author: Hull, J.

text:
    Robert S. Staudinger, Sr., Administrator (Estate of Robert S. Staudinger, Jr.) v. Peter Barrett et al.
    (13351)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued April 7
    decision released June 28, 1988

      Richard A. Fuchs, with whom was Bernard Pitterman, for the appellant (plaintiff).

      Arnold J. Bai, with whom, on the brief, were Garie J. Mulcahey and Donna M. Lattarulo, for the appellees (defendants).
   Hull, J.

The plaintiff, Robert S. Staudinger, Sr., brought this action as administrator of the estate of his son, Robert S. Staudinger, Jr., to recover damages for wrongful death due to the alleged negligence of the defendants, Peter Barrett, Roger Connor, John Basile and the town of Bethel. The plaintiff claimed that the one vehicle accident in which his son died was caused by the high speed pursuit by Bethel Police detectives, Barrett and Connor, of the vehicle his son was driving. The jury returned a general verdict for the defendants, the plaintiff having failed to request that interrogatories be submitted to the jury. The plaintiff appeals from the judgment on the verdict, claiming that the trial court erred (1) in refusing to charge the jury that a violation of the Bethel police department’s policy governing high speed automobile chases was negligence per se, and (2) in denying the plaintiff’s motion for a directed verdict on the defendants’ special defense of contributory negligence. Because of the general verdict rule we find no error.

The material facts of this tragic accident are not in dispute. On the evening of September 10,1982, shortly before 9:50 p.m., Barrett and Connor were on patrol in an unmarked police car. Barrett was driving. They were proceeding west on route 6 in Bethel when Barrett noticed a maroon Chevrolet El Camino traveling east on the same road. An El Camino is a vehicle that has a cab like the front of a passenger car and a cargo area like a pickup truck. Barrett observed that there were some teenaged boys riding in the cargo area and hanging over the sides. He did not see the driver. He made a u-turn to follow the El Camino so he could issue a warning to the driver to keep his passengers inside the vehicle or to stop them from moving around. Before Barrett reached the other car, it made a u-turn, proceeded west on route 6 and entered a shopping plaza. Barrett followed. The El Camino continued to the area behind the stores. When it did not reappear, Barrett drove the police car to the rear of the stores from the opposite direction. He stopped the car about fifty feet from the El Camino. Connor engaged a red flashing light and placed it on the dashboard while Barrett turned on the car’s red grill lights and switched the siren on and off several times. At that point, the El Camino abruptly drove toward the police vehicle, swerved and almost hit it. It then traveled over a grassy area and sped out of the parking lot.

Barrett pursued the El Camino through Bethel and into Newtown, over a distance of five miles. During the chase, both cars attained speeds as high as seventy to seventy-five miles per hour and, at all times, were traveling well above the posted speed limits. In addition to speeding, the El Camino crossed solid lines, passed other vehicles in no passing zones and went through a stop sign and a red light.

About halfway through the chase, Connor was able to read the El Camino’s license plate number. He radioed the number to the dispatcher at the Bethel police department. Before the El Camino crashed, the dispatcher had obtained the name and address of the car’s owner and had determined that it had not been reported stolen. She was instructed by another police officer that she should wait for Connor or Barrett to request this information. Neither officer asked for it, thus, she never transmitted it to them.

Further on, the El Camino stopped at an intersection and the police car pulled alongside it on the left. Connor attempted to get out of the car but the El Camino drove toward it and Barrett had to back up the police car to avoid a collision. The El Camino again fled and Barrett resumed the pursuit. Finally, the vehicles turned south on Hattertown Road in Newtown. Hattertown Road is straight for about one quarter mile and then becomes hilly and winding. Both vehicles were traveling at fifty to fifty-five miles per hour; Barrett believed that the posted speed limit was twenty-five miles per hour. Barrett estimated that, on Hattertown Road, he never got closer to the El Camino than 90 to 100 feet, although, according to two witnesses, the two vehicles were seen on Hattertown Road to be only one or two car lengths apart. Because Barrett lost sight of the El Camino, he did not see the accident. The El Camino had rounded a curve and struck a rock outcropping on the shoulder of the road, then careened across the road striking a utility pole and a stone wall before coming to rest. The crash killed the plaintiff s decedent, who was driving the car, and the three boys who were riding in the cargo area. There were two other boys riding in the passenger compartment with the driver. One was seriously injured and the other sustained only minor injuries.

At the time these events occurred, the Bethel police department had in place a policy governing high speed automobile chases. Under its guidelines, such chases were discouraged unless absolutely necessary and were not to be predicated on misdemeanors or on motor vehicle violations except driving under the influence or evading responsibility with respect to an automobile accident in which serious physical injuries had been sustained. High speed pursuits were permitted in situations involving dangerous felonies. Such pursuits were to be avoided unless the police officer considered the person pursued to be such a clear and present danger to others as to offset the danger created by the speeding vehicles. Further, a high speed chase was to be terminated when the risk of accident surpassed the possibility of apprehending the person pursued.

The plaintiff brought this action alleging that the defendants Barrett and Connor had violated the Bethel police department’s policy governing high speed chases, both in initiating the pursuit and in continuing it; that the defendant Bethel police chief, John Basile, was negligent in supervising his police officers and in enforcing the high speed pursuit policy; and that, since the defendants were acting in the scope of their employment, the town of Bethel was liable for their negligence.

The defendants denied they were negligent and, as a special defense, asserted that the proximate cause of the plaintiffs decedent’s death was his own negligence in operating the vehicle after drinking alcoholic beverages and while his ability to drive was impaired, in driving at too high a rate of speed, in driving at excessive speeds to evade the police vehicle, in operating the car recklessly, in failing to keep a proper lookout, in falling to heed the police officers’ warnings, in failing to keep his car under control, in failing to drive in an established lane of travel, in operating the vehicle with inadequate or defective brakes and/or failing to apply the brakes in a timely and proper manner, in refusing to stop or slow his vehicle when asked by the police to do so and in violating General Statutes §§ 14-218a (traveling unreasonably fast), 14-230 (vehicle to be driven in the right hand lane), 14-219 (speeding), 14-235 (vehicle not to be driven on left side of highway on curve or upgrade) and 14-222 (reckless driving).

The jury returned a general verdict for the defendants. The plaintiff on appeal claims that the verdict was in error in one of two respects: either because the trial court erred in its charge on the chase policy or because it erred in refusing to direct a verdict with respect to contributory negligence. The defendants argue, and the plaintiff concedes, that, under the general verdict rule, if either of the plaintiff’s grounds for appeal is found by this court to be unmeritorious, then the general verdict must stand.

The general verdict rule provides that where the jury renders a verdict for one party and no party requests interrogatories, we presume that the jury found every issue in favor of the prevailing party. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987). This rule applies whenever a verdict for one party could reasonably have been rendered on one or more distinct causes of action or distinct defenses. Id. The defendants’ denial of negligence and their allegations of contributory negligence constitute two discrete defenses, either of which could have supported the jury’s general verdict. Stone v. Bastarache, 188 Conn. 201, 205, 449 A.2d 142 (1982). The verdict might have been predicated on the defendants’ freedom from negligence or on the plaintiff’s comparatively greater negligence. Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981). In light of the plaintiff’s failure to request interrogatories to ascertain the basis of the jury’s verdict, we must uphold it, under the general verdict rule, if either defense is legally supportable. Id. Further, if the trial court’s instructions to the jury are shown to be proper and adequate as to any of the defenses raised, the general verdict must stand, regardless of error, if any, in the charge as to any other defense. Stone v. Bastarache, supra; Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951).

The plaintiff had requested that the trial court charge the jury that violation of the Bethel police department’s high speed chase policy was negligence per se. The court denied the request and instructed the jury that it could consider such violation, if any, evidence of negligence. The plaintiff contends that the trial court’s failure to instruct the jury as requested was prejudicial error.

The doctrine of negligence per se serves to superimpose a legislatively prescribed standard of care on the general standard of care. Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 178, 439 A.2d 954 (1981). To establish negligence in a negligence per se case, the jury need only decide whether the defendant violated the relevant statute or regulation. Id.; Citerella v. United Illuminating Co., 158 Conn. 600, 607-608, 266 A.2d 382 (1969); Essam v. New York, N.H. & H. R. Co., 140 Conn. 319, 324, 99 A.2d 138 (1953).

General Statutes § 14-283a (b),* ** enacted in 1978, mandates that the police department of each municipality adopt a high speed pursuit policy establishing allowable driving, support and other police tactics. The plaintiff argues that the Bethel policy was adopted to comply with the legislature’s command and thus has the force of a statute, the violation of which requires a jury instruction on the doctrine of negligence per se. The defendants counter that the policy, which was written by former police chief Richard Carlo in 1977, was merely reviewed by the defendant Basile in 1978. They maintain that the policy was not itself a statute, nor was it enacted as a municipal ordinance or promulgated as a regulation and, therefore, does not have the force of law. Accordingly, they argue, its violation does not warrant a negligence per se instruction, and the trial court was correct in instructing the jury that violation of the policy was evidence of negligence.

