author: NORCOTT, J.

text:
    STATE OF CONNECTICUT v. TODD DARNELL DAVIS
    (SC 16329)
    Borden, Norcott, Katz, Palmer and VertefeuiUe, Js.
    Argued December 6, 2000
    officially released April 24, 2001

      Pamela S. Nagy, special public defender, with whom were Donald LaRoche, certified legal intern, and, on the brief, Christopher N. Parlato, certified legal intern, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Donna Mambrino, senior assistant state’s attorney, for the appellee (state).
   Opinion

NORCOTT, J.

The dispositive issue in this appeal is whether General Statutes § 53-202k/ which requires that a defendant receive an additional five year sentence when a firearm is involved in the commission of certain felonies, applies to unarmed accomplices. A jury convicted the defendant, Todd Darnell Davis, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and burglary in the first degree in violation of General Statutes § 53a-101 (a) (l). After the trial court rendered judgment sentencing the defendant for these offenses, it imposed two additional five year terms of imprisonment for the commission of a class A, B or C felony with a firearm, pursuant to § 53-202k. The defendant appeals claiming, inter alia, that his convictions of robbery in the first degree and burglary in the first degree are not amenable to enhancement under § 53-202k because that provision applies only to convictions based on principal, not accessorial, liability. We conclude that the application of the sentence enhancement statute to an accessory was proper and, therefore, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 19, 1997, the defendant and another man entered a Burger King restaurant by hurling a cement block through a locked glass door. The men subsequently entered the establishment wearing masks and jumped over the service counter. Two employees, who were in the process of closing the restaurant for the evening, described one of the men as tall, thin and armed with a handgun, and described the other man as being of medium build and height. In an effort to appease the men, one of the employees offered them the money in the restaurant’s safe. As the employee worked to open the safe, the tall, thin man held a gun to the employee’s head. Once the safe was opened, the two men seized the cash and exited through the rear door. As the men drove out of the parking lot, the employee gained an unobstructed view of their vehicle. The employee instructed someone to call 911 with a description of the vehicle, which included the license plate number VMGEEN.

As the police dispatcher reported the armed robbery and a description of the vehicle involved, a police officer observed a vehicle that matched the description traveling at a high rate of speed and bearing the license plate number VMGEER. A chase of the vehicle ensued. After briefly losing sight of the vehicle, the police located it in the parking lot of an apartment complex. The car was abandoned but still running. Inside the vehicle, the police discovered a nine millimeter Smith and Wesson handgun, a cash drawer, a ski mask and cash strewn about.

A certified canine police dog was used to track the scent from the driver’s seat area and led the police to the discovery of a backpack hidden in the nearby woods. The backpack contained approximately $3261.25 in cash and a Burger King bank deposit slip. Thereafter, the police dog continued to track the scent and followed it to the defendant, whom the police temporarily had detained for questioning. The dog indicated through its actions that the suspect was the same individual who previously had been in the driver’s seat of the abandoned vehicle. Upon questioning by the police, the defendant explained that he was coming from a friend’s house and had been out for ajog. The defendant was unable to say where his friend lived or the friend’s last name. The defendant’s girlfriend, who also lived in the area, was unable to confirm that the defendant had been jogging. The second robber has never been identified or apprehended.

Prior to trial, the state served notice on the defendant that, in the event of his conviction for a class A, B or C felony with a firearm, he would be subject to the mandatory sentence enhancement provisions of § 53-202k. At trial, the state provided evidence that footprints at the restaurant were made by the defendant’s sneakers. In addition, there was evidence that hair strands recovered from the mask located in the abandoned vehicle were similar to hair strands belonging to the defendant. The defendant did not testify at trial and presented no witnesses at trial. The jury ultimately convicted the defendant of robbery in the first degree in violation of § 53a-134 (a) (2), and burglary in the first degree in violation of § 53a-101 (a) (1).

At the sentencing hearing, the defense counsel remarked, and the state agreed, that there was testimony at trial indicating that the defendant, if present at the crime scene, was unarmed. Thereafter, the court imposed a sentence of eighteen years for the robbery conviction, plus a consecutive five year enhancement pursuant to § 53-202k. Additionally, the court imposed a sentence of five years for the burglary conviction, plus a five year enhancement pursuant to § 53-202k, to run concurrently with the robbery sentence. Thus, the total effective sentence was twenty-three years. Regarding the application of the sentence enhancement, the court explained: “As to any language interpretation of § 53-202k, it’s the court’s position that even though the language says ‘any person,’ that it does not make clear that he has to be the actual person who possesses the gun; that just like any automatic accesso-rial language that a principal and accessory are equally guilty, that must also apply to the § 53-202k language and that, therefore, he is guilty also under the § 53-202k language under accessorial liability.”

The defendant’s appeal from the judgment of the trial court is limited to the following issues: (1) whether the trial court properly imposed an additional five year imprisonment to both the defendant’s sentences, pursuant to § 53-202k, where he was an unarmed accomplice; (2) if so, whether the defendant’s sentences under § 53-202k should be vacated because the trial court imposed the mandatory five year sentences without having the jury determine whether a firearm was used during the commission of the crimes; and (3) whether the trial court’s jury instructions improperly invaded the province of the jury by suggesting that certain elements of the state’s case had been proven and that the defendant was guilty. We conclude that: (1) the trial court properly applied § 53-202k to an unarmed accomplice; (2) the defendant’s sentences under § 53-202k should not be vacated because the trial court’s failure to instruct the jury to determine whether a firearm was used during the commission of the crimes was harmless; and (3) the trial court’s instructions to the jury were not unfairly suggestive. Accordingly, we affirm the judgment of the trial court.

I

The defendant first claims that the trial court’s application of § 53-202k, which resulted in an enhanced sentence, is inapplicable to him as an unarmed accomplice. Specifically, the defendant contends that the plain language and legislative history of § 53-202k demonstrate the legislature’s intent that the statute apply only to an individual who actually uses a firearm during the commission of a felony. The state, on the other hand, urges application of the enhancement statute to the defendant because the basic theory of accessorial liability requires such an interpretation. We agree with the state and, therefore, we conclude that an unarmed accomplice is subject to an enhanced penalty under § 53-202k.

Our analysis is governed by well established principles of statutory construction. “Statutory construction is a question of law and, therefore, our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Vel-asco, 253 Conn. 210, 219-20, 751 A.2d 800 (2000); see also State v. Parra, 251 Conn. 617, 622, 741 A.2d 902 (1999); State v. Dash, 242 Conn. 143, 146-47, 698 A.2d 297 (1997).

When the statute in question is one of a criminal nature, we are guided by additional tenets of statutory construction. First, it is axiomatic that we must refrain from imposing criminal liability where the legislature has not expressly so intended. State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989). Second, “[c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” (Internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 340, 662 A.2d 1199 (1995). Finally, “unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” State v. Ross, 230 Conn. 183, 200, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).

With these guidelines in mind, we look to the text of § 53-202k. The statute provides for a mandatory five year term of imprisonment whenever a defendant, “in the commission of [any class A, B or C] felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3 . . . .” General Statutes § 53-202k. The defendant equates the statute’s failure to make an express reference to accomplices with an affirmative decision by the legislature to apply § 53-202k only to principals. We disagree.

In making such an assertion, the defendant attempts to draw a distinction between principal and accessorial liability. Such a differentiation, however, misconstrues the nature of accessorial liability. This court has long since abandoned any practical distinction between the terms “accessory” and “principal” for the purpose of determining criminal liability. In re Ralph M., 211 Conn. 289, 299, 559 A.2d 179 (1989); State v. Foster, 202 Conn. 520, 532, 522 A.2d 277 (1987). “The defendant is incorrect . . . when he argues that his liability turns on whether he was found to be a ‘principal’ or an ‘accessory.’ Those labels are hollow . . . .” State v. Harris, 198 Conn. 158, 165, 502 A.2d 880 (1985). Instead, “[t]he modem approach is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime.” (Internal quotation marks omitted.) State v. Foster, supra, 532. The legislature adopted this view and expressed it in General Statutes § 53a-8 (a). Accordingly, “accessorial liability is not a distinct crime, but only an alternative means by which a substantive crime may be committed . . . .” State v. Foster, supra, 532.

This principle is apparent throughout our state’s criminal statutes. General Statutes § 53a-54a (a), for example, provides that “[a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .” (Emphasis added.) The fact that our murder statute prohibits specified criminal conduct of the principal actor, without ever expressly including accomplices, does not preclude its application to accomplices. Although, by its terms, our murder statute encompasses only the principal actor, it undoubtedly applies to all participants in the crime. See, e.g., State v. Henry, 253 Conn. 354, 358, 752 A.2d 40 (2000); State v. Delgado, 247 Conn. 616, 622, 725 A.2d 306 (1999).

