author: PALMER, J.

text:
    STATE OF CONNECTICUT v. CLEVELAND HAASE
    (SC 15408)
    Borden, Berdon, Katz, Palmer and McDonald, Js.

      Argued October 3
    officially released December 2, 1997

      M. Donald Cardwell, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan K. Alexander, assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

A jury convicted the defendant, Cleveland Haase, of murder in violation of General Statutes § 53a-54a and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1). On appeal from the judgment of conviction of the trial court, sentencing him to a total effective prison term of forty years, the defendant claims that: (1) statements made by the assistant state’s attorney during her closing argument to the jury infringed upon his constitutionally protected right to refrain from testifying; and (2) the trial court improperly prohibited the defendant from introducing testimony regarding certain statements allegedly made by the victim shortly before her death. Because we conclude that these claims are without merit, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In March, 1995, the defendant resided on the first floor of a two story house located at 98 West Euclid Street in Hartford. Charles Black, who owned the building, lived on the second floor of that residence. Black first met the victim, Jamesette Carter, in the summer of 1994. The victim had approached Black as he was exiting a bank and told him that she was hungry and needed money. Black gave the victim $5 and his address. Subsequent to this initial encounter, the victim made several visits to Black’s residence, seeking money. On a number of these occasions, Black, at the victim’s suggestion, paid the victim to have sex with him. On other occasions when the victim solicited money from Black at his residence, he told her that he did not have any money, and she left without incident.

At approximately 8 to 8:30 p.m. on March 30, 1995, the victim stopped by Black’s residence. Black observed that the victim possessed a folding knife. At Black’s request, the victim gave Black the knife, which he placed on a table. The victim asked Black for money, and Black gave her approximately $2. While they were speaking, Black heard the defendant arrive and enter his first floor residence. At approximately 9 p.m., the victim took her knife and departed Black’s residence. Soon thereafter, Black heard people conversing in the defendant’s residence, but he could not hear what they were saying. Black then fell asleep.

Some time later, Black was awakened by the defendant, who was calling his name and asking that Black come downstairs. Black did so, and the defendant told Black that he had shot the victim when she attempted to rob him. The defendant also asked Black to telephone an ambulance, which he did. After making the emergency call, Black went upstairs to put on his shoes. When he returned to the downstairs residence, the defendant was not there. The police and medical personnel arrived at the defendant’s residence and found the victim, unconscious, on the floor of the defendant’s bedroom. The victim was taken to the hospital, where she died several days later from a gunshot wound to the cervical spine caused by a bullet that had been fired from a distance of approximately six inches from her neck.

The police executed a search warrant at the defendant’s residence on the night of the shooting. An empty .380 caliber shell casing was found on the defendant’s bed, but no guns or bullets were found in the residence. The victim’s shirt and pants, which had been removed by an emergency medical technician, were seized from the defendant’s bedroom floor. Coins and a folding knife, which was closed, were found in the victim’s pants pocket. There were no signs of a struggle.

Later that night, the defendant telephoned Black and asked him if the police were looking for the defendant. Black told the defendant that the police had contacted him in an effort to ascertain the defendant’s whereabouts. Black informed the police of the defendant’s call.

After an arrest warrant had been issued for the defendant, the defendant’s attorney contacted the police to inform them that the defendant planned to surrender himself voluntarily, which he did on April 3,1995. That day, the defendant gave the police a written statement regarding the shooting incident, which was introduced into evidence by the state without objection by the defendant. In his statement, the defendant explained that he was in bed sometime after 9 p.m. on March 30, 1995, when he heard a noise and looked up to see someone picking through articles in his dresser. The defendant attempted to get out of bed to confront the unknown intruder when the intruder pushed him back down onto his bed. While on his bed, the defendant reached for his PPK Walther .380 caliber handgun and fired it once in the direction of the intruder, who was standing next to his bed.

According to his statement, the defendant then got dressed, told Black what had occurred, and drove to the Bissell Bridge, where he threw the gun into the Connecticut River. He next proceeded to the Hartford residence of his uncle, Stanley Hawes, with whom he left his car and car keys. Thereafter, the defendant took a bus to New York, where he remained until returning to Connecticut several days later.

On October 10, 1995, the defendant gave a second statement regarding the shooting, this time to an investigator hired by his attorney. In this statement, which the state also introduced into evidence without objection by the defendant, the defendant, for the first time, indicated that the victim was carrying a knife. He also described his alleged struggle with the victim in greater detail. A criminalist from the state forensic laboratory testified, however, that it was unlikely that the shooting occurred in a manner consistent with the description of the incident given by the defendant in either his April or his October statement. Additional facts will be set forth as necessary.

I

The defendant first claims that he is entitled to a new trial because the assistant state’s attorney, during her closing argument to the jury, improperly commented on his failure to testify. We disagree.

The following facts are relevant to this issue. At trial, the defendant claimed that he had shot the victim in self-defense. See General Statutes § 53a-19. The defendant, however, exercised his right not to testify, relying instead on his April 3, 1995 and October 10, 1995 statements to establish his claim of self-defense.

