author: Dannehy, J.

text:
    State of Connecticut v. Anthony Golino
    (12639)
    Peters, C. J., Shea, Dannehy, Callahan and Covello, Js.

      Argued October 2
    decision released November 25, 1986

      Charles E. Tiernan III, with whom were Michael J. McClary, certified legal intern, and, on the brief, Hugh F. Keefe, John J. Keefe, Jr., and Margaret E. Flynn, legal intern, for the defendant.

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, Mary Galvin, assistant state’s attorney, and Gene Cohen, legal intern, for the plaintiff (state).
   Dannehy, J.

This is a case of murder, commenced by information. Before trial, the defendant moved to dismiss the information on the ground that the prosecution was barred by the statute of limitations. The trial court denied the motion but reserved the case, with the consent of both of the parties, for the advice of this court upon the question set forth in the stipulation for reservation.

The record and stipulated facts show that on July 16, 1973, Concetta “Penny” Serra was killed in New Haven. The defendant, Anthony Goiino, was arrested on July 3, 1984, and charged by information with her murder in violation of General Statutes (Rev. to 1972) § 53a-54 (a) (l). On July 31,1984, the defendant filed a motion to dismiss the information, alleging that the prosecution was barred by the pre-1976 statute of limitations, General Statutes (Rev. to 1972) § 54-193. The trial court denied the motion. Because of the importance of the issue, the trial court, on stipulation of the parties, thereafter reserved the following question to this court under Practice Book § 3133 (now § 4147): “Is the prosecution of the defendant, charged with murder in violation of Section 53a-54 (a) (1) (revised to [1972]) barred by Connecticut General Statutes Section 54-193, the Statute of Limitations in effect in 1973?”

To answer this question we must first examine the language of General Statutes (Rev. to 1972) § 54-193, the applicable statute of limitations. That statute prescribed a five year limitation period on prosecutions “for treason ... or for any crime or misdemeanor of which the punishment is or may be imprisonment in the Connecticut Correctional Institution, Somers . . . .’’The second clause of the statute provided a one year period of limitation on prosecutions “for the violation of any penal law, or for other crime or misdemeanor, except crimes punishable by death or imprisonment [at Somers].” Implicit in this statutory scheme is that “crimes punishable by death” were outside of any limitation period and thus always amenable to prosecution. See State v. Ellis, 197 Conn. 436, 460, 497 A.2d 974 (1985).

The defendant was charged with murder under General Statutes § 53a-54 (a) (1). The punishment for that offense is found in General Statutes § 53a-54 (c): “Murder is punishable as a class A felony unless the death penalty is imposed as provided by section 53a-46.” See also General Statutes § 53a-45 (a). Thus, it appears that because § 53a-54 (c) prescribes a possible death sentence, a violation of § 53a-54 (a) (1) is an offense “punishable by death” for purposes of the statute of limitations, and accordingly, prosecution of the defendant in 1984 for the 1973 slaying is not time-barred.

The defendant maintains, however, that in light of the holding of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, reh. denied, 409 U.S. 902, 93 S. Ct. 89, 34 L. Ed. 2d 164 (1972), and this court’s decision in State v. Aillon, 164 Conn. 661, 295 A.2d 676 (1972), the statutory limitation for crimes in “which punishment is or may be imprisonment [at Somers] . . .’’controls. The Furman court held that the imposition of the death penalty under statutes similar to our own violated the eighth and fourteenth amendments to the United States constitution. Furman v. Georgia, supra, 239-40. We recognized Furman in State v. Aillon, supra, 662, a case involving bail eligibility in capital cases, ruling that the Connecticut death penalty statutes were unconstitutional. Because the defendant in this case could not constitutionally have been sentenced to death in 1973, he argues that he is not charged with an offense “punishable by death” for purposes of § 54-193. He maintains that this court should apply the five year period of limitation for crimes punishable by imprisonment at Somers. Concededly, this period had already run at the time the information against him was filed.

