there is nothing in the language of either the statute or the regulation that mandates a time within which the test results must be recorded in the log book; presumably the results can be recorded anytime after the test is administered. In the absence of any evidence that the legislature intended to make the log book requirement a condition precedent to the admission of a breathalyzer, we find the test results were properly admitted.

The defendant’s next claim of error is that the trial court erred in holding that there was sufficient evidence to show that the test results accurately reflected his blood alcohol content at the time of the offense pursuant to General Statutes § 14-227a (c) (6). The defendant contends that while the test results reflected his blood alcohol content at the time of the testing, they did not reflect the alcohol content at the time of the offense. He also contends that the state failed to produce any evidence to corroborate the test results. We disagree. At trial, the defendant testified that he drank beer earlier in the day and had four beers from 11 p.m. to 1 a.m., and that he felt high. Several witnesses testified that the defendant’s behavior was shaky and unsteady. The police administered the test only one hour and forty minutes after the accident and the defendant consumed no additional alcohol during this period. This evidence was sufficient to find that the test results accurately reflected the defendant’s blood alcohol level at the time of the offense. See State v. Hancich, 200 Conn. 615, 623-24, 513 A.2d 638 (1986).

The defendant’s final claim is that the trial court improperly instructed the jury that it could consider evidence regarding the defendant’s operation of his car and his demeanor after the accident in assessing whether his behavior was consistent with the breathalyzer test results. The defendant claims that the state did not present any evidence from which the jury could infer that the defendant’s behavior was consistent with the test results. In fact, the defendant alleges that the evidence produced at trial showed it was impossible to determine a person’s blood alcohol content from mere observation. We find no error as to this claim.

The trial court’s instructions clearly informed the jury that it was to use this evidence for the limited purpose of assessing the accuracy of the breathalyzer test results. The court further stated that the jury could not base a guilty verdict on the behavioral evidence, but must find that the test was accurate and reliable, and showed that the defendant’s blood alcohol level was greater than .10 percent. These instructions could not reasonably be construed as having misled the jury.

Under General Statutes § 14-227a (a) (2), the trier of fact must find beyond a reasonable doubt that the accused operated a motor vehicle “while the ratio of alcohol in the blood of such person is ten-hundredths of one percent or more by weight.” A person is under the influence as a matter of law when his or her blood alcohol content is .10 percent or more. See State v. Hancich, supra, 620. The jury was fully entitled to use or ignore the defendant’s behavior in assessing the accuracy of the test results.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1985) § 14-227a, as amended by Public Acts 1985, No. 85-596 provides: “(a) No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property ... (2) while the ratio of alcohol in the blood of such person is .10 of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227a (e) provides: “CERTIFICATION OF METHODS and types OF chemical tests. The commissioner of health services shall ascertain the reliability of each method and type of device offered for chemical testing purposes of blood, of breath and of urine and certify those methods and types which he finds suitable for use in testing blood, testing breath and in testing urine in this state. He shall adopt regulations governing the conduct of chemical tests, the operation and use of chemical test devices and the training, certification and annual recertification of operators of such devices as he finds necessary to protect the health and safety of persons who submit to chemical tests and to insure reasonable accuracy in testing results.”

       Regs., Conn. State Agencies § 14-227a-10 provides in pertinent part: “direct BREATH alcohol analysis. No person shall be an operator of a breath analysis instrument unless such person is employed by a law enforcement agency or by the department of health services and is certified by the department of health services. Such operator shall conduct the tests according to methods and with equipment certified by said department and shall check the instrument for accuracy at the beginning and no later than the end of each workday shift.
      * ** *
      “(b) METHODS FOR CONDUCTING BREATH ANALYSIS TESTS. Any operator who conducts a breath analysis test shall utilize the following procedures:
      “(1) Sample collection.
      “(A) The expired breath sample shall be air which is alveolar in composition. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to the collection of each sample. During this observation period the subject must not have ingested any alcoholic beverages or food, regurgitated, or smoked.
      “(B) Sample(s) of the persons breath shall be collected with an instrument approved for this purpose by the department in accordance with subsection (a).
      “(2) Operation of instrument.
      “(A) The manufacturer’s operational instructions shall be followed by operators and shall be available at each instrument location.
      “(B) All police agencies are to have their breath analyses instruments made available for examination by the department of health services. A single current log book for the instrument shall be maintained in which the frequency of determination of accuracy of the instrument and the identity of the person performing the determination of such accuracy are given. Breath analyses instruments shall be examined and certified by the department prior to being placed in operation and after being repaired or recalibrated. All test results of each subject’s analysis and calibration shall be recorded in the log book maintained by the police agency. This log book shall be made available for examination by the department.”

