text:
    Bruce Williams, Jr. v. George D. Bronson, Warden, State Prison Arthur Hyde v. George D. Bronson, Warden, State Prison Dominic Vincenzo v. George D. Bronson, Warden, State Prison
    (8995)
    Norcott, Foti and Lavery, Js.

      Argued January 16
    decision released May 14, 1991

      David L. Kent, for the appellants (petitioners).

      Richard T. Biggar, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Foti, J.

This is an appeal from the denial of the petitioners’ applications for writs of habeas corpus. The petitioners claimed violations of their statutory and constitutional rights to have a variety of statutory credits applied to the maximum portion of their indeterminate life sentences. The habeas court concluded that there were no violations of the petitioners’ rights and, therefore, dismissed the applications.

The petitioners claim that the habeas court improperly failed (1) to order the respondent to apply jail time and good time credits to the maximum term of the petitioners’ sentences, (2) to find a violation of the petitioners’ constitutional right to equal protection under the law, (3) to find a violation of the petitioners’ right to procedural due process, and (4) to find a violation of the petitioners’ fundamental right to liberty under the sentence reduction act. We disagree with each of these claims and affirm the judgment of the habeas court.

Examination of the record discloses that the petitioners are in the custody of the respondent at the Connecticut Correctional Institution at Somers. Each of the petitioners was sentenced prior to July 1,1981, pursuant to General Statutes § 53a-35 (b) (1); petitioners Bruce Williams and Dominic Vincenzo received an indeterminate term of twenty years to life, and petitioner Arthur Hyde received a term of twenty-five years to life. Vincenzo, sentenced on August 13,1974, is currently serving his maximum term of imprisonment. Each of the petitioners has been given good time credits under General Statutes §§ 18-7 and 18-7a on the minimum portion of his sentence but none on the maximum portion, life imprisonment. Each has been credited with presentence credit and presentence good time pursuant to General Statutes §§ 18-98 and 18-98c on the minimum but not on the maximum portion of his sentence. Each has received or is eligible to receive employment credit pursuant to General Statutes § 18-98a and the outstandingly meritorious performance award pursuant to General Statutes § 18-98b only as to the minimum term of imprisonment.

I

The petitioners first argue that the law mandates that jail time and good time credits be applied to the maximum term of their sentences and that the habeas court’s failure to order such an application was improper.

The petitioners were sentenced for crimes committed prior to July 1, 1981, pursuant to General Statutes § 53a-35 et seq., which provides in part: “imprisonment FOR ANY FELONY COMMITTED PRIOR TO JULY 1, 1981: INDETERMINATE SENTENCES; MAXIMUM AND minimum terms, (a) For any felony committed prior to July 1,1981, the sentence of imprisonment shall be an indeterminate sentence, except as provided in subsection (d). When such a sentence is imposed the court shall impose a maximum term in accordance with the provisions of subsection (b) and the minimum term shall be as provided in subsection (c) or (d).

“(b) The maximum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows: (1) For a class A felony, life imprisonment; (2) for a class B felony, a term not to exceed twenty years; (3) for a class C felony, a term not to exceed ten years; (4) for a class D felony, a term not to exceed five years; (5) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime; and (6) for a capital felony, life imprisonment unless a sentence of death is imposed in accordance with section 53a-46a.

“(c) Except as provided in subsection (d) the minimum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows: (1) For a class A felony, the minimum term shall not be less than ten nor more than twenty-five years; (2) for a class B, C or D felony the court may fix a minimum term of not less than one year nor more than one-half of the maximum term imposed . . .

The indeterminate sentencing scheme used prior to July 1,1981, allowed the court to set both the minimum and maximum portion of the sentence; General Statutes §§ 53a-35 (c) and 53a-35 (b); parole eligibility is established at the minimum less any good time used to reduce that minimum term. General Statutes §§ 18-7, 53a-35 (c) and 54-125. The minimum and maximum portions of the sentence are a fixed number of years except for a class A felony where the maximum is life imprisonment, unless for a capital felony where a sentence of death may be imposed.

The definite sentencing scheme for crimes committed on or after July 1, 1981, allowed the court to impose a flat or exact term of years of imprisonment without a minimum or maximum; that term could be reduced by various statutory credits. Under the present definite sentencing scheme, life imprisonment is defined as sixty years. General Statutes § 53a-35b. All sentence credits apply to reduce the sixty years.

The petitioners claim that it is clear from the plain language of the applicable statutes that not only is it contemplated that the maximum portion of their respective sentences should be reduced, but it is mandated. They rely on Holmquist v. Manson, 168 Conn. 389, 362 A.2d 971 (1975), to argue that General Statutes §§ 18-97 and 18-98 expressly apply to any person absent any indication intended to exclude those sentenced to life. The petitioners also contend that §§ 18-7 and 18-7a expressly apply to “any person” and “any prisoner” respectively and do not exclude inmates serving life sentences, with § 18-7a specifically applying to both the minimum and the maximum term.

Although Holmquist dealt with the minimum term of the sentence for parole purposes under the provisions of General Statutes § 54-125, it did not involve the issue of the applicability of various statutory credits toward the maximum or life imprisonment portion of that sentence, nor was any such argument implied by its language.

Our Supreme Court has consistently held that if a statute is clear and unambiguous, there is no room for construction. Murray v. Lopes, 205 Conn. 27, 33, 529 A.2d 1302 (1987); State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985). For certain crimes committed prior to July 1, 1981, General Statutes § 53a-35 (b) is clear and unambiguous in requiring that the maximum term be life imprisonment, which, practically speaking, means natural life unless paroled.

Although we need not engage in statutory interpretation, we note that there is no conflict in the statutes to which the petitioners direct us. “This is so because ‘[i]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.’ ” Moscone v. Manson, 185 Conn. 124, 133-34, 440 A.2d 848 (1981). In addition, “[t]he provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage.” General Electric Credit Corporation v. James Talcott, Inc., 271 F. Sup. 699, 705 (S.D.N.Y. 1966), quoted in Moscone v. Manson, supra, 134.

Although it is true that the legislature in enacting a law is presumed to have intended to make it one consistent body of law; Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979); the mere failure of the legislature explicitly to exclude a group of individuals from receiving certain statutory credits that were designated to apply to another group does not compel the conclusion that the credits should be mandatorily applied to both groups.

II

The petitioners next challenge the trial court's holding that the failure to apply such credits to their maximum term of sentence does not violate their constitutional right to equal protection of the law. They claim a deprivation of equal protection with respect to both other prisoners sentenced to indeterminate terms with maximum terms other than life, and to those serving flat life sentences of sixty years for crimes committed after July 1, 1981.

Our Supreme Court has noted that “ ‘[t]he legislature, cognizant of the constitutional guarantees of equal protection, must be deemed to have sought to attain a rational and sensible result that avoids placing a statute in constitutional jeopardy.’. . .” (Citations omitted.) Murray v. Lopes, supra, 36. Where the statute does not involve fundamental rights, the standard to be used in assessing an equal protection claim is the traditional rational basis test. Plourde v. Liburdi, 207 Conn. 412, 419, 540 A.2d 1054 (1988). In such cases, the legislation will withstand constitutional attack if the distinction is founded on a rational basis. Frazier v. Manson, supra, 645.

There is an obvious distinction as to each class of prisoners that the petitioners claimed deprived them of equal protection. There is also an obvious rational basis for each distinction. As for prisoners sentenced for crimes committed prior to July 1,1981, who did not receive a maximum term of the life imprisonment as part of their sentences, the rational basis for the distinction consists of the difference in sentences and in the nature of the crimes committed by the petitioners and those of other inmates whose crimes have not been deemed by our legislature as serious as the petitioners’ crimes. The rational basis for the distinction between the petitioners and those serving a flat life sentence of sixty years imposed for crimes committed on or after July 1,1981, pursuant to Public Acts 1980, No. 80-442, is obvious. The petitioners retain parole eligibility whereas those sentenced for crimes committed after July 1,1981, do not have such a benefit. Just as those sentenced for crimes committed after July 1,1981, may not claim the legislative benefit of parole eligibility, the petitioners may not claim the benefit of either a sixty year definition of their life terms, or credits to the maximum portion of their indeterminate sentence. By enacting Public Acts 1980, No. 80-442, the legislature comprehensively revised this state’s sentencing structure by abolishing indeterminate and creating definite sentencing, a revamping that is a rational basis for the distinction that the petitioners attack. “Therefore it cannot be said that a person serving a term of imprisonment who is eligible for certain good time credits under a statute in effect at the time he was sentenced can effectively assert a ‘fundamental’ right to additional good time credits permitted under another statute which became effective after he was sentenced.” Id., 647.

