text:
    State of Connecticut v. Henry Beckenbach
    (12534)
    Peteks, C. J., Healey, Shea, Santaniello and Aspell, Js.
    Argued October 8
    decision released December 10, 1985

      Linda N. Knight, deputy assistant state’s attorney, with whom, on the brief, were Raymond Doyle and John Massameno, assistant state’s attorneys, for the appellant (state).

      Joseph E. Fazzano, with whom, on the brief, was Kevin Dubay, for the appellee (defendant).
   Arthur H. Healey, J.

This is an appeal, after certification, from a judgment of the Appellate Court reversing a conviction because the trial court abused its discretion in denying a continuance to the defendant. The Appellate Court remanded the case for a new trial. We granted certification on a petition by the state to review the judgment of the Appellate Court on this issue: “Whether in the absence of a showing of prejudice, the denial of a continuance sought to obtain counsel of a defendant’s choice constitutes reversible error.” We reverse the judgment of the Appellate Court.

The defendant, Henry Beckenbach, was convicted by a jury of the crimes of breach of the peace in violation of General Statutes § 53a-181 (a) and of interfering with an officer in violation of General Statutes § 53a-167a. The charges arose out of the defendant’s actions during an investigation of a motorcycle accident by the Danbury police department. The jury found the defendant not guilty of reckless driving, General Statutes § 14-222 (a); and not guilty of the lesser included offense of speeding. The defendant appealed to the Appellate Court. The defendant claimed on that appeal that the evidence was insufficient to sustain the convictions and that the trial court abused its discretion in denying his motions for a continuance. The Appellate Court found that the evidence presented was sufficient to support the verdict, but held that a continuance should have been granted. The facts of the case are fully set forth in the Appellate Court opinion. State v. Beckenbach, 1 Conn. App. 669, 670-72, 476 A.2d 591 (1984).

The circumstances surrounding the defendant’s requests for continuances based on the unavailability of his requested attorney are as follows: The defendant was arraigned on June 22,1981, and pleaded not guilty. He elected to be tried by a jury. State v. Beckenbach, supra, 672. The law office of Joseph E. Fazzano filed an appearance in the case in March, 1982. The case was assigned a trial date of June 2, 1982, at which time it was reported to the trial court that Fazzano was on trial in a civil case in Hartford. State v. Beckenbach, supra. The court, Sullivan, J., continued the case until June 3,1982. An associate in Fazzano’s law firm, Kevin Dubay, appeared in court on June 3, 1982, at which time he requested a continuance. The court denied that request and a jury was selected on that date. After the jury was selected, the court, Sullivan, J., continued the case until June 8 because it had a prior court commitment. On June 8, Dubay again requested a continuance which was denied. Dubay informed the court on each date that Fazzano was engaged in a civil trial in Hartford and that the defendant had specifically requested that Fazzano represent him. The court noted on June 8 that there had been six days since the last continuance on June 3 and that “Mr. Fazzano had time to make arrangements to be here, or whatever, and I think that’s very reasonable.”

Dubay took an exception to both denials of the motions for a continuance. The trial commenced on June 8 with Dubay representing the defendant and his codefendant, Lawrence Spindle. The trial lasted five days, ending on June 17. State v. Beckenbach, supra, 673. The defendant was convicted of the two charges set out above. Both he and his codefendant were acquitted of the charge of reckless driving and of the lesser included offense of speeding. The court continued the case to June 18 for sentencing, at which time Dubay, as counsel for the defendant, moved “to set aside the verdict pursuant to Connecticut Practice Book Section 899” on the ground of, inter alia, the denial of the motions for a continuance. Dubay stated that the “facts of which continuance still exist” and that “Mr. Fazzano is still on trial” in Hartford. The court denied the motion and an exception was taken.

The Appellate Court reviewed the actions of the trial court and, without any claim of demonstrable prejudice or ineffective assistance of counsel being advanced by the defendant, concluded that the trial court had abused its discretion in denying the requests for a continuance. State v. Beckenbach, supra, 675-76. The Appellate Court found error, reversed the judgment and ordered a new trial. State v. Beckenbach, supra, 680. Thereafter, the state sought, and we granted, certification.

As the Appellate Court noted, the “matter of a continuance is traditionally within the discretion of the trial judge, which will not be disturbed absent a clear abuse. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921, reh. denied, 377 U.S. 925, 84 S. Ct. 1218, 12 L. Ed. 2d 217 (1964); Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983); State v. Olds, 171 Conn. 395, 402, 370 A.2d 969 (1976).” State v. Beckenbach, supra, 674; see also Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980). “It must be shown that the trial judge acted arbitrarily and substantially impaired defendant’s ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion. The test is a stringent one.” United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S. Ct. 892, 17 L. Ed. 2d 795 (1967). We do not hear this appeal de novo; the focus of our review is not the judgment of the trial court but the judgment of the Appellate Court. “The only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court.” State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).

In reviewing the trial court’s denial of the continuance sought by the defendant, the Appellate Court was bound by the principle that “[ejvery reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” Ridgeway v. Ridgeway, supra. The right of a defendant to have a continuance is not “absolute.” State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the .time the request is denied.”Ungar v. Sarafite, supra, 589; State v. McKnight, 191 Conn. 564, 576, 469 A.2d 397 (1983); State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977). The only reason propounded by Dubay for the continuance and presented to the trial court in this case was that the defendant’s chosen counsel, Fazzano, was still engaged in a civil trial in Hartford. No specific or even approximate date was given to the court as to when Fazzano might have been able to conduct the defendant’s trial. The trial court, therefore, could reasonably have viewed the motion as seeking a continuance of unspecified duration. Dubay, a three-year associate with Fazzano’s law firm, did not at any time claim that he was unfamiliar with the case, that he was unprepared to go forward with the trial, or that he was so lacking in expertise that he did not feel able to conduct the trial. The charges pending in this case were misdemeanors and the case was of “relative simplicity.” State v. Beckenbach, supra, 676. Moreover, after the jury was selected on June 3, the case was continued by the court until June 8, which effectively allowed Dubay additional time in which to complete any preparation necessary to prepare an adequate defense. In addition, Dubay stated to the trial judge that the defendant has no “ax to grind with me personally, [but] would exercise [his] Constitutional choice with regard to effective assistance of counsel and do[es] insist upon Joe Fazzano trying this matter.” On appeal to the Appellate Court, the defendant did “not claim lack of effective representation”; State v. Beckenbach, supra, 676; nor does the defendant claim lack of effective representation on this appeal. The only issue decided by the Appellate Court, i.e., whether there was abuse of discretion by the trial judge, presented a question of a nonconstitutional nature. Where the claim of error on appeal is nonconstitutional, the burden is on the appellant to show that the error was harmful. State v. Randolph, 190 Conn. 576, 588-89, 462 A.2d 1011 (1983).

While there was no evidence that the defendant’s attorney requested a continuance for purposes of delay or that the need for the continuance was attributable to the defendant himself, these “circumstances do not in themselves warrant a finding that the trial court abused its discretion.” State v. Myers, 193 Conn. 457, 463, 479 A.2d 199 (1984). In Commonwealth v. Festo, 251 Mass. 275, 277-78, 146 N.E. 700 (1925), the Supreme Judicial Court of Massachusetts stated: “Unreasonable delay in the administration of justice can be avoided only by leaving continuances of cases because of conflicting engagements of counsel solely to the sound discretion of the court.” See generally 112 A.L.R. 593.