       See footnote 3, supra.

       General Statutes (Rev. to 1985) § 14-227a (e), as amended by Public Acts 1985, No. 85-596, provides in pertinent part: “Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: . . . (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of health services and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of health services. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II or a registered nurse . . . .”

       The state claims that this claim should not be reviewed because it arises from grounds other than those on which the defendant based his objection. We disagree. The defendant’s objection at trial adequately apprised the trial court of the reasons he felt the charge was in error. See Land Enterprises, Inc. v. Dorman, 17 Conn. App. 4, 10-11, 549 A.2d 672 (1988).


text:
    State of Connecticut v. Daisy Hamilton
    (6280)
    Spallone, Stoughton and Norcott, Js.

      Argued October 20, 1988
    decision released January 24, 1989

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellant (state).

      Mark F. Gross, for the appellee (defendant).
   Spallone, J.

The state appeals, pursuant to General Statutes § 54-96, from the decision of the trial court granting the defendant’s motion to suppress evidence and from the subsequent dismissal of the charges against the defendant.

At the hearing on the motion to suppress, evidence establishing the following facts was presented. Police obtained four search warrants authorizing searches of (1) the defendant’s residence, building 5, apartment 305, of the'P. T. Barnum Apartments in the city of Bridgeport, (2) a tan and orange Ford van without license plates located at the P. T. Barnum Apartments, (3) the person of the defendant’s son, Dayomas Hamilton, and (4) the person of the defendant, Daisy Hamilton. Items listed in the warrants were cocaine, paraphernalia used in the cutting and packaging of cocaine, money and records pertaining to sales of cocaine, and firearms.

The police had applied for the warrants on the basis of information given to them by an informant that crack was being sold from the defendant’s apartment and on the basis of their own observations of a subsequent “controlled buy” involving the defendant’s son conducted with the participation of the informant. While conducting the controlled buy, Detective Richard DeReiso had observed the defendant’s son escort the informant from the defendant’s apartment to an unregistered Ford van located outside, which the defendant’s son unlocked and entered. DeReiso observed the defendant’s son exit the van and deliver the drugs to the informant.

On February 18,1987, DeReiso and other police officers executed the warrants. Detective Thomas Russell was assigned to search the defendant’s bedroom. In the course of searching the bedroom for narcotics, Russell came across a set of keys on a shelf. He did not seize the keys at that time. Shortly thereafter, when DeReiso entered the apartment and asked whether anyone had found keys to a Ford vehicle, Russell then took the keys and gave them to DeReiso. The keys, in fact, opened the Ford van described in the search warrant.

At the hearing on the motion to suppress, defense counsel argued that the keys should be suppressed because they had not been listed in the search warrant and, therefore, the seizure of the keys was illegal. The state argued that the keys were admissible under the plain view exception to the warrant requirement. The court granted the defendant’s motion to suppress, holding that the seizure of the keys was not legal under the plain view exception because the keys had not been discovered inadvertently. Thereafter, because the state represented that it had planned to show the defendant’s complicity in the crime by proving that the keys to the van had been found in her apartment, the court agreed to dismiss the case with prejudice and granted the state permission to appeal.

