author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. GUALBERTO MARRERO
    (AC 20057)
    Lavery, C. J., Schaller and Flynn, Js.
    Argued June 1
    officially released November 6, 2001

      Cameron Dorman, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, and Brian Preleski, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Gualberto Marrero, appeals from the judgment of conviction, rendered after a jury trial, on count one of the state’s information, of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), and, on count two of the information, of sale of a controlled substance by a person who is not drag-dependent within 1500 feet of a public housing project in violation of General Statutes (Rev. to 1993) § 21a-278a (b). On appeal, the defendant asserts two claims that were not preserved at trial: (1) that the trial court improperly instructed the jury on the defense of drag dependency by failing to define “drag dependence” according to the statutory definitions contained in General Statutes (Rev. to 1993) § 21a-240 (18) and (19); and (2) that he met his burden of proving by a preponderance of the evidence that he was drug-dependent at the time of the offenses. We agree with the defendant’s first claim. We decline to address the defendant’s second claim because our resolution of his first claim is dispositive of his appeal.

The following facts and procedural history are necessary to our resolution of the defendant’s appeal. In June, 1993, the Bristol police conducted an undercover operation to investigate drug dealing near a housing project. At trial, two Bristol police officers, who participated in the undercover operation, identified the defendant as the person who sold a piece of crack cocaine to Officer Michael Healey, a plainclothes team member. Healey testified that he recognized the defendant from the alleged sale and knew him from two other undercover drug sales that the defendant had made to him. Another officer, Detective Kevin Hayes, testified that, using binoculars, he had observed the transaction between the defendant and Healey.

In his testimony at trial and in his pretrial statements, the defendant made inconsistent statements concerning his use of drugs. First, as to heroin and cocaine use, the defendant told department of correction personnel that he had been using between seven to twelve “bags” of heroin and five “bags” of cocaine daily. At trial, on cross-examination, he testified that he had exaggerated those amounts for the purpose of receiving medication during his incarceration. Second, during an interview with a drug addiction specialist employed by the department of correction, he denied any heroin use prior to being arrested. He later admitted that he had misled the specialist about the frequency of his drug use, alleging that he was motivated by his fears that any admission of drug intake would have been used against him at trial. Third, although at trial, on direct examination as to quantity, the defendant claimed that he had been using five to six “bags” of heroin daily, during cross-examination he conceded that he could not tell with precision the daily amount of his drug use. He added that it “depended on the money he had” at the time.

In the defendant’s direct testimony, he described withdrawal symptoms upon incarceration because he was “addicted.” Those symptoms included nausea, body aches and vomiting. That testimony was consistent with department of correction records, which indicated that medical staff had prescribed for him for three days the drug Vistaril, which commonly is prescribed for both heroin withdrawal and sleeplessness. The conditions of the defendant’s parole from a 1992 conviction required him to submit to random urine tests to screen for the presence of drugs. Of the four urine tests given, the defendant failed two, which tested positive for the presence of narcotics.

In the defendant’s case-in-chief, Robert Neuman, a drug addiction specialist with the state department of public health and addiction services, testified that the defendant was “drug-dependent” at the time of the defendant’s alleged sale and possession, within the meaning of § 21a-240 (18) and (19), and, additionally, that he was “drug-dependent” as that term is defined in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. Neuman interviewed the defendant on two separate occasions for the purpose of evaluating the extent of the defendant’s drug dependency. During the first interview, lasting roughly one hour, the defendant admitted to some cocaine use but denied all heroin use. After discovering that the defendant’s denials of his drug use conflicted with the medical records of the department of correction, Neuman recalled the defendant for a second interview. During the second interview, the defendant admitted to some heroin use but did not commit to having used any precise amount. Neuman did not perform any physical examination of the defendant for track marks or other signs of drug dependency. He nonetheless determined that the defendant was drug-dependent on the basis of the department of correction medical records as well as the two interviews that he had conducted with the defendant.

The court instructed the jury on the main elements of each crime charged. In its charge, the court specifically noted that the jury could convict the defendant under § 2 la-278 and § 21a-278a only if it found that he was not drug-dependent. The charge did not define “drug dependency” or “drug-dependent” as those terms are defined by § 2 la-240. The court simply stated that the offenses charged must be committed by one “who is not, at the time of such action, a drug-dependent person.” The court then went on to instruct the jury about the relevant burdens of proof of both the state and the defendant, noting that the defendant bore the burden of establishing drug dependency by a preponderance of the evidence. The jury returned a verdict of guilty on both counts.

To address the defendant’s claims adequately, we first examine the statutory scheme as it existed at the time that the alleged offenses occurred. General Statutes §§ 21a-278 and 21a-278a, by their terms, apply exclusively to one who is not “at the time of such action, a drug-dependent person.” “The design and effect of § 21a-278 (b) [and § 21a-278a (b)] is to punish persons who are not drug-dependent and sell narcotics [or controlled substances] more severely than drug-dependent persons who sell [those substances]. The legislature accomplishes this goal by providing for a five year mandatory minimum sentence for those [who are not drug-dependent and who are] convicted under § 2 la-278 (b) [and a three year minimum sentence for those convicted under § 21a-278a (b)].” State v. Jenkins, 41 Conn. App. 604, 607, 679 A.2d 3 (1996).

