author: Dannehy, J.

text:
    State of Connecticut v. Anthony Vessichio
    (11550)
    Peters, C. J., Shea, Dannehy, Santaniello and Stoughton, Js.
    Argued October 10
    decision released November 26, 1985

      William F. Dow III, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom were Patrick J. Clifford, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, for the appellee (state).
   Dannehy, J.

A jury found the defendant guilty of conspiracy to sell a narcotic substance; General Statutes §§ 21a-277 (a) and 53a-48 (a); and guilty of three counts of distributing or transporting a narcotic substance with intent to sell or dispense. General Statutes § 21a-277 (a). He claims on appeal that the trial court erred: (1) in failing to instruct the jury that the state was required to prove beyond a reasonable doubt that the narcotic substance was cocaine; (2) in denying the defendant’s request to charge on the lesser included offense of possession of a narcotic substance; (3) in admitting the out-of-court statements of an alleged co-conspirator; (4) in refusing to strike the testimony of the state’s key witnesses whose field notes were intentionally destroyed; and (5) in admitting evidence of other crimes. We find no error.

The state’s principal witness was Ellis Crawford, a Stratford policeman who, in 1979 and 1980, was working as an undercover agent for the statewide narcotics task force. Crawford, who never met the defendant, testified extensively about his purchases of cocaine, on five separate occasions, from the defendant’s intermediary and alleged co-conspirator, Mark Violano. Crawford’s most damaging testimony was that relating to certain statements, made to him by Violano, confirming the defendant’s involvement in the illegal cocaine transactions. Crawford’s testimony was corroborated in large measure by the testimony of surveillance officers who “covered” Crawford during his dealings with Violano. Violano himself did not testify at the defendant’s trial.

The first purchase was made on October 29, 1979. Crawford met Violano at Soffer’s Barn restaurant in New Haven, where, after testing a sample of cocaine provided to him, he agreed to purchase a quarter of an ounce for $500. Violano drove Crawford to the intersection of Glen Haven and Norwood Avenues. There, according to Crawford, Violano said the “man he purchased the drug from, his source, lives around the corner.” The defendant’s motor vehicle registration listed his address as 145 Glen Haven Avenue. Violano left on foot, returning in several minutes without the cocaine, explaining that his source needed more time to cut the package. While they waited, Violano told Crawford that his source was a childhood friend and described him as a “fat slob.” Violano again left, on foot, and returned a few minutes later with the cocaine. In the future, Violano told Crawford, “just let [me] know, [my] source always [has] a package.”

Crawford and Violano met again at the Soffer’s Barn restaurant on November 27,1979. Violano stated that “fat boy,” his source, “had been dealing for a while, [was] kind of concerned about cops, [and] wouldn’t sell to anyone he did not know.” Violano brought Crawford to his home where, shortly thereafter, the defendant drove up in a gray van. After receiving $500 from Crawford, Violano left the house and entered the van, leaving the front passenger door open. Crawford observed through the living room window as Violano handed “what appeared to be my money to the defendant, who handed him a packet I could see.” Violano then returned to the house and delivered to Crawford a packet, which Crawford tested and found to be cocaine.

Officer George Nobile, also of the statewide narcotics task force, provided surveillance and protective cover for Crawford during his dealings with Violano. On November 27, 1979, during the second transaction, Nobile placed himself where he could observe both the parking lot of Soffer’s Barn restaurant and the home of Mark Violano, which was located less than one block away. He first observed the defendant drive up to Violano’s house in his gray van. He saw the defendant enter the house, remain for several minutes, and then leave. He next observed Crawford arrive at Soffer’s Barn restaurant and park his vehicle to await Violano. Violano soon left his house and drove to the restaurant where he met Crawford. After speaking briefly in the restaurant parking lot, Violano brought Crawford back to his house. Shortly thereafter, the defendant arrived once again in his gray van. Nobile saw Violano leave the house and enter the van, but he could not see what occurred inside. After a few minutes, Violano exited from the van, and the defendant drove away.

The third transaction took place three days later, on November 30,1979, at Violano’s residence. This time, while Crawford and Violano waited in the latter’s home, the defendant drove up in a brown Ford LTD which was registered to Nancy Vessichio of the defendant’s address. Crawford gave Violano $1000, Violano entered the defendant’s vehicle, and he returned with half an ounce of cocaine. Violano told Crawford that he would “talk to Ant about getting a better price.”

The next transaction occurred on December 11,1979, once again at Violano’s residence. Violano informed Crawford that “Ant” was going to send someone else with the cocaine, and that “Ant” was “going to be driving around the neighborhood to see if there were any cops.” Soon, Claude Vergutto arrived on a motorcycle with one-half ounce of cocaine, for which Crawford paid $850. Nobile, conducting surveillance, observed the defendant in his gray van driving slowly through the neighborhood during the transaction. After Crawford left the house, Nobile saw the defendant’s van pull up, and Violano and Vergutto enter.

The final transaction took place on January 10,1980. Shortly after Crawford arrived at Violano’s home, the defendant drove up in the brown Ford LTD. Crawford gave Violano $2000, and Violano went to the car and returned several minutes later with two packages of cocaine. Crawford expressed dissatisfaction with the high prices being charged and told Violano that instead of buying through him he would rather buy directly from the “source.” Violano, who was temporarily unemployed, responded that he would soon be returning to work and thus “getting out of the business.” According to Crawford, Violano told him “that from then on he would turn me on to Anthony; because he believed Anthony trusted me at that point.” Before Crawford could make a direct purchase from the defendant, however, the investigation was terminated for lack of funding.

Additional facts will be discussed as we consider the various claims raised by the defendant.

I

The defendant first claims that the trial court erred by failing to instruct the jury that the state was required to prove beyond a reasonable doubt that the substance purchased by Crawford from Violano was cocaine. An essential element of the crime of transporting a narcotic substance with the intent to sell; General Statutes § 2 la-277 (a); is that the substance transported be a “narcotic substance” as defined in General Statutes § 21a-240 (30). The defendant did not apprise the trial court of its purported failure to instruct on this element; he brings his claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). “The right to be acquitted unless proven guilty beyond a reasonable doubt of each element of the charged offense is a fundamental constitutional right protected by the due process clauses of the federal and Connecticut constitutions. U.S. Const., amend. XIV; Conn. Const., art. I § 8; see In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984). This court has consistently held that colorable claims that jury instructions violated this aspect of due process are appealable even when not raised below. See, e.g., State v. DeMatteo, 186 Conn. 696, 705-706, 443 A.2d 915 (1982); State v. Perez, 181 Conn. 299, 311, 435 A.2d 334 (1980); State v. Arroyo, 180 Conn. 171, 173-74, 429 A.2d 457 (1980).” State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984).

Upon review of the trial court’s entire charge, it becomes apparent that the defendant mischaracterizes the instructions relating to proof beyond a reasonable doubt that the substance was cocaine. The trial court correctly charged the jury twenty-three times on the principle of reasonable doubt, and this tally does not include the court’s opening instructions on the general meaning of reasonable doubt. In its charge, the trial court stated repeatedly that the defendant was accused of transporting “a narcotic substance, to wit, cocaine,” in close connection with its further instructions that the state must prove each and every element of the crimes charged beyond a reasonable doubt. We simply do not agree that the jury could possibly have been misled on this point. A portion of the charge is printed in the footnote.

