author: Arthur H. Healey, J.

text:
    State of Connecticut v. Ronald J. Milum
    (11251)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued October 3
    decision released November 19, 1985

      William F. Dow III, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were ArnoldMarkle, state’s attorney, and Robert J. Devlin, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Ronald J. Milum, was convicted by a jury of the crimes of assault in the second degree; General Statutes § 53a-60; and unlawful restraint in the second degree. General Statutes § 53a-96. On appeal, the defendant claims that the trial court erred in: (1) denying the defendant the right to cross-examine the complaining witness to show bias, motive, prejudice and interest arising out of her having instituted a civil action against him for money damages based on the same circumstances as the present crimes and arising out of the fact that she had sought $25,000 in exchange for her recommendation of a suspended sentence for him; (2) refusing to strike the complaining witness’ testimony because the police had erased and reused the tape recording of her original statement that allegedly contradicted her trial testimony; (3) refusing to strike the complaining witness’ testimony that she suffered emotional trauma as a result of the incident involved in these criminal charges; and (4) denying the defendant’s objection to further proceedings which was based on General Statutes (Rev. to 1981) § 54-142a (c). We find error and order a new trial.

The jury could reasonably have found the following facts: The complaining witness met the defendant in 1976 when she was fifteen and the defendant was thirty-three years of age. A relationship developed between them and they lived together at various locations in the New Haven area. At a party given by the defendant on December 22, 1978, he announced his engagement to the complaining witness and he gave her a ring. The engagement was terminated on February 9, 1979. The complaining witness stated that she had broken off the engagement with the defendant on February 9,1979, but she did not return the ring. The defendant testified that he had terminated the relationship because the complaining witness had become more involved with drugs and alcohol than he could accept.

On Saturday, February 10, 1979, and into the early morning hours of Sunday, February 11, the complaining witness was with a male companion. She admitted using both alcohol and marijuana during that evening with a male companion. When the male companion drove the complaining witness to her mother’s home in Hamden at approximately 2:30 a.m., the defendant was sitting in his truck in front of the house. The defendant approached the car and opened the passenger’s door. The complaining witness either fell to the ground or the defendant pulled her from the car. The defendant broke the passenger side window of the car and punched the driver who then immediately drove away. The defendant then walked or partly dragged the complaining witness to his truck and drove her to a secluded dirt road in Hamden. During the drive from her mother’s house to the dirt road, and while stopped on this road, the victim was cut by a beer bottle wielded by the defendant as she attempted to shield her face with her hands. The principal injuries she sustained were lacerations to her head and mouth, a broken finger in her left hand, and puncture wounds, bruises and abrasions on her body.

The defendant thereafter drove her to his father’s house in Hamden, where she fell asleep. When she awoke around 7 a.m., she removed her blood-stained shirt and was given a clean shirt to wear. The defendant’s father then drove her to her mother’s house, where the police were called. She was taken to St. Raphael’s Hospital where she received medical treatment. The defendant was arrested that afternoon. Hamden Detective Gerald Benway took a tape recorded statement from the complaining witness on February 12, 1979.

The defendant first claims that the trial court erred in denying him the right to cross-examine the complaining witness concerning the civil action for damages which she had instituted against him on the basis of the circumstances giving rise to the criminal charges for which he was on trial. This claim of error also includes the denial of cross-examination on his contention that she demanded $25,000 from him in exchange for “her recommendation” of a suspended sentence. He argued in the trial court that he was relying on his sixth amendment right to confrontation and his due process rights under the fifth amendment in his claims concerning the cross-examination into the pending civil action and the complaining witness’ demand for $25,000. The defendant has not, however, briefed any due process claim on this appeal and we only address his sixth amendment claim. See Hayes v. Smith, 194 Conn. 52, 66, 480 A.2d 425 (1984). Contending that he was entitled to cross-examine her on the ground of bias, motive, interest, and state of mind, the state countered that such evidence was irrelevant and collateral and also involved an offer to compromise. In addition, he claims that this was a “complete denial” of cross-examination and not a mere limitation on its extent as the state argues. Maintaining that such evidence was clearly relevant on the grounds claimed, he further argues that prejudice need not be shown because credibility was the critical issue. The state urges that the trial court “properly limited” this attempt to cross-examine into “her attorney’s efforts to settle a pending civil litigation” because it was inadmissible as an offer to compromise. In addition, the state claims that the defendant effectively utilized the “ample opportunity” afforded him for impeachment. In any event, the state claims that the trial court’s ruling was not erroneous and harmful because even if the desired cross-examination had been allowed, it could not have affected the verdict. We find error.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution ‘to confront the witnesses against him . . . . ’ Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).” State v. Lubesky, 195 Conn. 475, 481, 488 A.2d 1239 (1985). The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982). “ ‘Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.’ Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982); see State w. Luzzi, 147 Conn. 40, 47, 156 A.2d 505 (1959). ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. ’ Davis v. Alaska, supra, 315-16, quoting 5 Wigmore, Evidence (3d Ed. 1940) § 1395, p. 123. The denial or undue restrictions of the right can at times constitute constitutional error. Davis v. Alaska, supra, 318; State v. Haskins, 188 Conn. 432, 454, 450 A.2d 828 (1982).” State v. Ouellette, 190 Conn. 84, 101, 459 A.2d 1005 (1983). “ ‘To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).’ State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).” State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985); see State v. Ouellette, supra.

In State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), we quoted with approval from State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980): “The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.” (Citations omitted.) We need not address the threshold question in this case, however, because the trial court did not allow any cross-examination into the witness’ possible motive and interest. Cross-examination regarding motive, bias, interest and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, supra, 482; State v. Shindell, supra; State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979); State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959).

The matters sought to be probed by the defendant’s proposed cross-examination were clearly relevant. Moreover, it would have made available to the jury significant information to aid in assessing the bias, motive, interest and prejudice of the victim for testifying as she did. See Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir. 1977), cert. denied, 435 U.S. 1009, 98 S. Ct. 1883, 56 L. Ed. 2d 392 (1978); United States v. Turcotte, 515 F.2d 145, 151 (2d Cir.), cert. denied sub nom. Gerry v. United States, 423 U.S. 1032, 96 S. Ct. 564, 46 L. Ed. 2d 406 (1975). In this context, the Eighth Circuit has said that “ ‘[e]vidence tending to show a substantial reason for bias or interest in an important witness is never collateral or irrelevant. It may be . . . the very key to an intelligent appraisal of the testimony of the [witness].’ Barnard v. United States, 342 F.2d 309, 317 (9th Cir. 1965).” United States v. Peltier, 585 F.2d 314, 332 (8th Cir. 1978), cert. denied, 440 U.S. 945, 99 S. Ct. 1422, 59 L. Ed. 2d 634 (1979); see Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); see also 3A Wigmore, Evidence (Chadbourn Rev. 1970) § 940, pp. 775-76. The Second Circuit has put it this way: “Special treatment is accorded evidence which is probative of a special motive to lie 'for if believed it colors every bit of testimony given by the witness whose motives are bared.’ United States v. Blackwood, 456 F.2d 526, 530 (2d Cir. 1972).” United States v. Harvey, 547 F.2d 720, 722 (2d Cir. 1976).

