author: Santaniello, J.

text:
    Mary M. Herrmann v. Summer Plaza Corporation et al.
    (12696)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued March 5
    decision released August 26, 1986

      William S. Herrmann, with whom, on the brief, was Ellen L. F. Strauss, for the appellant (plaintiff).

      Frank H. D‘Andrea, Jr., with whom, on the brief, was Brian D. Rosenfeld, for the appellees (defendants).
   Santaniello, J.

In this action for breach of contract and negligence, the plaintiff, Mary Herrmann, sought money damages from the defendants, Summer Plaza Corporation and Louis Evangelista. On the day the case was to be tried, the court dismissed the action. The plaintiff appeals, arguing principally that the trial court erred: (1) in denying her application for appointment of counsel pro hac vice; and (2) in dismissing her action pursuant to Practice Book § 251 for failure to prosecute with diligence. We find no error.

A review of the record has revealed the following facts. On August 2, 1979, the plaintiff instituted this boundary and surface water cause of action by obtaining a prejudgment remedy attachment. Pleadings were subsequently filed by both sides and issue was joined on May 23, 1980. A jury claim was filed by the plaintiff on May 22,1980, followed by the defendants’ claim for the trial list on May 23,1980. Subsequently, numerous miscellaneous motions were filed for the purpose of gathering information in preparation for trial. The matter reached the assignment list and was assigned for trial on January 18, 1985. On that date, the plaintiff raised several objections to starting trial, primarily claiming that discovery had not been fully complied with, and that she had not received a transcript of a deposition taken approximately five weeks earlier. After much discussion in open court before West, J., the plaintiff’s counsel, John J. Berger, represented that he would be willing and able to proceed in two weeks time. The court granted the plaintiff’s request for a continuance and reassigned the case for trial on January 31, 1985.

On January 28,1985, new counsel, Ellen L. F. Strauss, entered a general appearance for the plaintiff in lieu of Berger. On the date set for trial, January 31, 1985, Strauss presented to the court an application for appearance pro hac vice of New York counsel, John F. Martin. While presenting the petition in court, Strauss informed the court that Martin was on trial in New York and would not be available to try this case until some time the following week. The court denied the application and ordered the trial to proceed. Strauss refused to participate, however, and stated to the court that “I don’t feel qualified or ready to try the case, [and] it would not be fair to the plaintiff, in addition to the fact that it would put me in a bad position with the plaintiff. I submit that the plaintiff is entitled to her attorney of choice to try this case. Plaintiff fully expected The Court to grant the plaintiff’s motion for Attorney Martin to come in. I again respectfully affirm to The Court that I cannot go forward.” The court inquired “even if I bring the jury in here and introduce them and so forth, when it comes to the time when you’re to speak, you will remain silent, is that what you are indicating?” Strauss responded “Yes.” At that point, the defendants orally requested that “this case either be non-suited or pursuant to sections 274 and 251 be dismissed.” Thereafter, the court rendered judgment dismissing the action “pursuant to the provisions of Practice Book Sec. 274 and under the authority granted by Practice Book Sec. 251.” It is from this judgment of dismissal that the plaintiff appeals.

I

The plaintiffs first claim is that the court erred when it denied her application for the appointment pro hac vice of New York counsel.

Practice Book § 24 provides in part: “An attorney who is in good standing at the bar of another state . . . may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such extent as the court may prescribe in the presentation of a cause or appeal .... Where feasible, the application shall be made to the judge before whom such cause is likely to be tried. Good cause for according such privilege shall be limited to facts or circumstances affecting the personal or financial welfare of the client and not the attorney. Such facts may include a showing that by reason of a longstanding attorney-client relationship predating the cause of action or subject matter of the litigation at bar, the attorney has acquired a specialized skill or knowledge with respect to the client’s affairs important to the trial of the cause, or that the litigant is unable to secure the services of Connecticut counsel.” This section sets forth the procedure to be followed in making such an application. The plaintiff in this case made no attempt to show good cause. Ordinarily, “the mere fact that a client desires out-of-state counsel to represent him in the courts of this state is not sufficient reason, in and of itself, to warrant granting such permission . . . .’’Silverman v. St. Joseph’s Hospital, 168 Conn. 160, 175, 363 A.2d 22 (1975).

“[S]tate courts possess the inherent power to regulate admission to the bar. See Leis v. Flynt, 439 U.S. 438, 443, 99 S. Ct. 698, 58 L. Ed. 2d 717 (1979); State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978). Included within the general regulatory power is the right to establish guidelines for determining when an out-of-state attorney should be admitted pro hac vice. Leis v. Flynt, supra; State v. Reed, supra. Practice Book § 24 sets out the guidelines for Connecticut judges to follow when reviewing an application for admission pro hac vice: The application must be sponsored by an attorney licensed to practice in this state, who will assume ‘full responsibility’ for the applicant’s conduct. The applicant must be an attorney in ‘good standing at the bar of another state,’ and there must be good cause shown for admission. The decision to grant or deny an application to appear pro hac vice rests within the sound discretion of the court. See State v. Reed, supra, 291-94; Silverman v. St. Joseph’s Hospital, [supra,]; see also Silverman v. Browning, 414 F. Sup. 80 (D. Conn.), aff'd, 429 U.S. 876, 97 S. Ct. 228, 50 L. Ed. 2d 162 (1976).” Enquire Printing & Publishing Co. v. O’Reilly, 193 Conn. 370, 373-74, 477 A.2d 648 (1984). The court must not abuse its discretionary powers, however, and reject the petition without giving due consideration to the petitioner’s request. “The right to have counsel of one’s own choice, although not absolute, is important enough to require a legitimate state interest before a person can be deprived of that right. See State v. Rapuano, 192 Conn. 228, 232-33, 471 A.2d 240 (1984); United States v. Curcio, 694 F.2d 14, 23 (2d Cir. 1982); see also United States ex rel. Spurlark v. Wolff, 683 F.2d 216, 220 (7th Cir. 1982). In fact, Practice Book § 24 embodies this constitutional mandate, requiring the court to consider the ‘facts or circumstances affecting the personal or financial welfare of the client,’ when reviewing the application. This limited scope of inquiry strikes the balance between the state’s interest in regulating attorneys seeking to be admitted to practice pro hac vice and the litigant’s interest in obtaining counsel of his own choice. In this period of greater mobility among members of the bar and the public, and the corresponding growth in interstate business, a court should reluctantly deny an application to appear pro hac vice. A litigant’s request to be represented by counsel of his choice, when freely made, should be respected by the court, unless some legitimate state interest is thwarted by admission of the out-of-state attorney.” Enquire Printing & Publishing Co. v. O’Reilly, supra, 374-75.

