author: Daly, J.

text:
    In re Christopher A. et al.

    (7459)
    Daly, Norcott and Foti, Js.
    Argued December 12, 1989
    decision released August 21, 1990

      Diane W. Whitney, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellant (petitioner).

      Patsy M. Renzullo, with whom, on the brief, was John C. Dillman, for the appellee (respondent).

      Donald L. Mackie, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Daly, J.

The dispositive issue on appeal is whether the designated representative of the petitioner, the commissioner of the department of children and youth services (DCYS), is a party to a termination of parental rights proceeding and, if so, whether the trial court should have allowed this representative to be present during this proceeding. We conclude that the designated representative is a party whose presence should have been allowed by the trial court in this case.

The following facts are relevant to the disposition of this appeal. On August 24,1984, the respondent father was convicted of manslaughter in the stabbing death of his wife, which occurred on September 26, 1982, and was sentenced to a term of imprisonment of fifteen years. The husband and wife had two children during their marriage. Christopher was born on May 18,1976, and Michael was born on August 12, 1978.

In December, 1983, the children were placed with DCYS. On July 18,1984, with the respondent father’s consent, the children were adjudged uncared for and committed to DCYS for eighteen months pursuant to General Statutes § 46b-129. That commitment was extended for an additional eighteen month period on April 2, 1987. Since their commitment to DCYS, the children have lived together in two foster homes and were placed in a third foster home at the time of the termination proceeding.

On October 22, 1987, Wayne A. Kamens, acting as the duly authorized agent of the commissioner of DCYS, petitioned to terminate the parental rights of the father, alleging (1) that the father had failed personally to rehabilitate himself, pursuant to General Statutes § 17-43a (b) (2), (2) that the children had been denied by reason of acts of parental commission or omission the care, guidance or control necessary for their physical, educational, moral, or emotional well being, pursuant to General Statutes § 17-43a (b) (3), and (3) there is no ongoing parent-child relationship pursuant to General Statutes § 17-43a (b) (4). The third allegation was subsequently withdrawn.

At the start of the proceedings, on June 8, 1988, Diane Whitney, who was assistant attorney general, counsel for the petitioner, stated for the record that the following people were present: (1) attorney Patsy Renzullo, representing the respondent father, (2) attorney Donald Mackie, representing the children, (3) Thomas A., the respondent father, (4) Barbara A., the respondent’s present wife, (5) Kathleen Miller-Schuyler, a caseworker for DCYS, (6) Roseann Gesmonde, the respondent’s sister, and (7) Whitney, representing DCYS. After setting forth who was present, Whitney requested that Gesmonde leave because she was not “appropriately here.” The court agreed and stated, “Parties certainly have a right to be here, but other than that, I don’t think it is appropriate that anyone else attend.” Renzullo, the respondent’s attorney, argued that Gesmonde would be testifying and that she wanted to be present. The court responded, “If she is going to testify, she especially may not attend. What I am going to do is not permit the attendance of witnesses except during the times they testify. In other words, on the court’s own motion, which I think is appropriate in this court. So for two reasons, one, I don’t think persons other than the parties should be present during the proceeding. Secondly, if she is going to testify, she should not be present . . . .” The court also applied this ruling to Barbara A. The respondent objected to the court’s rulings that prevented these persons’ presence, but there was no objection by anyone present to the court’s ruling to sequester witnesses.

Following this ruling, the court heard several motions filed by DCYS. The respondent then questioned the presence of Miller-Schuyler in the courtroom, arguing that this witness should not be present because having someone from the state would be an “intimidating factor.” The court stated, “She will not be [present] . . . . As I said, we are going to sequester witnesses.” Whitney then objected to this ruling stating that Miller-Schuyler, as an agent of DCYS, was a party and had a right to be present. The court reserved its ruling. Miller-Schuyler was then called as DCYS’s first witness. After she testified, the following colloquy occurred:

“Ms. Whitney: Your Honor, I have a problem first. The question of whether Kathleen Miller-Schuyler can be in the the courtroom.
“The Court: No.
“Ms. Whitney: She is my client.
“The Court: No.
“Ms. Whitney: May I have an exception to that ruling, Your Honor?
“The Court: I mean, you can—she is your client. You can have one hundred clients—
“Ms. Whitney: But, she is—
“The Court:—under that definition.
“Ms. Whitney: But, the petition is filed by the commissioner of the department.
“The Court: She may be present.
“Ms. Whitney: She may be present?
“The Court: The commissioner.
“Mr. Mackie: A designee can’t be?
“The Court: No. She is a witness.
“Ms. Whitney: But, she has already testified.
“The Court: I know, but she may be called again. I don’t know. You may need to call her again, or want to call her again for rebuttal. Mr. Mackie might want to recall or he or Mr. Renzullo might. So, the purpose of sequestration ... is that the witness would not be present during the testimony of another witness.
* * #
“The Court: I know the commissioner is a party. But the commissioner is not here. A person came from the department, and there may be many people from the department coming to testify. But, they do not all qualify as parties within the definition of the statute to be present in court.
* * *
“The Court: So what? What is the purpose of having her here? What purpose is there? Why do you want her here? What good is it going to do on your case if she sits in this room?
“Ms. Whitney: Well, it is hard to anticipate what could happen. But, without her present, I have no client to refer to, I have no authority, if there is a question of settlement or any issues that might arise. I am not authorized to act on behalf of the client other than as their attorney, which means I would have to confer with them.
“The Court: You certainly can confer with her at any time if you want to talk to her about settlement, we can easily take a recess. But, you can’t really confer with her during the proceedings in any event . . . .”

