author: Dannehy, J.

text:
    State of Connecticut v. William F. Flowers
    (12111)
    Healey, Dannehy, Santaniello, Callahan and Purtill, Js.
    Argued December 5, 1985
    decision released February 4, 1986

      J. Robert Nastri, certified legal intern, with whom were Michael R. Sheldon and Todd D. Fernow, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert Carlson and Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Dannehy, J.

A jury found the defendant guilty of murder in violation of General Statutes § 53a-54a. His sole claim on appeal is that he was denied his constitutional right to a speedy trial. We find no error.

On May 9, 1981, the defendant was arrested in Florida on a warrant charging him with the murder of Lee Jones in New Britain on February 9 or 10,1981. The defendant promptly waived extradition and was returned to Connecticut on June 1, 1981. He was arraigned the following day and indicted on August 21, 1981. After numerous assertions of his right to a speedy trial, the defendant was finally brought to trial on November 3, 1982, and found guilty as charged on December 28,1982. The defendant was unable to post bond and remained incarcerated during the entire eighteen month period between his arrest and the commencement of trial. Additional facts will be discussed as we consider the various aspects of the defendant’s claim.

“The Supreme Court of the United States and this court have identified four factors which form the matrix of the defendant’s constitutional right to speedy adjudication: ‘[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980).” State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983). None of these factors standing alone would demand a set disposition; rather, it is the total mix which determines whether the defendant’s right was violated. State v. Nims, supra, 592. While passage of time does not alone establish the defendant’s claim that he has been denied his right to a speedy trial; State v. Morrill, 197 Conn. 507, 523-24, 498 A.2d 76 (1985); the state here concedes that the operative delay of seventeen months and twenty-five days is sufficiently long to prompt inquiry into the remaining factors set forth in Barker v. Wingo, supra. We proceed to a consideration of those factors.

On November 3,1982, prior to the start of trial, the court conducted a hearing on the defendant’s motion to dismiss based on the alleged denial of his right to a speedy trial. The court denied that motion in a written memorandum of decision dated December 2,1982. In its memorandum the trial court found that the delay in this case was due to court congestion and not the result of any tactical decision on the part of the state. “ ‘On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book § 3060D. The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983).” State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). The defendant concedes that the record adequately supports the trial court’s finding that the local criminal docket was congested, but disagrees with the court’s conclusion “that such demonstrated congestion was the operative cause of the instant delay.” He contends instead that the delay was caused by the improper control of the state’s attorney’s office over the advancement of cases on the trial list and by the “failure of the judicial authority to afford the defendant a speedy trial when it was in its power to do so.” The trial court specifically rejected both of these contentions and we must determine whether its decision was clearly erroneous.

The defendant during his lengthy pretrial incarceration frequently and unequivocally asserted his right to a speedy trial. He first requested his court appointed counsel to file a motion for a speedy trial on August 21, 1981, the day he was indicted. He filed such a motion pro se on October 30, 1981. By a letter to the court dated December 5,1981, the defendant requested the appointment of new counsel because his then counsel had failed to press for a speedy trial. Finally, on February 1,1982, the defendant’s counsel filed a speedy trial motion. This motion was granted by the presiding criminal judge on February 10,1982, but was subject to the “usual codicil that the case will not preempt other cases unless there’s a compelling reason.” The defendant continued to assert his right to a speedy trial until the November 3,1982 hearing on his motion to dismiss.

At the hearing on the motion to dismiss the defendant called as a witness Raymond Cuatto, the chief criminal clerk for the Hartford judicial district. Cuatto testified that he maintains a master pending case list containing every case transferred from a geographical area court. Cuatto explained that cases are placed on the master list in chronological order. The older cases are then moved from the master list to a smaller list of cases ready for trial. Cuatto further testified that he did not know how or by whom cases were ultimately selected from the trial list for trial on any given day. He could only state that his office received a typed or handwritten list containing four or five case names from the state’s attorney’s office several times a week. Cuatto would then call in for trial the cases on these lists. Cuatto also testified that at times cases were called in for trial out of chronological order. He recalled a case which was tried ahead of the defendant’s case, even though the defendant was incarcerated and the other defendant was free on bond, and despite the fact that the defendant’s case ranked number 85 on the trial list while the other defendant was listed as number 122.

The defendant’s former court appointed counsel, who had by then withdrawn from the case, also testified at the hearing on the motion to dismiss. He stated that he had not filed a motion for a speedy trial sooner, as the defendant had requested, because he knew from experience that such motions were unlikely to cause a case to be advanced for trial. Counsel’s impression as to the general futility of a motion for a speedy trial was corroborated by Cuatto, who testified from his experience that such a motion rarely achieved its desired result. The conclusions of these witnesses were uncontradicted and, in fact, borne out by the facts of this case.

The trial court in its memorandum of decision carefully considered the backlog of criminal cases in the Hartford judicial district while the defendant was awaiting trial. The court observed that as of December 14, 1981, there were 1852 active felony cases in Hartford Superior Court and that the average length of disposition was 18.6 months. The court further recounted the tremendous increase in criminal cases throughout the state and the concomitant reduction in proportionate funds allocated to the judicial department. This court is aware that by the early 1980’s the mounting burden of criminal cases in our courts had reached crisis proportions. The crisis reached its watershed in February, 1982, when the federal district court granted habeas relief and ordered the release of a convicted murderer because he had been denied his right to a speedy trial. McCarthy v. Manson, 554 F. Sup. 1275 (D. Conn. 1982), aff’d, 714 F.2d 234 (2d Cir. 1983). The trial court detailed the legislative response to the McCarthy decision, which led to the enactment of our speedy trial act; General Statutes § 54-82Z (effective July 1, 1983); and the judicial response at the district level. In this regard the court noted that “a comparison of the volume of active cases pending in this court between October 31, 1981, and October 31, 1982, reflects a reduction of approximately 800 active cases resulting from an intensive effort by the court to meet constitutional standards as well as to prepare for the transition required next July under our new Speedy Trial Act.”

We believe this record adequately supports the trial court’s conclusion that docket congestion was responsible for the delay in this case. We find somewhat tautological the defendant’s argument that, despite this congestion, “the criminal justice system had sufficient flexibility to afford him a trial earlier, had it been disposed to do so, and failure to exercise that flexibility rather than crowded court calendars was the reason for the substantial delay.” The ingenuous assertion that the defendant could have been brought to trial sooner had the system been disposed to do so might honestly be said of any defendant awaiting trial during the period in question, and patently ignores the complex administrative difficulties which faced our then severely overtaxed criminal justice resources. Docket congestion, by its very nature, makes expeditious scheduling of cases for trial difficult, and requires the court to undertake some plan of action to reduce the backlog. Very often such a plan may include such stopgap measures as increased plea bargaining with reduced sentences, taking “ready" cases out of order, or trying shorter, less complicated cases first. As with any intractable situation, choices must be made. The defendant in his brief expressly disavows any challenge to the rationality of the plan devised to reduce the staggering criminal backlog then existing in the Hartford judicial district. Although the precise details of that plan are not before us, it appears from the testimony to have involved a concerted attempt to try cases in rough chronological order. That the defendant was not tried sooner under this plan is attributable not to official intransigence but to reasonable attempts to follow an established system of priority. To the extent that adherence to this system—even if not at all times absolute-caused the defendant to wait while others were tried before him, the delay is attributable to docket congestion and not to the fact that some method was developed in order to relieve it.

While apparently acknowledging what we have said thus far, the defendant contends that his case is distinguishable by his forceful and consistent assertion of his right to a speedy trial and because there was no evidence to indicate that any defendant chronologically ahead of him wanted a speedy trial or would have objected to the defendant’s case being advanced on the trial list. We find the defendant’s assertion of his right in this case to weigh heavily in his favor. We do not, however, believe that the defendant’s exemplary assertion of his right can logically be integrated into this phase of his argument and thereby become transformed into a reason for the delay. The assertion of the right and the reason for the delay are separate factors entitled to independent weight under Barker v. Wingo, supra. Delay in the face of forceful assertion becomes less excusable for that very reason. We count the defendant’s assertion of his right heavily against the state, but we do so only once. We must, therefore, reject the defendant’s attempt to bootstrap his argument with respect to the reason for the delay by incorporating therein the fact of his forceful and consistent assertion of his right to a speedy trial.

We also reject the defendant’s claim that the delay was caused by the “inexplicable control” over the jury trial docket exerted by the state’s attorney’s office. The basis of this claim was Cuatto’s testimony that he called cases in for trial from lists provided him by the state’s attorney. From this testimony, and evidence that a more recent case was tried out of turn, the defendant contends that the trial court’s rejection of his claim that the state’s attorney’s office engaged in selective advancement of cases was contrary to the evidence presented.