“[A]s a general rule cross-examination of the prosecuting witness should be allowed to show the pendency, existence and status of civil action against the accused arising out of the same set of circumstances as those which served as the basis for the criminal prosecution. Anno. 21 A.L.R.2d 1078, 1079 (1952) [superseded by 98 A.L.R.3d 1060] . . . . ” State v. Delucia, 40 Or. App. 711, 596 P.2d 585, 587 (1979); see 81 Am. Jur. 2d, Witnesses §§ 551-553. This is not to say the refusal to admit such evidence has not been held, in the proper circumstances, to be harmless error. See, e.g., 98 A.L.R.3d 1060, 1069, and (Sup. 1985) pp. 61, 62.

Other courts have also found it to be error where evidence of matters akin to the claim in this case was denied admission. In Villaroman v. United States, 184 F.2d 261 (D.C. Cir. 1950), the appellate court found prejudicial and reversible error where the trial court refused to permit cross-examination of the complaining witness in a criminal prosecution for assault with a dangerous weapon where that witness had a pending suit against the defendant for $50,000 for injuries from the alleged assault. The Villaroman court said: “Bias of a witness is always relevant.” Id., 262; see Wynn v. United States, 397 F.2d 621, 623 (D.C. Cir. 1967). The Oklahoma Court of Criminal Appeals has held that it was error to bar defense counsel from cross-examining the complaining witness in an assault and battery case as to whether he had sought damages against the defendant in a lawsuit arising out of the same circumstances as the criminal charges. Williams v. Tulsa, 623 P.2d 1037 (Okla. Crim. App. 1981). In a criminal case charging burglary, aggravated assault, criminal mischief and battery, the Arkansas Supreme Court held admissible, as bearing on the extent of bias of one victim, evidence that that victim had filed a civil suit against the defendant arising out of the fracas involved in the criminal charges. In so holding, the court said: “ ‘Pecuniary interest, personal affection or hostility, a quarrel or prejudice may always be shown to discredit a witness.’ ” Hawksley v. State, 276 Ark. 504, 510, 637 S.W.2d 573 (1982).

Where the defendant was charged with attempted murder and the trial court excluded evidence that the state’s principal witness had instituted a civil suit against the defendant, her former live-in boyfriend, for damages she claimed arose out of the facts of the crime charged, the Supreme Judicial Court of Maine held such exclusion was prejudicial error. State v. Whitman, 429 A.2d 203, 206 (Me. 1981). In Whitman, the court, after observing that the pending suit “could . . . have given [the state’s principal witness] a reason to falsify or exaggerate in her testimony at trial,” said: “A pending civil suit, or even a contemplated suit, arising out of the same incident that gave rise to the criminal charges is almost always relevant to the credibility of a prosecuting witness because it gives her a financial interest in the outcome of the criminal prosecution. Such evidence has great probative value because it shows that the state’s prosecuting witness ‘may have been actuated by personal considerations instead of altruistic interest generated solely from motives in the public interest to bring a criminal to justice.’ State v. Doughty, Me., 399 A.2d 1319, 1324 (1979).” State v. Whitman, supra, 205. Whitman is also instructive on the state’s further claim in this case that the defendant, Milum, was provided ample opportunity to impeach and made effective use of that opportunity and that the exclusion of this evidence would not have affected the verdict. In Whitman, the state argued that the evidence was properly excluded because testimony from the state’s principal witness and the defendant had already produced “ample evidence of the hostility and antagonism between them, so that further evidence would be merely cumulative and time-wasting.” Id. In rejecting this argument, the Whitman court pointed out that none of the other evidence showed that the state’s principal witness “had a specific, independent financial interest in the outcome of the prosecution” and that “[e]ven beyond the personal animosity that would make [her] interests adverse to those of the defendant, her civil damage suit gave her an additional pecuniary motivation for bias against the defendant and hostility to his case.” Id. The state, in the case before us, likewise does not point to any such evidence before the jury that would fairly suggest any predicate to show the claimed bias or interest.

The state also claims that the offer of evidence concerning the written note embodying the alleged “agreement” of nonharassment and payment to the state’s principal witness of the sum of $25,000 was properly excluded as an offer of compromise (“her attorney’s efforts to settle a pending civil litigation”). An element of this “agreement” was said to be that if the defendant pleaded to second degree assault, the complaining witness would “recommend” that he not be incarcerated. In this jurisdiction, it has been “established as long ago as 1822, in Hartford Bridge Co. v. Granger, 4 Conn. 142, 148 [1822], that an offer to compromise or settle a disputed claim is not admissible against the offeror.” Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 517, 391 A.2d 157 (1978). Even assuming, arguendo, that the note in question was in the nature of an offer to compromise, “[t]he policy of protecting offers of compromise in civil cases does not extend to efforts to stifle criminal prosecution by ‘buying off’ the prosecuting witness or victim.” McCormick, Evidence (3d Ed. 1984) § 274, p. 813. Significantly, the state in this case informed the trial court that the defendant had rejected before trial its offer to let him “plead guilty to a lesser charge under certain circumstances.” This evidence, which the defendant is apparently willing to have placed before the jury for its assessment; see State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978); clearly goes to the issue of the claimed bias and interest. We are aware that some cases make a distinction in criminal proceedings “between a compromise clearly limited to civil liability for the criminal offense, and one that is directed to the criminal liability therefor.” Carter v. State, 161 Tenn. 698, 702, 34 S.W.2d 208 (1931). Even conceding the validity of this distinction, we believe that the circumstances may properly be developed at the new trial we order so that the finder of fact can determine what is, and was, in the minds of the parties involved at relevant times.

Furthermore, we cannot accept the state's claim that the excluded evidence “would not have affected the verdict.” The state asserts that the testimony of the defendant and that of the victim were “substantially similar” and, therefore, that the inclusion “of the desired cross-examination could not have affected the jury’s verdict.” A fair view of their testimony does not support the “substantially similar” assertion as it appears that each claimed the other was the “initial aggressor” and the defendant maintained that he acted in self-defense. It also appears from the transcript that the jury had some difficulty in arriving at its verdict, sending in at least four questions to the court upon which instructions were given. A poll of the jury after it was first reported that a verdict had been reached demonstrated that the reported verdict was not unanimous. This poll resulted in the jury being returned for further deliberations. It is also important to point out that the verdict which was finally accepted was one of guilty of the lesser included crimes of assault in the second degree and of unlawful restraint in the second degree and not guilty of the crime of unlawful discharge of firearms. Therefore, the state’s claim that the verdict would not have been affected had the proffered cross-examination been allowed is hardly persuasive under the circumstances. The denial of this cross-examination was of constitutional dimension and the prejudice that is apparent from its denial requires that we remand this case for a new trial.

Although our disposition of the issue of the denial of cross-examination is dispositive of this appeal, we will address two other claims of the defendant which may recur at the new trial.

