text:
    State of Connecticut v. Michael Davis State of Connecticut v. Sherman Adams
    (11809)
    (11782)
    Healey, Shea, Dannehy, Santaniello and Corrigan, Js.
    Argued December 6, 1985
    decision released March 11, 1986

      Jon C. Blue, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant in the first case).

      Sue L. Wise, special public defender, for the appellant (defendant in the second case).

      Frank S. Maco, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Frederick W. Fawcett, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendants, Michael Davis and Sherman Adams, were each found guilty, after a joint trial to a jury, of the crimes of burglary in the second degree, in violation of General Statutes § 53a-102 (a), and larceny in the third degree, in violation of General Statutes (Rev. to 1981) § 53a-124 (a) (1). These appeals followed.

Both appeals arise out of a burglary and larceny in an apartment building in Stratford on December 17, 1981, during which both defendants were apprehended at the scene by Stratford police officers who were dispatched to the building between 8 and 8:30 p.m. on a “peeping Tom” call. The state adduced evidence that when the officers arrived, they observed two sets of footprints in the snow leading from the parking lot to an apartment window in the back of the building on the ground floor. They also observed the intermittent use of a flashlight and heard voices inside the darkened apartment. While one officer remained at the open window, a second officer entered the building into a common corridor and observed the defendant Davis come out of the apartment involved. He was carrying a white pillowcase which was found to contain personal property of the tenant of that apartment who was away on vacation in Colorado. As the defendant Adams jumped from the window of the burglarized apartment, he was apprehended by the officer who had remained at that location.

After the state rested its case, the following colloquy which generated these appeals took place:

“The Court: Are you ready to proceed, gentlemen?

“Mr. Bleiman: Yes, Your Honor. If we may, before the jury comes in, I’d like to make a statement for the record. My client, Michael Davis, has asked me to call one witness, who in my judgment, I do not think it would be wise to call, and under those circumstances, I have declined to follow Mr. Davis’ instructions, in that regard. I’d like the court to be aware of that and I’m stating that now to protect any rights that any parties, between my client and myself, might have with respect to this. And I’d ask the court to give Mr. Davis the opportunity to make a statement in this regard if he sees fit.

“The Court: Well, I have to assume that the decision not to call this particular witness is a tactical decision that experienced trial counsel has made. He’s the one who’s lived with the case. He’s been in attendance throughout and I respect his judgment. I have no basis or reason to make an independent judgment.

“Mr. Bleiman: Yes, Your Honor. Thank you.

“The Court: All right.

“Mr. Schipul: Your Honor, just for the record, my client has also requested a witness be called who in my judgment need not be called. Should not be called for purposes of this trial.

“The Court: I would simply reiterate my earlier comment with respect to tactical judgment made on the part of trial counsel. Are we ready to proceed, gentlemen?”

The defendant Adams did not testify but offered evidence through a witness, Almad Sanders, that he and Sanders had been drinking from about 7 p.m. at Sanders’ home and that the two parted company after 8 p.m. Sanders testified that Adams was depressed and very intoxicated. The defendant Davis took the stand as the only witness in his behalf. He maintained that on the night in question he and a friend named Ricky were drinking beer, smoking marihuana and talking about women. As a result of their conversation, he said that they went to the apartment building where the break occurred to see a woman Ricky knew. The latter pushed a house button for an apartment and was buzzed in. Davis, acting, he said, on Ricky’s instructions, went to a second floor apartment while Ricky went back to his car. Davis maintained that he told a woman who answered that he had been sent up by Ricky who wanted to know if he could come up and visit. As a result of her answer, Davis returned to the first floor lobby expecting to find Ricky, who was not there and whose car was gone. He waited in the lobby for about five to ten minutes and panicked and ran when he saw one of the officers, who had been dispatched there, approaching with his gun drawn. He was apprehended and a later search of him at the scene disclosed a flashlight and a screwdriver on his person.

Both defendants have framed the issue on these appeals as follows: “In a criminal case in which counsel had been appointed to represent the defendant, did the refusal of counsel to call a witness that his client had instructed him to call and the court’s explicit approval of that refusal, where there was no allegation that the requested testimony would be either perjurious or irrelevant, violate the rights of the defendant to be heard and to have compulsory process to obtain witnesses in his behalf guaranteed by Conn. Const, art. I, Sec. 8?”

Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . [and] to have compulsory process to obtain witnesses in his behalf . . . .”

Both defendants make identical claims. They claim that the Connecticut constitution grants “a right to be heard” directly to the defendant and that the dispositive issue is not whether the decision of the trial court and their counsel deprived them of the effective assistance of counsel but whether those decisions denied each his “right to be heard by himself.” They maintain that this decision was one ultimately for the defendant to make because “the Connecticut constitution clearly allocates [it] to the accused.” Each defendant argues that the trial court “explicitly acquiesced” in counsels’ decisions, characterizing them as “tactical,” and did not give either of them “a requested opportunity to make a statement for the record.” Contending that the question is not one of the dignity or authority of counsel but, rather, is one of the ultimate allocation of constitutional power, they claim that the independent right of a defendant under article first, § 8, “to be heard by himself” encompasses “the right to call witnesses on one’s behalf.” A defendant has this right, they maintain, “by himself” as well as “by counsel.” They assert that if the exercise of this right is solely within the discretion of counsel, then we would be obligated to hold the language “by himself” to be mere surplusage. They further argue that this right does not rest on policy nor does it intrude on courtroom decorum. Moreover, they say that it does not rest on terminology alone, but also draws support from the historical context in which the Connecticut constitution of 1818 was adopted. This, they suggest, serves to reinforce their claim that the organic language of our constitution requires that we declare that a criminal defendant has the ultimate decision-making right under article first, § 8. We must reject the defendants’ claims.

In arguing that this decision-making right ultimately rests in defendants alone, they also claim that to deny them that right also denies them their right to compulsory process as articulated in article first, § 8, because that right is given to “the accused.” In making this claim, the defendants recognize that the Supreme Court of the United States has said that an accused who claims a violation of his constitutional right to compulsory process “must at least make some plausible showing of how [the] testimony would have been both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982). Each defendant argues that he was precluded by the trial court from making such a showing. The defendant Adams argues that although Davis’ attorney asked the trial court to “give Mr. Davis the opportunity to make a statement in this regard if he sees fit,” the trial court ignored his request saying that it would defer to counsel’s “tactical decision” rather than “make an independent judgment.” The defendant Adams argues that while his counsel joined in that request, he did not make any offer of proof in light of the trial court’s position.

On the other hand, the state counters that article first, § 8, of the Connecticut constitution does not guarantee a criminal defendant, represented by counsel, the right to make the ultimate decision as to what witnesses shall be called during the trial, but rather maintains that that decision is a tactical one for counsel. Arguing that the defendants’ claims here have no historical support, the state contends that the claimed right simply cannot be equated with certain other rights, the exercise or nonexercise of which clearly belongs to a criminal defendant alone. Here the state refers to such rights as the decision to be tried by a court or a jury, to plead guilty or to take the witness stand, and to testify in one’s own behalf. Because the decision is a tactical or strategic one, the state suggests that a claim that a defendant’s counsel refused to call witnesses he requested is essentially a claim going to the competency of counsel which is better resolved in another proceeding.

