author: Covello, J.

text:
    State of Connecticut v. Jose Rivera
    (14080)
    Peters, C. J., Glass, Covello, Borden and Santaniello, Js.
    Argued November 5, 1991
    decision released January 28, 1992

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom were JohnM. Bailey, state’s attorney, and, on the brief, Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Covello, J.

This is the defendant’s appeal from his conviction of murder in violation of General Statutes § 53a-54a. The issues on appeal are whether the trial court improperly: (1) admitted the hearsay testimony of two witnesses who were unavailable to testify; (2) excluded an alleged declaration against penal interest for lack of trustworthiness; (3) admitted evidence of the defendant’s prior felony conviction for possession of narcotics; and (4) failed to instruct the jury that, if it were to reject the defendant’s claim of self-defense, it must be unanimous in its decision as to why it was rejecting that defense. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In the early evening of August 9,1988, the victim, Luis Villafane, and a male companion approached the defendant, Jose Rivera, and his brothers, Heriberto Santiago (Heriberto), Luis Santiago (Luis), and Ernesto Santiago (Ernesto), who were all sitting on the steps outside of their home at 1064 Broad Street in Hartford. Villafane, who was holding a metal pipe, accused Ernesto of cheating him in a drug deal earlier that day by selling him bags of sugar instead of drugs. As tensions mounted, Luis went into the house and came back with a sawed-off rifle that he gave to the defendant. The defendant and his brothers then chased the victim and his friend across the street to an alley. When the victim attempted to strike the defendant with the metal pipe, the defendant shot and killed him. The defendant and the witnesses who had viewed the incident testified that the defendant, and no one else, had fired the rifle four or five times and had shot the victim. The autopsy report indicated that the victim had been shot only once. On October 19,1989, the jury rendered a verdict of guilty of murder and not guilty of conspiracy to commit murder. The trial court sentenced the defendant to a term of fifty years imprisonment.

I

The defendant first claims that the admission at trial of the probable cause testimony of two state’s witnesses, Maria Colon and Heriberto Santiago, violated his constitutional rights to present a defense, confront and cross-examine witnesses and to due process of law. The defendant claims that the trial court improperly determined that: (1) the state had demonstrated the witnesses’ unavailability to testify at trial; and (2) their testimony was reliable. State v. Outlaw, 216 Conn. 492, 505, 582 A.2d 751 (1990).

At the probable cause hearing, Colon testified that, on the evening of the shooting, she had been sitting outside when she heard some yelling. She then saw the defendant, who was carrying a rifle, and “the boys” chase the victim, who was holding a “stick or something like that,” across the street, at which point, the defendant shot the victim. Heriberto testified about the initial confrontation among the victim, the defendant and his brothers, and the subsequent chase. He also testified that while the defendant was holding the victim’s companion at gunpoint, the victim had approached the defendant from behind and hit him in the arm with a pipe. It was only then, Heriberto testified, that the defendant shot the victim. Concluding that the two prong test for admissibility of prior testimony had been met, the court allowed a transcript of Maria Colon’s and Heriberto Santiago’s probable cause hearing testimony to be read to the jury.

“[T]his court and the United States Supreme Court have declared that prior testimony of an unavailable witness is admissible in a subsequent trial as an exception to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 67, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); California v. Green, 399 U.S. 149, 165, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); State v. Parker, 161 Conn. 500, 503-504,289 A.2d 894 (1971).” (Emphasis added.) State v. Torres, 210 Conn. 631, 645-46, 556 A.2d 1013 (1989). The two part test for the admissibility of such testimony is as follows: “ ‘First . . . [t]he prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.’ [Ohio v. Roberts, supra,] 65. Even after the declarant is satisfactorily shown to be unavailable, ‘his statement is admissible only if it bears adequate “indicia of reliability” ’; id., 66; which serve to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, [supra, 160-61].” State v. Outlaw, 505.

In State v. Frye, 182 Conn. 476, 480-81, 438 A.2d 735 (1980), we identified five of the most common situations in which the declarant will be deemed unavailable for the purposes of certain hearsay exceptions. The situation relevant here states: the declarant is “ ‘absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means. (Emphasis added.) Id., 481. “In interpreting ‘reasonable means,’ we have held that the proponent must exercise due diligence and, at a minimum, make a good faith effort to procure the declarant’s attendance. State v. Aillon, 202 Conn. 385, 391, 392, 521 A.2d 555 (1987), citing State v. Weinrib, 140 Conn. 247, 252, 99 A.2d 145 (1953), and State v. DeFreitas, [179 Conn. 431, 445, 426 A.2d 799 (1980)]. The trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. ‘Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters.' Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987).” State v. Rivera, 220 Conn. 408, 411-12, 599 A.2d 1060 (1991).

At a hearing held the week before trial commenced, the state called Steven Oborski, an inspector for the Hartford state’s attorney’s office, to prove that Maria Colon and Heriberto Santiago were unavailable. Oborski testified as to his continuing, but unsuccessful, efforts to locate both witnesses. Oborski knew that Colon had resided at 1064 Broad Street in Hartford because he had served her with a subpoena for her attendance at the September 30,1988 probable cause hearing. After that hearing, Oborski gave Colon his “card and other information” and asked her to “stay in touch” if there was any change in her address or whereabouts. In July, 1989, he worked on the case and testified that, around that time, he heard an “unsubstantiated rumor” that Colon had left the area. Oborski testified that he prepared a subpoena to serve on Colon but when he went to her old address, “close to jury selection time,” the building superintendent informed him that she had moved to Puerto Rico with her children sometime in 1988. Colon left no forwarding address and Oborski was not able to obtain any information through police records, motor vehicle records, license and registration records or telephone company records. Oborski discovered Colon’s mother’s address in Hartford but upon arriving, former neighbors also informed him that she had moved to Puerto Rico.

After attempting to trace Colon through other relatives and friends, Oborski located her brother, Samuel Colon, in Hartford. He said that his mother and Colon lived in Guayamus, Puerto Rico, in a section of the city called Pointe Dehobo. Oborski attempted to telephone the Commonwealth of Puerto Rico police department on September 20 and 21, 1989, but was unsuccessful because telephone service was inoperative due to a hurricane. On September 22, 1989, he telephoned Major Tabia, the commander of criminal affairs and extradition for Puerto Rico, who replied that, without more information, he would not be able to help locate Colon. On the same day, Oborski also contacted Commandante Benito Cruz Lopes and Officer Antonio Rodrigues Colon of the Guayamus police department by telephone and sent them a “follow-up” letter. He informed them that the state wanted Colon’s testimony for an imminent trial and requested their aid in locating Colon. The Guayamus police officials told Mm that they would try to find her and notify her to contact the state’s attorney’s office. Oborski and the state’s attorney prepared an interstate subpoena to be used in the event that the authorities were able to locate Colon, but as of the September 28,1989 hearing date, the Puerto Rican police authorities had not provided any further information, nor had Colon contacted Oborski. Oborski testified that he was not sure that Colon was even in Guayamus because her brother said that he had not stayed in contact with her.

The next day, Oborski contacted personnel at the Connecticut department of income maintenance to see if they had Colon’s new address but they informed him that, even if Colon were a recipient of state assistance, the agency would not be permitted to release any information to him. Nevertheless, Oborski determined that a federal statute might authorize access to financial assistance records in Puerto Rico, and he called the Puerto Rican Aid to Families with Dependent Children program (AFDC). Personnel there said that they would be willing to help locate Colon, but since “Colon” was an extremely common name they would need, at a minimum, her father’s full name to narrow the search, and, ideally, a social security number to pinpoint the investigation. Oborski testified that he completed approximately twenty-five computer checks of correctional and other records in an unsuccessful attempt to locate Colon’s social security number. Oborski also contacted Steven Reardon of the United States Department of Labor who found approximately fifteen “Maria Colons,” none of whom was the witness in question.

With respect to Heriberto Santiago, Oborski testified that, at the time of the probable cause hearing, Heriberto was at the Cheshire correctional facility. When the prison discharged Heriberto, he gave the address of his brother, Angel Santiago (Angel), as his own, but, according to Angel, his brother never lived there after his discharge. Angel believed that Heriberto lived somewhere in Holyoke or Chicopee, Massachusetts. The Chicopee police told Oborski that the Holyoke police department had an outstanding burglary arrest warrant for Heriberto. On September 25,1989, Oborski told the Holyoke police that the Hartford state’s attorney’s office wanted to serve an interstate subpoena on Heriberto if the Holyoke authorities were successful in locating him. He also requested that they go to the address listed on the warrant to serve Heriberto with it. He called the Holyoke police the next day and they informed him that they could not locate Heriberto at the given address. Oborski left his name and other information with the Holyoke police along with a request that they notify him if they apprehended Heriberto.

On the second day of the hearing, September 29, 1989, Oborski testified that he had discovered Heriberto’s six aliases and six dates of birth and his FBI number, none of which had helped locate him. He testified that his National Crime Information Center (NCIC) search throughout the entire United States produced no criminal records outside of Connecticut. Oborski also reported that, using all of the aliases and birth dates, he had searched the New England, New York and New Jersey area in a national law enforcement computer system to no avail for motor vehicle and registration information.

