text:
    State of Connecticut v. Hartley Anderson
    (13112)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued November 9, 1988
    decision released January 24, 1989

      Timothy P. Pothin, with whom were Jonathan J. Einhom and, on the brief, Gabriel H. Cusanelli, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom were Lawrence Daly, assistant state’s attorney, and, on the brief, Christine Marsching, legal intern, for the appellee (state).
   Callahan, J.

The defendant, Hartley Anderson, was convicted after a jury trial of murder in violation of General Statutes § ñSa-dáa. He appeals from the judgment of the trial court sentencing him to a forty-five year term of imprisonment. On appeal, the defendant maintains that he was deprived of a fundamental constitutional right and a fair trial by the admission into evidence of statements that he claims were elicited in violation of his rights under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. He also claims that the trial court abused its discretion in denying his motion to “reopen.” We find no error.

The jury could reasonably have found the following facts. On May 6, 1985, at approximately 1:20 p.m., Edmund and Leslie Joyner drove their automobile into the parking lot of Bill’s Liquor Locker in East Windsor. The only other vehicle in the package store parking lot at that time was a blue ¡Ford Mustang later identified as the defendant’s. When the brothers exited their vehicle and approached the liquor store, they heard a woman scream several times. Concerned, the Joyners hurried toward the store. As they were about to enter, the defendant ran past them out of the building. His clothes and hands were covered with blood. At about the same time, through the open door of the store, the Joyners glimpsed the victim lying on the floor in a pool of blood. The Joyners then turned and chased the defendant to a parking area at the rear of the store. There the defendant stopped and faced his pursuers. At that point Leslie asked him who he was, to which inquiry the defendant replied, “nobody.” Thereafter, in fear that the defendant was armed, the Joyners retreated inside the store.

Once in the store, Leslie called the police and Edmund attended to the victim, the proprietress of the store, who had been repeatedly stabbed but was still conscious. While waiting for the police, Edmund observed the defendant enter his car and drive rapidly away. Before the defendant left the area, however, Edmund managed to write his automobile registration number on the back of a lottery ticket. Returning to the victim, Edmund asked who had stabbed her and, although she was having trouble communicating, she replied, “a regular customer.” When the police arrived, Edmund gave them the license plate number he had recorded along with a description of the defendant’s car and the clothing he was wearing. The victim, Sharon Ruggiero, died en route to a nearby hospital.

The defendant was arrested at his home less than one hour after he left the liquor store. At the time of his arrest, he had cuts on his face, lip, neck and hand. These cuts were fresh but were not then bleeding. The defendant’s clothes, hands and forearms, however, were stained with blood. At the time of his apprehension the defendant was wearing, with the exception of his coat, clothes similar to those Edmund Joyner had described to the police. Also a search of the defendant’s trouser pockets, incident to his arrest, uncovered a bloodstained receipt from Bill’s Liquor Locker. Thereafter, during a search of the defendant’s house, the investigating officers found droplets of blood, bloodstains and smudges in several areas including the hallway, attic stairs and bathroom. In addition, they discovered a bloodstained T-shirt in the master bedroom and a bloodstained handkerchief in the living room. At the house the police officers also seized an empty leather knife case. Finally, a wet, bloodstained coat belonging to the defendant was found in his attic hidden under insulation and rafters.

At trial, evidence was introduced to show that the defendant was, in fact, a regular customer at Bill’s Liquor Locker. Further, Officer Raymond Fahey of the East Windsor police department, an acquaintance of the defendant, testified that as he was on his way to Bill’s Liquor Locker in response to an emergency call, he saw the defendant driving away from the homicide scene. Moreover, bloody fingernail scrapings were secured by the police after the defendant’s arrest and the defendant’s bloody fingerprint was found on the door of the liquor store. The defendant’s blood was found on the victim’s shoes and there were bloodstains discovered in his car.

The defendant first claims that his constitutional rights were violated by the admission into evidence of the testimony of State Police Detective Ronald Ruel. Ruel testified that during interrogation he asked the defendant whether he had assaulted anyone. In reply, the defendant stated that he did not recall but then clenched his fists and said that if he had, “I would have used these.” Similar statements were made by the defendant when he was asked whether he remembered hurting anyone. According to Ruel’s testimony, when the defendant was asked whether he killed anyone, he became very angry and again stated that if he had he would have done it with his fists or his car. In addition, Ruel testified that the defendant stated to him “that it’s not unusual for him to drink a case [of beer] or more in one day; and that it doesn’t really affect him that much.” The defendant claims that these statements should have been excluded at trial because he did not waive his right to counsel and the statements were elicited from him by police officers after he had requested an attorney on two separate occasions.

Initially, we note that the defendant failed to raise this claim at trial either by way of an objection to the admission of Ruel’s testimony or a motion to suppress any statement he made to Ruel. While we do not generally entertain claims not raised below, we have recognized “two situations that may constitute ‘exceptional circumstances’ such that newly raised claims can and will be considered by this court.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). One of the two “ ‘exceptional circumstancefs]’ may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id. Accordingly, we must review the record to determine whether it is adequate for consideration of the defendant’s constitutional claim.

