author: Peters, C. J.

text:
    State of Connecticut v. Elton H. Carter
    (12645)
    Peters, C. J., Healey, Shea, Dannehy and F. Hennessy, Js.
    Argued June 10
    decision released July 29, 1986

      Andrew B. Bowman, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, Harry Weller, special state’s attorney, and David Cohen, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The dispositive issue on this appeal is whether the defendant properly invoked his constitutional right to represent himself at the trial of the criminal charges against him. The defendant, Elton Carter, was convicted by a jury of one count of attempted murder, in violation of General Statutes §§ 53a-49 (a) and 53a-54a (a),* one count of assault in the first degree, in violation of General Statutes § 53a-59, and one count of reckless endangerment in the first degree, in violation of General Statutes § 53a-63, and sentenced to imprisonment for an effective term of twenty years. The defendant appeals from this judgment. We find no error.

The jury might reasonably have found the following facts. The defendant was an employee of Phillips Dental Systems in Stamford. On the morning of November 18,1988, he refused to begin his work at the plant unless and until he had been afforded an opportunity to discuss the conditions of his employment and a contemplated pay raise with the company’s personnel manager. Since the personnel manager had not yet arrived at the plant, the defendant was told by the operations manager either to begin working, pending the personnel manager’s arrival, or to go home. Instead, the defendant entered the company’s executive office area. The operations manager followed the defendant. Thereupon, the defendant shot the operations manager, and later beat him with a crowbar. He also shot two other individuals who were in the area. Immediately after these events, the defendant left the company facilities in his own car. He stopped at the Mill River to throw away the gun that he had been using. Driving to the home of a friend, he talked with her for some hours and then voluntarily surrendered to the police.

At trial, the defense was insanity. Rejecting this defense, the jury found the defendant guilty on three of the four counts with which he had been charged. The trial court denied the defendant’s motions for acquittal.

On appeal, the defendant claims that the trial court erred in two respects, in its instructions to the jury on the issue of insanity and in its denial of the defendant’s constitutional right to represent himself. Neither claim is sustainable on the record of this case.

The defendant asks us to review the trial court’s instructions on insanity even though, at trial, he requested no specific instruction on insanity and failed to except to the instruction that was given. He concedes that the trial court’s instruction included a charge on insanity that incorporated the definition of insanity set forth in our statute; General Statutes § 53a-13 (a);* *** but claims that the instruction was erroneous because of its inclusion of extraneous considerations not encompassed within the statutory definition. We have only recently considered the question of whether such a claim is reviewable when it was not properly raised at trial, and we have determined that it is not. Practice Book §§ 854, 3063; State v. Carter, 198 Conn. 386, 396-97, 503 A.2d 576 (1986); State v. Jackson, 198 Conn. 314, 320-21, 502 A.2d 865 (1986); State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985); State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985). The only factor that possibly distinguishes the defendant’s case from these precedents is that he was tried at a time when the burden of proving insanity had been shifted, by statute, to the defendant; see General Statutes § 53a-13; Public Acts 1983, No. 83-486, § 1; whereas previously the state had borne the burden of proving a defendant’s sanity. For present purposes, this is a distinction without a difference.

The defendant’s claim that he was denied his constitutional right to self-representation equally founders on the lack of a proper foundation in the record. At trial, the defendant repeatedly expressed his dissatisfaction with the representation that he was receiving from his public defender. He asked that this attorney be dismissed and that a special public defender be appointed. He expressed his concern that his public defender was not properly examining prosecution witnesses so as to expose the alleged falsity of their testimony, and complained that the public defender did not want him to testify. In the course of that colloquy with the court, he stated: “I am misrepresented and now I have to represent myself.” A few moments later, after the trial court had asked the defendant to be seated so that the trial could begin, the defendant reiterated, “I’ll have to represent myself.” Although he subsequently reiterated his desire to question a witness, that request was again couched in terms of his request for a different public defender. Thereafter, he raised no further objections to the adequacy of his representation and did avail himself of his right to testify on his own behalf.

There is no doubt that a defendant has a right under both the state and the federal constitutions to represent himself at his criminal trial. Faretta v. Califor nia, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II); State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I); State v. Johnson, 185 Conn. 163, 178, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Beaulieu, 164 Conn. 620, 630, 325 A.2d 263 (1973); see also Practice Book § 961. The constitutional right of self-representation depends, however, upon its invocation by the defendant in a clear and unequivocal manner. Faretta v. California, supra, 835; Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), cert. denied, 469 U.S. 966, 105 S. Ct. 366, 83 L. Ed. 2d 302 (1984); Moreno v. Estelle, 717 F.2d 171, 174 (5th Cir. 1983), cert. denied sub nom. Moreno v. McKaskle, 466 U.S. 975, 104 S. Ct. 2353, 80 L. Ed. 2d 826 (1984); United States v. Bennett, 539 F.2d 45, 50 (10th Cir.), cert. denied, 429 U. S. 925, 97 S. Ct. 327, 50 L. Ed. 2d 293 (1976); State v. Gethers (Gethers II), supra, 377-78; State v. Hanson, 138 Ariz. 296, 300, 674 P.2d 850 (1983); People v. Windham, 19 Cal. 3d 121, 127-28, 560 P.2d 1187, 137 Cal. Rptr. 8, cert. denied, 434 U.S. 848, 98 S. Ct. 157, 54 L. Ed. 2d 116, reh. denied, 434 U.S. 961, 98 S. Ct. 495, 54 L. Ed. 2d 322 (1977); Hooks v. State, 416 A.2d 189, 197 (Del. 1980); Raulerson v. State, 437 So. 2d 1105, 1107 (Fla. 1983); Russell v. State, 270 Ind. 55, 61, 383 N.E.2d 309 (1978); State v. Hegwood, 345 So. 2d 1179, 1182 (La. 1977); State v. Crafts, 425 A.2d 194, 196 (Me. 1981); Leonard v. State, 302 Md. 111, 124, 486 A.2d 163 (1985); Commonwealth v. Miller, 6 Mass. App. 959, 960, 383 N.E.2d 1144 (1978); State v. Barham, 126 N.H. 631, 638-39, 495 A.2d 1269 (1985); Gregory v. State, 628 P.2d 384, 387 (Okla. 1981); State v. Fritz, 21 Wash. App. 354, 360, 585 P.2d 173 (1978); State v. Sheppard, 310 S.E.2d 173, 187-89 (W. Va. 1983).

In the absence of a clear and unequivocal assertion of the right to self-representation, a trial court has no independent obligation to inquire into the defendant’s interest in representing himself, because the right of self-representation, unlike the right to counsel, is not a critical aspect of a fair trial, but instead affords protection to the defendant’s interest in personal autonomy. State v. Hanson, supra, 300; People v. Salazar, 74 Cal. App. 3d 875, 888-89, 141 Cal. Rptr. 753 (1977); People v. Clark, 94 Ill. App. 3d 295, 297, 418 N.E.2d 891 (1981); Russell v. State, supra, 60; State v. Burgin, 539 S.W.2d 652, 653-54 (Mo. App. 1976); Block v. State, 95 Nev. 933, 936, 604 P.2d 338 (1979); State v. Hutchins, 303 N.C. 321, 337-38, 279 S.E.2d 788 (1981). When a defendant’s assertion of the right to self-representation is not clear and unequivocal, recognition of the right becomes a matter entrusted to the exercise of discretion by the trial court. State v. Irving, 231 Kan. 258, 265, 644 P.2d 389 (1982); State v. Burgin, supra, 654; State v. Sheppard, supra, 187. In the exercise of that discretion, the trial court must weigh into the balance its obligation to “indulge in every reasonable presumption against waiver” of the right to counsel. Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977).

The record in this case fails to establish a clear and unequivocal invocation of the defendant’s right to represent himself. The record demonstrates, instead, the defendant’s dissatisfaction with appointed counsel’s conduct during the early phases of the trial, and the defendant’s misconception of the normal sequence of the presentation of evidence by the state and the defendant. A trial court, faced with the responsibility of reconciling a defendant’s inherently inconsistent rights to self-representation and to counsel, is entitled to await a definitive assertion of a request to proceed pro se. Any other ruling would permit a defendant on appeal to claim a violation of his rights whether he defended himself or was represented by an attorney. Meeks v. Craven, 482 F.2d 465, 467 (9th Cir. 1973); State v. Hanson, supra, 300. Courts in other jurisdictions have therefore been unwilling to find a clear and unequivocal assertion of the right of self-representation in such ambiguous circumstances. Moreno v. Estelle, supra, 175-76; People v. Salazar, supra, 889; Russell v. State, supra, 61; State v. Burgin, supra, 654; State v. Hutchins, supra, 339. The trial court in this case responded to the defendant’s concerns by providing explanations concerning trial procedures and by offering the defendant repeated opportunities for further consultations with counsel. The defendant’s apparent acquiescence in the continuation of the trial with appointed counsel demonstrates that the trial court did not abuse its discretion in its conduct of the defendant’s case.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct; RENUNCIATION as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his commission of the crime.”