The trial continued without Miller-Schuyler. The petitioner was given several opportunities for a recess but each time objected and argued that this opportunity did not sufficiently allow DCYS to present the case.

At the conclusion of the hearing, the court issued its memorandum of decision denying the petition and concluding that DCYS did not meet its burden. This appeal ensued.

DCYS first argues that Miller-Schuyler, its designated representative, was a party to the proceeding. We agree.

We begin our analysis by looking to Practice Book § 1049 entitled “Termination of Parental Rights.” That section provides in relevant part that “[t]he hearing on such application shall be in accordance with and conform to the provisions of Gen. Stat., § 45-61d and, insofar as consistent therewith, with Secs. 1039 through 1042 hereof.” We then see that General Statutes § 45-61d (b) (4) mandates that the commissioner of the department of children and youth services receive legal notice of the termination hearing. Next, we turn to Practice Book § 1023 (l) (3) which defines a legal party in interest to be “[a]ny person . . . whose legal relationship to the matter pending before the court is of such a nature and kind as to mandate the receipt by him of proper legal notice as a condition precedent to the establishment of the court’s jurisdiction.” Thus, as the trial court correctly determined, the commissioner of the department of children and youth services is a party to a termination of parental rights proceeding.

The point of deviation between the trial court’s ruling and this court’s holding is whether the commissioner may designate any agent of DCYS to take her place as the representative party. We disagree with the trial court that DCYS was limited to designating non-witnesses to be the representative party. Public Acts 1975, No. 75-544, added the following language to General Statutes § 17-32c, “The commissioner of children and youth services may delegate any power, duty or function regarding such children, except for consent for adoption, marriage and joining of the armed services and except to the extent that the federal government may require that any responsibility for children be retained by said commissioner as a prerequisite to federal reimbursement of state expenditures for such children.” The effect of the language was to give the commissioner the right to designate a representative for someone who is under the care of DCYS and the right to delegate any power, duty or function she may have with respect to being the children’s guardian, within the above described limitations.

This section applies to the present ease because the children were committed to the DCYS. This language prevents a court from interfering with the decision making of the commissioner and, thus, a court has no authority to require the petitioner’s counsel to have the commissioner designate a different representative to be present once the commissioner has designated a representative. In the present case, the court’s statements to the petitioner’s attorney that any other nonwitness designee could represent DCYS as the party, but not Miller-Schuyler, did not cure its exclusion of the commissioner’s designated representative.

Our holding that the commissioner had the right to designate Miller-Schuyler as the party representative is not, however, dispositive of this appeal. We must now determine whether the court should have allowed this party to be present during the proceeding.

We begin our analysis by noting that termination of parental rights cases are juvenile proceedings; see footnote 1, supra; that “constitute ‘ “a civil inquiry.” ’ ” Dart v. Mecum, 19 Conn. Sup. 428, 431, 116 A.2d 668 (1955), quoting Cinque v. Boyd, 99 Conn. 70, 83, [121 A. 678 (1923)]. In a civil proceeding, a court has the discretion to sequester any witness, including a party, “if (1) seasonably requested, (2) specific and supported by sound reasons, and (3) false corroboration would probably result. State v. DiBella, 157 Conn. 330, 342, 254 A.2d 477 (1968); State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1960).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.29. In Anderson v. Snyder, 91 Conn. 404, 409, 99 A. 1032 (1917) the court held that the party had a right to be present at a deposition. In that case, the court adopted a stricter standard for preventing a party’s presence during a trial, where he will also be a witness; “we think each party to a litigation has the undoubted right to be present at the trial. An occasion may arise where, to prevent a similarity of statements by different witnesses, the court may exclude any witness, including a party to the litigation, from the court room, but this is a power to be sparingly exercised and only upon the clearest grounds so far as the party is concerned.” Anderson v. Snyder, supra, 408-409.

Thus, while there is authority for the court to exclude a party-witness during the course of a trial, “ ‘this is a power to be sparingly exercised and only upon clearest grounds so far as the party is concerned.’ ” Donaghue v. Nurses Registry, Inc., 40 Conn. Sup. 196, 198, 485 A.2d 945 (1984); compare Rozbicki v. Huybrechts, 22 Conn. App. 131, 576 A.2d 178 (1990) (party has the right to be present during jury selection following Anderson rule); with Donaghue v. Nurses Registry, Inc., supra, (granted motion to sequester party defendants during respective depositions relying on Anderson exception).

We have already determined that Miller-Schuyler, as the commissioner’s designated representative, was a party to this proceeding. Accordingly, the court’s sequestration order, as it pertains to Miller-Schuyler, is subject to the higher standard announced in Anderson v. Snyder, supra. On the basis of our review of the record, we conclude that the matter at issue does not present adequate grounds to invoke the exception set forth in Anderson and thus the court abused its discretion when it refused to permit the petitioner’s agent to be present for the trial.