The trial court subsequently declared both Maria Colon and Heriberto Santiago “unavailable” and ruled that their testimony at the probable cause hearing had sufficient “indicia of reliability” to be admissible as evidence. As to the issue of unavailability, the trial court, relying upon Oborski’s testimony concerning his extensive efforts, determined that the state had exercised reasonable due diligence. As to the reliability of the probable cause hearing testimony, the trial court concluded that because of the administration of an oath, the solemnity of the hearing, the opportunity for cross-examination, the accuracy of the reproduction of the words spoken and, in general, identical safeguards to ensure reliability and trustworthiness as testimony given at a full trial, this prior testimony had sufficient indicia of reliability.

On appeal, the defendant claims that the trial court improperly determined that the state had demonstrated that Maria Colon and Heriberto Santiago were unavailable, and that their prior testimony was reliable. The defendant argues that the state should not profit from its own negligence by starting its search so close to trial and that its tardiness contributed to the fact that the witnesses were found to be unavailable. To support this proposition, the defendant cites Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L. Ed. 1150 (1900) (witness’ absence due to negligence of state where state allowed witness, who was prisoner, to stay in hotel largely unguarded, and witness escapes), and United States v. Quinn, 901 F.2d 522 (6th Cir. 1990).

In Quinn, despite a full month’s notice of the trial date and knowledge that a five day lead time is generally required by the United States Marshal’s Office, the government did not deliver a subpoena to the office until two working days before the trial. Id., 528. Then, upon finding no one at the witness’ address and being informed by a neighbor that she had moved a month earlier, the marshal did nothing further until the trial commenced. The night after the first day of trial, the marshal drove by the house of the witness’ mother but left after he did not see the witness’ car. The marshal then called the witness’ mother the next day. She told him that the witness was “ ‘in and out of the house,’ ” and would be home that evening. The court refused to consider this “singularly unenthusiastic” effort to locate the witness to be due diligence, noting the failure to check any records, other relatives, or possible employers, despite evidence that the witness was employed. Id.

We are not persuaded that either of these cases are analogous to the facts presented here. Unlike Motes v. United States, supra, the state never had custody of either witness for purposes of their appearance at trial and the state did not cause the witnesses’ unavailability. In contrast to Quinn, the state’s efforts to locate the witnesses in this case began earlier and far surpassed those found in Quinn. While we agree with the defendant’s argument that the state should have contacted Colon’s brother, Samuel Colon, to obtain their father’s full name in order to help search for her name in the Puerto Rican AFDC program, we note that this would not necessarily have found her but would only have narrowed the investigation for this very common name. Furthermore, there never was any proof that Colon, in fact, received any such assistance. Moreover, the question of whether an effort to locate a missing witness has been sufficiently diligent to declare that person “unavailable” is one that is inherently fact specific and always vulnerable to criticism, due to the fact that “[o]ne, in hindsight, may always think of other things.” Ohio v. Roberts, supra, 75. Benefited, as we are, with this hindsight, we nevertheless refuse to condemn the state’s efforts when, as here, they far surpassed those that occurred in the cases relied upon by the defendant.

As to the reliability of the testimony, the defendant claims that since the police eventually found the murder weapon in Colon’s apartment, she had a strong motive to shift the blame onto the defendant. The defendant also argues that Heriberto’s testimony was unreliable because: (1) Heriberto was inconsistent as to which brother went into the house to retrieve the murder weapon; and (2) in other testimony, Heriberto had implicated himself as the one who discharged a weapon.

“[T]he testimony given at a probable cause hearing has the identical safeguards to insure reliability and trustworthiness as the testimony given at the trial.” State v. Parker, 161 Conn. 500, 503, 289 A.2d 894 (1971); see also State v. Outlaw, supra, 503. Because the state granted Colon immunity from prosecution in connection with hiding the weapon, we disagree with the defendant’s contention that Colon’s testimony was unreliable and untrustworthy.

Thus, any motives for her lying were thereby neutralized. As to Heriberto, we also disagree. In Heriberto’s probable cause hearing testimony, he essentially corroborated the defendant’s claim by testifying that the defendant alone shot the victim in self-defense. Further, his “inconsistencies” as to which brother retrieved the gun from the house, were, by agreement of the parties, never read to the jury.

We conclude that the trial court did not abuse its broad discretion in either determination.

II

The defendant next claims that the trial court improperly ruled that Heriberto’s out-of-court declaration against penal interest lacked sufficient trustworthiness to be admissible. In an offer of proof before trial commenced, Heriberto’s brother, Angel, testified that approximately two weeks after Heriberto’s release from prison, he arrived at Angel’s house crying. Angel testified that, in response to his inquiry as to why he was crying, Heriberto stated that he “felt very bad because when the problem happened he run toward the boy. He had a small gun, like this. That he shot the guy and thought he killed him. And he was afraid.” The trial court ruled that this evidence lacked the requisite trustworthiness to be admitted before the jury.

“A trustworthy third party statement exculpatory of the accused and against the penal interest of the declarant is admissible at the trial of the accused if the declarant is unavailable.” (Emphasis in original.) State v. Rosado, 218 Conn. 239, 243-44, 588 A.2d 1066 (1991). For the purposes of this analysis, although he earlier claimed to the contrary, the defendant argues, consistent with the state’s position, that Heriberto was unavailable. The remaining question as to whether the statements were sufficiently trustworthy is a decision within the sound discretion of the trial court. Id. Three relevant considerations when examining the trustworthiness of declarations against penal interest are: “(1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; and (3) the extent to which the declaration is really against the declarant’s penal interest.” United States v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S. Ct. 132, 54 L. Ed. 2d 102 (1977). As to the third consideration, the state concedes that Santiago’s statement, if actually made, would have been against his penal interest.

The defendant argues that the statement is trustworthy and satisfies the remaining two prongs of the test because: (1) Heriberto confessed to his own brother within two weeks of his release from prison; and (2) there was sufficient corroborating evidence to support the trustworthiness of the statement. We disagree.

First, the time the declarations were made and also, to a lesser extent, the party to whom they were made, weigh against their reliability. The lateness of the declaration, approximately seven months after the shooting, even if soon after Heriberto’s release, militates against its trustworthiness. Furthermore, there is no evidence that Heriberto ever repeated this story to anyone else and, most significantly, he testified at the probable cause hearing that it was the defendant who had shot the victim. See State v. Mayette, 204 Conn. 571, 578, 529 A.2d 673 (1987) (delay combined with lack of reiteration of confession vitiates reliability). Further, “the witness testifying as to the statement must be one in whom the declarant would naturally confide.” State v. Hernandez, 204 Conn. 377, 392, 528 A.2d 794 (1987). There must be a relationship in which the two parties to the conversation had a close and confidential relationship. State v. Sanchez, 200 Conn. 721, 726, 513 A.2d 653 (1986). The sibling relationship here could ordinarily fulfill these requirements but there was evidence that Heriberto did not get along well with his other brothers, except for Ernesto; that Angel and Heriberto did not grow up together; and that Heriberto had burglarized Angel’s apartment. While this evidence may not rise to the level of completely negating the natural assumptions given to a sibling relationship, this element of the test is not helpful to the defendant in meeting his burden.

Second, and most damaging, the minimal amount and speculative nature of the defendant’s proffered corroborative evidence fails to ensure trustworthiness. “The corroboration requirement for the admission of a third party statement against penal interest is significant and goes beyond minimal corroboration. Third party statements exculpating an accused are suspect and the requirement of corroboration, to effectuate its purpose of circumventing fabrication, must be construed as requiring corroborating circumstances that clearly indicate the trustworthiness of the proffered statement.” State v. Rosado, 218 Conn. 239, 249, 588 A.2d 1066 (1991). The defendant’s corroborative evidence rests on two facts. First, the police found only four shell casings at the scene and one witness thought he heard five shots, thus raising the inference that there was a second weapon involved that was fired by Heriberto. Second, the slug removed from the victim could not be definitively linked to the weapon allegedly fired by the defendant because of the bullet’s damaged condition, thereby suggesting that a second weapon could conceivably have been involved. These facts do not constitute significant corroboration because there is no direct evidence whatsoever, other than Heriberto’s alleged remarks, that more than one gun was fired or that anyone except the defendant fired the gun. Given the speculative nature of the evidence presented to support the trustworthiness of Heriberto’s statement, we are unable to conclude that the trial court abused its broad discretion in this matter.

III

The defendant next claims that the trial court improperly admitted into evidence the nature of his prior felony conviction for possession of narcotics. He argues that because the trial court should only have allowed the state to refer to the conviction as an unspecified felony, his conviction must be reversed. We disagree.

Prior to testifying on his own behalf, the defendant filed a motion in limine to preclude the prosecution from introducing evidence of the defendant’s March 1,1988 felony conviction for possession of narcotics. The trial court denied the motion, ruling that the prejudicial effect of the evidence did not outweigh its probative value. After this ruling, defense counsel elicited from the defendant upon direct examination that he had a prior felony conviction for possession of narcotics. Once the defendant had admitted the felony conviction, the trial court interrupted to explain to the jury that their “consideration of that prior conviction of a crime is admitted at trial only for the purpose of weighing and affecting the witness’ credibility and for no other purpose.” The trial court gave a similar instruction during its final charge to the jury.

