author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. HAROLD HILL
    (SC 16370)
    Borden, Katz, Palmer, Sullivan and Vertefeuille, Js.

    Argued January 9
    officially released June 12, 2001

      Dennis P. Harrigan, assistant public defender, with whom, on the brief, were Robert M. Berke, assistant public defender, and Eric J. Tinsley, certified legal intern, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Kevin Dunn, assistant state’s attorney, for the appellee (state).

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

   Opinion

SULLIVAN, J.

The issue presented in this case is whether the trial court properly found that the defendant, Harold Hill, had violated his probation and that his probation should be revoked, when the defendant claims that the violation was not wilful. The defendant argues that a probation violation must be wilful in order for the trial court to revoke probation. The state argues that there is no such wilfulness requirement, and that, in any event, the defendant’s probation violation was wilful. We agree with the state that the defendant’s conduct need not be wilful in order to constitute a probation violation. Accordingly, we affirm the judgment of the trial court.

The record reveals the following relevant facts. The defendant was charged with assault in the third degree in violation of General Statutes § 53a-61, in connection with a 1996 assault on his wife, Eileen Hill. The defendant and the state subsequently entered into a plea agreement whereby the state agreed to drop the assault charge, and the defendant pleaded guilty to a charge of failure to appear in the second degree in violation of General Statutes § 53a-173. The trial court sentenced the defendant to one year imprisonment, execution suspended, and eighteen months probation. As a special condition of probation, the court ordered that the defendant engage in no violence toward his wife.

In January, 1998, while still on probation, the defendant again assaulted his wife. As a result, he was charged with assault in the third degree and was incarcerated from January 9, 1998, to March 4, 1998. On March 4, 1998, the defendant pleaded guilty to the assault charges and to an additional charge of failure to appear in the second degree. The trial court terminated the defendant’s probation on the 1996 charge and sentenced the defendant to two years imprisonment, execution suspended, and three years probation. As a special condition of probation, the court ordered that the defendant attend periodic meetings at an Alternative to Incarceration Center (center).

The defendant failed to attend several of the scheduled meetings, and his probation officer, Hilda Castillo, filed a motion for violation of probation and an application for an arrest warrant pursuant to General Statutes (Rev. to 1997) § 53a-32, as amended by Public Acts 1998, No. 98-130. On November 13, 1998, the trial court held an evidentiary hearing on the motion. At the violation phase of the hearing, Castillo and Jessie McCollough, a case manager for the Bridgeport center, testified for the state.

McCollough testified that he had been appointed as the defendant’s case manager on March 5, 1998. On March 6, McCollough conducted an orientation with the defendant, at which time he advised the defendant of the conditions for participation in the program. Among other things, McCollough advised the defendant of his reporting schedule, which required him to report to the center on March 4, 5, 6, 10, 11, 12, 17, 18 and 19, 1998. McCollough also told the defendant that he must provide McCollough with a verification of employment and a urine sample.

McCollough testified that, after attending the March 6, 1998 meeting, the defendant failed to report to his next meeting on March 10, 1998. The defendant attended the next meeting on March 11, but failed to report to the next four meetings on March 12, 17, 18 and 19. In all, the defendant missed five out of his nine scheduled meetings. The defendant also failed to provide a urine sample or verification of employment. McCollough further testified that he had tried to modify the defendant’s reporting schedule to accommodate his employment requirements, but that he told the defendant that attendance at the meetings was a condition of his probation, “and if he didn’t have that condition he would be in jail and he wouldn’t have [a] job.”

Finally, McCollough testified that the center provides programs for anger management, domestic violence, conflict resolution, substance abuse and continuing education. He was not able to determine what treatment program would be appropriate for the defendant, however, because the defendant failed to attend the meetings at the center.

Castillo testified at the hearing that she had spoken with the defendant by telephone, and that the defendant had told her that his work schedule made it difficult for him to attend the center meetings.

The defendant also testified at the hearing. He admitted that he had missed the meetings. He claimed, however, that his job, which he had held for more than one and one-half years at the time of the hearing, required him to work six days a week and to travel from Massachusetts to Philadelphia, making it difficult for him to attend the meetings. He testified that he had met with a public defender, Dennis Harrigan, who had advised him to talk to Castillo about modifying the schedule. He had done so, and both Castillo and McCollough had told him that they would try to work something out.

Relying on the testimony given at the hearing, the trial court concluded that the defendant had violated the special condition of his probation by failing to report to the scheduled meetings. The court then conducted a sentencing phase hearing to determine whether the defendant’s probation should be revoked.

Castillo testified at the sentencing phase hearing that, in her opinion, the defendant was not amenable to probation. Specifically, she stated that he was uncooperative and resistant; that he had an extensive criminal record, including prior convictions for assault, violations of probation, sale of narcotics, carrying a pistol without a permit, failure to appear, possession of narcotics, burglary and larceny; and that he had failed to meet the conditions of his current probation. In addition, Castillo testified that she had received a report that the defendant had assaulted his wife again, in September, 1998.

On the basis of this testimony, the trial court found that the defendant had violated his probation and ordered it revoked. The court further rendered judgment that the original sentence of two years imprisonment be carried out. The defendant appealed from the judgment to the Appellate Court, and we granted the defendant’s motion to transfer the appeal to this court pursuant to Practice Book § 65-2. At oral argument before this court, the parties requested that they be allowed to file supplemental briefs on the question of whether a probation violation must be wilful. This court granted the request and ordered supplemental briefs on the following questions: “In a revocation of probation proceeding under General Statutes § 53a-32, must the state prove that the violation was ‘wilful?’ If so, what is the definition of ‘wilful’ in this context?”

I

The defendant claims that the trial court improperly revoked his probation because his failure to attend the meetings at the center was not wilful, but resulted from his need to perform his job. He further claimed, for the first time at oral argument before this court, that he believed that failing to perform his job and thereby risking the loss of his job, itself, would have been a violation of probation. We are not persuaded.

Whether wilfulness is an element of § 53a-32 is a matter of statutory interpretation. “Statutory interpretation is a matter of law over which this court’s review is plenary. ... In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 84, 743 A.2d 156 (1999).

“When the commission of an offense defined in [the Penal Code], or some element of an offense, requires a particular mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms ‘intentionally’, ‘knowingly’, ‘recklessly’ or ‘criminal negligence’, or by use of terms, such as ‘with intent to defraud’ and ‘knowing it to be false’, describing a specific kind of intent or knowledge. . . .” General Statutes § 53a-5; see also State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (“[o]rdinarily, the mental state required by a statute is expressly designated”). Generally, the absence of any such requirement demonstrates that the legislature did not intend to make it an element of the crime. See id. (absence of requirement that defendant knowingly sold narcotics within prohibited school zone demonstrates that legislature did not intend to make knowledge element of crime).

Although the legislature has made wilfulness an element of certain crimes; see, e.g., General Statutes § 53a-172; General Statutes § 53-21; it is not expressly-required under § 53a-32. Accordingly, the language of the statute demonstrates that the legislature did not intend to make wilfulness an element of a probation violation. See State v. Denby, supra, 235 Conn. 482.

Furthermore, we can perceive no public policy that would be served by such a requirement. If a defendant is unable to comply strictly with the conditions of probation, even for reasons beyond his control, the legislative policies underlying conditional probation, namely, “ ‘to foster the offender’s reformation and to preserve the public’s safety’"; State v. Pieger, 240 Conn. 639, 647, 692 A.2d 1273 (1997); should not require that noncompliance must be excused as a matter of law. These policies only suggest that, in such a case, the determination of whether to find a violation and, if found, whether to impose any portion of the suspended sentence, should be left to the discretion of the trial court. For example, if an alcoholic defendant is convicted of driving while under the influence, and the trial court imposes probation with a no-drinking condition, the defendant’s inability to comply with the condition should not automatically excuse noncompliance. Rather, protection of the public’s safety may require that the probation be revoked.