The defendant’s essential complaint is that the trial court did not “define the meaning of the words narcotic substance or instruct the jury specifically that the nature of the substance was an element of the crime which the [s]tate had to prove beyond a reasonable doubt.” With regard to the definition of “narcotic substance,” the trial court correctly instructed the jury that “cocaine is a narcotic substance.” Under our law, the jury was not at liberty to conclude otherwise. General Statutes § 21a-240 (30). In this case the defendant was accused of transporting only one type of narcotic substance, cocaine, and no other. Therefore, it was unnecessary for the trial court to define “narcotic substance” as if the jury were required to determine for itself whether cocaine fell within that definition. The charge was “correct in law and adapted to the issues,” as our cases require. See, e.g., State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982).

As to the defendant’s assertion that the trial court did not “specifically” instruct the jury that the nature of the substance was an element of the crime, we agree that it would have been preferable for the court to have made such an instruction. We note, however, that this language was not suggested at trial, and we do not require technical perfection in jury instructions. State v. Mason, supra. The relevant issue, insofar as this claim of error is concerned, is whether or not the jury reasonably understood from the instructions that the state was obliged to prove beyond a reasonable doubt that the defendant transported cocaine. Two expert witnesses presented by the state, Wayne Phillips, a forensic chemist with the federal drug enforcement administration, and Joel Milzoff, a toxicologist for the state of Connecticut, testified that they tested the substance and found that it was cocaine. Officer Crawford testified that while working undercover he field tested the substances received, in the presence of Violano, to make sure that he was purchasing cocaine. And finally, reproduced in the footnote, is a single segment of the trial court’s charge, representative of the whole, which convinces us that the jury was adequately instructed that it was required to find beyond a reasonable doubt that the substance was cocaine.

Viewing the charge as a whole, we do not believe that it is reasonably possible that the jury was misled by the court’s failure to instruct specifically that the nature of the substance must be proved by the state beyond a reasonable doubt. See State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985).

II

The defendant next claims that the trial court erred in denying his request to charge on the lesser included offense of possession of a narcotic substance, in violation of General Statutes § 21a-279. The defendant properly filed this request to charge prior to closing arguments; Practice Book § 852; and took an exception when the charge was not given.

In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), this court determined that a lesser included offense instruction should be given when: “(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.”

The first three requirements of Whistnant have been clearly satisfied in this case. As noted, the defendant filed a timely request for an instruction on the crime of simple possession. Further, the defendant could not have distributed cocaine with the intent to sell, in the manner described in the state’s pleadings, without first having possessed the cocaine. Finally, the evidence introduced at trial satisfies the third requirement of Whistnant that there be some evidence which would justify conviction on the lesser charge of possession. We disagree with the defendant’s claim, however, that the fourth requirement of this test has been met.

The defendant was charged with transporting and distributing cocaine to Violano, with the intent that it be sold to Crawford who was working in an undercover capacity. The difference between that crime and the crime of possession of narcotics, reduced to its essentials, lies in the element of an intent to sell. The fourth prong of Whistnant requires that the proof of the element of intent to sell be sufficiently in dispute to permit the jury consistently to find the defendant not guilty of the greater offense but guilty of the lesser. In this case, the defendant did not present any witnesses or offer any evidence from which the jury might have found that he merely possessed cocaine without the further intent that it be sold to Crawford. On the contrary, the defendant by his plea of not guilty denied each and every allegation against him contained in the information and bill of particulars. Included in this denial were both the allegation that he intended to sell cocaine and the allegation, implicit in the charging documents, that he possessed cocaine in the course of his transporting and delivering it to Violano.

Nor did the state introduce evidence from which the jury might consistently have found the defendant not guilty of possession with intent to sell, but guilty of simple possession. On the facts of this case, it is inconceivable that the jury might credit the state’s evidence relating to the defendant’s possession of cocaine without crediting that same evidence as it related to the defendant’s intent to sell the cocaine in his possession. The state’s presentation of evidence at trial leads ineluctably to the conclusion that the defendant, if involved at all, was involved in the distribution of cocaine with the intent to sell, and not as a mere possessor. The element of intent to sell, which differentiates the greater from the lesser offense, was not sufficiently in dispute so as to entitle the defendant to the requested instruction on possession. We find that the trial court did not err m refusing to charge on the lesser included offense of possession of a narcotic substance.

Ill

The defendant claims that the trial court erred in admitting the out-of-court statements of Violano, who did not testify at the defendant’s trial, under the co-conspirator exception to the hearsay rule. In the fourth count of the information, the defendant was charged with conspiracy to sell cocaine, in violation of General Statutes §§ 21a-277 (a) and 53a-48 (a). In his twofold claim of error the defendant challenges the sufficiency of both the evidentiary and constitutional foundations necessary for the admission of a nontestifying co-conspirator’s statements. The issues raised under this claim of error present matters of first impression to this court. The evidentiary and constitutional limitations on the co-conspirator exception to the hearsay rule are, however, frequently litigated in the federal courts. We find the federal case law instructive and will therefore use it as an aid in deciding the issues before us.

We first address the defendant’s contention that “there was insufficient independent evidence to establish either the existence of the conspiracy or that both Violano and Vessichio participated in such a conspiracy.” The United States Court of Appeals for the Second Circuit has articulated standards to permit introduction of statements under the co-conspirator rationale. Before such statements may be admitted, the trial judge must make a preliminary determination that there is sufficient independent evidence to establish the following: “(1) that a conspiracy existed, United States v. Nixon, 418 U.S. 683, 701 n.14, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974); (2) that the conspiracy was still in existence at the time the statement was made, United States v. DeVaugn, 579 F.2d 225, 227-28 (2d Cir. 1978); citing Krulewitch v. United States, 336 U.S. 440, 69 S. Ct. 716, 93 L. Ed. 790 (1949); (3) that the declarations were made in furtherance of the conspiracy, United States v. Lang, 589 F.2d 92, 99 (2d Cir. 1978); and (4) that both the declarant and the defendant participated in the conspiracy, United States v. Cafaro, 455 F.2d 323, 326 (2d Cir.), cert. denied, 406 U.S. 918, 92 S. Ct. 1769, 32 L. Ed. 2d 117 (1972); United States v. Calabro, 449 F.2d 885, 889 (2d Cir. 1971), cert. denied, 405 U.S. 928, 92 S. Ct. 978, 30 L. Ed. 2d 801 (1972).” United States v. Lyles, 593 F.2d 182, 194 (2d Cir.), cert. denied, 440 U.S. 972, 99 S. Ct. 1537, 59 L. Ed. 2d 789 (1979); State v. Tropiano, 158 Conn. 412, 421-24, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970); see also 1 Weinstein, Evidence (1982) § 104 [05]; Fed. R. Evid. 801 (d) (2) (E). The court must make its preliminary determination by a “fair preponderance of the evidence independent of the hearsay utterances”; United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied sub nom. Lynch v. United States, 397 U.S. 1028, 90 S. Ct. 1276, 25 L. Ed. 2d 539 (1970); a standard which is lower than the standard of evidence required to submit a charge of conspiracy to the jury. Id., 1119-20; United States v. Ragland, 375 F.2d 471, 477 (2d Cir. 1967), cert. denied, 390 U.S. 925, 88 S. Ct. 860, 19 L. Ed. 2d 987 (1968). “Once the ‘threshold requirement for admissibility is satisfied by a showing of a likelihood of an illicit association between the declarant and the defendant,’ United States v. Ragland, [supra, 477], the conspirators’ statements are admissible and they ‘might tip the scale’ in favor of the defendant’s guilt, United States v. Geaney, supra, [1120].” United States v. Alvarez-Porras, 643 F.2d 54, 57 (2d Cir. 1981).