Ill

The petitioners next claim that the court improperly held that the failure to apply their statutory credits to the maximum portion of their sentences did not violate their right to procedural due process. It is their claim that the state’s practice of not applying good time credits is the equivalent of removing earned good time credits, and therefore a violation of their fourteenth amendment right to due process, because a state created right may not be arbitrarily abrogated.

The petitioners’ argument is faulty and their reliance on Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), is misplaced. Wolff involved the removal of good time credits that had been earned. The petitioners would have us equate the failure to apply statutory credits with the removal of earned credits. As we have concluded earlier, the habeas court correctly held that there was no right to various credits that should be applied to the maximum terms of the petitioners’ life sentences. Because the petitioners are ineligible for those credits, their attempt to equate the failure to apply credits, with which they are not entitled, to the removal of properly earned credits must fail.

IV

The petitioners’ last claim is that the habeas court’s failure to apply the statutory credits to the maximum portion of their life sentences violates their fundamental right to liberty under the sentence reduction statutes. They claim, because it is impossible to apply the earned sentence reduction credits to their maximum sentences because there is no numerical value assigned to life imprisonment under General Statutes § 53a-35 (b) (1), that being sentenced under that statute impinges on their fundamental right to liberty under the sentence reduction statutes without any showing of a compelling state interest.

As previously discussed, the petitioners were sentenced under General Statutes § 53a-35 (b) (1), the statutory scheme in place on the date of the respective commission of their crimes. They were sentenced to a maximum of life imprisonment and may be released or discharged only through parole. Their claim of a violation of a fundamental right to liberty is without merit since they are not entitled to the benefits of the sentence reduction statutes to the maximum portion of their sentences under that statutory scheme.

The judgment is affirmed.

In this opinion the other judges concurred.

       The three habeas corpus petitions were consolidated and the habeas court filed a single memorandum of decision.

       General Statutes § 18-7 provides in pertinent part: “Any prisoner sentenced to a term of imprisonment prior to October 1,1976, may, by good conduct and obedience to the rules of said institution, earn a commutation or diminution of his sentence, as follows: Sixty days for each year, and pro rata for a part of a year, of a sentence which is not for more than five years; and ninety days for the sixth and each subsequent year, and pro rata for a part of a year, and, in addition thereto, five days for each month as a meritorious time service award which may be granted in the discretion of the warden and the commissioner for exemplary conduct and meritorious achievement; provided any serious act of misconduct or insubordination or persistent refusal to conform to institution regulations occurring at any time during his confinement in said prison shall subject the prisoner, at the discretion of the warden and the commissioner, to the loss of all or any portion of the time earned. ...”

       General Statutes 5 18-7a provides in pertinent part: “(a) Except as provided in subsections (b) and (c) any person sentenced to a term of imprisonment, on and after October 1, 1976, and while still serving such sentence whether such sentence is for a definite, indefinite or indeterminate term, and regardless of the institution wherein the prisoner is confined may, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a commutation or diminution of his sentence in the amount of ten days for each month, and pro rata for a part of a month, of a sentence which is for not more than five years, and fifteen days for each month, and pro rata for a part of a month, for the sixth and each subsequent year of a sentence of more than five years. In the case of an indeterminate sentence, such credit shall apply to both the minimum and maximum term. In the case of an indefinite sentence, such credit shall apply to the maximum term only. Any act of misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such credit by the commissioner or his designee.”

       General Statutes § 18-98 provides: “Any person who has been denied bail or who has been unable to obtain bail and who is subsequently imprisoned for an offense committed prior to July 1,1981, is entitled to commutation of his sentence by the number of days which he spent in a community correctional center from the time he was denied or was unable to obtain bail to the time he was so imprisoned. The commissioner of correction shall, if such person has conformed to the rules of the institution, credit such person with the number of days to which the supervising officer of the correctional center where such person was confined while awaiting trial certifies such person was confined between the denial of bail to him or his inability to obtain bail and his imprisonment.”

       General Statutes § 18-98e provides: “In addition to the time credits provided for in sections 18-97 and 18-98, any person who has been denied bail or who has been unable to obtain bail and who subsequently is fined or sentenced to a correctional institution or a community correctional center shall receive a good conduct credit towards any portion of such fine as is not remitted or any portion of such sentence as to which execution is not suspended, such credits to be at the rate-of ten days for each month of presentence confinement and such credits to be awarded only for prompt obedience to the rules of the correctional institution or community correctional center wherein the person is confined. The provisions of this section allowing credit at the rate of ten days for each month of presentence confinement shall apply to those periods of time spent in presentence confinement pursuant to sections 18-97 and 18-98, which occur after October 1, 1976, for an offense committed prior to July 1, 1981.”

       General Statutes § 18-98a provides: “Bach person committed to the custody of the commissioner of correction who is employed within the institution to which he was sentenced, or outside as provided by section 18-100, for a period of seven consecutive days, except for temporary interruption of such period as excused by the commissioner for valid reasons, may have one day deducted from his sentence for such period, in addition to any other earned time, at the discretion of the commissioner of correction.”

       General Statutes § 18-98b provides: “In addition to any commutation or diminution of sentence or any meritorious time service award which may have been granted under section 18-7 or 18-53 any inmate committed to the custody of the commissioner of correction for a definite term, or for a term with a minimum sentence imposed, may have not more than one hundred and twenty days deducted from any one continuous term of imprisonment as an outstandingly meritorious performance award in the discretion of the commissioner of correction for exceptional personal achievement, accomplishment and other outstandingly meritorious performance, provided any serious act of misconduct or insubordination or refusal to conform to institution regulations ocurring at any time during his confinement shall subject the prisoner, at the discretion of the warden and the commissioner, to the loss of all, or any portion, of any time awarded under this section. When any prisoner is held under more than one conviction the several terms of imprisonment imposed thereunder shall be construed as one continuous term for purposes of determining eligibility for any outstandingly meritorious performance award authorized by this section.”

       General Statutes § 18-97 provides: “Any person receiving a fine or a sentence to a correctional institution or a community correctional center for an offense committed prior to July 1,1981, shall receive credit towards any portion of such fine as is not remitted or any portion of such sentence as to which execution is not suspended for any days spent in custody under a mittimus as a result of any court proceeding for the offense or acts for which such fine or sentence is imposed, provided he shall conform to the rules of the institution. Upon notification from the commissioner of correction, the clerk of the court shall enter such credit upon the order in the case of a fine, and upon the mittimus in the case of a sentence and it shall be the duty of the agency or person that held such person under such mittimus to inform the clerk of the court of the proper amount of such credit. In the case of a fine each credit day shall be computed at the rate of ten dollars. In no event shall credit be allowed in excess of the fine or sentence actually imposed.”

       The petitioners claim a violation of their right to equal protection of the law as guaranteed by the fourteenth amendment to the constitution of the United States and article first, § 20, of the Connecticut constitution. The provisions of both have the same meaning and impose similar constitutional limitations, and therefore may be considered together. Plourde v. Liburdi, 207 Conn. 412, 418, 540 A.2d 1054 (1988).

       General Statutes § 53a-35a provides in pertinent part: “imprisonment FOR ANY FELONY COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; terms authorized. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-46a; (2) for the class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years . . . . ”

       General Statutes § 53a-35b provides in pertinent part: “A sentence of imprisonment for life shall mean a definite sentence of sixty years . . . ."


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Edward Gilchrist
    (8358)
    Dupont, C. J., Foti and Lavery, Js.
    Argued September 26, 1990
    decision released April 19, 1991

      Suzanne Zitser, assistant public defender, with whom, on the brief was G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney.
   Dupont, C. J.

