text:
    State of Connecticut v. Ross Blaine Edwards
    (13384)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.

      Argued December 14, 1989
    decision released February 27, 1990

      Kent Drager, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Lawrence Daly, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The dispositive issue in this appeal is the sufficiency of the evidentiary foundation for the request of a defendant, charged with having committed the crime of murder, that the jury be instructed on the lesser included nonintentional homicides of manslaughter in the first and second degrees and criminally negligent homicide. A jury found the defendant, Ross Blaine Edwards, guilty of the murder of his sister, in violation of General Statutes § 53a-54a. The defendant has appealed from the judgment of the trial court sentencing him to a term of life imprisonment. We find error and remand for a new trial.

The jury could reasonably have found the following facts. The defendant was living in his sister’s East Hartford apartment, following his release from a New Jersey hospital after a suicide attempt. On the evening of September 17,1986, he remained in the apartment while she went to work. After her departure, having gotten “high” on cocaine, marijuana and beer, he decided to search for his sister’s gun in order to commit suicide. Ultimately successful in this search, he brought the loaded weapon into the spare room where he had been sleeping, sat down and held the gun to his chest. When his sister, upon her return from work, discovered him with the gun, she attempted to disarm him. In the ensuing struggle for the gun, she was fatally shot. After ascertaining that his sister was dead, the defendant unplugged the telephone, undertook various measures to conceal her body, and took some of her money and jewelry, including gold necklaces that she had been wearing. The next morning, he left for New Jersey, where he subsequently was apprehended, wearing her jewelry.

The East Hartford police found the victim’s body on September 19, 1986, in response to a complaint from the manager of her apartment complex. The body, wrapped in a white sheet, was buried beneath various articles of clothing, bed linens and a mattress. The officers also found drug paraphernalia, a man’s clothing, and papers identifying the defendant.

An autopsy of the body revealed a bullet wound to the head, the bullet entering two inches behind the left ear and exiting at the right temple area. The apparent absence of gun powder grains near the wound indicated that the gun was at least 36 inches away from the victim’s head when fired, although the flow of blood and the possible movement of the body provided an alternative explanation.

At trial, the principal issue was the defendant’s state of mind at the time of the shooting, because he admitted having killed his sister. He maintained, however, that he had lacked the specific intent to commit murder, because the shooting had occurred in an accidental struggle for possession of his sister’s gun while he was intoxicated and suicidal. Accordingly, the defendant filed procedurally proper requests for the jury to be charged on his defense of intoxication as a defense to first degree murder and on the lesser included offenses of first degree manslaughter pursuant to General Statutes § 53a-55 (a) (3), second degree manslaughter pursuant to General Statutes § 53a-56 (a) (l), and criminally negligent homicide pursuant to General Statutes § 53a-58 (a). The trial court gave the requested charge on intoxication as relevant to specific intent, but refused to charge on the lesser included offenses on the ground that no evidence had been presented at trial to support those charges. The jury found the defendant guilty of murder as charged.

On appeal, the defendant claims that the trial court erred in: (1) denying his request to instruct the jury on lesser included offenses; (2) denying his motions to suppress evidence seized illegally; and (3) sustaining the state’s objection to the testimony of a defense psychiatrist. Because we find error in the first of these trial court rulings, we will consider the others only insofar as they are likely to be implicated in a new trial.

I

We consider first whether the trial court erred in failing to instruct the jury as to the lesser, nonintentional homicides included within the crime of murder. Although the defendant sought an acquittal based on a defense of accidental death, he nonetheless requested that the jury additionally be instructed on the lesser included offenses within the crime of murder. He maintained that the jury could reasonably find that his struggle with his sister over the loaded gun amounted to criminal recklessness or negligence as prohibited by the nonintentional homicide statutes. The trial court ruled to the contrary, accepting the state’s contention that, on the evidence before it, the jury could arrive at only one of two verdicts, conviction of murder as charged, or acquittal on the ground of accident. We disagree with this ruling.

The law of lesser included offenses is a common law doctrine that requires a defendant to demonstrate his compliance with the four conditions stated in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980): “(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 of 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.” State v. Herring, 210 Conn. 78, 104-105, 554 A.2d 686, cert. denied, U.S. , 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); State v. Green, 207 Conn. 1, 11, 540 A.2d 659 (1988). The trial court expressly found that the defendant had satisfied the first two conditions of the Whistnant test. As to the first, his request for jury instructions on the lesser included offenses met the standards articulated by this court in State v. McIntosh, 199 Conn. 155, 158-61, 506 A.2d 104 (1986). As to the second, this court has often reaffirmed that manslaughter in the first and second degrees and criminally negligent homicide are lesser included offenses within the crime of murder. State v. Herring, supra, 105 n.25; State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980); see General Statutes § 53a-45 (c).

The defendant has likewise complied with the fourth condition of Whistnant, that “the elements differentiating the lesser offense [must be] sufficiently in dispute to justify finding the defendant innocent of the greater offense but guilty of the lesser.” State v. Maselli, 182 Conn. 66, 72, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981). Because the defendant admitted killing his sister, the only substantive issue before the jury was his mental state at the time of the shooting. The defendant relied on the defense of accidental death to demonstrate that he lacked the specific intent to commit murder. Lack of the requisite intent for murder, however, does not necessarily relieve the defendant of criminal culpability. Rather, specific intent provides the critical distinction between murder and the requested “lesser included homicides that require a less serious degree of culpable intent.” State v. Rodriguez, supra, 405; see also State v. Burge, 195 Conn. 232, 244-45, 487 A.2d 532 (1985); State v. Falby, 187 Conn. 6, 29, 444 A.2d 213 (1982). In proffering a defense of accident to rebut his specific intent to commit murder, the defendant did not preclude a factfinder from determining that he might have had a less culpable, but still criminal, intent.

The propriety of the defendant’s request for instruction on the nonintentional homicides turns, therefore, on whether the defendant has complied with the third condition of Whistnant. Based on the evidence before it, could the jury reasonably have found “that the defendant acted, either recklessly [with or without extreme indifference to human life] or with criminal negligence in causing the victim’s death . . .?’ State v. Falby, supra, 29; see State v. Burge, supra, 244. The trial court found that this condition had not been met, and the state relies on this ground in asking us to sustain the trial court’s ruling. In our review, we must consider the evidence available at trial in the light most favorable to the defendant’s request. State v. Herring, supra, 106. “ ‘[T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested.’ United States v. Comer, 421 F.2d 1149, 1154 (D.C. Cir. 1970).” State v. Manley, 195 Conn. 567, 581, 489 A.2d 1024 (1985).