“As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him.” State v. Sierra, 213 Conn. 422, 428, 568 A.2d 448 (1990), quoting State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). The trial court, however, “may allow the state to mention specific prior convictions as evidence of a defendant’s credibility provided such convictions carry a penalty of more than one year in prison and provided that their prejudicial effect does not far outweigh their probative value.” State v. Geyer, 194 Conn. 1, 16, 480 A.2d 489 (1984). The trial court has wide discretion in this balancing determination and “ ‘every reasonable presumption should be given in favor of the correctness of the court’s ruling .... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.’ ” State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977).

“Three factors should be examined to determine whether a prior criminal conviction . . . has been [properly] admitted: (1) the extent to which admission is likely to prejudice the defendant’s cause; (2) the significance of the prior crime as bearing on the defendant’s truthfulness; and (3) the remoteness in time of the prior conviction.” State v. Geyer, supra, 11; see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.21.6. Since neither party disputes that the prior conviction occurred only five months before the shooting, the third prong of the test, which looks upon older convictions with less favor, is clearly satisfied. State v. Nardini, 187 Conn. 513, 525, 447 A.2d 396 (1982) .

“As to the first criterion, a high degree of prejudice can be expected when the prior crime is quite similar to the crime charged because of the jury’s tendency to believe that ‘if he did it before, he probably did it again.’ State v. Carter, [189 Conn. 631, 644, 458 A.2d 379 (1983) ].” C. Tait & J. LaPlante, supra, § 7.21.6, p. 199. While the crime at issue arose in the context of a soured drug transaction, the gravamen of the defendant’s claim is self-defense, not an outright denial of the shooting. Notwithstanding the lack of similarity between the crimes of possession of narcotics and murder, the defendant claims that the mere mention of a prior drug-related offense is enough to cause unacceptable prejudice. While we agree that evidence of a prior narcotics felony conviction is certainly prejudicial to the defendant, evidence of any felony conviction is equally prejudicial. This generic prejudice is insufficient to render the disclosure of his prior conviction inadmissible.

As to the second criterion, a felony conviction for possession of narcotics falls within the category of crimes “that do not reflect directly on the credibility of one who has been convicted of them”; State v. Geyer, supra, 12; rather than within the category of crimes that bear directly on credibility and “imply a general disposition toward dishonesty . . . .” Id. While not as probative of credibility, a narcotics felony conviction “ ‘demonstrates a bad general character, a “general readiness to do evil” and . . . such a disposition alone supports an inference of a “readiness to [prevaricate] in [this] particular case . . . .” Gertz v. Fitchburg R. Co., 137 Mass. 77, 78 (1884) (Holmes, J.).’ State v. Nardini, [187 Conn. 513, 523-24, 447 A.2d 396 (1982)].” Id. Furthermore, while crimes such as narcotics felony convictions are less probative of credibility than those such as perjury or fraud, we have noted the “legislative judgment that records of [all] crimes involving sentences of more than one year affect the credibility of a witness . . . .” State v. Bitting, 162 Conn. 1, 10, 291 A.2d 240 (1971). The defendant argues, however, that in State v. Geyer, supra, 13-15, this court ruled that in a prosecution for possession of narcotics with intent to sell, evidence of four prior narcotics convictions was improperly admitted to impeach the defendant’s credibility. It is clear that the prejudicial similarity between the evidence and the crime at issue there, was, unlike this case, very high. Moreover, we note that the language in Geyer suggesting that the crime be referred to as an “unspecified” felony conviction is permissive not mandatory. Id., 16. In view of the total dissimilarity between this murder charge and the recent narcotics felony conviction, the fact that such a conviction has less bearing on the defendant’s credibility than crimes recognized as indicating dishonesty, such as perjury and fraud, is not sufficient to constitute an abuse of the trial court’s discretion in this instance.

IV

The defendant’s final claim is that the trial court improperly failed to instruct the jury that, if it rejected his claim of self-defense, it must be unanimous in its reason for rejecting such a claim. In its charge to the jury, the trial court instructed the jury that its verdict must be unanimous. Additionally, the trial court informed the jury that there were five grounds that might vitiate a claim of self-defense. Of these five alternatives, the defendant has focused on the trial court’s explanation to the jury that the defendant was not justified in using force if: (1) he was the initial aggressor and did not attempt to withdraw; or (2) he engaged in mutual combat. The defendant argues that the jury could have rejected his claim of self-defense without unanimously agreeing upon which of these two exclusionary factors applied. See General Statutes § 53a-19 (c) (2) and (3), footnote 7.

“[W]e have not required a specific unanimity charge to be given in every case in which criminal liability may be premised on the violation of one of several alternative subsections of a statute. We have instead invoked a multipartite test to review a trial court’s omission of such an instruction. We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter.” State v. Famiglietti, 219 Conn. 605, 619, 595 A.2d 306 (1991). Furthermore, “we have ‘serious reservation[s] about the applicability of the unanimity requirement to self-defense ....’” State v. Diggs, 219 Conn. 295, 301-302, 592 A.2d 949 (1991), quoting State v. Bailey, 209 Conn. 322, 336, 551 A.2d 1206 (1988). “[T]he defendant here is unable to provide us with any authority for the proposition that a unanimity instruction was required as to the factual basis for the jury’s rejection of his self-defense claim, nor have we been able to locate any.” State v. Diggs, supra, 302; see also State v. Bailey, supra. “[W]e do not, at this juncture, express the opinion that a specific unanimity charge would never be required for claims of self-defense . . .”; State v. Bailey, supra; but do hold that where, as here, the trial court did not sanction a nonunanimous verdict, a unanimity instruction on self-defense is not required. State v. Famiglietti, supra; see also State v. Bailey, supra, 334-36.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides: “murder, (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.”

       “Unavailability as a witness includes situations in which the declarant— (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of his statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance ... [or testimony] by process or other reasonable means.” State v. Frye, 182 Conn. 476, 481-82 n.3, 438 A.2d 735 (1980).

       NCIC records did not include the Massachusetts burglary warrant because NCIC did not consider it an extraditable felony.

       Colon, who may have been assisting the defendant by hiding the murder weapon in her apartment, faced a potential charge of hindering prosecution.

        United States v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S. Ct. 132, 54 L. Ed. 2d 102 (1977), Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), the seminal case on this issue, and many of our previous decisions, have included a fourth factor: the availability of the declarant as a witness. Because Chambers predated, by two years, the passage of rule 804 (b) (3) of the Federal Rules of Evidence, which expressly required that the declarant be unavailable for declarations against penal interest to be admissible, this fourth requirement had relevance. Because we also require the unavailability of the declarant as a prerequisite to any examination of the trustworthiness of his statements; State v. Rivera, 220 Conn. 408, 411, 599 A.2d 1060 (1991); an analysis of availability as a factor for determining trustworthiness, after unavailability has already been determined, is superfluous and confusing.

       The record does not reflect how long after the August 9, 1988 shooting Heriberto’s incarceration began, although he was incarcerated by the time of the September 30, 1988 probable cause hearing.

       “[General Statutes] Sec. 53a-19. use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but sueh other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    The Connecticut National Bank v. Gina Lorenzato et al.
    (14371)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued December 11, 1991
    decision released February 4, 1992

      Thomas P. Parrino, with whom was James F. Sullivan, for the appellant (defendant New Canaan Bank and Trust Company).

      Peter M. Nolin, with whom was Scott G. Grubin, for the appellee (plaintiff).
   Peters, C. J.

This appeal concerns the circumstances under which a properly executed mortgage takes priority over a subsequent judicial lien when the mortgage, as recorded, inadvertently contains an unsigned signature page. The plaintiff, Connecticut National Bank (mortgagee), brought an action to foreclose a mortgage against the defendants Gina and Mario Lorenzato because of their default on the underlying promissory note secured by the mortgage. The mortgagee’s action also cited as defendants other allegedly subsequent lien-holders, including the defendant New Canaan Bank and Trust Company (lien creditor). All of the defendants were defaulted, except for the lien creditor, which filed a motion for summary judgment maintaining that its lien took precedence over that of the mortgage. The mortgagee responded by filing a cross motion for summary judgment. The trial court, Ciojfi, J., granted the motion filed by the mortgagee, and the court, Nigro, J., subsequently rendered a judgment of strict foreclosure on its behalf. The lien creditor appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We affirm.

The trial court’s memorandum of decision contains the following relevant facts, which are undisputed. Gina Lorenzato owned property in New Canaan. On February 10,1989, Gina Lorenzato executed an open-end construction mortgage on this property to secure the contemporaneous promissory note of Gina and Mario Lorenzato in the amount of $1.7 million in favor of the mortgagee. The mortgage, and a rider attached to it, were properly signed, witnessed and acknowledged on that date in accordance with the requirements of General Statutes § 47-5 (a). That same day, the mortgage was recorded in the town land records. Through the inadvertence of the mortgagee, the copy of the mortgage that was recorded contained a signature page lacking the required signatures and acknowledgment. The rider, attached to and referencing the mortgage, contained the required signatures and was properly witnessed, executed and acknowledged.