Although a defendant is presumed to be a person who is not drug-dependent unless and until he or she makes drug dependency an issue, a person charged with violating either § 2 la-278 (b) or § 21a-278a (b) may avoid the imposition of the minimum sentences mandated by those statutes by proving by a preponderance of the evidence that he or she was drug-dependent at the time of the offense. Id., 608-609; see also General Statutes § 21a-269. “A drug-dependent person, could, however, be convicted under [General Statutes] § 21a-277 (a), which does not consider drug dependency, but which also does not carry a mandatory minimum sentence.” State v. Jenkins, supra, 41 Conn. App. 607.

With that statutory framework in mind, we now turn to the defendant’s claim that the court failed to instruct the jury adequately as to the meaning of the term “drug-dependent person” as that term is used in the statutorily recognized defense against the imposition of enhanced penalties for the drug charges at issue. The defendant claims that because of the court’s failure to define drug dependency, the court’s charge was an incomplete statement of the law that failed to guide the jury adequately in its duty to apply the law to the facts of the case.

The defendant concedes that he did not properly preserve his claim at trial by making a request to define the term “drug-dependent” or by taking exception to the lack of definition in the jury charge. He maintains, nonetheless, that his claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, alternatively, the plain error rule of Practice Book § 60-5.

At the outset, we note our standard of review for unpreserved claims of error. Generally, to obtain appellate review for a claim of trial court error, a defendant must raise the issue by objecting at trial. State v. Streater, 36 Conn. App. 345, 359, 650 A.2d 632 (1994), cert. denied, 232 Conn. 908, 653 A.2d 195 (1995). In the context of flawed jury instructions, the defendant is expected to object “immediately after the conclusion of the charge.” (Internal quotation marks omitted.) State v. Snook, 210 Conn. 244, 270, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). Only under the “most exceptional circumstances” will an appellate court permit the review of a claim of error that is not so preserved. State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

That standard, although preclusive, serves critical policy objectives. Id. “Otherwise [a defendant] would be permitted to lie by and speculate upon the chances of a verdict” and only raise an issue of error observed during trial in the event that the result is not favorable. Id., 66. The “exceptional circumstances” doctrine creates an incentive to assert claims of error at trial while the court still has the opportunity to correct any error. Id.

We first turn to the defendant’s claim that review is warranted under State v. Golding, supra, 213 Conn. 239-40, because the court’s failure to define drug dependency deprived him of his right to establish the statutorily authorized “drug-dependent” person defense and thereby deprived him of his right to a fair trial. Under Golding, a defendant can obtain review of an unpreserved claim “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. In the absence of any one of these conditions, the defendant’s claim will fail.” Id.

“The first two steps in the Golding analysis address the reviewability of the claim, whereas the last two steps address the merits of the claim.” State v. Cohens, 62 Conn. App. 345, 350, 773 A.2d 363, cert. denied, 256 Conn. 918, 774 A.2d 139 (2001). We conclude that the record is adequate for review, satisfying the first step. With regard to the second step, an unpreserved claim of error consisting of the court’s failure to instruct the jury on the definition of what constitutes the affirmative defense of drug dependence does not implicate a fundamental constitutional right. “Drug dependency is an affirmative defense to a charged violation [of § 21a-278 (b)].” Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 313, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).

It is true that a criminal defendant enjoys a fundamental right to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). A state may, however, place the burden of establishing an affirmative defense, by a preponderance of the evidence, on a defendant, as long as the state is not incidentally relieved of its burden of proof for the elements of the crime. See Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). “The absence of drug dependency is not an element of the offense of sale of narcotics by aperson who is not drug-dependent in violation of § 21a-278 (b). Rather, [like an affirmative defense] it is an exemption from liability under § 21a-269. . . . Therefore, it [is] not necessary for the state to negate drug dependency, but, rather, the defendant [has] the burden of proving that [he or] she was drug-dependent.” (Citation omitted; internal quotation marks omitted.) State v. Denby, 35 Conn. App. 609, 619, 646 A.2d 909 (1994), aff'd, 235 Conn. 477, 668 A.2d 682 (1995).

An analysis of our case law clearly demonstrates that the failure to charge adequately on an affirmative defense, which does not go to an element of the offense charged, is not considered to be an error of constitutional magnitude. In State v. Preyer, 198 Conn. 190, 198-99, 502 A.2d 858 (1985), our Supreme Court addressed an unpreserved claim alleging that the trial court had improperly instructed a jury as to the affirmative defense of cohabitation in a sexual assault case. The defendant raised the broad issue of whether the trial court has an affirmative duty to charge the jury, sua sponte, on every defense theory for which there is a foundation in the evidence adduced at trial. Id., 196. The court stated: “While the constitutional law of due process is implicated by a trial court’s failure to instruct the jury on the essential elements of the offense on which the conviction rests ... we have in the past found no constitutional infirmity in failure to charge on such defenses as entrapment . . . emotional disturbance ... or alibi.” (Citations omitted.) Id., 197. The court determined that “[njothing in the circumstances [of the] case suggests that a different rule should apply for the defense of cohabitation.” Id.