The question before us differs from the usual determination of whether the evidence at trial is sufficient to sustain the jury’s verdict. Our present analysis is limited to a review of the evidence, excluding Violano’s statements, only in terms of its sufficiency to sustain the trial court’s preliminary determination, by a preponderance of the evidence, that Violano and the defendant were participating in a conspiracy when these statements were made. While this standard of evidentiary review is less exacting, we must nevertheless examine the evidence to be satisfied that the standard has been met.

To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982). “The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are ‘knowingly engaged in a mutual plan to do a forbidden act.’ State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 [1970]. A conviction of the crime of conspiracy can be based on circumstantial evidence, for conspiracies, by their very nature, are formed in secret and only rarely can be proved otherwise than by circumstantial evidence. State v. Holmes, supra, 150.” State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975); State v. Hayes, 127 Conn. 543, 554, 18 A.2d 895 (1941). The evidence will be construed in a way most favorable to sustaining the preliminary determinations of the trial court; its conclusions will not be disturbed on appeal unless found to be clearly erroneous. Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Measured against these standards, the defendant’s challenge to the evidentiary foundation necessary for the admission of Violano’s statements must fail. Crawford testified that on five separate occasions he purchased relatively large amounts of cocaine from Violano. On three of those occasions he handed the purchase money to Violano, and then watched Violano take the money to the defendant’s vehicle and return with the cocaine ordered. On one occasion Crawford actually witnessed the exchange being made. Nobile testified that before Crawford arrived to meet Violano, the defendant would make a preliminary appearance at Violano’s residence. On one occasion, when the cocaine was delivered by Claude Vergutto, the defendant cruised slowly through the neighborhood in his van. When the transaction was completed and Crawford departed, the defendant drove to Violano’s house and picked up Violano and Vergutto.

While this evidence is not overwhelming, we believe that it is sufficient to sustain the trial court’s preliminary finding, by a preponderance of the evidence, that Violano and the defendant were involved in a conspiracy to sell cocaine. The trial court did not err in finding the evidence of participation sufficient to allow the admission of Violano’s statements.

The defendant also claims that the admission of Violano’s statements violated his right to confrontation under the sixth amendment to the United States constitution. Relying on Ohio v. Roberts, 448 U.S. 56, 65, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), the defendant argues that the state was required “either [to] produce, or [to] demonstrate the unavailability” of Violano before his out-of-court statements could be admitted into evidence. The state concedes that it gave no reason at trial for its failure to call Violano as a witness.

In Ohio v. Roberts, supra, the United States Supreme Court established a two-pronged test to determine whether admission of an out-of-court statement violates the confrontation clause. The first prong looks to the necessity of admitting the statement by examining whether the hearsay declarant is unavailable to testify. The second prong looks to the reliability of the statement. “In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ ” Id., 66.

The Roberts case, however, does not deal with a co-conspirator’s statement, but with a witness’ prior testimony that had been given at a preliminary hearing. Thus, despite the broad confrontation language used in Roberts, the Federal Circuit Courts of Appeal remain divided on the question whether Roberts has modified the holding in Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970). In Dutton, the United States Supreme Court rejected a constitutional challenge based upon the admission of a co-conspirator’s statement despite the absence of any showing that the out-of-court declarant was unavailable. While some courts conclude that Roberts has modified the traditional co-conspirator rule; see, e.g., United States v. Caputo, 758 F.2d 944 (3d Cir. 1985); United States v. Ordonez, 737 F.2d 793 (9th Cir. 1984); others continue to hold that the only test for admissibility of a conspirator’s out-of-court statement is whether the statement complies with rule 801 (d) (2) (E) of the Federal Rules of Evidence. E.g., United States v. Williams, 737 F.2d 594, 610 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985).

We conclude that a defendant’s right of confrontation is not violated despite the absence of the out-of-court declarant if the statement “bears sufficient indicia of reliability to assure the trier of fact an adequate basis for evaluating the truth of the declaration . . . .” United States v. Puco, 476 F.2d 1099, 1107 (2d Cir.) (on petition for rehearing), cert. denied, 414 U.S. 844, 94 S. Ct. 106, 38 L. Ed. 2d 82 (1973); accord United States v. Pagan, 721 F.2d 24, 31 (2d Cir. 1983); United States v. Perez, 702 F.2d 33, 37 (2d Cir.), cert. denied, 962 U.S. 1108, 103 S. Ct. 2457, 77 L. Ed. 2d 1336 (1983); cf. State v. King, 187 Conn. 292, 315, 445 A.2d 901 (1982). Factors relevant to a determination of reliability include: “(1) whether the context of the statements and the persons to whom they were made suggest that they were reliable; (2) whether the declarant had a motive for lying or problems with his or her memory, perception or expression; and (3) whether the declarant had personal knowledge of the identity and role of the participants in the crime.” United States v. Massa, 740 F.2d 629, 639 (8th Cir. 1984); United States v. Ordonez, supra, 802-803. In the present case, Violano, the declarant, allegedly told Crawford that his source was a childhood friend, and described him as a “fat slob.” Nobile testified that the defendant was a “heavy set” individual. When Violano and Crawford were parked at the corner of Glen Haven and Norwood Avenues, Violano stated that his source lived around the corner and, in fact, proceeded to and from his source’s location in a matter of minutes. Police determined that the defendant resided at 145 Glen Haven Avenue. Further, Violano variously identified his source as “Ant” or “Anthony,” and his movements from his house to the defendant’s automobile, where the exchanges of money for cocaine allegedly took place, were monitored by both Crawford and Nobile. On one occasion Violano informed Crawford that a courier would deliver the cocaine because the defendant was suspicious and wanted to drive around the neighborhood checking for police. Violano’s statements proved accurate when Claude Vergutto arrived with the delivery, and Nobile observed the defendant driving through the neighborhood.

In addition to their factual accuracy, the statements themselves were of a nature which indicates their probable reliability. Violano spoke from personal knowledge, and his statements were neither odd, farfetched, nor inconsistent with the events observed by Crawford and Nobile. Further, Violano had no reason or motive to lie to Crawford. If he had suspected that Crawford was an officer he would not have continued to sell cocaine to him. And finally, Violano’s statements were not self-serving, which might cast doubt on their reliability. If anything, his statements were against his penal interest. Courts have traditionally found statements against penal interest to carry their own indicia of reliability. United States v. Pagan, supra; United States v. Perez, supra; see United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971). In an analogous situation, we have applied this principle “to find adequate verification of the reliability of an informant’s naming of other participants in a crime where at least some significant details of his account of the crime itself have been corroborated independently, as in this case.” State v. Daley, 189 Conn. 717, 722, 458 A.2d 1147 (1983); State v. Just, 185 Conn. 339, 360-69, 441 A.2d 98 (1981); State v. Ferguson, 185 Conn. 104, 114-15, 440 A.2d 841 (1981). The admission of these statements did not violate the defendant’s sixth amendment right of confrontation. See State v. King, supra, 314-15.