The defendant argues, however, that under Bearden v. Georgia, 461 U.S. 660, 668-69, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), if the probationer has made all reasonable efforts to comply with the conditions of probation, and yet cannot do so through no fault of his own, “it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.” In Bearden, the United States Supreme Court held that to revoke probation on the grounds that the probationer had failed to pay a fine, without inquiring into whether that failure was wilful, violated the fourteenth amendment. Id., 672-73. That holding, however, was grounded on the court’s sensitivity to the treatment of indigents in the criminal justice system and its recognition of the due process and equal protection concerns that the indigence of a defendant raises. Id., 664-67. No such concern is present in this case and, accordingly, Bearden is not controlling. See id., 668 n.9 (“[w]e do not suggest that, in other contexts, the probationer’s lack of fault in violating a term of probation would necessarily prevent a court from revoking probation”); see also State v. Bostwick, 52 Conn. App. 557, 564, 728 A.2d 10, appeal dismissed, 251 Conn. 117, 740 A.2d 381 (1999) (“ ‘there is [generally] no constitutional requirement . . . that the trial court must first find that the violation was willful, before probation may be revoked’”); State v. Baxter, 19 Conn. App. 304, 320, 563 A.2d 721 (1989) (same).

Nor are we persuaded by the cases from other jurisdictions cited by the defendant. The court in State v. Alves, 174 Ariz. 504, 506, 851 P.2d 129 (App. 1993), held that a violation must be wilful before probation may be revoked. The court in that case relied on State v. Robinson, 142 Ariz. 296, 297-98, 689 P.2d 555 (App. 1984), in which the court had held that a revocation of probation based solely on a failure to pay fines was unconstitutional under Bearden v. Georgia, supra, 461 U.S. 660. Similarly, in State v. Lafferty, 125 Idaho 378, 382, 870 P.2d 1337 (App. 1994), the court relied on Bearden to hold that any violation of probation must be wilful before probation may be revoked. We already have concluded, however, that Bearden is inapplicable to the circumstances of this case.

The defendant also cites several Florida cases in which the court held that a violation must be wilful before probation may be revoked. See Williams v. State, 728 So. 2d 287, 288 (Fla. App. 1999); Garcia v. State, 701 So. 2d 607, 608 (Fla. App. 1997); Sanders v. State, 675 So. 2d 665, 665-66 (Fla. App. 1996); Harris v. State, 610 So. 2d 36, 37 (Fla. App. 1992); Donneil v. State, 377 So. 2d 805 (Fla. App. 1979). The holding of those cases, however, ultimately can be traced to Florida cases holding that probation may not be revoked because of the probationer’s indigent status. See, e.g., Coxon v. Florida, 365 So. 2d 1067, 1068 (Fla. App. 1979). Accordingly, for the same reasons that we are not persuaded by those cases relying on Bearden, we are not persuaded by these cases.

The defendant also cites a number of cases in which the court found that the nonwilful character of the defendant’s conduct rendered the probation violation excusable and that revocation therefore was improper. See State v. Nakamura, 59 Haw. 378, 380-83, 581 P.2d 759 (1978) (state statute provided that failure to comply with conditions of probation must be inexcusable; arbitrary rejection of probationer by halfway house was not inexcusable and did not warrant revoking probation); State v. Moretti, 50 N.J. Super. 223, 243, 141 A.2d 810 (1958) (hospitalization for psychiatric treatment was lawful excuse for violation of condition that probationer obtain employment); State v. Hill, 132 N.C. App. 209, 213, 510 S.E.2d 413 (1999) (court remanded case to trial court for determination of whether illness was lawful excuse for failure to perform probation condition of community service); State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076 (1996) (burden was on defendant to show that failure to comply with conditions of probation was not wilful, but resulted from factors beyond his control). These cases do not support the defendant’s argument that wilfulness is an element of the offense of violation of probation, however. Rather, they show that a probationer may have an affirmative defense of excuse if compliance with the condition was impossible.

The defendant also relies on several cases in which the court held that, when the violation resulted from circumstances beyond the defendant’s control, or if the condition was impossible to comply with, probation may not be revoked. See State v. Oyler, 92 Idaho 43, 47, 436 P.2d 709 (1968) (remanding case to trial court for determination of whether no-drinking condition was impossible for alcoholic to meet, and, if so, whether condition should be revoked or, instead, protection of public safety required probation to be revoked); Smith v. State, 306 Md. 1, 7, 506 A.2d 1165 (1986) (relying on Humphrey v. State, 240 Md. 164, 167-68, 428 A.2d 440 [1981], for proposition that violation must be wilful for probation to be revoked); Humphrey v. State, supra, 169 (court found insufficient evidence that probationer did not comply with condition of probation when he was prevented from complying by factors beyond his control); State v. Martinez, 108 N.M. 604, 606-607, 775 P.2d 1321, cert. denied, 108 N.M. 624, 776 P.2d 846 (1989) (relying on Humphrey v. State, supra, 167-68, for proposition that, if violation of probation is not wilful, but resulted from factors beyond probationer’s control, probation may not be revoked); People v. Bowman, 73 App. Div. 2d 921, 922, 423 N.Y.S.2d 242 (1980) (when defendant tried in good faith to find hospital willing to provide psychiatric treatment as required by condition of probation, but was unable to do so, condition of probation was not violated).

To the extent that these cases suggest that the burden is on the state to prove the wilfulness of a violation of probation, we are not persuaded. First, as previously noted, Connecticut’s statute has no such express requirement. Second, as suggested by State v. Oyler, supra, 92 Idaho 47, and as we already have concluded, if a defendant is unable to comply strictly with the conditions of probation, even for reasons beyond his control, the legislative policies underlying conditional probation should not automatically require that compliance should be excused as a matter of law.

Accordingly, we conclude that wilfulness is not an element of a probation violation under § 53a-32. Rather, to establish a violation, the state needs only to establish that the probationer knew of the condition and engaged in conduct that violated the condition.

II

Having concluded that wilfulness is not an element of a violation of probation, we now address the question of whether the trial court in this case properly found that the defendant knew of the condition and engaged in conduct that violated it, and that his probation should therefore be revoked.

“ ‘A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. Black v. Romano, [471 U.S. 606, 611, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985)]; United States v. Czajak, 909 F.2d 20, 22 (1st Cir. 1990).’ State v. Davis, 29 Conn. App. 801, 805, 618 A.2d 557, cert. granted, 225 Conn. 918, 623 A.2d 1024 (1993) (certiorari limited to issue of standard of proof necessary to establish violation of probation) [rev’d on other grounds, 229 Conn. 285, 641 A.2d 370 (1994)]; State v. Scott, 31 Conn. App. 660, 667, 626 A.2d 817 (1993). Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.” State v. Villano, 33 Conn. App. 162, 167-68, 634 A.2d 907 (1993), cert. granted, remanded for reconsideration, 229 Conn. 916, 642 A.2d 1212, rev’d on other grounds, 35 Conn. App. 520, 646 A.2d 915 (1994).

“A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) Id., 168.

The standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is “whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Id., 170.

In this case, the evidence presented at the factual phase of the probation revocation hearing clearly established that the defendant knew of the condition that he attend the meetings at the center, and that he chose not to attend those meetings so that he could perform his job. Because the defendant knew of the condition and engaged in conduct that violated it, we conclude that the trial court properly found that the condition had been violated.