Our Supreme Court has since applied the “rule” from Preyer to encompass misinstmction on an affirmative defense. In State v. Foreshaw, 214 Conn. 540, 546, 572 A.2d 1006 (1990), the court again addressed challenges to improper instructions on affirmative defenses. The court in Foreshaw, determined that “[i]mplicit in [our] decision [in Preyer] was the conclusion that claims of error pertaining to the inadequacy of instructions on an affirmative defense do not raise a constitutional question.” (Internal quotation marks omitted.) Id.

It is true that in State v. Jenkins, supra, 41 Conn. App. 622, this court stated, in dicta, that an improper charge on the defense of drug dependency, the defense at issue on this appeal, like an improper charge on an element of an offense is an error of “constitutional dimension.” The holdings of this court and our Supreme Court are, however, to the contrary. See, e.g., State v. Foreshaw, supra, 214 Conn. 546; State v. Preyer, supra, 198 Conn. 197; State v. Denby, supra, 35 Conn. App. 619. An improper instruction on the defense of drug-dependency, “is not of constitutional magnitude.” State v. Denby, supra, 619. In Denby, we stated that “[b]ecause the claimed error does not involve an element of the offense ... [it is not a violation of a fundamental constitutional right].” Id. We therefore conclude that the defendant’s claim fails to meet the second prong of the Golding standard because it does not allege a claim that is of constitutional magnitude.

We next turn to the defendant’s claim that review is warranted under the plain error doctrine. As a preliminary matter, we set out our standard of review for plain error. Under Practice Book § 60-5, an appellate court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . . [but an appellate court] may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Practice Book § 60-5. “The defendant cannot prevail under . . . [Practice Book § 60-5,] however, unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). Plain error is reserved for extraordinary situations and “is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id.

“We have consistently held that plain error review is necessary where the trial court, in its instruction, overlooks a clearly applicable statute . . . .” (Citations omitted.) Dionne v. Markie, 38 Conn. App. 852, 856-57, 663 A.2d 420 (1995). Because the court did not instruct the jury on the definition of “drug-dependent person” in § 21a-240 (19), and the statutory definition contains alternative ways of meeting that exemption from enhanced penalties, which cannot be ascertained from the term’s ordinary meaning, the jury was left to guess at the meaning.

To prevail on a claim of nonconstitutional plain error, “the defendant must demonstrate that the trial court’s improper action likely affected the result of his trial.” State v. Day, supra, 233 Conn. 850. When a court overlooks a statute defining a material term about which the jury is instructed, the likelihood of misleading the jury will depend on whether the statutory term carries its “ ‘ordinary meaning.’ ” State v. Spillane, 255 Conn. 746, 756, 770 A.2d 898 (2001). If the term carries a specific, technical meaning that is beyond common understanding, the failure to charge as to the substance of the term’s statutory definition is harmful error. State v. Grant, 6 Conn. App. 24, 31-32, 502 A.2d 945 (1986).

Our evaluation of instructional error is a test of “substance rather than form.” Id., 28. A court is not obligated to read the exact statutory language of a material definition. State v. Spillane, supra, 255 Conn. 755. In fact, if the statutory language would confuse the jury, reading it verbatim as part of the instructions is ill advised. State v. Criscuolo, 159 Conn. 175, 177, 268 A.2d 374 (1970). The court must, however, charge on the substance of the controlling law in a way that the jury can understand. See State v. Wright, 62 Conn. App. 743, 756, 774 A.2d 1015, cert. denied, 256 Conn. 919, 774 A.2d 142 (2001). The paramount concept in determining the propriety of jury instructions is whether, as a whole, the charge is “accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.” (Internal quotation marks omitted.) State v. Faust, 237 Conn. 454, 476, 678 A.2d 910 (1996); see also Lopes v. Connecticut Light & Power Co., 145 Conn. 313, 315, 142 A.2d 135 (1958) (charging on material law in civil action, which, like drug dependency, requires proof by preponderance of evidence).

The term at issue in this case is “drug-dependent” as it is used in the statutory exclusion from liability for the mandatory minimum sentence under the statutes defining the offenses of which the defendant was convicted. Pursuant to § 21a-240 (18), “drug dependence” is “a state of physical or psychic dependence, or both, upon ... a repeated periodic or continuous basis . . . .” Pursuant to § 21a-240 (19), a “drug-dependent person,” is “any person who has developed a state of psychic or physical dependence, or both, upon ... a repeated periodic or continuous basis. ...”

The standard technique to assess the common understanding of a statutory term is to turn to a dictionary of common usage. State v. Spillane, supra, 255 Conn. 755. In the case of the term “drug-dependent,” that approach is not entirely availing. In Webster’s, the terms “drug-dependent” or “drug dependence” are not separately defined. Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999). The absence of a separate definition indicates that the term is outside the rubric of common parlance. Within the definition of “dependent,” however, Webster’s states “affected with a drug dependence” as one of several possible meanings. Id. “Dependence” is, in turn, defined as “the quality or state of being dependent.” Id. The meanings are, thus, circular and partially undefined. The most common meaning listed for “dependent” is “determined or conditioned by another contingent.” Id.