The defendant contends that he asserted a desire to speak with an attorney, first to Chief Thomas Laufer of East Windsor while he was being transported to East Windsor police headquarters, and then to State Police Detectives Ruel and George Heg prior to being interrogated by them. It is axiomatic at this point in time that “[a]n accused in custody, ‘having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,’ unless he validly waives his earlier request for the assistance of counsel. Edwards v. Arizona, 451 U.S. [477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981)].” Smith v. Illinois, 469 U.S. 91, 94-95, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984).

Whenever there is a question as to whether the accused actually requested counsel, a factual inquiry is required to determine whether he attempted to invoke a present right to counsel; United States v. Jardina, 747 F.2d 945, 949 (5th Cir. 1984), cert. denied, 470 U.S. 1058, 105 S. Ct. 1773, 84 L. Ed. 2d 833 (1985); see also Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir.), cert. denied, U.S. , 109 S. Ct. 1319, 102 L. Ed. 2d 391 (1988); and whether his asserted request was unambiguous or unequivocal. Smith v. Illinois, supra, 95; United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988); United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir. 1985), cert. denied, U.S. , 108 S. Ct. 1756, 100 L. Ed. 2d 218 (1988); State v. Acquin, 187 Conn. 647, 672-77, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). Although the United States Supreme Court has not defined ambiguity in this context or ruled on the consequences of such ambiguity, the trend among the federal courts that have considered the problem is that all questioning need not stop as soon as the word “lawyer” or “attorney” is mentioned. United States v. Gotay, supra; see also Bruni v. Lewis, supra, 564; United States v. Jardina, supra (mere mentioning of the word “attorney” does not constitute a request for counsel . . . “[tjheword ‘attorney’ has no talismanic qualities”). Rather, if “a suspect makes an equivocal statement that arguably can be construed as a request for counsel, interrogation must cease except for narrow questions designed to clarify the earlier statement and the suspect’s desire for counsel.” United States v. Gotay, supra; see also Bruni v. Lewis, supra, 563-64; Nash v. Estelle, 597 F.2d 513, 517 (5th Cir.), cert. denied, 444 U.S. 981, 100 S. Ct. 485, 62 L. Ed. 2d 409 (1979). This rule has been adopted by this court. State v. Acquin, supra. “Under this approach, questions aimed at clarifying a request must be strictly limited to that purpose and may not be used to elicit incriminating information . . . .” United States v. Gotay, supra; Nash v. Estelle, supra; see also State v. Acquin, supra. “[I]f the clarification revéals that the suspect wants counsel, interrogation must cease until counsel is provided. If . . . the clarification ‘reveals that the suspect does not want counsel, the interrogation may continue.’ ” United States v. Nordling, 804 F.2d 1466, 1470 (9th Cir. 1986); United States v. Fouche, supra; see also United States v. Gotay, supra. “A police initiated conversation after an equivocal request for counsel does not automatically void a subsequent confession if the police questions are fairly designed to clarify the ambiguity.” United States v. Fouche, supra; see also United States v. Nordling, supra, 1470-71. “However, the police may not use a statement a suspect makes after an equivocal request for counsel, but before the request is clarified as an effective waiver of the right to counsel. [Thompson v. Wainwright, 601 F.2d 768, 771-72 (5th Cir. 1979)].” United States v. Fouche, supra; see also United States v. Gotay, supra.

If an accused does invoke his right to counsel, “courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, at 485, 486, n.9.” Smith v. Illinois, supra, 95; see also State v. Gray, 200 Conn. 523, 533, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Whether the defendant made a knowing and intelligent waiver is a question of fact to be determined by an examination of “ ‘the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ ” Edwards v. Arizona, supra, 482; State v. Gray, supra; State v. Williams, 190 Conn. 104, 112, 459 A.2d 510 (1983); State v. Acquin, supra, 666.

The only evidence concerning the defendant’s first request for counsel is the testimony of Chief Laufer. Laufer testified that when the defendant was arrested at his home he was read his Miranda rights at which time he indicated that he understood them. Thereafter, the defendant was transported by Laufer to East Windsor police headquarters. According to Laufer’s testimony, during the drive the defendant initiated a conversation with him and asked him why he had been arrested. When Laufer explained to the defendant that he had been seen running out of Bill’s Liquor Locker with blood on him, the defendant denied any knowledge of the incident. When the defendant inquired further, Laufer again explained what had been observed, and at that point the defendant, according to Laufer, “indicate[d] that he better call his wife and lawyer.” Laufer, who was a witness for the defense, was not asked to explain how the defendant “indicated” he had better call a lawyer or whether the defendant “indicated” an intention to call a lawyer immediately or in the future or before or after he had talked to the police. The defendant shed no light on the subject because in his testimony he did not claim he gave any such indication to Laufer nor did he allude in any way to an expressed desire to consult an attorney. In short, we are unable to tell from the record whether the defendant’s indication that “he better call his wife and lawyer” was an unequivocal request that invoked his present right to counsel and that would prohibit further inquiry by the police as to his desires and intentions in that regard.

