author: Landau, J.

text:
    State of Connecticut v. Kendrick Wilkes
    (12513)
    Landau, Spear and Freedman, Js.

      Argued January 6
    decision released April 11, 1995

      Susan M. Hankins, assistant 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 Richard Palombo, Jr., assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of sale of narcotics and one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), and one count of conspiracy to violate the dependency producing drug law in violation of General Statutes §§ 53a-48* and 21a-278 (b). The defendant claims that the trial court violated his state and federal due process rights to a fair trial when it sustained a fifth amendment claim of privilege, made by counsel on behalf of a witness, without finding that the witness desired to assert his personal privilege or that his answers would create a real, substantial risk of incrimination or future prosecution after the witness had answered related questions on direct examination. The state argues that although a person who wants to claim his fifth amendment privilege generally must invoke it himself, any technical violation attendant to the invocation of the privilege in this case was harmless.

The jury reasonably could have found the following facts. On the evening of February 6,1992, Detectives Carl Bergquist and Ada Kuret were conducting a narcotics surveillance in the area of Seaview Avenue and Huron Street in Bridgeport. On three occasions, a different individual approached Jeffrey Braziel, who was standing in front of a house on Huron Street. Braziel escorted each individual to an area behind the house and exchanged vials of crack cocaine for cash. During these exchanges, the defendant was standing at the corner of Seaview Avenue and Huron Street. Conversations and hand gestures between the defendant and Braziel led the detectives to conclude that the defendant was directing people to where Braziel was positioned. At about 9:30 p.m., Braziel approached the defendant and handed him some cash. When police vehicles appeared on the scene, the defendant ran into a house. He later came out and fled down the street. The police apprehended the defendant and found $249 in his possession. Braziel, who was also arrested, was found to be carrying $50.

At trial, Braziel testified against the defendant. He admitted that he had previously sold drugs for the defendant and that he had met him on February 6, 1992, for that purpose. On that day, the defendant gave Braziel a package containing sixty vials of crack to be sold for $5 each. Upon selling all the vials, Braziel kept $50 and gave $250 to the defendant. Although no one approached the defendant directly, if a potential buyer did not know where to go, the defendant would signal Braziel.

At the time of his testimony, Braziel had pleaded guilty to five drug related charges and was awaiting sentencing. He previously had been convicted of several felonies and was willing to come forward and testify against the defendant when he found out that he could benefit from it. During the cross-examination of Braziel, the following colloquy occurred:

“Q. For how many years have you been selling drugs?

“A. I don’t know.

“Q. Long time?

“A. Well, around ’88 or ’89. Something like that.

“Q. And when you were selling drugs back in ’88 or ’89, where were you selling them? Same location?

“A. No.

“Attorney Palombo: I’m going to object again on his behalf. He hasn’t been offered any type of immunity and I don’t know if he has a — to take the privilege as far as any acts he may have committed which he may testify to.

“Attorney Goldberg: I’d be happy to talk to him. I would object to answering those, also.

“The Court: You are objecting, claiming the privilege?

“Attorney Goldberg: Yes, Your Honor.

“The Court: Sustained.”

Later in the cross-examination, while the defense was questioning Braziel about the circumstances surrounding his initial contact with the defendant, the following transpired:

“Q. Had this person brought you to some other locations for the same purpose [to sell drugs]?

“Attorney Goldberg: Objection, Your Honor.

“The Court: Sustained.

“Defense Counsel: May I have an exception, please, Your Honor?

“The Court: The objections that come from Miss Goldberg are obviously a claim that he is exercising his fifth amendment right.

“Defense Counsel: Yes, Your Honor.”

Both the United States and Connecticut constitutions ensure that “[a]ll persons enjoy a constitutional right of immunity from being compelled to testify against themselves. U.S. Const., amend. V; Conn. Const., art. I, § 8. That right is a personal one. State v. Horwitz, 108 Conn. 53, 58, 142 A. 470 (1928). The privilege against self-incrimination may not be invoked on behalf of another. Couch v. United States, 409 U.S. 322, 327-29, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973). While the personal nature of this privilege does not prohibit an attorney from claiming it on behalf of a client who is being interrogated in a civil matter, pursuant to General Statutes § 52-199 (b), no such statutory provision permits an attorney to claim the privilege on behalf of a client in a criminal matter. A witness must affirmatively claim this privilege against self-incrimination when taking the stand to testify. State v. Smith, 201 Conn. 659, 664, 519 A.2d 26 (1986). The fifth amendment privilege is not self-executing and must be asserted in a timely fashion. Id. A person who fails to claim the protection of the privilege will not be considered to have been compelled to testify within the meaning of the fifth amendment. United States v. Mania, 317 U.S. 424, 427, 63 S. Ct. 409, 87 L. Ed. 2d 376 (1943).” State v. Cecarelli, 32 Conn. App. 811, 818, 631 A.2d 862 (1993). Here, because Braziel did not personally invoke his privilege against self-incrimination, a hearing was necessary to determine if he intended to do so.

A hearing was also required in this case for the trial court to determine whether Braziel’s claim of privilege against self-incrimination should be sustained. For the court to sustain the claim, “ ‘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, [170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976)], citing Hoffman v. United States, [341 U.S. 479, 486-87, 71 S. Ct. 814, 95 L. Ed. 1118 (1951)].’ State v. Erhardt, 17 Conn. App. 359, 364, 553 A.2d 188 (1989). . . . The privilege against self-incrimination depends on the mere possibility of prosecution. State v. Williams, 200 Conn. 310, 319, 511 A.2d 1000 (1986).” (Citation omitted.) State v. Cecarelli, supra, 32 Conn. App. 819.

The defendant testified on his own behalf. He maintained that he did not supply Braziel with drugs and that he did not use drugs. He testified that he was on the comer of Seaview Avenue and Huron Street on the evening of February 6, 1992, for the purpose of buying a used car. Consequently, he did not have any occasion to enter into any conversations with Braziel and did not direct anyone to Braziel for the purpose of buying dmgs. He farther asserted that he first met Braziel in the lockup after having been arrested and did not recall having seen Braziel before that time.

Braziel testified on direct examination about “someone” who drove him to the comer of Seaview Avenue and Huron Street to meet the defendant and to sell drags. He stated that he knew he was going there to sell drugs for the defendant because “the guy told me to go to Mr. Wilkes” and because “this is not my first time doing this .... It’s not my first day selling-selling cracks.” He indicated that he had previously sold drags for the defendant and described his participation in drag transactions.

The crucial evidence necessary to obtain the defendant’s convictions was supplied by Braziel, who was the state’s key witness. The two areas of inquiry to which the state and Braziel’s attorney asserted the fifth amendment privilege were relevant to Braziel’s reliability and credibility. The defendant thus had a right to have the trial court conduct a hearing so as to resolve the tension created by the claim of privilege and the right of confrontation. Braziel never personally invoked his fifth amendment privilege. Moreover, the transcript is devoid of any evidence that Braziel faced an enhanced risk of prosecution as a result of his answers to the questions posed on cross-examination. In not conducting a hearing, the trial court failed to determine whether Braziel personally intended to invoke his fifth amendment privilege and, if so, whether his claim was valid.

In State v. Cecarelli, supra, 32 Conn. App. 811, the colloquy in which the witness, through his attorney, invoked his fifth amendment privilege occurred outside the presence of the jury. In that case, we directed the trial court to hold a hearing to determine whether the witness intended to invoke his privilege and, if so, whether the claim should be sustained. Id., 822. In this case, Braziel’s privilege was improperly claimed and sustained in front of the jury. It is well settled that “[njeither [the state nor the defendant] has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him. . . . The rule is grounded ... in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations.” (Citations omitted; internal quotation marks omitted.) State v. Dennison, 220 Conn. 652, 660, 600 A.2d 1343 (1991). Because we cannot say that the improper invocation of Braziel’s privilege in the presence of the jury did not undermine the fairness of the defendant’s trial, we must remand the case for a new trial.

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

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides; “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes § 53a-48 (a) provides in pertinent part: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The fifth amendment to the United States constitution provides in pertinent part: “No person shall ... be compelled in any criminal case to be a witness against himself . . . .”

