text:
    State of Connecticut v. Bernard Bewry
    (8714)
    Foti, Landau and Cretella, Js.
    Argued September 26
    decision released December 17, 1991

      Susan A. Brown, assistant public defender, with whom was Kenneth W. Simon, assistant public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom were James E. Thomas, senior assistant state’s attorney, and, on the brief, JohnM. Bailey, state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of the crimes of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) in one case, and of the crimes of criminal attempt to commit murder in violation of General Statutes § § 53a-49 (a) (2) and 53a-54a (a), carrying a pistol without a permit in violation of General Statutes § 29-35 (a), and two counts of the crime of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) in the other case. The defendant claims (1) that the trial court improperly denied his motion for judgment of acquittal because the evidence presented was insufficient to allow the jury to find him guilty of criminal attempt to commit murder beyond a reasonable doubt, and (2) that the trial court improperly denied his motion for a new trial which he had based on the state’s nondisclosure of exculpatory evidence and on the state’s failure to correct the allegedly false testimony of one of its witnesses. We affirm the judgments of the trial court.

The jury could have reasonably found the following facts. The defendant went to a building on Charlotte Street in Hartford to confront several friends about rumors he had heard concerning his friends’ sexual involvement with his girl friend. When the defendant attempted to speak to the occupants of the building, they refused to let him inside. The defendant then left, obtained a semiautomatic handgun and returned to the Charlotte Street building.

This time, the defendant was allowed in and went to a second floor apartment. When he was approached by the people whom he had come to see, the defendant drew his gun. After words were exchanged, the defendant raised his gun and fired a shot that struck Errol McNeil in the head. McNeil died as a result of that injury.

The defendant then fired from close range at Glaister Gunter, wounding him in his left arm. Gunter ran out of the building to an adjoining parking lot and collapsed on the ground. The defendant approached Gunter and asked where he could find another person who had fled from the building when the first shot was fired. After Gunter told the defendant where that person could be found, Gunter asked whether the defendant was going to kill him. The defendant replied, “First, I’m going to rob you,” and then shot him again from a distance of about one foot. The bullet struck Gunter’s arm inches from where it supported his head. As Gunter lay motionless, the defendant walked away and was heard to say, “You’re dead, [expletive].”

The defendant first claims that because the evidence was insufficient to support his conviction for the attempted murder of Gunter, the trial court should not have denied his motion for judgment of acquittal. Specifically, he argues that no evidence was presented at trial from which the jury could have inferred the requisite specific intent to cause Gunter’s death, as required by General Statutes §§ 53a-49 (a) (2) and 53a-54a (a). We do not agree.

“ 'When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983). We then determine whether “ 'the jury could have reasonably concluded upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Duhan, 194 Conn. 347, 355, 481 A.2d 48 (1984).’ State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987); State v. Arnold, 201 Conn. 276, 282, 514 A.2d 330 (1986). ‘ “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited.’ State v. Rollinson, supra, 666.” State v. Carpenter, 214 Conn. 77, 78-79, 570 A.2d 203 (1990).

The defendant contends that the evidence shows that, when he fired the gun at Gunter, he intended only to hurt him, not to kill him. Essentially, he argues that the evidence was not legally sufficient to convict him of the crime of attempted murder because he shot Gunter twice at close range, and could have killed him by shooting him in his head or chest if that was in fact his intent, but instead only wounded him in the arm. In addition, the defendant claims that Gunter’s own testimony, to the effect that he did not believe that the defendant intended to kill him, corroborated his lack of intent to cause the death of Gunter.

“ ‘The intent of the actor is a question for the trier of fact, and the conclusion of the trier in this regard should stand unless it is an unreasonable one.’ State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). Further, when the conclusion is one that is dependent on the resolution of conflicting testimony, it should ordinarily be left to the jury for its judgment. State v. Torello, 100 Conn. 637, 647-48, 124 A. 375 (1924).” State v. Turner, 24 Conn. App. 264, 268, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).

“While it would have been permissible to infer from [the facts relied on by the defendant] that the defendant intended only to injure . . . [the victim], the evidence did not preclude the equally permissible inference that the defendant intended to kill the victim by shooting at him ... as he lay on the ground [one foot] away.” State v. Montanez, 219 Conn. 16, 21, 592 A.2d 149 (1991). The evidence taken in the light most favorable to sustaining the verdict indicates that the defendant aimed the gun at Gunter and pulled the trigger, causing the bullet to hit him in the arm inches from his head. The fact that the victim was not hit in a vital area of the body is not dispositive of the issue of intent to kill. Id. The proximity of the victim’s head to the arm that was hit by the bullet is highly significant. Moreover, evidence was presented to the jury that showed that the defendant armed himself with a deadly weapon; State v. Lopez, 197 Conn. 337, 343, 497 A.2d 390 (1985); that, after initially shooting Gunter and causing him to retreat, the defendant exhibited little regard for Gunter’s condition even though it was apparent that he was injured; State v. Chace, 199 Conn. 102, 106, 505 A.2d 712 (1986); that the defendant threatened Gunter while brandishing a gun at close range; State v. Washington, 15 Conn. App. 704, 716, 546 A.2d 911 (1988); and that he fired the second shot from close range as his victim lay motionless on the ground; State v. Montanez, supra, 20; all of which can support an inference that the defendant intended to kill Gunter the second time he fired the gun at him. On the basis of this evidence, the jury reasonably could have concluded beyond a reasonable doubt that the defendant intended to cause Gunter’s death.

The defendant next claims that the trial court improperly denied his motion for a new trial brought pursuant to Practice Book § 902. The defendant contends that the state violated his constitutional right to a fair trial by failing to disclose exculpatory information, as required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and by subsequently failing to notify the defendant of the information when the witness involved testified falsely.

The following additional facts are relevant to our consideration of this claim. During the defendant’s trial, Detective Nicholas Russo testified that his address was 50 Jennings Road in Hartford, the location of the Hartford police department. Russo testified that he took a voluntary statement from the defendant in connection with the Charlotte Street incident. The defendant signed this statement. Russo also testified that the defendant was calm and cooperative during the interview and that he did not notice anything unusual about the defendant’s emotional state that might have interfered with his ability to give an accurate statement. When the defendant took the stand, he testified that the statement was not accurate in certain very minor respects. He also testified that he was in pain at the time he gave the statement, having just been released from the hospital after suffering a gunshot wound.

In a pretrial motion, the defendant had made the standard motion that the state provide him with “any record of felony convictions of the witnesses” whom the state intended to call at trial and “any record of felony or misdemeanor charges pending against the witnesses.” Although the state argues that there was no suppression, no such information as to Russo was disclosed by the state.

The defendant later discovered that, in fact, at the time of his trial, Russo was under suspension from the Hartford police department due to the pendency of criminal action against him. That case involved an allegation that Russo had illegally obtained a prescription drug. Russo was on accelerated rehabilitation for that charge at the time that he testified against the defendant. In his motion for a new trial, the defendant further alleged that “[u]pon information and belief said detective had a drug problem which may well have affected his perceptions on the evening he interrogated the defendant.”

“Appellate review of the denial of a motion ... for a new trial is limited to a determination of whether the trial court abused its discretion.” State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985); State v. Thomas, 210 Conn. 199, 213, 554 A.2d 1048 (1989). Because the defendant cannot meet his burden with respect to either claim of wrongdoing by the state, we conclude that the trial court did not abuse its discretion in denying the motion for a new trial.

With regard to his Brady claim, “the defendant bears the burden of demonstrating: ‘(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.’ State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988); State v. Simms, 201 Conn. 395, 405-406, 518 A.2d 35 (1986).” Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988). Although the information concerning Russo could arguably be classified as both “suppressed” and “favorable to the defense” within the meaning of Brady, see Demers v. State, supra, 150-54, 161; we nevertheless conclude that the undisclosed evidence did not meet the third prong of Brady because it was not material.