At the outset, we note that the defendants have not asserted that the right of an accused to make the ultimate decision in the calling of a witness is a federal constitutional right. They do not point to, nor does our research disclose that the United States Supreme Court has determined that there is such a federal constitutional right. We note this, bearing in mind that “ ‘although we fully recognize the primary independent vitality of the provisions of our own constitution’; Horton v. Meskill, 172 Conn. 615, 641, 376 A.2d 359 (1977); ‘the decisions of the United States Supreme Court defining federal constitutional rights are, at the least, persuasive authority’; id.; and thus may be ‘afforded respectful consideration.’ Id., 642; see also Cologne v. Westfarms Associates, 192 Conn. 48, 66, 469 A.2d 1201 (1984).” State v. Gethers, 197 Conn. 369, 385, 497 A.2d 408 (1985). “In the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution—we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut residents have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.” Horton v. Meskill, supra, 642-43. In this context, the United States Supreme Court has not squarely addressed the issue of whether the federal constitution guarantees to a criminal defendant the right to make the ultimate decision on whether to call a witness. Chief Justice Burger has said: “It is also recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal; see Wainwright v. Sykes, 433 U.S. 72, 93 n.1, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) (Burger, C.J., concurring); ABA Standards for Criminal Justice 4-5.2, 21-22 (2d ed. 1980).” Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). In Wainwright, the Chief Justice said: “Once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate—and ultimate—responsibility of deciding if and when to object, which witnesses, if any to call, and what defenses to develop. Not only do these decisions rest with the attorney, but such decisions must, as a practical matter, be made without consulting the client.” (Emphasis added.) Wainwright v. Sykes, supra.

It has been generally recognized that decisions concerning matters of trial strategy and tactics rest with the lawyer, as opposed to decisions concerning such inherently personal rights of fundamental importance to the defendant as those referred to in Jones and in Wainwright. See, e.g., Henry v. Mississippi, 379 U.S. 443, 451-52, 85 S. Ct. 564, 13 L. Ed. 2d 408, reh. denied, 380 U.S. 926, 85 S. Ct. 878, 13 L. Ed. 2d 813 (1965); Nelson v. California, 346 F.2d 73, 80-81 (9th Cir.), cert. denied, 382 U.S. 964, 86 S. Ct. 452, 15 L. Ed. 2d 367 (1965); Townsend v. Superior Court, 15 Cal. 3d 774, 781, 543 P.2d 619, 126 Cal. Rptr. 251 (1975); McClendon v. People, 174 Colo. 7, 14, 481 P.2d 715 (1971). The decision as to what witnesses to call is commonly regarded as a tactical, strategic decision. See, e.g., Vess v. Peyton, 352 F.2d 325 (4th Cir. 1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1215, 16 L. Ed. 2d 214 (1966); State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984); People v. Williams, 2 Cal. 3d 894, 471 P.2d 1008, 88 Cal. Rptr. 208 (1970), cert. denied, 401 U.S. 919, 91 S. Ct. 903, 27 L. Ed. 2d 821 (1971); State v. Pratts, 145 N. J. Super. 79, 366 A.2d 1327 (1975), aff'd, 71 N.J. 399, 365 A.2d 928 (1976); see ABA Standards for Criminal Justice, The Defense Function (1982) § 4-5.2 (b) and commentary thereon. We have not, as we were in Gathers, been referred to, nor have we found any interpretation by other states of similar language in their constitutions on the issue presented here.

Our recent case of State v. Gethers, supra, serves as a constitutional footing from which to initiate our analysis. In Gethers, the defendant claimed that he was guaranteed the right to hybrid representation by article first, § 8, of the Connecticut constitution which provides that “[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel. ...” State v. Gethers, supra, 382. In making that claim, the defendant in Gethers argued, inter alia, that “the standard tools of constitutional construction” required that the plain language of article first, § 8, including the framers’ intent demonstrated by the conjunctive “and” in the language “by himself and counsel” (emphasis added), be interpreted to guarantee him the right of hybrid representation. State v. Gethers, supra, 382, 385-86. We disagreed and held that article first, § 8, of the Connecticut constitution did not guarantee an accused the right to hybrid representation. State v. Gethers, supra, 382.

Here again, as in Gethers, we recognize that “[i]n dealing with constitutional provisions we must assume that infinite care was employed to couch in scrupulously fitting language a proposal aimed at establishing or changing the organic law of the state. Cahill v. Leopold, 141 Conn. 1, 19, 103 A.2d 818 [1954]; 1 Cooley, Constitutional Limitations (8th Ed.) p. 125.” State v. Gethers, supra, 386, quoting Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981). In that connection, the defendants’ dispositive claim is that the language in article first, § 8, “the right to be heard by himself . . .’’guarantees them the right to make the ultimate decision on whether to call a witness. Otherwise, they argue, the words “by himself” are surplusage and, therefore, such a construction is wholly impermissible. We do not agree. Moreover, this argument regards the alleged right as guaranteed without looking to the remaining words in that very clause, “and by counsel.” (Emphasis added.) This is required because “[u]nless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.” Stolberg v. Caldwell, supra, 597-98. We see no such reason. Thus viewed, the defendants’ claim here does not have that “superficial appeal” we noted in Gethers where we refused to interpret “and” as conjunctive so as to recognize a right of hybrid representation under article first, § 8. Nor, as in Gethers, is the defendants’ “plain language” argument persuasive.

We, of course, do not, in this “ultimate right to call a witness” case, have all the same considerations which we did in Gethers, although Gethers is instructive. We now turn to the defendants’ argument, drawing on Swift’s System, that given the colonial tradition of self-representation and the then-prevailing distrust of lawyers, it was “unlikely” that the framers of the 1818 constitution intended “forcibly” to take the “ultimate power” to select witnesses from the accused and give it to his counsel, “particularly to appointed counsel.” This “unlikely” posit is offered by the defendants without any authoritative nexus to their present claim. In fact, the enhanced status of lawyers in Connecticut was such that at the time the bill of rights was adopted, although there was no Connecticut statute providing it, it was the custom of the courts to assign counsel in all criminal cases. See State v. Gethers, supra, 389-90; 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 392; see Faretta v. California, 422 U.S. 806, 827 n.35, 830 n.40, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

In his authoritative historical work, A History of the American Bar (1911) p. 18, Charles Warren said: “So that when the War of the [American] Revolution broke out, the lawyer, from being an object of contempt to restrain whom restrictive legislation was yearly necessary during the Seventeenth Century, had become the leading man in every town in the country, taking rank with the parish clergyman and the family doctor.” Thus, by 1818, the status of lawyers in this state had been sufficiently raised so as to enhance their standing in the community and is evidenced in part by the then-prevailing custom of assigning counsel to defendants in criminal cases. This strongly suggests, albeit without concrete declaration, that the advice and services of counsel were regarded as crucial to a criminal defendant at that time, especially given the inability of a defendant to testify in Connecticut in 1818. An indication of this is that, as Swift notes, not only was counsel for the state permitted to make a statement of the facts intended to be proved to support the prosecution, but counsel for the prisoner could speak to that “by way of defence against [the prosecution].” 2 Swift’s Digest (1823) pp. 404-405. The defendants have pointed to no substantive or historical authority that shows that the framers of the 1818 constitution intended “forcibly” to take this “ultimate” power from the accused and give it to counsel. We do not, therefore, interpret article first, § 8, of the Connecticut constitution to grant a criminal defendant the right to make the ultimate decision as to which witnesses to call.

In our determination that the claimed state constitutional right does not exist, we have not overlooked the defendants’ related claim that such a right exists “in a criminal case in which counsel had been appointed to represent [them]. . . .” (Emphasis added.) Although their briefs do not disclose any principle of law or authority in support of their claim, it merits some general comment. We agree with the United States Supreme Court that “[w]e may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused.” Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). In State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982), where the defendant claimed the denial of his federal and state constitutional rights to the effective assistance of counsel, we said that this right to the effective assistance of counsel was “equally applicable, whether defense counsel is court-appointed, or . . . privately retained . . . .” We decline, therefore, the defendants’ invitation here to formulate any standard that distinguishes appointed counsel from retained counsel in the context of the defendants’ claims in this case. See generally United States ex rel. Hart v. Davenport, 478 F.2d 203, 211 (3d Cir. 1973).