       Richard Palombo, Jr., assistant state’s attorney, represented the state of Connecticut and Carol Goldberg, assistant public defender, represented Braziel.

       General Statutes § 52-199 (b) provides: “The right to refuse to answer a question, produce a document or disclose a title may be claimed by the party interrogated or by counsel in his behalf.”

       In the event that the Cecarelli witness did not invoke his privilege or if he improperly invoked it, we further directed that Cecarelli’s convictions be reversed and a new trial conducted. State v. Cecarelli, supra, 32 Conn. App. 822.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Jason Taylor
    (13827)
    O’Connell, Landau and Heiman, Js.
    Argued January 5
    decision released April 11, 1995

      Louis S. Avitabile, special public defender, with whom was Meryl Anne Spat, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Edward T. Ricciardi, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree as an accessory in violation of General Statutes §§ 53a-92 (a) (2) (A) and 53a-8 (a), assault in the first degree as an accessory in violation of General Statutes §§ 53a-59 (a) (l) and 53a-8 (a). On appeal, the defendant claims that the trial court improperly (1) charged the jury on the definition of reasonable doubt, (2) admitted testimony despite the defendant’s claims of irrelevance and prejudice, and (3) failed to suppress evidence when (a) the witness’ identification of that evidence was tainted by an unnecessarily suggestive prior identification and (b) the state failed to establish a proper chain of custody. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of August 1, 1992, the victim, Norman Reynolds, was walking on Berkley Street in Waterbury. A vehicle operated by the victim’s brother-in-law, Duane Gooch, drove up near the victim. The defendant was seated in the front passenger seat of the car and Jamel Hurtle was seated in the backseat, holding a nine millimeter weapon. When the vehicle came to a stop, Gooch asked the victim to get into the car.

The victim, who had stolen money and narcotics from Gooch, refused to enter the car fearing that Gooch was angry with him. When the victim refused to enter the car, the three men exited the vehicle and forced the victim inside. In doing so, the defendant struck the victim in the face. After the victim was forced into the car, Hurtle placed the gun in the area of the victim’s ribs. Gooch threatened to tie the victim’s hands and legs together, break his hands, and shoot his fingers off. The defendant threatened to “kick [the victim’s] ass really bad . . . .”

Gooch drove around in Waterbury while Hurtle kept the gun trained on the victim. Gooch finally stopped the car on Eastern Avenue and told the victim that they had arrived at the victim’s “death spot.” He ordered the victim out of the car and the three men forced the victim to accompany them down a hill. Hurtle pointed the gun to the victim’s head and the defendant pushed the victim with his hands to keep the victim moving.

While the men were walking down the hill, Hurtle, who had the gun, slipped and fell. The victim jumped on Hurtle and tried to take the gun from him. The defendant grabbed the victim while Gooch picked up a rock and struck the victim on the head, rendering the victim unconscious. The victim was unconscious when he was shot in the chest by one of the three men.

The victim was found at about 9 p.m. that evening by uniformed officers of the Waterbury housing authority who had been alerted by a group of youths that three men were beating a man behind one of the buildings. As the officers approached the rear of the building, they heard a shot and observed three black men getting into a blue four door foreign car that was parked at the top of an embankment. The victim was transported by ambulance to a hospital where he underwent surgery.

On August 2, 1992, Detective James Clary of the Waterbury police department visited the victim in the intensive care unit of the hospital. Although unable to speak, the victim indicated in writing that he had been shot by Gooch. Clary left the hospital, located Gooch and took him into custody. Gooch implicated the defendant in the actions directed against the victim.

I

The defendant first asserts that the trial court improperly charged the jury on the definition of reasonable doubt. The defendant asserts (1) that the charge as given contained an improper articulation requirement, and (2) that the trial court incorrectly declined to charge the jury in accordance with his request to charge. We are unpersuaded.

At the completion of the trial court’s instructions to the jury, the defendant excepted to the charge concerning reasonable doubt. In his exception, the defendant mounted a two-pronged attack. He argued first that the instruction as given constituted an improper requirement of articulation on the part of the jurors. In addition, the defendant argued that his request to charge concerning the fact that a juror need not be able either to give or to articulate a reason for the reasonable doubt “that the juror may feel” is a correct statement of the law and that he was thus entitled to that charge.

A

The defendant first claims that the charge that was given on the issue of reasonable doubt improperly required articulation by a juror of his or her reason for entertaining a reasonable doubt as to the guilt of the defendant. We disagree.

“The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established .... When reviewing the court’s instruction, our role is to determine whether, taken as a whole, [the charge] fairly and adequately present[s] the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Citations omitted; internal quotation marks omitted.) State v. Beliveau, 36 Conn. App. 228, 246, 650 A.2d 591 (1994), cert. granted on other grounds, 232 Conn. 910, 654 A.2d 354 (1995); see also State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993).

In reviewing the charge as a whole, we conclude that the charge as given fairly presented the issue of reasonable doubt to the jury. We do not, in fact, agree with the defendant that the charge as given contained any improper articulation requirement.

The defendant points specifically to that portion of the charge that defined reasonable doubt as “a doubt for which you, in your own minds, can give a reason based upon the evidence or lack of evidence.” Our Supreme Court, has held that such a definition does not require articulation, but rather makes clear that reasonable doubt should be based on reason rather than speculation. State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

Our Supreme Court has reviewed various jury charges that have required reason to be the basis of a finding, of reasonable doubt. In Derrico, the court concluded that a charge that defined reasonable doubt as a doubt “for which you can, in your own mind, conscientiously give a reason”; id., 171 n.4; did not, when taken as a whole, dilute the state’s burden of proof or shift that burden to the defendant. Id., 170-71. The court read that language instead as defining the term reasonable doubt as one founded on reason as opposed to speculation. Id., 171. Similarly, in State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986), our Supreme Court concluded that a definition of reasonable doubt as a “doubt for which a valid reason can be assigned” merely provided a method by which jurors could test the reasonableness of a doubt. The court viewed the charge given as a whole and determined that the jury was sufficiently guided. Id., 346.

More recent challenges to language similar in content to that found in Derrico and Findlay have also been rejected by our Supreme Court. See, e.g., State v. Campbell, supra, 225 Conn. 661 (reasonable doubt is doubt for which valid reason can be assigned); State v. Gomez, 225 Conn. 347, 353 n.8, 622 A.2d 1014 (1993) (reasonable doubt is “a doubt for which a reasonable man or woman can give a valid reason”); State v. Adams, 225 Conn. 270, 291, 623 A.2d 42 (1993) (reasonable doubt is doubt for which valid reason can be assigned); State v. Thomas, 214 Conn. 118, 119 n.1, 570 A.2d 1123 (1990) (reasonable doubt is doubt for which valid reason can be assigned); State v. Lytell, 206 Conn. 657, 664-65, 539 A.2d 133 (1988) (“a reasonable doubt means this: It is a doubt for which a reasonable person can give a valid reason”). Likewise, the charge here did not improperly require the jurors to articulate a reason in order to find the defendant not guilty, but merely defined reasonable doubt as a doubt based on reason.

We note also that even if the charge were construed to be an articulation charge, the defendant would still not prevail on his claim. While our Supreme Court has disapproved of reasonable doubt charges that set forth a definition of reasonable doubt as “ ‘a doubt for which if necessary you can give an explanation . . . to your fellow jurors in the jury deliberation room’ ”; State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992); it nonetheless has held that such a charge does not constitute reversible error in an otherwise adequate charge. See also State v. Ireland, 218 Conn. 447, 457, 590 A.2d 106 (1991).

Here, the charge as to reasonable doubt constituted a more than adequate charge on that important issue. The trial court correctly charged the jury on the concept of reasonable doubt in such a manner as to make clear to the jury the heavy burden borne by the state in a criminal prosecution. The trial court included in its instructions to the jury, in substance, those requests that were accurate statements of legal principles and omitted only those portions that were not legally correct. The charge by the trial court correctly defined for the jury the concept of reasonable doubt and adequately incorporated those of the defendant’s request to charge to which he was entitled.

The defendant’s attack on the reasonable doubt charge as given is without merit.