Control by the state’s attorney’s office over the calling of cases for trial would clearly violate our rules of practice. Practice Book § 978 provides, in pertinent part, that “[t]he judicial authority, acting through the clerk, shall control the time and the manner of scheduling all proceedings in criminal cases and shall have the cooperation of the prosecuting authority and defense counsel in carrying out his responsibilities.” Cuatto testified that he did not know who selected the cases contained on the lists provided him. The trial judge, no doubt familiar with operational procedures employed in the courthouse where he worked, may reasonably have concluded that the lists submitted to Cuatto were prepared with the active participation or tacit approval of the presiding criminal judge, who bore the ultimate responsibility for the scheduling of criminal cases. Although the court must take special care to avoid even the appearance that its authority, and hence its neutrality, has been compromised, we recognize that an administrative relationship inevitably develops between the presiding criminal judge and the state’s attorney with whom he deals on a daily basis. Moreover, even assuming that the defendant could establish a clear violation of Practice Book § 973, it would not necessarily follow that improper control over case scheduling by the state’s attorney’s office caused the delay in this case. We note that the presiding criminal judge, and not the state’s attorney, granted the defendant’s motion for a speedy trial, but subject to the “usual codicil that the case will not preempt other cases unless there’s a compelling reason.”

The trial court in its memorandum of decision found particular significance in an instance where the same presiding judge had denied the state’s motion to advance a case on the trial list which, according to the state, raised important questions of “ ‘public interest.’ ” The record adequately supports a conclusion that the presiding criminal judge, in close cooperation with the state’s attorney, devised and followed a plan aimed at reducing the backlog of criminal cases. As previously noted, the defendant does not contest the rationality of the plan. If less than perfect in its conception and administration, the plan was nonetheless necessitated by a severely congested criminal docket and a criminal justice system underequipped to expeditiously manage it. Difficult problems breed uneasy solutions. But where, as here, a concededly rational plan is conscientiously undertaken in response to a difficult problem, we will not in the normal course accord it independent causal significance. In sum, we do not find clearly erroneous the trial court’s conclusion that docket congestion was the reason for the delay.

While docket congestion does not justify or excuse delay; State v. Davis, 192 Conn. 739, 742, 474 A.2d 776 (1984); it is considered a neutral reason and is “weighed less heavily against the state than purposeful delaying tactics.” State v. Gasparro, 194 Conn. 96, 100, 480 A.2d 509 (1984), cert. denied, 474 U.S. , 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985). This reason must nonetheless be considered “since the ultimate responsibility for such circumstance must rest with the government rather than the defendant.” Barker v. Wingo, supra, 531.

The final Barker factor which we must consider is prejudice caused by the delay. As we stated in State v. Lloyd, supra, 209, “the linchpin of the speedy trial claim is a showing of prejudice . . . .” This prejudice may be actual or presumed; Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973); State v. Morrill, supra, 526; since none of the four factors identified in Barker v. Wingo is either a “necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial.” Barker v. Wingo, supra, 533. Thus, an affirmative showing of actual prejudice is not essential to a speedy trial claim when the defendant is able to show that the other three factors weigh heavily against the state. Hoskins v. Wainwright, 485 F.2d 1186, 1192-93 (5th Cir. 1973).

The defendant claims that the other three factors in this case weigh so heavily against the state that an affirmative showing of actual prejudice is not required. We disagree. The eighteen month delay here, while substantial, is not so extreme as to indicate a clear violation of the speedy trial right, and, indeed, is shorter than the delay in other cases where no violation has been found. State v. Morrill, supra, 522 (almost nineteen months); State v. Gasparro, supra, 100 (more than three and one-half years); State v. Davis, supra, 743 (twenty-six months); State v. Lloyd, supra, 209 (twenty-two months); see also Barker v. Wingo, supra, 533 (over five years); United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (twenty-four months); United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977) (fifty-eight months). And the reason for the delay, court congestion, while not redounding to the state’s credit, does not weigh heavily against it. While the defendant’s assertion of his right to a speedy trial weighs heavily in his favor, this factor alone is not sufficient to excuse a showing of actual prejudice. “The reason for dispensing with the prejudice requirement entirely when the other three factors point heavily toward a violation of speedy trial is deterrence; the prosecution should not be permitted to engage in inexcusable misconduct on the hope that the defendant will not be able to make out a case of [actual] prejudice. Where such misconduct has occurred, the state cannot complain that the legitimate interests of its criminal justice system, being pursued in good faith, are being sacrificed because of an honest mistake in a case in which no ultimate harm has been done.” Turner v. Estelle, 515 F.2d 853, 858 (5th Cir. 1975), cert. denied, 424 U.S. 955, 96 S. Ct. 1431, 47 L. Ed. 2d 361 (1976); see also Gray v. King, 724 F.2d 1199, 1204 (5th Cir.), cert. denied, 469 U.S. 980, 105 S. Ct. 381, 83 L. Ed. 2d 316 (1984). In this case there has been no showing of misconduct on the part of the state sufficient to warrant a presumption of prejudice. We therefore proceed to consider the defendant’s claims of actual prejudice.

Actual prejudice must be assessed in light of the interests which the speedy trial guarantee is designed to serve. These interests have been identified as: “(1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of an accused; and (3) reducing the possibility of impairing the defense.” State v. Gasparro, supra, 101; Barker v. Wingo, supra, 532. Of these three interests “the most serious is the last,cbecause the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker v. Wingo, supra; United States v. MacDonald, 435 U.S. 850, 860, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978).

The defendant claims to have been prejudiced in a number of ways. He first claims that because of “tension and racial turmoil inside the Hartford jail, [he] was forced to spend 23 out of every 24 hours confined in his cell” during his lengthy pretrial incarceration. He further claims that due to his high bond he was officially labeled a “security risk” and thereby ineligible for work assignment inside the jail. Conditions at the jail also caused the defendant “a great deal of stress and anxiety, to the point where he was eventually forced to seek medical attention.” The defendant also notes his limited ability “to communicate effectively with family and friends who might have aided his case. Throughout the entire period of his pretrial confinement he was permitted only one collect phone call per day, with a limit of 5 minutes placed on each such call.”

We appreciate the dislocation and frustration an accused must necessarily experience while incarcerated and awaiting trial. The anxiety is heightened where, as here, the defendant urgently desires a speedy adjudication of his guilt or innocence. We further recognize that the anxiety attending pretrial delay is not ameliorated by the knowledge that under our law a convicted person receives full credit against a subsequent prison term for time spent in pretrial confinement. General Statutes § 18-98. While prejudice in the nature of that asserted here is unfortunately present in every case of pretrial delay, general claims of anxiety are thought insufficient to invoke what has been termed “the unsatisfactorily severe remedy of dismissal.” Barker v. Wingo, supra, 521; United States v. McGrath, supra, 41; United States v. Avalos, 541 F.2d 1100, 1115 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S. Ct. 1656, 52 L. Ed. 2d 363 (1977). The defendant’s showing of anxiety and frustration is not sufficiently grave in this case to warrant dismissal of the charges against him.

The defendant also claims to have suffered actual prejudice in the preparation of his defense. Specifically, the defendant claims that due to the delay he was unable to procure for trial a witness who purportedly would have contradicted some of the state’s evidence relating to the defendant’s possession of the murder weapon. We review the evidence adduced at trial to properly evaluate this claim of prejudice.

In the early morning of February 10,1981, New Britain police discovered the dead body of Lee Jones slumped over in the passenger seat of the defendant’s automobile. The chief medical examiner testified that Jones died from a single .22 caliber bullet fired through his mouth and into his head. The medical examiner testified that the barrel of the gun was inside Jones’ mouth resting on his tongue when the fatal shot was fired.

The defendant and Jones were first seen together the day before, February 9, 1981, at about 3 p.m., when they entered Russ’ Cafe in New Britain. Jones and the defendant began to drink, and at some point thereafter Jones borrowed the defendant’s car, and did not return to the bar until approximately 7 p.m. After Jones left once again at 7:15 p.m., the defendant became angry with Jones for taking so long to return his car. There was testimony that the defendant threatened to shoot Jones when he returned. In the presence of ten or eleven patrons the defendant pulled out a small caliber black revolver and fired a shot into the back of the bar. Russ Wilson, the owner of Russ’ Cafe, told the defendant to pocket the handgun. In response to several patrons who speculated that he must have fired blanks, the defendant displayed the .22 caliber bullets remaining in the chamber. When Jones returned to the bar he apologized to the defendant and there was no further evidence of ill will between them at that time. Jones and the defendant eventually left Russ’ Cafe together at about 11:30 p.m.

