author: Peters, C. J.

text:
    State of Connecticut v. William Preyer
    (11790)
    Peters, C. J., Healey, Shea, Dannehy, and Santaniello, Js.
    Argued November 14
    decision released December 31, 1985

      Katherine C. Callahan, with whom were JoetteKatz, public defender, and Kent Drager, assistant public defender, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Carl Schuman, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this case is the propriety of an instruction to the jury that cohabitation was not a defense to the crime of sexual assault. The defendant, William Preyer, appeals from a judgment sentencing him to a term of eight years imprisonment upon his conviction, after a trial to a jury, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), of kidnapping in the second degree in violation of General Statutes § 53a-94 and of assault in the third degree in violation of General Statutes § 53a-61. We find error only in the conviction for sexual assault in the first degree.

The jury could reasonably have found the following facts. The defendant had been living with the victim in her Stamford apartment for several months when, on December 28, 1981, they had a heated argument resulting in a call to the police and, upon their intervention, a request for the defendant to leave. Although the defendant then left peaceably, the victim, afraid that he might return, spent the night and the next day at a neighbor’s apartment. That afternoon, on December 29, the victim was awaiting the visit of a friend with whom she was planning to attend a class at the YWCA. The friend arrived, unexpectedly accompanied by the defendant and his cousin. The defendant forcibly prevented the victim from telephoning the police as she had been instructed by them the previous day. After repeatedly hitting the victim, the defendant forced her to leave the apartment and to go with him to the street and there to enter a parked Toyota owned by the victim for which the defendant had a set of keys. The defendant drove the car to a secluded area of Dyke Park.

At the park, the defendant dragged the victim out of the car, threw her on the ground, punched her, pushed her into the car and threw a rock at her which hit her in the head. The defendant then pulled the victim back into the car, tore her clothes and ordered her to undress. Once the victim was completely nude, the defendant forced her to spread her legs and squeezed her vagina with a pair of pliers with resulting trauma to the victim’s genitalia. The victim was able to escape by running nude out of the park to a nearby apartment house on Elm Cross Road, where the police were called. The victim was then taken to Stamford Hospital, where she was observed to have cuts, scrapes, contusions and injuries to her genitalia.

The defendant was arrested that same evening in Dyke Park. He had himself directed the police to the Toyota, which was subsequently found to contain a bundle of female clothing, a bracelet, a pair of pliers and a rock containing a blood stain.

At the trial before the jury, the defendant expressly offered two alternate defenses, a lack of the requisite intent on his part, and consent on the part of the victim. On appeal from the judgment against him, the defendant raises three issues concerning his convictions for the crimes of sexual assault, kidnapping and assault. He claims that the trial court erred: (1) in instructing the jury that the affirmative defense of cohabitation had no bearing as a defense to the charge of sexual assault in the first degree; (2) in instructing on sexual assault under a different section of the general statutes from that with which he had been charged in the information; and (3) in restricting the defendant’s cross-examination of the victim regarding her prior sexual activities with the defendant. Because we find error on the first claim, we need not consider the second, although we will address the third.

The defendant’s first claim of error is that the trial court erred in its instruction about a defense applicable to the crime of sexual assault, under General Statutes § 53a-70, with which he was charged. By virtue of General Statutes § 53a-67 (b), cohabitation is an affirmative defense to this charge of sexual assault. Cohabitation is not a defense to a charge of sexual assault under § 53a-70b, but §§ 53a-70 and 53a-70b describe crimes that are statutorily separate and distinct.

At the trial, the defendant introduced evidence relevant to a defense of cohabitation. The victim testified that she and the defendant had begun dating in August of 1981 and that he had moved into her apartment, by mutual consent, in October of that year. The couple had lived together in that apartment from October to late December. The defendant had kept his clothes there, had been given a set of keys to the victim’s Toyota, had driven the victim to and from work on a regular basis, and had shared in the care of the victim’s son. The victim and the defendant had frequently socialized with members of the defendant’s family and with the victim’s girl friend. This evidence, as the state concedes in its brief to this court, would have been sufficient to present the cohabitation question to the jury if the defendant had requested a proper charge.

The defendant failed to request a charge on cohabitation. The trial court, after explaining the statutory requirement of proof of sexual intercourse, charged the defense of cohabitation out of the case. The court told the jury: “[Formerly if] there was a defense that was raised concerning cohabitation . . . this statute would not be applicable. [Formerly if] two persons who . . . though not married to one another were living together by mutual consent, and holding themselves out as man and wife, and they were living together as man and wife, and the relationship of this living together as man and wife included the many facets of married life, in addition to sexual relations . . . [there was an assumption] of marital rights and duties, and obligations which are usually manifested by married people including, but not necessarily dependent on, sexual relations. The legislature has, however, changed this statute. This statute is applicable to married persons or to persons who cohabitate together. Now, there is evidence of a previous relationship between the defendant and the victim in this case, and that evidence and that testimony you will give such weight, and such credibility as you believe appropriate. There was also evidence that the parties broke up on the night before this particular incident, or at least separated, and [the victim] did not return to her apartment. At any rate, the relationship between the parties beforehand, whether in your mind is equivalent of cohabitation or not, has no bearing as a defense to this particular charge. It might have a bearing with regard to questions of consent, questions of veracity, how much weight, or truth or belief you will give to it.” (Emphasis added.) The defendant took no exception to this instruction when it was given.

It is clear that the trial court’s instruction on cohabitation was incorrect. While it might have been logical for the legislature, upon enacting § 53a-70b, to amend § 53a-67 (b) to exclude cohabitation as an affirmative defense whenever there is an accusation of sexual assault in the first degree, the legislature chose not to do so. Instead, the legislature expressly limited its repeal of the cohabitation defense to those defendants who were accused of having violated § 53a-70b itself. The state concedes that the trial court’s charge was incorrect.

The issue before us is the proper resolution of the defendant’s claim that, even in the absence of a request to charge or an exception to the charge as given, the trial court’s incorrect instruction requires us to set aside the judgment against him. This claim is presented in alternate versions. The more sweeping claim urges us to hold that a trial court always has an independent obligation, as a matter of law, to charge on any theory of defense for which there is a foundation in the evidence. The narrower claim urges us to hold that a trial court, even absent such an independent obligation, having once embarked on an instruction on a theory of defense, has a duty not to misstate the statutes that govern the defense.

