*1 suрported The court’s conclusion amply founded. this if were otherwise the evidence. But even "by assignment is so finding tangential factual this finding issue error property would harmless. he
There is no error. In concurred. judges this the other opinion Stephen McCall of Connecticut Parskey Shea, Healey, Js. C.
Speziale, J., Peters, 11, 1982 January May decision released Argued 6— *2 public Joette K. Rubin, assistant with defender, public on the err whom, brief, was J old Barnett, H. appellant (defendant). for the defender, Lager, Linda K. attorney, assistant state’s with on the whom, were brief, Arnold MarJcle, state’s attorney, Kelly, and John J. assistant state’s attorney, appellee (state). for the guilty by The J. defendant was found a Shea, jury of the crimes sexual assault the second degree § in violation of General Statutes 53a-71 injury of risk of to the health or morals of minor a § in violation of General Statutes 53-21. From judgment rendered in accordance with the verdict, appealed, claiming judge’s has he errors in the fail- parte a ure declare mistrial after an ex conversa- judge; charge tion between a and the on in the insanity; prior in the admission of mis- evidence of conduct of the defendant and of disclosure competency determination; the result of former charge expert testimony; on and in sub- jeopardy by jection his of the defendant to double both find error. сonviction on counts. We no might reasonably jury fol- found the have lowing The victim’s father drove the defend- facts: twenty-five year old ant and Laurna Bell, New Haven to Stratford in his car from woman, on the morning January 6, 1977, they so could at the apply jobs Aircraft Sikorsky plant. the driver During trip, repeatedly stopped car to air in a tire. In leaky his absence the put suggestive defendant made remarks to Bell, pro- his in oral sex. She his claiming expertise rejected advances, her At expressing disgust. a.m., 11:30 Bell while the defendant and were still in the car, five-year-old driver picked up daughter from Bell school. Before she dropped observed off, *3 girl the defendant the little eyеing “like a little The victim’s father drove his pervert.” daughter and the defendant to his apartment where all three Shortly had lunch. the father out thereafter, went of cigarettes. The defendant purchase pack little to a girl took the down her bedroom, pulled for performed cunnilingus a minute pants, told him to until she her father stop. When she was returned, crying, forty-five minutes later the defendant admitted what he had done and said that he the “got vibes that said he should do this to all black The father young girls.” called the and the defendant was police arrested. He gave statement police a the sexual admitting assault, but refused to subsequently sign it.
The defendant filed notice intent to usе mental disease defect as a defense to Practice pursuant Book (formerly §2169). §758
I claims that his The defendant motion for a mis- the events a con- surrounding occasioned trial, and the in juror between judge versation counsel, was denied. The improperly absence of to the conversation are not facts relating disputed. who foreman, The juror, professed approached judge during hall a recess express shared concern, with three other jurors, jury, that a fifth member of the Anne capable being impartial. Norcross, was not The judge asked him to come into his chambers. The judge hearing then told the after that, testimony psychiatrists, Norcross hаd told jurors symptoms the other that her son had similar to those of the defendant. left When foreman judge chambers, called in counsel to inform meeting. judge them of the told them what simply the foreman had said and that he had giving thanked the foreman for him the informa- party suggested tion. Counsel each put substance of the incident be on the record accordingly. this was done After a weekend recess, counsel for the defendant moved for a mistrial on grounds right that the defendant’s to trial impartial jury process and to due of law had (1) been violated place prior deliberations had taken (2) to the close of an alter- evidence; may *4 participated nate have in those deliberations; (3) supplied by juror extrinsic evidence a had been (4) meeting considered; between fore- judge place man and the had taken without presence of counsel. improper jurors