Sometime after 11 p.m. on February 9,1981, Peggy Coscuna, a friend of the defendant, received a phone call from Barbara DeGrandis, the defendant’s girlfriend and housemate, from the defendant’s apartment in New Britain. After they had spoken briefly, the defendant came on line and asked Coscuna to come over because “something was going on.” When Coscuna queried the defendant as to what this might be, the defendant replied that “I think I may have shot somebody.” Coscuna arrived at the apartment about one half hour later, and the defendant reiterated his belief that he might have shot someone. In response to further questioning, the defendant stated that the person was in his car. Coscuna and DeGrandis persuaded the defendant to go to his car and take a look. The defendant went to his car and returned after several minutes. He confirmed that indeed there was someone inside who had been shot, and that the person was still alive and “kind of gurgling.”

According to Coscuna, the defendant explained that earlier that evening he had loaned his car to someone whom he identified as “the kid.” This person had taken too long to return the car and the defendant became angry. An argument flared up while the two were riding in the defendant’s car, and the person started laughing. The defendant told Coscuna that “he put the gun up to the kid and said if you continue to laugh at me I’m going to blow your brains out.” The “kid” continued to laugh and the defendant placed the gun barrel in his mouth. The defendant then stated that he thought he shot Jones. Coscuna testified that when she first entered the defendant’s apartment she saw a gun on the kitchen table. After he had told Coscuna what happened, the defendant phoned two other friends, Melvin Brokow and Linda Shields, and asked them to come to his apartment. While awaiting their arrival, the defendant again began to relate the events of the evening. Coscuna testified that during this time the defendant was more relaxed and “almost was bragging, you know, like ha-ha, this is what happened.” The defendant was “waving” the gun around during his narration.

Shields testified that when she and Brokow arrived at the apartment the defendant told them that “Lee” had been shot because “he got in my face.” According to Shields, the defendant stated that “he put the gun in [the victim’s] mouth and went bang, bang, bang.” She characterized the defendant’s manner and tone as “very, very hateful and nasty.” Shields also recalled that the defendant, while he spoke, was waving a black revolver back and forth.

Brokow’s testimony as to the defendant's incriminating admissions was largely corroborative of Coscuna’s and Shield’s, and need not be repeated. Brokow stated that he went to the defendant’s car to check on the victim and found that he was still breathing. Eventually, the discussion in the apartment turned to what to do about Jones. The defendant abandoned his car four or five blocks away from his apartment with Jones’ body in it. Brokow disposed of the defendant’s clothes and shoes, and took the handgun to East Johnson Avenue in Cheshire where he hid it.

Approximately seven months later, in September, 1981, Brokow showed police where he hid the gun and was present when they recovered it. Brokow admitted before the jury that at that time he was under arrest as an accessory to Jones’ murder, but had entered into a written agreement with the state in exchange for his testimony. Brokow also admitted to various felony convictions, including nine counts of breaking and entering.

Expert ballistics testimony established that the gun identified by Brokow had been used to shoot Jones. Tracing the gun by its serial number, police learned that it had been sold to Raymond Denker. Denker testified that he loaned the gun to the defendant, who never returned it. On cross-examination, Denker also admitted to having loaned the gun to Robert Wiley, his former upstairs neighbor, on a previous occasion. According to Denker, Wiley returned the gun to him after several days.

With this factual backdrop we proceed to the defendant’s claim of actual prejudice. On February 10,1983, the trial court conducted a hearing on the defendant’s post trial motion to dismiss based on the alleged denial of his right to a speedy trial. The defendant claimed that pretrial delay caused Wiley to be unavailable to testify. According to the defendant, Wiley, who was in California on a job assignment during the defendant’s trial, would have testified that Denker owed him money and had satisfied the debt by giving him the murder weapon sometime before February 9,1981. Wiley purportedly would have testified that he never returned the gun to Denker, thus contradicting Denker’s version of how the gun originally came into the defendant’s possession.

The defendant called Harry VanWagner, Wiley’s boss, to testify at the February 10,1983 hearing on the motion to dismiss. VanWagner stated that Wiley had left Connecticut to supervise a construction job in California on September 27, 1982, and was expected back in March, 1983. The defendant’s trial occurred in December, 1982. VanWagner testified that Wiley frequently was required to work out-of-state for several months at a time. VanWagner recalled that Wiley had also been in California from May to July, 1982, and in Connecticut from July until he left on his then present assignment. On cross-examination by the state, Van-Wagner testified that information as to Wiley’s whereabouts would have been available to anyone who contacted him.

A defendant’s inability, due to pretrial delay, to locate a witness material to the defense would certainly constitute actual prejudice under the speedy trial guarantee. Barker v. Wingo, supra, 532; Dickey v. Florida, 398 U.S. 30, 38, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970). In considering such a claim, however, the court must satisfy itself that the witness is in fact unavailable, and this requires some showing by the defendant that he has taken affirmative steps reasonably calculated to procure the witness for trial. Tarnef v. State, 492 P.2d 109, 113-14 (Alaska 1971); State v. Knapp, 123 Ariz. 402, 405, 599 P.2d 855 (1979) (due process); State v. Evans, 19 Or. App. 345, 527 P.2d 731, 735 (1975); Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim. App. 1982). Such witnesses are likely to be known only to the defendant, and he must bear the burden of establishing their unavailability. In the absence of this requirement, a defendant could always show actual prejudice by failing to summon a distant witness, known only to him, and then representing to the court the substance of his purported testimony. “ £[I]f a defendant merely alleges . . . inability to locate known or unknown witnesses who might testify on his behalf, he has failed to illustrate prejudice with the required degree of specificity. United States v. Ewell, 383 U.S. 116, 122, 86 S. Ct. 773, 15 L. Ed. 2d 627 [1966]; United States v. Churchill, 483 F.2d 268, 273-74 (1st Cir. [1973]).’ State v. L’Heureux, 166 Conn. 312, 321, 348 A.2d 578 (1974).” State v. Johnson, 190 Conn. 541, 546, 461 A.2d 981 (1983).

In the present case the defendant produced Van-Wagner at the post trial hearing to testify to the whereabouts of Wiley. Yet, the defendant does not claim to have made any attempt before trial to contact either VanWagner or Wiley at his jobsite in California. The trial court in its oral decision on the defendant’s February 10,1983 motion to dismiss could not recall Wiley’s name even having been mentioned as a potential source of prejudice in the course of pretrial proceedings on the defendant’s first speedy trial hearing. We note that Wiley’s presence at trial could have been secured by interstate subpoena. General Statutes § 54-82Í (c). The defendant has not alleged any reason why Wiley, who maintains a permanent residence in New Britain, would not have returned to testify of his own accord had the defendant so requested. Moreover, given Wiley’s frequent departures from the state, it is speculative whether he would have been any more available had the defendant’s trial commenced sooner. VanWagner testified that Wiley was also in California between May and July, 1982, and, under the defendant’s reasoning, Wiley would have been equally unavailable during that time. The state points out that Wiley would again have become “available” had the defendant’s trial been delayed until March, 1983, when Wiley was scheduled to return to Connecticut. We conclude that the defendant has not made sufficient showing that Wiley was unavailable to testify, and that, in any event, Wiley’s absence from trial was due more to the fortuity of his job assignments than to pretrial delay. State v. Johnson, supra, 546; State v. Troynack, 174 Conn. 89, 94, 384 A.2d 326 (1977); cf. State v. Jones, 46 Or. App. 479, 611 P.2d 1200, 1202 (1980).

Moreover, even assuming an adequate showing of Wiley’s unavailability, the substance of his purported testimony would not have materially assisted the defendant’s case. State v. Davis, supra, 746. Assuming that Wiley testified that he never returned the handgun to Denker, there would yet remain the uncontroverted testimony of several witnesses that the defendant possessed a black revolver shortly before and shortly after the incident in question. The defendant’s incriminating admissions before Coscuna, Brokow and Shields in his apartment were markedly consistent with his conduct and statements made earlier that evening at Russ’ Cafe. Finally, while Wiley’s purported testimony would have contradicted Denker’s version of how the defendant initially obtained the handgun, it would not rule out his having acquired it at a later time. We cannot speculate on what, if anything, a thorough examination of Wiley might disclose. We believe that in this case a determination of actual prejudice cannot be made without the benefit of Wiley’s actual testimony. Counsel have been aware of Wiley’s status for some time now, and his testimony, if favorable, can best be developed in habeas corpus proceedings. On the record before us, however, we do not find that the defendant was prejudiced by Wiley’s absence from the state during trial.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Donald Stevenson
    (10822)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued November 15, 1985
    decision released February 11, 1986

      Steven W. Varney, certified legal intern, with whom were Todd D. Fernow and, on the brief, Michael R. Sheldon, for the appellant (defendant).

      Richard D. Arconti, special assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Donald Stevenson, was found guilty of the crime of murder in violation of General Statutes § 53a-54a after a trial to a jury. This appeal followed.

On appeal, the defendant claims that the trial court’s instructions on intoxication require that he be given a new trial. In order to place his claims in context for our disposition of the appeal, it is necessary to set out the evidentiary backdrop.

