author: Callahan, J. Berdon, J.,

text:
    State of Connecticut v. Veronica Hart
    (14230)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.

      Argued October 2, 1991
    decision released April 7, 1992

      RitaM. Shair, assistant state’s attorney, with whom were JohnH. Malone, assistant state’s attorney, and, on the brief, John M. Bailey, state’s attorney, and Brian Hershman, law student intern, for the appellant (state).

      Temmy Ann Pieszak, assistant public defender, with whom were Susan Brown, assistant public defender, and G. Douglas Nash, public defender, for the appellee (defendant).
   Callahan, J.

The dispositive issue in this appeal is who has the burden of proof on the issue of drug dependency in a case charging sale of a narcotic substance by a person who is not drug-dependent.

The defendant, Veronica Hart, was charged in a four count information with: (1) sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b); (2) sale of a narcotic substance in violation of General Statutes § 21a-277 (a); (3) conspiracy to sell a narcotic substance in violation of General Statutes §§ 21a-277 (a) and 58a-48 (a)* ; and (4) possession of a narcotic substance in violation of General Statutes § 21a-279 (a). The defendant was tried jointly with another accused, John Cavanaugh. Following her conviction by a jury of all of the above counts, the defendant appealed to the Appellate Court. In State v. Hart, 23 Conn. App. 746, 585 A.2d 103 (1991), the Appellate Court reversed her conviction of sale of narcotics by a person who is not drug-dependent because it concluded that the state failed to prove beyond a reasonable doubt that the defendant was not drug-dependent, and that the trial court improperly allowed the jury to determine whether the issue of drug dependency had been raised.

We granted the state’s petition for certification to appeal from the decision of the Appellate Court; State v. Hart, 217 Conn. 811-12, 587 A.2d 152 (1991); limited to the following three questions: “1. Did the Appellate Court correctly rule that the state may not satisfy its burden of proving the defendant is not drug-dependent by destroying the credibility of defense witnesses, even though drug dependency is not an element of General Statutes § 21a-278 (b)? 2. Was the Appellate Court correct in not considering facts elicited by the state during cross-examination when it determined there was insufficient evidence of non-drug dependency? 3. Did the Appellate Court correctly conclude that the trial court’s instructions were erroneous because it instructed the jury to determine whether the defendant’s evidence of drug dependency was credible?” We conclude that the Appellate Court incorrectly ruled on the first and second certified questions, and improperly ordered the trial court to acquit the defendant of a violation of § 21a-278 (b).

The opinion of the Appellate Court accurately reports the relevant facts. State v. Hart, supra, 23 Conn. App. 748. For the purposes of this case, we note the following. Stephen Cahill and Paul Yanderheiden were police officers affiliated with the statewide narcotics task force. On the evening of October 23, 1986, Cahill and Vanderheiden traveled to the 190 East Cafe in Enfield where they had been assigned to complete an undercover narcotics enforcement operation. Upon his arrival at the bar, Cahill made it known to various persons that he was interested in purchasing narcotics. While Cahill was seated in a corner of the bar, the defendant approached him and stated that she had heard that he was interested in purchasing some cocaine. The defendant told Cahill that if he would give her $50 she would obtain a gram of cocaine from Cavanaugh, a bouncer at the bar, which she would divide with Cahill. After Cahill gave the defendant the money, she approached Cavanaugh and transferred the money to him. In return, Cavanaugh gave the defendant a packet containing approximately one gram of cocaine. She then returned to Cahill, and the two left the bar and divided the cocaine in Cahill’s car.

The jury also heard evidence indicating that the defendant was drug-dependent at the time of the charged offenses. Joni Zarcaro testified that she had known the defendant at the time of the charged offenses, and that she had witnessed the defendant use cocaine two or three times a week. Elizabeth Ann Donahue stated that she also knew the defendant at the time of the charged offenses and that for as long as she had known her, the defendant had admitted that she had a drug problem. Donahue testified that she had advised the defendant to seek drug treatment, but was not aware that the defendant had ever done so, and she believed that the defendant still had a drug problem at the time of trial. David Lombardi also testified that he had known the defendant at the time of the charged offenses. Lombardi stated that when he was with the defendant and drugs were available, which was “pretty much all the time,” the defendant would invariably try to acquire the drugs. He testified that he had observed the defendant use both cocaine and marihuana, and that he had personally used cocaine with the defendant five hundred times over the four or five years he had known her. Lombardi testified that, in 1986 and 1987, the defendant had sometimes complained that she could not go to work because of drug use, and he had heard her say that she “needed cocaine.” Lombardi testified that he had seen the defendant in bars, in malls and around town when she appeared to be intoxicated, either on drugs or alcohol.

Further, Lawrence Weiner, a psychiatrist, testified as an expert witness. He stated that he had met with the defendant in November, 1988, and completed a drug dependency evaluation of her at that time. He testified that the defendant had told him that, at the time of the charged offenses, she was using cocaine intranasally. Weiner also testified that the defendant told him that she began using cocaine on a daily basis in late 1987, and that, from that time forward, she spent $50 a day on cocaine. Weiner stated that the defendant told him that she used all the money she had remaining after buying food and paying rent to purchase cocaine. He also testified that the defendant had told him that in 1987 and 1988, she suffered from symptoms of cocaine withdrawal, including a craving for cocaine, and depression. He additionally stated that the defendant had reported to him that she had tried to stop using cocaine, but had not been successful. Weiner concluded that the defendant had used cocaine episodically prior to November, 1987. Weiner testified that, as a result of the evaluation, he diagnosed the defendant as having a dependence on both cocaine and alcohol at the time the charged offenses were committed.

The state conducted cross-examination of all of the above witnesses. Zarcaro admitted that she had seen the defendant many times inside bars, sometimes for four hours or more, but that she had never actually observed the defendant using drugs. Similarly, Donahue stated that she had never actually been in the presence of the defendant when the defendant was using drugs. Lombardi also stated that he saw the defendant in bars three or four times a week in the fall of 1986. He testified that, although he had seen the defendant at the 190 East Cafe for periods of up to eight hours, he had never actually witnessed her use drugs in the bar. Further, Lombardi stated that when the defendant had come to his house to use drugs, she would sometimes share her cocaine with other people. Lombardi stated that the most cocaine he had ever seen the defendant bring was about one-half gram, although she might actually have had more that he did not see. Lombardi also stated that, at the time of the charged offenses, the defendant was steadily employed, although there were days when she could not go to work because of drug use. Lombardi further admitted that he had seen the defendant stay in bars for six to eight hours and never heard her say that she needed cocaine.

In the course of the state’s cross-examination, Weiner admitted that all of his findings were based upon a forty-five minute interview with the defendant in 1988, two years after the charged offenses had allegedly occurred. Weiner conceded that he had failed to perform a physical examination of the defendant and that, although he concluded that the defendant used cocaine intranasally, which could cause physical damage to the nose, he had never examined the defendant’s nose to determine whether there was any indication of cocaine use. Weiner also testified that the defendant had stated to him that she had only occasionally used cocaine, once or twice a week, at the time of the charged offenses, and did not begin using cocaine daily until late in 1987. Weiner stated that he recalled that the defendant had told him that she was always able to hold a job. Finally, Weiner admitted that his evaluation of the defendant and his conclusions about her drug use were based solely on information he had obtained from her.

I

We first address the state’s claim that the Appellate Court incorrectly ruled that the state failed to disprove drug dependency beyond a reasonable doubt. The state claims that the Appellate Court improperly failed to consider facts elicited by the state on cross-examination, and improperly held that the state may not satisfy its burden solely by discrediting the defendant’s evidence. The state claims that its cross-examination proved beyond a reasonable doubt that the defendant was not drug-dependent. We disagree.

At trial, as noted, the defendant offered testimony through Zarcaro, Donahue, Lombardi and Weiner indicating that she was drug-dependent at the time of the charged offenses. The state cross-examined all of the defense witnesses. The trial court, in its charge, informed the jury that it could properly find that the state’s cross-examination proved beyond a reasonable doubt that the defendant was not drug-dependent. The Appellate Court, however, concluded that the state’s evidence did not disprove drug dependency beyond a reasonable doubt because no affirmative evidence was elicited on cross-examination and, “while a jury may reject a witness’ testimony, it may not conclude from that rejection that the opposite is true. State v. Coleman, 14 Conn. App. 657, 671-76, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).” State v. Hart, supra, 23 Conn. App. 755-56.