There is a legitimate state interest in granting the trial court the power to control its own docket. “Overcrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. It is well known that justice delayed is justice denied. In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. . . . Judges must be firm and create the expectation that a case will go forward on the specific day that it is assigned. In order to dispose of our cases in a fair, timely, and efficient manner, everyone involved must be present on time, prepared, and ready to go forward. Because both courtrooms and judges are necessarily limited in number, burgeoning caseloads require that efficient use be made of the available space and judicial time. Careful calendar control is one proven method of increasing the number of case dispositions in the system.” In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983).

This case was returned to court in August, 1979, and was claimed to the trial list on May 23, 1980. It was almost six years old at the time of dismissal and certainly one of the oldest cases on the docket. It had been assigned for trial two weeks earlier and, at the plaintiffs request, was continued by the court for trial on January 31,1985. Up to January 18,1985, Berger had been the plaintiffs counsel in this case. Sometime during the ensuing two week interval, the plaintiff and Berger had a parting of the ways and the attorney was dismissed. On January 28, 1985, Strauss, a Connecticut attorney, entered a general appearance for the plaintiff. On the day of trial, January 31,1985, Strauss filed a petition for admission of counsel pro hac vice, advising the court that out-of-state counsel was not available since he was on trial in New York. The out-of-state counsel was a long-time personal friend of the plaintiff and had been a law partner of the plaintiffs husband for a number of years. He was not unknown to the plaintiff throughout the nearly six year life span of this case. He was available to the plaintiff for a long period of time and it was only at the very last minute, when the case was set for trial, that the pro hac vice request was made. Because of his unavailability, however, a granting of the request would have necessitated further continuance of the case. The defendants promptly objected to a continuance and the court, exercising its duty to maintain an orderly caseflow policy, denied the request, stating, “[a]nd I think it was clear to counsel at that time, or should have been, that the matter was continued to January 31st to go forward, and that it would go forward at that time and I can see no reason whatsoever at this point why anything should delay it unless, obviously, some extraordinary circumstances were developed, but I don’t see that that is the case, so The Court is ready to proceed.”

The court, under the circumstances of this case, clearly acted within its discretion to deny the plaintiff’s application for admission pro hac vice of New York counsel in order to maintain a legitimate state interest, that of docket control and expeditious caseflow management.

II

The plaintiff next claims that the court erred in granting the defendant’s oral motion to dismiss made pursuant to Practice Book § 251. She claims that where a motion is made by a party under § 251, it must also be made in compliance with § 196. Those sections require that the motion be in writing and that two weeks notice be given. Because the motion was not properly brought, she argues that the trial court had no jurisdiction to dismiss the case.

When the defendants filed their oral motion to dismiss, they did not comply with the rules requiring that motions made by parties under § 251 be in writing. See Practice Book §§ 196 and 251. Section 251 also states, however, that: “If a party shall fail to prosecute an action with reasonable diligence, the court may . . . on its own motion, render a judgment dismissing the action with costs. At least two weeks notice shall be required except in cases appearing on an assignment list for final adjudication.” (Emphasis added.) We conclude that because the court had the authority to dismiss the case on its own motion, the defendants’ failure to comply with the applicable practice book provisions is inconsequential.

Subject matter jurisdiction, according to Black’s Law Dictionary (5th Ed.), “refers to [a] court’s competence to hear and determine cases of the general class to which [the] proceedings in question belong; the power to deal with the general subject involved in the action.” See Standard Oil Co. v. Montecatini Edison S.p.A., 342 F. Sup. 125, 129-30 (D. Del. 1972); Japan Ga Lighter Assn. v. Ronson Corporation, 257 F. Sup. 219, 224 (D.N. J. 1966). When the plaintiffs complaint was filed, the court acquired jurisdiction over the subject matter of the case. A defect in the form of the motion to dismiss did not deprive the court of its jurisdiction to dismiss the case. Brookfield v. Candlewood Shores Estate, Inc., 200 Conn. 1, 4, 509 A.2d 489 (1986); Telesco v. Telesco, 187 Conn. 715, 719-20, 447 A.2d 752 (1982); LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976). The proper focus is therefore not, as the defendants suggest, on the jurisdiction of the court to act, but instead on the propriety of the court’s action under the Practice Book.

The court made it very clear in its remarks that the orderly process of caseflow and court management was a very important factor in its decision. On January 31, 1985, the date for trial, the court stated the following: “[This case] was previously called in for trial, I believe, on January 18th, 1985 before Judge West and at that time, plaintiff requested that the matter be continued because certain discovery information which plaintiff claimed she had a need for had not been provided and Judge West, in an unusual response to a request for a continuance of the case which was scheduled for trial, did show, it seems to me, consideration to plaintiff and continued the matter to allow the information to be provided. I’m sure all counsel here know that in any case which is scheduled for trial, it is expected that the matter will go forward at the time that it is called in for trial. It’s not expected that the matter will be continued and I indicate this for the purpose of indicating to counsel and for the record that, I think, plaintiff was shown extraordinary consideration .... I can see no reason whatsover at this point why anything should delay it unless, obviously, some extraordinary circumstances were developed, but I don’t see that that is the case, so The Court is ready to proceed.”

The court had the responsibility, duty and power to see that the case proceeded expeditiously. The continuance previously granted was for two weeks. On the day the case was reset for trial, the plaintiff was under an obligation to proceed. Her attempt to farther delay the commencement of trial by requesting admission pro hac vice of unavailable counsel was unfair to all concerned. The out-of-state counsel had apparently been available to represent her in the case since its inception, but it was not until the morning of the trial (six years later) that she attempted to have his appearance filed. She had counsel of record, who refused to participate even in jury selection notwithstanding the court’s request. The actual presentation of evidence would not have commenced until the following week. In spite of the court’s obvious determination to proceed, Strauss refused to participate and left little alternative to the court but to take appropriate action and dismiss the case in order to advance the oft repeated caseflow principles noted above. See Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33-34, 474 A.2d 787 (1984); In re Mongillo, supra, 690-91.

The plaintiff alleges that even though the court had the power to dismiss the matter suo motu under Practice Book § 251, it, in fact, dismissed the same pursuant to the defendants’ motion under Practice Book §§ 251 and 274 which was error because the defendants had not complied with § 196. The requirement that parties file their motions in writing is to ensure that the opposing party has written notice of the motion to dismiss. When a case has been set down on an assignment list for final adjudication, however, § 251 provides that the court may, on its own motion, render a judgment dismissing the action without further notice. Since the court had subject matter jurisdiction over the case, and had the power to dismiss suo motu for failure of the plaintiff to proceed when the case was called, it could so act, despite the defendants’ failure to file a written motion to dismiss pursuant to § 196. The fact that the court’s final orders were based upon mistaken grounds does not defeat its correct conclusion. “Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978); DiMaggio v. Cannon, 165 Conn. 19, 24, 327 A.2d 561 (1973). It is obvious that the trial court had the power to grant the dismissal, suo motu, under § 251, to advance caseflow principles. The remarks in court signified the same. Thus its actions were correct but were enunciated erroneously. This court is not required to reverse a ruling of the trial court which reached a correct result, albeit for a wrong reason. Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).

