source: Caselaw Access Project

author: PETERS, C. J. BERDON, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. NATHANIEL FAUST
    (15382)
    Peters, C. J., and Borden, Berdon, Katz and Palmer, Js.
    Argued April 30
    officially released June 25, 1996

      Michael K. Courtney, assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Patricia M. Gilbert, assistant state’s attorney, for the appellee (state).
   PETERS, C. J.

The principal issue in this appeal is the propriety of the trial court’s instructions to, and inquiries of, prospective jurors prior to the commencement of individual voir dire. After a jury trial, the defendant, Nathaniel Faust, was convicted of rioting at a correctional institution in violation of General Statutes § 53a-179b. After denying the defendant’s motion for judgment of acquittal, the trial court rendered judgment on the jury verdict. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. At all times relevant to this appeal the defendant was an inmate incarcerated at Gamer Correctional Institution (Garner). On the evening of April 21, 1993, while the defendant and other inmates were returning to their cells from dinner, an inmate riot occurred at Gamer.

When the riot began, correctional officer Francis Stack received a report of inmates fighting. While responding to the report, Stack confronted the defendant and several other inmates in a hallway leading to one of the cellblocks. Stack informed the inmates that their presence in the hallway violated prison regulations, and ordered them to leave the area immediately. All the inmates except the defendant complied with Stack’s order. When Stack approached the defendant, the defendant pulled out a sock containing a combination lock. The defendant then repeatedly beat the sock against a sally port window while yelling to other inmates, “It’s on” and “Kick it off.” Within moments of the defendant’s outburst, several other correctional officers joined Stack and, together, they subdued the defendant and escorted him from the hallway. Additional facts will be discussed as they become relevant to the issues before us.

On appeal, the defendant claims that the trial court improperly: (1) gave instructions to and asked questions of prospective jurors; (2) denied his challenge to the venire panels from which the jury for his trial had been selected; and (3) instructed the jury in several regards. We are not persuaded by any of these claims.

I

The defendant first claims that the trial court’s introductory instructions to, and inquiries of, two venire panels prior to the commencement of individual voir dire impaired his state constitutional and statutory rights to individual voir dire. We disagree.

The following facts are relevant to this claim. Six jurors and two alternates were selected for the defendant’s trial from two separate venire panels. For each venire panel, prior to the commencement of the voir dire examination of individual panel members, the judge, accompanied by counsel for the defendant and counsel for the state, proceeded to the jury assembly room and met the entire panel. The trial court informed the panel that the defendant had been charged with committing criminal offenses, identified those offenses and introduced counsel. After each counsel had made brief statements to the panel, the trial court explained to the panel, in general terms, several fundamental principles of criminal law and instructed the panel on these principles. Additionally, during the trial court’s explanation to the first panel of a criminal defendant’s constitutional right not to testify at trial, the court remarked to panel members that “I’m not trying to change your minds, I’m trying to tell you certain things that won’t get [you] disqualified.”

Interspersed among its introductory remarks and instructions, the trial court conducted general inquiries of each venire panel into areas of potential bias or incapacity. The general inquiries required only affirmative or negative responses from panel members. The trial court also asked specific, open-ended follow-up questions of those individual panel members whose responses to the court’s general inquiries had revealed possible bias or incapacity. The follow-up questions were asked and answered in the presence of the other panel members.

For each venire panel, after the trial court had completed its introductory instructions and preliminary questions, the court reviewed with both counsel the responses to questions given by individual panel members. The trial court excused several panel members for cause in light of their responses to the inquiries the court had made. Although the trial court invited the defendant to object before it removed panel members for cause, he made no such objection. The trial court also assured counsel that they retained the right to challenge the remaining panel members for cause during individual voir dire. After the trial court’s conference with counsel and the court’s removal of several panel members for cause, counsel commenced their individual voir dire examination of the remaining panel members.

“Both the federal and state constitutions guarantee to an accused the right to a public trial by an impartial jury. U.S. Const., amends. VI and XIV; Conn. Const., art. I, § 8. . . . Part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.” (Citation omitted; internal quotation marks omitted.) State v. Patterson, 230 Conn. 385, 391, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996). In Connecticut, “[t]he right to a voir dire examination of each prospective juror in a criminal action is provided by § 54-82f of the General Statutes. [The court has the duty to analyze individual questioning under this section and limit examination to questions relating to (1) juror’s qualifications, (2) interest, if any, in the subject matter of the action, and (3) relations with the parties thereto.] This right was established as a constitutional one in 1972 by inclusion in article IV of the amendments to the state constitution of the provision that [t]he right to question each juror individually by counsel shall be inviolate.” (Internal quotation marks omitted.) State v. Dahlgren, 200 Conn. 586, 600, 512 A.2d 906 (1986); see State v. Couture, 218 Conn. 309, 318, 589 A.2d 343 (1991); State v. Dolphin, 203 Conn. 506, 511, 525 A.2d 509 (1987). We are persuaded that the trial court’s instructions and inquiries during its introductory sessions with each of the two venire panels did not violate the defendant’s statutory and constitutional rights to individual voir dire.

A

We find no impropriety in the preliminary instructions given by the trial court to each venire panel prior to the commencement of the voir dire examination of individual panel members. “Preliminary instructions serve the important function of orienting the jurors to the nature of the trial to come. It is helpful to explain at the very start the nature and scope of the jury’s duty, some of the basic ground rules and the issues to be decided.” A Collection of Connecticut Selected Jury Instructions — Criminal (3d Ed. 1995) p. 1-1. Such instructions are commonly given and, if properly crafted, do not infringe upon a defendant’s constitutional rights. See, e.g., State v. Figueroa, 235 Conn. 145, 182-85, 665 A.2d 63 (1995); State v. Lewis, 220 Conn. 602, 614-17, 600 A.2d 1330 (1991); State v. Andrews, 29 Conn. App. 533, 539-41, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993); State v. Kelly, 23 Conn. App. 160, 168-70, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991); cf. State v. Woolcock, 201 Conn. 605, 622-28, 518 A.2d 1377 (1986) (approving trial court’s use of preliminary instructions following jury selection).

Our review of the instructions given to the venire panels discloses that the instructions were legally accurate, substantially comported with model preliminary instructions; see A Collection of Connecticut Selected Jury Instructions — Criminal, supra, pp. 1-2 through 1-11; and were appropriately tailored to assist panel members in performing their duties as jurors. Moreover, the defendant has failed to demonstrate any way in which the instructions adversely affected his ability to conduct an individual voir dire. Accordingly, we reject the defendant’s claim of impropriety as to the trial court’s introductory instructions.

Although the instructions to the venire panels were themselves proper, the trial court should not have remarked during its instructions to members of the first venire panel that “I’m trying to tell you certain things that won’t get [you] disqualified.” The trial court should have confined its introductory remarks and instructions to basic legal principles that informed the panel members of their responsibilities and obligations as jurors and that guided them in fulfilling those responsibilities and obligations. We caution trial courts against making any extraneous and unnecessary comment such as that made by the court in this case. We are persuaded, however, that no prejudice to the defendant’s constitutional and statutory rights to individual voir dire flowed from the trial court’s remark. The remark was made to only the first venire panel, was brief and isolated, and was made in the midst of the trial court’s lengthy introduction to that panel. Moreover, the defendant conducted full individual voir dire examination of each of the jurors who was ultimately selected to sit for his trial. Under these circumstances, we cannot conclude that the single remark, in the overall context of the trial court’s otherwise exemplary introductory instructions to the first venire panel, prejudiced the defendant’s voir dire rights.

B

We are also persuaded that the questions the trial court asked panel members did not violate the defendant’s statutory and constitutional voir dire rights. It is well established that the trial court is vested with broad discretion to determine the extent and form of the voir dire examination. See Bleau v. Ward, 221 Conn. 331, 340, 603 A.2d 1147 (1992); State v. Dahlgren, supra, 200 Conn. 601.

The trial court, however, must temper its exercise of discretion over voir dire in order to comport with the goals of the voir dire examination. “The purpose of the voir dire examination is two-fold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge. . . . There are two sets of interests protected by the voir dire: (1) the interests of the parties, namely, the defendant and the state; and (2) the interests of the prospective jurors.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, supra, 230 Conn. 391-92. “[T]he exercise of [the trial court’s] discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted.” (Internal quotation marks omitted.) State v. Skipper, 228 Conn. 610, 625, 637 A.2d 1101 (1994).

