State v. McDougal

699 A.2d 872, 241 Conn. 502

• Court: Supreme Court of Connecticut
• Decided: July 8, 1997
• Docket: SC 15500; SC 15501
• Status: Published

Opinions

Opinion

MCDONALD, J.

After a joint trial before a jury, the defendants, John Ruffin and Charles McDougal, were convicted of conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a).¹ Ruffin was also convicted of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a).² The defendants appealed from the judgment³ of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, both defendants claim that: (1) the trial court improperly admitted into evidence for substantive purposes the prior inconsistent statements of two witnesses; and (2) the state’s peremptory challenges of several venirepersons because of their youth deprived the defendants of their right to a fair trial. Ruffin additionally claims that the trial court: (1) failed to require the state to describe the manner in which he was alleged to have committed manslaughter in the first degree; and (2) deprived him of his right to a fair trial by evincing a bias in favor of the state. We affirm the judgment of the trial court in each case.

The jury reasonably could have found the following facts. In July, 1993, Ruffin was locked in a territorial dispute over drug selling at the Southfield Village housing project in Stamford with a group known as the “Jamaicans.” On July 3,1993, Ruffin’s girlfriend, Toneria Dix, had a fight with Teresa McCullen at Southfield Village. During the fight, two “Jamaican” males held Dix while McCullen sprayed her with mace.

When Dix and her friend, Nancy Thompson, reported this to Ruffin at Ludlow Street that afternoon, he immediately organized and led an armed assault on the “Jamaicans” at Southfield Village. Ruffin was armed with an AR-15 assault rifle and his five companions, including McDougal, were armed with handguns. Dix and Thompson traveled with Ruffin and McDougal to Southfield Village in one automobile, and the others traveled in another automobile. When Ruffin’s followers spotted the “Jamaicans” and McCullen in the Southfield Village courtyard, they opened fire.

At the time, there were approximately seventy people in the courtyard, including seven year old Jasmine Merced, who was attending a birthday party with about fifteen other children. In the midst of eating cake and ice cream, Jasmine Merced was shot and killed in the presence of her mother.

I

Each of the defendants claims that the trial court improperly admitted for substantive purposes the written statements that Thompson and Ebony Phillips provided to the Stamford police. The defendants argue that the court should have allowed them to inquire further into the circumstances surrounding the reliability and voluntariness of the statements prior to admission, and that the statements were not sufficiently rehable to justify admission. The defendants finally argue that the trial court improperly bolstered the credibility of the statements by its comments and instructions to the jury.

At trial, the state called Thompson, who testified on direct examination that she went to Ludlow Street with Dix and Patricia Williams in a grey car. Thompson testified that after Dix talked to Ruffin, she, Dix, Williams, Ruffin, McDougal and Torik Baldwin returned to South-field Village. Although she further testified that the other assailants, as well as a red sports car, were also at Ludlow Street, she said that she did not see anybody leave in the red car. Initially, Thompson also testified that she did not hear Ruffin say anything at Ludlow Street or while traveling to Southfield Village. At one point, however, she testified: “Only thing I know [Ruffin] said was — if you coming, come. If you not — is you coming.” She further testified that she saw a soft, black pouch in the grey car, that it looked like it had a gun in it, but that she did not see what was underneath the pouch.

The state then sought to introduce a prior, contradictory written statement signed by Thompson on May 6, 1994. Thompson testified before the jury that she provided the information contained in the statement. She also testified that when she gave the statement to police, she was attempting to be truthful and accurate. Outside the presence of the jury, she testified that a police officer typed the statement as she spoke. She then read and corrected the statement, initialed a rights waiver section, and signed each of the three pages of the statement. In that signed statement, Thompson attested that her statement was truthful and voluntary, and that she was aware of the penalty for perjury. Then defense counsel questioned Thompson concerning the statement. She responded that the statement had not been given voluntarily or under oath, and that she had not gone to the police station of her own free will. When defense counsel sought to question Thompson further about how she traveled to the police station, where the statement was given, and whether she was told what would happen to her if she did not sign the statement, the trial court sustained the state’s objection to the relevancy of the questions.

