*1 finding support in the More- are included this. previously appendices in the facts as noted over, plaintiffs’ from the make it clear course of conduct they only judgment on their own acted that an agreement would be reached and that the letter May agreement. executed 13,1966, intent a firm finding plaintiffs reasonably that the As the acted upon representations and in reliance made supported is attacked and cannot be appendices, the evidence it is stricken. With- finding, only out this the subordinate facts indicate expended voluntarily by the funds were plaintiffs judgment, in a calculated business with its by any inherent not induced risks, conduct of the upon defendant but in reliance a mistaken belief parties agree- that the had executed an enforceable Considering equity principles ment to lease. as previously plaintiffs outlined, the are not entitled damages quasi to recover contract. It is unneces- sary assignments to consider the other of error. judgment
There error, is set aside and the judgment case is remanded with direction to render for the defendant. opinion judges
In the other concurred. v. John W. Ralls of Connecticut House, J.,C. Shapiro, Loiselle, Bogdanski, MacDonald Js. *2 31, 1974 December decision released
Argued October Williams, John R. (defendant). for the appellant Jr., state’s Diette, Ernest J. attorney, assistant Marble, state’s were Arnold brief, with whom, P. chief assistant Richard and Sperandeo, attorney, for the attorney, (state). state’s appellee Ralls, J. The John defendant, W. Loiselle, crime in grand jury indicted of murder the first degree that he “wilfully, deliberately one Howell . . . did shoot Barbara
premeditatedly
53-9
Acts
[repealed by
of section
Public
in violation
October
1,1971]
No.
effective
Gen-
A
of Connecticut.”
returned a
eral Statutes
murder
the second
guilty
degree.
verdict
has appealed.
of error
assignments
Of
advanced
sixty-three
not been
defendant,
thirty
have
briefed
State Weston,
are considered abandoned.
Bitting,
325 A.2d
*3
variously presented,
appeal,1
and
involve claims
the evidence
specifically
(1)
that:
was
verdict;
insufficient
(2) errors were
support
1
unnecessary
Since the
of proof
offers
are
to a determination
issues,
of
assignments
these
the
of error which seek corrections in
Ferraro,
them
need
be considered. State
164
v.
Conn.
318
Ordinarily,
A.2d 80.
however,
validity
the
goes
a claim which
to the substance of
charge
charge
the court’s
or the
refusal
is
tested
proof.
the
claims
$$609, '635;
Practice Book
State v.
Edwards,
527, 528,
Brown,
387;
316 A.2d
State v.
163
Conn. 52, 58, 301 A.2d
assignments
547. Of the nine
of error
directed
finding,
to the
one is irrelevant
to the issues briefed. The
request
remainder
finding
additions
the
expressly
which would
indicate the court’s failure to
on,
instruct
comment on or strike
testimony or which
public
would
the
indicate
defender’s failure to
to strike,
move
object
request
to or
instructions
the
evidence.
requested
These
implicit
corrections are
finding
in the
as set forth.
A finding need not
in language
be
finding.
identical
the draft
with
Turlick,
Walsh v.
164
75, 77,
Conn.
A spent search of the automobile revealed three cartridge casings, .32 caliber expended and one .32 caliber bullet. Two other bullets were removed from body. the victim’s fingerprints Of the five latent lifted from only finger- the interior of the car, print with identifying sufficient characteristics was thumbprint right defendant taken from vent window.