There is no basis, in the law of this state, for the defendant’s broad claim that a trial court has an independent obligation to instruct the jury on the affirmative defense of cohabitation if the evidence at trial would suffice to support such a charge. In the absence of a timely request or exception, failure to charge on an affirmative defense is reviewable as an exceptional circumstance within the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), only when the defendant can demonstrate that he “has clearly been deprived of a fundamental constitutional right and a fair trial,” or under Practice Book § 3063 as plain error. While the constitutional law of due process is implicated by a trial court’s failure to instruct the jury on the essential elements of the offense on which the conviction rests; Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 2d 1495 (1945); State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984); State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982); we have in the past found no constitutional infirmity in failure to charge on such defenses as entrapment; State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); extreme emotional disturbance; State v. Jacobowitz, 194 Conn. 408, 411-12, 480 A.2d 557 (1984); or alibi. State v. Parham, 174 Conn. 500, 509-11, 391 A.2d 148 (1978). Nothing in the circumstances of this case suggests that a different rule should obtain for the defense of cohabitation.

The defendant is on surer footing with his more limited claim that the trial court, having once determined to instruct the jury on cohabitation, committed plain error by misstating the effect of the governing statutes. Misinterpreting the statutes on cohabitation, the trial court in its instructions expressly and incorrectly precluded any jury consideration of this affirmative defense. It is well established that an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977); State v. Kurvin, supra, 563. Furthermore, we have held that instructions that misstate the statutory defense of self-defense unconstitutionally implicate a defendant’s due process right to establish a defense. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1983); State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982). The present case is distinguishable from the cases dealing with self-defense, because cohabitation is an affirmative defense, while lack of justification is an element of a criminal prosecution on which the state bears the burden of proof. See General Statutes § 53a-12; State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982). Nonetheless, these precedents demonstrate the seriousness with which we have viewed instructions that misinform the jury about the statutes that govern a criminal defense.

This case falls squarely within the parameters of the plain error doctrine of Practice Book § 3063. As in State v. Burke, 182 Conn. 330, 332, 438 A.2d 93 (1980), a recent legislative change led the trial court into statutory error. Having noted the recent enactment of § 53a-70b, which imposed criminal liability for sexual assault in a spousal or cohabiting relationship, the trial court overlooked § 53a-67 (b), which preserved the defense of cohabitation for sexual assault for the crime with which this defendant was charged. A charge that demonstrates that the trial court has overlooked the applicable statute justifies consideration as plain error. State v. McCall, 187 Conn. 73, 88, 444 A.2d 896 (1982); Stoni v. Wasicki, 179 Conn. 372, 377, 426 A.2d 774 (1979); Campbell v. Rockefeller, 134 Conn. 585, 588, 59 A.2d 524 (1948); Schmidt v. Manchester, 92 Conn. 551, 555, 103 A. 654 (1918); see also Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980). In the interest of justice, taking into account the importance of proper instructions on a defense for which there is an evidentiary foundation; see State v. Cassino, supra, 243; State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979); we conclude that the trial court’s charge constituted reversible error. The court’s mistaken charge on the defense of cohabitation fails to comport with the primary purpose of a charge, which is “to assist the jury in applying the law correctly to the facts which they might find established.” State v. Gabriel, supra, 419; State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979).

The trial court’s erroneous instruction on cohabitation requires us to set aside the judgment with respect to the conviction of sexual assault. Although instructional error can sometimes be determined to be harmless, the state has advanced no such argument in this case. Vacating the defendant’s conviction of sexual assault obviates discussion of the defendant’s second claim of error, that the instruction on cohabitation had the effect of an improper amendment of the information charging him with sexual assault under § 53a-70 (a). The defendant’s conviction need not, however, be set aside in its entirety. There has been neither claim nor showing that the court’s erroneous instruction on a defense to the crime of sexual assault bore any relation to the defendant’s convictions on the other counts of the information, for kidnapping in the second degree and assault in the third degree. In the absence of other error, the defendant’s conviction on these other counts must stand:

Because further proceedings on the charge of sexual assault will, however, be required, it is useful for us to consider the defendant’s third claim of error concerning alleged evidentiary error related to that count. The defendant alleges that the trial court erroneously restricted the defendant’s cross-examination of the victim regarding her prior sexual activities with the defendant. That restriction, the defendant argues, violated both his common law rights and his constitutional rights to confront his accusers.

The defendant sought to cross-examine the victim about the use of inanimate objects and sexual devices in her relationship with the defendant. The defendant argued that such evidence was relevant to the general credibility of the victim and to the specific issue of her consent to the use of pliers. Defense counsel was permitted to ask the victim: “[W]as there a time . . . two or three weeks before this incident, where [the defendant] used a candle for your sexual gratification with your consent?” The victim replied in the affirmative. In a prior hearing outside of the presence of the jury, the defendant had indicated that he wanted to inquire into the use of other objects and devices. At that hearing, however, when the victim denied the use of any objects other than candles, defense counsel expressly agreed to limit his cross-examination to the use of candles. Despite the court’s assurance that it would allow questioning going to the questions of veracity and of resistance, defense counsel stated that he would defer additional exploration of this subject until the defense put on its case. The defense never pursued this issue further.

On this state of the record, the defendant has no basis for complaint about the scope of the victim’s cross-examination. The decision to limit the exploration of the use of unnatural sexual objects was a decision made by defense counsel and not by the trial court. Instead of seeking a ruling to which he might take exception, defense counsel abandoned his effort to cross-examine further on this subject. In the absence of a claim by the defendant that his right to cross-examine the victim was in any other way impaired, the defendant has failed to establish that the trial court deprived him of his constitutional right of confrontation. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v.Milum, 197 Conn. 602, 608-609, 500 A.2d 555 (1985); State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985).

It may well be that, at a retrial, the defendant will take further steps to provide a proper foundation for this line of questioning. Proper pursuit of the matter may well require the defendant to substantiate his claim with appropriate extrinsic evidence; see State v. Denby, 198 Conn. 23, 32-33, 501 A.2d 1206 (1985); but even the offer of such evidence will not relieve the trial court of its responsibility to determine what measures it should take to limit the highly prejudicial impact of such cross-examination. See State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980); and compare State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). Absent such extrinsic support for further inquiry of the victim, if the victim again denies the occurrence of the events alleged, at a new hearing in limine, it would be within the exercise of the sound discretion of the trial court to bar further cross-examination on this issue. See State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985).

There is no error in the defendant’s conviction of the crimes of kidnapping and of assault; there is error in the defendant’s conviction of the crime of sexual assault in the first degree, that judgment is set aside and the case is remanded to the trial court for a new trial on that charge.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree .... (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.”

       “[General Statutes] Sec. 53a-94. kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person. . . .”