IV

The defendant next claims that the trial court erred in denying his motion to strike the testimony of Crawford and Nobile, whose field notes had intentionally been destroyed. Crawford conceded that the original notes of his transactions with Violano had been destroyed, and that the first time he ever reduced Violano’s alleged statements to writing was several weeks before trial, some eighteen months after the transactions with Violano had been concluded. The handwritten notes of Nobile were similarly destroyed.

We have previously held that the rough field notes of an investigating officer who testifies may qualify as a “statement of the witness” subject to production under Practice Book § 752. State v. Hinton, 196 Conn. 289, 300, 493 A.2d 836 (1985); State v. Anonymous (83-FG), 190 Conn. 715, 733, 463 A.2d 533 (1983). We have further held that the routine destruction of statements that would otherwise be subject to disclosure under Practice Book § 752 cannot excuse their nondisclosure. State v. Myers, 193 Conn. 457, 467-70, 479 A.2d 199 (1984). Although we strongly disapprove of the routine destruction of discoverable material, we have only recently begun to consider the severe sanction of remand and retrial without permitting the testimony of the police witness whose notes have intentionally been destroyed. State v. Myers, supra; see United States v. Bufalino, 576 F.2d 446, 448-50 (2d Cir.), cert. denied, 439 U.S. 928, 99 S. Ct. 314, 58 L. Ed. 2d 321 (1978). As a practical matter, however, we recognize that, in general, the routine practices which we condemn were employed in the investigation of cases tried prior to the heightened concern expressed in our recent decisions. See, e.g., State v. Milum, 197 Conn. 602, 614-18, 500 A.2d 555 (1985); State v. Myers, supra.

Therefore, we continue to employ a balancing test in determining whether a witness’ testimony must be suppressed when his written statements, otherwise discoverable under Practice Book §§ 748 through 755, have intentionally been destroyed. “ ‘Whether or not sanctions for nondisclosure should be imposed depends in large measure upon the extent of the Government’s culpability for failure to make disclosable material available to the defense, on the one hand, weighed against the amount of prejudice to the defense which resulted, on the other.’ ” 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), quoting United States v. Miranda, 526 F.2d 1319, 1324 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S. Ct. 69, 50 L. Ed. 2d 82 (1976). “Since access to the statements of witnesses for the prosecuting authority is not a constitutional right; United States v. Augenblick, 393 U.S. 348, 356, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969), on remand, 509 F.2d 1157 (Ct. Cl.), cert. denied, 422 U.S. 1007, 95 S. Ct. 2628, 45 L. Ed. 2d 669 (1975); State v. Pikul, 150 Conn. 195, 202, 187 A.2d 442 (1962); the burden of showing prejudice rests on the defense. State v. Anonymous (83-FG), 190 Conn. 715, 735, 463 A.2d 533 (1983); State v. Gonzales, 186 Conn. 426, 436 n.8, 441 A.2d 852 (1982); State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980); see also California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).” State v. Myers, supra, 469 n.7.

In the present case we cannot agree that the defendant suffered prejudice through his inability to inspect the handwritten notes of Crawford and Nobile. The defendant suggests that Crawford testified untruthfully to the statements allegedly made to him by Violano. He contends that, had these statements in fact been made, Crawford would have included them in his original handwritten notes. Since Crawford’s notes were intentionally destroyed, the defendant claims that he has been prejudiced by his inability to compare these notes to Crawford’s in-court testimony.

Crawford testified that he did not take contemporaneous notes of the actual transactions with Violano. He prepared rough notes sometime after the transactions occurred, although he could not recall the precise time. After the last transaction was completed, on January 10,1980, Crawford gave his handwritten notes to his secretary, who prepared a typewritten copy, which was signed by Crawford on January 24, 1980. The handwritten originals were thereafter destroyed.

The January 24, 1980 typewritten report did not mention the statements allegedly made by Violano to Crawford. From this it was fairly inferrable that the originals also failed to contain the alleged statements. This point was not lost on trial counsel, who, during cross-examination of Crawford, did an admirable job of exposing this omission to the jury. The same is true with respect to Violano’s alleged offer, made during the January 10, 1980 transaction, to introduce Crawford to his source; and to Crawford’s claim that he saw, during the November 27,1979 transaction, a hand-to-hand exchange between Violano and the defendant. Neither of these events are included in Crawford’s January 24,1980 report. Further, Nobile testified that he could not recall Crawford having reported these events orally to him when they allegedly occurred.

Crawford was cross-examined extensively on these matters. He never claimed that he included these events and statements in his original handwritten notes. Nor did he claim to have reported to Nobile all that happened during his meetings with Violano. The defendant argued at trial that Crawford would naturally and necessarily have included in his field notes such important statements and events had they in fact occurred. The effect of this argument was not significantly lessened when the defendant was given a typewritten report which, according to Crawford, was a verbatim copy of his original handwritten notes. Crawford virtually conceded that his original notes contained no account of the statements and events to which he testified. These omissions were no less conspicuous, and no less damaging to his credibility, when found in his later, typewritten report. The jury had adequate grounds to disbelieve Crawford’s testimony. That it chose not to do so was well within its province. We find that the trial court did not err in refusing to strike the testimony of Crawford and Nobile.

V

The defendant’s final claim is that the trial court erred in admitting evidence of the defendant’s subsequent conviction for the sale of marihuana. The state offered evidence that on May 6, 1980, some four months after the last transaction between Crawford and Violano, a marihuana sale involving the defendant took place in the parking lot of the Mine-Cine, a cinema house located directly across the street from the Soffer’s Barn restaurant. Nobile, working undercover, first met with George Mauro in the cinema parking lot and arranged to purchase twenty pounds of marihuana for $10,000. Mauro then drove to 145 Glen Haven Avenue and parked his vehicle behind the defendant’s gray van. In a short while Mauro returned to the cinema parking lot with the marihuana, followed by the defendant, who parked his van approximately thirty feet away. Both Mauro and the defendant were arrested when Nobile determined that the marihuana was in Mauro’s car, but before the actual exchange took place. The defendant subsequently pleaded guilty to the charge of sale of marihuana.

Evidence of other crimes “is admissible to prove intent, an element of the crime, identity, or a system of criminal activity if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency. State v. Barlow, 177 Conn. 391, 393-94, 418 A.2d 46 (1979). When subjected to appellate review, every reasonable presumption should be given in favor of the trial court’s ruling. Id. Only where it appears that either the trial court abused its discretion or an injustice has been done will this court find reversible error on the basis of this sort of evidentiary ruling. State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 (1975).” State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980); see also State v. Braman, 191 Conn. 670, 676-77, 469 A.2d 760 (1983).