At the time of the murder, the defendant separated from his wife and lived with his three daughters at parents. Gwendolyn home of his Ralls, the defendant’s September, wife, left him in 1969, after he had leg. stabbed her May, in the In 1969, she had Ralls aggravated arrested for assault defendant, he hit with a The
after her bottle. Mil her had her and several threatened occasions, Howell. mother, Barbara on, Rawls, Around 5 a.m. March Ada his mother, defendant’s told to call the defendant sister who had received a letter the defendant from Ms The wife. made the telephone defendant call, and, after went he became and speaMng, upset to bed. Mrs. Rawls did not know about the defend- ant’s towards Ms admit- feelings mother-in-law but ted that she had told the that previously police had he threatened to “get” Ms wife and his mother- in-law. left Ms home March 1, 1970,
around a.m. and drove Ms a black car, Oldsmobile, to the home of Barbara Howell some pick up clothes for Ms three cMldren. The defendant returned home with the left clothes, again and was seen driving away with the deceased in her Chevro- let shortly before a.m. The defendant home came around 3 p.m. that went afternoon, out, returned at 6 or 7 p.m. and evening then left again.
The defendant’s daughter, Sharron, eight, aged had seen a gun when her sister, Michelle, five, aged had laid it on the floor of their bedroom in the presence her sister Jacquelyn herself. Jac- aged quelyn, Mne, testified her sister had told her that their father was going hurt their grand- mother, but that she asked Mm he said “no.”
Donald Rawls, the defendant’s brother, had seen *5 the defendant with a gun on the two mghts before the Sunday that Mrs. Howell was killed. Donald Rawls told the police that the he gun had been shown The defend- automatic. .32 was a the defendant defendant’s Gwendolyn, that him told ant had Monday. live to see wife, would of Samuel the apartment went The defendant some- 1970, on March 1, Haven in West F. Bowens Bowens and asked a.m., and 10:30 time between Corporation Chemical United States to cash a $500 money some owed Bowens had The defendant check. left about Ralls check. for the and received $300 driven any car not see Bowens did a.m. about nothing had said the defendant defendant, but down. or breaking out of running gas his car at United coworker the defendant’s Cook, Charles one day seen the defendant Chemical, had States which 1970, gun in with February, at work Also, automatic. to Cook to be an appeared to Donna the defendant had said 1970, February, for United Chem- office States Burkman, manager if he ical, where defendant was employed, killed his had “last he would have gun night” had a mother-in-law, his mother and his three children. He stated to her interfered in that his mother-in-law his After the marriage. homicide, on March Donna Burkman discovered two checks payroll made out Ralls in checks, advance and five blank as well as were from petty cash, missing $80 office. One of the blank checks check $500 which Bowens had cashed on March
On the afternoon of Wednesday, March the defendant went to Samuel Bowens’ apartment with spoke Mrs. Bowens for ten about minutes when the bim police arrived and arrested at approxi- mately 5:30 p.m. At the time of his arrest defendant had in his possession an envelope con- taining four checks and a petty cash receipt. *6 officer about arresting
When asked the defendant Mrs. Howell, used shoot weapon to the West He taken having gun. denied ever being While and booked. department Haven police department to the Hamden police transported the defendant told and fingerprints, photographs evening, February Saturday detectives «that on in Haven down West 1970, his automobile had broken Dunkin’ Donut shop. on in front of a Avenue Orange an He left car hitchhiked ride home from his March he unknown male. The next morning, started to walk to the home of Barbara Howell his pick up children’s clothes and met way James Senior who him the Howell drove home. The defendant stated that Howell Barbara drove him home where he off the clothes dropped at about 9:45 a.m. He told Mrs. Howell that his car had run gas; out of he asked her to drive him to his car Orange Avenue Dunkin’ Donut shop West Haven. They first at an stopped Atlantic gas station on the corner of Goodrich Street and Shelton Avenue fill a gas can which was in the Howell car and then drove to the Avenue Orange Dunkin’ Donut shop West Haven. He transferred the gas to his car, started his car, and returned the gas can to Mrs. Howell. That was the last he saw of her. The defendant stated this was around 10:15 or 10:30 a.m. He said he returned home, went out, came back and went out again. The defendant explained that later that evening he learned that Mrs. Howell had been murdered, and that he went into hiding because he knew he would be blamed. The defendant at all times denied his guilt to the police.
