author: Glass, J.

text:
    State of Connecticut v. Alan Morrill
    (13143)
    Healey,. Callahan, Glass, Covello and Hull, Js.
    Argued October 9
    decision released December 15, 1987

      Michael Graham, for the appellant (defendant).

      Leak Hawley, deputy assistant state’s attorney, for the appellee (state).
   Glass, J.

The defendant, Alan Morrill, was convicted upon a conditional plea of nolo contendere to a substitute information charging him with illegal sale of a controlled substance in violation of General Statutes § 21a-277 (b). The plea of nolo contendere was entered following the denial by the trial court, Miaño, J., of: (1) a motion to suppress evidence challenging the facial validity of the warrant and sufficiency of the affidavit, under the standards of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317,76 L. Ed. 2d 527, reh. denied, 463U.S. 237,104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983); (2) a motion to reconsider the motion to suppress based on State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985); and (3) a supplemental motion to suppress pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). On appeal, the defendant claims that the trial court erred in denying each of his motions. We find no error.

The affidavit in support of the search warrant sets forth the following facts: On January 26,1985, the affi-ant, Lieutenant Nicholas C. Riccio of the Windsor police department, contacted Detective James Lavery of the Newington police department, at the request of Ric-cio’s shift commander. Lavery informed Riccio that he was “presently working with an extremely credible, reliable and confidential informant who is very knowledgable in the area of drug activity and sales and trafficking and has in the past given [him] information on drug activities that have resulted in arrests and convictions including a seizure of 32 pounds of marihuana.” Lavery told Riccio that sometime during the three day period of January 24 through January 26, 1985, the informant told Lavery that he had been present in an unattached garage behind 70-72 Wilson Avenue, Windsor, with the defendant who used the upper area of the garage as a loft residence. The informant told Lavery that while at the loft residence he had seen the defendant sell a high grade type of marihuana and during the transaction he heard the defendant state that he had ten pounds of marihuana to sell. Lavery told Riccio that he had corroborated the informant’s description of the premises by going to the address. Thereafter, Riccio went to the area of 70-72 Wilson Avenue, verified the existence of the unattached garage, and observed lights in the upper area of the garage which indicated to him that someone was using it as a residence. On January 26, 1985, a search warrant was issued for the Wilson Avenue garage loft premises. On January 27, 1985, officers of the Windsor police department, acting pursuant to the search warrant, searched the garage, seized what was later determined to be marihuana and arrested the defendant who was present during the search.

I

The defendant’s first claim is that the trial court erred in finding that the search warrant was based on sufficient probable cause under the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the Connecticut constitution. Initially, we recognize that “[p]robable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction; State v. Doe, 115 N.H. 682, 685, 371 A.2d 167 (1975); 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1978) §§3.1 (b) and 3.7; cf. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); (‘mere’ evidentiary materials may be validly seized as well as instrumentalities, prints, weapons and contraband); and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Emphasis in original.) State v. DeChamplain, 179 Conn. 522, 528-29,427 A.2d 1338 (1980). We note that “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” United States v. Ventresca, 380 U.S. 102, 106, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).

In State v. Kimbro, supra, we recently reviewed probable cause under article first, § 7, of our state constitution, as contrasted with the test for probable cause set forth in Illinois v. Gates, supra, which reflects the federal constitutional standard for determining probable cause. In Kimbro we recognized that the probable cause determination under the “totality of circumstances analysis set out in [Gates was less strict than the] two-prong analysis of Aguilar-Spinelli cases which predated Gates.” State v. Kimbro, supra, 221. Consequently, we concluded that article first, § 7, of the Connecticut constitution “affords more substantive protection to citizens than does the fourth amendment to the federal constitution in the determination of probable cause.” Id., 233. Accordingly, if the allegations in the affidavit meet the standards for determining probable cause that we applied in Kimbro, it will not be necessary for us to determine if the trial court erred in applying the “ ‘fluid’ concept of [probable cause] as set out in Gates . . . .’’Id., 235-36.

The Aguilar-Spinelli test for reviewing a magistrate’s finding of probable cause consists of two prongs: “ ‘The issuing [judge] must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.’ ” State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984); State v. Jackson, 162 Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972). The defendant claims that the affidavit in this case failed to satisfy both prongs of the Aguilar-Spinelli test.

The first prong of the test, often referred to as the “basis of knowledge” prong, examines the information provided by the informant to determine if it “relate[s] sufficient facts from which a judge reasonably could conclude that the informants based their allegations of criminal activity on sufficient underlying circumstances.” State v. Delmonaco, supra, 339. Upon careful examination of the affidavit we conclude that it adequately supports the trial court’s finding that the “basis of knowledge” requirement was satisfied. The affidavit states that the informant personally observed the defendant sell marihuana and he heard the defendant state that he had ten pounds to sell. From these statements the magistrate could reasonably have inferred that the defendant was engaged in the ongoing criminal activity of selling marihuana. See State v. Rose, 168 Conn. 623, 632, 362 A.2d 813 (1975). Furthermore, the informant accurately described the premises in question, which were unique in that an unattached garage behind a house was being used as a residence. See State v. Bember, 183 Conn. 394, 439 A.2d 387 (1981); State v. Jackson, supra.

The affidavit also satisfied the second prong of the Aguilar-Spinelli test, known as the “reliability” prong. “ ‘An affiant need not recite the precise factors on which he judged his informant credible or reliable. ... If they are apparent to the common-sense reader of the affidavit—whether by necessary implication or recital—it is enough.’ State v. Jackson, supra, 452-53.” State v. Telesca, 199 Conn. 591, 603, 508 A.2d 1367 (1986). Although it is only necessary that either part (a) or part (b) of this prong be satisfied, we find that both parts of the reliability prong were met in this case.

Part (a) of the second prong tests the credibility of the informant. The affidavit described the informant as “extremely credible, reliable and confidential,” and stated that he was “knowledgable in the area of drug activity and sales and trafficking and has in the past given . . . information on drug activities that have resulted in arrests and convictions including a seizure of 32 pounds of marihuana.” We have held that when an informant has a track record of providing reliable information, the “previous reliability of an informant, though not constitutionally required, is a basis for crediting his information.” State v. Romano, 165 Conn. 239, 244, 332 A.2d 64 (1973). Therefore, this information in the affidavit satisfied the credibility portion of the second prong of the Aguilar-Spinelli test, thus permitting a finding of probable cause. See State v. Del-monaco, supra.

Part (b) of the second prong tests the reliability of the informant’s information. We have held that “[o]ne of the most common factors used to evaluate the reliability of an informants information is the corroboration of the information by the police .... ‘The theory of corroboration is that a statement which has been shown true in some respects is reasonably likely to be true in the remaining respects. State v. Jackson, supra, 447.’ ” State v. Just, 185 Conn. 339, 361, 441 A.2d 98 (1981). The informant accurately described the premises at 70-72 Wilson Avenue, Windsor. This description was corroborated by Lavery of the Newington police department and affiant Riccio of the Windsor police department. See State v. Ferguson, 185 Conn. 104, 440 A.2d 841 (1981). We find that a common sense reading of the facts relating to part (b) also satisfied the “reliability” prong of. the Aguilar-Spinelli test. Because the affidavit contains sufficient evidentiary allegations to permit the issuing judge to make a finding of probable cause under the standards of Kimbro, it is not necessary for us to consider the probable cause determination under the less strict standards of Gates.