The defendant’s liability in the present case, which stems from his role as an accessory, provides a similar example. The defendant was charged with and convicted of robbery and burglary in the first degree, crimes which necessarily entail possession of a deadly weapon. The state, however, did not allege that the defendant was the participant actually in possession of the deadly weapon. The court’s jury charge demonstrates that the identity of the actual possessor of the weapon was irrelevant. The court explained that “[t]here’s only one charge. There’s the burglary [in the first degree] charge. There is no such crime as being an accessory. The accessory statute merely provides an alternative means by which a substantive crime may be permitted. . . . So you can look at the defendant, whether or not he’s guilty, as the princip[al] or the accessory. It’s one and the same thing. All you have to be unanimous on is it’s one or the other to find him guilty beyond a reasonable doubt.” Thus, we reject the defendant’s argument that the legislature’s decision not to include any accessory language in § 53-202k renders the statute inapplicable to such persons.

“Because the legislature is presumed to know the state of the law when it enacts a statute; State v. Dab-kowski, 199 Conn. 193, 201, 506 A.2d 118 (1986); we can assume that, absent an affirmative statement to the contrary, it did not intend to change the existing law to create a distinction between accessories and principals when it enacted the present [enhancement statute].” In re Ralph M., supra, 211 Conn. 300. Had the legislature intended to deviate from our usual practice of treating accessories and principals alike, it “easily could have expressed this intent.” State v. Desimone, 241 Conn. 439, 455, 696 A.2d 1235 (1997); see also State v. Velasco, supra, 253 Conn. 228. In the absence of specific language to that effect, we refuse to adopt an interpretation of § 53-202k that would require courts to retreat to the days of determining which actors should be identified as principals and which should be identified as accomplices.

The fact that § 53-202k is a sentence enhancement provision rather than a separate and distinct offense; see State v. Dash, supra, 242 Conn. 148; is of no consequence to our analysis. The accomplice liability statute permits an accessory to be “prosecuted and punished as if he were the principal offender.” (Emphasis added.) General Statutes § 53a-8 (a). Thus, once convicted of armed robbery and armed burglary, even if as an accessory, the defendant is legally indistinguishable from the principal actor. Accordingly, the defendant is subject to the enhancement penalty that the principal also would have received had he been caught and convicted. For purposes of legal analysis, it is irrelevant that the defendant did not actually possess the gun.

The defendant’s argument, taken to its logical end, would require a determination as to which party was the accessory and which party was the principal in any crime involving more than one participant. We decline to abandon years of case law that clearly has established the insignificance of this distinction for the purposes of criminal liability.

II

Having determined that § 53-202k applies to accomplices, we now must address whether the trial court improperly imposed the enhanced sentence. The defendant claims that the trial court improperly failed to have the jury determine whether the state had proven that the defendant, or an accomplice, had used a firearm in the commission of a class A, B or C felony in violation of § 53-202k. The enhanced penalty, the defendant argues, should therefore be vacated. The state maintains, however, that it was harmless error for the trial court, rather than the jury, to determine that the requisite elements of § 53-202k had been satisfied. Although we agree that the jury, and not the trial court, must make the factual findings required under § 53-202k, we conclude that under the circumstances of this case, the trial court’s failure to instruct the jury regarding the elements of the sentence enhancement statute was harmless.

In State v. Velasco, supra, 253 Conn. 217, we determined that it was not the legislature’s intent to eliminate the jury’s role as fact finder during application of § 53-202k. Accordingly, we held that § 53-202k requires the jury, and not the trial court, to determine whether a defendant uses a firearm in the commission of a class A, B or C felony for purposes of the enhancement penalty. Id. We also noted, however, that the trial court’s failure to allow the jury to make the factual determinations pursuant to § 53-202k was amenable to harmless error analysis. Id., 233. In the course of that analysis, we explained that the defendant’s conviction for felony murder and conspiracy to commit robbery was not necessarily predicated on a finding that the defendant was armed. Id., 235-36. Thus, we set forth the standard by which harmless error in omitted jury instructions should be measured. “A jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error .... Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).” (Emphasis in original; internal quotation marks omitted.) State v. Velasco, supra, 232-33; see also State v. Faust, 237 Conn. 454, 470-71, 678 A.2d 910 (1996). We concluded in Velasco that the evidence that the defendant utilized a firearm during the commission of the felony was neither overwhelming nor uncontested. State v. Velasco, supra, 234. Accordingly, we determined that the trial court’s error was harmful and we vacated the enhanced penalty under § 53-202k. Id., 236.

In State v. Montgomery, 254 Conn. 694, 735, 759 A.2d 995 (2000), however, we concluded that a similar error was harmless. In Montgomery, the trial court failed to instruct the jury regarding the elements of § 53-202k. Id., 737. Nevertheless, we concluded that “the jury’s finding that the defendant had committed murder, a class A felony, necessarily satisfied the requirement of § 53-202k that the defendant commit a class A, B or C felony. Because, however, the use of a firearm is not an element of the crime of murder . . . the jury lawfully could have returned a finding of guilty on the murder charge without also having found that the defendant had used a firearm in the commission of that crime.” Id. Referring to the harmless error standard as it relates to an omitted element in the jury charge, we explained that the defendant did not contest the “incontrovertible evidence” that the victim was shot with a firearm. Id., 738. Because the jury found beyond a reasonable doubt that the defendant was guilty of the victim’s murder, a class A felony, and because the defendant did not dispute the fact established by incontrovertible evidence, that a firearm caused the victim’s fatal wounds, we concluded that the omitted element was “uncontested and supported by overwhelming evidence.” Id. Accordingly, the error was harmless beyond a reasonable doubt. Id.

In the present case, it is undisputed that the trial court failed to instruct the jury on either of the two elements of § 53-202k. By virtue of finding the defendant guilty of robbery and burglary in the first degree, however, the jury necessarily found that the defendant had committed class B felonies. Thus, the jury, in effect, made the proper factual determination with respect to the first element of § 53-202k.

With respect to the second element of § 53-202k, the defendant did not dispute the overwhelming evidence that either he or another participant utilized a firearm during the commission of the crime. First, a finding that one of the participants to the crime was armed with a deadly weapon is indispensable to the jury’s verdict that the defendant was guilty of robbery and burglary in the first degree. The defendant contends, rather, that his convictions likely were predicated on the fact that the other participant, rather than the defendant himself, was armed. As previously stated in part I of this opinion, we refuse to recognize this distinction. Second, several witnesses testified that the “tall and thin” intruder, not the defendant, possessed a handgun during the commission of the crime. Finally, a nine millimeter Smith and Wesson handgun was recovered in the abandoned vehicle linked to the crime. None of this evidence was challenged by the defendant. Accordingly, we conclude that there was “uncontested” and “overwhelming evidence” that a firearm was involved in the commission of these class B felonies. The two elements of § 53-202k clearly had been satisfied. Thus, the trial court’s failure to instruct the jury on the elements of § 53-202k was harmless beyond a reasonable doubt.

III

The defendant’s final claim is that the trial court improperly invaded the province of the jury by suggesting that certain elements of the state’s case had been proven and that it believed that the defendant was guilty. The defendant failed to preserve this claim at trial and now seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the defendant failed to demonstrate that a constitutional violation clearly exists and deprived him of a fair trial, his claim fails under the third prong of Golding.

“The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . and therefore, we have stated that a charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 169, 665 A.2d 63 (1995); see also State v. Canty, 223 Conn. 703, 716, 613 A.2d 1287 (1992). “Atrial court often has not only the right, but also the duty to comment on the evidence.” State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991). “To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserves equal attention. . . . In marshaling the evidence, the court must be careful not to imply any favor or criticism of either side.” (Citation omitted; internal quotation marks omitted.) State v. Figueroa, supra, 170.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient, for the guidance of the jury ... we will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995)____ In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the puipose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.” (Citations omitted; internal quotation marks omitted.) State v. Albert, 252 Conn. 795, 815-16, 750 A.2d 1037 (2000); see also State v. Hernandez, supra, 218 Conn. 465; State v. Collette, 199 Conn. 308, 316-17, 507 A.2d 99 (1986). Having evaluated the court’s comments in their entirety, we are unpersuaded that an injustice occurred.