Although we have concluded that wilfulness is not an element of the offense of violation of probation, the trial court may consider the nonwilfulness of the probationer’s conduct or other mitigating factors at the sentencing phase of the revocation of probation hearing. Accordingly, we now consider whether the trial court abused its discretion by revoking the defendant’s probation under the circumstances of this case.

We previously have recognized that “[t]o a greater or lesser degree, it is always true of probationers . . . that they do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.” (Internal quotation marks omitted.) State v. Misiorski, 250 Conn. 280, 288, 738 A.2d 595 (1999).

“A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence.” State v. Davis, supra, 29 Conn. App. 811. “[T]he ultimate question [in the probation process is] whether the probationer is still a ‘good risk’ .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Citations omitted.) State v. Smith, 207 Conn. 152, 177, 540 A.2d 679 (1988).

The defendant argues that, even if he had violated the condition that he attend the meetings at the center, that violation should have been excused because he was faced with the difficult choice of either attending the meetings and jeopardizing his job, or performing his job and missing the meetings. We are not persuaded. We first note that the defendant was incarcerated from January 9, 1998, to March 4, 1998, when he was released on probation. The defendant testified at the November 13, 1998 probation revocation hearing that he had, at the time of the hearing, worked for his employer for more than one and one-half years. It is difficult to see how the defendant, who had not lost his job during the two months that he was incarcerated, reasonably could have feared that he would lose his job if he attended the meetings at the center during the two weeks following his release on probation.

Even if the defendant did have such a concern, however, the choice to perform his job rather than to attend the scheduled meetings simply was not the defendant’s to make. While on probation, he “[did] not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.” (Internal quotation marks omitted.) State v. Misiorski, supra, 250 Conn. 288. Although, as a general rule, it is desirable for probationers to be gainfully employed and to support their families, the trial court reasonably could have found that it was more important for this defendant, who had multiple convictions arising out of assaults on his wife, to attend the meetings at the center and to take part in the center’s treatment programs. When the defendant chose not to do so, the court reasonably could have concluded that the defendant was no longer a “ ‘good risk’ ” because his conduct was “inimicable to his own rehabilitation, as well as to the safety of the public”; State v. Smith, supra, 207 Conn. 177; in particular, to the safety of his own family. Accordingly, we conclude that the trial court did not abuse its discretion in revoking the defendant’s probation.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-61 provides: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.
      “(b) Assault in the third degree is a class A misdemeanor and any person found guilty under subdivision (3) of subsection (a) of this section shall be sentenced to a term of imprisonment of one year which may not be suspended or reduced.”

       General Statutes § 53a-173 provides: “(a) A person is guilty of failure to appear in the second degree when (1) while charged with the commission of a misdemeanor or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, or (2) while on probation for conviction of a misdemeanor or motor vehicle violation, he wilfully fails to appear when legally called for a violation of probation hearing.
      “(b) Failure to appear in the second degree is a class A misdemeanor.”

       General Statutes (Rev. to 1997) § 53a-32, as amended by Public Acts 1998, No. 98-130, provides: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. Whenever a sexual offender, as defined in section 54-102s, has violated the conditions of his probation by failing to notify his probation officer of any change of his residence address, as required by said section, such probation officer may notify any police officer that such person has, in his judgment, violated the conditions of his probation and such notice shall be sufficient warrant for the police officer to arrest such person and return him to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. After making such an arrest, such probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. Provisions regarding release on bail of persons charged with a crime shall be applicable to any defendant arrested under the provisions of this section. Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public dt'fender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a.-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       The defendant initially claimed in his brief that the trial court improperly admitted this hearsay testimony concerning the alleged assault on the defendant’s wife. The defendant abandoned this claim at oral argument before this court.

       Practice Book § 65-2 provides in relevant part: “After the filing of an appeal in the appellate court, but in no event after the case has been assigned for hearing, any party may move for transfer to the supreme court. The motion, addressed to the supreme court, shall specify, in accordance with provisions of Section 66-2, the reasons why the party believes that the supreme court should hear the appeal directly. A copy of the memorandum of decision of the trial court, if any, shall be attached to the motion. The filing of a motion for transfer shall not stay proceedings in the appellate court. ...”

       General Statutes § 53a-172 provides: “(a) A person is guilty of failure to appear in the first degree when (1) while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, or (2) while on probation for conviction of a felony, he wilfully fails to appear when legally called for a violation of probation hearing.
      “(b) Failure to appear in the first degree is a class D felony.”

       General Statutes § 53-21 provides: “(a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent maimer likely to impair the health or morals of such child, or (3) permanently transfers the legal or physical custody of a child under the age of sixteen years to another person for money or other valuable consideration or acquires or receives the legal or physical custody of a child under the age of sixteen years from another person upon payment of money or other valuable consideration to such other person or a third person, except in connection with an adoption proceeding that complies with the provisions of chapter 803, shall be guilty of a class C felony.
      “(b) The act of a parent or agent leaving an infant thirty days or younger with a designated employee pursuant to section 17a-58 shall not constitute a violation of this section.”

       These cases are distinguishable from the cases cited in the preceding paragraph because the court in these cases did not explicitly place the burden of proving the existence of a lawful excuse on the defendant. Thus, they may be read as requiring the state to prove willulness.

       We note that the defendant never provided verification of employment to his case manager at the center, as had been requested. We assume for the puzposes of this opinion, however, that the defendant actually was employed.

       The defendant also claimed, for the first time at oral argument before this court, that he believed that his failure to perform his job, itself, would have been grounds for revoking his probation. The proper time to make this factual claim, however, was at the revocation hearing. Although the defendant did testify at that hearing that it was his understanding that he had been released on probation for the purpose of allowing him to work, he did not indicate that he believed that his failure to do so to the extent required to comply with the explicit conditions of his probation would, itself, be a probation violation. Accordingly, we decline to consider whether such a belief would excuse noncompliance with the conditions of probation.


source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RUBEN FELICIANO
    (SC 16335)
    Borden, Norcott, Katz, Palmer and Zarella, Js.
    Argued April 20
    officially released June 19, 2001

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

KATZ, J.

The defendant was charged with one count of murder in violation of General Statutes § 53a-54a and one count of felony murder in violation of General Statutes § 53a-54c. After a jury of twelve convicted the defendant of both offenses, the trial court merged the convictions and sentenced the defendant to a term of sixty years imprisonment, to be served consecutively to the life sentence he was serving for an unrelated federal conviction. He raises three issues on appeal, specifically, that the trial court improperly: (1) delivered three “Chip Smith” charges to the juiy depriving him of his federal constitutional rights to due process and an uncoerced jury verdict; (2) deprived him of his federal constitutional rights to a fair and impartial jury by failing to investigate adequately the allegation of jury misconduct and denying his motion for a mistrial; and (3) permitted the state to introduce evidence of the defendant’s drug use to establish a motive for the murder. We reject these claims and affirm the judgment of the trial court.

The record reveals the following facts. In January 1997, the sixty-nine year old victim, Charles Westendorff, lived in the first floor apartment of a three-family home at 114 Liberty Street in Meriden. He had lived there for twenty-five years. Llis daughter and her family resided in the second floor apartment, and Jeffrey Lorenzo and his girlfriend, Nohemi Rivera, lived in the third floor apartment. During the fall of 1996, the defendant, who was Lorenzo’s brother, resided with Lorenzo and Rivera, during which time he got to know the victim.

On or around Thanksgiving of 1996, the defendant moved in with his girlfriend, Cathleen Magrath, who lived with her sister on Olive Street in Meriden. Soon thereafter, Magrath noticed a change in the defendant’s behavior: his whereabouts were often unknown; he admittedly stole Magrath’s leather jacket in order to obtain drugs; and he was observed using crack cocaine. Magrath noticed that several other items, including her stereo and her sister’s wallet, mysteriously were missing from the apartment. Shortly after a New Year’s Eve party at which the defendant became intoxicated, Magrath decided that she wanted to terminate their relationship. Thereafter, although the defendant no longer stayed at Magrath’s apartment, he failed to remove his belongings, and often returned uninvited.