The defendant also claims that the affidavit in support of the search warrant should be invalidated because it contains “double hearsay.” We agree with the defendant that when the informant’s information is based on hearsay, the magistrate should not credit that information unless an independent basis for its reliability is established. See Spinelli v. United States, 393 U.S. 410, 425, 89 S. Ct. 584, 21 L. Ed. 2d. 637 (1969). In this situation, however, the information received by the affiant was not based on double hearsay from the informant; rather, the defendant claims that there is double hearsay because the informant’s information was relayed from Lavery to Riccio. A law enforcement officer, like the general public, “is generally presumed to be reliable, and thus no special showing of such reliabilty ... is necessary” to establish probable cause. 2 W. LaFave, Search and Seizure (1987) § 3.5 (a); United States v. Ventresca, supra, 110-11; United States v. Asselin, 775 F.2d 445 (1st Cir. 1985). Thus, the fact that Riccio received the informant’s information from Lavery does not affect the validity of the affidavit, and this claim is without merit.

II

Finally, the defendant claims that the trial court erred in denying him an evidentiary hearing pursuant to Franks v. Delaware, supra. Specifically, he claims that the affidavit in support of the search warrant which led to his arrest contained omissions and misstatements of material facts, entitling him to a further evidentiary hearing as to the truthfulness of the warrant, and that the trial court erred when it found that he did not make a sufficient offer of proof pursuant to Franks. We are unpersuaded.

In Franks v. Delaware, supra, 155-56, the United States Supreme Court held that a defendant may challenge the truthfulness of an affidavit supporting a search warrant, provided the defendant has made a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit . . . .’’If this statement is necessary to the finding of probable cause, “the Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. The court also stated that “[t]o mandate an evidentiary hearing, the challanger’s attack must be more than conclusory and . . . [tjhere must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof .... Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained .... The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” Id., 171.

The evidence in support of the defendant’s claim that he was improperly denied a Franks hearing is the affidavit of his attorney. We find this affidavit insufficient to mandate an evidentiary hearing pursuant to Franks. First, the defendant’s attorney did not witness the events he avers to; rather, he states that “upon information and belief [he] determined that Paragraphs 3 and 4 of the affidavit [submitted with this] application for the search warrant [are] false and misleading as to assertions made therein concerning the credibility and reliability of the informer.” There is no explanation why proper witnesses and affidavits were not obtained.

Moreover, examination of this affidavit reveals that the allegations made by the defendant’s attorney are at best conclusory. For example, he attempts to show that the affiants misled the issuing magistrate regarding the informant’s track record with the police. In so doing, he suggests that the affiant Riccio’s statement that the informant had given the police “information on drug activities that [has] resulted in arrests and convictions including a seizure of 32 pounds of marihuana,” was inaccurate. Instead, he avers that the informant here was the defendant in the thirty-two pound marihuana arrest. In support of this argument, he makes bald assertions such as “[t]here was only one seizure of 32 pounds of marijuana in Newington in anyone’s memory.” Finally, there is no offer of proof that the statements objected to in the affidavit were made by the Windsor officer with knowledge of their falsity or reckless disregard for their truth. As noted above, such a showing is required under Franks. See State v. Stepney, 191 Conn. 233, 239, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). We find that this offer of proof is insufficient to establish the defendant’s right to an evidentiary hearing pursuant to Franks.

There is no error.

In this opinion Healey, Covello and Hull, Js., concurred.

Callahan, J., concurred in the result.

       “[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure to motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       “[General Statutes] Sec. 21a-277. (Formerly Sec. 19-480). penalty foe illegal manufacture, distribution, sale, prescription, dispensing. ...
      “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marihuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       “STATE OP CONNECTICUT
      SUPERIOR COURT AFFIDAVIT AND APPLICATION SEARCH AND SEIZURE WARRANT
      “To: A Judge of the Superior Court
      “The undersigned, being duly sworn, complains on oath that the undersigned has probable cause to believe that certain property, to wit: Controlled drugs, cannabis sativa and substances derived from same, plastic bags, manila envelopes, scales, pipes, strainers, records of drug sales and transactions and monies derived from same, weapons, firearms and ammunition.
      “X is possessed, controlled, designed or intended for use as a means of committing the crime of Possession of a Cannabis-Type Substance with Intent to Sell, [General Statutes §] 21a-278 (b).
      “X is or has been or may be used as the means of committing the crime of Possession of a Cannabis-Type Substance with Intent to Sell, [General Statutes §] 21a-278 (b).
      “And is within or upon a certain person, place, or thing, to wit . . . Location known as an unattached garage, behind #70-#72 Wilson Avenue, Windsor, CT. The garage is a light color with green trim and has a residential loft área above the garage bay. The garage loft is occupied by an unknown white male subject. The garage is on the Southwest side of Wilson Avenue, behind #70-#72 Wilson Avenue. The driveway leading to the garage is on the West side. There is a ‘anchor’ type fence surrounding the cur-tilage of the above property.
      “AND THAT THE FACTS ESTABLISHING THE GROUNDS FOR ISSUING A SEARCH AND SEIZURE WARRANT ARE THE FOLLOWING:
      “That: The affiants, Lt. Nicholas C. Riccio and Detective Theodore Kuracz, are both regular, sworn members of the Windsor Police Department with approzimately 33 years total experience in the investigation of criminal matters. Both these affiants are also thoroughly trained and are familiar and have worked numerous cases involving narcotics and controlled drugs. These affiants are familiar with drug trafficking methods and have conducted numerous narcotic and drug investigations which have resulted in the issuance of search and seizure warrants which have resulted in arrests and convictions. “That: On the date of Saturday, January 26,1985, at approzimately 6:30 P.M., affiant Lt. Riccio was contacted by Sgt. Larry Overstrom, the Shift Commander on duty at the Windsor Police Department, to contact Detective James Lavery of the Newington Police Department in reference to some vital narcotics information.
      “That: Affiant Lt. Riccio contacted Detective Lavery who is active in the area of narcotics investigations for the Newington Police Department. Detective Lavery stated to affiant Lt. Riccio that he is presently working with an extremely credible, reliable and confidential informant who is very knowledgable in the area of drug activity and sales and trafficking and has in the past given Detective Lavery information on drug activities that [has] resulted in arrests and convictions including a seizure of 32 pounds of marihuana.
      “That: Detective Lavery told affiant Lt. Riccio that sometime during the three day period of January 24, 1985, through January 26, 1985, his confidential and reliable informant was present at the presmises of an unattached garage behind #70-#72 Wilson Avenue, Windsor, CT., with an unknown white male subject who uses the upper area of the garage as a loft residence. While the informant was at the premises, he observed the unknown white male subject sell a high-grade type of marihuana known as Sinsemilla. That also during the drug transaction, the unknown white male subject stated that he had 10 pounds of Sinsemilla to sell.
      “That: Detective Lavery was told the above information by his informant who is confidential and reliable. Detective Lavery corroborated the informant’s description of the location by going to the area.
      “That: This affiant, Lt. Riccio, after receiving the information from Detective Lavery, went to the area of Wilson Avenue, Windsor, CT., and verified that behind #70-#72 Wilson Avenue there is such a garage. Lt. Riccio did observe lights coming from the upper area of the garage as if someone was using it as a residence.
      “That: Based upon these affiants’ experience and prior knowledge of drug dealers, that weapons and firearms are kept on their person and premises for protection against robbery of drugs and drug monies.
      “That: Based upon the information in the foregoing affidavit, these affi-ants request a search and seizure warrant be issued for the described garage behind #70-#72 Wilson Avenue, Windsor, CT., and for the person of the unknown white male subject who is reportedly using the upper loft area of the garage as a residence.
      “Signed at Windsor, Connecticut, this 26th day of Jan., 1985
      /s/Lt. Nicholas C. Riccio
      “Signed at Windsor, Connecticut, this 26th day of Jan., 1985
      /s/Det. Theodore Kuracz”

        Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).