The defendant’s second alleged request for an attorney occurred approximately three hours after the defendant was arrested, just prior to his interrogation by Detectives Heg and Ruel. In his direct testimony at the defendant’s trial, Ruel described the exchange concerning the request as follows:

“Q. Now, as to the form with which you were concerned, what happened in that procedure?

“A. He read each individual sentence aloud and signed his letters next to each line. And on the bottom of the form he signed his complete signature.

“Q. When you say he signed his letters, do you mean the initials in his name?

“A. That’s correct.

“Q. Now, besides or in addition to the initials in his name, did he put anything else on that form, if you recall?

“A. Yes. On one of the lines he stated that he would want a lawyer.

“Q. And did you question him at all about his wanting a lawyer?

“A. Yes, I did. And-

“Q. Do you remember what you said to him?

“A. I asked him if he wanted to call a lawyer.

“Q. And what did he say?

“A. And he said he may want to do that, but he wished to speak to us about his activities of that whole day.

“Q. Okay. When he indicated that he may want to, but he wanted to speak to you about his activities of that whole day, was that before or after or during the time that you were involved with him with this form?

“A. That was during that time.

“Q. What did he do then, as concerns the balance of that form?

“A. He completed the form, after making that written statement about wanting a lawyer. And he completed the form and put his signature at the bottom of that form, completing it.”

On cross-examination, Ruel recapitulated his description of his meeting with the defendant in the following manner:

“Q. Now, you testified that you had advised him of his rights and he had made reference to obtaining the services of a lawyer; is that correct?

“A. That’s correct.

“Q. But he did agree to talk with you, didn’t he?

“A. That’s correct.

“Q. Without any lawyer being present.

“A. Correct.”

Heg described his encounter with the defendant concerning this issue as follows:

“Q. And he initialed the block showing that he had read each sentence, each of which contains a specific right; is that correct?

“A. Yes, sir.

“Q. And, in fact, in the one that talks about the attorneys, he indicated that he might want an attorney; is that correct?

“A. Yes, sir.

"Q. But first he wanted to talk to you.

“A. That’s correct.”

When the defendant testified, he was not asked about his alleged request for counsel prior to speaking to Ruel and Heg nor did he claim in his testimony that he made any such request.

On appeal, the defendant claims that this seemingly inconsistent, conflicting record is sufficient to show that after he had twice unequivocally requested counsel he was questioned by police officers while he was in custody. He argues that he consequently was deprived of a fundamental constitutional right and a fair trial. We disagree. "This court has no constitutional jurisdiction to decide disputed issues of fact.” State v. Wilson, 199 Conn. 417, 438, 513 A.2d 620 (1986); see also State v. Lafferty, 189 Conn. 360, 363, 456 A.2d 272 (1983). On the basis of the undeveloped state of the record in this case, we cannot, without becoming factfinders, determine that the defendant unequivocally and unambiguously requested an attorney, so as to preclude further inquiry in that regard, either in Chief Laufer’s car or prior to his interrogation by Detectives Ruel and Heg, nor can we determine whether there was a valid waiver of his right to counsel prior to his interrogation by Ruel and Heg. Accordingly, we are unable to say that the defendant has suffered a clear deprivation of a fundamental constitutional right. “The defendant has an obligation to supply this court with a record adequate to review his claim of error.” State v. Crumpton, 202 Conn. 224, 231, 520 A.2d 226 (1987); State v. Tyler-Barcomb, 197 Conn. 666, 676, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Thompson, 197 Conn. 67, 81, 495 A.2d 1054 (1985). Had the defendant objected to the detective’s testimony at trial or moved to suppress it on the ground he now claims, a hearing or questioning would have provided a factual basis for his claim and the record would have been properly preserved. See State v. Plourde, 208 Conn. 455, 463, 545 A.2d 1071 (1988); State v. Rodgers, 207 Conn. 646, 653-54, 542 A.2d 1136 (1988); State v. Tyler-Barcomb, supra, 675-76; State v. Flinter, 16 Conn. App. 402, 411, 548 A.2d 1 (1988). It was not.

Moreover, it is difficult to understand how the defendant can now claim that he was deprived of a fair trial. It is evident that at the time of trial he was aware of the factual situation that he now argues requires the exclusion of his statements. The defendant, however, elected not to file a motion to suppress his statements or to object to their admission. Rather, he permitted this testimony to come before the jury without challenge. Apparently he followed this course to bolster his trial strategy which was to appear to have been cooperative with the police at the time of his arrest. The defendant cannot now claim “foul” because of the admission of evidence which he allowed in for tactical purposes. State v. Marino, 190 Conn. 639, 655, 462 A.2d 1021 (1983); State v. Moye, 177 Conn. 487, 497-98, 418 A.2d 870, vacated, 444 U.S. 893, 100 S. Ct. 1996, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979); see also State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987); State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982); State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973) (an appellant cannot ordinarily claim error in the action of the trial court which he has induced). Because the record does not adequately support the defendant’s claim that he was deprived of a fundamental constitutional right and a fair trial, we decline to review it.