While recognizing that each case turns on its own facts and circumstances and while recognizing that the defendant did not allege any “identifiable prejudice resulting from Dubay’s representation,” the Appellate Court nonetheless proceeded to presume prejudice: “[W]e cannot ignore the difference between being represented by a trial attorney of twenty-five years experience and being represented by one of three years experience in a case in which the defendant’s liberty is at risk.” State v. Beckenbach, supra, 676. In the absence of a claim of ineffective assistance of counsel, the youth of the trial attorney cannot furnish a basis for insisting on a continuance. United States v. Cronic, 466 U.S. 648, 665, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). “Every experienced criminal defense attorney once tried his first criminal case. . . . The character of a particular lawyer’s experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation.’Td. The United States Supreme Court in Morris v. Slappy, 461 U.S. 1, 13, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983), held that the Ninth Circuit’s conclusion that the sixth amendment right to counsel included the right to a meaningful attorney-client relationship “is without basis in the law.” The question presented on appeal in Morris v. Slappy was whether it was error for the Court of Appeals to hold that the state trial court violated the respondent’s sixth amendment right to counsel by denying the respondent’s motion for a continuance until the deputy public defender initially assigned to defend him was available. Morris v. Slappy, supra, 3-4. The facts in Morris v. Slappy show that the substituted counsel was prepared to proceed with the trial on schedule and that the defendant “disavowed any dissatisfaction with counsel” but expressed a preference for his original public defender on the third day of trial. On the basis of the record, the court stated that the trial court was “abundantly justified” in denying the motion for a continuance because it was not timely and could have been a “ploy for delay.” Morris v. Slappy, supra, 13. “In the face of the unequivocal and uncontradicted statement by a responsible officer of the court that he was fully prepared and ‘ready’ for trial, it was far from an abuse of discretion to deny a continuance.” Id., 12. While there is undoubtedly some difference in the experience of one who has practiced the law for a greater period of time than another, it is conceded that the attorney who did conduct the trial did so in a manner so as to provide an adequate defense for the defendant. See State v. Myers, supra, 463-64. Moreover, the defendant was found not guilty of the charge of reckless driving and the lesser charge of speeding.

“Each case must depend largely upon its own facts and circumstances.” Magno v. Freeport, 486 A.2d 137, 140 (Me. 1985) (where appellant’s attorney engaged in trial elsewhere and no showing was made that the denial of the motion for continuance had any prejudicial effect and competent substitute counsel was present, then there was no abuse of discretion); State v. Beckenbach, supra, 675.

On the record before us, the Appellate Court was in error in concluding that the trial court abused its discretion in denying the continuance. The burden of demonstrating that the trial court erred as claimed was on the defendant, not the state, and it was error to hold that the defendant had met that burden.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to reinstate the judgment of the trial court.

In this opinion the other judges concurred.

       On the first count, the defendant was sentenced to a term of three months with the execution suspended and probation for one year. On the second count, he was sentenced to a term of nine months, the execution of which was suspended after six months, and probation for one year. Both sentences were ordered to be served concurrently.
      The same jury found the defendant not guilty of the charges of reckless driving and speeding.

       The information charged the defendant with operating a motor vehicle upon a public highway “in a reckless manner at a rate of speed that endangered persons other than himself, in violation of Section 14-222 (a) of Connecticut General Statutes.”

       As the Appellate Court correctly notes; State v. Beckenbach, 1 Conn. App. 669, 674 n.5, 476 A.2d 591 (1984); insofar as this motion pertains to the denials of the motions for a continuance, the proper motion was for a new trial under Practice Book § 902.

       Although neither party has raised Practice Book § 281 on this appeal (assuming arguendo that it applies to criminal as well as civil cases) it contains an applicable policy statement. Practice Book § 281 provides in relevant part: “Attorneys shall not enter or maintain appearances in cases in more than one piace in the judicial district in which their principal office is located, or in any other judicial district unless they have trial counsel available to proceed in any case when reached.
      “The fact that an attorney has a case assigned in a judicial district other than the one where his principal office is located shall not constitute a valid ground for the continuance of an action reached for trial in any place in which he has. entered an appearance.”

       The defendant in this court, does not claim a constitutional right to his choice of counsel and we do not rule on this issue, but rather he maintains that the case presents, as the Appellate Court concluded, an abuse of discretion by the trial court. Although the United States Supreme Court has recognized that a criminal defendant “has a right to counsel of his or her own choosing, e.g. Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58, 77 L. Ed. 158 (1932), exercise of that right must at times give way to the need for a fair and efficient administration of justice.” United States v. Cicale, 691 F.2d 95, 106 (2d Cir. 1982); see also United States v. Gipson, 693 F.2d 109 (10th Cir. 1982), cert. denied, 459 U.S. 1216, 103 S. Ct. 1218, 75 L. Ed. 2d 455 (1983); State v. Rapuano, 192 Conn. 228, 233 n.6, 471 A.2d 240 (1984) (“The right to counsel of one’s own choice is by no means absolute”); 2 LaFave & Israel, Criminal Procedure § 11.4 (c); Lowenthal, “Successive Representation by Criminal Lawyers,” 93 Yale L.J. 1, 53 (1983) (“[I]t is widely recognized that the defendant’s right to the counsel of his choice is not absolute”). The Appellate Court stated that its holding was not inconsistent with Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983), because the defendant in this case does not make a claim that he has a right to a meaningful attorney-client relationship as the defendant in Morris v. Slappy did. State v. Beckenbach, supra, 677. Rather, the Appellate Court ruled on the defendant’s claim that was “based on abuse of discretion under all the circumstances of the case.”
      The United States Court of Appeals for the Second Circuit has had occasion to point out that “the concentration of business of this sort in the hands of a number of lawyers [active members of the New York City criminal defense bar] insufficient to meet the preferences of defendants able to retain counsel cannot be allowed to interfere with the public interest in ‘disposition of criminal charges with all reasonable dispatch.’ Statement of the Circuit Counsel to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases. . . . The Sixth Amendment right to counsel does not include the right to a lawyer whose other engagements prevent a speedy trial.” United States v. DiStefano, 464 F.2d 845, 846 n.1 (2d Cir. 1972). The United States District Court for the Southern District of New York, in recognizing that “[t]he desirable goal that a defendant obtain counsel of his own selection must be balanced against the public interest in the expeditious handling of criminal cases,” observed that “[witnesses, prospective jurors and prosecutors are entitled to reasonable stability in the scheduling of cases.” Walters v. United States, 404 F. Sup. 996, 998 (S.D.N.Y. 1975), aff’d, 542 F.2d 1166 (2d Cir. 1976).

       In Cronic, court-appointed counsel was young and inexperienced; it was his first jury trial, and his principal practice was in real estate. The defendant in Cronic was indicted on mail fraud charges stemming from a check kiting scheme involving the transfer of over $9,400,000 in checks. The court-appointed counsel was allowed only 25 days (although he had requested 30 days) for pretrial preparation. It had taken the federal government over four and one-half years to investigate the case. United States v. Cronic, 466 U.S. 648, 649, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).

       Dubay cross-examined the state’s witnesses, located four defense witnesses, in addition to the two defendants, and called them to testify, researched and argued the most recent case law, successfully objected to irrelevant testimony, filed requests to charge, and argued for judgments of acquittal. See generally Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for an extensive exploration of the standards to be used for, and the meaning of, the effective assistance of counsel.


source: Caselaw Access Project

author: Dannehy, J. Shea, J.,

license: Public Domain

text:
    State of Connecticut v. Bruce E. Rodgers
    (11842)
    Peters, C. J., Shea, Dannehy, Santaniello and Kline, Js.
    Argued October 2
    decision released December 17, 1985

      John J. Kindi, special public defender, for the appellant (defendant).

      Corinne L. Klatt, deputy assistant state’s attorney, with whom were Peter D. Markle, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Dannehy, J.

A jury found the defendant guilty of sexual assault in the first degree; General Statutes § 53a-70 (a); and of criminal attempt to commit murder. General Statutes §§ 53a-54 (a) and 53a-49 (a). He claims on appeal that the trial court erred: (1) in instructing the jury on the issue of insanity when no instruction was requested and no evidence of insanity was presented; (2) in instructing the jury on circumstantial evidence; (3) in instructing the jury on sexual assault in the first degree when the uncontroverted evidence revealed that the victim was unconscious when penetration occurred; (4) in instructing the jury that under the evidence presented it could find the defendant possessed the requisite intent to commit both sexual assault and murder; (5) in denying his motion for severance and his motions for judgment of acquittal and for a new trial. We agree with the defendant’s first and second claims and, accordingly, vacate the judgment and remand for a new trial. Our disposition of this case makes it necessary to consider only those claims and other matters which could possibly arise on a subsequent retrial of the case.

The defendant did not take the witness stand in his own behalf or offer any direct evidence at trial. The victim testified that on the night of August 14, 1980, she had been working at a stag party. When the party ended, she accompanied her employer and his wife to a local bar. There she met the defendant. They talked and consumed several beers. After about an hour, the victim and the defendant left on the defendant’s motorcycle for a second bar where they tarried until closing time. Shortly after they exited the second bar, it began to rain. They then proceeded to the defendant’s house in order to get his car.