The defendants’ claim that article first, § 8, grants them a right “to have compulsory process to obtain witnesses in [their] behalf ...” deserves little discussion. If a criminal defendant does not have the ultimate decision to call witnesses, when represented by counsel, then he is not being denied a purely personal right to have compulsory process to obtain witnesses under article first, § 8. This conclusion accords with the manner in which the defendants frame this issue: “The question is in whom this right [to compulsory process] ultimately reposes: the accused or his counsel.” Because the defendants’ right to compulsory process is protected here, through representation by counsel, there is no derogation of a state constitutional right. The issue is similar to that addressed in Gethers, where we held that the defendant was not denied his state constitutional right to compulsory process because article first, § 8, did not create the right of hybrid representation. We are in agreement, however, with the defendants that our state constitutional compulsory process guarantee is, as they argue, at least as broad as a defendant’s sixth amendment right to compulsory process under the federal constitution. See Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

In light of what we have concluded above, it is unnecessary for us to discuss that branch of the defendants’ claim that is based on the “plausible showing” standard of United States v. Valenzuela-Bernal, supra.

There is no error.

In this opinion the other judges concurred.

       At trial, the defendant Sherman Adams was represented by the office of the public defender for the judicial district of Fairfield, and the defendant Michael Davis was represented by Alan Bleiman, a special public defender.

       This court denied the state’s request to combine the appeals but did permit the state to file a single brief addressing the briefs filed by each defendant. The two appeals were argued together in this court.

       The briefs filed by the defendants are similar and so we do not distinguish between them unless noted.

       We note that in Wainwright counsel whose conduct was challenged by the defendant in that case was also appointed counsel, as in the cases before us. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).

       In McClendon v. People, 174 Colo. 7, 14, 481 P.2d 715 (1971), the court said: “It is only when the question arises whether the defendant should plead guilty, waive a jury trial, or take the stand that defense counsel must be governed by and abide by the wishes of his client. [ABA Standards, The Prosecution Function and The Defense Function, § 5.2, pp. 237-238.]”

       The Eleventh Circuit has recently said: “This Court will not second-guess tactical decisions of counsel in deciding whether to call certain witnesses.” United States v. Long, 674 F.2d 848, 855 (11th Cir. 1982).

       Defense counsel argue that People v. Frierson, 39 Cal. 3d 803, 705 P.2d 396, 218 Cal. Rptr. 73 (1985), a death penalty case, supports their claim in this case. We do not agree. Initially, Frierson is inapposite on its facts. In that case, the defendant asked his appointed counsel to present evidence of his diminished capacity as a defense at the guilt/special circumstance phase of his trial, but counsel refused, apparently believing that it was wiser to withhold such evidence until the penalty phase. Defense counsel did, however, present lay and expert witnesses on that subject at the penalty phase. The Frierson trial court, when this conflict between the defendant and his counsel was brought to its attention, ruled that the decision to do so was for counsel to make and not for the defendant. On appeal, the California Supreme Court found that “under the facts of this case,” the defendant’s claim that the trial court erred in finding that his counsel had the authority to refuse, “over the defendant’s express objection, to present any defense to the charged special circumstances,” was well founded. People v. Frierson, supra, 396-97. It is noted that that court, in so ruling, stated that “[t]he principal issue presented is whether a defense counsel’s traditional power to control file conduct of a case includes the authority to withhold the presentation of any defense at the guilt/special circumstance stage of a capital case, in the face of a defendant’s openly expressed desire to present a defense at that stage and despite the existence of some credible evidence to support the defense.” People v. Frierson, supra, 401. A close reading of Frierson discloses that the defendant did not make his claim, nor did the court so decide the case, under the California constitution nor, for that matter, under any cognizable part of the United States constitution. Again, it was careful to indicate its narrow holding when it said that there were several considerations in this capital case that led them to conclude “that this case is qualitatively different from the bulk of decisions which have properly confirmed counsel’s broad control over ‘trial tactics,’ and is instead analagous to those cases which have recognized the need to respect the defendant’s personal choice on the most ‘fundamental’ decisions in a criminal case.” (Emphasis added.) People v. Frierson, supra, 402-403. Again, without any reference to the United States or California constitutions, the Frierson court said that both the trial court and defense counsel “misjudged” the scope of counsel’s authority to override the defendant’s wishes “on a matter of fundamental importance.” People v. Frierson, supra, 405. In the long and thoughtful opinion in Frierson, no state constitutional predicate for that decision is stated. Once more, a parsing of the narrowness of its holding emerges when the court says: “We emphasize that our holding rests on the fact that the record in this case expressly reflects a conflict between defendant and counsel over whether a defense was to be presented at the guilt/special circumstance stage.” (Emphasis in original.)People v. Frierson, supra, 405 n.8. In addition, that opinion demonstrates that the majority clearly determined that defense counsel’s decision at the trial “virtually assured” that the defendant would be convicted of first degree murder with a “special circumstance”—a capital crime. People v. Frierson, supra, 403.

       In Connecticut, the bar increased “very greatly” after the American Revolution so that in 1798 there were about 120 lawyers practicing in this state. C. Warren, A History of the American Bar (1911) p. 323.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    State of Connecticut v. Larry Chace
    (11201)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued January 7
    decision released March 11, 1986

      Kevin C. Connors, special public defender, with whom, on the brief, was Michael J. Whelton, special public defender, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Robert Meyers, former assistant state’s attorney, for the appellee (state).
   Santaniello, J.

After a trial by jury, the defendant, Larry Chace, was convicted of murder in violation of General Statutes § 53a-54a. The trial court subsequently sentenced him to a term of imprisonment of not less than seventeen years nor more than life. He appeals claiming (1) that there was insufficient evidence to convict him of murder, (2) that the prosecutor made improper comments to the jury which deprived him of his right to a fair trial, and (3) that he was denied his right to effective assistance of counsel. We find no error.

I

The defendant first claims that the trial court erred in denying his motions for judgment of acquittal because “the evidence would not permit a finding beyond a reasonable doubt, that the Defendant possessed the intent to kill . . . .” Specifically, he argues that the evidence adduced at trial indicating that the killing occurred in the course of a “heated” argument and while he was intoxicated negated a finding of specific intent.

The jury could reasonably have found the following facts. The victim, Sheldon Merrill, Jr., and a friend, Jay Pietrantonio, were playing pool at the Speak Easy Cafe in Berlin when an argument broke out between Merrill and the defendant over whose turn it was to play. Merrill and the defendant had words and the defendant suggested that they take the argument outside. The defendant left the cafe and Merrill followed shortly thereafter. A few minutes later, Pietrantonio also went outside. He observed the defendant and Merrill facing each other near the front door. Merrill told Pietrantonio that “Everything’s okay. I’ll be in in a minute.”

The defendant and Merrill remained outside after Pietrantonio left and continued to argue. At some point, the defendant slapped Merrill in the face and Merrill countered with two or three punches. The defendant then reached into his belt and pulled out a buck knife with a blade over four inches long. He slashed at Merrill three times, leaving a cut across his cheek and two stab wounds in the chest. When Merrill was stabbed, he staggered backwards and retreated to a corner of the parking lot. The defendant followed, and again slashed at him with the knife. Merrill called out to the defendant to stop and to put the knife away. The defendant, however, replied that: “If I catch you I’ll do it again.” When Merrill collapsed, the defendant stood over him for a few minutes, calmly put his knife away, walked over to his car and then left.

When emergency medical technicians arrived, Merrill exhibited no vital signs and was bleeding profusely. Efforts to revive Merrill failed. An autopsy revealed that the wound to the face was superficial but that the two wounds to the chest were serious. In causing the two cuts to the chest, the knife passed through a quilted flight jacket, two layers of a flannel shirt and a tee shirt before entering the victim’s chest cavity. The first chest wound was one and one-half inches deep and the second was four inches deep. In causing the deeper wound, the knife penetrated the left lung and caused a two-inch laceration of the heart. The position of the chest wounds indicated that the knife struck the victim from a horizontal angle.

