210 Conn. 78 | Conn. | 1989
The Interstate Agreement on Detainers (IAD), is designed to encourage the expeditious and orderly disposition of criminal charges pending in one state against a prisoner incarcerated in another state. General Statutes § 54-186, Article I.
I
The defendant claims that Connecticut’s enactment of the IAD mandates this state’s dismissal of the criminal charges lodged against him because, in New Jersey, where he was incarcerated, prison officials unreasonably delayed both in providing him with IAD forms requesting final disposition of the charges covered by these detainers and in forwarding his request to Connecticut. Because officials of New Jersey, the custodial state, “act as agents of the demanding state for purposes of the IAD”; State v. Braswell, 194 Conn. 297, 305, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985); their delay, according to the defendant, required dismissal of the Connecticut murder charges against him.
A
The facts underlying the defendant’s claim are undisputed. On February 28,1986, a New Jersey court convicted, sentenced and immediately imprisoned the defendant for a crime committed in that state. Aware of pending Connecticut charges, the defendant, in early April, 1986, forwarded to the appropriate prison offi
Within eight days of their belated forwarding of the official forms to the defendant, the New Jersey prison officials received them back, appropriately completed. After another delay of four months, these officials forwarded the defendant’s request for speedy disposition of charges to Connecticut.
Connecticut authorities received notification of the defendant’s request on November 21, 1986. He was brought to trial 109 days later, on March 9,1987. The defendant filed a motion, in the trial court in this state,
B
The defendant makes a three part claim in support of his contention that the trial court erred in failing to dismiss the informations against him because of the extensive delays of the New Jersey prison authorities in processing his IAD request for prompt disposition of his Connecticut charges. First, he claims that the trial court erred in failing to hold that the New Jersey authorities had a duty to inform him of the detainers lodged against him immediately upon his incarceration in February, 1986, rather than after disposition of his remaining New Jersey charge in June, 1986. Second, although he does not contest the trial court’s factual
A review of the legal principles that govern the IAD is necessary to provide a context for the defendant’s claims. Because the IAD is an interstate compact that the federal Congress has sanctioned, we must interpret its provisions in accordance with federal law. Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985); Cuyler v. Adams, 449 U.S. 433, 438, 442, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981); State v. Braswell, supra, 304. In searching for the applicable federal law, we may, however, look to relevant decisions in both federal and state courts. State v. Braswell, supra.
Article III of the IAD governs inmate requests for a prompt disposition of outstanding detainers. The centerpiece of Article III is subsection (a), which states that a prisoner “shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment,
The remaining provisions of Article III address the custodial state’s duty “promptly” to inform a prisoner of outstanding detainers; General Statutes § 54-186, Article III (c);
The state responds to these serious departures from IAD standards by pointing to the speedy disposition that the defendant’s case received in this state. The state reminds us that, because the defendant’s trial began on March 9, 1987, he was actually tried within 266 days after June 16,1986, the date when Connecticut should have received notification of his IAD request. From that time, the state would exclude 68 days that it claims were attributable to defense-engendered delays. If those exclusions were appropriate, which the defendant contests, the defendant would have been confronted with no more than a 198 day interval to trial, and only a residue of eighteen days over the permitted 180 day period, despite the clerical inattention that his IAD request received in New Jersey. An eighteen day delay, the state maintains, is “minimal” and does not violate the purpose for which the IAD was enacted.
Even if we are thus forced to conclude, contrary to the holding of the trial court, that the six month delay that the defendant encountered in New Jersey violated subsections (b), (c) and (d) of Article III, that conclusion does not end the matter. Examination of the IAD discloses that the remedy of dismissal of criminal charges is mandated only under certain specifically defined circumstances, such as a demanding state’s refusal or failure to accept temporary custody of a prisoner, or a demanding state’s failure to comply with the 180 day provision of Article III (a). See General Statutes § 54-186, Article Y (c).
Although custodial state delays do not automatically require the dismissal of criminal charges in the demanding state, we would be remiss in our obligation to effectuate the IAD’s purposes and principles if we were simply to ignore such a violation. Indeed, as we have noted earlier, under the IAD, officials of the custodial state act as the agents of the demanding state. State v. Braswell, supra, 305; Giardino v. Bourbeau, supra, 126. When, in somewhat similar circumstances, we sought to enforce a criminal defendant’s right to have his appeal defended by the state with due diligence; State v. Files, 183 Conn. 586, 588-89, 441 A.2d 27 (1981); we found a useful analogy in the rules that have been developed to protect a defendant’s constitutional right to a speedy trial. So too this defendant’s right to prompt IAD notification can appropriately be protected by invoking the balancing principles of Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which determine when a deprivation of speedy trial rights requires dismissal of criminal charges against a defendant.