The defendant argues that the court’s charge suggested to the jury that certain elements of the state’s case had been proven and that the defendant was guilty. Our review of the charge, however, reveals no such implications. Although the court may have provided a more detailed account of the state’s evidence, its summary of the defendant’s evidence was more than adequate. “One obvious reason more time was spent in marshalling the state’s evidence is simply that there was more of it.” State v. Marra, 222 Conn. 506, 539, 610 A.2d 1113 (1992). The defendant did not testify at trial, nor did he present much evidence. Although it is undeniable that a jury charge must not mislead the juiy, “the nature and extent of the trial court’s comments . . . largely depend on the facts involved in a particular case and the manner in which it has been tried.” (Internal quotation marks omitted.) State v. Pollitt, 205 Conn. 132, 155, 531 A.2d 125 (1987).

We are further persuaded that the jury charge was sufficient given the extent to which the court did recapitulate evidence offered by the defense. For example, the jury charge noted that the defense elicited inconsistent statements from some of the state’s witnesses. The court also called attention to the fact that no one had positively identified the defendant as the perpetrator of the crime. In addition, the jury charge explicitly presented the defendant’s theory of defense, the inclusion of which has been relevant to our decision to uphold the adequacy of jury charges in other cases.

The defendant also disregards numerous other comments made by the court that demonstrate the overall impartial and unbiased nature of the jury charge. On two separate occasions, the court instructed the jury that the court had no opinion as to the innocence or guilt of the defendant, and any expressions by the court were not indicative of such. The court also clearly explained to the jurors that they were the sole assessors of which testimony to believe and which to reject. Moreover, there were numerous warnings throughout the charge that the state bore the burden to prove the defendant guilty beyond a reasonable doubt. Finally, the charge was replete with reminders that the jury, and not the court, was the lone evaluator of all issues of fact.

There is no reason to believe that the court’s charge ignored the defendant’s evidence. See State v. Figueroa, supra, 235 Conn. 170. The court specifically mentioned evidence supporting the defendant where applicable. Moreover, even a cursory review of the transcript reveals the neutral commentary that permeates the jury charge. The defendant’s claim focuses on only a few of the court’s specific comments, and ignores the overall content of the charge. Accordingly, we conclude that the court did not invade the province of the jury and the defendant’s claim, therefore, fails to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53-2021< provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-2.

       The court initially imposed a sentence of thirteen years for the robbery conviction, a concurrent five year sentence for the burglary conviction, and two consecutive five year terms, one for each conviction, in accordance with § 53-202k. Almost immediately, the court announced a correction of sentence resulting in the sentence explained in the text of this opinion.

       The defendant concedes that he did not object to the trial court’s application of § 53-202k and, therefore, that his claim was not preserved at trial. He therefore claims to prevail pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. We conclude that the defendant failed to demonstrate that a constitutional violation clearly exists and, therefore, his claim fails under the third prong of Golding.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally hable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       It should be noted that our burglary statute, § 53a-101, provides for liability if the actor commits the prohibited conduct. See footnote 3 of this opinion. Thus, it was necessary for the court to inform the jury that our criminal statutes automatically apply to accessories. In doing so, the court explained to the jury that there is no difference whether the defendant was the principal or accessory for purposes of a conviction under the burglary statute.
      By contrast, our robbery statute, § 53a-134, includes explicit accessory language within the text of the statute. See footnote 2 of this opinion. Because the robbery statute applies to principals and accessories on its face, the court did not need to explain the concept of accessorial liability to the jury as it relates to the robbery charge.

       Under the defendant’s approach, the resolution of a crime involving more than one participant necessarily would require a determination as to which individuals were principals and which individuals were accessories. An example of the difficulty that accompanies such a position was provided at oral argument before this court. Suppose that two assailants enter a store. One holds a gun and forces the cashier to hand over the contents of the register, while the other actually seizes the cash. The defendant is requesting that a determination be made as to which of these individuals, if any, would be an accomplice. If, in fact, the armed individual is the accessory, he would not be eligible for the sentence enhancement. Moreover, the assailant who seized the cash also would be ineligible for the sentence enhancement since he did not possess the firearm.
      Another example may illustrate more clearly the absurdity that would occur if we now had to categorize our criminals based on these previously forsaken distinctions. Suppose that an unarmed assailant committed a sexual assault on a victim who was restrained by an armed assailant. The defendant’s approach would name the armed individual as an accomplice, and the unarmed individual as the principal. Neither, however, would be eligible for the sentence enhancement since the principal did not possess the firearm.
      We cannot adopt any approach that could make these peculiar scenarios a reality. Rather, we rely on § 53a-8, which dictates that principals and accessories suffer the same consequences. Accordingly, a determination as to which participants to the crime fit within a particular category is unnecessary.

       We review this unpreserved claim, as we have in the past, under the principles of State v. Golding, supra, 213 Conn. 233. See State v. Montgomery, 254 Conn. 694, 735 n.46, 759 A.2d 995 (2000). Although the record is adequate for our review of the defendant’s constitutional claim, he cannot prevail under the fourth prong of Golding because the state was able to demonstrate that the error was harmless beyond a reasonable doubt. See footnote 6 of this opinion.

       The relevant issue in Velasco was whether the defendant himself was armed during the commission of a class A, B or C felony. We expressly declined to address whether § 53-202k applies to unarmed accomplices. State v. Velasco, supra, 253 Conn. 236. Accordingly, our conclusion in that case that the jury’s guilty verdict did not necessarily rest on a finding that the defendant personally was armed, does not preclude our decision today. Having now concluded that § 53-202k does apply to unarmed accomplices, the jury’s guilty verdict need rest only upon a finding that the defendant or an accomplice personally was armed.

       Both first degree robbery and first degree burglary require a participant to be armed with a deadly weapon. See footnotes 2 and 3 of this opinion.

       Although underscoring the importance of using a separate part B information to avoid the possibility of prejudice with our persistent offender statute, we rejected a similar need for a separate part B information in copjunction with prosecutions under § 53-202k. See State v. Velasco, supra, 253 Conn. 225 n.13. In doing so, we noted that “the proscribed use of a qualifying firearm requires additional factual findings relevant to the offense itself, not to the nature of the offender, and is thereby typically established by the same evidence used to demonstrate culpability for the underlying felony.” Id., 225-26 n.13. Accordingly, in the present case, the court’s failure to allow the jury expressly to find that the second element of § 53-202k was satisfied was not dispositive because the jury had considered such evidence in its consideration of the underlying felonies.

       The United States Supreme Court recently has announced that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 146 L. Ed. 2d 216 (2000). In doing so, the Supreme Court did not address whether the failure to make such a submission to the jury is amenable to a harmless error analysis.
      Constitutional errors deemed inappropriate for harmless error analysis arise from structural defects in the trial mechanism. Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). The Supreme Court, however, has determined that the omission of an element of a criminal offense from a jury instruction is not a structural defect and, therefore, is subject to harmless error analysis. Neder v. United States, supra, 527 U.S. 17. Thus, Apprendi does not preclude our use ol' the harmless error analysis in the present case, wherein there was no structural delect. See Sustache Rivera v. United States, 221 F.3d 8, 17-18 (1st Cir. 2000).

       See footnote 6 of this opinion.

       The court stated that “[t]he defendant denies 1hat he is the person who was involved in the commission of the alleged offenses at Burger King. He is thus raising the issue of mistaken identity.”

       See, e.g., State v. Figueroa, supra, 235 Conn. 171 (upholding jury charge that included defendant’s theory of defense); State v. Hernandez, supra, 218 Conn. 465 (holding that trial court’s improper jury charge failed to include defendant’s theory of defense); State v. Pollitt, supra, 205 Conn. 159 (upholding jury charge that included defendant’s theory of defense).


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    TOWN OF SOUTH WINDSOR v. SOUTH WINDSOR POLICE UNION LOCAL 1480, COUNCIL 15, AFSCME, AFL-CIO
    (SC 16338)
    Borden, Norcott, Katz, Sullivan and Vertefeuille, Js.

      Argued January 16
    officially released May 1, 2001

      Eric R. Brown, for the appellant (defendant).

      David L. Metzger, with whom were P. Jo Anne Burgh, for the appellee (plaintiff).

       The listing of justices reflects their seniority status on this court as of the date of oral argument.

   Opinion

BORDEN, J.

Within the past year, this court has had three occasions to elaborate on and apply the “public policy exception to the general rule of deference to an arbitrator’s award made pursuant to an unrestricted submission [to arbitration].” Groton v. United Steelworkers of America, 254 Conn. 35, 43, 757 A.2d 501 (2000); State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 474-75, 747 A.2d 480 (2000); Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 427-28, 747 A.2d 1017 (2000). This certified appeal presents us with a fourth such occasion.