It was established that the defendant had been drinking beer for a “couple of hours” before the stabbing, and Pietrantonio testified that he “appeared to be under the influence” at the time. There was no other evidence concerning the defendant’s level of intoxication.

Under General Statutes § 53a-54a (a), the state must prove that the defendant acted with the specific intent to cause the death of the victim. State v. D'Antuono, 186 Conn. 414, 422, 411 A.2d 846 (1982). “ ‘Intent is a mental process which ordinarily can be proven only by circumstantial evidence. An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.’ State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); see State v. Stankowski, 184 Conn. 121, 127, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977); State v. Bzdyra, 165 Conn. 400, 404-405, 334 A.2d 917 (1973); State v. Litman, 106 Conn. 345, 352-53, 138 A. 132 (1927). 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).

Whether a criminal defendant possessed the specific intent to kill is a question for the trier of fact. State v. Holley, supra, 26. This court will not disturb the trier’s determination if, “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

The defendant argues that because the stabbing occurred in the course of a “heated” argument, no reasonable jury could have found that he formed the specific intent to kill. Our review of the record in this case reveals, however, that there was sufficient evidence from which the jury could reasonably have found such an intent. While it is true that the defendant and the victim were engaged in an argument, the quarrel did not appear to have been all that bitter. The argument stemmed from a relatively minor matter and the victim was evidently content to resolve the dispute verbally. The defendant struck the first blow and quickly armed himself with a lethal weapon. He thrust the knife with great force and directed his blows to vital areas, indicating that he purposely sought to cause serious injury or death. Moreover, after initially striking the victim and causing him to retreat, the defendant continued the attack and exhibited little regard for the victim’s condition even though it was readily apparent that he was seriously injured. See State v. Martin, supra, 173; State v. D’Antuono, supra, 425.

The defendant also claims that it was unreasonable for the jury to have found that he possessed the requisite intent when there was evidence that he was intoxicated at the time of the killing. "Intoxication is not a defense to murder, but is relevant to the capacity to form specific intent. General Statutes § 53a-7; State v. Smith, 185 Conn. 63, 70 n.7, 441 A.2d 84 (1981); see, e.g., State v. Bitting, 162 Conn. 1, 7, 291 A.2d 240 (1971). ‘ "[Ijntoxication” means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.’ General Statutes § 53a-7. ‘If the cumulative effect of all the evidence, including the evidence of intoxication, justifies finding the particular mental state beyond a reasonable doubt, the . . . verdict precludes a reversal for insufficient evidence of that mental state.’ State v. Smith, supra, 70 n.7; see State v. Crawford, 172 Conn. 65, 69-70, 372 A.2d 154 (1976).” State v. D'Antuono, supra, 423-24. In this case, because there was very little evidence concerning the defendant’s degree of intoxication, we cannot say that it was unreasonable for the jury to have concluded that the defendant was capable of forming the specific intent to kill.

II

The defendant’s next claim is that the prosecutor made improper demonstrations and comments in his closing arguments to the jury. The state’s attorney, in rebuttal to the defense counsel’s argument that there was no proof of intent to cause death, used the defendant’s buck knife to show how someone might use the knife to inflict minor injury and how one might use it to kill. While making the demonstration, the state’s attorney talked about how the knife might be used in fights conducted “from time to time on Saturday nights in Hartford,” indicated how he himself would use the knife in a fight and referred to the victim’s wounds in relation to different angles of the knife. The state’s attorney also referred to the defendant as a “callous and unfeeling murderer,” and noted the defendant’s calm demeanor and apparent lack of concern for the welfare of the victim. The defendant argues that these comments and actions were prejudicial and deprived him of his constitutional right to due process and a fair trial. Because the defendant has failed to preserve the issue for appeal, however, we do not review his claim.

The defendant concedes, as he must, that the question of prosecutorial misconduct was not raised by his counsel at trial and that no objection was made concerning the remarks. “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). Arguing that the record adequately supports a claim that he has been deprived of a fundamental constitutional right and a fair trial, the defendant contends that his case presents an “exceptional circumstance” under Evans. Id., 70.

Ordinarily, where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974). Where counsel fails to object or to request a curative charge “we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. State v. Lubesky, supra; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983).” State v. TylerBarcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985). After carefully reviewing the record, we cannot say that the prosecutor’s remarks and actions in this case were so abusive or prejudicial as to support a claim that the defendant has “clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, supra. The defendant has waived his right to raise the claim on appeal. See State v. Tyler-Barcomb, supra, 674.

III

The defendant argues finally that if his claim of prosecutorial misconduct has not been properly preserved for appeal, the failure of trial counsel to do so violated his right to effective assistance of counsel. “In order to establish ineffective assistance of counsel it is necessary for the defendant to prove that trial counsel’s performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and if it was not, that such lack of competence contributed to the defendant’s conviction.” State v. Hinckley, 198 Conn. 77, 89, 502 A.2d 388 (1985); State v. Rivera, 196 Conn. 567, 570, 494 A.2d 570 (1985). “ ‘We have repeatedly held that ineffective assistance claims are more properly pursued in a petition for a new trial or a writ of habeas corpus.’ State v. Jacobowitz, 194 Conn. 408, 413, 480 A.2d 557 (1984). ‘Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible.’ State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982); State v. Tirado, 194 Conn. 89, 93, 478 A.2d 606 (1984).” State v. Stanley, 197 Conn. 309, 313, 497 A.2d 46 (1985). On the present record, we cannot determine whether the defendant’s trial counsel was reasonably competent and, therefore, we cannot find error on this claim. See State v. Hinckley, supra, 90.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in pertinent part:
      “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       The defendant mistakenly relies on State v. Magnotti, 198 Conn. 209, 502 A.2d 404 (1985) and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), in support of his argument that there has been a colorable deprivation of a fundamental constitutional right and a fair trial. In both Evans and Magnotti it was claimed that the prosecutor improperly commented on the defendant’s failure to testify and, in so doing, directly violated the rule of Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). While the case at bar similarly involves a claim of prosecutorial misconduct, the claimed improprieties are of lesser magnitude than those in Magnotti or Evans. See State v. Magnotti, supra, 215; State v. Evans, supra, 70. On the record before us, there is simply inadequate support for a claim that the defendant clearly has been deprived of a fundamental right and a fair trial.

       Despite our decision finding no error, we express no opinion as to the appropriateness of the state’s attorney’s comments and actions in this case. We reiterate that all state’s attorneys should be circumspect in their characterization of a defendant. State v. Tyler-Barcomb, 197 Conn. 666, 674 n.4, 500 A.2d 1324 (1985).

       The defendant, of course, is not precluded from raising his ineffective assistance of counsel claim in an appropriate collateral proceeding. State v. Hinckley, 198 Conn. 77, 89, 502 A.2d 388 (1985); State v. Stanley, 197 Conn. 309, 313, 497 A.2d 46 (1985).


author: Dannehy, J.

text:
    State of Connecticut v. Paul Roma
    (12043)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued December 12, 1985
    decision released March 11, 1986

      Lauren M. Weisfeld, special public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Frank S. Maco, assistant state’s attorney, for the appellee (state).
   Dannehy, J.

A jury found the defendant guilty of felony murder in violation of General Statutes § 53a-54c. He claims on appeal that the trial court erred (1) in allowing the state’s key witness, during cross-examination, to invoke his testimonial privilege against self-incrimination, and (2) in failing to give a missing witness instruction. The defendant also claims that he was denied the effective assistance of counsel at trial. We find no error.