       “affidavit of counsel in support of
      defendant’s supplemental motion to
      SUPPRESS EVIDENCE (Franks v. Delaware grounds)
      “I, Michael Graham of Hartford, hereby depose and say:
      “1. That I am attorney for the defendant Alan Morrill and I have thoroughly investigated the facts, circumstances and law of this case.
      “2. That following careful investigation and upon information and belief I have determined that Paragraphs 3 and 4 of the affidavit in application for the search warrant [are] false and misleading as to assertions made therein concerning the credibility and reliability of the informer.
      “3. To summarize, the informer is purported to be reliable and credible because he had given information in the past which led to arrests and convictions and a seizure of 32 pounds of marijuana in Newington, Connecticut, and that the informer actually witnessed a marijuana transaction in the defendant’s home.
      “4. In truth the informer . . . was himself arrested for conspiracy possession of the 32 pounds of marijuana in question and his information which led to other arrests, convictions and searches, [and] seizures involved [the informer] implicating his confederate in the possession and distribution of his 32 pounds of marijuana.
      “5. The following information supports the assertions in paragraph 4:
      “a. There was only one seizure of 32 pounds of marijuana in Newington in anyone’s memory.
      “b. Arrested were the informer in this case and another person named [C].
      “c. [The informer] thereupon implicated a number of other persons in the conspiracy to possess the 32 pounds. [The informer] had approximately 5 pounds of marijuana in his automobile and had sold still another 5 pounds to an informer for the East Hartford police shortly before (or had made arrangements for the sale).
      “d. Some charges against [the informer] were not prosecuted and he ultimately received a suspended sentence while [C] was incarcerated.
      “e. [The informer] was never in the home of the defendant and they had never met but [the informer] was outside the defendant’s home sitting in an automobile while an acquaintance and fellow worker of the defendant’s stopped by defendant’s home a few days before the search in question.
      “f. Thus [the informer] had no ‘track record’ of reliability as an informer except in regard to implicating others involved in his own arrest or people who he had dealt drugs to.
      “g. It is clear that the informer in [the informer and C’s] arrest is not the informer in this case as the informer’s identity in [the arrest of the informer and C] became known in the course of that case. That informer is absolutely unknown to the defendant in this case; they have never seen or spoken to each other.
      “h. The affiants knew or could have known the true facts and status of [the informer] including that he had serious charges pending against him when he provided the information. Thus the affiants intentionally or recklessly set forth misleading and errroneous information in the affidavit in support of the warrant. The false and misleading information and omitted information was material to the issuance of the warrant.
      “i. The undersigned counsel has in his possession and will make available to the court copies of the police reports and search warrant application in [the informer and C’s] case.”


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    Janet Orenstein et al. v. Old Buckingham Corporation et al.
    (13129)
    Peteks, C. J., Healey, Shea, Callahan and Santaniello, Js.
    Argued October 7
    decision released December 22, 1987

      Snow Gene Munford, for the appellant (named defendant-third party plaintiff).

      John W. Lemega, for the appellees (third party defendants Candace Browning et al.).
   Santaniello, J.

This appeal is from a decision of the trial court granting a motion for summary judgment in favor of the third party defendants, Candace Browning and Jacintha Kelley, against the named defendant-third party plaintiff, Old Buckingham Corporation. The plaintiffs, Janet Orenstein and Max Orenstein, brought suit against the defendant, Old Buckingham Corporation, alleging that Janet had sustained injuries as she entered a common entryway on premises owned and controlled by the defendant. The common entry way of the defendant’s building led into a foyer which, in turn, led to interior door entrances to two stores, Kelley’s Pace and The Sporty Image. The defendant impleaded Candace Browning and Jacintha Kelley, the lessees of Kelley’s Pace, as third party defendants, alleging that they were obligated, by the terms of their lease, to indemnify the defendant. The third party defendants filed a motion for summary judgment which the court granted after it rendered a stipulated judgment for damages in favor of the plaintiff Janet Orenstein. The named defendant-third party plaintiff (hereinafter third party plaintiff) has appealed.

On October 4,1984, while she was entering the doorway leading to the foyer of Old Buckingham Place in Old Saybrook, Janet Orenstein’s right heel was struck with great force by the outside door which shut on her heel causing her the injuries for which she sought damages. At that time, there was a lease in effect between Old Buckingham Corporation, as lessor, and Candace Browning and Jacintha Kelley, doing business as Kelley’s Pace, as lessees, renting to them a portion of the premises designated as “Unit A.” The lease contained a provision, paragraph 9, in which the lessees promised to indemnify the lessor for any claims arising from the lessees’ use or occupancy of the demised premises or from any act or ommission on their part.

The sole issue raised by the third party plaintiff in this appeal is whether the trial court erred in granting the motion for summary judgment.

A motion for summary judgment should be granted only when the pleadings, affidavits and other proof show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316-17, 477 A.2d 1005 (1984); Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). It should be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. Practice Book § 380. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible as evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Practice Book § 381. Summary judgment procedure, generally speaking, is an attempt to dispose of cases in a manner which is speedier and less expensive for all concerned than a full-dress trial. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307, 407 A.2d 971 (1978); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 375, 260 A.2d 596 (1969).

In the present case, the third party defendants moved for summary judgment alleging in part: “The third-party defendants respectfully represent to this Court that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law because, based upon the pleadings before this Court, the plaintiffs claim arises out of an alleged defect in a common area of the premises owned by the third-party plaintiff which area was explicitly not demised to the third-party defendants. Therefore, the obligation to indemnify imposed upon the third-party defendants pursuant to paragraph 9 of the lease between the third-party plaintiff and the third-party defendants is, as a matter of law, inapplicable.”

The third party defendants filed a request for admissions directed to the third party plaintiff, which alleged certain facts pertaining to the lease between the parties. The request for admissions included the following: that the third party plaintiff owned the property; that the third party plaintiff maintained control of the property; that the third party defendants leased the premises known as Unit A; that the lease provides that the “landlord shall be responsible for structural repairs and structural maintenance”; that the lease provides that the “tenant shall be responsible for all maintenance and repair within tenants’ unit”; that in order to reach Kelley’s Pace, in Unit A of the North Front Building of Old Buckingham Place, it is necessary to enter through an exterior door that serves as an entrance to a foyer that leads to both Kelley’s Pace and The Sporty Image; that the exterior door leads to a foyer and the interior doors to both Kelley’s Pace and The Sporty Image are located in the foyer; that said exterior door is not contained within Unit A of the North Front Building; and that the foyer to which this exterior door leads is not contained within Unit A. To these requests for admissions there were no objections filed by the third party plaintiff, and consequently, these requests were deemed to have been admitted. Practice Book § 239.

In response to the motion for summary judgment, the third party plaintiff filed only one affidavit, by Bonnie M. Clein, signatory, as landlord in the Lease Agreement, setting forth the indemnity agreement as to the source of the third party defendants’ legal obligation to the third party plaintiff. The affiant, Clein, claims that based upon the indemnity agreement, as set forth in paragraph 9 of the lease, the third party defendant would be liable to any person injured while en route to the tenant’s store. The counter affidavit filed by the third party plaintiff fails, however, to allege any facts that would lead one to believe that the plaintiff was going to the premises in order to enter Kelley’s Pace. During oral argument, counsel for the third party plaintiff conceded that there was no documentation or evidence submitted in response to the motion for summary judgment to indicate that the plaintiff was entering the building to go to Kelley’s Pace. The trial court, after examining all pertinent documents submitted by both parties, made an appropriate finding “that there is no genuine issue as to any material fact and that the third party defendants are entitled to judgment as a matter of law.” The third party plaintiffs failure to submit to the court affidavits or other evidence tending to establish the fact that Janet Orenstein intended to go to Kelley’s Pace necessarily precluded the court from reaching the legal question regarding the indemnification clause in the lease.

There is no error.