The sole issue presented to us is whether the trial court erred in granting the defendant’s motion to suppress the Ford van keys on the ground that the keys were seized in violation of the defendant’s right under the fourth amendment to the United States constitution. The state argues that the seizure was reasonable under the plain view exception.

Generally, police executing a search warrant may seize only those items specified in the warrant. State v. Pepe, 176 Conn. 75, 79, 405 A.2d 51 (1978), citing Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231 (1927). An exception to this general rule has been recognized, however, in certain circumstances. Where a police officer has a warrant to search a given area for specified objects, and in the course of the search comes across some other article of incriminating character, the property may be seized under the plain view exception. State v. Pepe, supra, 79. The plain view exception will thus validate a seizure of items not specified in a warrant where (1) the initial intrusion is lawful, (2) the discovery of the evidence is inadvertent, and (3) the seizing officers have reason to believe that the seized items are evidence of a crime. Id.; State v. DiStefano, 7 Conn. App. 726, 730, 510 A.2d 995 (1986).

In this case, the trial court found that the keys to the Ford van seized by the police during the search had not been discovered inadvertently within the meaning of the plain view exception and that the seizure was therefore not lawful under that exception.

On appeal, the function of this court is limited to determining whether the decision of the trial court is clearly erroneous. Practice Book § 4061; State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984). The evaluation of the credibility of witnesses testifying at a hearing on a motion to suppress is left to the sound discretion of the trial court. State v. Jones, supra, 80. This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found. State v. Davis, 3 Conn. App. 359, 364, 488 A.2d 837 (1985).

For a discovery to be inadvertent within the meaning of the plain view exception, police must not have anticipated the discovery or have known in advance the location of the evidence. Texas v. Brown, 460 U.S. 730, 739,103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 470-71, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). A discovery is inadvertent if it occurs “without premeditation or prior intention.” United States v. $10,000 in U.S. Currency, 780 F.2d 213 (2d Cir. 1986).

Our review of the testimony presented in this case reveals ample evidence to support the trial court’s finding that the discovery of the van keys was not “inadvertent” within the meaning of the plain view exception to the warrant requirement. DeReiso’s testimony indicated that he had reason to believe, prior to the procurement of the warrants, that the van was ordinarily locked and that the keys were kept in the defendant’s apartment. There was also evidence from which the trial court could conclude that DeReiso had entered the defendant’s apartment with the specific purpose of locating the keys. On the basis of DeReiso’s testimony, the trial court could reasonably conclude that the keys were not inadvertently discovered in the course of the search of the defendant’s apartment within the meaning of the plain view exception and that seizure of the keys was therefore not justified by that exception.

There is no error.

In this opinion the other judges concurred.

       In describing what he observed when the defendant’s son and the informant were at the Ford van under his surveillance, DeReiso testified: “They went to a van that’s parked right outside. The son went to the door. 1 believe it was locked, because he was at the door for a little while. Then he opened the door.” (Emphasis added.)

       DeReiso testified on cross-examination by defendant’s counsel:
      “Q. [Y]ou had some reasonable assumption that the keys were in the apartment because your investigation indicated the son of the defendant had the key. Correct?
      “A. Yes.”

       DeReiso testified on cross-examination by defendant’s counsel:
      “Q. Now let’s go to the search at Daisy Hamilton’s apartment. . . . You walked in — were you the first person in, that you remember?
      “A. I don’t remember.
      “Q. You were the first person to talk to Daisy Hamilton. Weren’t you?
      “A. Probably.
      “Q. And you said to Daisy Hamilton, if the keys to a van parked outside were in the apartment, didn’t you?