       “[General Statutes] Sec. 53a-61. assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. . . .”

       “[General Statutes] Sec. 53a-67. affirmative defenses. ... (b) In any prosecution for an offense under this part, except an offense under section 53a-70b, it shall be an affirmative defense that the defendant and the alleged victim were, at the time of the alleged offense, living together by mutual consent in a relationship of cohabitation, regardless of the legal status of their relationship.”

       “[General Statutes] Sec. 53a-70b. sexual assault in spousal or COHABITING RELATIONSHIP: CLASS B felony, (a) For the purposes of this section:
      “(1) ‘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; and
      “(2) ‘Use of force’ means: (A) Use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.
      “(b) No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury.
      “(c) Any person who violates any provision of this section shall be guilty of a class B felony.”

       The legislative hearings accompanying the enactment of Public Acts 1981, No. 81-27, which has been codified as § 53a-70b and which amended §§ 53a-65, 53a-67 and 53a-16a, demonstrate no legislative intent to abrogate the defense of cohabitation for all sexual assaults. See 24 S. Proc., Pt. 3, 1981 Sess., pp. 768-69; 24 H. R. Proc., Pt. 3, 1981 Sess., pp. 963-1010.

       The defendant makes no claim that this case falls under the first exceptional circumstance under Evans of a newly discovered constitutional right not readily foreseeable at the time of trial. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       “[Practice Book] Sec. 3063. ERRORS CONSIDERED.
      “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       Nothing in Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), compels a different result. Despite the defendant’s contention to the contrary, Washington v. Texas, supra, 19, does not establish an unqualified constitutional right to correct jury instructions on any defense the defendant may have. The only relevant issue therein decided was the applicability, in state court proceedings, of the sixth amendment right of a criminal defendant to have compulsory process for obtaining witnesses in his favor.
      The defendant has cited a number of cases from other jurisdictions in which the failure of the trial court to instruct on a defense, even in the absence of a request, was held to have been erroneous. Most of these cases, however, are distinguishable from the present case. The Missouri court in State v. Howard, 615 S.W.2d 498 (Mo. 1981), and in State v. Hegwood, 558 S.W.2d 378 (Mo. 1977), was obligated by then applicable Missouri rules of criminal procedure to instruct the jury on every defense warranted by the evidence presented, even in the absence of a request. There is no such rule in Connecticut. The Georgia court in Jackson v. State, 149 Ga. App. 253, 254-55, 253 S.E.2d 874 (1979), and in High v. State, 153 Ga. App. 729, 732-33, 266 S.E.2d 364 (1980), required an instruction on a defense even in the absence of a request because the defense at issue was the defendant’s sole defense. (This rule was later clarified in Grubbs v. State, 167 Ga. App. 365, 366, 306 S.E.2d 334 [1983]: “A defendant is entitled to an unrequested charge on a particular defense only when it is his sole or principal defense and it is supported by the evidence.” [Emphasis added.]) The Michigan appellate court in People v. Peoples, 75 Mich. App. 616, 624, 255 N.W.2d 707 (1977), also focused on the fact that an omitted instruction had the effect of “foreclosing the defendant from his only potential excuse for an otherwise admitted homicide.” (Emphasis added.) The cohabitation defense in the present case was not the defendant’s sole defense. The Massachusetts court in Commonwealth v. Collins, 374 Mass. 596, 599, 373 N.E.2d 969 (1978), found that a defendant is entitled to an instruction placing the burden of disproving the defense of justification on the commonwealth. In the present case, the defendant had the burden of proving his affirmative defense. Only the California, court seems to have adopted the broad rule the defendant urges on us. That court imposes on the trial court a duty to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence, including “defenses . . . and on the relationship of these defenses to the elements of the charged offense.” People v. Sedeno, 10 Cal. 3d 703, 716, 518 P.2d 913, 112 Cal. Rptr. 1 (1974). We decline to follow the California court’s lead in this case.

       The defendant’s cross-examination of the victim, which covered ninety-seven transcript pages, included unrestricted inquiry into the details of the crime, past arguments between the victim and the defendant, and previous sexual relationships between the victim and the defendant.


source: Caselaw Access Project

author: Satter, J.

license: Public Domain

text:
    State of Connecticut v. William Pecoraro
    (11958)
    Peters, C. J., Shea, Dannehy, Callahan and Satter, Js.
    Argued October 9
    decision released December 31, 1985

      Howard I. Gemeiner, for the appellant (defendant).

      Robert J. Devlin, Jr., assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Satter, J.

The jury found the defendant guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), and larceny in the second degree in violation of General Statutes § 53a-123 (a) (2). He claims on appeal that the trial court erred: (1) in refusing to take measures to minimize the potentially prejudicial effect of police photographs of the defendant; and (2) in allowing into evidence the defendant’s out-of-court statement to the police. These claims raise issues of the admissibility of police mug shots and waiver by conduct of Miranda rights. We find no error on either claim.

The jury could have reasonably found the following facts: During the late evening of February 22, 1982, Dennis Chan and Francis Liu were at a cafe in East Haven. Also present were a person who called himself Al and his unidentified companion. When Chan and Liu left the cafe, Al and his companion followed them out. Once outside, Al and his companion attacked Chan punching him about his head and body. Liu went to help, but was blocked by Al’s companion. After the attackers fled by car, Chan discovered that his wallet, containing his credit cards and $1200 in cash, was missing.

A few hours after the incident, Albert Martone was stopped by police on a motor vehicle charge. His furtive manner led to a search of his pockets and the finding of Chan’s credit cards.

I

The defendant’s first claim of error arises out of the admission at his trial of police mug shots relating to his identification by the victims of the crime, Liu and Chan. On-March 6, 1982, at the East Haven police department, Liu identified the defendant as a participant in the crime from approximately one hundred color photographs and from a board of eight black and white police photographs. The next day in the hospital, where he was being treated for injuries sustained in the robbery, Chan identified the defendant as one of his assailants from a different board of eight black and white police photographs. At the trial, both Liu and Chan made in-court identifications of the defendant.

The two boards, each containing eight black and white photos, from which Liu and Chan originally identified the defendant, displayed double mug shots of front and side views of each person depicted. The boards were offered into evidence with a white slip of paper stapled at one end only, covering the chests of the subjects and concealing police department placards shown in the photographs. The placards in the two pictures of the defendant stated “East Haven Police, I D Center CT 00044, 25105,” with one placard displaying the date of “12/24/80” and the other, the date of “5/15/81.” The defendant’s attorney raised no objection to the photo boards and they were admitted into evidence. Each was then passed among the jury.