First, the defendant claims that the trial court erred in refusing to strike the testimony of the complaining witness when the state could not turn over to his counsel the tape recorded statement that she had given to the Hamden police. The motion to strike was made after she denied in her trial testimony making certain statements to the police and claimed that the typewritten transcription of that tape recording might be incorrect in certain respects. This issue swirls around her claim that she terminated the relationship with the defendant and his claim that he broke up with her. Although the state had given the defense a copy of her statement which she had signed as being the transcription of her tape recorded statement, the defendant argued that he was entitled to the tape recording itself under Practice Book §§ 749 (2) and 755. He argued that this was crucial because her trial testimony concerning who terminated their relationship called into question the accuracy of the written transcription of that tape recording. The state pointed out that that tape “was reused in the normal course of business of the Hamden Police Department . . . . ” The defendant claims that the “destruction” of the tape itself severely prejudiced him in effectively cross-examining her on the alleged prior inconsistent statement. This claimed inconsistency was so closely tied into his claim that damaging her credibility here would weaken her portrait of him as the rejected party who returned that night enraged and used force on her to require her to come back to him. The state contends not only that defense counsel did have the written transcription which was accurate, but also that the tape itself would be merely cumulative because he was able to probe the alleged inconsistency in his cross-examination of Detective Gerald Benway, who took the tape recording and who typed up his report after the tape recording. We find no error in this ruling.

“Since access to the statements of witnesses for the prosecuting authority is not a constitutional right; United States v. Augenblick, 393 U.S. 348, 356, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969), on remand, 509 F.2d 1157 (Ct. Cl.), cert. denied, 422 U.S. 1007, 95 S. Ct. 2628, 45 L. Ed. 2d 669 (1975); State v. Pikul, 150 Conn. 195, 202, 187 A.2d 442 (1962); the burden of showing prejudice rests on the defense. ...” (Citations omitted.) State v. Myers, 193 Conn. 457, 469 n.7, 479 A.2d 199 (1984); see State v. Gonzales, 186 Conn. 426, 436 n.8, 441 A.2d 852 (1982); State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980). The tape recording in this case was no longer in existence at the time of trial but had been “erased and put into service” according to the testimony of the Hamden police officer who also answered “Yes, sir” to the question: “And that is similarly true of any tape recorded statement taken from a complainant, correct?” We repeat, if indeed they need to be repeated, the concerns over such a routine practice that we set forth in Myers, another serious felony case. State v. Myers, supra, 466-68. We agree with the reasoning of the federal courts interpreting the Jencks Act; 18 U.S.C. § 355; after which our Practice Book §§ 748 through 755 are modeled, when they say that “a course of conduct is not necessarily reasonable merely because it is routine. ...” United States v. Carrasco, 537 F.2d 372, 376 (9th Cir. 1976); see State v. Myers, supra, 468, and cases cited therein.

In determining whether the requested sanction of striking the complaining witness’ testimony should have been granted, our recent cases are instructive. In Myers, we quoted with approval from State v. Shaw, 185 Conn. 372, 386, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982), where we explained that “ ‘ “[wjhether or not sanctions for non-disclosure should be imposed depends in large measure upon the extent of the Government’s culpability for failure to make disclosable material available to the defense, on the one hand, weighed against the amount of prejudice to the defense which resulted, on the other.” ’ ” State v. Myers, supra, 467. Initially, we note that while the inability to produce this tape recording, which was made within twenty-four hours of the incident in question, was caused by its nonexistence because of the routine practice referred to, the defendant is not pressing any claim of bad faith against the state or the police. The police in fact caused a typewritten copy of the recording to be made which the complaining witness said she read and signed. There was no such transcript in Myers. The testimony of Detective Benway in fact corroborated the defendant’s testimony and his theory of who broke off the relationship between him and the complaining witness. There was no such corroborative circumstance in Myers. Again, unlike the defendant in Myers, this defendant had the opportunity to confront the complaining witness with the detective’s testimony to attack her credibility on this very issue. Such testimony, available, and in fact presented, through a completely independent witness, placed before the jury evidence of probative value different from that of the alleged assailant on the one hand and his alleged victim on the other. In the circumstances of this case, we cannot say that there is any prejudicial inaccessibility to disclosable matter that requires us to find that the trial court erred in refusing to strike the testimony.

The defendant also claims that the trial court erred in refusing to strike the complaining witness’ testimony that she had experienced emotional trauma as a result of this incident. The defendant was tried before the jury on, inter alia, one count of assault in the first degree with a dangerous weapon under General Statutes § 53a-59 (a) (1). That statute states in part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury . . . . ” “Serious physical injury” is defined by General Statutes § 53a-3 (4) as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” (Emphasis added.) “Physical injury,” in turn, is defined by General Statutes § 53a-3 (3) as “impairment of physical condition or pain . . . .” (Emphasis added.) Pain is “[m]ental suffering or distress”; 3 Schmidt, Attorneys’ Dictionary of Medicine (1985) p. P-4; as opposed to “physical” injury which “relates to the body, as distinguished from the.mind.” Stedman’s Medical Dictionary (5th Lawyers’ Ed. 1982) p. 1083. In the context of these statutes, i.e., §§ 53a-59 (a) (1), 53a-3 (3) and (4), the disjunctive “pain” as an alternative type of “physical injury” under § 53a-3 (4) does not, therefore, fall within the meaning of “serious physical injury.” Such a construction not only carries out the legislative intent giving meaning to every word in a statute; see, e.g., State v. Burney, 189 Conn. 321, 327, 455 A.2d 1335 (1983); but also recognizes that “ ‘ “penal statutes . . . are to be strictly construed to protect the fundamental constitutional right to liberty.” ’ State v. Shockley, 188 Conn. 697, 714, 453 A.2d 441 (1982) (Speziale, C. J., concurring).” State v. Belton, 190 Conn. 496, 505, 461 A.2d 973 (1983). We have acknowledged that, where the evidence of physical injury “consisted primarily of testimony relating to emotional trauma precipitated by the [criminal] incident,” that evidence “was simply not sufficient to support the jury’s implicit conclusion that the physical injury sustained by [the complaining witness] was ‘serious’ under the statutory definition.” State v. Rossier, 175 Conn. 204, 207-208, 397 A.2d 110 (1978).

As emotional trauma does not satisfy the statutory definition of “serious physical injury,” our next inquiry must focus on whether the admission of such evidence, while error, was harmful. The state introduced evidence of the emotional effect of the incident on the victim through her testimony that she was frightened and fearful and had trouble sleeping. We recognize that incidents of this nature could have an effect on the emotional well-being of a victim. Nevertheless, evidence of emotional trauma is not relevant to the crime of assault in the first degree with which the defendant was charged in this case. There was, however, sufficient evidence of physical injury to submit to and for the trier of fact to determine whether such injury fell within the ambit of assault in the first degree. The testimony by the complaining witness sought to be stricken was in answer to one question at the end of the direct examination. The defendant did not object to this testimony at that time, but rather on the next trial day when he moved that it be struck. The defendant apparently did not consider such testimony to be so obviously prejudicial at the time it was given as to merit an immediate objection. Nor do we find such testimony to rise to such a level of prejudice as to constitute reversible error.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant was tried by a jury under an amended substitute information that charged him with assault in the first degree in violation of General Statutes (Rev. to 1979) § 53a-59 (a), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and unlawful discharge of a firearm in violation of General Statutes § 53-203. The trial jury, however, found him guilty of the lesser included offenses of assault in the second degree in violation of General Statutes (Rev. to 1983) § 53a-60 and unlawful restraint in the second degree in violation of § 53a-96 and not guilty of the unlawful discharge of a firearm in violation of General Statutes § 53-203. After both parties had rested but prior to the submission of the case to the jury, the trial court granted the defendant’s motion for judgment of acquittal as to a fourth count which had charged possession of a rifle in a motor vehicle in violation of General Statutes § 53-205.