Among the facts the jury could reasonably have found are the following: On November 10, 1979, at approximately 9:15 p.m., Waterbury police officers arrived at the East Farm Street Cafe on East Farm Street, Waterbury, to investigate an apparent shooting incident. Upon their arrival at the cafe, the officers found the victim, Willard “Cowboy” Oliver, bleeding from an apparent gunshot wound on the left side of his head. Ambulance personnel were ministering to him. At that time, the cafe was crowded, containing between twenty-five and forty persons. The police officers spoke to everyone there and recorded the names of all who were present.

As a result of information obtained on the scene at the cafe, the police put out a general broadcast for the defendant. The defendant came to police headquarters at about 7:30 a.m. the next morning to turn himself in. He told the police that he had not meant to shoot anyone and that it was an accident. At that time, he was arrested on the charge of assault, advised of his rights and questioned concerning the incident.

Archie Davis, who was a friend of both the defendant and the victim, testified that he had been with the defendant and other companions for some hours on November 10, 1979, prior to the shooting incident. Although Davis, the defendant and other companions had consumed some rum and beer prior to going together to the East Farm Street Cafe that night, Davis felt that when they entered the cafe, the defendant, insofar as his condition of sobriety was concerned, was “in stable condition at that time.” Davis, who had known the defendant for about twelve to fourteen years, observed nothing unstable or erratic about the way the defendant walked from his car to the cafe, recalled nothing unusual about his speech, and noted that his words were not slurred and that he did not have any trouble, forming sentences.

Sometime prior to the shooting incident, the victim had broken his leg and it was in a cast. The victim was sitting in a booth facing the door of the cafe and his crutch was “standing up,” leaning against the booth. The defendant came over and kicked the crutch and it fell down. The victim picked it up and set it back against the booth. The defendant again kicked the crutch and the victim again picked it up. Words were exchanged between the victim and the defendant. The victim told the defendant to “cut this out or do you want to go on the outside?” The defendant then walked toward the back of the cafe and the victim sat down. Minutes later the defendant came back and stood by the booth. The victim again warned the defendant to desist.

The witnesses, Carrie Porter, Robert Carter and Thomas Newsome, were sitting in a booth with the victim when the shooting incident occurred. Porter and Carter had known both the victim and the defendant prior to November 10,1979, and while Newsome knew the victim, he did not know the defendant. Porter did not see anything unusual about the defendant, whom she had known for about twelve years, and he did not appear to her to have been drinking heavily. In addition, she did not see him stagger or trip and he did not appear to have any difficulty in walking or talking. Carter saw the defendant walk up to the booth; the defendant said something, and then Carter saw a flash when the defendant’s arm was outstretched. The victim then fell into the booth. Carter did not see anyone push the defendant nor did he see him stumble. Newsome heard a “bang” at the time the defendant’s hand was at the back of the victim’s neck, and then the victim “fell over.” Newsome did not see anyone bump into, push or shove the defendant, and he did not see him trip or stumble in any way.

Joseph Cerri, the only bartender on duty in the cafe that night, knew both the victim and the defendant and had seen them both there at the same time on many occasions. Cerri had not served the defendant that night and he also opined that the defendant “looked sober” to him and that “he looked all right.” In addition, when he observed what seemed “like a small derringer” make “a noise,” “a bang,” the defendant’s arm was “out at arm’s length.” Moreover, at that time, Cerri saw no one else in the defendant’s immediate area. No one pushed, shoved or bumped into the defendant and Cerri did not see him trip or stumble. After this “noise,” the victim fell to the floor and the defendant walked out of the cafe.

In contrast to that evidence, the jury had before it the defendant’s conflicting testimony concerning his alcoholic intake on November 10, 1979. He said that he, Archie Davis and two other persons had been sitting around and drinking for “about five, six hours” from about 3 p.m. One of the others had a quart of rum and they had some ale. In his statement to the police, he said that he and Davis drank “about three pints of Rum and we also drank some beer. I drank about six bottles of ale myself.” (Emphasis added.) He testified that he had some rum and at least two cans of ale. The defendant testified that around 4:30 p.m. on November 10,1979, he had had supper at a restaurant where he drank soda with his meal. He testified that he arrived at the East Farm Street Cafe around 8:45 p.m. or 9 p.m. that night and that he had no trouble driving his car there. His recollection of the “crutch” encounter with the victim and of what happened inside the East Farm Street Cafe thereafter, including the shooting, was vague and, in some instances during his testimony, nonexistent. He said that he did not recall what he said to the victim. He did recall that when he entered the cafe he was “pretty high” and “feeling pretty nice.” He also said he was not “falling down drunk” or “staggering drunk” or slurring his words. He testified that he could not recall very much about the shooting itself although he did remember seeing the victim and saying something to him. The defendant did, however, “remember either tripping or falling or something. And as I started to get up, I heard what appeared to be a shot.” After the shooting, he left the cafe and drove out of Waterbury on route 1-84. Originally intending to seek out a state police officer in Southbury whom he knew, he decided not to do so. He did, however, take the South-bury exit off 1-84 and threw his gun out of the car. The next day he accompanied Waterbury police officers to Southbury to look for his gun. They recovered his gun on the shoulder of the road about “fifteen feet, maybe” from where he told them to stop their car.

On appeal, the defendant claims that the trial court’s instructions on the effect of his intoxication deprived him of a fair trial on the charge of murder by permitting the jury to convict him without first finding beyond a reasonable doubt that he had the intent to cause death in spite of his intoxication. He includes here the claim that the instructions require reversal because they gave rise to a reasonable possibility that the jury convicted him without first finding each essential element of the crime charged proven beyond a reasonable doubt. He also contends that intoxication at the time of the offense “may logically support an inference that [he] lacked an intent to kill even if it does not rise to the level of negating his capacity to form any rational intent.” He also faults the instructions because, as he correctly points out, where a defendant charged with murder introduces evidence that he was intoxicated at the time of the crime, the state must prove beyond a reasonable doubt that in spite of his intoxication he intended to cause the death. He claims that reversible error was committed because the instructions complained of shifted to him the burden of establishing that at the time of the crime he was so intoxicated that he could not possibly have had the specific intent required for murder.

There emerges from the defendant’s claims the argument that the instructions created an unlawful threshold for the jury’s consideration of his intoxication so that, in following those instructions, the jury could convict him of murder without considering whether his intoxication negated the element of specific intent required for murder. Evidence of that intoxication, if considered and credited, would, he claimed, have reduced the crime to manslaughter. He argues that giving instructions “which permit the jury to ignore evidence” which, if credited, might raise a reasonable doubt as to the existence of the specific intent required for murder, “unconstitutionally relieves the state of its burden to negate every reasonable hypothesis consistent with innocence and inconsistent with guilt.”

At the trial, the defendant neither filed a request to charge on the issue of intoxication nor did he except to the trial court’s instructions on that matter. Ordinarily, the defendant’s failure to take an exception to the jury instructions would preclude review of such a claim upon appeal. Practice Book §§ 854, 3063; see also State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985).

“ ‘Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.’ State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). ‘The policy behind this rule is both ancient and sound and “does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until jt is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal.” State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362 [1965], cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 [1966]; State v. Evans, supra, 66; State v. Tuller, 34 Conn. 280, 295 [1867].’ State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980).” State v. Hinckley, supra, 81; see State v. Reddick, 197 Conn. 115, 125, 496 A.2d 466 (1985). In this case, we undertake a review for the limited purpose of determining whether there has been an infringement of a fundamental constitutional right. See State v. Hinckley, supra, 86-87; State v. Evans, supra, 70.

“Due process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged . . . including intent where intent is one of those elements.” State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982). While intoxication is neither a defense nor an affirmative defense to a murder charge in Connecticut, evidence of a defendant’s intoxication is relevant to negate specific intent which is an essential element of the crime of murder. General Statutes § 53a-7; State v. D’Antuono, 186 Conn. 414, 423, 441 A.2d 846 (1982); State v. Crawford, 172 Conn. 65, 70, 372 A.2d 154 (1976). The requisite that guilt be proved beyond a reasonable doubt means “proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with [a] defendant’s guilt and inconsistent with any other rational conclusion. State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 [1951].” State v. Morrill, 193 Conn. 602, 610-11, 478 A.2d 994 (1984); see State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982); State v. Englehart, 158 Conn. 117, 121-22, 256 A.2d 231 (1969); State v. DeCoster, 147 Conn. 502, 505, 162 A.2d 704 (1960); State v. Foord, 142 Conn. 285, 295, 113 A.2d 591 (1955). Throughout the trial, “the burden remained with the state to persuade the jury beyond a reasonable doubt that the defendant, in spite of any intoxication, had the capacity to, and did, form the [specific] intent to cause [Oliver’s] death when he shot him.” State v. Crawford, supra, 69-70. The instructions in this case never altered that burden.