In its rebuttal argument to the jury, the state sought to contradict defense counsel’s assertions, also made during closing argument, that the defendant had substantially cooperated with the police investigation of the shooting. Specifically, the assistant state’s attorney stated: “[The defendant] had to cooperate. He knew, the next day, from Mr. Black, that the police were looking for him. He knew he had to come up with a defense, [be] cause he knew he was the shooter. So, he turned himself in instead of living a life on the run, instead of looking over [his] shoulder. And he started cooperating, because the best defense is a good offense. But, when you make up a defense, this defense of an intruder, you get caught.... It doesn’t make sense that [the victim] is an intruder that needed to be killed. [Her] coat’s off, her shoes [are] off. And there’s certainly nothing in the evidence that shows she was using deadly physical force against [the defendant]. Cooperation? You’ve got nothing to hide. Well, the one thing [the defendant] did hide is the reason why.” The defendant immediately objected to the statement that “the one thing [the defendant] did hide is the reason why” he shot the victim, claiming that such argument constituted improper comment on the defendant’s failure to testify about his reason for shooting the victim. The trial court overruled the defendant’s objection.

Thereafter, the assistant state’s attorney focused her argument on an inconsistency between the defendant’s April 3,1995 statement to the police, and the testimony of Hawes, the defendant’s uncle. In his statement, the defendant indicated that he had left his car and car keys with Hawes on the evening of the shooting, immediately after disposing of the gun that he had used to shoot the victim. At trial, however, Hawes, testifying for the state, asserted that the defendant did not drop off his car and keys with Hawes until the following morning. In her rebuttal argument, the assistant state’s attorney highlighted this inconsistency, stating: “[The defendant] can’t even tell you the truth about leaving the car. If you look at [his April 3, 1995] statement . . . [it] says: ‘I left the scene immediately.’ Which we know is 9:53 [p.m. on the evening of the shooting] when the call came in to the 9-1-1 [emergency line]. T went to the Bissell Bridge. I dropped off the car and went to New York.’ [Then Hawes] comes in [to testify]. [When does] he get the car? Seven thirty in the morning. This man will not tell us what happened.” The defendant objected to the assistant state’s attorney’s comment that the defendant “will not tell us what happened,” claiming that such argument constituted impermissible comment by the state on his failure to testify. The trial court overruled the objection, but noted: “There’s [a] very thin line there. ... I would just ask [the assistant state’s attorney] to be conscious of that line.”

Finally, at the conclusion of her rebuttal argument, the assistant state’s attorney challenged the veracity of the two statements relied upon by the defendant in support of his claim of self-defense: “[The defendant] may regret it now. He may come up with the explanations of April 3 and October 10. His excuses. But, at that moment, at 98 West Euclid Street, there was one thought when that gun was at [the victim’s] neck. And that was to kill. It’s senseless. I don’t know what the motive [was]. I can’t tell you that. Two people had the opportunity to tell us, [be] cause there [were] only two people there. See the explanations given by the defendant. And [the victim] is not giving you an explanation. The evidence provides no justification. No deadly force that justifies this killing. And I’d ask you to find the defendant guilty of murder. . . . Thank you.” The defendant immediately moved for a mistrial on the ground that the assistant state’s attorney’s statement highlighting the fact that the defendant had not provided the jury with a valid explanation for the shooting, along with the other argument to which the defendant previously had objected, violated his constitutional right to remain silent. The trial court denied the defendant’s motion, concluding that the assistant state’s attorney’s references, reasonably construed, pertained to the defendant’s two pretrial statements and not to his failure to testify. The trial court also indicated that its charge to the jury regarding the defendant’s right to refrain from testifying would eliminate any possible reason for concern that the assistant state’s attorney’s comments might be viewed by the jury as a comment on the defendant’s failure to testify.

Before addressing each of the defendant’s three claims of prosecutorial impropriety, we review the legal principles that govern our analysis. “It is well settled that comment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965).” State v. Arline, 223 Conn. 52, 66, 612 A.2d 755 (1992). Our legislature has given statutory recognition to this right by virtue of its enactment of General Statutes § 54-84. “In determining whether a prosecutor’s comments have encroached upon a defendant’s right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testily?” (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 533, 610 A.2d 1113 (1992); see State v. Negron, 221 Conn. 315, 325, 603 A.2d 1138 (1992). Further, in applying this test, we must “look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury.” (Internal quotation marks omitted.) Hall v. Wainwright, 733 F.2d 766, 773 (11th Cir. 1984), cert. denied, 471 U.S. 1107, 105 S. Ct. 2344, 85 L. Ed. 2d 858 (1985); see United States v. Robinson, 485 U.S. 25, 33, 108 S. Ct. 864, 99 L. Ed. 2d 23 (1988); State v. Oliveras, 210 Conn. 751, 762-63, 557 A.2d 534 (1989). Finally, “[w]e also recognize that the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985); State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).

The defendant concedes that the assistant state’s attorney had the right to comment on the two voluntary pretrial statements made by the defendant and upon which he relied to establish his claim of self-defense. The defendant claims, instead, that the assistant state’s attorney’s three allegedly objectionable comments naturally and necessarily focused the jury’s attention on the defendant’s failure to testify. We disagree.