“ ‘The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ ” State v. Pollitt, 205 Conn. 132, 142-43, 531 A.2d 125 (1987), quoting United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). The defendant’s claim is that a key issue for determination by the jury was a question of credibility, i.e., “[wjhich was accurate, the statement as recorded by Russo or the testimony of [the defendant]?” The defendant further argues that, “[h]ad Detective Russo’s drug prosecution [and possible drug abuse problems] been disclosed, the jury would have been able to properly weigh his testimony and determine whether his rendition of the events and statement was credible and believable.” This contention is not supported by the evidence introduced at trial. Only minor discrepancies existed between the defendant’s version of the Charlotte Street incident as related in his statement to the police and his trial testimony to the jury concerning those events. In fact, several times during cross-examination of the defendant, he maintained that the two versions were not really all that different. In addition, we note that, had any question been raised as to Russo’s credibility or his ability properly to observe and recall the defendant’s demeanor when he recorded the defendant’s statement, the state had available to it the testimony of Detective Frank Craddock, who was present during most of the time the defendant made his statement to the police and who could have corroborated Russo’s testimony regarding the defendant’s condition at the time of the statement. Under these circumstances, we conclude that the state’s failure to disclose the information concerning Russo’s drug arrest and prosecution was not significant in any way.

With regard to the defendant’s claim of the use of false testimony by the state, “[a] new trial is required if the false testimony could in any reasonable likelihood have influenced the jury.” Merrill v. Warden, 177 Conn. 427, 431, 418 A.2d 74 (1979). We conclude that any impact of the allegedly false testimony was de mini-mus. Russo’s testimony in issue was his address, given after he was placed under oath. Although his address might have suggested that he was an active member of the Hartford police department, none of his testimony in response to questioning by the state or defense counsel reinforced that suggestion. His answers to questions regarding general police procedures and the events surrounding the taking of the defendant’s statement were framed in the past tense. More important, as noted above, since his credibility was not seriously put into dispute by the defendant’s testimony and since his testimony could have been corroborated by Craddock, there is no likelihood that the false impression given by his testimony would have influenced the jury in reaching its verdict.

The judgments are affirmed.

In this opinion the other judges concurred.

       Gunter testified that the defendant took his wallet immediately before firing the gun at him a second time. The jury acquitted the defendant of the charge of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2).

       General Statutes § 53a-49 (a) provides that in order to be guilty of an attempt to commit a crime, a person must have been “acting with the kind of mental state required for commission of the crime . . . .” The mental state required by General Statutes § 53a-54a (a) for the crime of murder is an ‘intent to cause the death of another person . . . .”

       The defendant’s Practice Book § 902 motion for a new trial which raised the issue of this undisclosed information was not filed within the five day period set forth in Practice Book § 903. The trial court did not deny the motion on this basis, and § 903 permits the trial court, in the interests of justice, to permit such a motion to be filed beyond the five day period.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Betty L. Tianti, Commissioner of Labor ex. rel. Robert L. Wright v. Multi Business Computer, Inc.
    (9995)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued September 30
    decision released December 17, 1991

      David A. Zipfel, for the appellant (Kelser Corporation).

      Patricia M. Strong, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
   O’Connell, J.

This appeal concerns the denial of the motion of a nonparty to be made a party defendant for the sole purpose of attacking a prejudgment remedy obtained by the plaintiff. We affirm the trial court’s denial of the motion.

The record discloses that the plaintiffs are the Connecticut commissioner of labor and Robert Wright, a former employee of the defendant. The commissioner brought this action pursuant to General Statutes § 31-72 on behalf of Wright for wages he claims were not paid to him by the defendant. The defendant counterclaimed alleging that Wright had refused to repay unearned commissions. While the action was pending, the plaintiffs obtained an ex parte prejudgment garnishment of any money due the defendant from the Travelers Insurance Company. The garnishment was granted ex parte on the plaintiffs’ representation that there was a reasonable likelihood that the defendant was about to sell all its assets or to remove itself or its property from the state of Connecticut.

At this stage, the Kelser Corporation moved pursuant to Practice Book § 102 to be made a party defendant, alleging that it had bought the defendant’s assets and that the funds garnisheed at the Travelers Insurance Company were in fact Reiser’s and not the defendant’s. The trial court denied Reiser’s motion on the grounds that it did not come within the scope of Practice Book § 102. We agree.

Practice Book § 102 consists of only one sentence which provides: “When a counterclaim raises questions affecting the interests of third parties, the defendant may, and if required by the court shall, cause such parties to be summoned in as parties to such suit. ” (Emphasis added.) In the present case, the counterclaim refers solely to money that the defendant seeks from the plaintiff Wright for alleged unearned premiums. It does not implicate any interest of Reiser and therefore Practice Book § 102 is inapplicable.

Moreover, the purpose of a § 102 motion is to confer party status in a case, a result that Reiser expressly disavows. Reiser’s sole avowed purpose is to attack the prejudgment attachment which it claims affects its property interests and not the defendant’s. A motion under Practice Book § 102 is not the correct legal mechanism to litigate the issue that Reiser is attempting to raise.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-72 provides in pertinent part: “When any employer fails to pay an employee wages in accordance with the provisions of [section] 31-71a . . . such employee . . . may recover, in a civil action .... The labor commissioner may collect the full amount of any such unpaid wages ... as well as interest calculated in accordance with the provisions of section 31-265 from the date the wages or payment should have been received, had payment been made in a timely manner. . . .”

       Hamilton Standard (presumably the Hamilton Standard Division of United Technologies Corporation) was also garnisheed but is not involved in this appeal.

       General Statutes § 52-278e (a) provides in pertinent part: “The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing . . . upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiffs claim and ... (2) that there is reasonable likelihood that the defendant . . . (C) is about to remove himself or his property from this state . . . .”

       General Statutes § 52-110 is identical to Practice Book § 102.

       “[The Plaintiff’s Counsel to the Court]: I don’t believe Kelser is asking to be admitted as a party on the counterclaim, Your Honor, unless I’m missing something.
      “[The Court]: No? I thought that’s all they wanted.
      “[Defense Counsel]: No, Your Honor.”


text:
    Edward Smith v. Victor Liburdi
    (9818)
    O’Connell, Foti and Landau, Js.
    Argued September 19
    decision released December 17, 1991

      David A. Reif, special public defender, with whom, on the brief, was Thomas E. Katon, for the appellant (petitioner).

      L. D. MeCallum, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   O’Connell, J.

The petitioner appeals from the denial of his habeas corpus petition which challenged the Validity of a detainer lodged against him by California authorities. The petitioner claims that the trial court’s dismissal of a request by California authorities for temporary custody mandated dismissal of the underlying detainer. We disagree and affirm the trial court’s judgment.

The record discloses that the petitioner was serving a four year sentence in the custody of the Connecticut commissioner of correction. On January 31,1990, the sheriff of Los Angeles County, California, lodged a certified copy of a felony warrant against the petitioner and requested that he be detained to respond to untried California charges. On that same day, Connecticut correction officials delivered a notice of the California detainer to the petitioner apprising him of his right to request a speedy trial on the California charges. The petitioner refused to acknowledge receipt of the notice and also refused to sign that portion of the notice that constituted a request for appointment of counsel to represent him in the matter. On March 2, 1990, California sought temporary custody of the petitioner by way of a letter from a California assistant district attorney.

The petitioner contested the request for temporary custody and the validity of the underlying detainer. The trial court held that the request for temporary custody was invalid because the copy of the indictment annexed thereto had not been authenticated by the executive authority (i.e., the governor) of California. Additionally, the request did not include a written allegation that the petitioner was present in California when the crime was committed and thereafter fled from that state. General Statutes § 54-159. The court further held that the underlying detainer was unaffected by the defects in the request for temporary custody. The petitioner appeals to this court.

Our analysis begins with an examination of General Statutes § 54-186, in which Connecticut adopted the Interstate Agreement on Detainers (IAD). The purpose of the IAD is to establish a cooperative procedure for disposition of charges against a prisoner in one state who is wanted to respond to untried criminal charges in another state. General Statutes § 54-186, art. I. The IAD is activated when the state seeking the prisoner (the receiving state) files written notice that he is wanted to answer charges in that state. This notice, referred to as a “detainer,” is simply “ ‘a notification filed with the institution in which the prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.’ ” United States v. Mauro, 436 U.S. 340, 359, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978).

