author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. SCOTT SMITH
    (AC 20829)
    Spear, Dranginis and Dupont, Js.

      Argued February 13
    officially released August 21, 2001

      James B. Streeto, deputy assistant public defender, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satli, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Scott Smith, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), sexual assault in the first degree in violation of General Statutes § 53a-70 and sexual assault in the third degree in violation of General Statutes § 53a-72a. On appeal, the defendant claims the trial court improperly (1) failed to instruct the jury on manslaughter in the first degree, General Statutes § 53a-55 (a) (1), as a lesser offense included within the offense of murder, (2) failed to order a mistrial on the basis of prosecutorial misconduct, thereby violating his right to a fair trial, (3) denied his motion to suppress his confession, and (4) instructed the jury on the credibility of witnesses, thereby depriving him of his right to due process, the presumption of innocence and his right to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the evening of May 12, 1995, the defendant went to a bar in Bridgeport, where he consumed several beers and brandy, and met Timothy Solek. The two left for Solek’s apartment, where they consumed more alcohol. They later returned to the bar. They then went to the home of the victim, an acquaintance, and the three played cards.

At some point in the evening, the defendant left the room to use the bathroom. When he returned, he found the victim and Solek arguing and pushing each other. The victim yelled at Solek to leave. The defendant then grabbed the victim and placed her in a choke hold. The victim resisted, gasped for air and, finally, fell to the floor.

Solek then kicked the victim in the head repeatedly and hit her in the head with a clothes iron three or four times. He also stabbed her repeatedly with a can opener. The defendant took off his pants and fondled the victim’s breasts. Solek had taken off his pants, covered the victim’s face with a towel, masturbated, and forcibly had anal and vaginal intercourse with her. Before the defendant and Solek left, the defendant took the victim’s Walkman. They returned to Solek’s apartment, where the defendant borrowed a pair of pants. At about 2:30 a.m., Solek called the police and accompanied the responding officer to the victim’s apartment, where she was found dead.

The defendant subsequently was arrested at his girlfriend’s home, where police recovered a pair of his jeans covered with the victim’s blood. The victim’s blood also was found under the defendant’s fingernails and on his left hand. The defendant gave a signed, written statement at the police station. In the statement, the defendant admitted that he and Solek had been at the victim’s apartment, that he got involved in a fight between Solek and the victim, and that he strangled her. When the police detectives who took the defendant’s statement asked whether he had killed the victim, the defendant stated, “I guess you could say we both did, but not on purpose.” He further admitted in the statement that he took off his pants and that, although he did not have sex with the victim, he fondled her breasts.

At trial, the state put on evidence that showed that the victim’s death was caused by strangulation. The defendant testified in his own behalf. The jury, however, found him guilty, and this appeal followed.

I

The defendant first claims that the court improperly failed to charge the jury on manslaughter in the first degree in violation of § 53a-55 (a) (1) as a lesser offense included within the offense of murder. We disagree.

“There is no fundamental constitutional right to a jury instruction on every lesser included offense . . . rather, the right to such an instruction is purely a matter of our common law.” (Citation omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996). “In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), [our Supreme Court] held that a defendant is entitled to an instruction on a lesser included offense if he can demonstrate compliance with each of four conditions: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. . . .

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra [588], we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. . . . [T]he jury’s role as fact-finder is so central to our jurisprudence that, in those cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence. . . . Under Whistnant, the evidence is sufficiently in dispute where it is of such factual quality that would permit the [jury] reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. . . . Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on the evidence . . . from which inferences can fairly be drawn. . . . They should not [however] be encouraged to engage in speculation. . . . On appeal, an appellate court must reverse atrial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Citations omitted; internal quotation marks omitted.) State v. Ray, 228 Conn. 147, 152-55, 635 A.2d 777 (1993).

“A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book [§ 42-18]. State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990); State v. Ostroski, [201 Conn. 534, 556-58, 518 A.2d 915 (1986)]; State v. McIntosh, [199 Conn. 155, 158-61, 506 A.2d 104 (1986)].” State v. Tomasko, supra, 238 Conn. 261. Practice Book § 42-18 (a) provides in relevant part: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. ...” Our Supreme Court has held that “in the context of a written request to charge on a lesser included offense, [the] requirement of [Practice Book § 42-18] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.” (Internal quotation marks omitted.) State v. Corbin, 61 Conn. App. 496, 521, 765 A.2d 14, cert, granted on other grounds, 256 Conn. 910, 911, 772 A.2d 1124, 1125 (2001).

As a general rule, “a trial court’s awareness of the factual basis for a requested charge . . . [does not constitute] an acceptable alternative to a party’s compliance with the rules of practice. State v. Vega, 48 Conn. App. 178, 185, 709 A.2d 28 (1998); see also State v. Ramirez, 16 Conn. App. 284, 289, 547 A.2d 559, cert, denied, 209 Conn. 828, 552 A.2d 434 (1988).” State v. Williams, 59 Conn. App. 771, 782, 758 A.2d 400, cert, granted on other grounds, 254 Conn. 952, 762 A.2d 906 (2000). We will, however, review a claim when the defendant has substantially complied with the requirements of Practice Book § 42-18 and the court understood the grounds for the objection. Id., 781-82 (trial court understood factual basis of defendant’s request where defense counsel presented oral argument outlining in detail factual basis for request to charge); see State v. Deptula, 31 Conn. App. 140, 146, 623 A.2d 525 (1993) (reading of transcript revealed that trial court and defendant’s counsel understood facts relied on for requested charge), appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994).

In the present case, after the close of evidence, the defendant made a request to charge the jury on manslaughter in the first degree by a written motion and took an exception when the court did not give the requested instruction. The defendant argues that all four conditions of Whistnant have been satisfied. The defendant meets the second condition because it is well settled that “manslaughter in the first and second degrees and criminally negligent homicide are lesser included offenses within the crime of murder.” (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 66 n.ll, 621 A.2d 728 (1993). The state argues that the defendant failed to meet the first, third and fourth conditions.

With respect to the first condition of Whistnant, the state, in its brief, argues that the defendant failed to provide in his request to charge any discussion of the evidence that would support an instruction on manslaughter. The state failed, however, to raise that argument at trial. We therefore refuse to consider its claim that the request did not comply with the first condition of Whistnant. See State v. Smith, 35 Conn. App. 51, 60 n.5, 644 A.2d 923 (1994).

“For the third and fourth conditions of Whistnant to be satisfied, ‘there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense.’ ” (Emphasis in original.) State v. Sotomayor, 61 Conn. App. 364, 379, 765 A.2d 1, cert, granted on other grounds, 255 Conn. 952, 770 A.2d 32 (2001). The offense of murder requires that the defendant intentionally cause the death of another; General Statutes § 53a-54a (a); whereas the offense of manslaughter in the first degree provides that a person is guilty when, with intent to cause serious physical injury to another person, he causes the death of such person or of a third person. General Statutes § 53a-55 (a) (1).

The defendant claims that if the court had given the instruction on manslaughter, the jury could have concluded that he had intentionally beaten the victim into submission so that he could sexually assault her and that this resulted in her death. In support of his claim, he points to his statement to the police that he did not kill the victim on purpose and that there was no evidence of planning.

We conclude that the jury could not have reasonably and logically inferred from the facts that when the defendant strangled the victim he intended only to cause serious injuries. First, we note that the defendant’s position at trial was that he not only did not intend to kill the victim, but that he also never intended to injure her. He testified that he merely was a bystander to Solek’s attack and that he even attempted to stop Solek. He farther testified that he only touched the victim’s breasts because Solek forced him to do so. Notwithstanding the defendant’s testimony that he had no intent to injure or to kill the victim and his testimony that police inaccurately recorded his statement, he now relies on his statement to police as evidence supporting a manslaughter charge. Furthermore, we are not persuaded that the absence of planning requires us to conclude that the jury reasonably could find that the defendant intended only to injure the victim seriously and that he did not intend to kill her when he strangled her.

Viewing the evidence in the light most favorable to the defendant, we'conclude that his state of mind was not sufficiently in dispute so as to entitle him to a jury instruction on manslaughter in the first degree.

II

The defendant claims that prosecutorial misconduct by the state’s attorney in his closing argument requires reversal of the judgment. The defendant concedes that he did not properly preserve the issue of prosecutorial misconduct for appellate review. He therefore seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant satisfies the first two prongs of Golding because an adequate record exists to review his claim and he alleges a constitutional violation. The defendant, however, cannot prevail under the third prong because he cannot demonstrate that a constitutional violation clearly exists that clearly deprived him of a fair trial.

“Prosecutorial misconduct may . . . occur in the course of closing argument. . . . Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. . . . State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . Id., 539 — 40.” (Internal quotation marks omitted.) State v. Heredia, 253 Conn. 543, 561, 754 A.2d 114 (2000).

“[T]o determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. ... To make this determination, we must focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Forde, 52 Conn. App. 159, 172, 726 A.2d 132, cert, denied, 248 Conn. 918, 734 A.2d 567 (1999).