The defendant’s account to the police of his activ- ities was contradicted by several witnesses. James Senior saw the defendant on March 1, between 10:30 away walking Avenue from Dixwell a.m., *7 dis- body had been Howell of Barbara the where got into car and Senior’s The defendant covered. to his car on Winchester him to drive Senior asked Barbara Howell lived. on which street the Avenue, minutes. There had been three took about The ride police reports a disabled car in front the about no Orange shop on on Donut Avenue the of the Dunkin’ February night of 28,1970. employee of
Neither an Dunkin’ Donuts nor the manager of a car wash next door observed a disabled early in the street when vehicle he arrived at work morning Sunday, Finally, in the March 1. the working gas who two men were at the station where the said he and Barbara Howell had stopped they gasoline testified that had not sold in gas anyone morning. gas can to a that No can was found the Howell automobile.
It is clear that the defendant’s claim that there support was insufficient evidence jury a verdict totally is without merit.2
The defendant next claims that the admission into
fingerprint
evidence of his
him
card denied
due
process
During
testimony
law.
by Sergeant
2At
the conclusion of
the
case,
state’s
orally
defense
counsel
moved for
on grounds
dismissal
that
there was no direct evidence
that
the defendant
had committed the crime.
denial
a
motion to
properly
dismiss is not
Dubina,
assignable
as error. State Anderson,
State A.2d
198,
James E. state McDonald, policeman, the interior of Barbara lifted fingerprints from identified sergeant Howell’s automobile, defendant’s one “which was card as fingerprint file at also C.S.P.I. Identification, Bureau is the 227299.” In to the “What response question, “It is number,” stated, C.S.P. McDonald Sergeant central bureau the criminal arrest records all the State of Connecticut.” The court interrupted I with “Just a moment. caution this ought at this particular time, might it itwas, whatever have been a minor just matter. don’t know *8 of It case, extent it. doesn’t this nor is it affect introduced for that purpose.”
At defense were counsel’s request jury excused. In the absence of the the court it expressed that could duly jury, caution the but it was close to dangerously a mistrial. The defend- ant’s counsel moved for a mistrial, which the court denied. An was noted. exception the jury When returned, “I prosecutor stated, it want make perfectly clear that the only of purpose offering is to card show that Sergeant McDonald compared latent print with the of prints John Ralls.” The court then “I cautioned, don’t know what the it extent covers, whether it might have been some minor matter, or it may have been an application employment. You are not to it give any more weight than that. This man is being tried here on this ease only.” The fingerprint card of the defendant was then received and marked as an exhibit.
While the state is technically correct in asserting that no specific objection was made to the card’s admission, we feel that the defendant’s motion for mistrial which went to the manner of in-court iden- precedent its a condition card, tification objection to being is sufficient evidence, received in advanced. the claim as allow our consideration of Savage, 290 A.2d 445, 449, State v. 161 Conn. prej the defendant was The contention is that fingerprint card exhibit and udiced because the surrounding prove testimony its admission tended charged the commission crimes other than that being and unconnected with the case tried. That evi prove dence tends to the commission of other crimes by the accused does render it inadmissible if it is otherwise relevant and material; State v. Mar Holliday, shall, 166 353 A.2d Conn. State v. 756; 268 A.2d see 169, 172, 368; State v. Jen kins, 158 149, 152-53, 157, 223; Conn. 256 A.2d judge judi if the trial determines the exercise probative outweighs its cial discretion that value its prejudicial tendency. Moynahan, State 325 A.2d cert. 560, 597, denied, U.S. Holliday, 38 L. Ed. 2d S. Ct. supra, 173. principles
Under real or demonstrative evi fingerprints may dence, authenticated *9 be introduced compared fingerprints into evidence and with other at or found near the scene of a crime. 1 Wharton, (13th Ed.) § Criminal Evidence 29 Am. 192; Jur. 2d, § system Evidence, 375. Such evidence as a useful long recognized of identification has been and its competent, admission, when relevant and material, long accepted. has Lung, been State v. Chin 106 Conn. 701,723, 139 91. A. fingerprint
The admission of containing a record extraneous material incompetent, which in itself is may however, constitute depending reversible error past whether the evidence of crimes has been 418 Riley Sigler, F.2d 437 v. or see obliterated;
masked
(8th Cir.); Sibley
F.2d
States, 344
258
v. United
(5th Cir.);
P.
