State v. Malley , 167 Conn. 379 ( 1974 )

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 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.

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 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 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.

We consider first the claims of error relating to the admission of evidence. The police officers were asked whether they had observed the effects of LSD on people and the families of people using the drug. They both answered simply that they had. Neither officer testified as to what effects he had observed and the court sustained an objection to any inquiry beyond a simple answer of yes or no to the question of whether an observation had been made. There was clearly no error here. The defendant, on direct examination, testified that he had never used narcotics and that all he knew about LSD was what he had heard and read about it or had seen on television. On subsequent cross-examination he was asked what knowledge he had gleaned from these sources. The only objection to the line of inquiry was that it was improper because the defendant was not “an expert to testify.” The court overruled this objection stating: “If he doesn’t know, he can say he doesn’t know. He realizes that.” We find nothing erroneous in the court’s ruling, particularly since the line of inquiry as to the extent of the defendant’s knowledge of the drug was opened by the questions put to him on direct examination. See Akers v. Singer, 158 Conn. 29, 36, 255 A.2d 858; Fahey v. Clark, 125 Conn. 44, 47, 3 A.2d 313. The remaining assignment of error on the admission of evidence requires only the briefest mention. The state toxicologist, Abraham Stolman, testified as to what is an hallucinogenic drug and its effect on the human body. Not only did the defendant make no objection to the admission of the state toxicologist’s testimony, but since the charges against the defendant involved the possession and sale of a “controlled drug,” and hallucinogenic substances are included in the statutory definition of that term² there is no merit to this assignment of error. In conclusion of our discussion of the assignments of error with respect to the admission of evidence it is pertinent to note that error is assigned not only to the “allowing” of the testimony but to the court’s “refusing to strike and/or failing to give cautionary instructions as to the testimony elicited by the prosecutor.” Since the same claim is made with respect to the argument of the prosecutor and will be discussed hereinafter, it suffices for the present discussion about evidence to note that the record discloses no request by the defendant that any of the testimony be stricken and no request whatsoever for any cautionary instructions.

The defendant’s other claims of error concern remarks made by the state’s attorney in the course of his closing argument to the jury with particular reference to his comments about the nature and seriousness of the offenses with which the defendant was charged and his comments that because the defendant chose to take his case to trial the usefulness of the two police officers as undercover narcotics agents was destroyed. The controlling factor in our consideration of these claims of error is that they were raised for the first time in this court by new counsel on the appeal and that no objection whatsoever was raised in the trial court, nor was the trial court alerted to any dissatisfaction or claim on the part of the defendant at a time when by proper objection or request for a corrective instruction by the court any error could have been corrected. “We have repeatedly reiterated that this court will not consider claimed errors on the part of the trial court unless there has been a compliance with the provisions of § 652 of the Practice Book.”³ State v. Evans, 165 Conn. 61, 67, 327 A.2d 576, and cases cited therein; see also State v. Johnson, 166 Conn. 439, 352 A.2d 294. Regardless of the failure of the defendant to make any objection to the argument of the state’s attorney, it is pertinent to note that the latter’s comments on the seriousness of drug trafficking were invited, if not induced, by the argument of defense counsel on the same subject in which he informed the jury that he anticipated that the state’s attorney would in Ms closing argument discuss the seriousness of the problem. The comments of the state’s attorney about the necessity for the police officers to “blow their cover” by testifying in the case would, taken alone, appear to be improper and wholly irrelevant to the issue of the guilt or innocence of the defendant. If they were in fact improper and irrelevant then, without a doubt, if the defendant had raised an objection at the time it would have been sustained and the jury cautioned to disregard the comments. In any event, there would be a record on which this court could properly review any ruling by the court in the context of all the evidence produced at the trial. It is too late to raise an objection for the first time on appeal when the trial court has not been called upon for a ruling and all opportunity for the trial court to give the jury a cautionary instruction has passed. “[T]he fact that counsel for the accused took no exception to the remarks of the State’s Attorney, either at the time they were made or at the close of his argument, was a waiver of the right of the accused to now press this assignment of error. State v. Frost, 105 Conn. 326, 338, 135 Atl. 446.” State v. Kirschenbaum, 109 Conn. 394, 409, 146 A. 837.

As we observed in State v. Evans, supra, 70: “There appear, then, to exist only two situations that may constitute ‘exceptional circumstances’ such that newly raised claims can and will be considered by this court. The first is the Vars [State v. Vars, 154 Conn. 255, 224 A.2d 744] situation, where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. This exception is reasonable because a claim not raised is deemed waived, and a litigant should not be held to have waived an unknown right. O’Connor v. Ohio, 385 U.S. 92, 87 S. Ct. 252, 17 L. Ed. 2d 189. The second ‘exceptional circumstance’ may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” The record in the case before us does not disclose that the defendant has established the existence of either of the two “exceptional circumstances” that would justify our consideration of claims not raised at the trial level.

There is no error.

In this opinion Shapiro, Loiselle and MacDonald, Js., concurred.

1 “{Practice Book} Sec. 249. [requests to charge and exceptions] —necessity for The supreme court . . . shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

2 General Statutes § 19-450a.

3 “[Practice Book] Sec. 652. errors considered This court shall not be bound to consider any errors on an appeal unless they are specifically assigned and unless it appears on the record that the question was distinctly raised at the trial and was ruled upon and decided by the court adversely to the appellant’s claim, or that it arose subsequent to the trial.”