B

The defendant next posits that the charge that he sought on the issue of reasonable doubt was a correct statement of the law and that he was, therefore, entitled to receive the charge that he requested. We disagree with the defendant’s basic assertion that his request contained a correct statement of the law.

The defendant relies on the majority opinion in State v. Campbell, supra, 225 Conn. 661-62, as support for his claim that his request to charge was a correct statement of the law. Although Campbell does caution against the use of “potentially confusing” jury instructions that require jurors to articulate a reason for finding reasonable doubt, our Supreme Court found that such an error would not render an otherwise adequate instruction defective. Id.; see also State v. Jeffrey, supra, 220 Conn. 719. We cannot read the Campbell decision as adopting a legal philosophy that requires an affirmative instruction to the jury that it need not be able to articulate a reason for which the evidence fails to convince them beyond a reasonable doubt of the defendant’s guilt. The defendant’s reliance on State v. Campbell, supra, 661-62, is therefore misplaced.

Our opinion is buttressed by the fact that at the time that Campbell was decided, two cases were pending before the Supreme Court involving similar issues of claimed articulation requirements within jury instructions on reasonable doubt. In State v. Johnson, 228 Conn. 59, 60, 634 A.2d 293 (1993), the Supreme Court dismissed the defendant’s appeal concerning claimed improprieties in a jury instruction that defined reasonable doubt as a doubt “for which a valid reason may be assigned.” The Supreme Court concluded that its original grant of certification had been improvidently granted and that the issue was “fully considered and properly resolved against the defendant in the well reasoned opinion of the Appellate Court” where it was determined that such a charge was not erroneous. Id., 61. In State v. DePastino, 228 Conn. 552, 572-73, 638 A.2d 578 (1994), the Supreme Court again adhered to its conclusion that an unpreserved claim, attacking a jury charge that included within it language that characterized a reasonable doubt as “a doubt for which a valid reason can be assigned,” is not constitutionally defective.

Thus, in the two cases decided since Campbell, the Supreme Court has yet to create a requirement that a reasonable doubt charge include an instruction that affirmatively states that no reason need be given in a juror’s mind for the reasonable doubt that the juror entertains. The defendant’s claims to the contrary are unpersuasive.

II

The defendant next asserts that the trial court improperly permitted testimony that the defendant’s sister lived next to the property where the gun allegedly used in the shooting was found. The defendant posits that this testimony was (1) irrelevant, or (2), if relevant, more prejudicial than probative. We disagree with both claims.

Certain additional facts are necessary to a proper resolution of this issue. Clary testified that after Gooch had been identified by the victim as one of the perpetrators and had been taken into custody by the Waterbury police, Gooch told the police where the gun that had been displayed by Hurtle had been abandoned. As a result of receiving that information, Clary went to the premises of the Waterbury Printing Company on Willow Street and recovered the gun from the place to which Gooch had directed him. The state then attempted to establish that the defendant’s sister lived next door to those premises. The defendant objected to this evidence on two grounds, asserting first that it was irrelevant and second, that even if relevant, it was highly prejudicial. The trial court rejected both grounds and permitted the testimony.

A

The defendant’s first assertion is that the testimony concerning the defendant’s sister was irrelevant. We disagree.

“Our examination of the question of whether the trial court properly admitted into evidence testimony that the defendant claimed lacked relevance must be examined against the backdrop of what has long been our law, that the trial court is vested with broad discretion in resolving questions of relevancy. State v. Santiago, 224 Conn. 325, 326, 618 A.2d 32 (1992); State v. Maxwell, 29 Conn. App. 704, 715, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993).” State v. Ulen, 31 Conn. App. 20, 28, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). “[Ejvidence is relevant if it has a tendency to establish the existence of a material fact. State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978). One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. . . . No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason .... State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). State v. Woodson, 227 Conn. 1, 16, 629 A.2d 386 (1993).” (Internal quotation marks omitted.) State v. Wieler, 35 Conn. App. 566, 576-77, 645 A.2d 1032, cert. denied, 231 Conn. 933, 649 A.2d 256 (1994).

“ ‘Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree, so long as it is not prejudicial or merely cumulative.’ ” State v. Fleming, 36 Conn. App. 556, 566, 651 A.2d 1341 (1995), quoting State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985). “ ‘The governing principle with respect to this issue is that relevant evidence is admissible unless excluded for some reason of policy. “Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent.” State v. Sharpe, [supra, 195 Conn. 659]; State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975).’ State v. Silveira, 198 Conn. 454, 474-75, 503 A.2d 599 (1986).” State v. Finley, 34 Conn. App. 823, 829, 644 A.2d 371, cert. denied, 231 Conn. 927, 648 A.2d 880 (1994).

Here, the defendant was charged with participating in a series of crimes that involved the use of a gun to force the victim into the automobile and later to wound him. There was direct evidence of the participation by the defendant in the commission of these crimes. There was also direct evidence of the fact that the gun that was used in the perpetration of these offenses was found on property adjacent to the building in which the defendant’s sister lived. Thus, there was evidence before the jury that the defendant had been a participant in these offenses in which the gun that was found had played an integral part. The evidence that the defendant’s sister lived at the property adjacent to that on which the gun was found one day after the crime, permitted the jury to infer that the defendant was familiar with the area and provided a nexus between the gun used and the area in which it was found. Thus, the trial court did not abuse its considerable discretion in admitting testimony that the defendant’s sister lived next door to the property where the gun was abandoned.

B

As a second string to his bow as to the claimed inadmissibility of this testimony, the defendant asserts that the prejudicial effect of the evidence outweighed its probative value. We are unpersuaded.

Our Supreme Court has outlined four situations where the probative value of evidence may be outweighed by its prejudicial effect on the defendant: “(1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counter-proof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) State v. Greene, 209 Conn. 458, 478-79, 551 A.2d 1231 (1988), quoting State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). “ ‘Prejudice is not measured by the significance of the evidence that is relevant but by the impact of that which is extraneous.’ ” State v. Battista, 31 Conn. App. 497, 515, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993), quoting State v. DeMatteo, supra, 703. “The trial court, if called upon to rule on a question of prejudice, must determine whether the adverse impact of the challenged evidence outweighs its probative value.” State v. Crafts, 226 Conn. 237, 255, 627 A.2d 877 (1993).

While the defendant does not clearly set forth under which of the four categories he claims that the testimony as to the location of the defendant’s sister’s home would fall, we do not believe that it falls within the scope of any of the categories listed by the Supreme Court in State v. Greene, supra, 209 Conn. 478-79.

The evidence that the defendant’s sister lived next to the property where the gun was found the day following the crime, permitted the jury, as we have already stated, to infer that the defendant had knowledge of the area and provided a nexus between the defendant and the area where the gun was found. Given the fact that the defendant had been directly identified as one of the participants in the crimes, the evidence as to his familiarity with the area where the gun was a factor that the jury could determine corroborated his participation. The trial court did not abuse its considerable discretion in determining that the evidence was more probative than prejudicial.

The trial court properly admitted Clary’s testimony that the defendant’s sister lived next door to the property on which the gun allegedly used in the crime was found.

Ill

The defendant next asserts that the trial court improperly failed to suppress from use as evidence the nine millimeter gun recovered by Clary from the Waterbury Printing Company property. In support of this claim, the defendant asserts that (1) the identification process was impermissibly tainted by the actions of the assistant state’s attorney, and (2) the state failed to lay a proper foundation for the admission of the gun by showing an unbroken chain of custody. We disagree.

A

The defendant asserts that the victim’s identification of the gun was tainted by an unnecessarily suggestive prior identification. In support of this claim, the defendant relies on State v. Gordon, 185 Conn. 402, 412-17, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). We reject the assertion made by the defendant that the same rule that applies to the identification of a defendant as the person who committed a crime applies to the admissibility of an inanimate object.

Certain additional facts are necessary to an understanding of our resolution of this issue. At trial, the victim identified the gun as the one that was pointed at him by Hurdle during his kidnapping. The victim stated that Gooch had shown him this gun on several occasions at the house where both the victim and Gooch were living prior to the abduction. The victim testified that he had handled the gun himself and was further able to identify the gun from its size, shape, color, markings and handle. He also testified that although there were now initials or numbers on the weapon, he did not recall seeing those on the gun when he had handled it at Gooch’s house or when it was used by Hurdle during the commission of the crime.