The defendants argued that if they had been permitted to continue questioning Thompson, she would have stated that the police “came to her home, put her into a police car, brought her to a police station, put her into a room in a detective bureau . . . threatened and intimidated her . . . [a]nd had already prepared at least some portions of this statement before her arrival there.” The trial court then found that a part of the statement was admissible pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).⁴

“In State v. Whelan, supra, [200 Conn.] 752, we emphasized that a prior inconsistent statement had to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible. We therefore declined to allow prior oral statements of a witness to be used as substantive evidence, ‘limitfing] substantive admissibility of prior inconsistent statements to situations where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced.’ Id., 753. While we noted that the requirement that prior statements be written and signed ‘is not an absolute guaranty of reliability, it does provide significant assurance of an accurate rendition of the statement and that the declarant realized it would be relied upon.’ Id., 754.” State v. Grant, 221 Conn. 93, 100, 602 A.2d 581 (1992).

The history of our admitting prior inconsistent statements for the truth of their contents began in State v. Whelan, supra, 200 Conn. 747, in part, because of the “realities of the criminal process.” (Internal quotation marks omitted.) These realities include the fact that “the parties are rarely able to select their witnesses: they must take them where they find them.” Chambers v. Mississippi, 410 U.S. 284, 296, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). Thus, “ ‘[d]enial of the right [to impeach the witness] leaves the party at the mercy of the witness and the adversary.’ ” State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986).

These realities are illustrated in State v. Grant, supra, 221 Conn. 101-102, where witnesses to a killing arising from a drug feud between rival drug dealers recanted their tape-recorded statements, and State v. Hopkins, 222 Conn. 117, 121, 609 A.2d 236 (1992), where an eyewitness to a robbery murder was no longer able to identify, as she had done in a written statement, the killer of her companion. In State v. Hopkins, supra, 125, the trial court was confronted with a written statement from a drug-dependent prostitute given only after the police told her that she and her husband were suspects in the crimes, and that there were other charges pending against her, all while she was under the influence of Percocet, a powerful drug. There, this court stated: “Although these factors are relevant and proper matters for cross-examination they go to the weight of the evidence and not its admissibility.” Id. This is precisely the manner in which the trial court in this case treated the claim of police pressure and the witness’ written statement. In Hopkins, we did not depart from our determination in Whelan that a written and signed statement provides significant indicia of reliability to justify admission. We hold that the trial court’s ruling was correct and within its sound discretion. The trial court was not required to allow defense counsel to question Thompson further concerning the circumstances of her statement prior to admitting it.

The dissent, accepting Thompson’s testimony, equates the rack and the screw used in extracting a false statement to police persuasion used in obtaining statements from eyewitnesses to violent and fearful crimes. Unfortunately, in an atmosphere of violence, such witnesses may wish to say nothing or, if they do, later say they saw nothing. The Whelan principle’s growing acceptance in our law; see 3A J. Wigmore, Evidence (Sup. 1996) § 1018; is but a reflection of that sad reality. Under Whelan, we leave considerable latitude to the trial judge, who sees and hears the witnesses and gauges the reliability of the statement in the circumstances of the trial. State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).

Before admitting a Whelan statement for substantive purposes, the trial court must determine that the statement was “ ‘made under conditions deemed to render [it] equal in reliability and trustworthiness to those made under the sanction of an oath and the test of cross-examination.’ ” Id., 602, quoting State v. Whelan, supra, 200 Conn. 752. Thompson had testified that the police typed her statement as she gave it, and that she read and corrected each page of the statement before signing that page. Although the defendants elicited testimony from Thompson concerning police pressure to give a statement, she did not repudiate the truthfulness of the statement she made to the police, but, rather, admitted making the statement introduced into evidence. The credibility of Thompson regarding the circumstances of the statement was for the trial court to assess. We cannot substitute our evaluation based on a printed record. The court found that Thompson’s out-of-court statement had sufficient indicia of reliability to be admitted for substantive purposes. In doing so, the court explicitly acknowledged the requirement that the statement be given under circumstances where the “ likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced’ . . . [and that] the trial court must reasonably find sufficient indicia of reliability in the circumstances surrounding the statement to admit it substantively. ” (Citations omitted.) In re Basset C., 33 Conn. App. 90, 94-95, 633 A.2d 733 (1993).