A

The state argues that it proved beyond a reasonable doubt that the defendant was not drug-dependent because the jury may have so disbelieved the testimony of the defense witnesses as to infer the opposite of their testimony. We do not agree.

It is without question that the jury is the ultimate arbiter of fact and credibility. State v. Dyson, 217 Conn. 498, 506, 586 A.2d 610 (1991). As such, it may believe or disbelieve all or any portion of the testimony offered. Upon review of a defendant’s claim that there was insufficient evidence to support his conviction, we view the evidence in the light most favorable to the state. State v. Carpenter, 214 Conn. 77, 78, 570 A.2d 203 (1990). In the course of that analysis, we assume that the jury credited the evidence favorable to the state and discredited the evidence favorable to the defendant. We have consistently stated, however, that the jury may not infer the opposite of a witness’ testimony solely from its disbelief of that testimony. State v. Carter, 196 Conn. 36, 50, 490 A.2d 1000 (1985); State v. Alfonso, 195 Conn. 624, 634, 490 A.2d 75 (1985); Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); State v. Coleman, supra, 671-78.

The state argues that the jury should be allowed to infer the opposite of the defense testimony in this case because the defendant did not testify and because the absence of drug dependency is not an element of the state’s case. The Appellate Court has concluded that an instruction allowing the jury to infer the opposite of the defendant’s testimony impermissibly burdens his fifth and fourteenth amendment right to testify in his own defense. State v. Coleman, supra, 675. Although a request that the jury infer the opposite of a criminal defendant’s testimony may raise additional constitutional questions, we have not limited the rule to circumstances involving the testimony of a criminal defendant. State v. Carter, supra; Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 527 (1967); Edwards v. Grace Hospital Society, 130 Conn. 568, 574-75, 36 A.2d 273 (1944). Furthermore, whether the issue in contention is an element of a criminal offense is not dispositive. Our rule barring the inference of the opposite of testimony has been applied uniformly in both criminal and civil contexts. State v. Carter, supra; State v. Alfonso, supra; Novak v. Anderson, supra; Marquis v. Drost, supra. It is an evidentiary issue concerning the proper method of measuring the sufficiency of the evidence. The distinction between elements and nonelements of a crime, in this particular context, is inconsequential. Accordingly, we conclude that the state could not prove beyond a reasonable doubt that the defendant was not drug-dependent through impermissible inferences of the opposite of testimony favorable to the defense.

B

The state next asserts that it elicited sufficient affirmative evidence of the nonexistence of drug dependency through cross-examination to prove beyond a reasonable doubt that the defendant was not drug-dependent at the time of the charged offenses. We do not agree.

In the course of its cross-examination, the state elicited information that tended to prove that the defendant was not drug-dependent at the time of the charged offense. Importantly, Weiner admitted that the defendant had told him that, at the time of the offense, she used drugs only occasionally. Further, the state elicited testimony that the defendant had been steadily employed, and that her use of cocaine did not escalate to the level of a daily habit until November, 1987. Zarcaro, Lombardi and Donahue all stated that they had never actually witnessed the defendant using drugs in a bar, although they had seen her in bars regularly. Moreover, Weiner testified that even after the defendant had begun using cocaine on a daily basis, she had not spent an excessive amount of time planning to get it, taking it or recovering from its effects. This evidence was probative of the state’s assertion that the defendant was not drug-dependent at the time of the offense. Contrary to the opinion of the Appellate Court, the state’s cross-examination was not limited to an attack on the credibility of the defense witnesses. The Appellate Court, therefore, improperly ruled that the state elicited no affirmative evidence on cross-examination. The evidence that it did elicit, however, as a matter of law, was not sufficient to prove beyond a reasonable doubt that the defendant was not drug-dependent at the time of the offenses. Accordingly, we conclude that the Appellate Court was correct when it determined that the state failed to prove beyond a reasonable doubt that the defendant was not drug-dependent, and that the trial court’s instruction informing the jury that it might so find was improper.

II

The state alternatively argues that it does not bear the burden of proving beyond a reasonable doubt that the defendant was not drug-dependent. It claims that the defendant bears the burden of proving drug dependency by a preponderance of the evidence. We agree.

General Statutes § 21a-269 states: “In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, proviso or exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.”* We have held that the absence of drug dependency is not an element of the offense of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b). Rather, it is an exemption from liability under § 21a-269. State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Therefore, it was not necessary for the state to negate drug dependency, but, rather, the defendant had the burden of proving that she was drug-dependent.

We have previously considered the meaning of “burden of proof” under § 21a-269. Id.; State v. Brown, 163 Conn. 52, 65-67, 301 A.2d 547 (1972). We stated that when a defendant offers “substantial evidence tending to prove his claim . . . [§ 21a-269] loses all operative effect.” State v. Brown, supra, 66-67. The state must then “prove beyond a reasonable doubt that the accused was not entitled to the benefit of any excuse, proviso or exemption claimed by him.” Id., 67; State v. Januszewski, supra, 169. In both of those cases, however, the defendant had offered no evidence at all to bring himself within the relevant exemptions. Therefore, our discussions in those cases of the amount of evidence necessary for the defendant to meet his burden of proof was not essential to our decisions. Here, for the first time, we are presented with a case where the defendant has offered substantial evidence of drug dependency and we are squarely presented with the issue of the extent of the defendant’s burden of proof.

Considering the plain language of the statute and confronting the results of an application of the law as stated m Brown and Januszewski, we conclude that the language of § 21a-269, which places the “burden of proof” on a defendant invoking the exemption specified by § 21a-278 (b), requires the defendant to carry the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent. It would overly strain the language that places the “burden of proof” on a defendant to construe it merely to mean, as Brown and Januszewski suggest, that the defendant need only raise some evidence of his or her drug dependency to shift the burden to the state to prove a negative, i.e., lack of drug dependency, beyond a reasonable doubt.

Although the words “burden of proof” are occasionally construed to mean burden of production, that construction is inappropriate in the present circumstances. To hold that the defendant bears only the burden of production would, in some instances, mandate that the defendant be acquitted of an offense under § 2 la-278 (b) based on the testimony of defense witnesses that was found to be entirely unpersuasive by the jury. That result is especially troubling in view of the difficulty of disproving drug dependency. As we recognized' in Januszewski, “[a] defendant’s drug dependency at the specific point of time in the past at which the offense occurred is certainly a matter . . . within his own knowledge. Moreover, the enactment of [§ 21a-269] appears to be an implicit recognition by the legislature of the difficulty created when any party is given the burden of proving the nonexistence of a certain fact, especially where, as in this case, the fact is the nonexistence of a physical status of the defendant at one, usually distant, point prior in time.” State v. Januszewski, supra, 167. Furthermore, in a case charging that the defendant is not drug-dependent, the state’s preparation of its case is hindered because it has no method by which to discover whether drug dependency will be an issue at trial. Compare Practice Book §§ 758 and 759 regarding the defense of mental disease or defect. We conclude that the legislature did not intend to mandate an acquittal whenever the defendant has offered evidence that might be completely disbelieved by the jury. Accordingly, we hold that § 21a-269 assigns to the defendant the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent. See Dickerson v. State, 414 So. 2d 998 (Ala. App. 1982); State v. Buchman, 361 So. 2d 692 (Fla. 1978); Burgin v. State, 431 N.E.2d 864, 866-67 (Ind. App. 1982); State v. Carter, 214 Kan. 533, 521 P.2d 294 (1974); State v. Dixon, 546 S.W.2d 774 (Mo. App. 1977).

The defendant further asserts that even if we conclude that the legislature intended that the language placing the burden of proof on the defendant requires the defendant to prove by a preponderance of the evidence that he or she was drug-dependent at the time of the charged offenses, such a construction would place an unconstitutional burden upon the defendant. “ ‘[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.’ ” (Emphasis in original.) McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986); Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). The federal due process clause does not bar state legislatures from placing the burden on a defendant to prove an affirmative defense or to prove that he or she falls within an exemption to liability for an offense. McMillan v. Pennsylvania, supra. We have concluded that the legislature intended drug dependency to be an exemption to liability under § 2 la-278, and not an element of that offense. State v. Januszewski, supra. Requiring the defendant to prove by a preponderance of the evidence that he or she falls within that exception does not relieve the state of its burden of proving beyond a reasonable doubt all of the elements of § 21a-278, and comports with federal due process.