It was further revealed that, prior to trial, the victim described the gun to the assistant state’s attorney and attempted to draw a picture of the weapon. Several days later, the assistant state’s attorney showed the victim a photograph of a gun and the victim identified it as a picture of the gun that he had been shown by Gooch and that was displayed by Hurdle at the time of the abduction. The photograph also contained the names of Gooch and the victim as well as a date and a case number. The photograph was turned over to the defendant and was offered in evidence by him.

On May 27,1992, the defendant moved to suppress the gun that had been previously admitted as a full exhibit claiming that the testimony adduced subsequent to the gun’s being admitted into evidence indicated that the identification of the gun by the victim was impermissibly tainted by his having been shown a photograph of the gun that contained not only the gun but the names of the victim and Gooch as well as the case number and the date. The defendant claimed that he was entitled to suppression of the gun on due process grounds. The trial court rejected the defendant’s claim positing that the gun was admitted into evidence because of the certitude of identification by the victim on the basis of his prior knowledge of the gun. The trial court determined that the identification of the gun was, therefore, reliable.

Our research, as did that of the defendant, fails to disclose the existence of a case where the same rule was applied to the identification of an exhibit as was applied to the identification of a person. The genesis of the rule requiring that the identification of persons accused of crime be free of the taint of a suggestive procedure comes from an acknowledgment that identification by an eyewitness of a person as the one who perpetrated the crime “is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). It further stems from an understanding that “ ‘[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.’ ” Id., 229. Moreover, the issue of identification of the defendant as the perpetrator of the crime is an element of all offenses and thus impacts directly on a defendant’s right to due process of law since an impermissibly suggestive identification procedure may be conducive to an irreparable mistaken identification. State v. Gordon, supra, 185 Conn. 412. We decline to elevate the identification of an inanimate object to one of constitutional magnitude because in our view, the ordinary rules governing the admissibility of objects afford the defendant adequate protection.

B

The defendant also claims that the trial court improperly admitted the gun as a full exhibit without requiring the state to establish an unbroken chain of custody. The defendant claims that a break in the chain of custody occurred when the state failed to call Gooch to testify as to the information that he gave to Clary that in turn led Clary to recover the gun. We disagree.

A trial court is vested with wide and liberal discretion in determining whether to admit or exclude physical evidence. State v. Pollitt, 205 Conn. 61, 88, 530 A.2d 155 (1987); State v. Piskorski, 177 Conn. 677, 699, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). In order to be admitted into evidence, “[a]n object connected with the commission of a crime must be shown to be in substantially the same condition as when the crime was committed . . . State v. Pollitt, supra, 88. “The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it in making its determination . . . there is no rule which requires the state to produce as witnesses all persons who were in a position to come into contact with the substance sought to be introduced into evidence.” (Internal quotation marks omitted.) State v. Piskorski, supra, 697. “The state’s burden is satisfied by showing that the exhibit is the actual item in question . . . and that there is a reasonable probability that the item has not been changed in any important respect.” (Citation omitted.) State v. Rumore, 28 Conn. App. 402, 410, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992); see also State v. Greene, supra, 209 Conn. 479.

No claim was made by the defendant that the gun had been tampered with nor was any evidence offered to promote such a theory. Additionally, the defendant did not claim that the gun that was introduced into evidence was not the gun found behind the printing company after Gooch had disclosed where it had been abandoned. The trial court found that the victim had seen the gun before the crime in the possession of Gooch; it also determined that the victim had identified several guns from certain defendant’s exhibits that appeared similar to the one that he identified as the one used in the commission of these crimes. The trial court determined that the gun was properly admitted “because of the witness’ certitude, the witness’ prior knowledge of — his prior intimacy with the gun and the fact that the gun is something that — being passed from party to party doesn’t change its shape and it doesn’t change its format. So I think that the state has shown an adequate basis for the identification of the gun.”

We conclude that at the time that the gun was admitted into evidence a sufficient foundation had been laid for its admission and that the trial court applied the proper standard in admitting it into evidence and in denying the defendant’s subsequent motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       The defendant was charged in an information in seven counts. The trial court granted the defendant’s motions for judgment of acquittal with respect to two counts and the jury found the defendant not guilty as to three of the remaining counts.

       General Statutes § 53a-92 (a) provides in pertinent part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him . . . .”

       General Statutes § 53a-8 (a) provides: ‘ ‘A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument

       In his request to charge, the defendant asked the court to include the following in its charge on reasonable doubt: “The law does not require that a juror be able to either give or articulate a reason for the reasonable doubt that the juror may feel. We may have a doubt in relation to things about which we can give no reason, and of which we have imperfect knowledge. It is the want of sufficient knowledge in relation to the facts allegedly constituting the guilt of the accused that causes the juror to doubt. It is the want of information and knowledge that creates the doubt. It is the lack of information and knowledge satisfying the members of the jury of the guilt of the accused with that degree of near certitude required by the law which constitutes a reasonable doubt. If you the jurors are not satisfied of the guilt of the accused with such degree of near certitude as the law requires, you must acquit whether you are able to give a reason why you are not satisfied to that degree of near certitude or not.”

       The trial court charged on the issue of reasonable doubt as follows: “The term reasonable doubt has no technical or unusual meaning. You can understand its real meaning by placing emphasis upon the word reasonable. A reasonable doubt is not a doubt raised by someone for the sake of raising a doubt. It is not a guess, it is not a surmise, it is not a conjecture. A reasonable doubt is not hesitation springing from feelings of sympathy or pity. A reasonable doubt is a doubt founded upon the evidence. It is a doubt which grows out of the evidence or lack of evidence in a case. It is a doubt for which you, in your own minds can give a reason based upon the evidence or lack of evidence. A reasonable doubt is a square and honest doubt. It is the kind of doubt that would make a reasonable person hesitate to act. If the facts that you find can be explained in any way other than that the defendant is guilty, you must, of course, render your verdicts in his favor. Absolute certainty in the affairs of life, except for death and taxes, however, is almost never obtainable. And the law does not require absolute certainty on the part of the jury to authorize guilty verdicts. What is required is that guilt be proved beyond a reasonable doubt. Proof beyond a reasonable doubt, ladies and gentlemen, is proof of a sufficiently convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs.” (Emphasis added.)

       The defendant, as far as relevant to this issue, excepted as follows: “The first exception is in reference to the court’s charge on reasonable doubt where the court said that reasonable doubt is doubt for which you can give a reason in your own mind arising out of the evidence or lack of evidence.
      “As I indicated in my request to charge, as indicated in the state cases cited in my request to charge, it is our position that a jury may feel a reasonable doubt as to the guilt of the defendant and yet find it difficult to state the reason for the doubt either to himself or to the other jurors. And a juror may have difficulty in articulation. . . . [T]he court should amend that portion to at least add reasonable doubt for which you feel or give a reason in your own minds arising out of the evidence or lack of evidence. So that the jury is clearly told that it is not necessary that a reasonable doubt needs to be articulated to themselves or to each other.”

        State v. Gordon, supra, 185 Conn. 413, holds that “ ‘[i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the “totality of the circumstances.” ’ ”

       In the course of the proceeding the defendant indicated that his “motion ... to suppress the identification of the gun, state’s exhibit K, [was based] on due process grounds . . . .” He further argued that it was his position “that the showing of such a photograph to [the victim] would be tantamount to and similar to conduct of police, if police were to show a photograph of one person ... to a person. It has the same effect as far as tainting the identification of the person here, it’s tainting the identification of the gun. I don’t see any difference, although I couldn’t find any cases between the issue of identification of a person instead of identification of [a] gun.”

       We note again that “[d]ue process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error [that suggest themselves to the ingenuity of counsel].” (Internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 773 n.8, 653 A.2d 216 (1995), quoting State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991); State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982).