By contrast, the statutory definition of “drug-dependent person” is a technical term of art with other than intuitive characteristics. As defined in § 21a-240 (19), a “drug-dependent person” is “any person who has developed a state of psychic or physical dependence, or both, upon ... a repeated periodic or continuous basis. . . .” Absent a charge clearly defining the statutory meaning of “drug-dependent,” whether a “periodic” user qualifies as a “drug-dependent person” would be a fruitless tautological debate. “A jury should not be called upon to resolve such an esoteric philosophical question at the expense of the defendant.” State v. Fuller, 199 Conn. 273, 280, 506 A.2d 556 (1986).

The defendant adduced substantial evidence in support of his statutory drug dependence defense that would not necessarily jibe with the jury’s common understanding of the term. For example, the defendant testified on both direct and cross-examination that he had used drugs periodically when his finances allowed. While it remained uninformed of the concepts of “periodic” use or “psychic” need as indicators of drug dependency, the jury was presented with evidence in support of those concepts. It is not our role, on appeal, to pass judgment on the credibility of the defendant’s testimony. See State v. Sitkiewicz, 64 Conn. App. 108, 114—15, 779 A.2d 782, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). At the same time, we cannot ignore the fact that the jury in the present case may have found the defendant’s testimony to be credible, but, being unaware that “repeated periodic” use as well as “continuous” use qualified as drug dependency, discounted any evidence of periodic use as being inadequate to establish drug dependency. We therefore conclude that without the proper law before them to apply to that evidence, there is a reasonable possibility that the jurors were misled in reaching their verdict. See State v. DeBarros, 58 Conn. App. 673, 682-83, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000).

The state urges us to consider aspects of the charge that allude to the testimony of a psychological expert, Neuman, who testified that the defendant was “drug-dependent” at the relevant time within the meaning of § 21a-240 (19). In the state’s estimation, Neuman’s testimony regarding the meaning of drug dependency should be considered in determining whether the jury received a legally sufficient charge on the defense of drug dependency. We do not agree.

It is the function of the court to state the rules of law and to explain the law to be applied to the facts of the case; State v. Scott, 256 Conn. 517, 527, 779 A.2d 702 (2001); not the expert witnesses who testify at trial. Furthermore, nowhere in its instruction did the court ever charge that the defense expert had defined the material law for the jury to apply. On the contrary, the court underscored Neuman’s lack of competency in the function of defining law. In the very first sentence of its charge, the court stated: “Ladies and gentlemen of the jury, you’ve heard the evidence presented in this case, and it’s my duty now to instruct you as to the law which you are to apply to the facts. . . . Now, it’s exclusively the function of the court to state the rules of law that govern the case . . . .” (Emphasis added.) Further, regarding Neuman’s testimony, the court stated: “No such testimony is binding upon you, however, and you may disregard such testimony either in whole or in part. . . . The testimony is entitled to such weight as you find expert’s qualifications in this field entitle it to receive . . . and it must be considered by you, but is not controlling upon your judgment.” (Emphasis added.) We therefore do not agree that Neuman’s testimony as to the meaning of drug dependency sufficed because there was no statutory definitional matrix against which such testimony could be measured. We conclude that the jury was likely to have been misled by the lack of a definition of “drug-dependent person” in arriving at its verdict.

The judgment is reversed only as to the conviction of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and sale of a controlled substance by a person who is not drug-dependent within 1500 feet of a public housing project in violation of General Statutes (Rev. to 1993) § 21a-278a (b) and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended . . . .”

       General Statutes (Rev. to 1993) § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278, and who is not, at the time of such action, a drug-dependentperson, by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving, or administering to another person any controlled substance in or on, or within one thousand five hundred feet of ... a public housing project shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . . .”
      That statute was amended by Public Acts 1994, No. 94-233, § 1, to exclude the provision that allows a person who is drug-dependent to raise drug dependency as a defense or exemption from liability to a charged violation of § 21a-278a. Unless otherwise indicated, all references to § 21a-278a (b) are to that subsection as contained in the 1993 revision of the General Statutes.
      The defendant also was convicted of one count of possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, however, he does not challenge his conviction on that charge.

       General Statutes (Rev. to 1993) § 21a-240 (18) provides in relevant part: “ ‘Drug dependence’ ” means a state of physical or psychic dependence, or both, upon a controlled substance following administration of that controlled substance upon a repeated periodic or continuous basis . . . .”
      General Statutes (Rev. to 1993) § 21a-240 (19) provides in relevant part: “ ‘Drug-dependent person’ means any person who has developed a state of psychic or physical dependence, or both, upon a controlled substance following administration of that substance upon a repeated periodic or continuous basis. ...”
      Unless otherwise indicated, all references to General Statutes (Rev. to 1993) § 21a-240 are to that statute as contained in the 1993 revision of the General Statutes. Section 21a-240 since has been amended by Public Acts 1997, No. 97-248, § 5, which revised the definitions in subdivisions (18) and (19), deleted the language “physical or psychic dependence” in subdivision (18) and the language “psychic or physical dependence” in subdivision (19), statutory alternatives, and deleted the definitional alternative that such physical or psychic dependence resulted from the statutory alternatives of “repeated periodic” or “continuous” use.