We have set out above those circumstances relevant to the intoxication issue that are helpful in our analysis because a “court’s charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial.” State v. Kurvin, supra, 558; see United States v. Park, 421 U.S. 658, 674, 95 S. Ct. 1903, 44 L. Ed. 2d 489 (1975). Where a particular part of the charge is attacked, the test to be applied is whether the charge considered as a whole presents the case to the jury so that no injustice will result. State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982), and cases there cited. In the absence of a request to charge or an exception, to warrant reversal “the error must consist of a failure to submit to the jury the essential ingredients of the offense on which the conviction rests . . . or the case must involve plain error requiring such result in the interest of justice.” State v. Kurvin, supra, 561.

A careful examination of that instruction discloses that the court at the outset stated that the jury was aware that the defendant was claiming, because of his alcoholic intake, that “he was incapable of forming a rational intent to commit the crime of murder or of controlling his conduct.” The court then read and explained to the jury General Statutes § 53a-7, which includes the definition of “intoxication.” The court’s statement, contrary to the defendant’s claim, that voluntary intoxication was significant only when it has proceeded so far as to have affected the operation of the mind of the accused and made him incapable for the time being of forming a rational intent or of controlling his will, was correct not only in the context of this charge on intoxication, but as a statement of law. It came after the court had read not only the statute but had also referred to the use in “everyday speech” of “intoxication or drunkenness,” pointing to such commonly regarded indicia of intoxication in common parlance as slurred speech, gait, general appearance or evidence of having taken intoxicating liquor to excess. It immediately then gave them the legal definition of “intoxication” from § 53a-7. This statement did not misdirect the jury’s focus because, as we have said, “[ijntoxication is not a defense to murder, but is relevant to the capacity to form specific intent.” State v. D’Antuono, supra, 423. Objection is also taken to the court’s instruction that “only when a person is so under the influence of liquor that at the time the crime was committed, he was unable, rationally, to consider any matter or intelligently to harbor any intent or to control his activities that intoxication is a defense.” Because this language is susceptible to misinterpretation and the reference to the alternative inability to “control his activities” is contrary to General Statutes § 53a-7, trial courts are advised not to utilize this language in such an instruction. Nevertheless, there is no constitutional error because the remainder of the charge adequately negated any potential for misinterpretation. Immediately prior to this, the court, after noting that the law does not take into account the difference in individual susceptibility to alcohol, had told the jury: “An individual may show in his behavior the present effect of [the] liquor that he has taken and yet may still retain his faculties fully enough to reason, to know what he is about, and to form and carry out a rational intent.”

There is one other sentence in the court’s charge on intoxication that might be bothersome were it not for the balance of that instruction as well as the charge taken as a whole. The court said: “[T]he intoxication must be shown to have been of such a character as to create a state of mental confusion which would exclude the possibility of his having a specific intent.” (Emphasis added.) We have eschewed, and continue to eschew, judging individual instructions in artificial isolation from the overall charge. State v. Hines, supra, 206; State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Crawford, supra, 69. Nowhere in the remainder of the charge, if it is fairly read, is there any statement that the defendant’s intoxication, in order to negate the specific intent, had to be of such a level as to exclude the possibility of having a specific intent. “Whether a charge is possibly misleading depends on the substance rather than the form of what is said.” State v. Kurvin, supra, 565. This single statement was not misleading in the context of the charge on intoxication or in the context of the charge as a whole.

Plainly indicative of the court’s direction that the jury consider all the evidence on intoxication, in addition to its charge on intoxication, is the following instruction: “If upon the whole evidence you entertain a reasonable doubt whether the condition of the accused was such that he was able to still know what he was about and to form and carry out a rational intent, you must give to him the benefit of that doubt.” (Emphasis added.) The “whole evidence” charge was given not once, but twice. The defendant’s claim, therefore, that the jury’s consideration of intoxication evidence was limited is without merit.

“Under the Evans standard, we are not concerned with merely technical or prejudicial errors, but only with errors that deprive the defendant of a fundamental constitutional right and a fair trial. The defendant must establish ‘not merely that the instruction [was] undesirable, erroneous, or even “universally condemned,” but that it violated some [constitutional] right which [he] was guaranteed . . . . ’ Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973).” State v. Hinckley, supra, 86-87. “Dueprocess is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record.” State v. Kurvin, supra, 564. From what we have said, it follows that the instructions on intoxication did not “implicate any fundamental constitutional right that would afford the defendant review under the exceptional circumstances doctrine of State v. Evans. State v. Hinckley, supra, 87.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-54a provides: “murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”
      On February 4, 1980, a grand jury returned an indictment accusing the defendant of the crime of murder in violation of General Statutes § 53a-54a.

       There was testimony that the police took four people to the police station for the purpose of obtaining statements and that they took five or six written statements.

       The victim, Oliver, remained in a coma for some days before he died on November 17, 1979. At the trial, the medical examiner testified that “[t]he cause of death was the gunshot wound to the head and brain.”

       On November 11, 1979, the defendant gave the police a statement, approximately two and one-half typewritten pages, concerning his recollection of the shooting incident as well as his whereabouts and activities earlier on the day of November 10,1979. This statement was introduced into evidence at the trial as a full exhibit and was used, inter alia, on cross-examination of the defendant concerning his ability to recall specific matters.

       Archie Davis testified that he and the defendant had often fished and hunted together. When hunting, each used a shotgun, according to Davis.

       Archie Davis did not observe the shooting incident because, when he entered the East Farm Street Cafe, he went to the rear to go to the men’s room. When he was in the men’s room, he said that he heard a sound “like a thump’ ’ and when he came out, he saw a group of people gathered around one of the booths and he observed the victim on the floor. Davis did not see the defendant at all then or later that night.

       Archie Davis also testified that the defendant had no problem operating his motor vehicle as he drove it, with Davis as a passenger, over the route to the East Farm Street Cafe.

       Immediately after this, the defendant testified: “And, at this particular time, I was just, I was more in a daze. I was stunned because I hadn’t too much pretty know what happened. I just looked around and I walked out of the bar, got into my car and just drove around for a little, for a few minutes. And, then I came back up on East Farm Street, because I was still trying to recollect as to what happened. I thought I heard a shot.”
      After learning from a bystander that someone had been shot, he started to drive. He was “still pretty much in a daze ... [I] was pretty much shocked as to what had happened.”
      Getting himself together “after a couple of minutes,” he drove on, got onto route 1-84, originally intending to contact a police friend of his at the Southbury state police barracks. He testified, as did Detective Joseph Morgan, that he got off at the Southbury exit for the barracks, but that after driving a short distance he threw his gun out of the window of his car and returned to Waterbury. His statement given to Morgan the morning of November 11,1979, recounted in detail the streets he traversed in Waterbury prior to getting onto 1-84 as well as relating his route back to Waterbury.

       The defendant, however, filed requests to charge on other issues and also took several other exceptions to the instructions. We note that the state took the only exception to the instructions on intoxication. At that time, the state said in part: “[T]he opening comment of the Court was th,at it would appear that this [intoxication] played some part in the situation. And, I think that is a conclusion which only the jury can draw. I think perhaps the Court’s language was a bit too strong. I don’t think there was no [sic] request to charge on intoxication. I think the Court’s charge was proper, but to say that it would appear and played some part in the situation is not necessarily a correct statement.”

       General Statutes § 53a-7 provides: “effect of intoxication. Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

       In this context, we note that General Statutes § 53a-7 limits the relevance of intoxication evidence to negate an element of the crime charged and expressly makes such evidence immaterial on the element of recklessness or negligence.


author: Santaniello, J.

text:
    State of Connecticut v. William Toste
    (10971)
    Peters, C. J., Shea, Santaniello, Brenneman and M. Hennessey, Js.
    Argued November 6, 1985
    decision released February 11, 1986

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, were JoetteKatz, public defender, and Margaret Hayman, former assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Domenick J. Galluzzo, for the appellee (state).
   Santaniello, J.

The defendant, William Tosté, was arrested on December 20,1974, for the killing of Mavis Hardy of Bridgeport. He was subsequently indicted for murder in violation of General Statutes § 53a-54a, tried before a jury, and found guilty. He was sentenced on November 12, 1976, and an appeal to this court followed. On August 14,1979, we granted him a new trial because of an erroneous charge to the jury on the insanity defense. State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979). The retrial commenced on March 18, 1981. The defendant was again found guilty and was given a sentence of twenty-five years to life. He now appeals that conviction.