       In this claim, the defendant contends that the trial court erred in denying his objection to any further proceedings in this matter, arguing that under General Statutes (Rev. to 1981) § 54-142a (c) the case had been dismissed as a matter of law because it had been continued for a period of thirteen months without prosecution or other disposition and that an additional period of more than thirteen months had transpired before it was “called” to trial. The trial court’s ruling was not erroneous. Section 54-142a (c) then provided in relevant part: “Whenever any charge in a criminal case has been continued in the superior court or the court of common pleas, and a period of thirteen months has elapsed since the granting of such continuance during which period there has been no prosecution or other disposition of the matter, the charge shall be construed to have been nolled as of the date of termination of such thirteen-month period . . . . ” The relevant language in the statute is the phrase “since the granting of such continuance.” In the present case, no such continuance was sought by either the defense or the state. The defendant’s case was also not “dormant” for thirteen months or more. On the contrary, the defendant acknowledges that the case was consistently placed on the trial lists issued in December, 1979, in April, 1980, in July, 1980, and in June, 1981. “The statute appears to be directed not to a situation such as this, but to circumstances in which the state obtains an initial continuance and then completely ignores the case for thirteen months.” State v. Troynack, 174 Conn. 89, 95, 384 A.2d 326 (1977). In State v. McCarthy, 179 Conn. 1, 12, 425 A.2d 924 (1979), we sustained the trial court’s denial of a nolle under the precursor to General Statutes § 54-142a (c), and in doing so we noted that “[a]Iso, the defendant’s case was on the trial list several times during this thirteen-month period.”

       At trial, the defendant’s attorney argued: “[EJssentially, the position of the complainant and her attorney, as I understood it, was that they would stand before the Court or recommend to the Court that my client not be incarcerated if he should plead to a second degree assault on the condition that he would never, in any manner, attempt to contact or intimidate or harass the complainant and, additionally, that he would agree to pay the complainant ten thousand dollars within thirty days and fifteen thousand dollars within one year from the date by a performance bond or some other surety for guaranteed payment.”
      During a long colloquy between the court, the state, and the defendant’s attorney, as well as the attorney for the complaining witness, the state acknowledged that it had handed to defense counsel the written note embodying what the defendant’s counsel had just represented as his understanding. Defense counsel told the court that, in his view, the written note was no't an offer by the state to him but that the assistant state’s attorney “was acting, essentially, as a currier [sic] of a document . . . .’’This note apparently had come about as the result of the complaining witness’ being asked, according to the statement of her attorney, “whether she would consider allowing the defendant to plead to a lesser offense; namely, assault 2 and she was asked whether some element of restitution could be discussed in connection with that possible reduction of plea . . .” and “we were told that restitution was sometimes discussed and we were asked to make some kind of a proposal, and that is what [defense counsel] is talking about. But at no time did we have any discussion with the defendant or his attorney and we understood ourselves to be acting solely under the State’s Attorney — the Assistant State’s Attorney’s advice and direction.” During this colloquy, the state informed the court that, prior to trial, the defendant had rejected the state’s offer that “he could plead guilty to a lesser charge under certain circumstances . . . .”

       The defendant persisted in his claim even though the state also said that “just based on information and belief . . . there has already been a default judgment rendered against the defendant in that case, so that the question of damages is still an open question, but to some extent that is a closed question, at least at this stage in that case.”

       The record is not clear that a default had in fact been entered against the defendant in the pending civil action. Whether one had or not would not, however, cause us to dispose of this issue of the denial of cross-examination other than as we have.

       Focally, this issue arose out of the following on cross-examination: “Q. [By Mr. Dow] Is what you’re saying that with regard to what you told the police about the termination of the relationship, are you saying that you did not tell the police that Ron terminated the relationship? Do you understand my question?
      “A. [The complaining witness] Yes. No, I did not tell them that.
      “Q. So, if the police officer has in his report that you said Ron had terminated the relationship, then the police officer is wrong.
      “A. Well, when I gave my statement I did it on a tape recorder and it is possible, maybe, that he typed it wrong.
      “Q. You did give your statement on a tape recorder?

        “A. Yes.”

       “Sec. 749. [DISCLOSURE OF STATEMENTS]-DEFINITION OF STATEMENT
      “The term ‘statement’ as used in Sec. 748 means . . .
      “(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”
      “Sec. 755.--FAILURE TO COMPLY WITH ORDER
      “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”

       Hamden Detective Gerald Benway testified, in referring to his report, that the complaining witness told him “[tjhat Milum [the defendant] had terminated it [their relationship].”

       The state’s brief incorrectly states: “This court recognized in State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984), that the erasure of tape recorded statements was a standard practice in the New Haven Judicial District at the time of the assault in this case.” In Myers, we did say that the tape recording of the rape victim’s first telephone contact with the New Haven police “could not be produced . . . because it had been erased pursuant to the standard practice of the New Haven police department.” State v. Myers, supra, 466.

       The state does not argue on appeal that the tape recording does not fall within the definition of a “statement” as defined in Practice Book § 749 (2). See Practice Book §§ 751 through 755.

       At the conclusion of the complainant’s direct examination, the state offered the following testimony:
      “Q. Other than the injuries and the effect of the injuries, specifically the effect related to the use of your left hand, what other effects, if any, did you experience as a result of this incidence [sic]?

        “A. I was quite frightened most of the time. I didn’t sleep for a very long time. I had nightmares. I also found that I was hand shy. What I mean by hand shy, I was afraid when someone raised their hand. I ducked. I was quite fearful.”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Confessor Torres
    (12321)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued October 3
    decision released November 26, 1985

      Jeffrey R. Van Kirk, with whom, on the brief, was Susan M. Wright, legal intern, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, Kevin McMahon, assistant state’s attorney, and William Domnarski, deputy assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Confessor Torres, after his motions to suppress tangible evidence and to suppress his statements to the West Hartford police had been denied by the trial court, pleaded nolo contendere to one count of illegal possession of narcotics in violation of General Statutes § 21a-279 (a). His plea was entered under General Statutes § 54-94a. He was found guilty and was sentenced to the custody of the commissioner of correction for a term of three years. Execution of the sentence was suspended and he was placed on probation for a period of three years. The defendant appeals claiming that the trial court erred in denying his motions to suppress. We find no error.

At the hearing on the defendant’s motions to suppress, the trial court found the following relevant facts: On April 4,1983, officers of the West Hartford police department executed a valid search warrant for apartment D-4 at 90 Kane Street in West Hartford and the person of Victor Rivera, a resident of that apartment. There was nobody at home when the police arrived, and they were admitted by a manager with a passkey. During the search the police found approximately two ounces of cocaine. About one hour after the officers commenced searching, Rivera entered the apartment accompanied by the defendant, Torres, and a third man. Immediately upon the three men entering the apartment, the police inquired as to the identity of Victor Rivera. When Rivera identified himself he was placed under arrest. He was then searched, and cocaine was found on his person. While Rivera was being searched the defendant was told to sit at a table in the apartment.

One of the police officers, Detective Joseph J. Glowacki, then advised Rivera of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Before commencing the recitation of rights, he told the defendant and the third man to listen as the advisement of rights also applied to them. After the three had been advised, Glowacki asked the defendant if he understood his rights and the defendant indicated that he did.