“When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. . . . The trial court’s ruling is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful. . . . [T]he trial court’s determination that the prosecutor’s remarks did not require a new trial must be afforded great weight.” (Citation omitted; internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 353, 721 A.2d 1212 (1998), cert, denied, 247 Conn. 960, 723 A.2d 816 (1999). “The general principle is that a mistrial should be granted only as a result of some occurrence on the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial. . . . [T]he trial judge is the arbiter of the many circumstances which may arise dining a trial . . . [and] [t]he trial court has a wide discretion in passing on motions for mistrial.” (Citations omitted; internal quotation marks omitted.) State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980). “Scrutiny of a challenged remark made during closing arguments to the jury, therefore, does not occur in a vacuum; an appellate court examines such remarks in light of the entire trial.” State v. Rivera, 61 Conn. App. 763, 771, 765 A.2d 1240, cert, denied, 256 Conn. 901, 772 A.2d 599 (2001).

In support of his claim of prosecutorial misconduct, the defendant advances several arguments. He first argues that during closing argument, the state’s attorney improperly (1) commented on and criticized him for exercising his constitutional rights, (2) argued that the defense counsel had used unscrupulous tactics to “get off’ a guilty client, (3) recast the defendant’s case as a personal attack on the prosecution and the police, and (4) argued a theory of the case that was not supported by the evidence, specifically, that the defendant and Solek had attempted to subdue the victim to sexually assault her and that the defendant’s intent to kill developed out of that attempt.

The defendant contends that the state improperly and repeatedly referred to the defense counsel by name, and used improper tone and language throughout the closing argument. He takes issue with the following remarks by the state’s attorney: (1) a reference to the defendant’s case as a “shotgun approach to trying to acquit and get off the client”; (2) a reference to the defendant’s approach as, “[Ljet’s attack the government. Why not? We have nothing to do. Who cares?” and, “Because [the defense counsel] again didn’t come at me when he fired the shotgun, but it certainly was meant to hit me because I am part of this prosecution team.”

On the basis of our review of the parties’ closing arguments, we cannot conclude that the defense counsel did not invite the state’s argument to the jury. The defense attorney also referred to the prosecutor by name. The state’s attorney’s argument was, in large part, in response to the defense counsel’s argument that the police and the prosecution had conducted a sloppy investigation and jumped to conclusions. Likewise, the state did not “recast” the defendant’s case as an attack on the police and the prosecution.

The defendant argues that the state’s argument infringed on his constitutional right to testify and to consult with his attorney. In support of his claim, he points to the following statement by the state’s attorney: “[H]e said, I went over my testimony with my lawyer. They practiced. They practiced. I mean, come on.” The defendant further contends that the state’s attorney improperly criticized him for exercising his right to a jury trial by stating, “[W]ell, of course he says, I am not guilty. Put the state to its burden of proof.” The defendant claims that the state’s argument implied unscrupulous tactics by the defendant and by his counsel to gain an acquittal.

We conclude that the references to the defendant’s exercise of his constitutional right to testify did not invite the fact finder to draw an inference adverse to the defendant solely because of his assertion of that constitutional right. Rather, we conclude that the state was responding to the defendant’s argument that the jury should consider his demeanor and conclude that he did not look like someone who could confront Solek. We further conclude that the state also was pointing out to the jury the defendant’s interest in the outcome of the case. “[B]y exercising his fifth amendment right to testify on his own behalf, it is axiomatic that a defendant opens the door to comment on his veracity.” State v. Alexander, 254 Conn. 290, 297, 755 A.2d 868 (2000).

We conclude that the state did not call for the defendant to rebut the state’s case. The state’s argument merely pointed out to the jury that the police and scientific evidence offered by the state and challenged by the defendant in closing argument were not contradicted. Finally, we conclude that the state’s closing argument, namely, that the defendant and Solek beat the victim to sexually assault her, is not inconsistent with the state’s theory that the defendant intended to kill the victim when he choked her. Therefore, the state’s argument was not improper.

Moreover, “[t]he fact that all of the defendant’s claims focus on allegedly prejudicial remarks made only during closing argument demonstrates that such comments were not a pervasive quality of the entire proceeding.” State v. Rivera, supra, 61 Conn. App. 774. We cannot say that in the context of the entire trial; see State v. Rolli, 53 Conn. App. 269,279, 729 A.2d 245, cert, denied, 249 Conn. 926, 733 A.2d 850 (1999); that the defendant met his burden of proving that the prosecutor’s closing argument deprived him of a fair trial.

Ill

The defendant next claims that the court improperly denied his motion to suppress his confession. He argues that his statement was given involuntarily and, therefore, taken in derogation of his Miranda, rights. We disagree.

“[T]he use of an involuntary confession in a criminal trial is a violation of due process. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Miranda v. Arizona, [384 U.S. 436, 461-63, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]; State v. DeAngelis, 200 Conn. 224, 232, 511 A.2d 310 (1986). The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999).

“[0]ur Supreme Court has also clarified the proper scope of appellate review of a trial court’s determination of voluntariness. ... To begin, we note the established rule that the [t]riai court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. ... In its review of state court determinations of voluntariness, the United States Supreme Court long has concluded that the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination. . . . Consistent with the well established approach taken by the United States Supreme Court, we review the voluntariness of a confession independently, based on our own scrupulous examination of the record. . . . [A]pplying the proper scope of review to the ultimate issue of voluntariness requires us, not to ascertain whether the trial court’s finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness. . . . Having that clarified standard of review in mind, we now must determine whether the defendant’s confession was voluntary.

“We make such a determination by examining the totality of the circumstances surrounding the confession, and determining whether the confession [was] the product of an essentially free and unconstrained choice by the maker. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Citations omitted; internal quotation marks omitted.) State v. Corbin, supra, 61 Conn. App. 505-506.

Applying those factors to the present case, we conclude that the facts overwhelmingly support the court’s determination that the defendant’s confession was voluntary. The defendant was twenty-two years old at the time of his confession, had a tenth or eleventh grade education and had been thoroughly advised of his Miranda rights. See, e.g., State v. Lewis, 60 Conn. App. 219, 248, 759 A.2d 518 (confession voluntary where defendant literate, twenty-one years old and completed three years of high school), cert, denied, 255 Conn. 906, 762 A.2d 911 (2000). The record further indicates that the defendant was unrestrained at the police station in that he was permitted to use the rest room and was given a beverage. See State v. Banks, 58 Conn. App. 603, 614, 755 A.2d 279 (confession voluntary where defendant had unrestrained access to telephone, rest room), cert, denied, 254 Conn. 923, 761 A.2d 755 (2000); see also State v. Hafford, 252 Conn. 274, 299, 746 A.2d 150 (defendant unrestrained and confession voluntary where he was given soda, cigarette), cert, denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). The court also properly rejected the defendant’s claim that he was so intoxicated as to render his confession involuntary. Police detectives testified that the defendant spoke clearly and did not exhibit any signs of intoxication. See State v. Downey, 45 Conn. App. 148, 163, 694 A.2d 1367, cert, denied, 242 Conn. 909, 697 A.2d 367 (1997). Furthermore, he gave a detailed account of the crime and responded appropriately to each of the officer’s questions.

On the basis of our plenary review of the entire record, we conclude that the defendant’s confession was voluntarily made to the police.

IV

The defendant claims that the court improperly instructed the jury on the credibility of the witnesses, thereby violating his constitutional right to due process, the presumption of innocence and his light to testify. The defendant claims that when the court instructed the jury on the credibility of the witnesses, it singled out the defendant as a witness and established a different standard for evaluating his credibility by instructing the jury to consider his interest in the outcome of the case. Specifically, the defendant argues that the court’s instruction was not evenhanded because it instructed the jury to consider his interest in the outcome of the case, but did not instruct the jury to consider the other witness’ interests in the outcome and, furthermore, because it instructed the jury that in considering his interest, it should compare his testimony to the other evidence adduced at trial. We disagree.

“In order to preserve a claim related to the giving of or failure to give a jury instruction, a party is obligated either to submit a written request to charge covering the matter or to take an exception immediately after the charge is given.” (Internal quotation marks omitted.) Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 8, 647 A.2d 1031, cert, denied, 231 Conn. 942, 653 A.2d 822 (1994).

In this case, the defendant submitted a general request to charge regarding the credibility of the witnesses; however, because he did not take an exception to the court’s instruction, the court was not apprised of the alleged deficiency of the charge. Therefore, the defendant’s claim is not preserved for appeal. Because his claim was not preserved, the defendant seeks review under State v. Golding, supra, 213 Conn. 239-40. The defendant claims a deprivation of a constitutional right; State v. Williams, 220 Conn. 385, 396-97, 599 A.2d 1053 (1991); and there is a record. We therefore will review the defendant’s assertion.