On January 25,1997, the victim’s body was discovered in his apartment by his daughter. His legs had been bound together at the ankles, and he had been stabbed five times in the neck and chest. Excessive bleeding and asphyxia caused the victim’s death sometime between the evening hours of January 24,1997, and the early morning hours of January 25, 1997. There were no signs of forcible entry. Several items were missing, including the victim’s television set, his wallet, jewelry, foreign coins that had been given to him by his son, a pair of black imitation leather gloves and a hat with a brim and side flaps.

On either January 24 or 25,1997, the defendant visited an acquaintance, Angel DeJesus, at his home in Meriden. The defendant was wearing a pair of black leather gloves and what DeJesus described as a “Russian winter hat” that he had never seen the defendant wear before. The defendant confessed to DeJesus that he had “murdered somebody in his brother’s building.” He told DeJesus that he had gone there to pick up some money that he was owed and got into an argument with the victim, whom he then tied up and killed. The defendant also showed DeJesus a box of foreign coins and asked him if he knew their value. A few days later, the defendant visited Magrath’s apartment in the middle of the night and confessed to her that he had killed the victim. The defendant asked Magrath for money for a train ticket to New Jersey, but she refused to give him any money. When contacted by the police, the defendant acknowledged that he knew the victim but denied any involvement in the murder. He provided the police with the name of an alibi witness who failed to corroborate his story. Additional facts will be provided where necessary.

I

The defendant claims that his lights to due process and to a jury verdict free of coercion were violated when the trial court twice orally, and once in writing, gave the jury a Chip Smith instruction. Although the defendant acknowledges that trial courts routinely use the Chip Smith instruction when juries report that they are experiencing difficulty in reaching a unanimous verdict, he claims that under the particular circumstances of the present case the use of such an instruction was coercive. The state defends the trial court’s decision, contending that the otheiwise appropriate instruction did not create an atmosphere of coercion that could otherwise threaten a defendant’s constitutional right to a fair trial. We agree with the state.

A

The following facts are pertinent to a proper resolution of this claim. On Monday, April 10, 2000, the trial court charged the jury. Shortly after it commenced deliberations, the jury requested that the testimony of four witnesses be played back. That testimony was played for the jury on Tuesday, April 11,2000, and lasted approximately four and one-half hours, not including the breaks “of fifteen minutes or so between each full playback of both cross and direct [examination] . . . .” Near the end of the day, the jury asked to rehear the court’s charge on reasonable doubt, intent and “lack of evidence.” The court repeated those instructions the following morning, April 12. Later that day, the jury requested and was given a written copy of the charge on reasonable doubt and the state’s burden of proof. The jury thereafter requested to hear additional testimony that took approximately thirty to forty minutes to play back.

That same day, the jury reported that it was unable to come to a unanimous decision on the first count, the charge of murder. With the agreement of both the state and the defendant, the court stated the following: “Okay, folks, I have your note. It simply reads: ‘We are unable to come to a unanimous decision on the first count.’ In response to that, let me tell you that when you subtract the read backs and time spent in court or in breaks, you have been deliberating for less than a full day. At this point I simply suggest that you continue your deliberations. You should review the evidence and the position of each juror to determine if any evidence has been overlooked or any juror’s position misunderstood with respect to either the evidence or the law.”

On Thursday, April 13, 2000, at approximately 2 p.m., the jury reported that it could not come to a unanimous decision on either the first or the second count. In response, the trial court provided the following instruction: “I have some additional instruction for all of you, so please listen up: The court is of the opinion that it should give you additional instructions regarding this matter to see whether or not it is within your reach to arrive at a verdict in this matter. So with this thought in mind, the court wishes to state to you at the outset that these additional instructions are not to be construed by you as to be coercive in any manner or to compel you to arrive at a verdict or to compel any of you to change your position. These instructions are designed to aid you in considering your own positions individually and in weighing your individual positions against the collective position—positions or the positions of other members of the jury and after having done so, to reconsider whatever conclusions that you individually may have reached. They’re not meant to suggest to you in any manner that you are compelled to reach a verdict or that you must reach a verdict. The court’s instructions as I so give you now are only to provide you with additional information so that you may return to your deliberations and see whether or not you can arrive at a verdict.

“Although the verdict to which each juror agrees must of course be his or her conclusion and not a mere acquiescence in the conclusion of others, in order to bring minds to a unanimous result you should, in conferring together, pay proper respect to each other’s opinions and listen with candor to each other’s arguments. If much [of] the larger number of the panel are for a particular verdict, a dissenting juror should consider why his or her own conclusion is one that makes no impression upon the minds of the others who are equally honest and intelligent, who have heard the same evidence, what the equalizers are to arrive at the truth, and are under the sanction of the same oath. The minority are seriously to ask themselves whether they may not reasonably doubt the conclusion of a judgment that is not concurred in by most of those with whom they are associated and distrust the weight or sufficiency of that evidence that fails to carry in the minds of their fellow jurors. I’m going to ask that you go back to the jury room to discuss this case further. You may retire, thank you.” Neither party objected, and the jury resumed its deliberations.

Later that day, the jury sent out a note asking two questions. Specifically, the jury wanted to know whether it could reach a unanimous decision on the second count, the charge of felony murder, but not on the first count; and whether, with regard to the second count, there must have been an intent to rob before the actual murder took place. The court answered “yes” to the first question, and in connection with the second inquiry, the court responded that “death must occur in the course of a robbery and in furtherance of such robbery or of flight therefrom.”

The morning of the next day, April 14, 2000, was spent investigating the claim of alleged jury misconduct that we discuss in part II of this opinion. After the jury resumed its deliberations, it requested a written copy of the Chip Smith charge. Again, both parties agreed and a copy was furnished. Later that day, the jury again advised the court that it was unable to reach a unanimous verdict on either count, this time indicating that the vote was eleven to one. The defendant objected to the giving of any additional Chip Smith charge and suggested instead that the court declare a mistrial. The state objected to a mistrial, arguing that the jury had, in actuality, spent only four hours deliberating since the first Chip Smith charge had been provided. The state further contended that “repetition of an otherwise appropriate charge does not create an atmosphere of coercion that may threaten [the defendant’s] constitutional right to a fair trial.” The trial court agreed with the state, concluding that the jury had not spent sufficient time deliberating. Accordingly, the court denied the defendant’s motion for a mistrial, and provided its third and final Chip Smith charge.

The court stated: “I have your note. I would ask that you continue your deliberations to see whether or not, in fact, all deliberations have been exhausted. I have given you my charge on, as you put it, majority, minority to make sure that I have properly explained the law to you. I am going to read that to you again. Keep in mind that under no circumstance am I compelling any of you to reach your verdict in this case, but I’m going to read it to you again and it is as follows: The court is of the opinion that it should give you additional instructions regarding this matter to see whether or not it is within your reach to arrive at a verdict in this matter. So, with that thought in mind, the court wishes to state to you at the outset that these additional instructions are not to be construed by you as to be coercive in any manner or to compel you to arrive at a verdict or to compel any of you to change your position. These instructions are designed to aid you in considering your own positions individually . . . [and weighing] your individual positions against the collective positions or the position of other members of the jury, and after having done so, to reconsider whatever conclusions that you individually may have reached. They are not meant to suggest to you in any manner that you are compelled to reach a verdict or must reach a verdict. And I can’t make that clear enough to you.