On March 3, 1989, the lien creditor recorded a writ of attachment in the amount of $55,000 against the same property on the town land records. The mortgagee has challenged the priority status, but not the validity, of that lien.

On March 27, 1989, the mortgagee again recorded its mortgage on the town land records. The newly recorded mortgage differed from the one earlier recorded in only one respect: it contained a fully executed signature page.

The trial court, Cioffi, J., ruled that the mortgage and rider, as recorded, gave sufficient notice to the lien creditor of the Lorenzatos’ obligation to the mortgagee. The court noted that the lien creditor had not alleged either that it had been misled by the omission of the signature page, or that it could not have determined the validity of the mortgage by common prudence and by the exercise of ordinary diligence. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 580, 522 A.2d 763 (1987). For these reasons, the court denied the lien creditor’s motion for summary judgment and granted the cross motion filed by the mortgagee.

In subsequent proceedings, the trial court, Nigro, J., rendered a judgment of strict foreclosure, finding the debt owed to the mortgagee to be $1,734,204.70 plus fees, and the appraised value of the mortgaged property to be $845,000. Because of the trial court’s refusal to terminate the stay of execution attendant to the filing of the lien creditor’s appeal, law days that were set in conjunction with the judgment of foreclosure have not been implemented.

In its appeal, the lien creditor maintains that the trial court improperly granted the mortgagee’s cross motion for summary judgment for two reasons. Its principal contention is that our recording statute makes the defective recordation of a deed a nullity. From that premise, it argues that a defectively recorded deed cannot give constructive notice to third persons. It buttresses this contention with an interpretation of a recent validating act, which provides no relief for the mortgagee in the circumstances of this case. Nevertheless, we are unpersuaded that the lien creditor should prevail in the present factual situation.

The rights of the parties depend upon the terms of our recording statute. General Statutes § 47-10 provides, in relevant part: “No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies.” We must determine under what circumstances a recorded deed containing an unsigned signature page can qualify as a “conveyance” that has been sufficiently “recorded” to afford constructive notice to a third party lien creditor.

The effectiveness of a recorded conveyance lacking a requisite signature page, when the underlying mortgage deed was validly executed, is a question of first impression in this state. Resolution of this question must take into account three overlapping lines of authority in our existing caselaw.

The lien creditor emphasizes that, in cases dating back to the early part of the nineteenth century, this court has considered the effectiveness of a mortgage that was defectively executed because of the absence of a necessary signature or acknowledgement. We have consistently held that the recordation of such a defectively executed mortgage does not give constructive notice to third persons. See, e.g., Goodman v. Randall, 44 Conn. 321, 325-26 (1877); Winsted Savings Bank & Building Assn. v. Spencer, 26 Conn. 195, 198 (1857); Sumner v. Rhodes, 14 Conn. 135, 139 (1840); Carter v. Champion, 8 Conn. 549, 558-59 (1831); Watson v. Wells, 5 Conn. 468, 473 (1825); Merwin v. Camp, 3 Conn. 35, 41-42 (1819).

The mortgagee reminds us that, during the same period, this court has also determined the criteria for the effective recordation of a properly executed mortgage. We have consistently held that the recordation of a valid mortgage gives constructive notice to third persons if the record sufficiently discloses the real nature of the transaction so that the third party claimant, exercising common prudence and ordinary diligence, can ascertain the extent of the encumbrance. Peoples Savings Bank v. Corrado, 151 Conn. 388, 391, 198 A.2d 209 (1964); Sadd v. Heim, 143 Conn. 582, 585, 124 A.2d 522 (1956); Swaye v. Murphy, 126 Conn. 497, 500, 12 A.2d 547 (1940); Bridgeport Land & Title Co. v. George Orlove Co., 91 Conn. 496, 497-98, 100 A. 30 (1917); Beach v. Osborne, 74 Conn. 405, 408, 50 A. 1019 (1902); Merrills v. Swift, 18 Conn. 257, 264 (1847); Pettibone v. Griswold, 4 Conn. 158, 162 (1822). We have most recently reaffirmed the notice-giving function of our mortgage recordation law in Dart & Bogue Co. v. Slosberg, supra, 578-79.

Finally, this court has adjudicated the effect to be given to a properly executed mortgage, duly tendered for recordation, that is imperfectly recorded due to no fault of the mortgagee. We have held that the imperfect recordation of a valid mortgage gives constructive notice to third persons, despite a clerk’s mistake in its actual recordation, at least if the mistake is so obvious as to have put a third party claimant “upon inquiry” to ascertain what the mortgage contains. Lewis v. Hinman, 56 Conn. 55, 67-68, 13 A. 143 (1887); see also Butchers’ Ice & Supply Co. v. Bascom, 109 Conn. 433, 440, 146 A. 843 (1929).

There is a principled distinction between a mortgage deed that is imperfectly executed and one that is imperfectly recorded. The former is a nullity and is, therefore, incapable of giving constructive notice; the latter affords constructive notice to subsequent third party creditors to the extent that the mortgage, as recorded, contains sufficient information to put a title searcher on inquiry. From the point of view of the third party who relies on that which the recorded conveyance purports to encumber, it is immaterial whether an imperfect recordation is attributable to the inadvertence of the recording clerk or to the inadvertence of the mortgagee. We have, in effect, so held in Connecticut National Bank v. Esposito, 210 Conn. 221, 230-31, 554 A.2d 735 (1989), in which the issue was whether a recorded mortgage deed gave constructive notice to third party creditors, even though the mortgagee in recording its deed had inadvertently omitted documentation containing important information about the amount of the mortgage obligation. We concluded that the recordation was effective because an express reference to the omitted documentation in the recorded mortgage deed would have enabled a title searcher to make the requisite inquiry to discover the terms of the mortgage. Id., 230. Applying these principles to the circumstances of this case, we are persuaded that the mortgagee’s inadvertent mistake in recordation gave constructive notice to the lien creditor because the properly executed rider was sufficient to put a title searcher on inquiry about the status of the mortgage.

The distinction we have drawn between the defective execution and the defective recordation of a mortgage deed finds support in the law elsewhere. “Many errors in recording . . . are so neutralized by other matters which do appear in the record, that no searcher after the title possibly could be misled. Obviously, such shortcomings should not affect the validity of the record as notification. Among them are ... an error or omission cured by the appearance of the information at some other point in the record.” 2 M. Merrill, Notice (1952) § 1067, pp. 693-94; 1 L. Jones, A Treatise on the Law of Mortgages of Real Property (8th Ed. 1928) § 634, pp. 899-900; see, e.g., Watson Construction Co. v. Amfac Mortgage Corporation, 124 Ariz. 570, 575-76, 606 P.2d 421 (1979); Huston v. Seeley, 27 Iowa 183, 191 (1869); Sinclair v. Slawson, 44 Mich. 123, 126-29, 6 N.W. 207 (1880); Beardsley v. Day, 52 Minn. 451, 452-53, 55 N.W. 46 (1893); Smith v. Ayden Lumber Co., 144 N.C. 47, 48-49, 56 S.E. 555 (1907); Wilkins v. Reed, 156 Tenn. 321, 324, 300 S.W. 588 (1927). In the cases in which the defective recordation of a valid deed was held not to give constructive notice, in contradistinction to the circumstances here, there appears to have been nothing on the face of the recorded deed to put a title searcher on inquiry about the error or omission. See, e.g., Shepherd v. Burkhalter, 13 Ga. 443, 448 (1853); Todd v. Union Dime Savings Institution of New York, 118 N.Y. 337, 23 N.E. 299 (1890); Sawyer v. Adams, 8 Vt. 172, 175 (1836); Pringle v. Dunn, 37 Wis. 449, 460-65 (1875).

The judgment is affirmed.

In this opinion the other justices concurred.

       The lien creditor earlier had tried to appeal to the Appellate Court from the trial court’s decision on the motions for summary judgment. The Appellate Court dismissed that appeal, on March 6, 1991, for lack of a final judgment.

       “[General Statutes] Sec. 47-5. conveyances to be in writing and ACKNOWLEDGED. CONVEYANCES PURSUANT TO POWER OF ATTORNEY, (a) All conveyances of land shall be: (1) In writing; (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand or with his mark with his name annexed to it or by his attorney authorized for that purpose by a power executed, acknowledged and witnessed in the manner provided for conveyances or, if the grantor is a corporation or partnership, subscribed by a duly authorized person; (3) acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed; and (4) attested to by two witnesses with their own hands.”

       This case is governed by the recording statute, General Statutes § 47-10, rather than by one of the recently enacted “validating acts.” The fact that the legislature has periodically enacted legislation to validate defective instruments of conveyance, in the absence of pending litigation, does not predetermine the priority issues presented by this case. The mortgagee has never asserted any claim under any of the recently enacted validating acts; Spec. Acts January Sess. 1991, No. 91-1, §§ 3, 9 and 10; Spec. Acts 1989, No. 89-6, §§ 3, 9 and 10. We are unpersuaded by the lien creditor’s contention that the legislature’s enactment of these and earlier validating acts informs the priorities of the parties under § 47-10.