The defendant’s claim that he was “singled out” by the court, resulting in his testimony being more heavily scrutinized than that of other witnesses, is not supported by the record. Our review of the record indicates that the court gave a balanced and thorough instruction regarding the credibility of witnesses in general, regarding the defendant as a witness and directing the jury to treat him as it would any other witness. We previously have upheld similar instructions that were challenged as not being “evenhanded.” See, e.g., States v. Scarpiello, 40 Conn. App. 189, 201, 670 A.2d 856, cert, denied, 236 Conn. 921, 674 A.2d 1327 (1996); State v. Colon, 37 Conn. App. 635, 640, 657 A.2d 247 (1994), cert, denied, 234 Conn. 911, 660 A.2d 354 (1995); State v. Brown, 35 Conn. App. 699, 713-14, 647 A.2d 17, cert denied, 231 Conn. 932, 649 A.2d 254 (1994); see also State v. Williams, supra, 220 Conn. 385. “[I]n the absence of a fair indication to the contrary, [the jury] is presumed to have followed the instructions of the court.” (Internal quotation marks omitted.) State v. Mills, 57 Conn. App. 202, 212, 748 A.2d 318, cert, denied, 253 Conn. 914, 915, 754 A.2d 163 (2000).

We conclude that there was no constitutional violation and that the defendant was not deprived of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant stated in relevant part: “They were hitting each other and then she started to swing at me and I blocked her punch and with my left hand and arm I put her into a neck hold. I was standing behind her. We fell to the floor and [Solek] kicked her in the head a couple of times, she was yelling and screaming and I let go and she took a couple weird breaths and gasps and she sat up and started swinging and I then just put my hands around her and I choked her and she tried to get me off her and we fell again and [Solek] hit her in the head with the iron about three or four times so I let go and picked up the iron and threw it so I could look for my sneaker.”

       Edward T. McDonough, the deputy chief medical examiner for the state, testified that three curves or scrapes on the victim’s neck were consistent with fingernail bruises, and that multiple areas of hemorrhage on her neck muscles, the soft tissue of her breathing tubes and behind her eyes indicated strangulation. McDonough further testified that the evidence showed that the victim had suffered injuries consistent with being struck by an iron and stabbed with a can opener.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

         “[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. In the absence of any one of these conditions, the defendant’s claim will fail." (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The defense counsel attacked the police investigation in his closing argument, stating, in relevant part: “Now, the police jumped to conclusions early in this case. They had Timothy Solek with him when they arrested [the defendant], focused on [the defendant] to the point that they missed very important clues, focused on [the defendant], that they failed to pay attention to the fact that their sloppy work was affecting their investigation. But jumping to conclusions is often very difficult to avoid because it’s usually the easy way out. If the police had not jumped to conclusions, they would have carefully listened to what [the defendant] had to tell them.
      * * *
      “[Detective John Brenner] admitted he had spoken with [the defendant] for five or ten minutes before he signed the [Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602,16 L. Ed. 2d 694 (1966)] warnings. He could not specifically remember what he discussed, but do not rule out that he had some discussion about the case from the time that [the defendant] signed the Miranda rights form to the start of the typing of the statement.
      * * *
      “[T]he time he started that statement, there existed a forty minute gap. [Detective] Brenner admitted that he and [the defendant] discussed the case during that time, yet none of it was recorded, none of it. First of all, in a case of this importance, if — it’s just common sense. If you truly wanted to have an accurate record of what [the defendant] had to say on this day and time about this case, wouldn’t you have used an audiotape? Better yet, a videotape? And particularly in this day and time, the fact that this man smelled of alcohol, Brenner and [Detective Joseph Adiletta, who also took the defendant’s statement] both said he smelled of alcohol, to talk with [the defendant] for forty minutes plus five to ten more minutes and to record none of it . . . that’s inexcusable.
      * * *
      “You heard [the defendant] repeatedly say in response to the state’s attorney grilling about particular answers it was not the complete statement that he had given to [Detective] Brenner. You take any person’s statement, any, any of his statements, you take any of your statements, you cut it up, don’t record it exactly as it is given, it will be incomplete, out of context and often completely different from the statement that person actually gave.”
      The defense counsel further criticized Brenner’s typing skills and argued: “It is an outrage that a police officer with poor typing skills would not record [the defendant’s] statement in some other manner. I should say some manner. This is not a record. It was sloppy. It was lazy. It was incompetent.
      * * *
      “Unless it was an easy way to make sure that no one could review the accuracy of those assertions. Maybe the thinking was that the only way that the accuracy of that statement could be challenged was by [the defendant’s] taking the witness stand. Maybe the thinking was, what chance is there that there would be anyone who would believe him anyway, especially since it seemed logical through the eyes of [Detective] Brenner to jump to his conclusions, to the conclusions to which he jumped. It seemed logical to jump to those conclusions, so why shouldn’t other people.

        “Although the state’s attorney attempted to prevent [the defendant] from providing full explanations, you heard it, constantly cutting him off, wouldn’t let him give the full answer, but he did give — get it out, so you were able to hear his full account.”

       The defense counsel argued in relevant part: “You have observed [the defendant]. You’ve heard [the defendant]. Now, I ask you, does he appear to have the personality, the type of personality that influences and commands others? Certainly was no influence on Timothy Solek. You heard how Timothy Solek ordered him to bring him a beer when they were in the apartment. Now, maybe [the defendant’s] alcohol effective state of mind did not help him. Unfortunately, just judging by looking at [the defendant], what you observed, what you heard, it would appear in the circumstances that he may have had trouble influencing Timothy Solek, even if no alcohol had been involved.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694 (1966).

       See footnote 4.


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CAESAR O’NEIL
    (AC 19710)
    Lavery, C. J., and Foti and Healey, Js.
    Argued March 26
    officially released August 21, 2001

      Neal Cone, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Stephen J. Sedensky III, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HEALEY, J.

The defendant, Caesar O’Neil, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a). On appeal, the defendant claims that the evidence is insufficient to support his conviction because the case that the state presented against him was one of attempt to incite the injury or killing of another person in violation of General Statutes §§ 53a-49 and 53a-179, an offense different from that alleged in the information. We reverse the judgment of the trial court.

The jury could have reasonably found the following facts. In the early morning hours of July 4, 1993, Eddie Smalls and Orlando Suter were riding in a stolen, white Acura automobile in Bridgeport on their way to a party. Smalls was operating the vehicle, and Suter was sitting in the front passenger seat. As Smalls, whose nickname is “Pooch,” approached the area of the party, he saw the defendant and a male, known as “Famous,” sitting in a car. Smalls drove past the car because Suter and the defendant were members of feuding, rival gangs. The defendant then began to follow Smalls and, suspecting that a gunfight would ensue, Smalls and Suter pulled out their handguns. The defendant and at least one other male in the car with the defendant started shooting at Smalls and Suter. Suter was shot and killed as a result of the gunfight.

Later, the defendant was arrested in connection with the murder of Suter. Smalls provided a signed, sworn statement to the police in which he identified the defendant as one of the shooters. A copy of the statement was turned over to the defendant’s attorney. Smalls also made an identification of the defendant through a photographic array after he told the police that he had known the defendant for several years. Smalls was scheduled to be a witness against the defendant at his probable cause hearing. After consulting with his attorney, however, the defendant waived his right to the probable cause hearing in open court. Smalls also was expected to testify against the defendant at his trial.

While awaiting trial, on April 30,1997, the defendant, who was incarcerated at the Walker correctional facility, sent out mail. John Hart, a former correction officer at the facility who monitored the inmates’ mail, intercepted the defendant’s letters. According to Hart, the outgoing mail was collected in such a way that each bundle could have come from only a specific group of cells. From a bundle containing the outgoing mail from the six cells that included the defendant’s, Hart examined an envelope on which was written the defendant’s inmate number and “Vassel O’Neil.” Inside that envelope, there was a letter written in English and another envelope. The latter envelope was addressed to Rose Evans and contained another letter using some kind of code that Hart believed he deciphered to read as requesting that a man named Wayne kill “Pooch,” also known as Smalls. Hart gave those items to his supervisor.

Thereafter, the defendant was charged with attempt to commit the murder of Smalls in violation of §§ 53a-49 and 53a-54a. The defendant’s trial on that charge was consolidated for trial with a second information that charged him with the murder of Suter.

At trial, James Streeter, a documents examiner for the state police, testified that he had examined the envelope containing the coded letter, the envelope inside that envelope, the letter inside the latter envelope and a handwritten sentence on the reverse side of a page of the coded letter. As a result of his examination, Streeter concluded that they all were written or addressed by the same individual. Michael Birch, a cryptanalyst for the Federal Bureau of Investigation, had been asked by the state to decode the coded portion of the letter. Birch testified that the code used was “a simple substitution code,” which means that a letter of the alphabet is substituted with either another letter, a symbol or a number. Smalls also testified at trial that he was called “Pooch” and that the defendant knew a Wayne Gray.

At the close of the state’s case-in-chief on the two consolidated cases, the defense counsel made a motion for a judgment of acquittal on both charges, which the trial court denied. Thereafter, the court agreed that the jury would be informed of Suter’s 1992 conviction for having a pistol without a permit and for carrying a dangerous weapon after which the defendant would rest his case. Anticipating that the state would put on a rebuttal case, the defense again made a motion for judgments of acquittal, and again they were denied. On March 2, 1999, the defendant was found guilty of attempt to commit the murder of Smalls, but a mistrial was declared on the charge of murder in connection with Suter’s death because of a deadlocked jury. For his conviction of attempt to commit murder, the defendant was sentenced to the custody of the commissioner of correction for a term of twenty years. This appeal followed.