Ill

Because we conclude that the state did not have the burden of proving beyond a reasonable doubt that the defendant was not drug-dependent, we disagree with the Appellate Court’s conclusion that the defendant is entitled to a judgment of acquittal. We conclude, rather, that the defendant is entitled to a new trial on the charge of sale of narcotics by a person who is not drug-dependent.

Relying upon our language in Brown and Januszewski, it was reasonable for counsel and the trial court to conclude that the defendant did not bear the burden of persuasion, and it is evident from the record that counsel and the court did draw that conclusion. Reasonably believing that she only needed to offer enough evidence to raise the issue of drug dependency, the defendant may not have introduced as much evidence as she would have had she understood that she had the burden of proving by a preponderance of the evidence that she was drug-dependent. Because we are stating for the first time that the defendant bears the burden of proving by a preponderance of the evidence that she was drug-dependent, and because the jury instructions relating to this issue did not reflect that burden, fairness requires that the defendant be afforded the opportunity to substantiate her claim. Therefore, we conclude that the defendant is entitled to a new trial on the charge of sale of a narcotic substance by a person who is not drug-dependent in violation of § 21a-278 (b). See Vines v. Orchard Hills, Inc., 181 Conn. 501, 514, 435 A.2d 1022 (1980).

IV

The state next claims that the trial court’s instruction did not improperly allow the jury, rather than the court, to determine whether the issue of drug dependency had been raised. Having concluded that the defendant is entitled to a new trial, we need not address this issue because it is unlikely to recur on remand. State v. Williams, 202 Conn. 349, 365, 521 A.2d 150 (1987). Both parties agree that it is the function of the trial court to determine if the issue of drug dependency is raised, and our decision would turn upon a very fact specific review of the instant instruction. Since the instructions were improperly based upon the language of Brown and Januszewski, which we have now corrected, this issue should not arise again. In the future, the trial court should instruct the jury concerning the issue of drug dependency and the defendant’s burden of proof if it determines that there is “ ‘any foundation in the evidence, no matter how weak or incredible .. . .’ ” State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986).

The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction that it be remanded to the trial court with direction to reverse the judgment with respect to the conviction of sale of a narcotic substance by a person who is not drug-dependent in violation of § 21a-278 (b), and to order a new trial on that charge.

In this opinion, Peters, C. J., Glass and Borden, Js., concurred.

Berdon, J.,

dissenting. Today, the majority wipes out twenty years of precedent wherein this court has held that the “burden of proof” referred to in General Statutes § 2 la-269 refers to the burden of going forward, and once the defendant meets that burden with substantial evidence, the state has the burden of persuasion, that is, proof beyond a reasonable doubt. But far more important than abandoning this precedent is the constitutional consequence when the majority’s interpretation is applied to General Statutes § 21a-278 (b)—that is, it violates the defendant’s federal constitutional right to due process of the law under the fourteenth amendment—which I shall review first.

I

The majority holds that the burden of persuading the jury that the defendant “is not at the time of such action [in this case, a sale of cocaine] a drug-dependent person,” as provided in § 2 la-278 (b) is placed upon the defendant pursuant to § 21a-269. Section 21a-269 provides: “In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, proviso or exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.” Such an interpretation of §§ 21a-278 (b) and 21a-269 violates the due process clause because whether a defendant is drug-dependent is clearly an element of the crime under § 21a-278 (b).

The United States Supreme Court in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), made crystal clear that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In making the determination of what facts the state must prove beyond a reasonable doubt to constitute the crime, the majority of the United States Supreme Court has held that “the state legislature’s definition of the elements of the offense is usually dispositive . . . .” McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986). Nevertheless, “there are obviously constitutional limits beyond which the States may not go in this regard.” Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).

The majority relies on McMillan v. Pennsylvania, supra, for its position that drug dependency is not an element of the crime, but their reliance is misplaced. In McMillan, the Pennsylvania statutes provided that if a defendant is convicted of certain enumerated felonies and the sentencing judge finds by a preponderance of the evidence the defendant’s visible possession of a firearm during the commission of the felony, he or she would then be subject to a mandatory minimum sentence. The court pointed out that “the Pennsylvania Legislature has expressly provided that visible possession of a firearm is not an element of the crimes enumerated in the mandatory sentencing statutes, § 9712 (b), but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt.” (Emphasis added.) Id., 85-86. The Pennsylvania legislature specifically provided that “§ 9712 only becomes applicable after a defendant has been duly convicted of the crime for which he is to be punished.” Id., 87. This is not the case in regard to § 21a-278 (b); the provision of not being drug-dependent is an integral part of the statute clearly making it an element of the crime.

This case comes within Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). In Mulaney, the Maine statute required “a defendant charged with murder to prove that he acted ‘in the heat of passion on sudden provocation’ in order to reduce the homicide to manslaughter,” and, thereby reduce the maximum possible sentence. Id., 684-85. The United States Supreme Court held that the state was required to prove the lack of “the heat of passion” beyond a reasonable doubt as an element of the crime. Id., 704. Likewise, under our statute, the provision of lack of drug dependency results in a difference in the sentence. Section 2 la-278 (b) provides that a defendant who is not drug-dependent is subject to a prison term for a minimum of “not less than five years nor more than twenty years” for a first offense. (Emphasis added.) If a defendant is charged under General Statutes § 21a-277 (a), which is identical to § 21a-278 (b) but does not require the defendant to be drug-dependent, he or she is subject for the first offense to a prison term of “not more than fifteen years." (Emphasis added.) Accordingly, as in Mullaney, it becomes an element of the crime and the state must prove that the defendant was not drug-dependent beyond a reasonable doubt once appropriately raised by the defendant.

This distinction was underscored in McMillan when the court stated: “The Court in Mullaney observed, with respect to the main criminal statute invalidated in that case, that once the State proved the elements which Maine required it to prove beyond a reasonable doubt the defendant faced ‘a differential in sentencing ranging from a nominal fine to a mandatory life sentence.’ [Mullaney v. Wilbur, supra, 700.] In the present case the situation is quite different. Of the offenses enumerated in the Act . . . [several] are first-degree felonies subjecting the defendant to a maximum of 20 years’ imprisonment. [Section] 1103 (1). . . . Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. Section 9712 ‘ups the ante’ for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan. The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners’ claim that visible possession under the Pennsylvania statute is ‘really’ an element of the offenses for which they are being punished—that Pennsylvania has in effect defined a new set of upgraded felonies—would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113 (d) (providing separate and greater punishment for bank robberies accomplished through ‘use of a dangerous weapon or device’), but it does not. ” (Emphasis added.) McMillan v. Pennsylvania, supra, 87-88.

Although the state may place the burden of production on the accused, the state clearly cannot shift the burden of persuasion to relieve itself of the obligation to prove each element of the crime beyond a reasonable doubt, even though the clause in dispute would only affect the penalty. The court in Mullaney observed: “The safeguards of due process are not rendered unavailing simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty. The fact remains that the consequences resulting from a verdict of murder, as compared with a verdict of manslaughter, differ significantly. Indeed, when viewed in terms of the potential difference in restrictions of personal liberty attendant to each conviction, the distinction established by Maine between murder and manslaughter may be of greater importance than the difference between guilt or innocence for many lesser crimes.” Mullaney v. Wilbur, supra, 698.