       With regard to chattel security, the legislature has expressly provided that a secured party has effectively perfected an otherwise valid security interest against third parties once the secured party has taken all the steps for perfection that are required by article 9 of the Uniform Commercial Code. See General Statutes § 42a-9-303 (1) and Uniform Commercial Code comment 1 to that section. Under that section, any ministerial mistake in the filing of a security interest would not defeat the priority of the secured creditor. Third parties can require their debtors to comply with a statutory right of inquiry provided by General Statutes § 42a-9-208.


author: Per Curiam. Berdon, J.,

text:
    State of Connecticut v. Richard Weber
    (A.C. 9640)
    Peters, C. J., Shea, Callahan, Glass, Covello, Borden and Berdon, Js.
    Decision released February 4, 1992

      Thomas Ullman, for the defendant (petitioner).

      Steven M. Sellers, assistant state’s attorney for the state.
   Per Curiam.

The defendant has petitioned for certification for review by this court of the dismissal of his appeal by the Appellate Court for failure to file his brief within the time limited by the rules of practice as extended by the Appellate Court. Only one member of this court deems the single issue raised by the petitioner, whether the dismissal was appropriate, sufficiently meritorious to warrant such review. Accordingly, because General Statutes § 51-197Í requires the vote of two justices of this court for certification, we have today ordered that certification be denied. State v. Weber, 221 Conn. 909, 600 A.2d 1363 (1992).

The dissenting opinion does not rely on any of the criteria suggested by Practice Book § 4127 as grounds meriting the grant of certification. It relies on two bases for maintaining that certification is appropriate: (1) defense counsel’s claim that his obligations to other clients assigned to him as a public defender made it impossible to comply with the time constraints of the rules of practice for filing a brief, even as extended by the Appellate Court from February 19, 1991, when it was due, until September 5,1991, when the appeal was dismissed; and (2) the well established constitutional right of the defendant to a disposition of his appeal on the merits.

Whether there was any reasonable excuse for defense counsel’s delay of more than seven months beyond the forty-five days prescribed by Practice Book § 2007 for filing an appellant’s brief is not an issue that this court is as competent to consider as the Appellate Court, which had granted his three motions extending the time to June 3, 1991, and had also refrained from actually dismissing the appeal until September 5, 1991. An assertion that counsel has been so overburdened by his other assignments that he could not reasonably be expected to file a brief within the time allowed is a familiar basis for seeking an extension of time. Such a claim can hardly be deemed as a matter of law to constitute the “extraordinary cause” required by Practice Book § 4040 (c) (2) for an extension of time. The Appellate Court was not bound to accept defense counsel’s assertion at face value simply because, in responding to the petition, the state, which has frequently sought extensions on similar grounds, agreed that he was overburdened. If agreement between the state and defense counsel that such delay was justified were held to mandate an extension of time, the Appellate Court would have little control over its docket. Since dismissal is a sanction authorized by Practice Book § 4055 for failure to file a brief within the time allowed, there appears to be little basis for reviewing this exercise of discretion by the Appellate Court regulating the progress of appeals in that court.

We agree with the dissenting opinion that the dismissal of the appeal that has resulted from defense counsel’s failure to file his brief within the time allowed cannot be permitted to deprive the defendant of his constitutional right to appellate review of his conviction on the merits. The dismissal does terminate the present appeal, but it does not bar the defendant from proceeding with a habeas corpus petition seeking the opportunity to file a new appeal. As the basis for such a petition under the circumstances of this case would ordinarily be the ineffective assistance of counsel, his present counsel would not be likely to represent the defendant in a new appeal. Whether or not there is justification for present counsel’s inordinate delay in filing a brief, his services in this appeal may well have been ineffective and the defendant may have been deprived of his constitutional rights.

It is unclear whether an additional proceeding in habeas corpus is a more efficient method of vindicating the defendant’s right to an appeal than ordering reinstatement of his present appeal after a further proceeding in this court. Nevertheless, it is essential that the authority of the Appellate Court to impose sanctions for egregious violations of the rules of practice not be undermined for considerations of judicial efficiency in a single case. That goal for the judicial system as a whole cannot be achieved unless all members of the bar come to realize that sanctions will be imposed for serious violations of the rules of practice, which are designed to ensure that appeals are disposed of without inordinate delay.

Berdon, J.,

dissenting. I would grant the defendant’s petition for certification raising the sole question of whether the Appellate Court abused its discretion by not vacating its order to dismiss the defendant’s appeal. Because I believe that the Appellate Court abused its discretion under the facts of this case, upon the granting of certification, I would summarily vacate the dismissal, and direct that the defendant file his brief in the Appellate Court within ten days. The state also urges that justice requires that we grant the petition for certification and summarily vacate the order of dismissal.

The relevant facts are as follows. The defendant, Richard Weber, was convicted of assault in the second degree on May 30, 1990, and on August 20, 1990, he was sentenced to a term of five years imprisonment. The trial court, Hadden, J., appointed the trial counsel, an assistant public defender, to prosecute the defendant’s appeal.

The trial transcript was not completed until January 8,1991. On February 11,1991, the Appellate Court granted the defendant’s first motion for an extension of time to file his brief on March 15, 1991; and, pursuant to a further request, the court granted an extension of time to April 15, 1991. On May 2, 1991, the Appellate Court granted a third motion for an extension of time with the following proviso: “This appeal will be dismissed unless the defendant-appellant’s brief is filed by June 3, 1991.” Each request for an extension of time was predicated on defense counsel’s representations that, as an assistant public defender, he was engaged in heavy appellate and trial caseloads that prevented him from reviewing the 950 pages of transcripts and preparing the appellate brief for the defendant. The Appellate Court was furnished the names of the cases assigned to counsel and the trial judge involved in those other matters.

On May 30, 1991, before the expiration of the last extension of time, defense counsel filed a motion to “rescind or amend the order of final extension,” seeking a further extension of thirty days. In the brief supporting the motion, he again detailed his onerous criminal assignments and added the following information regarding a case for which he was presently trial counsel: “On May 20, 1990, jury selection [began] in State v. Terrence Gomez . . . before Judge William Hadden. Mr. Gomez is accused of felony murder, kidnapping, first degree, and conspiracy to commit kidnapping, first degree. Nine jurors have been selected as of the writing of this motion and Judge Hadden has informed prospective jurors that the case is likely to conclude sometime during the week of July 8th.” When each motion for an extension of time was filed, the state either urged the Appellate Court to grant the defendant’s motion or did not oppose it.

On June 26, 1991, the Appellate Court denied the defendant’s motion to rescind the court’s order and, on September 5, 1991, dismissed the defendant’s appeal. Thereafter, the defendant filed with this court a motion for review and a petition for certification, both of which were denied. On October 15,1991, counsel for the defendant filed his brief in the Appellate Court together with a motion for permission to file a late brief. The brief and motion were returned to him by the clerk of the court with the notation that the defendant’s case had been dismissed, and thus, nothing was pending. On October 16, 1991, the defendant filed a motion to rescind the court’s dismissal order and to reopen the case, which stated the following: “The appellant’s brief has been completed, and is being delivered to the clerk of the Appellate Court contemporaneously with this motion.” The state filed a response, again urging the Appellate Court to grant the defendant’s motion and to allow the late filing of the briefs. The Appellate Court’s denial of the motion on November 20, 1991, is the subject matter of this petition for certification.

Although the Appellate Court must be able to control its own docket, its discretion in doing so is not unbridled. In exercising our supervisory powers over the Appellate Court; Practice Book § 4127 (3); we are duty bound to determine whether the Appellate Court abused its discretion. I conclude that, in this instance, it did.

Fundamental fairness requires that when a person’s liberty is at stake, the ultimate sanction of dismissal of that person’s appeal for a violation of a court rule, even if the conduct of the criminal defendant is implicated, should be a last resort. We just recently emphasized that the severity of the preclusion sanction for the failure to comply with the rules of the court must be balanced with the defendant’s right to present a defense. State v. Genotti, 220 Conn. 796, 810-11, 601 A.2d 1013 (1992). When, however, the criminal defendant is not personally responsible for the violation of a rule, it is crystal clear that appellate courts must refrain from dismissing the appeal and should consider alternate sanctions against the attorney to control its docket. See Taylor v. Illinois, 484 U.S. 400, 431-32, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988) (Brennan, J., dissenting).