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

       “[General Statutes] Sec. 53a-59. assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.
      “(b) Assault in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       “[General Statutes] Sec. 53a-63. reckless endangerment in the first degree: class a misdemeanor, (a) A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.
      “(b) Reckless endangerment in the first degree is a class A misdemeanor.”

       “[General Statutes] Sec. 53a-13. lack op capacity due to mental DISEASE OR DEFECT AS AFFIRMATIVE DEFENSE, (a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.”

       “[Practice Book] Sec. 854. —time for instructions and exceptions “The judicial authority shall deliver the instructions to the jury after the closing arguments. Immediately after the conclusion of the charge to the jury, counsel taking exception shall, out of the presence of the jury, state distinctly the matter objected to and the ground of the exception. The appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.”
      “[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.”

         The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . . ”
      The constitution of the United States, amendment six, 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, which district shall have been previously ascertained 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.”

       “[Practice Book] Sec. 961. —waiver
      “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       By contrast, once there has been an unequivocal request for self-representation, a court must undertake an inquiry, on the record, to inform the defendant of the risks of self-representation and to permit him to make a knowing and intelligent waiver of his right to counsel. Practice Book § 961; Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); United States v. Bailey, 675 F.2d 1292, 1299-1300 (D.C. Cir.), cert. denied sub nom. Walker v. United States, 459 U.S. 853, 103 S. Ct. 119, 74 L. Ed. 2d 104 (1982); United States v. Welty, 674 F.2d 185, 188-89 (3d Cir. 1982); United States v. Aponte, 591 F.2d 1247, 1249-50 (9th Cir. 1978); United States v. Dujanovic, 486 F.2d 182, 186 (9th Cir. 1973); United States v. Plattner, 330 F.2d 271, 276 (2d Cir. 1964); see also American Bar Association Standards for Criminal Justice (2d Ed. 1980) Standard 5-7.2.


source: Caselaw Access Project

author: Dannehy, J. Shea, J.,

license: Public Domain

text:
    State of Connecticut v. Gail Hancich
    (12652)
    (12743)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 30
    decision released July 29, 1986

      Arnold B. Abrams and Philip A. Wright, Jr., with whom, on the brief, was F. Woodward Lewis, for the appellant (defendant in both cases).

      MichaelE. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were Frank D ’Addabbo, assistant state’s attorney, James G. Clark, deputy assistant state’s attorney, and Mary Glassman, law student intern, for the appellee (state).
   Dannehy, J.

These two appeals arise from separate incidents in which this defendant was apprehended by police while driving her motor vehicle under the influence of intoxicating liquor, in violation of General Statutes § 14-227a. The first arrest occurred on August 22, 1983. On the basis of that arrest, the defendant applied for admission into the statutory pretrial alcohol education program; General Statutes § 14-227b; and was admitted on October 5, 1983. Little more than five months later, and before she had completed the program, the defendant was again arrested, on March 11, 1984, for operating her motor vehicle while under the influence of intoxicating liquor.

Thereafter, on October 11,1984, the defendant completed the pretrial alcohol education program, and received a “certificate of completion” from the “program provider.” The defendant’s trial on her March 11, 1984 arrest began on November 1, 1984. Prior to the start of trial, the defendant moved to have dismissed the charges against her arising from the August 22, 1983 arrest in connection with which she had recently completed the pretrial alcohol education program. The trial court, Susco, J., reserved decision on the defendant’s motion, pending the outcome of the defendant’s trial on her March 11,1984 arrest. That trial ended in a verdict of guilty on November 7,1984. On the basis of that conviction, the trial court denied the defendant’s motion to dismiss the charges stemming from her August 22, 1983 arrest, and the defendant entered a plea of nolo contendere to those charges on November 21, 1984.

The defendant raises several claims of error challenging her November 7,1984 conviction for driving while under the influence of intoxicating liquor. We will consider those claims momentarily. At present it is sufficient to note that we find error in that conviction, and order a new trial. The defendant also claims error in the trial court’s denial of her motion to dismiss the August 22, 1983 charges against her, to which she pleaded nolo contendere on November 21, 1984. The defendant’s claim in this regard is essentially the same as that recently considered by this court in State v. Descoteaux, 200 Conn. 102, 509 A.2d 1035 (1986). In Descoteaux, the defendant had been removed from the pretrial alcohol education program on the basis of her conviction on a subsequent arrest for driving while under the influence of intoxicating liquor. We held that that conviction, even though arising from a subsequent incident, provided the trial court a sufficient reason to remove the defendant from the program. The only-difference that we perceive between this case and Descoteaux is that in this case the defendant’s November 7, 1984 conviction, which provided the reason for her removal from the program, was subsequently reversed on appeal, infra, in this opinion. Therefore, with regard to the trial court’s denial of the defendant’s motion to dismiss the August 22, 1983 charges, we believe that the only issue remaining for our consideration is whether our reversal of the defendant’s November 7,1984 conviction is sufficient to distinguish this case from the holding in Descoteaux. For the reasons to follow, we conclude that it is, and accordingly, the November 21,1984 conviction may not stand. We turn now to the specific claims raised by the defendant.

I

The March 11, 1984 Offense

Officer Thomas Curran of the Wallingford police department testified at the defendant’s trial. According to Curran, he observed the defendant driving her automobile in an erratic manner shortly after 2 a.m. on March 11,1984. He testified that the defendant had been driving at a high rate of speed, that she failed to stop at a stop sign, and that she crossed the yellow median four times. Curran also testified that he had followed the defendant with his strobe light and siren on for approximately one mile before she finally pulled over. The defendant could not recite the alphabet beyond the letter “F,” nor could she stand on her feet without assistance. At 2:16 a.m., Curran placed the defendant under arrest for driving under the influence of intoxicating liquor, in violation of General Statutes § 14-227a (a). At 3 a.m., at the police station, the defendant submitted to chemical analysis of her breath as required by General Statutes § 14-227b. Buckley v. Muzio, 200 Conn. 1, 509 A.2d 489 (1986). The defendant’s blood alcohol content measured at .165 percent.

The defendant claims on appeal that the trial court erred: (1) in not instructing the jury on the lesser included offense of driving while impaired in violation of General Statutes § 14-227a (b); (2) in failing to explain adequately the phrase “under the influence” in its charge to the jury; (3) in allowing into evidence the results of the defendant’s breathalyzer test; and (4) in denying the defendant’s motion for mistrial based on the trial court’s redetermination, during jury selection, of the number of peremptory challenges remaining to the defendant. We find error only in the defendant’s final claim. We consider the first three claims only insofar as they may likely recur on retrial.

A

LESSER INCLUDED OFFENSE

The defendant claims that she was entitled to a lesser included offense instruction on driving while impaired, an offense defined in General Statutes § 14-227a (b). The trial court denied the defendant’s request to charge because it believed that driving while impaired, an infraction; General Statutes § 14-227a (i); could not be considered an offense for purposes of the lesser included offense doctrine. While we do not agree with the trial court’s reasoning, we believe that its decision may be sustained under our conventional analysis. As we have stated many times, a lesser included offense instruction is not appropriate unless “there is some evidence, introduced by either the state or the defendant . . . which justifies conviction of the lesser offense; and . . . 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. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). General Statutes § 14-227a (b) provides that a “person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.” Section 14-227a (d) (3) describes “impairment” in terms of the same numerical parameters. Therefore, under these two subsections it is clear that a person is impaired as a matter of law when his or her blood alcohol level is greater than .07 percent and less than .1 percent.