In its offer of proof, the state claimed that the evidence of the subsequent marihuana sale was admissible to show that the defendant’s presence at the scene of the cocaine transactions between Crawford and Violano was not coincidental. The defendant’s counsel, at various junctures in the trial, argued that the defendant’s mere presence near these transactions was insufficient to establish his involvement in the illegal activity. This claim was most prominent in connection with the conspiracy charge, as previously discussed. He further asserted, before the jury, his intent “to establish that Mr. Violano was using Mr. Vessichio as a decoy” in order to distract attention from himself, mainly for protection. He argued to the jury that “[r]ip off is the name of the game in this whole drug transaction. So, what kind of insurance policy do you use. You use diversionary tactics. You make it look like somebody’s delivering the stuff to you . . . .” The defense theory throughout trial was that either Violano or Vergutto, the defendant’s courier, was the actual ringleader.

There is no question that, under these circumstances, the evidence of the subsequent marihuana sale was admissible as it showed that the defendant had intentionally engaged in a system of criminal activity. The sale was negotiated directly across the street from the Softer’s Barn restaurant, where Crawford began his transactions with Violano. As before, the undercover narcotics agent conducted business with an intermediary of the defendant. Finally, the defendant, while avoiding a face to face encounter with the undercover buyer, stationed himself nearby in his vehicle at the time and place that the transaction was to occur. The trial court did not abuse its discretion in admitting this evidence on the issue of the defendant’s knowing participation in the crimes with which he was charged. State v. Ryan, supra; State v. Amaral, 179 Conn. 239, 244-45, 425 A.2d 1293 (1979).

There is no error.

In this opinion the other judges concurred.

       “There are four counts, the first three concern the claim by the State, that this defendant did transport, or distribute with the intent to sell, or dispense to another person, one, Mark Violano, a narcotic substance to wit cocaine in violation of Connecticut Statutes. The first incident with which he’s charged supposedly took place on the 27th day of November, 1979 at approximately 1:10 p.m. in the area of 448 Middletown Avenue. You may ask yourself whether or not the state has proved beyond a reasonable doubt, that the defendant on November 27th, 1979 at approximately 1:10 p.m. in the area of 448 Middletown Avenue, [did] distribute or transport with the intent to sell to another person, Mark Violano, a narcotic substance to wit cocaine. You will note from reading the information that I have omitted the word dispense; because there is no evidence in the case to warrant you considering that portion of the charge. There are other words in that statute that require definition, although on the face of them they appear simple enough to understand. Distribute means to deliver. Deliver, means the actual transfer to one person to another. Transport, means to carry or convey from one place to another. Sell, means to dispose by sale. And a sale is any form of delivery which includes barter, exchange, or gift, or offer therefore, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee. And cocaine is a narcotic substance. So, you must ask yourself whether or not the state has established beyond a reasonable doubt, based on the testimony you heard, and the testimony you find credible, whether or not on the 27th day of November, 1979 at approximately 1:10 p.m. in the area of 448 Middletown Avenue, the said defendant Anthony Vessichio, did distribute, or transport with the intent to sell; as I’ve defined the word intent, to another person, one, Mark Violano, a narcotic substance to wit cocaine. If you find each and every element of that crime established beyond a reasonable doubt, you will find him guilty of that, otherwise you will find him innocent of that charge.”

       “The claim is exactly the same by the state, that he distributed it, or transported with the intent to sell to Mark Violano, cocaine. Again, if each and every element of that count has been established beyond a reasonable doubt, then you shall find the defendant guilty of that count, otherwise you must find him innocent. The third count is like the other two, except that the date is again a different date; it’s January 10th, 1980, at approximately 3:35 p.m. in the area of 448 Middletown Avenue. If you find each and every count — each and every element of that count established beyond a reasonable doubt by the testimony introduced, then you will find the defendant guilty of that count. Otherwise you must necessarily find him not guilty.”

       This court has considered the co-conspirator’s exception to the hearsay rule, though it has never addressed it as a constitutional claim. See State v. Tropiano, 158 Conn. 412, 423, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970); Cowles v. Coe, 21 Conn. 220, 234 (1851).


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    State of Connecticut v. Stephanie Tyler-Barcomb State of Connecticut v. Frederick S. Barcomb, Jr.
    (11362)
    (11363)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued October 8
    decision released December 3, 1985

      F. Mac Buckley, with whom, on the brief, was Susan K. Smith, for the appellants (defendant in each case).

      Susan C. Marks, special assistant state’s attorney, with whom were Harry S. Gaucher, Jr., state’s attorney, and, on the brief, John M. Massameno, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

After a joint jury trial, the defendants Frederick Barcomb (hereinafter Barcomb) and Stephanie Tyler-Barcomb (hereinafter Tyler-Barcomb) were convicted of impairing the morals of a child in violation of General Statutes § 53-21. Barcomb was also convicted of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1). TylerBarcomb received a total sentence of not less than two and one-half nor more than five years, and Barcomb received a total effective sentence of not less than five nor more than ten years.

On appeal the defendants claim that: (1) there was insufficient evidence to convict Tyler-Barcomb of the crime charged; (2) they were denied their right to effective assistance of counsel in that they were represented by the same counsel at trial; (3) they were deprived of their right to a fair trial by the remarks of the prosecutor in his closing argument; (4) the trial court erred in admitting hearsay evidence; (5) the trial court abused its discretion in allowing cross-examination of Bareomb on prior misconduct; (6) they were denied the full effect of their constitutional right to remain silent by the admission of evidence which indicated that they were silent in the face of accusation; and (7) they were denied their right to effective assistance of counsel by their counsel’s failure to make various objections at trial. We find no error.

I

The defendants first claim that there was insufficient evidence to convict Tyler-Barcomb of a violation of General Statutes § 53-21, risk of impairing the morals of a child. Section 53-21 makes it a crime for any person “wilfully or unlawfully [to cause] or [to permit] any child under the age of sixteen years to be placed in such a situation that ... its morals [are] likely to be impaired, or [to do] any act likely to impair the health or morals of any such child . . . .”“‘In reviewing a sufficiency of evidence claim on appeal the question presented is whether, viewing the evidence favorably to sustaining the verdict, the trier 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.’ State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).” State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985). Reviewing the record and the facts adduced at trial, we conclude that there was sufficient evidence to convict Tyler-Barcomb of the crime charged.

The jury could reasonably have found the following facts. The victim of the crimes, Tyler-Barcomb’s daughter, was between twelve and thirteen years old at the time of the alleged incidents. Bareomb, the then live-in boyfriend of Tyler-Barcomb, sexually abused the child a number of times between June, 1980, and June, 1981. Tyler-Barcomb knew what Barcomb had been doing and yet did nothing to prevent further abuse. TylerBarcomb also knowingly had sexual intercourse with Barcomb in the presence of her daughter. On the basis of these facts, we cannot say that it was unreasonable for the jury to have concluded that Tyler-Barcomb violated General Statutes § 53-21.

II

The defendants next claim that they were denied their right to effective assistance of counsel in that they were represented by the same counsel during trial. Essentially they argue that the trial court failed to give them an adequate warning as to the potential for conflict of interest and that the court should not have permitted joint representation under these circumstances. We disagree.

“Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981). But “[requiring or permitting a single attorney to represent codefendants ... is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney.” Holloway v. Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). Just as a defendant may waive his sixth amendment protections by electing to forego counsel entirely, he may also waive his right to separate representation in a multidefendant prosecution. State v. Marion, 175 Conn. 211, 218, 397 A.2d 533 (1978). Such a waiver, however, must be knowingly and intelligently made. Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981). In multidefendant prosecutions where codefendants share an attorney and where the trial court knows of or reasonably should know of possible conflicts, the trial court is under an affirmative duty to inquire as to the knowing and intelligent nature of the defendants’ waiver. Festo v. Luckart, 191 Conn. 622, 629, 469 A.2d 1181 (1983). The scope of the trial court’s inquiry should be thorough enough to warn the defendants of the dangers of dual representation and yet not be overly intrusive into the attorney-client relationship. Festo v. Luckart, supra, 628; see People v. Lloyd, 51 N.Y.2d 107, 111, 412 N.E.2d 371, 432 N.Y.S.2d 685 (1980). “If the defendant reveals that he is aware of and understands the various risks and pitfalls, and that he has the rational capacity to make a decision on the basis of this information, and if he states clearly and unequivocally . . . that he nevertheless chooses to hazard those dangers, we would regard his waiver as knowing and intelligent and allow his choice to ‘be honored . . . . ’ ” (Citations omitted.) United States v. Curcio, 680 F.2d 881, 888-89 (2d Cir. 1982), quoting Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

The record in this case indicates that the defendants knowingly and intelligently waived their right to separate counsel. The issue of conflict of interest was raised at three different times during the proceedings below. On July 24, 1981, the defendants’ first court appearance, the defendants’ attorney explained to the court that he had gone over possible conflicts of interest with the defendants and that they were satisfied with the dual representation. On October 2,1981, when the defendants’ entered their pleas, the trial court inquired again as to the propriety of joint representation. Barcomb stated at that time that he understood that he was constitutionally entitled to competent representation and that he saw no conflicts. On March 2, 1982, immediately before jury selection, the issue of joint representation was once again raised. On that day, the state’s attorney went over in detail possible conflicts of interest including evidence which indicated that Tyler-Barcomb may have been passive due to the threats of Barcomb. The trial court then went over the possible conflicts of interest with the defendants and inquired as to whether they understood the dangers of joint representation. They responded that they understood and that they were satisfied with joint representation. The court inquired still further and asked if they understood that they were waiving their rights to separate representation. They both responded affirmatively and stated that they wanted the one attorney to represent them both.

III

The defendants have raised five other claims of error. However, because of the inadequacy of the record and the defendants’ failure properly to preserve issues for appeal, we cannot review those remaining claims.

Although the rule is well established, it bears repeating that “[o]nly in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). “The policy behind this rule is both ancient and sound and ‘does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal.’ State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362 [1965], cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 [1966]; State v. Evans, supra, 66; State v. Tuller, 34 Conn. 280, 295 [1867].” State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980). The only two “exceptional circumstances” where we have addressed claims for the first time on appeal are “where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal”; State v. Evans, supra, 70; e.g., State v. Vars, 154 Conn. 255, 271-72, 224 A.2d 744 (1966); and “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, supra; e.g., State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985). Outside of these narrow circumstances and cases of plain error, we will address only those claims raised at trial. Practice Book § 3063; State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).

The defendants in their third claim argue that certain remarks made by the prosecutor in his closing arguments deprived them of their right to a fair trial. The prosecutor twice referred to Barcomb as “a kind of beast” and once alluded to Barcomb’s conduct as akin to that of “an animal” when caged. The defendants made no objection to those remarks during or after the prosecutor’s argument and requested no curative charge.

We have held on a number of occasions that where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974). Also, where counsel does not request a curative charge or seek a mistrial on the basis of alleged prosecutorial misconduct, we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. State v. Lubesky, supra; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983). We see no reason here to depart from these established rules. On the basis of the record, we cannot say that the prosecutor’s remarks were so abusive as to raise the defendants’ claim to a level where they have “clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, supra. As a result, we find that the defendants have waived their right to raise on appeal this claim of prosecutorial abuse.

The defendants maintain as their fourth and fifth claims of error that the trial court abused its discretion in admitting into evidence hearsay statements and testimony concerning Barcomb’s prior misconduct. The hearsay statements were introduced under the “constancy of accusation” exception to the hearsay rule and were part of the state’s attempt to corroborate the victim’s testimony. The misconduct evidence related to Barcomb’s employment history as a constable for the town of Killingly. Defense counsel failed to object to any of this evidence and thus the alleged errors concerning the admission of such evidence were never before the trial court.

Applying the Evans rule to the defendants’ fourth and fifth claims, we conclude that the issues are not reviewable. The defendants have not demonstrated any “exceptional circumstances” to warrant review of these claims. They have not raised any fundamental constitutional rights in regard to the trial court’s admission of the prior misconduct evidence and have put forward no colorable constitutional claims concerning the admission of the hearsay statements. See State v. Baker, supra, 55-57.

The defendants have claimed as a sixth assignment of error that their constitutional rights were violated by the admission of evidence indicating that they were silent in the face of accusation after being warned of their right to remain silent. They cite as authority Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and State v. Briggs, 179 Conn. 328, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). At trial, two state police officers testified that they went to the defendants’ home on June 15, 1981, to talk with them about the accusations against them. The officers stated that when they went to the home, the defendants said that they did not want to talk. Sometime during the visit, the defendants were informed of their constitutional rights, but the defendants were not under arrest at the time. Defense counsel did not object to the police officers’ testimony.

Ordinarily, where the record adequately supports a claim that the defendant was clearly deprived of his fifth amendment rights, we will review such a claim despite the failure to raise the issue at trial. See State v. Briggs, supra, 335; State v. Zeko, 177 Conn. 545, 418 A.2d 917 (1979). The record in this case, however, is unclear as to whether the defendants have made out a viable fifth amendment claim. The United States Supreme Court held in Doyle v. Ohio, supra, that when an accused is in police custody and has been given his Miranda warnings, evidence of his silence is inadmissible for both impeachment and substantive purposes. Id., 619. Since Doyle, the Supreme Court has also held that where a criminal defendant is not in official custody and has not yet been given his Miranda warnings, admission of evidence indicating silence in the face of accusation will not violate the defendant’s fifth amendment rights. Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980). Because the testimony of the two state police officers in this case was sparse and disjointed, it is impossible to tell whether the defendants were given their Miranda rights before or after they stated that they did not wish to speak with the officers. Thus, we are unable to tell from this record whether under Doyle and Jenkins there has been any deprivation of a fundamental constitutional right. It is incumbent upon an appellant to ensure that we are provided with an adequate record to review the claims of error. Practice Book § 3060D; State v. Thompson, 197 Conn. 67, 81, 495 A.2d 1054 (1985); Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). We will not presume error.

Finally, the defendants argue that the failure of defense counsel to object to various testimony and preserve issues for appeal violated their right to effective assistance of counsel. “ ‘We have repeatedly held that ineffective assistance claims are more properly pursued in a petition for a new trial or a writ of habeas corpus.’ State v. Jacobowitz, 194 Conn. 408, 413, 480 A.2d 557 (1984). ‘Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible.’ State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982); State v. Tirado, 194 Conn. 89, 93, 478 A.2d 606 (1984).” State v. Stanley, 197 Conn. 309, 313, 497 A.2d 46 (1985). On the record before us, we cannot determine whether the defense counsel’s performance was reasonably competent or whether the alleged incompetence contributed to the defendants’ conviction. See State v. Vitale, 197 Conn. 396, 413, 497 A.2d 956 (1985).

There is no error.