        “A. I probably asked her if they were there, yes.
      “Q. That’s what I’m saying. If the keys to a van — I’m quoting from the discovery — if the keys to a van parked outside were in the apartment. Right?
      “A. Okay.
      “Q. And her answer was, I don’t know who the van belongs to, nor do I know where the keys are.
      “A. That I can recall, yes.
      “Q. Now that was done seven days more or less after you saw the controlled buy on February 11th?
      “A. The 6th.
      “Q. Ultimately, you called out to the men in the apartment has anybody found keys to a Ford van. Didn’t you?
      “A. I doubt if I yelled out, but I probably did talk to the guys and asked them. I asked if anybody had located keys to a Ford van. Yes.
      “Q. As these men were searching, did you ask, have any of you found Ford keys?
      “A. Yes.
      “Q. So it’s a fair statement that when you went into the apartment, you were looking for the keys to the Ford van. Correct?
      “A. Later on, yes. When she didn’t give up any keys, yes.
      “Q. When you went into the apartment—
      “A. Yes.
      “Q. —you had some reasonable assumption that the keys were in the apartment because your investigation indicated the son of the defendant had the key. Correct?
      “A. Yes.
      “Q. And there was a search warrant for the orange Ford van. Correct?
      “A. Yes.
      “Q. And when you went in, you did immediately ask Mrs. Hamilton if she had the keys to the Ford van. Correct?
      “A. Probably not immediately, but in our first conversation, yes.
      “Q. And then after the search went underway, you then alerted by asking the men, have any of you found Ford van keys. Correct?
      “A. Yes.

        “Q. So that they were then directed to go looking specifically for Ford van keys. Correct?
      “A. I asked them if they had found any.
      “Q. And that was if you found any, and if not, you will look to see if there were. Correct?
      “A. If they came across them while they were searching, yes.”


author: O’Connell, J.

text:
    State of Connecticut v. John Phillips
    (2532)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued November 1, 1988
    decision released January 24, 1989

      Timothy H. Everett, with whom, on the brief, was Donald S. Brown, certified legal intern, for the appellant (defendant).

      Corinne L. Klatt, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, Patricia A. King, assistant state’s attorney, and Susan Willcox-Johnson, certified legal intern, for the appellee (state).
   O’Connell, J.

The defendant was convicted, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the first degree in violation of General Statutes § 53a-95 and burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). He appeals only from the burglary conviction claiming that the trial court’s jury instruction misdefined “bodily injury” and thus permitted the jury to convict him on a nonstatutory theory of criminal liability. We find no error.

The jury could reasonably have found the following facts. On September 2,1983, the defendant broke into the apartment of a small, frail, eighty-one year old woman, tied her wrists to the bed with nylon string and plastic handcuffs, gagged her, stripped off part of her clothing, rendering her naked from the waist down, and sexually assaulted her. Throughout the assault the victim was screaming and crying. The commotion caused by the assault brought a rescuer and eventually the victim was transported to a hospital by ambulance. A medical examination disclosed that the victim suffered superficial external vaginal lacerations, as well as internal vaginal abrasions with minimal bleeding, together with bruises on her lip and wrists and red scratch marks on her neck, the apparent result of excessive pressure.

Burglary in the first degree includes certain aggravating factors. In the present case, the sole aggravating factor alleged was the infliction of bodily injury. The defendant claims that the court erred in defining this factor as “impairment of physical condition or pain” because such definition applies only to “physical injury” defined in General Statutes § 53a-3 (3). The focus of his argument involves the definition of pain. He contends that bodily injury relates solely to physical pain and injuries, whereas the court’s definition improperly permitted the jury to rely exclusively on evidence concerning the victim’s mental pain. Hence, the defendant argues that the court illegally broadened the scope of criminal liability necessary to find burglary in the first degree.

The court’s jury instructions did not define “pain,” leaving the jury to apply the common usage of the word. See State v. Grant, 6 Conn. App. 24, 28-29, 502 A.2d 945 (1986). Admittedly, “pain” has two common connotations, one physical and one mental. Webster, Third New International Dictionary defines pain as “'a state of physical or mental uneasiness that ranges from mild discomfort or dull distress to acute often unbearable agony.” (Emphasis added.) The defendant concedes there is ample evidence of bodily injury. Furthermore, the court referred to “bodily injury” eight times as the aggravating element in burglary in the first degree. This was sufficient to dispel any claim that the jury relied exclusively on evidence concerning the victim’s emotional trauma in convicting the defendant.