“The court’s instructions that I shall give you now are only to provide you with additional information so that you may return to your deliberations to see whether or not you can arrive at a verdict. Although the verdict to which each juror agrees must of course be his or her conclusion and not a mere acquiescence in the conclusion of others. In order to bring minds to a unanimous result, you should, in conferring together, pay proper respect to each other’s opinion and listen with candor to each other’s arguments. If much [of] the large number of the panel are for a particular verdict, a dissenting juror should consider why his or her own conclusion is one that makes no impression upon the minds of others, who are equally honest and intelligent, who have heard the same evidence with the equal desire to arrive at the truth and are under the sanction of the same oath. The minority ought seriously to ask themselves whether they may not reasonably doubt the conclusion of a judgment that is not concurred in by most of those with whom they are associated and distrust the weight or sufficiency of that evidence that fails to carry in the minds of the fellow jurors. I’m going to ask that you go back to the jury room and discuss the case further.”

A short time later, the jury returned with a verdict, finding the defendant guilty of both charges. Pursuant to a request by the defendant, each juror was polled individually, and each responded “guilty” when asked whether the defendant was guilty or not guilty of the crimes of murder and felony murder.

B

It is well settled that a Chip Smith charge is an acceptable method of assisting the jury to achieve unanimity. State v. Smith, 49 Conn. 376, 386 (1881); see State v. Wooten, 227 Conn. 677, 707, 631 A.2d 271 (1993); State v. Smith, 222 Conn. 1, 21-23, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992); State v. Pinnock, 220 Conn. 765, 793-95, 601 A.2d 521 (1992); State v. Ryerson, 201 Conn. 333, 349-50, 514 A.2d 337 (1986); State v. O’Neill, 200 Conn. 268, 283, 511 A.2d 321 (1986); State v. Avcollie, 188 Conn. 626, 641, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Stankowski, 184 Conn. 121, 147, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). The purpose of the instruction is “to prevent a hung jury by urging the jurors to attempt to reach agreement. It is a settled part of Connecticut jurisprudence . . . .” D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (2d Ed. 1997) § 4.4, p. 245. “Better than any other statement ... it makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors . . . .” (Internal quotation marks omitted.) State v. Ralls, 167 Conn. 408, 424-25, 356 A.2d 147 (1974), overruled on other grounds, State v. Rutan, 194 Conn. 438, 479 A.2d 1209 (1984).

Indeed, the Chip Smith charge has been upheld so consistently by this court that the defendant does not challenge it directly. Rather, the defendant claims that, because the court knew that the jury had become deadlocked eleven to one for conviction and the court was aware that the deliberations had become heated, the Chip Smith charge was unfairly coercive in violation of his due process rights. We are unpersuaded.

The defendant overlooks the fact that “a Chip Smith charge, while encouraging a continued search for unanimity, also stresses that each juror’s vote must be his [or her] own conclusion and not a mere acquiescence in the conclusions of his [or her] fellows . . . .” (Internal quotation marks omitted.) State v. Wooten, supra, 227 Conn. 707. The language of the charge does not direct a verdict, but encourages it. As the Appellate Court recently noted, “a trial court’s repetition of a Chip Smith charge does not threaten a defendant’s constitutional right to an uncoerced jury . . . State v. Stevenson, 39 Conn. App. 810, 813, 667 A.2d 1296 (1995). “Repetition of an otherwise appropriate charge does not create an atmosphere of coercion that may threaten a defendant’s constitutional right to a fair trial.” (Internal quotation marks omitted.) Id.; see State v. Martinez, 173 Conn. 541, 543-44, 378 A.2d 517 (1977) (not improper for trial court on two occasions to encourage jurors to continue deliberations after they disclosed they were deadlocked); State v. Ralls, supra, 167 Conn. 423 (not improper for trial court to give portions of Chip Smith charge, once before and once after jury indicated deadlock); see also United States v. Ailsworth, 138 F.3d 843, 852 (10th Cir.), cert. denied, 525 U.S. 896, 119 S. Ct. 221, 142 L. Ed. 2d 181 (1998) (no coercion demonstrated when trial court gave jury two Allen charges in addition to written copy of instruction); United States v. Barone, 114 F.3d 1284, 1304-1305 (1st Cir.), cert. denied, 522 U.S. 1021, 118 S. Ct. 614, 139 L. Ed. 2d 500 (1997) (trial court did not err in giving jury two Allen charges); United States v. Seeright, 978 F.2d 842, 850 (4th Cir. 1992) (trial court’s exercise of discretion in giving jury two Allen charges was proper); United States v. Ruggiero, 928 F.2d 1289, 1299 (2d Cir.), cert. denied sub nom. Gotti v. United States, 502 U.S. 938, 112 S. Ct. 372, 116 L. Ed. 2d 324 (1991) (not, inevitably coercive to give two Allen charges); United States v. Reed, 686 F.2d 651, 653 (8th Cir. 1982) (giving two Allen charges to jury not per se coercive); Jones v. State, 270 Ga. 25, 28, 505 S.E.2d 749 (1998) (same); People v. Brooks, 152 App. Div. 2d 591, 591-92, 543 N.Y.S.2d 704 (1989) (no error in giving two Allen charges as such charges did not coerce verdict); but see United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977), cert. denied, 439 U.S. 991, 99 S. Ct. 591, 58 L. Ed. 2d 666 (1978) (per se error to give two Allen charges).

It is the language used and not the number of times a Chip Smith charge is given that determines whether the instruction is improper. If the words are not coercive, then the fact that they are uttered more than once does not change their character. In the present case, the language was essentially the standard language approved time and time again. The first part of the instructions contained the admonition that the trial court was not compelling the jury to reach a verdict (“under no circumstance [is the court] compelling you . . . these additional instructions are not to be construed ... to be coercive ... or to compel you to arrive at a verdict or to compel any of you to change your position”). The second half of the instructions merely explicated the deliberative process to the jury (“[P]ay proper respect to each other’s opinions and listen with candor to each other’s arguments. ... [A] dissenting juror should consider why his or her own conclusion . . . makes no impression upon the minds of the others .... [T]he minority ought seriously to ask themselves whether they may not reasonably doubt the conclusion of a judgment that is not concurred in by most of those with whom they are associated . . . .”).

By asking the jurors to consider the views and arguments of others, the court’s instructions embodied the very essence of the jury system, which is “to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” (Internal quotation marks omitted.) Lowenfield v. Phelps, 484 U.S. 231, 237, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988). It would defy logic to suggest that a juror should not listen with deference to the views of others, particularly when a majority of the others holds a different view of the case than his own. No juror should possess the blind determination that the verdict shall represent his opinion, deaf to those whose equal intelligence and integrity have brought them to a different place. See id. The charge in the present case, when read as a whole, properly informed the jury that each member had the individual responsibility to consider the opinion of the others and to satisfy him or herself of the correctness of his or her opinion and not merely to acquiesce in the conclusion of others.

The defendant argues that this case is different from the other cases in which a Chip Smith instruction was given, contending that in this case, the trial court was aware that the jury was deadlocked eleven to one for conviction, and, furthermore, that the jury knew that the court was cognizant of the split when it gave the jury the Chip Smith charge. The state disputes this portrayal of the record, and like the state, we do not read the record to support the defendant’s assertion. On the contrary, when the trial court gave the second Chip Smith charge, it did not know whether the majority was in favor of conviction, as evidenced by the following: “Of significance to the court, is the fact that the court has no idea how long that eleven to one, and that could be either way, no matter how long that impasse has existed, it may well be that there has been a much larger or more equal distribution of people on both sides of the issue. I can’t say . . . based on what I have, that this is—that this eleven to one is something that could be anything more than something that has arisen within the past few minutes, for example. There is no indication as to how long it’s been eleven to one or how long it was to some other number. I just can’t read that into the deliberations.”