General Statutes § 54-186, art. Ill (c), establishes the procedure for informing the prisoner that a detainer has been filed against him together with his right to apply for disposition of the charges without waiting for expiration of his sentence in the sending state. Here, officials from the Connecticut department of correction notified the petitioner of the detainer in compliance with article III (c) but the petitioner declined to respond or to react in any manner. If nothing else had transpired, the detainer would have remained uneventfully on file until the petitioner’s term neared completion, at which time California would decide whether to seek the petitioner’s extradition under General Statutes § 54-157 et seq., popularly known as the Uniform Criminal Extradition Act (UCEA).

The petitioner’s imprisonment in this state did not remain uneventful, however. California authorities sought to avail themselves of article IV of the IAD, which provides that the receiving state may seek temporary custody of the prisoner for disposition of its charges prior to the normal expiration of the prisoner’s sentence. This involuntary transfer of a prisoner from the sending state (Connecticut) to the receiving state (California), even if for only a temporary period implicates the UCEA, General Statutes § 54-157. Cuyler v. Adams, 449 U.S. 433, 449, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981).

The petitioner argues that Cuyler stands for the proposition that all of a prisoner’s extradition rights under the UCEA apply to all sections of the IAD. Cuyler is not that broad. The Cuyler court recognized that the IAD provides for both voluntary (article III) and involuntary (article IV) interstate transfer of prisoners. That court agreed with the respondent that prisoners who initiate their own transfers pursuant to article III of the IAD are required to waive any right to contest such transfer, but that prisoners subject to involuntary transfers pursuant to article IV are entitled to the “procedural protections of the Extradition Act ... as well as any other procedural protections the sending state guarantees persons being extradited from within its borders.” Id., 448.

The petitioner in Cuyler argued that the IAD established a procedure for interstate prisoner transfer that excluded the pretransfer hearing required by the UCEA. The United States Supreme Court disagreed and held that a prisoner’s rights to a pretransfer hearing were identical irrespective of whether the involuntary transfer was initiated under article IV of the IAD or under the UCEA. The Supreme Court went on to refer expressly to a prisoner’s right to a pretransfer hearing on the receiving state’s custody request. Thus, Cuyler can be read to support only the narrow proposition that prisoners subject to involuntary transfers are entitled to a pretransfer hearing.

In the present case, the petitioner had his pretransfer hearing on California’s temporary custody request and prevailed. The trial court found the custody request defective and ordered the respondent not to transfer the petitioner to California. The petitioner is entitled to no further relief under Cuyler. Moreover, he has not furnished us with authority, nor are we aware of any, that automatically converts a defect in a temporary custody request into an invalidation of the underlying detainer. California may again request temporary custody, the next time supported by proper documents. In the meantime, the petitioner returns to the status quo, i.e., a prisoner serving a sentence in the Connecticut penal system against whom a detainer has been filed, which will be triggered by the expiration of his term or a valid request for temporary custody.

Finally, the petitioner argues that the detainer prevents him from participating in the supervised home release program. Because such matters are beyond the province of this court, we do not address this issue. “Prison classification and eligibility for various rehabilitation programs, wherein prison officials have full discretion to control those conditions of confinement, do not create a statutory or constitutional entitlement sufficient to invoke due process.” Wheway v. Warden, 215 Conn. 418, 431, 576 A.2d 494 (1990), citing Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s amended habeas corpus petition alleges that the detainer was lodged on January 22, 1990. The difference in dates is irrelevant to this appeal.

       General Statutes § 54-159 provides in pertinent part: “No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging . . . that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state .... [The required documents] must be authenticated by the executive authority making the demand.”

       General Statutes § 54-186, art. Ill (c) provides: “The warden, commissioner of correction or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.”

       General Statutes § 54-186, art. IV, provides in pertinent part: “The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated . . . .”

       In Cuyler, the respondent brought action pursuant to 42 U.S.C. § 1983 alleging violation of his rights under the IAD by Pennsylvania officials.

       “The remedial purpose of the Agreement supports an interpretation that gives prisoners the right to a judicial hearing in which they can bring a limited challenge to the receiving state’s custody request.” Cuyler v. Adams, 449 U.S. 433, 449, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981).


author: Dupont, C. J.

text:
    State of Connecticut v. Jose A. Falcon
    (9554)
    Dupont, C. J., Norcott and Heiman, Js.

      Argued September 19
    decision released December 17, 1991

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

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Warren Maxwell, senior state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was charged in a two count information with the crimes of murder, in violation of General Statutes § 53a-54a, and assault in the third degree, in violation of General Statutes § 53a-61 (a) (1). After a jury trial, the defendant was convicted on the first count of what the court considered a lesser included offense of murder, namely, manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. The jury also returned a verdict of guilty on the second count. The defendant claims that the trial court improperly instructed the jury that it could consider the crime of manslaughter in the first degree with a firearm as a lesser included offense of the crime of murder, as to the meaning of proof beyond a reasonable doubt, and on circumstantial evidence by failing to define the state’s and the defendant’s respective burdens correctly. The defendant also claims that the trial court improperly hindered the defendant’s self-defense claim by prohibiting the defendant from examining and rehabilitating his witnesses. We reverse the judgment in part, and remand the case to the trial court.

The jury could reasonably have found certain facts. On February 13, 1989, the defendant returned home from work in the afternoon. Early in the evening, his wife left to run some errands. At about 9 o’clock that evening, the defendant’s wife telephoned him, and he testified that she “sounded a little drunk.”

At about 11:30 that night, the defendant put on the jacket that he had worn to work that day and went out to look for his wife. He noticed her car parked outside a cafe, and when he entered the bar he saw his wife in the back room talking to three men. An argument ensued between the defendant and his wife because she refused to leave. Eventually, she agreed to leave with him and went to get her jacket and pocketbook.

As the defendant tried to leave the bar, the victim, who was an off duty bouncer at the bar, approached the defendant from behind to tell him to leave. The victim grabbed the defendant’s shoulder and a struggle ensued. The defendant put his right hand into his jacket pocket, pulled out a gun, put it over his right shoulder and fired. The victim died from a single gunshot wound to his chest. The defendant left the bar, threw the gun into a river and then turned himself in to the police.

At trial, the defendant relied exclusively on a claim of self-defense. The defendant testified on his own behalf, stating that he carried the weapon because he and his family had been the victims of violence and continuing threats. He testified that he acted in self-defense when he reached for his gun at the time of the shooting because he believed his life was in danger, and that he did not intend to kill the victim.

I

The defendant’s first claim is that the trial judge improperly instructed the jury that it could consider the crime of manslaughter in the first degree with a firearm, a violation of General Statutes § 53a-55a, as a lesser included offense of murder, a violation of General Statutes § 53a-54a. The information charged that the defendant, “with intent to cause the death of another person, caused the death of such person, in violation of section 53a-54a of the General Statutes.” The defendant claims that, based on the charging document as worded, the instruction on manslaughter in the first degree with a firearm violated his statutory and constitutional rights to fair notice of the crimes charged against him. This claim was not properly preserved by the defendant at trial, but we conclude that we must notice such an instruction as plain error. Practice Book § 4185.

Both the state and the defendant requested a charge on the lesser included offense of manslaughter in the first degree. Neither requested a charge on manslaughter in the first degree with a firearm, which the court gave sua sponte. The defendant took no exception, however, to the charge as given.

“ ‘Although generally plain error review is limited to instances involving confidence in the fairness and integrity of the adjudicative process; Smith v. Czercel, 12 Conn. App. 558, 563, 533 A.2d 223 (1987); the doctrine essentially invokes the discretion of the court. Finley v. Aetna Life & Casualty Co., [202 Conn. 190, 196, 520 A.2d 208 (1987)]. One standard for this appellate discretion is whether the issue is of importance to the development of the law of the state, is vital to the proper resolution of the case, and was sufficiently presented to the trial court initially ... so that appellate consideration of it does not amount to ambuscade of the trial court. Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 402-403, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987). It is this latter branch of the plain error doctrine which we invoke here.’ Daley v. Gaitor, 16 Conn. App. 379, 383, 547 A.2d 1375 (1988).” State v. Rogers, 18 Conn. App. 104, 110-11, 556 A.2d 1030 (1989).