It is also clear under our state law that the lack of drug dependency is an element of § 2 la-278. When a statute is ambiguous, we should look to the legislative history. State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988). It becomes apparent that the legislature intended non-drug dependency to be an element of § 21a-278 (b). When introducing the legislation, the House chairman of the Judiciary Committee explained that “the problem with [§ 2 la-277 (a)] is the fact that in many instances, the seller who is not a drug addict is given a suspended sentence . . . . What this bill says is that insofar as the person who is not a drug addict, if he sells, he shall go to jail for not less than ten [presently amended to five] years for the first offense . . . .” 14 H.R. Proc., Pt. 10, 1971 Sess., p. 4613 (Representative John Carrozzella). More importantly, the establishment of § 21a-278 sets the mandatory maximum sentence for a conviction of possession with intent to sell by a person who is not drug-dependent at twenty years for a first offense, while a similar conviction pursuant to § 21a-277 carries a mandatory maximum sentence of fifteen years for a first offense. Moreover, the bill’s sponsor stated that the “intent of the bill is to give the state’s attorney and the prosecuting attorney an opportunity to charge an additional crime which does carry a harder sentence which goes towards imprisoning the person who is not drug-dependent and who is, in fact, selling drugs for a profit.” 14 H.R. Proc., Pt. 10, 1971 Sess., pp. 4616-17 (Representative Bernard Avcollie). Therefore, it is clear that the legislature intended § 21a-278 to be an added weapon in the state’s attorneys’ arsenal, to be used in addition to § 21a-277, with which they could charge sellers of drugs who are not drug-dependent. Any remaining question that the legislature intended the absence of drug dependency to be an element of § 21a-278 is resolved by Representative Avcollie’s statement that “in order to charge under this law, a state’s attorney . . . would have to take advantage of the existing law . . . and have the party arrested and examined for drug dependency. In other words, you would first have to prove that he was or was not addicted and then charge him with the crime.” 14 H.R. Proc., Pt. 10, 1971 Sess., p. 4622.

Accordingly, this court’s holding in State v. Januszewski, 182 Conn. 142, 166-69, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), was incorrect. Although the court in Januszewski set forth the correct analytical framework, it failed to apply it properly. The court stated: “Whether the existence of some fact is an essential element of a crime depends upon whether the existence of that fact forms a part of the conduct prohibited by the statute . . . .” Id., 165. This court, however, then went on to hold that drug dependency was not an essential element of § 21a-278 (b) because “[i]t is not part of the prohibited conduct, i.e., the possession of a certain quantity of a narcotic substance with the intent to sell.” Id., 166. In this case, the prohibited conduct is sale of an illegal substance by a person who is not drug-dependent. Clearly, the legislature intended the absence of drug dependency to be an element because, as revealed by the legislative intent, this statute was promulgated for the sole purpose of making the charge of possession with intent to sell by a person who is not drug-dependent subject to more severe penalties than already available under existing law. This is further underscored because without this clause, § 21a-278 (b) would be virtually identical to § 21a-277, and, as applied in the present case, the statutes are indeed identical.

Additionally, the majority claims that § 2 la-269 is free from ambiguity because the legislature placed the “burden of proof” on the defendant. Their claim simply does not make it so. The majority concedes that the words “burden of proof,” as used in § 21a-269, can be and have been construed to mean the burden of production, as well as the burden of persuasion. Under these circumstances, we must resort to statutory construction. In doing so, established rules of construction must be followed.

First, it is axiomatic that “[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.” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986). Clearly, under this rule of construction the phrase “burden of proof” must be construed to mean that the defendant merely has the burden of going forward with the evidence and that once he or she comes forward with substantial evidence of drug dependency, the state must prove beyond a reasonable doubt that the person is not drug-dependent.

Second, Professor Colin C. Tait points out in his scholarly work on Connecticut evidence the following: “If an exception is an integral part of the enacting or prohibition clause of a criminal statute, it is deemed an essential element of the crime, and the state must plead and prove that the defendant is not within the exception. State v. Anonymous, 179 Conn. 516, 519-20, 427 A.2d 403 (1980); State v. Beauton, 170 Conn. 234, 240, 365 A.2d 1105 (1976). Where an exception to a prohibition is situated separately from the enacting clause, the exception is to be ‘proven by the defense.’ State v. Tinsley, 181 Conn. 388, 402, 435 A.2d 1002 (1980).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.5.3 (g).

Finally, the legislature’s intention that the lack of drug dependency be treated as an element is underscored by its inaction. In the twenty years that we have ruled that § 21a-269 referred only to the burden of production, the legislature has not acted. “ ‘[W]e presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation ....’” (Citations omitted.) McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119, 527 A.2d 664 (1987); see Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987).

II

Notwithstanding the significant constitutional transgression, the majority decision defies precedent clearly established by this court. In 1972, this court made it crystal clear in State v. Brown, 163 Conn. 52, 65, 301 A.2d 547 (1972), that “Section 19-474 [now § 21a-269] removes from the state the obligation to come forward with evidence on the defendant’s lack of a license in the first instance—but it does not alter its duty to prove a lack of authorization to deal in narcotic drugs when the question of license becomes an issue in the case.” See also State v. Thompson, 197 Conn. 67, 79, 495 A.2d 1054 (1985) (§ 19-474 [now § 21a-269] places burden on defendant to prove existence of impaired mental capacity under exception in § 19-480a (a) [now § 21a-278 (a)]); State v. Januszewski, supra, 169 (once defendant introduces substantial evidence of drug dependency, burden shifts to state to prove beyond a reasonable doubt that defendant is not entitled to exception); State v. Clark, 164 Conn. 224, 229, 319 A.2d 398 (1973) (defendant has initial burden to introduce evidence regarding exception for authorized sale of narcotics); State v. Ober, 24 Conn. App. 347, 354, 588 A.2d 1080, cert. denied, 219 Conn. 909, 543 A.2d 134, 135 (1991) (defendant has burden of introducing “ ‘some substantial evidence tending to prove his drug dependency’ ”).

Other jurisdictions have concluded that their versions of the exception statute found in the Uniform Controlled Substances Act (formerly the Uniform Narcotic Drug Act) do not place the burden of persuasion upon the defendant. See People v. Hudson, 130 Ill. App. 2d 1033, 1040, 266 N.E.2d 481 (1970), rev’d on other grounds, 50 Ill. 2d 1, 276 N.E.2d 345 (1971), cert. denied, 405 U.S. 965, 92 S. Ct. 1176, 31 L. Ed. 2d 241 (1972) (“It places a definite burden upon the defendant to prove the applicability of any exception contained in our Uniform Narcotic Drug Act. No burden is put upon the State, with respect to an exception, until such time as the defendant introduces evidence to show that an exception is applicable.”); State v. Gibbs, 239 N.W.2d 866, 869 (Iowa 1976) (“the reach of § 204.507 (1) must be limited to a requirement that defendant produce some evidence he is within a statutory exception before the State is obligated to assume the burden to negate the exception beyond a reasonable doubt”); Elkins v. State, 543 S.W.2d 648, 650 (Tex. Crim. App. 1976) (exception statute does not shift burden of persuasion from the state to the accused; “[t]he burden of proof does not change simply because the accused has the burden of producing evidence to establish a defensive plea”).

III

The majority attempts to justify its position on the grounds that the state is disadvantaged “because it has no method by which to discover whether drug dependency will be an issue at trial.” I was not aware that the state’s convenience should dictate whether a person has either a constitutional or statutory right. “ ‘The argument from convenience is admissible only where the inference is a permissible one, where the defendant has more convenient access to proof, and where requiring him to go forward with proof will not subject him to unfairness or hardship.” Tot v. United States, 319 U.S. 463, 469, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943). The court can correct any disadvantage by changing its rules to require that the defendant furnish notice before trial that he or she intends to raise the issue of drug dependency. See Practice Book §§758 and 759 (defendant must notify prosecuting authority if he or she intends to introduce expert testimony regarding mental disease or defect). The mere failure to adopt rules of procedure should not give this court a license to deprive a defendant of his or her constitutional rights.

We deal with fundamental rights that should not be taken lightly. Significant federal constitutional issues were raised by the defendant, yet unfortunately the majority disposes of them in a cursory manner. Furthermore, in one stroke of its pen, the majority wipes out twenty years of precedent that no one had questioned. Indeed, the burden of proof was not a certified issue when we granted the petition for certification to appeal from the Appellate Court, and it is only through the majority’s judicial activism that this issue is now before the court. Although I believe that the entire court should have sat en banc when this issue was raised (in addition to allowing supplemental briefs and oral argument) for the purpose of affording the people of the state of Connecticut the benefit of the views of all of our justices, only rebriefing was ordered. If any matter is important enough to be heard by this court, it should be decided by all the justices. Accordingly, I dissent.

       General Statutes § 21a-278 provides in relevant part: “penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION OR ADMINISTRATION BY NON-DRUG-DEPENDENT PERSON ....
      “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.” This statute was formerly General Statutes § 19-480a.