The victim testified that while riding in the defendant’s car she fell asleep. She awoke to find the defendant with his hands around her throat, choking her. The victim testified that during the time the defendant was choking her, “[h]e was asking me where my friends were. Where are they now? What are they going to do and how are they going to help me.” As to the actions of the defendant, she stated, “[h]e was squeezing [my neck], squeezing it to the point where I couldn’t talk or breathe anymore. Then I blacked out.” When the victim regained consciousness, she found herself on a pile of rocks on the side of the road, with her shoes, underpants and purse scattered nearby. Her rectum was very sore. On cross-examination, the victim reasserted that she had no pain in her rectum prior to being rendered unconscious and that she was positive that the injury was not caused by any person other than the defendant.

Several witnesses corroborated the victim’s testimony that she had been with the defendant on the evening of August 14, 1980, and that they had left the second bar together. An examination of the victim’s dress and underpants, which had been washed prior to the incident, revealed the presence of seminal stains. Further testimony established that the victim had sustained permanent injury to her third vertebra, explained in medical testimony as a broken neck.

We address first the defendant’s claim that the trial court committed reversible error by instructing the jury on the issue of insanity. At trial, the defendant did not raise the defense of insanity, and the record demonstrates that the state presented no evidence that placed the defendant’s sanity in issue for resolution by the jury. Indeed, the state, along with the defendant, excepted to this portion of the trial court’s charge.

The trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence. State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972); see State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 (1975). The test usually applied in determining whether there is error in a charge is that the charge must be correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). If the charge meets this test it will ordinarily be sustained though not in all respects exhaustive, perfect, or technically accurate. Although this case was tried before the 1983 amendments to General Statutes § 53a-13 made the defense of insanity an affirmative defense, our case law was nonetheless well settled that the issue of insanity is not properly raised until “substantial evidence” tending to prove insanity has come into the case. State v. Rossier, 175 Conn. 204, 209, 397 A.2d 110 (1978); State v. Davis, 158 Conn. 341, 355-56, 260 A.2d 587 (1969); State v. Kenyon, 134 Conn. 43, 49, 54 A.2d 585 (1947). In this case the defendant would not have been entitled to an instruction on the issue of insanity because the question of his sanity never came into the case. For the same reason, the trial court erred by submitting that issue, sua sponte, to the jury. Cf. State v. Young, 191 Conn. 636, 648-49, 469 A.2d 1189 (1983). We do not consider the state’s claim that this error was harmless because it is unnecessary in view of the result reached on the defendant’s second claim of error.

The defendant next claims that the trial court erred in its instructions to the jury regarding circumstantial evidence. The defendant duly excepted to the following italicized portions of the trial court’s charge: “Now, circumstantial evidence. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of the law are satisfied. One, that the fact from which you are asked to draw the inference has itself been proved beyond reasonable doubt. Two, that the inference that has to be drawn is not only logical and reasonable but is strong enough so that you can find that it is more probable that the fact to be inferred is true. ” (Emphasis added.) The defendant claims that the requisite standard of proof beyond a reasonable doubt was impermissibly diluted by the trial court’s instruction that an inference may be drawn provided “that it is more probable that the fact to be inferred is true.” We agree.

Circumstantial evidence is evidence offered to prove a certain fact from which the jury is asked to infer, and so to find, the existence of another fact in issue. The jury must initially find that the state has proved the basic fact, from which the jury is asked to draw the inference, beyond a reasonable doubt. If and only if the jury finds the basic fact to have been proved beyond a reasonable doubt may it go on to consider the inference. The inference drawn must be reasonable and logical, and not the result of speculation or conjecture. State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980). Further, the jury must be satisfied that the fact to be inferred has been proved beyond a reasonable doubt. The state argues that “ ‘[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.’ ” State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); see State v. Martin, 195 Conn. 166, 173, 487 A.2d 177 (1985). While this is unquestionably true, it is not meant to imply that the jury may find the existence of inferred facts by less than proof beyond a reasonable doubt. The law makes no distinction as to the probative effect of direct and circumstantial evidence. State v. Englehart, 158 Conn. 117, 119, 256 A.2d 231 (1969); State v. Reid, 154 Conn. 37, 40, 221 A.2d 258 (1966). By the same token, the standard of proof as to inferred facts is no less than that applied to basic facts.

Ordinarily, for a determination of whether the jury has been misled, a charge is to be read as a whole, and detached clauses are not to be considered by themselves but in connection with the whole. State v. Marra, 195 Conn. 421, 440-41, 489 A.2d 350 (1985). We cannot bring the case within the purview of this rule. Much of the evidence produced by the state was circumstantial evidence, especially that bearing on the issue of criminal intent as it related to the crimes charged in the substitute information. The instruction challenged is contained in that portion of the charge dealing with the general principles of law applicable in a criminal case, when the trial judge was engaged in defining to the jury the important subject of burden of proof. State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983). The present case particularly called for a correct instruction on the meaning and utilization of circumstantial evidence in a criminal case. There exists such a contradiction between the erroneous instruction and the admixture of correct doctrine that as a whole it cannot be said that the incorrect statement did not influence the jury.

A final argument raised by the state also merits consideration. We have consistently rejected the claim "that when any circumstance offered in evidence is susceptible to two inferences, one of which is in favor of guilt and the other of innocence, the circumstance must be disregarded and cannot be taken into consideration by the trier in reaching its conclusion.” State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955); State v. Morrill, 193 Conn. 602, 610-11, 478 A.2d 994 (1984); see also State v. Dumlao, 3 Conn. App. 607, 616-20, 491 A.2d 404 (1985). From this the state concludes that the fact ultimately inferred by the jury must necessarily be established by a lesser standard than proof beyond a reasonable doubt. We disagree with the state’s conclusion.

It offends neither logic nor reason that a particular fact may give rise to contradictory inferences. The inference ultimately drawn by the jury need not be the only rational inference possible. Our law confides to the jury the difficult task of deciding among often conflicting inferences which logically and reasonably may flow from the same basic fact. In its consideration of the evidence the jury must rely on its common sense, experience and knowledge of human nature in drawing inferences and reaching conclusions of fact. State v. Carter, 196 Conn. 36, 45, 490 A.2d 1000 (1985). The facts essential to an element of the crime, however, whether basic or inferred, must be found proved beyond a reasonable doubt. We find that the trial court erred by instructing the jury that an inference may be drawn if “it is more probable that the fact to be inferred is true.”

We next consider various claims raised by the defendant in which there is no error but which may recur on retrial. The defendant claims that the trial court erred in its instructions to the jury on the crime of sexual assault in the first degree. The gist of this claim is that under General Statutes § 53a-70 an accused cannot be found guilty of sexual assault in the first degree when the victim is unconscious during the assault. The defendant renewed this claim in support of his motions for judgment of acquittal and for a new trial.

General Statutes § 53a-70 (a) provides that a “person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person ... or by the threat of use of force against such other person . . . which reasonably causes such person to fear physical injury to such person . . . .” Thus, compulsion is an essential element of the crime of sexual assault in the first degree, either by the actual use of force or the threat of use of force which reasonably causes fear of physical injury. The defendant contends that because compulsion connotes the domination of another against his active will, a victim who is unconscious and, therefore, without will to resist cannot be compelled to engage in an act of sexual intercourse. The defendant argues that the legislative history of our sexual assault statutes supports his contention that General Statutes § 53a-70 was not intended to impose criminal liability where the victim is not conscious of the sexual assault.

Prior to 1975, sexual intercourse “by forcible compulsion” and sexual intercourse with one “who is incapable of consent by reason of being physically helpless” were both considered rape in the first degree as proscribed by General Statutes (Rev. to 1975) § 53a-72. In that year, § 53a-72 was repealed and its provisions divided between our present § 53a-70, sexual assault in the first degree, and § 53a-71, sexual assault in the second degree. Public Acts 1975, No. 75-619. While our first degree sexual assault statute retained the element of sexual intercourse by forcible compulsion, sexual intercourse with a person who is “mentally incapacitated or physically helpless” became one of the statutory variants of sexual assault in the second degree. General Statutes § 53a-71 (a) (2) and (3). Our statutes define “physically helpless” to mean “a person [who] is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” General Statutes § 53a-65 (6).