In this case, the necessary preconditions for a plain error review as outlined in Rodgers have been met. The question of whether one crime is a lesser included offense of another is important to the development of the law because of its due process overtones. The question is also vital to the proper resolution of the case. Finally, the question was sufficiently presented to the trial court initially. In fact, it was the state’s attorney who indicated to the trial judge that the charge was incorrect. Therefore, our consideration of it now does not amount to ambuscade of the trial court.

“Nothing is more elementary in criminal law than that an accused is required to defend only against the chargefs] alleged.” State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983). The information serves the very-important function of informing the defendant of the nature and cause of the accusation as required by our federal and state constitutions. U.S. Const., amend. VI; Conn. Const., art. I, § 8; State v. Belton, supra. Where one or more offenses are lesser than and included in the crime charged in the information, notice of the crime charged includes notice of all lesser included offenses. State v. Castro, 196 Conn. 421, 429, 493 A.2d 223 (1985).

There are tests comparing one crime with another to determine if one is a lesser included offense of the other or if the two are separate crimes. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980). “The test for determining whether one crime is a lesser included offense of another crime is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser.” State v. Hodge, 201 Conn. 379, 385, 517 A.2d 621 (1986); State v. Whistnant, supra, 584. The lesser included offense doctrine implicates notice requirements of due process. State v. Hudson, 14 Conn. App. 472, 476-77, 541 A.2d 539 (1988).

On the other hand, “[u]nder the Blockburger test, ‘a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.’ ” State v. Tweedy, 219 Conn. 489, 495, 594 A.2d 906 (1991). The separate offense doctrine implicates double jeopardy concerns. Id.

In this case, we must determine whether it was possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. State v. Hodge, supra. Proof of a lesser included offense must not require proof of any element that is not needed to commit the greater offense. State v. Castro, supra, 428; State v. Gonzalez, 14 Conn. App. 216, 221, 541 A.2d 115 (1988), aff'd, 210 Conn. 446, 556 A.2d 137 (1988).

The state conceded at oral argument that manslaughter in the first degree with a firearm, as defined in General Statutes § 53a-55a, is not a lesser included offense of murder, as defined in General Statutes § 53a-54a and as charged in the state’s information in this case. We are not bound, however, by a concession of the parties. State v. Putnoki, 200 Conn. 208, 219 n.6, 510 A.2d 1329 (1986). This is particularly true in this case because there are at least five other cases in which it has been stated in passing, or decided inferentially, that the former is a lesser included offense of the latter. See, e.g., State v. Shipman, 195 Conn. 160, 486 A.2d 1130 (1985); State v. Marino, 190 Conn. 639, 462 A.2d 1021 (1983); State v. Toczko, 23 Conn. App. 502, 582 A.2d 769 (1990); State v. Bahamonde, 21 Conn. App. 801, 570 A.2d 245 (1990); State v. Rodriguez, 10 Conn. App. 357, 522 A.2d 1250 (1987).

For purposes of lesser included offense analysis, the facts in this case are critically distinguishable from the facts in State v. Shipman, supra, and State v. Marino, supra. In both Shipman and Marino, the defendant was charged with murder and the charging documents expressly stated that such crime was perpetrated by the use of a firearm. Since, for purposes of a lesser included offense analysis, both the relevant statutes and the charging documents must be examined; State v. John, 210 Conn. 652, 695, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); manslaughter in the first degree with a firearm was considered to be a lesser included offense in those cases. In the present case, the information contained no allegation of use of a firearm.

The crime of manslaughter in the first degree with a firearm requires proof of an additional element, use of a firearm, that is neither a necessary element of the crime of murder nor a necessary element of the crime as alleged in the information. Moreover, it is simply irrelevant that the evidence adduced at trial could have supported the additional element of use of a firearm. This court is to look at the statutes, the information and the bill of particulars, as opposed to the evidence presented at trial, in order to determine what constitutes a lesser included offense of the offense charged. State v. John, supra; State v. Martin, 187 Conn. 216, 222, 445 A.2d 585 (1982). The question, then, is not whether the defendant could have been charged with manslaughter in the first degree with a firearm, but whether, having been charged with murder without any specification in the information as to the use of a firearm, he could be convicted of the former crime. The answer in this case is that he cannot.

It is clear that the court’s instruction on manslaughter in the first degree with a firearm should not have been given in this case because it is not a lesser included offense of murder. The giving of the instruction, however, does not impinge on the fundamental fairness of the defendant’s trial. The conviction was clearly supported by the evidence, and the conduct of the trial is not otherwise objectionable in any way. We must next decide the consequences arising from our finding of plain error.

The trial court's instruction to the jury regarding manslaughter with a firearm included an explanation of all elements of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The jury’s finding of guilty of manslaughter in the first degree with a firearm necessarily indicates that the jury found, beyond a reasonable doubt, that the defendant was guilty of manslaughter under § 53a-55 (a) (1). It has been held that manslaughter under § 53a-55 (a) (1) is a lesser included offense of murder. State v. Maselli, 182 Conn. 66, 71, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981); State v. Rodriquez, 180 Conn. 382, 407, 429 A.2d 919 (1980).

On numerous occasions, our Supreme Court and this court have modified judgments after a reversal, rather than remand for a new trial. See State v. Carpenter, 214 Conn. 77, 85, 570 A.2d 203 (1990); State v. McGann, 199 Conn. 163, 178-79, 506 A.2d 109 (1986); State v. McNeil, 21 Conn. App. 519, 524, 574 A.2d 1314, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990); State v. Aleksiewicz, 20 Conn. App. 643, 651, 569 A.2d 567 (1990); State v. Horne, 19 Conn. App. 111, 142-46, 562 A.2d 43 (1989). In these cases, the courts have rendered judgments for crimes that were necessarily included in the jury’s determination. See, e.g., State v. Carpenter, supra (although insufficient evidence to support jury verdict of murder because of lack of proof of specific intent, proper for court to modify judgment to reflect conviction of manslaughter in the first degree).

In State v. McNeil, supra, the defendant was convicted of possession with intent to sell a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and we concluded that the defendant’s conviction under that section was not justified. Since the erroneous instruction implicated only the jury’s finding that the defendant was not drug-dependent, and, because the state produced sufficient evidence to prove all the elements of a violation of § 2 la-277 (a), we remanded the case with direction to modify the judgment so as to reflect a conviction of a violation of § 21a-277 (a). Similarly, in the present case, the trial court improperly instructed the jury to consider the crime of manslaughter in the first degree with a firearm. The erroneous instruction, however, implicated the jury’s finding only as to use of a firearm, and the state has produced sufficient evidence to prove all of the elements of a violation of manslaughter in the first degree under § 53a-55 (a) (1). Therefore, rather than reverse the judgment and remand the case for a new trial, we reverse the judgment and remand the case to the trial court with direction to render a judgment of conviction of manslaughter in the first degree in violation of § 53a-55 (a) (1), and to resentence the defendant in accordance with that conviction.

II

The defendant’s second claim is that the trial court improperly instructed the jury on the meaning of reasonable doubt. He claims that the state’s burden of proof was diluted in violation of the defendant’s constitutional rights to a fair trial before a properly instructed jury and to be convicted only by proof beyond a reasonable doubt. Although this claim was not properly raised in the trial court, the defendant requests review by this court under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

“It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. . . . An instruction that dilutes the state’s burden, or places a burden on the defendant to prove his innocence, is unconstitutional.” (Citation omitted.) State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). We analyze the defendant’s claim to see if he can prevail in demonstrating that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. State v. Golding, supra, 240.