Later in the trial, when the prosecutor offered a color photo of the defendant, defense counsel for the first time objected to the previously admitted photo boards, claiming that the loose paper coverings were inadequate to prevent the jury from seeing the police placards and thus from drawing the inference that the defendant had been arrested twice before. He suggested that the other end of the paper covering be stapled. The trial court denied his request, but offered to give a cautionary instruction to the jury concerning the photos, which defense counsel declined.

This court has several times cautioned against indiscriminate use of police mug shots. State v. Albin, 178 Conn. 549, 553, 424 A.2d 259 (1979); State v. Peary, 176 Conn. 170, 176, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979). The reason is that such photographs indicate prior arrests, not otherwise admissible, which present an accused person in an unfavorable light before the jury. Such photographs, however, enable the prosecution to establish at trial that a witness has made an earlier identification of an accused. We have held that they are admissible “if they are relevant and material and if their probative value outweighs their prejudicial tendency.” State v. Albin, supra, 551.

In this case the identification of the defendant as a participant in the crime with Albert Martone was contested. The state properly sought to bolster what might be considered a pro forma identification of the defendant from the witness stand by establishing that Chan and Liu had picked him out from the photo boards shortly after the crime. State v. Woods, 171 Conn. 610, 613, 370 A.2d 1080 (1976). Thus the probative value of the exhibits was substantial.

We have found no error in the admissibility of mug shots, where the photographs displayed no police markings of any kind; State v. Crowe, 174 Conn. 129, 131-32, 384 A.2d 340 (1977); State v. Robertson, 172 Conn. 9, 10, 372 A.2d 128 (1976); or where the police department markings had been cut from the front of the pictures; State v. Albin, supra, 553; or where markings were concealed in some manner. State v. Peary, supra; State v. Woods, supra, 612; see also annot., 30 A.L.R.3d 908, on the admissibility and prejudicial effect of mug shots.

The defendant claims that inadequate steps were taken to mitigate the prejudicial effect of the police markings because the slips of paper covering the placards on the defendant’s pictures were stapled at only one end, so they flapped loosely, revealing beneath them two prior dates on which police had photographed him. The defendant argued that the jury could infer that he had been arrested on those prior dates. The short answer to this claim is that the defendant failed to make that objection at the time of the admission of the photo boards into evidence. He, thus, has lost that ground of appeal. See Practice Book §§ 288, 3063; State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978).

Nevertheless, in light of our expressed approval of concealment of police markings, the trial court should have required that the paper covering the police photos be stapled at both ends. The judge should have been alert to his “duty . . . to prevent situations from arising during the trial which would prejudice the accused in the minds of the jury.” State v. Yates, 174 Conn. 16, 19, 381 A.2d 536 (1977). Our function, however, is not only to identify trial court mistakes but to weigh them. It is difficult for us to assess any harm resulting from the failure of the trial court to follow defense counsel’s suggestion because the exhibits had already been passed among the jurors, who might already have looked beneath the covering. Moreover, the judge offered to instruct the jury in such a way as to minimize the prejudicial impact, but defense counsel declined the offer. Thus, we conclude that the failure of the trial court to adopt the defendant’s suggestion was harmless error.

II

We next consider the defendant’s claim that the trial court erred in allowing into evidence his out-of-court statement given in response to police questioning.

While in custody, the defendant was orally advised of his Miranda rights and received a written statement of those rights, which he acknowledged by signing. When asked by police if he knew Albert Martone, the defendant responded affirmatively and then indicated that he would not answer any other questions. Interrogation ceased. At the trial, over the defendant’s objection, the state was allowed to admit into evidence the defendant’s response to that one question.

The state has the burden of proving that the defendant “knowingly and intelligently waived his privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Aversa, 197 Conn. 685, 501 A.2d 370 (1985); State v. Ferrell, 191 Conn. 37, 44, 463 A.2d 573 (1983). The burden may be sustained by a preponderance of the evidence and does not require proof beyond a reasonable doubt. State v. Wilson, 183 Conn. 280, 286-87, 439 A.2d 330 (1981). After warnings have been given, mere silence of the accused is not enough to establish waiver. Miranda v. Arizona, supra. But proof of waiver is not dependent on a specific expression of relinquishment of rights. North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979). It can be “inferred from the actions and words of the person interrogated”; id.; and from his “course of conduct.” State v. Wilson, supra, 285.

In State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983), where the defendant expressly agreed to make an oral statement, we held that “the defendant’s expressed willingness to speak constituted an explicit affirmative act evidencing waiver, which the court could reasonably find persuasive . . . .’’In State v. Pellegrino, 194 Conn. 279, 480 A.2d 537 (1984), the defendant gave a short answer to a detective’s question and then stated that he wanted to speak to a lawyer. We found no error in the trial court’s admission of that answer into evidence because “the very fact that the defendant invoked his sixth amendment right to counsel after he had spoken briefly with [the detective] indicated that the defendant was aware of his rights and voluntarily waived them up until that point.” Id., 289.

Here, after answering the first police question, the defendant asserted his right to remain silent. That conduct revealed that he clearly understood his rights. The trial court could also reasonably infer from the defendant’s affirmative act of invoking his fifth amendment right immediately after the first question that he knowingly and intelligently waived his right as to the question. That affirmative act distinguishes this case from State v. Wilson, supra, 286, where there was an absence of any conduct indicating waiver on the part of the defendant.

There is no error.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


author: Dannehy, J.

text:
    State of Connecticut v. Richard N. Magnotti
    (11501)
    Shea, Dannehy, Santaniello, Callahan and F. Hennessy, Js.
    Argued November 8
    decision released December 31, 1985

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

      PaulM. Scimonelli, special deputy assistant state’s attorney, with whom were Julia D. Dewey, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, and Michael Dearington, chief assistant state’s attorney, for the appellee (state).
   Dannehy, J.

The defendant was indicted for murder, in violation of General Statutes § 53a-54a, and, after a trial to the jury, found guilty of the lesser included offense of manslaughter in the first degree, in violation of General Statutes § 53a-55 (a). He claims on appeal that the trial court erred in denying his motion to suppress. He also claims that the prosecutor’s improper comments on his failure to testify, to which he did not object at trial, require that his conviction be reversed. We find no error.