The defendant also relies on the fact that the jury reached its verdict fifteen minutes after being given the third Chip Smith instruction as evidence that the jury felt coerced. “The length of time it takes a juiy to reach a verdict after an Allen charge has been delivered is not a factor logically to be considered in determining whether the charge should have been given in the first place.” United States v. Melendez, 60 F.3d 41, 51 (2d Cir. 1995). Because we sanction the fundamental logic underlying the Chip Smith charge, we legitimately cannot reject it because of the speed with which it served its function. United States v. Hynes, 424 F.2d 754, 758 (2d Cir.), cert. denied, 399 U.S. 933, 90 S. Ct. 2270, 26 L. Ed. 2d 804 (1970), vacated on other grounds, Colon v. United States, 516 U.S. 1105, 116 S. Ct. 900, 133 L. Ed. 2d 834 (1996); see, e.g., United States v. Winters, 105 F.3d 200, 203 (5th Cir. 1997) (verdict thirty minutes after Allen charge not coercive).

Finally, the defendant contends that because the Chip Smith charge was followed by periods of screaming and profanity emanating from the jury room, it was necessarily coercive. The alleged demeanor of the jury during its deliberations is not an appropriate basis upon which to assess the coercive effect of a jury instruction. More relevant is the manner in which the jurors individually announced their unanimous verdict.

II

The defendant next contends that the trial court improperly denied his motion for a mistrial based upon his claim of jury misconduct. He further maintains that the court improperly failed to investigate adequately the allegation. The following additional facts are relevant to this claim.

A

On the morning of April 14, 2000, the state’s attorney related that, on the previous day, he had been approached by a correction officer who told him that “the deliberations in this case [were] becoming quite loud.” The correction officer indicated that he believed that he had heard a statement “that could be construed as a comment regarding the defendant’s failure to testily in this particular case.” Before reporting this on the record, the state had brought this matter to the attention of both the defendant and the court, and it was decided that the court would “bring out jurors individually and question them with regard to what was or was not said in connection with yesterday’s deliberations.” The court indicated that the parties had indeed reached an agreement on how best to proceed and outlined the strategy. “So the protocol is that I will call them each out. I have a line of questions agreed upon by the attorneys and we will ask each juror those questions and see where that takes us.” Thereafter, each juror individually was called into the courtroom and asked whether he or she “personally recalled] any comment by any juror concerning the defendant’s failure to testily here in court.”

At the conclusion of the hearing, the defendant moved for a mistrial based upon the comment regarding his failure to testily. Additionally, he requested that the court conduct a further inquiry into the subject in order to ascertain which juror had made the offending remark. The court denied both requests, finding that “it is very clear, compellingly clear to the court from the credible evidence from those jurors, that it was ultimately understood by all the jurors that the defendant’s failure to testify was not a factor to be used against him in any way and could not be considered by [them]. ’ ’ The court thereafter summoned the jury and provided additional instructions on the presumption of innocence and the defendant’s constitutional right not to testify. Additionally, the court received individual assurances from all of the jurors that they would draw no unfavorable inference from the defendant’s failure to testify and that that fact would not enter their deliberations in any way.

The defendant claims on appeal that the trial court improperly failed to grant his motion for a mistrial. He further argues that the court should have conducted an additional inquiry to learn the identity of the juror who had made the comment regarding the defendant’s failure to testify and held an additional hearing with that juror. We are unpersuaded.

B

The law relating to alleged juror misconduct is well settled. “Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . The modem jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court. . . .

“To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment ... a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality. . . . We previously have instructed that the trial court should consider the following factors in exercising its discretion as to the form and scope of a preliminary inquiry into allegations of jury misconduct: (1) the criminal defendant’s substantial interest in his constitutional right to a trial before an impartial jury; (2) the risk of deprivation of the defendant’s constitutional right to a trial before an impartial jury, which will vary with the seriousness and the credibility of the allegations of jury misconduct; and (3) the state’s interests of, inter aha, jury impartiality, protecting jurors’ privacy and maintaining public confidence in the jury system. . . .

“Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jury [bias or] misconduct will necessarily be fact specific. No one factor is determinative as to the proper form and scope of a proceeding. It is the trial court that must, in the exercise of its discretion, weigh the relevant factors and determine the proper balance between them. . . . Consequently, the trial court has wide latitude in fashioning the proper response to allegations of juror bias. . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court’s review of alleged jury misconduct can fairly be characterized as an abuse of its discretion. . . . Although we recognize that trial [c] ourts face a delicate and complex task whenever they undertake to investigate repoits of juror misconduct or bias ... we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred. . . . Ultimately, however, [t]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact.” (Citations omitted; internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 295-97, 750 A.2d 1059 (2000). Finally, when, as in this case, the trial court is in no way responsible for the alleged juror misconduct, the defendant bears the burden of proving that the misconduct actually occurred and resulted in actual prejudice. State v. Booth, 250 Conn. 611, 649, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

In the present case, both the defendant and the state agreed with the form and the scope of the court’s inquiry into the allegation of juror misconduct. That inquiry revealed that one juror had commented upon the defendant’s failure to testify. That comment did not inject any new material into the deliberations as all the jurors were aware that the defendant had chosen not to testify. Moreover, there is not even a hint that the commenting juror had been inclined to use that fact in deciding the issues before the jury. The other jurors who had heard the remark promptly reminded the commenting juror that that was an improper factor to consider in the determination of the issue of the defendant’s guilt.

Fortunately, this issue arose before the jury had reached a verdict. Consequently, the trial court was permitted to call each juror individually to receive face-to-face assurances that the defendant’s failure to testify would play no role in the deliberations. The court established to its satisfaction that each juror understood that no adverse inference could be drawn from the defendant’s decision not to testify and that his decision could not be a factor in any way in the deliberative process. Finally, the court received assurances from each juror that he or she would abide by these rules when deliberations resumed. As noted previously herein, in rejecting the defendant’s request for a mistrial, the court observed: “[I]t is very clear, compellingly clear to the court from the credible evidence from those jurors, that it was ultimately understood by all the jurors that the defendant’s failure to testify was not a factor to be used against him in any way and could not be considered by [the jurors]. Each juror acknowledged that right, that it was understood, and that they could continue to give it unswerving allegiance.”

The standard used to assess prejudice is whether “the misbehavior is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror.” (Internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 628, 682 A.2d 972 (1996). Because it is in the best position to evaluate the assurances by the jurors, the trial court’s credibility assessment “is entitled to substantial weight.” (Internal quotation marks omitted.) Id., 631. The defendant has failed to demonstrate that the hearing conducted by the trial court was inadequate to safeguard his right to a trial before an impartial jury. Furthermore, in light of the findings by the trial court in this case, the defendant cannot meet his burden of proof that actual prejudice resulted from the juror’s remark.

III

The defendant’s final claim relates to the state’s evidence of his own prior misconduct. Specifically, the defendant contends that the trial court abused its discretion when it allowed Magrath, the defendant’s girlfriend, to testify that he had stolen from her because this evidence was remote and irrelevant. According to the state, this evidence was relevant on the issue of motive. We agree with the state.

Outside the jury’s presence, Magrath testified to the defendant’s change in demeanor, his use of crack cocaine, his theft of her leather jacket, which he admitted to her had been pawned for drug money, and the mysterious disappearance of both her stereo and her sister’s wallet. The state offered this evidence, claiming that it was relevant to prove that the defendant had had a motive when he committed the robbery that resulted in the victim’s death, namely, to get money to buy drugs. Over the defendant’s objection, the trial court determined that the probative value of the evidence outweighed its prejudicial impact. Specifically, the court concluded that remoteness went to the weight of the evidence and not its admissibility, that the evidence was relevant to prove that the defendant’s motive for committing the robbery or burglary was to obtain money in order to purchase drugs, and finally, that the evidence was not so egregious as to inflame the jury. In its final instructions to the jury, the trial court provided an instruction limiting the jury’s use of the evidence.