While “legal” impairment is conclusively established where a person’s blood alcohol percentage falls between .07 and .1 percent, the version of General Statutes § 14-227a (d) (4) in effect when this offense was committed did not create a similar presumption of guilt, based on blood alcohol percentage, with respect to the crime of operating a motor vehicle while under the influence of intoxicating liquor as defined in General Statutes § 14-227a (a). The former § 14-227a (d) (4) provided that a blood alcohol level of “ten-hundredths of one per cent or more . . . shall be prima facie evidence that the defendant was under the influence of intoxicating liquor within the meaning of this section.” That section thus created only a rebuttable presumption that a person was “under the influence of intoxicating liquor” where his or her blood alcohol level was found to equal or exceed .1 percent. While evidence of such an alcohol level was sufficient to establish the state’s prima facie case, the defendant was formerly allowed to introduce evidence to show that, despite a blood alcohol level equal to or greater than .1 percent, he or she had not been under the influence of intoxicating liquor at the time of arrest. Thus, although in the present case the defendant’s blood alcohol level was measured at .165 percent, the possibility that she was merely impaired, and not under the influence, cannot be excluded as a matter of law under the former General Statutes § 14-227a (d) (4). The question whether the defendant was entitled to a lesser included offense instruction thus turns on the peculiar facts of the case as revealed by the evidence at trial. In the present case, an instruction on the lesser included offense of operating while impaired would not have been appropriate unless there were some factual basis—some evidence introduced at trial—which would have supported a jury finding that the defendant was impaired, but not under the influence, when she was apprehended by police in the early morning of March 11, 1984.

From what we have said we find it rather obvious that the defendant in this case was not entitled to an instruction on the lesser included offense of driving while impaired. Our abbreviated account of Curran’s testimony indicates that the defendant, irrespective of her blood alcohol level, was quite intoxicated. Curran’s testimony was unrebutted by the defendant, and therefore, there was no evidence whatsoever from which the jury could find that the defendant was not under the influence of intoxicating liquor. If this were at all a close case, then we might be concerned with the trial court’s refusal to instruct on the lesser offense of impairment. But the evidence introduced at this trial was such as to exclude completely the possibility that the defendant was not under the influence of intoxicating liquor, and operated her vehicle while merely impaired. Since the defendant was not entitled to a lesser included offense instruction under the dictates of State v. Whistnant, supra, the trial court did not err in refusing to give one.

B

DEFINITION OF “UNDER THE INFLUENCE”

The defendant claims that the trial court erred in instructing the jury on the meaning of “under the influence” as that phrase is used in General Statutes § 14-227a (a). The defendant filed the following request to charge, and took an exception when the charge was not given: “If intoxicating liquor has so far affected the nervous system and brain of the driver of a motor vehicle as to impair to an appreciable degree his ability to operate the car as he would in the full possession of his faculties, then such a driver is under the influence of intoxicating liquor within the meaning of the statute.” Instead of charging in accordance with the defendant’s request, the trial court instructed the jury to apply the ordinary meaning of the word “influence,” which it then defined as “the power of producing an effect.”

The defendant’s request to charge appears to be based on language found in our cases. See Higgins v. Champ, 161 Conn. 200, 203, 286 A.2d 313 (1971); Infeld v. Sullivan, 151 Conn. 506, 509, 199 A.2d 693 (1964); State v. Andrews, 108 Conn. 209, 216, 142 A. 840 (1928). While the defendant has cited these cases in support of her claim of error in her brief to this court, she did not mention these or any other cases in her request to charge, as required by Practice Book § 852. We presume, for example, that had the defendant cited Higgins v. Champ, supra, as authority for her requested instruction, then the trial court would have adopted the request, and the present claim of error would not be before us. Practice Book § 852 provides, in pertinent part, that each request “shall be . . . concisely stated with the citation of authority upon which it is based.” See State v. McIntosh, 199 Conn. 155, 160-61, 506 A.2d 104 (1986).

Because the defendant did not comply with Practice Book § 852, we review this claim of error only insofar as the trial court’s charge may have deprived the defendant of a fundamental constitutional right and a fair trial. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant does not claim that the charge as given has deprived her of any fundamental constitutional rights, and we do not think that she reasonably could prevail on such a theory. We therefore do not review this claim of error.

C

BREATHALYZER RESULTS

The defendant contends that a proper foundation was not laid for the admissibility of her breathalyzer test results, and that the trial court erred in allowing those results into evidence. General Statutes § 14-227a (c) sets forth seven preconditions to the admissibility of breathalyzer results at trial. The defendant challenges only the sixth of those preconditions, which provides that breathalyzer results are inadmissible unless “evidence is presented which demonstrates that the test results accurately reflect the blood alcohol content at the time of the alleged offense.” General Statutes § 14-227a (c) (6). We find the defendant’s claim to be without merit.

The state presented evidence that approximately forty-four minutes had elapsed between the defendant’s arrest and the time the breathalyzer test was administered. The defendant consumed no additional alcohol during this period. The state also presented evidence that the machine used to measure the defendant’s blood alcohol content had been certified by the state health department. Officer Gary Ripa of the Wallingford police department testified that he had checked the machine for accuracy before administering the test to the defendant. Finally, Abraham Stolman, who was then the chief toxicologist for the state of Connecticut, testified that the machine was working properly. The trial court did not err in allowing the results of the breathalyzer test into evidence.

D

PEREMPTORY CHALLENGES

Jury selection for the defendant’s trial commenced on October 25,1984. Under General Statutes § 54-82h, the parties were each entitled to four peremptory challenges. See General Statutes § 14-227a (h). Nonetheless, the trial court mistakenly informed counsel that each side would have eight peremptory challenges. The trial court did not realize its mistake until October 30, 1984, at which time three jurors had been selected and the defendant had exercised four peremptory challenges. The trial court then informed counsel that they would not be afforded eight peremptory challenges as it initially had indicated. Defense counsel stated that he would not have exercised his last peremptory challenge had he known that he would subsequently be limited to only four. In response, the trial court offered to allow the defendant to retract her last peremptory challenge, and therefore, to accept as a member of the jury the recently excused venireman. The trial court also offered to allow the defendant an additional peremptory challenge. The defendant refused the offer, and moved for a mistrial. The trial court denied the defendant’s motion.

“ ‘The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 914 (1982); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); see Practice Book § 887.’ State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984), quoting State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 462 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).” State v. Gaston, 198 Conn. 490, 495-96, 503 A.2d 1157 (1986). “The trial court enjoys wide discretion in deciding whether a mistrial is warranted; State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); State v. Gooch, supra, 25; and its decision will be reversed on appeal only if it is established that this discretion has been abused.” State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886 (1986).

In the present case, three jurors and an alternate remained to be selected when the trial court decided that the defendant had exhausted her challenges. We do not think that the defendant should have been required to accept the trial court’s offer to recall a particular venireman who had just recently been excused from service. The dismissed venireman in this case may well have become prejudiced by his disqualification from service as a juror, and the defendant should not have been made to gamble that this prejudice would not have been directed at her. In 1972, article first, § 19, of our constitution was amended to provide that “[i]n civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law.” Conn. Const., art. I § 19, as amended by art. IV (Dec. 22, 1972). This constitutional enactment reflects the abiding belief of our citizenry that an impartial and fairly chosen jury is the cornerstone of our criminal justice system.

This court has never hastened to find error in a trial court’s failure to grant a mistrial. The defendant in this case, however, as in any other case, selected or rejected individual veniremen in reliance on the number of peremptory challenges to which the trial court had led her to believe she was entitled. We note that the trial court could not have committed harmful error by simply allowing the parties more peremptory challenges than provided by law, or in the alternative, by granting the motion for mistrial and beginning juror selection anew. Although the state has presented sufficient evidence to sustain the defendant’s conviction, this court cannot countenance the trivialization of article first, § 19, of our constitution which would inevitably follow from our failure to take appropriate action in this case. We therefore hold that the trial court erred in not granting the defendant’s motion for a mistrial, and this case must be remanded for a new trial.

II

The August 22, 1983 Offense

We next consider the defendant’s claim that the trial court erred in refusing to dismiss the charges arising from her August 22,1983 arrest for operating a motor vehicle while under the influence of intoxicating liquor. The trial court refused to dismiss those charges due to the defendant’s subsequent conviction for operating while under the influence, which conviction we have reversed, supra, in this opinion. After the trial court denied the defendant’s motion to dismiss the charges arising from the August 22,1983 offense, the defendant pleaded nolo contendere, on November 21, 1984.

In State v. Descoteaux, supra, 106-107, we held that General Statutes § 54-56g (b) “requires the trial court to make an independent determination of the defendant’s satisfactory completion of the prescribed program of alcohol education and treatment.” In the present case it does not appear from the record that the trial court made any such independent determination. Rather, it appears that the trial court based its decision to deny the defendant’s motion to dismiss the August 22,1983 charges, and to remove her from the pretrial alcohol education program, solely upon the defendant’s conviction, on November 7, 1984, on the charges stemming from the March 11, 1984 offense. Since that conviction has now been reversed, it no longer provides an adequate basis to sustain the trial court’s action in denying the motion to dismiss.

