author: Arthur H. Healey, J. Shea, J.,

text:
    State of Connecticut v. John Van Sant
    (12627)
    Healey, Shea, Dannehy, Santaniello and Ment, Js.
    Argued November 15, 1985
    decision released January 21, 1986

      Robert M. Davidson, with whom was Thomas M. Conroy, for the appellant (defendant).

      Frank S. Maco, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

This appeal arises out of the trial court’s declaration of a mistrial, over the defendant’s objection, on the ground of manifest necessity after a state’s witness became ill while testifying. We find no error.

The defendant, John Van Sant, had been brought to trial on charges of larceny in the first degree in violation of General Statutes (Rev. to 1981) § 53a-122 (a) (2) and burglary in the third degree in violation of General Statutes § 53a-103 (a). On September 20, 1983, after a jury had been impaneled, the state called as a witness Bernard Halapin, a Monroe police detective. In the course of cross-examination, the court, Melville, J., excused the jury, as well as Halapin, to permit defense counsel to make a motion. The defense asked the court to “suspend [the] trial,” arguing that testimony being given by Halapin was inconsistent with that given by him the previous day at a hearing on the defendant’s motion to suppress, which had been denied by the court. The court itself stated that it had “a serious problem here, Mr. Maco. It would appear that we have two sets of testimony from this officer . . . [t]he Court is now receiving a different impression from what the testimony has just been . . . .” Still outside the presence of the jury, Halapin returned to the witness stand, after the court indicated that defense counsel could probe the claimed contradiction. After examination of Halapin by the defense and the state, as well as the court, the court said that its earlier decision to deny the motion to suppress remained unchanged. Thereafter, while Halapin was being questioned by defense counsel, he became ill and was removed from the courthouse.

His appearance at that time was described by the court at a hearing some time later as follows: “The Court certainly had the benefit of observing the demeanor of the witness at the time he keeled over on the stand, and the Court at that time was convinced that there was no malingering going on. The Court could notice the beads of sweat, the perspiration on the man’s brows and the face, and the change in his color. It was obvious that there was something drastically wrong with the individual.” The next day the court told the jury that “a logistical problem” had been encountered which had not been solved and for that reason it was excusing them until September 28, 1983, at which time they were to return to court.

On October 12,1983, the trial court conducted a hearing at which James D. Garrity, a family physician who had examined Halapin, testified. This physician was called as the court’s witness and was examined by the court, the state and the defense. The court made clear that the purpose of the hearing was to determine whether there was manifest necessity to declare a mistrial. Garrity had examined Halapin on September 20, 1983, and referred him to Kenneth Lisi, a cardiologist. On September 29, 1983, Lisi performed a stress test on Halapin and reported the results to Garrity. Garrity testified that, as a result, “[w]e told [Halapin] to return to his regular duty, but not to testify in court.” In addition, Garrity said that the last time that Halapin had notified him that he experienced pain was the day of the stress test. It appeared that Garrity relied heavily on Lisi’s expertise. No definite statement was given as to when Halapin could medically be expected to be able to testify in court. The trial court felt that Garrity’s evidence had not been particularly helpful, noting that Halapin had been permitted to return to work despite the Concession by Garrity that he did not know the “kind of stresses he might be subjected to” at work, that he did not know if he had in fact returned to work, and that Halapin’s availability as a witness was unclear. Moreover, the court also noted that it did not know what Lisi had actually said. It is apparent that, at that point, the court did not consider that proceeding with the trial, either by striking Halapin’s testimony and allowing the state to proceed out of order or by allowing a “significant additional continuance,” offered fair choices, especially without the consent of the defense. Observing that the state offered two notes, a letter and the testimony of Garrity, the trial court stated that “none of [this] indicated anything definitive as to when this man [Halapin] could come back or what his condition was.” It then indicated that it wanted something more from the state. After a further colloquy, the matter was continued for one day and the state was then to bring in Halapin or a cardiologist or both.

On the following day, October 13,1983, the state produced, and the court admitted, over the defense objection of hearsay, a letter from Lisi to the attention of Frank S. Maco, the assistant state’s attorney trying the case. The state also informed the court that Halapin was present in the courthouse in the state’s attorney’s office in accordance with the court’s instructions, although it had not brought “him into this courtroom atmosphere at this time unless requested by the Court . . . The state maintained, in answer to a question from the court, that it still took the position that it intended to proceed if the court so ordered.

Lisi’s letter indicated that Halapin had reported having chest pain during the stress test the doctor was conducting and that he had to assume Halapin’s pain was real although he could not so state. Lisi maintained that the only way to determine whether it was “truly organic pain” was through coronary angiography which, in turn, was not indicated unless further episodes of chest pain occurred. He felt that it was “only right” to conclude that Halapin should not be exposed “to any maximum stress at this time.” Pointing out that, in Halapin’s case, “the court proceedings are equivalent to a Stage IV stress test because of the anxiety it creates,” he did not feel it was “safe at this point to expose him to such a stressful procedure until more information [could] be obtained.” He also reported that he could “eventually” assume his police duties “but in a graduated manner.” If pain did not recur, “he [could] undergo cross-examination as organic pain would certainly not be probable.” He further said that the electrocardiogram mentioned by Garrity revealed “a normal congenital variation and is of no medical significance.” Lisi, however, then wrote that “a previous ECG apparently did not reveal this pattern which would suggest that it is development [sic] rather than congenital,” but he also noted “[w]hether this is significant or not is questionable.” He concluded that the stress test was inconclusive, that the pain “has to be presumed to be real rather than imaginary” and that “marked stress, physical or emotional, at this time has to be avoided.”

The court determined that Halapin was in the courthouse and that the state was ready, willing and able to proceed with Halapin as a witness if ordered to do so. The state informed the court that, as of October 13, 1983, Halapin was not back to work. The defendant declined the court’s offer of a reasonable continuance to present information or evidence that would justify the court’s ordering Halapin to appear and testify. In declining the offered continuance, the defendant pointed out that it was not his burden, but that of the state, to go forward. The court did not, however, consider such an order appropriate “without further evidence” as it “could detrimentally affect his health.” It denied the defendant’s motion for judgment of acquittal and found that there was “manifest necessity” under the circumstance to declare a mistrial and it did so over the defendant’s objection. It then ordered that the case be set down for a new trial and placed on the trial list.

On October 15, 1983, the defendant filed a motion to dismiss based on double jeopardy grounds. Over a year later, on October 24, 1984, the judge who had declared the mistrial on October 13, 1983, heard and denied the defendant’s motion to dismiss. This appeal followed.

On appeal, the defendant claims that the trial court erred in (1) permitting the defendant to be subjected to jeopardy for the second time after the declaration of a mistrial which was based on inadmissible hearsay evidence, and (2) ruling that manifest necessity existed for declaring the mistrial because of the alleged illness of a state’s witness where the medical evidence of that witness’ condition was ambiguous and where the witness was in the courthouse on the day the mistrial was declared. We find no error.

The defendant claims that the evidence properly before the trial court did not constitute manifest necessity for it to declare the mistrial and, therefore, that its action constituted an abuse of discretion. The trial court’s action, it is argued, was prejudicial and violated his constitutional right not to be placed in jeopardy a second time. Those claims encompass the argument that the state did not satisfy its heavy burden and that the trial court’s reliance on the inadmissible hearsay evidence represented by Lisi’s letter constituted reversible error. The state, on the other hand, recognizing that a mistrial premised on the claimed unavailability of “crucial prosecution evidence” triggers the “strip-test scrutiny” of such a claim, argues that the trial court did not abuse its discretion. In addition, it asserts that the trial court did not commit error in admitting into evidence, and relying upon, Lisi’s letter in considering whether or not to declare a mistrial. Overall, the state urges, the requisites of the doctrine of “manifest necessity” were present and proved.