The defendant inappropriately relies on State v. Milum, 197 Conn. 602, 500 A.2d 555 (1985), to support his claim. There, the Supreme Court found that testimony of emotional trauma suffered by an assault victim was irrelevant because pain, as found in the definition of physical injury “is ‘[mjental suffering or distress.’ 3 Schmidt, Attorneys’ Dictionary of Medicine (1985) p. P-4.” Id., 618-19. That court, however, was applying this definition to “serious physical injury” as an element of assault in the first degree (§ 53a-59 [a]), a situation clearly distinguishable from the present case. Furthermore, the Milum court held that the trial court’s failure to strike the testimony at issue was harmless error because sufficient evidence of physical injury existed to submit the issue to the jury. Id., 620. Because this defendant specifically states that he is not raising an insufficiency of the evidence claim, even if we were to find error, it would be harmless.

It is elementary jurisprudence that a jury charge is to be considered in its entirety and no part of it is to be critically dissected in order to find a technical inaccuracy in one portion, read in artificial isolation from the overall charge. State v. Jasper, 200 Conn. 30, 37, 508 A.2d 1387 (1986). “Jury instructions need not be ‘exhaustive, perfect, or technically accurate,’ as long as they are ‘correct in law, adapted to the issues, and sufficient for the guidance of the jury.’ ” State v. Green, 11 Conn. App. 575, 580, 528 A.2d 855, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987). Microscopic examination of a jury charge in an effort to find error has been consistently discountenanced by our courts. State v. Mastropetre, 175 Conn. 512, 524, 400 A.2d 276 (1978); State v. Lopez, 5 Conn. App. 599, 604, 502 A.2d 418 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146 (1986).

We will not find error in the jury instruction by construing one word, namely pain, in a hypertechnical manner. The charge, read as a whole, was adequate to guide the jury to a correct verdict.

There is no error.

In this opinion the other judges concurred.

       The applicable portion of General Statutes § 53a-101 (a) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and . . . (2) in the course of committing the offense he intentionally, knowingly, or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       The relevant portion of the jury instruction reads as follows: “The aggravating factor present which raises the crime of burglary in general to first degree burglary is the infliction or attempt to inflict bodily injury.
      “Bodily injury has been defined as impairment of physical condition or pain.”

       General Statutes § 53a-3 (3): “ ‘Physical injury’ means impairment of physical condition or pain.”


text:
    State of Connecticut v. John Crotty
    (6166)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 7, 1988
    decision released January 31, 1989

      Michael J. McClary, with whom, on the brief, were Hugh F. Keefe, John J. Keefe, Jr., and Charles E. Tiernan III, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, were Domenick Galluzzo, deputy chief state’s attorney, and Cathryn Krinitsky, deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of perjury in violation of General Statutes § SSa-lbb.

The defendant claims that the trial court erred (1) in finding that there was sufficient evidence.presented at trial to establish the falsity of his statement to a grand jury, and (2) in failing to provide him with a complete transcript of the testimony of the grand jury witnesses who testified against him and in ordering the nondisclosed material sealed. We find no error.

The jury could reasonably have found the following facts. For approximately eighteen years, the defendant was a member of the police department of the borough of Naugatuck. From 1982 until March 1985, he served as union steward of the department. As part of his duties, the defendant was involved in fundraising activities sponsored by the Naugatuck Police Union, including a music show featuring entertainer Bobby Rydell. Representing the union, the defendant worked in conjunction with Joseph Taglia, who was the sales manager for WRG Enterprises, the producer of the show. The defendant and Taglia opened a joint checking account for use in connection with the Rydell fund-raising effort. On March 22,1982, the defendant wrote out check number 115 in the amount of $192, made payable to cash. He and Taglia both signed the check, with Taglia entering the notation “mayor campaign donation” in the checkbook register for check number 115. The defendant and Taglia met with William Rado, Sr., the mayor of Naugatuck, on the same day, at which time the defendant gave the check to Rado. The check was cashed at the Elks Club where Rado was a member.