The grounds for excluding this witness were (1) the court believed that Miller-Schuyler was merely an employee of DCYS and not entitled to the rights of a party, (2) it did not want this witness to be able to hear other witness’ testimony, (3) it saw no necessity for her presence, and (4) it believed Miller-Schuyler would serve no useful purpose. We are not persuaded by these reasons.

For the reasons previously stated, the court’s belief that Miller-Schuyler was not, entitled to the rights of a party was incorrect. The court gave no indication why it would not permit this party-witness to hear the testimony of other witnesses when it permitted other party-witnesses to be present. Further, the court’s reasoning that Miller-Schuyler was not needed is without merit. Miller-Schuyler had been the caseworker in this case since 1986. She had firsthand knowledge of the facts of this case and responsibility for the two minor children. Her need to be present during the proceeding to assist Whitney in the presentation of DCYS’ case addresses the exact concerns expressed in Anderson for adopting the rule that only rarely should a court prevent a party’s presence: “In many cases the cross-examining attorney cannot anticipate, no matter how thorough his preparation, the developments in the examination of a witness. He cannot know all that his client knows. Often it is essential for the proper presentation of the case to have the client at hand ready to prompt the cross-examiner and to respond to his inquiries. The object of the trial is the ascertainment of the truth. The presence of a party to the litigation who is conversant with the facts which the witness is to relate, not infrequently produces upon him a moral effect and serves as a deterrent to an untruthful statement.” Anderson v. Snyder, supra, 408. In the present case, Miller-Schuyler’s inability to assist in the presentation of DCYS’ case impeded DCYS’ ability to present its case and impeded the court’s ability adequately to ascertain the facts, thus creating an unfair termination of parental rights proceeding. Accordingly, the trial court should have permitted Miller-Schuyler to be present in this case.

The judgment is reversed and the case is remanded for a new hearing.

In this opinion the other judges concurred.

       Practice Book § 1023 is the definitions section to juvenile proceedings. Termination of parental rights proceedings are juvenile proceedings; see General Statutes § 46b-121; and, therefore, this section applies to this case.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Wayne Jones
    (8369)
    Spallone, Daly and O’Connell, Js.

      Argued June 4
    decision released August 21, 1990

      Erskine D. McIntosh, assistant public defender, with whom, on the brief, was William Holden, public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen Sedensky III, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals his conviction, after a trial to the court, of the crime of possessing narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). He claims that the court’s refusal to allow him to cross-examine a state’s witness about prior misconduct impermissibly restricted his constitutional right to confrontation. We disagree.

Before trial, the defendant subpoenaed the personnel files of the two Bridgeport police officers who had arrested him for possessing twenty-five packets of what later proved to be cocaine. The court denied a motion to quash the subpoena and ordered the personnel files to be produced and sealed. The defendant then sought access to all information in the files pertaining to disciplinary actions relevant to the issue of credibility.

In an in camera review, the court discovered that one officer’s file contained information that in 1974, in violation of a departmental rule, the officer had failed to report that a person in his presence had apparently “injected himself with a substance.” The officer admitted this lapse to a superior officer and was subsequently suspended for seven days. The court expressly found that, under the circumstances, this incident was remote, collateral and pertained to conduct that, while violative of a departmental regulation, did not affect the officer’s credibility or honesty. Accordingly, the court ruled that the defendant could not use this information to cross-examine and impeach the officer.

On appeal, the defendant claims that the officer’s prior conduct constituted the fraudulent concealment of a criminal act performed in his presence. The defendant argues that his constitutional right to confront witnesses against him required that he be permitted to question the officer about this misconduct that, according to the defendant, negatively reflected on the officer’s credibility and veracity. This claim fails because we do not agree that the officer’s prior misconduct, in these circumstances, is relevant evidence.

The confrontation clause guarantees a defendant a full and fair opportunity to cross-examine witnesses, but it does not guarantee the defense its every wish. State v. Yednock, 14 Conn. App. 333, 339, 541 A.2d 887 (1988). We do not question the right of a criminal defendant fully to cross-examine a police officer who testifies against him and to have available relevant information from police personnel files. See State v. Januszewski, 182 Conn. 142, 170-74, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1001 (1981). Our courts have never held, however, that irrelevant evidence should be disclosed or admitted. State v. Perry, 195 Conn. 505, 523, 488 A.2d 1256 (1985).

It is within the discretion of the trial court to determine the relevancy of evidence and to limit the scope of cross-examination. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). Whether a particular act of misconduct logically indicates a lack of veracity is a question for the court. Vogel v. Sylvester, 148 Conn. 666, 675-76, 174 A.2d 122 (1961); State v. Coriano, 12 Conn. App. 196, 204, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987). A particular act of misconduct should be excluded if it does not bear on the issue of veracity or if it is too remote in time to have probative value. State v. Diorio, 12 Conn. App. 74, 78, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988). As in State v. Perry, supra, the mere fact that this police officer had violated a police regulation fourteen years earlier does not establish a lack of respect for the truth.

