State v. Cullum

• Decision Date: 16 October 1961
• Docket Number: No. MV,MV
• Citation: State v. Cullum, 176 A.2d 583, 23 Conn.Supp. 20 (Conn. Cir. App. Div. 1961)
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 23 Conn.Supp. 20 STATE of Connecticut v. Kenneth R. CULLUM. 15-322.

Page 583

176 A.2d 583

1 Conn.Cir.Ct. 120, 23 Conn.Supp. 20

STATE of Connecticut v. Kenneth R. CULLUM.

No. MV 15-322.

Circuit Court of Connecticut, Appellate Division.

Argued July 21, 1961.

Decided Oct. 16, 1961.

Certification denied by the Supreme Court of Errors December 8, 1961. ¹

William F. Mangan, New Britain, for appellant (defendant).

James R. Burton, Asst. Pros. Atty., Rocky Hill, for appellee (state).

HOLDEN, Judge.

On February 26, 1961, at approximately 3:30 a. m., the defendant was arrested in the city of New Britain and charged with operating a motor vehicle while under the influence of intoxicating liquor. At the police station he was formally charged, booked, and released on bond. He was not handed a uniform traffic ticket. Subsequently, he pleaded 'not guilty,' elected trial by jury, and was brought to trial March 2, 1961, at Wethersfield.

During the recess on the second day of the trial, a disinterested stranger to the trial entered into a conversation in the corridor of the courthouse with the court bailiff and in the presence and hearing of two members of the jury. The conversation concerned the defendant's status as a professional baseball player. In this conversation, the jurors joined. During the course of the conversation, the disinterested stranger, who did not know that those with whom he spoke were members of the jury, stated, 'Well, in any event, if he is found guilty, Bill is a little worried about whether he will be back in spring training. I understand it is his second offense.' The facts were communicated to the court immediately upon their coming to the knowledge of the defendant's counsel. Upon these facts, the defendant claimed that his motion for a mistrial ought to prevail, but the court overruled the motion, and the trial proceeded.

The jury rendered a verdict of guilty on March 6, 1961. On the same date, the defendant was arraigned on the second part of the information, alleging a prior conviction for a similar offense. He pleaded not guilty, elected trial to the court, and was found guilty.

Defendant's first assignment of error concerns the refusal of the trial court to dismiss the charges because the defendant had not been given a uniform traffic ticket upon his arrest. Circuit Court Rule 3.14.1 states: 'In traffic offenses, instead of an information, a complaint and summons may be used in the form known as the uniform traffic ticket and complaint.' Under Rule 3.24.1, when an arrest is made on the charge of driving under the influence of intoxicating liquor, the accused must be taken into custody. This defendant was arrested, brought to the police station, booked, and subsequently released on bond. That he was informed of the date of his arraignment is apparent from the fact that he was arraigned, that he pleaded and that he elected trial by jury. Rule 3.15.1 states that in all jury cases the prosecuting attorney shall present an information in place of the complaint which is a part of the uniform traffic ticket. The rights of the defendant were protected throughout. There is no magic in a standard-form type of invitation to court, and this defendant, without a uniform traffic ticket, is just as much a properly arrested and arraigned defendant as he would otherwise have been. The word 'may' in Rule 3.14.1, taken together with Rule 3.15.1, gives the arresting officer considerable discretion. His use of that discretion to avoid the superfluity of notices to appear for arraignment is not illegal. The motion to dismiss for the reason stated in the first assignment of error was properly denied.

In his seventh assignment of error, the defendant alleges that the trial court should have declared a mistrial after the presiding judge became aware of the fact that the defendant was a second offender. 'In the case tried to the court, the danger of prejudice to a party to the case, arising from the making of improper remarks is far less than when tried to the jury, and will rarely, if ever, furnish a basis for appeal.' State v. Frost, 105 Conn. 326, 338, 135 A. 446, 452. The trial court is invested with a large discretion, and, unless the defendant's rights have been injuriously prejudiced, the exercise of that discretion will not be interfered with. DeLucia v. Kneeland, 108 Conn. 191, 193, 142 A. 742; State v. Monahan, 96 Conn. 289, 291, 114 A. 102; State v. Buxton, 79 Conn. 477, 479, 65 A. 957. There was no claim that the presiding judge was prejudiced nor that there was manifest injury to the defendant by reason of information imparted to him. State v. Laudano, 74 Conn. 638, 646, 51 A. 860. Arguments addressed to the court may often include admissions of counsel, for the purposes of argument, of facts which, if admitted by him in the presence of the jury, might set their minds against the defendant and thus work injury to his cause. Arguments addressed to the court are, or should be, designed for the information and instruction of the court. Elliott v. New York, N. H. & H. R. Co., 83 Conn. 320, 328, 76 A. 298. There was no abuse of discretion in this instance.

The fifth and sixth assignments of error concern the denial of the defendant's motion for a mistrial after it was brought to the attention of the presiding judge that a conversation concerning the case had taken place in which it was mentioned in the hearing of two jurors that the defendant was a second offender and might go to jail.

The denial of a motion for mistrial is an interlocutory, not a final, judgment. Properly, the defendant should have restated his reasons in a motion to set aside the verdict. This court is established to review the decisions of the Circuit Court to determine whether errors of law have been committed in determining particular controversies before it. We are not bound to consider claims of error which are improperly raised. When we do so, it is not because the defendant has a right to have the question determined, but because in the interest of public welfare and to avoid doing serious injustice to the defendant we are of the opinion it ought to be done. Rindge v. Holbrook, 111 Conn. 72, 75, 149 A. 231; Stacy v. Brothers, 93 Conn. 690, 706, 107 A. 613. For this reason, we consider the fifth and sixth assignments of error as though they had been properly brought before us.

In the trial of a person...