Another of the officers, Detective John J. Looby, Jr., after he had completed the search of Rivera, turned his attention to the defendant and asked him for identification. The defendant said that he was a Hartford fireman and produced a city of Hartford firefighter’s photo identification card. Looby then asked the defendant if he had any narcotics. The defendant responded that he had a little for his personal use and produced from his wallet a foil packet which he turned over to Looby. The packet was subsequently determined to contain cocaine. That the defendant was detained only briefly before he produced the cocaine is implicit in the sequence of events recited in the court’s memorandum of decision.

The defendant was arrested and taken to the West Hartford police station. There he again received Miranda warnings and signed a form indicating that he had been advised of his rights, fully understood them and voluntarily waived them. He gave a written statement which said, in summary, that just before entering the apartment Rivera had given him the foil packet, but that he did not know what it was. He assumed, however, that it was cocaine and he felt that he was going to be in trouble so he gave the packet to the police officer when the officer inquired “so he would not find any on me if he searched me.”

The defendant contends that his initial detention was illegal and violative of his rights under the fourth and fourteenth amendments to the United States constitution. He argues therefore that the tangible evidence seized and both his statements given on April 4, 1983, should be suppressed as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Alternatively, he maintains that, even if legally seized under the fourth amendment, he did not voluntarily waive his Miranda rights at Rivera’s apartment and that therefore both his statement at the apartment and his statement at the police station should have been suppressed. It is the defendant’s argument that his written statement at the police station was the result of his prior illegally obtained oral statement at the apartment. He claims that he had let “the cat out of the bag” by the illegally extracted admission and that he was ever thereafter subjected to the psychological and practical disadvantages incurred by his admission. United States v. Bayer, 331 U.S. 532, 540, 67 S. Ct. 1394, 91 L. Ed. 1654 (1947). The defendant also claims that when he handed the foil packet to Looby he was subjected to a search without probable cause or valid consent, and that the packet should therefore be suppressed.

The trial court found that the defendant had not been illegally detained, that he had validly consented to a search when he handed the packet of cocaine to Looby and that he had voluntarily waived his Miranda rights at Rivera’s apartment. The trial court therefore denied the defendant’s motion to suppress the cocaine and also denied the defendant’s motion to suppress his statements.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book § 3060D. The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983).

The trial court cited Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), as the basis for its conclusion that the defendant was not illegally detained. Summers held that the police may detain an “occupant” of premises while a search warrant is being executed. In this case, the defendant was a visitor to Rivera’s apartment and not an “occupant” as it appears that term may have been used in Summers. Even if Summers did not justify the defendant’s detention, however, the police were nonetheless justified in relying upon the doctrine of Terry v. Ohio, 392 U.S. 1, 29-30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), if they had a reasonable and articulable suspicion that the defendant might be involved in criminal activity. 2 LaFave, Search and Seizure (1985) § 4.9.

Here the police had found approximately two ounces of cocaine in their search of Rivera’s apartment and then found cocaine on Rivera, the defendant’s companion, when he was searched. In addition, the affidavit supporting the search warrant, which was obtained by Looby and Glowacki on April 4, recited that on April 3, the previous day, an informant had purchased cocaine at Rivera’s apartment and had seen Rivera and an unknown Spanish male cutting and packaging cocaine from a large chunk on the kitchen table.

Under these circumstances the police had at least a reasonable and articulable suspicion based on objective facts that the defendant might be engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979). Therefore, they were justified in detaining him briefly while they sought proof of his identity and asked questions which would either confirm or dispel their suspicions. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); United States v. Merritt, 736 F.2d 223, 230 (5th Cir. 1984); United States v. Bautista, 684 F.2d 1286, 1290 (9th Cir. 1982); United States v. Oates, 560 F.2d 45, 63 (2d Cir. 1977); State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985); State v. Januszewski, 182 Conn. 142, 149-50, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The length of the defendant’s detention was certainly not unreasonable. See United States v. Sharpe, 470 U.S. 765, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). The trial court’s conclusion that the defendant was legally detained was not erroneous. See State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).

The trial court also concluded that there was a valid consent to search when the defendant turned over the cocaine to Looby. A person may waive his fourth amendment protection by consenting to a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). In order to introduce the evidence obtained in a consensual search, the state must establish that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); State v. Reddick, 189 Conn. 461, 468, 456 A.2d 1191 (1983). Whether consent was freely and voluntarily given is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, supra, 227. No one factor is controlling. State v. Reddick, supra, 469.

In this case, the trial court found that there had been no threats or promises to the defendant, that no firearms had been displayed and that the defendant would not have been searched after he had been identified were it not for his responsive surrender of the cocaine. The trial court also had before it evidence that the defendant was twenty-six years old, had completed the eleventh grade, had attained his high school equivalency, spoke English, could read and write and was a Hartford fireman. Further, at the same time that he handed the foil packet to the officer; United States v. Hardin, 710 F.2d 1231, 1236 (7th Cir. 1983); he had been informed of his rights and therefore was on notice that he did not have to cooperate with the police. United States v. Cepulonis, 530 F.2d 238, 244 (1st Cir. 1976).

When the totality of the circumstances is considered, the trial court’s finding that the defendant voluntarily consented to a search is not clearly erroneous. United States v. Bradley, 455 F.2d 1181, 1185 (1st Cir. 1972); State v. Zindros, supra. The fact that the defendant thought he might be searched and was therefore faced with a difficult choice of options which may have exerted pressure on him is not the deliberate or ignorant violation of personal rights that renders apparent consent ineffective. See Gorman v. United States, 380 F.2d 158, 165 (1st Cir. 1967).

The trial court also found that the defendant was given and voluntarily waived his Miranda rights at Rivera’s apartment. It therefore denied the motion to suppress the defendant’s statements. There was ample evidence to support the trial court’s conclusion and it was therefore not clearly erroneous. State v. Zindros, supra, 238. This finding by the trial court also was not necessary. The defendant was detained briefly for investigation. We have held earlier in this opinion that his detention was based on reasonable suspicion and was a valid Terry stop. Miranda warnings therefore were not required.

“Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose ‘observations lead him reasonably to suspect’ that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to ‘investigate the circumstances that invoke suspicion.’ United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975). ‘[T he stop and inquiry must be “reasonably related in scope to the justification for their initiation.” ’ Ibid. (quoting Terry v. Ohio, supra, 392 U.S., at 29, 88 S. Ct. at 1884.) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda.” Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).

The defendant’s final claim is that the trial court erred in refusing to suppress his statement made at the West Hartford police headquarters. This claim hinges on the defendant’s prior claims that he was initially illegally detained and that his statement at Rivera’s apartment was obtained in violation of his Miranda rights. Since we have ruled adversely to the defendant on both those claims, this claim lacks continuing vitality. The trial court did not err in refusing to suppress the defendant’s statement given at police headquarters.

The defendant entered his plea of nolo contendere under General Statutes § 54-94a which specifically applies to motions to suppress evidence based on an unreasonable search or seizure, a fourth amendment question. Since the trial court and the parties appear to have contemplated that this appeal would encompass both the defendant’s fourth amendment claims and his Miranda claims, and since the facts on which both claims are based are intertwined, we have, in the interest of fairness and judicial economy, considered both claims on this appeal.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes (Rev. to 1983)] Sec. 21a-279. (Formerly Sec. 19-481). PENALTY FOR ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT for criminal sanctions, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than three thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than five thousand dollars, or be both fined and imprisoned; and for any subsequent offense may be imprisoned not more than twenty-five years, or be fined not more than ten thousand dollars, or be both fined and imprisoned.”