A trial court may pose questions to entire venire panels prior to individual voir dire; see State v. Mercer, 208 Conn. 52, 63-64, 544 A.2d 611 (1988); and may dismiss for cause any panel member whose answers to the court’s inquiries reveal bias. See id., 64; see also Practice Book § 847. The trial court’s ability to question prospective jurors assists the court in its task of excluding from a jury any person about whom it entertains doubts regarding impartiality; see State v. Mercer, supra, 64; and thus enables the court to fulfill its independent duty of securing a criminal defendant’s guarantee of a fair trial by an impartial jury. See State v. Brown, 235 Conn. 502, 527, 688 A.2d 1288 (1995); State v. Day, 233 Conn. 813, 843, 661 A.2d 539 (1995). In this case, the trial court’s general questions, which merely required an affirmative or negative response from panel members, were pertinent and proper for testing the competency and capacity of panel members to serve as jurors, and were unlikely to plant prejudicial matter in the minds of the panel members. The trial court, therefore, did not abuse its discretion when it posed general questions to the members of each venire panel.

Although the trial court’s general inquiries were proper, once individual panel members had indicated the existence of possible bias or incapacity to serve as jurors by their responses to those inquiries, the court should not have proceeded further in the presence of other panel members. Follow-up questions that required elaboration beyond an affirmative or negative response should have been reserved for subsequent individual inquiries. A prospective juror’s biased opinions or attitudes, expressed through answers to specific questions in the presence of other members of the venire panel, may taint the impartiality of the other members. See Jurywork: Systematic Techniques (2d Ed. 1989) § 2.11 (1), p. 2-68; see also Mu'Win v. Virginia, 500 U.S. 415, 425, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991); State v. Bible, 175 Ariz. 549, 570, 858 P.2d 1152 (1993) (en banc), cert. denied, 511 U.S. 1046, 114 S. Ct. 1578, 128 L. Ed. 2d 221 (1994).

In order to decrease the risk of one panel member’s bias contaminating an entire venire panel, the preferable procedure would have been for the trial court to note the panel members whose responses to the court’s general inquiries indicated possible bias or incapacity, and either to have asked specific follow-up questions outside the hearing of other panel members or to have relied upon the parties to pursue any follow-up questions during individual voir dire. We strongly discourage trial courts from asking such questions of individual panel members in the presence of the entire venire panel. We also caution trial courts to craft all their preliminary inquiries so as to guard against the exposure of prospective jurors to any biases of responding panel members.

Although it would have been preferable, in this case, for the trial court not to have asked follow-up questions in the presence of other panel members, the defendant has failed to establish that the court’s conduct prejudiced his ability to conduct individual voir dire. The defendant had ample opportunity to question prospective jurors on prejudice that might have resulted from their exposure to responses to the trial court’s preliminary questions. The defendant engaged in individual voir dire with each of the panel members selected to serve as a juror for his trial. During individual voir dire, the trial court did not limit or foreclose in any material respect questions designed to uncover bias or incapacity. Moreover, at the time when the jurors who ultimately convicted the defendant had been selected, the defendant had not exhausted his peremptory challenges. “Unless all his peremptory challenges have been exercised before the completion of jury selection, it is presumed that no juror was permitted to serve whom the defendant regarded as biased or unsuitable, although he might have preferred others.” State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983); State v. Mercer, supra, 208 Conn. 61-62; State v. Miller, 202 Conn. 463, 480, 522 A.2d 249 (1987). The record does not demonstrate that the jurors’ exposure to responses given by panel members to the trial court’s preliminary questions affected any of the jurors in such a way as to prevent him or her from judging the defendant fairly and impartially. Accordingly, the defendant cannot succeed on this claim of impropriety.

II

The defendant next claims that the selection of venirepersons from the Danbury judicial district rather than from Fairfield county violated his constitutional right to have a jury selected from a fair cross section of the community. We disagree.

“The Sixth Amendment requires that the jury panels be drawn from a source representing a fair cross section of the community in which the defendant is tried. Taylor v. Louisiana, 419 U.S. 522, 536 [95 S. Ct. 692, 42 L. Ed. 2d 690] (1975) .... [T]he Sixth Amendment guarantees the opportunity for a representative jury venire, not a representative venire itself. ... In order to guarantee this right, Connecticut adopted General Statutes (Rev. to 1991) § 51-220a, which requires that venire panels be randomly selected.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Ellis, 232 Conn. 691, 698-99, 657 A.2d 1099 (1995).

The defendant’s cross section claim is a narrow one. The defendant does not challenge his venire panels pursuant to Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). Rather, the defendant claims only that “[ijfthe relevant ‘community’for fair cross section’ purposes under the Duren test ... is the county in which the prosecution takes place, then [he] was deprived of that fair cross section because the two arrays of [venirepersons] from which his jury was chosen did not reflect a fair cross section of Fairfield [c]ounty.” (Emphasis added.) Our inquiry, therefore, is limited to whether the relevant community for purposes of selecting venire panels is based on counties rather than on judicial districts.

The Appellate Court recently addressed a claim similar to the claim raised by the defendant in this appeal. State v. Carolina, 40 Conn. App. 762, 768-70, 673 A.2d 562 (1996). We agree with the Appellate Court that “[t]o a large extent defining the community for purposes of the sixth amendment is an arbitrary decision. . . . County lines or federal district lines do not magically determine the parameters of a community. . . . [H]ow-ever . . . because the decision is somewhat arbitrary, it is a decision that should be left when possible to a body authorized to legislate on such matters.” (Citation omitted; internal quotation marks omitted.) Id., 769, quoting Davis v. Warden, 867 F.2d 1003, 1009 (7th Cir.), cert. denied, 493 U.S. 920, 110 S. Ct. 285, 107 L. Ed. 2d 264 (1989); see Williams v. Superior Court, 49 Cal. 3d 736, 744-45, 781 P.2d 537, 263 Cal. Rptr. 503 (1989).

The legislature has determined that the judicial district is the relevant community for purposes of selecting venire panels. “In 1977, the Connecticut legislature adopted a unified court system through the creation of twelve judicial districts that replaced counties as the means of establishing venue. General Statutes § 51-344. Over the next five years, the legislature amended the provisions relating to the selection of jurors to replace the word ‘county’ with the words ‘judicial district.’ See General Statutes §§ 51-219c, 51-220a, 51-222, 51-231, 51-238 and 51-344. Through these statutes, the Connecticut legislature has defined the community for purposes of jury selection to be the judicial district instead of the county.” State v. Carolina, supra, 40 Conn. App. 769-70.

The defendant does not claim that the legislature either created or has maintained the impaneling statutes for an invidious purpose; see State v. Frazier, 185 Conn. 211, 218, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); or that the statutes in some other way violate his constitutional rights. In the absence of any challenge to the constitutionality of the impaneling statutes, the defendant’s attempt to redefine the area that constitutes the relevant community for jury selection purposes must fail.

Ill

The defendant also challenges the propriety of the trial court’s final instructions to the jury. The defendant contends that portions of the final instructions violated his federal constitutional rights under the sixth amendment and the fourteenth amendment. We are not persuaded by any of the defendant’s claims of instructional impropriety.

A

The defendant first claims that the trial court improperly instructed the jury on the elements required for a conviction of rioting at a correctional institution under § 53a-179b by removing a necessary element of the offense from the jury’s consideration. Although the defendant concedes that he did not preserve this claim at trial, he contends that he is entitled to relief under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that any possible error occasioned by the instruction was harmless beyond a reasonable doubt and, therefore, that the defendant’s claim fails the fourth prong of Golding.

A defendant is constitutionally entitled to have the jury instructed on the essential elements of the crime charged and to be acquitted unless proven guilty of each element beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 509-10, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995); State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988); State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). Accordingly, a trial court is prohibited from incorporating into its jury instructions evidentiary presumptions that have the effect of relieving the state of its burden of proving every essential element of the crime. Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); State v. Williams, 199 Conn. 30, 34, 505 A.2d 699 (1986).

To prove a violation of § 53a-179b, one element the state must prove is that the charged offense occurred at a correctional institution. See footnote 1. During the course of its final instructions, the trial court told the jury: “Gamer is clearly a correctional institution within the meaning of [§ 53a-179b]. You don’t have to waste [any time] on that if you find it occurred at Gamer — Garner is a correctional institution.”