       General Statutes § 21a-277 provides in relevant part: “penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 53a-48 provides: “conspiracy, renunciation, (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.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 21a-279 provides in relevant part: “penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL sanctions, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       In certifying the third issue we asked whether the Appellate Court correctly ruled that the trial court’s instructions were improper because they required the jury to determine whether the defendant’s evidence was “credible.” The issue decided by the Appellate Court, however, was whether the jury was properly asked to determine whether the defendant’s evidence was substantial enough to raise the issue of drug dependency. Counsel for both parties have thoroughly briefed the issue decided by the Appellate Court. Accordingly, we will address the issue of whether the Appellate Court was correct in concluding that the trial court improperly instructed the jury to determine whether the defendant’s evidence was substantial, thereby raising the issue of drug dependency. Phillips v. Warden, 220 Conn. 112, 115-16 n.2, 595 A.2d 1356 (1991).

       The defendant contends that the state’s claim that it elicited sufficient affirmative evidence through its cross-examination to prove beyond a reasonable doubt that she was not drug-dependent is not reviewable by this court. The defendant claims that the state failed to present this issue to the Appellate Court, and, therefore, asks that we conclude that certification was improvidently granted as to this issue. We conclude that the issue is properly reviewable. Following her conviction, the defendant appealed to the Appellate Court, claiming that the state had failed to meet its burden of proof. The state argued that it had met its burden of proof, stating at oral argument that facts were elicited on cross-examination which satisfied its burden of proof, and referred the Appellate Court to some of the facts set forth in its brief. The Appellate Court did not determine that the state’s claim was unreviewable, and, in fact, ruled on the issue, although disagreeing with the state’s contention that it had elicited such facts. State v. Hart, 23 Conn. App. 746, 755-56, 585 A.2d 103 (1991). Moreover, although the defendant filed an opposition to the state’s request for certification, she did not claim, as she could have pursuant to Practice Book § 4131, that this claim was unreviewable.

       General Statutes § 21a-240 (18), in relevant part, defines drug dependence as “a state of physical or psychic dependence, or both, upon a controlled substance following administration of that controlled substance upon a repeated periodic or continuous basis . . . .”
      General Statutes § 21a-240 (19), in relevant part, defines a drug-dependent person as “any person who has developed a state of psychic or physical dependence, or both, upon a controlled substance following administration of that substance upon a repeated periodic or continuous basis. ...”

       The trial court instructed the jury that when drug dependency had become an issue in the case “the State is required to prove [it] beyond a reasonable doubt. Now, the State doesn’t have to introduce evidence on it, as it may have done in connection with other elements of this incident. To state all of the evidence in the case, there’s a pool of evidence for you to consider and any cross-examination done by the State of any witnesses who appeared on behalf of the defendant, in other words, Dr. Weiner. I believe evidence of non-drug dependency can be determined from the cross-examination, if you find that to be if the cross-examination has established in your mind beyond a reasonable doubt that the defendant was not drug-dependent. So all of that evidence is available to you to consider. It’s all of the evidence that was given to you in the case. And simply because the State has chosen to offer proof only by way of cross-examination, does not mean that they have not established non-drug dependency, if that be your conclusion. So the cross-examination is just as available as any other evidence that might come before you.” Further, the trial court instructed, “[Y]ou may find the State through cross-examination proved beyond a reasonable doubt that the defendant was not drug-dependent at the time of the incident.”

       The state asserts that it elicited testimony on cross-examination susceptible to the following inferences: (1) The defendant was able to go for many hours on weekends without using drugs; (2) the defendant was not a “regular user” until after 1987; (3) Weiner testified that the Diagnostic and Statistical Manual III-R states that there is a list of criteria which constitutes the diagnosis of cocaine dependency; Hart did not satisfy the criteria; (4) Hart spent only $50 per week on cocaine; (5) the defendant always went to work promptly; (6) the defendant would remain at a bar for up to six hours without leaving and would not use drugs during that time; (7) the defendant’s ability to support herself was never affected; and (8) the defendant was never fired from a job because of cocaine use. Our review of the record does not support the state’s contention that all these facts can be fairly inferred.

       Although the defendant asserts that the issue of who bears the burden of proof of drug dependency was decided by this court in State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972), and State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), and that the propriety of those decisions is not a properly certified question, we conclude that the definition of the state’s burden of proof is “inescapably intertwined” with the issue of whether the state met their burden. State v. Torrence, 196 Conn. 430, 434, 493 A.2d 865 (1985). Having determined that the issue was properly before us, following oral argument, we requested the parties to provide this court with simultaneous supplemental briefs limited to the following issue: “Once the defendant has raised the issue of drug dependency, does General Statutes § 21a-269 place the burden of proof on the state or on the defendant, and by what standard?”

       Prior to 1983, this provision was found at General Statutes § 19-474. It has remained unaltered subsequent to its transfer.

       In State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980), the defendant claimed that the state had the burden of disproving his drug dependency, and in State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972), the defendant claimed that the state had the burden of disproving that Ms possession of narcotics was licensed.

       While we have not been squarely presented with the issue of the extent of the defendant’s burden of proof, the Appellate Court has. Consistent with our language in State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972), and State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980), the Appellate Court has affirmatively held that the defendant has the burden of raising the issue of drug dependency by offering evidence which, if credited by the jury, could raise a reasonable doubt as to whether she is not drug-dependent, and that if the issue is raised, the state must disprove beyond a reasonable doubt that the defendant is drug-dependent. State v. Rivera, 23 Conn. App. 592, 583 A.2d 931 (1990), cert. denied, 217 Conn. 807, 584 A.2d 1192 (1991); State v. McNeil, 21 Conn. App. 519, 574 A.2d 1314, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990); State v. Luca, 19 Conn. App. 668, 563 A.2d 752 (1989).

       The defendant refers this court to the legislative history of General Statutes § 21a-278, which was passed in 1971, and argues that comments made by legislators relating to that statute demonstrate that “burden of proof” as set forth in General Statutes § 21a-269 places only the burden of production upon the defendant. The defendant provided no legislative history of § 21a-269, which was passed in 1967. We do not find the comments made in 1971 concerning § 21a-278 to be particularly useful in determining the meaning of § 21a-269.

       Relying upon the United States Supreme Court decision in Bouie v. Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964), the defendant also claims that an application of this rule to her would violate principles of due process. We do not agree. In Bouie, the court stated: “[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’ Calder
        v. Bull, 3 Dall. 386, 390 [1 S. Ct. 172, 1 L. Ed. 648 (1798)].” Bouie v. Columbia, supra, 353. State courts are not allowed to effect an unforeseeable and retroactive judicial expansion of narrow and precise penal statutory language, since a court cannot do by statutory construction what the ex post facto clause prohibits a legislature from doing by legislation. Id., 352-54. This decision does not expand the offense of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). Because the elements of that offense remain unaltered, due process is not violated.

       “The phrase ‘burden of proof is used in two ways. First, to refer to the burden of persuading the jury that a fact exists, and second, to refer to the burden of producing sufficient evidence to persuade the judge to allow the case or issue to go to the jury, viz., that a prima fade case exists. Sortito v. Prudential Ins. Co., 108 Conn. 163, 171, 142 A. 808 (1928); Baxter v. Camp, 71 Conn. 245, 252-53, 41 A. 803 (1898). The burden of persuasion creates a risk of an adverse decision on the merits by the jury, whereas the burden of going forward or producing evidence creates a risk that the judge will withdraw the case or an issue from the jury.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.1.1.

       See footnote 1 of the majority opinion for the relevant part of the text of General Statutes § 21a-278.

        Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), pointed out some of those limitations as follows: “ ‘[I]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.’ McFarland v. American Sugar Co., 241 U.S. 79, 86 [36 S. Ct. 498, 60 L. Ed. 899] (1916). The legislature cannot ‘validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt.’ Tot v. United States, 319 U.S. 463, 469 [63 S. Ct. 1241, 87 L. Ed. 1519] (1943).” McMillan v. Pennsylvania, 477 U.S. 85, 87, 106 S. Ct. 2411, 96 L. Ed. 2d 67 (1986).

       General Statutes § 21a-277 provides in relevant part: “(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a- second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       If the absence of drug dependency had not been intended as an element of General Statutes § 21a-278, then surely the legislature, in passing a statute allowing the state’s attorney to charge “an additional crime,” would have implicated a criminal defendant’s right against multiple convictions for the same offense. Without the drug dependency clause, the statute is identical to General Statutes § 21a-277 for double jeopardy purposes; in the present ease, the defendant was charged and ultimately convicted under both statutes. The majority, however, does not address the double jeopardy implications of its decision.