“[I]t is for to discuss case a among themselves until all the evidence has been presented . . . and the case has been submitted by after to them final instructions the trial court.” Washington, v. 182 A.2d 438 419, 425, (1980); (e) §§ 1144 C.J.S., 89 Trial 457 460 (b); § Am. 75 Jur. Trial 994. An instruction 2d, authorizing premature discussion is reversi ble Ibid.; States, error. Winebrenner v. United (8th Cir.), F.2d 329 147 cert. 325 U.S. 322, denied,
77 Where, 2d 1983 65 S. Ct. 89 L. Ed. 1197, 863, no discus there has been however, authorization, the trial has been jurors charge sion among prior Klee, United States v. 494 F.2d to be held not fatal. First Pleasant Hill v. 396 (9th 1974); Cir. 394, Church, 1 3d 82 Cal. Baptist 384, 427-28, Cal. App. Co., Wilson Cab v. (1969); Rptr. California Glasgow P.2d 758 383, (1932); Cal. App. 386, Co. v. Realty Metcalfe, 750, (Ky. S.W.2d Co., Engine Foundry Gas & Higgins Bean v. 1972); Louis St. 130 S.W. Ky. (1910); Gregory, Ry. Southwestern Co. v. 387 S.W.2d 31 (Texas 1965). not the has
The test “whether or misconduct has the defendant that he extent prejudiced Klee, trial.” United States not received a fair A 396. trial court has measure supra, large mistrial; motion discretion with a for a dealing A.2d 517 Martinez, State and its decision as to the fairness States United weight. must be afforded great trial Klee, supra, recapitulation 396. The foreman’s not contain jurors discussion did among mind. had made any juror up assertions Klee, States The record United 396. See could fifth four felt a only jurors indicates familiarity of her because impartially not serve her son a disease which schizophrenia, with itself treated which manifested been had defendant. similar that exhibited ideation had belief there The court declared its so that opinions extended discussions “any been *5 reached the other members been have jury.” inferred Norcross’ reasonably could be
It
her more
made
experience
sympathetic
personal
party requested
the defendant. Neither
her removal
jury
from
and the
substitution of
alternate
an
juror.
jurors
The defendant’s contention that the
proper
pay
respect
would not be able “to
to each
opinions, and listen with
other’s
candor to each
arguments”; see State v.
Smith,
other’s
Conn.
skeptical
(1881); because of the
376, 386
view which
may
concerning
have entertained
four of them
persuasive.
impartiality
of Norcross is
request
made no
for an examination of
defendant
jurors
any
concerning
premature
or
of the
bias
opinions. Nothing
by the fore
formation of
related
any prejudice against
indicated
man to the court
part
any
jurors.
on the
of these
the defendant
denial of the
that the
motion for mis
conclude
We
reasonable
trial was within the
exercise of the trial
discretion.
Genuario v.
Finkler,
court’s
See
The defendant
also claims the resemblance
*7
Norcross
saw between her son and the defendant
was tantamount
to the introduction of extrinsic evi
dence which fatally tainted the
state
jury.
that the
argues
defendant should be
from
precluded
this claim since he
raising
knew of Norcross’ son’s
affliction from the voir
and,
dire
nevertheless,
chose
not to
challenge her
cause.
did not, however,
He
know that she
discuss the
would
with other
subject
in contravention
of the
jurors
instruction
judge’s
not to
the case with
It is
anyone.
discuss
reasonable
will adhere to the court’s
jurors
presume
Farmington
Gorham
Motоr
v.
instructions.
See
Inn, Inc.,
Norcross’
cannot
is to be
ized as an
extrinsic fact.”
It
“objective
one juror
from
situation
which
distinguished
committed by
has told the
of a
crime
past
others
Howard, United
States
defendant;
see
or that
Freeman,
The last aspect the met privately the judge juror that necessitated itself in and of of counsel absence law been long “It has of a mistrial. granting with converse shаll jurors this state regarding jury, member not a person, State, Aillon . .” . . consideration under cause (herein- 49 (1975) A.2d 363 545-46, 541, 168 Conn. Derby, Tomlinson Aillon I); after 223 Howard, Day 3 Bennett (1874); between conversations Ex parte 1808). (Conn. constitutionally prohibited are juror judge judge’s may jury’s because the statements affect the impartiality. supra. Aillon Even when commu- I, judge juror nication occurs between and a after begun, prejudice deliberations have must however, be found to a mistrial. warrant Aillon v. State, (hereinafter (1977) A.2d 1087 IT). Aillon In a criminal case the burden is on state show that the communication was harmless beyond Chapman 339; reasonable doubt. see Id., California, 18, 24, U.S. 87 S. Ct. 17 L. 2d Ed. prejudice