There was evidence produced to show that the chase policy had been violated. Barrett admitted that his conduct in initiating and continuing a high speed pursuit had been subject to the guidelines enunciated in the Bethel police department policy. He conceded that when he encountered the El Camino in the shopping center, he had not witnessed any motor vehicle violations, had no suspicion that the driver was operating the vehicle under the influence of alcohol or drugs or was evading responsibility for serious injury, and did not suspect that any misdemeanor or dangerous felony had been committed. He asserted that he pursued the El Camino because, in his estimation, it was being driven recklessly as it exited the shopping center and the driver presented a clear and present danger to others on the highway.

Robert DiGrazia, the plaintiffs expert witness on the subject of police pursuits, concurred with Barrett that the decedent’s operation of the El Camino upon leaving the shopping center was reckless. He also testified, however, that, while it was proper for the police to follow the El Camino when it left the shopping center, there existed none of the authorized reasons for initiating a chase at high speed. DiGrazia further stated that once the chase started, Barrett should have continually evaluated the circumstances with reference to the age of the driver, the road conditions, the type of road, the lighting conditions and the speed of the vehicles. He posited that, in view of the lapse of time since Con-nor had transmitted the license plate number to the dispatcher, he should have retrieved the owner information from her, and that possession of such information would have provided an alternative means of tracing and apprehending the driver. DiGrazia asserted that the chase should have been abandoned when the vehicles stopped at the intersection, in light of the driver’s continuing reaction to the approach of the police. He lent particular emphasis to the length of the chase, noting that the longer it continued, the greater the likelihood that an accident would occur.

We consider it reasonably possible that the jury could have found that Barrett had violated the chase policy. Our review of the record, however, discloses no evidence of charter provisions pertaining to Bethel’s procedures for adopting regulations for the police department. Thus, we cannot determine whether the Bethel police department adopted the high speed chase policy within the contemplation of General Statutes § 14-283a (b). Accordingly, we are unable to ascertain, on this record, whether a negligence per se instruction was required. In any event, if the defendants have sufficiently established the decedent’s contributory negligence, then the defendants’ negligence would be irrelevant and any error in the trial court’s instruction on the status of the chase policy would be vitiated.

With respect to the defense of contributory negligence, the plaintiff does not claim error in the court’s instructions, but argues that there was insufficient evidence to present the jury with a question of fact as to the impairment of the decedent’s ability to operate a motor vehicle because of his consumption of alcohol, and the court, therefore, erred in denying the plaintiff’s motion for a directed verdict on this issue. Our review of a trial court’s refusal to direct a verdict requires that we consider the evidence, including the reasonable inferences that may be drawn from it, in the light most favorable to the party who prevailed at trial, giving particular weight to the coincidence of the judgments of the judge and jury, who saw the witnesses and heard the testimony. Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986).

The following evidence pertaining to impairment was adduced at trial. Newtown police officer Henry Stormer testified that, between 7:30 and 8 p.m. on the night of the accident, he stopped at the gas station in Newtown, where the decedent was working, to wash the windows on his patrol car. While there, he saw the decedent with a group of gas station employees and other people and noticed that the decedent was holding a can of beer in his hands.

Joseph Roberto, who was a, passenger in the El Camino at the time of the accident, testified that the decedent had given him money to buy beer and that he had bought two cases of twelve ounce bottles of beer. There were forty-eight bottles in all. Roberto and two of the other teenagers who were later victims of the accident, returned to the gas station with the beer at approximately 7:30 p.m. and put the beer in the cargo area of the El Camino. The three boys each drank one or two beers at the gas station and left, taking some beer with them, having arranged to meet the decedent later. The decedent arrived at the meeting place with fewer bottles of beer than the boys had left in the El Camino. At approximately 9 p.m., the decedent and his friends went to a parking lot where they drank some of the beer. Roberto saw the decedent drink two or three beers. Before the accident occurred, all the beer had been consumed.

Eugene Baron, an accident reconstruction expert who appeared for the defendants, opined that the curve where the accident occurred could have been safely negotiated at a speed in excess of sixty miles per hour by a vehicle in the same class as the El Camino. He estimated that the El Camino had been traveling at approximately fifty-five miles per hour when it struck the rock outcropping. He stated that driver error and inattention caused the car to drift off the road into the rock.

The plaintiff argues that there was no evidence of a causal connection between the decedent’s consumption of alcohol and the accident, no testimony that his ability to drive was impaired by alcohol and no evidence that the decedent had manifested any signs of impairment, such as staggering or slurred speech. He further asserts that Barrett testified that he had no suspicion that the decedent had been driving under the influence of alcohol.

We conclude, however, that the evidence was sufficient to raise a question of fact as to whether the decedent’s ability to drive was impaired by his consumption of alcohol. It was undisputed that the decedent had been drinking beer within one hour before the accident. Whether the decedent’s judgment and concentration might have been affected by his consumption of beer so close to the time of the accident was a matter within the common experience of reasonable persons. We cannot say, as a matter of law, that reasonable minds could not differ as to whether the decedent’s ability to drive was impaired. See Way v. Parent, 179 Conn. 377, 380, 426 A.2d 780 (1979). It was proper, therefore, for the court to have submitted the issue to the jury. Id., 381.

As a consequence of the general verdict rule, we must presume that the jury found for the defendants on the special defense of contributory negligence. Since we find no error in the trial court’s refusal to direct the verdict, we must uphold the verdict, regardless of error, if any, in the court’s charge on the high speed chase policy. See LaFleur v. Farmington River Power Co., 187 Conn. 339, 342-43, 445 A.2d 924 (1982).

There is no error.

In this opinion the other justices concurred.

       Actions for personal injuries and/or wrongful death of the El Camino’s passengers were also brought against the defendants. Of these cases, only the action brought by Joseph Roberto was tried to a verdict, together with the present case. The jury in Roberto’s case returned a verdict in favor of the defendants. Roberto did not file an appeal.

      “BETHEL POLICE DEPARTMENT
      “RICHARD X. CARLO, Chief of Police
      “PLUMTREE RD., BETHEL, CONNECTICUT 06801
      “September 19, 1977
      “TO: All Bethel Police Officers
      “FROM: Chief Richard Carlo
      “RE: DEPARTMENTAL POLICY-
      HIGH SPEED CHASE
      “The following will be considered departmental policy in all cases of a high speed chase:
      • No high speed chase should be encouraged unless absolutely necessary, and then only in compliance with the law.

        • No motor vehicle violation, with the possible exception of driving under the influence or evading responsibility with serious injuries, and no misdemeanors shall be the basis for high speed pursuits.
      • High speed pursuits are allowed only to the extent of the crime involved, and then only when dangerous felonies are involved such as murder, armed robbery, manslaughter, rape, etc.
      • High speed chases are to be avoided unless, in the opinion of the officer, the person being pursued presents such a clear and present danger to others so as to jusify or offset the danger involved from the speeding vehicles. The opinion of the officer as to the need to pursue shall be based upon reasonable and reliable information or knowledge and not on a mere suspicion.
      • All pursuits, regardless of the nature of the crime, shall be conducted with due regard for the safety of all persons and property as required by law. All pursuits will be abandoned when the risk of an accident outweighs the possibility of apprehension.
      “Chief Carlo”

       The court charged the jury as follows: “It is for you, the jurors, to decide whether the conduct of the defendants was reasonable under all the circumstances existing at the time. In making this determination, you must determine whether defendants Mr. Barrett and Mr. Connor acted reasonably with respect to this high-speed pursuit or chase. You may consider the Bethel pursuit policy as evidence of the standard of care to which the defendants] Barrett and Connor should be held. If you do find that the defendants failed to follow the pursuit policy, you may consider that as evidence of negligence. However, even if you find that Barrett or . . . Con-nor failed to follow the policy, that does not mean that such defendant was negligent per se. It is simply evidence for you to consider, along with all the other evidence before you, in determining whether each defendant acted as an ordinarily prudent police officer under the circumstances. If you find that the defendants did act in accordance with the pursuit policy, that is evidence that the defendants acted in accordance with the standard of care required of police officers with respect to the conduct of high speed pursuits. The same—if you find that by the fair preponderance of the evidence proves [sic] that Barrett or Connor or both violated the Bethel high-speed chase policy, then you must determine whether the actions or failure to act were such as a reasonably prudent policeman under the same circumstances would have committed, and if not, that such actions were negligent and, if negligent, then you must determine whether the fair preponderance of the evidence proves that such negligence was a proximate cause—a substantial factor causing the plaintiffs’ injuries and losses. If so, then the plaintiffs are entitled to a verdict against these defendants.”

       “[General Statutes] Sec. 14-283a. PURSUIT DEFINED. POLICY FOR HANDLING high-speed chases to be adopted, (a) As used in this section, ‘pursuit’ refers to an attempt by a police officer in an authorized emergency vehicle to apprehend one or more occupants of another moving motor vehicle, when the driver of the fleeing vehicle is attempting to avoid apprehension by maintaining or increasing his speed or by ignoring the police officer’s attempt to stop him.
      “(b) Each police department in a municipality with an organized police department shall adopt a policy for handling pursuits and the commissioner of public safety shall adopt such a policy for the officers responsible for law enforcement in municipalities in which there is no organized police department, and for all other state police officers. Such policy shall specify which driving, support and other police tactics may be employed in the case of a pursuit. The chief of police or commissioner of public safety, as the case may be, shall inform each officer within his department and each officer responsible for law enforcement in a municipality in which there is no such department of the existence of the policy of pursuit to be employed by any such officer and he shall take whatever measures that are necessary to assure that each such officer understands the pursuit policy established.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Robert Coelho v. Posi-Seal International, Inc.
    (13267)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued April 7
    decision released June 28, 1988

      Jeremy G. Zimmermann, with whom was Thomas J. Flanagan, for the appellant (defendant).