       See footnote 1, supra.

       Moreover, the state’s recognition of the absence of drug dependency as an element of General Statutes § 21a-278 is apparent from the content of its information providing that “the said Veronica Hart was not a drug-dependent person.”


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    In re Judicial Inquiry No. 85-01
    (14292)
    Peters, C. J., Callahan, Covello, F. X. Hennessy and M. Hennessey, Js.
    Argued December 12, 1991
    decision released April 14, 1992

      Henri Alexandre, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellants (petitioners).

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellee (investigatory grand jury).
   Covello, J.

This is a petition for review of a ruling by a grand jury panel that denied the petitioners’ request for the release of evidence used in grand jury proceedings. The dispositive issue is whether, despite intervening legislative changes that created a right of appellate review, the statute governing the release of evidence that was in effect at the time when the grand jury filed its report, which contained no right of appeal, governs a subsequent request for disclosure of the evidence before that grand jury. We conclude that: (1) the statute in effect at the time the grand jury filed its report governs the subsequent request for disclosure of evidence before that particular grand jury; and (2) there was no appeal available from the decision of the grand jury panel denying the petitioners’ request for the release of evidence. We therefore remand the matter to the Appellate Court with direction to dismiss the petition for review.

The relevant facts are not in dispute. On October 24, 1985, a panel of judges authorized an investigation into the commission of crimes in the city of Waterbury. That same day, pursuant to the panel’s authorization, the chief court administrator appointed the Honorable Barry R. Schaller as grand juror. Frank D’Amico, an inspector in the division of criminal justice, and Paul Reid, a state police officer, assisted with the grand jury investigation. Thomas R. Brown and John Ariola were the subjects of the investigation. In July, 1987, Judge Schaller filed a report of his findings as grand juror.

At the conclusion of the investigation, D’Amico applied for and obtained an arrest warrant for Brown. Reid applied for and obtained an arrest warrant for Ariola. Both applications were based upon testimony and other evidence accumulated during the grand jury investigation. The criminal charges against Brown were subsequently dismissed. Ariola was placed on accelerated rehabilitation.

Thereafter, Brown and Ariola began federal civil rights actions pursuant to 42 U.S.C. § 1983 in the United States District Court alleging that D’Amico and Reid had made material misrepresentations in their applications for arrest warrants with the intention of misleading the judicial authorities into issuing warrants that were, in reality, not.based upon probable cause. Deposition and discovery requests in the federal actions have not been complied with because of D’Amico’s and Reid’s lack of access to the transcripts and records of the grand jury investigation.

On June 14, 1989, D’Amico and Reid filed applications with the grand jury panel seeking the release of the testimony and exhibits in the grand jury proceedings pursuant to General Statutes § 54-47g (a). On February 15, 1991, after a hearing, the panel denied the applications. The petitioners then filed petitions for review with the Appellate Court pursuant to General Statutes § 54-47g (a) and Practice Book § 2037. The Appellate Court granted the petitions for review but denied the relief sought. We thereafter granted the petitioners’ petition for certification to appeal from the Appellate Court. In re Judicial Inquiry, 219 Conn. 905, 593 A.2d 132 (1991). In the interim, we granted the grand jury panel’s application to be designated as a party solely for the purpose of raising a jurisdictional issue.

The grand jury panel argues that the Appellate Court lacked subject matter jurisdiction in this instance as there was no authority, under the then applicable statute, for appellate review of the panel’s determination. Because of its jurisdictional character, we must consider this issue at the outset. “[Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. Practice Book §§ 143, 145; Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985); Neyland v. Board of Education, 195 Conn. 174, 177, 487 A.2d 181 (1985); Reid v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967). Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon. East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 559, 290 A.2d 348 (1971); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). Moreover, ‘ “whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to previous rulings.” ’ Chzrislonk v. New York, N.H. & H. R. Co., 101 Conn. 356, 358, 125 A. 874 (1924).” Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985).

Specifically, the grand jury panel argues that prior to June 7, 1988, the effective date of Public Acts 1988, No. 88-345, no statute or rule of practice authorized an appeal from the proceedings of a grand jury panel. Section 1 (a) of Public Acts 1988, No. 88-345, now General Statutes § 54-47g (a), added a new review provision, that had not previously existed, which stated: “Any person aggrieved by an order of the panel shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two hours from the issuance of such order.” Because Judge Schaller was appointed as an investigative grand juror on October 24, 1985, almost three years prior to the passage of Public Acts 1988, No. 88-345, and since he filed his report on July 10, 1987, eleven months prior to the effective date of that act, June 7,1988, the panel argues that the provision for direct appeal to the Appellate Court is simply inapplicable to this grand jury investigation. The petitioners argue, on the other hand, that the provision authorizing appellate review may be applied retroactively because it only affects the procedure by which appellate review can be secured. We agree with the grand jury panel that there is no right of appellate review of its determination in this instance.

In In re Grand Jury Investigation by Judge John M. Alexander, 207 Conn. 98, 540 A.2d 49 (1988) (In re Grand Jury), we had occasion to consider the identical issue in the context of Public Acts 1985, No. 85-611, codified as General Statutes §§ 54-47a through 54-47h. This act significantly altered existing procedures governing the investigatory grand jury system and included, for the first time, a provision that requests for public disclosure were to be determined by a panel of judges. In that instance, on July 1, 1985, Judge George D. Stoughton ordered a grand jury inquiry. In response thereto, on July 15, 1985, the chief court administrator appointed the Honorable John M. Alexander to serve as grand juror. On October 1,1985, Public Acts 1985, No. 85-611 became effective. On November 24, 1986, Judge Alexander filed his final report. Thereafter, the petitioner filed a petition in Superior Court for public disclosure of the report. The trial court concluded that since the request for public disclosure came after the effective date of Public Acts 1985, No. 85-611, such a request should have been considered by a panel of judges, as the new act provided, rather than by a judge of the Superior Court, as had been the procedure prescribed prior to the adoption of Public Acts 1985, No. 85-611. The trial court determined, therefore, that it lacked jurisdiction to entertain the petition for disclosure. On appeal, we stated that the issue was “whether the legislature intended a different statute to govern public access to the report, transcript and other documentation . . . .” In re Grand Jury, supra, 107. We concluded “that no such bifurcation was intended.” Id. That conclusion was consistent with our earlier determination that “Public Acts 1985, No. 85-611 ... did not revoke the authority of or alter the procedures governing investigatory grand juries that had been properly authorized before October 1, 1985.” (Emphasis added.) State v. Blasko, 202 Conn. 541, 543, 522 A.2d 753 (1987).

Public Acts 1988, No. 88-345 continued the evolution of the reforms in the procedures governing the investigatory grand jury system. Its provision for a direct appeal to the Appellate Court, where no such appeal previously existed, constitutes a substantive change in the law and is not the procedural change that the petitioners suggest. The enactment’s specific provision that it would “be applicable to findings filed on or after the effective date of this act” comports with our own understanding that “ ‘[s]tatutes should be construed retroactively only when the mandate of the legislature is imperative.’ Adamchek v. Board of Education, 174 Conn. 366, 369, 387 A.2d 556 (1978), quoting Michaud v. Fitzryk, 148 Conn. 447, 449, 171 A.2d 397 (1961); see New Haven v. Public Utilities Commission, 165 Conn. 687, 726, 345 A.2d 563 (1974); Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174 (1969). Moreover, statutes that effect substantial changes in the law do not apply in pending actions unless it clearly and unequivocally appears that such was the legislative intent; American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 223, 384 A.2d 378 (1978); E. M. Loew’s Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525 (1941); Old Saybrook v. Public Utilities Commission, 100 Conn. 322, 325, 124 A. 33 (1924); and we have consistently expressed our reluctance to give such statutes retroactive application. East Village Associates, Inc. v. Monroe, 173 Conn. 328, 332, 377 A.2d 1092 (1977).” Sherry H. v. Probate Court, 177 Conn. 93, 100, 411 A.2d 931 (1979). Because the chief court administrator appointed Judge Schaller to act as an investigative grand juror on October 24, 1985, and because Judge Schaller filed his findings on July 15, 1987, both dates being prior to the June 7, 1988 effective date of Public Acts 1988, No. 88-345 and the August 1, 1989 effective date of Practice Book § 2037 authorizing review by the Appellate Court, we conclude that this review provision was not applicable to Judge Schaller’s grand jury investigation.