The defendant contends that there was a sufficient evidentiary foundation for his request because his struggle with his sister over a loaded gun necessarily presented a question of credibility for the jury as to whether the resultant “accidental” death sufficiently implicated reckless or criminally negligent conduct so as to sustain his conviction on one of the less culpable homicides. The trial court’s ruling to the contrary was based on its view of the case as “one of pure accident . . . [that] should go to the jury either on a guilty of murder or not guilty because of the lack of intent as claimed by the defendant.”

As a general matter, we are not persuaded that a theory of “pure accident” necessarily, as a matter of law, precludes a finding of nonintentional homicide. “It is not accurate to say that a person may not be convicted of [nonintentional] manslaughter for the death of another if the death is the result of accident.” State v. Frost, 342 N.W.2d 317, 323 (Minn. 1983). To assert that something is an accident does not resolve the fact-bound question of whether that “accident” was the result of criminally reckless or negligent conduct. The defendant’s claim of innocence, although fashioned in terms of the defense of accidental death, “is in reality nothing more than a denial of the intent to cause serious physical injury required for conviction under General Statutes § 53a-55 (a) (1).” State v. Silveira, 198 Conn. 454, 462, 503 A.2d 599 (1986). A lack of specific intent, however, is not an available defense to a prosecution for a reckless or criminally negligent homicide because the intent to cause serious physical injury is not an element of those crimes. Id. There is thus nothing inherently inconsistent with the defendant’s pressing for an acquittal based on a theory of pure accident while simultaneously requesting instructions on lesser included offenses within the crime of murder.

There is similarly no inherent inconsistency between the defendant’s request for a charge on lesser included offenses and his testimony that he did not intentionally or voluntarily pull the trigger of the gun when he shot his sister. The state correctly asserts that reckless or criminally negligent conduct must be volitional. State v. Shine, 193 Conn. 632, 639-40, 479 A.2d 218 (1984). Nonetheless, the relevant conduct that created the substantial and unjustifiable risk to the defendant’s sister, is the “whole course of [his] conduct”; State v. Alston, 5 Conn. App. 571, 578, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986); and not just his action in pulling the trigger. See State v. Knighton, 7 Conn. App. 223, 237, 508 A.2d 772 (1986); State v. Alston, supra.

We turn then to inquire specifically into whether the evidence adduced at trial was sufficiently probative of reckless conduct to support the defendant’s request for instructions on the lesser included offenses of manslaughter in the first degree as defined by § 53a-55 (a) (3) and manslaughter in the second degree as defined by § 53a-56 (a) (1). “The coupling of ‘extreme indifference to human life’ with recklessness is what differentiates manslaughter in the first degree from manslaughter in the second degree, as proscribed by General Statutes § 53a-56 (a) (1) . . . . ” State v. Shine, supra, 639-40 n.9. Our statute defines recklessness to encompass conduct by a person “when he is aware of and consciously disregards a substantial and unjustifiable risk . . . . ” General Statutes § 53a-3 (13). It thus involves “a subjective realization of a risk and a conscious decision to ignore that risk . . . .” (Emphasis in original.) State v. Bunkley, 202 Conn. 629, 643, 572 A.2d 795 (1987).

Because manslaughter by reckless conduct is a general intent crime; State v. Shine, supra, 639-40; the state contends that the lesser included manslaughter instructions would have been appropriate only if the defendant had intended to engage in the conduct that created a risk of death to his sister. The state maintains that the defendant cannot simultaneously contend that the shooting was accidental and that he acted so recklessly as to be guilty of manslaughter. We are unpersuaded. The defendant’s suicidal state of mind does not preclude a finding that he subjectively realized that he was putting his sister at risk by displaying a loaded gun, but that he consciously decided not to take any precautions to avoid the risk that he had created. The accidental discharge of a weapon in such circumstances, even without the intent to achieve a wrongful purpose, may provide evidence of a lack of due care sufficient to support a finding of reckless criminal culpability. Viewing the evidence, as we must, most favorably to sustaining the lesser included offenses of reckless manslaughter, we conclude that the jury could reasonably have found that the defendant, having used various intoxicants, loaded a gun and aimed it at his chest with the intention of committing suicide, that upon his sister’s sudden and unexpected appearance, she grabbed for the gun, that the defendant then decided to engage in a struggle over the gun, consciously ignoring the inherent and unintended risks that a loaded weapon presented for his sister, and that such conduct constituted recklessness that is criminally cognizable as manslaughter in either the first or second degrees.

This reasonable factual supposition applies with equal force to sustain a jury instruction on the lesser included offense of criminally negligent homicide as defined by § 53a-58 (a). “Criminal negligence” has been statutorily defined as action taken when a person “fails to perceive a substantial and unjustifiable risk . . . .’’General Statutes § 53a-3 (14). In the circumstances of this case, the same evidence that demonstrates “recklessness” also demonstrates a “failure to perceive a substantial and unjustifiable risk.” If, indeed, the state’s emphasis on the defendant’s suicidal intention proves significant to a jury, a verdict of criminally negligent homicide might be the more appropriate verdict. A jury could infer that the defendant’s preoccupation with ending his own life caused him to fail to perceive the risk to others created by his possession of a loaded gun and his volitional struggle to retain it.

Because the defendant had complied with each condition of the Whistant test for instructions on lesser included offenses, the trial court erred in denying the defendant’s requests to charge the jury that it could consider convicting him of reckless or criminally negligent homicide rather than of murder. This error entitles the defendant to a new trial.

II

We turn now to the validity of the trial court’s denials of the defendant’s motions to suppress evidence because the issues raised thereby are likely to recur at the defendant’s retrial. These motions concern three warrantless searches and seizures. The first search and seizure was of the defendant himself at his temporary residence. The second and third searches occurred within his temporary residence, with the consent of its lessee, and resulted in the seizure of a .38 caliber shell and of the defendant’s backpack. At least on the grounds asserted at trial, we find error with respect to the defendant’s seizure, no error in the seizure of the shell, and error in the seizure of the backpack.

A

The defendant first contends that the trial court erred, as a matter of law, in concluding that the “stop and frisk” doctrine of Terry v. Ohio, 392 U.S. 1, 27-31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), justified his warrantless seizure, his transfer to and his detention at police headquarters. He contends that he was illegally seized and that the trial court was required to suppress the fruits of his illegal seizure. On the record presently before us, we agree with the defendant.