Once she had been admitted to the pretrial alcohol education program, the defendant could not be removed unless the trial court made an independent determination that she had lost her eligibility to continue or that she had not completed it successfully. State v. Descoteaux, supra, 108. We note that in this case the trial court need not have deferred its decision on the defendant’s motion to dismiss to await the outcome of the upcoming trial on the March 11, 1984 arrest. The defendant was entitled to no more than a hearing; see Gagnon v. Scarpelli, 411 U.S. 778, 791, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 485, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Parham v. Warden, 172 Conn. 126, 132, 374 A.2d 137 (1976) (revocation of parole); and to an independent determination by the trial court that she had committed the act underlying the March 11,1984 arrest, and that based on that act, she could not successfully have completed the pretrial alcohol education program. Minimum standards of due process would further require that the trial court state the reasons for its decision on the record. Lee v. Board of Education, 181 Conn. 69, 79-80, 434 A.2d 333 (1980).

Thus, while the evidence adduced at the defendant’s trial for the March 11, 1984 offense certainly would have justified an independent determination by the trial court that the defendant could not successfully have completed the pretrial alcohol education program, the trial court made no finding to that effect. We therefore find error in the trial court’s denial of the defendant’s motion to dismiss the August 22, 1983 charges, and remand the case to the trial court for a determination of whether the circumstances surrounding the March 11, 1984 arrest were such as to require her removal from the program.

There is error in the first case, and the case is remanded for a new trial.

There is error in the second case, and the case is remanded for further proceedings not inconsistent with this opinion.

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

Shea, J.,

concurring. Although I agree with the remainder of the majority opinion, I disagree with the portion relating to the March 11, 1984 offense that allows a person whose blood alcohol level is .1 percent or greater to be found guilty of operating a motor vehicle while his ability to do so is impaired in violation of subsection (b) of General Statutes § 14-227a, an infraction, rather than of operating under the influence of intoxicating liquor in violation of subsection (a), which bears far more serious consequences. Subsection (b) provides that “[a] person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.” Subsection (d) (3) provides similarly that “evidence that at such time the ratio of alcohol in the blood was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight, shall constitute impairment within the meaning of this section.” Thus, the statutory definition of the offense authorizes a conviction only when an operator’s blood alcohol ratio falls between the prescribed limits of .07 and .1 percent. The offense of driving while impaired is not otherwise defined.

The majority opinion, nonetheless, holds that the defendant, whose blood alcohol ratio was .165 percent, according to the only evidence submitted on that subject, would have been entitled to have the jury instructed to consider finding her guilty of driving while impaired as a lesser offense included in the charge of operating under the influence of intoxicating liquor, except that the arresting officer’s testimony indicates that she, “irrespective of the blood alcohol level, was quite intoxicated.” The opinion does not attempt to define the offense of operating while impaired in the context of a blood alcohol ratio of .165 percent or provide any standards for differentiating the more serious offense of operating under the influence, leaving the trial courts wholly without guidelines for instructing jurors where blood tests indicate a level of .1 percent or higher. I fail to understand how giving the trier the alternative of impairment as a lesser included offense in cases where there is no evidence of a blood alcohol ratio falling between .07 and .1 percent can be reconciled with the statutory definition of that offense.

The majority concludes that the “possibility that [the defendant] was merely impaired, and not under the influence, cannot be excluded as a matter of law.” The opinion nevertheless proceeds to exclude that possibility as a matter of law. It justifies the refusal of the trial court to submit impairment in violation of subsection (b) as a lesser offense on the ground that the testimony of the arresting officer indicated that the defendant was “quite intoxicated.” This court has no authority to resolve disputed issues of fact or to assess the credibility of witnesses. The fact that the officer’s testimony “was unrebutted by the defendant” does not mean that the jurors were obligated to believe it. Implicit in the view of the majority is the notion that an appellate court may effectively direct a guilty verdict upon a charge of operating under the influence whenever the testimony indicates an accused to have been “quite intoxicated,” as it ordinarily does. Such an approach in my judgment seriously impairs the constitutional right of jury trial in criminal cases.

Despite my disagreement with the majority, I would reach the same result on the ground that there is no evidence to support a finding that the defendant’s blood alcohol ratio fell between the limits of .07 percent and .1 percent as prescribed for the offense of driving with impaired ability to operate a motor vehicle. The record, therefore, is devoid of any evidence to support a conviction of that offense and the trial court properly refused to submit that alternative to the jury. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Accordingly, I agree with the result.

       Public Acts 1985, No. 85-596, § 1, repealed the former General Statutes § 14-227a (d) in its entirety to provide that “[a] person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor ... (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.” See State v. Kozlowski, 199 Conn. 667, 671, 509 A.2d 20 (1986).


author: Santaniello, J.

text:
    Shelby Mutual Insurance Company v. Dennis Della Ghelfa et al.
    (12753)
    (12774)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued April 10
    decision released July 29, 1986

      Wesley W. Horton, with whom were Paul R. Griffin and, on the brief, Kimberly A. Knox, law student intern, for the appellants (defendants).

      Marc N. Needelman, for the appellee (plaintiff).
   Santaniello, J.

This is an appeal, after certification, from a judgment of the Appellate Court reversing the decision of the Superior Court which granted the plaintiff insurer summary judgment in the amount of $5000. We granted certification to review the Appellate Court’s judgment that: (1) a no-fault automobile insurer that has paid more than $5000 to its insured as part of extended reparations coverage under the No-Fault Motor Vehicle Insurance Act (the act), General Statutes §§ 38-319 through 38-351, was entitled to full reimbursement upon the insured’s recovery from a third party tortfeasor; and (2) a no-fault insurer under the pre-1981 version of the act may enforce its right to reimbursement and right to a lien against the insured’s attorney where the attorney received the funds on behalf of the insured. We affirm the judgment of the Appellate Court.

The decision of the Appellate Court fully sets forth the underlying facts and circumstances. Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 434-35, 489 A.2d 398 (1985). As a result of an automobile accident occurring in 1975, the defendant Dennis Della Ghelfa received $11,989.02 under his no-fault automobile insurance policy with the plaintiff, Shelby Mutual Insurance Company. The plaintiff was required by state insurance regulations then in effect to offer, in addition to the statutory minimum of $5000, optional increased coverage of $10,000, $15,000 and $25,000 as reparations benefits. Regs., Conn. State Agencies § 38-330-1. The defendant had purchased coverage in an amount exceeding the $11,989.02 which he had received as reparations benefits. After the plaintiff paid Della Ghelfa, it gave him and his attorney, the defendant Zbigniew S. Rozbicki, notice of its statutory right of reimbursement under General Statutes (Rev. to 1979) § 38-325. On October 4,1979, Della Ghelfa, represented by Rozbicki, obtained a judgment of $18,000 against a third party tortfeasor for a claim arising out of the accident. The recovery was paid to Rozbicki who in turn disbursed the proceeds to Della Ghelfa.

The plaintiff, by complaint dated April 15,1980, filed this action seeking reimbursement of the insurance benefits paid to Della Ghelfa. The suit was brought in two counts, one alleging that Della Ghelfa wrongfully retained the amount recovered in the third party action and one alleging that Rozbicki wrongfully turned the money over to Della Ghelfa. The plaintiff claimed that under General Statutes (Rev. to 1979) § 38-325 (b) it possessed a statutory right of reimbursement and that the defendants failed to honor that lien. Rozbicki moved to strike the complaint on the ground that § 38-325 (b) did not create a lien against him as Della Ghelfa’s attorney, but the court, O’Donnell, J., denied his motion. Rozbicki then filed twenty-two special defenses which the plaintiff thereafter moved to strike. The court, Aspell, J., ruled that twenty-one of the twenty-two special defenses did not state legally sufficient grounds to defeat the plaintiff’s claim and granted the motion to strike as to those defenses. As to the remaining defense, that the act limited the plaintiff’s recovery to $5000, the court denied the motion to strike. The plaintiff later moved for summary judgment in the amount of $11,989.02, the full amount of the benefits paid to Della Ghelfa. The court, Satter, J., granted the plaintiff’s motion but limited the recovery to $5000 on the ground that the lien created by § 38-325 (b) is limited to a maximum of $5000 by virtue of § 38-320 (a) and (d).