In this opinion the other justices concurred.

       The case of Max Orenstein versus Old Buckingham Corporation was withdrawn on September 24, 1986.

       The plaintiff, Janet Orenstein, was also listed as a lessee.

       Paragraph 9 of the lease provides: “Tenant shall indemnify, hold harmless and defend Landlord from any claims whatsoever arising from Tenant’s use or occupancy of the demised premises or occasioned wholly or in part by any act or omission of Tenant or any person claiming through Tenant.”

       “[Practice Book] Sec. 239.—ANSWERS AND OBJECTIONS TO REQUESTS FOR ADMISSION
      “Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Sec. 238 (b), or within such shorter or longer time as the court may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney. . . .”

       The affidavit, dated June 9, 1986, provides:
      “I Bonnie M. Clein, do depose and say the following:
      “1. That I am of majority age and understand the obligation of an oath;
      “2. That I am competent to testify to the matters stated herein;
      “3. That I am signatory as Landlord to the Lease Agreement (copy attached hereto as Exhibit ‘A’) referred to in the third-party defendants, Candace Browning and Jacintha Kelley’s Motion for Summary Judgment;
      “4. That contained within said Exhibit ‘A’, paragraph 6 states: ' . . . TENANT shall pay as additional rent its proportionate share of real estate taxes and insurance on the complex in which TENANT’S premises are located and its proportionate share of all building and common area maintenance and repairs . . . ’;
      “5. That contained within said Exhibit ‘A’, paragraph 16 states: ‘Subject to common expense contribution requirements in tenant leases, the LANDLORD shall be responsible for structural repairs and structural maintenance . . .’;
      “6. That tenant signatories, Jacintha Kelley, Candace Browning and Janet Orenstein, D/B/A Kelley’s Pace, paid lawful sums of money to Landlord as required by paragraphs 6 and 16 of said Exhibit ‘A’;

        “7. That contained within said Exhibit ‘A’ paragraph 9 states: ‘TENANT shall indemnify, hold harmless and defend LANDLORD from any claims whatsoever arising from TENANT’S use or occupancy of the demised premises . .
      “8. That the subject incident is covered under the terms of the Lease Agreement, Exhibit ‘A’, to the best of my knowledge.”

       During oral argument, the third party plaintiffs counsel conceded that there was no fact alleged in its counteraffidavit to show that the plaintiff was going to Kelley’s Pace.
      “Justice: Don’t the requests for admission suggest that control was with your client?
      “Counsel: Yea, you’re absolutely right, but . . .
      “Justice: Where does that leave . . .
      “Counsel: Well, if you’ll let me get into the case that far . . .
      “Justice: Sure, go right ahead.
      “Counsel: My contention may be wrong as sin, but my contention is that control does not enter into it. My contention, your Honor, is simply that this is an indemnifying agreement, and I don’t care what they were doing or how they were doing it. If they had occasion to be there because of the tenant, then the indemnification agreement . . .
      “Justice: Was there any evidence . . . that his position . . . Mr. Lemega’s position is that there wasn’t one bit of evidence that shows she was going to Kelley’s Pace.
      “Counsel: That’s right, that’s my problem except everybody understood that then. You’re right, I mean that’s my problem and trouble . . . I know that, but I’m trying to put across the fact that it was sort of irrelevant because she was entering this because of the tenant. I understand. There’s no direct evidence she was going to Kelley’s.
      “Justice: Any evidence?
      “Counsel: Any evidence. No, there is no evidence. ” (Emphasis added.)

       In ruling as we do, we do not mean to imply that the third party defendant tenants necessarily would have been liable if there were “evidence that Janet Orenstein had intended to go to Kelley’s Pace.”


author: Callahan, J.

text:
    State of Connecticut v. Donald E. Santangelo
    (12900)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      Argued October 8
    decision released December 22, 1987

      William F. Gallagher, with whom, on the brief, was Robert P. Borquez, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were Patrick Clifford and James G. Clark, assistant state’s attorneys, for the appellee (state).
   Callahan, J.

The defendant, Donald Santangelo, was charged in an information with one count of the crime of murder in violation of General Statutes § 53a-54a (a). The charge arose from the brutal slaying of Jessie Carrano, a fifty year old New Haven woman whose body was found on September 13,1984, partially concealed under a pile of debris, behind a factory building at 850 Sherman Avenue in Hamden. The woman’s death was caused by multiple blows to the head with a blunt object which resulted in comminuted compound fractures of the skull and injuries to the brain. Her body also displayed a four inch incised wound under her chin caused by a sharp instrument, and other abrasions, lacerations and contusions. After a jury trial the defendant was convicted as charged and sentenced to a term of imprisonment of sixty years.

On appeal, the defendant claims that the trial court erred in: (1) denying his motion to recuse; (2) denying his motion to strike testimony of the victim’s husband and daughter; (3) denying his motion to exclude certain statements made by the victim to her husband and daughter which he claims were inadmissible hearsay; (4) charging the jury; (5) denying his motion to disqualify itself from sentencing; and (6) denying his motion of acquittal.

There was evidence to support and the jury could reasonably have found the following pertinent facts. The victim first met the defendant at the Chatham Pharmacy in the Fair Haven section of New Haven on the morning of September 7, 1984, while both were waiting for prescriptions to be filled. At that time, the defendant told the victim that he was a cook at the Ramada Inn in North Haven and that he could procure a job interview for her at the inn. He wrote down the telephone number of the inn and the name of the manager on a piece of brown paper bag which he gave to the victim. In a later telephone call he told the victim that he had arranged an interview for Monday, September 10, at 7:30 p.m.

The victim spoke to her husband, James Carrano, and her daughter, Janice, several times during the next few days concerning her meeting with the defendant. On Monday afternoon, September 10, the victim informed Janice that she expected to meet “Don” at the Chatham Pharmacy that evening and accompany him to the job interview. The victim asked her daughter to come with her but Janice declined. Thereafter, using the telephone number on the scrap of paper bag, the victim telephoned the Ramada Inn and spoke to the manager. The manager informed the victim that he knew of no prearranged interview but that she could come to the inn and fill out a job application. Shortly after the victim had completed her call to the manager, her telephone rang and was answered by her daughter. The caller identified himself as “Don” and asked to speak to the victim. When she was handed the telephone, the victim told the caller, “Yes, I will meet you at the Chatham Pharmacy.”

Later, the victim telephoned her husband at his job and told him that she intended to meet “Don” at the pharmacy at 6:50 p.m., leave her car and accompany him in his vehicle to the job interview. She also informed her husband that she would arrange to pick him up from work at about 8 p.m. after she had returned from the interview. When he had not heard from his wife by 10 p.m., James Carrano called his son for a ride. Together they drove to the Chatham Pharmacy where they located the victim’s parked automobile. James Carrano then went home and waited for his wife. When she did not appear during the next several hours he called the Ramada Inn twice, the last time at approximately 8 a.m. on September 11. At that time he talked to a cook who identified himself as “Don,” who said he was from North Haven, did not know the victim, had never been in New Haven, and that he was unfamiliar with the location of the Chatham Pharmacy. Thereafter, James Carrano called the New Haven police department to report his wife missing.

The jury could also have found that the defendant was the only cook named “Don” employed at the Ramada Inn in North Haven, and that on September 10 he worked at the inn between the hours of 6 a.m. and 2 p.m. Later that day, at about 6 p.m., he borrowed the automobile of his girlfriend Carol Cacchillo, with whom he lived, and left their apartment purportedly to attend a menu meeting at the Ramada Inn. There was, however, no menu meeting scheduled at the inn for that evening. Between 7:30 and 8 p.m. on September 10, while driving Cacchillo’s automobile, the defendant was involved in a one car accident on Sherman Avenue in Hamden. The accident occurred approximately eight-tenths of one mile from the site where the victim’s body was later located. Cacchillo’s car was rendered inoperable by the accident and had to be towed from the scene.