Following our grant of certification to appeal, the defendant, the South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO, appeals from the judgment of the Appellate Court in favor of the plaintiff, the town of South Windsor. The Appellate Court affirmed the judgment of the trial court vacating an arbitration award ordering the reinstatement of the grievant, a South Windsor police officer, who had been terminated based on unfitness for duty. South Windsor v. South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO, 57 Conn. App. 490, 492,750 A.2d 465 (2000). In the Appellate Court’s view, the award violated “the specific public policy of a town’s control over the fitness for duty of its police force . . . .” Id., 511. We granted the defendant’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that the arbitrators’ award should be vacated on the ground of an important and clearly defined public policy?” South Windsor v. South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO, 253 Conn. 924, 754 A.2d 800 (2000). We conclude that the award did not violate an important and clearly defined public policy and, accordingly, we reverse the judgment of the Appellate Court.

On April 28,1992, the plaintiff terminated the employment of the grievant, John Marchesseault, as a police officer. The defendant filed a grievance that ultimately was submitted to arbitration. The arbitrators issued an award sustaining the grievance in part and denying it in part, and ordering Marchesseault reinstated on certain conditions. The plaintiff moved to vacate the award, and the defendant moved to confirm the award. The trial court rendered judgment granting the motion to vacate the award and denying the motion to confirm. The defendant appealed from the trial court’s judgment to the Appellate Court, which affirmed the judgment. South Windsor v. South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO, supra, 57 Conn. App. 511. This certified appeal followed.

The facts, as found by the arbitrators in their award dated June 11, 1996, are not in dispute. The case arose out of an incident that occurred on January 8, 1992. Marchesseault was a nine year veteran of the plaintiffs police department. Toward the end of the 3 p.m. to 11 p.m. shift, he was working alone in a radio car when he responded to a complaint by the recreation department of the town that several young men might be gaining entrance to the Ellsworth School to play basketball in the gymnasium. A supervisor of the recreation department had asked that a police car go to the building to check whether there were persons therein without permission.

As Marchesseault pulled up to the building, he saw lights on in the hallway. He radioed this information to police headquarters, along with his opinion that lights seemed to be about to come on in the gymnasium, and that he had found a window kicked in or broken at the rear of the gymnasium. The police dispatcher ordered a second radio car to proceed to the building as backup. As Marchesseault and the backup officer, James Nico-letta, were surveying the situation, the director of the recreation department arrived and unlocked the door to the building. Marchesseault entered first, followed by Nicoletta and the director.

Through the window of the gymnasium doors, they saw seven young men playing basketball. Marches-seault told Nicoletta that he intended to order them to the ground. He then drew his firearm, entered the gymnasium and yelled to the young men to get down on the floor. He advanced into the gymnasium, and asked Nicoletta to pat them down for weapons. March-esseault kept his weapon drawn for approximately one minute. Nicoletta, after checking the young men’s identifications, decided to issue them citations for simple trespass, which would result in a mail-in fine of $50. Nicoletta suggested to Marchesseault that he had overreacted, and Marchesseault agreed that there had been no need for him to draw his weapon, and that it had been dangerous to do so.

On his return to the department, Marchesseault told the sergeant what he had done. It was the end of the shift, and the shift supervisor had gone home. The next day, Marchesseault spoke to Lieutenant Roland J. Godin, and told him, “I fucked up last night.” Godin and Marchesseault then had two discussions in which they unsuccessfully attempted to determine what might have influenced Marchesseault’s conduct.

On or about January 13, 1992, the chief of police, Gary K. Tyler, received a letter of complaint from the mother of one of the young men involved in the incident. Tyler instituted an investigation, during which additional complaints were filed by three of the young men involved in the incident. Upon the conclusion of the investigation, Tyler discussed the situation with the town manager, and they concluded that Marchesseault would submit to an examination for fitness for duty. Tyler then reviewed the incident with Marchesseault, who repeated his admission that his conduct had not been proper. Tyler temporarily relieved Marchesseault of duty with pay, pending an evaluation of his fitness for duty.

In early February, 1992, Marchesseault was referred to Peter Zeman, a psychiatrist at the Institute of Living, for an evaluation of his fitness for duty. The plaintiff supplied Zeman with all of the information in Marches-seault’s file that had been gathered as part of the investigation. After their initial meeting, Zeman requested that Marchesseault also be referred to Leslie Lothstein, the director of psychology at the Institute of Living, for psychological testing and an additional opinion regarding his fitness for duty. After meeting with Marches-seault again and reviewing Lothstein’s report, in which Lothstein opined that Marchesseault was not fit for duty, Zeman reported to Tyler that it was his opinion that Marchesseault was not “ ‘fit for duty’ from a psychiatric perspective.” Both Lothstein’s and Zeman’s reports were sent to Tyler on March 30, 1992.

On April 9,1992, the town manager scheduled a hearing for April 15, 1992, to discuss the results of the evaluation reports and the January 8 incident. On April 20, 1992, the town manager met with Marchesseault and his attorney. They requested an opportunity to seek additional review of his fitness for duty, but the town manager denied that request. On April 28,1992, the town manager terminated Marchesseault from employment effective May 1, 1992, ruling that he was unfit for duty based on Zeman’s and Lothstein’s reports.

Article XVI of the collective bargaining agreement between the parties provided in relevant part that “[a] grievance . . . shall be considered to be employee or Union complaints concerned with: A. Discharge, suspension, or other disciplinary action. . . . D. Interpretation and application of rules and regulations and policies of the Police Department . . . .” The agreement also provided a grievance procedure of four steps, the last of which was “final and binding” arbitration before the state board of mediation and arbitration. Section 17.2 of article XVII, Discipline and Discharge, provided: “The Union shall have the right to question the propriety of any such disciplinary action or charge, involving suspension, discharge or reduction in grade or rank, through the grievance procedure herein outlined, including arbitration.” Marchesseault filed a grievance with the town manager on May 6, 1992, which she denied on May 19, 1992.

After exhausting the grievance procedures, the parties instituted this proceeding before a panel of three arbitrators of the state board of mediation and arbitration. Because the parties were unable to agree on a submission, the arbitrators framed the following submission: “1. Was the Grievant, Officer John Marches-seault, terminated by the Town of South Windsor for just cause? 2. If not, what shall the remedy be?” The hearings began on July 15,1993, and continued through March 4, 1994.

On July 12, 1993, Marchesseault had obtained a written opinion from Ronald Anderson, a psychologist, that he was “fit for duty.” On November 30,1993, while the hearings were in progress, Kenneth Selig, a psychiatrist who had interviewed Marchesseault in June and July, 1993, issued a written report stating that, in his opinion, because no one had diagnosed Marchesseault as suffering from any particular mental illness, he was fit for duty.

Faced with conflicting expert opinions regarding Marchesseault’s fitness for duty, the arbitrators initiated discussions between the parties regarding the appointment of an independent expert. As a result, the parties agreed that Ezra Griffith, a professor of psychiatry at Yale University, would evaluate Marchesseault for fitness for duty. Griffith’s evaluation was based on: an examination of Marchesseault; interviews with various individuals who had specific knowledge of March-esseault; an interview with Zeman; a comprehensive review of certain transcripts of the arbitration proceedings; various police reports of the January 8 incident; statements of civilian witnesses; the pertinent provisions of the police duty manual; the evaluations of the other five mental health professionals; the reports regarding a 1983 incident involving the use of a firearm; see footnote 2 of this opinion; and the attendant fitness for duty evaluation. Griffith subsequently found March-esseault fit for duty. Thereafter, in February, 1994, Zeman reviewed all of the reports and evaluations, including that of Griffith, but did not change his opinion that Marchesseault was unfit for duty in early 1992.

The arbitrators first addressed the burden of proof: “Since the basis for the termination of [Marchesseault], in the first stated instance, resulted from the conclusions of ‘fitness for duty’ evaluations ordered by the [plaintiff] as a result of [his] actions, the Panel finds that the [plaintiff] must prove that he is unfit to serve by more than a preponderance of [the] evidence for the termination to be sustained. The discharge not only affects the employee’s job, his seniority and other contractual benefits, but also his reputation as to his mental stability. The Panel finds that such burden must be met by evidence supported by a clinical conclusion, with reasonable medical certainty, that [Marchesseault] is not able to continue to work as a gun carrying police officer and that he presents a foreseeable risk to his own health and safety and that of the citizenry of South Windsor.”