198
State,
418,
Moon v.
22 Ariz.
103
App.);
(Ohio
288;
Viola,
v.
82 N.E.2d
State
jury.
prejudicial
whether the
matter
before
was
(7th
Since all the certified exhibits have been court a and the made contents thereof have been part finding, fingerprint we have examined prejudicial card for such have con material3 and cluded that the exhibit to the revealed as offered past jury, no actual most, evidence crimes. at exposed implication was to an of arrest without dispelled indication of conviction, which was cautionary court’s as the limited instructions purpose fingerprint for which the card offered possibility prints and as to the that the were taken purpose for a employ unrelated as crime, such age ment. particularly In this in these it times is knowledge fingerprinting matter common is used in numerous branches of civil is service and badge not itself Stanley crime. Edmonds and App. State, 5 Md. A.2d 618. "Whenever a fingerprint card is introduced as evidence, however, implication an history potentially of criminal arises which, dispelled. Certainly, course, should be 3On the rear the card at top printed left corner is “Con- necticut Police, Hartford Conn.”; at right, the rear “State Bureau of Identification.” At the rear bottom of the card statement, “Please furnish all history additional criminal police record separate Also, sheet.” on the front of appears the card February the date *10 10, 1970. The rear portion of indicating card history criminal or record is covered paper white taped to the back of the card. every questionable cover practice tois the better including other dates card, element printed matter. denying for motion committed was
No error
fingerprint
The
admitting
exhibit.
mistrial, and
judicial
could
discretion,
of its
in the exercise
court,
probative
of the
value
properly
that the
determine
tendency;
outweighed
prejudicial
State
its
evidence
Marquez,
Moynahan, supra;
Conn.
v.
State
supra;
Holliday,
689;
A.2d
State
47, 52, 273
cautionary
the defendant
instructions,
its
that,
just outcome.
a fair and
would be assured
Grayton,
cert.
246,
302 A.2d
104, 112,
2d
34 L. Ed.
denied,
409 U.S.
93 S. Ct.
294 A.2d
495;
Bausman,
State v.
ducted in the
denied
absence
his trial
stages
him the assistance of counsel
at critical
proceedings
and violated the sixth amendment.
principle
It is central to the constitutional
that the
enjoy
right
accused shall
to have the assistance
of counsel for his defense and that “he need not
against
any stage
stand alone
the State at
prosecution, formal or
informal,
court or out,
might derogate
where counsel’s absence
from the
right
accused’s
to a fair trial.” United States v.
Wade,
420 before record that sometime
The discloses p.m. night defendant’s 8:07 the verdict the public did not the courthouse and defender left jury During instructed return. his absence the were separate returned verdict. two occasions and their simple claim is The the defendant’s answer public the record also that an assistant discloses County appeared for the defender New Haven public the absence defender. During period, jury this the court called the give supplemental “Chip Smith” them instructions; see Smith, instructed jury, question: in answer to their “In case of a judges penalty murder verdict, one are we the sole imprisonment of life or death?”; and received the jury. during period verdict of the At no time this adversary only did factual or arise; issues public matters which faced the assistant defender questions during concerned stage of law. At all times proceeding, the defendant stood with competent represent counsel him. protect claim a sixth amendment violation is without merit.