The facts of this case may be briefly summarized. The victims, Nicholas and Clotilde Bychowski, owned and operated a coin and gift shop in Bridgeport. On December 18, 1980, they closed their shop at approximately 6 p.m. and drove to their home in Fairfield. When they arrived the Bychowskis were accosted by three men who were armed and masked. The men shot both Nicholas and Clotilde, and stole Clotilde’s pocketbook. Clotilde died of her wounds. Nicholas, who wore a bullet proof vest and carried a handgun, was wounded only slightly and, after briefly feigning death, returned fire at the three assailants as they fled from the scene.

The state’s principal witness was Paul DiBartolomeo, an accessory and immunized coconspirator in the crime. DiBartolomeo testified that he, the defendant, Tevic Sevri and Michael Fiore had planned the Bychowski robbery in DiBartolomeo’s apartment earlier that afternoon. In preparation for the robbery, Sevri had armed himself with a Remington .12 gauge shotgun, and the defendant, a .357 Magnum revolver. As Fiore did not have a weapon of his own, DiBartolomeo contacted a friend, Raul Bourgeois, from whom he borrowed a .22 calibre pistol. He lent this pistol to Fiore for use in the robbery. DiBartolomeo also provided ski masks to Fiore and Sevri. Geraldine Savino, who shared the apartment with DiBartolomeo, gave the defendant a stocking with which to cover his face during the robbery.

DiBartolomeo, Savino, the defendant, Sevri and Fiore then drove in DiBartolomeo’s automobile to the Bychowski residence, arriving shortly before the Bychowskis returned home from work. The defendant, Sevri and Fiore got out of the car, taking their weapons and masks with them, after which DiBartolomeo drove to a nearby pre-arranged location where he parked and awaited their return. After approximately ten minutes DiBartolomeo heard a volley of shots being fired from different calibre weapons. Soon thereafter, the defendant, Sevri and Fiore came running back to the car, and related to DiBartolomeo and Savino how they had shot and robbed the Bychowskis. The group returned to DiBartolomeo’s apartment where the men sorted through the contents of Clotilde Bychowski’s pocketbook. DiBartolomeo later returned to Bourgeois the .22 calibre pistol used by Fiore, and he placed the shotgun used by Sevri and the .357 Magnum used by the defendant into a cardboard box which he sealed and hid.

Approximately nine days later, on December 27,1980, DiBartolomeo was arrested on unrelated charges, and for personal consideration, discussed more fully below, he agreed to cooperate with the state. DiBartolomeo led police to the cardboard box with the shotgun and the .357 Magnum. With information supplied by DiBartolomeo, the police obtained a search warrant for Bourgeois’ home, where they seized the .22 calibre pistol used by Fiore. Subsequent ballistics examinations confirmed that the bullet portions removed from the deceased victim’s body had been fired from the .357 Magnum revolver used by the defendant, that two shotgun shells found at the Bychowski residence had been fired from the shotgun used by Sevri, that two flattened buckshot pellets removed from the victim’s body were consistent with the type of buckshot fired from the recovered shotgun shells, and that the .22 calibre bullets recovered from the person of Nicholas Bychowski were fired from the pistol used by Fiore.

I

We first address the defendant’s claim that he was denied his sixth amendment right of confrontation when the trial court, on two separate instances during cross-examination, allowed DiBartolomeo to assert his fifth amendment privilege against self-incrimination. Although trial counsel did not properly object and take exception to these rulings, we will consider the defendant’s claims under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because they involve the colorable deprivation of a fundamental constitutional right. State v. Lubesky, 195 Conn. 475, 481, 488 A.2d 1239 (1985); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).

DiBartolomeo testified extensively about the events of December 18, 1980, and in exchange for this testimony DiBartolomeo was granted immunity from prosecution for all crimes stemming from his participation in the Bychowski robbery and murder. As part of the agreement, DiBartolomeo was promised a reduced sentence of thirteen and one-half years to life on an unrelated murder conviction. DiBartolomeo’s murder conviction, along with several other felony convictions, was admitted into evidence before the jury. It was also brought out on cross-examination that DiBartolomeo had testified for the state in the separate trials of Sevri and Fiore.

The trial court, expressly acknowledging the importance of DiBartolomeo’s direct testimony, allowed an extremely wide latitude on cross-examination, and defense counsel took full advantage of it. Defense counsel had at his disposal various statements given by DiBartolomeo to both Bridgeport and Fairfield police, including a tape-recorded interrogation session, as well as transcripts of prior testimony given by DiBartolomeo at the trials of Sevri and Fiore. Throughout his lengthy and comprehensive cross-examination, defense counsel used these materials to expose numerous omissions and inconsistencies of varying significance in DiBartolomeo’s testimony given at the defendant’s trial. Defense counsel was allowed to use a tape recorder during cross-examination, and DiBartolomeo frequently was asked to refresh his recollection by listening to his prior recorded statements with regard to matters about which he testified.

As may be expected, some of DiBartolomeo’s prior statements to police did not directly relate to the Bychowski incident. Defense counsel nonetheless had access to these statements, and generally was allowed to cross-examine DiBartolomeo about them, even where the inquiry concerned matters of arguable relevance. One such inquiry concerned DiBartolomeo’s former “street business” and his possible association with Frank Piccolo, a reputed underworld figure in the Bridgeport area. This matter was pursued briefly in the presence of the jury. When defense counsel asked DiBartolomeo to explain what his “street business” was, DiBartolomeo asserted his fifth amendment privilege against self-incrimination, and the trial court sustained the privilege. The issue which we must decide is whether the defendant was denied his sixth amendment right of confrontation when the trial court sustained DiBartolomeo’s refusal to state the nature of his “street business.”

“The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).” State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985). The sixth amendment right of a criminal defendant to confront the witnesses against him may at times conflict with the competing fifth amendment right of a witness not to incriminate himself by his answers to questions posed on cross-examination. Where the witness, without asserting the privilege, has already testified, on direct examination, to the incriminating matters sought to be explored on cross, he may be found to have waived his right not to disclose further the relevant details necessary to test the truth or accuracy of what he has already revealed. Klein v. Harris, 667 F.2d 274, 287-88 (2d Cir. 1981); State v. Altrui, 188 Conn. 161, 172, 448 A.2d 837 (1982); see Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344, reh. denied, 341 U.S. 912, 71 S. Ct. 619, 95 L. Ed. 1348 (1951); McCormick, Evidence (3d Ed. 1984) § 140. A witness likewise may not rightfully refuse to answer questions when he is “protected at least against the use of his compelled answers and any evidence derived therefrom in any subsequent criminal case in which he is a defendant.” Garner v. United States, 424 U.S. 648, 653, 96 S. Ct. 1178, 47 L. Ed. 2d 370 (1976); Kastigar v. United States, 406 U.S. 441, 444, 92 S. Ct. 1653, 32 L. Ed. 2d 212, reh. denied, 408 U.S. 931, 92 S. Ct. 2478, 33 L. Ed. 2d 345 (1972); State v. Biller, 190 Conn. 594, 600-605, 462 A.2d 987 (1983).

In the present case it cannot seriously be maintained that DiBartolomeo waived the privilege with respect to his possible association with Frank Piccolo, or his “street business,” when he testified on direct examination as to the events surrounding the Bychowski crimes. As we have stated, cross-examination into the subject matter of DiBartolomeo’s direct testimony was extensive and complete. The matter of DiBartolomeo’s “street business” was initiated by defense counsel as he cross-examined DiBartolomeo on the details of his earlier statements given to police. Since DiBartolomeo’s grant of immunity extended only to crimes arising from the Bychowski incident, the trial court properly sustained DiBartolomeo’s refusal to testify as to the nature of his “street business.”