The unique nature of the defendant’s case lies in the fact that the murder of Penny Serra was committed during the hiatus between the Furman decision in 1972 and the enactment of an amended statute of limitations four years later. In 1976, the legislature amended § 54-193 to provide expressly that there “shall be no limitation of time within which a person may be prosecuted for a capital felony or a class A felony.” Public Acts 1976, No. 76-35; General Statutes (Rev. to 1977) § 54-193. Had the homicide for which the defendant stands charged occurred prior to the Furman decision or after April 6,1976, the effective date of the 1976 amendment, his prosecution clearly would not be subject to the statute of limitations.

Since Furman was decided, many courts have been called upon to interpret various statutory provisions, including statutes of limitations, which prescribe the particular procedures to be employed when a defendant is charged with a crime punishable by death. See United States v. Watson, 496 F.2d 1125 (4th Cir. 1973); United States v. Helmich, 521 F. Sup. 1246 (M.D. Fla. 1981), aff'd, 704 F.2d 547 (11th Cir. 1983); United States v. Provenzano, 423 F. Sup. 662 (S.D.N.Y. 1976), aff'd, 556 F.2d 562 (2d Cir. 1977); Hudson v. McAdory, 268 So. 2d 916 (Miss. 1972); State v. Zarinsky, 75 N. J. 101, 380 A.2d 685 (1977); see generally annot., 71 A.L.R.3d 453. A significant number of these courts have employed essentially the same flexible reasoning. They have looked behind the particular procedure in question in order to determine “whether the sole reason for it was the defendant’s potential exposure to the death penalty, or whether [the legislature] had other rationales relating to the complexity or grave nature of the offenses punishable by death.” United States v. Helmich, supra, 1248; see also United States v. Kennedy, 618 F.2d 557 (9th Cir. 1980); United States v. Provenzano, supra, 665; State v. Zarinsky, supra, 110. If the challenged provision is “inextricably tied to the imposition of the death penalty,” upon abolition of the death penalty, that procedural provision would fall; on the other hand, if the history and purpose underlying the provision evidences a broader policy goal, that provision should be interpreted to effectuate such a goal. State v. Zarinsky, supra.

A few jurisdictions, however, have not subscribed to this method of analysis. One court has concluded, without reviewing legislative intent, that upon the abolition of the death penalty, “all incidents of capital crimes, substantive as well as procedural, become inapplicable . . . .” Reino v. State, 352 So. 2d 853, 858 (Fla. 1977); see also In re Tarr, 109 Ariz. 264, 508 P.2d 728 (1973); People v. Watkins, 17 Ill. App. 3d 574, 308 N.E.2d 180 (1974). Applying this rigid rule, the Reino court held that a prosecution for a murder committed post-Furman but prior to the enactment of a new state death penalty statute should have been commenced within two years of the offense, in keeping with the state statute of limitations governing noncapital crimes. Reino v. State, supra, 861. The court reasoned that criminal statutes are to be strictly construed in favor of a defendant and that the Florida legislature, upon amending its statute of limitations, could have made the amendment retroactive. Id., 860-61. The defendant in the present case urges us to follow the dictates of Reino, pointing out that Connecticut also interprets penal statutes strictly against the state and liberally in favor of an accused. See State v. Tedesco, 175 Conn. 279, 291, 397 A.2d 1352 (1978); State v. Anonymous, 33 Conn. Sup. 34, 39, 358 A.2d 691 (1976).

Although we acknowledge the fundamental principle that criminal statutes are to be strictly construed, “it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent. State v. Belton, 190 Conn. 496, 505-506, 461 A.2d 973 (1983); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); State v. Sober, 166 Conn. 81, 91, 347 A.2d 61 (1974).” State v. Ellis, supra, 445. We conclude that the reasoning applied by the Helmich, Zarinsky and Provenzano courts, wherein a statute’s underlying purpose is examined in determining its viability after Furman, more closely comports with this court’s disinclination to “interpret statutes in a vacuum.” See State v. Ellis, supra. Where a court possesses clues to the meaning of a statute, “there certainly can be no ‘rule of law’ which forbids [their] use, however clear the words may appear on ‘superficial examination.’ ”Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S. Ct. 1938, 48 L. Ed. 2d 434 (1976), quoting United States v. American Trucking Assns., 310 U.S. 534, 543-44, 60 S. Ct. 1059, 84 L. Ed. 1345 (1940). “A statute such as [General Statutes 54-193], enacted more than one hundred sixty years ago, cannot meaningfully be interpreted ‘in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted [it].’ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978).” State v. Ellis, supra.