       Although the defendant had told department of correction medical personnel that he had been using between seven and twelve “bags” of heroin on a daily basis prior to his incarceration, he told Neuman that he had not used any heroin.

       See footnotes 1 and 2.

       “Upon a valid claim of self-defense, a defendant is entitled to proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.” (Internal quotation marks omitted.) State v. Lemoine, 256 Conn. 193, 199, 770 A.2d 491 (2001). In cases in which a defendant claims self-defense, which if proven negates an element of the offense to be proven by the state, “[a]n improper instruction on [that] defense, like an improper instruction on an element of an offense, is of constitutional dimension.” (Internal quotation marks omitted.) Id., 198-99; see also State v. Prioleau, 235 Conn. 274, 283-84, 664 A.2d 743 (1995); State v. Anderson, 227 Conn. 518, 526, 631 A.2d 1149 (1993).


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUCIS RICHARDSON
    (AC 19530)
    Landau, Flynn and O’Connell, Js.

      Argued June 12
    officially released November 6, 2001

      Richard Hustad Miller, special public defender, for the appellant (defendant).

      Brace R. Lockwood, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Lucis Richardson, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-49 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (3). On appeal, the defendant claims that his conviction is fatally flawed because (1) the standard of review applied in this state for review of a custody determination under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), fails to comply with the standard set by the United States Supreme Court in Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995), (2) he was in the custody of the police at the time that he gave them a written, signed statement on February 24, 1996, and, thus, was entitled to Miranda warnings, (3) there was insufficient evidence to establish that he knew that his alleged coconspirator was armed with a dangerous instrument and (4) there was insufficient evidence to establish that the defendant intended to use a drill as a dangerous instrument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Colin Williams, a Hartford taxicab driver, was stabbed on Martin Street in the early morning hours of February 24, 1996. On the prior evening of February 23, the defendant, along with Danixsa Sanchez, Robin Ledbetter and Phillip Milling were together at the apartment of the defendant’s aunt, which also is on Martin Street in Hartford, when the defendant asked Ledbetter “if she was down” to rob a taxicab driver that night. She replied, “[Y]eah.” The defendant and Ledbetter wanted to rob a taxicab driver who had been working for a while after the shift change because he would then have more fares. Ledbetter, after calling the taxicab company to find out when the shift changed, waited until 1:30 a.m. and then called for a taxicab, giving the defendant’s telephone number as the callback number. Ledbetter armed herself with a ten inch knife, which she secured in her pants leg with the aid of a bandanna. The defendant armed himself with a drill that he told Sanchez looked like a gun and that he would use to put to the driver’s head when demanding money.

At about 2 a.m., while the defendant and Ledbetter went outside to wait for the taxicab, Michael Grate, a gymnasium assistant at Quirk Middle School walked by them. Recognizing the defendant as a former student, Grate asked the defendant what he was doing out so late and warned him to stay out of trouble. When the taxicab arrived, Ledbetter and the defendant entered the vehicle. The defendant then put the drill to the driver’s head while demanding money. When the driver grabbed Ledbetter, she stabbed the driver with the long knife. The defendant and Ledbetter then returned to the apartment. The victim was found shortly after 2 a.m. by the police. He was transported by ambulance to Saint Francis Hospital and Medical Center, where he died about one and one-half hours later.

At about 5 a.m., Hartford police officers interviewed the defendant at his home after tracking down the location of the callback number to the Martin Street apartment, where the defendant lived. The defendant told the police that he knew nothing about the murder but that two others, whom he identified as “the Joker” and “Robin” Ledbetter, had been visiting at his apartment just a few hours earlier. The police then left.

Later that afternoon, at about 4:30 p.m., three officers returned to the defendant’s apartment. They asked the defendant, in the presence of his aunt, if he would be willing to come with them to the police station to provide them with more information about the people he had earlier identified as Joker and Robin, and with any other information he might have about the robbery and murder of the taxicab driver. The police assured the defendant that he was not a suspect, but merely a witness. At the encouragement of his aunt, the defendant agreed to go to the police department with the officers to tell them what he knew. The defendant rode to the station, along with the three officers, in the backseat of an unmarked police car. His aunt did not accompany him.

Upon arrival at the police station, the defendant was taken to an interrogation room, which the police termed “the suite” because it was equipped with a bathroom. An officer remained with the defendant the entire time that he was at the station. While he was at the station, the defendant looked at an array of photographs and, in further interviews there, gave the police an oral statement implicating Ledbetter and Joker, who later was identified as Milling, as the persons who had attempted to rob the taxicab driver. He also indicated that along with Ledbetter and Milling, his girlfriend, Sanchez, also was present at his home that night. The defendant provided the police with Sanchez’ telephone number. The police called Sanchez, then went to pick her up and drive her to the station for questioning about the events of the previous evening. At some point during that evening, the defendant’s statement implicating Ledbetter and Milling was reduced to writing by the officers and signed by the defendant. Sanchez also gave a statement implicating Ledbetter and Milling. In contrast, Sanchez admitted at trial that it was the defendant and Ledbetter who had attempted to rob the taxicab driver. At about 11 p.m., after the defendant gave his statement, he was taken home by the police. It is undisputed that the statements that the defendant gave to the police on February 24, were not preceded by any Miranda warnings.