“In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Snook, 210 Conn. 244, 275-76, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Bailey, 209 Conn. 332, 338, 551 A.2d 1206 (1988).” State v. Ober, 24 Conn. App. 347, 358, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134 (1991). The charge is not to be judged in artificial isolation from the overall charge. State v. Kelly, 23 Conn. App. 160, 164, 580 A.2d 520 (1990), cert. denied, 216 Conn. 831, 583 A.2d 130, cert. denied, U.S. , 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).

The defendant first challenges that portion of the instructions that reads: “On the other hand, if all the other evidence has been impartially reviewed by you and introduces in your mind a settling belief that you would be able to act upon matters of the highest importance relating to your own affairs, then in that event you would be free from doubt and you would find the defendant guilty.” He claims that the “settling belief” language reduces the state’s burden of proof to a “clear and convincing evidence” standard. This court, however, recently held that similar, isolated language (“settled and abided belief”) did not create a clear constitutional violation for purposes of Golding review. State v. Ober, supra. This definition was given but a single time in the course of the instructions, and the trial court also defined reasonable doubt on numerous other occasions with standard, long accepted definitions. For example, the jury also was instructed that “[a] reasonable doubt is a doubt for which a valid reason can be assigned.” It was instructed that “ [reasonable doubt is the kind of doubt upon which reasonable persons like yourselves in the more serious and important affairs of your own lives would hesitate to act.” The jury was also instructed that reasonable doubt “is a doubt which is something more than a guess, speculation or surmise. It is not a conjecture or a fanciful doubt.” All such definitions have been approved in this state. See State v. Thomas, 214 Conn. 118, 119, 570 A.2d 1123 (1990); State v. Gilchrist, 24 Conn. App. 624, 640, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 13 (1991); State v. Theriault, 24 Conn. App. 502, 509, 589 A.2d 379, cert. denied, 219 Conn. 909, 593 A.2d 135 (1991); State v. Turner, 24 Conn. App. 264, 275, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).

In this case, viewing the charge as a whole, as we must, we conclude that the defendant cannot prevail on this claim of constitutional error.

The defendant also challenges that portion of the jury instructions that told the jurors that they would be free from reasonable doubt if the evidence introduced in their minds a settling belief that they would be “willing to act upon in matters of the highest importance relating to their own affairs.” The defendant claims that this too diluted the state’s burden of proof. Although our Supreme Court has disapproved of the “willingness to act” language, it has held that it “does not constitute reversible error, let alone constitutional error in an otherwise adequate charge upon reasonable doubt.” State v. Smith, 210 Conn. 132, 150, 554 A.2d 713 (1989). Furthermore, immediately preceding the language now under attack the jury was instructed by the expressly approved charge that a reasonable doubt is one that would cause persons “to hesitate to act.” See id.

The defendant further argues that the trial court’s instructions relating a reasonable doubt to the jurors’ own affairs “trivialized” the state’s burden of proof. The defendant’s own request to charge, however, contained identical language. “Ordinarily, action induced by an appellant cannot be a ground for error. State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987).” State v. Turner, supra, 272. Moreover, it is by now well established that there is nothing unconstitutional about such a charge. State v. Thomas, supra, 120; State v. Theriault, supra, 508-509; State v. Lamme, 19 Conn. App. 594, 607-608, 563 A.2d 1372 (1989), aff’d, 216 Conn. 172, 579 A.2d 484 (1990). “ ‘[Wjhere no constitutional rights are violated, when an accused requests in writing that an issue be submitted to the jury, he cannot, on appeal, claim error in its submission.’ . . .” (Citation omitted.) State v. Turner, supra, 272.

Another of the defendant’s challenges is to that part of the jury instructions that stated a reasonable doubt had to be one for which the jurors could assign a reason. As even the defendant concedes, similar claims have been soundly rejected in this state. See State v. Thomas, supra; 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); State v. Leecan, 198 Conn. 517, 538, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Theriault, supra; State v. Dennison, 24 Conn. App. 27, 34, 585 A.2d 1240, cert. granted, 219 Conn. 901, 593 A.2d 131 (1991). No further discussion, therefore, is warranted with respect to this claim.

The defendant also challenges the trial court’s two inference instruction. He claims that it diluted the state’s burden of proof, as well as undermined the presumption of innocence. The defendant relies on federal analyses of such an instruction as found in United States v. Khan, 821 F.2d 90, 93 (2d Cir. 1987), and United States v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989), which prohibit the use of such an instruction.

A two inference instruction is one that tells the jury that if all, or part, of the evidence is capable of two reasonable interpretations, one of which is consistent with innocence and the other is consistent with guilt, then the jury must adopt the inference that is consistent with innocence. In State v. Dyson, 217 Conn. 498, 504, 586 A.2d 610 (1991), our Supreme Court held that such an instruction served to benefit the defendant, and did not diminish the state’s burden where the charge as a whole correctly charged the jury regarding the state’s burden of proof. The court noted that “such an instruction that principally serves to benefit the defendant is proper under our case law.” Id.; see also State v. Smith, 219 Conn. 160, 166, 592 A.2d 382 (1991). In fact, this court has previously held that such an instruction, when given in relation to a single piece of circumstantial evidence, which is susceptible of the two inferences, is too favorable to the defendant, and the jury should not be given the instruction. State v. Dumlao, 3 Conn. App. 607, 618-19, 491 A.2d 404 (1985). We conclude that the two inference instruction given in this case did not undermine the presumption of innocence or dilute the state’s burden of proof.

III

The defendant’s third claim is that the trial court improperly charged the jury on the use of circumstantial evidence. With respect to circumstantial evidence, the trial court instructed the jurors that they “must be satisfied that the basic facts from which you are asked to draw the inference have been proved beyond a reasonable doubt. If and only if you find the basic facts have been proven beyond a reasonable doubt may you go on to consider whether you should make the inference or draw the inference.” The defendant claims that this instruction failed to differentiate between evidence produced by the state and evidence produced by the defendant, and that the defendant too could rely on circumstantial evidence. The defendant argues, therefore, that the trial court improperly imposed on the defendant a “beyond reasonable doubt” burden of proof with respect to proof by circumstantial evidence. “Although the defendant failed to request a charge on this issue or to object to the charge as given . . . such a claim is reviewable under [Evans and Golding ].” State v. Mercer, 208 Conn. 52, 72, 554 A.2d 611 (1988).

Initially, it must be determined whether we should inspect the court’s circumstantial evidence instruction in isolation from the remainder of the charge. The defendant argues that the principal issue in this case was intent, and that therefore this method of analysis is appropriate. “Such exacting scrutiny is reserved [however] for cases presenting these factors in combination with an improper suggestion to the jury that the state’s burden of proof is something less than the ‘beyond a reasonable doubt’ standard.” State v. Ortiz, 217 Conn. 648, 666, 588 A.2d 127 (1991); see, e.g., State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985); State v. Dunn, 26 Conn. App. 114, 598 A.2d 658 (1991). Conversely, if the jury was properly instructed that the state had to prove all essential elements of the crime charged beyond a reasonable doubt, then we will not deviate from traditional analysis of challenges to jury instructions. State v. Ortiz, supra. In such a case, we will examine the trial court’s circumstantial evidence instruction in the context of the charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. State v. Ortiz, supra; State v. Mercer, 200 Conn. 52, 73, 544 A.2d 611 (1988).

In Ortiz, the court was faced with a similar instruction and challenge to it in the context of an intoxication defense. In rejecting the defendant’s claim, the court noted that “the court separately and comprehensively instructed the jury on the role of intoxication in the case, at no time suggesting that the defendant’s circumstantial evidence of his intoxication should be ignored unless it satisfied the ‘beyond reasonable doubt’ standard distinctly set forth as applicable to the state.” Id., 667-68. The court concluded that the jury could not have been misled to apply the reasonable doubt standard to the defendant’s circumstantial evidence of his intoxication. Id. The court further concluded that if a separate instruction had been given, namely, that the defendant could rely on circumstantial evidence to establish his defense, that instruction itself could confuse and mislead, the jury. Id.