III

The plaintiff further claims that the trial judge had personal knowledge of disputed evidentiary facts concerning the proceeding which may have prejudiced her against the plaintiff, and thus should have disqualified herself. The issue of disqualification is raised for the first time on appeal. The record is devoid of any suggestion of actual impropriety or bias on the part of the court. Because the plaintiff cannot raise the issue of disqualification for the first time on appeal, we decline to review it. Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985).

IV

The plaintiff has raised a number of other issues on appeal involving, among other things, the constitutionality of the dismissal. The defendants argue that these issues were not raised below and therefore are not reviewable. See Practice Book § 3063. The plaintiff responds that she raised the claims with the trial court by means of a brief filed pursuant to Practice Book § 3060C in which she sought an articulation from the trial court on its decision to dismiss her lawsuit. We conclude that § 3060C is inapplicable and do not review these remaining issues.

Practice Book § 3060B requires that: “Except in small claims actions and as provided in Sec. 3060C, when rendering judgments in trials to the court, the court shall, either orally or in writing, state its decision on the issues .... The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be . . . transcribed and the transcript of the decision shall be signed by the trial judge.” The trial court in this case rendered an oral decision and signed the transcript in compliance with § 3060B. Section 3060C (a) states that an oral or written decision is not required in any dismissal under Practice Book § 251. Section 3060C (b) provides that: “Within fourteen days from the filing of an appeal from a dismissal under Sec. 251 ... in which an oral or written decision has not been made pursuant to paragraph (a), each party to the appeal shall file a brief with the court discussing the legal and factual issues in the matter. The court shall file a written memorandum of decision stating its decision on the issues in the matter and the factual basis of its decision within fourteen days after briefs have been filed by the parties.” (Emphasis added.) Section 3060C (b) is clearly only an alternate procedure to obtain the court’s explanation for the dismissal, in the instance where the court does not satisfy the requirements of § 3060B. The trial court’s compliance in this case with the requirements of § 3060B rendered § 3060C inapplicable to this case. Because § 3060C does not apply, the claims raised by the plaintiff are not properly before the court since they were not raised at the time the trial court rendered its decision. Practice Book § 3063.

There is no error.

In this opinion the other justices concurred.

       The discussion was as follows: “The Court: How much time are you looking for? What are you looking for?
      “Mr. Berger: I would think if we had—I think if we had two weeks, we should have anything, on every side in. And we should be able to proceed. I think under the circumstances, a fair request. That way they should be able to give any information to me that I need. That gives me time enough to look it over. And the other thing is, I hope that I have my deposition within that time.
      “The Court: Anything further on this?
      “Mr. Berger: No, your Honor.
      “The Court: We’ll take a brief recess.
      “The Court: All right, gentlemen, the court’s reviewed your arguments, and the file. It is of the opinion that a [continuance] is in order. And as I recall, Mr. Berger, you stated that you needed two weeks.
      “Mr. Berger: Yes, Your Honor, two weeks and I should get my deposition. I’ll call the court reporter.
      “The Court: January 31, any problem with that, Mr. D’Andrea? January 31, 1985.1 expect anyone back here that day, January [31]. Now you hired the court reporter, if you don’t get that transcript, there’s nothing that, you know, I don’t know what we can do about that.”

       Practice Book § 274 provides: “When a case is reached on the assignment list it shall be tried, defaulted, dismissed pursuant to Sec. 251 or nonsuited, unless for good cause shown the court may order it to be (a) reassigned on a succeeding list; (b) assigned for trial to a future date certain; (c) placed at the end of the trial list; or (d) removed from the trial list. Whenever any privileged or pretried case is ordered placed at the end of the trial list, it shall be placed with the remaining nonprivileged cases.
      “Any case so removed from the trial list or from the pretried or privileged section of the trial list may be reclaimed, but the date on which the reclaim was received shall thereafter be considered as the date it was placed on the trial list.”
      Practice Book § 251 provides: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to See. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.”

       Practice Book § 196 provides: “Every motion, request, application or objection directed to pleading or procedure, unless relating to procedure in the course of a trial, shall be in writing and shall, except in the case of a request, have annexed to it a proper order, and a proper order of notice and citation, if one or both are necessary. Such motion, request, application or objection shall be served on all parties as provided in Sec. 120 and, when filed, the fact of such service shall be endorsed thereon.”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Earl Arnold
    (12619)
    (12620)
    Healey, Shea, Dannehy, Callahan and Ment, Js.
    Argued June 12
    decision released August 26, 1986

      AlanD. McWhirter, assistant public defender, with whom, on the brief, was Raymond J. Quinn, Jr., public defender, for the appellant (defendant).

      Anthony M. Fitzgerald, special assistant state’s attorney, with whom were Walter A. Seanlon, chief assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in a three count substitute information with murder and felony murder, kidnapping in the first degree and the commission of a capital felony. In a separate substitute information he was charged with larceny in the first degree and robbery in the first degree. Both infor-mations arose from the same incident and were tried together to a jury. The defendant was convicted of all five counts and sentenced by the trial court to an effective sentence of seventy years. See General Statutes § SSa-SSb. The defendant took separate appeals from his convictions on both substitute informations. He has, however, failed to brief any issue concerning his convictions of larceny in the first degree and robbery in the first degree and that appeal is considered abandoned. P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153,162, 454 A.2d 1258 (1983); O’Connor v. Dory Corporation, 174 Conn. 65, 70, 381 A.2d 559 (1977).

All the charges stem from the abduction and subsequent death of Joanne DiChiara. DiChiara, a forty-four year old office manager, was last seen alive leaving the Westside Oyster Bar in downtown Waterbury, alone, at about 10:15 p.m. on August 17, 1983, after having had dinner. Her automobile, a 1980 Oldsmobile Cutlass, was found abandoned on Ward Street in Waterbury on August 23,1983. Her naked, badly decomposed body was found in a wooded area near the Waterville section of Waterbury on August 26,1983. An autopsy revealed that she had died of multiple stab wounds.

A police investigation of the crime led to the apprehension of the defendant on August 29,1983. Between the date of the crime and his capture, the defendant told several acquaintances that he had killed the victim. On the day he was arrested, while in custody, the defendant gave three recorded statements to the police. In his first statement he admitted that he had participated in the robbery of the victim but said that he had only acted as a lookout and that a companion, Tyrone Dotson, had stabbed her. After Detective Peter Keegan, the police officer taking the statement, reminded the defendant that he had seen him in the downtown area several times the night of the crime and each time he was alone, the defendant repudiated the first statement. He then promised to tell the truth, and he gave a second written statement. In the second statement the defendant told Keegan that he had committed the crime alone, that he had needed money, and had followed the victim and accosted her as she entered her car. He stated he had a knife and had initially stabbed the victim in the neck unintentionally as they struggled while he attempted to cut the strap of her pocketbook. He said he then pushed the victim over to the passenger seat, entered the car, drove to another area and had sexual relations with her. The victim lost consciousness and the defendant drove to the wooded area where the body was eventually found. There, he said, he “dragged her into the woods by her legs . . . [s]he was still breathing and I knew that she had seen my face and I stabbed her in the back a few times until she stopped breathing.”