Ultimately, on February 26, the police interviewed Ledbetter, who not only confessed to commission of the crimes, but told the police that it was the defendant who had committed the crimes with her and not Milling, whom the defendant wrongfully had accused.

On February 29, the defendant waived his Miranda rights and gave a fully voluntary statement to the police, in which he confessed to his involvement in the crime, describing how he and Ledbetter wanted money, and how he had used the drill by putting it behind the driver’s head and then using it to hit him. He then detailed how Ledbetter stabbed the driver.

Prior to trial, the defendant filed a motion to suppress all oral and written statements he had allegedly made to the police, together with any fruits thereof. At a pretrial suppression hearing, the court denied the motion. In its oral memorandum of decision, the court made only limited factual findings and, although the court did not explicitly conclude that the defendant was not in custody at the time that he made the statements, that determination is implicit in light of the fact that the court denied his motion to suppress. At trial, the state introduced both the defendant’s February 24 and February 29 statements, and the testimony of Sanchez and Milling as part of its case-in-chief.

I

The defendant’s first claim is that the standard of review applied in this state for appellate review of a determination of custody for purposes of Miranda fails to comply with the minimum protections required by the United States Supreme Court in Thompson v. Keohane, supra, 516 U.S. 112-14. We disagree and conclude that they are in harmony.

Our Supreme Court recently articulated the proper scope of appellate review of a trial court’s determination of custody and has expressly determined that the standard we apply in our review satisfies the requirements of Thompson v. Keohane, supra, 516 U.S. 112-14. State v. Pinder, 250 Conn. 385, 411-12, 736 A.2d 857 (1999). “As [our Supreme Court] stated in State v. Atkinson, 235 Conn. 748, 759 n.17, 670 A.2d 276 (1996), [o]ur review of the issue of custody comports with the United States Supreme Court’s recently enunciated two part test for determining custody. Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. . . . The first inquiry ... is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination, we hold, presents a mixed question of law and fact qualifying for independent review. Thompson v. Keohane, [supra, 112-13].” (Internal quotation marks omitted.) State v. Pinder, supra, 410. With that scope of review in mind, we turn to the defendant’s custody claim.

II

The defendant’s next claim is that the court improperly denied his motion to suppress because he was in custody during the February 24, 1996 interrogation during which he gave his first statement. Furthermore, the defendant claims that if this court concludes that his February 24 statement was rendered inadmissible because it was taken in violation of his Miranda rights, then the court must necessarily conclude that the defendant’s second, February 29 statement and any other evidence that the police discovered solely as a result of his February 24 statement, including any evidence supplied by the statements of Ledbetter, Sanchez and Milling, also were inadmissible. Finally, the defendant argues that the court’s improper admission of the statements at issue here was not harmless error because those statements constituted almost the entire case against him.

The state argues that the defendant was not in custody on February 24, and, therefore, Miranda warnings were not warranted. In the alternative, the state argues that even if the defendant’s February 24 statement was admitted improperly, that error was harmless beyond a reasonable doubt in light of the defendant’s subsequent February 29 untainted confession. We agree with the state’s latter argument and affirm the judgment of the trial court.

A

We first address the defendant’s claim that the court improperly determined that he was not in custody at the time of his February 24, 1996 statement and, therefore, Miranda warnings were not warranted. We assume without deciding that the defendant was in custody when he made the February 24 written statement and conclude that the issues that the defendant raises are resolved by the February 29 statement, which was taken following administration oí Miranda warnings, and the other facts and circumstances surrounding his arrest.

B

The defendant also claims that if his February 24 statement was taken in violation of Miranda and, therefore, should have been excluded, then this court must also conclude that any evidence that flowed from that statement should also have been excluded. We disagree.

Our assumption that the court should have suppressed the defendant’s February 24 statement because it was the product of a Miranda violation does not dictate that we conclude that the court should have suppressed or excluded the defendant’s February 29 confession or any of the evidence obtained as a result of the statements of Ledbetter, Sanchez and Milling. We conclude that the admissibility of such derivative evidence turns not on whether the defendant’s February 24 statement was the result of a Miranda violation but, rather, on whether the February 24 statement was involuntary or prompted by coercion. We discuss, in turn, the admissibility of the defendant’s February 29 statement and the evidence from the other witnesses.

First, the defendant claims that his February 29 confession indirectly was compelled by the illegally obtained statement that he gave to the police on February 24 and, therefore, the February 29 statement is tainted with the illegality of his February 24 statement and should have been excluded. The defendant’s claim, in essence, is a variation on “the cat out of the bag” theory announced in United States v. Bayer, 331 U.S. 532, 540-41, 67 S. Ct. 1394, 91 L. Ed. 1654 (1947). In propounding his variant of “the cat out of the bag” confession, the defendant’s counsel has raised a substantial issue that we now address.