After the accident, the defendant told persons who later testified at the trial that he was unfamiliar with the neighborhood and that he was on his way home from work. He had, however, previously been employed in the immediate area and, as indicated above, had finished work at 2 p.m. that day. The defendant also related conflicting versions of how the mishap occurred. The day following the accident three witnesses who knew the defendant saw him walking on Sherman Avenue toward the factory at the rear of which the victim’s body was later discovered.

Pursuant to their investigation of the missing person’s report concerning the victim, New Haven police officers on September 11 and 12, prior, to discovery of the victim’s body, interviewed her family, the staff at the Ramada Inn, Cacchillo and the defendant. At that time the defendant acknowledged meeting a woman whom he could not identify at the Chatham Pharmacy on September 7 and recalled that he might have given her his manager’s name. He denied knowing the victim, however, or ever having been with her in Cacchillo’s automobile. He admitted to the police that he had lied to Cacchillo about being required to attend a menu meeting in order to obtain the use of her car to meet a male friend named Terry. He said he had driven around in Hamden looking for Terry for about two hours prior to the accident.

A search of Cacchillo’s automobile by New Haven police department personnel at the garage where it had been towed subsequent to the accident, disclosed a blood stain on the front seat. The stain was later analyzed as type A blood, the victim’s blood type. The victim’s left thumb print was also found on the interior of the front passenger door window. An impression of the defendant’s right index finger was later lifted from a piece of torn paper bag found in the victim’s pocketbook which was located near her body.

I

The defendant first argues that the trial court erred by denying his motion to recuse. The defendant claims, as the basis of his motion, that the trial court had actively participated in pretrial plea negotiations in his case and, consequently, disqualification was required. See State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984).

It is axiomatic that the burden of establishing a record that a judicial impropriety has occurred which demonstrates or gives the appearance of bias or partiality so as to require recusal rests with the party who claims the occurrence of such an impropriety. State v. Lopez, 197 Conn. 337, 348, 497 A.2d 390 (1985); State v. Fullwood, 194 Conn. 573, 581, 484 A.2d 435 (1984); State v. Nash, 149 Conn. 655, 658-59, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962). “In the absence of such a record, we have no basis for concluding that the trial judge's pretrial activities so impaired, or appeared to impair, his ability to act as a judicial officer or a neutral arbiter that it was error to deny the motion for disqualification.” State v. Fullwood, supra.

We first note that the defendant, although he filed a written motion to recuse, has failed to follow the procedural requirements of Practice Book § 997. Perusal of the record reveals that it contains neither an affidavit setting forth the facts upon which he relies for disqualification nor a certificate of counsel attesting to the fact that the motion was made in good faith. Both are required procedural adjuncts to a motion to recuse a judicial authority. Practice Book § 997. Adherence to those procedures is necessary to obtain properjudicial review. State v. Weber, 6 Conn. App. 407, 412-13, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). In view, however, of the serious consequences of the defendant’s conviction and the fact that his claim goes to his fundamental constitutional right to a fair trial, we will review the available record despite its procedural deficiencies. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 740, 444 A.2d 196 (1982); State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973).

In the absence of an affidavit or evidentiary hearing the available record consists only of a colloquy among the trial court, defense counsel and an assistant state’s attorney. During the course of that colloquy defense counsel recounted his recollection of the part played by the trial court in pretrial proceedings relating to the defendant. Representations of counsel, however, are not evidence upon which we can rely in our review of the trial court’s conduct. State v. Watson, 198 Conn. 598, 611, 504 A.2d 497 (1986); State v. Weber, supra, 413. Other than the representations of defense counsel, the record contains only the recollections of the assistant state’s attorney and the trial court itself concerning any pretrial participation by the trial court in the defendant’s case. Both indicate that the trial court’s participation was minimal. Our review of the available record reveals that any contact by the trial court with the defendant’s case clearly did not amount to active participation in plea negotiations. See State v. Gradzik, supra, 47.

Faced with the limited and contradictory record available, we cannot find that the defendant has presented this court with a record that mandates recusal. The trial court did not err in denying the defendant’s motion. State v. Maluk, 10 Conn. App. 422, 426, 523 A.2d 928 (1987).

II

A

The defendant next claims that the trial court erred by denying his motion to strike the testimony of both James and Janice Carrano, the victim’s husband and daughter. His motion with regard to James Carrano’s testimony is based on his claim that he was prejudiced because of the destruction, by the New Haven police department, of the tape recording of Carrano’s telephone call of September 11 reporting his wife’s disappearance.

The tape, which was made somewhat less than three months after the release of our decision in the case of State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984), was erased pursuant to a long-standing practice of the New Haven police department to erase and reuse tapes utilized in recording incoming calls for assistance. That practice, at least as of September 11,1984, had apparently not been brought into compliance with Myers and Practice Book § 752. Myers mandated the preservation of statements of potential witnesses that may be required to be produced and made available to the defense in a criminal trial. State v. Myers, supra, 468. Although, in view of the previous release of Myers, the destruction of the tape in this case may have been inexcusable, there is no allegation that it was destroyed maliciously or in bad faith to thwart the defense. In the absence of bad faith we employ a balancing test to determine whether sanctions should be imposed for the state’s failure to produce the tape. One possible sanction is the striking of the witnesses’ testimony. Practice Book § 755. The balancing test weighs the culpability of the state for its failure to make disclosable material available on the one hand, against any resulting prejudice to the defendant on the other. State v. Myers, supra, 467, 469; State v. Shaw, 185 Conn. 372, 386, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982).

It is evident from a review of the transcript of his testimony that Carrano’s telephone call was a routine call wherein he reported that his wife had been missing since the previous evening and asked that an officer be sent to his home so that he could make an official report. Carrano testified to that effect and indicated that he did not recall saying anything else. Indeed, it is difficult to imagine what more he could have or would have said under the circumstances. In view of the apparently routine nature of the call, the short period that had elapsed since Myers, the availability of the police report concerning the subject of the call and the fact that the crime to which the call collaterally related was in the jurisdiction of the Hamden police department, we do not believe that the failure of the New Haven police to preserve the tapes of the telephone call required the trial court to impose sanctions unless the defendant demonstrated a realistic possibility of prejudice. Although his brief contains the conclusory statement that “the state’s failure to produce said recording prejudiced him in that it deprived him of an essential tool for cross-examination,” nowhere does the defendant divulge what might possibly have been unearthed with that “tool” or how he was possibly prejudiced. The trial court has broad discretion in applying the balancing test set forth in Shaw and Myers. State v. Mullings, 202 Conn. 1,10, 519 A.2d 58 (1987). Under the circumstances it did not abuse that discretion in refusing to strike James Carrano’s testimony.

B

The defendant also claims that the trial court erred by denying his motion to strike the testimony of Janice Carrano, the victim’s daughter.

On September 20,1984, Janice gave a tape recorded statement to the Hamden police department. A three page typed transcription was later made of her recorded statement. The transcription was reviewed and signed by her on September 25. Thereafter, the tape was erased or destroyed and, consequently, was not available to the defendant at the time of trial. The defendant claims he was prejudiced by not having access to Janice Carrano’s original recorded statement because its loss damaged his ability to cross-examine her effectively. The state did turn over to the defendant the typed transcription of her recorded statement.