In 1985, during a grand jury investigation into alleged municipal corruption involving Rado, the defendant turned over the checkbook and cancelled checks relating to the Rydell show to Norman Hardacker, the new union steward, the day before Hardacker was to testify before the grand jury.

Thereafter, the defendant was summoned to testify before the grand jury. On June 13, 1985, the defendant was asked, “Do you know whether or not any payments were made to Mayor Rado for any show or fundraising activities put on by the police union?” The defendant replied, “No.” Later, on July 1, 1985, the defendant testified that he had never discussed cash payments to Rado with anyone and that he had no knowledge of what happened to check number 115 after he wrote it. On the basis of his testimony given on June 13 and July 1, 1985, the defendant was arrested and charged with two counts of perjury. A jury found the defendant guilty on the first count and not guilty on the second count.

Prior to trial, the defendant moved for the disclosure of transcripts of the testimony of all the witnesses who had appeared before the grand jury. He also requested disclosure of any statements made by the witnesses to state agents, investigators and attorneys. The trial court, Nigro, J., ordered production of relevant portions of the transcripts of the testimony of the grand jury witnesses the state intended to call as witnesses at trial. The state complied by providing excerpts of the transcripts.

On the first day of the trial, dissatisfied with what the state had produced, the defendant renewed his request for full disclosure of the grand jury testimony of all the witnesses the state intended to call. Alternatively, he moved, pursuant to Practice Book § 753, that the court conduct an in camera inspection of undisclosed portions of the transcript and order disclosure of any exculpatory evidence contained therein, including evidence that could be used for impeachment. The trial court, Thim, J., ruled that a review of relevant transcripts and other statements would be made upon the defendant’s request following each witness’s testimony.

The state called Hardacker, Taglia, and Officer James Fortin of the Naugatuck police department as witnesses at trial. When they had finished testifying, the defendant moved for an in camera inspection of the transcripts of their grand jury testimony and of any police reports relating to them. After conducting a review of the designated material, the trial court ruled that, except for one paragraph of a police report containing information regarding Taglia, nothing contained therein had to be disclosed. The court ordered that the documents be marked for identification and sealed, not to be opened by anyone except a reviewing court unless ordered otherwise. Defense counsel agreed to these procedures and took no exception to the trial court’s rulings.

The defendant moved for judgment of acquittal at the close of the state’s case and again at the close of his own case, arguing that the state had presented insufficient evidence to meet the requirements of the corroboration rule applicable to proof of the falsity element of perjury. The court denied these motions.

In his first claim of error, the defendant contends that there was insufficient evidence introduced on the element of falsity to support his conviction for perjury. This claim is without merit.

Ordinarily, the test for determining whether the evidence is sufficient to support a conviction is whether the trier reasonably could have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). “Each essential element of the crime charged must be established by proof beyond a reasonable doubt.” Id. In reviewing the sufficiency of the evidence in a case involving a conviction for perjury, however, there is an additional inquiry: whether the evidence is sufficient to satisfy the requirements of the so-called “one-witness-plus-corroboration” rule. Under the “one-witness-plus-corroboration” rule, a perjury conviction cannot be based upon the testimony of a single witness without corroborative evidence to establish the falsity of the statement. State v. Sanchez, 204 Conn. 472, 477, 528 A.2d 373 (1987); State v. Campbell, 93 Conn. 3, 12, 104 A.2d 653 (1918). “ ‘[T]he corroborative evidence must be inconsistent with the innocence of the accused and must tend to show the perjury independently of the testimony which it is intended to corroborate.’ ” State v. Sanchez, supra, 482, quoting United States v. Forrest, 639 F.2d 1224, 1226 (5th Cir. 1981).