At the evidentiary hearing on the motion to suppress, the court, as trier of fact, could reasonably have found the following. On January 26,1981, at approximately 1:55 a.m., Marion Millbank, who resided at 865 Mix Avenue, apartment 317, in Hamden, was awakened by the sounds of a struggle coming from apartment 417 directly above her. She got out of bed and went to the kitchen where she heard two angry male voices exchanging obscenities, heavy footsteps, and what sounded like bodies banging into cabinets in the kitchen upstairs. She also heard a scream and a male voice saying, “you’ll break your mother’s hand.” She decided to call the police at approximately 2 a.m.

Officer Gary Komoroski of the Hamden police department was dispatched to the apartment building on Mix Avenue, arriving at 2:04 a.m. Sergeant Donald Gray and Officer George Kitsos arrived at approximately the same time. They went to apartment 417 and were let in by Louise Russell, mother of the defendant and wife of William Russell, the defendant’s stepfather. The police officers observed William Russell lying face down on the floor of the apartment. Komoroski cheeked Russell’s body for vital signs but found none. Blood was splattered all about the apartment. It appeared to the investigating officers that the victim had been stabbed. Subsequent medical testimony confirmed that the cause of death was a stab wound to the chest which penetrated the heart. Louise Russell was then taken to a bedroom and advised of her rights.

Gray directed Komoroski to stand by the elevator on the fourth floor and to admit only police personnel onto the floor. At approximately 2:20 a.m., Mark Magnotti, the defendant’s nephew, stepped off the elevator and was asked by Komoroski to identify himself and to state his reason for being there. Magnotti informed Komoroski that he had received a phone call from his grandmother, Louise Russell, telling him that the victim and the defendant had had a fight. She had asked Magnotti to come and pick up the defendant. Approximately twenty-five minutes later, at 2:45 a.m., the defendant stepped off the elevator onto the fourth floor. Komoroski asked him if he was Richard Magnotti and the defendant replied in the affirmative. Observing blood on the defendant’s clothing, Komoroski immediately frisked the defendant for weapons. Komoroski then took the defendant to apartment 417 where Inspector John Cronin also noticed blood on the defendant’s hands and clothes. At this point Detective Carmen Riccitelli, who had been interviewing the occupants of apartment 317, arrived and reported to the other officers the words heard by Millbank during the disturbance which had awakened her earlier that evening. The defendant was then formally arrested for the murder of William Russell.

We first address the defendant’s claim that the trial court erred in denying his motion to suppress. Shortly before the defendant was formally arrested in his mother’s apartment, the investigating officers required him to remove his clothes, which thereupon were seized as evidence. Later that morning, at approximately 4:30 a.m., after the defendant had been taken to police headquarters, the officers took scrapings from beneath the defendant’s fingernails. The clothing and fingernail scrapings were tested and found to contain blood matching that of the victim. The results of those tests were admitted into evidence at trial.

The defendant claims that his arrest was without probable cause and therefore that the seizure of his clothing and the later taking of fingernail scrapings were not justified as searches incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). With respect to the fingernail scrapings, the defendant makes the alternative argument that even if his arrest was lawful, the police were required to obtain a search warrant before conducting any further searches and seizures at police headquarters. We reject these contentions.

We agree with the defendant that he was “arrested” from the moment he stepped off the elevator and identified himself to Komoroski. As soon as he ascertained the defendant’s identity, Komoroski frisked him and took him to apartment 417 where the other officers were congregated. Komoroski testified at the suppression hearing that he had the defendant in his custody, and would not have allowed him to leave. The defendant also testified at the suppression hearing, that he believed that he was not free to walk away from Komoroski.

“ ‘To constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.’ ” State v. Derrico, 181 Conn. 151, 159, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); Dunaway v. New York, 442 U.S. 200, 212, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979). The presence of a formal declaration of arrest is not determinative. A person is “seized” within the meaning of the fourth amendment “when, by means of physical force or show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980). The test is whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id., 554; State v. Ostroski, 186 Conn. 287, 291-92, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). Although in the present case the defendant was not formally arrested until he was taken to apartment 417, we believe that the circumstances evince a custodial arrest by Komoroski.

Our determination that the defendant was “arrested” as soon as he identified himself to Komoroski does not end our analysis. We must next determine whether Komoroski had probable cause to justify his arrest of the defendant. Probable cause to arrest exists if “(1) there is probable cause to believe a crime has been committed; and (2) there is probable cause to believe that the person to be arrested committed that crime.” State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). “ ‘The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear that “[tjhere is often a fine line between mere suspicion and probable cause, and ‘[tjhat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.’ ” ’ ” State v. Dennis, 189 Conn. 429, 431-32, 456 A.2d 333 (1983); State v. Penland, 174 Conn. 153, 155-56, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).

Komoroski, when he took the defendant into custody, was aware that a disturbance had occurred in apartment 417 less than an hour earlier. He also knew from his interview with the defendant’s nephew that the disturbance was caused by a fight between the defendant and the victim. The victim was dead, apparently from a knife wound, and the apartment in which he died was covered with blood. Komoroski noticed blood on the defendant’s clothes as he stepped off the elevator. We believe that these facts were sufficient to sustain a reasonable belief that the defendant was involved in a fight with his stepfather which resulted in his stepfather’s death. Since the defendant’s arrest was supported by probable cause, the seizure of his clothing was fully justified as a search incident to a lawful arrest. State v. Federici, 179 Conn. 46, 54-55, 425 A.2d 916 (1979); see State v. Asherman, 193 Conn. 695, 704, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Therefore, the defendant’s motion to suppress his clothing and the blood tests performed on them was properly denied.

We dispense briefly with the defendant’s alternative claim that the police were required to obtain a warrant before conducting the later search and seizure at police headquarters, during which fingernail scrapings were taken from the defendant. The defendant contends that this follow-up search cannot be justified as a “search incident” because it was not contemporaneous with his arrest and, therefore, could be executed only pursuant to warrant. The United States Supreme Court has expressly rejected this contention in holding that “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” United States v. Edwards, 415 U.S. 800, 804, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). The police took the fingernail scrapings from the defendant at approximately 4:30 a.m., less than two hours after he was initially arrested. The defendant could easily have destroyed this evidence by washing his hands or otherwise. Under these circumstances we find that the police acted reasonably in taking the fingernail scrapings when they did. Id., 808 n.9. There is no error in the denial of the defendant’s motion to suppress.

The defendant also claims that a new trial is required due to the allegedly improper comment by the prosecutor, during final argument, on his failure to testify in his own defense. No objection was taken to the allegedly improper comments at the time they were made, and thus the defendant does not claim error on the part of the trial court. We note that our seminal case of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), involved precisely the claim raised here, namely, that the prosecutor’s summation to the jury violated the rule enunciated in Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). In Evans, we reviewed this claim under the second “exceptional circumstance” because it involves the colorable deprivation of a fundamental constitutional right and a fair trial. State v. Evans, supra, 70.