Applying the principles of Barker v. Wingo, supra, to the facts of this case, we are persuaded that the trial court correctly denied the defendant’s motion to dismiss the criminal charges against him. The four factors that form the matrix of a Barker v. Wingo analysis
The defendant next claims that the trial court erred in trying jointly the two murder informations pending against him. The state initially charged the defendant with murder and felony murder in connection with the April 16, 1981 death of Donald Gore, and, in a separate information, with murder in connection with the May 15, 1981 death of Henry J. “Rico” Littman. The trial court, in the absence of an objection by the defendant, granted the state’s motion for consolidation on March 9, 1987. It was only when the state thereafter filed an amended information, adding a count of conspiracy to commit murder in the Littman case, that the defendant objected, first to the amendment,
A
The jury could reasonably have found the following facts with regard to the death of Gore. On April 16, 1981, the Hartford police discovered a white van that had crashed into the side of a garage in the vicinity of 138 Evergreen Street. In the van, between the seat and
From Swain’s testimony at the defendant’s trial, the jury could have found that Swain, until recently the defendant’s girlfriend, had made her living by shoplifting and prostitution. On the night of the shooting she was in a Hartford bar with the defendant when she observed Gore, whom she knew professionally. She told the defendant that she knew Gore and could obtain money from him. The defendant then suggested that she meet Gore in the rear parking lot at 145 Sisson Avenue so that he could “stick the guy up” while Gore was undressed. She met Gore in his van as planned. The defendant then came to the car window with a gun and announced, “Yo, this is a stick-up.” When Gore started the van and attempted to drive away, the defendant fired several shots at him. Swain then jumped from the van while it was moving and ran with the defendant into the building at 145 Sisson Avenue in which the defendant’s aunt lived. While running from the van, Swain dropped her pocketbook, which contained several personal items that she identified as among those the police had collected at the crime scene. Both she and the defendant left for New York, New York, a few days later.
With regard to the Littman shooting, the jury could reasonably have found the following facts. On May 15, 1981, Hartford police found a body in the trunk of a vehicle parked in a cemetery near Cleveland Avenue Extension. The head of the deceased had been wrapped in a black plastic bag and his hands had been tied. Police later identified the body as that of Henry J. “Rico” Littman and an autopsy showed that he had died from a shotgun wound to the head.
In August, 1985, at the same time that she offered information about the Gore shooting, Swain also implicated the defendant in the Littman killing. Swain testified at trial that the defendant, Littman and Henry “Boo” Robinson had robbed a bank, and that during the course of the robbery Littman’s face was uncovered. Fearing that Littman would be identified and would then turn them in, Robinson and the defendant decided that “they had to get rid of” Littman.
Glenda Hightower, Robinson’s former girlfriend, testified that in March, 1981, she too had heard the defendant tell Robinson that Littman had “to go” because the
T.J. Thomas testified that, on the morning of May 15, 1981, he had seen Robinson and another man pass him in the same car in which Littman’s body was found. The two then got out of the car and ran away. Shannon also testified that the defendant had admitted that he had participated in the Littman killing to the extent of carrying the body to the car and driving to the cemetery.
B
General Statutes § 54-57
This court recently reexamined the undeniable tension between the need to conserve judicial resources by consolidating cases and the defendant’s right to a fair trial. In State v. Boscarino, supra, 721, we held that the trial court had erred in joining four separate counts of sexual assault in the first degree against the defendant because the joinder worked a “ ‘substantial injustice’ . . . ‘beyond the curative power of the court’s instructions.’ ” We there discussed several factors that a trial court should consider in making its determination whether severance is required in order to avoid the “omnipresent risk . . . that‘although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all.’ United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S. Ct. 793, 83 L. Ed. 1500 (1939).” State v. Boscarino, supra, 721-22. These factors include: (1) whether the charges involved “discrete, easily distinguishable factual scenarios”; (2) whether the crimes were of a “violent nature” or concerned “brutal or shocking conduct” on the defendant’s part; and (3) the “duration and complexity of the trial.” Id., 722-23. We held that if any or all of these factors were present, a reviewing court would have to decide whether the trial court’s jury instructions cured any prejudice that might have occurred. Id., 724.