The jury could reasonably have found the following facts. On the morning of December 20, 1974, the defendant bought and drank some beer and went to the home of Mavis Hardy on Upton Street in Bridgeport. Hardy lived there with her son, Phillip Monteith, who was a friend of the defendant. Hardy had previously refused the defendant’s request to move in and live with her son “like a brother.” No one was home at the time he approached the house, so he gained entrance by breaking a window. He searched the house for money and took some coins and two watches. When he heard a car in the driveway, he went into the basement. Through a window, he saw that Hardy had come home. The defendant then took a pair of tinsnips, put on a pair of gloves and put a towel over his face. When Hardy went into the kitchen, he went upstairs and hit her twice in the head with the tinsnips. He then grabbed a knife and stabbed her in the back approximately twenty times. He also took a longer knife, a fork and a nail file and stabbed her again repeatedly.

The defendant fled the house, taking the victim’s car. He was arrested later that day after becoming involved in two accidents with the stolen car. His clothes were spattered with the victim’s blood and in his pockets were found the coins and watches taken from the Hardy residence. That evening, the defendant orally confessed to Captain Anthony Fabrizi of the Bridgeport police and apologized to Monteith for what he had done to his mother. Three days later he signed a written confession stating that he had planned to kill Hardy because he wanted to move into her house and live with her son and she would not allow it.

The defendant appeals claiming (1) that the trial court erred in failing to suppress the inculpatory statements given to the police, and (2) that the nineteen month delay before his retrial denied him his right to a speedy trial. We find no error.

I

The defendant claims that the oral statements made the night of his arrest and the written statements made three days later were erroneously admitted. He argues that the state failed to meet its burden of establishing that he waived his constitutional privilege against self-incrimination, as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that the state failed to show that the statements were made voluntarily. During trial, the court ruled the statements admissible after extensive testimony on the circumstances surrounding the confessions was elicited from Fabrizi on voir dire examination. On appeal, in order to determine whether the defendant’s constitutional rights have been infringed, we review the record in its entirety and are not limited to the evidence before the trial court at the time the ruling admitting the statements was made. Beckwith v. United States, 425 U.S. 341, 348, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976); Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); Lodowski v. State, 302 Md. 691, 711, 490 A.2d 1228 (1985); see also Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543 (1925); State v. Randall, 94 Ariz. 417, 419, 385 P.2d 709 (1963).

The circumstances leading to the incriminating statements can be summarized as follows: The defendant was brought to the police station immediately after his arrest on Friday, December 20,1974, and was read his Miranda rights by Fabrizi. The defendant, after each warning was read, orally indicated that he understood it. He also signed a written form acknowledging that he understood his rights. The defendant was then given a pat down search which turned up coins and watches from the Hardy home. Fabrizi asked him if he wanted to tell him what had happened at the victim’s home and reminded him about the blood on his clothes and the items found in his pockets. The defendant first told Fabrizi that he and another man had gone to the Hardy home but that it was his companion who had killed Hardy. Thereafter, however, the defendant recanted and admitted that he had no accomplice and that it was he who had committed the killing. Fabrizi then told the defendant that they needed his clothes and asked him to remove them. The defendant’s reaction to the request was to yell an obscenity and get up from his chair with his hand in a fist. The captain came around the table, slapped the defendant and pushed him back into his chair. After another request for the clothes, the defendant complied.

At this time, the defendant asked if he could see Monteith. When Monteith was brought in, the defendant apologized for what he had done to his mother and explained that he only wanted to live with him. The defendant also indicated to Fabrizi that he needed help and that he did not want to go to jail. Fabrizi told him that he did not have the authority to send him to a mental health facility, but did say that he would ask the court to order a mental evaluation. The defendant was then taken to a cellblock and had no contact with Fabrizi until Monday, December 23.

At about 9 a.m. on Monday, Fabrizi brought the defendant out of his cell and read him his Miranda rights in the same fashion as on Friday—stopping after each paragraph and asking him if he understood. The defendant responded affirmatively and again signed an acknowledgment form. Fabrizi then asked the defendant if he wanted to give a written statement concerning the murder, and the defendant agreed. The captain posed questions and typed the defendant’s answers. In his statements the defendant described in detail how he had killed the victim.

Fabrizi testified that he had known the defendant for four or five years. When asked about the defendant’s mental capacity, Fabrizi stated that “he operates at about a sixth to seventh grade level, [is] street wise, communicates well, [has] no extensive vocabulary, but he understands, he comprehends. . . . He reads very haltingly. His ability to write is not good at all . . . he prints most everything.” Fabrizi said that on Friday the defendant was nervous and had been drinking, but that he had responded to questions in “good, clear speech” and that his demeanor indicated that “he was all right.” Psychological testing admitted during trial on the issue of insanity indicated that the defendant had an IQ in the 68-71 range, was mildly retarded and was of “dull normal” intelligence. A psychiatrist and a clinical psychologist who testified on behalf of the state concluded that he had no thought disorders or any major psychiatric disturbances which would interfere with his ability to understand the nature of the charges against him or to assist his counsel in the preparation of a defense. A clinical psychologist called by the defense testified that the defendant had a profile of a very violent person and had been diagnosed as a “frantic schizophrenic.”

A

The defendant claims that the state failed to prove that he had knowingly and intelligently waived his right to remain silent at the time he made incriminating statements. Specifically, he argues that he had a limited ability to understand the Miranda warnings as read to him and that the police did not adequately explain the meaning of his rights. As to the Friday statements, he claims that intoxication additionally may have interfered with his ability to understand. He also argues that the state did not show that he had waived his rights by his course of conduct.

“In order to show that the defendant waived his privilege against self-incrimination, the state must prove by a preponderance of the evidence that he knowingly and intelligently waived his constitutional right to remain silent. State v. Alfonso, 195 Conn. 624, 628, 490 A.2d 75 (1985); State v. Perry, 195 Conn. 505, 516 n.8, 488 A.2d 1256 (1985).” State v. Aversa, 197 Conn. 685, 695, 501 A.2d 370 (1985); see Miranda v. Arizona, supra. “The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); State v. Frazier, 185 Conn. 211, 226, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). “[T]he question of waiver must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, 304 U.S. 458, 464 [58 S. Ct. 1019, 82 L. Ed. 1461 (1938)].” North Carolina v. Butler, supra, 374-75. The issue of waiver is factual, “but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. Culombe v. Connecticut, 367 U.S. 568, 605, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).” State v. Frazier, supra, 219.

Whether the defendant has “knowingly and intelligently waived” his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. See Tague v. Louisiana, 444 U.S. 469, 469-70, 100 S. Ct. 652, 62 L. Ed. 2d 622 (1980); Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 61 L. Ed. 2d 197, reh. denied, 444 U.S. 887, 100 S. Ct. 186, 62 L. Ed. 2d 121 (1979); see generally 1 LaFave & Israel, Criminal Procedure (1984) § 6.9 (b). Factors ■ which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings; Fare v. Michael C., supra, 726; State v. Alfonso, supra, 630-31; People v. Medina, 71 Ill. 2d 254, 259, 375 N.E.2d 78 (1978); his level of intelligence, including his IQ; Cooper v. Griffin, 455 F.2d 1142, 1145 (5th Cir. 1972); State v. Benoit, 440 So. 2d 129, 131 (La. 1983); Matter of Welfare of S.W.T., 277 N.W.2d 507, 512-13 (Minn. 1979); his age; Fare v. Michael C., supra; Matter of D.A.S., 391 A.2d 255, 258 (D.C. App. 1978); his level of education; Davis v. North Carolina, 384 U.S. 737, 742, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); State v. Harris, 188 Conn. 574, 581, 452 A.2d 634, cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1982); his vocabulary and ability to read and write in the language in which the warnings were given; see State v. Alfonso, supra; State v. Frazier, supra, 226; intoxication; see State v. Stankowski, 184 Conn. 121, 134-35, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); his emotional state; State v. Harris, supra, 582; and the existence of any mental disease, disorder or retardation. Henry v. Dees, 658 F.2d 406, 411 (5th Cir. 1981); People v. Watson, 75 Cal. App. 3d 384, 397, 142 Cal. Rptr. 134 (1977).

Reviewing the record in this case in light of the above factors, we find that the state has met its burden of showing that the defendant had the capacity to understand the meaning of his rights as explained to him by the police. The defendant was an adult, was familiar with police procedures and had been arrested previously. He was described as being street-wise and as operating on a sixth or seventh grade level. He could communicate well orally, could read and write to some degree, and had good comprehension. Although the defendant did have a fairly low IQ and there was some evidence that he was schizophrenic, these facts alone do not compel a finding that he could not understand the meaning of his rights. See People v. Watson, supra, 396 (where confession from an accused with an IQ of 65 and with signs of chronic organic brain damage and schizophrenia was admitted); State v. Moss, 7 Kan. App. 2d 215, 216-17, 640 P.2d 321 (1982) (63 IQ; eighth grade education); Commonwealth v. White, 362 Mass. 193, 196, 285 N.E.2d 110 (1972) (low IQ; illiterate); State v. Adkins, 289 S.E.2d 720, 728 (W. Va. 1982) (49 IQ; moderate retardation). Two psychologists and one psychiatrist testified at trial and gave no testimony which would cast doubt on the defendant’s ability to understand the meaning of the Miranda warnings. Also, Fabrizi, relying on his familiarity with the defendant and his past conversations with him, testified that the defendant knew the meaning of his rights. The defendant, when asked if he understood his rights, responded affirmatively and signed acknowledgment forms so indicating. Although the defendant had been drinking earlier on Friday, there was no evidence that the defendant was intoxicated at the time he made the incriminating statements; in fact, Fabrizi testified that the defendant had conversed in “good, clear speech.” There was also no evidence that the defendant’s emotional state impaired his ability to understand his rights.