The defendant first challenges the assistant state’s attorney’s comment that “the one thing [the defendant] did hide is the reason why,” claiming that the statement carries an implication that the defendant had a duty to testify or otherwise to provide additional information regarding his claim of self-defense. When viewed in isolation, the assistant state’s attorney’s comment arguably is susceptible of the meaning that the defendant ascribes to it. When considered in context, however, it is apparent that the statement constitutes a fair response to the defendant’s argument regarding his cooperation with the police.

Immediately before making the challenged statement, the assistant state’s attorney sought to explain to the jury why the defendant had little choice but to cooperate. In this context, the assistant state’s attorney next suggested that the defendant, although appearing to be cooperative, had used his cooperation as an opportunity to fabricate a claim of self-defense. The assistant state’s attorney then indicated that “the one thing [the defendant] did hide is the reason why” he had shot and killed the victim. Because the defendant’s cooperation consisted, in large part, of providing the information contained in his two voluntary statements, it is most reasonable to construe the assistant state’s attorney’s comment not as an indirect reference to the defendant’s failure to testify but, rather, as a direct challenge to the credibility of the defendant’s two statements. As we previously have stated, a defendant, “by his failure to testify, cannot insulate himself from general comment on the weakness of his case, even though his failure so to testify may be perceived by the jury as having contributed to the general weakness about which comment is made.” State v. Magnotti, supra, 198 Conn. 220. We therefore reject the defendant’s contention that the assistant state’s attorney’s comment naturally and necessarily was interpreted by the jury to be a reference to the defendant’s failure to testify.

The defendant next challenges the assistant state’s attorney’s statement that “[the defendant] will not tell us what happened.” The defendant contends that this comment was a reference to his failure to testify and necessarily was interpreted as such by the jury. We, however, decline to give the challenged statement the broad reading, severed from its context, urged by the defendant. Rather, we are persuaded that this comment, when viewed in the context of the trial evidence and the relevant portions of the assistant state’s attorney’s argument, directed the jury’s attention to a discrepancy between certain information that the defendant had provided to the police, on the one hand, and the testimony of his uncle, Hawes, on the other.

The assistant state’s attorney made the statement in connection with her assertion that the defendant could not “even tell [the jury] the truth about leaving [his] car.” Specifically, the assistant state’s attorney contrasted the defendant’s April 3, 1995 assertion that he had given Hawes his car on the evening of the shooting, with Hawes’ trial testimony that the defendant had delivered the car to Hawes on the morning after the shooting. It is apparent, therefore, that the assistant state’s attorney, by emphasizing the disparity between the defendant’s out-of-court statement and Hawes’ testimony, sought to cast doubt on the truthfulness of the defendant’s statement rather than to focus the jury’s attention on his failure to testify.

We note that, as suggested by the trial court, the language used by the assistant state’s attorney to highlight this discrepancy skirted the boundaries of permissible argument. We are mindful, however, that “closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); see also State v. Marra, supra, 222 Conn. 533-34. We note, moreover, that the assistant state’s attorney issued a prompt response to the defendant’s objection, informing the jury in clear and unequivocal terms that, in fact, she had been referring only to the defendant’s voluntary statements and not to his failure to take the stand. See footnote 8 of this opinion. We conclude, therefore, that the jury naturally and necessarily would not have interpreted the assistant state’s attorney’s statement as a comment on the defendant’s failure to testify.

The defendant also challenges the assistant state’s attorney’s remarks that “[t]wo people had the opportunity to tell us, [be] cause there [were] only two people there” and “[the victim] is not giving you an explanation.” The defendant claims that these comments violated his right to remain silent because they suggested to the jury that the defendant bore the burden of explaining why he had shot the victim. Contrary to the defendant’s contention, however, these remarks were made in the context of the assistant state’s attorney’s argument challenging the veracity of the defendant’s two voluntary statements. Indeed, the assistant state’s attorney, during the very portion of her argument to which the defendant has objected, made express reference to the defendant’s statements, first directing the jury’s attention to his “explanations of April 3 and October 10 . . . [h]is excuses,” and, once again, to “the explanations given by the defendant.” Thus, the clear purpose of the challenged argument was to direct the jury’s attention to the alleged weakness of the defendant’s version of the incident as set forth in his out-of-court statements. Accordingly, we agree with the state that the challenged comments, when considered in context, constitute fair comment on the credibility of the defendant’s claim of self-defense as proffered through his voluntary statements.

Finally, we are satisfied that any conceivable risk of jury confusion over the meaning of the three statements in question was eliminated by the trial court’s instructions. See footnote 9 of this opinion. Specifically, the court informed the jury that the defendant was “under no obligation to testify” and that “[h]e has an absolute constitutional right not to testify.” In addition, the trial court twice admonished the jury that it “must not draw any unfavorable inferences from the defendant’s failure to testify.” Finally, the trial court expressly and repeatedly instructed the jury that the challenged comments of the assistant state’s attorney related to the defendant’s two voluntary statements and not to the defendant’s failure to testify. The defendant has presented no persuasive reason why, in the circumstances of this case, it is likely that the jury failed to adhere to those instructions. See State v. Prioleau, 235 Conn. 274, 315, 664 A.2d 743 (1995); State v. Jennings, 216 Conn. 647, 664, 583 A.2d 915 (1990). Accordingly, we reject the defendant’s claim that he is entitled to a new trial based upon the assistant state’s attorney’s allegedly improper closing argument.