In a third, more extensive statement, transcribed by a court reporter and commenced approximately two and one-half hours after the second statement was concluded, the defendant told essentially the same story but said that when he pulled the victim into the woods he “didn’t see her breathing or nothing like that” and “figured that she was already dead.” He then said, however, “I figured she might be alive and she might not be alive,” and that he stabbed her “two or three times.”

At the trial the defendant testified that Dotson had stabbed the victim and that he had merely been the lookout for the robbery but that he had helped Dotson dispose of the body and had shared in the proceeds. The defense produced Dotson as a witness. He testified that he knew the defendant, having met him while they were both at Long Lane School several years before. He said that he had not seen him since that time, however, and that he had never in his life been in Waterbury prior to the date of his testimony. His appearance as a witness for the defense was understandably brief.

Wayne Carver, a pathologist and an assistant medical examiner, who performed the autopsy on the body of the victim, testified that the body had a total of twenty-four stab wounds in the neck, back and buttocks. In his opinion, the cause of the victim’s death was multiple stab wounds to the trunk of her body. Because the front portion of the victim’s body was completely decomposed, Carver testified he was unable to determine whether she had been stabbed in that area. He also testified there was no medical evidence indicating whether the victim was alive or dead when the stab wounds to her back were inflicted.

I

The initial count of the substitute information charged the defendant in the conjunctive with intentional murder and felony murder. At the conclusion of the evidence and after final arguments, the trial court instructed the jury that, if it found either or both alternatives proven beyond a reasonable doubt, the jury should find the defendant guilty of murder. The defendant requested the trial court to instruct the jury that if it found him guilty of murder to specify in the verdict whether it found him guilty of intentional murder or felony murder or both. See State v. Duhan, 194 Conn. 347, 354, 481 A.2d 48 (1984). The trial court refused to do so, reasoning that proof beyond a reasonable doubt of either alternative would be sufficient to sustain a conviction of murder.

The jury returned a general verdict of guilty. The defendant does not dispute that there was sufficient evidence to convict him of felony murder. He claims, however, that there was insufficient evidence that the defendant intended to kill DiChiara to warrant a jury finding of intentional murder. He argues therefore that there was error because it is impossible to determine from the general verdict which alternative the jury relied upon in finding him guilty and he may have been convicted of intentional murder on insufficient evidence. We agree that it was error for the court to charge as it did but conclude that there was sufficient evidence to support a verdict of guilty of each alternative.

“Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon. Leary v. United States, 395 U.S. 6, 31-32, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969); Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064, 1L. Ed. 2d 1356 (1957).” State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983); Cramer v. United States, 325 U.S. 1, 36 n.45, 65 S. Ct. 918, 89 L. Ed. 1441 (1945); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984).

A general verdict of guilty to a single count charging alternative methods of committing the same crime may be upheld only if there is sufficient evidence to support the verdict as to each alternative. United States v. Berardi, 675 F.2d 894, 902 (7th Cir. 1982); United States v. Tarnopol, 561 F.2d 466, 474 (3d Cir. 1977). “The reason for this rule is that, with the ‘one-is-enough’ instruction that was given here, it would be impossible to determine whether the jury based its decision on an act for which there was insufficient evidence . . . United States v. Berardi, supra. Since the verdict on the count of murder was a general verdict of guilty without specific findings as to the alternative on which it rested, it must be set aside if the evidence as to either alternative submitted was insufficient. Cramer v. United States, supra, 34-36; State v. Thompson, supra; State v. Marino, supra, 651.

“In determining whether the evidence is sufficient to sustain a verdict, ‘the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.’ ” State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981).

The defendant argues that the evidence was insufficient to support a conviction of intentional murder because his statements to the police indicate that the initial stab wound he inflicted to the victim’s neck was accidental and was not intended to cause death; that the medical examiner could not determine whether the victim was still alive when she was stabbed in the back; and that there was no reason for the jury to believe his statement that the victim was still breathing when she was. stabbed in the back as opposed to his later statement that he did not notice her breathing and “figured” she was already dead. He contends therefore the evidence would not justify a finding beyond a reasonable doubt that the victim was still alive when intentional stab wounds were inflicted rather than already dead from the unintentionally inflicted wound. Obviously, he concludes, he could not be convicted of intending to cause the death of a victim who was already dead.

The defendant’s argument is flawed. First, the jury was under no obligation to believe that the initial stab wound was inflicted unintentionally. Second, the autopsy revealed a number of stab wounds unaccounted for by the defendant’s statements and the jury could reasonably have believed that at least some were inflicted while the victim was alive. Third, and more importantly, in view of the defendant’s claim, a finding that the victim was still alive when she was stabbed in the back and was killed intentionally was justified if the jury could reasonably have believed the defendant’s statement that he stabbed the victim while she was still breathing because “[he] knew that she had seen [his] face.” The defendant suggests no reason why the jury could not have believed that statement and disbelieved his other versions of what occurred.

The evidence must be given a construction which is most favorable to sustaining the verdict of the jury. State v. Rodriquez, 200 Conn. 685, 687, 513 A.2d 71 (1986); State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); State v. Panella, 168 Conn. 532, 534, 362 A.2d 953 (1975). The jurors were confronted with conflicting evidence and the choice of the more credible evidence was for them to make. State v. Cavallo, 200 Conn. 664, 673-74, 513 A.2d 646 (1986); State v. Rothenberg, 195 Conn. 253, 257, 487 A.2d 545 (1985); State v. Avcollie, supra, 461.

Our review of the record reveals that there was ample evidence for the jury to have found proven beyond a reasonable doubt that the defendant intentionally caused the death of the victim and that he did so in the course of committing a robbery.

II

The defendant next claims that there was insufficient evidence to find proven beyond a reasonable doubt all three of the alternative statutory methods of committing kidnapping in the first degree which were submitted to the jury and which, under the circumstances of this case, were necessary to support a conviction. The trial court instructed the jury that in order to convict the defendant of kidnapping in the first degree it must find proven beyond a reasonable doubt that he abducted and restrained the victim “with the intent to do any one of the following prohibited acts, namely, one, to inflict physical injury upon her, or, two, to violate or abuse her sexually, or, three, to accomplish or advance the commission of a felony.” (Emphasis added.)