I

The defendant claims that there was insufficient evidence to support his conviction of attempt to commit murder because the state presented a case of attempt to incite the injury or the killing of another person. In raising his claim, the defendant predominantly depends on State v. Schleifer, 99 Conn. 432, 121 A. 805 (1923), on appeal after remand, 102 Conn. 708, 130 A. 184 (1925), for the proposition that a mere solicitation cannot constitute an attempt to commit murder. The defendant contends, on the basis of Schleifer, which is in accordance with the great weight of authority, that the evidence is insufficient and, consequently, the judgment must be reversed.

Initially, we note that because the defendant did not raise his claim at trial, it is unpreserved. The defendant contends, however, that his claim nonetheless is reviewable in accordance with federal and state precedents.

We agree with the defendant that his claim is reviewable. The United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), held that the due process clause of the fourteenth amendment to the United States constitution commands that “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” On the basis of the holding in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), the Jackson court stated that “[t]he constitutional standard recognized in the Winship case was expressly phrased as one that protects an accused against a conviction except on proof beyond a reasonable doubt. . . .” (Internal quotation marks omitted.) Jackson v. Virginia, supra, 315. Inasmuch as In re Winship established proof beyond a reasonable doubt as an essentially fourteenth amendment due process requirement, it follows that when a conviction that is based on insufficient evidence occurs in a state trial, it cannot constitutionally stand. See id., 317-18. “Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof.” State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert, denied, 234 Conn. 907, 659 A.2d 1210 (1995).

In addition, the defendant argues that the “right to be acquitted unless proven guilty beyond a reasonable doubt of each element of the charged offense is a fundamental constitutional right protected by the due process clauses of the federal and Connecticut constitutions. U.S. Const., amend. XIV, Conn. Const., art. I § 8; see In re Winship [supra, 397 U.S. 364]; State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984).” State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984); see also State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987); State v. Hill, 201 Conn. 505, 512, 523 A.2d 1252 (1986); State v. Clark, 48 Conn. App. 812, 820-21, 713 A.2d 834, cert, denied, 245 Conn. 921, 717 A.2d 238 (1998). He also argues that Jackson v. Virginia, supra, 443 U.S. 307, was based squarely on that due process requirement, as stated in In re Winship, and that the right to be acquitted unless proven guilty beyond a reasonable doubt of each element of the charged offense also is guaranteed by the due process clause of the Connecticut constitution, article first, § 8. See State v. Smith, supra, 217; State v. Williams, supra, 363; State v. Hill, supra, 512; State v. Clark, supra, 820-21. The defendant maintains, therefore, that both the United States and Connecticut constitutions guarantee that a defendant’s conviction cannot stand unless it is supported by sufficient evidence.

“Our Supreme Court has said that Jackson v. Virginia, [supra, 443 U.S. 307] compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)]. There being no practical significance, therefore, for engaging in a Golding analysis [this court will review] the defendant’s challenge to his conviction [for insufficient evidence] . . . .” (Internal quotation marks omitted.) State v. Torres, 47 Conn. App. 205, 219, 703 A.2d 1164 (1997). Accordingly, we will review the defendant’s claim.

“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. Hollby, 59 Conn. App. 737, 741, 757 A.2d 1250, cert, denied, 254 Conn. 947, 762 A.2d 905 (2000); see Jackson v. Virginia, supra, 443 U.S. 307. “Criminal convictions will be upheld only when the defendant’s behavior is clearly forbidden by the statute under which he or she has been prosecuted.” State v. Smith, supra, 194 Conn. 222 n.7.

We turn to the defendant’s claim that the evidence was insufficient to sustain the conviction of attempt to commit murder pursuant to §§ 53a-49 and 53a-54a because what the state presented and prosecuted was a case not of attempt to commit murder, but rather of attempting to incite the injury or the killing of another person in violation of § § 53a-49 and 53a-l 79a. In making his claim, the defendant maintains that Connecticut common law, in accordance with the great weight of authority, has held that proof that the defendant solicited another to kill a third person is insufficient by itself to prove beyond a reasonable doubt that the defendant committed the crime of attempt to commit murder.

“There has been much debate whether mere solicitation constitutes an attempt. . . . The question is whether the defendant’s mere act of solicitation should be regarded as an attempt by the defendant to commit the offense. Most courts will answer ‘no.’ ” P. Low, Criminal Law (1984) p. 289. “Although there is authority to the contrary, most courts take the Anew that the mere act of solicitation does not constitute an attempt to commit the crime solicited.” (Emphasis added.) 4 F. Wharton, Criminal Law (15th Ed. Torcia 1996) § 671, p. 525. The legislature, of course, may itself evince an intent that a solicitation be treated as the equivalent of an attempt. See, e.g., State v. Jovanovic, 174 N.J. Super. 435, 438-40, 416 A.2d 961 (1980) (legislative revision of New Jersey Penal Code intended to make solicitation punishable as attempt), affd, 181 N.J. Super. 97, 436 A.2d 938 (App. Div. 1981). “Although in some jurisdictions solicitations are tried as indictable attempts, either by virtue of judicial decisions failing to distinguish them, or by statutory provisions, the great weight of authority is otherwise. Analytically the two crimes are distinct.” F. Sayre, “Criminal Attempts,” 41 Harv. L. Rev. 821, 857-58 (1928). “It is generally held that a solicitation does not constitute an attempt.” R. Perkins, Criminal Law (2d Ed. 1968) p. 585 & n.66. In State v. Schleifer, supra, 99 Conn. 432, on which the defendant heavily depends, “[t]he contention that solicitation is not a crime distinct from a criminal attempt [was] squarely met and disapproved by the court.” Note, “Orator Urging Acts of Violence Guilty of Solicitation,” 33 Yale L.J. 98 (1923).

The facts in Schleifer are worth noting. In that case, the defendant addressed an assemblage of striking railroad workers and urged them to commit acts of violence that clearly were felonies and misdemeanors. The information charged that the defendant “did unlawfully solicit, urge, command, counsel and endeavor to incite, cause and procure some or all of a large number of persons assembled, to the State’s Attorney unknown, to perpetrate or attempt to perpetrate the crimes of murder, robbery, aggravated assault with deadly or dangerous weapons, assault with intent to murder and assault with intent to rob, the same being felonies or aggravated crimes akin to felonies . . . .” State v. Schleifer, supra, 99 Conn. 433-34.

The trial court quashed the information. Id., 434. In so doing, that court held in part that “[w]hile it cannot be seriously denied that the public utterances in a promiscuous assembly of such entreaties and exhortations as are charged in this information, are highly prejudicial to the public peace, and ought to be seriously penalized, it is a situation that should be met by appropriate legislation. I do not feel warranted in view of all the authorities in undertaking to extend the present limitations of the common-law crime of solicitation so as to include the acts of the accused now under consideration.” (Internal quotation marks omitted.) Id., 435.

At the time that the defendant in Schleifer committed the alleged solicitation, Connecticut had no statute regarding solicitation. Thereafter, and before our Supreme Court decided Schleifer, the legislature, in response to the quashing of the information, enacted such a statute.

In Schleifer, the Supreme Court held that “[a] mere solicitation by itself is never an attempt. And the inciting or urging, whether it be by a letter or word of mouth, is a mere solicitation, and it does not change its character if the solicitation to crime is accompanied by a bribe as an inducement to its commission.” (Emphasis added.) Id., 438. In determining that “[a] mere solicitation by itself is never an attempt,” the Schleifer court also held that “[a]n attempt necessarily includes the intent [to commit a crime], and also an act of endeavor adapted and intended to effectuate the purpose. . . . The act of endeavor must be some act done in part execution of a design to commit the crime.” (Citation omitted; internal quotation marks omitted.) Id. That reasoning gives rise to the inquiry, as Schleifer opined, “of what sort must be the overt act necessary to satisfy the definition of an attempt . . . .” (Internal quotation marks omitted.) Id. The court in Schleifer reasoned that although it was clear that “the act need not be the next preceding on proximate act necessary to consummation of the crime intended . . . the mere offer of money, or solicitation, to commit [a crime] is not the sort of act necessary to satisfy the definition [of attempt].” (Internal quotation marks omitted.) Id.