       We also note that the argument made by the defendant attacking the identification of the gun by the victim is one that is more properly addressed to the weight to be afforded to the evidence by the trier of fact and not to its admissibility. The determination of the credibility of a witness and the weight to be afforded to his or her testimony is an issue for the trier of fact. State v. Butler, 36 Conn. App. 525, 530, 651 A.2d 1306 (1995).


author: Foti, J.

text:
    State of Connecticut v. Booker T. Torrence
    (13242)
    Dupont, C. J., and Foti and Spear, Js.

      Argued December 8, 1994
    decision released April 11, 1995

      Louis S. Avitabile, special public defender, with whom, on the brief, was Meryl Anne Spat, for the appellant (defendant).

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

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). He was sentenced to a term of imprisonment of fourteen years, to be served consecutive to a sentence the defendant was then serving. The defendant claims that (1) the evidence was insufficient to support his conviction of robbery in the first degree, and (2) the trial court improperly denied his request to charge the jury on a claimed lesser included offense of larceny in the sixth degree. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On May 25, 1993, at approximately 7:30 a.m., the defendant and a second man walked into the Coastal convenience store located on Meriden Road in Waterbury. The second man walked to the side of the cash register and the defendant walked to the counter where he told the store manager to “give him everything in the cash register.” The manager looked at the defendant and asked him if he was joking. The defendant’s face became stern and he took an opaque plastic bag out from under his jacket and pointed it from his hip. The outline of a tubular object protruded through the bag. The defendant again demanded the money in the cash register. The store manager gave him all of the money, which amounted to a sum between $75 and $275. The two men then left the store. The incident was recorded by the store video surveillance camera.

I

The defendant first claims that the evidence was insufficient for the jury to have found him guilty of robbery in the first degree. He does not argue that he was not the person who took the money from the counter after showing the plastic bag with the tube-shaped object in or under it. Rather, he argues that the evidence was insufficient for the jury to have been able to find, beyond a reasonable doubt, that he represented by his conduct that he was threatening the use of a firearm. We do not agree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). “ ‘In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ ” State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). “The jury’s function as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist.” State v. Wideman, 36 Conn. App. 190, 203, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995). As a reviewing court, we must decide whether, on the facts established and inferences that could be reasonably drawn from those facts, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991).

We agree that the jury may not resort to speculation and conjecture in drawing inferences from circumstantial evidence; State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991); and that “inferences which do not have a basis in facts established by the evidence cannot be drawn or relied upon to sustain a verdict.” State v. Jackson, 176 Conn. 257, 264, 407 A.2d 948 (1978). We do not, however, agree that the evidence in this case fails to establish that the defendant threatened the use of what he represented by his conduct to be a firearm.

Section 53a-134 (a) (4) provides that “[a] person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery ... he . . . displays or threatens the use of what he represents by his words or conduct to be a . . . firearm . . . .” The evidence of the defendant’s conduct demonstrated that the defendant took an opaque plastic bag out from under his jacket. The bag had a tubular object protruding from it that could easily be said to have been intended to represent the barrel of a gun. The defendant pointed the bag in the direction of the store manager. The jury also had before it a videotape of the incident. This evidence was more than sufficient for the jury to have reasonably inferred that the defendant at least wanted the store manager to believe that he had a firearm.

The defendant argues that if the object was pointed, it was pointed at the counter and not at the store manager. The pointing, whether at the counter or at the victim, took place from the hip. Jurors do not live in a fishbowl. The defendant’s stern look and his motion with the bag, under the circumstances as they existed, may properly have been considered factors consistent with the representation and threatened use of a firearm. The test is not whether the defendant actually had a firearm; State v. Arena, 33 Conn. App. 468, 476, 636 A.2d 398 (1994); but whether he displayed or threatened the use of what he represented by his conduct to be a firearm. General Statutes § 53a-134 (a) (4). There is no requirement that the threat be explicitly uttered. State v. Littles, 31 Conn. App. 47, 54, 623 A.2d 500, cert. denied, 227 Conn. 902, 630 A.2d 72 (1993).

The defendant argues that the victim was not allowed to testify as to whether he thought the tube-shaped object in the bag was a gun. The defendant asserts that if the victim was not allowed to speculate as to what the object was, the jury could not, “on the same evidence . . . have concluded beyond a reasonable doubt that the defendant specifically threatened the use of a firearm.” We find this argument to be without merit. What the victim thought had no relevance to the issue, and the jury did not have to speculate as to whether the defendant actually had a gun. The jury had to find proven beyond a reasonable doubt only that the defendant displayed or threatened the use of an object that he represented by his conduct to be a firearm. The jury’s determination in this regard did not require a leap of faith not founded in the evidence.

The facts of this case are similar to the facts in the cases of State v. Arena, supra, 33 Conn. App. 468, and State v. Bell, 188 Conn. 406, 450 A.2d 356 (1982). In Arena, the defendant entered a convenience store, pointed an object inside a plastic bag at the clerk, and demanded money. The victim testified that she thought the object in the opaque plastic bag looked like a gun and that it was round and about fifteen or sixteen inches long. We noted that “based on the way the defendant held the object in the bag, the jury could reasonably have inferred that the defendant either carried a firearm or wanted the store clerk to think he had a firearm.” State v. Arena, supra, 477. In Bell, no firearm was actually seen, but the victims did see an object bulging from under the defendant’s sweatshirt, which was pointed at them. Some of the victims described it as big and long, concluding that it was a gun or firearm of some sort. State v. Bell, supra, 414-15. While not necessary for the jury’s determination, the jury here could reasonably have inferred that the victim did indeed think that the defendant had a firearm.

On the basis of the facts, as could reasonably be found, and the reasonable and logical inferences that the jury could draw from those facts, we conclude that there was sufficient evidence to maintain the defendant’s conviction on the charge of robbery in the first degree.

II

The defendant claims that the trial court improperly denied his request to charge on a lesser included offense of larceny in the sixth degree. Specifically, he argues that the evidence relating to whether he threatened the use of immediate physical force and whether he represented by his conduct the threatened use of a firearm was sufficiently in dispute so as to warrant a charge on the lesser included offense.

The test for determining when the defendant is entitled to a charge on a lesser included offense was set forth in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). “A defendant is entitled to an instruction on a lesser included offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id. The state argues that the defendant has not satisfied the fourth condition of the Whistnant test. We agree.

“In determining whether the defendant was entitled to a lesser included offense charge, we view the evidence in a light most favorable to the defendant’s request. . . . Evidence is sufficiently in dispute where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. . . . Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence . . . from which inferences can fairly be drawn. . . . They should not be encouraged to engage in speculation.” (Citations omitted; internal quotation marks omitted.) State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991); see State v. Manley, 195 Conn. 567, 579, 489 A.2d 1024 (1985).

The element that differentiates robbery in the first degree under General Statutes § 53a-134 (a) (4) and larceny in the sixth degree is the threatened use of what was represented by the defendant through his conduct to be a firearm. This element was not sufficiently in dispute at trial to permit the jury to find the defendant innocent of the greater offense but guilty of the lesser offense. As discussed in part I of this opinion, the evidence at trial showed that on the day of the robbery, the defendant walked into the Coastal convenience store and demanded that the store manager “give him everything in the cash register.” When the manager did not initially comply, the defendant’s face became stern and he pulled out a plastic bag with a tubular object protruding through it. The defendant then repeated his demand for money. This testimony was supported by the videotape from the store’s surveillance camera. While the defendant argued, during closing argument, that these actions did not sufficiently portray the use or threatened use of a firearm, he failed to present any evidence that put these facts in dispute. Common sense and common understanding would preclude the conclusion that the conduct of the defendant was, in any way, inconsistent with the threatened use of what was represented to be a firearm. Given this evidence, the jury could not consistently find the defendant innocent of robbery in the first degree and guilty of larceny in the sixth degree.