In contrast, the present case involves two killings that were not strikingly similar but instead involved “discrete, easily distinguishable factual scenarios.”
Finally, although “ ‘a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible other crimes] evidence’ State v. Boscarino, supra, 724-25, quoting State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980); where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant’s right to a fair trial has been preserved. In this case the trial court, on three separate occasions, admonished the jury to keep the informations separate: during voir dire, during the trial, and finally during its jury charge. We conclude that the court’s charge properly cured any risk of prejudice caused by the joinder of the informations.
The fact that the defendant did not initially object to the joinder supports our conclusion that the joinder of the two murder cases was not inherently or substantially prejudicial. Indeed, when the defendant finally did move to sever the informations, he relied on evidentiary factors relating to the enhanced credibility of a principal witness against the defendant, rather than on the risk that a joint trial would engender juror confusion and prejudice. Bearing in mind that whether “ ‘a
Ill
The defendant’s third claim is that, in closing the courtroom during its jury instructions, the trial court violated his sixth amendment right to a fair and public trial.
A defendant unquestionably has a right to a public trial, a right well rooted in our common law as well as in the sixth amendment to the United States constitution; Waller v. Georgia, 467 U.S. 39, 46-47, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984); as applied to the states through the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 148, 88 S. Ct. 1444, 20 L. Ed. 2d 491, reh. denied, 392 U.S. 947, 88 S. Ct. 2270, 20 L. Ed. 2d 1412 (1968); see also Richmond Newspapers, Inc.
As the trial court informed the defendant, its purpose in directing a temporary closing of the courtroom door was “not to disturb the contact of the judge to the jury, and the jury listening to the judge giving instructions.” Because those then present in the courtroom were not excluded from witnessing the proceedings, the defendant’s trial remained a public one throughout.
Although we recognize that courts in other jurisdictions are divided on the issue, we agree with the more recent cases that, in similar circumstances, have found no closure of the court implicating the sixth amendment. Renfroe v. State, 49 Ala. App. 713, 275 So. 2d 692 (1973); People v. Buck, 46 Cal. App. 2d 558, 116 P.2d 160 (1941); People v. Bails, 163 Mich. App. 209, 413 N.W.2d 709 (1987); see also People v. Colon, 71
IY
The defendant’s fourth claim is that the trial court violated his right to a fair and impartial jury by instructing the jury to disregard portions of his counsel’s summation as “improper” and by conditioning credit of his argument on two questions raised by the trial court. The defendant maintains that the court’s instructions impermissibly demonstrated bias and hostility toward the defense case.
A
The first part of this claim of error arises out of comments made by defense counsel about the testimony of Glenda Hightower. She had testified, as a state’s witness concerning the Littman killing, that she had heard conversations between Littman, Robinson and the defendant about the fact that, during the bank robbery in which all three had played a role, Littman’s face had
In argument before the jury, “trial counsel should not state or suggest an inference from facts that are not in evidence.” State v. Manley, 195 Conn. 567, 580, 489 A.2d 1024 (1985); see also State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Haskins, 188 Conn. 432,457, 450 A.2d 828 (1982). The defendant had introduced no evidence from which this jury could infer that the earlier jury had disbelieved Hightower’s testimony. State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988) (“The fact that Bolivar was acquitted is of no probative value in this case. . . . It is impossible to determine why he was acquitted by the jury.”); see also United States v. Wiley, 534 F.2d 659, 664-65 (6th Cir.), cert. denied sub nom. O’Donnell v. United States, 425 U.S. 995, 96 S. Ct. 2209, 48 L. Ed. 2d 819 (1976). Neither had he introduced any evidence that the conduct of the detectives in accompanying Hightower from the Kentucky prison was anything other than “usual procedure.” This evidence thus lent no support to the defendant’s effort to impeach High-tower’s credibility on the basis of bias or prejudice. On this record, we conclude that the trial court did not abuse its discretion in instructing the jury that it should disregard those portions of the defendant’s closing argument.