Although the defendant here presented a defense of self-defense, and not intoxication, the analysis required is the same as in Ortiz. The trial court separately and comprehensively instructed the jury on the role of the defendant’s self-defense claim in this case. At no time did the court suggest that the defendant’s circumstantial evidence of his self-defense should be ignored unless it satisfied the “beyond reasonable doubt” standard distinctly set forth as applicable to the state. Cf. State v. Dunn, supra. Therefore, we conclude that the instruction on circumstantial evidence, as given, was sufficient, and that it is not reasonably possible that the jury was misled.

IV

The defendant’s final claim is that the trial court impermissibly restricted the presentation of his defense by prohibiting him from questioning defense witnesses as to whether they were aware of the defendant’s reasons for carrying a gun, and by prohibiting him from rehabilitating the witnesses on this point after the state’s cross-examination. Additional facts must first be set forth in order to address this claim adequately.

The defendant relied exclusively on the defense of self-defense. In support of this defense, the defendant sought to introduce evidence regarding his reasons for carrying an unlicensed firearm outside his home. According to the defendant’s testimony at trial, in 1981 he and his wife were assaulted in their backyard. The defendant further testified that the assailants continually threatened the defendant and his family, and, fearing for their safety, the defendant purchased the gun in question. He failed to obtain a license for it because he claimed that the application was too complicated for him to fill out.

Another incident that the defendant sought to present to the jury in support of his self-defense claim occurred in 1986. On this occasion, the defendant’s daughter and her friend were assaulted about a block away from the defendant’s home. Both of the girls’ jackets were stolen during the incident. The defendant called the friend to the stand to describe this incident and to describe the defendant’s reaction to it. She also testified as a character witness for the defendant.

The defendant took the stand and testified concerning his reason for carrying the gun, specifically relating the 1981 incident. He stated that on the night in question he had not specifically armed himself for a confrontation, but rather he simply had the gun in his jacket pocket, as was his custom. He further testified that he used the gun against the victim only after the victim had grabbed him and had choked him, at which time the defendant had feared for his life.

In further support of his defense, the defendant also presented several character witnesses, each of whom testified concerning his or her opinion of the defendant, as well as his reputation in the community for being a truthful and nonviolent person. The defendant unsuccessfully sought to question the witnesses as to whether they were aware of the defendant’s reason for carrying a gun. The defendant also sought, without success, to question on direct examination his daughter’s friend concerning the 1986 incident.

Although the trial court permitted the defendant himself to testify concerning the 1981 incident and its relation to his carrying a gun, the trial court prohibited the defendant from questioning his character witnesses on this point on direct examination. The defendant argued that such testimony was relevant, critical to his defense, and came under the state of mind exception to the hearsay rule. The trial court ruled, however, that each witness lacked personal knowledge of the incident, would testify based on impermissible hearsay, and that the incident was of little relevance to the self-defense claim itself because of the remoteness in time.

On cross-examination of the character witnesses, the state attempted to impeach each witness by asking whether, in his or her opinion, a peaceful, nonviolent person would carry a gun. Two of the witnesses responded affirmatively, and two responded negatively. The state did not give any of them an opportunity to explain their answers. The defendant then sought to rehabilitate each witness on redirect examination by asking whether he or she was aware of the defendant’s reasons for carrying a gun. The trial court again prohibited such questioning despite the defendant’s argument that the state, on cross-examination, had “opened the door” to this line of questioning. The defendant properly preserved his claim.

“ ‘[N]o precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to reason and judicial experience.’ ” State v. Delgado, 8 Conn. App. 273, 281, 513 A.2d 701 (1986); State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986). “In each case, we recognize that it is the trial court which is in the best position to view the evidence in the context of the case as a whole, and its rulings on the admissibility of evidence are given great deference.” State v. Delgado, supra. “ ‘On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, in exercising its broad discretion, the trial court could legally act as it did, and not whether we, under the same circumstances, would make the same ruling.’ ” State v. Delgado, supra; State v. Aspinall, supra. “The trial court’s ruling on the admissibility of evidence will not be reversed unless there has been an abuse of discretion or an injustice done.” State v. Wynter, 19 Conn. App. 654, 662, 564 A.2d 296, cert. denied, 213 Conn. 802, 567 A.2d 834 (1989).

The incidents in this case were remote in time from the actual shooting in question. Both prior incidents in no way involved the victim. They shed little, if any, light on the defendant’s state of mind at the time he fired his gun into the victim’s chest. Moreover, the jury did hear from the defendant his reasons for carrying the weapon. And finally, only two of the four character witnesses responded negatively to the state’s question on cross-examination.

Although “[o]ut of court statements to a person are admissible to show [the defendant’s] state of mind where his mental state is relevant”; State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988); “ ‘ “[i]t is a reasonable exercise of judicial discretion to exclude questions which would introduce issues foreign to the case; State v. Dortch, 139 Conn. 317, 325, 93 A.2d 490 [1952]; or evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case. State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473 [1964].” State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969).' ” State v. Ruffin, 206 Conn. 678, 683-84, 539 A.2d 144 (1988). The trial court did not abuse its discretion.

The judgment of conviction of manslaughter with a firearm in violation of General Statutes § 53a-55a is reversed and the case is remanded to the trial court with direction to render a judgment of acquittal on that charge, and to render a judgment of conviction of manslaughter in violation of General Statutes § 53a-55 (a) (1), and to resentence the defendant in accordance with that conviction. The judgment of conviction of assault in the third degree is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53a-55a (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm.”
      General Statutes § 53a-55 (a) provides in pertinent 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 . . . .”

       This is not a situation similar to that found in State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, U.S. , 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). In Chieano the court was faced with the question of the proper procedural form of remand after the defendant successfully appealed multiple convictions on double jeopardy grounds. Here, in contrast, we are dealing with the proper procedural form of remand in a case where no double jeopardy concerns are implicated.

        United States v. Kahn, 821 F.2d 90, 93 (2d Cir. 1987), and United States v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989), the Second Circuit Court of Appeals disapproved use of the “two inference” instruction because it suggests that a preponderance of the evidence standard is relevant when it is not. In both cases, however, the court concluded that use of the instruction did not require reversal of the defendant’s conviction. State v. Dyson, 217 Conn. 498, 504, 586 A.2d 610 (1991), decided sites Kahn and Attanasio, considered the propriety of use of the same instruction and concluded that the state’s burden of proof was not diluted.


text:
    State of Connecticut v. Lawrence Smith
    (9537)
    Dupont, C. J., Norcott and Heiman, Js.
    Argued October 1
    decision released December 24, 1991

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

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was convicted of larceny in the first degree in violation of General Statutes § 53a-122 (a) (3), conspiracy to commit larceny in the first degree in violation of §§ 53a-48 (a) and 53a-122 (a) (3), three counts of larceny in the second degree in violation of § 53a-123 (a) (1), and two counts of larceny in the third degree in violation of § 53a-124 (a) (1). The defendant claims that the trial court improperly instructed the jury as to (1) the meaning of proof beyond a reasonable doubt, (2) the defendant’s right to a unanimous verdict, and (3) the standard of proof applicable to inferences to be drawn from circumstantial evidence. We affirm the judgments of conviction.

The facts in this case are undisputed. The defendant was charged in connection with his sale of six stolen automobiles to undercover police officers who were conducting a sting operation. Each transaction was videotaped, and the tapes were viewed by the jury at trial. The defendant testified on his own behalf. His defense was that he intended to sell the stolen property to the undercover officers because he knew the vehicles would then be restored to their rightful owners. The jury was unpersuaded by his defense.

I

The defendant’s first claim is that the trial court improperly instructed the jury as to the meaning of proof beyond a reasonable doubt. In its instructions to the jury on reasonable doubt, the trial court stated: “You can arrive at the real meaning of [reasonable doubt] by emphasizing the word reasonable. A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or a surmise. It is not a conjecture or a fanciful doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts nor is it a doubt suggested by the ingenuity of counsel, which is not warranted in the evidence. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or in the lack of evidence. It is such doubt as in the serious affairs which concern you in your everyday life, you would pay some strict attention to.” The defendant argues that the “valid reason” language, together with the last sentence of the instructions on reasonable doubt, violated his constitutional right not to be convicted except upon proof beyond a reasonable doubt because the challenged language diluted the state’s burden of proof, and shifted the burden of proof to him.