The defendant appeals from the judgment of conviction of two counts of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (1), and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The crimes with which the defendant was charged involved four different victims.

The defendant contends that the convictions for attempted murder and assault in the second degree for one victim, and the convictions for attempted murder and assault in the first degree for another victim violate his right not to be put in double jeopardy under the constitution of the United States and his right to due process under the Connecticut constitution. He also claims that the jury was erroneously instructed on the components of self-defense, on the crime of attempted murder and on the definition of reasonable doubt.

I

The defendant’s claim of violation of his right against double jeopardy is a narrow one. He asserts that if a defendant engages in conduct, which is a single act that results in a completed offense against one victim, he may only be convicted and punished for the one offense of the completed act, although he may properly be charged with both the attempted crime and the completed crime. Here, the attempted murder convictions and the assault convictions both arise, in the case of each victim, from a single gunshot. The defendant does not claim that the state cannot charge a defendant in a single trial with multiple crimes arising out of a single act, or contend that there cannot be multiple convictions of attempted murder and assault for a single act if there is more than one victim.

The defendant’s double jeopardy claim was not properly preserved at trial, but the state concedes that we may consider it. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“The fifth amendment to the United States constitution declares that no person shall ‘be subject for the same offense to be twice put in jeopardy of life and limb . . . .’ This amendment is fully applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).” State v. Lonergan, 16 Conn. App. 358, 363, 548 A.2d 718 (1988), aff’d, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). Among the guarantees provided by the double jeopardy clause is protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); State v. Lonergan, supra, 213 Conn. 79. The defendant’s argument invokes this protection.

The first step in determining whether several offenses charged in a single prosecution are sufficiently different to permit multiple punishments without violating the double jeopardy clause is to apply the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id.

The Blockburger test has already been applied to charges of attempted murder and assault in the first degree. State v. Sharpe, 195 Conn. 651, 655-56, 491 A.2d 345 (1985). That case concluded that attempted murder and assault in the first degree are not the same offense for double jeopardy purposes. The Sharpe court reasoned that because conviction for attempted murder requires proof of intentional conduct constituting a substantial step toward intentionally causing the death of another person without proof of actual injury, whereas conviction for assault in the first degree requires proof that the defendant actually inflicted serious injury upon the victim without proof of an intent to cause death, the two offenses are not the same. This analysis of the elements of attempted murder and assault in the first degree may be extended to the defendant’s other convictions for attempted murder and assault in the second degree. Assault in the second degree and assault in the first degree require proof of actual injury, but no showing of an intent to cause death as is required by attempted murder. Each of the offenses of attempted murder and assault in the second degree, therefore, requires proof of a fact that the other does not.

The presumption that if a Blockburger analysis reveals that there are two crimes there may be separate punishments is not conclusive. State v. Blackwell, 20 Conn. App. 193, 197, 565 A.2d 549 (1989). The presumption is a rule of statutory construction that may be rebutted “by showing a clear legislative intent that the two statutes be treated as one for double jeopardy purposes.” Id.; State v. Greco, 216 Conn. 282, 293, 579 A.2d 84 (1990); State v. Fudge, 20 Conn. App. 665, 669, 569 A.2d 1145, cert. denied, 214 Conn. 807, 573 A.2d 321 (1990).

The defendant concedes that the offense of attempted murder and assault in the first degree relating to one victim, and the offense of attempted murder and assault in the second degree relating to another victim are separate offenses for purposes oí Blockburger, rather than offenses standing in a greater-lesser relationship. He, thus, concedes that the offenses arose out of the same transaction and that each offense requires proof of an element that the other does not.

The defendant, nevertheless, argues that this court should modify the traditional application of the Block-burger analysis used in single prosecution cases in order to prohibit two convictions where the defendant has engaged in one single course of conduct. The defendant would define a single course of conduct as one incapable of division. He thus makes a distinction between “the same act or transaction” and a single course of conduct, claiming that the former may include two distinct courses of conduct or acts in a chain of related acts whereas the latter can include only one act. The defendant further argues that we ought to extend the reasoning of State v. Lonergan, supra, which concerns successive prosecutions, to single prosecution cases. In proffering this argument, the defendant asks this court to distinguish State v. Sharpe, supra, from this case because he views the facts of Sharpe as involving acts in a chain of related acts. The Sharpe court held that, although five or six shots were fired at one victim, a Blockburger analysis was required. In determining to conduct a Blockburger analysis, the court, however, is by implication deciding that there was only one act or transaction in spite of the multiplicity of shots.

The defendant claims that because the acts that gave rise to the convictions were here incapable of division, the legislature could not have intended to authorize punishment for both an attempted offense and a completed offense arising from such acts.

When two separate statutory offenses are charged, one not being a lesser included offense of the other, and cumulative punishment is authorized by the legislature, cumulative punishments may be imposed at the conclusion of a single trial regardless of whether the acts of the defendant are divisible, as long as they are part of the same transaction. State v. Greco, supra.

In State v. Lonergan, supra, 16 Conn. App. 363, we held, and the Supreme Court agreed, that “in successive prosecution cases, two offenses under the Block-burger test might be considered the ‘same offense’ for double jeopardy purposes, despite dissimilar statutory elements, where the same evidence or conduct proves both offenses.” Lonergan’s holding, however, is deeply rooted in the policies protecting defendants against multiple trials, and we decline to extend it to a case involving a single prosecution, even if it were true that the defendant’s conduct as shown by the evidence might be viewed as a “single impulse,” as characterized by the defendant. In single prosecution cases, the proper double jeopardy inquiry is whether each offense requires proof of an element not required by the other, without resort to the evidence adduced at trial. Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975). “When the issue is purely one of multiple punishments, the right to be free from vexatious proceedings is simply not present.” State v. Lonergan, supra, 16 Conn. App. 377. The defendant has failed to persuade us that the legislature did not intend to impose two punishments for the two crimes involving both victims, and has failed to persuade us that this case is anything other than a garden-variety example of the application of Blockburger.

The defendant also claims that his dual convictions for attempted murder and assault in the first degree, and his dual convictions for attempted murder and assault in the second degree violate his right to due process. Although the defendant makes this claim under article first, § 8, of the Connecticut constitution he cites only one federal case, Whalen v. United States, 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980), in support of his argument that the legislature did not intend to punish an attempt and the completed offense when both are accomplished by a single course of conduct on a single victim. Whalen, however, supports the finding of a due process violation only when the statutory provisions involved in the case fail the Blockburger test. Id., 691-93. Having determined that the statutes involved in this case pass the Blockburger test, we cannot find that the defendant’s due process rights have been violated.

II

The defendant claims that the trial court incorrectly instructed the jury on two elements of self-defense, thereby violating his state and federal constitutional rights to due process guaranteed by the constitution of Connecticut, article first, § 8, and the fifth and fourteenth amendments to the United States constitution and to a fair trial guaranteed by the sixth amendment to the United States constitution. The trial court, the defendant argues, shifted the burden of proof to the defendant to prove that he was not the initial aggressor instead of requiring the state to prove, beyond a reasonable doubt, that the defendant was not justified in using deadly physical force to defend himself. The defendant next asserts that the trial court impermissibly replaced the subjective-objective standard contemplated by General Statutes § 53a-19 (b) with a simple objective standard by failing to instruct the jury that the defendant himself must know that he can retreat safely, thereby avoiding the use of deadly physical force. The defendant concedes that his claims relating to the jury instructions on self-defense were not preserved at trial, yet he seeks review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as refined by State v. Golding, supra.

The state contends that the defendant cannot prevail on his claims because they fail to satisfy all of the conditions of State v. Golding, supra, 239-40. We agree with the state.

A defendant charged with a crime has a right to present a defense incident to his right to due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). “ ‘This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. See General Statutes § 53a-12 (a).’ ” State v. Corchado, supra, 660-61, quoting State v. Miller, supra, 660-61.

The defendant’s objections to the jury instructions on self-defense are of constitutional magnitude alleging a violation of a fundamental right, and the record is adequate for review. We conclude, however, that the defendant cannot prevail because the fourth condition of State v. Golding, supra, cannot be met.

