*1 324 The evidence must
robbery. be given the construc- tion most favorable to verdict; State sustaining v. Avila, 166 this 776; it does in measure. ample
There is no error. Gary of Connecticut Bennett House, J., Bogdanski, Longo, MacDonald, C. Barber Js. Argued October February decision released *2 Raymond Blank, was Hanken, with whom Charles (defendant). appellant the for attorney,
Eugene state’s assistant Callahan, J. Browne, on Donald A. brief, the was whom, with attorney, appellee (state). for the state’s judgment appeal from the This is an C. J. House, finding jury defend- a the the verdict of rendered on degree guilty rape the the crime of in first ant § Statutes. in then the General violation of 53a-72 imprison- term of The was sentenced to a years. nor than ten ment of not less than five more argued three briefed and The defendant has erred the trial court error. claims that claims of He charge supplemental charge law the in its and subject in failing on that of alibi to and language requested by com- the in its defendant, jury concerning be ments the the to to standards weighing for used the witnesses the denying motion and in the defendant’s defense, to set aside verdict.
The state from introduced evidence which following: January could find the On 12,1972, approximately complaining 10 to 10:30 a.m., Mary, her to whom will left witness, we refer as library Bridgeport home in Stratford to drive to the complete report to for her art class scheduled College. p.m. Community at Housatonic Bridgeport, En if a route to decided see she to refer friend fellow we and to whom will student, go library so wanted to with Olive, her, thruway left exit. she at the Pembroke Street Hough apartment in a Olive lived second floor at 202 Bridgeport. Avenue in The was house owned Mr. and lived first Mrs. Harold Bennett who on the daughter floor with their defendant. son, part-time job going Olive had a while school usually morning. so that she home Mary was aware of but midterm were this exams that, might staying at hand and she believed Olive be study. Mary at home to had her visited Olive at apartment twenty prior January 12 about times stayed overnight and had there on occasion. Mary Hough approxi- arrived at 202 Avenue mately thirty leaving fifteen to after minutes her home. She knocked at the door a man answered. *3 Hough She seen had man at on Avenue Mary at least two pripr occasions. asked if Olive responded was home to which he that he did not Mary upstairs apartment know. went to Olive’s but Olive was not there. When she came back down, the hallway. man was still in the downstairs She by. asked him to tell Olive that she had come As away, she started to drive her back man waved saying just that Olive had called and that would she right Mary be back. At the man’s invitation, apartment entered the first floor to wait Olive. accompanied apartment. The man her into the Mary At the trial, identified the defendant as that man premises and the she man had seen on the prior living occasions. She sat on the couch introducing Mary. room, herself as He said Grary. name apart- was No one else inwas ment. There was some conversation. The defendant walked couple around and left the room on a occasions. For a brief time he sat on couch Mary. with He also went behind the occa- couch sionally looking though out the front window for Olive to arrive. On such an occasion when suddenly was behind the couch, he threw rope or cloth-like material over her like head a noose. tightened her noose around
The defendant Mary slid to breathe. She was unable neck so that When couch on to the unconscious. floor, from the regained severe consciousness she was weak, she great difficulty. pain, breathing The and with and from her neck defendant removed noose helped took her to her feet. The defendant then apartment. her to a back room in the same was She crying, defendant, too weak to resist “frightened to death.” sofa-type
The room contained a bed. The defend- ant forced her onto the her removed slacks bed, underpants and forced her to submit to sexual Mary intercourse. identified the defendant in court upon as the man who forced himself her.
After this the defendant ascertained assault, Mary’s identity address and the her of members of family. Mary He told that he a member Black Panthers and threatened harm if were she happened. *4 tell to what He her ordered her to tell family by that she been had attacked Puerto Ricans in Stratford.
