author: Callahan, J.

text:
    State of Connecticut v. William Toby Wright, Sr.
    (11545)
    Peters, C. J., Shea, Dannehy, Santanxello and Callahan, Js.

      Argued November 6, 1985
    decision released January 14, 1986

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Christopher D. Bernard, special assistant state’s attorney, with whom was John A. Connelly, state’s attorney, for the appellee (state).
   Callahan, J.

On April 30, 1981, at about 1 p.m. Andrew Ragland was stabbed to death on Hawkins Street in Waterbury. The defendant, William Toby Wright, Sr., was accused of committing the stabbing and was charged in a two-part indictment with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and with being a persistent dangerous felony offender in violation of General Statutes (Rev. to 1981) § 53a-40 (a). The defendant was found guilty by a jury of manslaughter in the first degree as charged in the first part of the indictment. He was later found to be a persistent dangerous felony offender by another jury. The defendant was sentenced to imprisonment for a term of twenty-five years to life. See General Statutes (Rev. to 1981) § 53a-40 (e). The defendant has appealed claiming that the trial court erred in several respects. We find error in the trial court’s admission of evidence of the defendant’s prior convictions which was offered by the state in order to impeach his credibility at the trial on the first part of the indictment. Since we must reverse and order a new trial, we will consider in this opinion only that error and, briefly, any rulings of the trial court which may arise on a retrial.

A short summary of the evidence adduced at the trial will place the defendant’s claims in context. At the trial on the first part of the indictment, there was testimony elicited that the defendant and the victim had an argument over a drug transaction on April 30,1981, at about 1 p.m. A physical altercation ensued during which the defendant was seen to push the victim against a fence and to produce a knife. According to an eyewitness, the defendant then “went up against” the victim and ran from the scene with a knife in his hand. The victim collapsed on Hawkins Street and died shortly after the incident. An autopsy revealed that he had suffered two stab wounds in the chest area, one of which caused his death.

The defendant testified that it was the victim who produced a knife, which he swung at the defendant, slashing the defendant’s hand. The defendant also testified that he and the victim wrestled on the ground and that the victim may have been stabbed twice in the chest during the struggle. The defendant claimed that he acted in self-defense. There was also evidence that the defendant ran from the scene of the encounter to his mother’s house. There he changed his clothes and went to his sister-in-law’s apartment on Harris Circle in Waterbury. He was apprehended by the Waterbury police in a bedroom at his sister-in-law’s home about 6 a.m. the day following the incident. The defendant testified that he learned on the night of April 30 that Andrew Ragland had died. He 'also testified that he did not seek medical attention for the laceration to his hand although it was quite severe, and that he made no effort to contact the authorities before he was apprehended.

After the jury had found the defendant guilty on the first part of the indictment, the defendant was tried on the second part by another jury, which found him to be a persistent dangerous felony offender. The second part of the indictment was premised on the defendant’s conviction of manslaughter in the first degree on November 18, 1977. The trial court in 1977 imposed a sentence of not less than five nor more than fourteen years. On the same day, the defendant was also sentenced for two counts of assault in the first degree which arose out of the same incident as the manslaughter count. He received concurrent sentences. The defendant commenced service of his sentences and was released on parole in October, 1980.

Prior to his trial on the first part of the indictment, the defendant filed a motion in limine requesting the trial court to prohibit the state from using his prior conviction of manslaughter and his two prior convictions of assault to impeach his credibility. In 1977, as they are now, all three crimes were class B felonies which were punishable by a maximum term of twenty years imprisonment.

The defendant reclaimed his motion in limine at the close of the state’s case and again after the defendant’s direct testimony. He claimed then, as he claims on this appeal, that the prejudicial effect of evidence of his multiple convictions for crimes of violence far outweighed any probative value as to his credibility and should have been excluded. We agree.

“This court has not imposed any restriction upon the nature of the crime which may be used for impeachment, except in terms of its seriousness as measured by the punishment provided by statute . . . .” State v. Nardini, 187 Conn. 513, 524, 447 A.2d 396 (1982). All three of the defendant’s prior convictions were potentially admissible under General Statutes (Rev. to 1981) § 52-145 which we have interpreted to permit the use of a defendant’s prior conviction to impeach credibility where the conviction was for a crime punishable by imprisonment in excess of one year. Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965). But evidence of prior criminal convictions is not per se admissible. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984). We have recognized that the “inherent authority of the trial court to exclude evidence where its prejudicial tendency outweighs its probative value is particularly applicable to prior convictions otherwise qualifying for admission.” State v. Nardini, supra, 521. “We believe that if a defendant testifies and, thereafter, evidence of a prior conviction is offered under circumstances in which its prejudicial effect far outweighs its materiality and relevancy on the issue of credibility in a criminal trial its admissibility should be determined by the exercise of a sound judicial discretion.” State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970).

Despite our usual deference to the trial court’s discretion in this area, we conclude that the trial court unreasonably exercised that discretion in finding that evidence of the three convictions for violent crimes had a probative value, on the issue of the defendant’s credibility, that outweighed the resulting prejudice. “Acts of violence . . . generally have little or no direct bearing on honesty and veracity.” Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967). The defendant’s convictions, although they reflect adversely on his general character, have no special or direct materiality as to his credibility. State v. Geyer, supra, 13. The obvious effect of bringing to the jury’s attention the defendant’s prior multiple convictions for crimes of violence was to establish that the defendant was a violent person. When one of those violent crimes was manslaughter in the first degree, the very crime for which the defendant was on trial, the pressure on the jurors to believe that “ ‘if he did it before he probably did so this time’ ” must have been extreme. State v. Keiser, 196 Conn. 122, 130, 491 A.2d 382 (1985), quoting Gordon v. United States, supra. Under the circumstances, the instructions given by the trial court to the jury to use the convictions only on the issue of credibility could not have eliminated that pressure.

“Where the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility.” State v. Nardini, supra, 522. But crimes of violence do not have “the special probative value on the issue of credibility which a conviction of a crime involving dishonesty would carry.” State v. Carter, 189 Conn. 631, 644, 458 A.2d 379 (1983). Convictions of crimes of violence may indicate only a short fuse or a combative nature which, while not commendable traits, are not particularly probative on the issue of credibility. Gordon v. United States, supra.

When the jury learned that the defendant had previously been convicted of manslaughter in the first degree and of two counts of assault in the first degree, the prejudice created was manifest. When the jury learned, as it did moments later, that the defendant had been released from prison only six months before the victim was stabbed to death, that evidence had to be devastating. We conclude, therefore, that, under the circumstances of this case, the prejudice generated by the admission of evidence of the defendant’s convictions clearly outweighed the significance of those convictions on the issue of his veracity. The trial court abused its discretion in finding to the contrary.

The defendant has raised several other claims which require brief discussion because they may arise in the event of a retrial. The first claim is that the trial court erred when it instructed the jury that it could consider the interest of the defendant in “the decision they were about to render” in weighing his testimony and determining his credibility. The defendant took an exception to the trial court’s charge and also moved for a mistrial claiming that singling out the testimony of the accused from the other witnesses violated his state constitutional right to testify. See Conn. Const., art. I § 8.

This court has rejected the claim that this instruction was inconsistent with the presumption of innocence and denied an accused his right to due process of law. State v. Avcollie, 188 Conn. 626, 636-37, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983). “We have repeatedly considered and rejected this constitutional claim and again find it to be totally without merit.” State v. Frazier, 194 Conn. 233, 239, 478 A.2d 1013 (1984). “The rule is well settled in this state that the court may advise the jury that in weighing the credibility of an accused’s testimony they can consider his interest in the outcome of the trial.” State v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973). In State v. King, 187 Conn. 292, 303-304, 445 A.2d 901 (1982), which was cited by the defendant in his brief, this court mentioned the state constitutional right of the accused to testify. King did not effect any fundamental change in the law and is not a basis for changing this well established rule. The trial court’s instruction did not violate the constitutional right of the accused to testify. State v. Maselli, 182 Conn. 66, 74, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981).