The second part of this claim of error also concerns a comment by the trial court about closing argument by defense counsel. Defense counsel suggested to the jury that Edward Condon, who had testified to having observed a lone white person with stringy hair hanging on to the outside of Gore’s van and then running from the scene of the crime, might have seen not the defendant but Loretta Swain. Such a suggestion was consistent with the defendant’s theory that Swain alone committed the crime. Regarding this theory, the trial court instructed the jury: “[Y]ou should ask yourselves two questions, and this would be drawn from inferences from the facts that you have before you, and the evidence that has been presented in this case.
“The first question is: Would Loretta Swain, who knew Donald Gore from previous tricks that she admitted having with him, rob him when he would have known her? The second question you should ask yourself, would Mr. Gore attempt to turn the ignition on, and drive the van out of the parking lot to avoid being shot by a passenger who had a gun, and was seated next to him?” The defendant excepted to this portion of the trial court’s instructions, noting that the state had never raised such an argument. He now argues that the court’s questions impugned his defense theory, thus depriving him of a fair trial. We are not persuaded that the court’s questions went so far beyond the boundaries of permissible commentary on the evidence as to prejudice the defendant’s case. State v. Pollitt, 205 Conn. 132, 155, 531 A.2d 125 (1987); State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985).
Y
The defendant’s penultimate claim is that the trial court erred in failing to instruct the jury on the lesser included offenses within the crime of murder. With respect to the Littman killing, the defendant requested an instruction on the lesser included charges of manslaughter in the first and second degrees because of what he called the “tenuous nature of the evidence” of the defendant’s actual conduct. The trial court refused this request as lacking in evidentiary support. The defendant took exception to the trial court’s ruling.
“ ‘A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of
This issue must be addressed in the terms in which it was presented to the trial court. State v. Carter, 198 Conn. 386, 390 n.3, 503 A.2d 576 (1986); State v. Rothenberg, 195 Conn. 253, 262-63, 487 A.2d 545 (1985). Because “[a] lesser included offense instruction is ‘purely a matter of our common law’; State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986); rather than a constitutional right”; State v. Thomas, 205 Conn. 279, 282, 533 A.2d 553 (1987); see also State v. Whistnant, supra, 581; we decline to review justifications for the lesser charge that the defendant did not raise at trial. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).
To the trial court, the defendant argued that the following evidence supported his theory that he might have participated in the killing of Littman without having had the specific intent to commit murder. The defendant referred to Hightower’s testimony that he
Considering this evidence in a light most favorable to the defendant’s request, as we are obliged to do; State v. Smith, 185 Conn. 63, 77-78, 441 A.2d 84 (1981); State v. Morin, 180 Conn. 599, 609, 430 A.2d 1297 (1980); we conclude that the trial court did not err in refusing to give the manslaughter charges. The trial court need only charge the jury on a lesser included offense charge if the defendant or the state has introduced “ ‘some evidence . . . justifying] conviction of the lesser offense . . . and . . . the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.’ ” State v. Green, supra, 11; State v. Whistnant, supra, 588. In this case, the reasons proffered by the defendant at trial did not support a finding that the element of intent, which differentiates manslaughter in the first and second degrees from murder; General Statutes §§ 53a-54a, 53a-55, 53a-56; was sufficiently in dispute to warrant a manslaughter instruction. The alleged ambiguity in the Hightower testimony and the allegedly exculpatory implication of the Shannon testimony might tend to show that the defendant did not commit the murder at all, but they do not address the defendant’s specific intent with regard to the Littman killing. Accordingly, we find no error in the trial court’s refusal to instruct the jury on lesser included charges.
The defendant’s final claim of error is that by denying his several motions to obtain Swain’s psychiatric records, the trial court violated his rights to confrontation and cross-examination under both the federal and state constitutions. Although the court itself examined the records, in camera, they were never made available to the defendant.
At the probable cause hearing, while cross-examining Swain, the defendant requested certain of her psychiatric records. When Swain invoked her privilege not to disclose the records, the trial court conducted an in camera inspection and found that the records contained “no exculpatory material” relevant to this case. The defendant then moved that Swain’s testimony be stricken. The court, while denying this motion, agreed to alert the defendant if, during the remainder of the defendant’s cross-examination, any portion of the records
At trial the defendant asked Swain on cross-examination if she had been hospitalized for psychiatric reasons during 1985 and 1986. After the state objected
The defendant then sought the disclosure of the psychiatric records to make a further showing. The trial court stated that it had previously reviewed the records and found nothing that would impugn Swain’s credibility. It put off a ruling on disclosure to a later time, in order to “give [the defendant] another opportunity of inquiring concerning that.” Finally, upon reviewing its notes of its in camera inspection of the medical reports, the trial court repeated its conclusion that nothing therein related to Swain’s present competency to testify nor to her credibility at the time of the incidents about which she had testified.