Although we conclude that there was substantial evidence to support the finding that the defendant had the capacity to understand his rights as read to him and that he understood them, this does not end our inquiry. “Waiver is not conclusively established by demonstrating that Miranda warnings were given and understood. State v. Wilson, [183 Conn. 280, 284, 439 A.2d 330 (1981)]; see United States ex rel. Abubake v. Redman, 521 F. Sup. 963, 975 (D. Del. 1981). ...” State v. Aversa, supra, 695, quoting State v. Harris, supra, 579-80. “In the absence of an express waiver, the state bears the heavy burden of demonstrating, as a matter of fact, that ‘waiver can be clearly inferred from the actions and words of the person interrogated.’ North Carolina v. Butler, supra, 373.” State v. Harris, supra, 580.

A review of the record in this case reveals that there was substantial evidence that the defendant through his actions and words waived his right to remain silent. As to the Friday confession, Fabrizi first apprised the defendant of his rights, then asked if he wanted to tell him what had happened at the Hardy home. The defendant did not refuse to speak; instead, he gave a detailed description of what he did that day, openly telling the officer that he had been in the victim’s home but that he had not killed her. Then, immediately thereafter, he admitted that he had committed the murder. The lack of hesitancy to speak at that time, his loquacity, and the fact that his answers were in narrative form rather than just monosyllabic “yes” and “no” all indicate that he desired to speak and to waive his right to remain silent. See State v. Aversa, supra, 696-97. As to the Monday confession, Fabrizi went over the defendant’s rights paragraph by paragraph, and then asked the defendant if he would like to make a written statement telling the truth about what had happened. The defendant expressly agreed. He then proceeded to answer questions put to him by Fabrizi and signed the written version of those statements. “Under these circumstances, the defendant’s expressed willingness to speak constituted an explicit affirmative act evidencing waiver . . . . ” State v. Harris, supra, 580.

B

The defendant makes the related claim that the statements made to the police were not voluntarily given. He argues that his limited intelligence and mental instability diminished his capacity to make a voluntary confession. He also claims that Fabrizi coerced him into confessing on Monday by his use of physical force and promises of pyschiatric treatment on Friday.

“ ‘It is the state’s burden to prove by a preponderance of the evidence that the challenged confession was made voluntarily. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Hawthorne, 176 Conn. 367, 370, 407 A.2d 1001 (1978). The test of voluntariness is whether an examination of all the circumstances shows that the conduct of police was such as to overbear the defendant’s will to resist and bring about a confession not freely self-determined.’ ” State v. Perry, 195 Conn. 505, 515-16, 488 A.2d 1256 (1985), quoting State v. DeForge, 194 Conn. 392, 397-98, 480 A.2d 547 (1984). The factors taken into account when assessing the totality of the circumstances include many of those used when determining the capacity of the defendant to waive his Miranda rights knowingly and intelligently. Some of the considerations include the youth of the accused, his lack of education or low intelligence, the lack of any advice to the accused of his constitutional rights, the length of the detention, the repeated and prolonged nature of the interrogation, and the use of physical punishment such as the deprivation of food or sleep. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).

After a careful review of the record, we agree with the trial court’s conclusion that under all of the circumstances the two confessions here were voluntary. Reviewing the evidence concerning the defendant’s mental capacity, we are satisfied that he was fully capable of voluntarily giving a confession. The defendant was advised of his rights before each confession and he was not interrogated for long periods of time nor repeatedly badgered by the police. Cf. Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). Although the defendant was “slapped” and “shoved” by Fabrizi on Friday after his first incriminating statements were made, there is absolutely no evidence to support the claim that this incident in any way affected the voluntariness of either confession. If anything, the evidence showed that the use of force by Fabrizi was necessary to restrain the defendant and had not been used to intimidate him. While we recognize that in some cases promises by the police will invalidate a subsequent confession; see Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963); there is no evidence in this case that the promise of a psychiatric examination was the procuring cause of either confession. See State v. Falby, 187 Conn. 6, 18, 444 A.2d 213 (1982).

II

The defendant’s remaining claim is that he was denied his right to a speedy trial. Specifically, he argues that the delay in retrying him violated General Statutes §§ 54-82c and 54-82d, and also violated his right to a speedy trial under the sixth amendment to the federal constitution and article first, § 8, of the Connecticut constitution. We do not agree.

A

General Statutes §§ 54-82c and 54-82d provide a statutory method by which an inmate of a Connecticut penal institution who has a detainer placed against him can request and receive an expedited disposition of pending charges. The inmate must be serving a sentence at that time in order to have the procedure available to him. General Statutes § 54-82c (a). Pretrial detainees are not eligible. See United States v. Reed, 620 F.2d 709, 711 (9th Cir. 1980); United States v. Milhollan, 599 F.2d 518, 528 (3d Cir.), cert. denied, 444 U.S. 909, 100 S. Ct. 221, 62 L. Ed. 2d 144 (1979). Eligible inmates are entitled to a trial within 120 days or to a dismissal of the pending charges, if they follow the procedure outlined in the statutes. First, the inmate must request an expedited hearing under the statutes by giving written notice to the “warden, community correctional center administrator or other official having custody of him . . . . ” General Statutes § 54-82c (b). The prison official must then forward the request by certified mail to the “appropriate prosecuting official and court,” together with a certificate “stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.” General Statutes § 54-82c (a). If the procedure is complied with and the case is not assigned for trial within 120 days, then the charges must be dismissed. General Statutes § 54-82d. The trial court may, however, toll the 120-day period by granting, for good cause shown, “any necessary or reasonable continuance.” General Statutes § 54-82c (a).

This court overturned the defendant’s original conviction of murder and ordered a new trial in a decision dated August 14,1979. The defendant at that time was serving a sentence for manslaughter, a crime wholly unrelated to the one in the case before us. The sentence imposed for the manslaughter conviction was discharged on March 31, 1980. After the sentence had expired, the defendant remained incarcerated in lieu of bond while awaiting retrial on the murder charges. The new trial did not commence until March 18,1981.

The defendant, in a letter dated October 24, 1979, sent a request to Kay Bryan, the records supervisor of the Connecticut correctional institution at Somers, asking her to file a “Speedy Trial Disposition” on his behalf. Attached to the request was a copy of a letter which he had sent the same day addressed to the “Court House” in Bridgeport. In this letter he also requested a “Speedy Trial Disposition.” Bryan forwarded copies of the request to the state’s attorney’s office with a letter stating that she was unaware of any “outstanding warrants on which to process a speedy trial.” On May 5, 1980, the defendant filed a pro se motion to dismiss. The defendant in the motion sought to have the charges against him dismissed because the state had failed to grant Mm a trial witMn the time limit prescribed by General Statutes §§ 54-139 and 54-140 (now §§ 54-82c and 54-82d). A hearing was held on the motion on December 1, 1980, in which the state argued that the statutory provisions invoked by the defendant had not been complied with and that the defendant’s constitutional rights were not violated by the delay. The trial court denied the motion without comment on January 6, 1981.

The defendant in this case clearly had not complied with the statutory requirements of General Statutes §§ 54-82c and 54-82d when making his request for a “speedy trial.” First, the defendant did not bring to Bryan’s attention the fact that he was relying on this particular statutory procedure. Bryan could have considered the defendant’s letter as a request for a speedy trial as a matter of constitutional right. Second, the request as forwarded to the state’s attorney and the Superior Court in Bridgeport never mentioned the statutory procedure now relied upon by the defendant. As such, the state’s attorney and the court were never put on notice that the defendant was invoking Ms rights under the statutes. Third, Bryan never obtained and forwarded a certificate stating the nature of the sentence then being served. Thus, neither the court nor the state’s attorney was informed as to whether the defendant was even eligible under the statutes.