The defendant’s next claim is that the trial court erred by instructing the jury that it could consider his conduct in leaving the scene of the crime and that evidence of flight, if unexplained, tended to prove a consciousness of guilt. The defendant argues that under the circumstances of this case the evidence was equivocal as to the defendant’s reasons for leaving the scene and that the court should not have given an instruction on flight at all. He contends that if an instruction were to be given, it should have been more complete and should have included all the possible innocent explanations for his flight.

“Flight, when unexplained, tends to prove a consciousness of guilt.” State v. Ferrara, 176 Conn. 508, 516, 408 A.2d 265 (1979). “Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration.” State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). “The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” State v. Nemeth, 182 Conn. 403, 408, 438 A.2d 120 (1980).

There was evidence that, immediately after the victim had been stabbed, the defendant ran to his mother’s house, where he was living at the time, changed his clothes and wiped up blood. He then went to his sister-in-law’s apartment, where he was apprehended by the police the next day. He did not seek treatment for a serious wound to his hand and he did not contact the authorities even after he learned that the victim had died. The jury could have found that this conduct constituted evidence of flight which tended to show a consciousness of guilt. The defendant contends that he left the scene out of concern that the incident might cause problems with the victim’s drug suppliers and might be considered a violation of his parole even though he acted in self-defense. The court instructed the jury that it was up to them to determine what weight to accord evidence of flight and what weight it would give to any explanation. The court was not required to enumerate all the possible innocent explanations offered by the defendant. The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous. United States v. Mesa, 660 F.2d 1070, 1078 (5th Cir. 1981).

The defendant’s next claim is that General Statutes § 53a-40 (a) is unconstitutional because it requires only one prior conviction and sentence of imprisonment for the accused to be found a persistent dangerous felony offender so as to expose him to the escalated penalties of General Statutes § 53a-40 (e). The defendant does not claim, as indeed he cannot, that persistent offender statutes are per se unconstitutional. “[T]he constitutionality of persistent offender statutes has long been upheld.” State v. Williams, 173 Conn. 545, 557, 378 A.2d 588 (1977). He contends, rather, that a single prior conviction and term of imprisonment are not enough to label him as a persistent dangerous felony offender. He argues that to be treated as a persistent dangerous felony offender one must be truly a persistent or habitual offender and that by the very definition of “persistent” one prior conviction is insufficient. The defendant cites no authority for his position.

“A party contesting a statute’s constitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt.” State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. , 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985); see Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972). “The classification of crimes is for the legislature.” State v. Dupree, supra, 665; see State v. Rao, 171 Conn. 600, 603, 370 A.2d 1310 (1976). “In examining the rationality of a legislative classification, we are bound to defer to the judgment of the legislature unless the classification is clearly irrational and unreasonable.” State v. Dupree, supra; State v. Simmat, 184 Conn. 222, 224-25, 439 A.2d 915 (1981).

The defendant has failed to sustain his burden of demonstrating beyond a reasonable doubt that the legislature acted irrationally and unreasonably in legislating authority for the courts to punish more severely, as a persistent dangerous felony offender, an accused who has once previously been convicted and imprisoned for specified crimes. Further, this court has “implicitly recognized that a single prior conviction and imprisonment as specified in [General Statutes § 53a-40 (a)] provides a sufficient factual basis for a guilty plea to a charge of being a persistent dangerous felony offender.” State v. Tyson, 195 Conn. 326, 331, 487 A.2d 1091 (1985); see State v. Williams, supra, 554-57. There is no merit to this claim of the defendant.

The defendant’s final claim which we will consider is that his 1977 conviction for manslaughter in the first degree should not have been admitted in evidence on the trial of the second part of the indictment. He contends that his guilty plea to that charge on October 13, 1977, was constitutionally infirm because the record of the plea canvass by the trial court does not reflect a knowing and intelligent plea, particularly because he was not explicitly advised of his right to a jury trial. We disagree.

Collateral attacks on judgments are not favored. Every presumption favors the jurisdiction of the court and the regularity of its processes. Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). We refuse to hold that a predicate conviction upon a guilty plea attacked collaterally years after its entry is invalid solely because the trial court failed to enumerate specifically all the rights to which the defendant was entitled and to elicit from him a list of detailed waivers before accepting the guilty plea. People v. Harris, 61 N.Y.2d 9, 16, 459 N.E.2d 170, 471 N.Y.S.2d 61 (1983).

The defendant was represented at the time of his plea by counsel who, the record reveals, had thoroughly investigated the case, had engaged in lengthy plea negotiations with the state, and had discussed the case with the defendant. See People v. Harris, supra. It is obvious from the record that the defendant was aware of the elements of the crime with which he was charged, his rights and his options. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 160 (1970). The defendant knowingly, intelligently and voluntarily entered his plea on October 13,1977. Therefore, the record of his conviction of manslaughter in the first degree based on that plea was properly admitted on the trial of the second part of the indictment. There was no error in this regard.

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

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) (1) provides in pertinent part: “Sec. 53a-55. MANSLAUGHTER IN THE FIRST DEGREE: CLASS B FELONY, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       General Statutes (Rev. to 1981) § 53a-40 (a) provides in pertinent part: “Sec. 53a-40. . . . PERSISTENT OFFENDERS: DEFINITIONS; DEFENSE; authorized sentences, (a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault, in the first or third degree, sexual assault in the first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1, 1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

       General Statutes (Rev. to 1981) § 53a-40 (e) provides in pertinent part: “Sec. 53a-40. . . . persistent offenders: definitions; defense; authorized sentences. . . . (e) When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by said section for a class A felony.”

       General Statutes (Rev. to 1981) § 52-145 provides: “Sec. 52-145. INTERESTED WITNESS NOT disqualified; credibility. No person shall be disqualified as a witness in any action by reason of his interest in the event of the same as a party or otherwise, or of his disbelief in the existence of a supreme being, or of his conviction of crime; but such interest or conviction may be shown for the purpose of affecting his credit.”

       The defendant also claims that the trial court erred when it denied his motion for acquittal at the close of the state’s case on part B of the indictment. There was evidence presented to the jury which tried that portion of the indictment that the defendant’s present conviction for manslaughter in the first degree occurred on March 30,1982. There was also evidence that the defendant had pleaded guilty to the predicate felony of manslaughter in the first degree on October 13, 1977, had been sentenced for that crime on November 18, 1977, and was imprisoned as a result until October 25,1980. The state, however, neglected to present evidence of the date of the commission of the present offense of manslaughter. The defendant contends, therefore, that there was no evidence that the events which led to his present conviction occurred after he had been previously convicted and imprisoned under a sentence of more than one year for the predicate felony as required by General Statutes (Rev. to 1981) § 53a-40 (a). It is the defendant’s claim, therefore, that there was insufficient evidence for the jury to have found proven beyond a reasonable doubt that he was a persistent dangerous felony offender. We disagree.
      We must construe the evidence in the light most favorable to sustaining the jury’s verdict. State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981). “There is no legal distinction between direct and circumstantial evidence as far as probative force is concerned.” State v. Cari, 163 Conn. 174, 179, 303 A.2d 7 (1972). It is the function of the jury to draw reasonable inferences from the facts proven. State v. Belton, 190 Conn. 496, 504, 461 A.2d 973 (1983). The due process requirement is met where there is a rational relationship between a fact proved and a fact to be inferred. State v. Little, 194 Conn. 665, 676, 485 A.2d 913 (1984).
      From the circumstantial evidence, the jury could have reasonably inferred that the events leading to the defendant’s present conviction of manslaughter occurred after he had been convicted and imprisoned under a sentence of more than one year for the predicate felony.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. Jairo Amarillo
    (11903)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued November 5, 1985
    decision released January 14, 1986

      Stephen F. Donahue, with whom, on the brief, was Elaine M. Skoronski, for the appellant (defendant).

      DavidS. Shepack, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, Judith Rossi, special assistant state’s attorney, and Bruce Hudock and John M. Massameno, assistant state’s attorneys, for the appellee (state).
   Shea, J.