Keeping in mind the previous reference to the language in Schleifer that “[a] mere solicitation by itself is never an attempt”; id.; that analysis aptly is explained in a later decision by the Supreme Court of Idaho in State v. Otto, 102 Idaho 250, 254, 629 P.2d 646 (1981). The court in Otto held that “[t]he solicitation of another, assuming neither solicitor nor solicitee proximately acts toward the crime’s commission, cannot be held for an attempt. He does not by his incitement of another to criminal activity commit a dangerously proximate act of perpetration. The extension of attempt liability back to the solicitor destroys the distinction between preparation and perpetration.” Id.; see also W. Clark & W. Marshall, Crimes (6th Ed. 1958) § 4.05, p. 200. The prerequisite to an understanding of the general rule “is the recognition that solicitation is in the nature of the incitement or encouragement of another to commit a crime in the future [and so] it is essentially preparatory to the commission of the offense solicited. Thus, it is essentially preparatory to the commission of the targeted offense.” State v. Otto, supra, 252 n.4; see also People v. La Fontaine, 79 Cal. App. 3d 176, 183, 144 Cal. Rptr. 729 (1978) (holding that mere solicitation does not constitute attempt to commit lewd or lascivious act upon body of child less than fourteen years old because “acts of solicitation constitute preparation only and do not rise to the level of the offense of a criminal attempt”); Hutchinson v. State, 315 So. 2d 546, 548-49 (Fla. App. 1975) (holding that solicitation of another to commit murder does not constitute attempt to commit murder because mere solicitation is not overt act toward attempt to commit murder); Gervin v. State, 212 Tenn. 653, 658, 371 S.W.2d 449 (1963) (holding that solicitation of another to commit murder does not constitute attempt to commit murder because “[t]o constitute an attempt there must also be an act of perpetration . . . [and] solicitation is preparation rather than perpetration” [citations omitted]). As we have seen under Schleifer and as two commentators note, “[T]he mere speaking of words is an act, and that is the kind of act which most often completes the crime of solicitation, although the crime may also be committed through the written word.” 2 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 6.1 (c), p. 10.

The Schleifer court appropriately explained that “[i]t is said [that] our court has no right to invent new crimes, and that is true, but it has the right to ascertain and declare the common law, no less the criminal than the civil law.” State v. Schleifer, supra, 99 Conn. 445. Further, we note that the court in Schleifer stated that “the existence of statutes [in other jurisdictions] to punish solicitation to crime as an independent offense [was] a rule declaratory of the common law as [that] has been quite frequently pointed out . . . Id., 441. In that context, the Schleifer court, alluding to statutes existing at the time of its decision, decided to follow the general, common-law rule. Id. Accordingly, our Supreme Court declared, inter alia, that under Connecticut common law, there is a distinction between the crimes of solicitation and attempt. That decision, which established the distinction between the two crimes, derived from analysis of prior precedent and is part of our common law. The Schleifer distinction has remained unchanged and unqualified in our case law.

The defendant contends that the common-law distinction declared in Schleifer still exists and enjoys vitality in our law despite the passage of many years. In so claiming, he also contends that in enacting or revising the solicitation statute, § 53a-179a, and the attempt statute, § 53a-49 (a) (1) of the Penal Code, our legislature intended to maintain the common-law distinction, as articulated in Schleifer, between solicitation to commit a crime and an attempt to commit a crime. The defendant goes on to claim, and we agree, that when the Penal Code was revised in 1971, not only had our Supreme Court held that “[a] mere solicitation by itself is never an attempt”; id., 438; although acknowledging that “attempts and solicitations have much in common”; American Law Institute, Model Penal Code and Commentaries (1985) part I, § 5.02, comment (3), p. 373; the legislature nevertheless still decided to enact a separate definition of criminal solicitation. That circumstance tends to support the defendant’s argument for the continued vitality of the distinction made in Schleifer. The defendant offers sound reasons for that assertion, which we now discuss seriatim.

Our statutory construction in this case begins with the presumption that the statute and the common law should, where possible, be read in harmony. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 573, 522 A.2d 763 (1987). Statutory construction is a question of law, and our review therefore is plenary. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). “A statute should not be construed as altering the common-law rule, farther than the words of the statute import, and should not be construed as making any innovation upon the common law which the statute does not fairly express.” Skorpios Properties, Ltd. v. Waage, 172 Conn. 152, 156, 374 A.2d 165 (1976); see Gore v. People’s Savings Bank, 235 Conn. 360, 382, 665 A.2d 1341 (1995); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 50.01. “We do not read statutes to depart from the common law without a clear indication of legislative intent to do so.” (Emphasis added.) Leydon v. Greenwich, 57 Conn. App. 712, 721, 750 A.2d 1122 (2000), rev’d in part on other grounds, 257 Conn. 318, 777 A.2d 552 (2001), citing Elliot v. Sears Roebuck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994). “In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope.” (Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., 249 Conn. 709, 715, 735 A.2d 306 (1999), quoting Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289-90, 627 A.2d 1288 (1993).

In determining whether a defendant’s conduct fits within the proscription of that statutory law under which he has been prosecuted, the legislative intent is critical. That intent must be clearly expressed, and a criminal statute, being penal, is to be construed strictly. State v. Smith, supra, 194 Conn. 221-22 n.7; State v. Zazzaro, 128 Conn. 160, 167, 20 A.2d 737 (1941). A purpose of the rule of strict construction is “to make sure that no act which the legislature did not intend to include will be held by the courts within the penalty of the law.” (Internal quotation marks omitted.) State v. Zazzaro, supra, 167; see Daggett v. State, 4 Conn. 60, 63 (1821). In construing the language of statutes that appears to be ambiguous, courts consider the statutes’ legislative history, their language, their purposes and the circumstances surrounding their enactment. Delinks v. McGowan, 148 Conn. 614, 618, 173 A.2d 488 (1961); R. A. Civitello Co. v. New Haven, 6 Conn. App. 212, 223, 504 A.2d 542 (1986).

As previously mentioned, the precursor to the present solicitation statute, § 53a-179a, was enacted in 1923 when the legislature, in the period between the trial judge’s decision in Schleifer quashing the information and the time our Supreme Court handed down its decision in Schleifer, responded to the trial court’s action by enacting a statute prohibiting the solicitation of injury to persons or property. One commentator referred to that response as “a drastic statute.” Note, supra, 33 Yale L.J. 99.

Throughout the almost eight decades since the enactment of the 1923 statute on solicitation, Connecticut has had a criminal statute prohibiting the solicitation of injury to persons or property. Years later, in the 1960s and culminating in the enactment of our Penal Code, Connecticut engaged in a sweeping examination and study by a commission appointed to revise and codify the criminal statutes of this state. See 31 Spec. Acts 348, No. 351 (1963), 32 Spec. Acts 323, No. 314 (1965); State v. Kluttz, 9 Conn. App. 686, 717, 521 A.2d 178 (1987) (Bieluch, J., concurring). The commentary of such a commission, interspersed as it is with references to various sections of our Penal Code, may well illuminate our inquiry especially as to evidence of legislative intent.

In its commentary on title 53a, which constitutes our Penal Code, the Commission to Revise the Criminal Statutes clearly states, at the outset, in relevant part: “The Commission Comments which appear herein under the various sections of the Penal Code which was enacted by the 1969 General Assembly, and amended by the 1971 General Assembly, are meant to indicate the rationale, background and source of the various portions of the Code, as an aid to interpretation thereof ” (Emphasis added.) Commission to Revise the Criminal Statutes, 28 Connecticut General Statutes Annotated (West 1994) § 53a-l, commentary on title 53a, the Penal Code, pp. 201-202. That same section of the commentary further notes the commission’s reliance on other sources: “The drafters of the new [penal] code relied heavily upon the Model Penal Code and the various state criminal codes, especially the penal code of New York.” State v. Hill, 201 Conn. 505, 516-17, 518 A.2d 388 (1986).

“Other provisions are based on comparable portions of the Model Penal Code. . . . The comments do not cover every single section; rather, they are an attempt to focus on those sections which, in the opinion of the Commission, require comment.” Commission to Revise the Criminal Statutes, supra, § 53a-l, commentary on title 53a, the Penal Code, p. 202. Interestingly, in that connection, there is no commission commentary on § 53a-179a, the solicitation statute, but there is comment on § 53a-49, the attempt statute, which indicates that § 53a-49 incorporates two new concepts, “the formulation of which is used to distinguish acts of preparation from acts of perpetration and is contrasted with criteria specified in State v. Mazzadra, 109 A.2d 873, 141 Conn. 731 (1954).”

Section 53a-49 requires more than a mere start of a line of conduct to constitute an attempt. It requires that the line of conduct already taken be unambiguous in supporting a criminal purpose. Commission to Revise the Criminal Statutes, supra, § 53a-49, comment — 1971, p. 378. That is an intentional distinguishing from the Schleifer formulation that “ [a] mere solicitation by itself is never an attempt”; State v. Schleifer, supra, 99 Conn. 438; in that there must also be an act of endeavor adapted and intended to effectuate the criminal purpose. Id. Under the new formulation introduced in § 53a-49, the intent and the overt act, which are verified elements of attempt under the statute, must be closely connected with one another. It is submitted that this distinction between preparation and perpetration inherent in § 53a-49 is a factor that bolsters the distinction that Schleifer made between a mere solicitation and an attempt, where the latter requires (as a mere solicitation does not) some “act of endeavor adapted and intended to effectuate the purpose [of the solicitation].” (Internal quotation marks omitted.) Id., 438. Moreover, those new concepts, incorporated into § 53a-49 by the revisors of the Penal Code, contribute to the vitality of Schleifer’s distinction.