“In analyzing the defendant’s claim, we assume, without deciding, that the challenged instruction constituted a Sandstrom violation. [See Sandstrom v. Montana, supra, 442 U.S. 520-24.] This assumption, however, does not end the inquiry because such an error is harmless if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Tucker, 226 Conn. 618, 624, 629 A.2d 1067 (1993); see State v. Cerilli, 222 Conn. 556, 584, 610 A.2d 1130 (1992).

Upon review of the entire record, we are persuaded that the state has satisfied its burden of proving that any impropriety in the trial court’s instruction was harmless beyond a reasonable doubt. Abundant evidence adduced at trial established that the conduct that had formed the basis of the charged violation of § 53a-179b had occurred at a correctional institution. Witnesses for the state testified not only that the charged offense had occurred at a correctional institution, but also that the defendant had been incarcerated at that correctional institution at the relevant time. The defendant has never contested any of this evidence. To the contrary, the defendant himself testified that he had been incarcerated at a correctional institution at the time of the charged offense. The defendant further testified that inmates had rioted at that correctional institution at the time of the charged offense. His defense was limited to a denial of his participation in the riot.

The evidence adduced at trial compels the conclusion beyond a reasonable doubt that, in the absence of the assumed improper instruction, the jury would have concluded that the charged violation of § 53a-179b had occurred at a correctional institution. Accordingly, the defendant has failed to satisfy the fourth prong of Golding, and therefore cannot prevail on his claim of harmful instructional error. See State v. Bruno, 236 Conn. 514, 537, 673 A.2d 1117 (1996); State v. Tucker, supra, 226 Conn. 624-25.

B

The defendant next claims that the trial court’s instructions on rioting at a correctional institution improperly enlarged the offense with which he had been charged. The defendant first contends that it was improper for the trial court to read to the jury § 53a-179b (a) in its entirety because the information had charged him with violating only a portion of that statute. The defendant also contends that the trial court improperly instructed the jury that it could find him guilty for inciting, instigating or taking part in a strike, conduct for which he had not been charged. We are unpersuaded by either of these claims.

The following additional facts are relevant to this claim. The information charged the defendant with inciting, instigating or taking part in a disturbance, riot or organized disobedience to the rules and regulations of a correctional institution. During the trial court’s final instructions to the jury regarding the count of rioting at a correctional institution, the court read § 53a-179b (a) in its entirety. After the trial court excused the jury, the defendant took an exception to the court’s reading of the entire statute. In response to the defendant’s exception, the trial court immediately recalled the jury and reinstructed it as follows: “I did read the entire statute to you on riot and the various [ways] it could happen — I think there are seven, eight or nine alternatives. The [information, of course, alleges [that the defendant] incited — he did incite, instigate, or take part in — you’re limited to those three specific words in terms of the allegations of the complaint on riot. Not aiding, abetting or any of those things, but just simply incite, instigate, or take part in. And if you find that he didn’t do those things — [any one] of them — then, obviously, you can’t find him guilty on that charge.” (Emphasis added.) The defendant did not take an exception to the trial court’s supplemental instruction, and he does not claim on appeal that the supplemental instruction was in any manner improper.

“It is improper for the trial court to read an entire statute to a jury when the pleadings or the evidence support a violation of only a portion of the statute.” State v. Chapman, 229 Conn. 529, 537, 643 A.2d 1213 (1994); State v. Dinoto, 229 Conn. 580, 584, 642 A.2d 717 (1994). In this case, the original jury instructions were overly expansive because the information charged the defendant only with inciting, instigating or taking part in a disturbance. The trial court’s supplemental instruction, however, cured the court’s improper reading of § 53a-179b (a) in its entirety. “The defendant cannot complain of alleged instructional misstatements that are corrected by a timely supplemental instruction. . . . Indeed, a supplemental charge is likely to enjoy special prominence in the minds of the jurors because it is fresher in their minds when they deliberate.” (Citations omitted.) State v. Ross, 230 Conn. 183, 224, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Bryant, 233 Conn. 1, 13, 658 A.2d 89 (1995). We therefore reject the defendant’s claim based on the trial court’s reading of § 53a-179b (a) in its entirety.

We also conclude that the trial court did not enlarge the offense of rioting at a correctional institution to include an uncharged theory that the defendant incited, instigated or took part in a strike. “[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995); State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989).

Although the trial court mentioned “strike” in its final instructions, the court referred to the term only when it read § 53a-179b (a) to the jury and when it defined the statutory terms “riot,” “disorder” and “strike.” The trial court never mentioned “strike” in its explanation to the jury of the essential elements of § 53a-179b that the state had to prove beyond a reasonable doubt. Moreover, the trial court expressly instructed the jury that, in order to convict the defendant, it had to find that the state had proven that he had committed the acts in the manner alleged in the information, which did not charge him with inciting, instigating or taking part in a strike. Reading the jury charge as a whole, we are persuaded that it is not reasonably possible that the jury was misled by the trial court’s isolated references to “strike.” Accordingly, the defendant’s claim must fail.

C

Last, the defendant claims that the trial court impermissibly diluted the state’s burden of proving him guilty beyond a reasonable doubt. The defendant contends that the trial court improperly instructed the jury to disregard the standard of reasonable doubt mentioned by defense counsel in his closing argument, and improperly instructed the jury regarding reasonable doubt, the presumption of innocence and the jury’s legal duty. We disagree.

We find no error in the trial court’s instruction to the jury to disregard counsel’s remarks concerning the standard of reasonable doubt. It is the sole province of the trial court to instruct the juiy on the law that it will apply during its deliberations. Moreover, “[a] trial court has wide discretion to determine the propriety of counsel’s argument and may caution the jury to disregard improper remarks in order to contain prejudice. A reviewing court may only disturb the trial court’s actions in instances of abuse of this wide discretion.” State v. Herring, 210 Conn. 78, 102, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

In this case, although defense counsel’s remarks might have constituted an accurate but abbreviated summary of the reasonable doubt standard, we are persuaded that the trial court did not abuse its discretion when it instructed the jury to disregard the remarks. The instruction was generally worded, neither expressly referring to nor mentioning the defendant or his closing argument, and had been preceded by another instruction to the jury to disregard both parties’

descriptions of the law. Moreover, we have repeatedly stated that attempts to clarify reasonable doubt should be avoided because they often tend to obfuscate that concept. “A criminal defendant is entitled to a clear and unequivocal charge that his guilt must be proven beyond a reasonable doubt. . . . We have recognized that [a]ttempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury. . . . We have further noted that [j]udicial attempts to clarify the meaning of the phrase ‘reasonable doubt’ by explanation, elaboration or illustration . . . more often than not tend to confuse or mislead. . . . [W]e find no abuse of discretion in the court instructing the jury to disregard argument by counsel tending to cloud the meaning of so important a concept as reasonable doubt. In so doing, the trial court discharge [s] its duty to give jury instructions that are accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.” (Citations omitted; internal quotation marks omitted.) State v. Butler, 207 Conn. 619, 636-37, 543 A.2d 270 (1988); see also State v. Figueroa, supra, 235 Conn. 184; State v. Ryerson, 201 Conn. 333, 342, 514 A.2d 337 (1986). Under these circumstances, we are unpersuaded that the trial court’s instruction constituted an abuse of discretion.

The defendant’s challenge to the portions of the trial court’s instructions regarding reasonable doubt, the presumption of innocence and the jury’s duty warrants little discussion. The defendant claims that the trial court improperly instructed the jury that the “law is made to protect society and innocent persons not to protect guilty ones” and that it is the “sworn duty of [the] jury to enforce the law . . . .” As the defendant acknowledges, however, we have on several occasions upheld, in the context of the jury charge as a whole, language identical or substantially similar to the challenged language. See, e.g., State v. Cassidy, 236 Conn. 112, 145, 672 A.2d 899 (1996) (“the law is made to protect society and innocent persons and not to protect guilty ones” [internal quotation marks omitted]); State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992) (same); State v. Palmer, 196 Conn. 157, 168, 491 A.2d 1075 (1985) (“it is the sworn duty of the jury to enforce the law which is made for the protection of life, society and property and to render such a verdict as the evidence warrants” [internal quotation marks omitted]). Neither of the challenged instructions, when properly considered in the broader context of the trial court’s instructions in their entirety, diluted the state’s burden of proof or otherwise misled the jury in any way. See State v. Cassidy, supra, 145; State v. Francis, 228 Conn. 118, 135-36, 635 A.2d 762 (1993); State v. Palmer, supra, 168-69. The challenged instructions, therefore, were proper.

The judgment is affirmed.