The facts underlying this claim of error are not in dispute. A few days after the discovery of the victim’s body, two East Hartford detectives went to New Jersey to interview her mother and her half-brother, Ralph Sparks. From these interviews, the detectives learned that the victim had a strong attachment to certain gold jewelry that she rarely removed from her person. Sparks further told them that the defendant had been seen in Newark wearing gold jewelry allegedly belonging to the victim. After an unsuccessful search for the defendant, the detectives returned to Connecticut. In the meantime, the East Hartford police department had issued a teletype on the National Computer Information System on September 20, 1986, notifying police agencies throughout the country that the defendant was “wanted for questioning only in connection with a homicide investigation . . . .” (Emphasis added.)

On September 22, 1986, the Newark police department dispatched two officers to an address in Newark to contact Sparks in reference to a homicide. Sparks told the officers that the defendant resided at that address and that the defendant had killed his sister and had stolen her jewelry. The officers, accompanied by Sparks and his girlfriend, went at Sparks’ direction to a third floor apartment and knocked. When the lessee of the apartment opened the door, the defendant walked into plain view. Sparks and his girlfriend identified the defendant as well as the jewelry that the defendant wore around his neck. One of the officers then placed the defendant in handcuffs, explaining that he was not under arrest but rather was being transported to police headquarters for questioning in reference to a homicide investigation.

At headquarters, the officer turned the defendant over to a detective who, after identifying himself, advised the defendant of his Miranda rights, reiterated that he was not under arrest but acknowledged that he was not free to leave. The detective did not question the defendant, but indicated that he was being held for questioning by the East Hartford police department, which was being notified of his detention. At this time, the police officer seized from the defendant the jewelry that allegedly had belonged to his sister. Thereafter, on the basis of a further conversation with the East Hartford authorities, the detective arrested the defendant for possession of stolen property. Upon their arrival the next morning, the East Hartford detectives interviewed the defendant, who had been held in a cell overnight. After waiving his Miranda rights, the defendant proceeded to give statements to these officers concerning his role in the victim’s death.

“[C]ertain seizures are justifiable under the Fourth Amendment even in the absence of probable cause ‘if there is articulable suspicion that a person has committed or is about to commit a crime.’ [Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)] (plurality opinion) (emphasis added).” United States v. Hensley, 469 U.S. 221, 227, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). “One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. . . . Determination of the means that are reasonably necessary to maintain the status quo necessarily depends upon a fact-bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect. Michigan v. Long, 463 U.S. 1032, 1051, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); United States v. Place, 462 U.S. 696, 704-705,103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983); Florida v. Royer, supra, 499-500 . . . State v. Braxton, 196 Conn. 685, 689-90, 495 A.2d 273 (1985).

The defendant does not contest that the New Jersey police had a reasonable and articulable suspicion that justified detaining him briefly. He claims, however, that the constitutionally permissible scope of a Terry stop detention was exceeded in this case when the police transported him, in handcuffs, to a police station to be held there for interstate investigative purposes for an indefinite period of time. This precise claim of error presents a question of first impression for this court.

“A Terry stop that is justified at its inception can become constitutionally infirm if it lasts longer or becomes more intrusive than necessary to complete the investigation for which that stop was made. See United States v. Sharpe, 470 U.S. 675, 684, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985); Florida v. Royer, [supra, 500].” State v. Mitchell, 204 Conn. 187, 197, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). In Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985), the United States Supreme Court applied this standard to facts remarkably close to ours. The court held: “There is no doubt that at some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect’s freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments. . . . [0]ur view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes. We adhere to the view that such seizures . . . are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause.” Id., 815-16.

Hayes v. Florida compels the conclusion that the police exceeded the permissible bounds of a Terry stop in this case. Although any inquiry into Terry boundaries is necessarily fact-bound; State v. Mitchell, supra; State v. Aillon, 202 Conn. 385, 401, 521 A.2d 555 (1987); State v. Braxton, supra, 689-90; our case law has similarly emphasized the geographical boundaries of a permissible Terry stop. We have found no constitutional infirmity in requiring a suspect to accompany the police to a hospital to be viewed by the victim of a crime; State v. Mitchell, supra, 199; but we have never extended a Terry stop to include transporting a suspect to a police station for open ended questioning. We decline to do so in the circumstances of this case. Even in the pursuit of criminal behavior that occurred in another state, the police must either abide by the limitations that inhere in Terry stops or must make a showing of probable cause to arrest.

We therefore conclude that the trial court erred in sustaining the legality of the defendant’s seizure under the Terry stop doctrine. As a consequence, unless some other basis for admissibility is established at retrial, the defendant is entitled to the suppression of the jewelry taken from him at the time of his detention and the statement taken from him at the police station.

B

We turn finally to the validity of the warrantless search of the apartment which was the defendant’s temporary residence. That search, with the consent of its lessee, led to the seizure of a .38 caliber shell casing from a potato chip box and the defendant’s backpack.

The defendant cannot prevail in his objection to the seizure of the shell. While the defendant, as an invited guest residing even temporarily in a private residence, may have had a reasonable expectation of privacy in the premises; Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979); Stoner v. California, 376 U.S. 483, 490, 84 S. Ct. 889, 11 L. Ed. 2d 856, reh. denied, 377 U.S. 940, 84 S. Ct. 1330, 12 L. Ed. 2d 303 (1964); United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir. 1986); United States v. Lyons, 706 F.2d 321, 327 (D.C. Cir. 1983); State v. Reddick, 207 Conn. 323, 330, 541 A.2d 1209 (1988); the lessee clearly had the authority to consent to the search of her apartment. “In order for third-party consent to be valid, the consenting party must have ‘possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.’ United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) . . . .” State v. Jones, 193 Conn. 70, 80, 475 A.2d 1087 (1984). A police officer testified to the lessee’s consent to the search. Moreover, the defendant did not have a reasonable expectation of privacy, in his temporary residence, to an item found in a food container to which any occupant of the apartment had ready access. Accordingly, we find no error with respect to this particular denial of a motion to suppress.

The defendant stands on a different footing, however, with regard to the search of his backpack. Although it is sufficiently clear that the lessee consented to the search of the apartment with the authority to do so, as lessee she did not possess the authority lawfully to consent to the search of her guest’s personal effects. “The law obviously does not insist that a person assertively clutch an object in order to retain the protection of the fourth amendment.” United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989). The defendant, as a person, who resides at a private residence with permission of the lessee as a guest; State v. Reddick, supra, 329-30; had a justifiable expectation that his personal effects, including the backpack, would remain private. Id.