The defendant relies on State v. Dennison, 8 Conn. App. 454, 513 A.2d 184, cert. denied, 201 Conn. 812, 517 A.2d 630 (1986), to support his argument that a lesser included instruction should have been given. In Dennison, the defendant was convicted of violating § 53a-134 (a) (3), which deals with the commission of a robbery while using or threatening the use of a dangerous instrument. Id., 455. In that case, the defendant put something up against the victim while demanding money, but the victim could not tell whether the defendant did, in fact, have a dangerous instrument. Id., 457-58. On the basis of that testimony, this court concluded that the trial court properly instructed the jury on the lesser included offense of robbery in the third degree since the element of the actual use of a dangerous instrument was sufficiently in dispute. Id., 457. Dennison is distinguishable from the present case because this case involves a violation of § 53a-134 (a) (4), which deals with the commission of a robbery while displaying or threatening the use of what is represented to be a firearm. Unlike in Dennison, the state was not required to prove the actual possession of a firearm in this case. It was required to prove only that the defendant’s conduct established the threatened use of what he represented to be a firearm, and, as discussed above, that element was not sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser offense.

The trial court stated that “the existing evidentiary record does not satisfy the so-called fourth prong of Whistnant.” We agree. We therefore conclude that the defendant was not entitled to a jury instruction on larceny in the sixth degree as a lesser included offense.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury returned not guilty verdicts on a second count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and also on count three charging the defendant with larceny in the third degree in violation of General Statutes § 53a-124 (a) (1). These counts deal with an alleged incident that occurred as the defendant was leaving the store and the facts are not relevant to this appeal.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 . . . he . . . (4) displays or threatens the use of what he represents by his words or conduct to be a . . . firearm . . .

       The defendant’s objection to the victim’s testimony on this point was sustained.

       General Statutes § 53a-125b (a) provides in relevant part: “A person is guilty of larceny in the sixth degree when he commit's larceny as defined in section 53a-119 and the value of the property . . . is two hundred fifty dollars or less.”
      General Statutes § 53a-119 defines “larceny” as follows: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”


author: Dupont, C. J.

text:
    State of Connecticut v. Otis Jackson
    (13172)
    Dupont, C. J., and Landau and Hennessy, Js.

      Argued February 6
    decision released April 11, 1995

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Russell Zentner, deputy assistant state’s attorney, and, on the brief, John T. Redway, state’s attorney, for the appellant (state).

      Richard F. Kelly, public defender, for the appellee (defendant).
   Dupont, C. J.

The issue presented in this appeal is whether the trial court improperly granted the defendant’s motion to dismiss after the state refused to disclose the identity of the informant who had introduced an undercover police officer to a drug dealer, alleged to be the defendant. The informant was not present at the time of the criminal act alleged here. The court granted the state permission to appeal from the judgment of dismissal. We reverse the judgment of dismissal and remand the case for further proceedings.

The defendant was charged with violating General Statutes § 21a-278 (b). He pleaded not guilty and elected a jury trial.

During jury selection, the state’s attorney learned for the first time that the undercover police officer, who was going to testify as to the purchase of cocaine from the defendant, had been introduced to the defendant by a confidential informant. The state immediately informed defense counsel of the existence of the confidential informant.

The state then made an offer of proof of the underlying facts to show that disclosure of the informant’s name was not required. The state indicated that the undercover police officer, less than one hour before attempting the undercover buy, reviewed at least eight photographs of known narcotics dealers, including a photograph of the defendant. The officer then went to an establishment known as Mac’s Safari Cafe and met with a confidential informant. The informant introduced the officer to a person, allegedly the defendant, who, according to the informant, was a drug dealer. The informant told that person, “This is my cousin, take care of him,” referring to the undercover agent.

The informant then walked away, leaving the officer with the drug dealer. After a few minutes, the dealer and the officer entered the men’s room, and the officer purchased cocaine from the dealer. The officer left the bar shortly afterward and met with other officers at a prearranged location. Within one hour of the transaction, he looked at an array of photographs of similar looking individuals and identified the defendant as the person from whom he had purchased the cocaine. It is apparent from the record that no one except the undercover police officer and the confidential informant could offer eyewitness testimony on the issue of the identity of the individual.

The defendant had indicated throughout voir dire and continued to indicate during the course of the offer of proof that his claim at trial would be mistaken identity and that he had not been at Mac’s Safari Cafe that night. No motions were made by the defendant or the state pursuant to Practice Book §§ 763 or 764 that the defendant would be presenting a defense of alibi.

After the state’s offer of proof, the defendant moved for disclosure of the identity of the confidential informant without any showing as to why disclosure was necessary. The state refused to disclose the informant’s identity and maintained that it would not, and argued that any prejudice to the defendant resulting from nondisclosure of the informant could be remedied with a Secondino charge. The court stated that disclosure of the name of the informant was absolutely required in cases where the defendant claims that he is a victim of mistaken identity, and the informant does something more than merely introduce the defendant. The court also asserted that the belated disclosure by the police regarding the involvement of the confidential informant prejudiced the defendant’s preparation for trial. The court then granted the defendant’s motion to dismiss the charge against him.

The state argues that the basis of the trial court’s ruling was the court’s improper view of the law, namely, that a claim of mistaken identity mandates the disclosure of a confidential informant’s identity. The state further argues that the burden was on the defendant to present facts in support of its request of disclosure, not on the state to present facts in support of its refusal to disclose, and that the court used an incorrect standard of proof to test the need for disclosure. The state also argues in the alternative that the trial court lacked discretion to dismiss the case without further inquiry into the facts and applicable law. The defendant counters that the trial court correctly ordered the state to disclose the informant’s identity as a matter of fundamental fairness, in light of the unexpected disclosure of the existence of the informant and in light of the defendant’s claim of mistaken identity. We agree with the state.

The state directs us to several federal cases as well as to cases from other states to support its argument that disclosure is not necessary in a case such as this one, where the informant arguably did more than merely introduce the defendant, but did not witness or actually participate in the crime. Because, however, we hold that the trial court did not conduct an appropriate balancing test under Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623,1 L. Ed. 2d 639 (1957); we need not determine whether the facts of this case would require disclosure.

“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Id., 59. “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Id.

One limitation on this privilege arises from “the fundamental requirements of fairness. Where the disclosure of an informant’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” (Emphasis added.) Id., 60-61. Thus, when disclosure is required, it is not because of any police misbehavior that must be the subject of a sanction.

There is “no fixed rule with respect to disclosure .... The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Emphasis added.) Id., 62.

“Under the Roviaro balancing test, case law has delineated the extent to which disclosure ‘might have been helpful to the defense.’ . . . Before a court will compel disclosure, the informant typically must be a participant in the alleged crime or an eyewitness thereto.” (Citations omitted; emphasis in original.) State v. Lee, 30 Conn. App. 470, 479, 620 A.2d 1303 (1993), aff'd, 229 Conn. 60, 640 A.2d 533 (1994). If the informant, in addition to being a participant or an observer of the crime, claims that the defendant was not the person involved in the crime, disclosure is, of course, all the more necessary. Roviaro v. United States, supra, 353 U.S. 64-65. “By contrast, courts generally agree that if the informant provides information to law enforcement officers without any further involvement, disclosure must yield to the protection of the informant.” State v. Lee, supra, 479. In cases in which the defendant has distinctly invoked the defense of entrapment, or where the testimony of the informant might show entrapment, disclosure is favored. Roviaro v. United States, supra, 64; State v. Lee, supra, 480. However, “[mjere speculation that the informant’s inf ormation will be helpful to the defense is not sufficient to mandate disclosure . . . State v. Richardson, 204 Conn. 654, 663, 529 A.2d 1236 (1987); see also State v. Harris, 159 Conn. 521, 529, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 (1971). “The defendant bears the burden of demonstrating the need for disclosure of an informer’s identity.” State v. West, 178 Conn. 444, 446, 423 A.2d 117 (1979).

The transcript of the proceedings in the trial court indicates that the trial court did not perform the required Roviaro balancing test, which requires an analysis of both the defendant’s need for disclosure of the identity of the informant and the state’s need to protect the informant from disclosure. The court here did not consider the state's interest in keeping the informant’s identity confidential. Furthermore, although the defendant reiterated his claim of mistaken identity, he made no showing as to the necessity of the disclosure of the informant’s identity. He had not filed a motion to suppress, or a notice of intent to present an alibi defense or any other affirmative defense that would require him to make a showing as to the identity issue. Identity is always an issue in any criminal case, and “the burden [is always] on the prosecution to prove the element of identification beyond a reasonable doubt.” State v. Tatum, 219 Conn. 721, 734, 595 A.2d 322 (1991). Here, the state’s attempt to prove identity would be weakened by its failure to call the informant as a witness. The defendant cannot demand disclosure on the basis that the informer is a “ ‘key witness for the prosecution.’ ” State v. Harris, supra, 159 Conn. 529.