The defendant, Jairo Amarillo, was convicted, after a trial to a jury, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and robbery in the third degree in violation of General Statutes § 53a-136. From this judgment the defendant appeals, asserting numerous claims of error relating to: (1) the sufficiency of the evidence; (2) the victim’s identification of him; (3) the allegedly improper police identification techniques; (4) the trial court’s charge to the jury; (5) the trial court’s denial of his motion to dismiss; and (6) the trial court's refusal to accept the defendant’s plea under the Alford doctrine. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). We find no error.

I

The defendant claims that his motion for judgment of acquittal should have been granted because there was insufficient evidence to prove that he was the perpetrator of the crimes charged. We find no error in the trial court’s denial of this motion.

From the evidence adduced at trial the jury could have reasonably found the following facts: On January 31,1982, the victim stopped for ice cream at a store in Port Chester, New York. As she was sitting in her car eating ice cream, the defendant brandished a knife and forced his way into the car. He pushed the victim over to the passenger seat and locked the car door. Leroy Frost, a patron in the ice cream store, witnessed the entire incident, yet did not attempt to intercede. The defendant then drove to a restaurant in Greenwich, Connecticut, parked behind it and kissed the victim against her will. In fear for her life, the victim asked the defendant if he wanted any money. Still holding the knife, he responded, “Sure, give it to me.” She gave him about three dollars. The defendant then drove to Putnam Green Apartments in Greenwich. In the parking lot, the defendant again threatened the victim with the knife and demanded that she take off her coat and shirt. He then touched her breasts and forced her to perform fellatio on him. After the incident, the defendant drove back to Port Chester and exited the car on a main street near two local taverns, pleading with the victim not to report the incident to the police.

In reviewing a sufficiency of the evidence claim, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)].’ ” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979); see State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984) .

With respect to the sufficiency of the evidence, the defendant argues that the identifications by the victim and by the witness, Frost, were inadequate to counteract his alibi, especially in the absence of corroborative physical evidence. The defendant misperceives our function in reviewing claims questioning the sufficiency of the evidence. This court does not retry the case or evaluate the credibility of the witnesses. The resolution of conflicting testimony is the province of the jury. State v. Martin, 189 Conn. 1, 9, 454 A.2d 256 (1983). The victim testified that she was absolutely certain that the defendant was her assailant. Frost, the eyewitness to the initial abduction, made an in-court identification of the defendant. Any prior misidentifications or conflicting descriptions of the defendant were reasonably resolved by the jury against the defendant. The evidence was sufficient to support the jury’s conclusion that the defendant was the victim’s assailant.

The defendant also argues that the evidence was insufficient to establish that he had engaged in “sexual intercourse” with the victim. Under General Statutes § 53a-65 (2), penetration, however slight, is required to commit sexual intercourse by fellatio. See State v. Kish, 186 Conn. 757, 765, 443 A.2d 1274 (1982). The victim testified at trial that he “forced my mouth onto his penis and had me perform fellatio about three times.” The victim’s mother also testified that shortly after the assault her daughter told her that “he put his penis in [my] mouth.” The evidence, viewed in a light most favorable to sustaining the verdict, could reasonably have allowed the jury to find that penetration had occurred.

II

The defendant also claims that the trial court erred in denying his motion to suppress the victim’s identification of him. He challenges the show-up identification procedures used by the police and claims that the suggestive procedures tainted the in-court identification. We examine this claim in the context of these additional facts: When the victim returned home after the attack, she was crying and told her mother of the incident. Later that night, after her mother had notified the police, the victim returned to Port Chester with a member of the Greenwich police department. The victim initially described her assailant as a light-skinned black man, with a mustache, wearing a hat, a blue jean jacket, a white sweater and blue jeans. Upon her arrival, a sergeant with the Port Chester police department suggested that she accompany him to two local taverns, Romando’s and the Canary Bar, both in close proximity to the location where the assailant had left her car. The victim had told the officer that her assailant was walking toward the taverns when he left her car. The officer entered the Canary Bar and discovered the defendant, who closely matched the description of the assailant. The victim then entered the Canary Bar and identified the defendant, the sole patron in it, as her attacker. The defendant was then arrested. Later, at the Port Chester police station, the victim again identified the defendant as her attacker after viewing him alone in a room with a uniformed police officer. She recognized him immediately and was certain that “he was the same guy ... he was wearing the same clothes—I will never forget his face.” Finally, in court, in addition to testifying as to the two previous identifications, the victim positively identified the defendant as her assailant.

In order to determine whether identification procedures violate the defendant’s due process rights, it must be determined (1) whether the identification procedure was impermissibly and unnecessarily suggestive, and (2) if so, whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances. State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 836 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985); State v. Hamele, 188 Conn. 372, 376, 449 A.2d 1020 (1982); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

The defendant argues that the first identification at the Canary Bar was impermissibly suggestive because he was the only patron in the bar at the time and because the police prompted the victim to enter the bar. He claims that this amounted to a one-on-one “show-up” identification that violated his due process rights. See Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). Although such an identification procedure may be inherently and significantly suggestive because it often conveys the message that the police have reason to believe the suspect guilty; State v. Dupree, 196 Conn. 655, 667, 495 A.2d 691, cert. denied, 474 U.S. , 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985); State v. Guertin, 190 Conn. 440, 456, 461 A.2d 963 (1983); State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976); it was not impermissibly suggestive in this case.

Unlike other cases where an individual already in police custody is clearly presented to the victim as a possible suspect, the defendant in this case was identified in a public place and was not then in police custody. The police officer had found in the bar he entered, in close proximity to where the victim had last seen her assailant, an individual who closely matched the description he had received. Although the police may have suspected that the defendant was the perpetrator, it is doubtful that they could, constitutionally, have detained him in order to prepare a lineup identification for the victim. Therefore, although the victim believed that she was entering the bar to view a possible suspect, she was not presented with the defendant in a manner suggesting that the police believed him to be her assailant. The defendant was viewed having a beer in a public place. The police officer escorted the victim into the bar, but he did not direct any attention to the defendant nor ask the victim any questions concerning the defendant. As the victim must have realized, the only reason she was requested to enter the bar was its proximity to the place where she had left the assailant and her own description of him. Although the defendant was the only patron in the bar, the police had not contrived this circumstance. It was necessary for the police to have a prompt identification made because, without it, they could not have held the suspect. At this stage of the investigation it was vital to eliminate quickly any innocent parties so as to continue the investigation with a minimum of delay. Simmons v. United States, supra; State v. Maturo, 188 Conn. 591, 596, 452 A.2d 642 (1982); State v. Hamele, supra, 377; State v. Middleton, supra; State v. Mallette, 159 Conn. 143, 149, 267 A.2d 438 (1970). Although the identification procedure did involve some elements of suggestiveness, the exigencies of the situation justified the procedure and it was, therefore, not unnecessarily suggestive.

Even were we to assume that the identification procedure was unnecessarily suggestive, the victim’s identification at the Canary Bar was clearly reliable in light of the totality of the circumstances. “[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the [victim] to view the criminal at the time of the crime, the [victim’s] degree of attention, the accuracy of the [victim’s] prior description of the criminal, the level of certainty demonstrated by the [victim] at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, supra, 199-200; see State v. Aversa, 197 Conn. 685, 694, 501 A.2d 370 (1985); State v. Hinton, supra, 293. The victim had her assailant under close observation for over one hour. Although the incident occurred at night, the interior light of her car was on when the assailant initially entered the car and, on later occasions during the abduction, the passenger compartment of the vehicle was illuminated by street lamps and headlights from other automobiles. Her description to the police accurately described her assailant’s physical appearance, his facial features and the clothes he was wearing. The only discrepancy in her description was that the defendant is not a “light-skinned black man” as she had thought. She testified at trial, however, that she merely had assumed from his skin coloration that he was black. Certainly the trial court could have found that this misstatement did not detract substantially from the reliablity of the identification. The victim was not in any way equivocal with respect to her identification of the defendant. Finally, the identification occurred within one hour of the incident and in close proximity to the location where the assailant had left the victim’s car. The victim was “no casual observer, but rather the victim of one of the most personally humiliating of all crimes.” Neil v. Biggers, supra, 200. “ ‘Virtually no other crime offers the opportunity for observation of the perpetrator as the crime of rape.’ ” Grant v. State, 446 S.W.2d 620, 622 (Mo. 1969). Under the totality of the circumstances, the identification was sufficiently reliable to warrant its admission into evidence.