“This justifiable expectation should not be vitiated by a strained application of the third-party consent doctrine; the consent of the host should ordinarily be insufficient to justify a warrantless search when it is obvious that the searched item is the exclusive property of the guest.” United States v. Isom, 588 F.2d 858, 861 (2d Cir. 1978). As “a common repository for one’s personal effects, and therefore . . . inevitably associated with the expectation of privacy”; Arkansas v. Sanders, 442 U.S. 753, 762, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); luggage may be lawfully searched, in general, only pursuant to a warrant. Id., 763. We can discern no intrinsic constitutional distinction between a backpack and luggage. United States v. Meier, 602 F.2d 253, 255 (10th Cir. 1979).

The state maintains, nonetheless, that, in the particular circumstances of this case, the lessee’s consent to the search validated the seizure of the defendant’s backpack. The state calls our attention to the fact that the defendant left his backpack, unlocked, at his temporary residence. We are not persuaded that these circumstances authorized the seizure in this case. Although there might have been a clearer expectation of privacy in a backpack that was locked; United States v. Isom, supra, 861; we agree with the holding of United States v. Most, 876 F.2d 191, 197-98 (D.C. Cir. 1989), that such a security measure is not essential to the defendant’s fourth amendment rights. Furthermore, the defendant did not expressly or impliedly give the lessee access to the backpack merely by leaving it in the apartment. Unlike Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969), on which the state relies, there is no evidence that the defendant in this case ever authorized the lessee to inspect the contents of his backpack.

We therefore conclude that the lessee’s consent did not validate the warrantless search of the defendant’s backpack. The trial court, accordingly, should have granted the defendant’s motion to suppress the evidence thereby seized. As a consequence, the defendant is entitled upon retrial to the suppression of that jewelry and the set of keys to the victim’s apartment that were illegally seized from his backpack, unless the state adduces an alternate, legitimate ground for their seizure.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides: “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.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       In addition to the fatal shooting, there was some evidence at trial that the victim may also have been sexually assaulted.

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . . ”

       General Statutes § 53a-58 (a) provides in relevant part: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person . . . . ”

       We need not address the third claim of error. At trial, the state objected to the presentation of testimony by the defendant’s expert psychiatric witness because of the defendant’s failure to give timely notice of his intent to introduce such psychiatric testimony. See Practice Book § 759. We presume that any possible prejudice that the defendant’s untimely notice may originally have caused the state will have dissipated by the time of the defendant’s retrial.

       Recognizing the difficulty in proving by direct evidence that an accused subjectively realized and chose to ignore a substantial risk, or negligently failed to perceive the risk at all, we have long held that the state of mind amounting to recklessness or criminal negligence may be inferred from conduct. See State v. Bunkley, 202 Conn. 629, 645, 572 A.2d 795 (1987); Mooney v. Wabrek, 129 Conn. 302, 308, 27 A.2d 631 (1942). It requires little extension of this principle to hold that such relevant conduct may constitute a course of behavior rather than one specific act. See State v. Knighton, 7 Conn. App. 223, 237, 508 A.2d 772 (1986); State v. Alston, 5 Conn App. 571, 578, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986).

       General Statutes 53a-3 (13) provides: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

       The case law in other jurisdictions supports this conclusion. See, e.g., State v. Frost, 342 N.W.2d 317, 320 (Minn. 1983) (struggle with loaded gun that unintentionally discharged sufficient to support conviction of non-intentional manslaughter); State v. Stimpson, 279 N.C. 716, 724, 185 S.E.2d 168 (1971) (defendant’s testimony that discharge was accidental was sufficient basis for jury instruction on involuntary manslaughter); Withers v. State, 631 S.W.2d 595, 597 (Tex. App. 1982) (defendant’s conduct sufficiently voluntary to be criminally negligent where he loaded gun and pushed dog out of his lap, causing unintentional discharge). We disagree with the state’s contention that these cases are distinguishable because they involve gun accidents in which the gun was not directed at the defendant himself but at a third party. All the cases, including the present one, demonstrate that recklessness can be inferred because pointing a loaded weapon at anyone inherently creates a risk of death.

       Having found error in the trial court’s refusal to charge as requested, we need not consider the defendant’s alternate claim that his use of intoxicants constituted sufficient evidence to support instruction on the lesser included, nonintentional homicides. As the state correctly notes, this issue is not reviewable, absent plain error, because the defendant failed to raise it in his request to charge. State v. Herring, 210 Conn. 78, 105, 554 A.2d 686, cert. denied, U.S. , 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

       General Statutes § 53a-3 (14) provides: “A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

       The New Jersey detective mistakenly understood that the East Hartford police had procured a warrant for the defendant’s arrest. In fact, although a proper application had been made, the warrant was not signed by a judge until the following day.

       We decline, in the circumstances of this case, to follow the authorities cited by the state that hold that a suspect who has been lawfully detained may lawfully be transported to police headquarters. See United States v. Perez-Esparza, 609 F.2d 1284, 1287 n.2 (9th Cir. 1979); United States v. O’Looney, 544 F.2d 385, 389-90 (9th Cir.), cert. denied, 429 U.S. 1023, 97 S. Ct. 642, 50 L. Ed. 2d 625 (1976); People v. Courtney, 11 Cal. App. 3d 1185, 1192, 90 Cal. Rptr. 370 (1970); People v. White, 134 Ill. App. 3d 262, 285-87, 479 N.E.2d 1121 (1985), cert. denied, 475 U.S. 1126, 106 S. Ct. 1650, 90 L. Ed. 2d 194 (1986).

       The state asserts, in the alternative, that the seizure of the defendant at Ms temporary residence was supported by probable cause and that the exigent circumstances created by the interstate nature of a Connecticut homicide and a New Jersey seizure justified his subsequent warrantless detention at Newark police headquarters. In the absence of a trial court ruling on probable cause, we express no view on the merits of the state’s position. The state is free to explore this matter further in preparation for the retrial.

       Even if the state cannot establish probable cause, it will have the opportunity, at the defendant’s retrial, to persuade the trial court that the defendant’s confession was a voluntary statement that would be admissible because it was sufficiently removed in time and circumstance from the wrongful conduct involved in the defendant’s protracted seizure. See Dunaway v. New York, 442 U.S. 200, 216-19, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).


source: Caselaw Access Project

author: Callahan, J. Covello, J.,

license: Public Domain

text:
    State of Connecticut v. Richard T. Carpenter, Jr.
    (13630)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued December 6, 1989
    decision released February 27, 1990

      John R. Williams, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Callahan, J.

The principal issue in this appeal is whether the state presented sufficient evidence to justify a guilty verdict. The defendant Richard T. Carpenter was convicted by a jury of murder in violation of General Statutes § 53a-54a. Subsequently, he filed a motion for a judgment of acquittal, which was denied, and he was sentenced by the trial court to a prison term of fifty years.