We have said that in cases of alleged prosecutorial misconduct, which do not involve a specific error committed by the trial court, the standard for analyzing the defendant’s due process claims is the “fairness of the trial and not the culpability of the prosecutor . . . .” State v. Glenn, 194 Conn. 483, 491, 481 A.2d 741 (1984); Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); State v. Palmer, 196 Conn. 157, 163, 491 A.2d 1075 (1985); State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982). Where the alleged misconduct involves the prosecutor’s indirect comment on the decision of the accused not to testify, the test is whether the comment was “ ‘of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” State v. Evans, supra, 72; State v. Daniels, 180 Conn. 101, 109, 429 A.2d 813 (1980). We now turn to the defendant’s specific claims.

The defendant points to two instances during opening argument where the prosecutor stated to the jury that there were only three people in the apartment when the crime was committed. As the jury was well aware, the three individuals were William Russell, Louise Russell and the defendant. The defendant argues that by this “rhetorical ‘process of elimination,’ the prosecutor was able to focus his argument on the failure of the defendant to testify.” We disagree.

To understand the prosecutor’s comments properly, it is necessary to place in context the testimony of Louise Russell, the defendant’s mother. Russell’s testimony, which was highly exculpatory of the defendant, may be summarized as follows. Russell testified that at the time of her husband’s death the defendant was in the throes of an epileptic seizure. According to Russell, the defendant was lying on the floor with his “eyes rolled back . . . foaming at the mouth [and] having tremors.” During this time her husband was lying on top of the defendant and “punching” him in an attempt to bring him out of the seizure. Russell testified that when the seizure ended the defendant got up and left the apartment. During the entire incident she never saw her son in possession of a knife, and she did not see him stab her husband. She testified that there had been no argument that morning, and that in fact her husband and son got along very well. Russell knew nothing of her husband’s stabbing, although she was present during the entire incident, despite the fact that William Russell’s body showed three stab wounds in addition to the fatal wound to the heart. According to Russell, after her son recovered from his seizure and left the apartment, she went to the bedroom and called her grandson, Mark Magnotti, to come and look for the defendant. As she returned from the bedroom she heard her husband fall and saw him slumped in a sitting position against the dining room wall. Not realizing that he was seriously injured, Russell went to the kitchen and began to clean the blood from the floor. Finally, just as she was about to check on her husband the police arrived and she let them in.

The prosecutor attempted to contradict the testimony of Russell with that of Millbank, the occupant of the apartment directly below who had initially reported the disturbance to the police. As stated, Millbank had heard male voices loudly exchanging obscenities, and one voice, which she could not identify, saying, “you’ll break your mother’s hand.” The prosecutor argued to the jury that the victim must have uttered those words, and that he would not have done so if, as testified by Russell, the defendant was incapacitated by an epileptic seizure. When the prosecutor again reminded the jury that only three people were in the apartment, it was after his discussion of the wounds suffered by the victim. The prosecutor emphasized that the wounds to the victim’s arms were probably inflicted while he tried to defend himself. He also stressed that the mortal incision had penetrated chest bone, noting that “[i]t took a little effort to get through there.” Defense counsel, recognizing the implication of the prosecutor’s argument, stated to the jury: “You may deduce that since there were only two persons present that it had to be either the Defendant or his mother and that his mother is too small and too frail to have inflicted the type of injury.” If, in this context, the prosecutor employed a process of elimination, it was to show that the defendant and not his mother wielded the knife that caused the victim’s death. This is obviously how trial counsel understood the argument, and we do not consider it natural or necessary that the jury understood it differently.

The defendant’s final claim of improper comment concerns statements made by the prosecutor on rebuttal. During the defense argument, counsel emphasized to the jury what he believed to be an inconsistency in the state’s position. Referring to the state’s characterization of Russell’s testimony, defense counsel stated: “They want to argue that this lady fabricated it. . . . They ask you to believe what she said except that when it gets to the question of intent don’t believe her any more.” At oral argument, counsel conceded that the primary issue at trial was intent, stating that the defendant’s theory of the case was that the “decedent died of a stab wound during the course or during the time when the defendant was taken by this seizure.”

In this context the prosecutor argued in rebuttal: “Counsel suggested—two people said the accused had a seizure. I know of one, Mrs. Russell. It’s your recollection that counts. Did you hear Inspector Cronin say that the accused had a seizure? Counsel says I put on a witness, State puts on a witness and we vouch for everything they say. Ladies and Gentlemen, we put on all the evidence we can get. We put on Officers Komoroski, Gray, Kitsos, Cronin, Rhone [had] a heart condition we didn’t put him on. We put on Mills. We put on the neighbor upstairs, downstairs, Mark Magnotti. We put on the witnesses who have all been mentioned as far as being there or in the area. What about the Defense’s case? . . . Sergeant Gray, Inspector Cronin.”

The defendant argues that the prosecutor’s recitation of the state’s witnesses, followed by the question “[w]hat about the Defense’s case,” particularly underscored the fact that the defendant had not testified. The evidence in this case was highly circumstantial, and the only eyewitness to the crime testified that the defendant, due to an epileptic seizure, could not have harbored the requisite intent to support a finding of guilt. The prosecutor sought to clarify that the state did not necessarily wish to be bound by the testimony of Russell on an all-or-nothing basis merely because it had called her as a witness. The prosecutor further sought to emphasize that the state had candidly presented all the witnesses who might be able to give some relevant testimony at trial. In perhaps becoming somewhat overzealous in his argument, the prosecutor drew a gratuitous comparison between the state’s case and the defendant’s.

We recognize the possibility that some of the jurors may have understood the prosecutor’s question, “[w]hat about the Defense’s case,” as a comment on the defendant’s failure to testify. We also recognize that “the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” State v. Ubaldi, supra, 575, quoting State v. Laudano, 74 Conn. 638, 646, 51 A. 860 (1902). We regard the challenged remark as a comment by the prosecutor on the overall quality of the defendant’s evidence and not as calling specific attention to the failure of the accused to testify. United States v. Savarese, 649 F.2d 83, 87 (1st Cir. 1981). The accused, by his failure to testify, cannot insulate himself from general comment on the weakness of his case, even though his failure so to testify may be perceived by the jury as having contributed to the general weakness about which comment is made. The type of comment made in this case is not so far beyond the bounds of legitimate argument as to deny the defendant a fair trial. State v. Palmer, supra; State v. Glenn, supra.

There is no error.