II

The defendant next claims that the trial court improperly prohibited him from introducing testimony regarding certain statements that the victim had made shortly before her death. We disagree.

The following facts are necessary to our determination of this issue. At trial, the defendant sought to offer the testimony of George Henry, who resided next door to the defendant. During the defendant’s offer of proof outside the presence of the jury, Henry testified that the victim had come to his home on the day of the shooting to visit an acquaintance who was cleaning Henry’s residence. According to Henry, the victim told him “that she was going next door to . . . get some money [from Black].” Although Henry responded that Black “hasn’t got any money,” the victim stated that she “always get[s] money from him” and proceeded toward Black’s residence.

In response to the state’s objection to the introduction of this evidence, defense counsel contended that Henry’s testimony was admissible, apparently because it tended to establish the victim’s intention to go to Black’s residence for the purpose of soliciting money from him. The trial court sustained the state’s objection without elaboration.

Under the state of mind exception to the hearsay rule, a declarant’s statement may be admitted as circumstantial evidence that the declarant carried out his or her intention. State v. Santangelo, 205 Conn. 578, 592, 534 A.2d 1175 (1987); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.13.3, p. 381. A trial court, however, retains discretion to exclude evidence that is merely cumulative. See, e.g., State v. Porter, 241 Conn. 57, 87, 698 A.2d 739 (1997); State v. Watley, 195 Conn. 485, 490, 488 A.2d 1245 (1985); State v. Gooch, 186 Conn. 17, 24, 438 A.2d 867 (1982). The state presented uncontradicted and uncontested testimony from Black himself that the victim had visited him on the evening of the shooting for the purpose of soliciting money from him and that he had given her $2. In light of this uncontroverted evidence, Henry’s testimony regarding the victim’s intention to travel to Black’s residence to request money would have added nothing to the defendant’s case. Because the proffered evidence clearly was cumulative, the trial court was well within its discretion in excluding it.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

       General Statutes § 53a-155 provides in relevant part: “Tampering with or fabricating physical evidence: Class D felony, (a) A person is guilty of tampering with or fabricating physical evidence if, believing that an official proceeding is pending, or about to be instituted, he: (1) Alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding . . . .”

       The defendant has appealed directly to this court pursuant to General Statutes (Rev. to 1997) § 51-199 (b), which provided in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years. . . Section 51-199 (b) has since been amended by Public Acts 1997, No. 97-178, § 2.

       According to testimony from the state’s medical expert, the gunshot wound suffered by the victim would have caused her immediately to lose all purposeful movement.

       Despite efforts by the police to locate the gun, it never was found.

       Although the defendant failed expressly to identify his right to refrain from testifying as the basis of his objection to the assistant state’s attorney’s argument, the state does not contest the defendant’s assertion that the nature of the objection was sufficiently clear to focus the trial court’s attention on that issue. For purposes of this appeal, therefore, we accept the defendant’s characterization of the objection.

       Although the trial court did not formally rule on the defendant’s obj ection, the court did not sustain the objection, thereby allowing the assistant state’s attorney’s comment to stand.

       Immediately after the trial court had overruled the defendant’s obj ection, the assistant state’s attorney made the following statement to the jury: “I want to make one thing clear, and what’s objected to. [The defendant] doesn’t have to get on the stand and tell his side of the story. Every person who comes into the court, and I respect this, has the right to sit there and remain silent. But, [the defendant] hasn’t remained silent, to the extent [that] he has given two statements, which he’s incorporated as his own. And in both of those statements he does not tell accurate facts. He can’t even tell us when the car was dropped off. Because he tells [the police] at night; and [Hawes] tells me it’s in the morning.”

       The defendant sought an immediate curative instruction. The trial court, however, rejected the defendant’s request. Later, though, the court, in its charge to the jury, gave the following instruction: “Now, [the defendant] has not taken the stand in this particular case. An accused person has the option to testify or not to testify at his trial. He’s under no obligation to testify. He has an absolute constitutional right not to testify. You must not draw any unfavorable inferences from the defendant’s failure to testify.
      “Now, there were some comments today in the [assistant] state’s attorney’s argument — closing argument to you. And there was a — a[n] objection by [defense counsel], which was proper. The . . . argument... of the [assistant] state’s attorney is . . . towards the documents in evidence. The argument was to the two pieces in evidence, the two statements in evidence.
      “Now, the [assistant] state’s attorney did not mean to infer, nor imply in any way, and comment in any way, on the defendant’s failure to testify. Again, you must not draw any unfavorable inferences from the defendant’s failure to testify.”

       General Statutes § 54-84 provides in relevant part: “Testimony or silence of accused, (a) Any person on trial for crime ... at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. ...”

       Henry and the victim referred to Black, who was seventy years old at the time of the trial, as “the old man.” It is not disputed that their references to “the old man” were to Black.