The plaintiff appealed the judgment of the trial court to the Appellate Court claiming error in the court’s limitation of recovery. Rozbicki cross appealed claiming that the court erred in denying his motion to strike the plaintiff’s complaint, in granting the plaintiff’s motion to strike all but one of his twenty-two special defenses, and in granting the plaintiff’s motion for summary judgment. The Appellate Court found error on the plaintiff’s appeal and determined that summary judgment should have been granted in the full amount of $11,989.02. The court, however, also found that the trial court should not have stricken one of Rozbicki’s special defenses and found error in part on the cross appeal. The court therefore ordered that the trial court’s “judgment [be] set aside and the case [be] remanded with direction to render judgment for the plaintiff in the amount of $11,989.02 against the defendant Della Ghelfa, and against the defendant Rozbicki unless he establishes his nineteenth special defense in a hearing limited to that issue.” Shelby Mutual Ins. Co. v. Della Ghelfa, supra, 450.

We granted certification to review the judgment of the Appellate Court that the plaintiff was entitled to recover the full amount of benefits paid to Della Ghelfa and that the plaintiff could assert its statutory right to reimbursement against Rozbicki. “In this appeal the focus of our review is not the judgment of the Superior Court but of the Appellate Court. We do not hear the appeal de novo. The only questions we need consider are those squarely raised by the petition for certification and the appellee's preliminary statement of issues, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court. See Practice Book §§ 3012 (a), 3154; State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985); State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).” Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139 (1986).

I

We turn first to the issue concerning the limitation on reimbursement. The Appellate Court held “that where the insurer has paid benefits for economic loss in excess of $5000 pursuant to increased coverage which it was required to provide by a regulation of the insurance commissioner, the entire amount of those benefits paid constitutes ‘basic reparations benefits’ and is subject to the reimbursement and lien rights created by § 38-325 (b).” Shelby Mutual Ins. Co. v. Della Ghelfa, supra, 437. We agree with the Appellate Court’s interpretation of the act.

Connecticut’s no-fault automobile insurance provisions require the no-fault insurer “to pay, without regard to fault, basic reparations benefits under a uniform separately identifiable coverage of five thousand dollars per person per accident for economic loss . . . .” General Statutes § 38-320 (a). “Basic reparations insurers may offer optional added reparations coverages providing other benefits as compensation for injury” and may be required by the insurance commissioner to offer specific optional added reparations coverages. General Statutes § 38-330. “Whenever a person who receives basic reparations benefits for an injury recovers damages . . . the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid and shall have a lien on the claimant’s recovery to such extent.” (Emphasis added.) General Statutes (Rev. to 1979) § 38-325 (b). “Basic reparations benefits” is defined as “benefits reimbursing persons suffering economic loss through injury arising out of the ownership, maintenance or use of a private passenger motor vehicle . . . . ” General Statutes § 38-319 (k). No monetary limit is given in the statutory definition, but § 38-320 (d) provides that “[t]he maximum amount of basic reparations benefits payable for all economic loss resulting from injury . . . shall not exceed five thousand dollars . . . .”

The Appellate Court found that the term “basic reparations benefits” as used in § 38-325 (b) includes not only the first $5000 of coverage, but also payments made pursuant to extended coverage purchased under § 38-330. The court reasoned that the legislative history and the basic purposes of the act indicate that the legislature sought to provide insurers with reimbursement for all payments made under the obligations imposed on them by the act. Further, the court noted that an interpretation limiting the lien to $5000 “would lead to difficult and bizarre results . ” Shelby Mutual Ins. Co. v. Della Ghelfa, supra, 443. The defendants claim that the language of § 38-320 (a) and (d) makes it clear that the legislature intended the § 38-325 (b) lien to be limited to the payment of $5000. Relying on the well established rule of statutory construction that when a statute is unambiguous, further inquiry into its background, history, objectives and underlying policy is unnecessary; see The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 8, 490 A.2d 991 (1985); they argue that the Appellate Court’s analysis and subsequent conclusion were erroneous.

We cannot agree with the defendants that the language of the act is absolutely clear. We affirm the conclusion of the Appellate Court that an inquiry into the history and purpose of the act is necessary. In interpreting a particular provision like § 38-325 (b), a reviewing court must, as far as possible, reconcile its wording with other statutes, especially those enacted as part of the same legislation, in order to render an overall reasonable interpretation. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Dukes v. Durante, 192 Conn. 207, 214-15, 471 A.2d 1368 (1984). In this case, the apparent limitation on insurer liability established in § 38-320 (a) and (d) does not foreclose the possibility that insurers will be obligated to pay more than $5000 as part of extended reparations benefits under § 38-330. Thus, the limitation provided in §§ 38-320 (a) and (d) does not make it absolutely clear that the lien created by § 38-325 (d) is limited to $5000. Furthermore, “basic reparations benefits” is defined in § 38-319 (k) not in terms of amounts paid, but in terms of coverage, making it entirely reasonable to conclude that such benefits are not limited to $5000.

We also affirm the conclusion of the Appellate Court that the history and scheme of the act indicate a legislative intent to create a lien in favor of the insurer for the entire amount paid in reparations benefits. Although there is no question that, when enacted in 1972, the act provided for reparations benefits of only $5000; see generally 15 S. Proc., Pt. 5,1972 Sess., pp. 2143-49, 2161, remarks of Senator Jay Jackson; 15 H. R. Proc., Pt. 5,1972 Sess., pp. 1843-53, remarks of Representative John Carrozzella; the act also contained § 38-330, granting the insurance commissioner the authority to adopt regulations requiring insurers to offer optional added reparations benefits. This provision created the possibility that insurers in the future would be required to pay more than $5000 in benefits under the act. Given this statutory scheme, we conclude that the legislature intended for the operative provisions of the act, including § 38-325 (d), to apply to reparations benefits paid by an insurer, whether under a policy giving the minimum $5000 coverage originally contemplated, or under a policy offering greater coverage as required by regulation. The term “basic reparations benefits” as used in § 38-325 (d) should therefore be read expansively to take such an extension of insurer liability into account. See Keeton & O’Connell, Basic Protection for the Traffic Victim pp. 8, 311, 422.

Moreover, we agree with the Appellate Court that the defendants’ interpretation lacks common sense and frustrates the purposes of the act. One of the primary goals of the act is to reduce insurance premiums by eliminating overlapping benefits from other sources and by creating an efficient reparations system. Gentile v. Altermatt, 169 Conn. 267, 290-92, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). This purpose would be thwarted if the insured were allowed to retain both the insurance benefits paid by the insurer and the recovery from the tortfeasor. Since most of the act’s operative provisions refer to “basic reparations benefits” it would also “defy common sense, if those [provisions] only apply to the first $5000 of coverage and not to the excess, sold by the insurer and purchased by the insured for the same purposes as those served by the first $5000.” Shelby Mutual Ins. Co. v. Della Ghelfa, supra, 443.

II

We consider next whether the insurer’s statutory lien and right of reimbursement is enforceable against the insured’s attorney. In his cross appeal to the Appellate Court, Rozbicki claimed that the trial court erred in ruling that the complaint stated a cause of action against him for violation of the plaintiff’s lien rights under General Statutes (Rev. to 1979) § 38-325 (b). The Appellate Court agreed with the trial court that § 38-325 (b) created a lien enforceable against Rozbicki. Shelby Mutual Ins. Co. v. Della Ghelfa, supra, 444-45. We affirm.

At the time this action was commenced, General Statutes (Rev. to 1979) § 38-325 (b) provided that when, as here, an insured recovers from a third party tortfeasor, “the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid and the insurer shall have a lien on the claimant’s recovery to such extent.” (Emphasis added.) The statute does not specify against whom the lien is enforceable, but instead creates a general lien “on the claimant’s recovery.” We construe this language as expressly allowing the insurer to enforce the lien against anyone with notice thereof holding the recovery on the claimant’s behalf. This is especially true where the possessor of the funds is the claimant’s attorney who received the funds as the claimant’s agent. See Derwort v. Loomer, 21 Conn. 244, 255-56 (1851). The plaintiff was therefore entitled to seek reimbursement from Rozbicki for wrongfully disbursing the proceeds of the settlement. See Unigard Ins. Co. v. Tremont, 37 Conn. Sup. 596, 598-601, 430 A.2d 30 (1981); 51 Am. Jur. 2d, Liens § 60; see also Lamb v. Peck, 183 Conn. 470, 472-73, 441 A.2d 14 (1981).