In this opinion the other judges concurred.

       Because of the victim’s youth and ready identifiability, we decline to restate more of the particulars of what the record shows. We have carefully reviewed the evidence according to our usual standards and are fully satisfied that there was sufficient evidence by which the jury could have concluded as it did conclude.

       We review this claim because the record is adequate to determine whether the trial court erred in permitting joint representation. We reiterate, however, that the preferred avenue for reviewing ineffective assistance of counsel claims is through habeas corpus proceedings.

       The following exchange between the defendants and the trial court occurred on March 2, 1982:
      “The Court: And you know that you have the right to be represented by counsel, is that correct?
      “Mrs. Tyler-Barcomb: Yes.
      “The Court: And I’ve told you what the legal standard is for effective representation?
      “Mrs. Tyler-Barcomb: Yes.
      “Mr. Barcomb: Yes.
      “The Court: And is there anything that you don’t understand?
      “Mrs. Tyler-Barcomb: No.
      “Mr. Barcomb: No.
      “The Court: So you’re going to waive any claims that you might be able to advance.

        “Mrs. Tyler-Barcomb: Yes.
      “Mr. Barcomb: Yes, we waive it.
      “The Court: So that this can be an intelligent, understanding and competent waiver?
      “The Court: Well, what decision have you made?
      “Mr. Barcomb: That we’re going to keep Mr. Morell as our attorney, just one for both of us.
      * ** *
      “Mrs. Tyler-Barcomb: Yes, we’re going to keep Mr. Morell as our attorney.”

       We note that we do not in any way condone the use of the language of the prosecutor in this case. All state’s attorneys should be circumspect in their characterization of criminal defendants.

       The defendants’ claim concerning the hearsay testimony is primarily that the trial court abused its discretion in making an evidentiary ruling. The defendants have also rather half-heartedly argued that the admission of hearsay testimony violated their right to confrontation and a fair trial. Other than this bald assertion, the defendants have not seriously pressed this claim on appeal. They have not explained why, under the circumstances of this case, their rights to confrontation and a fair trial were abridged by the trial court. Nor have they set out any legal support for their assertion. “Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). We have previously held that the well established constancy of accusation exception to the hearsay rule does not violate a defendant’s constitutional right of confrontation. See State v. Brigandi, 186 Conn. 521, 532-33, 442 A.2d 927 (1982).

       Despite our decision finding no error, the defendants are not precluded from raising their ineffective assistance of counsel claim in an appropriate collateral proceeding. State v. Stanley, 197 Conn. 309, 313, 497 A.2d 46 (1985).


author: Callahan, J. Shea, J.,

text:
    State of Connecticut v. Gerald Gonzalez
    (11068)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued October 11
    decision released December 3, 1985

      Erskine D. McIntosh, assistant public defender, with whom, on the brief, was Joette Katz, 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 Edward J. Caldwell, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Gerald Gonzalez, was charged by information with the crime of robbery in the second degree in violation of General Statutes § 53a-135 (a) (l). The defendant pleaded not guilty and was tried by a jury. He was found guilty as charged and the trial court committed him to the Connecticut correctional institution, Cheshire, for a period of three years. Execution of the sentence was suspended after one year and he was placed on probation for a period of three years. The defendant’s sole claim on this appeal is that the state’s attorney improperly commented on his decision not to call certain witnesses to support his alibi.

The robbery for which the defendant was convicted occurred at about 8 o’clock on the evening of February 5, 1979, at a grocery store owned by George Rodrigues, located at 73 Fairview Avenue in Bridgeport. For the purposes of this appeal the facts of the robbery may be quickly summarized. Three men, one of whom had a handgun, held up Rodrigues while he was in the process of closing his store for the night. They took cash from the register and two six packs of beer and fled in an automobile. Rodrigues pursued the culprits in his own car, which had been parked in front of his store. Later, the three robbers and Rodrigues abandoned their vehicles and the chase continued on foot. While fleeing, one of the robbers fell and dropped a bag containing the money from the holdup. He was, however, able to resume running and to avoid capture by Rodrigues.

Later that same evening, acting on information he had received, Detective John Flynn of the Bridgeport police department took Rodrigues to the emergency room of the Park City Hospital to see if he could make an identification. The defendant was at the hospital seeking treatment for an injured ankle. Rodrigues saw the defendant in the crowded emergency room and identified him as one of the three men who had committed the robbery. He also made a positive identification of the defendant at trial.

Flynn arrested the defendant at the Park City Hospital and transported him to the Bridgeport police headquarters. En route the defendant told Flynn that at 8 p.m. he had been playing cards at the apartment of Marilyn Rodriguez, located at 383 Lexington Avenue in Bridgeport and that there were several other people in the apartment.

Prior to the commencement of trial, the defendant filed a notice of alibi defense, pursuant to Practice Book § 763, which named William Trujillo, Marilyn Rodriguez, and Willie Torres as witnesses whom the defendant would call to establish an alibi. Of these three individuals, only Trujillo testified at the trial. Trujillo and the defendant both testified that at the time of the robbery the defendant was playing cards at the Rodriguez apartment. In their testimony they named a number of people who also were there. None of those other persons, however, testified at trial.

The state’s attorney, during his initial closing argument to the jury, made three relatively brief references to the missing witnesses. He argued in one instance that “I think he owes you an obligation to either bring in each and every . . . .’’He was interrupted by an objection before he was able to complete the sentence with the word “witness,” but his point was apparent to the jury. The defendant asked that the state’s attorney’s remarks be stricken and also moved for a dismissal and a mistrial, but the trial court denied the requests. Later, in his summation, the state’s attorney on two occasions argued that the jury had a right to inquire as to what effort the defendant had made to contact certain missing witnesses to corroborate his alibi. An objection was made only on one of those occasions.

The effect of those remarks was to suggest to the jury that it might draw the inference that any testimony by the missing witnesses would have been unfavorable to the defendant. See State v. Williams, 195 Conn. 1, 14, 485 A.2d 570 (1985). The defendant claims, on this appeal, that the remarks of the state’s attorney were an improper comment on the defendant’s decision not to call certain witnesses to corroborate his alibi and allowed the jury to draw an unfavorable inference from his failure to call those witnesses. He further claims that the error was prejudicial and harmful and deprived him of a fair trial. There is no claim that there was deliberate prosecutorial misconduct.

In State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980), we stated that, when “counsel for either the state or the defendant intends to argue to the jury that an unfavorable inference be drawn from the absence of a witness at trial, an advance ruling from the trial court should be sought and obtained.” See also State v. Williams, supra; State v. Ubaldi, 190 Conn. 559, 567 n.6, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). The state’s attorney neither sought nor obtained an advance ruling from the trial court prior to making the remarks concerning the missing witnesses. The purpose of such an advance ruling is to allow the trial court to evaluate whether a party is entitled to the unfavorable inference which it seeks to have the jury draw under the test established in Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). At the time the ruling is requested, “the trial court should determine whether the defendant’s fifth amendment right not to testify would be violated by the proposed argument and whether there is sufficient evidence for the jury to find that the absent witness is (1) available to the party against whom the inference is sought to operate and (2) one whom that party would naturally be expected to produce.” State v. Daniels, supra, 113-14. The state’s attorney, therefore, before he argued to the jury that the defendant had an obligation to call any particular witnesses or pointed out to the jury that the defendant had failed to produce certain witnesses to corroborate his alibi, should have sought an advance ruling from the trial court on the propriety of such an argument. The trial court should have taken corrective action by striking the state’s attorney’s comments at the time they were made and it was error to fail to do so.