The law relating to misconduct evidence is well settled. “As a general proposition, evidence of guilt of other crimes, because of its prejudicial nature, is inadmissible to prove that a defendant is guilty of the crimes with which he is charged. . . . Such evidence is admissible for other purposes, however, such as when it is particularly probative in showing such things as intent, an element in the crime, identity, malice, motive or a system of criminal activity, to name some exceptions to the rule. . . . The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Baldwin, 224 Conn. 347, 354-55, 618 A.2d 513 (1993).

In the present case, the state offered evidence from which it could be inferred that approximately one month before the homicide, the defendant was stealing from Magrath to support a drug habit. According to the state, this drug habit was the motive for the defendant’s commission of the robbery that resulted in the victim’s death. The defendant argues that, in the absence of evidence demonstrating his financial status, the jury reasonably could not have inferred that his motive for committing the robbery was to obtain money to support his drug habit. We disagree. Because motive generally is proven by circumstantial evidence; State v. Copas, 252 Conn. 318, 338, 746 A.2d 761 (2000); the circumstances from which it may be inferred are relevant. State v. Ruffin, 48 Conn. App. 504, 710 A.2d 1381, cert. denied, 245 Conn. 910, 718 A.2d 18 (1998). The misconduct evidence directly pertained to the defendant’s limited resources with which to purchase drugs. Therefore, it would have been logical for the jury to infer that the defendant’s motive for committing the crime at issue was to obtain funds with which to buy drugs. “[A]n inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” State v. Copas, supra, 340. Because Magrath’s testimony reasonably was susceptible of supporting an inference regarding the defendant’s motive for committing the alleged offenses, the trial court acted reasonably in concluding that the evidence was relevant.

Once evidence of the defendant’s prior misconduct has been found relevant, its prejudicial impact must be evaluated. In admitting such evidence, the trial court’s discretion is limited. State v. Sierra, 213 Conn. 422, 435, 568 A.2d 448 (1990). “The trial court’s discretion to admit other crimes evidence imports something more than leeway in decision-making. . . . Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . When assessing the admissibility of other crimes evidence, the application of a mechanical test determining that the proffered evidence fits within some class of exception to the rule of nonadmissibility, may obscure sight of the underlying policy of protecting the accused against unfair prejudice. That policy ought not to evaporate through the interstices of the classification. The problem is thus one of balancing the actual relevancy of the other crimes evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Citations omitted; internal quotation marks omitted.) Id.

The record in the present case reflects that the trial court carefully balanced the probative value of the evidence against the prejudicial effect and determined that the prejudice did not outweigh its probative value. Evidence is prejudicial “when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). Evidence concerning the defendant’s use of drugs and his thefts from Magrath was introduced only on the issue of motive. The misconduct did not involve acts of violence that could have shocked or otherwise influenced the jury. Furthermore, the instructions limiting the use of the misconduct evidence served to minimize any prejudicial effect that it otherwise may have had. See State v. Cooper, 227 Conn. 417, 428, 630 A.2d 1043 (1993); State v. Brown, 199 Conn. 47, 58, 505 A.2d 1225 (1986).

Accordingly, we conclude that the trial court did not abuse its discretion in determining that the probative value of the testimony outweighed any prejudicial effect it might have had on the jury.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. ...”

       General Statutes § 53a-54c provides: “Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       “A Chip Smith instruction reminds the jurors that they must act unanimously, while also encouraging a deadlocked jury to reach unanimity. See State v. Smith, 49 Conn. 376 (1881) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Pare, 253 Conn. 611, 616 n.4, 755 A.2d 180 (2000). A similar jury instruction, known as an Allen charge, is utilized in the federal courts. Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

         The court provided the following explanation: “The motion for a mistrial is denied. I agree with the accounting of the time that [the trial prosecutor] has just put on the record. Deliberations began late Monday afternoon, probably around 4 o’clock. There really wasn’t much time to deliberate on Monday. I think on Tuesday, there were extensive read backs on Tuesday. Wednesday there was some time to deliberate, as yesterday, but there were other read backs yesterday. . . . There have been late starts upon the request of the jurors, or simply because of the usual delays in getting started. There have been early dismissals on at least one occasion. I don’t think the jury has deliberated for probably much more than two days in this case.
      "Of significance to the court, is the fact that the court has no idea how long that eleven to one, and that could be either way, no matter how long that impasse has existed, it may well be that there has been a much larger or more equal distribution of people on both sides of the issue. I can’t say . . . based on what I have, that this is—that this eleven to one is something that could be anything more than something that has arisen within the past few minutes, for example. There is no indication as to how long it’s been eleven to one or how long it was to some other number. I just can’t read that into the deliberations. So, I think under all of those circumstances, the fact that there is so far, in my opinion, has not been sufficient time. Certainly, since I Chip Smith’d them yesterday, as [the trial prosecutor] has indicated, there simply has not been a significant amount of time that’s passed. The fact that they have my written Chip Smith charge does not really undercut the fact that it might not have that much import to them. I don’t even know if everybody’s reading it or has read it, and I’m going to give them one final Chip Smith charge repeating what I’ve already told them. We will see where that goes. It is certainly not coercive. The language in the preface to that charge which is taken from State v. O’Neill, [200 Conn. 268, 511 A.2d 321 (1986)], clearly drives home to the jurors, before I mention a word about anything else, that they are still obligated to vote their own conscience and that the instructions are not coercive in any manner. I cannot see how I can malte it any clearer to them. Therefore, I will give them a rereading of my Chip Smith charge. And there is nothing in the case law that I have ever seen or am aware of in our state that in any way limits the number of times the charge can be given. I don’t think that exists in any case law that I’ve seen from our Supreme or Appellate Courts.”

         Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528 (1896); see footnote 3 of this opinion.

       Even ha,d the trial court been aware of the split, this court, previously has expressed its agreement with the Second Circuit Court, of Appeals that: “The fact that the judge knew that there was a lone dissenter does not make the charge coercive inasmuch as the nature of the deadlock was disclosed to the Court voluntarily and without solicitation. See Bowen v. United States, 153 F.2d 747 [(8th Cir.), cert. denied, 328 U.S. 835, 66 S. Ct. 980, 90 L. Ed. 1611 (1946)]. To hold otherwise would unnecessarily prohibit the use of the Allen charge in circumstances where the judge was made aware of the numerical division of Ihe jurors, for example, by an over-zealous juror, although he had not made the forbidden inquiry himself. United States v. Meyers, 410 F.2d 693, 697 (2d Cir.), cert. denied, 396 U.S. 835, 90 S. Ct. 93, 24 L. Ed. 2d 86 (1969); see also United States v. Robinson, 560 F.2d 507, 517-18 (2d Cir. 1977) [cert. denied, 435 U.S. 905, 98 S. Ct. 1451, 55 L. Ed. 2d 496 (1978)], upholding the use of the Alien charge although the judge knew of an eleven to one deadlock and knew the identity of the dissenter.” (Internal quotation marks omitted.) State v. Avcollie, supra, 188 Conn. 641-42.

       We note that the trial court made no factual findings in connection with this alleged behavior; nor was it called upon to make any findings.