The fifth amendment to the United States constitution provides, in relevant part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” “This clause, which is applicable to the states through the fourteenth amendment; Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); establishes the constitutional standards concerning the guarantee against double jeopardy. Crist v. Bretz, 437 U.S. 28, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978); Benton v. Maryland, supra, 795.” State v. Roy, 182 Conn. 382, 385, 438 A.2d 128 (1980); see Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). Inasmuch as the jury had been selected and sworn in this case, jeopardy had attached. Crist v. Bretz, supra; United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); State v. Roy, supra. The fact that jeopardy has attached does not, however, mean that a later termination of the trial mandates a dismissal of the charge based on the double jeopardy clause. United States v. Jorn, supra, 483-84; State v. Roy, supra; State v. Aillon, 182 Conn. 124, 128, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883, 66 L. Ed. 2d 817 (1981); see generally Schulhofer, “Jeopardy and Mistrials,” 125 U. Pa. L. Rev. 449 (1977). This is so even though this “constitutional protection also embraces the defendant’s ‘valued right to have his trial completed by a particular tribunal.’ ” Arizona v. Washington, supra. It is instructive to note that the “valued right” quotation utilized by Justice Stevens in writing for the court in Arizona v. Washington, supra, is acknowledged to have had its source in Justice Black’s opinion in Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974, reh. denied, 337 U.S. 921, 69 S. Ct. 1152, 93 L. Ed. 1730 (1949), where he said: “What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” See generally Holleman, “Mistrials and the Double Jeopardy Clause,” 14 Ga. L. Rev. 45, 47 (1979).

Thus, the fact that jeopardy has attached does not mean that a later termination of the trial necessarily mandates a dismissal of the charge on the basis of the double jeopardy clause. When a criminal defendant objects to the declaration of a mistrial, as he did in the case before us, and the mistrial is declared for reasons amounting to “manifest necessity,” his right to have his trial completed by his chosen tribunal is no longer protected and the double jeopardy clause does not bar a second trial. Illinois v. Somerville, 410 U.S. 458, 462, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); Gori v. United States, 367 U.S. 364, 368, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824); State v. Roy, supra, 386; Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 471 N.E.2d 429, 481 N.Y.S.2d 657 (1984).

In construing the double jeopardy clause of the United States constitution in the context of a declaration of a mistrial over a defendant’s objection, the seminal decision is United States v. Perez, supra. It has enjoyed continued vitality. See, e.g., Arizona v. Washington, supra, 506; United States v. Dinitz, 424 U.S. 600, 606-607, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976); Illinois v. Somerville, supra, 461; Wade v. Hunter, supra, 689-90; Simmons v. United States, 142 U.S. 148, 153-54, 12 S. Ct. 171, 35 L. Ed. 968 (1891); State v. Roy, supra; State v. Aillon, supra; Costarelli v. Commonwealth, 374 Mass. 677, 682, 373 N.E.2d 1183 (1978); Matter of Plummer v. Rothwax, supra; State v. Duckett, 120 Wis. 2d 646, 649-50, 358 N.W.2d 300 (1984).

Justice Story, writing for the United States Supreme Court in Perez, set forth standards for determining when to order a retrial after the declaration of a mistrial over the defendant’s objection. He said: “We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.” United States v. Perez, supra, 580.

■ It must be acknowledged that the Arizona court posits that “[t]he words ‘manifest necessity’ appropriately characterize the magnitude of the prosecutor’s burden.” Arizona v. Washington, supra, 505. Because of the importance of the defendant’s right to have his trial concluded by a particular tribunal, “the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant.” Id. With respect to construction of the terms “manifest necessity,” a “high degree” of “necessity” is required before a conclusion may be reached that a mistrial is appropriate, and it is apparent that whether that “high degree” has been reached is to be answered more easily in some kinds of cases than others. Id., 506-507. Manifest necessity is not amenable to a precise formulation or mechanical application because the “high degree” of necessity mandated by that phrase can be found in a variety of circumstances. Id.; Illinois v. Somerville, supra, 462; Abdi v. Georgia, 744 F.2d 1500, 1503 (11th Cir. 1984), cert. denied, 471 U.S. 1006, 105 S. Ct. 1871, 85 L. Ed. 2d 164 (1985); Elder v. Commonwealth, 385 Mass. 128, 133, 431 N.E.2d 571 (1982).

“A reviewing court looks for a manifest necessity by examining the entire record in the case without limiting itself to the actual findings of the trial court. Grooms v. Wainwright, 610 F.2d 344 (5th Cir. 1980), cert. denied, 445 U.S. 953, 100 S. Ct. 1605, 63 L. Ed. 2d 789 (1980).” Abdi v. Georgia, supra; see Arizona v. Washington, supra, 515-17; Wade v. Hunter, supra, 691-92. It is the examination of the propriety of the trial court’s action against the backdrop of the record that leads to the determination whether, in the context of a particular case, the mistrial declaration was proper. Given the constitutionally protected interest involved, reviewing courts must be satisfied, in the words of Justice Story in Perez, that the trial judge exercised “sound discretion” in declaring a mistrial. See Arizona v. Washington, supra, 514; Illinois v. Somerville, supra, 462; Wade v. Hunter, supra, 692; United States v. Castellanos, 478 F.2d 749, 751 (2d Cir. 1973); State v. Roy, supra, 386; State v. Aillon, supra, 129, 134. The “strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence . . . .” Arizona v. Washington, supra, 508; Hall v. Potoker, 49 N.Y.2d 501, 506, 403 N.E.2d 1210, 427 N.Y.S.2d 211 (1980); Routh v. United States, 483 A.2d 638, 642 (D.C. App. 1984). A longstanding reason for permitting a second trial is when the jury impaneled for the first trial is unable to agree and has been discharged over the defendant’s objection. Downum v. United States, 372 U.S. 734, 735-36, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963). The United States Supreme Court has refused, however, to state that the absence of witnesses “ ‘can never justify discontinuance of a trial,’ ” but instead has reasserted that “[e]ach case must turn on its facts.” Id., 737; Wade v. Hunter, supra, 691.

In evaluating the trial judge’s exercise of discretion, we initially note the significant circumstance that the trial judge personally witnessed Halapin as “he keeled over on the stand,” that he noticed “the beads of sweat, the perspiration on the man’s brows, and the change in his color.” The court stated that it was “obvious that there was something drastically wrong with [Halapin]” and that at that time it “was convinced that there was no malingering going on.” This “seizure” took place after some of the state’s witnesses had already testified and after Halapin himself had become enmeshed in some inconsistency vis-a-vis his earlier testimony on the motion to suppress which the trial court indicated raised questions about his trial testimony.

The record discloses that from the outset of this dilemma the trial judge sought scrupulously to protect the interests of both the defendant and the state. He was painfully aware of neither advantaging nor disadvantaging any of those interests. Prior to exercising its discretion and declaring the mistrial, the trial court proceeded deliberately and not precipitously; Arizona v. Washington, supra, 515; even though not acting for about three weeks after Halapin’s seizure. Cf. United States v. Jorn, supra, 487; see Brady v. Samaha, 667 F.2d 224, 229 (1st Cir. 1981). It is important to point out that the record demonstrates that the trial court realistically considered the alternatives to a mistrial; see, e.g., United States v. Jorn, supra; Abdi v. Georgia, supra, 1501-1502; Dunkerley v. Hogan, 579 F.2d 141, 146-48 (2d Cir. 1978), cert. denied, 439 U.S. 1090, 99 S. Ct. 872, 59 L. Ed. 2d 56 (1979); and only then declared the mistrial. Moreover, the trial court properly, as it should have, gave counsel the opportunity to be heard extensively on the matter. Arizona v. Washington, supra, 514-15 n.34; United States v. Pierce, 593 F.2d 415, 417-19 (1st Cir. 1979). The double jeopardy implications of the ruling were also considered by the court. Cf. Brady v. Samaha, supra, 228-29. In invoking the manifest necessity standard, the trial court carefully weighed the defendant’s right to have his trial completed, thus avoiding a retrial for the same offense, and the public’s interest in a fair trial and just judgment. Its analysis of the evidence, including the medical evidence, and its awareness of the applicable law evince a reasoned resolution of the dilemma that existed. No reasonable continuance would resolve the problem nor would striking Halapin’s testimony. There was no fair basis upon which to estimate when Halapin could testify. The record shows that the court recognized that “the knife cuts both ways” in assessing the circumstances for and against a mistrial. The court’s reliance on Lisi’s letter was acknowledged. That letter not only confirmed Garrity’s testimony that Halapin should not be exposed to the “stressful procedure” of the court proceedings, but also indicated that the recent electrocardiogram suggested a pattern that was “development [sic]” and not “congenital.”