Upon leaving apartment, Mary drove her to arriving home in Stratford, at about noon. She collapsed on the stairs and her Zahner, Jean aunt, finding emotionally came to her assistance, her dis- traught complaining and disheveled and her neck hurt. her She told aunt that she had been by attacked two Puerto Ricans on Main East Street Mary prior in Stratford. While in was bed at home being hospital, Sergeant to taken to the E. Alfred police department inquired Dunn of the Stratford about the attack on East Main Street. Because having difficulty speaking, she was she nodded as description Owing to
if affirm this attack. to Mary physical her and emotional state at the time, any did not communication. recall such Mary taken from her home Hos- was to Milford pital by immediately ambulance and transferred hospital care intensive unit. She remained in the January examining Keegan, until 18. James T. expressed physician, opinion that the neck injuries facial were caused severe com- external pression. police attempt He ordered that the question Mary days. for two hospital emergency approximately
In the room, at p.m. January immediately Keegan’s on after Mary examination, to her admitted aunt what previously she had her told what not, fact, evening, occurred. On that Jean Zahner visited Mary in the intensive care unit. Mrs. told Zahner give her that police she would have to an accu- Mary replied, you any- rate account. “I can’t tell thing. say anything,” Don’t and, also, the effect that “he is a member of the Black Panthers” “he will kill me if I tell on him.” January
On the afternoon of J. Francis Hyland, gynecologist, Mary examined at hospital. spermatozoa He concluded that there were deposits vagina. toxicologist
Abraham chief Stolman, state for the Mary’s clothing Connecticut, received items laboratory July the state At trial, 1972. *5 he testified that his examination revealed seminal stains on the underpants outside of the crotch of her and that her slacks had seminal stains on the inside of the crotch.
The defendant testified in own did behalf as They several his friends and schoolmates. testi- day question in fied detail to effect that on the in Harding High the defendant had left for School at about 7:45 to a.m. and school had remained at p.m. he until took the bus home at about 2:30 Mary Two of the defendant’s M. teachers, Mrs. Clark and Brown, Michael also testified. Mrs. Clark testified that her attendance that records indicated present the defendant was in her class between day question; 9:59 a.m. and 10:38 a.m. on the in Brown testified he did not on take attendance January 12 and could not recall whether defend- ant in class date.
The defendant claims that the court
in its
erred
charge
supplemental
regard-
charge
on the law
ing
failing
charge
alibi
an
and in
defense,
requested by
language
in
which was
virtually
language approved
verbatim
in State
v. Brauneis, 84 Conn.
Instead
222,
330
A.2d
103
LaFountain,
613, 620,
140
v.
Conn.
State
A. 75.
79
158,
Pecciulis,
152,
v.
84 Conn.
138; State
instruc
an
have
declared that
In
we
also
addition,
credibility
similar to
of alibi witnesses
tion
the
by
assignment
challenged
both
error is
this
of
weighed
light
proper
of
fair when
and
charge.
paragraphs
Groos,
of
v.
other
State
Cianflone,
A.
v.
410,
350;
110 Conn.
148
State
403,
rec
120
....
It is well
A. 347
98 Conn.
ognized
is
of alibi witnesses
subject
a
as to which fair comment
jury
428
allowed.
v. Scafati,
is
See Sullivan
Cir.),
(1st
91
F.2d 1023
denied,
1001,
cert.
400 U.S.
Surridge
Ed.
239
State,
S. Ct.
27 L.
2d
v.
478,
452;
v. Sul
Ark.
393 S.W.2d
581,
246; Commonwealth
393
denied,
N.E.2d
livan,
598,
354 Mass.
239
cert.
5,
21
698;
U.S.
Ct.