This court has previously undertaken the task of balancing a witness’ psychiatric privilege against a defendant’s right of confrontation. See State v. Hufford, 205 Conn. 386, 400-405, 533 A.2d 866 (1987); State v. Pierson, 201 Conn. 211, 225-28, 514 A.2d 724 (1986); State v. Bruno, 197 Conn. 326, 329-32, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Esposito, 192 Conn. 166, 177-80, 471 A.2d 949 (1984); State v. Storlazzi, 191 Conn. 453, 455-63, 464 A.2d 829 (1983). As recently restated, “ ‘[t]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material “especially probative of
Thus, under our case law, there are two points at which a witness’ possible mental unsoundness is relevant: “at or around the time of trial or of the incident about which he is to testify.” State v. Kelly, supra, 380. The defendant seeks to have us adopt a third point of relevance: at the time the “evidence” was first given to police. He argues that around the time that Swain first gave a statement to police, August 22, 1985, she had visited two psychiatric hospitals claiming that she had been hearing voices and that he had a right to reveal this to the jury to undermine her credibility.
We need not decide in this case, however, whether a defendant may have access to psychiatric reports from around the time that the witness first gave statements to police. The trial court found that Swain had testified from her memory of the incident and not from
There is no error.
In this opinion the other justices concurred.
General Statutes § 54-186, Article I provides: “The party states [joining in the Agreement on Detainers] find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.”
The IAD has been adopted by forty-eight states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States. Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985). In New Jersey, it is codified as N.J. Stat. Ann. § 2A:159A-1 et seq. (West 1985).
A detainer is a notification advising an institution in which a prisoner is serving a sentence that the prisoner is wanted to face pending criminal charges in another jurisdiction. Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985); Cuyler v. Adams, 449 U.S. 433, 436
General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”
General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime ... he, or another participant, if any, causes the death of a person other than one of the participants . . . .”
General Statutes § 54-186, Article VI (a) provides: “In determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.”
Deborah Hansen, deputy compact administrator and Chief of the Office of Interstate Services for the New Jersey Department of Corrections, testified that the processing of the defendant’s request for prompt disposition of his Connecticut detainers was “untimely” and “unacceptable.”
General Statutes § 54-186, Article V (c) provides: “If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.”
General Statutes § 54-186, Article III (c) provides: “The warden, commissioner of correction or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final dispositon of the indictment, information or complaint on which the detainer is based.”
General Statutes § 54-186, Article III (b) and (d) provide in relevant part: “(b) The written notice and request for final disposition . . . shall be given
“(d) .... The warden, commissioner of correction or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner. ...”
See footnote 7, supra.
United States v. Roy, Til F.2d 54 (2d Cir. 1985), cert. denied, 475 U.S. 1110, 106 S. Ct. 1520, 89 L. Ed. 2d 918 (1986), on which the defendant puts special emphasis, is inapposite because it concerns a violation of Article IV and not of Article III of the IAD.
Deborah Hansen, the deputy compact commissioner for the New Jersey Department of Corrections, testified affirmatively that the defendant, as a prisoner with a sentence of eighteen years, would not have been eligible for work release, reduced custody or parole during the period when his Connecticut detainers were outstanding. She also testified that the particular work to which a prisoner might be assigned at the Trenton state prison would not be affected by the existence of any outstanding detainers. The force of this testimony is not significantly diminished by the witness’ unwillingness to state, on cross-examination, that she could “preclude” the possibility that an outstanding murder detainer might have an effect on a classification department’s decision about where to send a particular inmate.
The defendant objected to the amendment on the grounds that it would be unduly prejudicial, on the day of trial, to “suddenly have to investigate a whole slew of witnesses who are unknown to Mr. Herring or to the defense.” Nonetheless, the trial court denied the defendant’s motion to strike or dismiss the additional count. The defendant has not assigned error to that ruling in this appeal.