Before finally determining whether the trial court did exercise a “sound discretion” under Perez and its progeny, we turn to the defendant’s claim that the admission into evidence of Lisi’s letter was harmful error. The letter constituted hearsay. Garrity, who had • referred Halapin to Lisi, a cardiologist, had appeared and testified that both were of the opinion that the witness should not be subjected to testifying. During his testimony, Garrity spoke of his “no court” advice to Halapin based not only on his contact with Halapin but, in great measure, upon Lisi’s views. In addition, he indicated that the recent electrocardiogram was “abnormal” although he was unable to “translate” for the court certain notes he had from Lisi as he testified. In the trial court, the defendant objected to the letter because it was hearsay and because it contained a suggestion with no basis in the letter “that a Court proceeding is some sort of a number IV stress, and the witness can’t come because it is stressful to him.” He then said that “I think this letter provides us with, frankly, absolutely nothing [other] than we already have in this case . . . .” The parties took opposing positions on the application and interpretation of the opinion of the New York Court of Appeals in Hall v. Potoker, supra, upon which the trial court placed reliance. In that case, the trial court took into account, in declaring a mistrial because of manifest necessity, the information given to the court and the defense by the prosecutor informing the court of the current opinion of the medical condition of an absent witness held by a physician who had earlier testified in court concerning that witness. The Hall court pointed out that the trial court was not “obliged to hale the doctor into court merely to repeat information relayed via the prosecutor.” Id., 507. It is true that that court said that the doctor’s testimony and his progress report relayed through the prosecutor stood “unimpeached and unrefuted.” Id. The same is fairly true here as the medical information available to the trial court indicated that for Halapin to testify would be stressful and against the medical advice given him. In this case we agree with the reasoning of the Hall court where it said: “Although the information was technically hear say, a trial court considering the exigencies of a potential mistrial situation cannot be bound by the strict rules of evidence applicable at formal proceedings .... In such a situation a court must be free to act upon the information at hand, so long as it is reliable.” Id. We conclude that the information from the Lisi letter upon which the trial court relied, although hearsay, was reliable for the purposes of its use in this mistrial context. In so ruling, we are aware that “[t]he decision whether [a] mistrial is manifestly necessary is a ‘practical matter’, Abney v. United States, 431 U.S. 651, 658, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977).” United States v. Lynch, 467 F. Sup. 575, 579 (D.D.C.), aff’d, 598 F.2d 132 (D.C. Cir. 1978), cert. denied, 440 U.S. 939, 99 S. Ct. 1287, 59 L. Ed. 2d 498 (1979). The court, in the course of exercising its discretion, was in a situation that gave it the reasonable assurance of the validity of the hearsay, and the circumstances warranted its use. Particularly is this so because Garrity had already testified after consulting Lisi, and the defendant at trial asserted that the letter put nothing new in on the matter. Moreover, there is no claim at all in this case that the prosecution or the defense or the court had any indication of the dilemma when it occurred. We conclude, therefore, that the trial court did not commit error in admitting the letter.

The decision to declare a mistrial rests in the sound discretion of the trial judge who is best situated to take all the circumstances into account and to decide whether a mistrial is in fact required in a given case. See, e.g., Illinois v. Somerville, supra, 462; Matter of Plummer v. Rothwax, supra, 250; Hall v. Potoker, supra; State v. Aillon, supra. This, too, is not a case of either prosecutorial or judicial overreaching. See United States v. Jorn, supra, 485. It is a case in which, after according not only the deference due the trial court’s decision but also subjecting that decision to the “strictest scrutiny,” we conclude that there was an exercise of the requisite sound discretion in declaring the mistrial.

There is no error.

In this opinion Dannehy, Santaniello and Ment, Js., concurred.

Shea, J.,

concurring. I disagree only with the portion of the opinion that holds it was not erroneous for the trial court, in disregard of the hearsay rule, to admit in evidence the letter of the cardiologist for the purpose of deciding whether there was a “manifest necessity” to declare a mistrial. As the opinion acknowledges, in the absence of such necessity the defendant’s constitutional right not to be twice placed in jeopardy would be violated. The propriety of granting a mistrial over the defendant’s objection in a criminal case raises an issue of serious constitutional concern. To the extent that the determination turns upon the resolution of factual issues, such as the unavailability of a witness, evidence bearing thereon should be subject to the defendant’s rights of cross-examination and confrontation, which the hearsay rule serves to implement. General Statutes § 52-174, which does allow the report of a physician to be introduced in “actions for the recovery of damages for personal injuries or death,” ought not to be extended to criminal cases in defiance of the apparent legislative intention, as the opinion has effectually done by suspending the operation of the hearsay rule in a proceeding to determine such a critical constitutional issue as double jeopardy.

The case of Hall v. Potoker, 49 N.Y.2d 501, 403 N.E.2d 1210, 427 N.Y.S.2d 211 (1980), relied upon by the opinion, does not involve the admissibility of hearsay evidence in such a mistrial proceeding but simply its reliability where the out-of-court statements of a physician, who had previously testified, were reported to the court by the prosecutor without objection by the defendant. The issue raised on appeal was whether the court should have held an additional hearing on the condition of the witness, as requested by the defendant the day after the physician’s statements had come into the case, rather than rely upon that unstricken evidence.

I agree with the result, nevertheless, because the letter of the cardiologist added very little to the evidence produced at the earlier hearing where Garrity had testified concerning his patient’s condition and had referred, without objection, to the findings of the cardiologist. Even without the letter, the record demonstrates adequate support for the granting of a mistrial.

Accordingly, I concur in the result.

       At that time defense counsel said, inter alia: “I don’t find it shocking, I just find it prejudicial, and I would request the Court to suspend this trial, I am not asking for a mistrial, but only to suspend it to reconduct the suppression hearing so we can get into further facts and to try to figure out what really went on on that day and what was really in the police mind [sic].”

       An examination of the transcript of September 20,1983, discloses that defense counsel exercised the opportunity given by the trial court to question Halapin on his claims.

       Garrity did testify that he had performed other cardiograms on Halapin before the instant one and that Lisi did say that the present one “was abnormal as against the other one.” He could not, however, “translate” the note he had from Lisi on that “abnormality” as he “would have to have a cardiologist do it.”

       The following took place at that time: “Mr. Maco: Just so the State is clear with regard to your Honor’s ruling, you want the witness and/or a cardiologist and you are putting the burden now on the State as to why, in fact, this witness has not appeared to testify?
      “The Court: Well, if you want to take it that way, fine.” The defendant objected to the continuance.

       The motion to dismiss stated: “The defendant in the above-entitled action, pursuant to Practice Book Sec. 815 (6), hereby moves to dismiss the information with prejudice on the grounds that to place the defendant on trial for the offenses alleged in the information would constitute double jeopardy in violation of the Fifth Amendment to the Constitution of the United States. No similar motion has been filed with this Court.”
      In oral argument before us, defense counsel indicated that when the defendant was called to appear for a second trial, the motion to dismiss on double jeopardy grounds was filed.
      Ordinarily, the appealable final judgment in a criminal case is the imposition of sentence. State v. Seravalli, 189 Conn. 201, 205, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983); Stale v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). This rule of finality we have made subject to several narrowly defined exceptions; see, e.g., State v. Grotton, supra; one of which is “an order denying a motion to dismiss on the ground that the state’s prosecution places the defendant in double jeopardy.” State v. Grotton, supra; see State v. Seravalli, supra, 203-204; see also Abney v. United States, 431 U.S. 651, 657, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). The trial court’s denial of the defendant’s motion to dismiss on the ground of double jeopardy is therefore properly appealable to this court. We note that the defendant’s motion to dismiss invokes the double jeopardy provision of the fifth amendment to the United States constitution. “Although the Connecticut constitution contains no specific double jeopardy provision, the due process guarantees of article first, § 8, have been held to include such a protection.” State v. Rawls, 198 Conn. 111, 113 n.3, 502 A.2d 374 (1985); see State v. Moeller, 178 Conn. 67, 77, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979).