Then, turning to the first question posed by the submission, the arbitrators found that Marchesseault had not been terminated for just cause. In this respect, they determined that his termination was not the only reasonable discipline available to the plaintiff, and that, based on the evaluation results, termination had been excessive. They specifically found that Marchesseault “acted in such an inappropriate manner based upon the expectations of the [plaintiff] and his own knowledge of what was required during that incident, he should have been severely disciplined for his actions, and that some retraining and directed counseling were and are in order.” Although they specifically did not find that the plaintiff had acted unreasonably in relying on the opinions of its own medical experts, they agreed with Selig that Marchesseault had a “ ‘clean psychiatric bill of health,’ ” and with Anderson that Lothstein’s evaluation should have been removed from his personnel file. Noting Zeman’s findings that, although Marchesseault was not mentally ill, “ ‘he has significant potential to decom-pensate in stressful situations,’ ” the arbitrators specifically agreed with Griffith’s conclusions that Marchesseault’s personnel record contained no history of such decompensation, there was no documentation of it in his job performance reviews over his more than nine years with the police department, and that “ ‘whatever “decompensation” there was, it was very swift and not clinically remarkable.’ ”

The arbitrators specifically addressed Zeman’s conclusion that, at the time of his examination of Marches-seault in 1992, Marchesseault’s continued potential for unpredictable impulsive behavior and poor judgment prevented him at that time from being fit for duty. The arbitrators found that this conclusion in Zeman’s report, in light of Marchesseault’s record with the department and the finding of no mental illness, “should have required that the [plaintiff] provide [Marchesseault] an opportunity to address his ‘decompensation’ with counseling, etc. at that time through the use of a leave of absence or some other reasonable accommodation, subject to another evaluation at the end of that period.” The arbitrators also found that the plaintiff may have affected the outcome of the evaluations by providing Zeman with information regarding the 1983 incident, for which Marchesseault had not been disciplined or found psychologically impaired in any way, and that Zeman had given that information weight in his determination.

The arbitrators specifically found Griffith’s evaluation “persuasive.” It is fair to say that they accepted Griffith’s evaluation and rejected those of Zeman and Selig to the contrary. They also addressed Zeman’s concern as to why Marchesseault had not explained clearly his poor judgment at the time of the incident, and Zeman’s opinion that this showed a lack of introspection on his part. In this regard, the arbitrators noted Griffith’s explanation that Marchesseault had talked to him with insight about his fatigue that evening, his wish to get home to his wife, and his irritation with the young men playing in the gym. The arbitrators also specifically noted that the record supported another of Griffith’s conclusions, namely, that Marchesseault’s “ ‘behavior did suggest a lack of appreciation for the sociocultural context in which he was operating—which is that a lack of respect for the people in South Windsor will not be tolerated by his superiors.’ ”

Having found that the termination was without just cause because it was excessive, the arbitrators turned to the second question, namely, the remedy. The arbitrators noted that they were “faced with an unusually difficult situation in fashioning an appropriate remedy since the [plaintiff] chose to terminate [Marchesseault] without the benefit of some leave of absence to deal with his alleged mental disorders; time for retraining; or, imposing a suspension as discipline for the violations of the Duty Manual,” particularly in view of the plaintiffs denial of his request for the opportunity to seek evaluations, in addition to those of the plaintiffs experts, regarding his fitness for duty. The arbitrators noted that “a more reasonable response to the evaluations would have been to allow for a second evaluation to be performed. If that evaluation was in conflict with the evaluation^] performed for the [plaintiff]—a third party should have been requested to perform an evaluation, as was the case once the matter reached arbitration.” Thus, the arbitrators reasoned, Marchesseault, “after over nine years of service to the [plaintiff], was entitled to a more reasonable approach to the incident including a discussion surrounding a leave of absence (for mental health reasons—based on the [plaintiffs] experts) and for time for retraining in all aspects of the possession and use of firearms.”

Faced, therefore, with devising an appropriate remedy for the excessive termination, the arbitrators ordered as follows: Marchesseault’s “reinstatement to his position as a police officer subject to retraining required by [General Statutes § 7-294d], and subject to training on the use and possession of firearms. Further, he shall provide to the [plaintiff] a current fitness for duty statement provided by a medical expert of his choice and shall continue counseling as determined by said professional surrounding the type of judgment he made on January 8th which resulted in this arbitration.”

The parties filed cross motions to confirm and to vacate the award. The trial court granted the plaintiffs motion to vacate the award on various grounds, denied the defendant’s motion to confirm, and rendered judgment accordingly. The defendant appealed from the trial court’s judgment to the Appellate Court. In that court, the defendant claimed that the trial court improperly had substituted its judgment for that of the arbitrators regarding: (1) the applicable burdens of proof before the arbitrators; (2) the appropriate test for just cause; (3) consideration of expert opinions rendered subsequent to the date of Marchesseault’s termination; and (4) the exclusion of evidence regarding efforts by Marchesseault to secure a favorable fitness report. South Windsor v. South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO, supra, 57 Conn. App. 498-507. The plaintiff presented an alternate ground for affirming the judgment, namely, that the award had violated an important and clearly defined public policy. Id., 507. The Appellate Court agreed with the defendant’s four challenges to the trial court’s judgment, but also agreed with the plaintiffs alternate ground for affirmance. The court held that there was a clear, important and specific public policy, drawn from General Statutes §§ 7-274, 7-276 and 7-294d (a) (10), as well as § 7-294e-16 (j) of the Regulations of Connecticut State Agencies, that a municipality alone is responsible for determining a police officer’s fitness for duty, and that the “award violate [d] the specific public policy of a town’s control over the fitness for duty of its police force . . . Id., 510-11. Accordingly, the Appellate Court affirmed the trial court’s judgment vacating the award. Id., 511.

The defendant claims that the Appellate Court improperly concluded that the arbitrators’ award violated an explicit, well-defined and dominant public policy of the state. We agree.

It is undisputed that the submission to arbitration was voluntary and unrestricted. The question is, therefore, whether the award falls within “the public policy exception to the general rule of deference to an arbitrator’s award made pursuant to an unrestricted submission.” Groton v. United Steelworkers of America, supra, 254 Conn. 43. “The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy. Garrity v. McCaskey, [223 Conn. 1, 7, 612 A.2d 742 (1992)]. A challenge that an award is in contravention of public policy is premised on the fact that the patties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. Stamford v. Stamford Police Assn., [14 Conn. App. 257, 259, 540 A.2d 400 (1988)]; Board of Trustees v. Federation of Technical College Teachers, [179 Conn. 184, 195, 425 A.2d 1247 (1979)]. When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award. Board of Trustees v. Federation of Technical College Teachers, supra [195], Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. [United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 43, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987)]; see W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983) .... New Haven v. AFSCME, Council 15, Local 530, [208 Conn. 411, 417, 544 A.2d 186 (1988)]. The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. Id. Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail in the present case only if it demonstrates that the [arbitrators’] award clearly violates an established public policy mandate. . . . Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339-40, 555 A.2d 406 (1989).” (Internal quotation marks omitted.) Groton v. United Steelworkers of America, supra, 45-46. It bears emphasizing, moreover, that implicit in the stringent and narrow confines of this exception to the rule of deference to arbitrators’ determinations, is the notion that the exception must not be interpreted so broadly as to swallow the rule. We conclude that the award in the present case does not meet these demanding requirements.

It is necessary to understand, first, the precise public policy identified by the Appellate Court as having been violated by the award. The court identified that policy as “the specific public policy of a town’s control over the fitness for duty of its police force . . . .” South Windsor v. South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO, supra, 57 Conn. App. 511. Although the Appellate Court did not fully explicate the contours of that public policy, we view it in its likely narrowest formulation, namely, that, at least where the town has made a good faith determination of a police officer’s lack of fitness for duty, based on a reasonable investigation and sufficient evidence, that determination controls, despite any contrary determination arrived at pursuant to the arbitration procedures of a collective bargaining agreement. Under this view, the scope of any unrestricted arbitration proceeding chai-lenging a termination of an officer by a town for lack of fitness for duty, in effect, would be limited to assessing whether the termination had been based on sufficient evidence, and had been in good faith after a reasonable investigation.

Neither the statutes nor the regulation on which the Appellate Court relied, however, support the view that, even as narrowly formulated, there is such an explicit, well-defined and dominant public policy that governs this case. Section 7-274 provides, in general terms, that a town may, by ordinance, establish a board of police commissioners “for the purpose of organizing and maintaining a police department in such town. . . .” See footnote 12 of this opinion. Section 7-276 provides that such a board of police commissioners “shall make all needful regulations for the government thereof . . . and may prescribe suitable penalties for the violation of any such regulation, including suspension or removal from office of any officer or member of such police department. Such board shall have the sole power of appointment, promotion and removal of the officers and members of such police department, under such regulations as it adopts for the purpose, and such appointees shall hold office during good behavior and until removed for cause upon written charges and after hearing. . . .” See footnote 13 of this opinion. Whatever effect, if any, on a termination for lack of fitness for duty that these two statutes might have where a town with such a board has entered into a collective bargaining agreement that, as in the present case, commits the question of termination to the grievance procedure, these two statutes have no bearing on the present case, because the plaintiff undisputedly does not have a board of police commissioners.