The defendant Rozbicki proffers the argument that the legislature, by amending § 38-325 (b) in 1981 to provide that “no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant”; Public Acts 1981, No. 81-386, § 2; indicated that it was their original intent to create a lien only against the claimant. There is legislative history to the effect that the legislature, in amending the statute, was reacting to the Superior Court decision of Unigard Ins. Co. v. Tremont, supra, which held that under the pre-1981 version, an insurer may enforce the statutory lien against the insured’s attorney. See 24 H. R. Proc., Pt. 24, 1981 Sess., p. 7862, remarks of Representative Richard Tulisano. We have recognized that where the legislature has amended a prior statute and that amendment was intended to clarify rather than change existing law, then the amending language “ ‘must be accepted as the legislative declaration of the meaning of the original act.’ Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977); see Sutherland, Statutory Construction (4th Ed.) §§ 22.31, 22.35.” Lee v. Board of Education, 181 Conn. 69, 75, 434 A.2d 333 (1980); see also Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985). In regard to this amendment, however, we cannot agree with Rozbicki that the legislature intended the changes in the act to clarify the existing law. The only relevant legislative history on the amendment are the remarks of Representative Richard Tulisano when he commented: “This [bill] addresses a court decision which somehow indicated that once it was paid over to anybody to pay for the claimant, the lien already attached and there might in fact be liability on a person who would be only a funnel and an intermediary and this is designed to correct any possible problems in that area.” (Emphasis added.) 24 H. R. Proc., Pt. 24,1981 Sess., p. 7862. If anything, these remarks indicate a legislative intent to modify rather than clarify the original version of the statute. See Koskoff, Koskoff & Bieder v. Allstate Ins. Co., 187 Conn. 451, 455-57, 446 A.2d 818 (1982) (where a 1980 amendment to § 38-325 (b) was similarly held not to clarify the prior law). Thus, the 1981 amendment should not be applied retroactively.

We conclude that the Appellate Court properly construed General Statutes (Rev. to 1979) § 38-325 (b). The statute grants the plaintiff a lien on Della Ghelfa’s recovery to the full extent of reparations benefits paid and the lien is enforceable against both Della Ghelfa and Rozbicki.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       Given our narrow scope of review, we do not consider the merits of the Appellate Court’s decision reversing the trial court’s order striking the nineteenth special defense.

       General Statutes § 38-320 (a) provides: “The owner’s insurer is liable to pay, without regard to fault, basic reparations benefits under a uniform separately identifiable coverage of five thousand dollars per person per accident for economic loss resulting from injury arising out of the ownership, maintenance or use of a private passenger motor vehicle as a motor vehicle, subject to the provisions of this chapter.”

       General Statutes § 38-330 provides: “Basic reparations insurers may offer optional added reparations coverages providing other benefits as compensation for injury or harm arising from the ownership, maintenance or use of a private passenger motor vehicle, including loss excluded by limits on funeral and burial expenses, and loss excluded by limits on work loss and survivor’s loss. The insurance commissioner may adopt rules requiring that specific optional added reparations coverages be offered by insurers writing basic reparations insurance. Added reparations coverages are not limited to injuries occurring within this state, but may be limited to injuries occurring within the United States of America, its territories and possessions and Canada.”

       At the time the plaintiff’s lien attached, General Statutes (Rev. to 1979) § 38-325 (b) provided: “Whenever a person who receives basic reparations benefits for an injury recovers damages from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under this chapter or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid and the insurer shall have a lien on the claimant’s recovery to such extent.”

       General Statutes § 38-320 (d) provides: “The maximum amount of basic reparations benefits payable for all economic loss resulting from injury to any one person as the result of any one accident shall not exceed five thousand dollars per person regardless of the number of insurers involved. If two or more insurers are liable to pay benefits for such an injury, any insurer paying the benefits due shall be entitled to recover from each of the other insurers an equitable pro rata share of the benefits paid and expenses incurred in processing the claim.”

       As noted above, at the time the defendant Della Ghelfa purchased coverage, the insurance commissioner required that insurers offer increased coverage. See Regs., Conn. State Agencies § 38-330-1.

       General Statutes § 38-325 (b) provides: “Whenever a person who receives basic reparations benefits for an injury recovers damages, either by judgment or settlement, from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under this chapter or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid, minus an amount which represents the insurer’s contribution toward attorney’s fees for the collection of basic reparations benefits. Such amount shall be computed by multiplying the total amount of such reasonable attorney’s fees and costs, by a fraction, the numerator of which shall be the amount of basic reparations benefits received by the claimant and the denominator shall be the amount of damages recovered by the claimant, less court costs. In no event shall such amount exceed one-third the amount of the basic reparations benefits to be reimbursed to the insurer. The insurer shall have a lien on the claimant’s recovery for the amount to which he is entitled for such reimbursement; provided no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant.”

       Because of our conclusion that the lien created by § 38-325 (b) was enforceable against Rozbicki, we need not reach his argument that, absent the existence of a statutory lien against an insured’s attorney, he could not be found liable for conversion.


text:
    State of Connecticut v. Joseph Doehrer
    (12623)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 30
    decision released July 29, 1986

      Robert L. Genuario, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were John J. Kelly, chief state’s attorney, and Mary Glassman, law student intern, for the appellee (state).
   Dannehy, J.

The defendant, Joseph Doehrer, was indicted for murder in violation of General Statutes § 53a-54a (a), and charged by information with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and assault in the second degree with a firearm in violation of General Statutes § 53a-60a (a). The defendant was tried by jury and found guilty as charged of each offense. He was sentenced to imprisonment on each conviction for consecutive terms of sixty years for murder, twenty years for assault in the first degree, and five years for assault in the second degree with a firearm. The defendant claims on appeal that the trial court erred: (1) in denying his motion to suppress oral statements; (2) in admitting an allegedly prejudicial photograph; and (3) in denying his motion for mistrial. We find no error.

There was no dispute at trial that Barry Antoni was killed by the defendant on February 24, 1983. The event which precipitated the death of Barry Antoni was an incident that occurred between Patricia Antoni, the decedent’s sister, and the defendant at the apartment of a mutual acquaintance, Patrick Lyons. The evidence adduced at trial established that Patricia had gone to Lyons’ apartment about one and one-half weeks prior to the shooting to purchase cocaine. While at the apartment, she attempted to steal two grams of cocaine from Lyons and to leave the apartment without paying him for the cocaine she had consumed while there. At that point Lyons threatened her and telephoned the defendant and another man, Eugene Jarvis. When they arrived, the defendant pointed a gun at Patricia and the men inquired as to the whereabouts of the missing cocaine. Although Patricia was then too frightened to admit the attempted theft, the cocaine was eventually found where she had hidden it earlier. The defendant warned Patricia that if she reported the incident to the police, they would kill her and her family.

Patricia testified that the defendant telephoned her several days after the apartment incident to ask whether she had paid Lyons for the cocaine she had used. The defendant suggested a meeting, which subsequently took place, to discuss the use of Patricia’s Econoline van to transport stolen goods to New York. The next time Patricia saw the defendant was the night before her brother’s death. On that evening, she accompanied the defendant and Jarvis to the apartment of the defendant’s brother, where a small group had gathered for music and also to use alcohol and drugs. After the defendant had taken Patricia home, a one hundred dollar bill was believed missing from the apartment. There was some evidence that the individuals at the party wrongly suspected Patricia of the theft. Although the bill was later found, the defendant was not aware of this fact when he went to the Antoni residence the following evening.

On February 24,1983, at about 6 p.m., Patricia, while home at the Antoni residence in Orange, Connecticut, received a telephone call from the defendant. In response to his statement that he might stop over, Patricia told the defendant not to come because her parents had visitors, but to call back in an hour. About an hour later, Barbara Antoni, the decedent’s mother, heard a knock at the front door. As she was opening the door, the defendant and his companion Jarvis pushed their way into the house. The defendant grabbed Barbara Antoni and held a gun to her head. When she screamed, her husband, Cleto Antoni, and her son Barry emerged from rooms in the upper level of the house and ran downstairs. The defendant shot Barry, mortally wounding him, and then proceeded to shoot Cleto, hitting him in the lower abdomen. During the commotion, Jarvis struck Barbara Antoni, causing her to fall backwards to the floor. By this time, Patricia had ascended the stairs from the lower level of the house and entered the hallway. She screamed at the defendant, “Why are you doing this? Why are you here? What’s going on?” The defendant replied that it was because she had stolen his money. He then pointed a gun at her and fired, hitting her in the arm. At this point, the defendant and Jarvis fled the scene. Additional facts will be discussed in the opinion.