The defendant requested the trial court to require the jury, if it found him guilty of kidnapping in the first degree, to specify which alternative method or methods of committing the crime it found proven beyond a reasonable doubt. See State v. Duhan, supra, 354. The trial court refused to give such an instruction based on the identical reasoning it had used in rejecting the request for a similar instruction relating to the first count of murder. It was the trial court’s view that proof beyond a reasonable doubt of any one of the alternatives would be sufficient to sustain a conviction of kidnapping in the first degree.

As we held earlier in this opinion, a general verdict of guilty on a single count charging alternative methods of committing the same crime, may be upheld only if there is sufficient evidence to support the verdict as to each alternative charged. Leary v. United States, supra; Yates v. United States, supra; Cramer v. United States, supra; State v. Thompson, supra; State v. Reid, supra; State v. Marino, supra.

The defendant does not contest that there was sufficient evidence for the jury to have found proven beyond a reasonable doubt that he abducted and restrained the victim with the intent to inflict physical injury upon her and to advance the commission of a felony. He argues, however, that there was no evidence presented at trial that “would even suggest the defendant kidnapped the victim with the intent to violate or abuse her sexually” other than his own statements in which he admitted having had sexual relations with the victim after he stabbed her. The claim of the defendant apparently is that there was insufficient evidence of the corpus delicti of the crime of kidnapping with the intent to violate or abuse the victim sexually to allow the statements of the accused to be used by the jury as proof of his guilt. We disagree.

“It is a well-settled general rule that a naked extrajudicial confession of guilt by one accused of crime is not sufficient to sustain a conviction when unsupported by any corroborative evidence.” (Emphasis added.) State v. Grant, 177 Conn. 140, 144, 411 A.2d 917 (1979). The confession cannot stand alone but must be accompanied by sufficient evidence of the corpus delicti. State v. Ruth, 181 Conn. 187, 198, 435 A.2d 3 (1980). “[T]he corpus delicti consists of the occurrence of the specific kind of loss or injury embraced in the crime charged.” State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). There must be facts aliunde of the confession which tend to establish the corpus delicti. State v. Grant, supra. Evidence of the corpus delicti may be circumstantial in nature. State v. Tillman, supra.

We need not decide whether under our definition of the corpus delicti as “the specific kind of loss or injury embraced in the crime charged”; State v. Tillman, supra; it would have been necessary for the state to prove by evidence extrinsic to the confession any element of the crime other than the kidnapping itself. There was, in any case, sufficient evidence of the mental element of the intent to violate or abuse the victim sexually to justify the use of the defendant’s confession. It is true that, because of the decomposed condition of DiChiara’s body, the state was unable to produce any physical evidence that she had been sexually violated or abused. There was, however, substantial independent evidence that the victim had been abducted by the defendant and it was uncontroverted that, when found, her body was nude. It would be a myopic and hypertechnical interpretation of the corpus delicti rule to hold that extrinsic corroborative evidence of that nature was not material and substantial evidence at least tending to prove the existence of the crime charged. State v. Grant, supra. It was certainly sufficient “when viewed in connection with the confession [to] establish the corpus delicti . . . in the mind of the trier beyond a reasonable doubt.” State v. Ruth, supra, 198; State v. Pena, 1 Conn. App. 344, 348, 471 A.2d 972 (1984).

The avowed purpose and the reason for the existence of the rule that an accused may not be convicted on his own uncorroborated confession is to protect against conviction of offenses that have not, in fact, occurred, in other words, to prevent errors in convictions based solely upon untrue confessions to nonexistent crimes. State v. Geltzeiler, 101 N.J.L. 415, 416, 128 A. 240 (1925); State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985); note, “Confession Corroborative in New York: A Replacement for the Corpus Delicti Rule,” 46 Fordham L. Rev. 1205, 1207 (1978). In this case there was sufficient extrinsic evidence of the corpus delicti to satisfy fully the purpose behind the rule. The corroborative evidence was sufficient to allow the defendant’s statements to be used in determining his guilt and that evidence, when considered with his statements, was sufficient to sustain his conviction of the alternative charge of kidnapping with intent to violate or abuse the victim sexually.

In a related claim, the defendant argues that those segments of his statements concerning sexual intercourse should not have been considered by the jury in determining his guilt of the charge of kidnapping in the first degree because the trial court ruled at one time during the course of the trial that the reference to sexual intercourse contained in one of the defendant’s statements was not relevant to any count of the information. This claim is without merit. It is obvious from the record that, contrary to what the trial court said at the point in the trial alluded to by the defendant, its ruling applied only to the capital felony count of the information. That was made abundantly clear to counsel and the jury was explicitly and correctly instructed that it could consider the defendant’s statements relative to his having had sexual intercourse with the victim in determining his guilt or innocence of the kidnapping count. In determining the adequacy of jury instructions, the court’s instructions to the jury should be considered as a whole, not critically dissected in a search for inexact or inadvertent statements. State v. Brown, 199 Conn. 14, 27, 505 A.2d 690 (1986).

Ill

The defendant’s final claim is that there was insufficient evidence to warrant a finding that he was guilty of having committed a capital felony. The defendant was charged in the third count of the information with having committed a capital felony by murdering a kidnapped person. The trial court instructed the jury that the element of murder, necessary to a finding of guilty of having committed a capital felony, could be satisfied, if, in the first count of the information, they found the defendant guilty of either intentional murder or felony murder. The defendant’s only argument, with regard to this third count of the information, echoes his argument with regard to the first count. He claims that, because there was'insufficient evidence of intentional murder to sustain a conviction, the defendant was therefore improperly convicted of murder and improperly convicted of having committed a capital felony. For the reasons previously articulated, we disagree.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-35b. ‘life imprisonment’ defined. A sentence of imprisonment for life shall mean a definite sentence of sixty-years.”

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

       “[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.”

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree. (a) A person is guilty of kidnapping in the first degree when he abducts another person and when: (1) His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.
      “(b) Kidnapping in the first degree is punishable as a class A felony.”

       “[General Statutes] Sec. 53a-54b. capital felony defined. A person is guilty of a capital felony who is convicted of any of the following . . . (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety . . . .”


text:
    State of Connecticut v. David Ghere
    (11730)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued June 4
    decision released August 26, 1986

      Stephen M. Prignano, certified legal intern, with whom were Timothy H. Everett and, on the brief, Kerry Wisser, certified legal intern, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, and Patrick J. Clifford, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

By substitute information, the defendant, David Ghere, was charged in the first count with the crime of attempted robbery in the first degree as an accessory, in violation of General Statutes §§ 53a-134 (a) (3), 53a-49 (a) and 53a-8, in the second count with conspiracy to commit robbery in the first degree, in violation of General Statutes § 53a-48 (a), and in the third count with assault in the second degree, in violation of General Statutes § 53a-60 (a) (2). After a jury trial, he was found guilty of the crimes charged and was sentenced to an effective prison term of not less than seven nor more than fourteen years. On appeal, he claims: (1) that there was insufficient evidence to support his conviction on the first and second counts; and (2) that the trial court erred in allowing the state to impeach the testimony of the defendant’s alibi witnesses by exposing their failure to volunteer exculpatory information to the police. We find no error.