      Gilbert Shasha, for the appellee (plaintiff).
   Shea, J.

The plaintiff, Robert Coelho, alleged in his amended complaint that he had been discharged without just cause by the defendant, Posi-Seal International, Inc. (Posi-Seal), in breach of implied and express employment contracts between them. At the close of its instructions, the trial court provided the jury with a special verdict form on which to answer special interrogatories relating to the allegations of the complaint. The jury returned its verdict on the special verdict form. The jury found the issues for the plaintiff on his implied contract count but found for Posi-Seal on his express contract claim. After denying motions of both parties to set aside the verdict, the court rendered judgment in accordance with the verdict. Posi-Seal has appealed from the judgment. We find no error.

Posi-Seal claims that the trial court erred in refusing to set aside the verdict: (1) when there was insufficient evidence to permit the jury to find (a) that the parties had made an implied agreement that the plaintiff could not be terminated without just cause, (b) that the plaintiff had relied on the implied agreement to his detriment, and (c) that the plaintiff had been terminated without just cause; and (2) when the court had failed to instruct the jury that a termination because of a reduction in force is, as a matter of law, just cause.

From the evidence at trial the jury could reasonably have found the following facts: Posi-Seal is a corporation with its principal office in the town of North Stonington. It manufactures high performance valves for the chemical, petroleum and nuclear industries. In January, 1981, the plaintiff, who was then unemployed, had a job interview with the president of Posi-Seal, Donald Miller. On February 9,1981, the plaintiff commenced employment with Posi-Seal as quality control manager. On January 6,1984, Posi-Seal terminated his employment.

I

Posi-Seal first claims that there was insufficient evidence to permit the jury to find that the parties had made an implied-in-fact agreement that the plaintiff could not be terminated without just cause.

The plaintiffs evidence of an implied-in-fact agreement consisted of his own testimony concerning statements made by Miller, president of Posi-Seal, both prior to and after his employment commenced on February 9, 1981. The plaintiff testified that he had raised his concerns about job security when Miller interviewed him in January, 1981. The plaintiff testified that Miller had made the following statement about job security. “[Posi-Seal is] the General Motors of the fixture. If you come to work with us, you’ll never have to worry. Grow with us into the future. As long as you do your job, you’ll. . . have a good future with us.” The plaintiff further testified that, before he was hired by Posi-Seal, Miller had told him: “Those people that join us now are going to grow with us into the future.”

The plaintiff testified that he had, during this interview with Miller, expressed serious reservations about becoming manager of quality control at Posi-Seal because he believed that there was an inherent conflict between the managers of quality control and of manufacturing about whether to emphasize meeting quality standards or reducing costs. The plaintiff was aware that the previous manager of quality control had recently left Posi-Seal. The plaintiff testified that he had told Miller: “If I’m going to take a job like this, I need to know we’re going to have support from the upper levels of management. That I’m going to have the support that I need to do my job, if you want me to do it.” The plaintiff testified that, in response to his concern that a quality department must have assurances from management in order to function properly, Miller had said: “You’ll get it here.” During the trial, Posi-Seal’s counsel asked the plaintiff: “And you also told him that you wanted to be in a situation where the quality would be backed up with regard to disputes with manufacturing; is that right?” He responded: “I wanted to know that I could properly perform my job.” The next question was: “And he told you that he’d see that the quality was backed up?” The plaintiff answered: “He had no problem in backing me to the hilt.” The next question was: “Is it fair to say that what he responded to your statement of your expectations was, ‘We’ll back up quality, and we believe we’ve got a great future here, and we’re going to go far?’ ” The plaintiff then replied: “I guess that’s what he said. He said, ‘We’ve got a great future here.’ The problem I [have] is with the word ‘believe.’ I don’t believe that . . . at [any] time did Don Miller use the word ‘believe.’ He said, ‘We’ve got a great thing here, we’re growing in the future, and join us, and come with us.’ ”

The plaintiff also testified that, after he had commenced employment with Posi-Seal, Miller further guaranteed him support and job security when the plaintiff had become involved in a dispute with the manager of manufacturing at Posi-Seal. The plaintiff testified: “Time and time again [Miller] said to me, ‘Don’t worry about it. Don’t worry about it. You’re all set. You don’t have to worry. Just do your job. If I’ve got you and [the head of manufacturing] butting heads, then I know you’re doing your job. Don’t worry about it.’ ” In addition, the plaintiff testified that at management meetings Miller would frequently make statements concerning the job security of his management “team,” with the clear implication that the plaintiff was a member of this team. In this regard, the plaintiff testified: “Miller had a habit. . . had a particular set of words that he liked, and at staff meetings he’d slide his back away from the table and say, ‘This is the team.’ He said that time and time again, ‘this is the team.’ And he made references to, ‘This is the team that will take us into the next century. This is the team of the future. This is the team that will carry this company ahead.’ ”

“ ‘A contract implied in fact, like an express contract, depends on actual agreement.’ ” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.2, 520 A.2d 217 (1987); Therrien v. Safeguard, Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957). Accordingly, to prevail on the first count of his complaint, which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that Posi-Seal had “ ‘agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment’ ” to him under which he could not be terminated without just cause. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 212 n.2; Therrien v. Safeguard Mfg. Co., supra, 94-95.

Posi-Seal contends that all of the statements that the plaintiff testified had been made to him were, at most, merely expressions of Miller’s expectations about the future, and were not manifestations of a present intention on the part of the company to undertake contractual obligations to the plaintiff under which he could not be terminated without just cause.

“In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984). The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. Herb v. Kerr, [190 Conn. 136, 139, 459 A.2d 521 (1983)]; Katsetos v. Nolan, [170 Conn. 637, 656, 368 A.2d 172 (1976)]. This is so because ‘[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.’ Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972) .... It is the function of this court to determine whether the trial court abused its discretion in denying [a party’s] motion.” Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).

“Absent a statutory warranty or definitive contract language, the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact. As an inference of fact, it is not reversible [error] unless the [trier of fact] could not reasonably have arrived at the conclusion that it reached.” Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). “This process of inference is peculiarly a jury function, the raison d’etre of the jury system.” Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957).

We need not decide whether there was sufficient evidence to permit the jury to find that the parties had an implied agreement that the plaintiff could not be terminated without just cause under all circumstances. We conclude, however, that sufficient evidence was adduced to allow the jury to find that the parties had an implied agreement that the plaintiff would not be terminated as a result of conflicts between the quality control and manufacturing departments, as long as he performed adequately in his capacity as manager of quality assurance. At argument, Posi-Seal conceded that the plaintiff had a good work record while it employed him and has not claimed there was just cause for his discharge related to job performance.

In summary, the plaintiff testified that during the job interview he had expressed strong reservations to Miller about accepting the position as manager of quality control because he believed that there was an inherent conflict between the quality goals and the cost concerns of manufacturing; that he had been aware that the previous manager of quality control had recently left Posi-Seal; that he had sought assurances that he would be backed up by Miller, if a conflict developed between the quality control and manufacturing departments, and a guarantee that he would not be terminated as a result of such a conflict; and that Miller on several occasions, both before and after the plaintiff commenced employment at Posi-Seal, had indicated that Posi-Seal would support the quality department and would not terminate the plaintiff as a result of conflicts between the quality control and manufacturing departments.

We hold that there was sufficient evidence to permit the jury to find that the parties had an implied agreement that, so long as he performed his job properly, the plaintiff would not be terminated as a result of conflicts between Posi-Seal’s quality control and manufacturing departments, and, therefore, that the court did not err in denying Posi-Seal’s motion to set aside the verdict in this regard.

II

Posi-Seal claims next that there was insufficient evidence to permit the jury to find that the plaintiff had relied on the implied agreement to his detriment and that proof of such reliance was essential.

In his complaint the plaintiff alleged: “In reliance on said implied representation that his employment would not be arbitrarily terminated, the plaintiff acted in reasonable and significant reliance on the representation in one or more of the following ways: (a) plaintiff rejected other substantial employment offers in favor of accepting the subject employment; (b) plaintiff relocated at considerable inconvenience and expense to this area; (c) plaintiff purchased a house and became obligated to make substantial mortgage payments thereon.” One of the interrogatories submitted to the jury asked: “If [the parties entered into an implied agreement whereby the plaintiffs employment could be terminated only for just cause], did the Plaintiff rely on this agreement to his detriment when he came to work for the defendant?” The jury answered “yes” to this question.

Posi-Seal contends that an implied agreement not to discharge without just cause is unenforceable unless the employee detrimentally relies upon such an agreement or supplies valuable consideration in addition to his services. It relies upon cases involving contracts of “permanent” or “lifetime” employment, and maintains that such contracts are analogous to implied agreements not to discharge without just cause.

“A great majority of the cases in the United States subscribe to the doctrine that a contract for permanent employment, if not supported by other consideration, is terminable at will.” (Emphasis in original.) Chatelier v. Robertson, 118 So. 2d 241, 244 (Fla. App. 1960); see 9 S. Williston, Contracts (3d Ed. Jaeger) § 1017, pp. 131-35; annot., 135 A.L.R. 646, 646-54.