The court was considering a statement that was written, signed under oath and given after Thompson was advised that it was a crime to give a false statement. See State v. Newsome, supra, 238 Conn. 599-600. The statement thereby provided significant assurance that it was accurate and that the declarant realized it would be relied upon. Ultimately, it was for the trial judge, who observed Thompson testify, to determine if the statement should be admitted and for the jury to determine if it should be credited. The defendants were afforded an opportunity while cross-examining Thompson before the jury to explore all the circumstances of her statement. Thus, the jury could weigh her claim of police pressure while deciding when she was telling the truth. We conclude, under the facts and circumstances of this case, that the trial court did not abuse its discretion in admitting the prior inconsistent statement of Thompson.

The defendants also complain of the admission of the prior, written statement of Phillips. Ruffin’s younger sister.⁵ Again, they argue that the evidence demonstrates its unreliability. Phillips testified, however, that she and her mother read and signed the statement, which was voluntarily given. The defendants now argue that she had trouble reading part of the statement and that it should not have been admitted. The defendants made no such objection at the trial. The defendants also had a full opportunity to cross-examine her before the jury. Under these circumstances, we affirm the trial court’s rulings.

Under the hearsay rule, extrajudicial statements have no affirmative value because they are made out-of-court by absent persons not subject to cross-examination. Here, both witnesses were present and subject to cross-examination. There was an opportunity to question them as to the basis of their initial statements. Thus, the purpose of the hearsay rule was satisfied. We have held that a jury should not be prevented from giving statements such testimonial credit as they may seem to deserve. See State v. Whelan, supra, 200 Conn. 749-50, citing 3A J. Wigmore, Evidence (Chadbourn Rev. 1970) § 1018. As Judge Learned Hand stated: “If, from all that the jury see of the witness, they conclude that what [she] says now is not the truth, but what [she] said before, they are none the less deciding from what they see and hear of that person and in court.” Di Carlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925); see State v. Whelan, supra, 750.

The defendants also claim that the trial court improperly bolstered the credibility of the statements. The court instructed the jury that it was allowing the state to introduce statements by the witnesses that were given at a prior time and that were inconsistent with their testimony. The court also informed the jury that it could determine whether to give credence to the in-court testimony or the out-of-court statements. We conclude that these correct instructions did not bolster the credibility of the statements. We therefore find no error in the trial court’s instructions to the jury regarding the statements.

II

The defendants claim that the state violated their federal and state constitutional rights to a fair trial by exercising peremptory challenges to exclude potential jurors on the basis of their youth. The defendants cite cases invoking the equal protection clause of the fourteenth amendment to the United States constitution as well as the fair cross section requirement of the sixth amendment to and the due process clause of the United States constitution. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). The defendants also cite article first, § 8, of the Connecticut constitution.

The defendants objected to the state’s peremptory challenges of four jurors. In their order of appearance, these challenged jurors were ages twenty-three (Juror 1), twenty (Juror 2), twenty-two (Juror 3), and twenty-two (Juror 4).⁶ The defendants objected to the challenges of Jurors 1, 3 and 4 immediately. The defendants did not immediately object to the challenge of Juror 2, but later argued that the challenge was a part of the state’s pattern of excluding young persons.⁷

In ruling on the state’s challenge of Juror l,⁸ the court accepted the state’s proffered explanation that it believed the juror did not exhibit the requisite maturity. Regarding the state’s challenge of Juror 3, the court accepted the state’s proffered explanation that the juror’s attire showed a lack of maturity. In ruling on the state’s challenge of Juror 4, however, the trial court stated: “I’m going to indicate that at this point the state has manifested what appears to be a decision to exercise peremptory challenges based on age, and I don’t wish to jeopardize the entire situation by overlooking the defense objections that this would be an inappropriate exercise of a peremptory challenge by a state’s attorney, especially when the defendants are both young men . . . .” The trial court, therefore, sustained the defendants’ objection and overruled the state’s peremptory challenge of Juror 4. The defendants argue that, under these circumstances, the trial court was required to declare a mistrial and begin jury selection anew.