It is well established that the defense of self-defense, when asserted, requires the state to disprove such a defense beyond a reasonable doubt. General Statutes § 53a-12 (a); State v. Miller, supra, 663; State v. Holloway, 11 Conn. App. 665, 670, 528 A.2d 1176 (1987). The defendant claims that the following language of the court’s instructions shifted this burden and misled the jury to believe that the defendant bore the burden of proving that he was not the initial aggressor: “Now you have to determine the facts surrounding this case and whether or not justification can be made out based on these facts, the accused must be demonstrated to be either at his place of residence, I think, as well and place of work or he was not the initial aggressor. He must satisfy you.” The defendant claims that the words, “he must satisfy you,” shifted the burden of proving self-defense beyond a reasonable doubt to the defendant.

We must determine whether the alleged improper instruction when subjected to a harmless error analysis is harmless beyond a reasonable doubt. State v. Golding, supra.

Where an alleged improper instruction is of constitutional dimension, “the test is whether it is reasonably possible that the jury was misled.” State v. Quintana, 209 Conn. 34, 50, 547 A.2d 534 (1988). It is axiomatic that in reviewing a challenged portion of a jury charge, we must consider the charge as a whole and its effect in guiding the jury to a proper verdict. Id., 51; State v. Kelly, 23 Conn. App. 160, 164, 580 A.2d 520 (1990). We do not judge a contested individual section of an instruction in artificial isolation from the overall charge. State v. Quintana, supra; State v. Kelly, supra.

Here, before the trial court used the allegedly improper words, it accurately and adequately informed the jurors that the state bore the burden of proving every element of the offenses charged beyond a reasonable doubt. Immediately after the challenged words, the trial court made it clear that the state must disprove the existence of self-defense. The court instructed as follows: “I wish to instruct you that it is not incumbent upon the defendant to affirmatively prove that he acted in self-defense in this case. The state has the burden of proving beyond a reasonable doubt the essential elements of the crimes. Since self-defense is inconsistent with guilt of these crimes where he interposes it, if any evidence has come into the case, whether by the state or the defendant, on which a reasonable doubt as to self-defense could be . . . predicated, the state has the burden of negating self-defense as incident to its overall burden of proof beyond a reasonable doubt. ” (Emphasis added.)

Although the challenged words perhaps suggested that the defendant bore the burden of demonstrating that he was not the initial aggressor, the court’s instructions subsequent to the alleged misstatement eliminated any ambiguity as to which party bore the burden of proof with respect to self-defense. The charge, when taken as a whole, did not shift the burden of proof. It is, thus, not reasonably possible that the jury was misled in this regard. State v. Quintana, supra.

We conclude, therefore, that the defendant cannot prevail on this claim because he has failed to demonstrate that the alleged constitutional violation misled the jury by shifting the burden of proof relating to self-defense from the state to the defendant.

We turn to the defendant’s second claim relating to the jury instructions on self-defense. Pursuant to General Statutes § 53a-19, setting forth the defense of self-defense and defining the circumstances that justify the use of physical force, “a person may be justified in using physical force in his own defense if that person reasonably believes that physical force is being used or will imminently be used against him. That justification is unavailing, however, if the person ‘knows that he can avoid the necessity of using such force with complete safety (1) by retreating . . . .’ (Emphasis added.) General Statutes § 53a-19 (b).” State v. Quintana, supra, 45-46. The statute requires both that a retreat in complete safety be available under the circumstances and that the defendant has actual knowledge of it. Id.

The trial court’s instruction on the defendant’s duty to retreat stated that “the defendant would not have been justified in standing his ground against the threatened attack to fend it off if he could, with complete safety, avoid the confrontation by retreating. However, in considering whether the defendant could have retreated in safety, the element of practicality must be considered.”

If we assume that this language failed to convey to the jury that the defendant must have had actual knowledge of his ability to retreat, “[t]he question remaining for our consideration then is whether, on the whole record, the constitutional error [in failing to instruct adequately on the elements of a nonaffirmative defense] was harmless beyond a reasonable doubt.” State v. Perez, 10 Conn. App. 279, 290, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987). Phrased differently, we must determine whether it is “clear beyond a reasonable doubt, that the erroneous instruction did not contribute to the jury’s verdict.” Id.

Where the principal factual issues of a case are not classically dependent on the subtleties of the law of self-defense for their proof, an erroneous instruction on such subtleties is harmless beyond a reasonable doubt. See State v. Quintana, supra, 47-48. In this case, as in Quintana, the defendant’s subjective knowledge of a safe escape was not a principal factual issue.

Here, the defendant testified that he had acted in self-defense when he was confronted by three individuals, one of whom had a gun, and when he was almost run over by a fourth individual who was driving a car. Two victims, on the other hand, testified that the shootings had occurred in the course of an attempted robbery of them by the defendant. A third victim testified that the defendant, who was fleeing from the scene of the attempted robberies, shot at the victim for no apparent reason. The defendant’s initial statement to the police, which was introduced into evidence, bolstered the credibility of the victims because in that statement the defendant essentially admitted that he had intended to confront the victims because they had shot at him before. Although the defendant testified that he did not think that he could retreat, this was the only evidence on the issue of retreat that was introduced. In light of all of the evidence before the jury, it is evident that the principal factual issue was one of credibility, that is, whether the jury believed the defendant’s version of self-defense or the victims’ testimony that the attempted robberies and flight therefrom were the motivating forces behind the shootings. See id., 47. “The jury’s verdict can fairly be read to indicate a choice between these two inconsistent versions of the [shootings], a choice that accepted the version presented by [the victims] and rejected the self-defense version presented by [the defendant].” Id.

In the circumstances of this case, the trial court’s erroneous instruction on the duty to retreat before deadly physical force could be used in self-defense did not contribute to the jury’s verdict and was, therefore, harmless beyond a reasonable doubt.

The defendant also asserts that his claims constitute plain error that we should, in the interest of justice, notice. See Practice Book § 4185. “Plain error review is reserved for those ‘ “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” ’ State v. King, 216 Conn. 585, 591, 589 A.2d 896 (1990).” State v. Ortiz, 217 Conn. 648, 659-60, 588 A.2d 127 (1991). The defendant’s claims do not rise to this level.

Ill

The defendant next claims that the trial court improperly instructed the jury under subdivision (1) of General Statutes § 53a-49 (a) relating to the crime of attempted murder when there was no evidence to support the charges, thereby depriving him of his federal and state constitutional rights to be convicted only upon proof beyond a reasonable doubt under the fifth, sixth and fourteenth amendments to the United States constitution and under the constitution of Connecticut, article first, § 8.

The state first asserts that this claim is not preserved and that it, therefore, should not be reviewed. Alternatively, the state contends that the court’s supplemental instructions on attempt cured any deficiency in the court’s initial charge. The state further argues that if there was error, it was harmless beyond a reasonable doubt.

The defendant’s claim was properly preserved because he submitted a written request to charge that encompassed the matter that he is now appealing. Practice Book § 852; State v. Kelly, supra, 163; State v. Reddick, 15 Conn. App. 342, 351, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988).

As was discussed in the previous section of this decision, we must, looking at the charge as a whole, determine whether it was reasonably possible that the jury was misled. The question for us becomes whether the whole charge “ ‘ “gave the jury a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.”. . .’ ” State v. Cobb, 199 Conn. 322, 326, 507 A.2d 457 (1986). We, thus, need to review the instructions given to the jury by the trial court in order to address the defendant’s claim.

The court first instructed the jury that three elements had to be proven beyond a reasonable doubt before it could find the defendant guilty of an attempt to commit a crime rather than properly charging in the disjunctive with respect to subdivisions (1) and (2). Both parties objected to the court’s interpretation of General Statutes § 53a-49 (a). The court then reinstructed the jurors on criminal attempt by reading all of § 53a-49 (a) to them.

The jury commenced its deliberation, and after deliberating for approximately one half of a day, it sent a note to the trial court requesting further instructions on the definition of attempted murder. In response to this note, the court again read all of § 53a-49 (a) to the jury but applied only subdivision (2), the substantial step method, to the facts of this case.