In this opinion the other judges concurred.

       Defense counsel’s argument was as follows:
      “You may deduce that since there were only two persons present that it had to be either the Defendant or his mother and that his mother is too small and too frail to have inflicted the type of injury. Therefore, you could conclude I suppose according to the State’s argument that he did it. You could conclude as well the exact opposite and some of you are asked when you reach a conclusion every reasonable hypothesis consonant with innocence must be overcome by the State. They want to argue that this lady fabricated it. But they offered her as a witness. They ask you to believe what she said except that when it gets to the question of intent don’t believe her any more. They ask you to believe Mark Magnotti when he says that there was an argument or a fight or whatever but the real reason is because Richard apparently called him and said come and pick me up and he got lost. Now that’s what they’re saying to you. Your conclusions may very well be here that you will not find that the State has established that intent. And I believe and many of you if not all of you were asked that you may also consider in your deliberations some other offenses that are not the crime of murder. The Judge will instruct you on what the essential elements are of those offenses. In many of them you will find this element of intent. Now I’m not trying to justify the loss of a human life because I don’t think anybody has the right to play God. What I’m trying to persuade you to accept is that tragic accidents do occur and they are not intended to be criminal. They are not performed in a criminal manner. They are not willful and intentional acts. They are sometimes not conscious acts. You will have to determine from what you heard here whether or not there had been a circumstance which was described by at least two witnesses as a seizure.”


text:
    State of Connecticut v. Jose Ortiz
    (10394)
    Peters, C. J., Healey, Dannehy, Santaniello and Covello, Js.

      Argued November 14
    decision released December 31, 1985

      Carl D. Eisenman, assistant public defender, with whom, on the brief, was Margaret Dayman, assistant public defender, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, JohnM. Massameno, assistant state’s attorney, James R. Turcotte, special deputy assistant state’s attorney, and Bernadette Conway, legal intern, for the appellee (state).
   Dannehy, J.

A jury found the defendant guilty of manslaughter in the first degree, in violation of General Statutes § 53a-55 (a) (3). He was sentenced to imprisonment for not less than ten nor more than twenty years. His posttrial motions for acquittal and a new trial were denied. The defendant claims on appeal that the trial court erred: (1) in precluding cross-examination of a state’s witness concerning criminal charges pending against him at the time of trial; (2) in admitting testimony of an expert witness concerning an identification of the defendant by his tooth mark preserved in an apple found at the scene of the crime; and (3) in admitting testimony of a witness whom the state failed to disclose in response to the defendant’s request for discovery. We find error on the defendant’s first claim. We will address briefly the second claim, but we do not consider the third because it cannot recur on retrial.

On the evening of May 16,1978, Hartford police officers, responding to a report of a possible burglary, discovered the dead body of seventy-four year old Maria Joaquim on the floor of her apartment on Lawrence Street in Hartford. She was blindfolded, and her wrists and legs were bound with cord taken from lamps in her apartment. Her mouth was stuffed with cloth fastened tightly in place by a band tied across her lower face and mouth. The medical examiner testified at trial that the cloth in Joaquim’s mouth had caused her death by suffocation.

The victim’s apartment was in complete disarray, and appeared to have been ransacked. Bureau and desk drawers were removed and emptied and clothes were scattered about. The mattress was pulled from the bed-frame, linoleum tile and floorboards were torn up, and sofa cushions were removed. Several pieces of apple found in the apartment and in the cellar were taken to Lester Luntz, a dentist and the state’s expert witness in the field of forensic odontology. Luntz assembled the apple pieces and testified that they fit together “like a jigsaw puzzle.” Luntz identified a human bite mark found preserved in the apple as that of the defendant. Additional facts will be discussed as we consider the various issues raised by the parties.

We first address the defendant’s claim that the trial court improperly restricted his cross-examination of Carlos Carrasquillo, one of the state’s principal witnesses against him. Carrasquillo testified at trial that on the evening of May 16,1978, while in a cafe on Park Street in Hartford, the defendant stated that he and a companion “tried to get some money out of this old lady down on Lawrence Street and that she started screaming. And they put something in her mouth. She started shaking. She was acting like she was going to have a heart attack.” Carrasquillo further related that the defendant threatened him. According to that testimony, the defendant said that if Carrasquillo said anything, the defendant would “smash his face.” The state concluded its direct examination by asking Carrasquillo if he had ever been convicted of a felony. The witness answered in the negative.

Midway through the defendant’s cross-examination of Carrasquillo, the jury was excused. Outside the presence of the jury Carrasquillo insisted that he had never been convicted of a felony. On further inquiry, however, he acknowledged that criminal charges were pending against him. The state objected to this line of questioning. The defendant pressed the inquiry, vigorously contending that he had a right, under the sixth amendment to the United States constitution, to cross-examine the witness regarding the pending charges in order to demonstrate his bias, interest, or motive. The trial court sustained the objection and allowed an exception to the ruling.

The primary interest secured by the confrontation clause is the right to cross-examination. State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985). Our cases have consistently recognized the right of an accused, during cross-examination, to place before the jury the fact that criminal charges are pending against the state’s witnesses. State v. Lubesky, 195 Conn. 475, 482, 488 A.2d 1239 (1985); State v. George, 194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982); State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979); State v. Annunziato, 174 Conn. 376, 380, 387 A.2d 566 (1978). “[Ejxposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination”; Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); and it is “well settled law that ‘[t]he fact that the witness is a defendant in a criminal prosecution . . . creates an interest which affects his credibility.’ ” (Citations omitted.) State v. Ferrara, 176 Conn. 508, 512, 408 A.2d 265 (1979). For that reason we have held that cross-examination to show “motive, bias, interest and prejudice is a matter of right and may not be unduly restricted.” State v. Milum, supra, 609; State v. Lubesky, supra, 482; State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985).

The confrontation clause of the sixth amendment requires that the defendant be accorded some irreducible minimum of cross-examination into matters affect-, ing the reliability and credibility of the state’s witnesses. Thus, while as a general rule restrictions on the scope of cross-examination are within the sound discretion of the trial judge, “ ‘this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.’ ” State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1984); State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980); State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959). We have adhered to this principle and found no error in the limitation of cross-examination into pending criminal charges where we were “satisfied, upon review of the entire cross-examination, that the opportunity to impeach the witness sufficiently comported with the constitutional standards embodied in the confrontation clause.” State v. Lubesky, supra; State v. George, supra, 365-66; State v. Wilson, supra, 721; see also State v. Denby, 198 Conn. 23, 501 A.2d 1206 (1985); State v. Asherman, supra, 721; State v. Gaynor, supra, 509. In the present case, however, we need not address the threshold question under the sixth amendment “because the trial court did not allow any cross-examination into the witness’ possible motive and interest.” State v. Milum, supra.