The defendant’s second claim on appeal is that the trial court abused its discretion when, after he had rested, it denied his motion to “reopen” which, if granted, would have allowed him to present the testimony of a psychiatrist, Alfred Herzog, who had hypnotized him on three occasions in an attempt to help him recall his activities on the day of the murder. According to the defendant, Herzog’s testimony was crucial to his case because it would have provided the jury with the doctor’s diagnosis that the defendant was suffering from psychological amnesia. The defendant argues that his inability to present this testimony to the jury deprived him of both a fair trial and his right to establish a defense as guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of the state of Connecticut. We disagree.

As the defendant concedes, “ ‘ “[t]he reopening of a criminal case either to present omitted evidence or to add further testimony after either of the parties has rested is within the sound discretion of the Trial Court. . . .” ’ ” State v. Brigandi, 186 Conn. 521, 545, 442 A.2d 927 (1982); see also State v. Zayas, 195 Conn. 611, 622-23, 490 A.2d 68 (1985) (Healey, J., dissenting); State v. McKnight, 191 Conn. 564, 580, 469 A.2d 397 (1983); State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). If the trial court finds that “ ‘inadvertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice will occur,’ ” it is vested with the discretion to reopen the case. State v. Brigandi, supra, 546; see also State v. McKnight, supra; State v. Holmquist, supra. It must be shown, however, “ ‘that the proffered evidence was of such importance to the achievement of a just result that the need for admitting it overrides the presumption favoring enforcement of the state’s usual trial procedures.’ ” State v. McKnight, supra. A “ ‘greater prejudice must be shown [by the omission of the evidence in question] than in refusals to receive evidence offered in the regular course of a trial. . . ” Id.; Blaikie v. Callahan, 691 F.2d 64, 67-68 (1st Cir. 1982). If the motion to reopen is denied, we must, in determining whether the trial court has abused its discretion, look to see if an injustice has occurred by the omission of the evidence. State v. McKnight, supra; State v. Holmquist, supra. However, “ ‘every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . .’” State v. Holmquist, supra; DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972).

With these standards in mind we have reviewed the circumstances attending the trial court’s refusal to allow the defendant to “reopen” his case after he had rested. We are confident as a result of that review that the trial court’s action did not result in an injustice and was not an abuse of the broad discretion accorded it in this area.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. MORDER 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.”

       Ruel also testified that the defendant called his wife and was heard to say that “the cops are saying that I killed someone. Can you go out and check my car, see if there’s any damage?” The defendant argues that the admission into evidence of this statement also denied him a fair trial. Since the statement was not elicited by the police during interrogation, however, the defendant’s claim is baseless. Rhode Island v. Innis, 446 U.S. 291, 298, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); State v. Vitale, 197 Conn. 396, 409-12, 497 A.2d 956 (1985); State v. Stankowski, 184 Conn. 121, 136, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981).

       The form to which Ruel apparently referred is in the trial court file. Although it displays the defendant’s signature on the bottom as Ruel testified, it is not initialed after each right nor does it contain any written request for an attorney.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. Anthony Holloway
    (13020)
    Peteks, C. J., Shea, Callahan, Glass and Santaniello, Js.
    Argued November 3, 1988
    decision released January 24, 1989

      Erskine D. McIntosh, assistant public defender, -with whom, on the brief, were William Holden, public defender, and Victoria Campbell, legal intern, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan Benedict, assistant state’s attorney, for the appellee (state).
   Glass, J.

The principal issue on this appeal is whether the defendant, Anthony Holloway, has established that the state discriminatorily employed a peremptory challenge to exclude a black venireman from the jury that convicted him of the crime of felony murder in violation of General Statutes § 53a-54c. The defendant appeals from the judgment rendered by the trial court as a result of the guilty verdict of the jury.

The jury could reasonably have found the following facts. On July 12, 1985, Roy Lee MacIntyre and his friend, Ernest Reed, were riding in MacIntyre’s automobile in Bridgeport. The defendant hitched a ride with MacIntyre to Beardsley Terrace, a public housing project in Bridgeport. At Beardsley Terrace, the defendant was let off on Trumbull Avenue. MacIntyre and Reed continued driving on Trumbull Avenue, turned around and drove back towards the defendant. The defendant requested another ride. This time MacIntyre took him farther down Trumbull Avenue into Beardsley Terrace near building number 16, where MacIntyre stopped the automobile. The defendant pulled a pistol from his pocket, demanded MacIntyre’s car keys and the gold chain that he was wearing. The defendant then shot MacIntyre once in the back of the neck and fled. The autopsy report indicated that MacIntyre died as a result of a single gunshot wound to the back of the neck which caused injury to his cervical spine and brain.

After his trial and conviction of felony murder, the defendant was sentenced to forty-five years imprisonment. On appeal he claims that the trial court erred in: (1) finding that he had failed to establish a prima facie case of purposeful discrimination in the state’s use of a peremptory challenge to remove a black venireman; (2) instructing the jury to determine whether prior inconsistent statements properly admitted into evidence as such were indeed inconsistent; (3) instructing the jury as to the limited purpose of prior inconsistent statements; and (4) instructing the jury that flight, if unexplained, tends to prove consciousness of guilt. We conclude that there is no error.