We conclude that the absence of was “by shown in this case the full and immediate dis- open transpired”; closure court of what had State v. Hackett, 182 Conn. 511, 524, A.2d undisputed record judge’s only communication telling jurors’ thank him for concern.4 On basis the record before us we no have reasonable doubt that the communication was harm- supra (holding less. Aillon II, Cf. the trial sup- court’s conclusion of harmlessness was not *9 ported the record since there was no credible improper pri- evidence as what was said in the conversation). foregoing vate reasons, For the defendant’s claim for the that his motion mistrial erroneously was denied is without merit. party dispute At no time did counsel for either the statement simply judge of trial that for the he had thanked the foreman giving concerning request him the information Noreross. No was hearing upon in evidentiary transpired made for had what chambers after the court had disclosed the communication with juror to today counsel. decision preclude Our would not different if developed petition result the facts on a new trial demon strated that judge the conversation dif between was appears ferent present from what in the See record. Aillon State, 173 334, 339-40, 377 A.2d
II The defendant claims that testimony in Bell, Lanrna elicited the state in its case should not have been it chief, admitted because con- of (1) attacking sisted misconduct evidence prior the defendant’s character before it was issue put to the defend- premature evidence (2) relating The Bell’s testi- ant’s state counters that sanity. was to the defendant’s mony sanity relevant its if harmless. We admission, error, with these contentions the state. agree which court, The trial reviewed Bell’s statement ruling, and heard before argument the police her was relevant testimony concluded that before sex- functioning defendant’s mental just because and that should be admitted ual assault She testified had been raised a defense.5 insanity only made advances toward her the defendant a fact signi- in the of the victim’s father, absence some mеasure fying appreciation and his conduct subsequent of his wrongfulness conceding Virtually to control his actions. ability the defend- testimony, relevance of her general it as more have excluded claims the court should ant think do not than We probative. prejudicial in the diffi- its broad discretion court abused trial and probative balancing prejudicial cult task excluded evidence have been would stated The court presented. insanity going to be was not if the defense given defense. Practice this previously notice of defendant had evi rejected state that court claim *10 The Book 758. § strong had a the defendant to show that dence was admissible аctivity time before a short form of sexual particular in a interest We need not con involving crime such conduct. in a engaged he of the result reached. ruling in of this view propriety sider
84 See Batick v. nature of the proffered testimony. Seymour, 186 Conn. 443 A.2d 632, 471 2 (1982); Evidence Wigmore, 228. § Only on belatedly does appeal the defendant claim that Bell’s testimony was premature the issue upon of insanity because the defendant had not yet pre- sented any evidence on that The defendant subject. cannot rely upon ground for the exclusion of evi- dence not raised in the distinctly trial court. Prac- State v. Brice, tice Book see §288; 449, Conn. State Shaw, 457, A.2d 906 Conn. 45, 48, A.2d 872 the defend- (1982). Moreover, ant had indicated by his notice filed to pursuant Practice Book his § questioning on jurors voir that he dire, intended to rely upon defense insanity. the trial court indi- When cated that its ruling was based the fact upon “the defense is going the defendant made,” said nothing does not contrary. ruling fall within the circumstances exceptional category reserved for errors magnitude constitutional where we have excused failure to raise a claim Evans, State in the trial court. See A.2d 576 At most it involved 61, 70, 327 (1973). the trial court discretionary authority order of of testimony. control See presentation Baldwin, Barber Book Conn. 283; Practice § ruling, A.2d 1 In any event, once if became harmless technically erroneous, even since defense, insanity did present the defendant been admissible would have testimony Bell’s Jenkins, rebuttal. 223 (1969).