The defendant’s appeal raises two issues, a substantive challenge of evidentiary insufficiency and a procedural challenge of voir dire irregularity. We find error as to the former but not as to the latter.

I

“When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983). We then determine whether ‘ “the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” ’ 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, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Duhan, 194 Conn. 347, 355, 481 A.2d 48 (1984).” State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987); State v. Arnold, 201 Conn. 276, 282, 514 A.2d 330 (1986). “ ‘In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited.” State v. Rollinson, supra, 666.

The jury could reasonably have found the following facts. The victim in this case, Cassandra Demming, an eighteen month old baby, had been in the custody of the defendant and his wife since September 15, 1987, because the baby’s mother was incarcerated. On December 31,1987, the baby was suffering from a cold and diarrhea. Around noon of that day, the defendant left the baby in the care of a teenage relative and went out for the evening. The babysitter spent the night at the Carpenters’ home.

The next morning, when the babysitter awoke, he heard the baby crying. He immediately went to her room and noticed that she had vomited in her crib. The baby was sick all that day, suffering from congestion and diarrhea. The babysitter stayed with the baby until some members of the Carpenter family returned to the house at approximately 4:15 p.m., January 1, 1988, New Year’s Day. The defendant did not return until around 5 p.m. Shortly thereafter, the babysitter and some other family members left. When the baby’s grandfather, Norman Demming, left at approximately 6:30 p.m. the defendant was alone with the baby who was lying in her crib. At 6:42 p.m., the defendant called the fire department and reported that the baby was having difficulty breathing. When the firefighters arrived, the defendant was outside waiting for them. He directed them to the bathroom where they found the baby unconscious and covered with vomit in the bathtub. James Kenny, a Wallingford firefighter, quickly checked the baby, picked her up and started mouth to mouth resuscitation. As the firefighters were leaving, the defendant told them that the baby had fallen out of her crib.

The defendant accompanied the baby as she was transported by ambulance to Memorial Hospital in Meriden. Later, after the doctors diagnosed that the baby had a parietal skull fracture, she was transported by helicopter to Yale-New Haven Hospital and placed on a life support system. The next morning, the baby was pronounced brain dead and thereafter removed from life support. William Hellenbrand, the examining physician at Yale-New Haven Hospital, found bruises over the baby’s back and her face swollen. He also testified that the skull fracture that killed the baby was caused by her being thrown physically, rather than just falling or being dropped.

The autopsy conducted by Harold Carver, deputy chief medical examiner, revealed bruised and swollen tissue around the lips and eyes, a fractured skull and five fractured ribs. Carver testified that the lethal injury to the skull was caused by a single blow of “fairly great force.” The doctor opined that the injuries could have occurred when someone threw the baby onto a hard, smooth surface. He also testified that the baby’s ribs were broken by a “fairly significant force” which occurred around the same time as the skull fracture. In Carver’s opinion, the ribs could have been broken either by being struck with a fist or by being shaken violently. Carver, in the course of his examination, also discovered another head injury, not related to the cause of death, that was at least six weeks old.

What transpired during the short period of time in which the defendant was left alone with the baby is unclear. The only evidence presented by the state was the varying accounts of the incident given by the defendant to the police. The defendant first told authorities that the baby had fallen from her crib and that, in taking her to the bathroom to revive her, he had accidentally hit her head against a door. Later, the defendant voluntarily went to the police station to discuss the incident. While there, he repudiated the story of striking the baby’s head against a door and stated instead that he had slipped and had fallen on the baby while carrying her to the bathroom and that he had also banged her head several times while attempting to place her into the bathtub to administer first aid. After being confronted with the results of the autopsy report, the defendant ventured that he might have dropped the baby as he was attempting to place her in the tub and that he had also banged her head several times in an attempt to resuscitate her. Carver rejected these explanations given by the defendant. He testified that he could not conceive of how the injuries could have been caused accidentally in those ways. The defendant did at one point in his conversations with the police, however, admit that he had thrown the baby into the bathtub out of sheer frustration. When questioned as to what may have caused the rib injuries, the defendant indicated that he might have grabbed the victim too firmly in an attempt to revive her.

The defendant argues that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that he had the specific intent to cause death. See General Statutes § 53a-54a. While the the defendant does not challenge the state’s contention that the evidence established a homicide, he asserts that it established only his culpability of the lesser included offense of manslaughter in the first degree. We agree.

It is, of course, the state’s burden to prove every element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. DelVecchio, 191 Conn. 412, 419, 464 A.2d 813 (1983). In order to be convicted under our murder statute, the defendant must possess the specific “intent to cause the death” of the victim. General Statutes § 53a-54a. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11); State v. McClary, 207 Conn. 233, 240, 541 A.2d 96 (1988); State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), aff’d, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983).

“ ‘Generally, intent can be proved only by circumstantial evidence. State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979); State v. Bzdyra, 165 Conn. 400, 403, 334 A.2d 917 (1973). “ ‘Intent may be, and usually is, inferred from conduct. State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 [1972]; State v. Smith, 157 Conn. 351, 354, 254 A.2d 447 [1969]. . . . ’ State v. Bzdyra, [supra].” State v. Sober, 166 Conn. 81, 92-93, 347 A.2d 61 (1974).’ State v. Morrill, [193 Conn. 602, 609, 478 A.2d 994 (1984)]. ‘ “ ‘An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.’ State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980).” State v. Martin, 195 Conn. 166, 170, 487 A.2d 177 (1985).’ State v. Chace, [199 Conn. 102, 105, 505 A.2d 712 (1986)].” State v. Patterson, 213 Conn. 708, 721-22, 570 A.2d 174 (1990).

Although ordinarily the intent of the actor is a question for the trier of fact; State v. Avcollie, supra, 466; when an element of a crime set forth in a statute is unsupported by the evidence, “ ‘it is error to submit it to the jury as if the evidence justified the determination of the presence of that element.’ State v. Rogers, 177 Conn. 379, 382, 418 A.2d 50 (1979); State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 (1975).” State v. Morrill, supra, 608.

Construing the available evidence in the light most favorable to the state, a jury could reasonably have found that the defendant killed the baby by throwing her into the bathtub. This conclusion, standing alone, however, is insufficient to establish that the defendant had the requisite intent to cause death. The state presented no evidence of any weapon, plan or motive, nor was there any evidence connecting the defendant to a pattern of abusive behavior. Cf. State v. Tucker, 181 Conn. 406, 415, 435 A.2d 986 (1980). No evidence was presented to suggest that the defendant had caused the six week old head injury noted earlier. Further, the defendant did not attempt to fl.ee but rather, when he realized the gravity of the situation, immediately summoned medical aid for the baby. Cf. State v. Martin, supra, 173; State v. D’Antuono, 186 Conn. 414, 425, 441 A.2d 846 (1982).