As in State v. Mullings, supra, the investigation in this case was conducted after the date of this court’s decision in State v. Myers, supra, but prior to our decision in State v. Milum, 197 Conn. 602, 500 A.2d 555 (1985). In Milum, we expressed our concern over the routine destruction of potentially discoverable taped statements even after a typed transcription is made. Id., 617. In Milum, we indicated that a “ 'course of conduct is not necessarily reasonable merely because it is routine. . . .’ United States v. Carrasco, 537 F.2d 372, 376 (9th Cir. 1976) . . . .” Id. In Mullings, however, we agreed with the state that prior to our decision in Milum “the erasure of the tape after a verbatim transcript had been made was consistent with a reasonable, though in hindsight erroneous, interpretation of Myers.” State v. Mullings, supra, 9. We held, therefore, that prior to Milum the routine destruction of a tape after a verbatim transcript had been made could not be viewed as having been done in bad faith. Id., 9-10.

Absent bad faith we employ the balancing test set forth in State v. Shaw, supra, and State v. Myers, supra, to determine whether the trial court erred in refusing to strike Janice Carrano’s testimony. State v. Milum, supra. As previously indicated, that test weighs the extent of the state’s culpability for nondisclosure against the amount of prejudice demonstrated by the defendant. State v. Mullings, supra, 10; State v. Myers, supra, 467. Although the loss of the taped statement by the police is not excusable, our decision in Myers makes it understandable and reduces the state’s culpability to a minimum. The question, therefore, is what prejudice, if any, the defendant suffered as a result of the unavailability of the tape.

A review of the transcription of Janice Carrano’s taped statement and her voir dire testimony reveals that the defendant’s argument that he was prejudiced by the loss of the tape lacks merit. Janice testified on voir dire that she believed the words in the transcription were the same as those used in her taped statement. Unfortunately, two words in the three page transcription are typed over and difficult to read. It is on these two words that the defendant bases his argument. One word, commencing with the letter “T” in the context of the sentence in which it is used, is obviously the word “Town.” Janice testified that she meant to and believed she used the word “Town” in that sentence. The other word on the page of her statement appears to be the word “was” and she thought that to be what she had said. At any rate, the loss of the two words in the three page transcription did not substantially impair whatever usefulness it might have had for purpose of cross-examination. The trial court, in denying the motion to strike Janice Carrano’s testimony, did not abuse its broad discretion when it found the loss of the tape was “unintentional” and had resulted in “absolutely no prejudice to the defendant.” State v. Mullings, supra, 10-11; State v. Shaw, supra, 386.

Ill

The defendant next claims it was error for the trial court to admit, over his objection, testimony of the victim’s husband and daughter relating to conversations they had with the victim concerning her intention to meet “Don” at the Chatham Pharmacy on September 10 and accompany him to a job interview. He also claims the trial court erred by denying his motion in limine and by overruling his objections to testimony of the victim’s husband and daughter relating to conversations they had with the victim concerning her first meeting with the defendant at the Chatham Pharmacy on September 7.

The defendant concedes that the victim’s statements indicating her intention to do a particular act in the immediate future, made in apparent good faith and not for self-serving purposes, were admissible as an exception to the hearsay rule, to prove that the act was in fact performed. See State v. Journey, 115 Conn. 344, 351, 161 A. 515 (1932). He contends, however, that her statements that she was going to meet “Don” pertain, not only to her intention, but to those of another person, i.e., “Don.” He argues, therefore, that the victim’s husband and daughter should not have been allowed to testify as to whom the victim said she was to meet, because for that purpose her statements were inadmissible hearsay. We are unpersuaded.

The hearsay statements of an unavailable declarant, made in good faith and not for a self-serving purpose, that express his or her present intentions to meet with another person in the immediate future are admissible and allow the trier of fact reasonably to infer that the declarant’s expressed intention was carried out. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295-96, 12 S. Ct. 909, 36 L. Ed. 706 (1892); United States v. Pheaster, 544 F.2d 353, 377-80 (9th Cir. 1976), cert. denied sub nom. Inciso v. United States, 429 U.S. 1099, 97 S. Ct. 1118, 51 L. Ed. 2d 546 (1977); People v. Alcalde, 24 Cal. 2d 177, 186, 148 P.2d 627 (1944); Hunter v. State, 40 N.J.L. 495, 534, 536, 538 (1878); State v. Vestal, 278 N.C. 561, 585-86, 180 S.E.2d 755 (1971), cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973); C. McCormick, Evidence (3d Ed.) § 295, p. 848. “Applying this rule to the evidence in question, most of the statements made by the deceased to his wife related to his then present intention to go to New Haven to meet the defendants and were admissible.” (Emphasis added.) State v. Perelli, 125 Conn. 321, 325, 5 A.2d 705 (1939). The trial court did not err, therefore, by allowing into evidence testimony by James and Janice Carrano concerning statements made to them by the victim that she intended to meet “Don” at the Chatham Pharmacy on September 10.

The defendant also claims that the trial court erred by allowing the victim’s husband and daughter to testify to what they were told by the victim concerning the circumstances of her meeting with the defendant at the Chatham Pharmacy on September 7 and of his offer and purported efforts to aid her in obtaining employment at the Ramada Inn. The defendant argues that these statements do not fall within any recognized exception to the hearsay rule and are inadmissible. We disagree.

It would be incongruous to allow evidence of the victim’s expression of a future plan or intention and exclude evidence of a contemporaneous explanation of the reasons that prompted it. To hold that the victim’s statements that she was going to meet “Don” at the Chatham Pharmacy are sufficiently trustworthy for the jury to consider without confrontation, but that her references to her September 7 meeting and her conversations with the defendant that produced her intention are not, is illogical. United States v. Annunziato, 293 F.2d 373, 377-78, cert. denied, 368 U.S. 919, 82 S. Ct. 240, 7 L. Ed. 2d 134 (1961). “True, inclusion of a past event motivating the plan adds the hazards of defective perception and memory to that of prevarication; but this does not demand exclusion or even excision, at least when, as here, the event is recent, is within the personal knowledge of the declarant and is so integrally included in the declaration of design as to make it unlikely in the last degree that the latter would be true and the former false.” Id., 378. The victim’s statement that she was going to meet “Don” had to be explained and placed in some context for it to have any meaning for the trier of fact. State v. Smith, 198 Conn. 147,157-58, 502 A.2d 874 (1985). The only way that could be done was to have the victim’s account of her meeting with the defendant brought to the jury’s attention. The trial court did not abuse its discretion in allowing the state to do so. State v. Boucino, 199 Conn. 207, 228-29, 506 A.2d 125 (1986).

IV

The defendant next claims that the trial court erred in several respects in its charge to the jury.

A

The defendant claims first that the court should not have instructed the jury that one of the elements of the crime that the state had to prove beyond a reasonable doubt in order to convict him was that he was “of sound mind. That is legally sane [at the time of the crime].” The defendant does not argue that the court’s instruction was technically incorrect. He argues, rather, that his sanity was never in question and, therefore, that the trial court “confused and misled the jury” by appearing to place it in issue.

The defendant did not present evidence concerning his sanity, raise insanity as a defense, or request a charge on insanity. The trial court erred, therefore, by instructing the jury, sua sponte, that the defendant’s sanity was an element of the crime to be considered in this case. State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985). “The trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence.” Id.; State v. Cofone, 164 Conn. 162,168, 319 A.2d 381 (1972). “[T]he issue of insanity is not properly raised until ‘substantial evidence’ tending to prove insanity has come into the case.” State v. Rodgers, supra; State v. Rossier, 175 Conn. 204, 209, 397 A.2d 110 (1978).

We find, however, that the trial court’s error was harmless. Although the trial court incorrectly injected the defendant’s sanity into the case, it promptly removed the issue by instructing the jury that “the law presumes that an accused was of sound mind at the time of the incident . . . unless there is some credible evidence tending to prove the contrary. In this case, as I recall the evidence, there has been no evidence tending to prove that the defendant was not of sound mind.” (Emphasis added.)