A review of the record reveals that there was sufficient evidence to satisfy the requirements of the rule. To prove the element of falsity, the state presented the testimony of Officer Fortin. Fortin testified that, in a conversation he had with the defendant in May, 1985, the defendant had told him that he had to pay Rado $100 to $200 every time he had a fundraising show. This testimony contradicted the defendant’s grand jury assertion that he had no knowledge of whether any payments were made to Rado for any show or fundraising activities sponsored by the police union. To corroborate this evidence on the element of falsity, the state introduced independent evidence, in the form of testimony from other witnesses, that the defendant and Taglia had opened a joint checking account for use in connection with fundraising activities, that the defendant had given check number 115 to Rado, and that the check had been cashed at a club where Rado was a member. This evidence was sufficient to corroborate Fortin’s testimony, which tended to establish that the defendant’s grand jury testimony was false. The defendant’s claim that there was insufficient evidence on the element of falsity therefore fails.

The defendant next contends that the trial court erred in failing to order the disclosure of the complete transcripts of the grand jury testimony of the witnesses who testified against him, along with certain investigation reports. This claim has no merit.

The defendant’s request for disclosure was made before trial and repeated at the commencement of trial. The decision of the trial court on a petition for disclosure of grand jury transcripts must be reviewed with reference to the statute that was applicable to the grand jury investigation in question. In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 713 n.10, 501 A.2d 377 (1985). The statute that was applicable to the transcripts subject to the defendant’s requests for disclosure was General Statutes (Rev. to 1985) § 54-47. See In re Grand Jury Investigation by Judge John M. Alexander, 207 Conn. 98, 108, 540 A.2d 49 (1988). General Statutes (Rev. to 1985) § 54-47 (g) gave the court the power to “direct whether, and to what extent, the report shall be made available to the public or interested parties . . . provided any person accused of crime as a result of the inquiry shall have access at all reasonable times to the transcript of his own testimony given by him in such inquiry.” (Emphasis added.) A criminal defendant is not entitled to the transcripts of testimony of any and all grand jury witnesses on demand. “[T]he applicant seeking disclosure . . . bear[s] the burden of articulating and substantiating a basis for the desired access to grand jury transcripts . . . .” In re Final Grand Jury Report Concerning the Torrington Police Department, supra, 712. “The secrecy of an investigative grand jury proceeding is inviolate except if a court has ordered otherwise. A court may order otherwise if a particularized need [is] shown.” State v. Waterman, 7 Conn. App. 326, 346, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986); see also In re Grand Jury Investigation by Judge John M. Alexander, supra, 108; In re Grand Jury Report Concerning the Torrington Police Department, supra; State v. Maldonado, 193 Conn. 350, 363, 478 A.2d 581 (1984); State v. Rado, 14 Conn. App. 322, 331-32, 541 A.2d 124, cert. denied, 208 Conn. 813, 546 A.2d 282, cert. denied, U.S. , 109 S. Ct. 311, 102 L. Ed. 2d 330 (1988). In order to demonstrate a particularized need, “a petitioner . . . must make a showing that articulates the claim that, in the particular circumstances before the court, the benefits of disclosure outweigh the benefits of continued secrecy.” In re Final Grand Jury Report Concerning the Torrington Police Department, supra, 714.

In making his pretrial request for disclosure of the grand jury transcripts, the defendant indicated only that he needed the transcripts to prepare for trial. “ ‘A defendant has no absolute right to inspect investigative grand jury testimony for the purpose of assisting him in preparation of a defense.’ ” State v. Rado, supra, 331, quoting State v. Waterman, supra, 345. The defendant’s bald assertion that he needed the transcripts to prepare for trial does not amount to the requisite showing of particularized need.