The other statute and its corresponding regulation relied on by the Appellate Court are § 7-294d (a) (10); see footnote 14 of this opinion; and § 7-294e-16 (j) of the regulations; see footnote 15 of this opinion. Section 7-294d (a) (10) provides that the police officer standards and training council, established pursuant to General Statutes § 7-294b, has the power “[t]o establish uniform minimum educational and training standards for employment as a police officer in full-time positions, temporary or probationary positions and part-time or voluntary positions . . . .” The purportedly applicable training standard established by the council, embodied in regulation § 7-294e-16 (j), provides in relevant part that the council “requires, as a condition of appointment to a position of probationary candidate in a law enforcement unit in the State of Connecticut, on or after January 1, 1995, that the candidate has been the subject of a psychological examination during the selection process and that a written report of that examination is on file with the appropriate officials at the law enforcement unit.” This statutory and regulatory scheme does not establish an explicit, well established and dominant public policy that, irrespective of or in limitation of a collective bargaining agreement, a town has control over termination for fitness for duty of a police officer such as Marchesseault. Section 7-294e-16 of the regulations is entitled “Entry-level requirements.” Subsection (j) of § 7-294e-16 concerns, not termination of employed police officers, but “condition^] of appointment to a position of probationary candidate . . . .” Marchesseault was not a probationary candidate, nor was he appointed to the plaintiffs police force after January 1, 1995.

Furthermore, our precedents in the realm of discharge of municipal policemen undermine the public policy exception asserted in the present case. In Board of Police Commissioners v. White, 171 Conn. 553, 555-56, 370 A.2d 1070 (1976), and Board of Police Commissioners v. Maher, 171 Conn. 613, 619-20, 370 A.2d 1076 (1976), New Haven policemen had been discharged for various acts of misconduct, including procuring false statements in connection with a police department investigation and falsifying arrest reports in order to strengthen the case against the arrestee. In rejecting the municipality’s challenges to the authority of the state board of mediation and arbitration to arbitrate the propriety of the discharges, we held that the collective bargaining agreement properly provided that termination of a police officer is a grievance that may be made the subject of the grievance procedure in the contract, including binding arbitration as the ultimate step. Board of Police Commissioners v. White, supra, 564; Board of Police Commissioners v. Maher, supra, 621. We stated, moreover, that there was no conflict between the city’s charter provision, which gave its police commissioners the power to remove a police officer for cause, and the contract, which made the removal of such a police officer a subject for the grievance procedure in the contract, including arbitration. Board of Police Commissioners v. White, supra, 563-64. Although certainly not dispositive of the question before us, these cases, which hold that termination of a police officer for serious and official misconduct is an appropriate matter for grievance under a collective bargaining agreement, do not suggest that an implied exception exists when the misconduct is deemed to constitute lack of fitness for duty.

In sum, the collective bargaining agreement in the present case clearly committed the question of termination of a police officer to the grievance procedure, including arbitration. That included a termination for alleged lack of fitness for duty. We see no explicit, well-defined and dominant public policy that prohibited the arbitrators, in concluding that the termination had not been for just cause, from concluding that Marchesseault was fit for duty, and therefore disagreeing with the contrary determination of the municipal authorities.

The plaintiff submits four alternative public policies that, it contends, are explicit, well-defined and dominant, and that the arbitration award violates: (1) the protection of the public from police officers who lack the psychological stability to handle weapons safely; (2) the award providing for reinstatement should have given the plaintiff the opportunity to assess Marches-seault’s current fitness for duty; (3) the public policy fostering the confidence of the public in its police force with respect to matters of public safety; and (4) the imposition by the arbitrators of a burden of proof higher than the preponderance of the evidence, without giving the plaintiff advance notice thereof, violated due process. We are not persuaded by any of these contentions.

The first contention proceeds from the premise that Marchesseault lacked the requisite psychological stability to handle weapons safely. That premise simply ignores the fact that, after a full hearing, and after the submission of competing expert witness evidence, the arbitrators found to the contrary. The arbitrators specifically weighed Marchesseault’s conduct, history and experience, as well as the opinions of the various experts who had evaluated him, found the opinions and evaluations of Zeman and Lothstein wanting, and found Griffith’s evaluation persuasive. We also note in this connection that the arbitrators, in fashioning the remedy for the unjustified termination, made the reinstatement “subject to training on the use and possession of firearms,” required Marchesseault to submit a current fitness for duty statement by a medical expert of his choice, and ordered that he “continue counseling as determined by said professional” regarding his misjudgment in the incident in question. Thus, the arbitrators, in fashioning the remedy, accounted for any potential lingering questions regarding Marchesseault’s suitability to use and possess firearms.

The second contention is based on the fact that, in their award, the arbitrators required Marchesseault, as a condition of his reinstatement, to provide the plaintiff with “a current fitness for duty statement provided by a medical expert of his choice . . . (Emphasis added.) The plaintiff argues that: (a) this excludes any role of the plaintiff in having Marchesseault evaluated by an expert of its choice; (b) “[t]he public policy of the state is that some public body—a police commission or town government—be responsible for the selection, direction and dismissal of police officers,” for which the plaintiff cites § 7-276; and (c) this denies, therefore, the plaintiff “the ability to satisfy its obligation to be certain that [Marchesseault] is in fact psychologically stable and fit for duty.” The plaintiffs position is flawed for several reasons.

The plaintiff ignores the procedural history on which the arbitrators relied in fashioning this part of their remedy. They had noted that the plaintiff had, at the time of the termination, refused Marchesseault the opportunity to seek, and therefore present, evaluations other than those by Zeman and Lothstein, on which the plaintiff had relied. Moreover, by the time of their award in 1996, four years after the incident, the arbitrators already had found Griffith’s positive evaluation of Marchesseault persuasive, and Zeman’s and Lothstein’s evaluations unpersuasive. In addition, as the arbitrators noted, the parties had agreed to the choice of Griffith as an independent evaluator. Thus, the plaintiff had not been wholly deprived of any opportunity to participate in and agree to the choice of an independent evaluator, who ultimately found Marchesseault fit for duty. This part of the remedy is viewed most plausibly, therefore, not as something that impinged on any substantial right of the plaintiff, but as something that was designed to remedy the plaintiffs unjustified denial of Marches-seault’s request for the opportunity to present an evaluation by a medical expert of his own choosing, and to assuage any current, lingering doubts that the plaintiff maintained, despite the factual findings by the arbitrators, regarding Marchesseault’s fitness for duty.

In addition, the plaintiffs reliance on § 7-276 suffers from the same defect here as the Appellate Court’s reliance on it. That section refers to the powers of local boards of police commissioners. The plaintiff does not have such a board. The plaintiff nonetheless seeks to draw from that statute a broader public policy—that “some public body—a police commission or town government—be responsible for the selection, direction and dismissal of police officers.” (Emphasis added.) Assuming without deciding that this amounts to a specific, well-defined and dominant public policy, rather than one based on general notions of the public interest, we nevertheless reject the plaintiffs contention. The fact that the statute, as a matter of statutory policy, commits the selection, direction and dismissal of police officers to the town—an unremarkable policy statement to be sure—is not inconsistent with the concomitant notion that the grievance procedure set forth in a collective bargaining agreement covering the discipline of police officers, including discharge, is simply an additional step in that process. Board of Police Commissioners v. Maher, supra, 171 Conn. 621; Board of Police Commissioners v. White, supra, 171 Conn. 564.

Furthermore, the plaintiff fails to cite any independent source of public policy for its contention that it must be certain of Marchesseaulf s fitness for duty, irrespective of the arbitrators’ findings. That factual determination was committed to the arbitrators, pursuant to the collective bargaining agreement and the unrestricted submission. There is no explicit, well-defined and dominant public policy that requires a town’s view of an officer’s fitness for duty to trump the arbitrators’ contrary determination that has been arrived at pursuant to such an agreement and submission.

The third public policy advanced by the plaintiff is that the arbitration award violated the public policy requiring the confidence of the public in its police force with respect to matters of public safety because the plaintiffs action reasonably was based on the opinions of Zeman and Lothstein. This general consideration fails to meet the test that “the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s intexpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Internal quotation marks omitted.) Groton v. United Steelworkers of America, supra, 254 Conn. 46. Furthermore, we see nothing that would impair informed public confidence in the plaintiffs police department, by virtue of a full and fair adjudication by a panel of arbitrators, based on the independent medical expert opinion of Griffith, in a conclusion that Marchesseault is in fact fit for duty.