       The state contends that the defendant failed to explain adequately why Henry’s proffered testimony was admissible and, therefore, that we should not review his claim on appeal. Because it is apparent that the trial court did not abuse its discretion in precluding the proffered testimony, we need not decide the threshold issue raised by the state. Accordingly, for purposes of this appeal, we assume without deciding that the defendant properly preserved his claim regarding the admissibility of Henry’s testimony.


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. GREG STRICKLAND
    (SC 15550)
    Callahan, C. J., and Berdon, Norcott, Katz and Palmer, Js.
    Argued September 25
    officially released December 2, 1997

      Kent Drager, senior assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Pepper and Jack W. Fischer, assistant state’s attorneys, for the appellee (state).
   Opinion

BERDON, J.

The sole issue that we address in this certified appeal is whether the Connecticut rules of practice provide a right of allocution to a defendant during the disposition phase of a probation revocation proceeding. Following the initial, liability phase of the probation revocation hearing, the trial court concluded that the defendant, Greg Strickland, had violated the conditions of his probation. Thereafter, the court conducted the disposition phase of the hearing to determine how much, if any, of the remaining six and one-half years of his sentence the defendant should be required to serve as a result of the violation. The defendant was not provided with an opportunity personally to address the court at the hearing, although he twice requested an opportunity to do so. The Appellate Court decided that an opportunity to address the court during the disposition phase of a probation revocation proceeding is not a right to which defendants are entitled, under either the federal due process clause or the Connecticut rules of practice. State v. Strickland, 42 Conn. App. 768, 783, 682 A.2d 521 (1996). We reverse the judgment of the Appellate Court.

The record reveals the following facts and procedural history. On November 17, 1988, the defendant pleaded guilty to kidnapping in the second degree in violation of General Statutes § 53a-94, assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). The trial court sentenced the defendant to a term of imprisonment of eleven years, execution suspended after four and one-half years, and probation of three years. On November 1, 1992, after serving approximately four years of his sentence, the defendant was released subject to certain conditions of probation.

On March 10, 1994, the defendant was involved in an incident at the home of a friend that resulted in criminal charges against him. Thereafter, the defendant’s probation officer prepared an arrest warrant based upon the defendant’s failure to report to her as directed on two occasions and the alleged criminal violations pertaining to the March 10,1994 incident. By an amended information dated January 25,1995, the defendant was charged with a violation of probation pursuant to General Statutes § 53a-32. On February 6,1995, at the conclusion of the liability portion of the probation revocation hearing, the trial court determined that the state had proven by a fair preponderance of the evidence that the defendant had violated the conditions of his probation by failing to report as directed to his probation officer on the dates alleged, carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a), obliterating the identification number on a pistol or revolver in violation of General Statutes § 29-36, and criminally possessing a firearm in violation of General Statutes § 53a-217.

Following the trial court’s finding of liability, the hearing entered the disposition phase. The transcript reveals that the following exchange then occurred:

“[Jerome Rosenblum, Assistant Public Defender]: Well, this — because of the substantial exposure here, Your Honor, and because of the nature of this incident, I would like to take a deep breath and suggest to the court that a presentence report or some update of his status ought to be in order by the probation department. And I would ask Your Honor to consider that request.

“The Court: No. Have you got anything else to say?

“Mr. Rosenblum: A lot.

“The Court: The beneficial purposes of his probation to wit, his rehabilitation and the protection of society are no longer being served by this man being on probation. The sentence of probation is revoked and the defendant is ordered to serve as much of the original sentence as has not yet been served. Recess.

“[The Defendant]: Excuse, Your Honor, may I say something? Can I say something to you, sir?

“The Court: You can tell it to the people in the institution where you are being taken, sir.

“[The Defendant]: Can I — may I just say something to you sir?

“The Court: The court is in recess.”

The proceedings were then adjourned.

On appeal before the Appellate Court, the defendant claimed that he was improperly deprived of the opportunity to address the court during the disposition phase of the revocation proceeding. The Appellate Court affirmed the trial court’s judgment, finding that, in Connecticut, no right of allocution exists at a probation revocation hearing. State v. Strickland, supra, 42 Conn. App. 783. This appeal followed.

I

Before addressing the specific application of the rules of practice to probation revocation proceedings, we review the historical underpinnings of the right of allocution. Allocution, or the right of a defendant to make a statement to the court on his own behalf and present information in mitigation of sentence, has its origins in the ancient common-law practice of inquiring of every defendant if he had anything to say before sentence was imposed. The practice is so old that its precise origins are unknown, but, as early as 1689, it had become apparent that the practice was more than a mere formality; in fact, the right of allocution was considered important enough at that time to require reversal when the court failed to make the inquiry of a defendant. See Anonymous, 3 Mod. 265, 87 Eng. Rep. 175 (1689). Historically, the practice marked a critical juncture in criminal proceedings, as it afforded defendants the opportunity to inform the court as to the applicability of any of numerous recognized exemptions from the otherwise severe punishments imposed by the common law of the period. When asked whether sentence should not be pronounced, a defendant might then “plead his benefit of clergy, that he had obtained a pardon, identity of person, pregnancy [insanity] or . . . any ground in arrest of judgment . . . .” (Internal quotation marks omitted.) P. Barrett, “Allocution,” 9 Mo. L. Rev. 115, 121 (1944).