We agree in part with the defendant’s argument, but not with its application to this case. We agree that General Statutes § 53a-70 does not include sexual intercourse with a victim whom the assailant finds unconscious. Here, however, the victim testified that the defendant strangled her into a state of unconsciousness. It would be bizarre indeed to find that the legislature, in enacting the 1975 amendments to our sex crimes statutes, intended to impose a lesser degree of responsibility for sexual assault upon a person, who, by his own hand, renders the victim physically helpless and thus “unable to communicate unwillingness to an act.” General Statutes § 53a-65 (6). This court traditionally eschews construction of statutory language which leads to absurd consequences and bizarre results. State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985); Maciejewski v. West Hartford, 194 Conn. 139, 152, 480 A.2d 519 (1984); Milano v. Warden, 166 Conn. 178, 187, 348 A.2d 590 (1974); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 103, 291 A.2d 721 (1971). We find that the trial court properly instructed the jury on the crime of sexual assault in the first degree.

We next consider the defendant’s claim that the trial court erred by refusing his request to instruct the jury that under the evidence presented he could not be found guilty of both sexual assault in the first degree and attempted murder. The underlying act upon which the attempted murder charge was based was the defendant’s strangulation of the victim. This same act of strangulation, resulting in the victim’s loss of consciousness, was also the only evidence of the use of force necessary to sustain a conviction for sexual assault in the first degree. The defendant contends that in performing this act he could not have possessed both the intent to commit murder and the intent to commit sexual assault in the first degree.

The mental state associated with the crime of attempt to commit murder is the “intent to cause the death of another person.” General Statutes §§ 53a-49 (a) and 53a-54a (a). Sexual assault in the first degree is a “general intent crime with no element of specific intent.” State v. Johnson, 185 Conn. 163, 176, 440 A.2d 858 (1981), aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Truppi, 182 Conn. 449, 454-55, 455 n.4, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). Normally, the force used in the course of committing sexual assault in the first degree is that necessary to compel the victim to engage in sexual intercourse. Where, however, as here, the defendant himself renders the victim physically helpless and unable to communicate her unwillingness to consent, the use of force need not be undertaken solely for the purpose of compelling the victim to engage in sexual intercourse. A contrary holding would result in reduced culpability for a defendant who causes his victim to lose consciousness, by whatever means, prior to committing an act of sexual assault.

Even if we were to accept the defendant’s argument that in strangling his victim he could not simultaneously have intended to commit both murder and sexual assault in the first degree, he would not prevail. On the facts of this case, it was not necessary that the defendant intended to sexually assault his victim as he strangled her. It is enough that after having caused her to lose consciousness by breaking her neck, he did commit the sexual assault. We conclude that the trial court properly refused to instruct the jury that the defendant could not be found guilty of both attempted murder and sexual assault in the first degree.

We address next the defendant’s claim that the trial court erred in denying his motion for severance. We find no error.

The question of severance is within the sound discretion of the trial court and that discretion must not be disturbed unless it has been manifestly abused. State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976). “The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less advantageous to the defendant.” State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952). “[A]n accused bears a heavy burden to show that the denial of severance resulted in substantial injustice because of a manifest abuse of discretion in denying severance.” State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982).

The defendant claims that substantial prejudice resulted from the trial court's admission of hearsay testimony under the constancy of accusation exception to the hearsay rule. State v. Ouellette, 190 Conn. 84, 92, 459 A.2d 1005 (1983); State v. Brice, 186 Conn. 449, 453-54, 442 A.2d 906 (1982). At trial, Detective Howard Jones of the Waterbury police department was allowed to testify, over the defendant’s objection, to the details of the alleged incident related to him by the victim. While this evidence of the victim’s prior consistent statements was not admissible on the charge of attempted murder; State v. Dolphin, 178 Conn. 564, 568, 424 A.2d 266 (1979); the statements were admissible, under the constancy of accusation exception to the hearsay rule, on the charge of sexual assault.

We do not believe that the admission of Jones’ testimony under these circumstances amounts to the substantial injustice necessary to find a manifest abuse of discretion. Jones’ testimony was merely corroborative of facts to which the victim herself testified at trial. The trial court twice instructed the jury to consider this testimony only with regard to the charge of sexual assault in the first degree, once before Jones testified and, again, in its charge to the jury. The limited purpose for which this evidence was admitted would not justify a severance of the sexual assault and attempted murder charges.

The defendant also contends that joinder of these charges “impermissibly interfered” with his decision whether to testify in his own behalf. Before trial, the defendant advised the trial court of the “possibility of his desire to testify as to the charge of sexual assault and to present . . . evidence regarding his good character, specifically sexual morality and decency.” The defendant conceded that in such event the state would attempt to introduce, on the issue of credibility, his prior convictions for robbery, burglary and larceny.

We have previously followed the reasoning in Baker v. United States, 401 F.2d 958, 976-77 (D.C. Cir. 1968), cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970), that “ ‘no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other— to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying.’ ” State v. King, supra, 307. We are satisfied that the defendant has made no such showing here, and we find no error by the trial court in denying the motion for severance.

Finally, the defendant urges error in the refusal by the trial court to grant his motions for judgment of acquittal and for a new trial. As both of these motions were based on a challenge to the sufficiency of the evidence, we consider them together for purposes of review. We find no error.

“The standard that applies when a jury verdict is challenged on the ground of insufficient evidence is well established. ‘When a verdict is challenged because of insufficient evidence, the issue is 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. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984); State v. Ruiz, 171 Conn. 264, 276-77, 368 A.2d 222 (1976). The evidence must be given a construction most favorable to sustaining the jury’s verdict.” State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985).

Our holding with respect to claims already addressed in this opinion disposes of the defendant’s renewed claim that the evidence of intent was insufficient to sustain a finding of guilt for both the crimes of attempted murder and sexual assault in the first degree. The jury could reasonably have found that the defendant, when he choked the victim until she lost consciousness, intended to cause her death. Further, the jury could reasonably have concluded that the defendant in fact caused the victim to lose consciousness, and thereafter engaged in sexual intercourse with her as defined in General Statutes § 53a-65 (2). See State v. Kish, 186 Conn. 757, 763, 443 A.2d 1274 (1982).

The defendant next argues that the evidence of penetration was insufficient to sustain his conviction for sexual assault in the first degree. We must disagree. The victim testified that the defendant strangled her until she became unconscious. When she awoke her underpants had been removed and her rectum was sore. Seminal stains were found on her dress and underpants, both of which had been washed prior to her wearing them on the evening in question. The chief medical examiner testified that seminal stains could not survive the washing of clothes.

Dr. James Thomas, a gynecologist who examined the victim the day after the incident occurred, found a “fissure” just below her vaginal opening. He testified that the fissure was “consistent with rectal penetration either with a penis or some type of object.” He further expressed the opinion that “[s]ome type of large diameter object that was pushed into that area (the rectum) without relaxation could cause a split in the tissue like that.” We find that the cumulative effect of the evidence as it relates to the issue of penetration is sufficient to sustain a finding of guilt beyond a reasonable doubt of sexual assault in the first degree.

We find that the trial court did not err in denying the defendant’s motions for judgment of acquittal and for a new trial on the basis of the insufficiency of the evidence.

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

In this opinion Peters, C. J., Santaniello and Kline, Js., concurred.

Shea, J.,

dissenting. Although I agree with the remainder of the majority opinion, I would find error in the refusal of the trial court to charge the jury that, upon the evidence presented, the defendant could not be found guilty of both attempted murder and sexual assault in the first degree.

A person who renders his victim unconscious and then has sexual intercourse with her in that condition commits sexual assault in the first degree, provided that he had such a purpose in mind at the time he was using force on the victim. He would have then compelled “another person to engage in sexual intercourse by the use of force against such other person” in violation of General Statutes § 53a-70. If the use of force was with the intention of killing the victim, however, as required for a conviction of attempted murder under General Statutes §§ 53a-49 and 53a-54a, the actor could not simultaneously have harbored the purpose of having intercourse with a living victim, as is essential for first degree sexual assault. The concurrent intention he might have entertained could have been only to have sexual contact with a dead body, involving the crime of sexual assault in the fourth degree. General Statutes § 53a-73a (a) (3). In this case, therefore, the jury could not reasonably have found that the defendant, while he was using force, intended both to kill the victim and to have intercourse with her while she was alive, given the sequence that the sexual assault followed the attempt to murder, as the evidence unquestionably established.

Accordingly, I dissent.

       Our discussion is concerned with only those facts essential to prove an element of the crime. “There must be proof beyond a reasonable doubt of all the elements of the crime and the defendant’s participation or responsibility, but not of each evidentiary fact.” (Emphasis added.) LaFave & Scott, Criminal Law (1972) § 4, p. 16. It is only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt.