The fact that the trial court properly sustained DiBartolomeo’s fifth amendment privilege concerning his “street business” does not resolve the sixth amendment question, because whether a witness’ assertion of his fifth amendment privilege was proper or not makes little ultimate difference to a defendant who has thereby been denied his right of confrontation. “If a defendant’s cross-examination is restricted by the competing fifth amendment right of a witness, it may be necessary to strike the direct testimony of that witness.” Dunbar v. Harris, 612 F.2d 690, 692 (2d Cir. 1979); State v. Altrui, supra, 170. In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. State v. Denby, 198 Conn. 23, 32-33, 501 A.2d 1206 (1985); State v. George, 194 Conn. 361, 365-66, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Asherman, 193 Conn. 695, 721, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1984). The denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause. State v. Ortiz, 198 Conn. 220, 226, 502 A.2d 400 (1985); State v. Milum, supra, 609.

The purpose of the inquiry into DiBartolomeo’s “street business” was to impeach his credibility by evidence of specific instances of misconduct. Such inquiry is permissible during cross-examination when the particular acts of misconduct indicate lack of veracity. “It does not follow, however, that if the acts inquired about are indicative of a lack of veracity, the court must permit the cross-examination. Whether to permit it lies largely within the court’s discretion.” Vogel v. Sylvester, 148 Conn. 666, 676, 174 A.2d 122 (1961); Shailer v. Bullock, 78 Conn. 65, 70, 61 A. 65 (1905); State v. Ferguson, 71 Conn. 227, 232, 41 A. 769 (1898). DiBartolomeo’s “street business” was collateral to the subjects of his direct testimony, and whatever its relevance to his credibility as a witness, the issue of credibility was adequately covered by the introduction into evidence of DiBartolomeo’s lengthy felony record, which included a recent conviction for murder. In the presence of the jury, DiBartolomeo admitted that initially he had denied his own involvement in the Bychowski incident, and had falsely implicated certain named individuals other than the defendant, Fiore and Sevri. He also admitted that his testimony was given in exchange for a reduced sentence on a murder conviction. The defendant does not claim on appeal that his cross-examination of DiBartolomeo was other than complete and unrestricted insofar as it concerned the details of the Bychowski robbery and murder, DiBartolomeo’s prior statements and testimony, and DiBartolomeo’s potential motives to commit perjury. “The extreme sanction of striking the testimony of a witness should be resorted to only where the invocation of the privilege blocks inquiry into matters directly relating to the crime charged and not those which are merely collateral, such as the subjects of the cross-examination for credibility in this case.” State v. Valeriano, 191 Conn. 659, 666-67, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984); United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980); McCormick, supra, § 19 n.14. “Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness’ testimony may be used against him.” United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822, 84 S. Ct. 60, 11 L. Ed. 2d 55 (1963); see, generally, Dunbar v. Harris, supra, and cases cited therein. We find that the defendant was not denied his sixth amendment right of confrontation by DiBartolomeo’s refusal to divulge the nature of his street business.

The defendant also claims that he was denied his right of confrontation in connection with a second instance where DiBartolomeo was allowed to claim his fifth amendment privilege while testifying. We address this claim only briefly because what we have said thus far applies with even greater force to the following circumstances. After the state had rested its case, the defendant called Gary White, then an inmate at the Massachusetts state prison in Walpole, as a witness. White first met DiBartolomeo in the late summer of 1981 while they were both confined inside the Mont-ville correctional center. According to White, it was common knowledge within the correctional center that DiBartolomeo was confined on suspicion of having committed two murders in the Bridgeport area. White testified that DiBartolomeo had told him that he intended to arrange a deal with the prosecutor by falsely implicating unnamed individuals—referred to as “punks” by DiBartolomeo—in the crimes with which DiBartolomeo was charged.

The state then called DiBartolomeo back to the stand in rebuttal. DiBartolomeo denied making the statements testified to by White, and claimed that he would not have discussed his cases with White under any circumstances because White was known among the inmates in the Montville jail as a paid police informant. DiBartolomeo testified that he and White, while confined, had been in direct competition with each other in supplying drugs to the inmates at the correctional center, and that whatever White “was capable of doing ... I was able to do better.” On cross-examination, defense counsel sought to explore the details of DiBartolomeo’s involvement in drug trafficking within the correctional center. DiBartolomeo admitted his involvement generally, but claimed the fifth amendment privilege with respect to the specifics.

By this time, the focus of the trial had taken a radical turn from the events of December 18,1980. White had been called to show bias and improper motivation on the part of DiBartolomeo, and DiBartolomeo had been recalled to the stand to show bias and improper motivation on the part of White. The result was a rather extensive testimonial vignette on the inner workings and social conditions at the Montville correctional center. These matters were highly collateral to the crimes with which the defendant was charged. The trial court evidently believed that this testimony was necessary to test the credibility of the state’s key witness, a matter within the court’s discretion. The trial court did not abuse this discretion by curtailing further inquiry into the details of DiBartolomeo’s narcotics activities in the Montville correctional center, and the defendant was not denied his sixth amendment right of confrontation.

II

We next address the defendant’s claim that the trial court erroneously refused to instruct the jury to draw a negative inference from the state’s failure to call Fiore as a witness. State v. Williams, 195 Conn. 1, 14, 485 A.2d 570 (1985); Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). To be entitled to such an instruction the defendant was required to show both that Fiore was available and that he was a witness whom the state would naturally have produced. State v. Hart, 198 Conn. 424, 428, 503 A.2d 588 (1986); State v. Alfonso, 195 Conn. 624, 631, 490 A.2d 75 (1985).

Fiore and Sevri were tried separately prior to the commencement of the defendant’s trial. Fiore, in the middle of his own trial, pleaded guilty to felony murder and was promised a reduced sentence in exchange for his testimony against Sevri and the defendant. Fiore fulfilled his bargain in part by testifying for the state at Sevri’s trial. Sevri was nonetheless acquitted by the jury. In the instant matter Fiore, before being called as a witness, informed the state and the defendant that he was recanting his previous version of the incident and his previous testimony under oath, and would no longer implicate the defendant as one of the participants in the Bychowski robbery. In separate interviews with both the state’s attorney and defense counsel, Fiore clearly stated his position. Thereafter, neither party called him as a witness.

Under these circumstances, we do not believe that Fiore was a witness the state would naturally be expected to call. If the state had called Fiore to the stand, merely for the purpose of impeaching him with his prior testimony given at Sevri’s trial, the defendant could now be arguing that the state had improperly impeached its own witness. State v. Mitchell, 169 Conn. 161, 164-65, 362 A.2d 808 (1975). It is neither natural nor logical to expect the state to call a witness who has expressed a clear intention not to testify in its favor. The trial court properly refused the defendant’s request for an adverse inference instruction on the basis of the state’s failure to call Fiore as a witness.

III

The defendant also claims that he was denied effective assistance of counsel at trial. He acknowledges that his claim of ineffective assistance “is more properly pursued on a motion for a new trial or on a petition for a writ of habeas corpus rather than on direct appeal”; State v. Lubesky, 195 Conn. 475, 485, 488 A.2d 1239 (1985); but brings this claim now to “protect against the charge of deliberate bypass of the appeal process.” The defendant is so protected and may pursue his claim of ineffective assistance of counsel in the proper forum. See State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480 (1986). On the record before us there is no error.

There is no error.

In this opinion the other judges concurred.

       DiBartolomeo testified that the main reason White had testified was that there was an “open contract” on White’s life because he had acted as a police informant and had testified for the prosecution against “a numerous amount of people.” The only way to remove the contract, according to DiBartolomeo, was for White to redeem himself by testifying against the state. DiBartolomeo stated that there was a contract on his life as well, due to his testimony in the present matter. He explained that once an inmate earns a reputation as a “snitch,” that reputation follows him from one institution to another.


author: Callahan, J. Arthur H. Healey, J.,

text:
    State of Connecticut v. Kent K. Huey
    (12536)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued December 10, 1985
    decision released March 11, 1986

      JoetteKatz, public defender, with whom, on the brief, was Jon C. Blue, assistant public defender, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were Dennis A. Santore, state’s attorney, and Lawrence J. Tytla, deputy assistant state’s attorney, for the appellee (state).
   Callahan, J.