In Batson v. Kentucky, supra, 476 U.S. 96, the United States Supreme Court held that the use of peremptory challenges to exclude “a cognizable racial group” from a jury violated the equal protection clause of the United States constitution. That court later explained that this protection concerned the removal of “cognizable groups” by peremptory challenge, but not other groups subject to rational basis review. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). In extending the “cognizable group” label to gender-based discrimination, the court stated: “All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination.” Id., 142-43.

No federal court has held that persons of any age constitute a “cognizable group” under the equal protection clause. See, e.g., United States v. Pichay, 986 F.2d 1259, 1260 (9th Cir. 1993) (“[n] either the [United States] Supreme Court nor any [C]ircuit [Court of Appeals] has held that the Equal Protection Clause prohibits the government from striking venirepersons on account of youth”); United States v. Jackson, 983 F.2d 757, 762 (7th Cir. 1993) (“no court has found a Fourteenth Amendment equal protection violation based upon the exclusion of a certain age group from the jury”); United States v. Cresta, 825 F.2d 538, 539 (1st Cir. 1987) (young persons are not “cognizable group” for Batson purposes). Even the “aged” do not constitute a cognizable group. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313-14, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976). We conclude, therefore, that there is no merit to the defendants’ claim that their equal protection rights under the federal constitution were violated.

The defendants also rely on article first, § 8, of the Connecticut constitution, to ask that we determine that “young persons” are a cognizable group for jury selection purposes.⁹ They claim that the exercise of peremptory challenges against that group violates the defendants’ right to a fair trial under the Connecticut constitution.¹⁰ The following factors to the extent applicable are to be used in considering a claim under our state constitution: (1) the text of our constitution; (2) decisions of this court and the Appellate Court; (3) federal precedent; (4) sister state decisions; (5) the history of our constitution; and (6) economic and social considerations. State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992).

In support of his claim, McDougal cites the one case that supports his position. In State v. Zavala, 259 N.J. Super. 235, 241, 611 A.2d 1169 (1992), the New Jersey Superior Court held that under article I of the New Jersey constitution, “jury selection based on [a] group bias [against young persons] is constitutionally impermissible because it offends the constitutional guarantee of a fair and impartial trial.” That holding is questionable, however, because the decision was criticized in State v. Bellamy, 260 N.J. Super. 449, 453-57, 616 A.2d 1323 (1992), cert. denied, 133 N.J. 436, 627 A.2d 1141 (1993). The court in Bellamy correctly recognized that “to be classified as cognizable ... a group must be one that has been historically excluded, on the basis of stereotypical prejudices, from full participation in the significant duties and privileges of American citizenship. So judged, we hold that, until demonstrated otherwise, age-defined groups are not cognizable for purposes of impartial jury analysis.” Id., 456-57; Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985).

McDougal also relies on People v. Bartlett, 89 Misc. 2d 441, 393 N.Y.S.2d 866 (1977), in which the Supreme Court of New York sustained a challenge to a jury array that excluded persons under age thirty. That case, however, is distinguishable because it concerns the requirement under the sixth amendment to the United States constitution “ ‘that jury panels be drawn from a source representing a “fair cross section” of the community in which the defendant is tried. Taylor v. Louisiana, 419 U.S. 522, 536 [95 S. Ct. 692, 42 L. Ed. 2d 690] (1975); United States v. LaChance, 788 F.2d 856, 864 (2d Cir.), cert. denied, 479 U.S. 883 [107 S. Ct. 271, 93 L. Ed. 2d 248] (1986). . . . [T]he Sixth Amendment guarantees the opportunity for a representative jury venire, not a representative venire itself. Roman v. Abrams, 822 F.2d 214, 229 (2d Cir. 1987), cert. denied, 489 U.S. 1052 [109 S. Ct. 1311, 103 L. Ed. 2d 580] (1989).’ . . . United States v. Jackman, 46 F.3d 1240, 1244 (2d Cir. 1995).” (Emphasis in original.) State v. Ellis, 232 Conn. 691, 698-99, 657 A.2d 1099 (1995); see also State v. Faust 237 Conn. 454, 466, 678 A.2d 910 (1996); State v. McCarthy, 197 Conn. 247, 253-54, 496 A.2d 513 (1985); State v. Castonguay, 194 Conn. 416, 430, 481 A.2d 56 (1984). “[I]n holding that petit juries must be drawn from a source fairly representative of the community [the United States Supreme Court] imposed no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, Fay v. New York, 332 U.S. 261, 284 [67 S. Ct. 1613, 91 L. Ed. 2d 2043] (1947); Apodaca v. Oregon, 406 U.S. [404, 413, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972)] (plurality opinion); but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” (Emphasis added.) Taylor v. Louisiana, supra, 538.