I

The defendant, who is black, first claims that the trial court violated his federal and state constitutional rights to equal protection in concluding that he had failed to establish a prima facie case of purposeful discrimination in the state’s use of a peremptory challenge to remove a black venireman from the jury venire. The panel from which the defendant’s jury was selected was composed of fifty-seven venirepersons. Four of the fifty-seven venirepersons were black and three were hispanic. There is no indication that the remaining venirepersons were of any racial minority. In the process of selecting a jury of twelve and two alternates for the defendant’s case, the court excused fourteen persons, the state eleven, and the defendant eighteen. The first black person voir dired was accepted by the state and the defendant. The second black person voir dired was excused by the court because of a prior commitment. The third black person voir dired was Floyd Gaddy. Gaddy was accepted by the defendant, but was peremptorily challenged by the state. The fourth black person voir dired was accepted by the defendant and the state. The defendant’s claim is based on the state’s removal of Gaddy. It was revealed at oral argument that the victim, MacIntyre, and the state’s principal witness were also black.

After considering the arguments of the state and defense counsel concerning the state’s use of a peremptory challenge to exclude Gaddy from the venire, the trial court concluded that because there was no pattern in the action of the state, the defendant had failed to present a prima facie case. Specifically, the trial court stated: “The Court sees no pattern at this stage of the proceeding that that would be the situation on the part of the State. I think you do have to set up a prima facie case and what you just indicated alone does not set a prima facie case. I will not require the State to make any neutral explanation of its peremptory challenge.”

Relying on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the defendant argues that the trial court erred in using the standard of Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), in evaluating the defendant’s claim that the state had used a peremptory challenge based on purposeful racial discrimination to exclude Gaddy from the defendant’s venire. Under Swain v. Alabama, supra, a defendant was required to “prove a systematic exclusion of members of a racial group from the petit jury to establish a constitutional violation. Batson modifies this burden of proof. A defendant is no longer required to prove that the peremptory challenges are being exercised to deny equal protection in ‘case after case’ . . . . ” State v. Gonzalez, 206 Conn. 391, 394-95, 538 A.2d 210 (1988).

Batson established the guidelines for evaluating a criminal defendant’s claim that the state’s exercise of a peremptory challenge was based on purposeful racial discrimination. State v. Gonzalez, supra, 395. Procedurally, the defendant bears the burden of persuading the trial court by a preponderance of evidence that the state’s use of the peremptory challenge was tainted by purposeful racial discrimination. Batson v. Kentucky, supra, 94 n.18. Once the defendant has established a prima facie case of purposeful racial discrimination, the burden shifts to the state to advance a neutral explanation for the venireperson’s removal. Id., 97. The defendant is then afforded the opportunity to demonstrate that the state’s articulated reasons are insufficient or pretextual. “ ‘Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility’; [Batson v. Kentucky, supra, 98 n.21]; a trial court’s determination that there has or has not been intentional discrimination is ‘entitled to appropriate deference’ upon review on appeal. Id.” State v. Gonzalez, supra.

Batson set forth the following standard for establishing claims of racially motivated peremptory challenges. “[T]he defendant first must show that he is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’. . . Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.” Batson v. Kentucky, supra, 96.

The Batson court indicated that “[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Id., 96-97. The court, however, indicated that these examples were illustrative only, and declined to establish a complete list of factors relevant to determining whether an inference of purposeful discrimination has been raised. Id., 97.

We first note that the trial court’s analysis of whether the defendant had established a prima facie claim did not fully comport with the plenary consideration of relevant facts and circumstances contemplated by Batson. The trial court concluded that it perceived “no pattern at this stage of the proceeding” to indicate purposeful racial discrimination. As we noted in State v. Gonzalez, supra, 400, “the striking of even one juror on the basis of race violates the equal protection clause, even when other jurors of the defendant’s race were seated . . . . ” Thus, although a lack of evidence of a “pattern” of striking venirepersons of the defendant’s race is one factor, that factor is not dispositive. Batson v. Kentucky, supra. The relevant circumstances may indicate purposeful racial discrimination where any one venireperson of the defendant’s race has been removed. State v. Gonzalez, supra.

Despite the trial court’s incomplete consideration of the circumstances, we conclude that it was correct in determining that the defendant had failed to establish a prima facie case. See Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). In State v. Gonzalez, supra, we identified several factors relevant to the question of whether the state’s explanation of its use of a peremptory challenge was neutral. Many of these factors are equally relevant to the prior determination of whether the defendant has established a prima facie case. These include (1) whether “the prosecutor failed to question the challenged juror or only questioned him or her in a perfunctory manner”; id., 399; (2) whether “prospective jurors of one raee were asked a question to elicit a particular response that was not asked of the other jurors”; id.; (3) whether “persons with the same or similar characteristics but not the same race as the challenged juror were not struck”; id.; and (4) whether “the prosecutor used a disproportionate number of peremptory challenges to exclude members of one race.” Id.

The defendant asserts that the state’s desultory, three question voir dire of Gaddy when combined with the fact of Gaddy’s removal was sufficient to raise an inference of purposeful racial discrimination. We disagree.