I

We first turn to the issue of whether the trial court should have suppressed evidence of statements made by the defendant during “the course of general conversation” with police officers while in their custody but prior to being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Testimony at trial indicates that following the defendant’s arrest in New York City on March 12, 1983, he was transported by law enforcement officials to a New York federal building. Orange police officer Neil Hathaway testified, outside of the jury’s presence, that during the approximately twenty minute drive to the building, the defendant and officials had a “general conversation” in which the defendant asked the officials how they had found him. The officials replied that it had been through police work. At that point, the defendant made the following incriminating remarks: “We give up. We were expecting you. It’s easier this way. I’m tired of running.” Although Hathaway could not recall the content of the general conversation immediately prior to the defendant’s question, he testified that it was the defendant who spoke first. The officer also stated that the defendant had not been advised of his Miranda rights before his arrival at the federal building.

The state sought to introduce the defendant’s statements at trial as an admission of flight indicative of consciousness of guilt. The state further claimed that the statements were spontaneously given and thus not a result of custodial interrogation necessitating Miranda warnings. See Miranda v. Arizona, supra, 478. In moving to suppress the statements, defense counsel argued that whether or not there had been an interrogation, the officers had still engaged the defendant in conversation in order to elicit incriminating statements. The trial court denied the defendant’s motion and Hathaway testified as to the statements in the presence of the jury.

At the outset, we note that the warnings required by Miranda are designed “to combat a situation in which there are ‘inherently compelling pressures which work to undermine the individual’s will to resist apd to compel him to speak where he would not otherwise do so.’ Miranda v. Arizona, supra, 467.” State v. Ferrara, 176 Conn. 508, 519, 408 A.2d 265 (1979). Miranda itself,, however, emphasized that volunteered statements were not affected by its holding and were still admissible under the fifth amendment. Miranda v. Arizona, supra, 478.

“Before one suspected of the commission of a crime is entitled to the warnings constitutionally required by Miranda, two conditions are required: the suspect must be in the custody of law enforcement officials . . . and the suspect must be subjected to interrogation.” (Citations omitted.) State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985); see State v. Stankowski, 184 Conn. 121, 136, 439 A.2d 918, cert. denied, 454 U.S. 1042, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). It is undisputed that the defendant was in custody at the time he made the incriminating statements. Therefore, the only issue we need consider is whether the defendant was subjected to interrogation. “ ‘Interrogation’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). The term encompasses not only express questioning, but also “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., 301; see State v. Graham, 186 Conn. 437, 443, 441 A.2d 857 (1982).

The burden of showing that a general conversation amounted to custodial interrogation lies initially with the defendant. United States v. Charles, 738 F.2d 686, 695 n.11 (5th Cir. 1984); United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir. 1977); State v. Vitale, supra, 409. Our review of the record indicates that the defendant did not sustain this burden. The defendant failed to present any evidence at the suppression hearing to suggest that the officers’ words or actions amounted to “interrogation” within the meaning of Rhode Island v. Innis, supra. The only evidence pertaining to this issue came from Hathaway, who testified that the defendant had not been interrogated and that it had been the defendant who initiated the conversation. We think the trial court reasonably concluded from the evidence presented that the defendant’s statements were given voluntarily and were not the product of any interrogation. State v. Stankowski, supra, 137-38; State v. Ferrara, supra, 519-21; State v. Schroff, 3 Conn. App. 684, 690, 492 A.2d 190 (1985).

In determining whether the defendant’s constitutional rights have been infringed, we are not limited to the evidence before the trial court at the time of the ruling but may review the record in its entirety. State v. Shifflett, 199 Conn. 718, 729, 508 A.2d 748 (1986); State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986). Our review of the record reveals no evidence whatsoever that the defendant’s statements were given in response to interrogation. Significantly, the defendant himself testified at trial that he was not questioned during the ride to the federal building but was “joking” with the police. Under the circumstances of this case it is abundantly clear that the defendant has not sustained his burden of demonstrating that his statements were the product of police interrogation.

The defendant also argues that it is the state’s burden to prove an intentional and knowing waiver by the defendant of his right to remain silent while in the custody of the police. We rejected a similar argument in State v. Ferrara, supra, 519-20, where we noted that “incriminating statements made by a defendant are admissible in evidence whether or not the Miranda warning has been given when the statements were not made during the course of a ‘custodial interrogation’. . . . [AJbsent a custodial interrogation, the defendant enjoyed no right which could be the subject of a ‘waiver.’ ” (Citations omitted.) In light of our conclusion that the “general conversation” at issue here did not amount to interrogation, any question of waiver becomes irrelevant.

II

We next turn to the defendant’s claim that the trial court erred in admitting into evidence a photograph depicting Barbara Antoni’s injuries two days after the shooting incident. The photograph, offered during the testimony of Patricia Antoni, is a side view of Barbara Antoni’s face and head, and shows the bruises she received from Jarvis’ blow. The defendant contends that because he was not charged with causing injury to Barbara Antoni, and because the evidence indicated that the injury was not caused by his act, the photograph was not logically relevant to any material issue of the case. Alternatively, the defendant argues that the photograph tended to evoke sympathy for Barbara Antoni and hostility toward him, and that its potential for prejudice far outweighed any possible relevance of the photograph to any issue in the case. We disagree with both contentions.

In State v. DeJesus, 194 Conn. 376, 481 A.2d 1068 (1984), we discussed extensively the rules pertaining to the admissibility of photographic evidence. We held that photographic evidence is admissible where the photograph has “a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787.” State v. DeJesus, supra, 381. There is no requirement in this state that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible; rather, “the test for determining the admissibility of the challenged evidence is relevancy and not necessity. State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).” State v. Haskins, 188 Conn. 432, 453, 450 A.2d 828 (1982). Even if a photograph has the potential to prejudice the jury, it may be admitted if, in the court’s discretion, its probative value outweighs its possible prejudicial effects. State v. DeJesus, supra, 382; State v. Haskins, supra, 452-53. The trial court has wide discretion in balancing a photograph’s potential prejudice against its probative value. State v. DeJesus, supra.

We have examined the challenged photograph and find that it was properly admissible. The photograph tended to corroborate the prior testimony of both Barbara and Patricia Antoni regarding the events which resulted in Barbara’s injury. We have previously held that photographs which are cumulative of other evidence presented are admissible in homicide prosecutions. State v. DeJesus, supra, 385; State v. Piskorski, supra, 701.

The photograph was also independently relevant to the issue of intent. Intent was a material element of both the murder and assault charges and it was the state’s burden to prove such intent beyond a reasonable doubt. See General Statutes §§ 53a-54a (a), 53a-59 (a) (1) and 53a-60a (a); State v. D’Antuono, 186 Conn. 414, 422, 441 A.2d 846 (1982). The defendant not only denied any intent to cause the death of Barry Antoni or to cause serious physical injury to Cleto or Patricia Antoni, but also attempted to reduce the murder charge to first degree manslaughter by claiming the affirmative defense of extreme emotional disturbance. In introducing the controversial photograph, the state sought to demonstrate that the defendant and Jarvis were working together with a preplanned intent to kill Patricia and possibly the entire Antoni family. In admitting the photograph, the trial court could reasonably have concluded that it was relevant in that it tended to negate the defendant’s contention that the shootings were unplanned and a result of momentary panic.

The defendant’s alternative contention is that the prejudicial effect of the photograph far outweighed any logical relationship it had with a disputed issue of the case. As we have already pointed out, a trial court has broad discretion in weighing the potential prejudicial effect of a photograph against its probative value. State v. DeJesus, supra, 382; State v. Haskins, supra, 452-53. When the court admitted the photograph of Barbara Antoni, it implicitly found that its value outweighed its potential prejudice. On appeal, we may not disturb such a finding absent a clear abuse of discretion. State v. Piskorski, supra. We find no such abuse in the present case. The photograph was not gruesome, and the jury had already heard testimony concerning the more serious injuries inflicted upon the other members of the Antoni family. Therefore, it was reasonable for the trial court to conclude that the admission of the photograph would not inflame the passions of the jurors or unduly prejudice the defendant.