The insanity instruction complained of is not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984). “The whole charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error.” State v. Reddick, 197 Conn. 115,132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067,106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). A review of the entire charge makes it abundantly clear that the trial court’s instructions effectively made the element of the defendant’s sanity exactly what it was in this case, a nonissue. It is not reasonably probable that the jury was confused or misled to believe otherwise. State v. Orsini, 187 Conn. 264, 276-77, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); State v. Mason, 186 Conn. 574, 586-87, 442 A.2d 1335 (1982).

B

The defendant next claims that the trial court erred by refusing to give his requested jury instruction concerning evidence, produced by the state, of a thumb print of the victim that was lifted from inside the front passenger door window of the Cacchillo vehicle. The defendant requested the trial court to instruct the jury that, because the police had not kept a record of exactly where, on the inside of the window, the print was found and were, therefore, unable to testify to its exact location, the jury must “presume [it] was located in a position most favorable to the defendant, i.e., on the uppermost portion of the window—in other words, in a position that a person could have placed the print from the exterior of the vehicle with the window partially rolled down.” In effect, the defendant requested that the jury be instructed to draw an adverse inference against the state because of the failure of the police to record the exact location of the victim’s thumb print. The trial court did not err in refusing to give such an instruction.

The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75,165 A.2d 598 (1960). In such a situation there is a logical nexus between the failure to call the witness and an adverse inference. In other words, it makes sense to infer that the witness’ testimony, had the available witness testified, would be adverse to the party who would naturally be expected to call that witness but failed to do so. The scenario in this case is dissimilar. Here, the evidence of the exact location of the victim’s thumb print did not exist, was impossible to resurrect and was obviously not available at the time of trial. The police officer simply failed to follow, what he admitted on cross-examination might be, the best possible procedure for obtaining, locating and recording fingerprint evidence. As a result, although he was able at trial to testify that the victim’s thumb print was found on the inside of the car window, the officer was unable to pinpoint the location. There is, however, no logical correlation between the inability of the state to produce the exact location of the victim’s thumb print and an inference that if it were available it would be favorable to the defendant and adverse to the state. An inference to be drawn must be logical and reasonable and “strong enough so that it can be found that it is more probable than not that the fact to be inferred is true.” Reliance Ins. Co. v. Commission on Human Rights & Opportunities, 172 Conn. 485, 490, 374 A.2d 1104 (1977). Nonproduction of the location of the victim’s thumb print under these circumstances does not lead to a reasonable logical inference that it was located “on the uppermost portion of the window ... in a position that a person could have placed the print from the exterior of the vehicle with the window partially rolled down.”

An adverse inference instruction might be required if tangible evidence were deliberately destroyed or ignored to prevent its utilization by the defense. 2 J. Wigmore, Evidence (Chadbourn Rev. 1979) § 291. Absent proof of such deliberate action, however, it is illogical to postulate that the failure, even if negligent, of a police investigation to discover and record all available tangible evidence requires an inference that the tangible evidence, had it been discovered and recorded, would be favorable to the defendant. The defendant was certainly entitled to point out to the jury any infirmity in the state’s case that he discerned by reason of the failure to record the exact location of the victim’s thumb print. He was not, however, entitled to an adverse inference instruction.

C

The defendant also claims that the trial court erred by failing to instruct the jury, in accordance with his request, that if it found the prosecution had proved that the thumb print lifted from inside the Cacchillo vehicle was that of the victim, it was to apply the following rule of law: “The presence of a person’s fingerprint, if proven, on an item located at any particular location, is in and of itself of no moment, unless it has also been shown that the circumstances are such that the fingerprint could have been impressed only at the time relevant to the crime as alleged.”

The rule quoted has its Connecticut genesis in two cases: State v. Mayell, 163 Conn. 419, 311 A.2d 60 (1972), and State v. Payne, 186 Conn. 179, 440 A.2d 280 (1982). In Mayell, the defendant’s conviction was set aside because it was based primarily, if not solely, on fingerprint evidence. Such evidence had little meaning, however, because the defendant was regularly employed to drive the vehicle in which his fingerprint was found and he was rightfully in the vehicle only six hours before the crime was allegedly committed. In Payne, the defendant’s conviction was based solely on fingerprint evidence. It was reversed on the ground that there was insufficient evidence to convict because there was no corroboration of the state’s claim that the defendant’s fingerprint had been impressed on the victim’s automobile at the time of the crime.

Those cases stand for the proposition “that a conviction may not stand on fingerprint evidence alone unless the prints were found under such circumstances that they could only have been impressed at the time the crime was perpetrated.” State v. Payne, supra, 182. Under the circumstances of this case the requested instruction would have been inappropriate. See State v. Gasparro, 194 Conn. 96, 113, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828,106 S. Ct. 90, 88 L. Ed. 2d 74 (1985). Such an instruction is germane where the fingerprints of an accused constitute the only evidence, or the principal evidence to convict. Here, however, contrary to the usual criminal case, the thumb print of the victim, not that of the accused, was in evidence and constituted only one piece of circumstantial evidence offered to prove a collateral issue. To have given the requested charge that the victim’s fingerprint “was in and of itself of no moment,” would have instructed the jury in a manner unrelated to the factual situation and the reason for which the fingerprint was offered. That reason was, not as in Mayell and Payne to prove beyond a reasonable doubt the presence of the accused at the scene of the crime at the time of the crime, but rather as circumstantial evidence tending to prove that the victim had been in the Cacchillo automobile at some point. It was for the jury to determine whether the victim’s thumb print, coupled with the other evidence, had evidentiary value as proof that she was there on the evening of September 10.

The trial court apparently concluded that, under the factual circumstances of this case, the defendant’s request to charge was misleading and unwarranted. See State v. Vass, 191 Conn. 604, 620-21, 469 A.2d 767 (1983); State v. Maturo, 188 Conn. 591, 600, 452 A.2d 642 (1982). We agree. There was no error in refusing to charge in accordance with that request. The trial court should submit to the jury only those issues relevant to the facts in issue. Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436 (1978).

D

The defendant next claims that the trial court erred by refusing to instruct the jury in accordance with his request concerning the erasure of the tape of James Carrano’s telephone call to the New Haven police department on September 11. The defendant’s request to charge would have required the trial court to instruct the jury that because the tape was lost through the fault of the state he was entitled to an inference that the tape, if available, would have been favorable to the defendant and adverse to the state. We disagree.

As we indicated earlier, there is a logical nexus between the failure to call an available witness and drawing an adverse inference against the party who fails to call that witness. Secondino v. New Haven Gas Co., supra, 674. When physical evidence, however, such as this tape, is lost prior to trial, and not destroyed intentionally to thwart the defense, there is no logical connection between the failure to produce the evidence and an adverse inference. It is the failure to produce available evidence that leads to a logical adverse inference. Savard v. Marine Contracting, Inc., 471 F.2d 536, 541-42 (2d Cir. 1972), cert. denied sub nom. Savard v. Perini Corporation, 412 U.S. 943, 93 S. Ct. 2778, 37 L. Ed. 2d 404 (1973); State v. Hogan, 67 Conn. 581, 584, 35 A. 508 (1896); B. Holden & J. Daly, Connecticut Evidence § 65 (a). Lost or destroyed evidence may, in some instances, evoke sanctions. Practice Book § 755. Sanctions, however, must be distinguished from inferences. “[An] inference to be drawn must be one which in common experience leads naturally and logically to the fact inferred or presumed.” Reliance Ins. Co. v. Commission on Human Rights & Opportunities, supra, 489. The fact that the September 11 tape was unavailable does not lead naturally and logically to the conclusion that its contents were unfavorable to the state and favorable to the defendant. The testimony in this case, in fact, indicated that the taped telephone call in question was routine, brief and neutral. The trial court did not err in refusing to give the defendant’s requested instruction.