The error was, however, harmless unless it was so prejudicial to the rights of the defendant that he was deprived of his right to a fair trial. State v. Januszewski, 182 Conn. 142, 174, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); State v. Ruth, 181 Conn. 187, 196, 435 A.2d 3 (1980). The question is “whether the claimed erroneous action of the [trial] court would have been likely to affect the result.” State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). “Due process seeks to assure a defendant a fair trial, not a perfect one.” State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). Since the defendant does not allege the violation of a constitutional right, he has the burden of proving that the court’s error was harmful. State v. Ruth, supra, 197.

Under the circumstances of this case, we conclude that any error was harmless. “In so doing we have viewed the state’s attorney’s comments in the context of the entire trial and the instructions that guided the jury’s deliberations.” State v. Daniels, supra, 112.

Our conclusion is based upon several factors. First, the fact that there were a number of people at the apartment was testified to by the defendant and William Trujillo. They were both cross-examined at some length concerning their relationship to those persons and the whereabouts of those persons at the time of trial. In addition, the defendant was questioned ábout what effort he had made to secure their presence in court to testify. Therefore, by the time the state’s attorney made his comments in final argument, the jury had already heard testimony in the same vein and the jury was already well aware that the defendant had made little or no effort to secure additional alibi witnesses. The state’s attorney’s remarks simply belabored the obvious. It is hard to imagine that the remarks, although improper, could have affected the result. Further, defense counsel indicated to the jury in his closing argument that the testimony of the missing witnesses would have been repetitious.

Moreover, the trial court did not instruct the jurors that they could draw an unfavorable inference from the absence of witnesses at the trial. Rather it effectively assuaged the possible drawing of such an inference by its jury instructions. The trial court made it clear that the jurors were not to determine any facts solely on the basis of the number of witnesses testifying thereto. It charged the jury that “[n]o fact should be determined merely by the number of witnesses for or against it. It’s the quality and not the quantity of the testimony that controls.” By charging the jury to disregard the number of witnesses, the trial court clearly indicated to the jurors that they were not to deliberate about anyone who did not testify before them. State v. Williams, supra, 15. Further, the trial court instructed the jury that the defense of alibi “in no way shifts the burden of proof to the accused. ...”

We also point out that the positive identification of the defendant by the victim and the circumstances of that identification made the case against the defendant a strong one. Finally, although on one occasion the defendant made a motion to strike and also moved for a dismissal and a mistrial, on two of the three occasions when comments concerning the missing witnesses were made he did not ask the court to take any remedial action nor did he ask for a curative instruction or take any exception to the court’s charge. See State v. Daniels, supra, 113. His failure to do so is certainly an indication that at the time the defendant did not consider any harm he may have suffered as serious as he now claims on appeal. Under all the circumstances, we conclude that the error was harmless.

There is no error.

In this opinion Healey, Dannehy and Santaniello, Js., concurred.

Shea, J.,

concurring. I agree with the majority that it was improper for the prosecutor to argue the missing witness inference before seeking the court’s permission in accordance with State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980). It is clear, however, that all of the ingredients necessary for invocation of that principle were established by the evidence sufficiently to justify the argument that the failure to produce more than one alibi witness when others were also available detracted from the credibility of the alibi. The record is unclear as to whether the trial court implicitly granted such permission after the interruption of the prosecutor’s argument and a discussion of the subject in the absence of the jury. Although the court declared that no charge on missing witnesses would be given, none having been requested by the state, when the prosecutor continued his argument on the absence of the additional alibi witnesses after the jury had returned to the courtroom the defendant’s objection was “noted” rather than sustained. In any event, since the evidentiary foundation for the missing witness inference was adequate, the court should have allowed the argument. I disagree with the view of the majority, therefore, that it was error for the trial court not to have stricken suo motu this entirely reasonable argument of the state’s attorney.

Since I find no error on the part of the trial court, but merely an impropriety on the part of the prosecutor deserving perhaps some disciplinary measure, such as a reprimand, I find the discussion of harmless error in the majority opinion superfluous. I wholly disagree with the portion of that discussion that relies upon the standard instruction concerning quality vis-a-vis quantity of testimony to mitigate the harmfulness of the supposed error in failing to strike the missing witness argument of the prosecutor. See State v. Williams, 195 Conn. 1, 17, 485 A.2d 570 (1985) (Shea, J., concurring).

I agree with the result.

       “[General Statutes] Sec. 53a-135 (a) (1). robbery in the second degree: class C felony, (a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present.”

       During the colloquy held in the absence of the jury, the prosecutor argued that he should be permitted to comment on the failure of the defendant to bring in three other witnesses besides William Trujillo in support of his alibi. The defendant’s objection to this argument was that, since the state had the burden of proof, he was not obligated to produce any witnesses. We have rejected this claim of the defendant that the missing witness principle is inapplicable to a defendant in a criminal case. State v. Watley, 195 Conn. 485, 488, 488 A.2d 1245 (1985); State v. Daniels, 180 Conn. 101, 109, 429 A.2d 813 (1980).
      The trial court denied motions made by the defendant, during this colloquy, for a dismissal and for a mistrial. The transcript continues:
      “The Court: In the event that there is to be any requested charge on missing witnesses the State has a right to make such a request on missing witnesses. No request has been made. At this point the court would have been restrained not to give the missing witness presumption on missing witness charge in any event.
      “Are you ready to continue your argument?
      “Mr. Caldwell: Yes, Your Honor.
      “The Court: All right. Bring in the jury.
      (Whereupon, the jurors were brought to the courtroom at 11:05 a.m.)
      “The Court: You may continue, Mr. Caldwell.
      “Mr. Caldwell: Thank you, Your Honor. You heard testimony from Trujillo that Marilyn Deleon was there, the sister, fifteen years; brother Jerry, nine years of age; and a Willie Torres, fifteen years of age. Now, I think you have a right to inquire since Trujillo took the stand, the defendant took the stand, and tried to establish an alibi, whether or not any effort was made to contact these people.
      “Mr. Ruane: I would have to object, again, Your Honor, on the same basis.
      “The Court: Objection noted.
      “Mr. Caldwell: Makes sense, doesn’t it? Having in mind Gonzalez’s testimony, he thought, he testified he laughed at Flynn when he told him that he had been identified as a robber, but he certainly seemed to have handled his alibi very cavalierly keeping in mind a young man charged with a very serious crime. I think you are entitled to hear from him since he took the stand, since he took the stand. He didn’t have to do anything. And I want you to know that I’m abundantly aware that it is the State’s burden to prove the defendant guilty beyond a reasonable doubt. Once he took the stand, I think that you were entitled to hear that efforts he made to put together this alibi and one wanting of an effort that makes sense, then I can respectfully suggest to you that this is so because for the most part it’s contrived. I don’t doubt that he was at 383 Lexington Avenue, but not at the time the robbery was committed, and, that in fact, I put it to you you can infer when he left [at seven] o’clock he left for reasons other than borrowing five dollars from an aunt. ...”