       In response to the trial court’s inquiry, the first juror testified: “There was a discussion about, what we could consider as evidence and what we could not consider as evidence. The discussion came up that—it was pointed out that the defendant did not make a sta1 ement, at which time we discussed the fact that to the best of our understanding that this was not to be considered as meaningful in our discussion.” The juror further informed the court that there was nothing about this conversation that would impact his/her ability to resume deliberations and he/she could assure the court that he/she could reach a “decision in this case without at all considering as a factor the defendant’s failure to testify here in court.”
      The second juror testified: “Honestly, yeah, somebody did bring that up, but we corrected the person saying that we can’t take that against—we can’t hold that against a defendant.” The juror also stated to the court that he/she understood that he/she could not draw any adverse inference against a defendant for his failure to testify, and that the decision could not, in any way, be a factor in his/her decision.
      The third juror testified: “Not to my recollection, no.”
      The fourth juror testified: “No. I mean, I never heard anything about, you know, him not testifying, being any kind of a . . . you know, evidence that was weighed in any way.” Furthermore, when this juror was asked if he/ she understood that the law required that he/she not consider the defendant’s failure to testify as a factor in any way in his/her decision, he/she responded: “Right, because he’s got a right to remain silent . . . .” This juror also assured the court that he/she would continue to follow this rule when deliberations resumed.
      The fifth juror testified that he/she heard somebody say that the defendant’s failure to testify in court could not be used as evidence against the defendant. When the juror was asked if he/she heard any other discussion in this regard, he/she responded, “[n]ot that I can recall. That was the only thing that I heard.” This juror further stated that, he/she was aware that, he/ she could not, draw any adverse inference from the defendant’s failure to testify and that the failure to testify could not be used against the defendant in any way in the deliberations. Finally, the juror assured the court that he/ she could follow this instruction during the balance of the deliberations.
      The sixth juror testified: “To be honest, no, I do not." This juror further stated that he/she understood that he/she could not draw any adverse inference, or use in any way, the defendant’s failure to testify, and he/she said he/she would continue to abide by this rule when deliberations resumed.
      The seventh juror testified that there was a discussion in which someone said that the defendant’s failure to testify could be used against the defendant. This juror also stated, however, that he/she was aware of the rule that the defendant’s failure to testify could not be used in any way against him, and the juror assured the court that he/she would continue to follow this rule.
      The eighth juror testified: “I don’t recall that specific comment, but what I do—I do remember some emphasis being placed on that the defendant does not have to testify and that the premise must be that he’s presumed innocent.” This juror remarked that he/she heard no discussion that the defendant’s failure to testify was something that could be used against the defendant. Finally, he/she stated that he/she understood that a defendant’s failure to testify could not be used against him in any way, and he/she assured the court that he/she would continue to follow this law without any reluctance during further deliberations.
      The ninth juror testified: “I think may—we were or some people were battling around with the idea of whether that should be considered or not, and that’s all I really remember about that.” The juror reiterated that he/ she could not remember anything else about the discussion. The juror told the court that he/she personally understood that the defendant’s failure to testify could not enter into the deliberations in any way, and he/she assured the court that he/she had followed this rule thus far and would continue to do so.
      The tenth juror testified: “I think it may have come up in some conversation at some point which was then—I can’t remember who made the comment, but I think it was explained that that—that it wasn’t necessary that he testify, that he didn’t have to, that he—that, you know, that we couldn’t look at that either way.” The juror further told the court that he/she understood that a defendant has a constitutional right not to testify and that the exercise of that right could not be considered as a factor in any way during deliberations. The juror assured the court that he/she would continue to follow the rule prohibiting the drawing of any adverse inference against the defendant for his failure to testify.
      The eleventh juror testified: “I remember it coming up as a comment of— we were talking about lack of evidence. And what I remember is that the comment was that there’s a lack of evidence on a—a certain amount of lack of evidence on the prosecution’s side and that there also was a lack of evidence on the defense side. I believe that was the context that I heard it in.” This juror told the court that he/she understood that the defendant had no burden of proof, that the defendant did not have to prove anything, that he/she had followed this rule thus far and would continue to follow this rule. This juror further told the court that he/she understood that the defendant’s failure to testify could not be used against the defendant, that he/she could draw no adverse inference at all from the defendant’s failure to testify and that the defendant’s failure to testify could not be considered during the deliberations.

        The twelfth and final juror testified that the subject was brought up but it was determined that it could not be an issue in the case. The juror stated that he/she and the remaining jurors understood the court’s instruction that the defendant has a right not to testily and that his exercise of that right could not be used against him in any way. Finally, he/she assured the court that he/she would continue to follow this rule during further deliberations.

       Notably, not all the jurors recalled the remark, suggesting that whatever comment had been made did not result in a discussion of any length or significance.

       In regard to the issue of remoteness, the trial court noted that “[e] vents at the end of January [when the homicide occurred] are only a matter of weeks from the time the defendant was asked to leave the apartment [and] are not so remote in time as to make this evidence inadmissible. There’s nothing in the evidence before the court to suggest that the defendant’s condition immediately abated when he was asked to leave the premises.”

       The court’s limiting instruction provided: “I have allowed evidence of the relationship between [Magrath] and the defendant in the events therein, solely for the limited purpose of showing what the state claims was the motive of the defendant for committing the crimes charged. Any [such] conduct which may be reflected in such evidence of drug use or theft is to be disregarded by you. The defendant is not on trial for such misconduct. This evidence is merely offered to support the state’s claim that the defendant had a motive to commit the crimes charged, and otherwise it has no bearing on your determination of charges against the defendant. You cannot use it for any other purpose. You can accept it or reject it just like any other evidence in the case. My allowing it gives it no special weight. You cannot infer from such evidence that the defendant is a bad character or has a criminal disposition. You may consider such evidence if you believe it and further find it logically, rationally and conclusively supports that the defendant in particular had a motive to commit the crimes charged. On the other hand, if you do not believe such evidence or even if you do [if] you should find that it does not logically, rationally and conclusively support that [the defendant] had the motive to commit the crimes charged, then you may not consider that testimony for any purpose at all.”
      The trial court also gave a lengthy, detailed instruction on motive. This instruction included the following: “In this case, on the issue of motive, the state offered evidence of the defendant’s use of drugs and his desire to obtain money or property to exchange for drugs. You will recall the limiting instructions that I have given you on motive evidence.”


author: PER CURIAM.

text:
    CARPENTER TECHNOLOGY CORPORATION v. COMMISSIONER OF REVENUE SERVICES
    (SC 16438)
    Sullivan, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.
    Argued April 19
    officially released June 19, 2001

      Richard K. Greenberg, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Richard C. Kariss, pro hac vice, with whom, on the brief, were Katherine A. Borroughs, Randall S. Newman, pro hac vice, and Debra Macphee, pro hac vice, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, the commissioner of revenue services (commissioner), appealed from the judgment of the trial court sustaining an appeal by the plaintiff, Carpenter Technology Corporation, from the commissioner’s assessment of a corporate business tax deficiency. The trial court determined that the plaintiffs deductions of the interest it had paid on a loan made to it by a wholly owned subsidiary, Carpenter Investments, Inc., were appropriate because the subsidiary had economic substance and a business purpose, and because the relationship and transactions between the plaintiff and the subsidiary were legitimate business arrangements. The commissioner had disallowed the deductions on the basis that the subsidiary was a sham corporation and that the subsidiary and the plaintiff were a single entity for tax purposes. The commissioner appealed from the trial court’s judgment on that basis.

Having examined the record on appeal, studied the briefs and heard the arguments of the parties, we conclude that the judgment of the trial court should be affirmed. The issues presented were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. See Carpenter Technology Corp. v. Commissioner of Revenue Services, 47 Conn. Sup. 122, 779 A.2d 239 (2000). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. East v. Labbe, 54 Conn. App. 479, 480-81, 735 A.2d 370 (1999), aff'd, 252 Conn. 359, 746 A.2d 751 (2000).

The judgment is affirmed.