In this case, even if it was appropriate to apply a balancing test to determine whether a sanction should be imposed on the defendant; see Taylor v. Illinois, supra; a factor of particular importance would be that the assistant public defender’s failure to abide by the rules was not “willful and motivated by a desire to obtain a tactical advantage.” Id., 415. It is quite obvious that the reason for the delay in filing the defendant’s brief in this case was the already heavy burden placed upon our overworked public defenders. The state recognized this in its reply to the petition for certification when it wrote: “The State of Connecticut does not, and has not, opposed the limited relief requested by the petitioner because the interests of justice dictate otherwise. There are, of course, instances when the conduct of the defendant, or his counsel, disentitled him to appellate redress. Further, the integrity [of] the appellate process itself may warrant the kind of action taken by the Appellate Court. In the state’s view, however, this is not a case warranting such action. Had there been an indication in the record that . . . [defense counsel] had been dilatory in the prosecution of this appeal, or that the defendant had, through his own conduct, disentitled himself to an appellate forum, the state would have advocated dismissal of the appeal and opposed its reinstatement. But the record does not indicate this. Rather, it indicates an overworked public defender doing his best to protect his client’s appellate rights without sacrificing his [other] clients’ rights to a fair trial and effective assistance of counsel at their criminal trials. The delay in this appeal, then, appears to be due to counsel’s mammoth caseload and not from his lack of regard for his responsibility to the Appellate Court.”

The court’s dismissal also deprived the defendant of his constitutional rights. “Although there is no constitutional right of appeal [under the federal constitution] . . . the right to appeal, once granted, invokes so significant a protection of liberty that it must be made available to all persons convicted of crimes.” (Citation omitted.) Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084 (1984). We also pointed out in Gaines that “ ‘[i]n the exercise of such a right, invidious discriminations, such as between rich and poor, implicate constitutional guarantees of due process and equal protection of the laws.” Id., 515-16, citing Douglas v. California, 372 U.S. 353, 355, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). In this case, the avenues to the appellate process have not been “kept free of unreasoned distinctions”; Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966); when the state appoints an overburdened assistant public defender to prosecute an indigent defendant’s appeal, and the end result is that his appeal is dismissed on the basis of counsel’s inability to submit his brief within the time parameters set by the court because of other professional obligations. In this case, the avenues to appellate review have been barricaded. Surely this does not fulfill the indigent defendant’s constitutional right to be represented by counsel or his right to effective assistance of appellate counsel.

Finally, I cannot agree with the majority’s response that the defendant’s rights can be vindicated by proceedings in habeas corpus. It "may be an efficient method in the eyes of the majority, but efficiency is not the touchstone for liberty. Habeas corpus proceedings simply take time. This time weighs heavily on a person accused of a crime—whether or not he or she is incarcerated pending disposition of the case or out on bond—the continued psychological pressure of the criminal accusation hangs over the head of the accused. Also, the majority fails to appreciate that noncompliance with the rules was not the result of the doings of private counsel, but rather the overburdened public defender assigned by the state. And, in case we need a reminder, the appointment of counsel is not a matter of judicial grace, it is constitutionally mandated. I am unable to understand what the majority means by “extraordinary cause,” but I do understand what justice means. Accordingly, I dissent.

       Practice Book § 4127 provides: “Certification by the supreme court on petition by a party or request by the appellate panel is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered:
      “(1) Where the appellate court has decided a question of substance not theretofore determined by the supreme court or has decided it in a way probably not in accord with applicable decisions of the supreme court.
      “(2) Where the decision under review is in conflict with other decisions of the appellate court.
      “(3) Where the appellate court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by any other court, as to call for an exercise of the supreme court’s supervision.
      “(4) Where a question of great public importance is involved.
      “(5) With respect only to appeals from the appellate court, where the judges of the appellate panel are divided in their decision or, though concurring in the result, are unable to agree upon a common ground of decision.”

       The defendant’s brief contained the following representations: “Counsel is an Assistant Public Defender in the New Haven Judicial District and is carrying an active trial caseload of major felony cases including six homicide cases. As of April 30, 1991, counsel carried an active pending felony caseload of thirty-three files awaiting jury trial. An additional six files are on counsel’s caseload at varying stages of the criminal process.
      “Counsel has argued three cases before the Appellate Court over the last five weeks. They include: State v. Cayouette, A.C. 9101 on April 24, 1991; State v. Arline, A.C. 8463 on April 30, 1991; State v. Ortiz, A.C. 8932, on May 28, 1991.
      “Additionally, counsel had three separate probable cause hearings scheduled over the last six weeks on newly assigned murder cases. These include: State v. Ham, CR6-338144 nolled on May 9, 1991 after considerable preparation; State v. Abdul Muhammad, CR6-339276, no probable cause found after hearing with substituted information charging manslaughter first degree filed thereafter on May 23, 1991; State v. Scott Lewis, CR6-340523, state elected not to proceed with probable cause hearing and filed substitute manslaughter charges in a double homicide case on May 30, 1991. Finally, counsel had an initial commitment proceeding at the Psychiatric Security Review Board concerning a recently acquitted client by reason of insanity on May 23, 1991.”

       “In the absence of any evidence that a defendant played any part in an attorney’s willful [rule] violation, directly sanctioning the attorney is not only fairer but more effective in deterring violations (Emphasis in original.) Taylor v. Illinois, 484 U.S. 400, 433, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988) (Brennan, J., dissenting).

       To require the defendant to go the route of habeas corpus also puts an additional burden on the judicial system, the public defenders and state’s attorneys. Surely, we could do without this additional litigation.


author: Glass, J.

text:
    State of Connecticut v. LeVern Grant
    (14204)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued November 7, 1991
    decision released February 4, 1992

      Timothy Patrick Brady, with whom were Steven D. Brown and, on the brief, Gregory T. D’Auria, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom were James G. Clark, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Glass, J.

After a jury trial, the defendant, LeVern Grant, was convicted of murder in violation of General Statutes § 53a-54a. The trial court sentenced the defendant to a term of fifty years imprisonment. From this judgment of conviction the defendant appeals, claiming that the trial court improperly: (1) admitted as substantive evidence, at both the probable cause hearing and the trial, tape-recorded statements that two witnesses made to the police; (2) made a finding of probable cause when the probable cause hearing was fatally flawed by the admission of the tape-recorded statements as substantive evidence; (3) instructed the jury that it could draw an adverse inference from the defendant’s failure to produce certain witnesses; and (4) failed to reinstruct the jury, pursuant to the defendant’s request, that certain testimony could be used solely for impeachment purposes. We affirm the judgment of conviction.

On September 28,1989, at approximately 10:15 p.m., Paul Albright was fatally wounded by a gunshot on or near the premises located at 83 Hallock Street in New Haven. Subsequent investigation of the shooting led the New Haven police to Kevin Billie and Rodney Rice. Billie and Rice gave statements to the police on October 1, 1989, and October 3, 1989, respectively. The statements, which were tape-recorded and transcribed, implicated the defendant in the Albright shooting. Relying on the statements of Billie and Rice and other information developed in the course of their investigation, the police arrested the defendant on October 21,1989, and charged him with the murder of Albright.

A probable cause hearing was conducted on December 7,1989, at which both Billie and Rice testified. Billie and Rice admitted having given statements to the police and acknowledged that the recordings accurately-reflected their statements. Nonetheless, both men testified that their earlier statements implicating the defendant in the Albright shooting were false. The state then sought to introduce the tape recordings of the statements as substantive evidence under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The defendant objected, relying on State v. Green, 16 Conn. App. 390, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988), to argue that a witness’ prior inconsistent statement is inadmissible as substantive evidence unless it is based on personal knowledge of the criminal conduct with which the defendant is charged. The trial court determined that there was “substantial reliability” for the statements and admitted the tape recordings as substantive evidence. Relying on the statements of Billie and Rice and other evidence adduced at the hearing, the court concluded that there was probable cause to hold the defendant for trial for the Albright murder.

The defendant’s trial commenced on October 9,1990. When Rice was called to testify, the state sought to introduce the typewritten transcript of his statement as a past recollection recorded. The court admitted the transcript on this basis over the defendant’s objection. Thereafter, Rice again denied the truthfulness of his prior statement and the state successfully sought to have the tape-recorded statement admitted as substantive evidence under State v. Whelan, supra. As he had done at the probable cause hearing, the defendant objected to the admission of Rice’s tape-recorded statement on the basis of State v. Green, supra.

I

The defendant first claims that the trial court improperly admitted the out-of-court tape-recorded statements of Billie and Rice as substantive evidence at both the probable cause hearing and the trial. The defendant contends that because neither Billie nor Rice had personal knowledge of the criminal conduct with which the defendant was charged, the admission of their statements as substantive evidence was improper. The state argues that this court’s decision in State v. Whelan, supra, does not require that a witness have direct personal knowledge of the crime. We agree with the state’s reading of Whelan, and, accordingly, conclude that the trial court properly admitted as substantive evidence the prior inconsistent statements of Billie and Rice.

The substance of the statements was as follows. Billie told the police that the defendant told him the day before the shooting that he planned to shoot rival drug dealers who worked for “green-eyed Dave,” and that he intended to “take [them] out” from the backyard across the street. Billie stated that he knew that Albright worked for “green-eyed Dave.” Rice told the police that he was at the defendant’s girlfriend’s house near the scene of the crime shortly after the shooting. He observed the defendant in possession of an empty .38 automatic handgun. Rice stated that the defendant told him that he had shot Albright from across the street and then “jumped over fences and stuff” and ran to his girlfriend’s house.