The state’s manner of conducting the voir dire of the challenged venireman is one factor to consider in determining whether an inference of purposeful discrimination has been raised. See Batson v. Kentucky, supra; People v. Turner, 42 Cal. 3d 711, 727, 726 P.2d 102, 230 Cal. Rptr. 656 (1986). In view of all the circumstances relevant to the defendant’s claim in the present case, however, we are not persuaded that the state’s voir dire of Gaddy raised an inference of purposeful discrimination. The record reflects that the state asked Gaddy how long he had lived in Bridgeport, whether he had any children, and whether he would have any difficulty in being fair. To this last question, Gaddy responded, “[sjhould not be.” The record also shows that defense counsel posed some forty questions to Gaddy, most of which received one word responses. The voir dire between defense counsel and Gaddy, of course, was grist for the state’s consideration in deciding whether to exercise a peremptory challenge. See Lockett v. State, 517 So. 2d 1346, 1353 (Miss. 1987). The transcript also indicates that the state asked the same number or fewer questions of eight other venirepersons, none of whom was black.

There were other factors tending to militate against an inference of purposeful racial discrimination. Although we have held that the trial court should not have relied solely on the absence of a “pattern,” the court was correct in noting that there had been no pattern of excluding black venirepersons by the state. Of the two black persons voir dired before Gaddy, the state accepted one and the other was excused by the court. Further, the fact that the state accepted another black venireperson after its peremptory challenge of Gaddy suggests a lack of purposeful racial discrimination.

The principles of Batson make clear that a true evaluation of a claim of purposeful racial discrimination cannot turn on a statistical comparison of the number of venirepersons of the defendant’s race that the state accepts and the number it rejects. These figures are nonetheless relevant. In the present case, discounting the number of venirepersons excused by the court, the remaining black persons on the venire constituted 7 percent of the venire. Two of the twelve jurors, or 17 percent, who sat on the trial were black. Although it is entirely possible that, in some instances, the state’s use of peremptory challenges to remove black persons may be racially motivated despite the fact that black persons represent a greater proportion on the petit jury than the venire from which they were chosen, we are not persuaded that this is the situation in the present case.

We conclude that, on the record before us, the defendant did not establish by a preponderance of the evidence that the state’s use of a peremptory challenge to remove Gaddy from the venire was racially motivated. The trial court’s conclusion was, therefore, not erroneous. Our decision today is consistent with the decisions of several other courts that have considered similar Batson claims. See, e.g., United States v. Ingram, 839 F.2d 1327, 1329-30 (8th Cir. 1988) (state’s striking of one of two black persons from venire of thirty-five insufficient to raise inference of racial discrimination); United States v. Porter, 831 F.2d 760, 767 (8th Cir. 1987), cert. denied, U.S. , 108 S. Ct. 1037, 98 L. Ed. 2d 1001 (1988) (prima facie Batson case not established where government removed one of two black persons from venire but accepted other); United States v. Dennis, 804 F.2d 1208, 1210-11 (11th Cir. 1986) (per curiam), cert. denied, 481 U.S. 1037, 107 S. Ct. 1973, 95 L. Ed. 2d 814 (1987) (removal of three of five black venirepersons did not establish prima facie Batson case where state accepted two other black venirepersons); cf. United States v. Battle, 836 F.2d 1084, 1085-86 (8th Cir. 1987) (prima facie case established where five of seven black venirepersons removed); Oliver v. State, 526 So. 2d 892, 893 (Ala. Crim. App. 1987) (state’s use of six peremptory challenges to strike black venirepersons, leaving only one black person on petit jury, established prima facie case).

Despite our conclusion in the present case, we emphasize that the issue of purposeful racial discrimination in the state’s use of peremptory jury challenges is a matter of “utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” State v. Gonzalez, supra, 394. The issue of purposeful racial discrimination in the use of peremptory challenges by the state may arise in any jury trial of a criminal case in which venirepersons of the same cognizable racial group as the defendant are struck from the venire. Consequently, because this issue is of such vital importance to our real and perceived adherence to the rule of law, in the exercise of our inherent supervisory authority over the administration of justice, in all future cases in which the defendant asserts a Batson claim, we deem it appropriate for the state to provide the court with a prima facie case response consistent with the explanatory mandate of Batson Such a response will not only provide an adequate record for appellate review but also aid in expediting any appeal.

II

Next, the defendant claims that the trial court erred in instructing the jury to determine whether certain prior inconsistent statements, admitted into evidence as such, were indeed inconsistent. He also claims that the trial court’s charge denied him the full utility of the prior inconsistent statements as a proper impeachment device against the state’s primary witness. Although the trial court did not give the defendant’s requested instructions to the jury, the defendant never objected or took exception to the instructions given by the court as required by Practice Book § 852. He now seeks review of the trial court’s action, claiming that the issue was properly preserved because he filed a written request to charge on prior inconsistent statements. We disagree.