       In referring to this sentence in Arizona v. Washington, 434 U.S. 497, 503 n.11, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978), Justice Stevens observes that “[Justice Black’s] complete sentence identifies that right as sometimes subordinate to a larger interest in having the trial end in a just judgment . . . .”

       The United States Supreme Court has pointed out that “[different considerations obtain, however, when the mistrial has been declared at the defendant’s request.” United States v. Dinitz, 424 U.S. 600, 607, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976).

       During its argument in the trial court the state argued that the trial court “also had the opportunity to observe medical personnel come into the building and remove [Halapin] on a stretcher.”

       Counsel have not directed us to any reported decision where the witness, whose indisposition generated a later mistrial, became ill while actually testifying at the trial. Cf. United States ex rel. Gibson v. Ziegele, 479 F.2d 773 (3d Cir.), cert. denied, 414 U.S. 1008, 94 S. Ct. 370, 38 L. Ed. 2d 246 (1973); Routh v. United States, 483 A.2d 638 (D.C. App. 1984); People v. Castro, 657 P.2d 932 (Colo. 1983); Hall v. Potoker, 49 N.Y.2d 501, 403 N.E.2d 1210, 427 N.Y.S.2d 211 (1980); State v. Misten, 26 Or. App. 681, 554 P.2d 584 (1976).

       A trial judge has acted within his sound discretion in rejecting possible alternatives in granting a mistrial if reasonable judges could differ about the proper disposition, even where, “[i]n a strict literal sense, the mistrial [is] not necessary.” Cherry v. Director, State Board of Corrections, 635 F.2d 414, 419 (5th Cir.), cert. denied, 454 U.S. 840, 102 S. Ct. 150, 70 L. Ed. 2d 124 (1981); Arizona v. Washington, 434 U.S. 497, 511, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978); Grandberry v. Bonner, 653 F.2d 1010, 1014, reh. denied, 660 F.2d 497 (5th Cir. 1981).

       It would appear from the record that the trial court also gave the defendant the opportunity to present evidence or information to be considered by the trial court in deciding whether to declare a mistrial. While this offer was commendable, we agree with the defendant’s argument that the burden of demonstrating manifest necessity for a mistrial to avoid the double jeopardy bar was entirely on the state. See, e.g., Arizona v. Washington, 434 U.S. 497, 505-506, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978); Routh v. United States, 483 A.2d 638, 642 (D.C. App. 1984).


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. George C. Carter
    (11288)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued November 13, 1985
    decision released January 21, 1986

      Richard N. Palmer, with whom, on the brief, was Robert N. Chatigny, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were ArnoldMarkle, state’s attorney, MichaelDearington, chief assistant state’s attorney, and David Teitelman, legal intern, for the appellee (state).
   Shea, J.

On March 3, 1975, the defendant, George Carter, was indicted by a grand jury for felony murder in violation of General Statutes § 53a-54c. After several competency hearings, where he was found incompetent to stand trial, the defendant eventually was found competent. At the ensuing trial he was convicted by a jury of felony murder on October 5, 1977. This court, however, subsequently set aside the defendant’s conviction in State v. Carter, 182 Conn. 580, 438 A.2d 778 (1980). In a second trial, the defendant was again convicted of felony murder after a trial to a jury. From this judgment the defendant appeals, claiming that the trial court erred (1) in admitting evidence of the defendant’s prior conviction for another murder, and, (2) in charging the jury concerning the definition of insanity. We find no error.

On November 4, 1974, at approximately 6:20 p.m., the defendant registered as a guest at a Holiday Inn in New Haven. Later that evening, the defendant was seen in the lobby and the hotel bar adjacent to it. At about the same time the victim, Robert Roth, was seen in the hotel dining room. The victim had been residing at the hotel for several years. Because the dining room was closed by the time the victim had finished eating, he was required to exit through the hotel bar. There was no testimony that anyone had seen the defendant and the victim together. Some time after 10 p.m. that evening, Roth was robbed and murdered. Several items of jewelry and other personal possessions were taken from him, including a University of New Haven class ring bearing his initials. Although the victim did not smoke, a “Kool” cigarette was found in his room.

Later the same evening, the defendant illegally entered an apartment in close proximity to the Holiday Inn, where he attacked and sexually assaulted its female occupant. The defendant then fell asleep, whereupon the woman left the apartment and called the police. The police apprehended the defendant, still asleep, at the apartment. When the defendant was arrested, he had in his possession a package of “Kool” cigarettes, a class ring engraved with the initials “R.I.R.” and other items belonging to Roth. The defendant was then transported to police headquarters, where, the following day, he consented to the search of his hotel room. A search of the room uncovered only a single, unsmoked “Kool” cigarette. Blood stains on the clothing worn by the defendant at the time of his arrest were found to be of the same blood type as that of Roth.

The police conducted a routine computer check which revealed that the defendant had been charged with a homicide in Richmond, Virginia, and had fled that state with the charge still pending. Subsequent to the defendant’s first conviction for the murder of Roth, he was extradited to Virginia where he was convicted of the murder in Richmond and sentenced accordingly. The defendant returned to Connecticut pursuant to a judicial order in order to be present at his second trial.

The defendant did not testify at trial, nor did he concede that he had murdered Roth. Most of the defendant’s case consisted of psychiatric testimony concerning his mental illness. Two expert witnesses testified that, at the time of the murder, the defendant was suffering from acute schizophrenia that seriously affected his ability to function and substantially limited his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. See General Statutes § 53a-13. In rebuttal, the state offered one expert who was unable to state conclusively whether or not the defendant was legally sane at the time the murder was committed. The jury was instructed correctly that the state had the burden of proving beyond a reasonable doubt not only the essential elements of the felony murder charge, but also the defendant’s sanity at the time of the murder.

I

The defendant claims that the trial court erred in admitting evidence of his prior conviction for a murder in Virginia. Prior to trial, the state had disclosed that it intended to introduce various instances of prior misconduct of the defendant, including his Virginia murder conviction. Before the defendant called his first expert witness on insanity, he requested an advance ruling barring the state from cross-examining his witnesses concerning his prior convictions, including the Virginia murder conviction. The court did not rule on the matter at that time, postponing a resolution until the substance of the psychiatrist’s testimony had been heard. After the defendant concluded his direct examination of the expert witness, he renewed his motion to bar evidence of the prior convictions, claiming irrelevance and undue prejudice. The court ruled that the state could inquire into the Virginia murder, stating that “when one gets into the question of insanity his entire life opens up, so to speak . ...” On cross-examination the prosecutor attempted to elicit from the psychiatrist the effect the Virginia murder would have upon his conclusion that the defendant was criminally insane at the time of the murder of Roth. The defendant objected to the prosecutor’s mention of the detailed circumstances of the Virginia murder because there was no evidence of those facts. On the basis of the prosecutor’s improper reference to these facts, the defendant made a motion for a mistrial. The court denied the motion but did instruct the prosecutor to limit his questions to the defendant’s conviction for the robbery and murder of a guest at a Holiday Inn in Virginia and to refrain from discussing the facts underlying that conviction. The jury was then instructed to disregard any references to the circumstances of that crime previously made by the prosecutor. The prosecutor resumed cross-examination and the witness testified that the existence of a conviction for a prior similar act was not inconsistent with his conclusion that the defendant was a schizophrenic.