Disclosure is not mandatory when a claim of mistaken identity is made. In this case, if the defendant had claimed he intended to present an affirmative defense such as entrapment, and had made a showing of the necessity of the disclosure of the informant’s identity to that defense, the balancing test of Roviaro, had it been conducted, might have made disclosure necessary. Defenses such as entrapment, unlike claims of mistaken identity, often require evidence of events occurring prior to the crime in which the informant may have participated. State v. Lee, supra, 30 Conn. App. 477-79. Claims of mistaken identity, in contrast, usually concern only the events of the crime itself and relate to whether the defendant was in fact the perpetrator. Identity of a defendant as the one who committed the crime is an element common to proof of all crimes, which the state must prove beyond a reasonable doubt.

Although Roviaro does authorize a trial court to dismiss a case where the court, after balancing the competing interests, deems disclosure necessary and the state still refuses to disclose, that authority exists only after the balancing test has been performed. Roviaro v. United States, supra, 353 U.S. 60-61. The defendant here, however, simply made a claim of mistaken identity and did not show any need for disclosure because of a preparation of a defense. Further, the court inappropriately placed the burden on the state to show how disclosure was not required in this particular case.

While there are no published cases in Connecticut that involve the exact circumstances of this case, Connecticut courts have held in other circumstances involving motions to dismiss in criminal cases that “this difficult and delicate process necessarily involves a careful consideration by the court of myriad factors that underlie a judgment regarding fundamental fairness.” State v. Dills, 19 Conn. App. 495, 504, 563 A.2d 733 (1989). A further inquiry into the application oí Roviaro to the facts of this case is necessary before a dismissal of this case would be warranted.

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

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less ten years nor more than twenty-five years.”

       The defendant made no motion to suppress the identification of the defendant by the undercover agent, although he indicated during the course of the state’s offer of proof that he intended to do so at a later time.

       Practice Book § 763 provides in relevant part: “Upon written demand filed by the prosecuting authority stating the time, date, and place at which the alleged offense was committed, the defendant shall file ... a written notice of his intention to offer a defense of alibi.”
      Practice Book § 764 provides in relevant part: “If the written demand and notice have been filed pursuant to Sec. 763, the prosecuting authority . . . shall file a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied upon to rebut testimony of any of the defendant’s alibi witnesses.”

       A Secondino charge, also known as “the missing witness rule,” provides that the failure of a party to produce a witness who it is in his power to produce and who would naturally have been produced by him permits the inference that the evidence of the witness would be unfavorable to the party’s cause. Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960).
      As applied to this case, it would mean that the jury could draw an inference unfavorable to the state if the state failed to call the informant as a witness. See United States v. Turbide, 558 F.2d 1053, 1058 (2d Cir. 1977).

       The transcript reveals the following:
      “[State’s Attorney]: The state is going to oppose [the defendant’s] request that we disclose the informant because I was going to represent that this informant did not negotiate the sale of the deal, did not hold the drugs, did not take the money, he just introduced them and they went to the bathroom.
      “The Court: That’s irrelevant.
      “[State’s Attorney]: The degree of participation, I would submit, is irrelevant, whether or not he participated in the transaction, but as far as Your Honor’s other requests—
      “The Court: Do you see the relevance? Do you see the relevance of the informant’s testimony on the issue of identity?
      “[State’s Attorney]: It’s relevant, Your Honor, but I don’t think it mandates disclosure.
      “The Court: It’s crucial.
      “[State’s Attorney]: Because the undercover officer here—
      “The Court: It’s crucial to a determination of the, number one, of the fairness of the identification procedure, the accuracy, the reliability of it. Number two, it’s mandated under the sixth amendment, fundamental fairness.”

       The court’s articulation as to the reasons for granting the motion to dismiss is as follows: “[Defense counsel] has said that via motion to suppress he would seek to explore the reliability of this particular identification, that that question is, the answer to that question is, quote, so intertwined with the testimony of the informant that it cannot be separated. It’s very likely that there was a mistaken identity on the part of the informant that could be transferred to the police officer. I mean, it’s easy to see how that could happen . . . . You know, the scenario that I set out is a very, is a very likely one. What if the informant was dealing with someone they thought was Mr. Otis Jackson? And that happens all the time in everyday life, people think they’re talking to someone but they’re talking to a brother or a cousin or a relative. WTio knows? We’ll never know. It’s all speculating on our part because we can’t get to that testimony . . . this is different than a case where an informant makes a mere introduction .... The single issue in this case is one of identity and has been since day one . . . and I couldn’t think of anybody with more crucial, more reliable testimony on that point, of whether this is a person that was in the bar, than the informant. He knew the person he was dealing with supposedly better than the police officer.”


author: Schaller, J.

text:
    State of Connecticut v. Scott Brian Wolff
    (12669)
    Lavery, Heiman and Schaller, Js.
    Argued January 11
    decision released April 11, 1995

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and William Bumpus, former assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of assault of a peace officer in violation of General Statutes § 53a-167c (a) (l), and one count of breach of the peace in violation of General Statutes § 53a-181 (a) (5). The defendant claims that the trial court improperly (1) permitted the defendant to represent himself without a determination that he was competent, (2) permitted him to proceed without an adequate waiver of counsel, (3) determined that sufficient evidence was introduced at trial from which a rational trier of fact could find the defendant guilty of breach of the peace, and (4) instructed the jury on the intent element of breach of the peace. We agree with the defendant as to the second claim. We also conclude, however, that the evidence was sufficient to support the breach of the peace charge.

The jury reasonably could have found the following facts. On May 26, 1992, at approximately 5 p.m., a Hartford police officer, who was patrolling in the downtown area of Hartford near the train station, stopped an individual who fit the description of a robbery suspect. Another officer arrived at the scene to assist shortly thereafter. While the two police officers were investigating the suspect, the officers’ attention was drawn to the defendant who was standing at the top of the stairs of the train station yelling obscenities at them. When the officers approached the defendant and attempted to calm him down, he began swinging his arms and fists at the officers, and hit one of them in the chest. In the ensuing struggle, the defendant and the two officers fell down the three steps of the top landing at the station. The struggle continued, but the officers were finally able to subdue and arrest the defendant. Both officers were treated at a hospital for their injuries.

At the time of his arrest, the defendant had outstanding criminal charges involving two separate incidents, one on December 20, 1991, and the other on May 26, 1992. In addition, the defendant had an appeal pending in this court.

During the pretrial proceedings, the defendant continually rejected the appointment of a public defender and insisted that he wanted to proceed pro se. At a pretrial hearing on July 7,1992, the court, over the defendant’s objection, appointed a public defender to assist him. The court assured the defendant that he could reject the public defender’s services, but that he would be appointed notwithstanding.

At a subsequent pretrial hearing, the defendant demonstrated his reluctance to utilize the services of the public defender who had been appointed for him by the court. When the court asked the defendant why he did not want the public defender’s assistance, the defendant said, “Because I can present the case better that he can.” When the court asked the defendant if he knew anything about the rules of evidence, the defendant said, “Yeah.” When the court asked the defendant where he received his training, the defendant replied, “The street.” The court informed the defendant that the public defender would remain as standby counsel and that he would assist him if he had any questions. The defendant pleaded not guilty and elected a jury trial.

The defendant proceeded pro se at every step of the trial process. In a pretrial proceeding in which the court suggested to the defendant that if an attorney was handling this case the attorney would make a motion to sever and ask that the two cases not be tried together because one could prejudice the other, the defendant replied, “It makes no difference to me, whatever the state decides as far as that goes.” During jury selection, the defendant demonstrated a lack of understanding of proper voir dire questioning and the need for selecting unbiased jurors. Furthermore, during the trial, the defendant interjected prejudicial testimony regarding two uncharged incidents, called and questioned adverse witnesses, and presented a conspiracy defense theory without any evidence to support it. After the defendant was found guilty by a jury in December, 1992, the court ordered the defendant to be committed for psychiatric evaluation and treatment pursuant to General Statutes § 17a-566.