There is a difference between a “distinctive group” regarding the composition of the jury pool and a “cognizable group” for jury selection purposes. “As an evidentiary matter, it is more difficult to establish that a classification is suspect [and, therefore, cognizable] than it is to show that a group is ‘distinctive’ .... See Cleburne v. Cleburne Living Center, Inc., [supra, 473 U.S. 445-46].” State v. Tillman, 220 Conn. 487, 499, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). Age groups are not subject to heightened judicial scrutiny and, therefore, are not cognizable groups for jury selection purposes. United States v. Pichay, supra, 986 F.2d 1260; United States v. Jackson, supra, 983 F.2d 762.

Our resolution of the defendants’ claims does not require us to decide whether young persons are a distinct group subject to the due process right to have jurors chosen from a fair cross section of the community. See Ford v. Seabold, 841 F.2d 677, 681 (6th Cir.), cert. denied, 488 U.S. 928, 109 S. Ct. 315, 102 L. Ed. 2d 334 (1988); see also Hamling v. United States, 418 U.S. 87, 137, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). If we were to make such a determination, we would have difficulty defining what age groups are distinct from other age groups. In fact, the defendants have cited different age groups as distinctive. See footnote 6 of this opinion. We would also be required, if possible, to determine by what attitudes, values and experiences some persons are considered young or not young. Age itself is no more instructive in this respect than having blue eyes. A person may be “young at heart” at any age.¹¹ See Barber v. Ponte, 772 F.2d 982, 998 (1st Cir. 1985) (“[W]hat is the evidence that the attitudes and thinking of, say, 30 year olds have more in common with 18 year olds than they do with 40 year olds, or for that matter, going to the other end of the scale, that 18 year olds have more in common with 28 year olds than with 16 year olds? How do we know that there should be two groups, 18 to 28 and 28 to 35, or three, or four groups encompassing other boundaries?”).

Several state courts have held that the exercise of peremptory challenges against cognizable groups violates the independent right to trial by an impartial jury guaranteed by their respective state constitutions. People v. Wheeler, 22 Cal. 3d 258, 276-77, 583 P.2d 748, 148 Cal. Rptr. 890 (1978); Riley v. State, 496 A.2d 997, 1012 (Del. 1985), cert. denied, 478 U.S. 1022, 106 S. Ct. 3339, 92 L. Ed. 2d 743 (1986); State v. Neil, 457 So. 2d 481, 486 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S. Ct. 170, 62 L. Ed. 2d 110 (1979); State v. Gilmore, 103 N.J. 508, 522, 511 A.2d 1150 (1986); State v. Crespin, 94 N.M. 486, 488, 612 P.2d 716 (1980). The defendants have not, however, provided this court with authority developing the principle that young persons are a cognizable group for jury selection purposes.

Article first, § 8, of the Connecticut constitution guarantees a defendant the right to a public trial by an impartial jury, independent of the federal constitution. State v. Esposito, 223 Conn. 299, 308, 613 A.2d 242 (1992).

Article first, § 19, of the Connecticut constitution, as amended by article four of the amendments to the constitution, provides in pertinent part: “In all civil and criminal actions tried to a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. . . ,”¹² Prior to this amendment, this court stated: “ ‘[T]he right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused . . . ” DeCarlo v. Frame, 134 Conn. 530, 533, 58 A.2d 846 (1948), quoting Pointer v. United States, 151 U.S. 396, 408, 14 S. Ct. 410, 38 L. Ed. 208 (1894). We recently stated that article first, § 19, reflects that “peremptory challenges occupy a special position in this state’s jurisprudence.” State v. Day, 233 Conn. 813, 845, 661 A.2d 539 (1995); see also General Statutes § 52-540.