The question then remains that if review by the Appellate Court pursuant to General Statutes § 54-47g (a) and Practice Book § 2037 is not applicable to grand jury findings filed prior to June 7, 1988, whether the petitioners are entitled to judicial review of the grand jury panel’s denial of their request for disclosure on any other basis. We agree with the conclusion of the General Assembly, implicit in its 1988 enactment of a right of appellate review in these instances, that the answer is no.

“The right of appeal exists only by virtue of statutory authority. State v. Audet, 170 Conn. 337, 342, 365 A.2d 1082 (1976). [Prior to 1988, §] 54-47 [did] not authorize any person aggrieved by an order of the court sealing or releasing the grand juror’s report to appeal from such order .... Therefore, if a right of appeal exists at all it must be found in the general appeal statute, [General Statutes] § 52-263, which permits an appeal by a party aggrieved by a final judgment of the Superior Court.” In re Investigation of the Grand Juror, 188 Conn. 601, 605, 452 A.2d 935 (1982).

Prior to the enactment of Public Acts 1985, No. 85-611, the authority to release grand jury reports was vested in the Superior Court. General Statutes (Rev. to 1985) § 54-47 (g) provided: “At the conclusion of such inquiry the judge, referee or judges conducting the inquiry shall file with the court a report and the court shall direct whether, and to what extent, the report shall be made available to the public or interested parties.” (Emphasis added.) Section 54-47 did not expressly authorize any person aggrieved by an order of the court sealing or releasing the grand juror’s report to appeal from such order. Since it was the Superior Court’s ruling that determined the issue, however, resort to the appellate process was available pursuant to General Statutes § 52-263. See, e.g., In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 501 A.2d 377 (1985); In re Investigation of the Grand Juror, 188 Conn. 601, 452 A.2d 935 (1982); In re Investigation of the Grand Juror into Cove Manor Convalescent Center, Inc., 4 Conn. App. 544, 495 A.2d 1098 (1985).

When sitting as panelists pursuant to the Investigatory Grand Jury Act, General Statutes §§ 54-47a through 54-47h, the panel members are not sitting as a Superior Court but as panel members in accordance with the act.8 Since they are not sitting as judges of the Superior Court, their rulings do not constitute rulings of that court and traditional avenues of appeal are therefore not available. As we concluded in In re Investigation of the Grand Juror, supra, 607, “[ajppellate relief under § 52-263 must be founded on an action brought to the trial court.” We conclude, therefore, that there was no basis for appeal from determinations of the grand jury panel between October 1, 1985, the effective date of Public Acts 1985, No. 85-611 that created the grand jury panel, and June 7, 1988, the effective date of Public Acts 1988, No. 88-345 that created the express statutory right to appellate review.

The judgment is reversed and the matter is remanded to the Appellate Court with direction to render judgment dismissing the petition for review.

In this opinion the other justices concurred.

       General Statutes § 54-47b (4) provides: “ ‘Panel of judges’ or ‘panel’ means a panel of three superior court judges designated by the chief justice of the supreme court from time to time to receive applications for investigations into the commission of crimes in accordance with the provisions of sections 54-47a to 54-47h, inclusive, one of whom may be the chief court administrator.”

       General Statutes § 54-47c (a) provides: “Any judge of the superior court, appellate court or supreme court, the chief state’s attorney or a state’s attorney may make application to a panel of judges for an investigation into the commission of a crime or crimes whenever such applicant has reasonable belief that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed.”
      General Statutes § 54-47d (a) provides: “If the panel approves the application and orders an investigation into the commission of a crime or crimes, the chief court administrator shall (1) appoint an investigatory grand jury to conduct the investigation and (2) designate the court location in the judicial district where any motions to quash and any contempt proceedings shall be heard and any findings and records of the investigation shall be filed.”

       General Statutes § 54-47g (a) provides: “Except as otherwise provided in this section, any part of the record of the investigation not disclosed with the finding pursuant to subsection (b) shall be sealed, provided any person may file an application with the panel for disclosure of any such part of the record. Upon receipt of such application, the panel shall after notice, hold a hearing and the panel, by a majority vote, may disclose any such part of the record when such disclosure is deemed by the panel to be in the public interest . . . .”

       General Statutes § 54-47g (a) further provides: “Any person aggrieved by an order of the panel shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two hours from the issuance of such order.”
      Practice Book § 2037 now provides: “Any person aggrieved by an order of a panel or an investigatory grand jury pursuant to Gen. Stat. § 54-47g may appeal from such order by filing a petition for review with the appellate court within seventy-two hours after the issuance of the order. The filing of any such petition for review shall stay the order until the final determination of the appeal. The appellate court shall hold an expedited hearing on such petition. After such hearing, the appellate court may affirm, modify or vacate the order appealed.”

       Practice Book § 4126 provides: “Appeals may be taken to the supreme court in causes determined in the appellate court where the supreme court, upon petition of an aggrieved party or request of the appellate panel which heard the case, certifies the case for review.”
      The issues certified upon appeal were:
      “1. Did the grand jury panel err in concluding that it is not ‘in the public interest,’ pursuant to Connecticut General Statutes § 54-47g, to release grand jury transcripts and records to public officials, who are sued in their official and individual capacities, for actions taken in the course of their official duties in assisting in the grand jury investigations, but only in the ‘private interest’ of such officials, whether or not such transcripts and records are necessary for their defense in the suit?
      “2. Did the grand jury panel apply the proper analysis of the ‘public interest’ standard in denying the petitioners’ applications for release of the grand jury transcripts and records of Judicial Inquiry No. 85-01?
      “3. Does the ‘public interest’ standard mandate a more liberal approach to disclosure of grand jury transcripts and records than the ‘particularized need’ standard?
      “4. Should the Appellate Court have dismissed the appeals of the applicants by petitions for review for lack of jurisdiction because General Statutes § 54-47g (a) and Practice Book § 2037 may not be applied retroactively to the grand jury proceeding and the report of the grand jury for which disclosure is sought?
      “5. If Connecticut General Statutes § 54-47g (a) and Practice Book § 2037 are not applicable, are the applicants entitled to the disclosure requested on any other basis?” In re Judicial Inquiry, 219 Conn. 905, 906, 593 A.2d 132 (1991).

       Section 3 of Public Acts 1988, No. 88-345 provided: “This act shall take effect from its passage and be applicable to findings filed on or after the effective date of this act.” The General Assembly approved Public Acts 1988, No. 88-345 on June 7, 1988.
      Practice Book § 2037, the counterpart to General Statutes § 54-47g (a), was adopted by the judges of the Superior Court on May 8, 1989, to take effect August 1, 1989.

       Section 6 of Public Acts 1985, No. 85-611, now General Statutes § 54-47g et seq., provided: “The finding and record of the investigation shall be sealed, provided the panel, by a majority vote, may disclose such finding and record when such disclosure is deemed by the panel to be in the public interest.”

       General Statutes § 52-263 provides that in proceedings before the Superior Court, “if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial . . . he may appeal to the court having jurisdiction from the final judgment . . . .’’See also Practice Book § 4000.

       See footnote 1, supra.


author: Callahan, J.

text:
    State of Connecticut v. Nathaniel Nelson
    (14250)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.
    Argued January 9
    decision released April 14, 1992

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

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Bradford J. Ward and Marcia Smith, supervisory assistant state’s attorneys, for the appellee (state).
   Callahan, J.

The sole issue in this appeal is whether the record adequately demonstrates that the defendant, Nathaniel Nelson, knowingly entered his plea of nolo contendere. On January 15,1991, apparently as the result of a plea bargain with the state, the defendant entered a plea of nolo contendere pursuant to General Statutes § 54-94a to the charge of felony murder in violation of General Statutes § 53a-54c. The trial court accepted the plea and sentenced the defendant to a term of thirty-five years imprisonment. Thereafter, the defendant appealed to this court. We affirm the judgment.