I

We examine first the defendant’s claim that the state presented insufficient evidence to support his conviction for the crimes of accessory to attempted robbery in the first degree and conspiracy to commit robbery in the first degree. In considering this claim, “[w]e are obligated to review the evidence as favorably as possible with a view toward sustaining the verdict and then to decide whether the verdict is one which jurors acting reasonably could have reached. State v. Maturo, [188 Conn. 591, 601, 452 A.2d 642 (1982)]; State v. Jeustiniano, 172 Conn. 275, 281-82, 374 A.2d 209 (1977). Evidence is sufficient to sustain a verdict if the jury could reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the defendant’s guilt was proven beyond a reasonable doubt. State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978).” State v. Maltese, 189 Conn. 337, 344, 455 A.2d 1343 (1983); see also State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

To establish its case, the state relied heavily on the testimony of the victim, Marc Perkis. He testified at trial as follows: On March 20, 1981, at approximately 5 to 5:30 p.m., he drove into the parking lot of the Stop 6 Shop Supermarket on South Colony Road in Walling-ford with the intention of buying groceries. He parked his car in a spot two to three hundred feet from the store with the front end of the car against a chain link fence. Another car was parked on the driver’s side and there was only a two or three foot space between the two cars. As the victim stepped out of his car, he noticed two men walking toward him from across the lot. They came up to him and blocked his way to the store, standing at the rear of his car.

The victim described the two men in detail. The first man was between six feet, four or five inches tall, approximately nineteen to twenty-two years old and had long light brown hair about an inch from the shoulder. He was relatively clean shaven but had some whiskers growing on his chin and upper lip. He wore a dungaree jacket, a pair of blue jeans that was ripped at the knees, a belt with a large brass buckle and a pair of black leather motorcycle boots in poor repair. The second man was the person whom the victim later identified as the defendant. He was approximately six feet tall, in his late twenties or early thirties and had dark brown hair of shoulder length. He had broad shoulders and a heavier build than that of the first man, untrimmed facial hair under his nose and chin and prominent scars and pockmarks on his face like those left by severe acne. He wore a "very old, very dirty” sleeveless denim jacket which had several patches, including one bearing a motorcycle insignia. He also wore ripped blue jeans with patches and black motorcycle boots in relatively poor condition.

The first man confronted the victim and “asked [him] for money . . . .’’The victim responded that he “did not have any money.” Apparently not satisfied with the response, the first man became indignant and retorted: “If you are going shopping you have to have some money.” The victim, who described himself as “a little annoyed” at this point, replied that “I don’t [have money]. I pay by check . . . [w]ould you like a check?”

Within one or two seconds of the last verbal exchange, the second man stepped toward the victim and displayed a blackjack approximately eight to ten inches long. The victim had not noticed the weapon up to this point in time because the man had concealed it behind his back. The man immediately swung the blackjack at the victim and struck him in the face below the eye causing him to reel back against his car. The same man then punched the victim “[a] couple of times” in the stomach and, as he fell to the ground, struck him again over the head. Once on the ground, the victim feigned unconsciousness and heard the second man call to the first: “Come on let’s get back to the shop.” Then, without searching the victim, the two men quickly left the parking lot.

The victim remained on the ground for a few minutes before being able to pull himself up into his car. When he felt well enough to drive, he went directly to the Wallingford police station and related what had happened. The police took a general description of the assailants and then sent the victim to the hospital by ambulance. After being treated and released, the victim returned to the police station at approximately 9 p.m. and gave a full statement describing the two men and the attack. The victim also viewed a photographic array containing six to seven photographs, selected a photo of the defendant and identified him as the man who had hit him with the blackjack. He stated that he was “extremely positive” about this identification. He later viewed another array containing approximately ten to fourteen photos and again selected the defendant’s photograph. The victim testified that “there [was] no doubt in [his] mind” that the defendant was the man who had struck him.

The defendant presented an alibi defense at trial. He took the stand himself and testified that on the day of the alleged crimes he had visited a friend at Hartford Hospital and then had gone to the workshop of his club, the Diablos motorcycle club, in Meriden between 5 and 5:30 p.m. There he had unloaded his motorcycle from the back of his truck and had worked around the shop for a few hours before going home. The defendant called three witnesses who testified that he had been at the hospital on the afternoon in question, one of whom said that he had remained there until 4 p.m. He called two additional witnesses who testified that he had been at the Diablos club from 5:10 or 5:20 p.m. until later that evening. It was also established during the examination of the defendant and his witnesses, however, that he had worn a sleeveless denim jacket with motorcycle and Diablos club patches at the time the crimes took place.

A

The defendant claims that there was insufficient evidence to convict him of being an accessory to the crime of attempted robbery in the first degree. He does not challenge the jury’s conclusion that there was sufficient concert of action between him and his accomplice to support the accessory allegations made under General Statutes § 53a-8. He argues instead that there was insufficient proof: (1) of his intent to commit larceny in that the assailants’ actions constituted, at the most, “aggressive panhandling”; and (2) that he used or threatened to use force “in the course of” attempting a larceny as required under General Statutes § 53a-133. We disagree.

A person is guilty of criminal attempt if, acting with the kind of mental state required for the commission of the crime, he intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be, or intentionally commits an act which constitutes a substantial step in a course of conduct planned to culminate in the commission of the crime. General Statutes § 53a-49; State v. Green, 194 Conn. 258, 276, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” General Statutes § 53a-133. Simple robbery becomes robbery in the first degree if, “in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . uses or threatens the use of a dangerous instrument.” General Statutes § 53a-134 (a) (3).* **

Turning to the defendant’s claim concerning intent, we note from the relevant statutes that the state was required to establish beyond a reasonable doubt the defendant’s intent to commit larceny in order to obtain a conviction for attempted robbery in the first degree. State v. Morrill, 193 Conn. 602, 608-609, 478 A.2d 994 (1984). Generally, such an intent can be inferred from the conduct and statements of the defendant or his accomplice. Id., 609; State v. Sober, 166 Conn. 81, 92-93, 347 A.2d 61 (1974). “ ‘The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980).’ State v. Martin, 195 Conn. 166, 170, 487 A.2d 177 (1985).” State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986). Reviewing the evidence in this case, we reject the defendant’s characterization of the assailants’ behavior as panhandling and conclude that the jury could reasonably have inferred from this conduct that the defendant intended to commit larceny. The defendant and his accomplice approached the victim in a nearly deserted parking lot and hemmed him in between two cars. One of them aggressively demanded money while the other stood nearby armed with a dangerous weapon. The request for money was not, as the defendant suggests, made in the form of a casual request for a handout, but instead was made in the form of a demand. Furthermore, the fact that the defendant struck the victim shortly after his accomplice made the demand indicated the assailants’ apparent intent to force the victim to comply.