       The trial court twice gave this instruction to the jury, once during its general instructions on burden of proof, and again during its specific instructions on the elements of sexual assault in the first degree.

       Although the defendant did not object at trial nor raise the claim on appeal, we note that Jones was allowed to testify before the victim, in violation of our rules concerning the constancy of accusation exception. We suggest that the proper procedure be followed on retrial. See State v. Brice, 186 Conn. 449, 453-54, 442 A.2d 906 (1982).


author: Peters, C. J.

text:
    State of Connecticut v. Francisco Perez
    (11315)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued November 5
    decision released December 17, 1985

      Robert F. McWeeny, with whom was Helen Apostolidis, for the appellant (defendant).

      John J. Bracken III, special assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Carl Schuman, assistant state’s attorney, Enrico Vaccaro, former assistant state’s attorney, and Maria F. McKeon, law student intern, for the appellee (state).
   Peters, C. J.

The only issue on this appeal is the admissibility of an in-court identification of the defendant. The defendant, Francisco Perez, a/k/a Jorge Sanchez, appeals his conviction, after a jury trial, of the crimes of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4), and possession of a sawed-off shotgun, in violation of General Statutes § 53a-211 (a). We find no error.

The jury could reasonably have found the following facts relevant to this appeal. On the morning of October 16,1980, an elderly package store owner was working alone behind the counter of his store in West Hartford when two men entered. The first to enter was an Hispanic man who bought a can of beer, left, and then returned to buy a lottery ticket that he had earlier contemplated purchasing. The second was the defendant, who initially went to the the back of the store to obtain a can of beer and then came to the store counter, displayed a sawed-off shotgun, and told the store owner that he was being held up. The first man, after emptying the cash register, took the store owner to a back room, ordered him to remove his clothes, and threatened to kill him if he reappeared. In the meantime, the defendant had set off a bell by the door. The store owner, although frightened by the robbery, had the opportunity to observe the defendant across the counter, a distance of some three feet, when the defendant first threatened him, and again from the entrance to the back room when the defendant set off the bell, a distance of some twelve feet. The robbery in its entirety took between four and five minutes.

The police arrived on the scene almost immediately and obtained a description of the two robbers from the store owner. He described the defendant as a thirty year old, clean-shaven, dark-complected man with braided hair, white freckles and a scar under his right cheek. The store owner mistakenly characterized the defendant as a black man. The store owner also described the defendant’s head as being rounder and larger than that of his accomplice, and described an item of the defendant’s clothing, a knee-length overcoat of a light color.

Although only the store owner had observed the crime itself, three witnesses, including a police officer, saw two men walking rapidly from the scene of the crime and speeding away in an orange car. The orange car was soon discovered at a local housing project, in a parking place previously unoccupied and with its hood hot to the touch. The car was parked in front of the apartment where the police located the defendant and his accomplice. In their search of the apartment, the police found a sawed-off shotgun, the keys to the orange car, and other evidence linking the defendant with the crime. The orange car bore the defendant’s fingerprints.

About one hour after the robbery, the police brought the store owner to the housing project, telling him that the men who had robbed him might be there. There were a number of police cars in the general area. The defendant and his accomplice were standing among a group of eight to twelve people, including some policemen in plain clothes, in the vicinity of approximately one hundred people, most of whom were blacks or hispanics. Although the defendant was handcuffed behind his back, the handcuffs were at least in part concealed by a jacket draped over his shoulder. The store owner selected only two men out of the group, the defendant and his accomplice. The store owner told the police that he could positively identify the accomplice, but that he was not 100 percent sure of the identity of the defendant. Later that day, when the store owner again viewed the robbers, this time outside of a police car iri front of his package store, the store owner repeated his positive identification of the accomplice and his lack of complete certainty about the defendant. The store owner was then only 70 percent certain about the defendant’s identity because, in reflecting upon the robbery after it was over, the store owner was traumatized by the events of the day. The next day, however, having considered the matter further, he had no doubts about his identification of the defendant.

At the defendant’s trial, the store owner made an unqualified in-court identification of the defendant as one of the two individuals who had robbed him on October 16, 1980. The defendant moved that this in-court identification be suppressed as resulting from the pretrial identifications which the defendant characterized as suggestive and unreliable. After a hearing in the absence of the jury, the trial court denied the defendant’s motion. Without expressly ruling on the alleged suggestiveness of the pretrial identifications, the court held that the in-court identification was admissible because it was independent of the earlier identifications and resulted instead from the store owner’s recollection of the crime itself. The defendant took an exception to the court’s ruling. This ruling is the sole basis for the defendant’s appeal.

The defendant asks us to order a new trial for four reasons arising out of the contested in-court identification. The defendant claims that: (1) the pretrial show-up procedure employed by the police, first at the housing project and later at the package store, was unnecessarily suggestive; (2) the identification was not, in the totality of the circumstances, reliable; (3) the in-court identification was not adequately proven to have been independent of the unnecessarily suggestive and unreliable pretrial identification; and (4) the admission of an in-court identification tainted by an unconstitutional pretrial identification cannot be harmless error and therefore requires reversal. Because we find that the in-court identification was properly admitted, we need not address the last of these claims.

We have often stated the test that governs the suppression of identification evidence derived from procedures that are challenged as violative of a defendant’s constitutional rights to due process. In order to succeed on his motion to suppress, the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances. State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 837 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985); State v. Myers, 193 Conn. 457, 464, 479 A.2d 199 (1984); State v. Gordon, 185 Conn. 402, 413, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); and see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

The defendant’s argument that the identification in this case was unnecessarily suggestive rests on his contention that what occurred at the housing project was a one-on-one show-up that could have been avoided had the police chosen to organize a line-up. Whenever someone is asked to identify a person under circumstances in which it is evident that the police believe the person to be a suspect, there is a significant risk that the ensuing identification will have resulted from the suggestiveness of the procedure rather than from the viewer’s independent recollection. State v. Dupree, 196 Conn. 655, 667, 495 A.2d 691 (1985) (single photograph); State v. Guertin, 190 Conn. 440, 456, 461 A.2d 963 (1983) (hospital identification in presence of police officer); State v. Maturo, 188 Conn. 591, 595-96, 452 A.2d 642 (1982) (four persons shown to a victim who had been robbed by only three); State v. Hamele, 188 Conn. 372, 375-77, 449 A.2d 1020 (1982) (show-up at crime scene); State v. Brown, 187 Conn. 602, 614-17, 447 A.2d 734 (1982) (station house show-up); State v. Gordon, supra, 416-417 (station house show-up); State v. Theriault, supra, 371-73 (police barracks show-up). The facts of this case do not, however, demonstrate a one-on-one confrontation between victim and suspect. When the store owner first saw the defendant at the housing project, the defendant was among a group of people who resembled him in racial makeup. According to the testimony at trial, the defendant’s handcuffs were not visible to the store owner, and the police officer guarding the defendant was wearing plain clothes. These facts, together with the desirability of promptly establishing either the defendant’s complicity or his innocence; Simmons v. United States, supra, 384; Bates v. United States, 405 F.2d 1104, 1106 (D.C. Cir. 1968); State v. Hamele, supra, 377; State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976); remove this case from the category of an unnecessarily suggestive identification procedure. The store owner’s reluctance to make an immediate uncategorical identification of the defendant is not evidence of an initial misidentification but rather demonstrates the conduct of a witness exercising independence of judgment under stressful circumstances.

The conduct of the police in returning the defendant and his accomplice to the package store for a further viewing by the store owner was not, under these circumstances, independently suggestive. If the initial identification at the housing project was not suggestive, the subsequent show-up did not make it so. State v. Myers, supra, 465; State v. Anderson, 178 Conn. 287, 292, 422 A.2d 323 (1979). Nothing on this record indicates that this witness would have been more susceptible to suggestion at his store than at the housing project. Indeed, the fact that the second identification entirely replicated the earlier one demonstrates that the store owner was “an unlikely candidate for subliminal seductions.” State v. Ledbetter, 185 Conn. 607, 615, 441 A.2d 595 (1981).