In adhering to the difference between a “distinctive group” and a “cognizable group,” we recognize the protections of the due process and equal protection clauses of the federal constitution. In balancing the important right of peremptory challenges against the right to have a jury selected in a nondiscriminatory fashion, the United States Supreme Court has determined that the right of peremptory challenges gives way only when challenges are exercised to exclude a cognizable group from a petit jury. J.E.B. v. Alabama ex rel. T.B., supra, 511 U.S. 143; Batson v. Kentucky, supra, 476 U.S. 90-93; Swain v. Alabama, 380 U.S. 202, 214-24, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). Given the unique role of peremptory challenges in this state, we cannot say that the balance should be struck differently under our constitution. We conclude, therefore, that the exercise of peremptory challenges against “young persons” would not violate the defendants’ right to due process under the Connecticut constitution.

Ill

In his appeal, Ruffin further claims that the trial court failed to require the state to specify the maimer in which he was alleged to have committed manslaughter in the first degree. We disagree.

Ruffin filed a motion for a bill of particulars, pursuant to Practice Book § 832,¹³ requesting, inter alia, information specifying the conduct and acts of the defendant that allegedly constituted the offense. Thereafter, the state filed a bill of particulars stating that the offense of manslaughter in the first degree; General Statutes §§ 53a-55 (a) (3) and 53a-8 (a);¹⁴ occurred on July 3, 1993, at or about 7 p.m., in Southfield Village, and resulted in the death of Jasmine Merced. Ruffin objected to the bill of particulars, arguing that he was entitled to know if the state intended to prove that he had fired a gun in the commission of the offense. The trial court, however, did not require the state to disclose such information.

“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial. State v. Cates, 202 Conn. 615, 625-26, 522 A.2d 788 (1987); State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); States v. Stepney, 191 Conn. 233, 240, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). State v. Laracuente, 205 Conn. 515, 518, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). When the state’s pleadings have informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty. . . . State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see State v. Morrill, 197 Conn. 507, 551, 498 A.2d 76 (1985); State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984); State v. Killenger, 193 Conn. 48, 55, 475 A.2d 276 (1984); State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983).

“[T]he denial of a motion for a bill of particulars is within the sound discretion of the trial court and will be overturned only upon a clear showing of prejudice to the defendant. . . . State v. Spigarolo, supra, [210 Conn.] 385; State v. Laracuente, supra, [205 Conn.] 519. A defendant can gain nothing from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. State v. Rafanello, 151 Conn. 453, 457, 199 A.2d 13 (1964) .... State v. Spigarolo, supra, 382.” (Internal quotation marks omitted.) State v. Kyles, 221 Conn. 643, 652-53, 607 A.2d 355 (1992).

Ruffin claims that he was prejudiced by the court’s refusal to order the state to specify the manner in which he allegedly committed manslaughter in the first degree. He argues that if the state were not alleging that he himself used a firearm, he would have filed a motion to dismiss the charge. It is undisputed, however, that before trial Ruffin had reviewed the state’s files and the witnesses’ pretrial statements. Ruffin was, therefore, aware that those accounts did not indicate that he himself had fired a weapon at the Southfield Village courtyard where Jasmine Merced was killed.

“[T]his court has on numerous occasions adverted to sources extrinsic to the specific count or information to determine whether the defendant was sufficiently apprised of the offense charged. See, e.g., State v. Frazier, [194 Conn. 233, 237, 478 A.2d 1013 (1984)] (defendant sufficiently apprised where he had access to state’s file, police reports and demonstrative evidence); State v. Beaulieu, 164 Conn. 620, 626, 325 A.2d 263 (1973) (information supplied by another count, state’s attorney and court); see also State v. Moffett, 38 Conn. Sup. 301, 310, 444 A.2d 239 (1981) (defendant’s access to prosecution file).” State v. Spigarolo, supra, 210 Conn. 384.

Because he had access to all the witnesses’ statements and the bill of particulars specified he was being charged as an accessory, Ruffin knew that the nature of the charge against him was as an accessory. Moreover, he was acquitted of this charge. Under the circumstances, we cannot conclude that the trial court abused its discretion to the prejudice of Ruffin.