The defendant also claims that the procedure used to obtain the victim’s second identification of him at the police station, where he was alone except for the presence of a uniformed officer, was impermissibly suggestive. Because the defendant was under arrest and in custody, the concern of necessity for an immediate identification was no longer present. There was no justification for a show-up identification at this point because a lineup could easily have been arranged. Nevertheless, because the first identification was constitutionally permissible, the identification at the police station could in no way have prejudiced the defendant by tainting his in-court identification by the victim. State v. Perez, supra. Although the in-court identification of the defendant could withstand a due process reliability analysis, in the absence of a tainted pretrial identification we need not consider whether there was an independent basis for it. Neil v. Biggers, supra; State v. Guertin, supra, 459. There is no error in the trial court’s denial of the defendant’s motion to suppress.

III

The defendant next claims that the trial court erred in denying his motion to dismiss which was based upon the improper practice of the Greenwich police department in neglecting to preserve fully the evidence relating to an identification by a witness. This claim arose out of the identification of the defendant made by Leroy Frost, an eyewitness to the initial abduction of the victim, who was shown a photographic array of eight pictures, including one of the defendant. Frost recognized one or two of the photographs as resembling the man who attacked the victim in front of the ice cream store. A police detective testified that Frost did not specifically identify any photograph, but merely pointed out one or more that were “close” to the description of the attacker. Frost did not identify the photograph of the defendant as “close,” but he did identify the defendant in court. The police detective also testified that, because no positive identification was made by the witness, in accordance with department procedure the array was dismantled and the tentatively identified photographs were put back into police files. No record was made by the police of any of the photographs that Frost had indicated as resembling the man who had abducted the victim. The defendant claims that he was denied due process of law because the photographic array and the particular photographs selected from the array were clearly exculpatory in nature and should have been provided to him pursuant to his general request for exculpatory evidence.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” See State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); State v. Altrui, 188 Conn. 161, 177, 448 A.2d 837 (1982). “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.” Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972).

In United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the court further amplified the materiality component, holding that a prosecutor does not violate a constitutional duty of disclosure “unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” “If the omitted evidence creates a reasonable doubt [of guilt] that did not otherwise exist, constitutional error [is] committed. . . . The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Id., 109-10; see State v. Doolittle, 189 Conn. 183, 197, 455 A.2d 843 (1983).

Our analysis will proceed based on the assumption that the failure of the police to preserve the photographic array and any of the tentatively identified photographs was a “suppression.” Therefore, the defendant must prove, in order to establish a Brady violation, that the suppressed evidence was not only favorable to him but also material to his guilt. Favorable evidence is that “evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt.” Levin v. Katzenbach, 363 F.2d 287, 291 (D.C. Cir. 1966); see State v. Green, 194 Conn. 258, 265, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). Certainly, in light of the questioned identification and alibi defense in this case, the evidence would have been favorable to the defendant, because it does undermine Frost’s testimony as well as suggest the possibility of another suspect in the crime. Our focus, therefore, is on the materiality of the suppression. “Evidence is material if it ‘could . . . in any reasonable likelihood have affected the judgment of the jury.’ Napue v. Illinois, 360 U.S. 264, 271, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).” State v. Green, supra.

Because the defendant did not make a specific pretrial request for the photographs, the appropriate level of materiality that need be proven here to establish a Brady violation is that the omitted evidence creates a “ ‘reasonable doubt [as to guilt] that did not otherwise exist . . . [and] the omission must be evaluated in the context of the entire record.' United States v. Agurs, supra, 112; State v. Packard, 184 Conn. 258, 279, 439 A.2d 983 (1981).” State v. Green, supra.

Clearly, the missing photographic array would have had some materiality to the extent that it might have operated to impeach the credibility of Frost. Where such evidence would have contradicted the testimony of a key state’s witness, or cast such serious doubt upon his credibility as to leave the jury with a reasonable doubt of the defendant’s guilt, its suppression can vitiate a criminal conviction. Levin v. Katzenbach, supra. The vital question, however, is an examination of the overall value of the “suppressed” evidence to the defendant in light of the other evidence admitted against him. United States v. Agurs, supra. We conclude that the photographic array and selected photos were not of such importance as to have been likely to have changed the result of the trial by creating a reasonable doubt as to the defendant’s guilt. This is not to say that the array of photographs should not have been preserved. “Admittedly, it might have been a better procedure if the Police Department had kept a record of all such pictorial arrays.” United States v. Clemons, 445 F.2d 711, 714 (D.C. Cir. 1971). We cannot say, however, in this case that the omitted evidence would have cast any additional doubt on the defendant’s guilt. Whether this rationale is stated in terms of nonmateriality, lack of prejudice, or harmless error is not particularly significant; the result is the same.

The defendant had ample opportunity, in the presence of the jury, to cross-examine Frost regarding the identity of the alleged assailant. In fact, the defendant elicited from Frost all of the circumstances of the unsuccessful identification procedure and also the vitally important fact that Frost did not in the photographic array procedure identify the defendant as the victim’s assailant. Further, the police detective who conducted the array testified to Frost’s inability to recognize the defendant. The jury was also well aware that the array was not preserved. On the basis of this highly effective cross-examination and impeachment testimony, the jury was free to draw inferences unfavorable to the state. Nevertheless, the victim identified the defendant and, as earlier discussed in part II of this opinion, exhibited a high degree of certainty. Frost did not positively identify any of the photographs as depicting the victim’s assailant; he merely picked one or two that resembled the attacker. He did, however, positively identify the defendant in court. Against this evidence, we cannot conclude that the selected photographs and the entire array, if available, would have so further discredited Frost’s testimony and in-court identification as to have induced a reasonable doubt of the defendant’s guilt.

IY

The defendant also claims various errors relating to the trial court’s charge: (A) that the instructions violated the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); (B) that the instructions did not, as he had requested, advise the jury that, if it found that the abduction was incidental to the crime of sexual assault, then it must find him not guilty of kidnapping; see State v. Dubina, 164 Conn. 95, 99-100, 318 A.2d 95 (1972); and (C) that the instructions did not, as he had requested, instruct the jury as to the rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). We find error in none of these claims.

A

The due process clause of the fourteenth amendment to the United States constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). In Sandstrom v. Montana, supra, 517-24, the United States Supreme Court held that a jury instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts” violated the defendant’s due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. See Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).

During its instructions on intent, the trial court once instructed the jury that “every person is presumed to intend the natural consequences of their act.” The state concedes, as it clearly must, that the instruction in question here is similar to that invalidated in Sandstrom. We have, however, recognized that the rule of Sandstrom must not be oversimplified. State v. Mason, 186 Conn. 574, 582-83, 442 A.2d 1335 (1982); State v. Pina, 186 Conn. 261, 263, 440 A.2d 967 (1982). Sandstrom does not invalidate, for example, the use of an “entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.” Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); see State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 1195 (1985); State v. Arroyo, 180 Conn. 171, 175, 429 A.2d 457 (1980). “A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” Francis v. Franklin, supra, 314. The mere use of the word “presume” does not render the instruction invalid. State v. Arroyo, supra. Rather, it is the “lack of qualifying instructions as to the legal effect of the presumption” that makes it possible for a reasonable jury to interpret the instruction in an unconstitutional manner. Sandstrom v. Montana, supra, 517; State v. Mason, supra, 583.