Approximately forty-five two hours and minutes after began their deliberations, at about p.m., juries time traditionally, at which, are day excused for the and in most instances even dur- ing their deliberations after a case has been sub- mitted to judge them, the jurors trial recalled the into following courtroom, and the occurred:
“The Court: I you have called all because of the hour. trying I hurry your am not deliberations you at all. I want enough to have time to consider them, and consider them thought with all the you if it is a to know can. would like However, get couple send out and matter of a can hours, that, than If it is a matter of more sandwiches. *12 you arranged. dinner, want have it can be arrangements. I I can send out and those make you cannot allow some sort leave have before a verdict. readily somebody got “You can see, sick over- if
night, I would have to mistrial, declare a again. case would have to start all over It would impossibility. [Emphasis added.] be an anybody position long you “Is in a to tell me how you feel that want, whether do, sandwiches would you or would like a sitdown dinner? going
“A Juror:
I think it is
to be a while.
may
“The Court: That is
Iall need to
You
know.
jury
retire
arrangements
to the
room, and
will be
you very
made. Thank
much.”
The defendant asserts that
the italicized state
by
judge
jurors
ments made
the trial
to the
were
right
violative of his
process
constitutional
to due
law and trial
jury.
an
Despite
uncoerced
defendant’s failure to raise this claim in the trial
court, we
right
consider it because a fundamental
is
may
involved and
upon
review
be made
the record.
Chesney,
v.
353 A.2d
630,
783;
State v. Evans,
422 v. United Green 957; L. Ed. 2d 1059, 13 85 Ct. 445, S. judge For a States, Cir.). 856 852, (5th 309 F.2d decided and that a case must he tell a jury only is not a an impossibility mistrial would be in fact. While misleading but is nature compelling to an instruction entitled 423 Sawyers, United States may “hang”; Bowles, United States F.2d 1335, (4th 1340 Cir.); U.S. 592, denied, F.2d cert. (2d Cir.), 193, S. Ct. 27 L. Ed. 2d he is entitled to a jury unfettered an order to decide. Jenkins States, United 380 U.S. 85 S. Ct. 13 L. Ed. 2d context, 957. When considered out the statements order, and, issue such convey an *13 as such, constitute an albeit unde impermissible, signed, transgression into the province jury.
In
the
assessing
of
impact
these
how
statements,
ever, we must consider them from the
of
standpoint
their effect upon the jury in the context and under
the circumstances
in which they
given.
were
See
Jenkins v. United States,
The “because made were deadlock, of a no indication them retaining for reason the to explain the hour” the potential to explain through suppertime ill become were to juror if released for mistrial a with, remarks these judge The prefaced overnight. at all. deliberations your hurry to trying “I am not them, to consider time enough have you want can.” you thought with all consider them misconstruction, if were a potential Even there evidence coercion. any does present case deadlock; no shown indication The had jury to division. The uneontro no hint as there was reasonable doubt showed beyond verted facts After the court’s 5 p.m. inquiry, of the accused. guilt hours, deliberations for several continued jury and did not return a verdict until 9:25 evening. both to and after the state Moreover, jury, prior ments received complained of, Smith” “Chip instructions of a relating duty attempt to agree.4 The defendant claims that the “Chip words, Smith, as used in State v. are: “Although juror the verdict to agrees must, course, which each be his own acquiescence conclusion and not a mere in the conclusions yet fellows, his in order bring twelve minds to unanimous *14 result, jurors the questions should examine with candor the submitted to them regard and with due opinions and' deference to the of each other. In jury conferring together the ought proper to pay respect to each opinions, other’s and listen with candor to each other’s arguments.” The court in original jury included its charge to the following: the you know, your “As verdict must true, be It course, unanimous. is of that the juror verdict to agrees which each must be his own conclu- sion and not acquiescence mere in the conclusion of his But fellows. that does juror not mean that each pursue should his own delibera- judgment tions and regard with no arguments the and con- clusions fellows, of his that, or having reached a conclusion, or he she obstinately should adhere it to without a conscientious effort to test its validity by by other jurors views entertained other on the jury, equally justly wise and duty.” to do resolved their sponte given at sua instruction, which
Smith” any effect of the p.m., coercive exacerbated about 8 in statements issue.5 alleges the court’s of the thrust
The defendant
that
quote
Smith
instruction, which did not
yield
minority
urged
jurors
to the
the
to
verbatim,
majority,
to
coercive
view the
and that it was
give
charge
any
sponte
indica
the
sua
and “without
jury
repeat
disagree.
tion
deadlock.”