The defendant relies on State v. Green, supra, 397-98, in which the Appellate Court construed this court’s holding in State v. Whelan, supra, 753. In Green, the Appellate Court concluded that, because “[the witness] was not at the scene of the crime and did not personally know whether the defendant participated in the [crime]”; id.; the trial court had improperly admitted as substantive evidence certain portions of a written, signed and sworn statement given to the police by a witness who had repudiated the truth of the statement at trial. The Appellate Court found the error harmless, however, and affirmed the defendant’s conviction of robbery in the first degree and assault in the first degree.

In State v. Whelan, supra, we reviewed our continued adherence to the traditional rule prohibiting the use as substantive evidence of a prior inconsistent out-of-court statement of a nonparty witness. We rejected the traditional view and joined the growing number of jurisdictions that allow prior inconsistent statements as substantive evidence when the declarant takes the stand and is available for cross-examination. Id., 751-52. In deciding to abandon the common law rule, we relied on the assessment of various legal scholars and commentators that the reasons behind the rule do not apply when the witness testifies and is available for cross-examination: “[W]hen the declarant is available for cross-examination the jury has the opportunity to observe him as he repudiates or varies his former statement. The cross-examination to which a recanting witness wall be subjected is likely to be meaningful because the witness will be forced either to explain the discrepancies between the earlier statements and his present testimony, or to deny that the earlier statement was made at all. ‘If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and. in court.’ . . . The jury can, therefore, determine whether to believe the present testimony, the prior statement, or neither. . . . Quite simply, when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning both his out-of-court and in-court statements, ‘the usual dangers of hearsay are largely nonexistent. . . .’ ” Id., 750-51. These considerations convinced us that “the prevailing reasons for refusing to allow any prior inconsistent statement to be used as substantive evidence are no longer valid.” Id., 752. We concluded that “an exception to the hearsay rule is necessary to allow the trial court to admit for substantive purposes prior inconsistent statements given under prescribed circumstances reasonably assuring reliability.” (Emphasis added.) Id. We therefore adopted a rule allowing the substantive use of prior written inconsistent statements where the declarant: (1) has signed the statement; (2) has personal knowledge of the facts stated; and (3) testifies at trial and is subject to cross-examination. Id., 753. This court has interpreted that rule to apply to prior tape-recorded statements. Id., 754 n.9; see State v. Alvarez, 216 Conn. 301, 313, 579 A.2d 515 (1990).

The defendant, relying on State v. Green, supra, asserts that the statements of Billie and Rice do not satisfy the requirement set forth in Whelan that the declarant have “personal knowledge of the facts stated.” We disagree. We conclude that the “personal knowledge” prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement.

In State v. Whelan, supra, 752, we emphasized that a prior inconsistent statement had to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible. We therefore declined to allow prior oral statements of a witness to be used as substantive evidence, “limit[ing] substantive admissibility of prior inconsistent statements to situations where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced.” Id., 753. While we noted that the requirement that prior statements be written and signed “is not an absolute guaranty of reliability, it does provide significant assurance of an accurate rendition of the statement and that the declarant realized it would be relied upon.”* ***** Id., 754. Consistent with this focus on reliability, the trial court articulated its specific reasons for overruling the defendant’s objections to the admission of the out-of-court statements of Billie and Rice at the probable cause hearing. Considering the conditions under which the statements were made and the fact that both men, although absent when the Albright shooting occurred, had demonstrated personal knowledge of certain facts and circumstances surrounding the incident, the court found that the statements were reliable in accordance with Whelan.

The following conditions under which the statements were given support the trial court’s finding of reliability. First, the statements were contemporaneous tape recordings of the entire interview with each witness. The interviews were conducted only a few days after the shooting. The testimony of the police officers to whom the statements were given indicated that they did not initiate either inquiry regarding the Albright shooting. Moreover, making false statements to the police could have subjected Billie and Rice to criminal prosecution. General Statutes §§ 53a-157 and 53a-180; State v. Whelan, supra, 754-55. Finally, both witnesses were subject to cross-examination at the probable cause hearing.

As to Billie’s personal knowledge of the circumstances surrounding the shooting, the trial court, at the probable cause hearing, found the following facts. Billie knew that “green-eyed Dave” was a drug dealer and that Albright, Gregory Grant and Grant’s cousin worked for “green-eyed Dave.” Billie also knew that Albright, Gregory Grant and his cousin sold drugs from the premises at 83 Hallock Street, the scene of the shooting. Billie had known the defendant for around two years and knew that for approximately two months before the shooting the defendant had sold drugs in front of a restaurant across from 83 Hallock Street. Billie was aware of the feud among drug dealers in the area around 83 Hallock Street. Billie spoke with the defendant the day before the shooting. The defendant indicated that he was unhappy about “green-eyed Dave’s boys” selling drugs in the Hallock Street area and that “he was gonna take somebody out.” Billie observed the defendant carrying a loaded gun the day before the shooting. Billie arrived at the scene shortly after the shooting and observed the defendant on the corner smiling.

The trial court, at the probable cause hearing, found that Rice’s statement was also based on personal knowledge of certain facts relevant to the shooting. Rice was not present when the shooting occurred but arrived at the scene shortly thereafter, noticed police cars in the area and discovered that Albright had been shot. Rice saw the defendant, who was Rice’s cousin, a short time after the shooting at the apartment of the defendant’s girlfriend, which was near the crime scene. Rice knew that prior to the shooting the victim had had some problems with other people and had pulled a gun on someone. Rice observed the defendant at his girlfriend’s apartment holding a silver and black .38 automatic handgun with an empty clip. The defendant told Rice that he had shot and killed Albright. Rice was convinced, on the basis of his knowledge of the surrounding circumstances, that the defendant was telling the truth.

Relying on the foregoing, the trial court, at the probable cause hearing, concluded that Billie and Rice had personal knowledge of certain facts pertaining to the shooting and that their statements were reliable. The court therefore overruled the defendant’s objections and admitted the tape-recorded statements as substantive evidence. We are persuaded that the conclusions of the trial court are amply supported by the evidence and that the court properly admitted the statements of Billie and Rice for substantive evidentiary purposes pursuant to State v. Whelan, supra.

II

The defendant next claims that the probable cause hearing was fatally flawed by the admission of the tape-recorded statements of Billie and Rice as substantive evidence and, therefore, that the trial court improperly made a finding of probable cause. This court is empowered to review the adequacy of the trial court’s determination of probable cause. State v. Mitchell, 200 Conn. 323, 331, 512 A.2d 140 (1986). The sole basis for the defendant’s challenge to the finding of probable cause is the trial court’s admission as substantive evidence of the tape-recorded statements of Billie and Rice. Since we have determined that the trial court properly admitted these statements, this second claim of the defendant must fail.

Ill

The defendant also claims that the trial court improperly instructed the jury that it could draw an adverse inference from the defendant’s failure to produce certain witnesses. At trial, the defendant’s girlfriend, Rozelle Brown, testified as follows in support of the defendant’s alibi defense. On the day of the shooting the defendant arrived at Brown’s apartment at 2:30 p.m. and remained there until 1 a.m. They ate dinner at about 5 p.m. Brown heard gunshots at around 10:30 p.m. The defendant was sitting on the couch when the gunshots were fired. Brown heard sirens and saw emergency personnel in the street. The defendant yelled from the window and asked what had happened.

On cross-examination, Brown testified that her mother, Christine Bordeaux, her mother’s boyfriend, Willie Tompkins, and her sister, Cassandra Bordeaux, had also been in her apartment on the night of the shooting. She testified that her mother and Tompkins had been asleep at the time of the shooting and her sister had just gone to bed. Brown’s mother was in the courtroom during Brown’s testimony, her sister was at home, and Tompkins was reachable by phone, according to Brown.

The defendant did not call Brown’s mother, sister or Tompkins to the stand. The state requested that the trial court give the jury an adverse inference instruction pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), because the defendant had failed to produce these witnesses in support of his alibi. The defendant made a timely objection to the state’s request, arguing that he would not naturally produce any of these witnesses because they were not in the room with him at the time of the shooting. The court overruled the defendant’s objection and allowed the state to argue to the jury that the defendant’s failure to produce the three witnesses permitted the inference that had these witnesses been produced, their testimony would have been harmful to the defendant. The court also gave an adverse inference instruction, as requested by the state, in its charge to the jury. We conclude that the trial court properly gave the requested charge.

In Secondino v. New Haven Gas Co., supra, 675, this court stated: “ 'The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” The Secondino rule applies to criminal prosecutions. State v. Watley, 195 Conn. 485, 488, 488 A.2d 1245 (1985). Seconding) v. New Haven Gas Co., supra, sets forth a two-pronged test to determine whether an adverse inference can be drawn from the failure of a party to produce a witness: “The witness must be available, and he must be a witness whom the party would naturally produce.” In Secondino, this court defined a witness who would naturally be produced by a party as a person who “by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Id., 675. The defendant argues that “[a]ny possible testimony by Christine Bordeaux, Cassandra Bordeaux, or Willie Tompkins is testimony that would be comparatively unimportant, cumulative or inferior to the testimony of Rozelle Brown.” We disagree with the defendant’s characterization of the possible testimony of these witnesses.