Although the original common-law circumstances necessitating the practice gradually ceased to exist, and many jurisdictions had occasion to question whether it had become obsolete, the practice continued in numerous jurisdictions because it was recognized that allocution continued to serve an important function. The idea of permitting defendants an opportunity to request mitigated punishment was present in Connecticut’s early jurisprudence. Chief Judge Zephaniah Swift described the practice as follows: “The judge then demands of the prisoner if he has any thing to say .... This is rather [a] matter of form, as all the legal means of defence have been previously exhausted: but the court will permit the prisoner to make any respectful remarks respecting his case in mitigation of his conduct. . . .” (Emphasis added.) 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 417. An early New Mexico case explained another purpose that, over the centuries, allocution had come to serve: “The object of the address is to give the defendant the opportunity to personally lay before the court statements which, by the strict rules of law, could not have been admitted when urged by his counsel in the due course of legal procedure; but which, when thus informally offered from man to man, may be used to extenuate guilt and to mitigate punishment.” (Internal quotation marks omitted.) Territory v. Webb, 2 N.M. 147, 158 (1881).

Modem day justifications for preserving the practice focus on tailoring punishment to individual circumstances, providing an avenue through which a defendant may ask for mercy based on factors that might not otherwise be brought to the court’s attention, and promoting safety, certainty and equity in sentencing and the judicial process overall. “[T]he opportunity to plead for mercy is another provision in a procedural body of law designed to enable our system of justice to mete out punishment in the most equitable fashion possible, to help ensure that sentencing is particularized and reflects individual circumstances. . . . Aside from its practical role in sentencing, the right has value in terms of maximizing the perceived equity of the process.” (Citations omitted; internal quotation marks omitted.) United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991). “The right of allocution affords a criminal defendant the opportunity to make a final plea to the judge on his own behalf prior to sentencing. . . . Ancient in law, allocution is both a rite and a right. It is designed to temper punishment with mercy in appropriate cases . . . .” (Citation omitted.) United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). “[AJllocution provides a defendant the opportunity to meaningfully participate in the sentencing process and to show that he or she is a complex individual and not merely an object to be acted upon.” (Internal quotation marks omitted.) State v. Chow, 77 Haw. 241, 250, 883 P.2d 663 (1994).

Thus, although at one time allocution as a critical stage in criminal proceedings was perceived to be on the wane in some jurisdictions, it has not disappeared from our jurisprudence, but instead has been affirmatively adopted by statute or procedural rule in several jurisdictions during the modem era. The United States Supreme Court has stated: “We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century . . . [b]ut we see no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modem innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961) (construing mle 32 [a] of Federal Rules of Criminal Procedure, now mle 32 [c] [3] [C], providing right of allocution in federal cases).

II

In this case, the state does not dispute that in Connecticut a right of allocution is provided for by Practice Book § 919 (3). In its first claim, however, the state argues, that probation revocation proceedings are governed by Practice Book § 943, not § 919. Specifically, the state contends that because § 943 does not expressly incorporate § 919 (3) by reference, § 919 (3) was not intended to extend to revocation proceedings. Further, the state contends, and a majority of the Appellate Court panel found, that § 919 (3) cannot be construed to apply to revocation proceedings without rendering § 943 in large part superfluous. State v. Strickland, supra, 42 Conn. App. 780. The defendant argues that the two provisions can be read together to apply to revocation proceedings without rendering any portions of either to be surplusage. We agree with the defendant.

Initially, we note that our Practice Book provisions are interpreted in accordance with the same principles that guide interpretation of our General Statutes. Therefore, our rules of practice should be construed harmoniously and not in a way that would render one provision superfluous as a result of the existence of another. State v. Spears, 234 Conn. 78, 91, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995); State v. Ellis, 197 Conn. 436, 472-73, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990).

We also note, at the outset, that this court has previously established that a probation revocation proceeding consists of two distinct stages. State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994). The first phase is conducted to determine liability, and requires the trial court to hold “an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation.” Id., 289. The second, or disposition, phase occurs if a violation of probation is established in the first phase. Id., 290; see Practice Book § 943. During the second phase, the court makes its disposition as authorized by § 53a-32.

The state’s first claim, that § 919 (3) is inapplicable to revocation of probation proceedings because, it is not expressly incorporated into § 943, requires a careful examination of those provisions. Section 919 is a detailed provision that specifies the procedures to be followed at sentencing hearings, and subsection (3) specifically provides that the voice of the defendant himself is to be heard at the hearing should he elect to allocute. Section 943 addresses the revocation of probation. In addition to specifying the conditions under which and by what process a revocation proceeding may be initiated, § 943 requires that the liability phase of revocation proceedings be conducted in accordance with Practice Book §§ 634 through 685, covering, inter alia, arraignment. Section 943 further provides that the prosecuting authority and the defendant be afforded the opportunity to present evidence and cross-examine witnesses.