The state argues, however, that the jury could reasonably have inferred an intent to cause death based upon the relative strength of the defendant as compared to the victim, the degree of force used, and the nature of the injuries inflicted. We disagree.

It is axiomatic “that any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused must prevail. State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761 [1929].” State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955); State v. Morrill, supra, 610. “The trier may not reach a conclusion of guilt where the facts, established by the evidence, including those reasonably and logically inferred from other proven facts, are rationally consistent with the innocence of an accused. A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion. State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 [1951].” State v. Foord, supra, 295; State v. Martin, supra, 173; State v. Morrill, supra, 610-11. “Moreover, inferences which do not have a basis in facts established by the evidence cannot be drawn or relied upon to sustain a verdict.” State v. Jackson, 176 Conn. 257, 264, 407 A.2d 948 (1978). The jury may not resort to speculation and conjecture. State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). If the evidence is insufficient to sustain the burden of proof beyond a reasonable doubt, the verdict must be set aside. State v. Jackson, supra, 262.

We conclude that the evidence presented by the state was simply insufficient to preclude the reasonable hypothesis that the defendant, out of frustration, engaged in reckless conduct that caused the death of the victim. The evidence was therefore insufficient to prove beyond a reasonable doubt that the defendant had the specific intent to cause the victim’s death. Accordingly, the trial court should have granted the defendant’s motion for judgment of acquittal on the murder charge. United States v. Neary, 733 F.2d 210, 217 (2d Cir. 1984); Practice Book §§ 883 and 899.

Our conclusion, however, does not require a remand for a new trial. State v. McGann, 199 Conn. 163, 178, 506 A.2d 109 (1986). The trial court instructed the jury, inter alia, regarding the elements of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). State v. Rodriguez, supra, 405-407; see Government of Virgin Islands v. Soto, 718 F.2d 72, 76-77 (3d Cir. 1983). Because the jury’s verdict necessarily includes a determination that, absent a specific intent, all the elements of § 53a-55 (a) (3) have been proven beyond a reasonable doubt, the defendant would not be prejudiced by a modification of the judgment to reflect a conviction of that charge. State v. Saracino, supra, 421.

II

The defendant’s second claim on appeal is that the trial court erred when it conducted a voir dire of a juror, excused him, and replaced him with an alternate juror. These proceedings occurred in the presence of defense counsel but in the absence of the defendant. The defendant claims, consequently, a violation of both the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution.

The defendant did not raise this claim below and therefore seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We recently restated the Evans guidelines for dealing with constitutional violations that are raised for the first time on appeal. State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989). In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40.

It is the appellant’s responsibility to provide this court with a record adequate to review his claim of error. State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989); State v. Crumpton, 202 Conn. 224, 231, 520 A.2d 226 (1987). This the defendant has failed to do. On the basis of the undeveloped record in this case, it is impossible to determine whether the defendant was ignorant or informed of the discussions concerning the excused juror, whether he waived his right to be present at the discussions or whether, at the time, he agreed with the decision to excuse the juror and consented to his replacement. Because of the inadequate record we will not review the defendant’s claim on appeal. State v. Golding, supra, 240.

There is error, and the case is remanded to the trial court with direction to modify the judgment to reflect a conviction of manslaughter in the first degree in violation of § 53a-55 (a) (3) and to resentence the defendant in accordance with that conviction.

In this opinion Peters, C. J., Shea and Glass, Js., concurred.

Covello, J.,

dissenting. It is inconceivable to me that confronted with evidence that a full grown adult has, admittedly, thrown an eighteen month old baby into an empty bath tub, that the majority would conclude that there was insufficient evidence from which the jury could infer an intent to kill the child.

Harold Carver, the deputy chief medical examiner, testified that the baby’s skull was fractured by a single blow of great force. The blow was not consistent with falling on the floor or being dropped a short distance into the bathtub. Carver further testified that the magnitude of the child’s injuries was consistent with her having fallen one to two stories.

The ferocity with which the baby was thrown into the bathtub caused her a fractured skull with radiating cracks, five fractured ribs, swollen tissue around the lips and eyes, a bruised lip and eyelids, a collection of blood on the right side of the head, and discoloration on the back.

“When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty . . . [w]e . . . review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983). We then determine whether ‘ “the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” ’ 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, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Duhan, 194 Conn. 347, 355, 481 A.2d 48 (1984).” (Emphasis added.) State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985).

With regard to the element of intent, it involves “a mental process which ordinarily can be proven only by circumstantial evidence.” State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). “The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980).” State v. Martin, 195 Conn. 166, 170, 487 A.2d 177 (1985)

“The intent of the actor is a question for the trier of fact, and the conclusion drawn by the trier in this regard should stand unless it is an unreasonable one.” State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977). Despite the majority’s concession that this is the state of the law, and despite the fact that the jury was instructed to consider the lesser included offense of manslaughter in the first degree, this important factual conclusion has been here struck down based upon the majority’s conclusion that the evidence was insufficient.

“ ‘[T]he requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition.’(Citations omitted.) State v. Foord, [142 Conn. 285, 294-95, 113 A.2d 591 (1955)]; see State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982). ‘Emphasis needs to be placed on the distinction between the word “reasonable” and the word “possible.” . . . Proof of guilt must exclude every reasonable supposition of innocence . . . . “[A] mere ‘possible hypothesis’ of innocence will not suffice.” ’ (Citations omitted.) State v. Englehart, 158 Conn. 117, 121-22, 256 A.2d 231 (1969).” State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984); see State v. Foord, supra, 295; State v. McDonough, 129 Conn. 483, 485, 29 A.2d 582 (1942). “While proof of guilt must exclude every reasonable supposition of innocence, it need not exclude every possible supposition of innocence. State v. Englehart, supra, 121.” (Emphasis added.) State v. Little, 194 Conn. 665, 672, 485 A.2d 913 (1984).

On the basis of the intensity of the blow, the magnitude of her injuries, and the relative size of the defendant and his eighteen month old victim, I would not disturb the jury’s guilty verdict. Accordingly, I dissent.

       “[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. . . .”

       The doctor did state that the injuries could have been caused by dropping the baby from a height of six feet or more, but not from dropping her one or two feet.