The defendant claims that the trial court should not have admitted evidence of the Virginia murder conviction because its prejudicial effect greatly exceeded its probative value. The basis for the trial court’s admission of the defendant’s prior murder conviction was that evidence of other crimes, especially those similar to the charged offense, is admissible because “a plea of insanity opens wide the door to all evidence relating to the defendant and his environment.” Wilson v. State, 247 Ind. 454, 461, 217 N.E.2d 147 (1966). Recognizing that a plea of insanity triggers a broad inquiry into the defendant’s entire life, courts have admitted evidence of prior misconduct because of its significance in showing the mental condition of the defendant, when such evidence would ordinarily be excluded. See Thomason v. State, 46 Ala. App. 10, 237 So. 2d 121 (1970); Burgunder v. Arizona, 55 Ariz. 411, 103 P.2d 256 (1940); People v. Vanda, 111 Ill. App. 3d 551, 444 N.E.2d 609 (1982); Fulmer v. State, 249 Ind. 261, 230 N.E.2d 307 (1967); Wilson v. State, supra; State v. James, 394 So. 2d 1197 (La. 1981); People v. Wood, 12 N.Y.2d 69, 187 N.E.2d 116, 236 N.Y.S.2d 44 (1962); State v. Johnson, 69 Wash. 2d 264, 418 P.2d 238 (1966); 1 Wharton, Criminal Evidence (13th Ed. 1972) § 222.

“Whenever insanity is asserted as a defense and is supported by any credible evidence, ‘it is of critical importance that the defendant’s entire relevant symptomology be brought before the jury . . . .’‘[W]hen insanity is in issue, any and all conduct of the person is admissible in evidence.’ To this end, the trial judge should permit ‘an unrestricted inquiry into the whole personality of a defendant’ and should ‘be free in his admission of all possibly relevant evidence.’ Any evidence of aberrant conduct or action, whether before or after the act charged, is accordingly admissible under the [insanity] plea.” (Citations omitted.) United States v. Smith, 507 F.2d 710, 711 (4th Cir. 1974); see Sulie v. Duckworth, 689 F.2d 128, 131 (7th Cir. 1982), cert. denied, 460 U.S. 1043, 103 S. Ct. 1439, 75 L. Ed. 2d 796 (1983); United States v. Madrid, 673 F.2d 1114, 1122 (10th Cir.), cert. denied, 459 U.S. 843, 103 S. Ct. 96, 74 L. Ed. 2d 88 (1982); United States v. Hauck, 586 F.2d 1296, 1299 (8th Cir.), cert. denied, 441 U.S. 947, 99 S. Ct. 2170, 60 L. Ed. 2d 1050 (1978); United States v. Davis, 513 F.2d 319, 321 (5th Cir. 1975); United States v. Hartfield, 513 F.2d 254, 260 (9th Cir. 1975); United States v. Brawner, 471 F.2d 969, 976 (D.C. Cir. 1972); Pope v. United States, 372 F.2d 710, 736 (8th Cir. 1967); Davis v. United States, 364 F.2d 572, 574 (10th Cir. 1966).

Evidence of prior crimes is inadmissible merely to show bad character of the defendant or a tendency to commit criminal acts. Spencer v. Texas, 385 U.S. 554, 560-61, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967); State v. Hauck, 172 Conn. 140, 143-44, 374 A.2d 150 (1976). There are, however, several exceptions to this general rule. “Evidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies of the accused, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity.” State v. Ibraimov, 187 Conn. 348, 353, 446 A.2d 382 (1982); see State v. Smith, 198 Conn. 147, 156-57, 502 A.2d 874 (1985); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975). Where insanity has been raised as a defense to a crime, other misconduct bearing upon that issue is similarly admitted as an exception to the general prohibition against such evidence. Once the insanity defense is asserted by a defendant the state is entitled to use relevant evidence of prior crimes to rebut it. This rule, of course, is subject to the constraint that the probative value of the evidence must outweigh its prejudicial effect. See State v. Shindell, 195 Conn. 128, 134, 486 A.2d 637 (1985); State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983); State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970).

The trial court concluded that evidence of the Virginia murder was relevant after the testimony of the psychiatrist who based his conclusions, in part, on the significance of the sexual assault which resulted in the defendant’s arrest and on evidence of a subsequent bribe he offered to a police officer when in custody at the police station. The psychiatrist testified that it would be extremely significant and diagnostic of schizophrenic behavior to commit rape immediately after brutally murdering another person because “only a schizophrenic could . . . commit a murder of this magnitude . . . and then [commit] some form of sexual act.” He also testified that falling asleep after the rape is highly indicative of insane conduct as it clearly evinces an individual’s inability to appreciate the wrongfulness of his conduct. Further, the offering of a bribe, he contended, would be consistent with schizophrenic behavior. Since the psychiatrist had referred to two other crimes as having significance in buttressing his opinion, the court properly concluded that evidence of a prior murder conviction, especially where the crime occurred only four months before the present incident and under similar factual circumstances, would also be relevant on the issue of insanity.

We are required also to determine whether the probative value of the evidence is outweighed by its potential for unfair prejudice. State v. Braman, supra. Although the defendant here did not admit that he had killed the victim, the focus of the defendant’s case was clearly his insanity at the time of the murder. It is difficult to perceive, therefore, how the evidence of the Virginia murder was so prejudicial as to outweigh its probative value on the issue of insanity. The danger of “other crimes” evidence is that a jury may use the information not for the limited purpose of its admission, but to establish the guilt of the perpetrator of the crime by assuming that “ ‘if he did it before, he probably did so this time.’ ” Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 88 S. Ct. 1421, 20 L. Ed. 2d 287 (1968). In bringing before the jury evidence of the crimes of sexual assault and bribery as a basis for the opinion of the psychiatrist upon the insanity issue, the defendant must have been aware of the risk that the persuasiveness of the state’s evidence that he was the killer would be enhanced. He recognized, nevertheless, the significant probative value of such evidence upon his principal defense to the crime, insanity at the time of its commission. Although it must be conceded that the Virginia murder had a greater potential for prejudice because of its similarity to the crime charged, its relevance upon the insanity issue was clearer than that of the other crimes for the same reason. In fact, one of the psychiatrists testified, after the court had allowed the inquiries related to the Virginia murder, that “only someone who is schizophrenic can really . . . commit the same horrendous crime twice in so short a period of time.” This evidence, therefore, provided an additional basis for the defendant’s defense of insanity. The state did not attempt to use evidence of the Virginia murder solely to establish his propensity to commit a violent murder. The state referred to the Virginia conviction only to refute the expert’s conclusions regarding the defendant’s insanity. Finally, the court instructed the jury to consider the evidence only on the issue of insanity and not as proof that he had committed the crime in question. See United States v. Emery, 682 F.2d 493, 500 (5th Cir. 1982). In light of these factors, we cannot say that the trial court abused its discretion in concluding that the evidence was admissible on the issue of insanity because its probative value on the issue outweighed any possible prejudicial effect.

II

The defendant also claims that the trial court’s instructions to the jury on the issue of insanity were erroneous because they included not only the appropriate statutory definition of insanity found in General Statutes § 53a-13, but also previously accepted common law definitions. See State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979); M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843). We decline to review this claim because the defendant failed properly to except to the instructions.

The defendant filed a written request to charge on the insanity issue, urging the court to charge the jury upon the statutory definition of insanity. During its charge to the jury, the court on four occasions correctly recited the statutory definition. After the second recitation of the statutory standard, however, the court further defined insanity by providing the jury with two outdated common law definitions. At the conclusion of the charge, the defendant did except to the trial court’s definition of insanity but only to the extent that it failed “to actually define the terms disease and defect” and “to provide a standard by which the jury can, in fact, decide whether a disease or defect was present.” The defendant did not raise any exception with respect to the use of the common law definitions. The requirement that the claim be raised “distinctly” means that it must be “so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903). The exception to the charge was inadequate to alert the trial court to the specific deficiency now claimed on appeal.

The failure of the defendant to state distinctly the matter being objected to immediately after the conclusion of the charge ordinarily renders the claim of error unreviewable on appeal. See Practice Book §§ 854, 3063. In the absence of a specific timely exception, a claim of error is “reviewable as an exceptional circumstance within the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), only when the defendant can demonstrate that he has clearly been deprived of a fundamental constitutional right and a fair trial, or under Practice Book § 3063 as plain error.” State v. Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1986).