Within § 943, the only sentence that pertains to the disposition phase of the revocation proceeding is the sentence that provides that “[i]f the defendant admits the violation or the judicial authority finds from the evidence that the defendant committed the violation, the judicial authority may make any disposition authorized by law.” The earlier provisions of § 943, on the other hand, are directed toward the liability phase of the proceeding. Once this distinction is identified, it becomes apparent that reading § 919 (3) to apply to the disposition phase of a probation revocation proceeding does not create a conflict with § 943. Section 943 does not purport to govern probation revocation proceedings exclusively, and in fact does not address the procedure to be followed during the disposition phase of the hearing at all. The fact that § 943 specifies procedures to be followed during the liability phase but not the disposition phase of revocation proceedings need not compel the conclusion that there are no procedural requirements whatsoever applicable to the latter phase. In particular, the absence of specific requirements under § 943 should not be dispositive where the purposes underlying § 919 (3) would best be served by holding that section applicable to the proceeding in which the original sentence is reopened and modified. Therefore, this claim alone does not preclude the application of § 919 (3) to probation revocation proceedings.

The state’s second claim is that the plain language of § 919 (3) precludes its application to probation revocation proceedings, because § 919 (3) provides that it applies to sentencing, and a revocation of probation is not a sentencing. The defendant argues that because the disposition phase of a probation revocation proceeding is, in substance, largely indistinguishable from the sentencing that follows a criminal prosecution, the right of allocution should also apply to revocation proceedings. We agree with the defendant.

Although § 919 (3) refers specifically to sentencing, the disposition phase of the probation revocation proceedings is not so dissimilar to original sentencing as to necessarily exclude it from § 919 (3). We have characterized the disposition phase as “a final modification of the sentence which is the judgment of the court in the proceedings against the defendant”; State v. Roberson, 165 Conn. 73, 82, 327 A.2d 556 (1973); and, in determining subject matter jurisdiction, we have stated that “[rjevocation is a continuing consequence of the original conviction from which probation was granted . . . .” (Citation omitted; internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 306, 610 A.2d 1147 (1992), rev’d on other grounds, 228 Conn. 487, 636 A.2d 840 (1994).

Our conclusion is reinforced by § 53a-32 (b), which authorizes specific dispositions that trial courts may make once a violation of probation has been established. First, § 53a-32 (b) employs sentencing language. That subsection provides that courts may continue the sentence of probation, modify or enlarge the conditions of probation, extend the period of probation, or revoke probation and require the defendant to serve the remainder of his original sentence or “impose any lesser sentence.” Second, § 53a-32 (b) affords trial courts considerable discretion in making such dispositions. Although the length of time that a defendant can be required to serve in confinement is capped by the length of the original sentence remaining, the discretion afforded to the trial court is in other respects identical to the discretion provided to the court at the time of the original sentencing.

General Statutes § 51-195 lends further support to the argument that, in Connecticut, revocation of probation proceedings embody a form of sentencing. Under § 51-195, a defendant is entitled to sentence review if the revocation proceeding results in the defendant being required, as here, to serve more than three years in confinement. Sentence review is provided under exactly the same circumstances as those under which a defendant is entitled to sentence review of an original sentence. Section 51-195, therefore, provides a strong indication that courts, in revoking probation, are in effect actually sentencing probationers. Furthermore, the transcript of the disposition phase of a probation revocation proceeding, like the transcript of an original sentencing proceeding, is made available to the sentence review panel in order to enable that panel to review all of the surrounding circumstances of the sentencing.

Other jurisdictions that have considered whether probation revocation proceedings involve the imposition of sentence, and, therefore, implicate the right of allocution, have looked to whether the presiding judicial authority is vested with discretion in determining the sanction for a violation of probation. In United States v. Barnes, supra, 948 F.2d 332, the Court of Appeals for the Seventh Circuit interpreted rule 32 (a) (1) (C) of the Federal Rules of Criminal Procedure, now rule 32 (c) (3) (C), the federal rule providing a right of allocution, to apply “at probation revocation hearings in which sentencing is imposed, after an earlier deferral of sentencing, or in cases in which resentencing follows a vacated sentence.” The court’s reasoning distinguished between cases in which a sentence had been imposed but its execution had been deferred and cases in which imposition of a sentence was postponed. In the former category of cases, the court found that allocution would not be required. Because the sentence to be imposed was predetermined, the court reasoned, an opportunity to plead for mercy would be meaningless. The court held, however, that when the imposition of sentence is postponed, allocution must be granted at the probation revocation proceeding. In that situation, the court recognized that the scope of the punishment is not preordained and the right to allocution remains significant. Id., 329.

In United States v. Carper, 24 F.3d 1157, 1160-61 (9th Cir. 1994), the court applied the reasoning in Barnes to sentencing that followed the revocation of supervised release. The court identified three categories of revocation proceedings: “(1) proceedings that reinstate a previously imposed sentence whose execution has been suspended; (2) proceedings that impose a new sentence for a conviction for which sentencing was previously deferred; and (3) proceedings that impose a new sentence based on conduct that occurred during supervised release.” Id., 1160. The court emphasized that whether allocution was required depended upon the category of proceeding at issue. The proceeding in Carper fell into the third category. The court decided that because the scope of the punishment for conduct occurring during supervised release is not preordained, allocution must be afforded. Id., 1161-62.