The fourth alternate public policy advanced by the plaintiff is based on the fact that the arbitrators imposed on the plaintiff a higher burden of proof than the preponderance of the evidence, with respect to Marchesseaulf s termination for lack of fitness for duty, without giving the plaintiff advance notice of that higher burden. The plaintiff contends that because due process of law requires that “ ‘the standard of proof necessarily must be calibrated in advance’ In re Juvenile Appeal (84-AB), 192 Conn. 254, 269, 471 A.2d 1380 (1984), quoting Santosky v. Kramer, 455 U.S. 745, 757, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); the award violated that due process principle and, accordingly, the procedural public policy of fair notice that it embodies. We are not persuaded. First, because the submission was unrestricted, it did not preclude the arbitrators from adopting a burden of proof more demanding than the preponderance of the evidence. New Haven v. AFSCME, Council 15, Local 530, 9 Conn. App. 396, 400, 519 A.2d 93 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1287 (1987).

Second, unlike civil litigation in our courts, in which a party has a legitimate expectation that the normal burden of persuasion of a preponderance of the evidence will be applied, unless the law has imposed a different standard; see State v. James, 237 Conn. 390, 418, 678 A.2d 1338 (1996); patties to a labor arbitration proceeding considering the question of whether a termination was for just cause have no such legitimate expectation. In such cases, the practice is much more flexible and, if anything, connotes the likelihood of a more demanding burden. As the authors of a recognized treatise on arbitration have noted: “Discharge is recognized to be the extreme industrial penalty since the employee’s job, seniority and other contractual benefits, and reputation are at stake. Because of the seriousness of this penalty, the burden generally is held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires ‘just cause’ for discharge. . . . However, the quantum of required proof in this area is unsettled. In some cases proof beyond a reasonable doubt has been required. But in other cases a lesser degree of proof has been required, such as a preponderance of the evidence, or ‘clear and convincing’ evidence, or evidence ‘sufficient to convince a reasonable mind of guilt.’ ” F. Elkouri & E. Elkouri, How Arbitration Works (5th Ed. 1997, E. Gog-gin & M. Volz eds.) pp. 905-906. Indeed, as the Appellate Court also has noted, “arbitral application of a ‘clear and convincing’ standard is not unique in labor relations.” New Haven v. AFSCME, Council 15, Local 530, supra, 9 Conn. App. 399.

In the present case, in light of both Maher and White, and the practice noted in the literature in this field, the plaintiff should have been aware of the potential of a burden of persuasion more demanding than a preponderance of the evidence. As the arbitrators noted, the consequences to Marchesseault of a termination for lack of fitness for duty carried grave consequences, not only for his job, seniority and other contractual benefits, but for his reputation for psychological stability.

Finally, the plaintiff points to no specific prejudice flowing from the imposition of the higher standard. The plaintiff does not claim, for example, that it would have presented its case to the arbitrators any differently had it known in advance of the burden of persuasion adopted by the arbitrators. This lack of prejudice has been cited by this court as undermining a similar claim of lack of notice in a civil proceeding involving termination of parental rights. See In re Juvenile Appeal (84-AB), supra, 192 Conn. 270.

The plaintiffs final claim is presented as an alternate ground on which to affirm the judgment of the Appellate Court. This claim is that the Appellate Court improperly concluded that the arbitrators had not deprived the plaintiff of a fair hearing by excluding evidence regarding Marchesseault’s efforts to obtain a favorable fitness for duty report.

We agree with the Appellate Court’s disposition of this claim. The Appellate Court noted the arbitrators’ broad discretion in evidentiary rulings in cases involving unrestricted submissions, the fact that they are not confined to the rules of evidence, and the principle that “a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing . . . [and] must prove that as a result of the improper ruling, [the party] suffered substantial prejudice.” (Citation omitted; internal quotation marks omitted.) South Windsor v. South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO, supra, 57 Conn. App. 505-506. The Appellate Court then stated, and we agree: “The arbitrators’ award demonstrates that the [plaintiff] was not prejudiced by the arbitrators’ decision not to compel [Marchesseault] to answer the [plaintiffs] question concerning efforts he had made to obtain a favorable fitness for duty opinion prior to November, 1993. During the course of the hearing, the arbitrators were concerned that they, as laypersons, were faced with opposing expert opinions from the [plaintiff] and the [defendant] concerning [Marchesseault’s] fitness for duty. The arbitrators, therefore, initiated a discussion between the parties that a neutral expert review [Marchesseault’s] records and the expert opinions submitted to them. Griffith was the person the parties agreed should review the conflicting materials. Because the [plaintiff] agreed to submit the conflicting evidence to Griffith, whose opinion broke the deadlock and formed the basis of the arbitrators’ award, we cannot say that the [plaintiff] did not receive a full and fair hearing because the evidence in question was excluded.” Id., 506-507.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court, and to remand the case to that court with direction to grant the defendant’s motion to confirm the award.

In this opinion the other justices concurred.

       The denial portion of the award involved Marchesseault’s claims for back pay and attorney’s fees. Those issues are not before us in the present appeal.

       This information also included information regarding an incident in 1983 with a firearm that also had resulted in a fitness for duty evaluation. That evaluation, however, indicated no major psychological disturbances or pathology, and the evaluator, Robert Meier, a psychologist, stated that “because Officer Marchesseault has many positive characteristics, including a high level of ability and overall good judgment ... he is able to perform effectively as a police officer.” The then chief of police sent Marchesseault a letter indicating that his probationary period would end and that he “felt that [Marchesseault] posed no basic threat to [himjseif, the Department, or any of its members.”

       The arbitrators’ award quoted the following passage from Lothstein’s report: “Given the nature of his conflicts I do not see him [as] ‘fit for duty’ if that means returning to police work with a gun that he may use inappropriately. His psychological test profile suggests that his underlying conflicts (his dependency needs and masculine self image) and personality structure (histrionic, dependent, and passive) combined with his surfacing aggression and hostility make him a risk for acting inappropriately in high intensity situations.”

       The arbitrators’ award quoted the following passage from Zeman’s report: “It is my opinion that, at the time of my psychiatric interviews, Officer Marchesseault did not show signs of a major psychiatric illness. However, it is my further opinion that he has a significant potential for his mental and emotional functioning to decompensate in stressful situations. During such episodes of decompensation, he is prone to exercise poor judgment and to act in [a] poorly controlled and impulsive manner. Once the stressful situation has passed, his thinking and behavior return rapidly to normal. . . . It is my opinion that Officer Marchesseault’s continued potential for unpredictable impulsive behavior and poor judgment prevent him at this time from being ‘fit for duty’ from a psychiatric perspective.”

       Subsequently, Marchesseault was offered and ultimately accepted alternate employment as a dispatcher, effective July 19, 1992.

       The town manager also terminated Marchesseault for violations of §§ 2.3.5, 2.3.2 and 4.7.16 of the police department’s rules and regulations. Section 2.3.5 prohibits “using more physical force than necessary to accomplish a proper police purpose.” Section 2.3.2 provides that “officers shall conduct themselves at all times, both on or off duty, in such a manner as to reflect most favorably on the Department. Conduct unbecoming an officer shall include that which brings the Department into disrepute or reflects discredit upon the officer as a member of the Department or that which impairs the operation or efficiency of the Department or officer.” Section 4.7.16 provides: “As a general rule, an officer should use only the minimum amount of force which is necessary for the accomplishment of his duties. He should exhaust every other reasonable means of apprehension or defense before resorting to the use of firearms. ... [D] 1. As a general rule, officers shall not remove a firearm from the holster or display weapons unless there is sufficient justification.”
      The arbitrators ruled that, although Marchesseault’s violations of these rules and regulations provided just cause for severe discipline, “and that some retraining and directed counseling were and are in order,” 1hey did not justify termination. That aspect of the arbitrators’ decision is not before us in the present appeal.

         The plaintiff presented the following submission: “Was there just cause for the dismissal of the Grievant? If not, what shall the remedy be?” The defendant presented the following submission: “Whether or not the Officer John Marchesseault’s termination was proper and for just cause? If not, what shall the remedy be?”

       In October, 1992, Marchesseault had begun counseling with a person named David Johnson. In January, 1993, Johnson wrote to Marchesseault’s attorney, stating his opinion that “there was no reason why [Marchesseault] should not return to duty as an officer with the ability to carry and handle firearms.” There is nothing in the record, however, regarding Johnson’s qualifications, the nature of the counseling he provided, or the basis of his opinion.