The dispositive issue is whether the trial court properly determined that the defendant waived his right to counsel. A criminal defendant is guaranteed the right to assistance of counsel by the sixth and fourteenth amendments to the constitution of the United States; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); and by our state constitution. State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I); State v. Varricchio, 10 Conn. App. 265, 267, 522 A.2d 843 (1987). A criminal defendant also has the right to appear pro se in a state criminal trial if he voluntarily and intelligently decides to do so. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see also State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II); Gethers I, supra, 533. “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits.” Faretta v. California, supra, 835.

When faced with a defendant who is deciding to appear pro se, and who wishes to waive his right to counsel, it is vital that the trial court satisfy itself that the defendant is fully aware of the risks involved and makes the choice knowingly. Gethers II, supra, 197 Conn. 380-81. Our role as a reviewing court is to determine whether the defendant effectively waived his right to counsel. State v. Varricchio, supra, 10 Conn. App. 269.

The defendant claims that the trial court failed to comply with the provisions of Practice Book § 961. Although the defendant did not properly preserve this claim of error for appeal, noncompliance with a mandatory rule of practice constitutes plain error.* **** See State v. Quintana, 209 Conn. 34, 40, 547 A.2d 534 (1988); State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987); see also Practice Book § 4185. The defendant’s claim, therefore, is reviewable by this court under the plain error doctrine.

We conclude that the trial court failed to comply adequately with Practice Book § 961 (3), and therefore limit our discussion to the defendant’s argument on that section. The defendant asserts that he was not informed of the nature of the charges that he faced. Section 961 (3) requires that the court be satisfied that the defendant “[comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case . . . .” In an attempt to comply with § 961 (3), the court did advise the defendant of the penalties that he faced in light of the state’s charges, but it did not advise him of the elements of those crimes so as to inform him adequately of the nature of the charges against him.

The state argues that the trial court is entitled to presume that defense counsel has explained the nature of this offense in sufficient detail. State v. Blackwell, 9 Conn. App. 587, 597, 520 A.2d 634, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987), citing Gathers I, supra, 193 Conn. 537. In this case, however, the record clearly indicates that the defendant proceeded without the assistance of counsel from the inception of his court appearances. We cannot presume, therefore, that the defendant’s attorney had explained the nature of the offenses to the defendant. State v. Smith, 18 Conn. App. 368, 375, 588 A.2d 257 (1989).

For the foregoing reasons, we conclude “that the trial court failed to comply substantially with Practice Book § 961 (3). Because § 961 protects a defendant’s right to the assistance of counsel, as well as his corollary right to self-representation; Gethers I, supra, [193 Conn.] 534; substantial defective compliance with the rule requires reversal ‘even if no particular prejudice is shown and even if there is overwhelming evidence of guilt.’ State v. Varricchio, supra, [10 Conn. App.] 270.” State v. Smith, supra, 18 Conn. App. 377.

“Even though our resolution of this case on the issue of [adequate waiver of counsel] would appear dispositive because the other issues are unlikely to arise in a retrial, we must address the sufficiency of the evidence claim since the defendant would be entitled to an acquittal of the charge on which he claims insufficient evidence if he prevails on this claim. State v. Dunn, 26 Conn. App. 114, 123, 598 A.2d 658 (1991).” State v. Wolff, 29 Conn. App. 524, 527 n.4, 616 A.2d 1143 (1992). The defendant maintains that the state failed to present sufficient evidence to support his conviction for breach of the peace. Specifically, the defendant argues that the state failed to prove that he possessed the requisite intent to violate General Statutes § 53a-181 (a), and that the jury could not reasonably have found that his words constituted “abusive language” under the statute. We disagree.

“When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. ... We then determine whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Carpenter, 214 Conn. 77, 78-79, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992).

Because the language of the intent element of the breach of the peace statute is identical to the disorderly conduct statute, the Supreme Court’s interpretation of the disorderly conduct statute in State v. Indrisano, 228 Conn. 795, 640 A.2d 986 (1994), applies to the breach of the peace statute as well. In Indrisano, the court held that the requisite intent was to “cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety or harm.” Id., 810. The jury reasonably could have concluded beyond a reasonable doubt that the defendant possessed the requisite intent under the statute. The defendant viewed two police officers making a lawful arrest of an uncooperative suspect in a violent crime, and screamed vile language at the two officers. The officers attempted to calm the defendant, who immediately initiated an unprovoked physical assault upon both officers. Presented with this evidence, the jury reasonably could infer that the defendant possessed the intent to cause a breach of the peace pursuant to § 53a-181 (a).

The jury also could reasonably have found that the defendant’s words amounted to “abusive language” under General Statutes § 53a-181 (a) (5). The defendant confronted the officers in a public place; State v. Weber, 6 Conn. App. 407, 415, 505 A.2d 1266, cert. denied, 199 Conn. 810, 518 A.2d 771 (1986); he conducted an unprovoked verbal attack on the officers using vile language; State v. Mention, 12 Conn. App. 258, 265, 530 A.2d 645, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987); and his language and actions annoyed and alarmed people in the vicinity. State v. Battista, 10 Conn. App. 499, 502, 523 A.2d 944 (1987). The evidence was sufficient to permit the jury to have found that the defendant’s words constituted “abusive language” under the statute.

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

In this opinion the other judges concurred.

       General Statutes § 53a-167c (a) provides in pertinent part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer . . . is acting in performance of his duties, (1) he causes physical injury to such peace officer . . . .”

       General Statutes § 53a-181 (a) provides in pertinent part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (5) in a public place, uses abusive or obscene language or makes an obscene gesture . . . .”

       See State v. Wolff, 29 Conn. App. 524, 616 A.2d 1143 (1992).

       The portion of the transcript relevant to the defendant’s claim is as follows:
      “The Court: All right. For the record then I want to just question you to make sure that it’s clear about the fact that you’re representing yourself. You have a public defender assigned to you, I’m going to ask Mr. Delaney to remain as standby counsel.
      “The Defendant: Okay, Mr. Delaney can represent me.
      “The Court: Okay, he’s — you mean to represent you or to be standjby] counsel?
      “The Defendant: No, I mean he can standby, what ever you want to call it.
      “The Court: Standby counsel?
      “The Defendant: Standby counsel, yeah.
      “The Court: All right, he will be here to assist you if you want to ask him some questions.
      “The Defendant: Yeah, right.
      “The Court: My purpose here is to explain to you the consequences of your representing yourself. And the consequences are these, that you’re going to be facing an experienced lawyer who knows the rules of evidence and procedure. Who knows how to question witnesses and cross-examine, who has had many years of experience, legal training and you have none. Now if you want to represent yourself knowing the consequences you are facing twenty years in prison, if you get convicted, that’s your right. As long as we understand the consequences of your actions, that’s the only reason we are here. You have, every citizen has a right to defend and represent themselves, and you have that right like anybody else.
      “The Defendant: Ma’am, okay, we can start the trial.
      “The Court: Okay, all right and so you’ve had two years of college, two and a half years of college. Do you feel qualified to represent yourself?
      “The Defendant: Ma’am, I wouldn’t be standing here if I felt otherwise.
      “The Court: Now I have to ask you these questions for the record, you want to represent yourself, that’s fine but I am going to make sure this record reflects that you know what you’re doing and that’s the purpose for these questions. Now do you feel that you can represent yourself, yes or no?
      “The Defendant: Yes.
      “The Court: And you understand the consequences of your representing yourself?
      “The Defendant: Yes.
      “The Court: All right, we’ve already been through that, the fact that you can go to jail for twenty years, correct?
      “The Defendant: Yes.
      “The Court: All right. All right, knowing that you know the consequences, you know what you’re doing, the court is going to let you represent yourself.”

       Practice Book § 961 provides: “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;

        “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       This claim is also reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because we conclude that the trial court’s actions constituted plain error, we need not undertake a Golding analysis.

       We note that the defendant raised the issue of plain error review. Both parties, therefore, had the opportunity to brief and argue the claim of plain error. See Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994).