“[General Statutes] Sec. 54-57. joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”
“[Practice Book] Sec. 829. trial together of indictments or informations
“The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”
We disagree with the state’s contention that we should limit our review of this claim because the defendant failed to raise any of the specific Boscarino factors as grounds for severance at the trial. State v. Boscarino,
The state concedes that, unlike the case of State v. Pollitt, 205 Conn. 61, 70, 530 A.2d 155 (1987), the two crimes with which this defendant was charged were not “signature offenses,” i.e., the state would not have been able to introduce evidence of either murder in the trial of the other, if the two informations had been tried separately. However, “[substantial prejudice does not necessarily result from a denial of severance even where evidence of one offense would not have been admissible at a separate trial involving the second offense.” Id., 68.
While the state introduced about the same number oí exhibits herein as it had in the Boscarino trial, many of the exhibits were photographs of the murder sites and thus were relatively easy for the jury to keep straight. State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987).
The defendant also invokes article first, § 8, of the Connecticut constitution, but does not advance any arguments supporting a separate treatment of his claim under the state constitution. Accordingly we need consider only his federal constitutional claim. See State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988); State v. Chung, 202 Conn. 39, 45 n.7, 519 A.2d 1175 (1987). The defendant’s citation to State v. Sheppard, 182 Conn. 412, 415, 438 A.2d 125 (1980), does not convince us otherwise. In Sheppard we held that the trial court’s closure of the trial during the testimony of two witnesses, absent a showing of a compelling need by the state, violated the defendant’s right to a public trial under the provisions of the sixth and fourteenth amendments to the United States constitution and under article first, § 8, of the Connecticut constitution. We did not indicate that these constitutional provisions were anything but coextensive for these purposes.
The trial court stated: “The hearing is still public. If people want to come in prior to the start of instructions, they are permitted. But to distract—to have suddenly a group come in, that distracts the jurors from what the judge is instructifng], and results in the jury not getting everything and having to then ask again to be instructed.”
Hightower had testified against the defendant at a bank robbery trial in 1982. The defendant was acquitted of those charges.
Defense counsel argued to the jury: “You heard the testimony of Detective Bolden, and don’t forget Defendant’s Exhibit Number 19—the letter from . . . [Hightower’s] lawyer, talking about how much those police officers did for her. Do you really believe that she didn’t know that? They even went down to pick her up in Kentucky at the Federal Prison and brought her back up to testify, and then brought her back down again. Personal service by those officers.”
The trial court, during its instructions, stated: “In reference to Glenda Hightower’s testimony in another case, the one in 1982, which you heard Mr. Smyth said returned a Not Guilty verdict for the Defendant as to a bank robbery, Mr. Smyth indicated that in that case, the jury didn’t believe Glenda Hightower. First of all, you’re not to be influenced by another tribunal, or another factfinder in determining the credit of a witness who had appeared before you. Nor do you know what the evidence was in that other case. In effect, what I’m saying is that remark was improper and you are not to be influenced by it.
“The second remark was that officers of this State gave her service from Lexington, Kentucky, to be a witness in that case. This is a normal procedure, where somebody is confined in another state, and is necessary to be a witness in a case in this state .... So there wasn’t any special service given to such a witness to come to this state to testify in that other case. And you’re not to be influenced by that remark.”
The defendant places great emphasis on the trial court’s use of the term “improper” in characterizing parts of the defendant’s closing argument.
The state claims that, although the defendant made his request in timely fashion, prior to the jury instructions, it was deficient in form because it failed to set out “a complete statement of the essential facts and law justifying the charge in the form requested.” State v. Green, 207 Conn. 1, 12, 540 A.2d 659 (1988). In this case, however, defense counsel, upon inquiry to the trial court, had been reassured that he need not file a formal, written request to charge and that his oral request sufficed. In these circumstances, we cannot find the proposed instruction “inappropriate.” See also Practice Book § 852.
Both parties agree that the second requirement has been met. We have interpreted General Statutes § 53a-45 (c) as a legislative determination that a defendant cannot commit murder without first having committed manslaughter. State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980).
On cross-examination, Hightower acknowledged that she sometimes used the words “go” and “leave” interchangably.
At the probable cause hearing the trial court marked for identification records pertaining to Swain’s hospitalization at the Connecticut Mental Health Center and at St. Francis Hospital.
The defendant did not renew his request to examine Swain’s records even though, during this cross-examination, Swain testified that she had lied to doctors at the Connecticut Mental Health Center about “hearing things” to gain admittance to the hospital because she was paranoid and scared.
The state did read into evidence portions of a second statement Swain gave to police on September 9,1985. The defendant did not, however, seek the disclosure of the psychiatric records at this point.