As we recently have held in State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985), and in State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985), the failure properly to object to a court’s charge on insanity renders the claim of error unreviewable by this court even under the exceptional circumstances doctrine of State v. Evans, supra, because the trial court is under no constitutional obligation to charge the jury with a definition of insanity that is “beyond criticism in every particular.” State v. Harman, supra. In each of those cases, because the defendants took no exception to the trial court’s charge on insanity their respective claims of error were not reviewed by this court. See State v. Jackson, 198 Conn. 314, 502 A.2d 865 (1986). The fact that the defendant here did except to the court’s insanity charge does not alter the analysis, because he failed to identify specifically in his exception the inclusion of the outdated definitions.

In this case, the court charged the jury four times with the proper statutory definition of insanity. The mere fact that the court once interjected additional common law definitions of insanity does not raise any fundamental constitutional right that would warrant review. Nor has the presence of the additional insanity definitions “constituted a manifest injustice to the defendant so as to impair the effectiveness or integrity of his trial,” as is necessary to establish plain error. State v. Hinckley, supra, 88.

There is no error.

In this opinion the other judges concurred.

       The defendant’s original conviction was reversed because the trial court failed to instruct the jury to draw “no adverse inferences” from the failure of the defendant to testify as required by General Statutes § 54-84 (b). See State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); State v. Burke, 182 Conn. 330, 333-34, 438 A.2d 93 (1980).

       During argument of this appeal the defendant withdrew his claim, which had been briefed, that the trial court erred in not instructing the jury that the offense of manslaughter is a lesser included offense of felony murder. On the basis of principles articulated in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 441 (1980), we recently rejected such a contention in State v. Castro, 196 Conn. 421, 429, 493 A.2d 223 (1985). See State v. MacFarlane, 188 Conn. 542, 547-49, 450 A.2d 374 (1982).

       On appeal the defendant also challenges the authenticity of the Virginia conviction because a certified copy of the judgment was not produced. See State v. English, 132 Conn. 573, 581-82, 46 A.2d 121 (1946). The defendant, however, waived his right to object on that ground, because, at trial, he objected only on the basis of relevancy and undue prejudice. In fact, the defendant told the court that he did not contest his conviction for the murder in Virginia but objected only to the particular facts underlying it, because there was no evidence of those facts.

       “Let me take you back to August 8, 1974, to the Holiday Inn in Richmond, Virginia.. This accused is convicted of going into this room of a traveling salesman for Sperry Univac, beating him around the face and killing him and taking certain credit cards from him, leaving the room in total disarray, going out and getting caught with the credit cards. He has been convicted of that. Now, don’t you think there is some similarity to that murder and what he is charged with here today? He is in a Holiday Inn in Richmond, Virginia. Mr. Carter told the police he was at the Holiday Inn, knew nothing about the murder and nothing about the credit cards. Someone was brutally beaten and robbed.”

       In spite of the limiting instruction, the defendant also claims on appeal that the remarks of the prosecutor describing the murder so infected the fairness of his trial that a mistrial should have been granted. The trial court was justified in concluding that its curative instruction had rectified any prejudice that could have derived from the remarks and that a mistrial was not warranted. State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

       Although the defendant did file a request to charge on the statutory-definition of insanity, this cannot be viewed to preserve his appellate claim with respect to the nonrequested definitions because the court’s charge did conform to the defendant’s request by including the statutory standard on four occasions.

       This case cannot be considered to fall under the first exceptional circumstance of Evans of a newly discovered constitutional right not readily foreseeable at the time of trial. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Vars, 154 Conn. 255, 271-72, 22 A.2d 744 (1966).

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


author: Hammer, J.

text:
    State of Connecticut v. Larry Gates
    (11970)
    Healey, Dannehy, Santaniello, Callahan and Hammer, Js.

      Argued October 11, 1985
    decision released January 21, 1986

      Maxwell Herman, with whom, on the brief, was William J. Tracy, Jr., for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Robert Meyers, former assistant state’s attorney, for the appellee (state).
   Hammer, J.

On October 14, 1982, the defendant, Larry Gates, entered pleas of nolo contendere to indictments charging him with the murder of Elizabeth Hart, in violation of General Statutes § 53a-54a, and felony murder in connection with the death other infant son, Thomas Hart, in violation of General Statutes § 53a-54c. The court, Corrigan, J., ordered a presentence investigation and continued the case for sentencing. On January 25, 1983, three days prior to the sentencing hearing, the defendant filed a request for examination at the diagnostic unit of the Whiting Forensic Institute (Whiting) pursuant to General Statutes § 17-244.

On January 28, 1983, the date set by the court for the imposition of sentence, Dr. Walter A. Borden, a psychiatrist who had examined the defendant after his arrest on June 25,1980, and during his hospitalization at the Elmcrest Psychiatric Institute between July 1, 1980, and May 5, 1981, testified in support of the defendant’s motion for a diagnostic evaluation at Whiting. He stated that although the defendant was legally sane and therefore criminally responsible for his actions, he was mentally ill. It was his opinion that the defendant would be dangerous to himself or others in a prison setting and that he should be committed to Whiting for custody, care and treatment.

Borden, in response to questioning by the court, stated that the defendant had no history of assaultive behavior or violence apart from his involvement in the killings of Elizabeth and Thomas Hart. Judge Corrigan also questioned Borden about a previous psychiatric report in which he referred to the defendant’s history of drug and alcohol abuse and the fact that his consumption of drugs and alcohol on the day of the murders was a contributing factor.

The court denied the defendant’s request for a diagnostic examination on the ground that the defendant had failed to establish any history of assaultive conduct or violent behavior prior to his arrest or during his subsequent confinement at the correctional centers at Hartford and Cheshire. Judge Corrigan also noted that because drug abuse would not be a problem in confinement, there was no factual basis for Borden’s opinion as to dangerousness. The court then proceeded with the sentencing hearing over the defendant’s objection. After hearing the arguments of counsel, the court imposed sentences of twenty-five years to life on the murder charge and fifteen years to life on the charge of felony murder, to run consecutively, for a total effective sentence of forty years to life.

The defendant first claims that under General Statutes § 17-244 a finding of mental illness and dangerousness is required only where the court acts sua sponte. He contends that where the motion for an examination is made by the defendant, it must be granted by the court upon a “finding that such request is justified . . . .”

The state argues that the claim that the statute imposes a different and less stringent standard when the request is initiated by the defendant should not be reviewed because it was not presented to the trial court. Our examination of the transcript fails to disclose any intimation on the part of defense counsel of his present claim that the statute contains two separate and distinct standards. In the absence of exceptional circumstances involving either a recently discovered constitutional right or a showing that the defendant has been deprived of a fundamental constitutional right and a fair trial, claims which are raised for the first time on appeal will not be considered by this court. State v. Gethers, 197 Conn. 369, 395, 497 A.2d 408 (1985); State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

A person who has been convicted of a crime and who is subject to incarceration has no constitutional right to be committed to any particular institution and his confinement in any of the state’s facilities “is within the normal limits or range of custody which the conviction has authorized the State to impose.” Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 49 L. Ed. 2d 451, reh. denied, 429 U.S. 873, 97 S. Ct. 191, 50 L. Ed. 2d 155 (1976); see also State v. Davis, 190 Conn. 327, 337, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983). Although due process affords certain safeguards to a convicted defendant who may be subject to psychiatric treatment in a state hospital against his will, he does not have a constitutionally protected liberty interest in being committed to a state mental hospital merely because he believes that in-patient psychiatric treatment is appropriate to his needs. See Vitek v. Jones, 445 U.S. 480, 493-94, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980); State v. Davis, supra.

We find no basis in this record to consider the defendant’s newly raised statutory claim which was “never called to the attention of the trial court and upon which it necessarily could have made no ruling in the true sense of the v/ord . . . .” State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 (1966).

The second claim raised by the defendant is that the trial court abused its discretion by failing to order an examination based upon Borden’s opinion that the defendant had a propensity for violence and was potentially dangerous to himself or others. He argues that the court erred by rejecting the psychiatric testimony solely because it was not based on particular instances of assaultive conduct or violent behavior either before or after the commission of the crimes with which he was charged.