In any event, even if we were to assume that the procedures employed by the police were unnecessarily suggestive, the defendant has failed to demonstrate the unreliability of the identification. “[I]n assessing the admissibility of in-court identification testimony, reliability is the ‘linchpin.’ Manson v. Brathwaite, [supra], 114; State v. Piskorski, 177 Conn. 677, 742, 419 A.2d 886 [cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194] (1979). Reliability is to be determined by the totality of the circumstances as emphasized in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), and Neil v. Biggers, [supra].State v. Gold, 180 Conn. 619, 655, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). The store owner had ample opportunity to see the defendant at close hand; the store owner described the robber accurately apart from the darkness of his skin; the store owner unhesitatingly selected the defendant from a group of people and later indicated that he was “pretty sure” of his identification; and the elapsed time of approximately one hour between the offense and the identification was reasonable.

In their totality, these circumstances would indubitably demonstrate that the in-court identification of the defendant was reliable, were it not for the shadow arguably cast by the store owner’s identification of the defendant, on the day of the crime, as only 70 percent positive, while his identification of the accomplice was immediate and unconditionally positive. This court has not previously focused its attention on the reliability of identification testimony when the identifying witness, at a relevant time in the past, was somewhat uncertain of his identification. Other courts have, however, dealt with this issue. Their unanimous holding is that such prior uncertainty goes only to the weight to be given to the proffered in-court identification, and not to its admissibility. Smith v. Perini, 723 F.2d 478, 482 (6th Cir. 1983), cert. denied, 466 U.S. 941, 104 S. Ct. 1920, 80 L. Ed. 2d 466 (1984); United States v. Valenzuela, 722 F.2d 1431, 1433 (9th Cir. 1983); United States v. Saint Prix, 672 F.2d 1077, 1084 (2d Cir.), cert. denied, 456 U.S. 992, 102 S. Ct. 2274, 73 L. Ed. 2d 1287 (1982); State v. Myers, 117 Ariz. 79, 83-85, 570 P.2d 1252 (1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (1978); Parks v. United States, 451 A.2d 591, 604 (D.C. App. 1982), cert. denied, 461 U.S. 945, 103 S. Ct. 2123, 77 L. Ed. 2d 1303 (1983); Ralston v. State, 251 Ga. 682, 683-84, 309 S.E.2d 135 (1983); Corbin v. State, 237 Md. 486, 490, 206 A.2d 809 (1965); Commonwealth v. Lacy, 371 Mass. 363, 368-69, 358 N.E.2d 419 (1976); Commonwealth v. Silver, 499 Pa. 228, 237, 452 A.2d 1328 (1982).

These decisions are consistent with the underlying principle that admissibility of identification testimony requires a judgment about reliability that is derived from a matrix of factors in which the relative certainty of the identification is only one component. Manson v. Brathwaite, supra, 114; Neil v. Biggers, supra, 199-200; State v. Hinton, supra, 295-96. The decisions are analogous to our awn holdings that a witness’ partial misdescription of the person being identified goes to the weight rather than to the admissibility of the identification. State v. Hinton, supra, 297 n.6; State v. Ledbetter, supra, 612.

Notably, several of the out-of-state cases expressly deal with and admit identifications when uncertainty is to some degree attributable to the psychological trauma associated with violent crime. Smith v. Perini, supra, 482; Middleton v. United States, 401 A.2d 109, 131-34 (D.C. App. 1979); Williams v. State, 11 Md. App. 607, 613-14, 275 A.2d 522 (1971). As these cases hold, it is understandable, in the circumstances presently before us, that a traumatic encounter with a stranger brandishing a shotgun, a mere three feet away, might have interfered temporarily with the store owner’s total recall of the defendant. It is equally understandable that there might not have been an impaired recollection of the features of the accomplice, whose conduct was not as life-threatening as was the conduct of the defendant. In the totality of the relevant circumstances, the in-court identification in this case was sufficiently reliable to warrant its admission into evidence. It was for the jury, after cross-examination, to determine what weight to give to the in-court identification.

There is no error.

In this opinion the other judges concurred.

       The defendant, Francisco Perez, a/k/a Jorge Sanchez, was charged by a five count substitute information with: robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4); kidnapping in the second degree, in violation of General Statutes § 53a-94; possession of a sawed-off shotgun, in violation of General Statutes § 53a-211 (a); forgery in the second degree, in violation of General Statutes § 53a-139 (a) (2); and criminal impersonation, in violation of General Statutes § 53a-130 (a) (1). The defendant pleaded guilty, during the course of his jury trial, to the last two counts. After the conclusion of the jury trial on the remaining three counts, the trial court, Kline, J., granted the defendant’s motion for acquittal with respect to the second count, the charge of kidnapping. The defendant’s accomplice, originally being tried jointly with the defendant, had pleaded guilty to the charges against him while the jury trial was in process.

       In response to questioning about Ms inability unconditionally to identify the defendant when he was brought back to the package store, the store owner testified: “See, I was too shook up at that time, and you know, right at that moment when they robbed me I was scared, but not as much as a half hour or an hour later, I was more scared. I was really shook up. So, I couldn’t make up my mind then.”

       In resolving this case without reaching the issue of harmless error, we are not signaling any retreat from the holding of State v. Gordon, 185 Conn. 402, 419-20, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982).

       A number of witnesses testified that the defendant appeared to be more darkly complected at the time of the incident than at his trial. In addition, he no longer wore his hair in braids at the time of the trial.


author: Shea, J.

text:
    State of Connecticut v. Joseph S. Hinckley
    (11351)
    Peteks, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued October 9
    decision released December 17, 1985

      Suzanne Zitser, assistant public defender, with whom were Jon C. Blue, assistant public defender, and, on the brief, Joette Katz, public defender, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, were John J. Kelly, chief state’s attorney, and John M. Massameno, assistant state’s attorney, for the appellee (state).
   Shea, J.

The defendant, Joseph Hinckley, was convicted, after a trial to a jury, of manslaughter in the first degree in violation of General Statutes § 53a-55a. From this judgment the defendant appeals, claiming: (1) that the trial court erred in its charge to the jury regarding the issue of insanity; (2) that he was denied effective assistance of counsel as a result of an erroneous request to charge, adopted by the court, on the issue of insanity; and (3) that the trial court erred in denying his request to withdraw his jury election so that he could be tried before a panel of three judges. We find no error.

On August 6,1979, the defendant drove to his former wife’s place of employment at a real estate office and knocked on the back door. As his former wife approached the door, the defendant fired a gun at her through the glass portion of the door, the bullet striking her in the chest. The victim staggered back into the office and fell to the floor. The defendant then entered the building and shot the victim twice in the head. The defendant was arrested as he was leaving the scene of the crime.

The defendant was indicted by a grand jury for the charge of murder, in violation of General Statutes § 53a-54a (a). On October 3,1979, he pleaded not guilty and elected to be tried by a jury of twelve. The defendant subsequently notified the state that he would be relying on an insanity defense, as prescribed by General Statutes (Rev. to 1981) § SSa-lS. At trial certain friends and relatives of the defendant testified on his behalf that, after his divorce from the victim in 1976, he became despondent and was unable to manage his financial affairs or to hold a steady job. They further testified that the defendant’s condition had significantly deteriorated immediately before the incident. Additionally, two psychiatrists testified that the defendant was legally insane at the time he shot his former wife, concluding that at the time of the incident he was suffering from paranoid schizophrenia that was so severe he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his behavior to the requirements of the law. In rebuttal the state offered the defendant’s daughter, who testified that, during the time preceding her mother’s death, her father continuously threatened to kill her mother, boasting that he could get away with it “because he knew the law.”

Because the defendant admitted that he had shot the victim, the only issue for the jury’s consideration was whether or not he was legally responsible for the act. The court instructed the jury upon the principles of law to be applied in determining the extent of the defendant’s criminal responsibility. The court charged that, unless the evidence established that the defendant was legally sane at the time of the shooting, a not guilty verdict should be returned. The court charged further upon the defense of extreme emotional disturbance, raised by the defendant for the purpose of mitigating murder to first degree manslaughter. The jury returned a verdict of guilty of manslaughter in the first degree.

I

The defendant’s principal claim on appeal is that the trial court erred in its charge to the jury on the issue of insanity by intermingling the statutory definition of insanity, found in General Statutes (Rev. to 1981) § 53a-13, with previously accepted common law definitions of insanity. See M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843); State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979). Although these instructions were twice given to the jury, the defendant not only failed to except to them, but specifically requested the court to incorporate the superceded tests in its charge.