In this case, like in Barms and Carper, the punishment to be imposed for a violation of probation was not preordained. Under § 53a-32, the court was vested with broad discretion during the disposition phase of the revocation hearing. State v. Davis, supra, 229 Conn. 290. The court was not obligated to require the defendant to serve any or all of his remaining sentence; indeed, it had the discretion to continue probation, and modify or enlarge the conditions if it so chose. In these circumstances, allocution was not rendered a meaningless formality by a predetermined outcome to the proceeding. Instead, the circumstances involved an exercise of broad discretion that the defendant could have attempted to influence if allocution had been allowed. Although the defendant had an opportunity to make a statement on his own behalf at his original sentencing, that opportunity did not allow him meaningfully to attempt to influence the exercise of another .judge’s discretion with regard to the consequences to be imposed for the subsequent violation of probation. In other words, timing is an important element of the right of allocution. See United States v. Behrens, 375 U.S. 162, 165, 84 S. Ct. 295, 11 L. Ed. 2d 224 (1963) (right of allocution would be largely lost if afforded only at time of preliminary commitment and not at final sentencing, which is sentencing that really matters); United States v. Buckley, 847 F.2d 991, 1002 (1st Cir. 1988) (right of allocution must be extended when defendant is finally sentenced, even if allocution previously afforded at provisional sentencing).

For all of the above reasons, and in light of the fundamental purposes served by allocution, namely, maintaining fair standards of procedure, individualized and equitable sentencing, and the perception of fairness in the judicial system overall, we conclude that § 919 (3) was intended to apply to the disposition phase of probation revocation proceedings. Furthermore, it is worth noting that the application of § 919 (3) to revocation proceedings will not impose a significant burden on our trial courts. “The right of allocution is minimally invasive of the sentencing proceeding; the requirement of providing the defendant a few moments of court time is slight. ... In an age of staggering crime rates and an overburdened justice system, courts must continue to be cautious to avoid the appearance of dispensing assembly-line justice.” United States v. Barnes, supra, 948 F.2d 331.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to a trial court other than the court that revoked the defendant’s probation with direction to conduct another disposition phase of the probation revocation proceeding during which the defendant is to be allowed the right of allocution.

In this opinion the other justices concurred.

       We granted the defendant’s petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that neither the Practice Book nor the due process clause of the federal constitution provides a right of allocution during the revocation portion of a probation revocation proceeding?” State v. Strickland, 239 Conn. 932, 683 A.2d 400 (1996). Because we conclude that the rules of practice provide a right of allocution, we do not review that part of the certified issue questioning whether the due process clause of the federal constitution requires that the defendant be afforded this right.

       The details of that incident are reported fully in the Appellate Court opinion. See State v. Strickland, supra, 42 Conn. App. 770-71.

       See footnote 10 of this opinion.

       Connecticut was one jurisdiction that questioned the continuing validity of the practice, although it would later provide for allocution by procedural rule. See State v. Hoyt, 47 Conn. 518, 545-46.

       By the twentieth century at least twenty-one states had statutes specifically providing for a right of allocution, at least twelve states and the federal jurisdiction recognized a common-law right of allocution, and several others provided for allocution by custom. The American Law Institute’s proposed Code of Criminal Procedure also provides for the right of allocution. P. Barrett, supra, 9 Mo. L. Rev. 125-26.

       Practice Book § 919 provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows . . .
      “(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. . . .”

       Practice Book § 943 provides in relevant part: “In cases where the revocation of probation is based upon a conviction for a new offense and the defendant is before the court or is being held in custody pursuant to that conviction, the revocation proceeding may be initiated by a motion to the court by a probation officer and a copy thereof shall be delivered personally to the defendant. All other proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of the defendant’s probation or his or her conditional discharge or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation. All proceedings thereafter shall be in accordance with the provisions of Secs. 634 through 686. At the revocation hearing, the prosecuting authority and the defendant may offer evidence and cross-examine witnesses. If the defendant admits the violation or the judicial authority finds from the evidence that the defendant committed the violation, the judicial authority may make any disposition authorized by law. ...”

       As a threshold matter, the state claims that because the defendant failed to request permission to address the trial court before the court announced its decision to revoke his probation, but only requested such permission afterward, the defendant’s claim was not properly preserved for review. The Appellate Court refused to consider the issue, although it was raised by the state in its appeal to that court.
      Although counsel for the defendant was ostensibly given an opportunity to address the trial court, he was only able to respond to the trial court by uttering two words before being interrupted by the court’s determination that the probation was to be revoked and the remainder of the original sentence imposed. Immediately after the court’s announcement, the defendant twice attempted to address the court. In response to the first attempt, he was told by the trial court that he could “tell it to the people in the institution where [he was] being taken . . . .” In response to the second attempt, the trial judge adjourned court and left the bench. Under these circumstances, we believe that the defendant did everything in his power to make clear that he sought an opportunity to address the court. The claim, therefore, was properly preserved for review.

       Practice Book §§ 634 through 685 also provide in part for pretrial release, specifically, §§ 652 through 685.

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation . . . . [T]he court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       General Statutes § 51-195 provides in relevant part: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed . . . file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. . . .”

       See Practice Book §§ 939 through 941.