The defendant also proffers the argument that there was insufficient evidence that he used or threatened to use force “in the course of” attempting the larceny under General Statutes § 53a-133 and that, as a result, he could not be found guilty of attempted robbery in the first degree. He correctly assumes that the elements of simple robbery under the definition provided in General Statutes § 53a-133 must be proven before robbery in the first degree is established. He also correctly argues that it was necessary for the state to establish that the defendant had used or threatened to use force “in the course of” attempting a taking of the victim’s property in order to sustain a conclusion that the defendant had undertaken “substantial step[s]” in furtherance of the alleged crime under the attempt statute, § 53a-49. State v. Coston, 182 Conn. 430, 435, 438 A.2d 701 (1980). We cannot agree with the defendant’s position, however, that the use of force was not “in the course of” the attempted robbery because the assault of the victim occurred subsequent to the demand for money. It is well established that, under General Statutes § 53a-133, if the use of force occurs during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after, it is considered to be “in the course of” the robbery or the attempted robbery within the meaning of the statute. State v. Gordon, 185 Conn. 402, 410-11, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Gunning, 183 Conn. 299, 313 n.12, 439 A.2d 339 (1981); State v. Coston, supra, 435-36; State v. Velicka, 143 Conn. 368, 371-72, 122 A.2d 739 (1956); see also 2 Model Penal Code and Commentaries (1980) § 222.1, comment 2. In the present case, although the defendant could have assaulted the victim for any number of reasons, including frustration, anger, fear or desire to keep the victim from pursuing him, the assault occurred within seconds of the demand for money. The blackjack was also apparently in the defendant’s hand while the demand was made. From these facts the jury could reasonably have concluded that the force used “was within the sequence of events directly connected with the attempted robbery.” State v. Velicka, supra, 372. The jury therefore could reasonably have found the defendant guilty of attempted robbery in the first degree as an accessory.

B

The defendant next claims that there was insufficient evidence to sustain his conviction of conspiracy to commit robbery in the first degree. To establish the crime of conspiracy under General Statutes § 53a-48 (a), “the state must show that [1] there was an agreement between two or more persons to engage in conduct constituting a crime ... [2] the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators . . . [and (3) there was] intent on the part of the accused that conduct constituting a crime be performed.” State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975). The defendant claims that there was insufficient evidence on each element of the crime.

On the question of the defendant’s intent, we have already found that the jury could reasonably have concluded that he possessed the intent to commit larceny. Since the assault was also committed in furtherance of the attempted taking and was done by use of a dangerous instrument, there is no doubt that the jury also could reasonably have concluded that he possessed the intent to commit robbery in the first degree under General Statutes §§ 53a-133 and 53a-134 (a) (3).

On the issue of confederation, we note at the outset that the existence of a formal agreement between the conspirators need not be proved. State v. Johns, 184 Conn. 369, 378, 439 A.2d 1049 (1981); State v. Marra, 174 Conn. 338, 344, 387 A.2d 550 (1978). “ ‘Conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons. State v. Faillace, 134 Conn. 181, 185, 56 A.2d 167 [1947]. It is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. The combination or confederation may be proved by circumstantial evidence, that is, by proof of the separate acts of the individuals accused and by proof of circumstances from which the illegal confederation may be inferred. State v. Gerich, 138 Conn. 292, 297, 83 A.2d 488 [1951].’ State v. Holmes, 160 Conn. 140, 150, 274 A.2d 153 (1970).” State v. Baker, 195 Conn. 598, 604, 489 A.2d 1041 (1985). In this instance, the proof that the defendant and his companion confronted the victim and hemmed him in between two cars while one demanded money and the other stood by silently with a dangerous weapon in his hand was sufficient evidence from which the jury reasonably could infer that there existed an agreement between the two assailants. “It was enough if they knowingly engaged in a mutual plan to do a forbidden act.” State v. Holmes, supra, 149.

On the issue of the existence of an overt act in furtherance of the crime, it is important to emphasize that the essence of the offense of conspiracy is the unlawful combination and an act done in pursuance thereof, not the successful accomplishment of the objective of the conspiracy. State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986); State v. Devine, 149 Conn. 640, 647-48, 183 A.2d 612, cert. denied sub nom. Cooper v. Connecticut, 371 U.S. 930, 83 S. Ct. 303, 9 L. Ed. 2d 237 (1962). Thus, although robbery in the first degree may have been the conspirators’ object, the failure of the attempt does not preclude a conviction for the inchoate crime of conspiracy. The state charged the defendant with committing the overt act of assaulting the victim with a dangerous instrument in pursuance of the crime of robbery in the first degree. Since we have already found that it was reasonable to conclude that the assault was committed “in the course of” the attempted robbery under General Statutes § 53a-133, and that this act constituted a “substantial step” toward the commission of robbery in the first degree within the meaning of General Statutes § 53a-49, we also find that the jury could reasonably have believed that the assault was “an overt act in pursuance” of the conspiracy under General Statutes § 53a-48 (a). There is sufficient evidence, therefore, to sustain his conviction of conspiracy to commit robbery in the first degree.

II

The final claim raised by the defendant challenges the propriety of the trial court’s ruling allowing the state’s attorney to impeach the defendant’s alibi witnesses by exposing their failure to tell the police their story in support of the alibi. He argues that evidence of the witnesses’ silence was irrelevant and, therefore, inadmissible. He also claims that the state’s attorney’s closing argument to the jury using this evidence was improper. We do not agree.

The state filed a demand for notice of alibi on April 14, 1981, but the defendant, in violation of the time requirements of Practice Book § 763, did not comply until August 19, 1982, some sixteen months later. The trial court, in its discretion, nevertheless allowed the witnesses to testify and trial commenced on August 23, 1982. As previously noted, the defendant called five alibi witnesses. Three testified that they had seen him at Hartford Hospital a few hours before the crimes were committed and two testified that they had seen him in Meriden at the exact time the crimes were committed. Each of these witnesses was either a friend or an acquaintance of the defendant and was in some way associated with the Diablos motorcycle club. When cross-examining four of the witnesses, the state’s attorney asked each if they had informed the police that he or she had seen the defendant on the day of the crime. The defendant each time objected to these questions on the ground of relevance, but his objections were overruled.