       “[Practice Book] Sec. 883. —in general
      “Motions for a directed verdict of acquittal and for dismissal when used during the course of a trial are abolished. Motions for a judgment of acquittal shall be used in their place. After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon his own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty. Such judgment of acquittal shall not apply to any lesser included offense for which the evidence would reasonably permit a finding of guilty. ’ ’

       “[General Statutes] Sec. 53a-55. manslaughter in the first degree: class B felony, (a) A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. .


author: Callahan, J.

text:
    State of Connecticut v. Thelbert E. Moye
    (13595)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.

      Argued December 12, 1989
    decision released February 27, 1990

      Donald D. Dakers, public defender, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Thelbert E. Moye, was charged in a substitute information with sexual assault in the first degree and kidnapping in the first degree. He was convicted, by a jury, of sexual assault in the third degree in violation of General Statutes § 53a-72a and of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). The trial court sentenced him to an effective term of imprisonment of twelve years, execution suspended after three years, and five years of probation. The defendant appealed, claiming that the trial court erred when it restricted the scope of the defendant’s cross-examination of the victim. We find no error.

The victim testified to the following. While she was walking home on Grand Avenue in New Haven on the evening of January 13,1988, she noticed that she was being followed by a man, whom she later identified as the defendant. The defendant grabbed her from behind and forced her to a secluded area. There she struggled to escape, but the defendant slapped her, threatened to beat her and ripped her clothing. The defendant also told the victim that he had a gun and that he would shoot her, if necessary. He then knocked her to the ground, pulled off her pants and had sexual intercourse with her.

Later, intent on leaving the area and fearful that the defendant might kill her, the victim coaxed him into accompanying her back to her apartment. On the way, she told the defendant that she wanted to stop at a local bar for a drink. When she entered the bar, she found a friend in whom she confided that the defendant had attempted to rape her. Her friend immediately reported the incident to police officers who happened to be parked outside. By the time the victim went outside and gave a description of her assailant to the police, however, the defendant had fled the immediate vicinity. The victim then rode about the neighborhood in the police car to search for her assailant. When she saw him and identified him to the officers, he was apprehended and arrested.

The victim also testified that when she gave her initial statements to the police, because she was too embarrassed, she never told them that the defendant actually had sexual intercourse with her. The day after the incident, however, she told a friend that she had indeed been raped. The victim never sought medical care nor was she physically injured by the defendant.

The following facts are pertinent to the defendant’s claim on appeal. On August 10,1988, the state served on the victim a subpoena requiring her to appear and testify at a pretrial hearing. When she failed to appear, the trial court granted the state’s request to issue a capias. The victim was subsequently arrested, pursuant to the capias, detained and brought to court to testify at the pretrial hearing.

At trial, the defendant attempted to cross-examine the victim concerning her failure both to respond to the subpoena and to appear at the pretrial hearing. When the state objected to this line of questioning, defense counsel claimed that the victim’s failure to appear in court, after a subpoena had been issued requiring her to do so, affected her credibility because it showed that she was afraid she might perjure herself. The trial court sustained the objection on the ground that the victim’s failure to respond to a subpoena was not relevant to her credibility and therefore was not admissible evidence.

On appeal, the defendant asserts that the trial court erred by prohibiting him from cross-examining the victim concerning: (1) her reluctance to respond to a subpoena and to testify; and (2) her arrest pursuant to a capias and her detention until she testified at the pretrial hearing. As to his first claim, the defendant argues that the trial court: (1) impermissibly restricted his constitutionally guaranteed right of confrontation; and (2) abused its discretion when it ruled that the proffered evidence was irrelevant to the victim’s credibility. We disagree.

The confrontation clause gives the accused the right “to be confronted with the witnesses against him.” U.S. Const., amend. VI. “ ‘Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.’ State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).” State v. Oehman, 212 Conn. 325, 330, 562 A.2d 493 (1989); State v. Milum, 197 Conn. 602, 609, 500 A.2d 555 (1985); State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985); State v. Lubesky, 195 Conn. 475, 482, 488 A.2d 1239 (1985). The confrontation right, however, is not absolute and is subject to reasonable limitation. State v. Vitale, supra, 401. “ ‘[T]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in. whatever way, and to whatever extent, the defense might wish.” ’ Kentucky v. Stincer, 482 U.S. 730, 739 [107 S. Ct. 2658, 96 L. Ed. 2d 631] (1987), quoting [Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985)] (emphasis added); Delaware v. Van Arsdall, 475 U.S. 673, 679 [106 S. Ct. 1431, 89 L. Ed. 2d 674] (1986); Ohio v. Roberts, 448 U.S. 56, 73 n.12 [100 S. Ct. 2531, 65 L. Ed. 2d 597] (1980).” United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). A trial judge, without violating a defendant’s rights guaranteed under the confrontation clause, thus has broad discretion to impose reasonable limits on cross-examination on the basis of concerns that the testimony is only marginally relevant. Delaware v. Van Arsdall, supra.

It is clear from the record that the trial court afforded the defendant wide latitude to cross-examine the victim. In fact, the victim’s failure to respond to the subpoena was the only subject broached by the defendant that he was not allowed to pursue on cross-examination. During cross-examination the victim told the jury that, while she was now testifying that the defendant had actually raped her, she had previously told the police officers that the defendant had only attempted to rape her. She also admitted, prior to the state’s objection, that she did not appear at the pretrial hearing even though she was aware that she had been subpoenaed to do so. The defendant further impeached the victim’s veracity by eliciting from her an admission that she had forged her name to a check and had attempted to cash it.

“Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” State v. Vitale, supra, 403. The defendant on cross-examination “took full advantage of the opportunity afforded him ‘to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).” State v. Pittman, 209 Conn. 596, 603, 553 A.2d 155 (1989). The constitutional standard was therefore satisfied.

Furthermore, we cannot say, as claimed by the defendant, that the trial court abused its discretion by ruling that the evidence was irrelevant. Once the defendant had been given an opportunity to cross-examine the witness sufficient to satisfy the confrontation clause, it was within the sound discretion of the trial judge to restrict the scope of further cross-examination. State v. Milum, supra, 609; State v. Vitale, supra, 402. A trial judge is accorded “broad discretion to determine both the relevancy and remoteness of evidence.. . . Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters.” Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). A trial judge may properly exclude questions, the relevancy of which appears to be slight and inconsequential and which would distract the jury from the main issues in the case. State v. Talton, 197 Conn. 280, 284-85, 497 A.2d 35 (1985); State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969).