In Littell v. Evening Star Newspaper Co., 120 F.2d 36, 37 (D.C. Cir. 1941), the court, however, held: “Some of the courts have reasoned . . . that, to prove a contract of permanent employment, two considerations must be shown; that is, a consideration in addition to the services to be performed; and that in the absence of two considerations there can be no such contract. This misconception results from mistaking the form for the substance. If it is their purpose, the parties may enter into a contract for permanent employment—not terminable except pursuant to its express terms—by stating clearly their intention to do so, even though no other consideration than services to be performed is expected by the employer or promised by the employee. The meaning of the cases previously referred to is that where no such intent is clearly expressed and, absent evidence which shows other consideration than a promise to render services, the assumption will be that— even though they speak in terms of ‘permanent’ employment—the parties have in mind merely the ordinary business contract for a continuing employment, terminable at the will of either party.” (Emphasis in original.)

In Drzewiecki v.H & R Block, Inc., 24 Cal. App. 3d 695, 704, 101 Cal. Rptr. 169 (1972), the court held: “We embrace the prevailing viewpoint that the general rule is a rule of construction, not of substance, and that a contract for permanent employment, whether or not it is based upon some consideration other than the employee’s services, cannot be terminated at the will of the employer if it contains an express or implied condition to the contrary. (53 Am. Jur. 2d, Master and Servant, § 32, pp. 107, 108; 135 A.L.R. 646.) The case of Littell v. Evening Star Newspaper Co., supra, 120 F.2d 36, focuses on the real issue, expounds the sound viewpoint and the court’s rationale should be followed in this state.” In Pine River State Bank v. Mettille, 333 N.W.2d 622, 629 (Minn. 1983), the Minnesota Supreme Court adopted the Littell rule: “The requirement of additional consideration, like the at-will rule itself, is more a rule of construction than of substance, and it does not preclude the parties, if they make clear their intent to do so, from agreeing that the employment will not be terminable by the employer except pursuant to their agreement, even though no consideration other than services to be performed is expected by the employer or promised by the employee. See Littell v. Evening Star Newspaper Co., [supra, 37]; Drzewiecki v.H & R Block, Inc., [supra, 703-704]. See also Restatement (Second) of Contracts § 80, comment a (1981) (a single performance may furnish consideration for any number of promises).” Accord Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311, 326, 171 Cal. Rptr. 917 (1981); Toussaint v. Blue Cross, 408 Mich. 579, 631, 292 N.W.2d 880 (1980). We note that most cases following the additional consideration rule in the context of “permanent” employment contracts do not address whether they are applying a rule of law or of construction. See Toussaint v. Blue Cross, supra, 600-609; 9 S. Williston, supra, § 1017, pp. 131-35; annot., 135 A.L.R. 646, 646-54.

In Fisher v. Jackson, 142 Conn. 734, 736, 118 A.2d 316 (1955), this court declared: “In the absence of a consideration in addition to the rendering of services incident to the employment, an agreement for a permanent employment is no more than an indefinite general hiring, terminable at the will of either party without liability to the other.” It is not entirely clear whether in Fisher the court intended the additional consideration rule to be a substantive requirement or a mere aid to construction, because it concluded that the employer did not intend to offer the employee a lifetime job. “It seems clear to us that the negotiations amounted to nothing more than the hiring of a reporter for a job which was permanent in the sense that it was not a mere temporary place. The hiring was indefinite as to time and terminable by either party at his will.” Id., 737. On the other hand, the case may also be viewed to rest upon the additional ground that, even if a trier of fact should conclude that the parties had an express employment contract of lifetime duration, such a contract must fail in the absence of some consideration in addition to the services to be rendered thereunder. Id., 738.

In several recent cases where this court has reviewed claims for wrongful termination of employment, we have not, in determining whether the contract was terminable only for just cause, discussed whether there was a separate consideration, apart from the services to be performed, that would take the employment agreement out of the general rule that “contracts of permanent employment, or for an indefinite term, are terminable at will.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 211 n.l; Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987); Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984). We have implicitly assumed that the resolution of the issue of the terminability of the employment without just cause depended wholly upon the intention of the parties as reasonably comprehended by them when the agreement was made. In Magnan we acknowledged that an agreement not to discharge an employee without just cause “may arise when an employee, in reliance on an implied representation that the position will not arbitrarily be terminated, leaves his current employment, or otherwise acts in reasonable and significant reliance on the representation.” Magnon v. Anaconda Industries, Inc., supra, 564-65. In Finley, we declared that “whether the [employer’s] personnel manual gave rise to an express contract between the parties was a question of fact properly to be determined by the jury,” without mention of any separate consideration requirement. Finley v. Aetna Life & Casualty Co., supra, 199. These decisions, omitting reference to any necessity for a separate consideration to support a promise not to discharge without just cause and focusing upon the intention of the parties, are consistent with our present view that the only consideration needed to sustain such a contract is the employee’s acceptance of employment on such terms. Where such an additional consideration is proved, however, it is a significant indication of an intention to form a contract of more than indefinite duration. Thus we adopt the position endorsed by the more recent cases from other jurisdictions that the absence of a separate consideration does not inevitably invalidate a contract otherwise expressing an intention that employment not be terminable at will. Littell v. Evening Star Newspaper Co., supra; Pugh v. See’s Candies, Inc., supra; Drzewiecki v. H & R Block, Inc., supra; Toussaint v. Blue Cross, supra, 600-36.

Accordingly, we need not decide whether the evidence advanced by the plaintiff of reliance on the promises of the defendant was sufficient to constitute a separate consideration for the agreement not to discharge him simply because of some dispute arising from his insistence on high quality standards. The evidence that the plaintiff had foregone other job opportunities, had relocated from Massachusetts to the New London area, and had purchased a home and become obligated on a mortgage was material as proof of his reasonable expectations in light of the promises made to him, as it confirmed his testimony that special assurance concerning job security was given to him. This evidence, upon which the jury may reasonably have relied in finding the employment agreement could be terminated only for just cause, fulfilled its function in supporting the plaintiffs version of the terms of the agreement, whether or not it would satisfy the criteria for a separate consideration.

Ill

Posi-Seal also claims that the trial court erred in failing to instruct the jury that a termination pursuant to or because of a reduction in force is, as a matter of law, just cause.

Posi-Seal filed the following request to charge: “A ‘just cause’ provision in an employment contract forbids an employer from acting arbitrarily or capriciously. It is the law that a termination pursuant to or because of an employer’s reduction in the work force is just cause. The law recognizes a certain amount of managerial discretion, and when an employer determines that it must reduce its work force, the law will not interfere with that decision. If the plaintiff was indeed terminated as part of a reduction in force at Posi-Seal, there would be no breach of his alleged agreement.” The trial court, however, gave the following instruction: “A just cause provision in an employment contract forbids an employer from acting arbitrarily or capriciously. Under certain circumstances a termination pursuant to or because of an employee’s reduction in work force may be considered just cause. The law recognizes a certain amount of managerial discretion, and when an employer determines that it must reduce its work force the law will not interfere with that decision.” Posi-Seal took an exception to this instruction. The essential difference between the requested charge and that given to the jury, in which two of the four sentences in the request are adopted verbatim, is that the court used a less absolutistic phraseology for the requested “It is the law that [a reduction in force] ... is just cause” by substituting “Under certain circumstances [a reduction in force] . . . may be considered just cause.” We conclude that the trial court’s statement of the reduction in force principle is a more adequate instruction on this subject under the circumstances of this case.

Posi-Seal points out that in considering an implied employment contract requiring just cause for termination, courts of other jurisdictions have held that a reduction in force is just cause. See Grayson v. American Airlines, Inc., 803 F.2d 1097, 1099 (10th Cir. 1986); Cox v. Resilient Flooring Division of Congoleum Corporation, 638 F. Sup. 726, 731 (C.D. Cal. 1986); Clutterham v. Coachmen Industries, Inc., 169 Cal. App. 3d 1223, 1227, 215 Cal. Rptr. 795 (1985). All of these cases, however, are distinguishable from the case at bar. In Clutterham v. Coachmen Industries, Inc., supra, the “[a]ppellant made no showing to the contrary, that this [reduction in force] was pretextual or that respondent acted in bad faith toward him; the motion for summary judgment was therefore properly granted.” In the present case, the plaintiff has contended that the reduction in force was a pretext for firing as a result of his conflicts with the director of manufacturing. In Cox v. Resilient Flooring Division of Congoleum Corporation, supra, the court declared that the plaintiff “does not dispute that there was a legitimate reduction in force. He admits also that his job was eliminated and has not been filled.” In the case at hand, the plaintiff has contended that his job was filled by a subordinate, although Posi-Seal maintains that the plaintiffs job was combined with this subordinate’s position and that the plaintiff was not qualified to assume the combined position. In Grayson v. American Airlines, Inc., supra, it appeared that “[t]he good cause established . . . was an economic downturn in the airline industry caused by the air traffic controllers strike and deregulation. Grayson conceded that such conditions existed in the economy and that they constituted good cause.” In the case at bar, the jury, as reflected in its answers to the interrogatories, determined that Posi-Seal had terminated the plaintiff’s employment without just cause.