       “[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       In his memorandum of decision, Judge Bieluch refers to two grams of cocaine. This is an obvious misstatement, as the only evidence elicited at the hearing was that approximately two ounces of cocaine had been found.

       Despite the defendant’s apparent concession at oral argument, the legality of the defendant’s detention is a crucial issue in this case. If he had been illegally detained he could not have given a valid consent to his subsequent search; United States v. Thompson, 712 F.2d 1356, 1361 (11th Cir. 1983); and he could not, despite adequate Miranda warnings, have given a valid confession; Brown v. Illinois, 442 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); unless they were sufficiently attenuated from the illegal detention.


author: Shea, J.

text:
    State of Connecticut v. Joseph Mack, Jr.
    (12061)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued October 4
    decision released November 26, 1985

      Michael R. Sheldon, with whom, on the brief, were Todd D. Fernow and Amy B. Lederer, certified legal intern, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Shea, J.

A jury found the defendant guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and also of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2). In this appeal from the judgment rendered in accordance with the verdict, the defendant claims that the trial court erred: (1) in denying his challenge to the array of jurors from which the jury that tried him was selected; (2) in charging the jury with respect to the credibility of the defendant and his interest in the outcome of the case; and (3) in displaying partiality in his comments upon the testimony.

The jury could reasonably have found from the evidence that the defendant, who was acquainted with the victims, Ella and Shedward Vereen, and who had learned that they had approximately $3000 in their possession, entered their home in New Haven on December 18, 1981, at about 9:30 p.m. wearing a toboggan hat with eye slits and carrying a gun. The victims, husband and wife, were asleep in bed and awoke to observe the defendant standing over them displaying a gun and mumbling something. They pleaded with him not to shoot and gave him the money, which was concealed in a pillow case. Despite the hat, which was pulled down to hide his features, the victims recognized him, even addressing him as “Joe” during the robbery. Two of their children, who also had previously known the defendant, were present in the home at the time of the robbery and recognized the defendant in the course of the commission of the crime. The victims notified the police, naming the defendant as the perpetrator of the crimes, and he was soon apprehended.

I

The defendant filed a challenge to the array and a motion to dismiss the jury panel, which was denied by the court, Celotto, J., after a hearing on June 8,1982. Thereafter, a jury trial began that ended in a mistrial on July 2,1982. Before commencement of a second trial on November 9,1982, the defendant filed another challenge to the array and a motion to dismiss the jury panel. The parties stipulated that the array of jurors from which a jury for the second trial would be chosen had been summoned and selected in the same manner as the array from which the jury for the first trial was chosen. Relying on the earlier ruling by Judge Celotto involving the same issues, the court, Mulvey, J., denied the motion.

The motion filed by the defendant in the trial court raised three grounds for challenging the array of jurors: (1) that the statutes governing selection methods deprived the defendant of his constitutional right to a jury comprised of a fair cross-section of the community because they discriminate against black and Hispanic citizens, against women, against residents of large urban areas, and against other cognizable groups in the community; (2) that the array was selected in violation of the juror selection statutes; and (3) that the manner in which the clerk summoned members of the array to serve in the monthly jury pools was unauthorized by law and violative of the defendant’s constitutional rights to due process of law, equal protection, and trial by an impartial jury. Only the second claim involving statutory violations has been pursued in this appeal, the constitutional claims having been abandoned by failure to brief them. State v. Seravalli, 189 Conn. 201, 207, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983); State v. Altrui, 188 Conn. 161, 178, 448 A.2d 837 (1982).

The defendant claims two statutory violations in the selection of the array of jurors available at the time of his trial: (1) that the chief state jury administrator, Thomas Hickey, without authorization by statute or court order, increased by 1563 the number of jurors to be summoned for the array to serve the New Haven judicial district for the year beginning October 1,1981, approximately one-third above the chief clerk’s estimate of the number needed (4569), which had been submitted pursuant to General Statutes § 51-219b (c), as well as above the total (4828) provided for in General Statutes § 51-220, which specified a particular number of jurors for each town based upon its population class; and (2) that, in allocating this one-third increase, the administrator neglected to follow the provision of General Statutes (Rev. to 1981) § 51-219c (2) that, “where possible, the total increase shall be distributed to all towns within the judicial district and in proportion to each town’s population based on the last United States census.” The state concedes the facts relied upon by the defendant in raising these claims.

We do not address the merits or the consequences of the statutory deviations alleged because we have concluded that they do not affect all the jurors comprising the array alike, as is essential for a proper challenge to the array. State v. Hart, 169 Conn. 428, 434, 363 A.2d 80 (1975); State v. Townsend, 167 Conn. 539, 544-45, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); State v. Cobbs, 164 Conn. 402, 413-14, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973); State v. Silver, 139 Conn. 234, 242, 93 A.2d 154 (1952); State v. Smith, 138 Conn. 196, 202, 82 A.2d 816 (1951); State v. Luria, 100 Conn. 207, 209-10, 123 A. 378 (1923). “A challenge to the array of jurors is an objection to the whole panel of jurors at once, and in order to be available it must be for a cause that affects all the jurors alike.” State v. Hogan, 67 Conn. 581, 583, 35 A. 508 (1896). A challenge that does not implicate the validity of the entire panel is inadequate. State v. Townsend, supra, 545. It appears that of the 6132 persons called for jury service by the administrator, 4569, the number given by the chief clerk pursuant to General Statutes § 51-219b (c), were properly summoned, because the alleged irregularities in the increase of approximately one-third made by the administrator cannot be deemed to invalidate the authorization to call the number of jurors prescribed by the clerk. Until the authorized number was exceeded no question could arise concerning the validity of the increase of 1563 decided upon by the administrator. We fail to perceive how the irregularities regarding those jurors summoned as a result of the increase can be said to infect the eligibility for jury service of those falling within the original authorization. It appears, therefore, that since the defendant’s challenge related only to the 1563 jurors brought into the array because of the increase made by the administrator, it was not “for a cause that affects all the jurors alike.” State v. Hogan, supra. Unlike State v. McGee, 80 Conn. 614, 619-20, 69 A. 1059 (1908), a decision relied upon by the defendant where a challenge to the array was upheld because all the prospective jurors had been drawn by a deputy sheriff rather than by the clerk of court as required by statute, the statutory deviations claimed by the defendant affect only those additional jurors and not the entire array.

As we have noted, the defendant has abandoned his constitutional claims relating to the composition of the jury array and he claims no prejudice resulting from the alleged statutory violations. It is difficult to conceive the manner in which the availability of additional jurors in the array from which the panel was drawn for the trial of his case could have prejudiced him. See State v. Townsend, supra; State v. Cobbs, supra, 414-15. Accordingly, we find no error in the denial of the challenge to the array by the trial court.

II

The defendant, who testified at his trial, claims error in the charge upon the credibility of witnesses in which specific reference was made to the interest of the defendant in the outcome as a factor to be considered in evaluating his testimony. As the defendant recognizes, this court has yet to disapprove such an instruction, though some other courts have done so. “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); State v. Roos, 188 Conn. 644, 645, 452 A.2d 1163 (1982); State v. Avcollie, 188 Conn. 626, 636-38, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983).