The state, while conceding error, contends that overwhelming evidence of guilt renders the error harmless beyond a reasonable doubt. Despite language in Davis v. Alaska, supra, to the effect that denial of the right of effective cross-examination “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it”; id., 318; the state argues that it is the “duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.” United States v. Hasting, 461 U.S. 499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). We have reviewed the state’s evidence against the defendant and note that most of it was circumstantial. We further observe that much of this evidence was controverted by the defendant, who testified in his own defense. While we are convinced that the state’s evidence, even without the testimony of Carrasquillo, would have been sufficient to sustain a finding of guilt beyond a reasonable doubt, the “harmlessness of an error depends upon its impact on the trier and the result, not upon whether the particular evidence involved was legally essential to support the finding.” State v. Bruno, 197 Conn. 326, 336, 497 A.2d 758 (1985) (Shea, J., concurring).

In this case, Carrasquillo was a key witness for the prosecution. His testimony was the only evidence which directly implicated the defendant. We are not satisfied beyond a reasonable doubt that without Carrasquillo’s testimony the jury would have returned a verdict of guilty. Nor can we rule out the possibility that had Carrasquillo testified to the pending charges, he could have been completely discredited. We believe this case falls squarely within our holding in State v. Ouellette, 190 Conn. 84, 103, 459 A.2d 1005 (1983), where we stated that the “prevention, throughout the trial of a criminal case, of all inquiry in fields where cross-examination is appropriate, and particularly in circumstances where the excluded questions have a bearing on credibility and on the commission by the accused of the acts relied upon for conviction, passes the proper limits of discretion and is prejudicial error.” (Emphasis in original.) Accord State v. Milum, supra; State v. Corley, supra; State v. Annunziato, supra; State v. Luzzi, supra. Accordingly, we reject the state’s claim that the trial court’s erroneous restriction of cross-examination was harmless beyond a reasonable doubt.

We next address the defendant’s claim that the trial court erred in admitting the testimony of Lester Luntz, a dentist and the state’s expert witness in the field of forensic odontology. Luntz testified that he examined and made impressions of the human bite marks preserved in the partially eaten apple found at the scene of the crime. On the basis of his comparison of these impressions with the dentiture of the defendant, Luntz was allowed to give his expert opinion that the bite marks were made by the defendant’s teeth. The defendant duly objected to the admission of this evidence, and took an exception to the court’s ruling.

The defendant’s contention with respect to this claim of error is quite narrow. He does not question the qualifications of Luntz as an expert in the field of dental identification. Nor does the defendant contend that dental identification generally is not accepted as a proper subject of expert testimony. The only question which we must address is the defendant’s “simple assertion [in his brief] that bite mark identification (as opposed to dental identification) had not reached the stage at which opinion testimony could properly be admitted into evidence.” The defendant further recognizes in his brief that, in view of our holding in State v. Asherman, supra, 715, “it would appear that bite mark testimony would be admissible. The defense has no quarrel with that. The claim is that such testimony should be factual and quantitative, i.e., measurements, pictorial representation, etc., and not opinion testimony with conclusion as to the perpetrator of the bite mark.” Finally, the defendant notes in his brief that “[a]ll other jurisdictions confronting this issue have admitted such testimony. See annot., 77 A.L.R.3d 1122 (1977 and 1983 Sup.). However, it is the contention of the defendant that these cases were wrongly decided . . . .”

In State v. Asherman, supra, decided several months after the defendant filed his main brief in this case, we implicitly recognized bite mark identification as a proper subject of expert testimony. We do not retreat from that position. As the defendant candidly acknowledges, every jurisdiction to consider the matter has admitted expert opinion testimony on bite mark comparison. See Bundy v. State, 455 So. 2d 330, 349 (Fla. 1984); People v. Williams, 128 Ill. App. 3d 384, 397, 470 N.E.2d 1140 (1984); People v. Middleton, 54 N.Y.2d 42, 49, 429 N.E.2d 100, 444 N.Y.S.2d 581 (1981), and cases cited therein; annot., 77 A.L.R.3d 1122-23 (1977 and Sup. 1985). “If a duly qualified expert testifies that in his opinion the test or device is reliable, but his opinion is not shared by the scientific community, either because it is novel and experimental or because they disagree with its bases, the court still has discretion to admit the evidence because competent proof is not rendered inadmissible merely by the fact that others take issue with it.” Tait & LaPlante, Connecticut Evidence (1976) § 8.12, pp. 148-49. “General scientific acceptance is a proper condition for taking judicial notice of scientific facts, but it is not a suitable criterion for the admissibility of scientific evidence.” McCormick, Evidence (3d Ed. 1984) § 203, p. 608.

It has long been our rule that “the qualification of an expert witness is within the discretion of the trial court and its decision will not be disturbed on appeal unless that discretion is abused . . . .” State v. Wilson, 180 Conn. 481, 489-90, 429 A.2d 931 (1980); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370 (1915). While the defendant in his brief cites numerous scholarly authorities who have criticized the reliability of bite mark identification; e.g., comment, “The Admissibility of Bite Mark Evidence,” 51 S. Cal. L. Rev. 309 (1978); we believe that the number of jurisdictions admitting this type of evidence attests to its reliability. As with expert testimony generally, the defendant may, on cross-examination, challenge the qualifications of the expert witness, and the factual and logical bases of his opinions and conclusions. State v. Asherman, supra, 716-18. Moreover, the defendant may, as in this case, present evidence challenging the reliability of the field of expertise. Here, the trial court allowed the defendant to present two expert dental witnesses who testified that the defendant’s teeth did not make the bite marks found in the apple. We hold, in accordance with our rules governing expert testimony generally, that the defendant’s claim of unreliability is properly addressed to the weight of bite mark opinion testimony and not to its admissibility. State v. Asherman, supra, 718; Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964); Sanderson v. Bob’s Coaster Corporation, 133 Conn. 677, 682, 54 A.2d 270 (1947). The trial court did not abuse its discretion in allowing Luntz to give his opinion that the bite marks preserved in the apple were those of the defendant.

The defendant’s final claim is that the trial court erred by admitting the testimony of a state’s witness whose name was not disclosed in response to the defendant’s pretrial motion for discovery. Practice Book § 747. In light of our disposition of the case, requiring reversal on other grounds, we do not address this claim because it cannot possibly recur on retrial.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.