In Harlan v. Sohio Petroleum Co., 677 F. Sup. 1021, 1030 (N.D. Cal. 1988), the court rejected the same contention advanced by the defendant and held that a termination pursuant to or because of a reduction in force is not necessarily, as a matter of law, just cause. “It is undisputed that plaintiff was terminated as part of a reduction-in-force (RIF). Sohio argues that a RIF is good cause per se, entitling it to summary judgment as a matter of law. However, defendant’s cited authorities do not go that far. See Gianaculas v. Trans World Airlines, Inc., 761 F.2d 1391 (9th Cir. 1985); Cox v. Resilient Flooring Div. of Congoleum Corp., [supra]; Malmstrom v. Kaiser Alum. & Chem. Corp., 187 Cal. App. 3d 299, 231 Cal. Rptr. 820 (1986); Clutterham v. Coachmen Industries, Inc., [supra]. This court does not believe that those authorities establish a per se rule that a RIF constitutes good cause. Rather, in each of the cases, summary judgment was granted because the RIF at issue was held to constitute good cause in that parr ticular case.” (Emphasis in original.) Id.

In Flanigan v. Prudential Federal Savings & Loan Assn., 720 P.2d 257, 261 (Mont. 1986), the Montana Supreme Court held that it was a matter for the trier of fact to determine whether an employee had been terminated as a result of a legitimate reduction in force or because of other factors. “A long-term employee has an expectation of continued employment provided that the employee’s work performance is satisfactory. . . . Of course, this does not foreclose an employer from engaging in legitimate reductions in force necessary to maintain the economic vitality of the company. However, there is evidence in this record, from the lips of [a vice-president of the employer], that [the employee] was fired for poor work performance. The jury could have relied upon this latter testimony and therefore concluded there was no reduction in force.” Id.

We conclude that the question of whether an employer has terminated an employee because of a legitimate reduction in force or for other reasons is an issue to be determined by the trier of fact. An employer’s contention that some employees were terminated as a result of a legitimate reduction in force does not necessarily establish that all employees were discharged for the same reason. An employer may not use a reduction in force as a pretext to terminate other employees in violation of contractual obligations, public policy grounds or statutory rights. See Graham v. Texasgulf Inc., 662 F. Sup. 1451 (D. Conn. 1987) (trier of fact must determine whether reduction in force was a pretext for employment discrimination in violation of federal statutes); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980) (wrongful discharge in violation of public policy); Flanigan v. Prudential Federal Savings & Loan Assn., supra (wrongful termination in violation of implied contract).

We hold that the court’s instructions on termination pursuant to, a reduction in force were not erroneous in the circumstances of this case. The court did not explain the “certain circumstances” in which “a termination pursuant to or because of an employee’s reduction in work force may be considered just cause.” It is well established, however, that individual instructions are not to be judged in isolation from the overall charge. State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987). It was clear from the evidence presented at the trial that the plaintiff contended that he had been terminated as a result of his disputes with the director of manufacturing and that the reduction in force was a mere pretext for discharging him. In the case at bar, it is not reasonably possible that the jury was misled by the failure of the trial court to explain under which “certain circumstances” a reduction in force may be a pretext for a termination in violation of an implied agreement not to discharge an employee without just cause. See State v. McDonough, 205 Conn. 352, 358, 533 A.2d 857 (1987), cert. denied, U.S. , 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988).

IV

The final claim of Posi-Seal is that there was insufficient evidence to permit the jury to find that the plaintiff was terminated for any reason other than a reduction in force. In responding to the interrogatories, the jury answered “yes” to the question of whether the defendant had terminated the plaintiff’s employment without just cause. Posi-Seal contends that the plaintiff was laid off as part of a reduction in force on January 6, 1984, in which forty other employees were discharged, and, therefore, that the plaintiff was terminated for just cause.

The plaintiff, however, introduced evidence from which the jury could reasonably have inferred that he was terminated not because of a legitimate reduction in force, but because of his conflicts with Posi-Seal’s director of manufacturing. The plaintiff testified that the president of Posi-Seal, Miller, told him: “Make no mistake. You’re not being laid off. You’re being fired.” The plaintiff also testified that, when he asked the reason for his discharge, Miller replied: “You’re off the wall.” The plaintiff testified that the director of manufacturing, Ron Walter, had told him that the plaintiff’s job was in jeopardy because of conflicts between the quality control and manufacturing departments.

Posi-Seal maintains that the plaintiffs testimony that Miller had told him that he was “fired” is not inconsistent with its position that the plaintiff was terminated as part of a reduction in force. It notes that commentators sometimes employ the term “fired” in relation to terminations pursuant to reductions in force. See, e.g., S. Carley, “At-Will Employees Still Vulnerable,” A.B.A.J., October 1,1987, p. 66. It also contends that Miller’s alleged statement that the plaintiff was “off the wall” in no way demonstrates that the plaintiff was terminated as a result of conflicts between the quality and manufacturing departments. It argues that there is no proof that the director of manufacturing’s alleged statement that the plaintiff’s job was in jeopardy was in any way connected to the plaintiff’s termination.

“It is not this court’s function to retry any factual issue in this case. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 524, 457 A.2d 656 (1983).” Mather v. Griffin Hospital, supra, 147. It was a matter for the trier of fact to determine whether PosiSeal had just cause to terminate the plaintiff. See id., 130. There was sufficient evidence introduced at the trial from which the jury could have found that PosiSeal terminated the plaintiff as a result of his conflict with the director of manufacturing. See id. The jury could, therefore, reasonably have concluded that such a termination violated the implied agreement of the parties that the plaintiff would not be discharged as a result of such a dispute so long as he performed his work properly as quality control manager.

We conclude that there was sufficient evidence produced to permit the jury to find that the plaintiff was terminated without just cause, and, therefore, that the court did not err in denying the defendant’s motion to set aside the verdict in this regard.

There is no error.

In this opinion the other justices concurred.

       The second count of the plaintiff’s complaint, which was filed on August 20,1985, alleged that he was terminated because of unlawful age discrimination. On November 6,1985, the commission on human rights and opportunities found that there was insufficient evidence to support the plaintiffs allegations concerning age discrimination. On July 14,1986, the trial court struck the age discrimination count of the plaintiff’s complaint. In this appeal the plaintiff does not challenge the court’s action in that regard.

       The jury answered the following special interrogatories relating to the allegations of the first and third counts of the complaint:

        “JURY INTERROGATORIES
      FIRST COUNT
      1. Did the parties enter into an implied agreement whereby Plaintiffs employment could only be terminated for just cause?
      Yes ✓
      No _
      2. If so, did the Plaintiff rely on this agreement to his detriment when he came to work for the Defendant?
      Yes ✓
      No _
      3. If so, did the Defendant terminate Plaintiffs employment without just cause?
      Yes ^
      No _
      If any of the above questions are answered ‘No,’ your verdict on the First Count should be for the Defendant. If all are answered ‘Yes,’ your verdict on the First Count should be for the Plaintiff and you should proceed to consider the issue of damages.
      THIRD COUNT
      1. Did the parties enter into an express agreement whereby Plaintiff’s employment could only be terminated for just cause?
      Yes _
      No ✓ ”

       The verdict was accepted on April 10, 1987. Posi-Seal did not file its motion to set aside the verdict until April 16,1987, six days after the verdict had been accepted. The plaintiff also filed his motion to set aside the verdict on April 16, 1987. In Small v. South Norwalk Savings Bank, 205 Conn. 751, 756-59, 535 A.2d 1292 (1988), this court held that Practice Book §§ 320 and 321 require that motions for a new trial, to set aside a verdict, and for judgment notwithstanding verdict must be filed with the clerk within five calendar days after the day the verdict is accepted or judgment rendered unless the last day to file falls upon a day when the clerk’s office is closed. We held that a party’s failure to file a timely motion to set aside the verdict limits this court to ascertaining whether there has been plain error. Id., 758. In Small, however, the plaintiff promptly objected to the defendant’s motions in arrest of judgment on the ground of untimeliness. In the case at bar, the plaintiff did not object to the defendant’s motion to set aside the verdict on the ground that it was untimely. Indeed, neither party was aware that their motions to set aside the verdict were untimely until this court pointed out this problem at argument. Accordingly, we apply the normal standard of review applicable in a civil appeal. See Practice Book § 4185.

       On August 17,1987, the plaintiff filed a preliminary statement of issues as the appellee. See Practice Book § 4013 (a) (1). “Plaintiff-Appellee intends to present the following issues on this appeal: (1) Did the Court err in excluding plaintiff-appellee’s testimony as to other job offers he had received in addition to the job offer of the defendant-appellant and thereby prevent the plaintiff-appellee from demonstrating the full extent of his damages?” The plaintiff in his brief indicated that this evidentiary issue would arise only if this court remanded this case for a new trial. In light of our disposition concerning Posi-Seal’s appeal, we need not address this issue.

       See footnote 2, supra.


author: Covello, J.

text:
    State of Connecticut v. Steven J. Wood
    (12734)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.

      Argued March 8
    decision released June 28, 1988

      Jon C. Blue, assistant public defender, with whom, on the brief, were Joseph M. Shortall, chief public defender, Joette Katz, public defender, and Gerard

      Smyth and Maria T. Madsen, assistant public defenders, for the appellant (defendant).