In this opinion BORDEN, KATZ, and PALMER, Js., concurred.

BERDON, J.,

concurring. I concur in the result. I write separately because of my concerns with regard to the racial and ethnic composition of the community from which the venirepersons were selected. The defendant’s trial took place in the city of Danbury and his jury was selected from the judicial district of Danbury rather than from the county of Fairfield, within which Danbury is located.

According to the 1990 census, the towns within the judicial district of Danbury have a total population of 162,584, of which 5040 residents are African-American (3 percent) and 6670 residents are Hispanic (4 percent). The county of Fairfield, however, has a total population of 827,645, of which 81,519 residents are African-American (10 percent) and 70,818 residents are Hispanic (8.5 percent). It is quite obvious that the racial and ethnic composition of the community from which the venirepersons for the defendant’s jury were drawn would have been substantially different if the community had consisted of the county of Fairfield instead of the judicial district of Danbury. The county of Fairfield would have provided this African-American defendant, Nathaniel Faust, with more than double the chance of having African-American and/or Hispanic jurors. In this case, no minorities served on the defendant’s jury; every juror was white. Indeed, not one African-American or Hispanic individual was even subjected to voir dire during jury selection.

Historically, the county has been the unit from which potential juries were summoned. “From time immemorial in this state, the community unit which is the basis for the source of a jury array is that of a county . . . .” State v. Townsend, 167 Conn. 539, 551, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975). Even after the legislature substituted the judicial district for the county, this court continued to recognize the county as the appropriate community from which to draw venirepersons. See State v. McCarthy, 197 Conn. 247, 252 n.7, 496 A.2d 513 (1985).

Although the defendant clearly challenged the drawing of the venirepersons from the judicial district instead of from the county, he effectively withdrew the claim, in a letter addressed to this court, because of the Appellate Court decision in State v. Carolina, 40 Conn. App. 762, 768-70, 673 A.2d 562 (1996). Accordingly, I would not reach the issue in part II of the majority opinion; rather, I would leave it for another day.

I concur in the judgment.

       General Statutes § 53a-179b provides in relevant part: “Rioting at correctional institution: Class B felony, (a) A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution. . .
      The jury acquitted the defendant of assault of an employee of the department of correction in violation of General Statutes § 53a-167c.

       The constitution of Connecticut, article first, § 19, as amended by article four of the amendments, provides: “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

        General Statutes § 54-82f provides: “Voir dire examination. In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement, of said action.”

       The first venire panel consisted of forty-three venirepersons, and the second venire panel consisted of thirty-eight venirepersons.

       In similar remarks to each of the two venire panels, the trial court, stated that jurors must follow the court’s instructions on the law and that it is the sole province of the jury to determine the facts; explained that, pursuant to the fifth amendment to the United States constitution, a criminal defendant has a right not to testify at trial; briefly discussed the concept of the presumption of innocence and the state’s burden to demonstrate the defendant’s guilt beyond a reasonable doubt; instructed that sympathy cannot enter into jury deliberations; a.nd briefly explained the individual voir dire process and instructed panel members to reserve judgment until they heard all the evidence. The defendant does not claim that any of the remarks made by the trial court contained an improper statement of the law.

       The trial court asked each of the two venire panels whether any panel member: was acquainted with any prospective witnesses, either counsel or members of each counsel’s respective office; believed that a person must have committed a crime if that person has been arrested; possessed strong feelings toward law enforcement officers; could not follow the court’s instruction that sympathy cannot enter into jury deliberations; or believed that African-Americans are more inclined to commit crimes than white people. The trial court also inquired whether any panel member or anyone with whom a panel member was closely acquainted had been the victim of crime.
      In addition, the trial court asked the second venire panel whether any panel member: knew anything about Garner that might influence his or her judgment; had any problems regarding the nature of the offenses with which the defendant had been charged; believed that the defendant must have committed the offenses with which he had been charged solely because he was incarcerated; could not follow the court’s instruction that the jury must follow the law as charged by the court, that the jury’s role is to determine the facts and to apply the facts to the law, or that jurors must reserve judgment until all the evidence is presented; would believe a statement solely because it is made by a law enforcement officer; believed, for any reason, that he or she could not serve as a juror and reach a fair and impartial verdict based on the evidence presented during trial; or had made plans that could not be postponed until after the estimated completion date of the trial.

       The defendant previously had objected to the trial court’s questioning of panel members prior to individual voir dire, and had moved for a mistrial on the ground that the panel members’ preexposure to the types of inquiries likely to be repeated by counsel during the individual voir dire process would “allow potential jurors so disposed to prepare answers that may interfere with counsel’s ability to determine beliefs, predispositions, emotional response systems and prejudgments.” The trial court denied the defendant’s motion.

       Practice Book § 847 provides: “[Selection of Jury] — Preliminary Proceedings
      “The judicial authority shall cause prospective jurors to be sworn or affirmed in accordance with Gen. Stat., §§ 1-23 and 1-25. The judicial authority shall require counsel to make a preliminary statement as to the names of other counsel with whom he or she is affiliated and other relevant facts, and shall require; counsel to disclose the names, and if ordered by the judicial authority, the addresses of all witnesses counsel intends to call at trial. The judicial authority may excuse any prospective juror for cause.”

       The only explicit restriction placed by the trial court on the defendant’s right to conduct individual voir dire was that the defendant could not ask prospective jurors questions regarding their knowledge or ignorance concerning questions of law. See State v. Dahlgren, supra, 200 Conn. 601. The defendant does not challenge the propriety of this restriction.

       General Statutes § 51-344 provides in relevant part: “Judicial districts established. For purposes of establishing venue, the superior court shall consist of the following judicial districts ... (2) The judicial district of Danbury, consisting of the towns of Bethel, Brookfield, Danbury, New Fair-field, Newtown, Redding, Ridgefield and Sherman . . . .”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . .” This sixth amendment right applies to the states through the due process clause of the fourteenth amendment. See Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
      The defendant also makes his claim under article first, § 8, of the Connecticut constitution. Because the defendant has failed to provide an independent analysis of his state constitutional claim, we decline to review it. See State v. Wilkes, 236 Conn. 176, 183 n.9, 671 A.2d 1296 (1996); State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993).

       Under Duren v. Missouri, supra, 439 U.S. 364, for a defendant successfully to challenge the composition of his or her jury array, the defendant must prove: “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” “Once the defendant has established this prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest.” State v. Tillman, 220 Conn. 487, 492, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).

       See footnote 9.

       General Statutes § 51-231 provides: “Drawing of jurors. Before or during each jury session of the superior court in each judicial district, the clerk or an assistant clerk of the superior court shall publicly, randomly or by rotation, draw the names of as many jurors from the judicial district as are ordered to attend said court by the judges assigned to such jury session, which names shall constitute a single jury panel for criminal and civil sessions at any court location within the judicial district. The clerk or an assistant clerk of the court, upon direction of any judge of said court, may assign any jurors of the panel to attend any courtroom within the judicial district.”

       Although we have sometimes looked to counties rather than to judicial districts in order to determine the relevant community for purposes of selecting venire panels; see State v. McCarthy, 197 Conn. 247, 252-53, 252 n.7, 496 A.2d 513 (1985); State v. Frazier, 185 Conn. 211, 217, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); more recent decisions have determined the relevant community based on judicial districts, in accordance with the statutory scheme set forth by the legislature. See State v. Couture, supra, 218 Conn. 316A-17.

       See footnote 10.

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”
      The defendant also claims that the trial court’s final instructions violated his right to due process under article first, § 8, of the Connecticut constitution. Because the defendant has failed to provide an independent analysis of his state constitutional claim, we decline to review it. See State v. Varszegi, 236 Conn. 266, 269 n.4, 673 A.2d 90 (1996); State v. Williams, 231 Conn. 235, 245 n.13, 645 A.2d 999 (1994).

       To prevail under Golding, the defendant must establish 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. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 213 Conn. 239-40.

       “We have equated this constitutionally required formulation of the harmless error standard; see State v. Coleman, 14 Conn. App. 657, 678-81, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988); with our formulation that an instructional constitutional error is harmless if there is no reasonable possibility that the jury was misled. See State v. Mercer, [supra, 208 Conn. 73-74]. We perceive no functional difference between the two formulations.” State v. Cerilli, supra, 222 Conn. 584 n.16.