The defendant here had a full and fair opportunity to cross-examine the police officer about the events surrounding the arrest and other relevant matters. We will not interfere with the court’s holding that the officer’s previous violation of department regulations did not call his credibility into question and was too remote in time to have probative value. The court acted properly within its discretion to preclude the defendant’s use of the incident on cross-examination.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Norcott, J.

text:
    Richard Magnotti v. Larry R. Meachum, Commissioner of Correction
    (8357)
    Nokcott, Foti and Landau, Js.
    Argued June 11
    decision released August 21, 1990

      Mark Rademacher, for the appellant (petitioner).

      JuliaDiCocco Dewey, assistant state’s attorney, for the appellee (respondent).
   Norcott, J.

The petitioner appeals from the trial court’s denial of his writ of habeas corpus. He challenges the trial court’s rejection of his claim of ineffective assistance of counsel in violation of his rights guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.

After a trial to a jury, the petitioner, Richard Magnotti, was indicted for murder in violation of General Statutes § 53a-54a and was convicted of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). That conviction was upheld in State v. Magnotti, 198 Conn. 209, 502 A.2d 404 (1985).

Thereafter, the petitioner filed a petition for a writ of habeas corpus based upon a claim of ineffective assistance of appellate counsel. The basis of his claim is that his appellate counsel failed to raise certain issues on appeal that he alleges were stronger and more likely to be successful than those actually raised. After an evidentiary hearing, the habeas court, Meadow, J., denied the petition. From this ruling, the petitioner appeals.

At the trial for the underlying offense, the jury could have reasonably found the following facts. On January 26,1981, at approximately 1:55 a.m., Marion Mill-bank, a resident of 865 Mix Avenue, apartment 317, in Hamden, was awakened by the sounds of a struggle coming from apartment 417 directly above her. That apartment was occupied by the petitioner and his mother, Louise Russell, and by the victim, William Russell. Millbank got out of bed and went to the kitchen, where she heard two male voices angrily exchanging obscenities. She also heard heavy footsteps and the sound of bodies bumping into the kitchen cabinets.

Millbank woke her sister, Rita Bree, and the two went back into the kitchen where they heard the sounds of a violent struggle. The sisters called their upstairs neighbor to attempt to stop the commotion, but no one answered the phone. The sisters then heard a male voice say, “You’ll break your mother’s hand.” The sisters then called the police at approximately 2 a.m.

Officer Gary Komoroski of the Hamden police department went to 865 Mix Avenue, arriving at approximately 2:04 a.m. Officer George Kitsos and Sergeant Donald Grey arrived at about the same time. They went to apartment 417 and were let in by Louise Russell. The officers observed the body of William Russell, the petitioner’s stepfather, lying face down on the floor against the door. Komoroski checked the victim’s body for vital signs and found that he was dead. The victim had been stabbed. Blood was splattered throughout the apartment. The police also found a bloodstained pink robe in the master bedroom, a bloodstained sponge and towel in the kitchen and a bloodstained towel by the victim’s body. Louise Russell was then taken to a bedroom and was advised of her Miranda rights.

Komoroski stationed himself at the fourth floor elevator. At approxmately 2:20 a.m., Mark Magnotti, the petitioner’s nephew, stepped out of the elevator and was asked by Komoroski to identify himself and explain his presence. Magnotti informed the officer that he had received a call from his grandmother, Louise Russell, telling him that the victim and the petitioner had had a fight. She was upset when she called, and she had asked Magnotti to pick up the petitioner on Mix Avenue.

Dryden Ballentine, the occupant of apartment 517, was awakened at about 2 a.m. by a noise from somewhere in the building. He went to a window and saw several police cars arrive at the apartment complex. Approximately eight minutes after the police had arrived, he observed a man wearing a leather jacket, similar to that worn by the petitioner upon his arrest, leaving the building through its fire exit and proceeding to a walkway by the building’s side entrance. He then left the walkway and continued alongside the building.

At approximately 2:45 a.m., the petitioner stepped out of the fourth floor elevator. Komoroski asked if he was Richard Magnotti, and the petitioner responded affirmatively and asked what had happened. The petitioner’s hands and clothing were stained with blood; Komoroski frisked him for weapons and then radioed the other officers in the apartment to inform them that he had the petitioner in custody.

The officers then escorted the petitioner into the master bedroom where his mother was. The petitioner approached his mother and asked her what had happened and attempted to hug her, but she pulled away, indicating to the petitioner that he had experienced an epileptic seizure.

The petitioner asked Inspector Thomas Rhone, who, in the interim, had arrived with Inspector John Cronin, what had happened. Cronin observed blood on the petitioner’s hands and clothes and also observed that he appeared to have been drinking. The petitioner was then advised of his Miranda rights and placed under arrest for the murder of the victim.

The officers questioned the petitioner concerning the events of that night, and he said that the last thing he remembered was that after dinner, at approximately 6:30 p.m., he was watching a football game. He next remembered walking through Hamden Plaza to his apartment and noticing police cars in the area. He then told the police that if he had done anything wrong, he would have left the area and not returned. The petitioner said that he would cooperate and that, while he did not remember having a seizure, he felt tired, as if he had had one. He was then transported to the Ham-den police station where police secured fingernail scrapings from his hands.