      SusanE. Gill, assistant state’s attorney, with whom were Herbert G. Appleton, assistant state’s attorney, and, on the brief, Jack Fischer, Janine DAngelo, Brett DeLallo and Eileen McCarthy Geel, law student interns, for the appellee (state).
   Covello, J.

The defendant, Steven J. Wood, was convicted by a jury of three counts of murder in violation of General Statutes § 53a-54a and of one count of capital felony in violation of General Statutes § 53a-54b (8). The jury also found the defendant guilty but not criminally responsible of a fourth count of murder pursuant to General Statutes (Rev. to 1983) § 53a-13. After the penalty phase of the proceedings, the jury found a mitigating factor, thereby eliminating the death penalty as a possible sentence. General Statutes (Rev. to 1983) § 53a-46a (f). On November 16, 1984, the court, Hammer, J., committed the defendant to the custody of the commissioner of correction for a total effective sentence of 120 years.* **

The jury could reasonably have found that on the evening of April 16, 1982, the defendant shot and killed his former wife, Rosa Wood, and her boyfriend, George Troie, on Farmington Avenue in West Hartford. The defendant then proceeded to the home on White Pine Lane he had shared with his former wife. Once there, he shot and killed his former mother-in-law, Patricia Voli. The defendant then shot and killed his fifteen year old daughter, Elisa Wood.

At trial, the defendant did not deny that he had caused the deaths, but asserted the alternative defenses of extreme emotional disturbance; General Statutes § 53a-54a (a); or lack of substantial capacity, due to a mental disease or defect, to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. General Statutes (Rev. to 1983) § 53a-13. After the rendering of judgment on his convictions, the defendant appealed to this court.

I

The defendant first claims that the trial court erred in denying his request to suspend the proceedings and direct the jury to read certain documentary evidence. The defendant had introduced as exhibits, for the purpose of establishing his state of mind, a journal and various unsent letters to his former wife written by him during the months prior to the homicides. The defendant had also introduced records of juvenile court proceedings and associated reports of child welfare agencies compiled during his troubled childhood. The court admitted the journal and letters for the limited purpose of demonstrating the defendant’s mental or emotional state during the time leading up to the homicides, while the juvenile court records were admitted for the purpose of showing the basis of expert opinion offered in testimony.

The defendant requested that the court suspend the proceedings to enable the jury to read these exhibits, and had prepared sixteen copies of the documents to facilitate this being done. As to the journal and letters, the state joined in the defendant’s request. The court refused to suspend the proceedings, but did express willingness to consider proposed jury instructions concerning the reading of this evidence.

Later, the defendant requested that the court explicitly instruct the jury that they were required to read the journal, the letters and the juvenile records before beginning deliberations. In making this request, the defendant reiterated his position that “the proper time for the reading of these exhibits by the jury was at the time of their introduction as evidence . . . . ” The court declined to order the jurors to read the documents before deliberating. Instead, as part of its general charge, the court instructed the jury to give careful consideration to all the evidence presented during the trial—testimony, stipulations and exhibits. In its instructions to the jury, at the close of the trial, the court noted the voluminous nature of the documentary evidence that had been introduced. The court explained that the letters and journal entries had been copied so that there would be one packet of these materials per juror, in order to make efficient use of the jury’s time. The jury was cautioned not to attach any particular significance to the fact that these exhibits had been copied in order to provide each juror with his or her own set of materials, while other documentary evidence had not been copied in this manner. The defendant objected to the charge as given.

A

The defendant first claims that the trial court erred in refusing to direct the jury to read these documentary exhibits (1) prior to the conclusion of the experts’ testimony or (2) prior to the commencement of deliberations. As to the requested order to have the exhibits read during the course of the experts’ testimony, we note that “[t]he conduct of the trial must necessarily be left largely to the discretion of the presiding judge, a discretion which in its very nature cannot be made the subject of review by this court, except in a clear case of the abuse of that discretion.” McKiernan v. Lehmaier, 85 Conn. 111, 119, 81 A. 969 (1911). “This court reviews the action of the trial court only as to whether that action cannot be supported in reason.” DiPalma v. Wiesen, 163 Conn. 293, 299, 303 A.2d 709 (1972).

The record reveals ample support for the trial court’s action. This very lengthy trial featured extensive testimony and documentary evidence much of which expressly and in detail discussed the contents of the exhibits. In the court’s estimation, it would consume a half day for the jury to read the defendant’s unsent letters to his former wife, letters that ranged from three to ten pages each, and the reports of various state agencies regarding the defendant’s family history. It was within the court’s discretion to have the trial continue without this significant interruption. Reasonable efforts in the conduct of a trial aimed at making efficient use of time are within the sound discretion of the court. Elliott v. New York, N.H. & H. R. Co., 83 Conn. 320, 329, 76 A. 298 (1910).

Further, the court was mindful of the risk that reading the exhibits prior to the conclusion of the experts’ testimony might prompt juror conversations about the exhibits’ content. Such conversations, taking place before all the evidence was presented and without the benefit of the court’s instructions on the law, would jeopardize the defendant’s right to a fair trial. State v. Castonguay, 194 Conn. 416, 433, 481 A.2d 56 (1984); State v. Washington, 182 Conn. 419, 424-27, 438 A.2d 1144 (1980). The trial court, in the exercise of prudence and caution, sought to minimize the risk of improper and premature juror discussions of the material contained in these exhibits. “ ‘The action of the trial court is not to be disturbed unless it abused its legal discretion. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.’ ” DiPalma v. Wiesen, supra, 298-99. Given the testimony summarizing the documents, time constraints and the significant risk of premature discussion on the issues involved, we conclude that the trial court’s decision that the jury should not have been required to read the defendant’s letters and journal entries prior to the conclusion of the experts’ testimony was a legitimate exercise of its discretion.

B

As to the defendant’s request that the jury be instructed to read the exhibits in their entirety before commencing deliberations, we conclude that the trial court’s decision on this matter was similarly within its sound discretion. Although the trial court did not expressly order the jury to read the full text of each and every exhibit, the court did instruct the jury to give careful consideration to all the evidence in the case. As part of its general remarks at the beginning of trial and again at its conclusion, the court advised the jurors to examine carefully each piece of evidence and to consider all the evidence presented, whether by means of testimony, stipulation or exhibits. The court cautioned the jury, however, not to attach undue weight to those exhibits that had been reproduced simply on the basis of their having been copied and distributed. While the instructions did not conform exactly to the proposed instructions requested by the defendant, “Jijnstructions to the jury need not be in the precise language of a request.” State v. Bunkley, 202 Conn. 629, 658, 572 A.2d 795 (1987). We conclude that the instructions as given were adequate “to give the jury ‘a clear understanding of the elements of the crime charged and the proper guidance’ ” to enable them to consider the evidence and reach a supportable verdict. Id., quoting State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974).

“ ‘Moreover, in reviewing jury instructions our task is also to view the charge itself as part of the whole trial.’ ” State v. Kurvin, 186 Conn. 555, 563, 442 A.2d 1327 (1982), quoting United States v. Park, 421 U.S. 658, 674, 95 S. Ct. 1903, 44 L. Ed. 2d 489 (1975); State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987). In the context of a lengthy trial replete with massive documentary evidence, we conclude that the charge as given substantially complied with the defendant’s request without misleading the jury into giving misguided and inappropriate deference to the documentary evidence introduced. See State v. Kurvin, supra, 561 (jury charge is tested by whether it conveyed the substance of the request).

II

The defendant next claims that the trial court erred in admitting the testimony of John Felber, a psychiatrist who had treated the defendant’s former wife, Rosa Wood, for anxiety and depression over a period of time from 1979 through 1981. The defendant’s claim of extreme emotional disturbance centered principally on his relationship with his former wife and the mental and emotional turmoil that grew out of the breakdown of that relationship. The marital discord and ultimate dissolution stemmed, in large part, from Rosa Wood’s belief that the defendant had been sexually molesting their fifteen year old daughter. The defendant maintained at trial that he had made only one sexual advance toward their daughter, which had been rebuffed. Felber testified for the state to rebut the defendant’s testimony that he had not engaged in repeated attempts to molest his daughter sexually.

The defendant objected to the admission of this testimony on hearsay and relevancy grounds. The court found that the state of the marriage and the effect on the defendant of its breakdown were significant elements of his affirmative defense of extreme emotional disturbance. The court found Felber’s testimony to be an aid to the jury’s assessment of the state of the marriage and the effect of the marital breakdown on the defendant’s emotional and mental stability. The court concluded, therefore, that the testimony was relevant. We agree.

As to the defendant’s hearsay objection, the court found that Felber’s testimony consisted of statements made to him by Rosa Wood for the purpose of diagnosis and treatment and thus were admissible pursuant to the hearsay exception for statements made to a treating physician. Again, we agree.

“A physician, who is consulted by a patient for the purpose of obtaining from her [or him] professional medical treatment or advice incidental thereto, may testify to her [or his] opinion even though it is based, in whole or in part, on statements made ... by the patient; and, of course, she [or he] may also testify to such statements. Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964).” (Emphasis added.) State v. Esposito, 192 Conn. 166, 175, 471 A.2d 949 (1984), modified, State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986). Felber could, therefore, properly testify as to those complaints of Rosa Wood that formed part of her medical history. Id. in this case, the mental and emotional stress that prompted her to seek psychiatric care stemmed from her belief that the defendant had been making sexual advances toward their daughter. Since Rosa Wood’s statements to Felber relating to those circumstances were made for the purpose of diagnosis and treatment, they were admissible as evidence. See State v. Esposito, supra; Brown v. Blauvelt, supra; C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.) § 11.12.3.