A

Ordinarily, the defendant’s failure to take an exception to the charge would render the claim unreviewable on appeal. Practice Book §§ 854, 3063. “Only 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 occuring 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 first such exceptional circumstance, involving a recently discovered constitutional right, is not applicable to the defendant’s claim. State v. Evans, supra, 70; State v. Vars, 154 Conn. 255, 271-72, 224 A.2d 744 (1966). The defendant contends that the second exceptional circumstance, the deprivation of “a fundamental constitutional right and a fair trial,” represents the proper vehicle for this court’s review of his claim. Therefore, because the defendant did not raise an objection to the charge as given, in order to review his claim under the Evans bypass doctrine we must determine whether it involves the deprivation of a fundamental constitutional right. “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d. 203 (1977).

The defendant argues that the instruction implicates a fundamental constitutional right because the issue of sanity was an essential element of the crime charged, on which the state had the burden of proof beyond a reasonable doubt. In support of his position the defendant cites State v. Kurvin, 186 Conn. 555, 442 A.2d 1327 (1982), where the defendant, for the first time on appeal, claimed error in the trial court’s failure to charge that an essential element of the crime of larceny was the intent permanently to deprive the owner of property. We recognized that “[d]ue process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged; Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d. 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S. Ct. 1881, 44 L. Ed. 2d. 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d. 368 (1970); including intent where intent is one of those elements.” State v. Kurvin, supra, 558. Therefore, because the deficiency in the charge involved the trial court’s failure to advise the jury of an essential element that the state had to prove beyond a reasonable doubt, it “raised a sufficient constitutional issue to satisfy the requirements of Evans. State v. Kurvin, supra; see Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); United States v. Winship, 724 F.2d 1116, 1124 (5th Cir. 1984); Glenn v. Dallman, 686 F.2d 418, 421 (6th Cir. 1982); Government of Virgin Islands v. Brown, 685 F.2d 834, 839 (3d Cir. 1982); United States v. Natale, 526 F.2d 1160, 1167 (2d Cir. 1975); State v. Griffin, 175 Conn. 155, 159, 397 A.2d 89 (1978).

Once sufficient evidence on insanity has been produced to overcome the legal presumption in favor of sanity, it is clear that “the burden rests upon the state, as it does in all other essential elements in the case, to prove beyond a reasonable doubt that the [defendant] was legally sane and responsible at the time the offenses were committed.” State v. Rossier, 175 Conn. 204, 209, 397 A.2d 110 (1978); State v. Davis, 158 Conn. 341, 355, 260 A.2d 587 (1969); State v. Kenyon, 134 Conn. 43, 49, 54 A.2d 585 (1947); see also Davis v. United States, 160 U.S. 469, 488, 16 S. Ct. 353, 40 L. Ed. 499 (1895); 2 Wright, Federal Practice and Procedure (1982) § 403.

The failure to instruct upon insanity, when a defendant has introduced some evidence on the issue, would be of constitutional magnitude, because such an omission would eliminate the state’s burden of proof on that issue. See Pate v. Robinson, 383 U.S. 375, 384-85, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Blake v. United States, 407 F.2d 908, 911 (5th Cir. 1969); Whalem v. United States, 346 F.2d 812, 818-19 (D.C. Cir. 1965); Goforth v. United States, 269 F.2d 778, 779 (D.C. Cir. 1959); Wright v. United States, 250 F.2d 4, 12 (D.C. Cir. 1957). The defendant here, however, does not claim that the trial court failed to charge the jury on the issue of insanity or failed to include the appropriate statutory definition. Nor does he claim that the trial court failed sufficiently to instruct the jury as to the state’s burden of proof on the issue of insanity. He claims only that a component of the particular definition of insanity-used in the charge did not comport with the statutory definition. We held jury instructions that intersperse common law and statutory definitions of insanity to be reversible error in State v. Toste, supra. This decision was not premised, however, on the deprivation of a constitutional right, and thus the error claimed would not have been reviewed under Evans in the absence of a timely exception. We merely recognized General Statutes § 53a-13 “as a statutory standard [for insanity] to be invoked in lieu of [any] common law test,” and held that the court’s inclusion of the outdated insanity charge, in the face of an objection to it, was harmful error because it could only create confusion as to what was the correct standard. Id., 631. Although the trial court clearly has a constitutional obligation to charge the jury on insanity because the state bears the burden of proof on the issue, this circumstance does not transform every deviation from the particular statutory definition chosen by the legislature into a constitutional error.

The defendant argues that our recent decision in State v. Torrence, 196 Conn. 430, 493 A.2d 865 (1985), establishes that his claim does raise an issue of constitutional dimension warranting review under State v. Evans. His interpretation of our decision is inaccurate. State v. Torrence presented our first appeal from the Appellate Court, in which a single issue was certified for our review. The issue, quite similar to the one before us, involved a jury charge on insanity that incorporated both the statutory and common law definitions. The Appellate Court had held that the instructions on insanity were properly reviewable, despite the absence of an objection at trial. State v. Torrence, 1 Conn. App. 697, 702-703, 476 A.2d 598 (1984). Because of the novel posture of the case we “decline[d] the invitation of the state to consider whether improprieties in a charge on insanity are reviewable under State v. Evans, because the state so conceded in its brief to the Appellate Court, the Appellate Court so held, and the state has not filed a preliminary statement of issues in this court to revive the issue.” State v. Torrence, 196 Conn. 430, 434, 493 A.2d 865 (1985). We reviewed the instructions, concluded that they were erroneous, but also found that the error was harmless. Id. Therefore, contrary to the defendant’s contention in his reply brief and at argument, our decision in Torrence does not establish that claims of error involving the use of statutorily superseded insanity definitions not objected to at trial are necessarily reviewable under State v. Evans.

The defendant does not point to any authority that declares any particular insanity definition to be constitutionally mandated. As the United States Supreme Court has recognized, “[n]othing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms.” Powell v. Texas, 392 U.S. 514, 536, 88 S. Ct. 2415, 20 L. Ed. 2d 1254 (1968). In fact, until the enactment in 1967 of the predecessor to General Statutes § 53a-13, Connecticut’s common law test for insanity included “both the M’Naghten formula to determine the actor’s capacity to distinguish right from wrong and the irresistible impulse standard to ascertain his capacity for self-control.” State v. Toste, supra, 631; see Public Acts 1967, No. 336, §§ 1, 2; Public Acts 1969, No. 828, § 13; State v. Conte, 157 Conn. 209, 210-11, 251 A.2d 81, cert. denied, 396 U.S. 964, 90 S. Ct. 439, 24 L. Ed. 2d 428 (1968); State v. Davies, 146 Conn. 137, 144, 148 A.2d 251, cert. denied, 360 U.S. 921, 79 S. Ct. 1441, 3 L. Ed. 2d 1537 (1959). The legislature did not abandon these tests and adopt the model penal code definition of insanity because the old tests were fundamentally unfair to criminal defendants or violated their constitutional rights; it merely agreed with the American Law Institute that the new provision was more “workable.” Wechsler, “Codification of Criminal Law in the United States: The Model Penal Code,” 68 Colum. L. Rev. 1425, 1443 (1968). “[RJules with regard to insanity defenses are matters of state [statutory] law; therefore they do not raise issues of constitutional magnitude.” United States ex rel. Laudati v. Ternulo, 423 F. Sup. 1210, 1218 (S.D.N.Y. 1976).

Under the Evans standard, we are not concerned with merely technical or prejudicial errors, but only with errors that deprive the defendant of a fundamental constitutional right and a fair trial. The defendant must establish “not merely that the instruction [was] undesirable, erroneous, or even ‘universally condemned,’ but that it violated some [constitutional] right which [he] was guaranteed . . . . ” Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973). In its charge, the court properly instructed the jury by using the statutory language three times. The mere fact that on the first and third occasions the court sought further to explain the definition of insanity by providing examples based upon statutorily superseded common law tests does not implicate any fundamental constitutional right that would afford the defendant review under the exceptional circumstances doctrine of State v. Evans. Cf. State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984) (trial court’s instruction to the jury which included “heat of passion” defense when extreme emotional disturbance was raised did not clearly deprive the defendant of a fundamental constitutional right and a fair trial); State v. Avcollie, 188 Conn. 626, 638, 453 A.2d 418 (1982) (claim that insanity instruction created an impermissible presumption of sanity not reviewable); State v. Green, 172 Conn. 22, 28-29, 372 A.2d 133 (1976) (claim that charge on insanity defense shifted burden of proof to defendant not an exceptional circumstance); State v. Auclair, 33 Conn. Sup. 704, 712, 368 A.2d 235 (1976) (claim that jury charge on insanity was confusing and erroneous not reviewable as an exceptional circumstance).