IV

Ruffin finally argues that the trial court engaged in a prejudicial pattern of misconduct that demonstrates a bias against him. He claims that the court, therefore, deprived him of his right to a fair trial. Ruffin asserts that the trial court, outside of the presence of the juiy, referred to the defendants as “cowards” and “animals” and did not allow defense questions of prospective jurors and witnesses in the absence of objections by the state. Ruffin maintains that these actions assume significance when considered in conjunction with the court’s adverse rulings on the bill of particulars, the state’s amendment of the information and the admissibility of Whelan statements. Ruffin did not raise this claim before the trial court and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).¹⁵

“ ‘Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral atmosphere. U.S. Const., amend. XIV; Conn. Const., art. I, § 8. State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Gordon, 197 Conn. 413, 424D, 504 A.2d 1020 (1985); State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986).” State v. Cruz, 212 Conn. 351, 364, 562 A.2d 1071 (1989). We have carefully reviewed the record to ensure that Ruffin received a fair trial before the trial judge, and we conclude that Ruffin’s claim is without merit.

The trial court did not, as claimed, describe the defendants as “cowards” and “animals.” The record reveals, instead, that the court used these terms when Dix refused to testify despite a grant of immunity by the state. When it stated that “cowards” and “animals” had engaged in a shooting in Southfield Village, the court was explaining to Dix the consequences of her refusal to testify and that it was required to take some action under the circumstances. The court told Dix that she was obligated to testify if she had information concerning these crimes. The court did not identify the defendants as “cowards” and “animals,” but commented, in considering Dix’s refusal to testify, on the nature of the offenses. After the court gave Dix several days to consider her decision, it sentenced her to six months imprisonment for her continued refusal to testify.

Ruffin also argues that the trial court prevented him from questioning prospective jurors and witnesses when the state had not objected to defense counsel’s questions. “The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. . . . [I]t is appropriate for the trial judge from time to time to intervene in the conduct of a case.” (Internal quotation marks omitted.) State v. Fernandez, supra, 198 Conn. 11; People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 422 N.E.2d 556, 439 N.Y.S.2d 896 (1981). We hold that the trial judge’s conduct here was appropriate.

Ruffin has made no claim that the evidentiary rulings or permitting the amendment of the information were improper. We have, as appears above, also found no abuse of discretion by the trial court in its rulings concerning the state’s bill of particulars and the admissibility of the Whelan statements.

Accordingly, we conclude that the trial court did not evince a bias against Ruffin. The record demonstrates that Ruffin received a fair trial presided over by an impartial judge in a patient and evenhanded manner. Ruffin’s claims, therefore, are without merit.

The judgment is affirmed.

In this opinion NORCOTT, J., concurred, and PALMER, J., concurred as to parts II, III and IV and concurred in the result as to part I.

1 General Statutes § 53a-54a (a) provides in relevant part: “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.”

The jury acquitted both McDougai and Ruffin of manslaughter in the first degree. See General Statutes §§ 53a-55 (a) (3) and 53a-8. The jury also acquitted McDougai of criminal attempt to commit murder. See General Statutes §§ 53a-54a, 53a-8 and 53a-49.

2 General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

Ruffin was charged in an amended information with one count each of conspiracy to commit murder and manslaughter in the first degree and two counts of criminal attempt to commit murder. The trial court granted Ruffin’s oral motion for a judgment of acquittal as to one count of criminal attempt to commit murder. Thereafter, the state filed the substitute information that resulted in the verdict and judgment involved in Ruffin’s appeal.

3 Ruffin has appealed from the judgment of the trial court sentencing him to forty years imprisonment, and McDougai has appealed from the judgment of the trial court sentencing him to twenty years imprisonment, suspended after fourteen years, and five years probation.

4 Only the following portion of the statement was submitted to the jury: “Before w~e left the south end [Ruffin] said to [Baldwin], ‘If you are going to do something, come on. If you are not going to do nothing, don’t come.’ I saw a large gun in a carrying bag, and underneath the bag were some smaller guns. These guns were on the floor, near the back seat.