The cause of the victim’s death was determined to be a stab wound through the heart, a wound typical of that caused by a smooth bladed knife. There were three other stab wounds on the victim’s body and several bruises on his chest and shins, and there was a considerable amount of blood on his clothing. The blood samples taken from the petitioner’s clothing were tested and found to be the same blood type as the victim’s.

The jury returned a verdict of guilty of manslaughter in the first degree. The petitioner appealed, and his conviction was affirmed. See State v. Magnotti, supra. He then petitioned for a writ of habeas corpus, and that petition was denied.

The petitioner claims that he did not receive effective assistance of appellate counsel because his counsel did not raise the following issues: (1) the trial court improperly excluded hospital records supporting the fact that he had a history of epileptic seizures; (2) the trial court improperly denied his motion for a mistrial, and his subsequent motion for a new trial, after the midtrial suppression of a knife that had been shown to three witnesses; and (3) the trial court improperly denied the petitioner’s written request to charge on diminished capacity or the effect of epilepsy on the element of intent.

“The sixth amendment of the federal constitution requires that ‘the accused shall enjoy the right . . . to have the assistance of counsel for his [defense]’ in all criminal prosecutions.” State v. Barber, 173 Conn. 153, 155, 376 A.2d 1108 (1977); see also Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). “The right to counsel means the right to the conscientious services of competent counsel.” State v. Barber, supra.

In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal. In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: “ ‘(1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial.’ ” Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d 1380 (1988); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A reviewing court can find against the petitioner on whichever ground is easier. Valeriano v. Bronson, supra; Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988).

In reviewing the claim, this court “ ‘must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under these circumstances, the challenged action “might be considered sound trial strategy.” ’ ” Levine v. Manson, supra, 640; see also Chace v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). In assessing the petitioner’s claim, this court must make every effort to “ ‘eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ Strickland v. Washington, supra [689].” Levine v. Manson, supra; see also Valeriano v. Bronson, supra, 87. Hence, “[i]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment.” Valeriano v. Bronson, supra.

Here, Paul Flynn, the attorney who represented the petitioner at trial and sentencing, was appointed as a special public defender and filed the petitioner’s appeal. Flynn filed a preliminary statement of five issues, including the three in question here, that he intended to raise on appeal. Kevin Connors, also a special public defender, appeared in lieu of Flynn and filed an amended preliminary statement of issues, raising two of the five claims included in the original statement.

At the habeas hearing, the petitioner’s appellate counsel testified that he had not reviewed the trial court file, but he had read the complete transcript of the petitioner’s trial. He also testified that, while he never had reviewed the actual excluded medical reports, he had conducted preliminary research on all three issues, and he intentionally had decided not to raise those issues on appeal.

In this case, we must determine whether appellate counsel’s decision not to raise the issues in question fell below the reasonable competence displayed by lawyers with ordinary training and skill in criminal law. Levine v. Mamon, supra, 639; Valeriano v. Broman, supra, 88. We conclude that the petitioner’s appellate counsel did not fall below that standard.

I

The Medical Records

At trial, defense counsel attempted to introduce medical records into evidence in order to establish that the petitioner had a history of seizures. The existence of those records was discovered by defense counsel during the cross-examination of the state’s witness Cronin. Cronin produced a statement given by the petitioner that contained a medical waiver. Defense counsel attempted to elicit testimony from Cronin concerning the waiver, but the state’s objection to that testimony was sustained because it was beyond the scope of direct examination. During the defense case, counsel questioned Cronin about the waiver and attempted to introduce a medical statement obtained pursuant to that waiver relating to a 1970 treatment of the petitioner. Defense counsel attempted, for the first time, during this examination and through this statement, to suggest a history of epileptic seizures.

The trial court conducted an in camera review of the records and expressed a concern that epilepsy was beyond the ken of the average juror, and, therefore, that expert testimony would be necessary to relate the epilepsy to the defense of automation. The court stated that, without more, the records alone provided “no determination as to what the effects of these seizures are. Whether or not they restrict [the petitioner] and whether he can form an intent.” It ruled that, unless defense counsel could provide a foundation to “tie in” the records to the defense, those records were irrelevant.

After the court ruled the evidence inadmissible and defense counsel excepted, the court offered to grant a five day continuance so that defense counsel could present an expert medical witness to explain and hence to lay a foundation for admission of the records. The next day, defense counsel informed the court that he was unable to contact the medical expert, and he did not offer another expert. He then agreed to go forward with final arguments.

At the habeas proceedings, Connors testified that, after reviewing the transcripts, he felt the biggest problem in raising the exclusion of the records as an issue was Judge Budney’s ruling that they were irrelevant. He pointed out that, at trial, Flynn had disavowed a mental disease or defect defense, generally raised pursuant to General Statutes § 53a-13, and relied only on the defense of unconsciousness. He also testified that he knew of the difficulty involved in succeeding in an appeal from a judge’s ruling on relevancy because such a ruling will be overturned only for an abuse of discretion. State v. Echols, 203 Conn. 385, 393, 524 A.2d 1143 (1987).