The defendant’s final challenge to the admissibility of Felber’s testimony was an objection based on the constitutional right of confrontation. The defendant contends that, since Rosa Wood’s death prevented him from cross-examining her as the maker of the underlying statements that formed the basis of Felber’s testimony, he was denied his constitutional right to confront his accusers. We are unpersuaded that this hearsay exception offends the confrontation clauses of the federal and state constitutions as this claim is essentially evidentiary and not constitutional. State v. Veal, 201 Conn. 368, 375-76, 517 A.2d 615 (1986).

In resolving confrontation clause claims, the court must determine that the testimony from the absent witness is sufficiently reliable. Once reliability is established, the admission of the testimony no longer offends constitutional confrontation precepts. Bourjaily v. United States, 483 U.S. 171, 182-83, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). In Bourjaily, the United States Supreme Court held that when the out-of-court statement “ 'falls within a firmly rooted hearsay exception,’ ” the court need not conduct the customary independent inquiry regarding the indicia of reliability surrounding the statement before deciding its admissibility on constitutional grounds. Id., quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). In Bourjaily, the challenged statement was admissible pursuant to the “statements of a co-conspirator” exception to the hearsay rule, while the statement at issue in this appeal falls within the “statements to a treating physician” exception. We conclude that, similar to the co-conspirator exception, the exception for statements made to a treating physician “is firmly enough rooted in our jurisprudence that, under [the United States Supreme] Court’s holding in Roberts, a court need not independently inquire into the reliability of such statements” in order to satisfy constitutional safeguards. Bourjaily v. United States, supra, 183. Once the trial court was satisfied that Rosa Wood’s statements to Felber had been made in furtherance of her diagnosis and treatment, and thus fell within the treating physician exception, further independent inquiry into the reliability of the statements was not required by the confrontation clauses of the state or federal constitutions, the state and federal constitutional standards were satisfied, and the testimony was therefore admissible. Id.; State v. Veal, supra.

Ill

The defendant next claims that the court erred in refusing to allow him to present certain surrebuttal evidence and in refusing to deliver a Secondino charge to the jury. The defendant had requested the court to suspend the trial in order to permit him to depose Wayne Owen, a clinical psychologist who had performed psychological tests on the defendant at the request of John Donnelly, a psychiatrist who was the state’s only expert witness on the issue of the defendant’s mental condition. Owen had recently suffered a stroke and was unable to testify in person. The transcript of his contemplated deposition was to serve as surrebuttal evidence. The defendant’s request to present surrebuttal evidence was prompted by the rebuttal testimony of Donnelly. The court denied the request.-

A

The defendant offered the opinions of two psychiatrists and a psychologist regarding the issue of his mental condition. Walter Borden, a psychiatrist, testified that in his opinion the defendant presented a “severe mixed personality disorder, with borderline and antisocial features.” The defendant also offered the testimony of John A. Cegalis, a psychologist, and Harry L. Kozol, a neuropsychiatrist. Both corroborated the opinion set forth by Owen in his report that the defendant was depressed and presented paranoid schizophrenic process. The defendant then offered the full text of Owen’s report as an exhibit. The state objected to the admission of the report on hearsay grounds, and cited the rule that while a medical expert may testify as to the contents of a report on which he or she has relied in forming an opinion, the decision as to whether to admit the report itself as evidence lies within “the judicious exercise of discretion by the trial court.” See Cross v. Huttenlocher, 185 Conn. 390, 395-97, 440 A.2d 952 (1981). The court sustained the state’s objection.

The state’s expert witness, Donnelly, rebutted the testimony of Cegalis and Kozol regarding their assessments of Owen’s report. Donnelly testified that it was his professional opinion that the defendant was not under the influence of extreme emotional disturbance on the evening of the crimes, and did not lack the ability, due to a mental disease or defect, to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Donnelly acknowledged that he had ordered certain psychological tests to be performed on the defendant by Owen but that, subsequently, he did not fully incorporate or rely on the results of those tests in his own evaluative report.

Arguing that the state’s expert had now called into question the reliability and usefulness of Owen’s psychological testing, the defendant sought to rebut the implications of Donnelly’s testimony by presenting Owen’s own statements regarding his report. The court denied the defendant’s request, for the following three reasons. First, because Owen had recently suffered a stroke and would not physically be able to testify in court, the defendant’s request was in reality to recess the trial to permit him to take Owen’s deposition, which would then be offered as evidence. The court refused to impose any additional delay in the proceedings because of the extreme length of the trial at that point and because the defendant had already been granted one recess for the purpose of deposing an unavailable witness. Second, the defendant admitted having received Owen’s report over six months previously while Owen had been stricken three months previously. The court deemed that to have been adequate time for the defendant to deal with matter of how to present evidence of the contents of the report. Third, the court noted that the defendant had already presented one psychologist, Cegalis, who had testified favorably to the defendant regarding Owen’s testing and conclusions. The court concluded that the proposed evidence from Owen regarding his findings would be cumulative to the expert testimony already presented and did not warrant further delay in an already exceedingly lengthy trial and therefore denied the defendant’s request.

The trial court is vested with considerable discretion in the matter of rebuttal evidence. State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986); State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982). "Ideally, rebuttal evidence is that which refutes the evidence [already] presented . . . rather than that which merely bolsters” one’s case. State v. Lisella, supra. The defendant had previously presented, through the testimony of Kozol and Cegalis, the essential features of Owen’s testing results. The court could reasonably have found the proposed deposition testimony from Owen to be cumulative in nature, and designed primarily to bolster the defendant’s case rather than to refute further the testimony of Donnelly, the state’s expert witness. See State v. Watley, 195 Conn. 485, 490, 488 A.2d 1245 (1985); State v. Lisella, supra. Because the proposed testimony was merely cumulative and would delay the already lengthy trial, and in further view of the fact that the defendant had had the opportunity to depose this witness whose report had been known to him for more than six months, we hold that the court’s refusal to grant the defendant’s request to take the deposition of Owen was a reasonable exercise of its sound discretion. State v. Simino, supra; State v. Lisella, supra.

B

The defendant next requested that the court deliver to the jury an adverse inference instruction regarding Owen. The defendant sought an instruction that, since the state had not called Owen to testify, the jury could infer that the reason he had not been called was because his testimony would have been unfavorable to the state on the issues of the defendant’s criminal responsibility and extreme emotional disturbance. The defendant contends that because Owen had been retained by the state for purposes of examining the defendant and was available to be deposed (because, on advice of his physician, he was not available to testify in court), Owen was a witness whom the state would naturally be expected to produce. The defendant argues, therefore, that the state’s failure to call Owen entitled the defendant to a Secondino instruction.

“The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960).” State v. Santangelo, 205 Conn. 578, 596, 534 A.2d 1175 (1987); see also State v. Amarillo, 198 Conn. 285, 307, 503 A.2d 146 (1986). An inquiry into the appropriateness of a Secondino instruction is, accordingly, two-pronged: whether the witness is “available” and whether, under the facts of this case, the witness is one whom the state would naturally be expected to produce.

We agree with the trial court that the defendant failed to establish his entitlement to a Secondino instruction. First, the defendant did not demonstrate that Owen was available. “His availability as a witness was a fact to be shown by the [defendant] as the [party] to be benefited by the inference. . . .” (Citations omitted.) Fontaine v. Coyle, 174 Conn. 204, 209, 384 A.2d 616 (1978). Further, “[b]efore a negative inference can be drawn from a party’s failure to produce a witness, it must be shown that the party was able to procure the witness’ physical presence in court. ” (Emphasis added.) Shelnitz v. Greenberg, 200 Conn. 58, 74-75, 509 A.2d 1023 (1986). The defendant’s counsel asserted that he had spoken to Owen’s physician, who had indicated that Owen’s health would permit a deposition but not an in-court appearance. Such a representation does not constitute an evidentiary showing of availability. See State v. Santangelo, supra, 585. The defendant has, therefore, failed to meet his burden as to this prong. This being the case, it is unnecessary to consider whether Owen was in fact a witness whom the state would naturally have been expected to produce. Further, “[a] possible witness whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered should be dispensed with on the general ground of expense and inconvenience, without anticipation that an inference may be invoked.” State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975); Fontaine v. Coyle, supra, 209-10.

IV

The defendant next claims that the court delivered an erroneous instruction on the consequences of a finding of guilty but not criminally responsible. The trial court is required by General Statutes § 54-89a to inform the jury of the consequences for the defendant of this verdict, including the confinement and release provisions of General Statutes (Rev. to 1983) § 53a-47 (now General Statutes §§ 17-257a through 17-257w). The trial court did so.

This statutory requirement is contrary to the common law rule that a jury is not to be instructed on the consequences of a verdict. The common law rule is premised on the principle that a jury’s verdict should be based solely on the evidence before it, rather than on any notions of sympathy or fear. State v. Holmquist, 173 Conn. 140, 143-44, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). Section 54-89a departs from that principle in cases involving the insanity defense, where, in addition to the usual verdicts of “guilty” or “not guilty,” there exists the additional possibility of a verdict of guilty but not criminally responsible by reason of mental disease or defect.