“There was also a second car there, the one which Smash [Wooten] and Dwayne [Goethe] came up on. This car I believe is Dwayne’s, because I seen him in it before. When we left the south end, Dwayne, Smash and Marcellus [Ruffin] went in the red car. We pulled off first, and they pulled off second.”

5 The following portion of the statement was read to the jury: “Statement of Ebony Phillips, 5/24/94: My name is Ebony Phillips. I am fifteen years old. . . .

“On the Friday before the 4th of July in 1993,1 was picked up in Hartford by my father, Eddie Phillips, and his girlfriend. I had my son with me. That night, I stayed in Bridgeport with my father’s girlfriend.

“On the Saturday before the 4th of July, 1993, my father and girlfriend drove me and my baby to Stamford. When we got to Stamford, we went shopping.

“After shopping, we went to my grandmother’s, Mildred Phillips, house. While I was there, my cousin, Latonya Phillips, came over.

“My father wanted me to meet my brother. I don’t know his name, but he is heavy, fat. We, me and my baby, Latonya and her baby and my father drove to a back parking lot and the buildings were blue. The buildings were a couple of stories high.

“When we got there, I saw this girl who was messed up. Her face had scratches on it and her hair was messed up.

“My brother and his girlfriend were arguing with each other. I heard him say they were going up there. And he was going to have a fight with 1lie girls who rolled on her. I heard my brother say they were going to have a shoot out at about four in the afternoon. I saw my brother with a gun in the back of his pants, not in his pocket, but in his waistband. My brother’s gun was a black gun.

“We decided to leave. We drove back to my grandmother’s house after we went shopping. I wanted to see if I could get some money. It was about an hour after we left from seeing my brother.

“At my grandmother’s, I saw my brother’s girlfriend talking to this girl. This girl was at my grandmother’s house earlier.

“About two or three hours later, I was outside my grandmother’s apartment when I heard gunshots. I saw seven to nine men with masks on. They all had guns and they were shooting towards the center of the yard. They were dressed in black.

“I grabbed my son and ran into my grandmother’s apartment and laid on the floor.

“signed Ebony Phillips.”

6 These four jurors are specifically cited by McDougal, who argues that the state’s exclusion of young persons aged twenty-one through twenty-three deprived him of his right to a fair trial. Ruffin does not cite Juror 3, but rather, additionally objects to the state’s peremptory challenge of a thirty-two year old prospective juror. Ruffin argues, therefore, that the state’s exclusion of jurors aged twenty-two through thirty-two deprived him of his right to a fair trial. Because Juror 3, rather than the thirty-two year old prospective juror, was brought to the attention of the trial court, we refer in this case to the four jurors cited by McDougal.

7 A defendant may object to the state’s exercise of a peremptory challenge on Batson equal protection grounds at any time prior to the swearing in of the jury. State v. Robinson, 237 Conn. 238, 253, 676 A.2d 384 (1996).

8 “Once a criminal defendant asserts a Batson claim, the prosecution must advance a neutral explanation for the venireperson’s removal. . . . The defendant is then afforded the opportunity to demonstrate that the state’s articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the defendant has established purposeful discrimination. . . . Hernandez v. New York, 500 U.S. 352, 363, 111 S. Ct. , 114 L. Ed. 2d 395 (1991).” (Citation omitted; internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 323, 630 A.2d 593 (1993).

9 While Ruffin has not provided us with a separate analysis of his claim under the Connecticut constitution; see State v. Francis, 228 Conn. 118, 122 n.3, 685 A.2d 762 (1993); we rely on McDougal’s brief, in which McDougal sufficiently analyzes the claim.

10 We do not infer from the trial court’s overly cautious seating of Juror 4 that it found that young persons are a cognizable group for jury selection purposes.

11 Some people “may survive to a 105,” by being “young at heart.” “Young at Heart,” lyrics by Carolyn Leigh, music by Johnny Richards (1954).

12 We have found that the right to challenge jurors peremptorily is contained in the text of only one other state constitution. La. Const., art. I, § 17.

13 Practice Book § 832 provides: “The judicial authority shall order that a bill of particulars disclose information sufficient to enable the defendant to prepare his defense, including but not being limited to reasonable notice of the crime charged and the date, time, and place of its commission.”

14 General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

15 “[A] defendant, can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.