       Selig stated that Marchesseault had “a clean psychiatric bill of health,” and concluded that Lothstein’s evaluation, which was the most critical of the six mental health professionals who ultimately examined Marchesseault, was “highly inconsistent with the other evaluations and inconsistent with Officer Marchesseault’s history. More detailed analysis of [Lothstein’s] evaluation by [Anderson] renders it essentially incorrect. I agree with [Anderson] that [Lothstein’s] evaluation should be removed from Officer Marchesseault’s file.”

       General Statutes § 7-294d (b) provides: “No person may be employed as a police officer by any law enforcement unit for a period exceeding one year unless he has been certified under the provisions of subsection (a) of this section or has been granted an extension by the council. No person may serve as a police officer during any period when his certification has been cancelled or revoked pursuant to the provisions of subsection (c) of this section. In addition to the requirements of this subsection, the council may establish other qualifications for the employment of police officers and require evidence of fulfillment of these qualifications. The certification of any police officer who is not employed by a law enforcement unit for a period of time in excess of two years, unless such officer is on leave of absence, shall be considered lapsed. Upon reemployment as a police officer, such officer shall apply for recertification in a manner provided by the council. The council shall certify any applicant who presents evidence of satisfactory completion of a program or course of instruction in another state equivalent in content and quality to that required in this state, provided he passes an examination or evaluation as required by the council.”

       The formal arbitration award provided: “The grievance is sustained in part and denied in part. The Grievant, Officer Marchesseault, was not terminated for just cause. He shall be reinstated to his position as a South Windsor police officer subject to retraining; a current fitness for duty statement; retraining in firearms; and, counseling as outlined in the Analysis and Discussion section of the Award.” Neither party claims any substantive difference between this language and the language quoted in the text of this opinion.

       General Statutes § 7-274 provides: “Establishment of town police commissions. Any town may, by ordinance, establish a board of police commissioners to be elected, in accordance with the provisions of section 9-201 or to be appointed by the council or board of directors of a town, the common council or other body empowered to make ordinances of a city, the board of burgesses of a borough or the board of selectmen of a town not having a council or board of directors, provided in a town having both a board of selectmen and a representative town meeting such ordinance may designate the representative town meeting as the appointing authority, for the purpose of organizing and maintaining a police department in such town. Such board shall consist of three, five or seven electors, all of whom shall be resident taxpayers of such town. Such commissioners shall be sworn to the faithful performance of their duties and shall serve without compensation, but their actual expenses and disbursements incurred in the performance of their duties shall be paid from the town treasury."

       General Statutes § 7-276 provides: “Powers of commissioners. Such boards shall have all of the powers given by the general statutes to boards of police commissioners, shall have general management and supervision of the police department of such town and of the property and equipment used in connection therewith, shall make all needful regulations for the government thereof not contrary to law and may prescribe suitable penalties for the violation of any such regulation, including suspension or removal from office of any officer or member of such police department. Such board shall have the sole power of appointment, promotion and removal of the officers and members of such police department, under such regulations as it adopts for the purpose, and such appointees shall hold office during good behavior and until removed for cause upon written charges and after hearing. The members of such police department shall have all such authority with respect to the service of criminal process and the enforcement of the criminal laws as is vested by the general statutes in police officers and constables.”

       General Statutes § 7-294d (a) provides in relevant part: “The Police Officer Standards and Training Council shall have the following powers . . . (10) To establish uniform minimum educational and training standards for employment as apolice officer in full-time positions, temporary or probationary positions and part-time or voluntary positions . . . .”

       Section 7-294e-16 (j) of the Regulations of Connecticut State Agencies provides: “Psychological Examination. The Police Officer Standards and Training Council requires, as a condition of appointment to a position of probationary candidate in a law enforcement unit in the State of Connecticut, on or after January 1, 1995, that the candidate has been the subject of a psychological examination during the selection process and that a written report of that examination is on file with the appropriate officials at the law enforcement unit. The Police Officer Standards and Training Council requires that the examination be conducted by a psychologist/psyehiatrist currently licensed by a qualified state board, who provides the law enforcement unit with documentation of the examination and who provides a written opinion of the candidate’s overall psychological stability to fill a position as a police officer.”

       There is, of course, an even broader reading of the Appellate Court’s view of the public policy at stake—that the town’s determination of fitness for duty controls absolutely, irrespective of the nature of the evidence or the investigation. This view would mean, in effect, that the entire subject of termination for fitness for duty is not even arbitrable because the outcome of any such proceeding would be a foregone conclusion. We note that at no time during this case did the plaintiff claim that the question of Marchesseault’s termination was not arbitrable. Furthermore, our conclusion that the narrow view is not sustainable in the present case necessarily encompasses the broader view as well.

       General Statutes § 7-294b provides: “Members of council. Holding of other office, (a) There shall be a Police Officer Standards and Training Council which shall be within the Division of State Police of the Department of Public Safety for administrative purposes only and which shall consist of the following members appointed by the Governor: (1) A chief administrative officer of a town or city in Connecticut; (2) the chief elected official or chief executive officer of a town or city in Connecticut with a population under twelve thousand which does not have an organized police department; (3) a member of the faculty of The University of Connecticut; (4) eight members of the Connecticut Police Chiefs Association who are holding office or employed as chief of police or the highest ranking professional police officer of an organized police department of a municipality within the state; (5) the Chief State’s Attorney; (6) a member of the Connecticut Coalition of Police and Corrections Officers; and (7) five public members. The Commissioner of Public Safety and the Federal Bureau of Investigation special agent-in-charge in Connecticut or their designees shall be voting ex-officio members of the council. Any nonpublic member of the council shall immediately upon the termination of his holding the office or employment which qualified him for appointment cease to be a member of the council. A member appointed to fill a vacancy shall be appointed for the unexpired term of the member whom he is to succeed in the same manner as the original appointment. The Governor shall appoint a chairperson and the council shall appoint a vice-chairperson and a secretary from among the members. The members of the council shall serve without compensation but shall be entitled to actual expenses involved in the performance of their duties.
      “(b) Membership on the council shall not constitute holding a public office. No member of the council shall be disqualified from holding any public office or employment by reason of his appointment to or membership on the council nor shall any member forfeit any such office or employment by reason of his appointment to the council, notwithstanding the provisions of any general statute, special act or local law, ordinance or charter.”

       It is undisputed that, with respect to Marchesseault’s alleged lack of fitness for duty to support his discharge, as opposed to the question of his violation of the police department’s duty manual, the arbitrators imposed a higher burden of persuasion than a preponderance of the evidence. It also is undisputed that the arbitrators first specifically articulated this burden in their award.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. HAROLD TRENT BUTLER
    (SC 16274)
    Sullivan, C. J., and Katz, Palmer, Vertefeuille and Zarella, Js.
    Argued March 15
    officially released May 1, 2001

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellant (state).

      Avery S. Chapman, for the appellee (defendant).
   Opinion

PER CURIAM.

The defendant appealed from the judgment of conviction of murder as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-54a (a) and conspiracy to commit murder in violation of General Statutes §§ 53a~48 (a) and 53a-54a (a). On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court, in violation of his due process right to a fair trial under the federal constitution, improperly had: (1) denied his motions for a mistrial that were based on alleged egregious prosecutorial misconduct; and (2) adopted a curative instruction that was insufficient to cure the prejudice caused by the misconduct. The Appellate Court agreed with the defendant, concluding, despite the trial court’s curative instructions, “on the basis of the severity of the misconduct, its centrality to the critical issues in the case and the weakness of the state’s case, that the prosecutor’s misconduct deprived the defendant of his due process right to a fair trial.” State v. Butler, 55 Conn. App. 502, 519, 739 A.2d 732 (1999).

We granted certification to appeal, limited to the following issue: “Did the Appellate Court correctly con-elude that a due process violation resulted from prosecutorial misconduct during closing argument?” State v. Butler, 252 Conn. 941, 747 A.2d 520 (2000). This certified appeal followed.

Having examined the record on appeal, studied the briefs and heard the arguments of the parties, we conclude that the judgment of the Appellate Court should be affirmed. The thoughtful and comprehensive opinion of the Appellate Court properly resolved the issues in this certified appeal. A further discussion by this court would serve no useful purpose. See, e.g., Brennan v. Burger King Corp., 244 Conn. 204, 206, 707 A.2d 30 (1998); Murphy v. Buonato, 241 Conn. 319, 321-22, 696 A.2d 320 (1997).

The judgment of the Appellate Court is affirmed.

       General Statutes § 53a-8 provides in relevant part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. . . .”
      General Statutes § 53a-48 provides in relevant part: “Conspiracy. ... (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. . . .”
      General Statutes § 53a-54a provides in relevant part: “Murder, (a) Aperson is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . . .”