author: Callahan, J.

text:
    State of Connecticut v. Kenneth Burak
    (12351)
    Peters, C. J., Healey, Dannehy, Callahan and Hammer, Js.

      Argued October 1
    decision released December 9, 1986

      Jon L. Schoenhorn, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom were Herbert Carlson and John M. Massameno, assistant state’s attorneys, and, on the brief, JohnM.

      Bailey, state’s attorney, and Mary Glassman, law student intern, for the appellee (state).
   Callahan, J.

A jury convicted the defendant of the crimes of murder and kidnapping in the first degree in violation of General Statutes §§ 53a-54 (a) and 53a-92 (a) (2) (A) respectively. He received an effective sentence of fifty years to life. On appeal, the defendant asserts that the trial court erred in (1) restricting his cross-examination of the state’s witness Gary Zapor concerning Zapor’s psychiatric records and any possible plea bargains Zapor may have entered into with the state, thereby violating the defendant’s state and federal constitutional rights of confrontation, and (2) admitting prejudicial evidence concerning the defendant’s flight prior to his arrest and his escape subsequent to his arrest. We find no error.

The jury reasonably could have found the following facts. In August, 1979, the defendant attempted to enlist the victim, Arthur Labier, to “set up” one Russell Garuti. The defendant apparently felt that Garuti had turned him in for a crime which led to the defendant’s serving five years in the Connecticut Correctional Institution, Somers. Labier failed, however, to “set up” Garuti for the defendant and consequently incurred the defendant’s enmity.

In the early evening of August 30,1979, the defendant picked up Gary Zapor at work. Zapor lived with the defendant in New Britain. Thereafter, they picked up Zapor’s girlfriend at work, and went to the defendant’s residence. Zapor and his girlfriend left the residence at approximately 9 p.m. to have dinner. After dinner Zapor drove his girlfriend to her home and went to a bar where he encountered Labier and another youth outside. Labier agreed to accompany Zapor to the defendant’s residence to “straighten things out” with the defendant. Upon arriving, the victim was struck in the face by both the defendant and Zapor. The victim then agreed to take the defendant to Garuti, but instead broke free and fled. The defendant and Zapor chased Labier and subdued him. They then brought him back to the house, tied him to a chair, and proceeded to beat him with a sharp object.

According to Zapor, over the next several hours the defendant subjected the victim to beatings with a hammer, injections referred to as “hot shots” consisting of brake fluid, cleaning solution and dirty water, and jabs from sharp instruments. Zapor, although initially present and a participant in most of the beatings of the victim, left the residence for a portion of the time. When he returned, he observed the defendant still beating the victim and refusing to let him go. Finally, the defendant delivered a fatal stab wound to the victim’s chest. Other facts will be discussed as they become relevant.

I

The defendant’s first claim of error is that his state and federal constitutional rights to confront and cross-examine adverse witnesses were violated when the trial court (1) denied the defendant access to Zapor’s psychiatric records, and (2) refused to permit inquiry concerning Zapor’s possible plea bargain with the state. We disagree.

We will first address the claim concerning the trial court’s denial of access to Zapor’s psychiatric records. Zapor was a key witness in the state’s case against the defendant. The defendant subpoenaed a copy of Zapor’s psychiatric records and first raised the issue of their admissibility during a voir dire on Zapor’s competency to testify. In the absence of the jury, Zapor testified that in 1974 or 1975 he had been found incompetent to stand trial on charges of sexual assault and kidnapping and as a result had been institutionalized pursuant to a court order. Approximately one and one-half months after having been institutionalized, he was found competent to stand trial. Thereafter, the charges against him were nolled. Zapor also testified that he had received private psychiatric care sometime during 1973 or 1974. The court reserved decision on the admissibility of the psychiatric records and found Zapor competent to testify. It indicated, however, that the defendant could test the degree of Zapor’s competency during cross-examination. The defendant then sought access to Zapor’s psychiatric records on two separate occasions during the trial for use on cross-examination.

The defendant argued at trial and now argues on appeal that, because Zapor’s hospitalization came as a result of a court order, the records were exempt from the psychiatrist-patient privilege pursuant to General Statutes § 52-146f (4) (formerly General Statutes § 52-146Í [d]). He also claims that, even if we assume arguendo that the privilege is applicable, it is subordinate to the defendant’s confrontation rights.

General Statutes § 52-146f (4) provides in pertinent part: “Communications made to or records made by a psychiatrist in the course of a psychiatric examination ordered by a court . . . may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which the question of his incompetence because of mental illness is an issue, or in appropriate pretrial proceedings, provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient’s mental condition.” (Emphasis added.)

We note at the outset that the record fails to indicate whether the trial court ever made any finding that Zapor had been informed before communicating with the psychiatrist that such communications would not be confidential. Such a finding is a prerequisite to the operation of § 52-146Í (4). See Bieluch v. Bieluch, 190 Conn. 813, 817 n.2, 462 A.2d 1060 (1983). Even if such a finding is made by the trial court, the moving party must meet additional requirements before he can gain access to the contents of a court-ordered psychiatric examination, i.e., the patient must be a “party” in the action or “the question of his incompetence because of mental illness is an issue.” General Statutes § 52-146Í (4). In this case, as the trial court noted, Zapor was a state’s witness and not a “party” to the action. Cf. State v. White, 169 Conn. 223, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975). Further, the defendant did not claim at trial nor does he argue on appeal that Zapor’s incompetence because of mental illness was an “issue” in this case. See State v. Toste, 178 Conn. 626, 629, 424 A.2d 293 (1979). The defendant sought access to the psychiatric records to impeach the credibility of Zapor as a witness, not to determine his competence. The trial court had already ruled that Zapor was competent to testify and the defendant does not challenge this ruling on appeal. We conclude, therefore, that the trial court was correct in finding General Statutes § 54-146Í (4) inapplicable to this case and that Zapor’s psychiatric records were privileged.

We must then address whether the trial court’s ruling with regard to the psychiatric records precluded the defendant from conducting an effective cross-examination of the witness, in violation of his constitutional right to confront the witnesses against him. It is established that a defendant has the right to cross-examine a witness for the purpose of discrediting his testimony; Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); “[tjhis right is secured for defendants in state criminal proceedings.” State v. Esposito, 192 Conn. 166, 178, 471 A.2d 949 (1984), citing Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); see also Conn. Const., art. I, § 8. “A witness may be impeached by questions relating to credibility, including questions about mental conditions which are relevant to his ability to perceive, recollect and articulate or to his capacity for truthfulness.” State v. Bruno, 1 Conn. App. 384, 391, 473 A.2d 311 (1984), aff’d, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Piskorski, 177 Conn. 677, 736-37, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

As set forth in State v. Esposito, supra, 179-80, “[i]f, however, the claimed impeaching information is privileged there must be a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken. Upon such a showing the court may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness. If the consent is limited to an in camera inspection and such inspection, in the opinion of the trial judge, does not disclose relevant material then the resealed record is to be made available for inspection on appellate review. If the in camera inspection does reveal relevant material then the witness should be given an opportunity to decide whether to consent to release of such material to the defendant or to face having [his] testimony stricken in the event of refusal.”

We have reviewed the record and find that the defendant did not make the necessary preliminary showing that failure to produce the records was likely to impair his confrontation rights. See State v. Bruno, 197 Conn. 326, 330, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986). No showing was made that the witness had a mental problem which affected his testimonial capacity at the time of the occurrence of the events in this case or at the time of the trial. State v. Esposito, supra; State v. Piskorski, supra; cf. Taborsky v. State, 142 Conn. 619, 116 A.2d 433 (1955). The only facts revealed during the defendant’s offer of proof on this issue were that the witness had received psychiatric treatment from approximately 1974 to 1975. He was found incompetent to stand trial during this period, and declared competent shortly thereafter. This testimony did not indicate any inability on the part of the witness to recall or recount the events relating to the circumstances of Labier’s death. See State v. Esposito, supra, 180. Although no witnesses were called, the defendant was not prevented from presenting other witnesses during his offer of proof to establish a foundation that the witness’s mental unsoundness would affect his testimonial capacity. The testimony elicited from Zapor was simply insufficient to show that failure to produce his psychiatric records would impair the defendant’s confrontation rights. See State v. Simms, 201 Conn. 395, 518 A.2d 35 (1986). The defendant would apparently have us hold that the records of anyone who has ever received psychiatric treatment, for whatever purpose, are fair game for disclosure; this we decline to do.

The defendant next argues that the trial court’s ruling denying him access to any proposed or negotiated plea arrangement concerning Zapor unconstitutionally restricted his confrontation rights, and that the state’s failure to produce information concerning any such arrangements constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We find these arguments without merit.

On February 19, 1981, the defendant filed a discovery motion inquiring as to any plea agreements between the state and Zapor. The state objected to the motion indicating that it was “premature” before cross-examination and that the state would supply the information if a proposed disposition was reached. The motion was renewed at trial and denied. At trial, Zapor testified that he neither had been promised “anything by anyone in exchange for his cooperation” with the state, nor did he expect any leniency in sentencing as a result of his cooperation. Defense counsel then sought to question Zapor on whether his attorney had reached an accord with the state’s attorney concerning promises or other favorable treatment in exchange for testifying. The state and Zapor’s attorney both objected on the ground of the attorney-client privilege. The trial court sustained the objection. The defendant argues that the attorney-client privilege was erroneously applied to this line of questioning, resulting in a denial of his right to confront the witness, and his right to exculpatory information.

Initially we conclude that the trial court’s ruling on the attorney-client privilege was incorrect. “Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice. Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931); Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 12.5.” State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985). “[Statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality.” Id., citing State v. Colton, 174 Conn. 135, 138-39, 384 A.2d 343 (1977). Therefore, any communication between the witness’s attorney and the state concerning a plea agreement would not fall within the scope of the privilege. The trial court erred in excluding this testimony on the basis of the attorney-client privilege.

We must now address whether this error deprived the defendant of his constitutional right to confrontation. As we indicated earlier in this opinion, “[t]he primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959).” State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985). Although the trial court did err in excluding the question concerning Zapor’s counsel’s communications with the state, we conclude that the ruling, when examined in the context of the cross-examination of Zapor, did not rise to the level of interference with the constitutional right to confrontation. Id. Since this error is not of constitutional dimension, the defendant has the burden of establishing that the erroneous ruling of the trial court was harmful to him. See State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).

The record discloses that defense counsel cross-examined Zapor on his motive for testifying. Defense counsel inquired whether Zapor had been promised any leniency or plea arrangement in exchange for his testimony against the defendant, to which Zapor responded in the negative. Therefore, the trial court’s ruling did not unduly restrict the defendant’s ability to cross-examine Zapor concerning his motivation to testify. See State v. Rucker, 177 Conn. 370, 375, 418 A.2d 55 (1979); cf. State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979). We cannot, under the circumstances of this case, find that the court’s ruling was harmful or clearly prejudicial to the defendant. See State v. Vitale, supra, 404; State v. Shindell, 195 Conn. 128, 141, 486 A.2d 637 (1985).

The defendant also argues that the erroneous application of the attorney-client privilege to the question concerning an agreement between Zapor’s attorney and the state implicated a violation of the defendant’s right to exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We disagree.

It is established that a prosecutor has an affirmative duty to provide the defendant with exculpatory material. Brady v. Maryland, supra. General Statutes § 54-86c requires the state to reveal any information favorable to the defendant, which would include any understanding or agreements between any state’s witness and the state. See State v. Rucker, supra, 373-74. There is nothing in the record, however, that reveals the existence of any plea agreement or understanding between the state and Zapor that the state suppressed. Zapor testified at trial that he had no agreement with the state and there is no indication anywhere in the record that this was not the case. In the absence of evidence that exculpatory material was withheld from the defendant, neither the principles of Brady and its progeny, nor the defendant’s right to confront witnesses; Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); were violated. State v. Rucker, supra, 375-76 n.2.

II

The defendant next claims that the trial court erred by admitting prejudicial evidence at trial concerning the defendant’s flight prior to his arrest and his later escape. The defendant argues specifically that evidence concerning three separate subjects was improperly admitted and individually or collectively prejudiced the jury so as to deny him a fair trial: (a) the fact that the defendant’s lawyer contested extradition from South Dakota; (b) the introduction of the defendant’s statements made to law enforcement officials on the trip back to Connecticut from South Dakota; and (c) the details concerning his attempted escape from the custody of the sheriff in Hartford on June 26, 1981, and the admission of an ice pick allegedly used in the aborted attempt.

We note at the outset that it is the responsibility of the trial court to balance the probative value of the evidence against its prejudicial effect to determine its admissibility. State v. McClendon, 199 Conn. 5, 13, 505 A.2d 685 (1986). Our review is limited to whether the trial court’s rulings exceeded the latitude accorded to this exercise of judicial discretion. State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982).

A

The defendant claims that the trial court erred in admitting testimony that the defendant had contested extradition at proceedings conducted in Rapid City, South Dakota. We agree, but find the error harmless under the circumstances of this case.

We have held that a defendant’s exercise of his legal right to defend against extradition proceedings is not a proper basis for inferring that the defendant fled from the police or possessed consciousness of guilt. State v. Mayell, 163 Conn. 419, 425-26, 311 A.2d 60 (1972). In State v. Mayell, supra, the state introduced evidence that the defendant had contested his extradition for the purpose of showing a consciousness of guilt. In that case, unlike the present case, there was no other probative evidence of flight by the defendant. Id. We held, therefore, that the flight of the defendant was not a proper element to be considered by the jury. Id., 426.

In this case, there was other unchallenged testimony from which the jury could conclude that the defendant fled from Connecticut and did not return voluntarily. After the defendant left the murder scene, he stole license plates and a car, and used that car to flee to South Dakota. The defendant was captured in South Dakota, and two police officers were dispatched to South Dakota to return the defendant to Connecticut. The admission of testimony concerning the defendant’s challenge to his extradition was, therefore, merely cumulative testimony under the circumstances of this case. As the state points out, the only time this testimony was specifically linked to consciousness of guilt was during a discussion outside the jury’s presence. Moreover, the court did not refer to the defendant’s challenge to his extradition during its instruction to the jury concerning the defendant’s flight. We conclude that the defendant has failed to meet his burden of showing that he was harmed by the trial court’s eviden-tiary ruling. See State v. Vitale, supra.

B

The defendant next argues that statements made by him to New Britain police officer Zygmunt Spiewak describing his capture in South Dakota had been improperly admitted at trial. The defendant objected to the admission of this testimony, claiming that his sixth amendment right to counsel and fifth amendment right to remain silent had been violated because he had not been read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We conclude that the trial court was correct in ruling that Miranda was inapplicable to the facts of this case.

Two conditions must exist before a criminal suspect is entitled to Miranda warnings: (1) the defendant must be in the custody of law enforcement officials; and (2) the defendant must be subjected to interrogation. State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986); State v. Stankowski, 184 Conn. 121, 136, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). The state has conceded that the defendant was in custody. Therefore, the only issue in dispute is whether the defendant was subjected to interrogation when he described the details of his capture to Spiewak.

We recently indicated in State v. Vitale, supra, 411-12, that the term “interrogation” under Miranda refers both to express questioning and any words or actions on the part of the police “ ‘that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” Id., quoting Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). When a statement is not elicited as a result of interrogation, but is instead given freely and voluntarily without any compelling influence it is, of course, admissible in evidence. State v. Vitale, supra, 412.

The defendant has the initial burden of proving interrogation. Id, 409. Nothing in the record indicates that the police initiated any interrogation of or any conversation with the defendant. Spiewak testified that he had had a conversation with the defendant in which the defendant had explained how he had been captured. The defendant acknowledges, however, that the record does not “indicate who commenced the conversation.” On the basis of this evidence, we conclude that the defendant was not subjected to any words or actions of Spiewak that the officer should have known were reasonably likely to elicit incriminating responses from the defendant. State v. Stankowski, supra, 138; cf. State v. Krajger, 182 Conn. 497, 499 n.2, 438 A.2d 745 (1980).

C

Finally, the defendant argues that the trial court erred by admitting details of the defendant's escape attempt which occurred subsequent to his arrest. We disagree. The following evidence of the escape was presented by the state. On June 26,1981, while in custody, the defendant and another prisoner were being transported by a sheriff from the courthouse to the Hartford correctional facility. The sheriff testified that he felt a hand around his neck, as well as a sharp object on the side of his neck. The defendant then told the sheriff not to do anything stupid or he would be killed. The defendant used a key to uncuff himself and the other prisoner. He then told the sheriff to handcuff himself to the steering wheel and to continue driving. The sheriff continued to drive, however, he only clicked the handcuffs closed without attaching them to the steering wheel. After stopping the car in traffic, the defendant opened the door and fled. The sheriff chased after the defendant and subdued him after a struggle. During the struggle, the sheriff received blows to the head, and stab wounds to the neck and forearm from a sharpened object which resembled an ice pick.

The defendant did not object to the admission of the escape attempt itself, but he did object to the admission of the details surrounding the escape. The defendant argued that the introduction of the homemade ice pick was particularly prejudicial because of the similarity between the stabbing of the victim and the use of a sharp weapon on the sheriff. The trial court found that the jury was entitled to have before it evidence that would show the extent to which the defendant had gone to effectuate his escape. With respect to the ice pick, the court found that the weapon was relevant and material to show the defendant’s desperate measures, as reflecting his consciousness of guilt.

It is relevant to show the conduct of an accused, as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act. State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984). “ ‘The state of mind which is characterized as “guilty consciousness” or “consciousness of guilt” is strong evidence that the person is indeed guilty; 2 Wigmore, Evidence (3d Ed.) § 273; and under proper safeguards ... is admissible evidence against an accused. . . .’ ” (Citations omitted.) Id., 655-56. The court must weigh the probative value against any prejudicial effect on the defendant. Id., 656; State v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983). Certainly the details of the defendant’s escape were admissible to show the defendant’s consciousness of guilt. See State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866 (1979). Although the homemade ice pick used in the escape attempt was similar to one of the weapons used against the victim; cf. State v. Girolamo, 197 Conn. 201, 206-207, 496 A.2d 948 (1985); State v. Williams, 182 Conn. 262, 269-70, 438 A.2d 80 (1980); the jury had already heard evidence that the defendant had beaten the victim with his fists, a hammer and a stick and had stabbed him with a sharp instrument and injected him with needles. We, therefore, cannot conclude that the trial court abused its discretion when it determined that the probative value of the ice pick with respect to the defendant’s state of mind during his escape attempt outweighed any prejudicial impact on the jury.

There is no error.

In this opinion the other justices concurred.

       This right is secured under article first, § 8, of the Connecticut constitution which provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”
      The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, in which district shall have been previously ascer-tamed by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      This constitutional provision is made applicable to the states through the fourteenth amendment to the United States constitution.

       We note that there was an argument raised by the state at trial concerning the applicability of General Statutes § 54-142a, the criminal records erasure statute, to a court ordered psychiatric examination. We do not address this issue since this statute was not a basis for the trial court’s ruling.

       General Statutes § 54-86c provides: “disclosure of exculpatory information or material, (a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.
      “(b) Any state’s attorney, assistant state’s attorney or deputy assistant state’s attorney may request an ex parte in camera hearing before a judge, who shall not be the same judge who presides at the hearing of the criminal case if the case is tried to the court, to determine whether any material or information is exculpatory.
      “(c) Each peace officer, as defined in subdivision (9) of section 53a-3, shall disclose in writing any exculpatory information or material which he may have with respect to any criminal investigation to the prosecutorial official in charge of such ease.”


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Richard Ostroski
    (12229)
    Peters, C. J., Healey, Dannehy, Callahan and Hendel, Js.
    Argued September 30
    decision released December 9, 1986

      Kathleen Eldergill, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Edward F. Spinella, former assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

During the night of April 11-12, 1977, a nineteen year old woman was brutally stabbed to death. Following his indictment, the defendant, Richard Ostroski, was charged with her murder in violation of General Statutes (Rev. to 1977) § 53a-54a (a) and (c). After a trial by a panel of three judges of the Superior Court, the defendant was found guilty and sentenced to a prison term of not less than twenty-five years nor more than life. On appeal from this conviction, the defendant argued that the trial court erred in denying his motion to suppress “potential testimony or other evidence that was obtained in violation of the constitution or laws of the United States or the State of Connecticut.” State v. Ostroski, 184 Conn. 455, 456, 440 A.2d 166 (1981) (Ostroski I). This court remanded the case to the trial court for further articulation on the issue of the defendant’s custody. Id. On remand, the trial court found that the defendant was not in police custody until his formal arrest following his confession. On the defendant’s appeal after remand, this court reversed the defendant’s conviction, ruling that the defendant had been in state police custody during interrogation, that such custody was without probable cause, and that the trial court had erred in admitting into evidence his confession and certain physical evidence obtained from the defendant as a result of the interrogation. State v. Ostroski, 186 Conn. 287, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982) (Ostroski II). The judgment was set aside and a new trial ordered.

After retrial, the jury, on April 19, 1983, found the defendant guilty of murder. The defendant was sentenced to a prison term of not less than twenty-five years nor more than life. The defendant has appealed.

The defendant raises four issues on appeal. He claims that the trial court erred in granting the state’s pretrial motions for nontestimonial evidence; in denying his motion to dismiss and motion to dismiss the indictment; and in denying his request to charge on the lesser included offense of manslaughter in the first degree. The defendant also claims that he was denied effective assistance of counsel. We find no error.

I

In his initial claim of error, the defendant maintains that the trial court erred in granting the state’s motions for nontestimonial evidence.

Before the defendant’s second trial, the state, pursuant to Practice Book § 776, filed nine motions for nontestimonial evidence. Three of the motions were directed toward obtaining the defendant’s palm print, three toward obtaining a blood sample, and three toward obtaining a saliva sample, from which his blood type could be determined. Although the state already had in its possession a palm print and blood sample, these samples could not be used at trial because of our ruling in Ostroski II. In these motions the state sought an untainted source for this same evidence.

Each of the three sets of motions relied, respectively, on three different affidavits filed by the state. The first affidavit contained twenty-four paragraphs and detailed all the information known by the police prior to the defendant’s illegal arrest. The second affidavit contained the twenty-four paragraphs of the first affidavit and four additional paragraphs.* **** These additional paragraphs stated that the defendant had confessed to killing the victim and had admitted the crime to his friend, Stanley Allen, who was also a prisoner at that time. The third affidavit contained the first twenty-four paragraphs, the second four paragraphs and eight additional paragraphs. In relevant part, these eight additional paragraphs in the third affidavit asserted that the defendant had been convicted of killing the victim and had written an incriminating poem in a prison newsletter. The multiple motions were filed, according to the state, in order to distinguish among three alternate bases for the requests.

The defendant objected to all nine motions. For purposes of clarity in reviewing this issue, however, and because the trial court granted all nine motions at the same time, we will treat the defendant’s claim as though made on the basis of the third and most comprehensive affidavit. We therefore do not decide the legal sufficiency of the first or second affidavit. The defendant argued that it would be improper to grant the motions in that the affidavits supporting the motions were insufficient. The defendant argued that the first twenty-four paragraphs, which referred only to information obtained prior to the defendant’s illegal arrest, failed to support a finding of probable cause and that the remainder of the affidavit, paragraphs 25 through 36, could not be considered because it relied upon information seized pursuant to the defendant’s illegal arrest and, therefore, was improperly included in the affidavit. Specifically, the defendant argued that the use of (1) the defendant’s initial confession to the police following his illegal arrest (paragraph 25), (2) the subsequent admission made to Allen (paragraph 28), (3) the fact of the defendant’s conviction in the first trial (paragraph 33), and (4) the fact that the defendant published a poem in a prison newsletter admitting his guilt (paragraph 35), to support a finding of probable cause was improper in that all of that information constituted “fruits” of the illegal arrest, and, therefore, could not be used as a basis for obtaining additional evidence.

The trial court reviewed the affidavits submitted by the state and, on the basis of the facts contained therein, found that the evidence included in the affidavits was adequate to support the motions. The court, without any articulation of the specific evidence in the affidavits upon which it was relying, ruled that the evidence included in the affidavits was sufficiently attenuated so as to be purged of the taint from the defendant’s illegal arrest. Accordingly, the court granted all nine motions, thus allowing the state to acquire the nontes-timonial evidence.

At the outset, we note that the fact that the state, at the time of its motions, had in its possession an illegally obtained palm print and a blood sample, both of which were inadmissible at trial on the basis of our decision in Ostroski II, does not preclude the state from acquiring, through an untainted source, a second palm print and blood sample. Bynum v. United States, 274 F.2d 767 (D.C. Cir. 1979). The exclusionary rule applies to suppress evidence obtained in violation of the fourth amendment to the United States constitution. Its sweep is not so broad, however, that it mandates suppression of evidence obtained independently of the illegality. Seguras. United States, 468 U.S. 796, 813-16, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984); see Bynum v. United States, supra (fingerprints obtained independently of the illegality admissible, despite suppression of illegally obtained fingerprints); Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975) (evidence of blood type admissible where blood type evidence gained from second blood sample was derived from source independent of the illegality); State v. Kelly, 718 P.2d 385, 392 (Utah 1986) (suppression properly denied where source of search warrant was independently legal and unrelated to illegal impounding of premises).

In order to acquire the nontestimonial evidence, the state must overcome two hurdles. First, because the acquisition of the palm print, the blood sample and the saliva is a search; Davis v. Mississippi, 394 U.S. 721, 724, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969) (fingerprints); Schmerber v. California, 384 U.S. 757, 766-72, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (blood); the fourth amendment requires that the state establish probable cause. Assuming this requirement is satisfied, the state must also meet the requirements of Practice Book § 776, namely, that “(1) the evidence sought may be of material aid in determining whether the defendant committed the offense charged; and (2) the evidence sought cannot practicably be obtained from other sources.” The defendant claims that the state has failed to meet the fourth amendment requirement because the affidavit supporting the state’s motions fails to support the necessary finding of probable cause. The defendant also claims that the state has failed to satisfy the requirements of § 776. We will address the defendant’s claims seriatim.

Fourth Amendment

The defendant claims that the affidavit fails to support a finding of probable cause as required by the fourth amendment. The defendant concedes that the first twenty-four paragraphs of the affidavit are untainted by the illegal arrest and can be used to support a finding of probable cause. The thrust of the defendant’s argument, however, is that the court erred in considering the information contained in paragraphs 25, 28, 33 and 35 because that information was tainted as a fruit of his illegal arrest and without this information the affidavit failed to support a finding of probable cause.

We first will address the defendant’s claim as it relates to the information contained in paragraph 25, the defendant’s confession to the state police, and paragraph 33, the fact of the defendant’s conviction in the first trial. We held in Ostroski II, supra, that the confession to the state police was illegally obtained, overturned the conviction and remanded the case for a new trial. It is clear, then, that the use of this information to support the motions was improper. The state argues that the court did not rely on this information in making its decision on the motions. The transcript of the hearing reveals that the state included this information in the affidavit for “historical purposes,” to set the averments in its motions in context, and not as a basis for its motions. Although we do not necessarily condone the state’s practice of including such evidence in its affidavit for “historical purposes,” we need not find error because that was done. Even if we were to determine that the court did consider this improper information as grounds for establishing probable cause, that alone would not be a basis for finding error in the court’s decision to grant the state’s motions. The correctness of the trial court’s decision to grant the motions does not turn upon the presence of improperly obtained evidence in the affidavit. The trial court’s decision is not erroneous, despite the presence of improperly obtained evidence in the affidavit, if the lawfully obtained evidence considered by itself is sufficient to establish probable cause. See United States v. Driver, 776 F.2d 807, 812 (9th Cir. 1985) (presence of tainted evidence in search warrant does not vitiate warrant when affidavit contains sufficient untainted information); accord United States v. Lancellotti, 761 F.2d 1363, 1365 (9th Cir. 1985); United States v. Johnson, 690 F.2d 60, 63 (3d Cir. 1982), cert. denied, 459 U.S. 1214, 103 S. Ct. 1212, 75 L. Ed. 2d 450 (1983); United States v. Mearns, 443 F. Sup. 1244, 1254 (D. Del. 1978); see also State v. Arpin, 188 Conn. 183, 190-91, 448 A.2d 1334 (1982); 1 W. LaFave & J. Israel, Criminal Procedure § 9.4.

Our inquiry then turns to whether it was appropriate for the admission to Allen and the incriminating poem to be included in the affidavit supporting the motions. If this information was properly included in the affidavit, there is no question that the trial court was correct in making the necessary finding of probable cause.

The disposition of this issue necessarily turns on the application of the “fruit of the poisonous trée” doctrine, which requires courts to exclude evidence that is the product or “fruit” of police conduct in violation of the fourth amendment. Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Under Wong Sun, the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been “ ‘come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id., 488, quoting J. Maguire, Evidence of Guilt (1959) p. 221; State v. Villafane, 171 Conn. 644, 655, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). This standard reflects a deterrence based policy, which is “[t]he core rationale consistently advanced ... for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct . . . .” Nix v. Williams, 467 U.S. 431, 442, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984);.State v. Derrico, 181 Conn. 151, 157, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

United States Supreme Court decisions subsequent to Wong Sun have focused upon the attenuation aspect; at what point does the nexus between the fourth amendment violation and the challenged evidence, i.e., the admission to Allen and the poem, become so attenuated as to dissipate the taint of the primary illegality. See, e.g., Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972); State v. Villafane, supra. The decision of the United States Supreme Court in Brown v. Illinois, supra, is instructive on the attenuation issue. In Brown, the police arrested the accused without probable cause. After the police had given him the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Brown made two in-custody inculpatory statements. The trial court refused to suppress these statements, and Brown was convicted of murder. On appeal, the Supreme Court of Illinois upheld the conviction, determining that the giving of the Miranda warnings “served to break the causal connection between the illegal arrest and . . . the statements.” People v. Brown, 56 Ill. 2d 312, 317, 307 N.E.2d 356 (1974). The United States Supreme Court reversed, holding that the Illinois court erred in adopting a per se rule that Miranda warnings, standing alone, purged the taint of an unlawful arrest and rendered postarrest statements admissible. Brown v. Illinois, supra, 603. The United States Supreme Court, however, declined to adopt a “but for” rule that would render inadmissible all statements given subsequent to an illegal arrest. Id. After stating that the Miranda warnings are an important factor to be considered, the court adopted a case-by-case approach to determine whether evidence obtained after an illegal arrest has been purged of the taint of that illegality. Id. In addition to the giving of Miranda warnings, the court in Brown v. Illinois, supra, 603-604, identified three “relevant” factors to be considered in ascertaining whether a confession is obtained by the exploitation of an illegal arrest: (1) the “temporal proximity” of the illegality and the challenged evidence; (2) “the presence of intervening circumstances”; and (3) “particularly, the purpose and flagrancy of the official misconduct.” See also State v. McLucas, 172 Conn. 542, 556, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); State v. Villafane, supra; see generally R. Pitler, “ ‘The Fruit of the Poisonous Tree’ Revisited and Shepardized,” 56 Cal. L. Rev. 579 (1968). These factors focus upon the causal relationship between the primary illegality, in this case the illegal arrest, and the evidence allegedly derived from this illegal conduct, and the actual purpose and flagrancy of the police conduct. See generally 1 W. LaFave & J. Israel, supra, § 9.4.

The defendant claims the admission to Allen is a fruit of the illegal arrest. We disagree. Although we recognize that “but for” the illegal arrest the defendant might not have been in a position to admit the crime to Allen, the United States Supreme Court has eschewed a “but for” rule. Wong Sun v. United States, supra, 487-88. We find the admission to Allen sufficiently attenuated from the primary illegality. The affidavit reflects significant intervening events which substantially broke the causal connection between the illegal arrest and the defendant’s admission to Allen; Taylor v. Alabama, 457 U.S. 687, 697, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982) (O’Connor, J., dissenting); Brown v. Illinois, supra, 603; see State v. Jones, 558 S.W.2d 233 (Mo. App. 1977), cert. denied, 435 U.S. 970, 98 S. Ct. 1609, 56 L. Ed. 2d 61 (1978); so as to remove the taint of the earlier fourth amendment violation. See, e.g., United States v. Martinez-Gonzalez, 686 F.2d 93, 98 (2d Cir. 1982); State v. Young, 191 Conn. 636, 651, 469 A.2d 1186 (1983). The statement to Allen did not come about by exploitation of the initial illegality but by “ ‘ “means sufficiently distinguishable to be purged of the primary taint.” ’ ” (Emphasis in original.) Segura v. United States, 468 U.S. 796, 804-805, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984), quoting Wong Sun v. United States, supra, 488. In deciding that the admission to Allen was not a “fruit of the poisonous tree,” we have applied, as we must, the factors set forth by the United States Supreme Court in Brown v. Illinois, supra, 603-604. The burden of showing admissibility, of course, rests upon the state. Id., 604. In applying the factors set out by Brown, we considered whether there were events which broke the causal connection so that the defendant’s statement to Allen was “ ‘ “sufficiently an act of free will to purge the primary taint.” ’ ” Taylor v. Alabama, supra, 690; Brown v. Illinois, supra, 602.

In this case, the illegal arrest by the state police occurred on April 17,1977, and the statement to Allen was made at 8:30 p.m. on April 19, 1977. Approximately thirty-six hours passed between the illegal arrest and the statement to Allen. During this period of time, the defendant was not only given his Miranda warnings, but, at 9 a.m., April 18, 1977, he was also presented before a Superior Court judge who advised him of his rights, and counsel was appointed to represent him. Moreover, and perhaps most important, the defendant’s voluntary conduct in admitting the killing to his friend was not the product of police exploitation of any prior illegality but was a totally unexpected voluntary admission by the defendant. Allen was not an agent of the police, nor is there any claim that he was. See State v. Alexander, 197 Conn. 180, 496 A.2d 486 (1985). Allen had been the defendant’s friend for a period of time prior to this episode. Under the circumstances of this case, we cannot say that the admission to Allen was “ ‘come at by exploitation of [the] illegality.’ ” Wong Sun v. United States, supra, 488.

The final relevant factor noted by the United States Supreme Court in Brown v. Illinois, supra, is the purpose and flagrancy of the official misconduct. This factor effectuates the deterrence policy of the exclusionary rule by providing an incentive for police to engage in lawful conduct. In this case, the illegality was not flagrant. This is shown, at least in part, by the three judge panel’s finding of a legal arrest. Certainly the purpose of his continued detention was not to give the police the opportunity to have him make the challenged statement to Allen to whom no police connection is claimed. Nor was the purpose of the illegality to acquire a totally unexpected, voluntary admission by the defendant to his friend Allen.

Accordingly, a weighing of the above factors leads us to conclude that the admission to Allen was sufficiently attenuated from the illegal arrest so as not to conflict with the principal goal of the exclusionary rule—the deterrence of future police misconduct. In this situation, there was no exploitation of any prior illegal police conduct but rather a reliance by the state, among other circumstances, on a voluntary admission by the defendant to a friend who was not a police agent. The admission to Allen was properly included in the affidavit.

Similarly, we find the poem written by the defendant to have been sufficiently attenuated from the initial illegality. In reaching this conclusion, we have reviewed the circumstances surrounding the source of this poem and how it came into the state’s possession. At the time of the defendant’s 1983 trial, Dennis Coyle had been a state trooper for about four years and prior to that time had served as a correctional officer at the Hartford correctional center from December, 1976, to January, 1979. As a correctional officer, he met the defendant at the Hartford jail and saw him “pretty much on a daily basis” and “spoke with him on occasions,” although it was not a “friendship per se.” At that time, there was a weekly publication put out by the inmates that contained such information as sports, news, puzzles, etc. In the November 10, 1978 edition of that paper Coyle read a poem that the defendant had written and he was “impressed by it.” There was no signature on it, but the defendant’s name was typed on the poem. One day in November, 1978, “right after [the poem] was published,” Coyle told the defendant that he thought it was a “pretty good poem” and the defendant said, “Thanks.” Coyle took a copy home and kept it. In the summer of 1982, Coyle was attending a constitutional law seminar where the case was discussed. A couple of months before the 1983 trial at which Coyle testified, he contacted the prosecutor in this case and informed him that he had a copy of the poem. During his testimony, Coyle produced the copy he had retained as well as a copy of the jail newspaper in which the poem was printed. The latter was secured as a result of the service of a subpoena at the Hartford correctional center. The poem was admitted as an exhibit at the hearing on the nontestimonial evidence motions. The poem had been written more than a year after the defendant’s illegal arrest. Between the illegal arrest and the publication of the poem, the defendant was represented by counsel, had numerous court dates and had been fully advised of his rights prior to testifying at his first trial. Indeed, the wording of the poem itself strongly suggests that the defendant wrote the poem not because of his illegal arrest or his ensuing confession but because of his desire to educate the young on the vices of drugs. The state did not acquire the poem by exploitation of the illegal arrest, but rather, the poem was a voluntary act of the defendant wholly distinct from the illegal arrest. Inclusion of the poem in the affidavit was proper. See Brown v. Illinois, supra; State v. Villafane, supra.

Practice Book § 776

The defendant also argues that the state has failed to meet the requirements of Practice Book § 776. The defendant’s argument is three pronged. First, the defendant argues that because his arrest was without probable cause, he was not a “defendant” as that term is used in § 776 and thus, the Practice Book provision could not have been used to obtain evidence from him. Second, the defendant argues that the state has failed to establish that the evidence sought, the palm print, the blood and the saliva, could not “practicably be obtained from other sources.” Third, the defendant argues that the state has failed to establish that the evidence would be of “material aid” in determining whether the defendant committed the offense charged. We are not persuaded.

We do not agree with the defendant’s argument that § 776 could not be applied to him because his very status as a defendant was based on an illegal arrest. While the defendant’s illegal arrest resulted in the suppression at trial of evidence seized incident thereto, it did not alter the ability of the state to establish the existence of probable cause to justify holding the defendant to respond to charges against him. See State v. Fleming, 198 Conn. 255, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

The defendant’s next argument is that the state failed to demonstrate that the evidence sought could not “practicably be obtained from other sources.” The defendant argues that because the state already had in its possession the nontestimonial evidence it sought, i.e., a palm print and blood sample derived from the illegal arrest, it could “obtain” the very same evidence from another “source.” By this argument the defendant is attempting to reap the benefit of the exclusionary rule while at the same time expanding its scope to foreclose the state from obtaining like evidence through an untainted source. We recognize that once evidence is suppressed, it is no longer available to the state on the question of guilt. In Ostroski II, supra, 294-95, we held that the physical evidence seized as a result of the defendant’s unlawful arrest, inter alia, the defendant’s palm print and blood sample obtained at the time of arrest, was inadmissible in evidence. The defendant cannot now avail himself of that ruling while at the same time argue that the state is in possession of that evidence for purposes of this motion. The defendant himself is not a “suppressible fruit” and the earlier illegality cannot deprive the state of the opportunity to prove his guilt through evidence wholly untainted by prior police misconduct. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980). Because of our ruling in Ostroski II, the nontestimonial evidence sought by the state could not have been “practicably obtained from other sources.”

Little explanation is necessary to demonstrate that, under the circumstances of this case, the nontestimonial evidence was of “material aid in determining whether the defendant committed the offense charged.” We previously have stated that this requirement is “ ‘met if the prosecutor has any basis for tying the particular evidence sought to the case.’ ” (Emphasis added.) State v. Acquin, 177 Conn. 352, 354, 416 A.2d 1209 (1979), quoting Unif. R. Crim. P. 434 (a), 10 U.L.A. 156 (1974). In this case, the state had a palm print taken at the scene of the crime. The victim’s blood type was known and blood believed to be that of the assailant was found at the scene. Obtaining the defendant’s palm print and blood type, through a blood or saliva sample, in a manner untainted by the illegal arrest clearly was a “material aid in determining whether the defendant committed the offense charged.”

II

In his second claim of error, the defendant claims that the trial court should have granted his motion to dismiss and his motion to dismiss the indictment. This claim has two components: first, that his arrest was illegal because the probable cause which supported it was based in part on evidence tainted by his unlawful seizure on April 16, 1977; see Ostroski II, supra; and second, that because his arrest was illegal, the defendant’s presentment to the grand jury, the indictment, and the subsequent prosecution should have been barred. Although the state concedes that the defendant’s arrest was illegal, it contends that under both federal and state constitutional law this illegality does not affect the jurisdiction of the court, provide a ground for dismissing the indictment, or preclude trial and conviction for the offense.

The relationship between an illegal arrest and a subsequent prosecution under federal constitutional law is well settled. The federal case law is clear that an illegal arrest will not bar a subsequent prosecution or void a resulting conviction. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1036, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984); United States v. Crews, supra; Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966); Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541, reh. denied, 343 U.S. 937, 72 S. Ct. 768, 96 L. Ed. 1344 (1952); Ker v. Illinois, 119 U.S. 436, 440, 7 S. Ct. 225, 30 L. Ed. 421 (1886). Federal law, then, provides no basis for the defendant’s argument that his motions to dismiss should have been granted.

If the defendant’s claim that his illegal arrest requires dismissal of the charges against him is to be sustained, that claim must find its predicate in state law. The state contends that the defendant’s claim in this case is indistinguishable from the claim presented to this court in State v. Fleming, supra, 262-63. The defendant, on the other hand, recognizing the applicability of Fleming, claims that in Fleming we specifically distinguished State v. Federici, 179 Conn. 46, 425 A.2d 916 (1979), thus leaving open a situation where the charges would indeed be dismissed. The defendant claims that this case is parallel to Federici, thus his motions to dismiss should have been granted. We disagree.

In State v. Fleming, we overruled State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965). Licari held that an illegal arrest per se invalidates a subsequent conviction. In State v. Fleming, supra, 263, we held that “[wjhere the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction.” We specifically excluded from our holding, however, cases such as Federici where the fairness of the defendant’s trial is compromised by the circumstances of his arrest. Id., 262. In distinguishing Federici, we stated that “[a]n illegal arrest may impair the fairness of a subsequent prosecution only where evidence obtained as a direct consequence of that arrest is admitted against the defendant at trial.” State v. Ryerson, 201 Conn. 333, 338, 514 A.2d 337 (1986). State v. Federici, supra. The defendant argues that because illegally obtained evidence, the palm print, the blood sample, and the saliva sample, was introduced at his 1983 trial, Federici mandates that his motions to dismiss should have been granted.