       Because we conclude that any possible error occasioned by the trial court’s instruction was harmless beyond a reasonable doubt, we need not determine whether the defendant waived his right to challenge the propriety of the instruction. See State v. Cooper, 38 Conn. App. 661, 669-71, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995).

       The defendant also claims that the trial court failed to instruct the jury adequately as to the necessity of proof of the “organized disobedience to the rules and regulations” portion of § 53a-179b (a). The defendant, however, concedes that the trial court instructed the jury as to the necessity of proof of organized disobedience under the portion of § 53a-179b with which he had been charged, and he does not challenge the propriety of that instruction. The defendant therefore appears to claim that the trial court improperly failed to repeat its correct instruction throughout its charge to the jury. This claim, however, was not raised at trial, and is devoid of analysis and of citation to any relevant authority. We therefore decline to review it. See State v. Bruno, supra, 236 Conn. 546 n.22; State v. Prioleau, 235 Conn. 274, 294, 664 A.2d 743 (1995).

       The defendant briefly alludes to a claim that the trial court’s instruction to the jury to disregard defense counsel’s remarks concerning reasonable doubt undermined his sixth amendment right to counsel. The defendant, however, provides no analysis to support this claim, and we thus address it only in the context of whether the trial court’s conduct improperly diluted the state’s burden of proof.

       At the conclusion of defense counsel’s final argument, he stated: “The [j]udge is going to instruct you on reasonable doubt. The only thing I want to say is unless you’re firmly convinced, based on what you’ve heard, that [the defendant] is guilty of one or both of these counts — you can’t find him guilty. If you think he’s possibly guilty then, under the law, he's not guilty. If you think he’s probably guilty then, under the law, he’s not guilty. The burden of proof is stronger than that. You have to be firmly convinced. A subjective state of near certitude not absolute certitude. There’s no such thing, but. subjective state of near certitude.”

       The trial court instructed the jury as follows: “Now, you’ve heard some arguments and terms — certitude, possible doubt, some doubt; disregard that completely. That is an inaccurate statement of the law and you will pay attention to what I tell you about a reasonable doubt — use my definition only and disregard the other characterizations or measures of what it [may be].”

       The trial court had instructed the jury that “if the law, as I give it to you, differs in any way from the claims made by counsel in their respective summaries to you, you will dismiss from your minds what either counsel or one or both may have said to you about the law which is contrary to what I tell you it is.”

       We caution that if a trial court instructs a jury to disregard descriptions of legal principles made by defense counsel during closing argument, the court should, as did the court in this case, craft its instruction so as to focus on the statements that the jury should disregard and to eliminate or minimize specific reference to the particular party who made the statements. “The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s.” State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986); State v. Bember, 183 Conn. 394, 401-402, 439 A.2d 387 (1981).

       The tried court instructed the jury as follows: “Ladies and gentlemen, the state of Connecticut does [not] desire the conviction of any innocent person or any person whose guilt has not been established beyond a reasonable doubt. The state does not wish to have an innocent person punished nor does it wish to have a guilty person acquitted. But, for the safety and well being of society and the protection of life and property, the state is concerned in securing the conviction of persons who have been proven by the evidence beyond a reasonable doubt to have been guilty of committing an offense or offenses as [may be] charged in the information. It’s a sworn duty of the court and the jury to safeguard the rights of persons charged with offenses respecting the presumption of innocence which the law imputes to every person so charged. But, the law is made to protect society and innocent persons, not to protect guilty ones.

        “If the presumption of innocen.ce has becm overcome or removed by evidence demonstrating guilt beyond a reasonable doubt, then it’s the sworn duty of the jury to enforce the law, which, as I told you, made for the protection of life, society, and property and to render such a verdict as the evidence warrants. ” (Emphasis added.)

       We reiterate, however, our suggestion in State v. Francis, 228 Conn. 118, 136 n.19, 635 A.2d 762 (1993), that “(1) the challenged sentence [‘the law is made to protect society and innocent persons, and not to protect guilty ones’] be omitted; or (2) it be modified to provide as follows: ‘But the law is made to protect society and persons whose guilt has not been established beyond a reasonable doubt, and not to protect those whose guilt has been so established.’ ”

       The Appellate Court held: “On the basis of federal court precedent, we conclude that there is no constitutional limitation on the legislature’s ability to define community as the judicial district for the purposes of jury selection.” State v. Carolina, supra, 40 Conn. App. 770. I note that the defendant did not challenge the constitutionality, under either the state or federal constitution, of General Statutes §§ 51-219c, 51-220a, 51-222, 51-231, 51-238 or 51-344, with respect to the designation of the judicial district instead of the county for the drawing of the venire.


author: PER CURIAM.

text:
    CARL DUNHAM, JR. v. ROGER DUNHAM ET AL. ROGER DUNHAM v. CARL DUNHAM, JR., ET AL.
    (15261)
    (15262)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.
    Argued May 29-
    officially released June 25, 1996

      William L. Ankerman, with whom, on the brief, was David C. Smith, for the appellant (Joan Dunham Rogerson).

      Michael S. McKenna, for the appellee (Carl Dun-ham, Jr.).
   PER CURIAM.

The principal issues in this appeal arise out of claims that a will should not have been admitted to probate because one of the testator’s sons, an attorney, allegedly exercised undue influence over the testator. The trial court, after a de novo trial, rendered a judgment in favor of the plaintiff, Carl Dunham, Jr., in which it held that the last will and testament of the testator, Jessica Scott Dunham, dated August 27, 1978, be admitted to probate in its entirety. The defendant Joan Dunham Rogerson, the testator’s daughter, has renewed on appeal the challenges that she raised at trial to the subject matter jurisdiction of the trial court and to the merits of the judgment rendered by the trial court. The trial court, Pickett, J., considered and rejected Rogerson’s jurisdictional challenge, and the trial court, R. Walsh, J., considered and denied her motions for a mistrial and for the opening of the judgment against her. Upon a careful review of the claims of impropriety raised by Rogerson in her brief and at oral argument in this court, we conclude, in light of the record before the trial court, that the judgment of the trial court should be sustained.

The judgment is affirmed.

       In a companion case, Roger Dunham also appealed from the judgment of the trial court admitting the will to probate. That appeal has been withdrawn.


author: BERDON, J.

text:
    JOSEPH D’ASCANIO v. MARY LOUISE D’ASCANIO
    (15273)
    Callahan, Borden, Berdon, Norcott and Palmer, Js.

      Argued March 26
    officially released June 25, 1996

      Robert M. Casale, for the appellant-appellee (plaintiff).

      Gary I. Cohen, with whom was Lee Marlow, for the appellee-appellant (defendant).
   BERDON, J.

In this appeal, the plaintiff seeks to reverse the judgment of the trial court for failing to modify an alimony award in accordance with the terms of a settlement agreement entered into between the parties that was incorporated by reference into the original decree dissolving their marriage. The defendant cross appeals, claiming that there was insufficient evidence to support the trial court’s modification of the alimony award. The parties appealed to the Appellate Court, and we transferred both appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The marriage between the plaintiff, Joseph D’Ascanio, and the defendant, Mary Louise D’Ascanio, was dissolved on January 9, 1986. Pursuant to the decree of dissolution, the plaintiff, inter aha, was ordered “to pay the defendant as alimony the sum of $900 per week for so long as she lives and remains unmarried.” Subsequently, the parties returned to court on numerous occasions regarding various issues pertaining to the dissolution of their marriage, including several motions to modify the alimony award. Ultimately, on August 21, 1990, the parties entered into a written settlement agreement that modified a number of the terms of the dissolution judgment (modification agreement). Following a hearing at which the parties acknowledged their understanding of the modification agreement’s terms and consequences, the trial court, Mihalakos, J., approved the agreement, finding that it was fair and equitable. See Hayes v. Beresford, 184 Conn. 558, 567-68, 440 A.2d 224 (1981) (“Under our statutes, a court has an affirmative obligation, in [dissolution] proceedings, to determine whether a settlement agreement is ‘fair and equitable under all the circumstances.’ General Statutes § 46b-66. The presiding judge has the obligation to conduct a searching inquiry to make sure that the settlement agreement is substantively fair and has been knowingly negotiated. . . . With such judicial supervision, private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.” [Citation omitted.]). Pursuant to § 46b-66, the court ordered that the modification agreement be incorporated in the original dissolution decree.