The petitioner argues that these records not only were relevant, but were crucial to the defense because they helped to establish that his conduct was involuntary and that he could not form the specific intent. The trial court, while acknowledging that these records might contain information helpful to the defense, held that without any tie-in between the records and that defense, the records would only confuse the jury. Cf. State v. Madera, 210 Conn. 22, 32-36, 42, 554 A.2d 263 (1989) (where defendant’s medical history was admitted after experts explained its contents and relationship to the case).

Connors testified that, while he did not review the records themselves before making his decision, he did review the complete transcripts. He concluded that because of the context of the exclusion and defense counsel’s failure to lay a foundation, the trial court’s ruling on this issue was not an abuse of discretion likely to result in reversal. See State v. Echols, supra. We cannot say that this conclusion was unreasonable or fell below the requisite level of competence.

II

The Motion to Suppress

Before trial, the trial court held a hearing on defense counsel’s motion to suppress bloodstained clothing and fingernail scrapings. That motion was denied. At the conclusion of the hearing, after the court’s ruling that the items seized fell under the plain view exception, defense counsel orally amended his motion to suppress to include two knives seized, but he requested no further action by the court.

At trial, the state’s attorney questioned the petitioner’s mother, Louise Russell, about one of the knives seized. Defense counsel objected to having her view this knife because she had testified that she had not seen a knife during the incident. The objection was overruled. The state next offered the testimony of the medical examiner, who indicated that the wounds were consistent with those typically caused by a smooth bladed knife. Defense counsel objected to the witness’ viewing the knife because she was a medical expert and not a “forensic specialist on the size and permeations” of knives. That objection was sustained. The knife was then shown to the investigating officer, and, at this time, defense counsel raised his objection that the knife was a product of an illegal search and should have been suppressed.

After resolving the confusion on the motion to suppress, the trial court held a second suppression hearing to afford defense counsel the opportunity to address this issue. At this hearing, the state contested only standing. Once the trial court found that the defendant had standing to challenge the search, the state conceded that the search was conducted without a warrant or consent, and that the knives were seized from within a cabinet. After the hearing, the trial court granted the motion to suppress the knives as fruits of an unlawful search, and defense counsel moved for a mistrial based upon the fact that the jury had seen one of the knives in question. The trial court denied the motion, finding that the defendant would suffer no prejudice from the continuation of the trial. The court noted that there was no question that the wounds had been caused by a knife and further noted that defense counsel had failed to raise the issue of the knives properly in his pretrial motion to suppress. During its instructions, the trial court repeatedly cautioned the jurors to disregard any suppressed evidence or testimony.

As the habeas court noted, “ ‘ “[t]he general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity of a fair trial.” State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); Practice Book § 887. The ultimate question on a motion for mistrial is whether the alleged offense resulted in “ ‘substantial and irreparable prejudice to the defendant’s case.’ ” State v. Jennings, 5 Conn. App. 500, 505, [500 A.2d 571] (1985) . . . .’ State v. McNellis, 15 Conn. App. 416, 436, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).”

The petitioner argues that this claim should have been raised and would have been likely to result in reversal because one of the knives was shown to the jury and would, therefore, necessarily have caused prejudice. The petitioner relies on State v. Schonagel, 189 Conn. 752, 764-65, 459 A.2d 106 (1983), vacated and remanded, 465 U.S. 1002, 104 S. Ct. 990, 79 L. Ed. 2d 224 (1984), which holds “ ‘[t]here is a general mental tendency [on the part of the jury] when a corporal object is produced as proving something, to assume, on sight of the object, all else that is implied in the case about it.’ ” (Emphasis in original.) He argues further that' “it is reversible error for the trial court to allow into evidence articles seized from the defendant which tend to indicate criminal propensity when those articles are not connected to the commission of the crime charged.” State v. Wilson, 199 Conn. 417, 449, 513 A.2d 620 (1986).

While we agree with the propositions quoted by the petitioner, those principles have no application to this case. In this case, the petitioner chooses to ignore the fact that, as found by the trial court and the habeas court, there was no doubt that a knife had been used in the homicide; the petitioner never contested that fact. His sole defense was that he was in the throes of a seizure during the act and, although he might have committed that act, he could not have formed the requisite intent to be found guilty. The petitioner would have, therefore, had a difficult task of showing how the viewing of this knife by the jury resulted in irreparable prejudice. Therefore, defense counsel’s decision not to raise this issue was not unreasonable.

Ill

The Jury Instruction

The petitioner’s final claim is that his appellate counsel should have raised the jury instruction issue. The petitioner’s trial counsel submitted requests to charge on diminished capacity and on unconsciousness. The trial court refused to give either charge.

In its charge on the elements of the murder, the trial court instructed the jury that it must find that the petitioner was of sound mind at the time of the incident. It then instructed the jury on the element of intent and reminded the jury that “[tjhere is testimony in this case that the accused at the time of the alleged occurrence had some type of seizure. This testimony, the weight and credibility given to this testimony is within your province as the trier of fact. This testimony goes to the element of intent and it is for you to determine from all the evidence as to whether or not the state has sustained its burden of proof beyond a reasonable doubt as to the element of intent. . . .” When charging the jury on intent to commit manslaughter, the court again reminded the jury that intent must be determined from “what the circumstances were surrounding that conduct and from those infer what his purpose or intention was.” The court charged that part of the jury’s duty was “to draw all reasonable inferences from the conduct of the accused in light of the surrounding circumstances as to what purpose or intention was in his mind at various times.”