Our attempt statute, § 53a-49, was based, in part, on the Model Penal Code commission comments. See State v. Servello, 59 Conn. App. 362, 372, 757 A.2d 36, cert, denied, 254 Conn. 940, 761 A.2d 764 (2000). The commentary on the Model Penal Code, however, discloses that the issue of whether the solicitation to commit a crime constitutes an attempt has been answered in several ways. The general definition of “criminal solicitation” is: “A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or would establish his complicity in its commission or attempted commission.” Model Penal Code and Commentaries, supra, § 5.02 (1), p. 364. The commentary to § 5.02 includes the following: “While attempts and solicitations have much in common and are closely related in their historical development, this section provides for separate definition of criminal solicitation on the ground that each of the two inchoate offenses [attempt and solicitation] presents problems not pertinent to the other.” Id., § 5.02, comment (3), pp. 372-73.

In our view, a fair reading of the commentary is that the Model Penal Code counseled against classifying solicitations as attempts. Id., pp. 364-73. That is further borne out by the fact that the legislature, aware of the solicitation statute when it reconsidered our Penal Code, decided to follow the spirit of a solicitation statute such as § 5.02 of the Model Penal Code and retained the essence of the preexisting statute. As the defendant points out, the legislature followed that course, knowing, we can assume, that our common law, as seen in Schleifer, maintains that a solicitation is not an attempt and that the Model Penal Code upheld that distinction. The legislature is presumed to be aware and to have knowledge of all existing statutes, including solicitation, and the effect that its action or inaction may have on them. See Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 386, 698 A.2d 859 (1997). Such considerations contribute to the conclusion that the legislature had determined by strong intimation that Schleifer’s judicial distinction was not to be changed in any fashion by legislative action.

In further support of his position, the defendant also claims that the inclusion by our legislature of the language, “soliciting an innocent agent to engage in conduct constituting an element of the crime”; § 53a-49 (b) (7); as one of the elements that might be sufficient to prove the “act” element of the criminal attempt statute, is another factor that supports his claim that the legislature did not intend to abandon the common-law distinction made in Schleifer between solicitation and attempt. We agree with that proposition.

In enacting the attempt statute, § 53a-49, during the revision of our Penal Code in 1969 and 1971, the legislature in subsection (b) of § 53a-49 elaborated on what is meant by the concept of “substantial step” as contained in subsection (a) (2) of § 53a-49. See Model Penal Code and Commentaries, supra, § 5.01, explanatory note, p. 297. The legislature in § 53a-49 (b) set out a list of behaviors that, without negating the sufficiency of other conduct, “should not be held insufficient as a matter of law if they are strongly corroborative of the actor’s criminal purpose.” Id., comment (6), p. 329. The last of those listed situations is set out in § 53-49 (b) (7), which is “soliciting an innocent agent to engage in conduct constituting an element of the crime.”

The example given in the Model Penal Code and Commentaries of why the language, “soliciting an innocent agent,” was included as one of the seven examples of conduct or a situation that might be sufficient to satisfy the requisite conduct for attempt is an example attributed to Professor Glanville Williams. That example, as given, is: “(vii) Solicitation of Innocent Agent. Professor Glanville Williams suggests the situation where ‘D unlawfully tells E to set fire to a haystack, and gives him a match to do it with. ... If, as D knows, E (mistakenly) believes that it is D’s stack and that the act is lawful, E is an innocent agent, and D is guilty of attempted arson; D, in instructing E, does the last thing that he intends in order to effect his criminal purpose. (It would be the same if he only used words and did not give E a match.)’ ” Model Penal Code and Commentaries, supra, § 5.01, comment (6) (b) (vii), p. 346 & n.214, quoting G. Williams, Criminal Law: The General Part (2d Ed. 1961) p. 616.

As the defendant points out, the commentary on Professor Williams’ example explains that “[t]he prohibition against criminal solicitation does not apply in this case because E is himself not being incited to commit a crime. For this reason E is not in a position, as an independent moral agent, to resist D’s inducements; unlike the situation in criminal solicitation, E is wholly unaware that commission of a crime is involved. Analytically, therefore, D’s conduct, in soliciting an innocent agent, is conduct constituting an element of the crime, which is properly subsumed under the attempt section; and the solicitation, irrespective of whether it happens to be the last act, should be the basis for finding a substantial step toward the commission of a crime.” (Emphasis added). Model Penal Code and Commentaries, supra, § 5.01, comment (6) (b) (vii), pp. 346-47. So E, being an “innocent agent,” wholly unaware that a crime is involved, is not in the position to resist or reject D’s requests; whereas a noninnocent agent, in that situation, knowing this criminal activity is afoot is free to accept or reject D’s requests. The “innocent agent” can fairly be said to include one who is clear of responsibility because for example, he lacks mens rea; E would fall into that category. Therefore, D’s conduct, in soliciting E, an innocent agent, is conduct constituting an element of the crime, which comes within § 53a-49 (b) (7) of the attempt section and the solicitations, “irrespective of whether it happens to be the last act, should be the basis for finding a substantial step toward the commission of a crime.” Id.

The defendant contends that the inclusion of the “innocent” agent formulation in § 53a-49 (b) (7) is a factor that reinforces the common-law distinction between solicitation and attempt. We agree. In detailing a circumstance when a solicitation may rise to the level of an attempt, the legislature created an exception to the general rule that a mere solicitation does not constitute an attempt. Moreover, by specifically including one specific solicitation situation in the attempt statute, it is logical to conclude that the legislature implicitly determined that other forms of solicitation, in and of themselves, do not constitute an attempt to commit a crime.

Another fair implication that our legislature intended to maintain the distinction between attempt and solicitation pursuant to Schleifer arises when considering the comments regarding the “innocent agent” that accompanied the tentative draft of the Model Penal Code of 1960, which happened to be the one closest in time available to revisers of a state’s penal codes in the 1960s and 1970s, and the comments to the Penal Code in 1985. Both were to the effect that when a person solicits an “innocent actor” to engage in conduct that constitutes “an element of the crime,” that is “unlike the situation in criminal solicitation”; id., p. 347; but is more like a situation or conduct falling under closer potential attempt liability. That is so, as the defendant claims, and we agree, because the legislature by including the solicitation of an “innocent agent” in the attempt statute, § 53a-49, recognized and intended that soliciting a noninnocent agent would not qualify as an attempt but rather would fall within the offense of solicitation, especially because, in soliciting an “innocent” agent, the actor goes further into criminality than had he solicited a noninnocent agent.

In addition, the defendant also claims that if our legislature intended to eliminate the common-law distinction between attempt and solicitation, it would have done so under other scenarios. We agree. For example, it could have expressly expanded the attempt statute to include “soliciting an agent, whether innocent or not,” as the legislature in Missouri did. State v. Molasky, 765 S.W.2d 597, 600-601 (Mo. 1989). Missouri’s expansion of the definition, according to the commentary to the Missouri attempt statute, was designed to cover all cases of criminal solicitation because solicitation had not previously been enumerated in the revised Missouri Criminal Code as a specific offense. Id., 601.

On the other hand, our legislature could have repealed the original statute regarding solicitation, which it did not, and not have enacted § 53a-179a, which it did. To have taken the latter course would have left this jurisdiction without any criminal solicitation statute, thus rendering the common-law distinction between solicitation and attempt of no legal effect. Our legislature, however, did neither, thereby indicating that it did not intend to abandon the Schleifer common-law distinction between solicitation and attempt. Those considerations further support the defendant’s claims of the continuing legal validity of the distinction made in Schleifer between solicitation and attempt.

Furthermore, we note that State v. Servello, supra, 59 Conn. App. 362, supports the defendant’s claim of the ongoing vitality of Schleifer. In Servello, which involved arson for hire, the defendant had been found guilty after a jury trial of the crime of attempt to commit arson in the second degree in violation of §§ 53a-49 (a) (1) and 53a-112 (a) (2). Id., 364. On appeal, the defendant claimed that the evidence was insufficient to support his conviction because his actions amounted a mere solicitation and, thus, pursuant to Schleifer, could not constitute a substantial step toward the commission of the crime of attempt to commit arson. Id., 368-75.

In rejecting the defendant’s claim, this court in Servello analyzed the legislative history of § 53a-112 and concluded that it “was adopted to confront the problem of fires set to defraud insurance companies or those hiring persons to set such fires . . . [and] made it a crime to hire another person to set a fire.” (Citation omitted.) Id., 373. This court further stated that “[i]t is . . . presumed that [w]hen the Legislature acts in a particular area, it does so with knowledge of and regard to the prior state of the law, including relevant decisions .... It is presumed to know the existing state of the case law in those areas in which it is legislating . . . to be cognizant of judicial decisions relevant to the subject matter of a statute . . . and to know the state of existing relevant law when it enacts a statute. . . . It is thus unlikely that the proscription of arson for ‘hire’ under the amendment to § 53a-112 [in Public Acts 1982, No. 82-290] effected no corresponding change to the standard for attempted arson as stated in Schleifer.” (Citation omitted; internal quotation marks omitted.) State v. Servello, supra, 59 Conn. App. 374.