The court’s instructions here describe such a permissive inference in that it allowed, but did not require, the jury to infer the mental element of intent from proof of the defendant’s conduct. The jury was instructed that any inferences that it might draw must be reasonable. The language that it was its “duty” to draw inferences was merely an explanation of the earlier recognition that proof of intent is “necessarily, very largely a matter of inference.” It did not transform a permissive inference into a conclusive one or shift the burden of proof to the defendant. Further, the court, in response to the defendant’s exception to the initial charge, gave an additional instruction that not only emphasized the state’s burden of proof on every element of the crimes, including intent, but also noted the permissive quality of any presumptions.

On many occasions this court has found no error in instructions containing language similiar to that invalidated in Sandstrom because the challenged instructions contained other language not present in the Sandstrom instructions which was sufficiently precise to rectify the improper instruction and to prevent the jury from applying the instructions in an unconstitutitional fashion. State v. Asherman, 193 Conn. 695, 734, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Vitale, 190 Conn. 219, 221 n.1, 460 A.2d 961 (1983); Crawford v. Warden, 189 Conn. 374, 380-82, 456 A.2d 312 (1983); State v. Pina, supra, 264; State v. Johnson, 185 Conn. 163, 174, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Stankowski, 184 Conn. 121, 148-53, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Brokaw, 183 Conn. 29, 34, 438 A.2d 815 (1981); State v. Nemeth, 182 Conn. 403, 411, 438 A.2d 120 (1980); State v. Perez, 181 Conn. 299, 311-16, 435 A.2d 334 (1980); State v. Arroyo, supra, 173-81.

The charge in this case, especially in light of the additional instruction, contained virtually the same permissive inference language we have held to overcome the effect of the earlier reference to a presumption of intent from conduct. See State v. Mason, supra, 584; State v. Maselli, 182 Conn. 66, 77-78, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981). In deciding whether a reasonable jury could have reached an unconstitutional verdict, “we must look at the charge as a whole, and not sever one portion and analyze it in isolation.” State v. Truppi, 182 Conn. 449, 458, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). Because the entire instruction clearly delineated the state’s burden of proof on every element of the crime, including intent, the otherwise improper use of the word “presume” could not have engendered sufficient confusion to vitiate the defendant’s conviction. There was, therefore, no Sandstrom error.

B

The defendant also claims that the trial court erred by not instructing the jury that the crime of kidnapping could have been merely incidental to the crime of sexual assault. See State v. Bell, 188 Conn. 406, 416, 450 A.2d 356 (1982); State v. Briggs, 179 Conn. 328, 339, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, 177 Conn. 335, 343, 417 A.2d 354 (1979). The defendant relies primarily on State v. Dubina, supra, 100, where we held that whether the detention was merely incidental to another crime was a question for the jury. He argues, therefore, that because he did request such a charge, the court’s failure to give it was reversible error. We disagree.

In effect, the defendant urges us to recognize the merger doctrine, that would preclude conviction for a kidnapping which was “merely incidental” to a sexual assault. We have already refused, however, to approve the doctrine. In State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977), we noted that the legislature had not seen fit to merge the offense of kidnapping with other felonies, nor impose any time requirements for restraint, nor distance requirements for asportation, to the crime of kidnapping. “[W]here the elements of two or more distinct offenses are combined in the same act, prosecution for one will not bar prosecution for the other. State v. Dubina, [supra]; State v. Fico, 147 Conn. 426, 430, 162 A.2d 697 [I960].” State v. Chetcuti, supra, 169. Where the intent required to constitute kidnapping in the first degree is present, “the fact that the perpetrator’s underlying motive for the detention is the consummation of [sexual assault] . . . does not preclude a conviction for kidnapping.” State v. Lee, supra, 344.

Essentially, the defendant misconstrues our reference in State v. Dubina that the incidental crime issue is one for the jury. The proper inquiry is not whether the kidnapping was incidental to the sexual assault, but whether the restraint was accomplished with the requisite intent to constitute kidnapping, as well as the state of mind required for sexual assault. Whether the essential elements of kidnapping are proved beyond a reasonable doubt is a question for the jury. State v. Lee, supra, 343. The analysis, therefore, is not simply transactional. A defendant may be convicted of two crimes that derive from the same conduct “as long as the state [is] able to prove, beyond a reasonable doubt, all of the essential elements of each crime.” State v. Briggs, supra.

The state was required to prove the intent to commit both kidnapping and sexual assault. In an appropriate case, if a jury were to conclude that the defendant had no intent to kidnap his victim, but only to sexually assault her, it would, in essence, be concluding that the kidnapping was merely incidental to the sexual assault. In the present case, however, the evidence clearly demonstrates that the defendant, while displaying a knife, forcibly entered the victim’s car, forced her to move over to the passenger seat and drove across a state line, where he first robbed her and then drove her to a different location where he sexually assaulted her. On these facts the jury could have reasonably concluded that the victim was abducted and that the abduction was accomplished with the requisite intent to constitute kidnapping in the first degree.

C

The defendant also claims that he was entitled to a jury instruction that an unfavorable inference may be drawn against the state for its failure to furnish the testimony of an unknown and unnamed police officer who was in the area of the Putnam Green apartments during the evening of the sexual assault. A brief discussion of additional facts is necessary to examine this claim: The victim testified that she saw a Greenwich police cruiser when she and her assailant were parked at the apartment complex. An officer with the Greenwich police department testified that he was in the area of the apartments at 10:30 p.m. on the night of the incident. As the defendant’s primary alibi witness, the owner of the Canary Bar testified that the defendant had entered the bar at approximately 10:30 that evening. To rebut the defendant’s alibi, on cross-examination of the police officer, the state elicited that another officer could have.been in the area of the apartments that evening. The gravamen of the defendant’s claim is, therefore, that the state’s failure to produce any such officer warranted the Secondino instruction. We disagree.

“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.” Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). “There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce.” Secondino v. New Haven Gas Co., supra, 675. To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it. State v. Carrione, 188 Conn. 681, 688, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983).

The defendant has not met his burden of demonstrating that the witness was available. In neither his argument to the trial court nor his request to charge had the defendant identified the police officer that the state would naturally have produced. The mere claim of an unidentified witness will not satisfy the defendant’s burden of showing availability. Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890 (1972).

Additionally, the defendant has failed to satisfy the second prong of the Secondino analysis that the unidentified witness was a person whom the state would naturally produce. “An inference is not raised by the bare fact that a particular person is not produced as a witness, but only when it would be natural for him to be produced if the facts known by him had been favorable.” State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975). “A witness who would naturally be produced by a party is one who is known to that party and 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.” (Emphasis added.) Secondino v. New Haven Gas Co., supra.

There has been no showing by the defendant that the missing witness was known to the state. Nor has he established that the alleged missing witness even existed or that he had any peculiar or superior information material to the case. Accordingly, the trial court did not err by refusing to instruct the jury on the Secondino rule.

Y

The defendant also claims error with regard to the trial court’s denial of his motion to dismiss the state’s indictment. The defendant asserts two grounds for this claim: (A) that the victim’s allegation was insufficient evidence to establish probable cause to arrest him for the charge of either sexual assault or kidnapping; and (B) that the court lacked subject matter jurisdiction because the affidavit did not establish that a criminal offense had occured in Connecticut and also because New York had first assumed jurisdiction. The motion to dismiss was properly denied.

A

The defendant recognizes that corroboration of a victim’s testimony is unnecessary to sustain a conviction for the crime of sexual assault. State v. Brice, 186 Conn. 449, 458 n.10, 442 A.2d 906 (1982); State v. Dziob, 133 Conn. 167, 169, 48 A.2d 377 (1946). Nevertheless, he asserts that the victim’s initial description of him to the police was so significantly inaccurate as to require independent corroboration to establish probable cause to arrest. “While in view of the ease of accusation and difficulty of disproof in cases of this kind, in the absence of corroboration the court should adopt a cautious approach and weigh the credibility of the complainant with care, particularily if there are improbabilities suggested by her story or there is substantial controverting evidence, it is not the law that corroboration is essential to proof of guilt.” State v. Zimnaruk, 128 Conn. 124, 126, 20 A.2d 613 (1941). These concerns, however, involve the ultimate issue of the defendant’s guilt beyond a reasonable doubt after a trial. In such a situation, although corroboration is not necessary for a conviction, the trier should be advised to consider carefully the quality of the complainant’s testimony as well as the nature of other contradictory evidence. See State v. Chuchelow, 131 Conn. 82, 83, 37 A.2d 689 (1944).