The pertinent paragraph of the modification agreement provides: “That effective on [August] 25, 1990, the plaintiff shall pay alimony to the defendant of $700 per week; said alimony shall be paid for nine years and four months (507 weeks). Said alimony shall terminate upon the expiration of nine years and four months (507 weeks) and shall not be modifiable by either party in terms of duration or amount except that in the event that the defendant remarries or cohabitates, as defined by statute, the alimony shall be reduced by one half ($350). Further it is understood that if and when the defendant obtains gainful employment, regardless of the amount she earns, that such income shall not be a basis for a reduction in child support by the plaintiff which shall otherwise not be subject to any restriction as to modifiability other than usual statutory and common law criteria.” (Emphasis added.)

On May 23, 1994, alleging that the defendant was cohabiting with Dean Griffin, the plaintiff moved, pursuant to the terms of the modification agreement, to have his weekly alimony payment reduced by $350. The trial court, after a hearing on the motion, found that the defendant was in fact cohabiting with Griffin. Notwithstanding its finding, however, the trial court refused to apply the terms of the modification agreement that would have reduced the plaintiffs alimony payment by $350. Instead, the court reduced the alimony award by only $100 per week, thereby obligating the plaintiff to pay $600 per week.

The parties do not contest the fact that the modification agreement defines “cohabitation” by reference to General Statutes § 46b-86 (b). Section 46b-86 (b), known as the “cohabitation statute,” provides in pertinent part that a court may “modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification ... of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.” Therefore, in order to find that the defendant was cohabiting with Griffin, as defined by statute, the plaintiff had to prove that (1) the defendant was living with Griffin, and (2) the living arrangement with Griffin caused a change of circumstances so as to alter the financial needs of the defendant. Kaplan v. Kaplan, 186 Conn. 387, 389, 441 A.2d 629 (1982).

“[T]he General Assembly chose the broader language of ‘living with another person’ rather than ‘cohabitation.’ ” Kaplan v. Kaplan, 185 Conn. 42, 45, 440 A.2d 252 (1981), on appeal after remand, 186 Conn. 387, 441 A.2d 629 (1982). Whether an individual is “living with another person” is a fact specific determination. See Lupien v. Lupien, 192 Conn. 443, 472 A.2d 18 (1984); Kaplan v. Kaplan, supra, 186 Conn. 387; Duhl v. Duhl, 7 Conn. App. 92, 507 A.2d 523 (1986). In this case, the trial court found that, because Griffin slept at the defendant’s house seven nights a week, was identified by the defendant’s children as their stepfather, and traveled with the defendant and her children, the defendant and Griffin were “living together.” The defendant does not challenge that finding.

On her cross appeal, however, the defendant asserts that no evidence was presented to support the trial court’s finding that her living arrangement with Griffin caused such a change of circumstances as to alter her financial needs. We disagree. Section 46b-86 (b) “requires only a ‘change’ of circumstances, not a ‘substantial change’ as required by § 46b-86 (a).” Kaplan v. Kaplan, supra, 185 Conn. 45-46.

With respect to the factual predicates for modification of an alimony award pursuant to § 46b-86 (b), our standard of review is clear: “This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken. . . . This court, of course, may not retry a case. . . . The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and patties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court.” (Citations omitted; internal quotation marks omitted.) Lupien v. Lupien, supra, 192 Conn. 445.

The trial court, in concluding that the defendant’s financial needs had been altered because of her living arrangement with Griffin, found that “Griffin’s corporation provided the defendant with health insurance benefits and hosted the defendant and her children at various Caribbean locales. . . . Griffin contributed a computer, piano and tools to the defendant’s residence [and] occasionally contributed] food items .... Griffin also performed lawn mowing, snow removal and handy-man services at [the] defendant’s home.” Indeed, in response to a motion for articulation filed by the defendant, the trial court “found that the defendant’s cohabitation with [Griffin] resulted in a contribution to the defendant, above and beyond [Griffin’s] expenses, in the amount of one hundred dollars a week.” The trial court’s factual finding is not clearly erroneous and, therefore, we reject the defendant’s claim on her cross appeal.

Having found that the defendant was cohabiting with Griffin, as defined in § 46b-86 (b), the trial court held that to enforce the terms of the modification agreement and reduce the plaintiffs weekly alimony payment by $350, when the defendant’s financial needs were altered by only $100 per week due to her living arrangement with Griffin, would be inequitable and would amount to a penalty. Consequently, the trial court refused to apply the terms of the modification agreement and, sua sponte, reduced the defendant’s weekly alimony by $100 retroactive to October 1, 1993.

This deviation from the terms of the modification agreement by the trial court was improper. The only issue raised before the court was whether the defendant was cohabiting with Griffin within the meaning of § 46b-86 (b). Both the parties and the trial court agreed that, according to the modification agreement, once a finding of cohabitation was made, the alimony award would be reduced by one half. At the commencement of the hearing on the plaintiffs motion for modification, the issues before the court were delineated as evidenced by the following colloquy between the court and counsel:

“The Court: Let me just use a few minutes here to talk a little bit about the case here. Do you understand the agreement to have the effect of limiting the court’s statutory discretion in the sense that if I find that there is cohabitation under the statute ... it would be an automatic reduction by one half; is that your understanding of the agreement?
“[Michael Beebe, trial counsel for the plaintiff]: Yes, I do, Your Honor, and there is a case that supports [that result], Milhalyak v. Milhalyak, 30 Conn. App. 516, 620 A.2d 1327 (1993).
“The Court: All right. Attorney Murrett, is that your thought on—
“[Kathleen Murrett, trial counsel for the defendant]: I don’t know that I agree with Mr. Beebe’s interpretation of that case, but yes, I would agree with that.
“The Court: Under the facts of this case . . . I’m being asked to find whether under the statute I find cohabitation, and . . . you have an agreement which removes . . . the court’s discretion [as to the] type of modification that would be appropriate. Here you’ve agreed that in the event of cohabitation [alimony] . . . would be reduced by one half .... So I just wanted to see if you shared my thought on that.”

We agree that the sole issue to be resolved by the trial court, as framed by the parties, was whether there was cohabitation between the defendant and Griffin. Once that question had been answered in the affirmative the court should have enforced the terms of the modification agreement entered into by the parties and approved by the court.

The judgment is reversed and the case is remanded with direction to render judgment reducing the plaintiffs weekly alimony payment, in accordance with the terms of the modification agreement, from $700 to $350, retroactive to October 1, 1993.

In this opinion the other justices concurred.

       The modification agreement provides: “The parties in the above matter agree as follows:
      “1. That effective on [August] 25, 1990, the plaintiff shall pay alimony to the defendant of $700 per week; said alimony shall be paid for nine years and four months (507 weeks). Said alimony shall terminate upon the expiration of nine years and four months (507 weeks) and shall not be modifiable by either party in terms of duration or amount except that in the event that the defendant remarries or cohabitates, as defined by statute, the alimony shall be reduced by one half ($350). Further, it is understood that if and when the defendant obtains gainful employment, regardless of the amount she earns, that such income shall not be a basis for a reduction in child support by the plaintiff which shall otherwise not be subject to any restriction as to modifiability other than usual statutory and common law criteria.
      “2. That all payments made by the plaintiff shall be deemed paid on time if such is mailed postage prepaid on the Wednesday prior to the Friday when due. Time shall be of the essence. Any payment not postmarked as above noted shall cause the plaintiff to be taxed a $100 (per event) assessment.
      “3. That the judgment of the court shall otherwise remain in full force and effect.
      “4. [The p]laintiff agrees to pay child support after the [eighteenth] birthday of [any] child so long as he/she remains a full-time high school student.”

       General Statutes § 46b-66 provides: “In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld.”

       See footnote 7.

       General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the superior court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony . . . may at any time thereafter be . . . modified by . . . a showing of a substanüal change in the circumstances of either party . . .

       The defendant claimed ihat the financial benefits she received from Griffin and his corporation were compensation for her employment. The trial court, however, was not required to credit her testimony. Fleming v. Garnett, 231 Conn. 77, 84, 86, 646 A.2d 1308 (1994).

       On June 9, 1994, the plaintiff amended his motion for modification of alimony seeking to have the modification effective the date that the defendant commenced living with Griffin. See Milhalyak v. Milhalyak, 30 Conn. App. 516, 522, 620 A.2d 1327 (1993) (under language of judgment, “alimony ceased when the plaintiffs cohabitation began .... The alimony termination provision was automatic and self-executing upon cohabitation, just as it would have been upon her remarriage or the death of either party.” [Emphasis in original.]). The trial court in this case ordered that the alimony be reduced as of October 1, 1993. Neither party challenges this date as the effective date for the order of modification.