L. Ed. 2d
State
697,
89 S.
1056,
(Mo.);
v.
v.
evidence, entertained a reasonable presence to the of the they defendant’s the scene duty although acquit, it their to crime, were not satisfied from he the ‘alibi evidence’ that was elsewhere.” charged present part:
The court in the in case, prove “The accused does not have to his claim that considering he was elsewhere. It is sufficient if on your all the evidence there in mind arises presence a reason- able doubt as to his at the the scene of you crime when it was committed. If conclude do that there is such a entitled the accused doubt, guilty.” charged: to verdict of not a It further you again “I tell there is no burden on this prove accused to himself crime innocent of the charged, prove but it is the state’s burden to him guilty beyond a reasonable doubt. And that burden upon throughout rests the state the entire trial.” complying jury’s repeat request In with the to supplemental the alibi the instructions, court, its charge, essentially repeated original charge its subject, including just the the instruction we have quoted. previously regard- As this court has stated ing jury’s request supplemental charge: for a indicating part “Far from confusion on of the jury, as the intimates in its brief, request part indicated a effort conscientious on the cope perhaps important of the with the most question factual in the case as it had been submitted Gigliotti Illuminating to them.” v. United Co., 151 A.2d 718. We find no merit portions the claims of error addressed to the of the supplemental charge concerning and the defendant’s alibi defense. assigns trial
The defendant next as error jury concerning its task comments court’s weighing the witnesses points. First, claim rests on two main defense. This question argues the defendant comments unfairly category of the included in the same all defendant’s alibi when was unreason- witnesses, school- able to consider one of the defendant’s experience thirty-eight years teachers with might group same as the defendant’s who classmates *8 prone defend- Second, be fabricate an the alibi. question not that the comments in were ant submits response independent, legitimate an to the facts and testimony recitation elicited at the but a mere trial, charge on alibi defenses. See of a standardized 7. v. Cari, 174, 181, State point, include first the court did not As to the category the in the same as the teacher Mrs. Clark carefully the tailored defendant’s schoolmates but charge approved supra, the evi- Cari, in State noting fre- that alibi evidence dence this case, testimony quently, part of “in of consists least,” family who are “in this and schoolmates case, those jury asked Furthermore, the accused.” the were by rely accuracy Mrs. on the defendant the only not Clark’s attendance which indicate records day present the the that defendant was class on January the fol- of the but also on crime, lowing day he when the himself admits day only he the was absent. He testified that January 12. attended school that week was point defendant, As to the second stressed the concerning the it court’s comments the should tests apply credibility weighing the of alibi witnesses apt, were within discretion. relevant, well its supra. v. Cari, the no in the instruction of We also find error jury concerning con- the he court to the factors to testimony weighing credibility sidered in the of the Early charge, of the court defendant. in its the fully jury the func- instructed that was their sole they tion to believe determine what witnesses would and to what extent. It cautioned them the tes- any timony police a officer entitled to greater weight merely a because witness is police already prop- officer, and, we have noted, erly might commented which factors weighing well consider in of alibi witnesses. respect testimony
With to the defendant, of the charged “Concerning as follows: might accused who testified An I add this: here, person obliged accused is not to take witness stand in his own behalf. On other he has hand, perfect right Gary to do as this accused so, weighing Bennett has In done. given you you, apply prin-
he has should the same *9 ciples by testimony which the of other witnesses necessarily are tested, and involves a consider- any might ation of interest that he have in the case. importance You will consider the to him of the out- come of this trial and his motive on account perhaps telling person for the truth. An accused having once taken the before stand, witness stands you just any like other witness and is entitled testimony the same consideration and must have his way any measured in the same other witness, including, you however, his interest in the verdict will any possible render. You should consider also prejudice bias sympathy or or or which friendliness any may witness against have, whether or against state or for or the accused. You should or lack of interest interest a witness’ consider ability trial, in the outcome of the his whatever sort correctly. say ‘his’ And when I facts to observe omitting including I am females, I am also saying time, or Instead of his hers each females. ” using pronoun I am ‘his.’ only exception The relevant which the defendant charge reference took to the aside from that with already indicated to alibi which we have witnesses, “By proper, following language: was in the the same Your Honor said that the accused token, they his took the in mind stand, must also bear interest in words, the outcome of the In other case. everybody’s interest the outcome of the ease during either relates to defendant.” At no time, appeal, the trial or on this the defendant has deprived process law, claimed that he was of due portion charge and, of the which we have quoted, clearly did not limit the factor interest to consideration of the of the clearly defendant’s witnesses. Rather, included all witnesses its instruction: “You also should any possible sym- prejudice consider or or bias pathy any may or have, friendliness which witness against against whether for or the state or for or the accused. You should consider interest a witness’ or lack of interest of whatever sort in the outcome ability correctly.” of the trial, observe facts In his brief, defendant has claim limited his respect of error portion with to this of the single portion quoted sentence in we have *10 above: importance “You will consider him of the outcome of the trial and his motive on perhaps telling emphasizing account for the truth,” the last four using “perhaps” words. In word departed instead of “not” from the usual
335 charge given in such instances. State v. 169 Jonas, Moynahan, Conn. 363 566, A.2d 1378; State v. 164 Conn. 560, cert. 199, 976, 414 denied, U.S. Jury Wright, 94 S. Ct. 38 L. Ed. 291, 219; Conn. anything, § If Instructions 669. the court’s use of “perhaps” the word rather than “not” more was clearly favorable to the defendant and it any way prejudicial in him.