We have not, however, extended this principle to cases challenging probable cause for the police to make an arrest based solely on the victim’s complaint. The level of evidence necessary to establish probable cause to arrest is substantially less than required for a conviction. State v. Dennis, 189 Conn. 429, 431-32, 456 A.2d 333 (1983). In this case the victim’s description of her assailant to the arresting officer did not contain any glaring discrepancies and her identification of the defendant at the time of the arrest was unequivocal. The police officer clearly did not abuse his discretion in not obtaining additional corroborative evidence. The victim’s allegations did not require corroboration in order to establish probable cause.

The defendant also claims that no probable cause was established because there was no showing of the victim’s credibility. In order to establish the validity of an arrest, the victim’s affidavit must establish probable cause to believe that (1) a crime has been committed, and (2) the person arrested committed that crime. See State v. Heinz, 193 Conn. 612, 617, 480 A.2d 452 (1984). “ ‘It is generally agreed . . . that a comparable showing [of reliability] is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim . . . .’LaFave, Search and Seizure § 3.4, p. 587; see Jaben v. United States, 381 U.S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345 (1965).” State v. Daley, 189 Conn. 717, 724, 458 A.2d 1147 (1983). We conclude that an independent showing of the victim’s credibility was not required.

The defendant also claims that the facts given to the officer by the victim did not adequately establish probable cause for the kidnapping charge. It is unnecessary to consider this contention. Even if there were an inadequate basis for an arrest on the kidnapping charge, it would not have barred prosecution on that charge once the defendant was arrested for the sexual assault, probable cause for which did exist, as we have decided. See State v. Heinz, supra, 629-30.

B

The defendant also challenges the court’s subject matter jurisdiction because of insufficient facts from which to conclude that criminal conduct had occurred in Connecticut and because New York had first assumed jurisdiction over the case.

The arresting officer was informed by the victim that the defendant ordered her to give him money while they were parked behind the State Line Deli in Greenwich. He was also told that the defendant forced the victim to perform fellatio on him in the parking lot of an apartment complex in that town. This information, which was later confirmed by the testimony at trial, furnished a sufficient basis for assertion of the jurisdiction of the courts of this state over the crimes involved.

The second prong of this claim presents a more novel question. As before, a few additional facts are necessary for the analysis of this claim: The state of New York initiated criminal proceedings against the defendant for the criminal actions occurring in Port Chester, New York. A grand jury in New York failed to indict the defendant, however, and the criminal charges were dismissed in March, 1982, eight months before the trial below began on November 9, 1982. The defendant claims that the dismissal entered by the New York court should preclude his criminal prosecution in this state. We disagree.

In support of his position the defendant clearly misconstrues General Statutes § 51-352c, which provides: “If any person is accused of committing any offense on the boundary or divisional line between any towns or judicial districts in the state, or so near thereto as to render it doubtful in which town or judicial district the offense was committed, the town or judicial district which first assumes jurisdiction by issuing process for the arrest and prosecution of the offender . . . shall have exclusive jurisdiction to charge, present, indict, try, convict and sentence. . . .” (Emphasis added.) This statute, by its express language, does not purport to regulate the power of our state courts vis-a-vis the courts of other contiguous sovereign states. It merely establishes a basis for selecting the proper location within this state in which to present a criminal case. The statute cannot be read to apply to a criminal action that happens to straddle our state border.

Nor can the defendant rely on the principle of concurrent jurisdiction as articulated in State v. Bell, 21 Conn. Sup. 246, 250-51, 154 A.2d 142 (1959); 20 Am. Jur. 2d, Courts § 128. “There is a well-established rule that where several courts have concurrent jurisdiction of the same offense, or equal or nearly equal power and authority over a case . . . the court which first acquires jurisdiction of the prosecution generally retains it to the exclusion of others.” State v. Bell, supra, 250. This rule is not applicable here because we are not presented with a situation of concurrent jurisdiction. The defendant was charged in New York, on the basis of his conduct there, with unlawful imprisonment in the first degree and robbery in the first degree. The defendant was charged in Connecticut with the crimes of sexual assault, kidnapping, and robbery predicated on his wholly separate conduct within this state. The New York courts do not have any jurisdiction over these offenses because they clearly occurred in Connecticut. See State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931). The fact that the state of New York previously had attempted to indict the defendant is immaterial to the power of our courts to prosecute the defendant for his conduct within this state. Cf. State v. Haskins, 188 Conn. 432, 472, 450 A.2d 828 (1982); State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979). The New York grand jury that failed to indict him may well have concluded that the crimes involved had occurred in Connecticut and thus could not be prosecuted in New York.

VI

The defendant’s final claim of error is that the trial court refused to accept his pleas under the doctrine of North Carolina v. Alford, supra. The record does not support his claim because it provides absolutely no indication that the defendant’s guilty pleas were offered pursuant to the doctrine. Obviously recognizing that the existing record did not support his claim, the defendant filed a motion for rectification. During the hearing on this motion, trial counsel for the defendant admitted that the pleas were not offered pursuant to the Alford doctrine. The court found that “the record reflects there was no consideration by the court of a plea by the accused under the doctrine enunciated in Alford v. North Carolina, [sic].”

The record does indicate that the court rejected the proposed guilty pleas of the defendant because, upon inquiry by the court, he would not unequivocally admit that he had committed the underlying crimes. See Practice Book §§ 708 through 713; State v. Martin, 197 Conn. 17, 495 A.2d 1028 (1985). Acceptance of a guilty plea is within the discretion of the trial court. State v. Godek, 182 Conn. 353, 365 n.13, 438 A.2d 114, cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). In reviewing whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the court’s ruling. State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 (1975). “Central to the [guilty] plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment.” Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). Because the defendant did not admit his involvement in the underlying crimes, and did not inform the trial court of his claimed desire to enter the pleas under North Carolina v. Alford, the trial court did not abuse its discretion by refusing to accept the defendant’s pleas.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class B felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree. (a) A person is guilty of kidnapping in the first degree when he abducts another person and when: (1) His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.”

       The defendant was charged with robbery in the first degree; General Statutes § 53a-134 (a) (3); but was convicted of the lesser included offense of robbery in the third degree.

       The defendant did not object to the testimony of the victim concerning the two out-of-court identifications. He objected only to the victim’s in-court identification. An examination of the trial transcript, however, does not indicate what transpired after the defendant objected. It does not provide the basis on which the trial court denied the motion to suppress nor does it establish that the defendant properly excepted to the court’s denial of the motion. Nevertheless, because his claim raises an issue of constitutional dimension, we will evaluate it as an “exceptional circumstance.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       The state maintains that this claim is not reviewable because a motion to dismiss was not proper under the circumstances of this case. A motion to dismiss, predicated on a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), is the proper sanction only when there is alleged prosecutorial misconduct in the suppression of the exculpatory evidence. Practice Book § 747; State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980). Because there is no such claim in this case, the proper remedy would have been to strike the witness’ testimony. State v. Perez, 181 Conn. 299, 310, 435 A.2d 334 (1980). Because the trial court would have been free, however, to strike the witness’ testimony even though the defendant specifically moved for a dismissal, we evaluate the defendant’s claim on that basis. The possibility that the defendant would not have desired that the testimony be stricken, because evidence of his earlier misidentification clearly would be favorable to the defendant, is a tactical consideration which does not alter our analysis. Further, although the denial of a motion to dismiss is ordinarily not assignable as error; State v. Peay, 165 Conn. 374, 375, 335 A.2d 296 (1973); the defendant’s claim will be discussed because it implicates a fundamental constitutional right. United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); see State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       The defendant does not claim that this in-court identification was impermissibly suggestive. The defendant did, however, make a motion before trial to conduct a lineup to test Frost’s ability to make an identification. The motion was denied by the court.