Brown testified that the defendant was sitting on the couch in her apartment at the time of the Albright shooting. Although Brown testified that her mother, sister and Tompkins were not in the room with her and the defendant, she claimed that they were in her apartment at that time. The testimony of several witnesses in support of an alibi defense can hardly be characterized as unimportant or cumulative. State v. Ruiz, 202 Conn. 316, 324-25, 521 A.2d 1025 (1987). Brown’s testimony placed the defendant at her home at the time of the shooting. Brown’s credibility, however, was cast into doubt by her relationship with the defendant, her testimony that she loved him and her admission that she had transcribed and mailed a letter from the defendant to Rice directing him to recant his earlier statement to the police. The defendant’s failure to call Brown’s mother, sister or Tompkins to corroborate, at least in part, Brown’s testimony, especially in light of Brown’s potential bias and the contradictory testimony of several state’s witnesses, was a significant circumstance to call to the attention of the jury. The trial court, therefore, did not abuse its discretion in giving the adverse inference instruction.

The defendant also claims that Brown’s mother and sister and Tompkins were equally available to the state. “Although it may be within the power of either party to produce certain evidence, if that evidence ‘was so related to the whole proof in the case that one of the parties and not the other would be expected to produce it, an inference would be justified that the [evidence], if produced, would be unfavorable to that party.’ Turner v. Scanlon, 146 Conn. 149, 161, 148 A.2d 334 (1959).” State v. Reid, 193 Conn. 646, 662-63, 480 A.2d 463 (1984). By virtue of the relationship of the three witnesses to the defendant’s girlfriend, and the fact that they were present in her apartment, as the defendant also claimed to have been, when the Albright shooting occurred, it would have been natural for the defendant, rather than the state, to produce these witnesses in support of his alibi if their testimony would have been favorable. Id., 663; see also State v. Ruiz, supra, 325. We are not bound to review this claim, however, because “the defendant did not advance his argument of equal availability at trial in compliance with our rules.” State v. Reid, supra, 663; see Practice Book § 4185.

IV

Finally, the defendant claims that the trial court improperly refused to reinstruct the jury, in accordance with the defendant’s request, that certain testimony could be used only for impeachment purposes. At trial, Mario Lawrence testified to the following conversation with Rodney Rice on the night of the shooting. According to Lawrence, Rice said that the defendant had told him that he shot Albright. Rice told Lawrence that the defendant had said that he “snuck up” on Albright and emptied his gun. In addition, Lawrence testified that he had heard the defendant, referring to Albright in a conversation with Rice, say: “What the f— am I going to do.” The trial court instructed the jury that Rice’s statements to Lawrence could be used only to impeach Rice and not as evidence of the defendant’s guilt. The court instructed the jury, however, that the statements made by the defendant that Lawrence overheard could be used as evidence of the defendant’s guilt. The defendant raised no objections to the court’s instructions regarding Lawrence’s testimony.

After the jury had retired for deliberations, it requested to rehear certain testimony, including the testimony of Mario Lawrence. The court allowed the jury’s request. Later the jury requested to rehear the testimony of Lawrence a second time. The court also allowed this second request. The defendant, after each request was granted, asked that the court reinstruct the jury that most of Lawrence’s testimony could be used only to impeach the credibility of Rice. The court denied the defendant’s requests. The defendant argues that the trial court abused its discretion in denying his requests to reinstruct the jury regarding the limited use of Lawrence’s testimony. We disagree.

The defendant took no exception to the adequacy of the trial court’s initial instructions to the jury regarding the use of Lawrence’s testimony. Moreover, the jury did not request additional instruction when it asked to rehear Lawrence’s testimony. The trial court complied with the jury’s request, pursuant to Practice Book § 863, by allowing it to rehear the specified testimony. Practice Book § 860 provides that the trial court may, after exceptions to the charge or upon its own motion, give additional instructions, for the following specified reasons: (1) to correct or withdraw an erroneous instruction; (2) to clarify an ambiguous instruction; or (3) to instruct the jury on any matter that should have been covered in the original instructions. The defendant does not invoke any of the foregoing reasons to support his claim that the court’s failure to give “additional instructions” was an abuse of discretion. We conclude, therefore, that this claim is without merit.

The judgment is affirmed.

In this opinion the other justices concurred.

       According to the clerk’s office, the correct spelling of the defendant’s first name is “LeVern,” as opposed to “Láveme,” which appears in the judgment.

       “[General Statutes] Sec. 53a-54a. murder, (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.”

       Billie did not testify at the trial.

       We need not consider separately the admission at the trial of the transcript of Rice’s tape-recorded statement as a past recollection recorded, since we conclude that the tape recordings were properly admitted as substantive evidence, and, thus, any error in the admission of the transcript was harmless.

       Our decision in State v. Almeda, 211 Conn. 441, 560 A.2d 389 (1989), supports the interpretation we adopt today. In State v. Almeda, supra, 451-52, the defendant challenged the admission for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), of a witness’ prior inconsistent statement on the basis that the statement was not sworn. The witness had stated to police that she heard the defendant directly threaten the victim and the defendant then told her that he would kill the victim if the victim touched the defendant’s girlfriend. State v. Almeda, supra, 451. Noting that our holding in Whelan did not require an oath for the admission of prior inconsistent statements for substantive purposes, we concluded that the witness’ statement was admissible under the criteria established in Whelan. State v. Almeda, supra, 452. The fact that the witness was not present at the scene of the crime and did not have personal knowledge that the defendant shot the victim did not defeat the admissibility of the statement under Whelan.

       This reasoning applies to tape-recorded statements as well. State v. Alvarez, 216 Conn. 301, 313, 579 A.2d 515 (1990); State v. Whelan, 200 Conn. 743, 754 n.9, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       As we stated in State v. Whelan, 200 Conn. 743, 750, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986): “[P]rior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy.”

       At the trial, the state introduced into evidence seven spent shell casings that had been ejected from a .38 automatic handgun that the police had found across the street from the scene of the shooting.

       The trial court, Gormley, J., upon admitting the statements as substantive evidence at the probable cause hearing, stated: “[T]he court is not repudiating the decision in the Green case [State v. Green, 16 Conn. App. 390, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988)], I just feel that the circumstances here are different than the circumstances in the Green case. This court is looking at this thing on the overall question as to the reliability of the circumstances surrounding the giving of these two statements, one of which was given the day before the shooting by this defendant, who indicated he was going to do something like what happened and then the day of the shooting and within a reasonably short time, thereafter and in close proximity to where the crime took place and with a loaded gun on his person with an empty clip, he then indicated he had, in fact, done it. I don’t think one can just isolate those two statements. I think one has to look at the totality of the circumstances and one statement gives support for the other. Circumstances here I find are reliable, statements were given to police officers, did not appear from the testimony of the two police officers that either one of them started off to inquire about this particular crime, that these people were in police custody for other purposes and I believe at least Billie, anyway, raised the subject himself that thereafter the statements were taken down in their entirety were later typed, one was signed and signed under oath, in the Billie case and the other one, Mr. Rice, four days later acknowledged the truth of what was contained in that statement. To me it would be ridiculous and a miscarriage to tell the jury that they can use all other portions of the statements of Rice and Billie, even though they may be repudiated on the stand but they cannot make use of what those persons actually heard, to limit them in this case where I think there is substantial reliability for those statements.”

       Our conclusion applies with equal force to the admission of Rice’s prior inconsistent statement for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), at the trial when Rice again denied the truthfulness of his earlier statement. For the reasons stated in footnote 5, supra, we need not address the admission of Rice’s transcribed statement at the trial as a past recollection recorded.

       The defendant also argued at trial that the evidence failed to show that Brown’s sister and Tompkins were available to testify. Since the defendant contends in his brief on appeal that all three witnesses were equally available to both the defense and the prosecution, he has effectively abandoned the claim made at trial.

       Gregory Grant testified that the defendant was on the street between approximately 5 and 6 p.m. on the night of the shooting and that he had threatened Grant and the victim. Sandy Echols, who had gone to school with the defendant, positively identified the defendant as having been on the street in the immediate vicinity of the shooting twenty minutes prior to its occurrence.

       We note, moreover, that the defendant advances this argument in a footnote, a practice we have specifically disapproved of in prior cases. See State v. Ruscoe, 212 Conn. 223, 241 n.9, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

       The jury also requested to rehear the testimony, or portions thereof, of Gregory Grant, police officer Francisco Ortiz, Rodney Rice, Sandy Echols and Rozelle Brown.

       Under Practice Book § 864, when the jury requests additional instructions after retiring for deliberations, the trial court “shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of the original instructions.’ ’ Section 864 makes no provision for such a request made by counsel.

       Practice Book § 863 provides: “If the jury after retiring for deliberations request a review of certain testimony, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the judicial authority, after notice to the prosecuting authority and counsel for the defense, shall have the requested parts of the testimony read to the jury.”