Predictions of future dangerousness are difficult for both psychiatrists and the courts to make because of the “inherent vagueness of the concept itself,” and such determinations must be dealt with by trial courts to a considerable extent on a case-by-case basis. State v. Cuvelier, 175 Conn. 100, 109 n.5, 394 A.2d 185 (1978). The confinement of a convicted defendant for psychiatric treatment on the basis of such predictions is not solely a medical judgment that he is mentally ill and treatable, but also involves social and legal determinations made by judges or juries “reflecting values generally held in the community, concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment.” Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972).

Whenever a judge imposes a sentence on a defendant convicted of a violent crime, he must necessarily make a prediction as to that person’s future conduct. See Jurek v. Texas, 428 U.S. 262, 275, 96 S. Ct. 2950, 49 L. Ed. 2d 929, reh. denied, 429 U.S. 875, 97 S. Ct. 198, 50 L. Ed. 2d 158 (1976). If the issue is whether a defendant is mentally ill so as to constitute a danger, his past history and conduct are relevant factors for the court to consider in predicting his future behavior. State v. Cuvelier, supra, 109. The accuracy of such predictions is much greater where there is a pattern of repetitive assault and violent conduct. See Barefoot v. Estelle, 463 U.S. 880, 902, 103 S. Ct. 3383, 77 L. Ed. 2d 1090, reh. denied, 464 U.S. 874, 104 S. Ct. 209, 78 L. Ed. 2d 185 (1983).

The court may also properly consider whether the defendant’s behavior will be less unpredictable and less dangerous in a more structured environment. See State v. Cuvelier, supra, 110. The concept of dangerousness to the safety of others must be viewed in the light of the realities of prison life which are radically different from conditions in the community at large. See Hewitt v. Helms, 459 U.S. 460, 474, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983).

The trial court’s decision to deny the defendant’s request for a diagnostic examination was based upon its conclusions that, apart from the crimes with which he was charged, the defendant had failed to establish either that he had any prior history of assaultive or violent conduct or that he would be dangerous to himself or others in a prison setting. From the facts found by the court, “it is clear that those conclusions are amply supported and do not violate law, logic or reason.” State v. Cuvelier, supra.

The defendant’s final claim is that the report of the diagnostic examination would have provided a valuable sentencing aid to the court. See State v. Davis, supra, 341. In the course of oral argument, the state asked that we examine the presentence investigation report, and we have done so. See Practice Book § 917.

The report contains a detailed summary of the defendant’s school records as well as the psychiatric evaluations made by Borden at the request of the defendant and by Dr. John Donnelly, at the request of the state. It also contains a review of the records of the Elmcrest Psychiatric Institute from July 1, 1980, until May 5, 1981. The report of Donnelly’s examination which was made on October 4, 1982, Borden’s report dated August 20, 1982, and the Elmcrest discharge summary are attached to the probation officer’s report.

A statute which provides for a court-ordered psychiatric examination for a defendant before the imposition of sentence presupposes that the court does not have access to sufficient medical information to permit it to make an informed judgment as to the defendant’s mental condition. Hall v. United States, 410 F.2d 653, 658 (4th Cir. 1969). Where the court has adequate psychiatric documentation of the defendant’s mental condition, there is no need for it to utilize the statutory provisions concerning further examinations. Id. The presence of some degree of mental illness does not prevent or avoid the imposition of sentence by the court nor does it necessarily require that the court “blindly and automatically implement the statutory machinery” providing for psychiatric examinations. Id., 657.

Furthermore, the fact that an accused who has pleaded guilty may be in need of psychiatric treatment does not thereby entitle him to hospitalization rather than imprisonment. Lynch v. Overholser, 369 U.S. 705, 717-18, 82 S. Ct. 1063, 8 L. Ed. 2d 211 (1962). The purpose of statutes which permit transfers of mentally ill inmates from penal institutions to hospitals is to provide such treatment for those who are found to be in need of it after sentencing. Id., 718; see General Statutes §§ 17-194c through 17-194e and 17-194g.

Our review of the record in this case establishes that the court’s refusal to grant the defendant’s request for a diagnostic examination prior to sentencing was not an abuse of its discretion.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 17-244 provides: “(a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction. Such examination shall be conducted and the report made to the court not later than fifteen days after the order for the examination. Such examination may be conducted at a correctional facility if the defendant is confined or it may be conducted on an outpatient basis at the institute or other appropriate location. If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the institute for a period not to exceed sixty days, except as provided in section 17-245 provided the hearing may be waived by the defendant. Such commitment shall not be effective until the director certifies to the court that space is available at the diagnostic unit. While confined in said diagnostic unit, the defendant shall be given a complete physical and psychiatric examination by the staff of the unit and may receive medication and treatment without his consent. The director shall have authority to procure all court records, institutional records and probation or other reports which provide information about the defendant.
      “(b) The request for such examination may be made by the state’s attorney or assistant state’s attorney who prosecuted the defendant for an offense specified in this section, or by the defendant or his attorney in his behalf. If the court orders such examination, a copy of the examination order shall be served upon the defendant to be examined.
      “(c) Upon completion of the physical and psychiatric examination of the defendant, but not later than sixty days after admission to the diagnostic unit, a written report of the results thereof shall be filed in triplicate with the clerk of the court before which he was convicted, and such clerk shall cause copies to be delivered to the state’s attorney and to counsel for the defendant.
      “(d) Such report shall include the following: (1) A description of the nature of the examination; (2) a diagnosis of the mental condition of the defendant; (3) an opinion as to whether the diagnosis and prognosis demonstrate clearly that the defendant is actually dangerous to himself or others and requires custody, care and treatment at the institute; and (4) a recommendation as to whether the defendant should be sentenced in accordance with the conviction, sentenced in accordance with the conviction and confined in the institute for custody, care and treatment, placed on probation by the court or placed on probation by the court with the requirement, as a condition to probation, that he receive outpatient psychiatric treatment.”


author: Kline, J.

text:
    State of Connecticut v. William B. Schroff III
    (12358)
    Peters, C. J., Shea, Dannehy, Santaniello and Kline, Js.

      Argued October 2, 1985
    decision released January 21, 1986

      Bruce A. Sturman, public defender, for the appellant (defendant).

      Guy W. Wolf III, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Kline, J.

After a jury trial, the defendant, William B. Sehroff III, was convicted of the crimes of kidnapping in the first degree, in violation of General Statutes 53a-92 (a) (2) (A), sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), assault in the second degree, in violation of General Statutes § 53a-60 (a) (2), and of six counts of theft of a firearm, in violation of General Statutes § 53a-212 (a). The defendant was given a total effective sentence of fifty years on all counts.

From this judgment the defendant has appealed claiming that the court erred (1) by abusing its discretion in denying the defendant’s motion to sever the six counts of theft of a firearm from the sexual assault, kidnapping and assault charges, and (2) in allowing the state’s attorney to cross-examine the defendant about the firearms, when this subject was allegedly outside the scope of direct examination.

The jury could reasonably have found the following facts: On August 8, 1982, between 1:30 and 2 a.m., the victim left her home to walk to her friend’s home approximately two miles away. The victim was observed proceeding easterly on the Boston Post Road by Kenneth Smith of the Milford police department. The officer, concerned for the young woman’s safety, drove down the road to an area where he could make a U-turn. Meanwhile, the operator, later identified as the defendant, of a white van proceeding easterly stopped to ask the victim if she wanted a ride, which she declined. The van proceeded over the crest of a hill and disappeared. As the victim continued to walk along the roadside, the defendant jumped out of the bushes, hit the victim on the left side of her head and pulled her over a guardrail into the bushes. She tried to escape but was subdued, and a knife was produced. The victim was told to remain silent as there were police in the area.

Meanwhile, Smith discovered the van, examined it, and found no one inside. A radio check revealed that the van was registered to the defendant. After his investigation, he radioed the van’s position to a brother officer at 2:15 a.m., but when he returned at 3:15 a.m., the van was gone.