The defendant’s reliance on the Federici exception to our holding in Fleming is misplaced. As was developed in Part I of this opinion, illegally obtained evidence was not in fact admitted at trial; that is, the blood, the saliva, and the palm print which were admitted at trial, all of which the defendant claims are “fruits” of his illegal arrest, are not fruits, in that the evidence was obtained by means “ ‘sufficiently distinguishable to be purged of the primary taint.’ ” Brown v. Illinois, supra, 599; Wong Sun v. United States, supra, 487-88; see Bynum v. United States, supra. Therefore, the factual predicate of the Federici type exception to our holding in Fleming does not exist in this case. The fairness of the defendant’s 1983 trial was not impaired by his illegal arrest. Cf. State v. Federici, supra. As we have stated, the defendant is not himself a “suppressible fruit,” and the illegality of his arrest cannot deprive the state of the opportunity to prove his guilt through introduction of evidence at trial which is untainted by the prior police misconduct. State v. Fleming, supra; see United States v. Crews, supra. The trial court did not err in denying the defendant’s motions to dismiss.

Ill

The defendant’s third claim of error is that the trial court erred in denying the defendant’s request to charge the jury on the lesser included offense of manslaughter as defined in General Statutes § 53a-55 (a) (1) and (3). The defendant timely filed his request to charge prior to closing arguments, and took an exception when the charge was not given.

“In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), this court articulated a four pronged test for determining when it is proper to charge a jury with respect to a lesser included offense. ‘A defendant is entitled to an instruction on a lesser offense if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.’ ” State v. Manley, 195 Conn. 567, 574, 489 A.2d 1024 (1985), quoting State v. Vass, 191 Conn. 604, 616-17, 469 A.2d 767 (1983); State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986).

The defendant argues that he has established all four prongs of Whistnant and thus, the trial court erred in refusing to instruct the jury with respect to the lesser included offense of manslaughter. The state, on the other hand, argues that the defendant has failed to meet even the first prong of State v. Whistnant.

“We have previously considered and rejected the claim ‘that a defendant has a fundamental constitutional right to a jury instruction on a lesser included offense.’ [State v. Whistnant, supra,] 581. The right to such an instruction is purely a matter of our common law as set forth in Whistnant itself. The first prong of Whistnant requires that the defendant request ‘an appropriate instruction.’ A proposed instruction on a lesser included offense, like any other proposed jury instruction is not appropriate unless made in compliance with Practice Book § 852.” State v. McIntosh, supra, 158. Section 852 provides in pertinent part: “Requests shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the facts supported by the evidence to which the proposition would apply. ...” (Emphasis added.)

In the present case, the defendant framed his request to charge as follows: “In accordance with State v. Whistnant, 179 Conn. 576, [427 A.2d 414 (1980),] and State v. Maselli, 182 Conn. 66, [437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981)], the defendant requests the Court to charge on the following lesser included offenses; Manslaughter in the First Degree, Sections 53a-55 (a) (1) and 53a-55 (a) (3) of the General Statutes.” A summary request such as this one does not comply with our rules of practice.

In this written request, the defendant merely asked the court to instruct the jury, in pertinent part, that it could consider the lesser offense of manslaughter in the first degree. “[A]n ‘appropriate instruction’ under State v. Whistnant must contain ‘ “a complete statement of the essential facts as would have justified the court in charging in the form requested.” Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925).’ State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984).” State v. McIntosh, supra, 160. The defendant’s request contains no facts at all. Moreover, although the request cites State v. Whistnant as authority for the proposition stated, we have emphasized in the past that Whistnant by itself does not provide the substantive principles of criminal law which would justify any particular instruction. State v. McIntosh, supra. While this court does not favor unyielding adherence to “rules of procedure where the interests of justice are thereby disserved”; id.; the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. “The minor burden of cooperation imposed by this section is neither unreasonable nor novel.” Id., 161. The trial court did not err in refusing the defendant’s request to instruct the jury on the elements of General Statutes § 53a-55 (a) (1) and (3).

IV

The defendant’s fourth claim of error is that he was denied effective assistance of counsel. In light of our holding in State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), we need not address this claim.

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1977) § 53a-54a (a) and (c) provides: “murder DEFINED. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. classification, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted 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 trader 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. . . .
      “(c) Murder is punishable as a class A felony unless it is a capital felony and the death penalty is imposed as provided by section 53a-46a.”

       General Statutes (Rev. to 1981) § 54-82 (b) provides: “If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges consisting of the judge presiding at the session and two other judges to be designated by the chief justice. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly.”

       The defendant also claims that the trial court erred in denying his motion to suppress evidence obtained pursuant to the state’s motions for nontestimonial evidence. The trial court treated and decided the state’s motions and the defendant’s motion together, apparently assuming that the state’s right to obtain evidence from the defendant and its right to use the evidence at trial were coextensive and dependent upon the same factors and analysis. To the extent that these motions require resolution of the same constitutional issues, we will do the same.

       Practice Book § 776 provides: “Upon motion of the prosecuting authority, the judicial authority by order may direct a defendant to participate in a reasonably conducted procedure to obtain nontestimonial evidence under Sec. 775, if the judicial authority finds probable cause to believe that:
      “(1) The evidence sought may be of material aid in determining whether the defendant committed the offense charged; and
      “(2) The evidence sought cannot practicably be obtained from other sources.”