The defendant asks us to review this claim notwithstanding the fact that he requested almost identical language in his request to charge, and despite the fact that he failed to object or except to the challenged instruction. The defendant seeks review of this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, alternatively, under Practice Book § 4185. Because no clear constitutional violation exists, we decline to review this claim. See State v. Thomas, 214 Conn. 118, 120, 570 A.2d 1123 (1990).

The defendant urges us, however, to reconsider the conclusion in Thomas that the challenged instruction, which was identical to the instruction here, did not create a clear constitutional deprivation, in light of a recent United States Supreme Court decision, Cage v. Louisiana, 498 U.S. , 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990). We conclude that Cage would have no effect on the holding as stated in Thomas and as applied here. Cage involved a very bare-bones instruction on reasonable doubt. In reversing the defendant’s conviction on the basis of the jury instruction regarding reasonable doubt, that court held that the words “substantial” and “grave,” considered in reference to “moral certainty,” suggest a higher degree of doubt than is required for acquittal by the due process clause. Id., 329. The language challenged by the defendant in this case is in no way similar to that condemned in Cage. Thus, Cage does not require a reconsideration of the holding in Thomas, nor is the claim worthy of plain error review under Practice Book § 4185. The alleged error did not affect the fairness and integrity of the proceeding, nor did it result in an unreliable verdict or a manifest injustice to the defendant.

II

The defendant’s second claim is that the trial court violated his constitutional right to a unanimous jury verdict because of its failure specifically to instruct the jury that it must unanimously determine which of the particular acts of larceny he committed, i.e., receiving, retaining or disposing of stolen property. The defendant neither requested a specific unanimous verdict instruction nor objected to the failure of the trial court to give one. “A claim bearing on the defendant’s right to a unanimous verdict implicates a fundamental constitutional right to a fair trial and is thus reviewable despite the defendant’s failure to request a specific unanimity charge or to take proper exceptions.” State v. Famiglietti, 219 Conn. 605, 619, 595 A.2d 306 (1991).

The trial court instructed the jury in pertinent part: “The state must have proven that the defendant received, retained or disposed of the stolen property. The connecting word or is used so that the evidence upon this element of the crime would be sufficient if it proved that the defendant received or retained or disposed of the property.” It also instructed the jury: “Remember that your verdict must be unanimous. It has to be agreed to by everyone.”

A specific unanimity charge is not required in every case in which criminal liability may be premised on the violation of one of several alternative subsections of a statute. State v. Famiglietti, supra. Upon review of a trial court’s failure to give such an instruction, “[w]e first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter.” Id., 619.

In this case, the defendant has failed to demonstrate how the instructions as given sanctioned a nonunanimous verdict. In fact, the language contained in the instructions quoted previously suggests just the opposite. Therefore, the defendant cannot prevail on this claim.

Ill

The defendant’s final claim is that the trial court improperly instructed the jury on circumstantial evidence. He argues that the charge prevented the jury from drawing relevant defense inferences specifically related to his intent, unless the jurors found the underlying facts proven beyond a reasonable doubt. He concludes that such an instruction diluted the state’s burden of proof, thereby violating his constitutional right to be convicted only on proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he was charged. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The defendant failed to preserve this claim properly but seeks review under State v. Golding, supra. The defendant cannot prevail on this claim because he cannot show that “the alleged constitutional violation . . . clearly exists and . . . clearly deprived the defendant of a fair trial.” Id., 240; State v. Ortiz, 217 Conn. 648, 666, 588 A.2d 127 (1991).

We have recently considered a similar claim in State v. Falcon, 26 Conn. App. 259, 600 A.2d 1364 (1991). In Falcon, we reviewed the instruction as a whole, not just the circumstantial evidence instruction in isolation from the remainder of the charge, because, even though the principal issue in the case was intent, there was no improper suggestion to the jury that the state’s burden of proof is something less than beyond a reasonable doubt. State v. Falcon, supra, 273; compare State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986) (improper suggestion regarding reasonable doubt and therefore review of circumstantial evidence instruction in isolation where principal issue is intent).

The analysis used in Ortiz and Falcon controls in this case, and, therefore, our review is limited to a determination of whether “it is reasonably possible that the instruction misled the jury.” State v. Falcon, supra, 274. The trial court reminded the jury on several occasions during its instructions that it had to find each element of the crime proved beyond a reasonable doubt, including the defendant’s intent. The trial court instructed the jury on the role of the defendant’s “lack of intent” defense in this case. At no time did the trial court suggest that the defendant’s circumstantial evidence in his defense should be ignored unless it satisfied the “beyond reasonable doubt” standard distinctly set forth as applicable to the state.

Furthermore, we note that a separate instruction that the defendant could rely upon circumstantial evidence to establish his defense “could . . . have misled the jury to believe that if [the defendant] did not sufficiently ‘establish’ his [defense], he could not be acquitted on the basis of a reasonable doubt growing from any perceived inadequacy in the state’s proof.” State v. Ortiz, supra, 668; State v. Falcon, supra. Therefore, we conclude that the instruction on circumstantial evidence, in the context of the jury charge as a whole, is sufficient and it is not reasonably possible that the jury was misled.

The judgment is affirmed.

In this opinion the other judges concurred.

       With respect to the meaning of “proof beyond a reasonable doubt,” the defendant, by written motion, requested that the following instruction be given: “You can arrive at the real meaning of [reasonable doubt] by emphasizing the word ‘reasonable.’ A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or surmise. It is not a conjecture or fanciful doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts. Nor is it a doubt suggested by the ingenuity of counsel or any of the jurors, which is not justified by the evidence or lack of evidence. A reasonable doubt is a doubt based on reason and not on the mere possibility of innocence. It is a doubt for which you can, in your own mind, conscientiously give a reason. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence. It is a doubt which, in the serious affairs which concern you, in every day life, you would pay heed and attention to.”

       We note at the outset that “[o]rdinarily, action induced by an appellant cannot be a ground for error. State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987).” State v. Turner, 24 Conn. App. 264, 272, 587 A.2d 1050 (1991). It seems disingenuous, however, for the defendant to claim that the trial court committed error by instructing the jury “when he requested an instruction on that very issue. At least, where no constitutional rights are violated, when an accused requests in writing that an issue be submitted to the jury, he cannot, on appeal, claim error in its submission.” State v. Turner, supra.

       In Cage, the jury was instructed that “ ‘[i]t must be such doubt as would give rise to a grave uncertainty . . . . It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.’ ” Cage v. Louisiana, 498 U.S. , 111 S. Ct. 328, 329, 112 L. Ed. 2d 339 (1990).

       Regarding circumstantial evidence, the trial court instructed the jury, in pertinent part, as follows: “In fact, proof by circumstantial evidence may be as conclusive as would be the testimony of witnesses speaking on their own observations. Of course, in passing upon the guilt of an accused person on the basis of circumstantial evidence, you must be satisfied that the basic facts from which you are asked to draw the inference has been proven beyond a reasonable doubt. If and only if you find the basic facts have been proven beyond a reasonable doubt may you go on to consider whether you should make the inference. Also, the inference must be reasonable and logical and not the result of speculation or conjecture. You must also be satisfied that the fact to be proven has been proven beyond a reasonable doubt.”


text:
    State of Connecticut v. Nelson Kari
    (9199)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued September 23
    decision released December 24, 1991

      John R. Williams, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Margaret Luchansky, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of unlawful removal or alteration of records in violation of General Statutes § 53-153. The same jury acquitted the defendant of two counts of tampering with or fabricating physical evidence in violation of General Statutes § 53a-155. On appeal, the defendant claims that the trial court improperly admitted his incriminating statement into evidence and improperly denied his motions for judgment of acquittal. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. In 1986, the defendant was hired as the business manager of the Wallingford board of education. At that time, the board’s business office wanted to upgrade its computer system. The defendant subsequently entered into negotiations for the purchase of Hewlett Packard computer software and hardware. On January 22, 1988, the defendant signed a $134,991.72 contract (January contract) for the purchase of the Hewlett Packard computer system. The defendant, however, had no authority to enter into and sign contracts on behalf of the board. Only the superintendent of schools had such authority. Nor did the defendant have authority to purchase supplies and equipment, this authority being vested solely in the town purchasing agent. Moreover, Wallingford’s charter requires that all purchases in excess of $2000 go to public bid. The town council has authority to waive the public bid requirement if it determines that such a waiver is in the town’s best interest. The board requested such a waiver for this purchase from the town council. While the waiver request was pending, the council learned of the computer equipment’s arrival at the board’s offices despite the fact that a bid waiver had not yet been granted.