During this time lapse, the defendant and the victim made their way to the white van, which the victim recognized as the one which had stopped earlier. The victim had ample opportunity to observe her assailant and the interior of the van while he transported her some distance away from where the van had been parked. The defendant eventually parked and forced the victim to drink some wine and ingest some pills. At this point the defendant made her undress and sexually assaulted her. Afterwards, he put thumbcuffs on the victim’s and his forefinger and lay down to sleep. Finding the position uncomfortable, he removed the thumbcuffs and went to sleep. After waiting a period of time, the victim was able to dress herself and escape, taking the keys to the vehicle with her. The incident was ultimately reported to the police and the defendant was arrested in the van at the place where the victim had escaped.

The van was searched pursuant to a warrant. Among the many items found were six .22 calibre rifles that had been taken from a Boy Scout camp in New Hartford in August of 1982.

I

The defendant made a number of motions prior to trial. The only one which has become an issue in this appeal is his motion to sever the six gun charges from the other charges. The defendant’s position was that he wanted to testify as to the sexual assault and kidnapping charges but that he did not want to take the stand relative to the firearms charges. The court denied the motion on two different occasions.

“The question of severance is within the sound discretion of the trial court and that discretion must not be disturbed unless it has been manifestly abused. State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976). ‘The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less than advantageous to the defendant.’ State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952). ‘[A]n accused bears a heavy burden to show that the denial of severance resulted in substantial injustice because of a manifest abuse of discretion in denying severance.’ State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982).” State v. Rodgers, 198 Conn. 53, 63, 502 A.2d 360 (1985).

Economy and expedition of judicial administration were of paramount importance in the instant case. The arrest on the firearms charges occurred as a direct result of the investigation of the other charges. If a second trial were to be had on the firearms charges alone, much of the evidence relative to the first three counts might have to be introduced to explain the officer’s basis for searching the vehicle and discovering the firearms. Economy and expedition of judicial resources are not achieved when the same facts must be proved to two different juries.

We have recently approved of the analysis employed by the Court of Appeals for the District of Columbia in Baker v. United States, 401 F.2d 958, 977 (D.C. Cir. 1968), cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970). Baker held that “no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other—to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of ‘economy and expedition in judicial administration’ against the defendant’s interest in having a free choice with respect to testifying.” Id.; see also Blunt v. United States, 404 F.2d 1283, 1289 (D.C. Cir. 1968); State v. Rodgers, supra, 65; State v. King, supra.

In the present matter, although the defendant did declare that he wanted to testify with respect to the first three counts but not on the firearms counts, he at no time disclosed the substance of his expected testimony, and he demonstrated no reason for his not wanting to testify on the other counts. In effect, this deprived the court of the ability to make a decision that any claim of prejudice was genuine.

The defendant’s complete failure to substantiate his claim of prejudice falls far short of the “convincing showing” required by our cases. State v. Rodgers, supra; State v. King, supra. The defendant has failed to sustain his heavy burden of showing that the denial resulted in a substantial injustice or prejudice. We cannot find an abuse of discretion in the trial court’s denial of the defendant’s motion to sever.

II

The other issue raised by the defendant is whether the court was correct in allowing cross-examination concerning the rifles found in the defendant’s van.

The defense counsel asked the defendant the following question on direct examination: “You have seen numerous articles that have been introduced into evidence. Do you recognize them?” This question was asked after the state had presented its case-in-chief. There had been introduced as a state’s exhibit a black metal box containing the six disassembled .22 calibre rifles. These had been identified as stolen from a Boy Scout camp. In answer to his counsel’s question, the defendant replied: “Specific articles that I had in the van at the time.” Counsel then asked: “Why did you have these articles in the van?” The defendant replied: “At the time I was living in the van because I was staying with my friend and his brother or somebody was coming down from Vermont, moving in. I got booted out the door and two days before I was arrested. I was moving to British Columbia, Canada permanently, as everything I owned was in the van, every bit of my belongings.”

The defense counsel then went on to inquire about the thumbcuffs. Counsel made no further reference to the rifles, since, as he had indicated in his motion to sever, his client did not want to testify about the rifles.

On cross-examination, the state’s attorney inquired about the rifles found in the van. The defense counsel objected on the ground that the question was beyond the scope of the direct examination. Initially, the trial court sustained the objection, then reversed itself and allowed the inquiry about the rifles.

“[I]t is settled Connecticut law that inquiry upon cross-examination is limited by the scope of the direct examination .... [T]hat scope is determined by all of the evidence offered during direct examination.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 525, 457 A.2d 656 (1983); State v. Ouellette, 190 Conn. 84, 102, 459 A.2d 1005 (1983); State v. Moye, 177 Conn. 487, 507, 418 A.2d 870, vacated, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979); State v. Zdanis, 173 Conn. 189, 195, 377 A.2d 275 (1977); State v. Hall, 165 Conn. 599, 607, 345 A.2d 17 (1973); State v. Evans, 165 Conn. 61, 64, 327 A.2d 576 (1973).

The trial court is, however, allowed a great deal of discretion in fixing the limits of cross-examination. State v. Amaral, 179 Conn. 239, 244, 425 A.2d 1293 (1979); State v. Croom, 166 Conn. 226, 231, 348 A.2d 556 (1974). This is abroad, general rule and ordinarily it does not present any difficulty to the courts.

In this case, once counsel for the defendant asked about the articles in the van, he opened the door to questions relative to those articles, including the rifles. The cross-examination went to the very heart of the trial, especially when considered in light of the defendant’s motion to sever. The cross-examination by the state’s attorney delved into those areas on which the defendant had no desire to testify. It is the cross-examination of this defendant that brings into focus the ultimate question: do different rules concerning cross-examination of witnesses apply to the defendant in a criminal case who is testifying than apply to other parties or witnesses to a matter in litigation. In this instance we think not.

While an accused has the right not to take the witness stand, if he does take the stand and testifies in his own behalf, he may be cross-examined and impeached as any other witness. Brown v. United States, 356 U.S. 148, 154-55, 78 S. Ct. 622, 2 L. Ed. 2d 589, reh. denied, 356 U.S. 948, 78 S. Ct. 776, 2 L. Ed. 2d 822 (1958). Subject to a few exceptions, the same rules of evidence apply in criminal cases as in civil cases. State v. Parker, 112 Conn. 39, 54, 151 A. 325 (1930). The most notable exceptions are the exclusionary rules prohibiting the use of evidence obtained in violation of the accused’s constitutional rights. Tait & LaPlante, Conn. Evidence § 1.2 (b), p. 3. Those exceptions do not apply in this case. The defendant, when he took the stand, knew that he would be subjected to cross-examination. “While proper cross-examination must be related to the subject matter of direct examination . . . the trial court is allowed a liberal discretion in fixing its limits.” Akers v. Singer, 158 Conn. 29, 36, 255 A.2d 858 (1969). “[T]he scope [of cross-examination] is to be measured by the subject matter of the direct examination rather than by specific exhibits which are introduced . . . .” United States v. Segal, 534 F.2d 578, 582 (3d Cir. 1976). The question on direct examination dealt in general terms with the contents of the van and was followed by a question which explained why the articles were in the van. Once the contents became the subject matter of questions on direct examination, it was proper to cross-examine the defendant as to the contents. His response on direct that “everything I own was in the van, every bit of my belongings” implied, though ambiguously, that he owned the rifles found in the van. The state was entitled to inquire about the basis for his ambiguous claim of ownership.

Since the court allowed the cross-examination, it must be determined if there was an abuse of discretion. “It goes without saying that the term ‘abuse of discretion’ does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds.” State v. McCarthy, 130 Conn. 101, 105, 31 A.2d 921 (1943); Norris v. Clinkscales, 47 S.C. 488, 499, 25 S.E. 797 (1896). “In determining whether there has been an abuse of discretion, much depends upon the circumstances of each case.” DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971); Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959); Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338 (1957).

Considering the totality of the circumstances in this case, we cannot find that there was an abuse of discretion on the part of the trial court in allowing the cross-examination by the state.

There is no error.

In this opinion the other judges concurred.