The defendant’s request to charge did not encompass the question whether the jury could independently evaluate the inconsistency of the statements after they had been admitted into evidence. Consequently, the matter the defendant now objects to was not covered by the written request to charge. Practice Book § 852. We also disagree with the defendant’s argument that review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), is appropriate because the trial court’s action deprived him of his rights under the sixth amendment to the federal constitution and article first, § 8, of the Connecticut constitution to confront the witnesses against him. The defendant cites no case law to support his theory that an instruction that the jury may consider whether the statements were inconsistent implicates his sixth amendment right to confront the witnesses against him. Cf. State v. Ghere, 201 Conn. 289, 301 n.9, 513 A.2d 1226 (1986) (rejecting claim that impeachment of credibility of alibi witnesses implicates sixth amendment right to present defense); see also State v. Stepney, 191 Conn. 233, 246-49, 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) (upholding instructions that allowed jury to consider whether statements of defense witness were in fact inconsistent); State v. Villafane, 171 Conn. 644, 673, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977) (charge that jury could consider whether defense witness’ testimony was inconsistent with prior statements was correct in law). “Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender. . . . [T]he Evans trial court bypass to this court is a narrow constitutional path and not the appellate Champs-Elysees.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). “Because the sixth amendment claim was not distinctly raised below and because the record does not adequately support a claim that the defendant was clearly deprived of a fundamental right and a fair trial, we do not review its merits.” State v. Ghere, supra, 301 n.9.

Ill

The defendant also claims that the trial court erred in its charge to the jury as to the limited purpose of oral prior inconsistent statements. The defendant argues that in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), this court allowed the substantive use of sworn prior inconsistent statements. “For many years Connecticut followed the common-law rule; namely, prior inconsistent statements were inadmissible hearsay when offered for substantive purposes. In 1986 Connecticut altered its rule to admit certain prior inconsistent statements if given under ‘prescribed circumstances reasonably assuring reliability.’ [Id., 752]. Rather than adopt a rule admitting all such statements, however, [Whelan] restricted the new exception to ‘prior written inconsistent statements signed by the declarant who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.’ Id. at 753. Prior tape recorded statements also satisfy the exception. Id. at 754 n.9; see also State v. Cascone, 10 Conn. App. 163, 165 n.1, 521 A.2d 1067 (1987).” (Emphasis in original.) C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.24.3 (c), p. 210.

The defendant did not submit any written request for instructions on this issue, nor did he object or take exception to the charge as given by the trial court as required by Practice Book § 852. He now seeks to expand Whelan to include the substantive use of prior inconsistent oral statements. There is no indication that any of the prior inconsistent statements admitted in evidence in this case were “prior written inconsistent statements, signed by the declarant.” State v. Whelan, supra, 753. We do not discern the Whelan change allowing the substantive consideration of prior inconsistent statements to be a change of constitutional dimension. Accordingly, since the defendant has failed to comply with the procedures established for preserving review of his claim, we decline to review it. Practice Book § 852.

IV

Finally, the defendant claims that the trial court’s instructions to the jury that flight, if unexplained, tends to prove consciousness of guilt violated the defendant’s right not to present evidence at a criminal trial as guaranteed by the federal and state constitutions as well as General Statutes § 54-84 (b). The trial court instructed the jury that “the conduct of a person leaving the scene of an incident may be considered in determining his guilt, since, if unexplained, it tends to prove a consciousness of guilt. Now, flight by the accused after a crime has been committed does not create a presumption of guilt. You may consider evidence of flight, however, as tending to prove the defendant’s consciousness of guilt. You are not, however, required to do so. You should consider and weigh the evidence of flight by the accused in connection with all the other evidence in the case and give it such weight as in your sound judgment it is fairly entitled to receive.” Again, the defendant concedes that he neither requested an instruction on the subject of flight nor objected or excepted to the charge as given. Nonetheless, he argues that this claim is reviewable because § 54-84 (b) is a statute of constitutional dimension which embraces a fundamental right. State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984); State v. Evans, supra.

Under § 54-84 (b), the defendant has a right not to testify at his trial, and unless he requests otherwise, the trial court must instruct the jury that it may draw no unfavorable inferences from his failure to testify. State v. Totem, supra, 597. The defendant argues that the “flight, when unexplained” passage in the jury instructions unconstitutionally shifted the burdens of both production and persuasion, thereby violating the defendant’s right not to testify guaranteed by the fifth amendment to the federal constitution, and article first, § 8, of the constitution of Connecticut and § 54-84 (b). We are not persuaded. Section 54-84 (b) does not purport to insulate the defendant from the consequences of failing to explain through his own testimony or otherwise his conduct in leaving the scene of the crime for which he is charged. That statute recognizes only a defendant’s right not to testify, and at his election, to have the jury instructed that they may not draw any unfavorable inference against him for exercising that right. “ ‘We need not close our eyes to the fact that every person accused of crime is under some pressure to testify, lest the jury, despite carefully framed instructions, draw an unfavorable inference from his silence.’ (Emphasis added.) Raffel v. United States, 271 U.S. 494, 499, 46 S. Ct. 566, 70 L. Ed. 1054 (1926).” State v. Tatem, supra, 600; see also Carter v. Kentucky, 450 U.S. 288, 303, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981).