At a May 24, 1988 meeting, the council asked the superintendent if he had already signed a contract for the purchase. The superintendent replied, “No.” When the defendant was asked if he had signed such a contract, the defendant lied in responding, “No.” At this meeting, the council denied the board’s request for a bid waiver. A proper bidding procedure was then initiated by the purchasing agent and the superintendent of schools. A second contract (August contract) with Hewlett Packard was then signed by the superintendent in August, 1988.

In September of 1988, a town council subcommittee complained to the police and to the chief state’s attorney’s office regarding possible criminal violations in the contract letting procedure. As part of their investigation, the Wallingford police executed a search warrant at the board’s business offices. The August contract, together with invoices pertaining thereto, was located but, with three minor exceptions, the January contract and associated papers could not be found. On April 11, 1989, the defendant admitted to the police that he had thrown out the January contract, together with its invoices and all documentation used to support the application for the bid waiver and the specifications for the bid.

The defendant raises two issues in this appeal. First, he claims that the trial court improperly admitted into evidence an incriminating statement made by him to a police officer. Second, the defendant argues that the trial court improperly denied his motions for judgment of acquittal.

As part of its case-in-chief, the state offered the testimony of a police lieutenant concerning statements made to him by the defendant. The gravamen of these statements was an admission that the defendant had thrown out the documents related to the January contract. The defendant objected to the admission into evidence of these statements on the ground that the state had failed to establish the corpus delicti of the crime of unlawful removal or alteration of records. The trial court disagreed and admitted the inculpatory statements into evidence.

The corpus delicti rule is fundamental jurisprudence to the effect that a person accused of a crime cannot be convicted solely on his own naked confession unsupported by corroborative evidence. State v. Harris, 215 Conn. 189, 192, 575 A.2d 223 (1990). The purpose of the corpus delicti rule is to prevent convictions for nonexistent crimes based on untrue confessions. State v. Arnold, 201 Conn. 276, 287, 514 A.2d 330 (1986). Accordingly, before the state may introduce a defendant’s confession into evidence, the state must introduce corroborative evidence, direct or circumstantial, that taken together with the confession, establishes the corpus delicti. State v. Comollo, 21 Conn. App. 210, 216-17, 572 A.2d 1037, cert. denied, 215 Conn. 811, 576 A.2d 542 (1990).

The corpus delicti rule was liberalized in Connecticut in State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). “[T]he significant effect of State v. Tillman, supra, was to eliminate the requirement of proof of criminality as an element of corpus delecti.” State v. Pena, 1 Conn. App. 344, 348, 471 A.2d 972 (1984). For a defendant’s inculpatory statements to be admissible, the state is required to show only the occurrence of the injury or loss contemplated in the crime. State v. Ruth, 181 Conn. 187, 198, 435 A.2d 3 (1980). It is not necessary to show that the injury or loss occurred as a result of some person’s criminal act. For example, in a homicide prosecution, the corpus delicti is the fact that a death occurred without any requirement that the death be feloniously caused. State v. Tillman, supra. Thus, the corpus delicti in the present case is the taking away, mutilation or destruction of records without a showing that a criminal act caused such taking away, mutilation or destruction. The state’s burden to establish a prima facie case is one of production not persuasion. The corpus delicti does not have to be established beyond a reasonable doubt, or even by a preponderance of the evidence. Smith v. United States, 348 U.S. 147, 156, 75 S. Ct. 194, 99 L. Ed. 192 (1954); see also State v. Harris, supra, 194-95.

Circumstantial evidence is sufficient to establish a corpus delicti. State v. Harris, supra, 193. In this case, the state claims to have presented the following corroborative circumstantial evidence: the testimony of a Hewlett Packard salesman that the defendant signed the January contract; the introduction into evidence of a copy of the contract as an exhibit and evidence that Hewlett Packard shipped the computer equipment to the board; the testimony of the chairman of the board that all documents relating to purchases were stored at the board’s business office; and the testimony of a Wallingford police officer, who had executed the search warrant, that he could not find the January contract in the defendant’s office but that he found three minor documents relating to it.

In light of the foregoing, the trial court correctly concluded that the corpus delicti had been established and allowed the defendant’s statements into evidence. Thus, the trial court properly denied the defendant’s motion for judgment of acquittal made at the close of the state’s case.

Assuming arguendo that the trial court had erroneously concluded that the corpus delicti had been established, we would nevertheless reach the same result. The defendant’s principal argument on the corpus delicti issue was that in its case-in-chief the state failed to show that the January contract had ever been in the board’s files and, consequently, that he was entitled to a judgment of acquittal at the close of the state’s case. After the state rested, the defendant filed a motion for judgment of acquittal, which was denied. The defendant then testified in his own defense and admitted that he had removed the January contract from the board’s files and destroyed it. Because the defendant’s testimony came after the denial of his motion for judgment of acquittal, the waiver rule precludes him from raising this claim on appeal. “Under the waiver rule, when a motion for acquittal at the close of the state’s case is denied, a defendant may not secure appellate review of the trial court’s ruling without foregoing the right to put on evidence in his or her own behalf. The defendant’s sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state’s evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto.” State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984); see also State v. Ziemba, 19 Conn. App. 554, 559 n.3, 563 A.2d 716 (1989).

In his brief, the defendant concedes that “[a]ll of this evidence [including his own testimony], taken together, showed beyond a reasonable doubt that there was a record or document in the possession or control of the Wallingford Board of Education and that such record or document within the time period established by the substitute information was taken away or destroyed by the defendant and that he did so intentionally.” Despite this concession, the defendant contends that the state did not prove its case beyond a reasonable doubt because it did not prove that the defendant acted corruptly. State v. Cataudella, 159 Conn. 544, 552, 271 A.2d 99 (1970). As used in General Statutes § 53-155 “corruptly” means having acted with “a dishonest purpose.” Simmons v. Budds, 165 Conn. 507, 514-15, 338 A.2d 479 (1973), cert. denied, 416 U.S. 940, 94 S. Ct. 1943, 40 L. Ed. 2d 291 (1974). This requires a determination of the defendant’s state of mind which generally must be based on circumstantial evidence because direct evidence of a defendant’s state of mind is rarely available. State v. Carpenter, 214 Conn. 77, 83, 570 A.2d 203 (1990).

In the present case, the defendant admitted that he had lied to the town council about signing the January contract. This lie permitted a reasonable inference that the defendant destroyed the contract for the dishonest purpose of covering up his unauthorized conduct. This inference was sufficient to support a finding that the defendant acted corruptly. Thus, the trial court properly denied his motion for a judgment of acquittal made after the presentation of all the evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-153 provides in pertinent part: “Any person who, wilfully and corruptly, takes away, alters, mutilates or destroys any book, record, document, archive or other property in the possession or custody or under the control of any institution, board, commission, department or officer of the state or any county or municipality or court . . . shall be imprisoned not more than ten years.”

       The three documents found in the office were (1) a handwritten note that said payment was due on May 1, 1988, (2) a handwritten note on line paper referring to GSA number GSOOK8AG55902 relative to the lease from Hewlett Packard due May 1,1988, and (3) a Hewlett Packard software certificate license of use dated March 24, 1988.

       In State v. Harris, 215 Conn. 189, 193-96, 575 A.2d 223 (1990), the court further liberalized the corpus delicti rule “when the crime charged prohibits certain conduct but does not encompass a specific harm, loss or injury. . . .” This further liberalization, however, is not implicated in the present case.

       See footnote 2, supra.