During the closing arguments to the jury, the state’s attorney attacked the defense witnesses’ credibility on various grounds, including the observation that the witnesses were friends of the defendant, that the dates and times might have been inaccurate because of the effect of time on their memory, and that there was no way to verify their testimony because they had not given a formal statement prior to trial. In raising the possibility of fabrication, the state’s attorney pointed out that the defense counsel had been able to impeach the victim’s testimony by using his prior statement to the police, but that the defendant’s witnesses could not be similarly cross-examined because “they did not give any statements to anyone.” The defense counsel during her closing arguments attempted to bolster the witnesses’ credibility despite their failure to go to the police by noting that: “If [the witnesses] have not gone to the police department to say: listen, a terrible wrong [has been] committed here, isn’t it natural that these peo-pie would go testify just like they have?” The defendant later objected to the state’s attorney’s arguments, claiming that it was improper to impeach the alibi witnesses by bringing to light their failure to make statements to the police.

The principles by which we judge the propriety of the trial court’s ruling on the relevance of the state’s attorney’s questioning are well settled. “The scope of cross-examination in a criminal trial is a matter properly left to the sound discretion of the trial court .... Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only where an injustice appears to have occurred. State v. Martin, 170 Conn. 161, 365 A.2d 104 [1976]; State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 [1975].” State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). Generally, evidence is admissible when it tends to establish a fact in issue or corroborates other direct evidence in the case. State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986); State v. Gold, 180 Conn. 619, 645-46, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). Thus, “if evidence adduced on cross-examination conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should be admitted.” State v. Briggs, supra, 332; Delmore v. Polinsky, 132 Conn. 28, 31, 42 A.2d 349 (1945). Clearly in the case at hand, the credibility of the alibi witnesses was properly in issue and it was permissible for the state’s attorney to inquire into the circumstances surrounding the alibi on cross-examination in an attempt to discredit the alibi claim. State v. Briggs, supra, 333. The question before us, therefore, is relatively narrow: whether the failure of the witnesses to approach the police with their alibi story was relevant on the issue of credibility or, more specifically, the issue of fabrication.

We have never specifically addressed the relevance of such questioning in the context raised at trial. The defendant claims that silence is “inherently ambiguous” and that an alibi witness’s failure to volunteer information is, therefore, of little, if any, probative value. In cases involving the use of the defendant’s silence in the face of accusation under Doyle v. Ohio, 426 U.S. 610, 617, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), we have recognized that a defendant’s post-arrest silence following Miranda, warnings was “insolubly ambiguous.” State v. Morrill, 197 Conn. 507, 535, 498 A.2d 76 (1985); see United States v. Hale, 422 U.S. 171, 177, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975). Outside of the narrow confines of Doyle, however, the “[c]ommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn Rev. 1970).” Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980). Although we do not believe that an alibi witness has a duty to report an alibi story to the police or, for that matter, to any other person, a witness in many instances naturally may be expected to convey such information, especially when the witness is friendly with the accused. Failure of the witness to do so would, under these circumstances, constitute grounds for impeachment. See United States v. Carr, 584 F.2d 612, 617-18 (2d Cir. 1978), cert. denied, 440 U.S. 935, 99 S. Ct. 1280, 59 L. Ed. 2d 494 (1979); People v. Davis, 156 Cal. App. 3d 920, 203 Cal. Rptr. 338, 343-44 (1984); People v. Welte, 77 Ill. App. 3d 663, 665-66, 396 N.E.2d 315 (1979); People v. LaFayette, 138 Mich. App. 380, 389, 360 N.W.2d 891 (1984); Commonwealth v. Rodgers, 472 Pa. 435, 459, 372 A.2d 771 (1977); cf. People v. Dawson, 50 N.Y.2d 311, 406 N.E.2d 771, 428 N.Y.S.2d 914 (1980); see generally annot., 20 A.L.R.4th 245, 267-77.

The alibi witnesses in this case were shown to be friends or acquaintances of the defendant and it would only have been natural for them to exculpate the defendant of any wrongdoing by approaching the police. We therefore conclude that the trial court correctly allowed the state’s attorney to impeach the alibi witnesses by questioning their failure to relate their stories to the police. Because we find that the impeachment of the alibi witnesses was justified, the defendant’s claim that the state’s attorney’s final argument was improper is similarly unavailing.

There is no error.

In this opinion the other justices concurred.

       The state also called two Wallingford police officers. They corroborated the victim’s characterization of the events, testifying, inter alia, on the way the victim came into the police station, his physical condition, how he gave his statement to them and how he identified the defendant.

       The victim also made an in-court identification of the defendant. Although the defendant has implied that the identifications were unreliable, he does not argue that they were the product of unnecessarily suggestive police procedures and does not contest their admission into evidence. See State v. Boucino, 199 Conn. 207, 219-20, 506 A.2d 125 (1986).

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contem-lated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       The defendant does not contest the fact that the alleged use of force in this case would satisfy the requirement in General Statutes § 53a-134 (a) that it be used “in the course of the commission of the crime or of immediate flight therefrom . . . .’’(Emphasis added.) He apparently concedes that the use of force could be deemed to have occurred in the flight from the attempt.

       It was also reasonable for the jury to conclude from the evidence that the two men intimidated the victim by their actions and request, and thereby threatened the use of force “in the course of” attempting larceny within the meaning of General Statutes § 53a-133.

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       The defendant also argues that the trial court, by permitting the state’s attorney to impeach his witnesses under this theory, denied him his sixth amendment right to present a defense. See State v. Boucino, 199 Conn. 207, 213-14, 506 A.2d 125 (1986); State v. McKnight, 191 Conn. 564, 580, 469 A.2d 397 (1983). The defendant objected to the state’s attorney’s questioning and argument only on the ground that such evidence was irrelevant and never raised this constitutional claim below. The defendant cites no case law to support the position that mere impeachment of the credibility of alibi witnesses implicates the right to present a defense. In our judgment the defendant has placed a “constitutional tag on a nonconstitutional claim.” 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. Tyler-Barcomb, 197 Conn. 666, 674-75 n.5, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). The focus of our discussion is therefore limited to the relevance of the state’s attorney’s questioning.

       The state’s attorney argued: “[They are] going back 18 months and recalling, what occurred on this supposed date of March 20. Remember that these people gave no statements, no formal statements that they gave that, for example, I might have to cross-examine from like [the one] Mr. Perkis gave to the police. They are going back and recalling off the top of their heads.
      * ** *
      “For example Perkis’ statement was put under a microscope and every little bit of the description was pulled out for you, and he was cross-examined on it. But you cannot do that with the defense’s witnesses like Laura DeAndrade and Keith Woodtke and Bob Woodtke because they did not give any statements to anyone.
      * * *
      “Once again, [Larry Gilbert was] someone who did not give any statement to anyone. Obviously, he did not go down to the police and tell them that he had this firm alibi for his friend David Ghere.”

       The defendant in passing proffers the additional argument that the state’s attorney improperly argued to the jury that the alibi witnesses had a duty to approach the police. The record does not support such a claim. In fact, the state’s attorney openly admitted in explaining his questioning that: “I am not sure [a witness] has a duty but I am curious whether [he] did go down.”