Connors testified that the petitioner’s defense of unconsciousness related only to the issue of intent, and that, in his opinion, the trial court gave an adequate charge on intent, capacity and seizures. His conclusion, based upon his review of the jury instructions, was that the charge covered the substance of the requests to charge as they related to the defense raised at trial and that raising this issue was not likely to result in reversal.

On appeal, a court reviewing a jury charge “must review the charge as a whole and not analyze small portions in isolation.” State v. Jones, 193 Conn. 70, 90, 475 A.2d 1087 (1984). It is not improper to refuse to charge in the exact words requested. State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985). “ ‘ “The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a.jury in such a way that injustice is not done to either party under the established rules of law.” State v. Harden, [175 Conn. 315, 322, 398 A.2d 1169 (1978)].’ State v. McKnight, 191 Conn. 564, 583, 469 A.2d 397 (1983).” State v. Anderson, 20 Conn. App. 271, 281-82, 566 A.2d 436 (1989). With this standard in mind, we cannot say that Connors’ conclusion was unreasonable.

In conclusion, Connors testified that after reviewing the transcripts and assessing the likelihood of success on each of the issues, he made a conscious decision not to raise these three. “ ‘Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.’ ” Valeriano v. Bronson, supra, 89, quoting Jones v. Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. “ ‘A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions.’ ” Valeriano v. Bronson, supra, 89.

Connors selected for review those issues that he felt were the strongest and most likely to result in reversal. We conclude that this decision fell “within the range of competence displayed by lawyers with ordinary training and skill. . . .” Levine v. Manson, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner raised two claims on direct appeal. He claimed (1) that the trial court should have granted his motion to suppress, and (2) that the prosecutor made improper comments on his failure to testify, and that reversal therefore, was required.

       In State v. Echols, 203 Conn. 385, 393, 524 A.2d 1143 (1987), our Supreme Court held that “the trial court has wide discretion in its ruling on the relevancy of evidence; State v. McClendon, [199 Conn. 5, 8, 505 A.2d 685 (1986)]; State v. DeForge, 194 Conn. 392, 396, 480 A.2d 547 (1984); its rulings will be reversed if the court has abused its discretion or where injustice appears to have been done. State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Johnson, 190 Conn. 541, 548-49, 461 A.2d 981 (1983); see State v. Gold, [180 Conn. 619, 646, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980)].”

       At the conclusion of the suppression hearing, defense counsel made the following request to the trial court: “I would ask the court to add an item to that list so that Your Honor will understand where the list came from. The state provided me with a list of items that had been surveyed by their forensic people. In my preparation of that motion, I omitted—the issues would be the same it seems to me. There would be no greater evidence that would have to be done because if I fail on the issue that I raised, it seems to me that that might very well run to the other—and I’m asking permission to amend the application of motion to add that term.” (Emphasis added.) The additional items referred to were the two knives and a bottle seized from within a kitchen cabinet.

       Defense counsel claimed that a mistrial was necessary because the jurors had seen the knife and had heard questions about its “potential identity and its potential use.” He claimed that he did not think the jurors would be able to forget about those questions and that knife.

       The trial court told the jury that “[a] person is of sound mind and that is legally sane and responsible for his criminal or unlawful conduct if at the time of such conduct he does not, as a result of mental disease or defect, lack substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”


author: Cretella, J.

text:
    State of Connecticut v. John Santiago
    (8555)
    Daly, Cretella and Landau, Js.
    Argued June 13
    decision released August 21, 1990

      Denise Bevza, special public defender, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, state’s attorney, and Peter McShane, deputy assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from his conviction after a jury trial on two counts of failure to assist a peace officer in violation of General Statutes § 53a-167b (a). He claims (1) that he was deprived of a fair trial when the trial court allowed the state to amend its information on the morning of trial by adding two new counts, (2) that General Statutes § 53a-167b is unconstitutionally vague and overbroad, and (3) that the trial court should have instructed the jury that they should acquit the defendant of failure to assist a peace officer if it found that the officers’ request was unlawful. We affirm the judgment of conviction.

The jury could have found the following facts. The defendant, a former New London police officer, resided at 3 Thompson Court in a basement apartment that had only one door. New London police officers, Kenneth Edwards and Graham Mugovero, received information from police headquarters that John Irizzary, for whom the officers had arrest warrants, was at the defendant’s apartment. As they drove toward the apartment, Edwards saw Irizzary standing in front of the defendant’s door. Irizzary ran into the apartment when he spotted the officers.

Edwards immediately radioed for assistance. Other uniformed officers soon arrived and were stationed to cover all sides of the apartment. Edwards and Mugovero knocked on the apartment door and spoke with the defendant. The officers commanded the defendant to open the door, stating that they had arrest warrants for Irizzary and that they had seen Irizzary enter the apartment. The defendant responded that he needed time to calm Irizzary because Irizzary was frightened. Meanwhile, Irizzary was searching the apartment for an escape route. The officers knocked on the door and spoke to the defendant four separate times.

Irizzary attempted to exit a basement window, but an officer stepped on the top of the window in order to close it upon him and trap him. The window broke and other officers left their posts to respond to the sound of crashing glass. Irizzary dropped back into the apartment, then ran out the apartment door and escaped.

I

The defendant first claims that he was deprived of due process because the trial court denied his motion to strike the two new counts of failure to assist a peace officer that were contained in an amended information that the state filed on the morning of the first day of trial, but prior to any voir dire. In the original information dated October 4, 1988, the state charged the defendant with one count of hindering prosecution in violation of General Statutes § 53a-167 and one count of interference with a peace officer in violation of General Statutes § 53a-167a. The defendant filed a motion for bill of particulars on November 14,1988. Practice Book § 833 provides that “[wjhen any bill of particulars is ordered, an amended or substitute information shall be filed incorporating its provisions.” The state filed an amended information on September 7, 1989, and the defendant received a copy of the amended information immediately prior to the commencement of the voir dire of prospective jurors that day. The amended information contained the two new charges of failure to assist a peace officer in violation of General Statutes § 53a-167b and an additional charge of interference with a peace officer. The trial court denied the defendant’s motion to strike these new charges. Although the defendant now claims that he did not have sufficient notice to research the law concerning the new charges and prepare a defense, he did not request a continuance. He was acquitted of all charges except the new charges of failure to assist a peace officer.

Additional charges may be added to an information before the commencement of trial under Practice Book § 623, but once the trial is underway, Practice Book § 624 governs, and the information may be amended only for good cause and the state may charge an additional or different offense only if the defendant consents. See State v. Mazzetta, 21 Conn. App. 431, 574 A.2d 806 (1990). A criminal trial begins with the voir dire of prospective jurors for purposes of Practice Book §§ 623 and 624. State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986). The defendant argues that the trial began on September 7, 1989, and that, therefore, the state could not amend the information on that very day under the authority of § 623. He conceded at oral argument, however, that this position is contrary to our holding in State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). In Huff, the state filed a substitute information containing an additional count immediately before trial, as was done in this case. Applying § 623, we affirmed the trial court’s denial of the defendant’s motion to strike that additional count. Id.

Here, as in Huff, the defendant claims that he was prejudiced because he was denied adequate time to investigate whether he had defenses to the additional charges. At trial, the sole theory of defense to each of the charges was that, rather than interfering, the defendant was attempting to assist the police officers by attempting to persuade Irizzary to give himself up. This defense was relevant to the charges of failure to assist as well as to the charges of interference. The jury had to disbelieve the defendant’s version of the facts in order to convict him of the crimes of failure to assist. The defendant has not even suggested that he would have presented a different theory of the case had he received earlier notice of the additional charges. We conclude that his due process right to adequate notice of the charges against him was not violated. Id., 346.

II

The defendant also claims that his conviction cannot stand because General Statutes § 53a-167b is unconstitutionally vague and overbroad, but he failed to raise this claim in a pretrial motion to dismiss. See Practice Book § 815 (8). Furthermore, the defendant’s sole defense at trial was that he did not refuse to open the door, but was actually assisting the officers by attempting to persuade Irizzary to surrender.

Such a claim is usually not reviewed. It will be reviewed, however, if it falls within the parameters of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

In State v. Shriver, 207 Conn. 456, 459, 542 A.2d 686 (1988), the Supreme Court reviewed a vagueness chailenge, although the claim was not distinctly raised in the trial court pursuant to the principles later enunciated in Golding. In the present case, however, the claim is not reviewable because it does not meet the first condition of State v. Golding, supra, 239. The defendant has not made an adequate record for review of his claim because he failed to seek a hearing regarding the constitutionality of the officers’ efforts to enter his apartment, nor did he raise the issue during trial.

Ill

The defendant’s final claim is that the court misled the jury to believe that it could convict him of the two charges of failure to assist peace officers regardless of whether the officers’ command that he open the door to his apartment was legal. In his request to charge, however, the defendant simply requested that the court read the fourth amendment to the jury on the theory that the command to open his apartment door violated his fourth amendment guarantees of liberty. The court correctly refused to read the fourth amendment since, on the basis of the defense and the evidence, there were no facts upon which the jury could conclude that the fourth amendment rights of the defendant were involved. The court did, however, instruct the jurors that they had to determine “whether [the] police officers were authorized to command assistance in the performance of their duties.” From the evidence, the jury could have found that the police officers chased a person for whom they had felony arrest warrants into the defendant’s apartment. Officers in hot pursuit may enter private premises to arrest a fleeing felon. State v. Capozziello, 21 Conn. App. 326, 329-30, 573 A.2d 344 (1990). The jury thus could reasonably have determined that the police officers were authorized to command such assistance.

The defendant did not raise the issue of whether or not there existed exigent circumstances for the officers to demand entry into the apartment, but relied instead on the defense that he was in fact trying to assist the officers. The court’s charge did not mislead the jury.

The judgment is affirmed.

In this opinion the other judges concurred.