V

The defendant next claims that the trial court committed reversible error by denying the defendant’s oral motion for disqualification from sentencing. The defendant’s motion to recuse was based on his claim that the trial judge, prior to his scheduled sentencing, received and read a letter from Detective Leonard Pastore of the New Haven police department. Pastore’s letter contained unsubstantiated, inflammatory comments and accusations concerning the defendant. The trial court, on the record, acknowledged receiving and reading the letter but stated that it was “disregarding all [its] contents.”

The defendant’s motion for disqualification was procedurally deficient in that it was unaccompanied by either an affidavit setting forth the facts upon which it relied or a certificate of counsel attesting to the fact that the motion was made in good faith. The defendant’s motion does not, therefore, comply with § 997 of the Practice Book. A motion to disqualify a judicial officer because of the claimed possibility of bias is a serious matter. If counsel makes such a motion, it is not asking too much to require that he or she follow the established rules that treat it as such. Oral motions to disqualify simply do not comport with acceptable procedure. In view, however, of the lengthy sentence imposed on the defendant, we will treat the merits of his motion briefly.

“A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . . ” Code of Judicial Conduct 3.C. (1); State v. Fullwood, 194 Conn. 573, 579, 484 A.2d 435 (1984). Disqualification of a trial judge is not dependent on proof of actual bias. The appearance and existence of impartiality are both essential elements of a fair trial. Cameron v. Cameron, 187 Conn. 163,168-69, 444 A.2d 915 (1982); Postemski v. Landon, 9 Conn. App. 320, 322, 518 A.2d 674 (1986). To impose, however, a requirement that a criminal trial court recuse itself every time it receives unsolicited material uncomplimentary to a defendant prior to trial or sentencing would create an intolerable situation which could lead to a manipulation of the criminal justice system. See United States v. Hillsberg, 812 F.2d 328, 335 (7th Cir.), cert. denied, 481 U.S. 1041,107 S. Ct. 1981, 95 L. Ed. 2d 821 (1987). The trial court in this instance, on the record, brought the letter he had received to the attention of the defendant and noted that there was no basis for giving its allegations credence. He then emphatically and categorically stated that he could, and would, disregard the letter’s contents. There is no reason to believe he could not do so, or that a reasonable person would have cause to question his ability to do so.

The defendant claims that the fact that the trial court sentenced the defendant to the maximum statutory period of incarceration for murder clearly manifested partiality or its appearance. We disagree. The fact that a trial court rules adversely to a defendant does not demonstrate bias. Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984), cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985); Payton Health Care Facilities, Inc. v. Estate of Campbell, 497 So. 2d 1233, 1238 (Fla. App. 1986). The defendant’s previous criminal record and the brutal nature of the crime of which he was convicted fully warranted the punishment imposed.

VI

The defendant’s final claim is that the evidence adduced at his trial was insufficient to sustain a conviction and that the trial court erred by denying his motion for acquittal. “When the claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. ‘We must first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus estabished and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .’ ” (Citations omitted.) State v. Simino, 200 Conn. 113,116-17, 509 A.2d 1039 (1986); State v. Rodriquez, 200 Conn. 685, 687, 513 A.2d 71 (1986). “The relevant question in our review ‘ “ ‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .’ ” ’ ” (Emphasis in original; citations omitted.) State v. Rodriquez, supra, 688.

After a scrupulous review of the record we think it manifest that there was more than sufficient evidence to allow the jury to have found beyond a reasonable doubt that the defendant was guilty of the murder of the victim.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . . .”

       Cacchillo had not observed any bloodstain on the front seat prior to September 10. There was testimony, however, that her daughter, who had type A blood, had suffered an injury to her foot and had bled in the car some time in August.

       “[Practice Book] Sec. 997.—procedure
      “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”

       Judge Hadden succinctly stated his recollection of the role he played in the “plea negotiations”: “My recollection of the so-called 9:30 pretrial is in accord with Mr. Clifford’s recollection. When I became presiding judge or acting presiding judge, whatever I was for six months, as cases came on the 9:30 [a.m.] list that had previously been pretried, the first pretrial which is held at two o’clock with Judge Kinney, I looked in his books of notes to see what he had to say about the case. And it said it was a murder case. I think it made reference to Hamden. I think it made reference to the victim being found buried under rocks or something like that. I think it indicated that the defendant had a prior criminal record of some consequence. And Judge Kinney had written down, state wants fifty-five. And as he puts it down, 55 anos, which I gather is Spanish for years. And that’s all it said.
      “And when you came in, if you say you came in in February, I assume there was a 9:30 [a.m.] pretrial, whatever took place, I have no recollection of ever discussing the facts of this case. I don’t know the facts of this case at this moment. When you say strengths and weaknesses, I don’t know the strengths and weaknesses of this case. I don’t think I ever opened that file until today. And when I do pretry cases and actively participate in them, even when I do not actively participate in the plea bargain negotiations, I make notes as to what takes place. And there are no notes in that notebook, which means that the pretrial, if you want to call it that, was along the lines of what Mr. Clifford had said. I looked at the thing, and there is a 55-year figure being mentioned by the state. I look at the defendant, are you interested? No. That’s the end of it. It was at that point I think, Mr. Sweeney, you did indicate that you were engaged in some type of psychiatric investigation. I think it was at that time, but I’m not sure on that. But for sure, this court did not actively participate in the negotiations of a plea bargain, which is what you have to establish to show that I should be recused or excused from sitting on this case. I don’t think there’s any merit to this motion at all, not in the slightest.
      “Therefore, your motion is denied.”

       The defendant contends that because the trial court ruled adversely to him on two pretrial motions, subsequent to the denial of his motion to recuse, bias or its appearance was demonstrated. We disagree. Hartford Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984); Payton Health Care Facilities, Inc. v. Estate of Campbell, 497 So. 2d 1233,1238 (Fla. App. 1986).

       “[Practice Book] Sec. 752.--production following testimony
      “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       The trial court stated: “Intentionally destroyed, yes, but not intentionally destroyed to deprive counsel in this case or the defendant in this case from access.”

       “[Practice Book] Sec. 755.--failure to comply with order
      “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”

       Officer Arthur Granucci of the New Haven police department was sent to the Carrano home the morning of September 11 and spoke to James Carrano on the front porch for approximately ten or fifteen minutes. Granucci’s report Was made available to the defense.

       The cross-examination of Janice Carrano was relatively short and barely touched on her statement of September 20 to the Hamden police. The concentration during cross-examination appears rather to have been on what information she had given to Detective Leonard Pastore of the New Haven police department over a week earlier.

       The defendant does not argue in Ms brief that the trial court’s charge concerning sanity was constitutional error so as to require application of the reasonably possible standard. State v. Annunziato, 169 Conn. 517, 532 n.7, 363 A.2d 1011 (1975). Even under that standard, however, the charge would withstand scrutiny. See State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976).

       The defendant claims that it was possible for the victim’s thumb print to have been left at a time other than when the crime was committed because the Cacchillo vehicle was frequently in the Fair Haven section and the victim lived and occasionally shopped in that area.

       This was James Carrano’s telephone call to the New Haven police department in which he first reported his wife’s disappearance.

       The fact that in State v. Hamele, 188 Conn. 372, 382, 449 A.2d 1020 (1982), and in State v. Doolittle, 189 Conn. 183, 200 n.23, 455 A.2d 843 (1983), the trial court, in an abundance of caution or generosity, gave an adverse inference instruction because the state lost physical evidence does not mean that such instructions were required.

       It is the defendant’s contention that the letter would necessarily have “tainted” the perception of the trial judge at sentencing.

       It goes almost without saying that Pastore’s letter was inappropriate.