The defendant claims that the instruction given in this case differed materially from other instructions upon the subject of a defendant’s interest in a criminal trial that we have previously reviewed. Although the defendant did except to unrelated parts of the charge, no exception was taken to the portion concerning the defendant’s interest, as is ordinarily necessary to preserve such a claim of error for appeal. Practice Book § 315. We have treated the basic claim that specific mention of the defendant’s interest infringes upon his right to a fair trial as falling within the claimed deprivation of a “fundamental constitutional right” bypass of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. Avcollie, supra, 637; 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). We must, therefore, examine the nuances of language, belatedly relied upon by the defendant, only for the purpose of determining whether they are significant enough to have affected the fairness of his trial. State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985); State v. Kurvin, 186 Conn. 555, 564-65, 442 A.2d 1327 (1982).

The defendant points first to the instruction that the jury “must consider the importance to him of the outcome of the trial, and any motive that he might have on that account for not telling the truth.” We have on prior occasions found no error in essentially similar instructions: “In weighing the testimony [the defendant] has given you, you should apply the same principles by which the testimony of other witnesses [is] tested, and that necessarily involves a consideration of his interest in the case. You will consider the importance to him of the outcome of this trial.” State v. Avcollie, 636-37 n.6; see State v. Mastropetre, 175 Conn. 512, 525-26, 400 A.2d 276 (1978); State v. Guthridge, 164 Conn. 145, 151 n.1, 318 A.2d 87 (1972). The defendant is also critical of the concluding sentence of this part of the charge: “An accused person stands before you just like any other witness, and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including, however, specifically, his interest in the verdict you are to render.” The defendant’s objection is to repetition of the reference to his interest in the case. Again, we have sanctioned similar instructions previously. State v. Avcollie, supra, 636 n.6 (“ ‘including, of course, his interest in the verdict you are to render’ ”); State v. Mastropetre, supra, 526 (“ ‘including, particularly, his interest in the verdict, which you may render’ ”). We do not find the variations in language relied on by the defendant to be of such significance as to warrant a conclusion that the defendant was deprived of a fair trial. We must, however, stress the importance of even-handedness in referring to the defendant’s interest as compared with that of other witnesses. We have recognized that technically correct instructions on this subject may violate this principle if repeated unnecessarily or overemphasized in some other manner. See State v. Kurvin, supra, 570 n.3.

Ill

In his final claim of error the defendant claims the trial judge displayed an appearance of partiality toward the state in some of his comments during the testimony and also during the charge to the jury. As no objection or exception was raised to most of these remarks during trial, let alone a motion for mistrial, we are limited in our review of them to deciding whether they infringed upon the defendant’s constitutional right to a fair trial. State v. Evans, supra, 70. We conclude that, although some of the comments were improper, none of them rises to the level of constitutional error.

A

At a point near the end of the defendant’s lengthy cross-examination of Ella Vereen, a victim, who had testified about the amount of money taken in the robbery and whose answers indicated an unfamiliarity with record keeping, the court interjected: “She isn’t a C.P.A., I have got news for you.” Counsel then replied: “I know that your Honor.” Inappropriate as this remark of the court was, it cannot reasonably be viewed to indicate partiality nor does it appear that trial counsel so regarded it.

B

In instructing the jury on the value element of larceny and the necessity of finding that the money taken by the defendant exceeded $2000 for a first degree larceny conviction, the trial court referred to the testimony of Ella Vereen in mentioning that the jury could examine the financial records she had kept and again opined that “it’s obvious that the operation was not under the guidance of a C.P.A., that’s for sure.” The court also mentioned that this witness had testified that she had “better than $3000, but first degree larceny is better than $2000.” In addition, the court referred to the position of the defendant, that the records did not support Vereen’s testimony, and then left the determination of the amount taken to be found by the jury as a question of fact. The defendant’s only exception to this part of the charge was that the witness had not testified that more than $3000 was in her possession, but exactly $3000. We can discern no basis whatever for the claim of the defendant that these instructions evidenced a “predisposition toward the state’s case” on the part of the trial court.

c

The instance of alleged partiality principally relied on by the defendant arose during the cross-examination of a police officer who had participated in the arrest of the defendant. The officer had testified that when he first approached the defendant, who was pointed out to him by Elwood Vereen, a son of the victims, the defendant was wearing two hats, a dark blue or black knit-type pullover hat with eye slits that he wore underneath a similarly styled bright white and green hat. These hats were referred to at various times in the trial as toboggan hats or “toboggan pulldowns.” The officer at that time was under the impression that the robber had used a mask and did not realize that the victims claimed that he had worn a toboggan hat with eye slits. The officer returned the hats to the defendant after first removing them to be sure that no weapon was concealed under them. The next day, learning that a toboggan hat with eye slits had been worn by the robber, the officer then inquired of the detectives in charge of the investigation whether the hats he had observed had been seized. He discovered later that the hats had not been seized by the detectives. At this point in the cross-examination of the officer, the colloquy set forth in the footnote occurred.

Although a judge must be extremely circumspect, especially injury trials, in questioning witnesses so that he will not appear to be taking a position of advocacy, comments or questions for the purpose of clarifying the testimony are permissible and often necessary. State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975); LaChase v. Sanders, 142 Conn. 122, 125, 43 A.2d 752 (1955); Ladd v. Burdge, 132 Conn. 296, 298, 43 A.2d 752 (1945); State v. Ortiz, 38 Conn. Sup. 549, 551, 454 A.2d 277 (1982). The questions asked of the officer by the court concerning the time when he discovered the kind of hat the victims said the robber had worn are within this principle, as they can reasonably be viewed as intended to clear up a possible misunderstanding by the jury. The court did not assume the role of advocate or otherwise abuse its discretion. See Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978); Goggins v. Fawcett, 145 Conn. 709, 713, 147 A.2d 187 (1958); McWilliams v. American Fidelity Co., 140 Conn. 572, 580, 102 A.2d 345 (1954); State v. Cianflone, 98 Conn. 454, 468, 120 A. 347 (1923).

Though we find no impropriety in the court’s inquiries of the witness, the comments to counsel that followed were highly inappropriate. The remarks not only tended to denigrate defense counsel for “leaving the impression that this officer is a pretty dumb officer,” but also might have been construed to indicate a favorable view of the credibility of the witness on the part of the court and to suggest some alliance between the court and the police: “I have got a job to protect an officer who is trying to do the best he can when he is out of his element.”

Although the comments were erroneous, we are not convinced that they were sufficiently prejudicial to affect seriously the fairness of the trial so as to warrant a new trial. Counsel for the defendant, though he did say that the initial comment concerning his attempting to leave an impression that the witness was “a pretty dumb officer” was unfair, made no objection to the later comment about protecting an officer on the witness stand. At no time did he move for a mistrial. We are reluctant to award a new trial where those most concerned, better placed than we to assess the courtroom atmosphere, did not view the remarks to be so prejudicial as to warrant a new trial and preferred to stake the outcome on the trial under way. “We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967).

