A trial court's action on a motion to set aside a verdict on the ground that it was unsupported by the evidence is tested by the evidence printed in the briefs and not by the finding. Convicted of murder in the second degree, the defendant claimed that the trial court erred in denying his motion to set aside the verdict of guilty or the ground that the evidence was insufficient to support it. Although the state's appendix contained evidence of the death of a person, the appendices of both the state and the defendant were barren of any evidence which would tend to prove that the defendant caused the death and, if he did, under what circumstances. Moreover, the trial court did not file a memorandum of decision to give its reasons for denying the motion to set the verdict aside. Under the circumstances, a new trial had to be ordered. The trial court did not err in denying a motion that the defendant's counsel be permitted to attend the grand jury proceedings and in denying a motion that a record of those proceedings be transcribed and furnished to the defendant. There was no merit to the claim of the defendant, whose constitutional rights had not been compromised, that it was erroneous to deny his motions to suppress certain physical evidence taken from his person and statements he made to police.
Argued October 12, 1972
Decided November 29, 1972
Indictment charging the defendant with the crime of murder in the first degree, brought to the Superior Court in New London County and tried to the jury before Radin, J.; verdict and judgment of guilty of murder in the second degree, from which the defendant appealed. Appeal also from the denial of a motion for a new trial on the ground of newly discovered evidence. The two appeals were consolidated for hearing in this court. Error; new trial.
Raymond W. Ganim, for the appellant (defendant).
Edward W. O'Brien, state's attorney, for the appellee (state).
On a jury trial the defendant was found guilty of the crime of murder in the second degree. He has appealed from the judgment rendered on that verdict and has also appealed from the denial of his motion for a new trial. In accordance with a stipulation by the parties, the court ordered that the two appeals be combined for presentation to this court and that a single record be printed.
We find that a decision on one of the defendant's several assignments of error is dispositive of the merits of the combined appeals. This assignment of error is that the court erred in denying the defendant's motion to set aside the verdict of guilty because of the insufficiency of the evidence to prove the guilt of the accused beyond a reasonable doubt. The trial court's action on a motion to set aside a verdict on the ground that it was unsupported by the evidence is tested in light of the evidence printed in the appendices to the briefs and not by the finding. Practice Book 716, 718; State v. Cobb, 159 Conn. 31, 32, 266 A.2d 393; Amato v. Sawicki, 159 Conn. 490, 491, 271 A.2d 80; Maltbie, Conn. App. Proc. 185. "We have repeatedly referred to this requirement of the rules, and there is no excuse for failure to conform to it." State v. Pundy, 147 Conn. 7, 9, 156 A.2d 193; see State v. Cari, 163 Conn. 174, 176, 303 A.2d 7; State v. Benton, 161 Conn. 404, 406, 288 A.2d 411; State v. Brown, 161 Conn. 219, 220, 286 A.2d 304; State v. Laffin, 155 Conn. 531, 532, 235 A.2d 650; State v. Schindler, 155 Conn. 297, 301, 231 A.2d 652; State v. Vars, 154 Conn. 255, 258, 224 A.2d 744; State v. Jones, 153 Conn. 451, 455, 217 A.2d 691; State v. Mariano, 152 Conn. 85, 100, 203 A.2d 305, cert. denied, 380 U.S. 943, 85 S.Ct. 1025, 13 L.Ed.2d 962. The evidence printed in the appendices to the briefs in this case is not sufficient to support a guilty verdict. There is in the state's appendix evidence of the death of Phyllis Manwaring, referred to as "the victim," and this evidence would justify the jury in finding that the state had proved the corpus delicti under the definition of that term which this court approved in State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494, that is, "the fact of the death, whether or not feloniously caused, of the person whom the accused is charged with having killed or murdered." The appendices of both the state and the defendant are barren, however, of any evidence which would tend to prove that the defendant caused that death and, if he did, under what circumstances. That there existed at least some evidence tending to prove a connection between the defendant and the death of Mrs. Manwaring is indicated by the state's claim of proof as reported in the court's finding as well as by the circumstance that the court denied the defendant's motion to set aside the verdict. The court, however, did not file any memorandum of decision giving its reasons for denying the motion to set aside the verdict and "we have been kept in the dark by the state's failure to bring that evidence, or a statement of it, properly before us." State v. Amendola, 152 Conn. 166, 168, 204 A.2d 836. Under the circumstances, a new trial must be ordered.
Our decision on the merits of this single assignment of error is, of course, dispositive of the present appeals. It would serve no helpful purpose to discuss all of the remaining assignments of error and especially those relating to rulings on the admission of evidence where, if the same question should again arise, there is no certainty that it will arise in the same context. It is likewise unnecessary to discuss the assignment of error relating to the ruling of the court excusing jurors who expressed their opposition to capital punishment. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797. Since the jury found the defendant guilty of murder in the second degree, the possibility of the imposition of the death penalty on a retrial no longer exists not only because of the holding of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, but also because of its holding in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300.
The evidence claimed by the defendant on his motion for a new trial to be newly discovered will, of course, be available to him on the retrial and the assignments of error relating to the defendant's motions for disclosure and production if not rendered moot by the disclosures which were the subject of the motion for a new trial cannot arise in the same context in the light of the new rules governing discovery and inspection in criminal cases which became effective October 1, 1972. See Practice Book 533A-533S.
The assignments of error relating to the proceedings before the grand jury require but brief mention. The court denied motions by the defendant that defense counsel be permitted to be present during the grand jury proceedings and that a record of those proceedings be transcribed and furnished to the defendant. There was no error in these rulings. State v. Delgado, 161 Conn. 536, 539, 290 A.2d 338; State v. Vennard, 159 Conn. 385, 390, 270 A.2d 837, cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625; State v. Stallings, 154 Conn. 272, 282, 224 A.2d 718.
We also find no merit to the assignments of error addressed to the court's denial of the defendant's motions to suppress certain physical evidence taken from the person of the defendant and oral statements which he made to the police. The court found from the testimony of police officers that the defendant had been fully warned of his rights in accordance with the holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that the defendant voluntarily and intelligently waived his constitutional rights and consented to the search. The defendant makes no claim that his several consents were the result of duress, deception or sham. See Bumper v. North Carolina, supra; State v. Memoli, 159 Conn. 433, 436, 270 A.2d 543. It appears that there was no error in these rulings.