       The defendant argues that the trial court “is not bound by a stipulation or agreement entered into by the parties which refers to alimony or division of estate.” She relies solely on Sands v. Sands, 188 Conn. 98, 448 A.2d 822, cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983), for that proposition. Sands, however, is inapposite to the issue before us today. Unlike the modification agreement in the present case, which had been found to be fair and equitable, the settlement agreement at issue in Sands had never been approved by the trial court. Id., 103. Rather, the agreement in Sands was presented to the court for the first time for its approval: “If the court finds the agreement is not fair and equitable, it shall make such orders as to finances ... as the circumstances require.” (Internal quotation marks omitted.) Id., 102-103.

       See footnote 7.


text:
    PETER WILLIAMS v. BEST CLEANERS, INC., ET AL.
    (15171)
    Callahan, Borden, Berdon, Katz and Palmer, Js.
    Argued April 26
    officially released July 2, 1996

      William J. McCullough, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Michael J. Belzer, assistant attorney general, for the appellant (defendant second injury fund).

      Michael J. Finn, with whom was Robert G. Montstream, for the appellee (named defendant).

      Jason M. Dodge, with whom, on the brief, were James L. Pomeranz and Margaret E. Corrigan, for the appellees (defendant Broadbrook Cleaners et al.).

      Robert F. Carter, with whom was Jonathan Gould, for the Workers’ Compensation Section of the Connecticut Bar Association et al. as amici curiae.
   BERDON, J.

In Williams v. Best Cleaners, Inc., 235 Conn. 778, 670 A.2d 294 (1996) (Williams I), we con-

eluded that, for purposes of determining whether liability for a workers’ compensation claimant’s permanent disability should be transferred to the defendant second injury fund (fund) pursuant to General Statutes § 31-349, a claimant’s “disability” is to be evaluated in terms of his or her loss of earning capacity. On March 5,1996, this court granted the motions for reargument that were filed after our decision in Williams I was rendered. Today, we conclude that we incorrectly decided Williams I. For purposes of § 31-349, a claimant’s “disability” is to be evaluated, not in terms of loss of earning capacity, but, rather, in terms of the claimant’s medical impairment. Consequently, to the extent that dicta in cases such as Mulligan v. F. S. Electric, 231 Conn. 529, 541, 651 A.2d 254 (1994) (“[cjompensation under our [workers’ compensation statute] is based upon incapacity, total or partial, and hence is based upon earning power” [internal quotation marks omitted]), and Levanti v. Dow Chemical Co., 218 Conn. 9, 14-15, 587 A.2d 1023 (1991) (legislature “presumed that the losses [in the schedule of compensation] affected earning capacity”), suggest otherwise, we disavow that language. Although this case has traveled a long and tortuous path through the appellate process, we now take this opportunity to restate our opinion ab initio.

The claimant, Peter Williams, who is not a party to this appeal, originally brought a claim for workers’ compensation benefits against several of his former employers, their insurers and the fund. The defendant employers are Best Cleaners, Inc., Windsor Dry Cleaners, Broadbrook Cleaners and Nu-Life Cleaners (collectively referred to as the employers). The workers’ compensation commissioner (commissioner) awarded compensation to the claimant for his permanent disability and ordered that liability for the claim be transferred to the fund in accordance with § 31-349. The workers’ compensation review board (board) affirmed the decision of the commissioner. We now affirm the decision of the board.

The underlying facts are undisputed. From 1963 to 1983, the claimant worked in various dry cleaning businesses. At each place of employment, the claimant’s responsibilities included removing items of wet clothing from a cleaning tank and placing them in a dryer. In discharging this task, the claimant was exposed to perchloroethylene, a volatile chemical commonly used in the industry as a cleaning agent, in both its liquid and vapor form.

In the late 1970s, the claimant began to experience difficulty breathing, and, in 1977, he was diagnosed as suffering from asthma. In 1982, when the claimant’s asthma symptoms became persistent, he was referred to Thomas J. Godar, a pulmonary specialist. The claimant furnished Godar wdth the following history. He was fifty-nine years old, and had smoked cigarettes from age ten until he was forty-eight. He had worked in the dry cleaning business, where he was exposed on a regular basis to perchloroethylene and other cleaning solutions. Due to this history, Godar performed various pulmonary function tests on the claimant, which revealed that the claimant was suffering from obstructive airway disease with an asthmatic component. The claimant left his last employer in May, 1983, and subsequently sought workers’ compensation benefits.

During the hearing before the commissioner, Godar testified extensively about the claimant’s medical condition. No other expert medical testimony was presented. Godar explained that the claimant had a 50 percent impairment of his respiratory capacity, which represented the median percentage of impairment even when the claimant was under a full regimen of medication. Godar- estimated that “something in the range of a 10 to 20 percent loss in function . . . was probably related to his smoking . . . .” More precisely, he explained that 10 to 20 percent of the claimant’s 50 percent loss of respiratory capacity, or 5 to 10 percent of his original capacity, was due to smoking. The remainder — 80 to 90 percent of the percentage loss, or 40 to 45 percent of the claimant’s original capacity — was due to the claimant’s exposure to perchloroethylene throughout his career in the dry cleaning industry.

Godar also testified on the issue of whether the claimant could function in a work environment. In Godar’s opinion, the claimant’s exposure to perchloroethylene had sensitized his lungs and respiratory system to such an extent that even common irritants, such as cold air and perfume, could induce serious breathing problems. Godar suggested that the claimant “could do probably sedentary work under conditions where there was no smoking, no significant volatile chemicals or fumes involved in the process, and with reasonable environmental control, which would include air conditioning for the summer months . . . .” Godar opined, however, that “[i]n the real world I’m not of the opinion that he is employable. I think if you look at his lung function under ideal circumstances you would say, well, he could do something, yes, he could. The question is, who would hire him, and how long would he hold that job? And under those circumstances it’s been my experience that [he is] not employable.”

The commissioner concluded that the claimant was totally disabled and that his labor had become unmarketable. Implicit in the commissioner’s finding was that the claimant’s disability was due to his exposure to perchloroethylene while working in various dry cleaning businesses. The commissioner further found that the claimant had smoked for more than thirty-five years, which had caused “pre-existing lung disease” that “caused his airway disease to be materially and substantially worse than it otherwise would have been.” In other words, the commissioner found that the claimant’s first injury to his lungs, caused by the smoking, and his second injury to his lungs, caused by exposure to perchloroethylene, resulted in a permanent disability, which was materially and substantially greater than that which would have resulted from the second injury alone. The commissioner subsequently ordered liability for the compensation claim to be transferred from the employers to the fund after the employers had paid the requisite 104 weeks of benefits. The fund appealed from the decision of the commissioner to the board, which affirmed the commissioner’s decision with respect to the transfer.

On appeal to this court, the fund renews its claim that the commissioner should not have ordered the transfer of liability for the claimant’s compensation benefits pursuant to § 31-349, because the claimant’s first injury did not materially and substantially contribute to his permanent disability. Section 31-349 (a) provides for a transfer of liability to the fund “[i]f an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injuiy alone . . . .”

The fund does not contest either the commissioner’s explicit finding that the claimant has a “pre-existing lung disease as a result of his smoking for 35 years,” or his implicit finding that this injury constitutes a permanent physical impairment within the meaning of the statute. Similarly, the fund does not challenge the commissioner’s finding that, as a result of his employment, the claimant sustained a second injury to his lungs. Therefore, it is undisputed that the claimant suffers from both a previous disability and compensable second, work-related injury. Nevertheless, to ascertain whether a transfer of liability to the fund is appropriate, it must be determined whether the claimant’s first and second injuries resulted in a “permanent disability caused by both [conditions] which is materially and substantially greater than [that which] would have resulted from the second injury alone . . . .” General Statutes § 31-349 (a). This question requires that we first define the term “disability.”

The parties have asserted several alternative definitions of “disability.” The fund takes the position that, in the context of § 31-349, “disability refers to the claimant’s inability to work and loss of earning capacity and not to his degree of medical impairment.” The named defendant, Best Cleaners, Inc., on the other hand, argues that “disability” refers to the claimant’s degree of medical impairment. The defendants Broadbrook Cleaners and Windsor Dry Cleaners amalgamate those two positions and argue that “disability” refers either to a claimant’s inability to work or to his medical impairment, i.e., disability refers to either an inability or limitation in a claimant’s ability to work, or simply to his degree of physical impairment. We conclude that, for purposes of § 31-349, “disability” refers to a claimant’s degree of medical impairment.