The facts upon which the defendant’s plea was based are as follows. On October 8,1988, the defendant, Rodney Kyles, John Hofler and two other men drove together to the north end of Waterbury intending to commit an armed robbery. At approximately 11:30 p.m., the men entered an after hours club on Walnut Street where gambling was taking place. The defendant, armed with a sawed-off shotgun, Kyles, armed with a .38 caliber pistol, another man, also armed, and Hofler ordered the occupants of the club to lie on the floor and to surrender their valuables. Upon encountering resistance from Thompson Lyn, a patron of the club, the defendant struck Lyn in the head with the shotgun. In the course of the robbery, another man, Robert “Butch” Clark, emerged from a bathroom in the club. Clark, aware that a robbery was taking place, attempted to evade Kyles and leave the club, but Kyles grabbed Clark and ordered him down onto the floor. Clark resisted Kyles, however, and the two men struggled. During the struggle, Kyles shot Clark three times, killing him. The robbers then fled, taking approximately four hundred dollars in cash.

On January 15,1991, the state filed a substitute information charging the defendant with felony murder in violation of § 53a-54c. On that date, the defendant submitted a plea of nolo contendere to the trial court. Prior to accepting the defendant’s plea, the court fully and accurately informed the defendant of his rights to a jury trial, to a speedy trial, and to confront the witnesses against him. The defendant waived those rights. Regarding the defendant’s right against self-incrimination, the court stated, “[y]ou don’t have to incriminate yourself by entering a plea such as you did as a nolo contendere plea, but you waive all the rights and privileges that you have under the United States constitution once you enter that plea. Are you aware of that?” The defendant acknowledged that he was aware of those constitutional rights and understood that he was waiving them. The court, thereafter, accepted the defendant’s plea.

The defendant claims that his plea of nolo contendere was not made knowingly because, at the time that his plea was entered, the trial court did not inform him that if he went to trial he would have the privilege against self-incrimination. He argues that, as a result, his federal constitutional right to due process was violated and he is entitled to withdraw his plea. We are unpersuaded.

Initially, the defendant concedes that he failed to preserve this claim below, and he seeks relief in accordance with State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “In order to prevail on appeal on a constitutional claim, that has not been adequately preserved at trial, the defendant must meet all of the following conditions: (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.” (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992); State v. Golding, supra, 239-40. “We have also held that we remain free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Pinnock, supra; State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990); State v. Golding, supra, 240.

The United States Supreme Court has held that in order for the acceptance of a defendant’s plea of guilty to comport with due process, the plea must be voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Boykin set forth three federal constitutional rights of which the defendant must be cognizant prior to entering a plea. “First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. . . . Second, is the right to trial by jury. . . . Third, is the right to confront one’s accusers.” (Citations omitted.) Id., 243; Mainiero v. Liburdi, 214 Conn. 717, 725, 573 A.2d 1207 (1990). A plea that is not entered knowingly violates due process and is absolutely void. State v. Niblack, 220 Conn. 270, 278, 596 A.2d 407 (1991); State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985). Furthermore, a reviewing court cannot presume from a silent record that a defendant knowingly waived these three important federal rights. Boykin v. Alabama, supra; State v. Badgett, 200 Conn. 412, 419-20, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

The defendant contends that he was not adequately informed of his privilege against self-incrimination as mandated by Boykin. He claims that Boykin necessitates that he be informed, at the time of his plea, that if he went to trial, he could not be compelled to testify or incriminate himself. We disagree.

Boykin does not explicitly delineate the scope of the application of the trial court’s obligation to inform the defendant of his “privilege against compulsory self-incrimination.” Viewing that obligation in the context of the entire Boykin opinion, however, we conclude that the federal constitution requires only that a defendant, at the time of the entry of a plea of guilty or nolo contendere, be informed by the court that, in conformity with his right against self-incrimination, he could not be compelled to enter that plea.

In Boykin, the court recognized that the entry of a plea of guilty was incriminating, and analogized the entry of a plea to the admission into evidence of a defendant’s confession. The court stated: “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. . . . Admissibility of a confession must be based on a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.” (Citation and internal quotation marks omitted.) Boykin v. Alabama, supra, 242.

In a similar context, the United States Supreme Court has also stated “[t]hat a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so—hence the minimum requirement that his plea be the voluntary expression of his own choice.” Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).

It is evident that the United States Supreme Court views the entry of a guilty plea as comparable to the admission into evidence of a confession. That court has observed that because a confession is incriminating, its admissibility depends upon the defendant having been told that he has a right against self-incrimination in order to ensure a “reliable determination on the voluntariness issue.” (Internal quotation marks omitted.) Boykin v. Alabama, supra, 242. Because a guilty or nolo contendere plea has much the same impact as a confession, that court has mandated that the defendant be informed that he need not enter the plea. The tenor of the Boykin opinion does not support the defendant’s contention that the federal constitution requires that he be informed, at his plea canvass, that his right against self-incrimination also protects him from being compelled to testify at a trial. We conclude that, for protection of his privilege against self-incrimination, the federal constitution mandates only that a defendant be apprised of the fact that he does not have to enter a plea of guilty or nolo contendere and thus incriminate himself. See United States v. Polk, 908 F.2d 212, 214-15 (7th Cir. 1990), and United States v. Dickerson, 901 F.2d 579, 583 (7th Cir. 1990) (concluding that the Boykin test was satisfied where the defendant was informed, as required by Illinois Supreme Court Rule 402 [a], that he had a right “ ‘to plead not guilty . . . and . . . that if he pleads guilty there will not be a trial of any kind so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him’ ”).

The court’s canvass, prior to the acceptance of the defendant’s plea, adequately informed him that he possessed a right against self-incrimination that guaranteed that he need not incriminate himself by entering a plea of nolo contendere. The federal constitution requires no more. Boykin v. Alabama, supra. Therefore, the defendant has failed to establish that “the alleged constitutional violation clearly exists.” State v. Golding, supra, 239-40.

The judgment is affirmed.

In this opinion the other justices concurred.

       Although the defendant asserts in his brief that the plea of nolo contendere was unconstitutional because it was not knowing, intelligent or voluntary, at oral argument he conceded that the gravamen of his claim was that the plea was not entered knowingly.

       General Statutes § 54-94a provides: “conditional nolo contendere PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes § 53a-54c provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       As a result of this incident, Rodney Kyles was convicted of felony murder and robbery in the first degree and was sentenced to eighty years imprisonment. His appeal is presently before this court.

       The defendant also asserts that he is entitled to withdraw his plea because the plea canvass failed to comply with Practice Book § 711, which requires that the trial court shall not accept a plea of guilty or nolo contendere without informing the defendant that he has the right, inter alia, to trial and the right “not to be compelled to incriminate himself’ at that trial. Practice Book § 720, however, requires that a motion to withdraw a plea be made prior to sentencing. No such motion was made in this case, and the issue was not otherwise preserved at trial. Although the defendant suggests that the trial court’s alleged failure to comply with the Practice Book constitutes plain error as contemplated by Practice Book § 4185, we do not agree. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 59, 594 A.2d 981 (1991). We have stated that “[a] defendant can voluntarily and understandingly waive [his constitutional] rights without literal compliance with the prophylactic safeguards of Practice Book §§ 711 and 712.’’State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Therefore, to the extent that the Practice Book provides the defendant with greater protection than the federal constitution, the defendant has waived that protection.

       We have held that for these purposes, there is no practical distinction between a plea of guilty and a plea of nolo contendere. State v. Badgett, 200 Conn. 412, 417, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

       The defendant asserts in his brief, without citation to any authority, “[t]he privilege against self-incrimination is not limited to the right not to enter a guilty or nolo plea. Of paramount importance is the right not to incriminate oneself at trial. . . (Emphasis in original.)

       The state contends that on June 21,1990, the defendant entered a plea of guilty that was later withdrawn, and that at that time, the trial court fully informed him in accordance with Practice Book § 711. The state further contends that even if the defendant was not adequately informed at the time he entered his nolo contendere plea that he could not be compelled to testify or otherwise incriminate himself at trial, the prior canvass was sufficient to protect the defendant’s constitutional rights. See State v. Badgett, 200 Conn. 412, 418-20, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Because we conclude that a canvass in conformance with the defendant’s contentions is not constitutionally mandated, we do not address the state’s claim that the prior canvass was sufficient to inform the defendant of his rights at the time of the nolo contendere plea.