A trial court should not read an entire statute to a jury where the evidence supports only a portion of it. State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983); State v. Newton, 8 Conn. App. 528, 534, 513 A.2d 1261 (1986). The court in this case, however, after reading § 53a-49 (a) to the jury for the second and final time, made no mention of the “attendant circumstances” method of committing the crime of attempt. See State v. Carter, 189 Conn. 611, 628-29, 458 A.2d 369 (1983).

Specifically, the court instructed, in relevant part, that the jury must determine whether the defendant had the requisite mental intent and whether he “com-mitt[ed] any act or omission which would have been a substantial step in the course of the conduct planned to culminate in the commission of either one or both crimes [two counts of attempted murder].” The court further instructed that “[i]t was what was intended . . . and what steps are you satisfied took place, if any and if any did, do they satisfy you beyond a reasonable doubt that the definition of an attempt to commit the offense has been reached.” (Emphasis added.) These supplemental instructions were of particular importance because they were fresher in the jurors’ minds when they resumed their deliberations. See State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986). By applying only the substantial conduct ground for committing criminal attempt under § 53a-49 (a) (2) to the facts of this case, the court eliminated the other statutory method for committing attempt under § 53a-49 (a) (1) from the jury’s consideration. In sum, the trial court gave the jury an understanding of the elements of attempt as those elements applied here. We conclude, therefore, that it was not reasonably possible that the jury was misled.

IV

The defendant next attacks jury instructions defining a reasonable doubt. The defendant claims that the court diluted or shifted the state’s burden of proof when it instructed the jury that a reasonable doubt “is a doubt for which you may in your own individual mind, conscientiously . . . find and assign a reason to it.” He argues that this instruction, by shifting or diluting the state’s burden of proof, violated his federal and state constitutional rights to due process under the fifth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 8, to be convicted only upon proof beyond a reasonable doubt. The defendant concedes that his claim was not preserved at trial, but he seeks review under State v. Golding, supra. He also asserts that we may notice his claim under the doctrine of plain error. Practice Book § 4185.

The state maintains that the defendant cannot prevail on his claim relating to the court’s instructions on a reasonable doubt because there was no clear deprivation of a fundamental constitutional right. State v. Thomas, 214 Conn. 118, 120, 570 A.2d 1123 (1990); see State v. Golding, supra, 240-41.

The defendant admits that jury instructions concerning a reasonable doubt similar to those to which he now objects have previously been approved by our Supreme Court. See, e.g., State v. Thomas, supra, 119; State v. Leecan, 198 Conn. 517, 538-39, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). The defendant, however, asserts that the instructions given here are dissimilar in a significant respect from those in previous cases because these instructions, unlike those in earlier cases, allegedly required the jurors to articulate a doubt.

The challenged definition of a reasonable doubt did not direct the jurors that each must articulate a doubt to the rest of the panel but merely stated that each juror must be satisfied in his or her own mind that there exists a reasonable doubt regardless of whether such doubt could be articulated. When viewed in the context of the entire charge, the instructions given by the trial court did not dilute or shift the state’s burden of proof. State v. Thomas, supra. “It is clear after reading the court’s charge in its entirety that the jury was adequately informed that the defendant was presumed innocent until the state proved otherwise and that it was the state’s burden to prove him guilty beyond a reasonable doubt.” Id., 119-20. Accordingly, we conclude that the defendant has not been clearly deprived of a fundamental constitutional right. Id., 120. See also State v. Ireland, 218 Conn. 447, 457, 590 A.2d 106 (1991). Further, the trial court’s instruction on a reasonable doubt did not result in a manifest injustice to the defendant and is not plain error. State v. Thomas, supra, 120-21.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of one count of felony murder, and not guilty of three counts of attempted robbery in the first degree.

       General Statutes § 53a-54a provides in part: “(a) 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 . . . .”
      General Statutes § 53a-49 provides in part: “(a) 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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose.”

       General Statutes § 53a-59 provides in part: “assault in the first degree: class B felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-60 provides in part: “assault in the second degree: class D felony, (a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       We need consider only the defendant’s federal due process claim because the defendant has not separately analyzed his federal and state due process claims. State v. Ortiz, 217 Conn. 648, 665 n.13, 588 A.2d 127 (1991).

       “[General Statutes] See. 53a-19. USE OF PHYSICAL FORCE IN DEFENSE OF person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       See footnote 5, supra.

       Practice Book § 852 provides in relevant part that “[t]he supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.”
      The defendant requested that the trial court give the following charge on criminal attempt: “In order to convict a Defendant on an attempt to commit a crime, you must find beyond a reasonable doubt that the Defendant intended to commit the crime charged, and that he took some action which was a substantial step towards the commission of that crime.”

       General Statutes § 53a-49 (a) establishes two separate definitions of criminal attempt to commit a crime. State v. Bradley, 12 Conn. App. 163, 170, 529 A.2d 1343, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987). Section 53a-49 (a) (1) concerns the situation where one engages in conduct that would constitute the offense if the facts were as he perceived them whereas § 53a-49 (a) (2) involves carrying out in part some substantive portions of the proscribed conduct. Id. The defendant’s requested instruction related to subdivision (2) of the statute.

       See footnote 5, supra.


author: Daly, J.

text:
    State of Connecticut v. Allen Bowens
    (8912)
    Düpont, C. J., Daly and Heiman, Js.
    Argued March 18
    decision released May 21, 1991

      Neal Cone, deputy assistant public defender, with whom were Kent Drager, assistant public defender, and, on the brief, G. Douglas Nash, public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Jr., assistant state’s attorney, and Donald A. Browne, state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the sale of narcotics and possession of narcotics with intent to sell by a person who is not drug-dependent, both in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court (1) incorrectly denied his motion for acquittal based upon insufficiency of the evidence, (2) improperly allowed the state’s attorney to comment on the defendant’s refusal to testify, (3) improperly charged the jury on the defendant’s unexplained flight, (4) incorrectly instructed the jury as to reasonable doubt, and (5) improperly permitted the state’s attorney to mislead the jury in closing arguments on the meaning of proof beyond a reasonable doubt. We disagree and affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On May 6, 1988, at about 10:30 p.m. Sargeant Richard Herlihy of the Bridgeport police department was parked in an unmarked car watching a well lit area in and around building nineteen in the P.T. Barnum housing project located in Bridgeport. Herlihy’s unobstructed observation point was about 100 feet from building nineteen. On that night, Herlihy watched three black males outside the hallway at the eastern portion of building nineteen; one was the defendant and the other two were the Reddick brothers, whom Herlihy recognized as reputed drug dealers. All three lived in that building. The defendant was standing near the entrance to the hallway and the Reddick brothers stood between fifteen and twenty feet away from him. Herlihy observed a successive pattern in which seven persons approached the defendant on foot, and entered the hallway with him for two or three minutes before exiting and leaving. Subsequently, a Ford LTD with two occupants came into the area, stopped, and the driver, a white male, entered the hallway with the defendant. Two to three minutes later, the driver emerged, went back to his car and drove off. Herlihy radioed other police units to stop the Ford LTD, and called for backup assistance to arrest the defendant.

Officer George Vivo received Herlihy’s radio call at about 10:30 p.m. and thereafter stopped the Ford LTD. The driver and a white female passenger were identified respectively as Peter Elevecky and Monica Ivan. Elevecky admitted that he had been at the P.T. Barnum housing project, had exited his car and purchased heroin with a $20 dollar bill from a black man, but could not identify the seller. Elevecky had earlier that day taken heroin and cocaine before later making the purchase at P.T. Barnum. Ivan testified that she had gone to P.T. Barnum with Elevecky, and that he had exited the car and returned with heroin in his possession. When Vivo stopped the pair, Ivan took a packet of drugs off the car seat and attempted to eat them, but coughed them out. This packet was later tested and was found to contain heroin. Vivo testified that it was similar in size to the twenty-nine packets of drugs later seen dropped by the defendant as he fled.

Officer Peter Gelozin responded to Herlihy’s radio call to pursue the defendant. Gelozin was told to look for a black male wearing a blue and white jacket and blue pants at building nineteen. When Gelozin arrived in an unmarked car, he spotted the defendant, who fit Herlihy’s description. Gelozin left his car and quickly walked toward the defendant. Gelozin was dressed in his black police tactical uniform with police department emblems and his badge on the front, and was wearing his holster and gun. The defendant turned and fled into the hallway of building nineteen with Gelozin in pursuit yelling “police.” Gelozin chased the defendant up three flights of stairs and saw him drop a brown paper bag from his right hand just before entering apartment 305. Gelozin entered the apartment and arrested the defendant, afterward retrieving the brown paper bag the defendant had dropped. In the brown paper bag, Gelozin found twenty-nine small glassine envelopes marked with the words “power” and “obsession” and containing a white powder substance, later identified as heroin. Each packet was deemed to have a street value of $20. At the police station, $103 was seized from the defendant, consisting of four $20 bills, two $10 bills and three $1 bills.

I

The defendant first claims that the evidence adduced at his trial was insufficient to sustain his conviction on the charge of sale of narcotics by a person who is not drug-dependent, and that this improper conviction tainted the jury’s verdict on the charge of possession with intent to sell narcotics by a person who is not drug-dependent. The defendant concludes, therefore, that the trial court should have granted his motion for acquittal. We disagree.

This court undertakes a two-part analysis when reviewing claims of insufficient evidence. First, we review the trial evidence, construing it in the most favorable manner reasonably possible to support the jury’s verdict. Second, we ascertain whether any jury could reasonably have concluded that the cumulative effect of the established evidence, and the inferences reasonably drawn from those evidentiary facts, established guilt beyond a reasonable doubt. State v. King, 216 Conn. 585, 600-601, 583 A.2d 896 (1990); State v. Turner, 24 Conn. App. 264, 587 A.2d 1050 (1991). “Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt.” State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Thus, each essential element of the crime must still be proven beyond a reasonable doubt; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. King, supra, 601; and a jury may not speculate or resort to conjecture but may draw only reasonable, logical inferences from the proven facts. State v. King, supra.

The defendant was charged in the first count with sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). In his claim, the defendant argues that the state failed to prove that the defendant sold narcotics to Elevecky because there was no evidence presented from which a jury could reasonably infer that Elevecky bought the narcotics in his possession from the defendant that night. Essentially, the defendant’s claim is that the state failed to prove the identity of the seller, and therefore did not prove the essential element of delivery to establish a sale. State v. Jackson, 13 Conn. App. 288, 294, 535 A.2d 1327 (1988). In order to convict the defendant, the state had to prove beyond a reasonable doubt that a sale occurred, that it was the defendant who delivered to Elevecky the heroin that Elevecky bought that night at the P.T. Barnum housing project and not some other black male who might have been dealing drugs within the project.

Herlihy testified as an expert police witness in drug enforcement that the pattern of the defendant’s behavior observed that night led him to the opinion that the defendant was engaging in the sale of drugs. Although Herlihy did not observe an actual sale because of the defendant’s use of a darkened hallway in building nineteen, the circumstances he observed that night clearly supported his opinion of a sale, by logical inference. The defendant was with two other known drug dealers, he met quickly with a succession of people for two to three minute periods in the darkened hallway, after which the individuals quickly left the scene on foot. Finally, the defendant fled when approached by a uniformed policeman who subsequently saw the defendant discard a paper bag which held twenty-nine glassine envelopes of heroin. Thus, there was ample evidence to support Herlihy’s expert opinion that the defendant was selling drugs that night, an opinion that the jury could use in reaching its verdict. See State v. Holder, 18 Conn. App. 184, 190, 557 A.2d 553 (1989); State v. Holeman, 18 Conn. App. 175, 177-81, 556 A.2d 1052 (1989) (a companion case to Holder).

Herlihy further testified that, during his forty-five minutes of watching the defendant, he witnessed eight transactions, the first seven by persons on foot and the eighth by a white male driving a Ford LTD, with a passenger in the front seat. Herlihy observed this male exit the Ford LTD, enter the hallway with the defendant and leave after two or three minutes as the other seven people had done. Ivan testified that Elevecky returned to the car with heroin. After Herlihy saw the white male return to the car and drive away, he broadcasted to other police units to stop the car.

Herlihy testified that it was about 10:30 p.m. at night when these events occurred. Vivo, who had stopped Elevecky and Ivan, also testified that it was about 10:30 p.m. Elevecky and Ivan both testified that Elevecky had bought a $20 packet of heroin from a black male in the P.T. Barnum housing project. This packet was similar in size to those that had been in the possession of the defendant before he dropped them while being pursued by a police officer. The proximity in time between Vivo’s arrest of Elevecky and Ivan, Herlihy’s observations of them and his radio broadcast, and the evidence of their sex and race provided circumstantial evidence from which a jury could reasonably infer that Elevecky was the white male seen by Herlihy with the defendant, and that Elevecky purchased drugs at the P.T. Barnum housing project that night from the defendant.

These various pieces of circumstantial evidence offered by the state, their cumulative effect, and the reasonable inferences derived therefrom, when viewed in the most favorable manner reasonably possible, allowed the jury to conclude beyond a reasonable doubt that Elevecky and the white male seen with the defendant by Herlihy were the same man, and that the defendant’s sale of narcotics to Elevecky that night fell within the definition of “sale” contained in General Statutes § 21a-240 (50).

This case is factually dissimilar to State v. Mierez, 24 Conn. App. 543, 590 A.2d 469 (1991), because here twenty-nine individual packets of heroin were in the possession of the defendant as opposed to one plastic bag in Mierez. Furthermore, the packets here were of the same size as that found in the possession of Elevecky, whereas in Mierez, no narcotics were found in the possession of the alleged buyer.

The defendant’s claim that the jury’s verdict on the charge of possession of narcotics with intent to sell by a person who is not drug-dependent was tainted is unfounded because the jury had sufficient evidence upon which to base its guilty verdict on the charge of narcotics sale. Moreover, the large number of packets in the defendant’s possession is the fact from which the inference of possession with intent to sell can be drawn. Thus, the jury’s verdict on the charge of possession with intent to sell was supported by the evidence.

II

The defendant next claims that the state improperly commented on the defendant’s failure to testify on his own behalf. The defendant failed to preserve this claim properly at trial and requests review under the Evans-Golding criteria. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Pursuant to the court’s decision in Golding, supra, we need not consider an unpreserved claim if it is not of “constitutional magnitude alleging the violation of a fundamental right . . . .” State v. Golding, supra, 239. We conclude that the defendant’s claim is not of constitutional magnitude, although he alleges that it is.

In closing arguments, the prosecutor asked the jury to consider the $103 found on the defendant. Elevecky testified that he paid $20 for narcotics and four $20 bills were found on the defendant. The prosecutor stated that the $103 was unexplained. General Statutes § 54-84 prohibits any comment by the court or prosecutor upon the defendant’s refusal to testify.

The test for evaluating the prosecutor’s remark is whether “the language used . . . manifestly [was] intended to be, or was ... of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” State v. DeMartino, 7 Conn. App. 292, 295, 508 A.2d 809 (1986). A prosecutor is prohibited from asking for explanations which only a defendant can provide because such questions are an indirect comment on the defendant’s failure to testify. Id.

In State v. Allen, 9 Conn. App. 169, 181, 517 A.2d 1043 (1986), rev’d on other grounds, 205 Conn. 370, 533 A.2d 559 (1987), the prosecutor argued to the jury that he was still waiting for an explanation as to why two witnesses identified the defendant in a photographic array, why the defendant’s car was found abandoned one mile from the crime scene and why the defendant fled the state. These arguments were not deemed to be unconstitutional comments upon the defendant’s refusal to testify. In State v. Kluttz, 9 Conn. App. 686, 705, 521 A.2d 178 (1987), the state argued to the jury that the defendant had not presented a reasonable explanation for a collision. This argument was held not to be an impermissible comment on the defendant’s refusal to testify but referred to the state’s case. In State v. Iovieno, 14 Conn. App. 710, 724-25, 543 A.2d 766 (1988), the prosecutor’s comment to the jury, that the defendant could not explain why his fingerprint was found in the house, was held to be acceptable. We conclude, therefore, that the prosecutor’s comment here was not intended to be and was not of such character that the jury would naturally and necessarily take it to implicate the defendant’s refusal to testify. Thus, we do not find any infringement by the state of the defendant’s constitutional rights and decline further review. State v. Golding, supra.

Ill

A

The defendant next claims that the trial court’s instructions to the jury that flight, if unexplained, tends to prove consciousness of guilt, violated his right not to testify. This claim was not preserved at trial and the defendant requests review under the Evans-Golding criteria. State v. Golding, supra; State v. Evans, supra. The trial court’s instruction on unexplained flight has been approved by the Connecticut Supreme Court. State v. Holloway, 209 Conn. 636, 650-52, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Reid, 22 Conn. App. 321, 327-28, 577 A.2d 1073 (1990). Because this instruction has been found not to be violative of a constitutional right, we decline any further review. State v. Golding, supra.

B

The defendant further claims that the court’s instructions defining reasonable doubt were improper because the court employed the tipping of the scales analogy and described proof beyond a reasonable doubt as “a strong and abiding conviction that the accused is guilty.” The defendant argues that the inclusion of this language in the jury charge had the effect of shifting, diluting and reversing the state’s constitutional burden to prove the defendant guilty beyond a reasonable doubt. This claim was not preserved at trial and the defendant requests review under the Evans-Golding criteria. State v. Golding, supra; State v. Evans, supra. We conclude that the defendant’s fundamental constitutional right that the state establish his guilt beyond a reasonable doubt; In re Winship, supra, 361; was not violated.

Individual jury instructions are not usually judged in isolation from the entire charge. State v. Thomas, 214 Conn. 118, 119, 570 A.2d 1123 (1990). Nor is the charge to be critically dissected for purposes of discovering possible inaccuracies of statement. State v. Kwaak, 21 Conn. App. 138, 160, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990). The jury instructions must be read in their entirety to ascertain whether the jury was guided to a correct verdict. State v. Monar, 22 Conn. App. 567, 570-71, 579 A.2d 104 (1990).

The Supreme Court has noted that “ ‘ “[ajttempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury. . . . Judicial attempts to clarify the meaning of the phrase ‘reasonable doubt’ by explanation, elaboration or illustration . . . more often than not tend to confuse or mislead.” ’ ” (Citations omitted.) State v. Butler, 207 Conn. 619, 636, 543 A.2d 270 (1988).

Regarding the scales analogy, the Supreme Court disapproved its use in State v. Smith, 183 Conn. 17, 27, 438 A.2d 1165 (1981), when the court instructed that “ ‘[f]or the State to prevail, you must find the scales tipped beyond a reasonable doubt.’ ” The trial court, here, did not refer to tipping the scales beyond a reasonable doubt, but rather attempted to clarify that the state had to tip the scales substantially, in order to meet its burden. Although we disapprove of the analogy employed, we do not believe it rises to the level of constitutional or reversible error in an otherwise adequate charge on reasonable doubt. See, e.g., State v. Johnson, 214 Conn. 161, 179-80, 571 A.2d 79 (1990); State v. Smith, 210 Conn. 132, 150, 554 A.2d 713 (1989).

The trial court’s description of proof beyond a reasonable doubt as a “strong and abiding conviction” is not language that could possibly dilute the state’s burden of proof. Similar descriptive phrases have been used by trial courts without infringing on the defendants’ rights, although such deviations have been reviewed with disapproval. See, e.g., State v. Johnson, supra, 178, 178 n.15, 179-80. Viewing the charge as a whole, we are satisfied that the jury was adequately and fairly instructed on the state’s burden of proof beyond a reasonable doubt.

IV

The defendant finally claims that the prosecutor’s comments made during closing arguments regarding the meaning of proof beyond a reasonable doubt constituted a violation of the defendant’s constitutional right to a fair trial. The defendant again seeks review under the Evans-Golding criteria for his unpreserved claim. State v. Golding, supra; State v. Evans, supra. Although the prosecutor’s comments on reasonable doubt were inartful, we conclude that they do not rise to the level of constitutional harm that would deprive the defendant of a fair trial or due process. See State v. Torrice, 20 Conn. App. 75, 92-94, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989).

During the closing argument, the prosecutor told the jurors that “[ijt’s not your job to be a doubting Thomas.” Describing reasonable doubt, the prosecutor employed the analogy of driving a car and the judgment a driver utilizes to drive safely. See, e.g., id., 93. The prosecutor also encouraged the jurors to follow the “feeling in your gut” to determine whether the state had proven the defendant’s guilt beyond a reasonable doubt. Finally, the prosecutor did tell the jurors to apply the law that the trial court would give them on reasonable doubt and, if it conflicted with his arguments, to disregard his comments and follow the trial court’s charge.

“ ‘ “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” ’ ” State v. Richardson, 214 Conn. 752, 761, 574 A.2d 182 (1990). Some latitude is allowed in counsel’s closing argument for legitimate and fair comment that cannot always be determined precisely by strict rules, and for the zeal of an advocate engrossed in the heat of argument. State v. Evans, 10 Conn. App. 605, 609, 524 A.2d 1165 (1987). Although we do not approve of the prosecutor’s comments regarding reasonable doubt, they do not rise to the level of constitutional harm. Moreover, the prosecutor informed the jury that it was to follow the law as the trial court defined it, not as the prosecutor did, if it differed. The trial court correctly instructed the jurors on reasonable doubt and they are presumed to have followed this charge. State v. Torrice, supra, 94.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to argument, the defendant’s counsel abandoned the final issue raised relating to the defendant’s sentencing.

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

       General Statutes § 21a-240 (50) defines sale as used in General Statutes § 21a-278 (b) as “any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee . . . .”

       The trial court instructed the jury in part: “What does that concept mean, beyond a reasonable doubt? We recognize that proof beyond a reasonable doubt is different than proof beyond all doubt. It is a high degree of proof nevertheless. It’s beyond speculation. It’s beyond probable doubt. It’s beyond suspicion, speculation for sure. Probable doubt, you’ve got to go beyond it.
      “On the civil side, you have to determine civil cases by a preponderance of the evidence, an overview of all the evidence in the case. And if you were to analogize on that and put it into a scale, a slight tipping of the scale is inclining in favor of someone or against someone, in a civil case, it’s sufficient for a jury to meet it’s test of preponderance of the evidence, a fair preponderance, a slight convincing of who has the weight of your position.

        “On the criminal side, it is a substantial tipping of the scales. You have to be satisfied as to that. Reasonable doubt is one that is based upon reason and grows out of the evidence or lack of evidence in a case. A reasonable doubt is not such a doubt as may be raised by one questioning merely for the sake of raising a doubt.
      “It is not a surmise. It is not a guess or conjecture. It is not any hesitation springing from any feelings of sympathy or pity for the accused or any other persons who might be in any way affected by your decision.
      “A reasonable doubt is one that is held by a juror in the light of the evidence and is honestly entertained by that juror after a fair comparison and careful examination of the entire evidence in the case. It is a doubt for which you can, in your own mind, conscientiously find and assign a reason.
      “Proof beyond a reasonable doubt is such proof as precludes every reasonable hypothesis except that which tends to support and is consistent with the defendant’s guilt and is inconsistent with any other rational conclusion.
      “Proof beyond a reasonable doubt can probably best be described as that proof which leaves you with a strong and abiding conviction that the accused is guilty of the crimes with which he has been charged.” (Emphasis added.)

       See the Gospel according to John 20:24-29, which recounts the story of the disciple of Jesus, named Thomas, who would not believe that Jesus had risen from the dead until he saw the risen Jesus and touched his crucifixion wounds.


author: Norcott, J.

text:
    Staci Forsberg v. New Hampshire Insurance Company et al. New Hampshire Insurance Company et al. v. Staci Forsberg
    (9327)
    Daly, Norcott and Lavery, Js.

      Argued February 15
    decision released May 21, 1991

      Elizabeth A. Gallagher, for the appellant (plaintiff in the first case, defendant in the second case).

      George J. DuBorg, for the appellee (named defendant in the first case, named plaintiff in the second case).

      Daniel P. Scapellati, with whom, on the brief, was John W. Lemega, for the appellee (State Farm Mutual Automobile Insurance Company).
   Norcott, J.

The dispositive issue in this appeal is whether the trial court correctly determined that Staci Forsberg’s vehicle was an “underinsured motor vehicle” under General Statutes (Rev. to 1987) § 38-175c (b) (2) (now § 38a-336 [d]). This case causes us to reexamine, yet again, General Statutes (Rev. to 1987) § 38-175c (now § 38a-336), the uninsured motorist coverage statute.

The facts are undisputed. On December 3,1987, the plaintiff in the first action, Staci Forsberg, was involved in a head-on motor vehicle collision between her car and one driven by Karen Timko. Timko was intoxicated and her negligence was the sole cause of the accident. The plaintiff recovered $25,000 from the tortfeasor’s liability policy issued by Nationwide Insurance Company (Nationwide). At the time of the accident, the plaintiff had a policy with New Hampshire Insurance Company (New Hampshire). That policy had an uninsured-underinsured motorist coverage limit of $20,000. As a member of her mother’s household, the plaintiff was also covered by her parent’s policy with State Farm Mutual Automobile Insurance Company (State Farm), which provided for uninsured-underinsured motorist limits of $300,000. All three policies provided for arbitration of disputes in connection with uninsured-under insured motorist coverage.

Arbitration commenced on March 17, 1989. As a result, the arbitrator awarded the plaintiff a net recovery of $295,000 to be paid pro rata by both New Hampshire and State Farm. After apportioning a prorated credit to each company for the $25,000 paid to the plaintiff by Nationwide, the arbitrator found that the plaintiff was entitled to a recovery of $18,437.50 from New Hampshire and $276,562.50 from State Farm. Thereafter, the plaintiff moved to confirm the award, and New Hampshire moved to vacate the award. State Farm was allowed to intervene in the second action. On June 22, 1990, the trial court vacated the award against New Hampshire. The plaintiff brought this appeal from the court’s ruling.

On appeal, the plaintiff claims that the trial court incorrectly determined that her vehicle was an “under-insured motor vehicle” under § 38-175c (b) (2). She argues that the court’s finding was incorrect because (1) the term “underinsured motor vehicle” as defined in § 38-175c (b) (2) applies only to vehicles that are causally connected to a claimed loss, and (2) the court failed to apply relevant Connecticut law regarding interpolicy “stacking” in determining the amount of underinsurance coverage available to the plaintiff. We agree.

Section § 38-175c (b) (2) defines an underinsured motor vehicle as “a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.” Implicit in this definition and throughout § 38-175c “is the commonsensical requirement that the underinsured vehicle be causally connected to the loss for which the claimant seeks compensation. ‘The purpose of underinsured coverage is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.’ (Emphasis added.)” Travelers Ins. Co. v. Kulla, 216 Conn. 390, 398, 579 A.2d 525 (1990).

Applying this principle to the facts of this case, we conclude that the plaintiffs vehicle was not an underinsured motor vehicle because it was not causally connected to the accident in question. Thus, the trial court improperly found that the plaintiff was barred from recovery under General Statutes (Rev. to 1987) § 38-175c (a) (1) (B)(now § 38a-336 [a] [B]), under which an insurer is not required to provide coverage “to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.”

This does not, however, end our inquiry. The trial court also refused to allow the plaintiff to stack her underinsurance coverage under the New Hampshire and State Farm policies. Although the court did so in the context of improperly determining that the plaintiffs vehicle was underinsured, the issue of stacking is relevant to the question that the court should have examined—whether the tortfeasor’s vehicle was underinsured.

Our Supreme Court recently explained the process for determining whether a motor vehicle is underinsured. “ ‘[T]he aggregate of the limits of all such bonds and policies on the tortfeasor’s motor vehicle is compared against the amount of uninsured motorist coverage of the insured.’ (Emphasis in original.) American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 194, 530 A.2d 171 (1987). ‘If the aggregate is less than the limits of liability in the uninsured motorist portion of the insured’s policy, then the underinsurance coverage is activated.’ Id.” American Motorists Ins. Co. v. Gould, 213 Conn. 625, 630, 569 A.2d 1105 (1990). This mechanism allows the tortfeasor’s liability policy or policies to be exhausted before a claimant asserts a claim against his or her own policy or policies for underinsured motorist coverage. When we apply this analysis to the present case, the question of whether the limit of liability under the tortfeasor’s policy ($25,000) is less than the amount of underinsured motorist coverage available to the plaintiff hinges on whether the plaintiff is allowed to stack the New Hampshire ($20,000) and State Farm ($300,000) policies.

Interpolicy stacking for situations involving underinsured motor vehicle claims is clearly sanctioned by the courts of Connecticut. “[Our Supreme Court] has, on a number of occasions, considered the ‘stacking’ of uninsured and underinsured automobile insurance coverage for two passenger cars . . . [and has] noted that the issue of aggregation of coverage for multiple vehicles can arise with regard either to ‘interpolicy stacking’ under separate and distinct insurance policies, or to single policy, ‘intra-policy stacking.’ Regardless of this difference in form, we have repeatedly held that General Statutes § 38-175c permits an injured claimant to ‘stack’ coverages.” Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 481-82, 518 A.2d 373 (1986). Such stacking is allowed because “ ‘[w]here two premiums are paid for two vehicles, whether in one policy or two, total coverage for the named insured is doubled since a person can reasonably expect double coverage when he pays double premiums.’ ” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 396, 446 A.2d 1059 (1982); see also American Motorists Ins. Co. v. Gould, supra, 630, 633.

The legislature’s intent in enacting § 38-175c also supports stacking. In subsection (a) (1), that statute enunciates its purpose as “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of . . . underinsured motor vehicles . . . .” Accordingly, our Supreme Court has recognized that General Statutes § 38-175c is person rather than vehicle oriented; Travelers Ins. Co. v. Kulla, supra, 399; and is to be construed “ ‘to permit the injured party to recover the amount he would have received had the tortfeasor been insured to the same extent as the injured party.’ Connolly v. Royal Globe Ins. Co., 455 A.2d 932 (Me. 1983).” American Motorists Ins. Co. v. Gould, supra, 631.

To accept the trial court’s decision here, thus disallowing the stacking of the policies under which the plaintiff is entitled to underinsured motorist coverage, would be contrary to this legislative intent. General Statutes § 38-175c “ ‘could not have been intended to place the insured who is injured by an underinsured motorist in a better position than one who is harmed by a motorist having the same insurance as the insured.’ Dewberry v. Auto-Owner Ins. Co., 363 So. 2d 1077, 1081 (Fla. 1978).” American Motorists Ins. Co. v. Gould, supra. Similarly, it could not have been the legislative intent to place the insured who is injured by an underinsured motorist in a worse position than one who is harmed by a motorist having no insurance whatsoever. Nationwide Ins. Co. v. Gode, supra, 396-97. Had the plaintiff been struck by an uninsured motorist, she clearly would have been allowed to recover from both the New Hampshire and State Farm policies. Safeco Ins. Co. v. Vetre, 174 Conn. 329, 335, 387 A.2d 539 (1978). Therefore, to avoid an “anomalous” situation, “§ 38-175c must be interpreted to allow the [plaintiff] to stack the uninsured motorist coverages when determining [her] underinsured motorist benefits.” Nationwide Ins. Co. v. Gode, supra, 397. Because the plaintiff can stack her coverage under the New Hampshire and State Farm policies, the tortfeasor’s vehicle was an “underinsured motor vehicle” under § 38-175c (b) (2).

The judgment is set aside and the case is remanded with direction to render judgment confirming the arbitration award.

In this opinion the other judges concurred.

       “Stacking” is the ability of the insured “when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy above would be inadequate.” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388-89 n.2, 446 A.2d 1059 (1982).

       General Statutes (Rev. to 1987) § 38-175c (b) (1) (now § 38a-336 [b]) provides: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.”