       “AFFIDAVIT SUBMITTED BY EDWARD SPINELLA, ASSISTANT STATE’S ATTORNEY
      “I, Edward Spinella, swear to the following:
      “(1) On April 12, 1977 at 3:11 AM the Canton Police received a complaint from Donald Miller that his girlfriend, [the victim], was gravely injured in their apartment, A-l, 156 Main Street, Collinsville, Connecticut.
      “(2) Responding officers found at 3:13 AM on April 12, 1977 the body of [the victim] at apartment A-l. The body was clothed only with a bathrobe. The body was found, face down, in the living room. There was blood under the neck and head of [the victim], A knife with blood was found beside the body as well as a broken ceramic [statue]. A bloodied bent knife was found in the kitchen on a counter. A bloodied rag was found in the kitchen sink. A knife was found under the bloodied rag. There were drops of blood leading from the body to the kitchen sink. There were drops of blood leading from the living room to the west door of the apartment to the hall to outside of the apartment building down the walk area into the apartment parking lot.
      “(3) A latent palm print of a human was found in blood on the kitchen counter by investigating officers.
      “(4) The latent palm print, the blood from the kitchen floor, living room rug, hallway, pathway, and parking lot, samples of the victim’s blood, the knives and the bloodied rag, were taken on April 12, 1977 as evidence by the Connecticut State Police Department for testing and preservation.
      “(5) Trooper [Robert] Mills of the State Police Forensic Laboratory tested the items on April 14, 1977 and found:
      “(a) that human blood, type AB, was the ‘red substance’ found in the parking lot.
      “(b) that human blood was on the handle of the knife found beside the victim’s body and that such blood was a combination of type AB and type 0; and,
      “(c) that the victim had type 0 blood.
      “(6) Investigation on April 16,1977 at 9:00 AM revealed that the victim was seen alive in her apartment at approximately 1830 hours, April 11,1977.
      “(7) Investigation during the morning of April 16, 1977 revealed that Cynthia Rusin on April 11,1977 at 2100 hours peered through the victim’s kitchen window and ‘everything looked in order.’
      “(8) An investigating officer touched the victim’s body at approximately 3:13 AM on April [12], 1977 and the body felt warm.
      “(9) Dr. [Edward] Diters, Assistant Medical Examiner, pronounced [the victim] dead at 3:41 AM on April 12, 1977.
      “(10) Dr. Elliot Gross, then Chief Medical Examiner for the State of Connecticut, on April 15,1977 ruled [the victim’s] death to be a [homicide] and certified the cause of death as ‘Blunt force injury to head, incised wounds of neck and larynx, multiple stab wounds of chest, abdomen, left lung, stomach, spleen. External and internal hemorrhage.’
      “(11) The local and State Police upon receipt of the complaint on April 12, 1977, began a general investigation into [the victim’s] death.
      “(12) Pursuant to this general investigation, the police learned on April 12, 1977 from Jennifer and Steven Quigley that on April 8, 1977 at approximately 9:00 PM the victim answered a knock at her apartment door, that a white male with blond hair and a beard asked them to come to a party across the hall and that the victim refused.
      “(13) On April 14,1977 Jennifer and Steven Quigley were shown a photograph of Stanley Allen who lived across the hall from [the victim]. They positively identified the person depicted in the photo as not being the male seen at the apartment door on April 8,1977. However, Steven Quigley again described the unknown male to one of the officers, Lt. [John] LaDucer. Lt. LaDueer at that time thought the description fit Richard [Ostroski] of 6 Market Street, Collinsville, Connecticut.
      “(14) The address, 6 Market Street, Collinsville, Connecticut, is within one quarter mile of the scene of the [homicide].
      “(15) On April 13, 1977 as a part of the continuing investigation prints of six violent males, plus Donald Miller, who lived in the area were sent to the Connecticut State Police Laboratory for possible comparisons to latent prints found at the scene of the crime. The defendant was one of the six violent prints.
      “(16) On April 15,1977, the police contacted the defendant’s mother to determine his whereabouts. She was evasive but indicated he was out-of-state.
      “(17) On April 15,1977, a photo of the defendant was shown to Jennifer and Steven Quigley. They both positively identified him as the male who asked [the victim] on April 8, 1977 to a party across the hall.
      “(18) On April 13, 1977 Officer [Harold] Scheidel of the Canton Police Department received a complaint from Mrs. Deborah Matava that the defendant’s dog had been left alone since April 12,1977. Mrs. Matava also lived at 8 Market Street, Collinsville, Connecticut.
      “(19) On April 13, 1977 Officer Scheidel contacted Mrs. Geraldine Edwards, the defendant’s mother-in-law. He learned that she had spoken to the defendant’s wife, Beverly, on the evening of April 11,1977 and that the defendant was not home. Additionally, Mrs. Edwards said that the defendant’s mother told her that the defendant on April 12, 1977 called to say he was out-of-state.
      “(20) On April 13,1977, Mrs. Edwards said that the defendant’s mother told her that during her conversation with Beverly Ostroski on the night of April II, 1977 no mention was made to her that they, Beverly and the defendant, were going away.
      “(21) On April 16,1977 at 1100 hours Deborah Brennan told investigating officers that she and others, including Stanley Allen who lived across the hall from the victim and the defendant, had gone drinking on April 8, 1977, that they returned to Stanley Allen’s apartment on April 8, 1977, that the defendant asked the people across the hall to come to Stanley Allen’s to a party and that the defendant shortly thereafter returned and told Stanley Allen that the girl across the hall was ‘pretty foxy’.
      “(22) On April 16,1977 at 1859 hours the defendant called the barracks at Troop L. He told Trooper McDermott that he heard Captain Thomas McDonnell wanted to speak with him about a girl being killed. During this call the defendant asked Trooper McDermott if the police were looking for someone with a cut on his hand because he had a small cut on his hand which he received doing carpentry work during the week.
      “(23) Prior to April 16, 1977, the police, as part of their investigation, received a copy of the defendant’s criminal record which revealed that the defendant had at least seven convictions for public indecency between 1969 and 1976, had served time; and, had a pending assault charge.
      “(24) The evidence sought cannot be practicably obtained from other sources.” (Emphasis added.)

       These four additional paragraphs provided:
      “(25) On April 16,1977 between 9:00 and 11:30 PM the defendant confessed to killing [the victim],
      “(26) After he confessed, he was formally arrested and given his Miranda warnings. He was held at the Canton Police Department from April 17, 1977 until April 18, 1977.
      “(27) On April 18,1977 the defendant was presented at 9:00 in the Circuit Court 16 before Judge [Ottaviano]. He was formally advised of his rights after having been appointed a public defender, [Martin] Epstein.
      “(28) After his presentment, the defendant was held in lieu of bond at the Hartford Correctional Center. While there he, on April 19, 1977, at approximately 8:30 PM voluntarily told Stanley Allen, who was also under confinement, that he killed [the victim] on April 11, 1977.”

       These eight additional paragraphs provided:
      “(29) The defendant was arrested on a bench warrant for Murder on May 6, 1977.

        “(30) The defendant was appointed counsel, Michael [Conner], on May 10, 1977 in Superior Court Hartford.
      “(31) The defendant [was tried] between May 10,1977 and November 27, 1978 and October 19, 1978 before a three judge panel.
      “(32) The defendant testified at his trial. Prior to giving testimony he was advised again by the court of his rights.
      “(33) The defendant was found guilty of murder on October 19,1978 and was sentenced on November 27, 1978.
      “(34) The defendant while confined at Hartford Correctional Center awaiting trial often received psychiatric counseling.
      “(35) After his conviction and his being sentenced the defendant published a poem in a prison newsletter admitting his guilt.
      “(36) The evidence sought cannot be practicably obtained from other sources.”

       The defendant argues that in State v. Ostroski, 186 Conn. 287, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982) (Ostroski II), we decided that the defendant’s admission to Allen was a fruit of his illegal arrest. In support of this claim, the defendant points to the judge’s ruling in the second trial that the admission to Allen was an inadmissible fruit of the illegal arrest. At the hearing on nontestimonial evidence, the state argued that this court did not pass upon the admissibility of the defendant’s confession to Allen. The trial judge based.his ruling on his reading of our decision in Ostroski II. The trial ruling was incorrect. Although we admit some possible ambiguity as to the scope of the terminology used in that opinion, our careful review of the records and briefs in Ostroski II, as well as the opinion itself, leads us to conclude that the issue of whether the admission to Allen was a fruit of the illegal arrest was not decided by this court in Ostroski II.

       Contrary to the state’s claim that this issue cannot be reviewed by us because it entails the use of the transcript of the grand jury proceedings which is unauthorized; see General Statutes § 54-45a; the disposition of this issue does not entail the use of that transcript. Moreover, United States v. Mechanik, 475 U.S. 66, 106 S. Ct. 938, 89 L. Ed. 2d 50 (1986), likewise presents no effective bar to our review of this issue given the narrow holding of Mechanik in deciding a claimed violation of rule 6 (d) of the Federal Rules of Criminal Procedure.

       As the court stated in United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966): “Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.”
      In some cases, prosecution may effectively be foreclosed by the absence of the challenged evidence. But this contemplated consequence is the product of the exclusion of specific evidence tainted by the fourth amendment violation and is not the result of a complete bar to prosecution.

       In State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986), we held that our decision in State v. Fleming, 198 Conn. 255, 502 A.2d 886 (1986), is to be applied retroactively.

       General Statutes § 53a-55 (a) (1) and (3) provides: “(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person ... or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       The state also argues that the defendant has failed to meet the third and fourth prongs of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Because we hold that the defendant failed to request an appropriate instruction, we need not address these claims.