“We
We
language
the
in
Walters,
60, 63-64,
State v.
425
duty of careful
on the other hand
and
verdict,
opinions
juror
and
of the views
each
consideration
something
jurors,
which
without
of his fellow
each
likely
body
intelligent
be
to reach
would
no
twelve
any
where there
result
case
unanimous
dispute.
States,
Allen v. United
factual
substantial
only,
supra.
practical
its
has cus
reasons
use
For
disagreement
tomarily
been deferred until after
reported.
102 Conn.
Schleifer,
has
been
Tough
. . .’”
Ives,
A. 184.
725, 130
708,
With jurors required properly if instructed are words are juror’s considered reflect his that each vote must judgment If as to how the case is be decided. jurors . an . . each vote follow such instruction acquittal one will conviction or be either necessarily (1) not will result: three decisions right (2) (3) disagreement. guilty; guilty; disagree implicit.” Bowles, United States (2d Cir.), 428 cert. 400 U.S. 592, denied, F.2d 595-96 91 L. 2d 188. The court’s 193, S. Ct. Ed. 928, “Chip which as a tracked Smith” words, taken whole accurately only conveyed juror’s duty, could go mitigate any alleged misleading or coercive effect of the court’s earlier remarks. “Chip given Smith” after the court had
Even charge, hour indi deliberated for another cating no coercion from the statement that there was p.m. Walters, at 5 State v. court See made A.2d cert. 358 U.S. 786, denied, they L. Ed. returned Ct. 2d When 79 S. p.m. after the 5 some four hours later, about an hour they inquire would it whether be statement, was replied judges penalty. the court as to the After *16 426 jury in ten minutes with affirmative,
the
the
returned
sequence
the
It is
from this
the verdict.
clear
agreement
jury’s
of
final
not reached because
urging
improper
court,
but
submission
given
upon.their own deliberations and the answer
Bradley,
inquiry.
134
at the last
them
State v.
102, 112-13,
Conn.
We cannot conclude the context the in these statements were circumstances which jury actually probably, mis- made, were, the even considering supple- or coerced. the three Thus, led mentary charges not in whole, as a court was jury. error in its instructions to The defendant further claims that there was error permitting in the state to refresh the recollection showing in witnesses the absence of a that recol- failing lection had been in exhausted, to instruct jury hearsay testimony toas nature of the Jacquelyn admitting through in Ralls, evidence testimony Gwendolyn direct Ralls defend- ant had committed other unrelated crimes, and in the court’s failure to instruct on the limited purpose impeaching evidence. regard objection
With to some of these no claims, exception was made; to others, no was taken. With regard all, the court was not informed them timely during or distinct fashion the course of the by request charge. trial or See v. Smith, State 156 Conn. 385-86, A.2d 763; State Baus- man, A.2d 312. assignment
“We are constrained to determine the relating of errors to a claimed violation of constitu- rights though tional even not raised at the trial level previously under circumstances but stated, claims no exceptional matters where evidentiary of error rule from our a departure circumstances require v. Chesney, not be considered.” will 353 A.2d *17 the by briefed final of error assignment effective assistance is that he was denied counsel is held of Proof incompetent counsel. of such a claim a and where stringent standard relief obtained when only representa- be raised, may the as to woefully tion has been so make inadequate Palmer trial farce and a of mockery justice. a Adams, 316, 321, 294 A.2d Costello, A.2d 40, 273
In of claim on argues counsel support appeal that the public defender “filed no motions pre-trial of whatever behalf the defendant. He filed no written motions at trial. Although the cir- state’s cumstantial case was weak, he did not extremely even move a directed verdict or move to set the aside. verdict He no presented evidence at trial. He failed to object highly damaging and clearly inadmissible evidence. Most as shockingly, the retired to decide whether his client should be placed of death, jeopardy he left the courthouse never to return. Neither the record nor the dis- transcript closes his reasons for thus disappearing.”