This is an appeal, after certification, from a judgment of the Appellate Court affirming a sentence of imprisonment imposed by the trial court after a plea of guilty. In his appeal to the Appellate Court, the defendant raised several claims of error related to his sentencing. The Appellate Court unanimously affirmed the judgment of the trial court but was not unanimous in its reasoning concerning one issue and Judge Dupont filed a separate opinion concurring in the result only. We granted certification to review the decision of the Appellate Court as to that one issue. That issue is: When imposing sentence for the crime of sexual assault in the third degree, did the sentencing judge improperly consider the defendant’s denial that sexual intercourse, i.e. penetration, had occurred and thereby deprive the defendant of due process of law?

The opinion of the Appellate Court fully describes both the underlying facts and the procedural history of this case. State v. Huey, 1 Conn. App. 724, 476 A.2d 613 (1984). Briefly, the defendant was originally charged with burglary in the first degree and sexual assault in the first degree as a result of his knife point sexual assault of a neighbor on April 11, 1979, after he had surreptitiously entered her apartment. After lengthy negotiations the defendant entered a plea of guilty to a substitute information charging him with sexual assault in the third degree, a class D felony. Sexual intercourse, i.e., penetration, is not an element of the crime of sexual assault in the third degree. General Statutes § 53a-65 (3). The trial court imposed a sentence of imprisonment of not less than two nor more than four years, a sentence within the statutory limits and less than the maximum. General Statutes (Rev. to 1979) § 53a-35 (b) (4) and (c) (2).

During the sentencing procedure, the state, in its presentation, told the court that if there had been a trial the victim would have testified that penetration had occurred. In response to a question by the court, the defendant denied penetration. The sentencing judge, Borden, J., then informed the defendant that he had read defense counsel’s sentencing memorandum and the probation department’s presentence report. This material contained information indicating that sexual intercourse had occurred and that penetration had in fact taken place. The judge then asked the defendant for his version of the incident. In response, the defendant admitted the sexual assault on the victim, but again denied that there had been penetration. In his remarks prior to sentencing, the judge said that it was very difficult in view of the circumstances “to accept the defendant’s version that there was no sexual intercourse here” and that the defendant’s “unwillingness or inability to admit [it] to himself or yourself . . . undercuts in my mind a truly rehabilitative effort.”

We must therefore decide whether the Appellate Court was correct when it affirmed the sentence of the trial court. The majority opinion of the Appellate Court found the sentence was not improper and identified the issue to be essentially a claim that the sentence was excessive and determined that that claim belonged before the sentence review division. State v. Huey, supra, 735. The minority opinion found the sentence warranted under the circumstances and concurred in the result. State v. Huey, supra, 740. Judge Dupont reasoned, however, that as a matter of due process the trial court, when sentencing, should not have considered the defendant’s denial of an element of a crime with which he was no longer charged and to which he had not pleaded guilty. State v. Huey, supra, 736. On an appeal, after certification from the decision of the Appellate Court, “the focus of our review is not the action of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo.” State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985). We need only consider those issues which have been raised by the petition for certification. In the present case, therefore, we must determine whether, at sentencing, the trial court, by considering the defendant’s denial of penetration as indicative of a lack of potential for rehabilitation, violated the defendant’s right to due process.

As the Appellate Court recognized, if a sentence is within statutory limits it is not generally subject to modification by a reviewing court. United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985); State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982). “A sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial.” United States v. Sweig, 454 F.2d 181, 183-84 (2d Cir. 1972). “Of necessity much of the information garnered by the probation officer will be hearsay. . . .” United States v. Doyle, 348 F.2d 715, 721 (2d Cir.), cert. denied, 382 U.S. 843, 86 S. Ct. 89, 15 L. Ed. 2d 84 (1965); General Statutes § 54-91a (c). To arrive at a just sentence, a sentencing judge may consider information that would be inadmissible for the purpose of determining guilt; United States v. Baylin, 696 F.2d 1030, 1039 (3d Cir. 1982); evidence of crimes for which the defendant was indicted but neither tried nor convicted; United States v. Bowdach, 561 F.2d 1160, 1175 (5th Cir. 1977); evidence bearing on charges for which the defendant was acquitted; United States v. Sweig, supra, 184; and evidence of counts of an indictment which has been dismissed by the government. United States v. Marines, 535 F.2d 552, 554 (10th Cir. 1976). “[A] dismissed indictment and the charge contained in it are within the kind of information which a court may properly consider in passing sentence. The plea bargain and the indictment dismissal resulting from it did not and, indeed could not, deprive the judge of the right and probably the duty of giving consideration to it.” United States v. Majors, 490 F.2d 1321, 1324 (10th Cir. 1974). The trial court in imposing a sentence is not limited to a consideration of the count to which the defendant pleaded guilty. “The narrowing of the indictment to a single count limits the maximum punishment the court can impose but not the scope of the court’s consideration within the maximum.” United States v. Doyle, supra.

“Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information. . . .” United States v. Robelo, 596 F.2d 868, 870 (9th Cir. 1979). Consistent with due process the trial court may consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person’s life and circumstance. Williams v. Oklahoma, 358 U.S. 576, 584, 79 S. Ct. 421, 3 L. Ed. 2d 516 (1959). It is a fundamental sentencing principle that a sentencing judge may “appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). The trial court’s discretion, however, is not completely unfettered. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability. United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982). As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion. See United States v. Campbell, 684 F.2d 141, 154 (D.C. Cir. 1982); United States v. Robelo, supra.

To hold otherwise would be to adopt an unrealistic view of both the plea bargaining and sentencing processes, a view that would only deter judges from articulating their reasons for a particular sentence fully and prevent correction when the sentencing judge relied on information which was truly unreliable, inaccurate or patently wrong. Trial judges ought not be reprimanded for acknowledging on the record the impact of information they have gained in the plea bargaining or sentencing processes unless the use of such information confounds reason and a just result. See United States v. Campbell, supra. “Accordingly, when cases of this nature are heard on appeal, we should review the record to ensure that there is a persuasive basis for the conclusion reached by the sentencing court.” United States v. Campbell, supra. There is no simple formula for determining what information considered by a sentencing judge is sufficiently reliable to meet the requirements of due process. The question must be answered on a case by case basis. United States v. Lemon, 723 F.2d 922, 935 (D.C. Cir. 1983). Persuasive, reliable information in the record in this case including the statement of the victim, a married woman with two children, who said there was penetration, and circumstances admitted by the defendant reasonably support the conclusion of the sentencing judge that sexual intercourse had occurred. The judge was therefore justified in considering the defendant’s denial in evaluating his prospects for rehabilitation, as one consideration among many, in fashioning the sentence imposed.

The Appellate Court implicitly rejected the defendant’s claim that the sentencing judge forced him to admit guilt to a crime with which he was not charged and then punished him for the assertion of his fifth amendment right against self-incrimination when he persisted in his denial of penetration. The record simply does not bear out the defendant’s claim. The defendant did not assert his fifth amendment privilege but rather, while represented by counsel, voluntarily responded to the court’s inquiries. Absent circumstances not present here, the fifth amendment right not to incriminate oneself is not self-executing and a person desirous of claiming his fifth amendment privilege must assert it in a timely fashion. Minnesota v. Murphy, 465 U.S. 420, 427, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984); Roberts v. United States, 445 U.S. 552, 559, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980); Damiano v. Gaughan, 592 F. Sup. 1222, 1226 (D. Mass. 1984). Further, the sentencing judge did not attempt to force an admission; he merely gave the defendant an opportunity to present his version of the incident. Having heard it, he did not have to believe it. United States v. Needles, 472 F.2d 652, 658 (2d Cir. 1973).