A.2d
85 III The defendant his next properly preserved claim, that the on was charge insanity confusing erro neous. The objectionable charge of con portion of sists one sentence the outdated using terminology of rule6 in on M’Naghten elaborating statutory definition of insanity7 given. previously this . . . language, That “a mind of dis incapable from is not the tinguishing right wrong,” applicable standard is It not undisputed. equiv precisely to lack of “substantial to alent a capacity appre State . . conduct”; of . wrongfulness ciate 293 Toste, A.2d for finding omits entirely alternative basis to ... con lack of “substantial insanity, capacity . . to of law.” requirements . conduct form rule, M’Naghten’s whose name from MTSTaghten The is derived part law Case, Eng. Rep. (1843), was of the common in this year Assembly adopted In the General prior to 1967. state insanity, of now General Statutes Penal definition Model Code M’Naghten rule for statutory called 53a-13, as standard. § General Statutes know or control. complete impairment ability capacity “lack of substantial provides part 53a-13 in relevant that a § will suffice as a wrongfulness his conduct” appreciate the Toste, 424 A.2d generally State v. defense. See insanity any In See. 53a-13. defense. as Statutes] “[General defendant, offense, that the be a defense prosecution for an it shall mental conduct, as a disease proscribed time result at the wrong appreciate capacity either to lacked substantial or defect requirements his conduct to conduct or conform of his fulness this if such mental under section It not be a defense of law. shall voluntary ingestion, proximately caused or disease defect liquor any drug intoxicating or sub or injection inhalation or prescribed drug was thereof, unless such stance, combination in section defined practitioner, licensed the defendant of such with the directions used 20-184a, and was accordance section, mental disease or the terms As used this prescription. only by repeated abnormality manifested include defect do antisocial conduct.” or otherwise criminal §
General Statutes 53a-13. The court, however, *12 initially insanity did the correct read definition from the three statute and the sentences after M’Naghten language in with the stated, accordance “that statute, the accused must lack substantial capacity appreciate wrongfulness to the of his require- conduct or conform conduct to the excepted of ments law.” After the defendant had M’Naghten phraseology to the inclusion of the in charge, jury, the the trial court the reconvened acknowledged that it hаd “used or two word wrong” statutory giving insan- the definition of ity, and then the definition statute. read from the “[ejorrect.” point The defendant at said, during jury of Later, the course deliberations, requesting copy sent note “a of the definition insanity.” legal complied court with this exception request by and no further taken was defendant. statutory conclude deviation that the from the
We insanity, properly definition which defendant by excepting to called to trial court’s attention charge, adequately portion cured was given by charge submis the additional copy jury in accord of a of the statute sion charge supplemental request. “The ance with their covering fully articulаte, correct and was A.2d Reed, 174 Conn. issues.” State any satisfactorily up confu (1978). cleared It generated by erro may been sion which have M’Naghten language, indi inclusion of the neous request by the defend the absence cated additional after further clarification ant Spates, 176 Conn. given. were instructions Toste, cf. State 405 A.2d there the circumstances all supra, 630-33. Under possibility jury is no reasonable that the misled determining insanity. proper as to the standard for See State v. 363 A.2d Rose, 687-88,
IY For the first time the defendant claims error testimony that the defendant had admission adjudicated competent He been stand trial. ruling, despite of this his failure seeks review the doctrine оf State below, raise the issue under ground the evidence Evans, on jury prejudiced that he was him before the so *13 deprived trial. of a fair the that the defendant who elicited fact
It was support psychiatrist, who testified in of his insanity first defense, had examined him pursuant appointment April, in to an 1977, time inquired by importance and who about court, pur- examining in someone “for of the interview poses competency” inter- an whether “diagnostic interview.” would considered view proceeded cross-examination state without On objection bring psy- out the that another fact April examined defendant in had also chiatrist competent trial to stand found that he was upon opinion had relied that the court competent. finding The witness also the defendant competency on cross-examination stated presence mental illness were trial and stand presented necessarily The state also related. psy- testimony objection other of the without for com- the defendant who had examined chiatrist competent at found him petency that had he May. examination time introduction of the claims that the defendant competency testimony exam- results of the about 88
ination violated his
to a fair
trial
right
and is,
therefore,
reviewable
the absence
despite
under
objection
circum
exception
spеcial
stances
for certain
errors
exception
constitutional
Evans,
State v.
created
He relies
supra.
upon
several cases decided
the federal
courts where
testimony
concerning
finding
competency
trial
stand
was deemed to
error
constitute plain
in view of a
of a federal
provision
competency
examination
18 U.S.C.
statute;
§4244; expressly
the disclosure of such a
prohibiting
finding
United States v.
Fortune,
513 F.2d
jury.
(5th
Cir.
reh.
F.2d
cert.
1975),
denied,
denied,
423 U.S.
96 S. Ct.
V
claimed
not
Another error
but
properly preserved
focuses
on
by any exception
portion
relating
credibility to be accorded
charge
the testimony of the
psychiatrists.
defendant
that he
asserts
by the court’s state
prejudiced
ment
his
interest
in
outcome should
be con
in
sidered
the truth of the statements he
evaluating
made to the
the interviews
psychiatrists
during
and that
their
extent
opinions
they
should be weighed
relied
statements
upon
In no
accordingly.
can this issue be considered
way
fall
doc
“exceptional
within the
circumstances”
Evans,
sky,
trine. State v.
State v. Tabor
supra;
214,
VI
sen-
The defendant claims that
imposition
injury
risk of
both the sexual assault and
tences on
right not
his federal constitutional
counts violated
to be twice put
for the same offense
to “be subject
life
limb.” U.S.
art. V.
Const.,
jeopardy
to the states
applicable
was made
This protection
Benton v. Maryland,
amendment.
fourteenth
L.