In the course of this we opinion have discussed the merit of some of these claims incidentally, spe- the cifically failure trial counsel to move to set aside the verdict and the absence trial counsel during deliberation of the jury and the return a verdict. See pp. 415-16, supra. The assertion is also made that trial counsel “failed to object highly damaging and clearly inadmissible evidence.” In support this, appellate counsel claims that the dam “highly evidence allowed into
court improperly while made the defendant by statements aging” Miranda custody grounds police Ct. Arizona, 86 S. (Miranda 384 U.S. arresting 16 L. Ed. 2d 694) warnings given officer were inadequate. Hamden McHenry Malcolm E.
Inspector after immediately police department testified had he the arrest he “that warned the defendant could remain right silent, he said anything I also would be used of law. against him in a court told him that he attorney, had to an right inter- attorney could being be present while he was if viewed him that police. further advised he could not pro- afford an attorney, one would be *18 vided for him him free of I advised also charge. he that could terminate any interview with the police at any time he so him desired, and also advised that any statements he did to be make would have given and freely voluntarily any without promises given.”
The defendant contends that Miranda requires6 that the suspect must be informed by warn “express ing,” that he is “entitled to have counsel appointed made available immediately,” and at “present station or house other place interrogation,” that the warnings given as were inadequate.
In resolving questions of the adequacy of the
warning, courts have given precedence to substance
over form. United States v.
Lamia,
429
F.2d 373,
6
suspect
The
“must be
prior
warned
any
to
questioning that he
right
has
to remain silent,
that anything
says
he
can
used
be
against him in a court
law,
that he
the right to
presence
has
an attorney, and that
if he cannot afford
attorney
an
one will be
appointed
prior
for him
to
questioning if he so desires." Miranda
Arizona,
v.
429 the substance convey which “Words Cir.). (2d 376 information required with along warning of the Vanterpool, v. States United sufficient.” are Cir.). (2d F.2d conveyed defendant warning
The words
The
Miranda
requirement.
the substance
an
“right
had the
he
that
told
was
while
present
could be
attorney
attorney,
if
. . . that
the police
interviewed
being
he was
be pro-
one would
attorney,
afford an
not
could
he
defendant hav-
charge.”
free of
him
vided
to remain
right
he had a
that
informed
been
ing just
he
while
be present
could
attorney
an
silent and
effectively
was
by police
interviewed
being
was
until
any questions
he need
answer
warned
desired. That
if he so
an
attorney
appointed
an
immediately
not be available
might
attorney
seems
the time of
imma-
presentment
until
appointed
the defendant was informed prior
since
terial
that he had the
remain silent
right
questioning
when he did
an
until the time
have
attor-
appointed
States,
See Massimo United
463 F.2d
ney.
see also United
States
Carneglia,
(2d Cir.);
United States v. Lamia,
F.2d 1084 (2d Cir.);
do not
Miranda to require
We
understand
supra.
Cobbs,
more. See State
The related claim that admission into evidence of these custodial statements violated 54-1b and §§ 54-1c of the General Statutes will not be considered except comment it is clearly without merit. In another claim related to the in- defendant’s custody statements, counsel on appeal asserts that the defendant to hear the jury
permitting silent remain right his constitutional invoked amendments. sixth and fourteenth fifth, violated the During McHenry’s testimony concerning post- defendant, arrest conduct and statements of the the defend- attorney assistant state’s asked whether at ant, while he was the Hamden police department, received a call from and from whom. anyone McHenry answered that at he received call p.m. from an attorney who stated that he represented the defendant and wanted to him. with speak When the defendant off “got he on the phone, stated, advice of his he was not attorney, going to carry further any conversation with the police. respected his wishes, and terminated further interview with him.” That was the last contact had McHenry him. with the defendant as far as interviewing court, its motion, own cautioned the jury that after speaking with his attorney, had a perfect constitutional right not to discuss any- thing further with the officers and that it was not militate against him.