We conclude that the information available to the court, that there was penetration, had an indicium of reliability and that the Appellate Court was correct in its holding that the trial court could, in its discretion, make use of it in conjunction with the defendant’s denial in determining his prospects for rehabilitation. We conclude also that the defendant was not sentenced for the more serious crime of sexual assault in the first degree or punished for persisting in his denial of penetration. Rather, the sentencing judge, after observing him, simply factored the defendant’s denial, as an indication of his lack of readiness for rehabilitation, into that complex formula from which he labored to derive a just sentence. See United States v. Grayson, 438 U.S. 41, 55, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978). The defendant was not deprived of due process of law.

The decision of the Appellate Court is affirmed.

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

Arthur H. Healey, J.,

concurring. While I am not, on this record, persuaded by the defendant’s due process argument basically because of the mix that goes into the determination of a condign sentence for a criminal defendant, I write separately to point out the significance of a factor considered by the trial court at sentencing that concerns me.

As the majority opinion points out, the defendant was permitted to plead guilty to a substitute information charging him with sexual assault in the third degree, in violation of General Statutes § 53a-72a (1). Penetration is not an element of the crime to which he pleaded guilty. For that matter, sexual intercourse, as defined in General Statutes § 53a-65 (2) was not an element of the crime charged in the substitute information. The sentencing judge, in his remarks prior to sentencing said that “it was very difficult for me to accept the defendant’s version that there was no sexual intercourse here” and that the defendant’s “unwillingness or inability to admit [it] to himself or yourself . . . undercuts in my mind a truly rehabilitative effort.” The record, however, also discloses that at the time the guilty plea was taken, the state noted that while the victim would testify to penetration, it would have difficulty proving that penetration occurred because no medical tests had been performed on the victim who had taken a bath immediately after the incident. It also indicates that during the canvass, while the defendant admitted all the facts of the offense as recited, he did not admit that sexual intercourse had taken place.

I have no question that the information that a sentencing judge can consider in imposing sentence is broad in scope; see, e.g., United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972); State v. Chuchelow, 128 Conn. 323, 324, 22 A.2d 780 (1941); and need not satisfy traditional evidentiary requirements. See, e.g., Williams v. Illinois, 399 U.S. 235, 243, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970); Commonwealth v. Celeste, 358 Mass. 307, 309-10, 264 N.E.2d 683 (1970). In a word, I agree that “the sentencing judge is entitled to all the help he can get.” United States v. Majors, 490 F.2d 1321, 1322 (10th Cir. 1974). A general principle concerning judicial discretion in sentencing matters involving confinement could be said to be that “the sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” ABA Standards Relating to Sentencing Alternatives and Procedures, Approved Draft § 2.2. It has also been generally recognized that four principles have been set out as goals of criminal punishment: deterrence, rehabilitation, retribution and isolation. See, e.g., Pugsley, “Retributivism: A Just Basis for Criminal Sentences,” 7 Hofstra L. Rev. 379, 381 (1979); Perlman & Stebbins, “Implementing an Equitable Sentencing System: The Uniform Law Commissioners’ Model Sentencing and Corrections Act,” 65 Va. L. Rev. 1175 (1979). Rehabilitation emerges as a significant consideration in sentencing. While the “kind and limits of punishment made by the trial judge-should be afforded high respect”; People v. Notey, 72 App. Div. 2d 279, 782, 423 N.Y.S.2d 947 (1980); I find it very difficult to agree that the “unwillingness or inability” of the defendant to admit to an element of a crime of which he is no longer charged should “undercut [in the mind of the sentencing judge] a truly rehabilitative effort.” Moreover, this element was not admitted by the defendant when he pleaded guilty to the substituted charge and the court accepted his plea to that charge. It is not the crime of sexual assault in the first degree for which the defendant must be rehabilitated but the crime to which he, in fact, pleaded guilty. One might also argue that his denial may have attenuated somewhat the offered indicium of reliability of otherwise inadmissible evidence. In addition, a defendant must be given an opportunity to explain or rebut contested factual information relied on by the sentencing court. See, e.g., United States v. Collins Spencer Catch the Bear, 727 F.2d 759, 761 (8th Cir. 1984); United States v. Papajohn, 701 F.2d 760, 763 (8th Cir. 1983); United States v. Ray, 683 F.2d 1116, 1120 (7th Cir. 1982); Farrow v. United States, 580 F.2d 1339, 1360 (9th Cir. 1978). This defendant simply would not admit to a critical circumstance that was vital to the crime originally charged and withdrawn, which circumstance was not vital to the substituted crime to which he pleaded guilty and to which the court accepted his plea.

There is absolutely no question that “ ‘[sentencing should not be a game in which a wrong move by the judge means immunity for the prisoner.’ ” State v. Langley, 156 Conn. 598, 602, 244 A.2d 366, cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1968), quoting King v. United States, 98 F.2d 291, 296 (D.C. Cir. 1938). Where society through its criminal processes has decided that justice would be served by a plea to a lower charge, I submit that society is dis-served by positing as negatively rehabilitative the “unwillingness or inability” of the defendant to admit to an element of a crime which society has decided not to press against him. Because I cannot fairly read the record to establish that the imposition of sentence by the trial court was based solely on the “unwillingness or inability” of the defendant to admit an element of an uncharged crime, I therefore concur in the result. Moreover, the sentence as imposed was within the statutory limits. See State v. Williams, 173 Conn. 545, 558, 378 A.2d 588 (1977).

I concur in the result.

       “[General Statutes (Rev. to 1979)] Sec. 53a-70. sexual assault in the first degree: class b felony, (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
      “(b) Sexual assault in the first degree is a class B felony.”

       “[General Statutes (Rev. to 1979)] Sec. 53a-72a. sexual assault in the third degree: class d felony, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with another person whom such person knows to be related to such person within any of the degrees of kindred specified in section 46b-21.
      “(b) Sexual assault in the third degree is a class D felony.”

       General Statutes (Rev. to 1979) § 53a-65 provides in pertinent part: “definitions. As used in this part, the following terms have the following meanings:
      “(1) ‘Actor’ means a person accused of sexual assault.
      “(2) ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. Its meaning is limited to persons not married to each other.

        “(3) ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor.”

       General Statutes (Rev. to 1979) § 53a-35 provides as follows: “Sec. 53a-35. IMPRISONMENT FOR FELONY: INTERDETERMINATE; MAXIMUM AND minimum sentences, (a) A sentence of imprisonment for a felony shall be an indeterminate sentence, except as provided in subsection (d). When such a sentence is imposed, the court shall impose a maximum term in accordance with the provisions of subsection (b) and the minimum term shall be as provided in subsection (c) or (d).
      “(b) The maximum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows: (1) For a class A felony, life imprisonment; (2) for a class B felony, a term not to exceed twenty years; (3) for a class C felony, a term not to exceed ten years; (4) for a class D felony, a term not to exceed five years; (5) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime; and (6) for a capital felony, life imprisonment unless a sentence of death is imposed in accordance with section 53a-46a.
      “(c) Except as provided in subsection (d) the minimum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows: (1) For a class A felony, the minimum term shall not be less than ten nor more than twenty-five years; (2) for a class B, C or D felony the court may fix a minimum term of not less than one year nor more than one-half of the maximum term imposed, except that (A) where the maximum is less than three years the minimum term may be more than one-half the maximum term imposed or (B) when a person is found guilty under section 53a-59 (a) (1), section 53a-59a, 53a-101 (a) (1) or 53a-134 (a) (2), the minimum term shall be not less than five years and such sentence shall not be suspended or reduced ... (3) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime. ...”

       The state withdrew the original information and in its stead filed a substitute information charging the defendant with a crime two degrees lower in severity.