State v. Malley

355 A.2d 292, 167 Conn. 379, 1974 Conn. LEXIS 763
Supreme Court of Connecticut·Decided December 17, 1974·Published·Cited by 57 cases

Opinions

House, C. J.

The defendant was charged in a three-count information with possession and sale of a controlled substance, LSD, in violation of §§ 19-481 (b) and 19-480 (b) of the General Statutes. After a trial by jury, he was found guilty on the first two counts of the information and, by direction of the court, not guilty on the third count.

On his appeal to this court the defendant has been represented by counsel other than the attorney who represented him during the trial. He filed seven assignments of error. Two of them were expressly abandoned on appeal. The remaining assignments claim error in the court’s denial of the defendant’s motion to set aside the verdict, in the court’s charge to the jury, and “[i]n allowing, refusing to strike and/or failing to give cautionary instructions as to the testimony elicited by the prosecutor and the arguments of the prosecutor.”

With respect to the court’s denial of the defendant’s motion to set aside the verdict, it is the defendant’s claim that the court erred because, he asserts the verdict was “contrary to law and was against [381] the weight of the evidence because the conflicting evidence offered by the state was not sufficient to support a verdict and because testimony as a whole was not sufficient to support a verdict.” Whether the evidence supports a verdict is tested by the summary of the evidence as printed in the appendices to the briefs. State v. Coleman, 167 Conn. 260, 262, 355 A.2d 11; State v. Siberon, 166 Conn. 455, 352 A.2d 285. From this source, it appears that there was evidence from which the jury could find the following facts: On August 21, 1970, Robert Laviana and Richard Staebler, members of the Central Naugatuck Valley Regional Narcotics Squad, were working as undercover agents in Waterbury. The two officers were approached by the defendant who offered to sell them some LSD. The officers drove to a prearranged meeting place where they met the defendant and purchased the drugs which, upon analysis by the state toxicologist, proved to be LSD, a hallucinogenic drug. The defendant denied that he had made any sale to the officers and testified to his presence elsewhere at the time the officers testified they purchased the drugs from him. He offered the testimony of two witnesses to support his alibi. The issue, therefore, resolved itself into one of credibility to be determined by the jury as the trier of fact; State v. White, 155 Conn. 122, 123, 230 A.2d 18; State v. Hodge, 153 Conn. 564, 572, 219 A.2d 367; and the evidence must be given a construction most favorable to sustaining the jury’s verdict. State v. Benton, 161 Conn. 404, 409, 288 A.2d 411. There is ample evidence summarized in the appendix to the state’s brief to support the verdict of the jury; and we find no error in the ruling of the trial court denying the defendant’s motion to set aside the verdict.

[382] The defendant assigned error in the court’s charge to the jury on the weight to be given to the testimony of alibi witnesses. The charge was in substance the same as that approved by this court in State v. Cari, 163 Conn. 174, 181-82, 303 A.2d 7, in which case we discussed the discretion of the trial court to make fair comment on the evidence and particularly to charge on the credibility of witnesses generally and alibi witnesses in particular. It is well settled that a charge to the jury is to be judged in its entirety and error cannot be predicated on detached sentences or portions of the charge. State v. Raffone, 161 Conn. 117, 127, 285 A.2d 323; State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288. The defendant now claims that the court should not have given the portion of the standard alibi charge which cautions the jury that frequently evidence concerning a claimed alibi will consist, in part at least, of testimony of witnesses who may be friends or associates of the accused and who may, therefore, be held to be in a greater or lesser degree interested. This portion of the standard charge was not pertinent in the circumstances of this case since there was no evidence that the alibi witnesses were in fact friends or associates of the defendant. We cannot, however, conclude that it is reasonably probable that this inadvertent observation would have misled the jury. See Cackowski v. Jack A. Halprin, Inc., 132 Conn. 67, 71, 42 A.2d 838; McMahon v. Bryant Electric Co., 121 Conn. 397, 406, 185 A. 181. The remainder of the charge concerning alibi witnesses was pertinent and correct, defense counsel pointed out in his argument to the jury that both alibi witnesses “had no interest in this case” and, of controlling importance on appeal, the defendant made no request to [383] charge and took no exception to the charge as required by § 249 of the Practice Book as amended.1 As we reiterated in State v. Van Valkenburg, 160 Conn. 171, 174, 276 A.2d 888: “The requirement that either a request to charge be made or an exception be taken if a portion of the charge is to be assigned as error merely implements the fundamental rule that we do not attempt to review on appeal a question which was never raised in or passed on by the trial court. Our practice ‘does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal.’ State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362, cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442.” The assignment of error based on the inclusion in the charge of the reference to the frequency of the appearance of friends and associates of an accused as alibi witnesses clearly does not present a question of federal constitutional dimensions and hence does not involve a claim which is reviewable under the principle laid down in O’Connor v. Ohio, 385 U.S. 92, 87 S. Ct. 252, 17 L. Ed. 2d 189, in the absence of either a request to charge or an exception to the charge.

The defendant’s remaining assignment of error is predicated on a claim that the state’s attorney [384] introduced throughout the trial in his summation to the jury “inflammatory material” and “prejudiced the jury by constant references to the seriousness of the LSD problem.” He claims that the trial court erred “[i]n allowing, refusing to strike and/or failing to give cautionary instructions as to the testimony elicited by the prosecutor and the arguments of the prosecutor” as stated in seven paragraphs of the finding. Four of these paragraphs concern the admission of evidence and three of them concern comments of the state’s attorney during his argument to the jury.

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State v. Malley, 355 A.2d 292, 167 Conn. 379, 1974 Conn. LEXIS 763 (Colo. 1974).

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