The defendant claims that it was his February 24 statement that led the police to Ledbetter, who ultimately implicated him in the attempted robbery. He further claims that it was Ledbetter’s statement that precipitated his February 29 confession because at that point “the cat was out of the bag.” He argues that because his February 29 statement stems from his February 24 statement, therefore the later, February 29 statement must be excluded as well. We disagree.

“Certainly, all admissions or confessions which follow invalid confessions are not a result of the prior confession.” State v. Darwin, 161 Conn. 413, 425, 288 A.2d 422 (1971). “In Oregon v. Elstad, [470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985)] the United States Supreme Court held that, under the United States constitution, the initial failure to administer Miranda warnings to a suspect who voluntarily provides an incriminating statement, in the absence of actual coercion by law enforcement officers, does not taint any subsequent admissions that are made after the suspect has been fully advised of and has waived his Miranda rights.” State v. Atkinson, supra, 235 Conn. 756 n.15. “Elstad draws a distinction between the simple failure to administer the warnings, unaccompanied by any actual coercion . . . and more serious Miranda violations where the police have employed improper tactics or inherently coercive methods that are calculated to undermine the suspect’s ability to exercise his free will.” (Citation omitted; internal quotation marks omitted.) State v. Shifflett, 199 Conn. 718, 741, 508 A.2d 748 (1986). Thus, “failure to administer the warnings, unaccompanied by any actual coercion . . . [does not] so [taint] the investigatory process that a subsequent voluntary and informed waiver is ineffective .... Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” (Internal quotation marks omitted.) State v. Atkinson, supra, 756-57 n.15.

In the present case, the defendant has not argued that the Hartford police engaged in any improper conduct that was calculated to break his ability to exercise free will when he gave his February 24 statement. Instead, the defendant simply argues that the February 24 statement should have been suppressed because it was not preceded by Miranda warnings. Further, the defendant’s subsequent statement, made five full days after his February 24 statement, was made after a proper administration of Miranda warnings and a knowing and voluntary waiver of Miranda rights, as evidenced by the defendant’s signature on the advisement of rights form, as well as the testimony of those who witnessed the defendant sign the advisement form on February 29. Accordingly, we conclude that the defendant’s February 29, 1996 statement properly was admitted.

Second, the defendant claims that any evidence that the police learned about as a result of Ledbetter’s statement, as well as the statements of Sanchez and Milling, should have been suppressed because the police learned of the identities of those witnesses exclusively through the information provided in his February 24 statement. Again, we disagree.

In Michigan v. Tucker, 417 U.S. 433, 445-51, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974), the United States Supreme Court rejected the argument that absent coercion on the part of the police, all evidence, including the statement of a witness, whose identity the defendant had revealed while in custody, should be excluded as “fruits” of a Miranda violation. Although we have already assumed without deciding that the defendant’s February 24 statement may have been the product of a Miranda violation, we have determined that it was not the product of a fifth amendment violation arising out of coercion or other improper tactics on the part of the police. Accordingly, we conclude that the evidence that was introduced at trial, which was derived in part from the witnesses identified by the defendant in his February 24,1996 statement, properly was admitted.

C

We now turn to the issue of whether the court’s failure to suppress the defendant’s February 24,1996 statement constituted harmless error. The state contends that even if it was error to admit the defendant’s February 24 statement at trial because it was taken in violation of Miranda, that error was harmless. We agree.

“The improper admission of a confession is harmless error where it can be said beyond a reasonable doubt that the confession did not contribute to the conviction. . . . [Our Supreme Court] has held in a number of cases that when there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 297, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000).

In the present case, there was overwhelming evidence of the defendant’s guilt independent of his February 24 statement, namely, his properly admitted February 29 confession. Furthermore, his home telephone number was used to call the taxicab company and was given as the callback number. In addition, the testimony of Sanchez, Milling and Grate corroborated the defendant’s account of what occurred in the early morning hours of February 24 and was further evidence of guilt. We also note that prior to the February 24 written statement, which the defendant gave to the police at the station, he orally told the officers who came to his home about Robin and Joker. Certainly, the defendant was not in custody when he answered the officers’ preliminary questions while in his home, and it is inconceivable that in the course of a murder investigation, the police would not have tracked down and contacted those individuals whom he named, even without the defendant’s later, February 24 written statement. We conclude that any error in admitting the defendant’s February 24, 1996 statement was harmless beyond a reasonable doubt.

Ill

We next turn to the defendant’s claims of insufficiency of the evidence relating to the crimes of attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree. Because some of the same evidence applies to both claims, we address the two remaining claims together.

The defendant contends that the evidence was insufficient to sustain a verdict of guilty of conspiracy to commit robbery in the first degree in that there was no evidence that he had intended that anyone committing the robbery would be armed with a dangerous instrument. The long form information dated November 13, 1998, included a count four that charged that the defendant had committed the crime of conspiracy to commit robbery in the first degree in violation of §§ 53a-48 (a) and 53a-134 (a) (3), and that on February 24,1996, “the defendant, with intent that conduct constituting the crime of robbery in the first degree be performed, agreed with Robin Ledbetter to engage in or cause the performance of such conduct, and either one of them committed an overt act in pursuance of such conspiracy.”