It “[t]he is well-settled law that fact prosecution, witness is a defendant in a criminal participant or is a in the offense or in a related offense, creates an interest which affects his credi bility.” 81 Am. § Jur. 2d 669, 667. Witnesses, “Where a in a criminal case testifies proper his own his behalf, interest in the result is a bearing matter credibility, to be considered as on his position and it has been considered that itself renders his less credible he than if especially were a disinterested witness, he where has a criminal record.” 98 C.J.S. 484, Witnesses, § 543. Guthridge, As we said State v. 164 Conn. cert, 145, 151, 318 A.2d 87, denied, 988, 410 U.S. 93 S. Ct. 36 L. Ed. 2d 1519, 186: “The rule is well may settled in this state that the court advise weighing that in of an accused’s testimony they can consider his interest in the out come of the trial.” We have rule adhered to this many supra, cases. v. State v. Jonas, 579; Moynahan, supra, 574; State 122 Conn. Palko, 529, 191 A. 534, 320, 302 U.S. 58 aff’d, 319, S. Ct. L. 149, 82 Ed. State v. 102 288; Sehleifer, 130 A. 184; Saxon, 22, State v. 87 Conn. 5, 86 A. A. Fiske, State v. 63 Conn. 590; 388, 572. Reagan
In States, v. United U.S. S. Ct. 39 L. Ed. States 709, unanimous United *11 recognizing
Supreme the con- while Court, trolling forbade all comment federal statute jury presence of an accused of the the omission 304): testify, charge stating (p. approved a to request, permits the at his own defendant, “The law testify here in his own behalf. The to testimony privilege. His himself of this has availed you you it far must determine how is before and personal deep he which credible. The interest is may con- suit should be in the result of the have weighing jury and his evidence sidered determining all, or what if at extent, how far to worthy opinion, the court In its credit.” respect testimony (p. 305) anof with to the noted province of the court “It is within the accused: any jury matters the attention of the to call testimony legitimately his and which affect his may credibility. imply not This doés that the court testimony arbitrarily single denounce out and his The fact that he is a defendant does it as false. unworthy same him but at the belief, condemn any greater than that of time it creates an interest ques- to that extent affects the witness, other prop- credibility. It a matter is, therefore, tion erly jury. suggested by . . . to be the court to the equally potent civil in criminal as in This rule is trial court and in neither is it error for the cases, the interest the attention of the to direct may any the trial witness have the result of which weighing be considered in as a circumstance to determining credence that shall story.” reviewing given from to his After cases be 310): jurisdictions, (p. the court concluded several import that the court “The of these authorities is liberty jury directly indi- or is not rectly because that the defendant is to be disbelieved *12 practically take for that defendant, he is a would away grants gives the it benefit which the law when privilege being the other him the a witness. On may, ought, to the court hand, and sometimes jury remind the that interest motive creates a greater testimony; the false the the interest stronger temptation, is the interest of and that the the in defendant the result a char- of the trial is of possessed by acter no other there- and is witness, may seriously fore a matter which the affect given testimony. credence The that shall be to his impartial government court should be between the and the defendant. behalf On of the defendant duty jury upon is its to caution the not to convict accomplice. the uncorroborated . of an . . any government if And other witness for the great feeling large disclosed to have or interest against may, the in the inter- defendant, justice, jury ests of call the attention the the feeling affecting extent of that or his interest as credibility. In the in the same manner behalf of government, may charge the court the peculiar deep the which the defendant interest affecting in has the result of the trial is a matter credibility, carefully and to be considered them.”