2d
Ed.
Ct.
784, 787,
S.
U.S.
court,
in this
rаised
first
This claim too was
fundamental
aof
a question
since
involves
but
con-
will
record we
on the
reviewable
wholly
right
Evans, 70.
See State
it.
sider
attaches
double jeopardy
established
It is
imposed
are
multiple punishments
where
situations
Whalen
trial.
in a
single
offense
for the same
63 L.
Ct.
100 S.
States,
U.S.
United
432 U.S.
Ohio,
Brown
Ed. 2d 715
187 (1977);
2d
*15
53 L. Ed.
2221,
Ct.
S.
97
165,
(1979).
A.2d 1293
425
239, 242,
Conn.
179
Amaral,
v.
act or
the same
is that where
rule
“The applicable
transaction
constitutes
a violation of two distinct
statutory
the test
provisions,
to be applied to deter
mine whether
there are two offenses or only one,
is whether each provision requires proof of a fact
which the other does not.”
v. United
Blockburger
States, 284 U.S.
299, 304,
S. Ct.
Ed.
180, 76 L.
State v.
Goldson, (1932);
424,
422,
423 A.2d
Here the state
concedes8 that
the same act or transaction
both of the
underlay
offenses
statutory
analysis
then
charged.
becomes one of
our
deciding whether,
restricting
examination to the
the information
statutes,
State
the bill of
v.
Truppi,
particulars;
cert.
The defendant concedes upon of аssault in the the fact that risk sexual injury stand in relation greater do not of degree second of offenses. Each requires proof to lesser included In order to not the other. required by an element the risk 53-21,9 under General Statutes convict § state must prove statute, charged, of injury or the morals health an act (2) likely impair (1) See child sixteen. age of a under of (3) 65 (1963). 188 A.2d Dennis, of impairment of likelihood element, The second a necessary is not or health a child, morals a con- Conversely, intercourse. of sexual corollary under degree second sexual assault viction of (l)10 requires proof (a) 53a-71 General Statutes § injury injury to, 53-21. or risk of See. Statutes] 9“[General imрairing or Any person wilfully who of, children. morals or permits any age of sixteen child under unlawfully or causes its life or is endan years in such a situation that limb placed to be injured, likely likely to or its morals is be gered, or its health impair likely to the health or morals act any or impaired, does than five hundred dollars fined more child, shall be count years ten The second or both.” imprisoned not more than “did charged defendant information the substituted under child of a likely impair the health and morals commit acts last statu (16) years ,” relying upon the . . age sixteen . tory alternative. assault in the Sec. 53a-71. sexual Statutes] 10“[General felony, degree: guilty of is sexual (a) person A class c SECOND engаges degree person sexual when such assault in the second person (1) under person and such other another intercourse with years . . age . .” fifteen of intercourse, which is only one of a multitude of acts that would suffice to prove risk of injury.
Therefore the statutory violations risk charged, of injury and sexual assault in the second degree, are not the same offense for double jeopardy pur- poses.
There is no error. Healey In this opinion and con- Js., Parskey, curred. C. J. I strongly disagree (dissenting).
Speziale,
with the majority opinion because there is not the
least bit of evidence—none whatsoever—in
us to
before
allow the
to conclude
majority
rеcord
that
has
the state
shown
a reasonable doubt
beyond
that
ex
communication between
improper
parte
the trial
and a
con-
judge
juror
My
was harmless.
not with the content of the communication
cern is
the trial
in his statement
judge
as described by
concern is with the total
my
on the
rather
record,
record as to the com-
lack
evidence on the
In
absence
and
juror.
munication between judge
the state
I do not believe
evidence,
of such
beyond
harmless
communication to be
can show the
to
case
I
remand this
doubt.
would
a reasonable
at
evidentiary
for an
proceeding
trial court
to
have the opportunity
would
the state
which
meet
its burden.
required
the evidence
develop
cor-
majority
this point,
error on
In finding
communication
ex parte
that an
indicates
rectly
that,
and
is improper
juror
a judge
between
implications
constitutional
because
on
burden is
trial,
criminal
in a
communication
doubt
a reasonable
beyond
show
the state
Aillon See
harmless.
communication
State,
Conn. 334, 338,
In this opinion Peters, concurred. J., Eileen Cahill v. Board of Education
City of Stamford al. et Peters, Healey, Parskey, Shea and F. Hennessy, Js.