The flight instruction given by the trial court is consistent with our case law. We have stated: “ ‘Flight,, when unexplained, tends to prove a consciousness of guilt.’ State v. Ferrara, 176 Conn. 508, 516, 408 A.2d 265 (1979). ‘Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration.’ State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). ‘The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.’ ” State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986); State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988); State v. Piskorski, supra, 723; State v. Ferrara, supra, 516-18; State v. Rosa, 170 Conn. 417, 432-33, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976). We conclude that the flight instructions of the trial court did not violate any constitutional or statutory right of the defendant.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       The record discloses that defense counsel posed approximately forty questions to Gaddy. Gaddy, who generally responded with yes or no answers, indicated that he believed he would not be persuaded by the fact that the defendant was black. He also negatively answered the question whether there was any reason why he should not sit on the jury.
      The voir dire conducted by the state on Gaddy is as follows:
      “Q. How long have you lived up in the Bridgeport area—about?
      “A. I’ve been there about 23 years—24.
      “Q. Do you have any children?
      “A. No.
      “Q. I don’t know if you were asked, but as you know, the charge in this case is called felony murder.
      “Very basically, what the State is accusing Mr. Holloway of doing is trying to rob the victim and while he was trying to do that, shooting him and killing him.
      “Knowing that that’s what this case is about, do you think you might have any difficulty being a fair juror on this particular case?
      “A. Should not be.
      “Mr. Benedict: Your Honor, I have no further questions. Thank you.”

       The trial court’s response in its entirety is as follows: “I’m gathering here, Mr. McIntosh, all you’re really saying to me is that the responses of Mr. Gaddy were such that they seemed to be fairly decent responses. It relates to the venireman and because of that, the only reason that the State would have rejected him was because he was black. I really can’t really draw that conclusion. Especially when I look to the veniremen that were questioned earlier such as Mr. Rawley and Miss Grundman—as far as the Court’s impression of their responses, I thought their responses were quite decent. Of course, they were white and they were rejected. So I can’t automatically assume that because Mr. Gaddy’s responses were relatively, for lack of a better word, decent as we would expect a venireman to respond that I have to determine that the peremptory challenge was because of race only. The Court sees no pattern at this stage of the proceeding that that would be the situation on the part of the State. I think you do have to set up a prima facie case and what you just indicated alone does not set a prima facie case.
      “I will not require the State to make any neutral explanation of its peremptory challenge.”

       We note with approval the following language of the Supreme Court of South Carolina. “Rather than deciding on a case by case basis whether the defendant is entitled to a hearing based upon a prima facie showing of purposeful discrimination under the vague guidelines set forth by the United States Supreme Court, the better course to follow would be to hold a Batson hearing on the defendant’s request whenever the defendant is a member of a cognizable racial group and the prosecutor exercises peremptory challenges to remove members of defendant’s race from the venire. This bright line test would ensure consistency by removing any doubt about when a Batson hearing should be conducted. Further, this procedure would ensure a complete record for appellate review.
      “In all future jury trials, therefore, we recommend that the trial court hold a Batson hearing whenever 1) the defendant requests such a hearing; 2) the defendant is a member of a cognizable racial group; and 3) the prosecutor exercises peremptory challenges to remove members of defendant’s race from the venire.” (Emphasis in original.) State v. Jones, 293 S.C. 54, 57-58, 358 S.E.2d 701 (1987); Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure’to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       The pertinent written request for instruction by the defendant was as follows: “The testimony of a witness may be discredited or impeached by showing that he previously made statements which are inconsistent with this trial testimony. Such prior inconsistent statements do constitute evidence and are admissible to impeach, that is to call into question, the credibility of the witness. It is the province of the jury to determine the credibility, if any, to be given the testimony of a witness who has been so impeached. Devitt and Blackmar, 1 Federal Jury Practice and Instruction, pp. 540, 562 §§ 17.08, 1716 (West 3rd Ed. 1977), California, v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). See, Tait and LaPlante, Handbook of Connecticut Evidence, 183-84, (Little, Brown and Co. 1976).”
      The pertinent instruction on inconsistent statements given by the trial court is as follows: “The fact that they have been labeled inconsistent statements is not a direction to you that they must be accepted by you as being inconsistent with in court testimony. It is for you as jurors to determine if any one or all of the claimed inconsistencies were in fact inconsistent, and if they were inconsistent, to what degree they were inconsistent. That is, whether the inconsistency was material or not material to the issues in the case. And of course, the witness had the opportunity to explain any claimed inconsistencies, and you would have the right to evaluate such explanation or lack of explanation.”

       The trial court’s pertinent instruction on the limited purpose of prior inconsistent statements is as follows: “In any event, the claimed inconsistent statements in this case made out-of-court were admitted by the Court as evidence for a limited purpose only. They were admitted only for the purpose of impeaching the credibility of the witness, Ernest Lee Reed. In other words, you may use that evidence of inconsistent statements to determine what credit you will attach to the overall testimony of Ernest Lee Reed. They were not allowed in evidence for the truth of the matter contained in the out-of-court statement or testimony, but only for the purpose of impeachment of the witness’s credibility.”

       “General Statutes § 54-84 (b) provides: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”