Our conclusion finds further support in the record that reflects that, before ruling definitively, the trial judge gave the defendant an opportunity to explain why the victim’s failure to appear in answer to the subpoena affected her credibility. The defendant merely claimed that “it shows that she was worried about perjuring herself through the fact that she had, through the authorities changed her statement. . . . ” The defendant also argued that the victim had a legal duty to appear, yet she chose to ignore the subpoena. The defendant made no other offer of proof to substantiate his claim. In view of the fact that the victim had already testified that she had changed her story, the defendant’s assertions did little, if anything, to clarify how his proposed line of questioning would further undermine her credibility. Furthermore, on cross-examination, the victim had admitted that she had not appeared at the pretrial hearing even though she knew she was required to do so. Listening to the defendant’s offer of proof, the trial court could reasonably have concluded that further inquiry into the reasons underlying the victim’s failure to respond to the subpoena would not appreciably have assisted the trier of fact. On this record, we cannot say that the trial court abused its discretion by restricting the scope of cross-examination on this subject.

On appeal, the defendant appears to assert a second ground for his contention that the trial court impermissibly restricted his constitutional right of confrontation. He now claims that he had wanted to cross-examine the victim as to the possible impact on her testimony not only with respect to her failure to appear, but also with respect to her arrest and subsequent detention. The defendant, for the first time, asserts that the victim’s arrest and subsequent detention until her testimony had been elicited at the pretrial hearing also had a direct bearing on her credibility. Such a proposed line of questioning, however, was not adequately brought to the attention of the trial court. Because he claims that his constitutional right to confrontation was involved, the defendant presumably seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “It is the appellant’s responsibility to provide this court with a record adequate to review his claim of error. State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989); State v. Crumpton, 202 Conn. 224, 231, 520 A.2d 226 (1987).” State v. Carpenter, 214 Conn. 77, 86, 570 A.2d 203 (1990). “If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” State v. Golding, supra, 240.

The defendant has failed to establish an adequate record for us to review his constitutional claim. Nothing in the record suggests that the defendant attempted to cross-examine the victim on the impact of her arrest and detention. A defendant cannot claim a confrontation clause violation regarding an issue on which he chose not to cross-examine the witness. State v. Fullwood, 199 Conn. 281, 286, 507 A.2d 85 (1986). “ ‘[T]he decision whether to cross-examine a witness is almost always a . . . tactical one.’ State v. Clark, 170 Conn. 273, 286, 365 A.2d 1167 [cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976)]. When a party chooses not to cross-examine a witness in order to avoid the possibility of eliciting harmful testimony, his right to confront and cross-examine that witness as guaranteed by the sixth and fourteenth amendments of the United States constitution is in no way abridged.” State v. Villafane, 171 Conn. 644, 676, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558, overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); State v. Reed, 174 Conn. 287, 300, 386 A.2d 243 (1978).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-72a. sexual assault in the third degree: class d felony, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with another person whom such person knows to be related to such person within any of the degrees of kindred specified in section 46b-21.
      “(b) Sexual assault in the third degree is a class D felony.”

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

       At trial, the following colloquy occurred:
      “The Court: Counsel, want to put your arguments on the record please?
      “Mr. McDermott: Your Honor, I intend to show that [the victim] failed to acknowledge a subpoena she was issued for last Wednesday, Thursday and Friday by the State’s Attorney. On Friday Mr. Vitale asked that a capias be issued by [tjhis court to have [the victim] brought into court via police and an arrest. Whereupon she was arrested I believe Friday evening, spent the weekend in jail. And until Friday before she testified finally in the hearing. And her testimony was germane to that hearing, the hearing couldn’t go forward. The trial was held up. It was the first time she was going to testify. And I think that that bears on the issue of credibility. . . . I think credibility is a key fact in this case. The mere fact that [the victim]—
      “The Court: Her failure to appear affects her credibility.
      “Mr. McDermott: That’s my opinion yes, Your Honor.
      “The Court: How?
      “Mr. McDermott: And I believe it shows that she was worried about perjuring herself through the fact that she had, through the authorities changed her statement some two weeks ago. . . .
      “The Court: How does her failure to appear, could you articulate that more? Failure to appear affects the credibility. And of course if it’s appropriate for credibility, it’s a 6th Amendment right and confrontation, certainly he would be entitled to it. How does it affect her credibility?
      “Mr. McDermott: She had a legal duty via the subpoena. And in fact she was told by the State’s Attorney that her testimony would be necessary in this action. And she understood her obligation to come forward. And in fact she chose to ignore the subpoena, thereupon a capias had to be issued. Which I think is really an extreme type of action. And one that is not done often, as Your Honor had pointed out when he issued the capias. So I think this is something more than the usual instance.”

         It is impossible to determine whether defense counsel raised this issue under the sixth amendment to the United States constitution or article first, § 8 of the Connecticut constitution, or both. We therefore assume that the defendant is raising his claim under the sixth amendment to the United States constitution, as applied to the states in Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).

       If the defendant’s basis for asserting that the failure to appear when ordered to do so pursuant to a subpoena in itself shows a lack of credibility because the victim violated a legal duty to appear, his argument is not persuasive. Defense counsel may not cross-examine a witness concerning collateral bad acts unless they involve veracity. State v. Perry, 195 Conn. 505, 523, 488 A.2d 1256 (1985). “Whether to permit cross-examination as to particular acts of misconduct to show a lack of veracity lies largely within the discretion of the trial court. Vogel v. Sylvester, 148 Conn. 666, 675-76, 174 A.2d 122 (1961).” State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985); State v. Avis, 209 Conn. 290, 304, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Orsini, 187 Conn. 264, 268, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982). The mere fact that the witness did not respond, without more, to a subpoena cannot be said to establish a lack of veracity. See State v. Perry, supra. As discussed above, on the basis of this record we cannot conclude that the trial court abused its discretion by restricting the scope of cross-examination.

       On appeal, we will not review an evidentiary claim not raised below. “ ‘ “Once counsel states the authority and ground of his objection, any appeal will be limited to the ground asserted.” Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); State v. Rado, 172 Conn. 74, 81, 372 A.2d 159 (1976) [cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977)]; State v. Johnson, 166 Conn. 439, 444-45, 352 A.2d 294 (1974); Salvatore v. Hayden, 144 Conn. 437, 443, 133 A.2d 622 (1957).' State v. Adams, 176 Conn. 138, 144-45, 406 A.2d 1 (1978); see also Practice Book [§ 4185], ‘To assign error in the court’s evidential ruling on the basis of objections never raised at the trial amounts to trial by ambuscade of the trial judge. State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95 [1960]. . . . ’ ” State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); State v. Croom, 166 Conn. 226, 231, 348 A.2d 556 (1974).