       General Statutes § 54-86c (a) requires the state to disclose, “[n]ot later than thirty days” after a defendant pleads not guilty, “any exculpatory information or material . . . whether or not a request has been made . . . . ” See Practice Book § 741 (1).

       There was no claim that the state deliberately or in bad faith suppressed the photographic array involved. An intentional or deliberate suppression of material evidence would constitute a per se violation of due process sufficient to reverse a criminal conviction. See United States v. Keogh, 391 F.2d 138 (2d Cir. 1968).

       The state argues that because the defendant did not except to the court’s additional instruction on intent, he has waived his appellate claim. See State v. Jones, 193 Conn. 70, 87-89, 475 A.2d 1087 (1984). The defendant’s Sand
        strom claim is, however, reviewable, as it implicates a fundamental constitutional right. State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Shine, 193 Conn. 632, 644 n.11, 479 A.2d 218 (1984); see State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       “The Court: In the offenses charged there are specific intent crimes. The kidnapping is with the intent, sexual assault requires intent, robbery requires intent. One of the elements common to constitute the crimes with which the defendant has been charged is that the defendant had a wrongful intent to commit the crimes of which he has been charged. Now, the existence of that intent is a fact for you to determine and you must be satisfied that it has been proven beyond a reasonable doubt. You will hear this charge on intent several times more as it relates to the offenses involved and it is most important that you do grasp and accept it fully aware at all times that it is the State’s burden to prove the existence of the intent necessary to constitute the offense in the accused mind. Now, intent is a mental process. Every person’s intention may not always be known, but a person’s intention may be inferred from their conduct. Every person is presumed to intend the natural consequences of their act. It is often impossible and never necessary to prove criminal intent by direct evidence. Ordinarily intent can be proved only by circumstantial evidence. What a person’s purpose or intention has been is necessarily, very largely, a matter of inference. No person can be expected to come in here and testify that he looked into another person’s mind and saw therein a certain purpose or intention. The only way in which a jury can determine what a person’s purpose or intention was at any given moment, aside from that person’s own testimony, is by determining what the circumstances were surrounding that conduct and from those infer what his purpose or intention was. To draw such an inference is not only the privilege of the jury but it is also your duty provided, of course, the inference drawn is a reasonable one. In this case, therefore, it would be part of your duty to draw all reasonable inferences from the conduct of the accused. In this case, however, the existence in the mind of the accused of the intent charged is a necessary element to constitute the crime. Because this is so it’s existence must be proven beyond a reasonable doubt, as I have explained that to you. You should infer it’s existence only if you are satisfied of it beyond such a doubt. If there remains such a doubt after considering all of the facts and circumstances you may find proven any reasonable explanation, any reasonable hypothesis consistent with innocence of the accused, then you can not find the intent to exist and your verdict must be not guilty.”

       “The Court: Good afternoon. Three items that I am going to take up with you. One is this question of intent. The intent that is required in the mind of the actor in respect to the offenses charged is the intent that must be proven beyond a reasonable doubt by the State. I made a statement earlier that a person is presumed to intend the natural consequences of their act. Do not equate that with the obligation in [sic] the burden of the State to prove the intent of the accused beyond a reasonable doubt. That statement refers to anybody’s conduct anywhere. But you may not presume intention of the consequences of an act, but you may draw inferences from the conduct or the act of an accused to determine intention as it may have existed in the actors mind. But you may not presume the necessary intention that must be proven by evidence beyond a reasonable doubt.”

        See People v. Lombardi, 20 N.Y.2d 266, 229 N.E.2d 206, 282 N.Y.S.2d 519 (1967); People v. Levy, 15 N.Y.2d 159, 204 N.E.2d 842, 256 N.Y.S.2d 793, cert. denied, 381 U.S. 938, 85 S. Ct. 1770, 14 L. Ed. 2d 701 (1965); see also annot., 43 A.L.R.3d 699 (1972); Parker, “Aspects of Merger in the Law of Kidnapping,” 55 Cornell L. Rev. 527 (1970).

       In our recent decision in State v. Fleming, 198 Conn. 255, 502 A.2d 886 (1986), we held that an illegal arrest does not per se invalidate an indictment based on lack of personal jurisdiction. Nevertheless, we are constrained to address the defendant’s claim of lack of probable cause to arrest in this case because the arrest did lead directly to the defendant’s identifications by the victim, which were admitted against the defendant in his trial. See State v. Federici, 179 Conn. 46, 425 A.2d 916 (1979).

       Ordinarily, a motion to dismiss the indictment must be made within ten days after the entry of a plea or “for good cause shown, at such later time as the judicial authority may fix.” Practice Book § 811. The failure to abide by this requirement constitutes a waiver of defenses or objections that must be raised before trial. Practice Book § 810. In this case, the defendant entered his plea of guilty on March 16, 1982. He filed his motion to dismiss the indictment on April 16, 1982. This clearly violated the filing deadlines under the rules of practice. Although not apparent upon an examination of the trial court transcript, however, the parties have stipulated that the trial court denied the motion to dismiss on the merits on November 9, 1982. The court, therefore, implicitly recognized the good cause needed to avoid the ten day requirement of § 811. See State v. Vincent, 194 Conn. 198, 203, 479 A.2d 237 (1984). There is no claim that the court abused its discretion in finding good cause.
      A motion to dismiss based on the lack of jurisdiction over the person must be distinguished from motions attacking the subject matter jurisdiction of the court, which can be raised at any stage of the proceedings, by any party or by the court sua sponte. See Practice Book §§ 810, 811.

       Although the facts of this case clearly show that the defendant was arrested without a warrant, the victim later prepared an affidavit to support an arrest warrant after the defendant had been arrested. The affidavit set forth the information on which the police had based their earlier arrest. The defendant’s claim, therefore, refers to this affidavit, but we treat the arrest as having been made without a warrant, as actually occurred. We rely upon the affidavit, however, for the facts of which the police were aware at the time of the arrest.

       The defendant did not raise this claim in the court below. Ordinarily, claims not raised in the trial court will not be considered by this court. State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973). Because, however, the defendant’s claim essentially implicates the issue of voluntariness of the plea, it raises an issue of constitutional dimension, which we find reviewable under the “exceptional circumstances” doctrine of State v. Evans, supra.

       Under North Carolina v. Alford, 400 U.S. 25, 35, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required expressly to admit his guilt, but effectively to consent to being punished as if he were guilty.


text:
    State of Connecticut v. Dennis William Jackson
    (11614)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued November 13, 1985
    decision released January 14, 1986

      Patty J. Pittman, special public defender, with whom, on the brief, was James E. Svjaine, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were Arnold, Markle, state’s attorney, and Robert J. Devlin, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Dennis W. Jackson, was charged in a three count information with sexual assault in the first degree, in violation of General Statutes (Rev. to 1979) § 53a-70 (a), kidnapping in the second degree, in violation of General Statutes § 53a-94 (a), and robbery in the first degree, in violation of General Statutes (Rev. to 1979) § 53a-134 (a). A jury found the defendant guilty on each count and he was sentenced to consecutive terms aggregating an effective sentence of not less than nineteen years nor more than thirty-eight years. On appeal, the defendant claims the trial court erred (1) in limiting his cross-examination of the victim, and (2) in its instructions to the jury on the issue of insanity. We find no error.

The jury could reasonably have found the following relevant facts: On the afternoon of September 9,1978, at approximately 4 p.m., the victim, who was on her way to work, stopped at a New Haven bar called Ron’s Place. She was employed as a waitress at another New Haven establishment know as Tumbledown Dick’s, where she was scheduled to report for work at 5 p.m. While in Ron’s Place, she was engaged in conversation by the defendant, whom she did not know and had never seen previously. The defendant asked the victim for a ride to another area of New Haven. She initially refused, fearing she would be late for work. She relented, however, when the defendant told her that he could not wait for a cab because he was in a hurry to meet someone and he would pay her three dollars for the ride. The victim testified that the defendant spoke well, was very polite and seemed like a nice person.