B

Nor does the defendant’s claim warrant review under the plain error doctrine, because we are not convinced that there was any manifest injustice under all the circumstances of the case. Practice Book § 3063 provides that this court “may in the interest of justice notice plain error not brought to the attention of the trial court.” Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and pub-lie confidence in the judicial proceedings. We have noticed plain error in the failure of a trial court to apply a clearly relevant statute to the case before it. State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980). In State v. Burke, the plain error involved the trial court’s neglecting to instruct the jury to draw no adverse inferences from the failure of the defendant to testify, despite the fact that our statutes require such an instruction. In the present case the applicable statutory definition of insanity was read to the jury three times. A jury charge must be correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). We cannot say that the inclusion of the additional insanity definitions in the charge, as instances included within the broader statutory definition, constituted a manifest injustice to the defendant so as to impair the effectiveness or integrity of his trial. The additional language in the charge did not result in an unreliable verdict or a miscarriage of justice. Accordingly, there is no plain error in this case.

II

The defendant also claims that he was denied his constitutionally guaranteed right to assistance of counsel in violation of the sixth and fourteenth amendments to the United States constitution, and of article first, § 8, of the Connecticut constitution. It is undisputed that the constitutional right to counsel is a right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). The defendant alleges that trial counsel’s request to charge, which included previously accepted common law insanity definitions, constituted ineffective assistance in light of our earlier decision in State v. Toste, supra, of which counsel is claimed to have been aware.

In order to establish ineffective assistance of counsel it is necessary for the defendant to prove that trial counsel’s performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and if it was not, that such lack of competence contributed to the defendant’s conviction. State v. Rivera, 196 Conn. 567, 570, 494 A.2d 570 (1985); State v. Tirado, 194 Conn. 89, 91-92, 478 A.2d 606 (1984); State v. Chairamonte, 189 Conn. 61, 63, 454 A.2d 272 (1983). Because it is difficult to evaluate such claims merely on the appellate record, we have frequently declined to consider them on direct appeal, suggesting that their merits be addressed through a subsequent habeas corpus proceeding or a motion for a new trial. See, e.g., State v. Miner, 197 Conn. 298, 307, 497 A.2d 382 (1985); State v. Lubesky, 195 Conn. 475, 485, 488 A.2d 1239 (1985); State v. Jacobowitz, 194 Conn 408, 413, 480 A.2d 557 (1984); State v. Mason, 186 Conn 574, 578-79, 442 A.2d 1335 (1982). Without the benefit of an evidentiary hearing available in a collateral action, review in this court of ineffective assistance of counsel claims is “at best difficult and sometimes impossible.” State v. Mason, supra, 579. An evidentiary hearing can provide the court with information necessary to evaluate the competency of defense counsel and the harmfulness of any incompetency.

While the defendant recognized at argument this court’s reluctance “to resolve this kind of claim upon a direct appeal rather than after a habeas corpus proceeding where facts and circumstances often not disclosed by a trial transcript can be fully developed and the lawyer who represented the defendant at trial can be heard from”; State v. Orsini, 187 Conn. 264, 280, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); he submitted that the facts and circumstances of this case are sufficiently clear from the record to warrant direct review. He maintained that his attorney’s formulation of a request to charge similar to that which was specifically denounced by this court in State v. Toste, supra, was inexcusable and, in effect, conclusive evidence of ineffective assistance. We disagree that the circumstances were such that no hearing on the competency of counsel should be afforded. The present case is one where the record on appeal does not provide any explanation for the decision of counsel to request the court to incorporate the superfluous common law definitions in its charge. Absent such information, we are unable to evaluate whether the performance of trial counsel was within the accepted range of competence. Therefore, we cannot find error on this claim. This conclusion, of course, does not preclude the defendant from pursuing this claim in an appropriate collateral action.

Ill

The defendant also claims that the trial court erred by denying his request to change his election of a trial by a jury to a trial by a three judge panel, as provided by General Statutes § 53a-45 (b). On May 13,1980, the day jury selection was scheduled to begin, the defendant made a motion for a change in venue based upon alleged pretrial publicity stemming from an article published two days earlier in the Milford Citizen that discussed the defendant’s trial and his anticipated exercise of the insanity defense. The article outlined the probable expert testimony on the insanity issue and, according to the defendant, misstated the law on the number of witnesses that could testify for the state and the defendant. The defendant in his motion relied primarily on the fact that twenty-nine of forty-one veniremen resided in Milford and were likely to have been familiar with the article in question. After the court denied his motion, the defendant requested the court to allow him to withdraw his jury trial election and be tried by a panel of judges, claiming that he would not have elected a jury trial had he known of the newspaper article and the disproportionate number of jurors from Milford. The trial court denied the defendant’s request and an exception was noted.

The defendant properly concedes that he has no constitutional right to a nonjury trial. Singer v. United States, 380 U.S. 24, 34, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965); State v. Godek, 182 Conn. 353, 362, 438 A.2d 114 (1980). The defendant also admits that he has no statutory or Practice Book right to change his election after his plea has been entered. See General Statutes §§ 54-82 (a), 54-82b (b); Practice Book § 839. Therefore, the defendant has the burden of showing that the trial court abused its discretion in denying his request. State v. Rankin, 102 Conn. 46, 50, 127 A. 916 (1925); State v. Biller, 33 Conn. Sup. 735, 739-40, 369 A.2d 1123 (1976); see Hallinger v. Davis, 146 U.S. 314, 13 S. Ct. 105, 36 L. Ed. 986 (1892). “If the application for such withdrawal be made seasonably, that is, so that the withdrawal will not unreasonably delay the cause, or impede justice, or otherwise prejudice the State, the court should permit it; whether the court shall do so is for its sound discretion . . . . ” State v. Rankin, supra, 50. It appears that the defendant attempted to withdraw his election of a jury trial at the last moment before jury selection was to begin and that his sudden preference for a trial without a jury resulted from his disappointment in the trial court’s denial of a change of venue. The defendant did not meet his burden of showing that the case would not be unreasonably delayed or that the trial court abused its discretion. Nor has the defendant shown any actual prejudice resulting from the pretrial publicity. He, therefore, cannot prevail on this claim.

There is no error.

In this opinion the other judges concurred.

       The relevant statute at the time of the incident was General Statutes (Rev. to 1981) § 53a-13 which provided: insanity as defense. In any prosecution for an offense, it shall be a defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription. As used in this section, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”
      See footnote 3, infra.

       The defendant conceded in Ms brief that he requested most of the challenged instruction. We have held that error induced by an appellant cannot be a ground for reversal and will not be reviewed. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982). Because we hold here that the defendant’s claim is not reviewable as an “exceptional circumstance” under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), it is unnecessary for us to consider the problems that may arise when a criminal defendant induces error that truly involves the deprivation of a fundamental constitutional right and a fair trial.

       It is important to note that Public Acts 1983, No. 83-486, enacted after the trial of the present case, modified Genera! Statutes § 53a-13, making insanity an affirmative defense, which, under General Statutes § 53a-12 (b), must be proven by the defendant by a preponderance of the evidence. See Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976); Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952); cf. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).

       In both State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), and State v. McCall, 187 Conn. 73, 444 A.2d 896 (1982), we held that, although the trial court improperly charged the jury with statutory as well as common law definitions of insanity, any error was subsequently rectified by an additional instruction that included only the statutory definition.

       Although not mentioned in our opinion in State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979), an examination of the briefs and trial record establishes that the defendant excepted to the charge as given.

       This court also had the opportunity to address the issue of reviewability of insanity instructions in the absence of a timely objection in State v. Cohane, 193 Conn. 474, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). Because we ordered a new trial on other grounds we did not address an issue similar to the one before us here, involving the intermingling of statutory and common law definitions of insanity. We did recognize, however, that “it is reversible error for the trial court to instruct a jury by reference to any superseded tests for insanity . . . provided the defendant properly excepts to the instruction.” Id., 480 n.5.

       General Statutes § 54-84 (b); see State v. Sinclair, 197 Conn. 574, 500 A.2d 539 (1985); State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984).

       The defendant also asserted in support of his motion for a change in venue that the facilities in the Ansonia-Milford courthouse were inadequate to accommodate a murder trial with a twelve person jury. The defendant also made a challenge to the jury array because there was a disproportionate number of jurors from the town of Milford on the panel. This motion was also denied by the court.