We are also convinced that the evidence of guilt in this case is so overwhelming that any possible prejudice the defendant may have suffered from the court’s remarks had no significant bearing on the verdict. The defendant was recognized during the course of the robbery not only by the two victims but also by two of their children, Elwood and Diane Vereen. These children, as well as their parents, had known the defendant for a long time before the incident and were present when he visited their home earlier in the evening. The two children observed the defendant remove the hat he had worn over his face during the robbery immediately afterward as he was leaving the premises and they were able to observe his features. The son, Elwood, pointed out the defendant on the street to the arresting officer and observed that he was then wearing a green toboggan hat over the black one he had worn during the robbery. Both victims and their daughter, Diane, also observed the defendant wearing a green toboggan hat over a dark one when they saw the defendant in the custody of the police after he had been arrested. Thus it appears that the only significant part of the officer’s testimony, that the defendant was wearing the hats described at the time of his arrest, was amply supported by the testimony of other witnesses despite the inability of the state to produce the hats at trial. To the extent that the court’s remarks may have tended to enhance the credibility of the officer, the testimony involved related to the same facts that four other witnesses had also sworn to having observed. We conclude, therefore, that the court’s remarks could not have materially affected the verdict despite our strong disapproval of them.

There is no error.

In this opinion the other judges concurred.

       No issue has been raised concerning whether the defendant’s separate convictions for robbery and larceny arising out of the same transaction may be multifarious. The trial court imposed concurrent sentences of fifteen years for the robbery and five years for the larceny, constituting an effective sentence of fifteen years.

       General Statutes § 51-229 allows the court at any time to draw “a sufficient number of additional jurors to prevent the necessity of summoning talesmen.”

       “[General Statutes] Sec. 51-219b. how to determine number of jurors to be summoned, (a) In determining the number of jurors to be summoned for jury duty at a court location, the following factors, as well as any other factors which may be relevant, shall be considered: The number of judges assigned to jury trials at the court location; the types of cases that will come to trial during the period of time for which the panel will be summoned; the experience of the court location in regard to the number of jurors who actually serve in relation to the number of jurors who are summoned for service; and the experience of the court location in regard to the number of jurors required in the juror pool in order to insure that judicial affairs will be reasonably conducted without delay.
      “(b) Clerks of court shall keep and furnish any records and data which the jury administrator requires in order to determine whether jurors are being effectively utilized.
      “(c) For the purpose of analyzing whether the number of prospective jurors required by section 51-220 is suitable, during the month of October of each year each chief clerk of the superior court shall notify the jury administrator in writing of (1) the estimated number of prospective jurors who will be needed to serve at such particular court location or locations during the year commencing the first of the next succeeding September, and (2) the towns from which the prospective jurors shall be drawn.”

       “[General Statutes] Sec. 51-220. number of jurors for each town. The number of jurors to be chosen for each town shall be as follows: In towns whose population as determined by the last-completed census of the United States is less than seven hundred and fifty, fifteen; in towns whose population so determined is at least seven hundred and fifty but not more than one thousand five hundred, thirty; in towns whose population so determined is more than one thousand five hundred but not more than twenty-five hundred, fifty-six; in towns whose population so determined is more than twenty-five hundred but not more than five thousand, ninety; in towns whose population so determined is more than five thousand but not more than ten thousand, one hundred twenty; in towns whose population so determined is more than ten thousand but not more than twenty-five thousand, two hundred twenty-five; in towns whose population so determined is more than twenty-five thousand but not more than fifty thousand, three hundred thirty-seven; in towns whose population so determined is more than fifty thousand but not more than one hundred thousand, six hundred seventy-five, and in towns whose population so determined is more than one hundred thousand, one thousand and twelve; provided, for the purposes of this section, the population of a town shall not include the patients of any state institution located in such town.”

       “[General Statutes (Rev. to 1981)] Sec. 51-219c. INCREASE IN NUMBER of jurors. If it is determined that the estimate by the chief clerks under subsection (c) of section 51-219b, is in excess of the number of jurors chosen under section 51-220 for those towns within a given judicial district, the jury administrator may increase the number of jurors chosen for those towns within the judicial district in the following manner: (1) The total increase in number shall be determined by the jury administrator and may be of sufficient amount to equal the chief clerk’s estimate under subsection (c) of section 51-219b; (2) where possible, the total increase shall be distributed to all towns within the judicial district and in proportion to each town’s population based on the last United States census; (3) on or before January first, the jury administrator shall notify the respective town jury committees, in writing, of the increase in the number of jurors to be chosen for service commencing the following September; (4) the number of jurors chosen for any town shall revert to the number stated under section 51-220 when actual usage statistics, compiled by the jury administrator, indicate an increase is unwarranted.”

       Whether the 1563 jurors who may have been unlawfully summoned could have been identified and thus subjected to a challenge for cause in the voir dire for the selection of the petit jury is not clear from the record before us. See State v. Luria, 100 Conn. 207, 210, 123 A. 378 (1923). Although all the jurors were summoned at one time, it is not clear whether the surplus jurors could have been segregated by the sequence in which their names appeared on the list as a whole or as representing a particular town. As the movant, the defendant bore the burden of providing an adequate record for his challenge. State v. McCarthy, 197 Conn. 247, 249-50 n.4, 496 A.2d 513 (1985); State v. Jones, 193 Conn. 70, 74 n.2, 475 A.2d 1087 (1984).

       In view of the result we have reached that the defendant’s grounds for challenging the array do not affect the entire panel, we need not consider whether the statutory nonconformities raised constitute “a material departure from the requirements of law governing the selection and summoning of an array.” See Practice Book § 842.

       This portion of the charge was as follows: “Then, of course, you heard the testimony of the accused, Mr. Mack. In weighing the testimony he has given you, you should apply the same principles by which the testimony of other witnesses are tested, and that necessarily involves the consideration of what I mentioned a few minutes ago, that of his interest or lack of interest in the case. You must consider the importance to him of the outcome of the trial, and any motive that he might have on that account for not telling the truth. An accused person stands before you just like any other witness, and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including, however, specifically, his interest in the verdict that you are to render.” (Emphasis added.)

       “Q. In such a situation, if an officer, a patrol officer, is advised that there is no detective available to handle the robbery investigation, doesn’t it then become the job of the patrol officer to take into custody the evidence?
      “A. No.
      “Q. No? You just let the evidence go with the perpetrator?
      “A. No.
      “Q. No? Isn’t that what you did in this case?
      “A. No.
      “Q. You didn’t?
      “A. I was told that the detective that would come out at 12:00 o’clock midnight would take the case; that is what I was told.
      “The Court: There is something that I would like to clear up; on the 18th, when you first reported and learned of the robbery and then picked up this man, did you start to say — my recollection is that you did, and then you died away — that you were looking for a mask?
      “A. Yes.
      “The Court: You weren’t looking for a ski cap?
      “A. Right.
      “The Court: On the 18th?
      “A. Right.
      “The Court: You found out that it was a ski cap that was used the next day, on the 19th?
      “A. Right.
      “The Court: You see, you are leaving the impression that this officer is a pretty dumb officer, and that isn’t fair. He was looking for something else on the 18th.
      “Mr. Brunswick: Well, I don’t think that is a fair comment, your Honor.
      “The Court: You indicated that he didn’t collect evidence, he didn’t have any evidence, he never did find a mask.
      “Mr. Brunswick: I am not claiming that, your Honor.
      “The Court: Well, that is the impression I got. I have got a job to protect an officer who is trying to do the best he can when he is out of his element.”