The defendant and the victim left Ron’s Place together and entered the victim's Volkswagen, which was parked nearby. The defendant directed the victim to a driveway off Congress Avenue in New Haven. When the victim stopped the car to let the defendant out, he produced a knife, which he held to her throat, inflicting a slight wound, and forced her into a nearby vacant building. In the building, he ordered the victim to remove all her clothing and forced her repeatedly to engage in vaginal and oral intercourse. The victim implored the defendant to release her, but he refused. He threatened her life and told her “he was good with a knife and knew how to chop people’s heads off.”

After approximately three hours, the defendant directed the victim to get dressed, and they left the vacant building and returned to the victim’s car. Once in the car, the defendant demanded the victim’s money and jewelry. She told him she had no money, but turned over two rings she was wearing. At that point, the defendant again forced the victim from her car and informed her that she was going to come with him and do what he wanted or he would kill her. As they were walking down the driveway, the victim broke away from the defendant, fled, and made her way to a nearby liquor store where the proprietor called the police.

On the evening of the incident, the victim gave an excellent description of the defendant to Detective Teixeira. On September 30, 1978, she identified him from a police photo board. She also positively identified the defendant at trial and described distinctive scars on his arms and unique tattoos on the backs of his hands. The jury viewed the defendant’s arms and hands at the trial.

The defendant’s first claim is that his right to confrontation guaranteed by the sixth and fourteenth amendments to the United States constitution was violated because the trial court impermissibly limited his cross-examination of the victim. A review of the entire transcript of the victim’s testimony does not support the defendant’s claim. The defendant “had ample opportunity to cross-examine the [victim] and it is this right which forms the core of the confrontation clause.” State v. Burns, 173 Conn. 317, 324, 377 A.2d 1082 (1977).

The cross-examination of the victim covered approximately seventy-five pages of trial transcript. The defendant complains that the trial court, toward the beginning of the cross-examination, excluded four questions as irrelevant. In response to a question, the victim said that she had lived at 1606 Chapel Street for approximately two weeks prior to the date of the incident. The court sustained the state’s objection to the next question which was, “And where did you live prior to that?” The trial court also sustained the state’s objections to questions as to who the victim’s employer was at Tumbledown Dick’s, how many children she had, and with whom she was living at the time of the incident. In the context of this case, wherein the victim testified that she was kidnapped, sexually assaulted and robbed by an assailant she did not know and had never seen before, the questions excluded by the trial court can hardly be regarded as crucial. The inquiries concerning the witness’ children and the identity of the person she was living with were clearly irrelevant and may have been intended to attack the credibility of the witness because of unrelated sexual misconduct, contrary to the principles of State v. Mastropetre, 175 Conn. 512, 518-19, 400 A.2d 276 (1978). The defendant was permitted to ask numerous other questions concerning the victim’s background and employment. The cross-examination of the victim was lengthy, wide-ranging, and fully comported with the defendant’s sixth amendment right of confrontation. See United States v. Vasilios, 598 F.2d 387, 389 (5th Cir. 1979). “The defendant’s right to cross-examination ... is not absolute and is subject to reasonable limitation. . . .” State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). In this instance, the defendant has clearly put a constitutional tag on a nonconstitutional claim. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).

The general rule is that if the defendant is permitted cross-examination sufficient to satisfy the sixth amendment, restrictions on the scope of the cross-examination are within the sound discretion of the trial court. State v. Vitale, supra, 402. “Questions of relevancy cannot be adjudicated by precise rules of law and must be left to be determined in each case according to reason and judicial experience.” Johnson v. Healy, 183 Conn. 514, 516, 440 A.2d 765 (1981). “Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only when an injustice appears to have occurred.” State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). Although cross-examination should be liberally allowed, the trial court may restrict it to evidence which is competent, material and relevant. State v. Reed, 174 Conn. 287, 299, 386 A.2d 243 (1978). The questions excluded by the trial court were, under the circumstances evident from the record, irrelevant to any aspect of the case or the victim’s credibility. The trial court properly sustained the state’s objections.

There is no merit to the defendant’s first claim.

The defendant’s second claim is that the trial court erred in its charge to the jury on the issue of insanity by intermingling the statutory definition of insanity found in General Statutes (Rev. to 1979) § 53a-13 with a rejected common law definition of insanity known as M’Naghten’s Rule. See M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843). The defendant claims, consequently, that he was deprived of a fundamental constitutional right and a fair trial and that his claim is therefore entitled to review by this court. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The trial court clearly informed the jurors that the statutory definition of insanity contained in § 53a-13 was the test they were to apply to determine if the defendant was criminally responsible for his acts. It did, however, use the statutorily superseded M’Naghten rule as an example when explaining the statutory definition.

The defendant did not file a request to charge on the issue of insanity nor did he take an exception concerning this aspect of the trial court’s instructions on the issue of insanity. Ordinarily, the defendant’s failure to take an exception to the trial court’s charge renders his claims unreviewable on appeal. Practice Book §§ 854, 3063. “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, supra, 69. Under the circumstances of this case, we will review the defendant’s claims under the Evans bypass doctrine only if we determine that it involves the deprivation of a fundamental constitutional right and a fair trial.

We have recently had occasion to consider this exact issue. State v. Hinckley, 198 Conn. 77, 502 A.2d 388 (1985). What we said in Hinckley applies to the defendant’s claim on this appeal. “The defendant here, however, does not claim that the trial court failed to charge the jury on the issue of insanity or failed to include the statutory definition. Nor does he claim that the trial court failed sufficiently to instruct the jury as to the state’s burden of proof on the issue of insanity. He claims only that a component of the particular definition of insanity used in the charge did not comport with the statutory definition.” Id., 84. “Although the trial court clearly has a constitutional obligation to charge the jury on insanity because the state bears the burden of proof on the issue, this circumstance does not transform every deviation from the particular statutory definition chosen by the legislature into a constitutional error.” Id. The fact that the trial court gave an explanation of the statutory definition of insanity that included a common law test does not implicate any fundamental constitutional right that would, in the absence of an exception to the court’s charge, afford the defendant review under the exceptional circumstances doctrine of State v. Evans. State v. Hinckley, supra, 87.

Further, we cannot say that the inclusion of the common law definition in the charge as an example of an instance of insanity within the statutory definition “constituted a manifest injustice to the defendant so as to impair the effectiveness or integrity of his trial.” Nor has the defendant met his burden of showing that “[t]he additional language in the charge resulted in an unreliable verdict or a miscarriage of justice.” State v. Hinckley, supra. There was, therefore, no plain error as contemplated by Practice Book § 3063, which provides that this court “may in the interests of justice notice plain error not brought to the attention of the trial court.”

We do not approve of the use of a common law definition of insanity in conjunction with an instruction on the statutory test. State v. Toste, 178 Conn. 626, 633, 424 A.2d 293 (1979). However, in the absence of an exception to the trial court’s charge we will not review the defendant’s claim as an exceptional circumstance under Evans or as plain error under Practice Book § 3063.

There is no error.

In this opinion the other judges concurred.

       At the time of the offense, General Statutes (Rev. to 1979) § 53a-70 (a) provided: “Sec. 53a-70. sexual assault in the first degree: class b felony, (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or (2) by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       General Statutes § 53a-94 (a) provides in pertinent part: “Sec. 53a-94. kidnapping in the second degree: class b felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person. . . .”

       At the time of the offense, General Statutes (Rev. to 1979) § 53a-134 (a) provided: “Sec. 53a-134. robbery in the first degree: class b felony. (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       At the time of the offense, General Statutes (Rev. to 1979) § 53a-13 provided: “Sec. 53a-13. insanity as defense. In any prosecution for an offense, it shall be a defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.”