It
is well established that
it
is constitutionally
impermissible
for court or prosecutor
to comment
on a defendant’s
failure
in his
testify
own behalf.
v. California,
The eases which the defendant cites support of his claim and which stand for these propositions are *20 defendant’s inapplicable The at hand. to the facts any carry further he would statement that speak voluntary one made after conversation was distinguished ing counsel, as with and advice deny accusation. See State from a failure an Tryon, 54. A.2d 304, 308, 142
McHenry’s
testimony
indicated
had
earlier
given
being
warn-
the Miranda
after
defendant,
remaining
ings,
in the
silent
face
rather than
had,
interrogation,
made statements
accusation and
testimony
questions.
in
issue
and answered
only why
termi-
went to show not
the interview was
opportu-
nated, but also that the defendant had an
nity
speak
with counsel and that the interview
Under such
ceased when
defendant so desired.
testimony
impermis-
was neither
circumstances,
sibly
improperly
nor
Moreover,
elicited
admitted.
emphatic
the court’s clear and
instructions to the
perfect right
that the defendant had a
to termi-
nate the conversation and that it should not militate
against
go
dispel any
him would
adverse inference
might
Tryon, supra,
which
have arisen. See State v.
Because these claims are so intertwined with the
incompetent
claim of
counsel, we have decided to
though they
review
even
them
were never raised and
passed
Ordinarily,
on in the trial court.
under such
circumstances, some of these claims would not be
considered. See State v. Bar tee, 167 Conn. 309, 314,
As to counsel’s other of ineom- assertions petency, determining “[i]n whether a defense coun- competent, using sel was we must be careful hind- sight hindsight combing for in Almost case a possible the record will reveal alternatives trial *21 432 v. Ballard F.2d States
tactics.’ United
. . .
[423
Adams, 162
Palmer
v.
127,
(5th Cir.)].”
134
in the
indicated
As we
Upon entire tran- even if were we a less script, apply than literal of the stringent interpretation standard finding we cannot incompetent counsel, say that trial coun- sel’s omissions commissions amounted to repre- sentation so as. to inadequate sustain such a claim.
There is no error. In this opinion Shapiro C. J., and Mac- House, Js., concurred. Donald, J. (dissenting). It has always been
Bogdanski,
of this
policy
state that
it is more important
to enforce the time-tested safeguards
erected by the
law for the protection of the innocent
than to sub-
vert
them in order
prevent
an apparently
guilty person from escaping punishment.
Holup,
A trial States, In v. United verdict. Jenkins must reach 13 L. Ed. 2d 85 S. Ct. 380 U.S. jury: got judge “You a deadlocked have told
trial Supreme a decision this ease.” to reach found that instruction to be coercive and Court *22 per the conviction curiam decision. reversed you in this ease “I The instruction cannot allow have some sort leave a verdict. You before readily somebody got overnight, see, can sick if mistrial, would have declare a and this case would again. impos- to start over have all It would be an sibility [emphasis only added],” could have had a impact upon regarded coercive and must be peremptory as that kind of command the trial judge summarily so condemned in Jenkins v. United supra. States, guilty,
“If the accused be he should none the less only be convicted strictly after a fair trial, conducted according to the sound and well-established rules prescribe.” which the laws State v. Ferrone, 96 Conn. 160, 169, “[T]he principle A. 452. jurors may not be surrendering coerced into views conscientiously require held is so clear as to no elaboration.” supra, Jenkins v. United States, cf. v. United States, 272 U.S. 47 S. Ct. Brasfield L. Ed. 345; United States v. Dunkel, (2d Cir.). F.2d 506
I would find judgment error, set aside the order a new trial.