Our Supreme Court has set out the applicable appellate standard of review for sufficiency of evidence claims. “In reviewing [a] sufficiency [of the evidence] claim, we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993).

Under the governing statutes, “[a] person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” General Statutes § 53a-133. A person has committed robbery in the first degree if, “in the course of the commission of the crime ... he or another participant in the crime . . . uses or threatens the use of a dangerous instrument. General Statutes § 53a-134 (a) (3).

“The use or threatened use of immediate physical force is the element which distinguishes larceny from robbery. State v. Childree, 189 Conn. 114, 123, 454 A.2d 1274 (1983). [I]f the use of force occurs dming the continuous sequence of events surrounding the taking . . . even though some time immediately before or after, it is considered to be in the course of the robbery . . . within the meaning of the statute.” (Internal quotation marks omitted.) State v. Crosswell, 223 Conn. 243, 250-51, 612 A.2d 1174 (1992); State v. Ghere, 201 Conn. 289, 297, 513 A.2d 1226 (1986).

As applied to the defendant’s contentions in this case, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the defendant had intended that either he or Ledbetter would be armed with a dangerous instrument. See, e.g., State v. Hallowell, 61 Conn. App. 463, 466-67, 766 A.2d 950 (2001); State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). We conclude that the jury reasonably could have found that the defendant intended that either he or Ledbetter, or both, would be armed with a drill and knife, respectively. The defendant in his reply brief concedes that “there is no question that an agreement had been made between the defendant and Ms. Ledbetter.” He contends, however, that there was no evidence that the ‘contents' of the conspiracy included the use of the drill as a dangerous instrument. We first note that the defendant is attempting to define the scope of the conspirators’ agreement by connecting it only to the events that occurred before the actual forceful taking of the taxicab driver’s money. We also point out that the information included an intent that either the defendant or Ledbetter be armed with a dangerous instrument.

“[T]he existence of a formal agreement between the conspirators need not be proved. State v. Johns, 184 Conn. 369, 378, 439 A.2d 1049 (1981) . . . .” (Citation omitted.) State v. Ghere, supra, 201 Conn. 299. “[C]onspiracy can seldom be proved by direct evidence but may be inferred from acts done [by the accused persons].” State v. Faillace, 134 Conn. 181, 185, 56 A.2d 167 (1947). Here, the jury could look to Ledbetter’s use of the knife to penetrate the taxicab driver’s chest, and the defendant’s use of the drill to threaten and to beat the victim. It also was entitled to consider the evidence that each of them witnessed the other arming himself or herself with those weapons prior to leaving to commit the robbery.

“It is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. The combination or confederation may be proved by circumstantial evidence, that is, by proof of the separate acts of the individuals accused and by proof of circumstances from which the illegal confederation may be inferred. State v. Gerich, 138 Conn. 292, 297, 83 A.2d 488 [1951], State v. Holmes, 160 Conn. 140, 150, 274 A.2d 153 (1970). State v. Baker, 195 Conn. 598, 604, 489 A.2d 1041 (1985).” (Internal quotation marks omitted.) State v. Ghere, supra, 201 Conn. 299.

There was no direct evidence of the entire agreement to rob the taxicab driver by using a dangerous instrument. There was, nonetheless, circumstantial evidence before the jury from which, as a rational trier of fact, it could have found that both the defendant and Ledbetter intended to force the driver to give up his money, the defendant, by the use of a drill that he first held to the driver’s head and then used to hit the driver on the head, and Ledbetter, by the use of a long knife that she used repeatedly to stab the victim while the defendant held him.

The jury had evidence of the defendant’s statement to his girlfriend, Sanchez, that he would put the drill to the driver’s head when demanding money. Ultimately, in committing the crime, he did so, following that act by beating the driver on the head with the drill. The defendant’s own February 29, 1996 confession notes that Ledbetter, who was in the same apartment, armed herself with a long ten inch knife, wrapping it in a bandanna that she secured to her leg. Ultimately, there was evidence of her use of that knife during the robbery to stab the taxicab driver, who was left bleeding in his taxicab. A jury is permitted to draw an inference. The jury permissibly could draw an inference from the defendant’s and Ledbetter’s words, and their individual arming of themselves, which took place in one another’s presence at the apartment, that they intended to cooperate to rob a taxicab driver. To accomplish that, they would use the drill and knife, both dangerous instruments, to compel the driver to deliver up his money and to prevent or overcome any resistance on his part. A conspiracy can be inferred from the facts and circumstances of the case. Iannelli v. United States, 420 U.S. 770, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975); see also 2 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 6.4 (e), p. 71. We conclude that there was adequate evidence before the jury to warrant inferences that both the defendant and Ledbetter had agreed and intended to use dangerous instruments in committing the robbery.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery ... or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . . ”

       General Statutes § 53a-49 (a) provides in relevant part: “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 . . . (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.”

       General Statutes § 53a-48 (a) provides in relevant part: “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.”

       See footnote 1.