On the few occasions that we have had the opportunity to apply General Statutes §§ 54-82c and 54-82d, we have required strict compliance with the statutory notice procedures. For instance, in State v. Springer, 149 Conn. 244, 178 A.2d 525 (1962), we held that an initial request to the prison official was not sufficient to start the running of the 120 day period. The defendant must show that there was actual delivery of the request and supplemental information to the appropriate prosecuting authority and court before invoking Ms right to a speedy trial under the statute. Id., 250. In State v. Best, 171 Conn. 487, 492, 370 A.2d 1035 (1976), we reaffirmed the rule of State v. Springer, supra, and held that “notice to both prosecutor and court was necessary to commence the running of the 120-day period.” And, recently in State v. McCarthy, 197 Conn. 166, 496 A.2d 190 (1985), we rejected the argument that the statute begins to run when the inmate files a request with the prison official where the official, for reasons unexplained, did not promptly forward the request to the appropriate prosecuting authority and court. In McCarthy we made it incumbent upon the defendant to show that the prison official was in derogation of his duty and we refused to presume that the official had acted improperly under the statute. Id., 171.

In this case, because the defendant did not comply with the notice provisions of General Statutes §§ 54-82c and 54-82d, he was not entitled to a dismissal of the charges against him and he was not denied his right to a speedy trial under these statutes.

B

“The sixth amendment guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). This right is also guaranteed by the Connecticut constitution, article first, § 8. . . . The Supreme Court of the United States and this court have identified four factors which form the matrix of the defendant’s constitutional right to speedy adjudication: ‘[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated. State v. Nims, supra, 591-92.” State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983); State v. Gaston, 198 Conn. 435, 437, 503 A.2d 594 (1986).

There was a nineteen month delay in this case between the date of our decision in State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979), and the time of retrial. In part, this delay resulted from the fact that during the period the defendant had a total of three different public defenders appointed to represent him. The attorney originally appointed, Edward Kunin, filed a motion to withdraw on November 15, 1979, because the defendant had threatened his life. The next attorney appointed, Victor Ferrante, was allowed to withdraw on July 9,1980, after the defendant refused to cooperate with the court until new counsel was appointed. On July 21,1980, attorney Joseph Brophy was appointed and remained the defendant’s public defender through the time of trial.

There was also substantial delay caused by psychiatric examinations conducted pursuant to Practice Book § 760 and by a sanity hearing requested by the defendant’s counsel. The state had first requested a psychiatric examination on March 6,1980, but the doctor appointed to conduct the evaluation had to be replaced. This change was accomplished by a second motion for a psychiatric examination filed on April 23, 1980. The defendant refused to cooperate with the court-appointed doctors and, as a result, the state filed a motion to strike the defendant’s defense of mental disease or defect on June 29,1980. At a hearing on the motion on July 9, 1980, defense counsel requested a sanity hearing to determine whether the defendant was competent to stand trial. One of the doctors appointed to conduct the psychiatric examination was appointed by the court to conduct a sanity examination. On November 18,1980, that doctor concluded his evaluations and filed his written report pursuant to General Statutes § 54-56d (formerly General Statutes § 54-40). Finally, on December 1, 1980, a hearing was held at which the court determined that the defendant was competent to stand trial.

The delay in this case did not presumptively violate the defendant’s constitutional rights, but it was of sufficient length to trigger analysis of the other three factors set out in Barker v. Wingo, supra. See State v. Johnson, supra, 545. Reviewing the reasons for the delay, we note that the state must bear some of the responsibility for the nineteen month lapse, particularly for the period of time between March 6, 1980, and May 19,1980. The record indicates, however, that the defendant himself contributed substantially to the delay. Of particular note are his changes in counsel and disruptive court behavior. The defendant did assert his right to a speedy trial through his motion to dismiss dated May 5, 1980, but we note that on two separate occasions the defendant declined the opportunity to argue his motion before the court. On the issue of prejudice, the “linchpin” of a claim involving the right to a speedy trial; State v. Lloyd, supra, 209; the defendant has claimed that he was prejudiced by his extended incarceration and by the effect of time on Fabrizi’s memory. The defendant, however, has made no showing that extended imprisonment caused him unusual anxiety or that the decline in Fabrizi’s memory, if any, affected the trial.

Overall, analyzing the facts of this case in light of the factors set out in Barker v. Wingo, supra, and State v. Johnson, supra, we conclude that the defendant’s constitutional right to a speedy trial was not violated.

There is no error.

In this opinion the other judges concurred.

       The state argues that the issue concerning the confessions was already decided by this court in the prior appeal; State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979); and therefore need not be addressed. It is true that the constitutionality of the admission of the confessions was raised and briefed in the prior appeal. The state argued both that the defendant waived his right to raise the claim on appeal by failing to object to the confessions at trial, and that the state had met its burden on the issues of voluntariness and waiver of constitutional rights. We held that there was no error in the admission of the confessions, but the opinion of the court did not disclose on what grounds we so held. Because of the possibility that the issue was decided on the failure to object at the first trial, we will entertain the claim again on this appeal.

       The defendant has claimed that, as to the Friday statements, both his confession to Fabrizi and his statements to Monteith should have been suppressed. He argues essentially that the statements to Monteith were made only because he had already let “the cat out of the bag.” See United States v. Bayer, 331 U.S. 632, 540, 67 S. Ct. 1394, 91 L. Ed. 1654 (1947); State v. Rosa, 170 Conn. 417, 425-28, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976). Because we hold that the Friday statements to Fabrizi were properly admitted, we need not address this additional claim. The defendant concedes that the apology to Monteith was spontaneously volunteered and makes no claim as to the admissibility of the apology apart from his argument under the doctrine of United States v. Bayer, supra.
      The defendant has also called into question the admissibility of the Monday confession, given the claimed illegality of the Friday confession, and he again invokes the same “cat out of the bag” doctrine under United States v. Bayer, supra. Again, because we hold that the Friday statements were admissible, we do not reach this additional claim.

       The defendant has made his claim under both the federal and state constitutions. We have held: “Although the Miranda warnings were originally effective in state prosecutions only because they were a component of due process of law under the fourteenth amendment; Miranda v. Arizona, [384 U.S. 436, 463-65, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]; Malloy v. Hogan, 378 U.S. 1, 3, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); they have also come to have independent significance under our state constitution. Conn. Const., art. I, § 8; State v. Falby, 187 Conn. 6, 11 and n.1, 444 A.2d 213 (1982).” State v. Ferrell, 191 Conn. 37, 40-41, 463 A.2d 573 (1983). The defendant, however, “has proffered no argument that the rights afforded to him by the federal and the state constitutions are in any way distinguishable with respect to the substantive issue that he has raised. We see no reason, on the facts of this case, independently to undertake such an analysis.” State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985).

       The Miranda warnings were read from the police department’s “notification of rights” form. The form, which the defendant signed, also served as an acknowledgment that the defendant received and understood his rights. The form used here provided:
      “The Constitution requires that I inform you of your rights;
      “You have a right to remain silent. If you talk to any police officer, anything you say can and will be used against you in court.
      “You have a right to consult with a lawyer before you are questioned, and may have him with you during questioning.
      “If you cannot afford a lawyer, one will be appointed for you, if you wish, before any questioning. If you wish to answer questions, you have the right to stop answering at any time.
      “You may stop answering questions at any time if you wish to talk to a lawyer, and may have him with you during any questioning.
      “I fully understand the above notification of rights.
      “Signed_
      “Time: _
      “Date: _
      “Witness: _”

       While the defendant had no obligation to testify on this matter and the burden is on the state to show voluntariness of the confessions, a court cannot supply evidence that is lacking. State v. Aversa, 197 Conn. 685, 697, 501 A.2d 370 (1985); State v. Harris, 188 Conn. 574, 579-80, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).

       General Statutes § 54-82c, formerly General Statutes § 54-139, provides: “(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, community correctional center administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.
      “(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, community correctional center administrator or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
      “(c) The warden, community correctional center administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof.
      “(d) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in subsection (a) hereof shall void the request.”
      General Statutes § 54-82d, formerly General Statutes § 54-140, provides: “If an action is not assigned for trial within the period of time as provided in section 54-82c, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall enter an order dismissing the same.”

       Other courts applying the Interstate Agreement on Detainers, a statute very similar to General Statutes §§ 54-82c and 54-82d, codified in § 54-186, have adopted the same rule requiring strict compliance with the notice procedures. See, e.g., Seymore v. State, 429 So. 2d 1188, 1193-94 (Ala. Crim. App. 1983); State v. Bass, 320 N.W.2d 824, 828-29 (Iowa 1982); Hines v. State, 58 Md. App. 637, 649-50, 473 A.2d 1335 (1984); Hill v. Jones, 94 App. Div. 2d 904, 463 N.Y.S.2d 655 (1983); State v. Smith, 64 Or. App. 588, 669 P.2d 368, 369-70 (1983); Commonwealth v. Gonce, 320 Pa. Super. 19, 28, 466 A.2d 1039 (1983).

       Practice Book § 760 provides: “In an appropriate case the judicial authority may, upon motion of the prosecuting authority, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the defendant in the course of any examination provided for by Sec. 757, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding. A copy of the report of the psychiatric examination shall be furnished to the defendant within a reasonable time after the examination.”