In the context of § 31-349, the term “disability” is susceptible of two meanings — physical impairment and loss of earning capacity. 1C A. Larson, Workmen’s Compensation (1995) § 57.11. As Larson observes, these two “ingredients” generally occur concurrently. There are instances, however, such as the present case, in which they do not.

“Permanent disability” is not defined within Connecticut’s Workers’ Compensation Act. General Statutes § 31-275 et seq. “Previous disability,” however, is defined within § 31-275 (20) as “an employee’s preexisting condition caused by the total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye resulting from accidental injury, disease or congenital causes, or other permanent physical impairment.” (Emphasis added.) “In construing the act . . . this court makes every part operative and harmonious with every other part insofar as is possible.” (Internal quotation marks omitted.) Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992). “In addition, the statute must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). Thus, the meaning of the term “disability” should not vary simply because it is modified by “permanent” rather than “previous.” Accordingly, we define “disability,” for the purpose of § 31-349 (a), to refer to a claimant’s physical impairment. Moreover, this definition is consistent with our case law. Six v. Thomas O’Connor & Co., 235 Conn. 790, 800-801, 669 A.2d 1214 (1996) (medical records admitted to demonstrate disability); Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 359, 349 A.2d 847 (1974) (claimant’s heart disease considered “preexisting permanent physical impairment” despite fact that it “had neither manifested itself so as to be a hinderance to obtaining employment nor come to the attention of the employer”); Rowe v. Plastic Design, Inc., 37 Conn. App. 131, 135, 655 A.2d 270 (1995) (prior injury not “a first injury because it did not result in a permanent physical impairment”).

We next address the issue of whether the commissioner, in transferring liability to the fund, reasonably concluded that the claimant’s permanent disability was materially and substantially greater than that which would have resulted from the second injury alone. After hearing all of the evidence, the commissioner found, and the board affirmed, that the “[claimant's preexisting lung disease caused his airway disease to be materially and substantially worse than it otherwise would have been.”

Because “materially” and “substantially” are not defined within the Workers’ Compensation Act, we refer to their commonly approved usage for guidance in our determination. General Statutes § 1-1 (a); Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 301 n.6, 622 A.2d 1005 (1993) (“ ‘[w]here a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries’ ”). A first injury will be considered to have materially and substantially worsened a claimant’s permanent disability, if it makes a significant, though not necessarily a primary, contribution to the claimant’s disabled condition, such that an absence of the preexisting injury would result in a measurable lessening of the degree of disability, i.e., physical impairment.

Our standard of review of the board’s determination is clear. “[T]he [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted; internal quotation marks omitted.) Six v. Thomas O’Connor & Co., supra, 235 Conn. 798-99. Therefore, our review is limited to whether there was sufficient evidence in the record from which the commissioner could reasonably have concluded that the claimant’s first injury “materially and substantially” contributed to his permanent disability.

In the present case, all the parties relied upon the medical expert testimony of Godar. As previously mentioned, Godar testified that 10 to 20 percent of the claimant’s 50 percent loss of respiratory capacity was due to his thirty-five years of smoking. Godar’s testimony provided sufficient evidence to support the commissioner’s determination that the preexisting lung injury related to the claimant’s smoking history was a material and substantial factor in the claimant’s permanent physical impairment. Accordingly, we conclude that the board did not abuse its discretion in affirming the commissioner’s decision.

The decision of the board is affirmed.

In this opinion the other justices concurred.

       For the purposes of this appeal, there is no substantive difference between § 31-349 as it provides today and the provisions as they existed in 1983 when this cause of action arose. Therefore, we refer to the present language of § 31-349.
      General Statutes § 31-349 provides in pertinent part: “The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second ii\jury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to aprevious disability. Forpurposes of this subsection, ‘compensationpayableorpaidwithrespecttothepreviousdisability’includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.”

       Two separate motions for reargument were filed, one by the named defendant, Best Cleaners, Inc., and another by the defendants Broadbrook Gleaners, Hartford Insurance Group, Windsor Dry Cleaners and Aetna Casualty and Surety Company.

       The fund appealed from the judgment of the compensation review board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We initially heard oral argument on March 17, 1995. On July 24, 1995, we ordered rebriefing on two issues: (1) “In the context of General Statutes § 31-349, does ‘disability' refer to the claimant’s inability to work and loss of earning capacity, or to his degree of medical impairment,?”; and (2) “Under the circumstances of this case, was the claimant’s permanent disability ‘materially and substantially greater than the disability that would have resulted from the second injury alone,’ within the meaning of General Statutes § 31-349?” Our decision in Williams I was rendered on January 28, 199G. Subsequently, on March 5,1996, the motions for reargument were granted and the Workers’ Compensation Section of the Connecticut Bar Association and the Connecticut Trial Lawyers Association were granted permission to file an amicus brief. All parties, including the amici, argued orally before this court on April 26,1996.

       The defendant Nu-Life Cleaners did not file a brief in this appeal. The dispute before this court is solely between the fund, the other employers and their workers’ compensation insurers.

       The employers’ insurers are Peerless Insurance Company, Home Insurance Company, Aetna Casualty and Surety Company, Hartford Insurance Group and American Motorists Insurance Company. Although the insurers are parties to this appeal, we refer only to their insureds.

       Darius J. Spain, acting in his capacity both as commissioner-at-large for the first district and as commissioner for the fifth district, awarded benefits to the claimant and ordered the transfer of liability to the fund. References to the commissioner are to Spain.

       The fund raised nine issues in its appeal from the commissioner to the board, which were consolidated into four issues by the board: (1) liability for the claimant’s compensation benefits should not have been transferred to the fund because there was no evidence to support the commissioner’s finding that there was permanent physical impairment resulting from the claimant’s many years of smoking; (2) liability should not have been transferred because the commissioner found no subordinate facts that supported his conclusion that the claimant’s airway disease had been made materially and substantially worse by the preexisting lung disease; (3) the commissioner had miscalculated the amount of the award due the claimant; and (4) because there were two lungs involved, the commissioner should have ordered the employer to pay 104 weeks of liability for each, or 208 weeks total, before transferring liability to the fund. In consolidating the issues, the board eliminated the fund’s sixth ground, which has become the substantive issue in this appeal. The fund’s sixth ground is that “[t]he commissioner erred by failing to find that the claimant’s permanent disability was not made materially and substantially worse due to pre-existing lung disease.” The board affirmed the decision of the commissioner on the first, second and fourth issues, but remanded the case to the commissioner for further consideration as to the amount of the award due the claimant. That issue was subsequently resolved by the commissioner.

       In Ms treatise, Professor Larson notes that the concept of disability is “a blend of two ingredients .... The first ingredient is disability in the medical and physical sense . . . the second ingredient is de facto inability to earn wages . . . .” 1C A. Larson, Workmen’s Compensation (1995) § 57.11.

       As reflected by the following testimony given by Godar on cross-examination by assistant attorney general Michael J. Belzer, the claimant’s smoking-related ii\juiy did not impact his employability, but, as mentioned previously, caused a 10 to 20 percent loss in Ms breathing capacity:
      “Q. If he had not had a smoking Mstory, would he now be out working?
      “A. I don’t think the smoking had an [effect in terms of his not being disabled now had he not been a smoker.

      “Q. So, in other words, in terms of Ms work function he’s pretty much in the position he’s in now because of Ms exposure to the chemicals?
      “A. Correct.” (Emphasis added.)

       Priorto the enactment of No. 91-32, § 1, of the 1991 Public Acts, “previous disability” was defined within General Statutes (Rev. to 1991) § 31-349: “If an employee who has previously incurred ... [a] permanent physical impairment . . . .” The definitions are substantively the same.

       We have previously held that a “material” fact is one “which will malee a difference in the result of the case.” (Internal quotation marks omitted.) State v. Goggin, 208 Conn. 606, 619, 546 A.2d 250 (1988). Webster’s Third New International Dictionary defines “materially” as meaning “to a significant extent or degree.”

       We have previously noted that Webster’s Third New International Dictionary “defines ‘substantially’ as meaning ‘in a substantial manner’ and it defines ‘substantial’ to mean ‘consisting of, relating to, sharing the nature of, or constituting substance; being of moment, important, essential.’ ” Clark v. Gibbs, 184 Conn. 410, 417 n.10, 439 A.2d 1060 (1981).