At trial and in his appellate brief, the defendant relied on Practice Book §§ 741, 752 and 753 to support his claim that his disclosure requests should have been granted. Practice Book § 752 provides that, after a witness called by the state has testified on direct examination at trial, “the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents . . . which statement relates to the subject matter about which the witness has testified.” The trial court in this case ordered relevant portions of the witness’ statements disclosed before trial. The state complied with that order. Those portions of the requested documents that the state did not disclose were ordered sealed, in accordance with Practice Book § 753, for appellate review. The decision of the trial court on a disclosure request is entitled to every reasonable presumption of correctness. In re Grand Jury Report Concerning the Torrington Police Department, supra; State v. Rado, supra, 332. We may not reverse the trial court’s ruling unless an abuse of discretion is manifest or injustice appears to have been done. In re Grand Jury Report Concerning the Torrington Police Department, supra. Our review of the sealed documents reveals that the trial court, in limiting the defendant’s access to certain portions of the documents, acted in compliance with applicable law and within the scope of its lawful discretion.

The defendant also claims that the trial court erred in sealing the undisclosed documents with orders that no one was to have access to them except a reviewing court, because it did not make the finding of “good cause” required by Practice Book § 753. This claim is not properly before us. Practice Book § 753 permits the defendant to move for access to sealed documents after filing an appeal. State v. Cohane, 193 Conn. 474, 494, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). The record does not disclose that the defendant made such a motion.

In conclusion, we agree with the trial court that there was sufficient evidence presented to the jury to independently corroborate the testimony of a witness and thus to prove the element of falsity, and that the trial court’s rulings concerning disclosure, nondisclosure and sealing of the grand jury transcripts and other reports were proper and in accordance with applicable law.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-156. perjury: class d felony, (a) A person is guilty of perjury if, in any official proceeding, he intentionally, under oath, makes a false statement, swears, affirms or testifies falsely, to a material statement which he does not believe to be true.”

       The defendant urges us to renounce the “waiver rule” stated in State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984), and review the sufficiency of the evidence presented by the state as of the close of the state’s case. This is not an appropriate case in which to change the waiver rule “ ‘because, even if the defendant’s claim were properly here, he could not prevail.’ State v. Rutan, [supra]; see State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986).” State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986).

       Effective October 1,1985, General Statutes (Rev. to 1985) § 54-47 was repealed and its provisions replaced by Public Acts 1985, No. 85-611, codified as General Statutes §§ 54-47a through 54-47h. Because the grand jury inquiry in issue in this case was ordered on December 20, 1984, General Statutes (Rev. to 1985) § 54-47 is the statute governing disclosure of transcripts from that investigation.

       “[Practice Book] Sec. 741. — information and materials discoverable BY DEFENDANT as OF RIGHT
      “Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials:
      “(1) Exculpatory information or materials;
      “(3) Adequately identified books, tangible objects, papers, photographs, or documents which are within the possession, custody, or control of any state agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial[.]
      * ** *
      “In addition to the foregoing, the defendant shall be entitled to disclosure of exculpatory materials in accordance with any applicable constitutional and statutory provisions.”
      “[Practice Book] Sec. 752.--production following testimony
      “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”
      “[Practice Book] Sec. 75S.--delivery and excision of statements
      “If the entire contents of a statement requested under Sec. 752 relate to the subject matter of the testimony of the witness, the judicial authority shall order the statement to be delivered directly to the defendant or his counsel for his examination and use. If the prosecuting authority claims that any statement ordered to be produced under Sec. 751 contains matter which does not relate to the subject matter of the testimony of the witness, the judicial authority shall order the prosecuting authority to deliver such statement for the inspection of the judicial authority in camera. Upon such delivery, the judicial authority shall not disclose that portion of such statement which does not relate to the subject matter of the testimony of the witness. With such material excised or obliterated, the judicial authority shall then direct delivery of such statement to the defendant or his counsel for his use. If, pursuant to this procedure, any portion of such statement is withheld from the defendant or his counsel and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be sealed and preserved as an exhibit in the case, and, in the event that the defendant appeals, it shall be made available to the appellate court and, unless for good cause the trial court orders otherwise, to counsel for the parties for the purpose of determining the correctness of the ruling of the judicial authority.”