findWe no error in the court’s with respect they to the considerations should have testing given mind in the the to be testimony. defendant’s
We also find error no in the court’s denial of the defendant’s motion to set aside the verdict on ground support that the evidence was insufficient to ruling reviewing conviction. In a on such given motion, the evidence must be the construction sustaining jury’s most favorable ver- 338 A.2d 288 161 Benton,
diet. State 404, 406, v. Conn. A.2d 285 one, 411; State v. Raff heretofore sum we 323. The evidence which have jury’s supports marized in this opinion amply recent verdict our decisions light Bennett, State v. A.2d 171 Conn. Jonas, and Conn. 566, argument time of properly neces his briefed contention that it was abandoned sary for state to evi by independent corroborate dence statutory the existence of each element of the *13 offense of rape.
There is no error. In this opinion Longo, MacDonald, Barber Js., concurred. J. (dissenting). The in this accused
Bogdanski, case in his testified own behalf. Thereafter charged part as follows: “In weighing . testimony that . . given [the has defendant] you, you should apply by same which principles testimony other witnesses are and that tested, involves a necessarily consideration any interest that he have in the might case. You will consider the importance to him of the outcome of this trial and his motive on that account for perhaps telling the truth. An accused person once having taken witness . . . stand must have his meas- testimony ured in the same as way other includ- any witness, ing, however, his interest in the verdict which you will render.” (Emphasis added.)
The defendant took exception to that charge claiming was clearly prejudicial and had the effect of totally diminishing defense in the eyes of the In jury. my view, the use of this often- repeated charge unduly singles out the defendant’s
339 improperly comments on his motives and interest in the outcome of the verdict without similarly commenting possible on the motives and complaining interests of the witnesses. presumed proven
A defendant is
innocent until
guilty; Deutch v.
States,
United
39 majority, L. Ed. 709, cited the United Supreme recognized (p. 305) States Court that a may arbitrarily single court out a defendant’s testimony (p. 310): import and said “The of . . . [the Reagan decision] authorities cited in the is that liberty charge court is not jury directly to indirectly or that the defendant is to be disbelieved because he is a practically for defendant, that would away take grants the benefit which the law when it gives privilege being him (Empha- a witness.” added.) sis charge This state’s “traditional” to the jury, denigrates weight which to be accorded an testimony, accused’s preju- has that unfortunate and dicial result.
340 right
“[T]he fair to a fair trial in a accused’s very process. . ‘. . foundation of due tribunal is the Every procedure possible offer which would forget average temptation to the man ... to proof required defendant, convict the burden of might nice, or lead him not to hold the balance which accused, true the State and the clear and between Tumey process Ohio, due v. denies the latter of law.’ Estes 749; 71 L. Ed. 510, 532, 437, 273 U.S. 47 S. Ct. Ed. L. 85 S. Ct. 543, 1628,14 v. 381 U.S. Texas, 532, 363 546, Aillon v. 168 Conn. State, 541, 2d 543.” exercising single A.2d 49. To out the defendant testify repugnant right equally as com- menting right remain silent. on the exercise of his general limit the to a
The better rule is to
all witnesses’
statement of the elements
which
single
weighed:
testimony
out the
be
not to
should
trustworthy than that
as less
defendant’s
169
Jonas,
v.
of other witnesses. See State
(Bogdanski,
concur
J.,
I set aside *15 error, find would, therefore, ment and order a new trial.