The defendant first complains that the court erred in indicating to the jury that it was delivering this instruction because the law required it to do so. The defendant claims that the court thus implied that its own private view was to the contrary but it nevertheless delivered the instruction not because the court agreed with the instruction, but because it was under a legal mandate to do so. The defendant cites no authority to support either the inference he chooses to draw from this language or the proposition that this was error. Furthermore, the fact that the jury did return a verdict of guilty but not criminally responsible warrants the inference that the instruction had its desired effect, not that the court’s statements discredited the required charge.

The defendant’s second claim with regard to the § 54-89a instruction relates to the court’s comments concerning its view of the purpose behind the statutory provision. The court stated: “Our legislature has concluded, I believe, that the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the commonly understood meaning of the more familiar verdicts and unambiguous verdicts of guilty and not guilty.” (Emphasis added.) The defendant contends that this was erroneous, in that the statutory purpose, as revealed by the sparse legislative history on this point, was to “instruct the jury as to what the penalty would be if the defendant were indeed found guilty but not criminally responsible.” (Emphasis added.) The defendant perceives in this language a distinction of fundamental proportions that rendered the instruction fatally flawed. We disagree.

Viewed in context, the defendant’s argument “elevates form over substance.” State v. Gonzalez, 206 Conn. 213, 219, 537 A.2d 460 (1988); State v. Weidenhof, 205 Conn. 262, 269, 533 A.2d 545 (1987). Although the court employed a word (meaning) different from that used in the statute (consequences) or legislative history (penalty), we conclude that this use was not misleading. The effect of the court’s statements was to inform the jury of the potential dispositions following various verdicts. The fact that the information was couched in terms of the “meaning” of a verdict rather than the “consequences” of a verdict is of no moment. We conclude that, although there was no “utterance of talismanic words”; State v. Weidenhof, supra; it is not reasonably likely that the jury was misled by this minor variation in language. See State v. Foster, 202 Conn. 520, 541, 522 A.2d 277 (1987).

The defendant’s final claim with respect to the court’s § 54-89a instruction is that the court erred in directing the jury not to base their verdict on this knowledge of the consequences of a finding of guilty but not criminally responsible. After reading to the jury the relevant confinement and release provisions of § 53a-47, as mandated by § 54-89a, the court instructed the jury “to make your determination solely on the basis of the evidence before you, and not upon your knowledge or lack of knowledge of the possible consequences that may follow such verdict.” The defendant characterizes this portion of the charge as “judicial evisceration” of the § 54-89a statute.

At common law, the matter of punishment was not an issue for the jury but for the court, and therefore not an appropriate subject for the jury’s consideration or for the court’s instruction to the jury. State v. Holmquist, supra. Section 54-89a, enacted in derogation of this common law principle, is to be construed narrowly in order to leave undisturbed those aspects of the common law not directly affected by the statute. State v. Kish, 186 Conn. 757, 764-65, 443 A.2d 1274 (1982). Section 54-89a requires only that the court inform the jury of the consequences that may follow a verdict rendered after a successful insanity defense. It does not nullify the general rule that a jury base their verdict solely on the evidence before it. A narrow construction of § 54-89a comports with this general rule by ensuring that the jury possesses information that enables it to reach a determination based on the evidence, yet remains unaffected by sympathy, fear or other inappropriate and irrelevant concerns. The court noted that the § 54-89a information “was given to you in order to resolve what appears to be the ambiguous form of ... [a guilty but not criminally responsible] verdict which, although it negates criminality, makes reference to guilt.” Having resolved a potentially troubling ambiguity, the court thus enabled the jury to turn its unfettered and complete attention to the only proper basis for a verdict, the evidence before it. We conclude that the defendant’s claims with respect to this issue are without merit.

V

The two homicides committed at the White Pine Lane residence gave rise to charges of murder in violation of § 53a-54a for the deaths of Patricia Yoli and Elisa Wood. These murders also formed the basis for the state’s charge of capital felony for multiple murders committed in the course of a single transaction in violation of § 53a-54b (8). See footnote 2, supra. The jury returned guilty verdicts as to all three charges, and the court accepted the verdicts and rendered judgment thereon.

The defendant claims, and the state concedes, that the court erred in rendering judgment on the two murder convictions. It is a violation of the double jeopardy clause of the fifth amendment to impose punishment for both the capital felony and the murders that constitute the lesser included offense. State v. Usry, 205 Conn. 298, 318, 533 A.2d 212 (1987); State v. McGann, 199 Conn. 163, 178, 506 A.2d 109 (1986); see State v. Goldson, 178 Conn. 422, 424-25, 423 A.2d 114 (1979).

There is error in part and the case is remanded to the trial court with direction to vacate the judgment of conviction with regard to the two counts of murder for the deaths of Patricia Voli and Elisa Wood.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (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; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant [acted] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       General Statutes § 53a-54b (8) provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following . . . (8) murder of two or more persons at the same time or in the course of a single transaction.”

       General Statutes (Rev. to 1983) § 53a-13 provides in relevant part: “In any prosecution for an offense, a defendant may be found guilty but not criminally responsible if, at the time of the proscribed conduct, he lacked substantial capacity as a result of mental disease or defect either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”

       On November 16,1984, the trial court committed the defendant to the custody of the commissioner of correction for a term of sixty years each on the second, third and fourth counts of the May 26,1982 indictment for the murders of George Troie, Patricia Voli and Elisa Wood, and for a term of sixty years on the fourth count of the December 9,1982 indictment for capital felony. The defendant was ordered to serve the three sixty year sentences on the May 26,1982 indictment concurrently to each other and consecutive to the sixty year sentence imposed on the December 9, 1982 indictment, for a total effective sentence of 120 years.

       The records compiled during the defendant’s youth include: (1) a family history submitted by a juvenile court investigator in 1949; (2) results of psychological and psychiatric tests; (3) supplementary information concerning the defendant’s psychological development; and (4) the 1952 psychological examination results.

       The jury instructions were in relevant part: “I would instruct you very specifically that the fact that these exhibits have been copied, does not mean that you are to attach any greater significance to them than you would to any other exhibits which will be before you in the jury room. Because of their length, they have been copied for your convenience, and in order to expedite your consideration of these exhibits, and you are not to attach any particular significance to the fact that these appear to be the only documents which have been copied in this manner.”

         The trial court stated: “I have read those letters, and I have read those records, and if I were a member of this panel, it would be virtually impossible for me not to discuss it with my fellows. There have been two cases that have been reversed upon the basis of deliberations, by members of the jury amongst themselves . . . it’s an open invitation for them to discuss. . . . The request is denied.”

       The defendant claims this right under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution, which provide, respectively: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . and “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him. ...”

        Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), instructs that “ ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” Id., 675, quoting Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928).

       In his request to the court for permission to present additional evidence, defense counsel stated: “The way in which Dr. Donnelly dealt with Dr. Owen’s findings, and attempted to explain why he didn’t adopt or even refer to them in his report, makes it necessary, I believe, to rebut the testimony and the implication from the testimony, that Dr. Owen’s report was unreliable, that psychological reports generally, at least in some circumstances, are unreliable, and to attempt to show that Dr. Owen’s report, which came to a different conclusion than Dr. Donnelly came to, was conducted under reliable circumstances, by a reliable psychologist.”

       The court had recessed the trial to permit the defendant to take the deposition of Attorney Charles Wood, a patient at Gaylord Hospital.

       “[General Statutes] Sec. 54-89a. court to inform jury on consequences OF A FINDING OF NOT GUILTY BY REASON OF MENTAL DISEASE OR defect. If the court instructs the jury on a defense of mental disease or defect raised pursuant to section 53a-13, it shall, unless the defendant affirmatively objects, inform the jury of the consequences for the defendant if he is found not guilty by reason of mental disease or defect and of the confinement and release provisons of sections 17-257a to 17-257w, inclusive, applicable to a person found not guilty by reason of mental disease or defect.”

       In actuality, General Statutes 54-89a furthers the principle that a jury’s verdict should be based on the evidence and not on sympathy or fear, as the trial court correctly observed: “Jurors are aware generally of the meanings of verdicts of guilty or not guilty. It is common knowledge that a verdict of not guilty means that the accused goes free, and a verdict of guilty means that he is subject to such punishment as the Court may impose. But a verdict of guilty but not criminally responsible, is somewhat ambiguous, and has no such commonly understood meaning, because a finding of guilty implies conventional punishment, while a finding of lack of criminal responsibility suggests some other type of disposition. Accordingly, the Court has been directed by the legislature to make it clear to the jury that such a verdict means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill, until the superintendent of such hospital certifies and the Court is satisfied that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others.” The effect of the required instruction is to promote verdicts grounded on the evidence, rather than on the fear of an uninformed jury that a dangerous, disturbed person might be set free upon the rendering of a verdict of guilty but not criminally responsible.

       Remarks of Representative Alfred J. Onorato: “[The statute] requires the court if there is no objection from the defense counsel, to instruct the jury as to what the penalty would be if the defendant were indeed found guilty but not criminally responsible.” 24 H.R. Proc., Pt. 18, 1981 Sess., p. 5962.