III

The defendant’s final claim of error concerns the denial of his motion for a mistrial. During cross-examination of the defendant, the attorney for the state posed the following question in the presence of the jury: “And you’re also street wise enough to realize that the penalty for murder in this state is sixty years, and the penalty for manslaughter first degree . . . . ” At that point, the defendant objected and the jury was excused. The defendant moved for mistrial on the grounds that the jury was not entitled to know the penalties for the various crimes or to know that murder carried a more severe penalty than manslaughter. The court denied the motion but ruled that the state would not be permitted to make mention of the penalties provided by statute for the crimes of murder or manslaughter. When the jury returned, the court instructed it to disregard the partial question it had previously heard. In its final charge, the court again warned the jury that it was not to be concerned with the punishment to be inflicted in the event of conviction.

The defendant contends on appeal that the prosecutor’s aborted question improperly brought to the jury’s attention the nature of the penalties for murder and manslaughter, thus distracting the jury from its function of deciding guilt or innocence, and denying him due process of law. While we agree with the defendant that the state’s question was improper, under the circumstances of this case, we do not believe it was so prejudicial as to require a mistrial.

“The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial.” 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). The trial court has broad discretionary powers in ruling on motions for mistrial. State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978); State v. Hafner, 168 Conn. 230, 245-46, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975). “Where a motion for mistrial is made in response to a prosecutor’s allegedly improper question, the burden is on the defendant to establish that, in the context of the proceedings as a whole, the question was so prejudicial that it deprived him of a fair trial. . . . ‘Merely asking an improper question . . . does not necessarily mandate a mistrial.’ State v. Dolphin, 195 Conn. 444, 452, 488 A.2d 812 (1985).” State v. Fleming, 198 Conn. 255, 267, 502 A.2d 886 (1986).

We do not believe that the trial judge abused his discretion in denying the defendant’s motion for mistrial. While the prosecutor should not have told the jury that the penalty for murder was sixty years, “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, [supra, 562]; State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982).” State v. Magnotti, 198 Conn. 209, 215-16, 502 A.2d 404 (1985). In this case the prosecutor never completed the question concerning the differences in penalties. Any possible prejudice stemming from the portion of the question that the jury did hear was cured by the prompt curative instruction and the further instruction given by the judge in his final charge. State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985); State v. Gasparro, 194 Conn. 96, 111, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985); State v. Falcone, 191 Conn. 12, 25, 463 A.2d 558 (1983). In view of these circumstances, we cannot conclude that the defendant was deprived of a fair trial. The denial of the defendant’s motion for mistrial was therefore proper.

There is no error.

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

Shea, J.,

concurring. Although I agree with the remainder of the majority opinion, I disagree with the portion that concludes that the photograph showing the extent of the injuries sustained by Barbara Antoni from the blow received from Eugene Jarvis, the defendant’s companion in the crimes, was “independently relevant to the issue of intent.” In this case there were three issues of intent for the jury to determine: (1) whether the defendant intended to cause the death of Barry Antoni, the murder victim; (2) whether he intended to cause serious physical injury to Cleto Antoni, the first degree assault victim; and (3) whether he intended to cause physical injury to Patricia Antoni, the second degree assault victim. I fail to comprehend how the photographic display of the injuries to Barbara inflicted by Jarvis has any probative value in relation to the defendant’s intention toward the other victims as an element of the crimes charged.

The additional suggestion of the majority opinion that the photograph “tended to negate the defendant’s contention that the shootings were unplanned and a result of momentary panic” is similarly flawed. The extent of the injuries to Barbara caused by Jarvis’ blow adds nothing to the likelihood that the shootings were planned by the defendant previously and thus not the product of an extreme emotional disturbance. It was Jarvis who struck Barbara, not the defendant, whose emotional state can hardly be ascertained from the consequences of a blow delivered by his accomplice.

Although the photograph had no evidentiary value in establishing the defendant’s state of mind toward the three victims at the time he fired his gun at them, I agree with the majority that it tended to corroborate some of the events attested to by the state’s witnesses. Nevertheless, since the photograph had some inflammatory potential and the testimony that Barbara had swelling and discoloration around the area of her left eye was largely undisputed, the court should have sustained the defendant’s objection to the photograph. The error was harmless, however, because the photograph was not so gruesome that it could have had any material effect in arousing the passions of the jurors in comparison to the evidence of the injuries received at the hands of the defendant by the three victims of the shooting and also the testimony concerning the injuries to Barbara which the photograph merely illustrated.

Accordingly, I agree with the result.

       In his concurring opinion, Justice Shea ventilates his failure to “comprehend” the elementary proposition that evidence tending to establish concerted action, or plan, may be relevant to show that the participants acted, or carried out their plan, with the requisite criminal intent to do so. That evidence of plan, or common scheme, is relevant to the issue of intent has long been recognized in our cases. State v. Lizzi, 199 Conn. 462, 468-69, 508 A.2d 16 (1986); State v. Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976); State v. Harris, 147 Conn. 589, 599-600, 164 A.2d 399 (1960); State v. Barnes, 132 Conn. 370, 372-73, 44 A.2d 708 (1945); see 2 Wigmore, Evidence (3d Ed.) § 304. We have recently noted that evidence of plan, scheme or conspiracy “ ‘will be relevant as showing motive, and hence the doing of the criminal act, the identity of the actor, and his intention, where any of these is in dispute.’ McCormick, Evidence (2d Ed.) § 190, pp. 448-49.” (Emphasis added.) State v. Shindell, 195 Conn. 128, 133-34, 486 A.2d 637 (1985). We have further observed that “[c]ommon plan evidence . . . may negative a claim that specific conduct resulted from accident or inadvertance, or was justified by self-defense.” State v. Esposito, 192 Conn. 166, 171, 471 A.2d 949 (1984); see State v. Jenkins, 158 Conn. 149, 156, 256 A.2d 223 (1969). Assuming the continuing validity of these cases, we do not believe that the trial court can be said to have erred in admitting evidence which clearly established that the defendant committed these acts with assistance of an accomplice.
      We would also reiterate, once again, that evidence is not rendered irrelevant merely because it does not lead the trier of fact to a single, compelling conclusion. State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985). That Justice Shea is able to evaluate the evidence in this case and conclude that it was not relevant does not mean that other reasonable persons might not conclude otherwise. This somewhat uninspired observation is significant only in its relation to the standard of review purportedly followed by this court in deciding questions of this nature. We have said that the “ ‘trial court exercises a broad discretion in admitting such evidence, and its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown. State v. Piskorski, 177 Conn. 677, 700-701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Smith, [174 Conn. 118, 123, 384 A.2d 347 (1977)].’ State v. Bember, [183 Conn. 394, 408, 439 A.2d 387 (1981)].” State v. DeJesus, 194 Conn. 376, 382, 481 A.2d 1277 (1984). If this statement of the “appropriate” standard means anything at all, it means that it matters little that this court might have decided the matter differently ab initio. It would seem that under the announced standard the proper focus would be on whether the trial court could reasonably have concluded that evidence of Jarvis’ active participation in this incident would be relevant to the issue of whether he and the defendant planned to go to the victim’s residence, and while there, to commit these crimes. Unless we are to erect an absolute rule that under the circumstances present here such evidence is always irrelevant, we should hesitate to second guess the trial court, and find that its discretion was abused “as a matter of law.” State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 (1975); State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979).
      Thus, while the conclusion drawn by Justice Shea from the evidence may not be “flawed,” we do not believe that it is the only, or even the most compelling, conclusion possible. In any event, for the purposes of this case, we believe that the trial court could reasonably have found significance in Jarvis’ involvement with the defendant. That having been said, the only remaining question is whether the trial court erred in admitting a photograph displaying the effects of Jarvis’ involvement. Our decision in State v. DeJesus, supra, is fairly dispositive on this aspect of the case, and therefore, we must reject the defendant’s claim that the photograph of Barbara Antoni was improperly admitted.

       The judge offered the following curative instruction:
      “Ladies and gentlemen, when you left here before luncheon recess, there was a partial question that was asked by [the state’s attorney], which I am now directing you to ignore, because punishment is no part of your concern during the course of this trial.
      “Do you understand that? So the question will be rephrased and you are to ignore any portion of that question that you may have heard.”

       In its final charge, the court told the jury:
      “Now, before addressing myself to the discussion of the particular offenses with which the accused is charged, it is proper for me to say that you are not to be concerned with the punishment to be meted out in the event of a conviction. That matter is exclusively within the province of the Court under the limitations and restrictions imposed by law. You are to find the facts of guilt or innocence uninfluenced by the probable punishment that follows conviction or by any sympathy for the accused or his family or for any other person or persons who might in any way be affected by your decision or by sympathy for the victim or his or her family.”