This court in Servello thus recognized that the legislature, in amending § 53a-112, was presumed to be cognizant of Schleifer and its holding. That is borne out by the fact that Servello determined “that Schleifer has been legislatively overruled by P.A. 82-290 to the extent that it held that solicitation of another to set a fire was insufficient to establish the crime of attempt to commit arson . . . .” Id., 374 n.5. The import of Servello to the present matter is that it affirms that our legislature and courts still maintain the vitality of Schleifer. Further, it can be gleaned from Servello that because our legislature decided to eliminate the application of Schleifer in the context of arson, this demonstrates that it intended to preserve Schleifer and the distinction between solicitation and attempt in other areas.

It follows from what we have set out, that the judgment of conviction of attempt to commit murder in violation of § 53a-49 (a) (2) and § 53a-54a (a), must, as a matter of law, be reversed because the defendant’s conduct did not constitute the crime for which he was charged and tried. When the trier of fact returns a verdict of guilty under such a scenario, that conviction is unconstitutional under both federal and state law, as such a verdict violates due process. See, e.g., Jackson v. Virginia, supra, 443 U.S. 307. “The right to be acquitted unless proven guilty beyond a reasonable doubt of each element of the charged offense is a fundamental constitutional right protected by the due process clauses of the federal and Connecticut constitutions.” State v. Smith, supra, 194 Conn. 217.

In determining that the conviction is not supported by the evidence, we conclude that the defendant has demonstrated that the common-law distinction that our Supreme Court in Schleifer made between solicitation and attempt is as legally viable as it was when Schleifer was decided and when the precursor to our solicitation statute, § 53a-179, was enacted into law in 1923. That distinction, which accords with the weight of authority, has persisted for almost eighty years. The state has not persuaded us otherwise. •

The state contends that the defendant’s conviction of attempt to commit murder should be upheld because his conduct constituted a substantial step toward the commission of the crime. We do not agree.

There are two essential elements that the state must prove beyond a reasonable doubt to sustain a conviction of the crime of attempt to commit murder. First, the state must prove beyond a reasonable doubt that the defendant had the kind of mental state required for commission of the crime of murder. Second, the state must prove beyond a reasonable doubt that the defendant “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. . . . [T]he attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption ... or for other extrinsic cause.” (Internal quotation marks omitted.) State v. Jacques, 53 Conn. App. 507, 522, 733 A.2d 242 (1999); see also R. Leuba & R. Fracasse, Connecticut Selected Jury Instructions Manual (1998) § 3.1 (a), p. 135.

The conduct of the defendant consisted of a mere solicitation or a mere preparation — that is not enough to constitute an attempt. As the court in Schleifer held, “A mere solicitation by itself is never an attempt. And the inciting or urging, whether it be by a letter or word of mouth, is a mere solicitation . . . .” State v. Schleifer, supra, 99 Conn. 438. Again, as the court in Schleifer stated: “An attempt necessarily includes the intent, and also an act of endeavor adapted and intended to effectuate the purpose. . . . The act of endeavor must be some act done in part execution of a design to commit the crime.” (Citation omitted; internal quotation marks omitted.) Id. Here, there was no such act of endeavor, only a mere solicitation. In a word, the defendant’s conduct did not include any direct act in execu: tion or perpetration of his alleged criminal design. Rather, the defendant’s alleged action constituted a mere alleged preparation to place the intended assailant, Wayne, in the position to commence the first direct step toward carrying out the defendant’s alleged criminal design. On the basis of our analysis, we conclude that the evidence is insufficient to support the defendant’s conviction of attempt to commit murder in violation of §§ 53a-49 (a) (2) and 53a-54a (a).

The judgment is reversed and the case is remanded with direction to render judgment of not guilty of attempt to commit murder.

In this opinion the other judges concurred.

       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-54a (a) provides: “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 or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The defendant also raises claims regarding the propriety of the trial court’s instructions to the jury. Because we conclude, however, that the issue of the insufficiency of the evidence is dispositive, we do not address the other issues raised by the defendant in this appeal.

       Besides Caesar O’Neil, the department of correction also listed “Mark Smith, a Vassel O’Neil and a Vassel Yellow” as other names by which the defendant was known.

       Rose Evans was described by the defendant as his mother, who lived at 142 Lorraine Street, Bridgeport, and as the person who he had designated for emergency contact.

       According to Birch, once decoded “letter for letter” and uncorrected for any errors made by its author, the letter reads as follows: “Yo Wayne, I’m going to get straight to the point. I need you to take care of Pooch and I mean immediately. He is the only and the key witness in one of my cases. Without him the case would be dismissed. Make sure you’ll gloved up, masked up and get rid of the john piece for piece. And make sure y’all alibi states that y’all were in New York at that point in time. And you’ll make sure somebody in New York is saying y’all was there with them. And make sure y’all get the time schedule worked out between everybody and how y’all got to New York. Better to and reads quay by car. You’ll make cure you’ll have a driver and the color of the car, and everybody has to be saying the same thing, especially you, the driver and the people in New York. Don’t forget to work out the time. That is a very important part of you guys alibi. Once that all take care of, everybody will be all right. . . .”

       Thereafter, the defendant was retried on a charge of having participated in the murder of Suter. The jury in that retrial found him guilty of that charge on June 11, 1999. On June 18, 1999, the defendant was sentenced to fifty years imprisonment to be served consecutively to his sentence for attempt to commit murder.

       Prior to beginning our discussion and analysis of what we determine is the dispositive issue in this appeal, we must comment briefly on a circumstance that makes our review somewhat difficult. The defendant’s principal brief is thirty-five pages long, and about one-third of it is concerned with his Schleifer claim. In his principal brief, the defendant develops and analyzes at great length why Schleifer, which he asserts is still good law, requires that the judgment of conviction be reversed. The state, on the other hand, does not make any mention of Schleifer in its brief, nor does it refer to the defendant’s claim and analysis of it. The state does not even include Schleifer in its “Table of Authorities” at the opening of its brief. In his reply brief, the defendant, citing J. Purver & L. Taylor, Handling Criminal Appeals (1980) § 91, p. 144, states that “[t]he admission implied in ignoring it [Schleifer] is that the state found no way to minimize the impact of this authority for the defendant-appellant’s claim.”
      Despite the gap in the state’s briefing, we do not accept the defendant’s suggestion. Rather, in reviewing this appeal, we subscribe to the view that “[t]he process of deciding cases on appeal involves the joint efforts of counsel and the court. It is only when each branch of the profession performs its function properly that justice can be administered to the satisfaction of both the litigants and society and a body of decisions developed that will be a credit to the bar, the courts and the state . . . .” (Citations omitted; internal quotation marks omitted.) Merl v. Merl, 128 App. Div. 2d 685, 686, 513 N.Y.S.2d 184 (1987).

       General Statutes § 53a-179a (a) provides in relevant part: “A person is guilty of inciting injury to persons or property when, in public or private, orally, in writing, in printing or in any other manner, he advocates, encourages, justifies, praises, incites or solicits . . . the killing or injuring of any class or body of persons, or of any individual.” (Emphasis added.)

       The defendant’s oral address to the workers was as follows: “You will never win the strike with soft methods. You young men ought to go out on the bridge. Don’t use eggs, use coal or indelible ink. Break foremen’s windows at their homes. Watch the scabs when they come from work, lay for them, especially on pay day. Take them in a dark alley and hit them with a lead pipe. That is the softest thing you can use. Reimburse yourselves for what we have sacrificed for five months. Don’t forget to bump off a few now and then, so Mr. Pearson will know that you are not getting cold feet. You car men know how to take a brake-shoe off. Take the brake-shoe and put it under something that will put the cars off the irons. A little sand or emery in the journal boxes will help greatly. Don’t be satisfied with trimming the engines. Put some of the cars on the bum. Also if convenient, put something in between the frames and rods of engines on sidings. Get busy young fellows, and trim these scabs. Things are running too smooth on the New Haven road, but let me hear from you while I am here. Go ahead and rip things and don’t let the injunction stop you from trimming these scabs. Don’t forget to tie them up with derailments. You boys ought to cut them all up.” (Internal quotation marks omitted.) State v. Schleifer, supra, 99 Conn. 434.

       The trial court, also held that the information was defective in that the inducement or invitation must be alleged to have been “directed to one individual, soliciting the accomplishment of some particular act, which if complied with, would result in the commission of some specific offense.” State, v. Schleifer, supra, 99 Conn. 435. The Supreme Court disagreed, stating that it was not necessary that the information make such an allegation, explaining that “[t]he solicitation was directed to each one present in the assemblage.” Id., 440. In Schleifer, the state appealed from the judgment that was rendered after the quashing of the information by the court.

       The 1923 statute regarding solicitation, chapter 178, provides in relevant part: “Any person who shall, in public or private, orally, in writing, in printing or in any other manner, advocate, encourage, justify, praise, incite or solicit the unlawful burning, injury to or destruction of any public or private property or advocate, encourage, justify, praise, incite or solicit . . . the killing or injury of any class or body of persons, or of any individual, shall be fined not more than five thousand dollars or imprisoned not more than ten years or both.”

       In this case, of course, we have no bribe or any other inducement.

       See footnote 9.

       This state since 1923 has had a statute prohibiting the solicitation of injury to persons or property. See Public Acts 1923, c. 178, General Statutes (1930 Rev.) § 6072; General Statutes (1949 Rev.) § 8382; General Statutes (1958 Rev.) § 53-44; Public Acts 1969, No. 452, § 9; Public Acts 1971, No. 871, § 52; General Statutes § 53a-179a.

       It is fair to assume that the legislature, in enacting the 1923 statute, was responding to the trial judge’s view in Schleifer that the matter be met by legislative action. That is particularly so when one examines the following portion of the trial judge’s memorandum of decision on the motion to quash: “While it cannot be seriously denied that the public utterances in a promiscuous assembly of such entreaties and exhortations as are charged in this information, are highly prejudicial to the public peace, and ought to be seriously penalized, it is a situation that should be met by appropriate legislation. I do not feel warranted in view of all the authorities in undertaking to extend the present limitations of the common-law crime of solicitation so as to include the acts of the accused now under consideration. ” (Emphasis added.) State v. Schleifer, supra, 99 Conn. 435.

       The present statute, § 53a-179a(a),is substantially similarto the original statute from 1923 regarding solicitation. Minor changes subsequently were made to that statute, but they are insignificant to our inquiry.

       Our Penal Code became effective on October 1, 1971. Public Acts 1969, No. 828, § 1.

       It is well established that the report and commentary of a commission on a revision of statutory law provides evidence of legislative intent. State v. Ryan, 48 Conn. App. 148, 156, 709 A.2d 21, cert denied, 244 Conn. 930, 711 A.2d 729, cert, denied, 525 U.S. 876, 119 S. Ct. 179, 142 L. Ed. 2d 146 (1998).

       As to General Statutes § 53a-49, our attempt statute, the commission comment states in relevant part: “The section introduces two new concepts'. (1) the act must be a substantial step in a course of conduct planned to accomplish the criminal result, and (2) the act must be strongly corroborative of criminal purpose in order for it to constitute such a substantive step. This formulation is itsed to distinguish acts of preparation from acts of perpetration and is contrasted with criteria specified in State v. Mazzadra, 109 A.2d 873, 141 Conn. 731 (1954), that ‘the acts done must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted.’ This section requires more than a mere start of a line of conduct leading to the attempt. It also requires that the line of conduct already taken be unambiguous in supporting a criminal purpose.” (Emphasis added.) Commission to Revise the Criminal Statutes, supra, § 53a-49, comment — 1971, p. 378.

       The commentary states: “Whether the solicitation to commit a crime constitutes an attempt by the solicitor is a question that has been answered in several ways. One approach to the problem treats every solicitation as a specific type of attempt to be governed by ordinary attempt principles, the solicitation being an overt act that alone or together with other overt acts may surpass preparation and result in liability. A second position is that a naked solicitation is not an attempt, but a solicitation accompanied by other overt acts, for example, the offer of a reward or the furnishing of materials, does constitute an attempt. The third view is similar to the second except that in order to find the solicitor guilty of an attempt the other overt acts must proceed beyond what would be called preparation if the solicitor planned to commit the crime himself. Finally, there is the view that no matter what acts the solicitor commits, he cannot be guilty of an attempt because it is not his purpose to commit the offense personally. Although there has been considerable conflict, even among the decisions of the same jurisdiction, the trend has seemed to be toward the last two solutions; together they represented the prevailing view when the Code was considered. The decisions in England and the former dominions are in a similar state of confusion, but there too the trend has seemed to be against classifying solicitations as attempts and toward treating them as distinct offenses.” Model Penal Code and Commentaries, supra, § 5.02, comment (2), pp. 368-70.

       General Statutes § 54a-49 (b), which was enacted as part of the revision of the Penal Code, provides in relevant part: “Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law ... (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.”

       The language of General Statutes § 53a-49 (b) (7) derives verbatim from the Model Penal Code § 5.01 (2) (b).

       We note that in its brief, the state concedes that Wayne could be inferred to be a “willing agent.” The state, interestingly, does not claim that Wayne met any of the “innocent agent” criteria.


author: MIHALAKOS, J.

text:
    LAWRENCE R. SMITH v. COMMISSIONER OF CORRECTION
    (AC 20699)
    Spear, Mihalakos and Dranginis, Js.

      Argued May 8
    officially released August 21, 2001

      Vicki H. Hutchinson, for the appellant (petitioner).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Angela R. Macchiarulo, assistant state’s attorney, for the appellee (respondent).
   Opinion

MIHALAKOS, J.

The following facts and procedural history are relevant to our disposition of the petitioner’s claim. While incarcerated for a previous conviction, the petitioner attacked and injured a correction officer. The petitioner was charged with assault in the second degree in violation of General Statutes § 53a-60 and entered a guilty plea in exchange for a sentence of four years imprisonment. The four year sentence was served concurrently to the term of imprisonment he currently is serving.

On October 30, 1995, the petitioner filed a petition for a writ of habeas corpus, alleging that his guilty plea to the assault charge was not made knowingly, intelligently or voluntarily. The petitioner’s four year sentence for the assault conviction expired on June 1, 1998. On August 20, 1999, the respondent moved to dismiss the petition, arguing that it was moot because the petitioner’s sentence resulting from his guilty plea had expired. The petitioner objected, arguing that he had suffered collateral consequences as a result of his guilty plea. Specifically, the petitioner claimed that the assault conviction was relied on by the United States District Court for the District of Connecticut as the basis for its dismissal of his civil rights claim under 42 U.S.C. § 1983 and as a basis for imposing on him the maximum sentence for a subsequent conviction for possession of narcotics in a correctional institution. The court, L. Sullivan, J., denied the August 20, 1999 motion and, complying with a previous order to consolidate the petitioner’s six habeas actions, transferred the action to the Superior Court for the judicial district of Danbury.

On January 25, 2000, the respondent filed with the court in Danbury a new motion to dismiss the underlying petition for the writ of habeas corpus as moot on the same ground that was raised in the August 20,1999 motion. The petitioner objected, arguing that the doctrine of res judicata barred the second motion to dismiss. On March 3, 2000, the court, Carroll, J., granted the second motion to dismiss, stating: “This petition is moot in light of the fact that the sentence to which this petition applies has expired and the petitioner is not being held on said sentence. This is a jurisdictional issue and can be raised and considered by the court at any time. The matter is ordered dismissed.” The court thereafter granted the petitioner’s petition for certification to appeal, and the petitioner filed this appeal.

In his brief to this court, the petitioner originally argued that the habeas court’s dismissal of his petition was barred by the doctrine of res judicata. On March 22, 2001, we ordered the parties to file supplemental briefs on the following issue: “Why the habeas court’s judgment should not be reversed pursuant to Barlow v. Lopes, 201 Conn. 103, 105 n.2 [513 A.2d 132] (1986), which holds that a petition for habeas corpus is not rendered moot by the release of the petitioner from custody where the petition attacking the legality of the conviction was filed while the petitioner was still in custody. See also Herbert v. Manson, 199 Conn. 143, 143-44 n.1 [506 A.2d 98] (1986).” Because we find that issue to be dispositive, we do not address the ramifications that the doctrine of res judicata may have on the present case.

Before addressing the merits of the petitioner’s claims, we must first elucidate the proper standard of review in the present case. “The conclusions reached by the trial court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Citations omitted; internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001).

It is clear that a petition for a writ of habeas corpus, if filed while the petitioner is in custody, is not rendered moot by the expiration of the petitioner’s sentence. See Barlow v. Lopes, supra, 201 Conn. 105 n.2; Herbert v. Manson, supra, 199 Conn. 143-44 n.1. The expiration of a petitioner’s sentence prior to a dispositive decision by the habeas court does not render his claims moot. Haynes v. Bronson, 13 Conn. App. 708, 710-11, 539 A.2d 592 (1988). In attacking the legality of his conviction in a habeas coipus action, the petitioner’s claim survives his release from incarceration. Id.; see also Barlow v. Lopes, supra, 105 n.2; Herbert v. Manson, supra, 143-44 n.1.

Because the habeas court dismissed the petition as moot solely because the petitioner’s sentence had expired, we conclude that the court improperly granted the respondent’s second motion to dismiss.

The judgment is reversed and the case is remanded with direction to reinstate the petition for a writ of habeas coipus and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       On October 3,1989, the petitioner was convicted of the crimes of kidnapping in the first degree, robbery in the third degree, larceny in the second degree and assault in the third degree. See State v. Smith, 219 Conn. 160, 592 A.2d 382 (1991). At the time of the events that gave rise to the present habeas action, the petitioner was serving a fifty-one year sentence.