Further support for employing the legislative intent rationale can be found in our severability statute, General Statutes § 1-3. That statute provides that “[i]f any provision of any act passed by the general assembly or its application to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of such act.” In State v. Menillo, 171 Conn. 141, 145, 368 A.2d 136 (1976), we interpreted § 1-3 to mean that other provisions of a defective statute would fall only if they were so dependent on the defective portions that they could not stand on their own. Since § 1-3 by its terms deals with other applications as well as other provisions of an invalid act, the Menillo reasoning can be analogized to the case at bar, where the effect of one statute’s invalidity on another related statute is at issue.

State v. Menillo suggests, as does State v. Zarinsky, supra, that we must determine whether the statute of limitations in effect in 1973 was so inextricably tied to the imposition of the death penalty itself, that upon invalidation of the death penalty, there no longer existed crimes “punishable by death” for purposes of the statute of limitations. Specifically, we must inquire whether, by using the phrase “punishable by death” in § 54-193, the legislature intended to exempt from the statute crimes which actually could be punished by death, the exemption being because of the severity of the punishment imposed, or whether it intended to exempt a specific category of crimes, which, because of their heinous nature, should always be amenable to prosecution.

We look to State v. Ellis, supra, for guidance. In Ellis, we set forth a detailed history of General Statutes § 54-193, explaining that the statute has its roots in an act of 1821. See General Statutes (1821 Rev.) tit. 59, § 11. We concluded in Ellis that the 1821 statute created four categories of crimes for purposes of the statute of limitations: First, crimes where the punishment “is . . . imprisonment at new-gate prison . . .” (emphasis added) were subject to a three year limitation period; second, crimes where the punishment “may be, imprisonment in new-gate prison” (emphasis added) were likewise subject to the same three year period; third, all “other crime[s] or misdemeanor[s], excepting crimes punishable by death, or imprisonment at new-gate prison” were governed by a one year limitation period; and, finally, crimes “punishable by death” were outside of the limitation statute. State v. Ellis, supra, 446-49, quoting various portions of General Statutes (1821 Rev.) tit. 59, § 11. Commenting on a similar classification scheme which existed prior to 1821, the renowned Zephaniah Swift explained that in creating the scheme, “[t]he legislature have aimed to proportion the punishment, to the nature of the offence, and for that purpose have introduced three distinct grades of punishment—Death; Confinement to hard labor, and coarse fare; Corporal and pecuniary pains and penalties. The crimes for which death is the punishment, are treason, murder, rape, the crime against nature, mayhem, and arson, where some life is endangered. Imprisonment in New-Gate is inflicted on robbery, burglary, forgery, counterfeiting, horsestealing, arson, attempting to commit a rape, perjury, and aiding to escape from New-Gate prison. On all other crimes corporal and pecuniary punishments are inflicted.” (Emphasis in original.) 2 Swift, A System of the Laws of the State of Connecticut (1796) p. 296; see State v. Ellis, supra, 448. Based on this history, we concluded in Ellis that our statute of limitations “as a whole, represents a system, a classification scheme whereby the allowable period of prosecution is related to the gravity of the offense. ” (Emphasis added.) State v. Ellis, supra, 450. We reaffirm that conclusion.

Although the 1821 statute of limitations was revised several times between then and 1973, these revisions did not alter the basic classification scheme in which the gravest offenses, including murder (or first degree murder when Connecticut subscribed to degrees), were placed outside of any period of limitations. When General Statutes § 54-193 was amended in 1976 to provide that capital and class A felonies would always be amenable to prosecution; see Public Acts 1976, No. 76-35; the sponsor of the amendment explained that it was intended to clarify the existing law. 19 S. Proc., Pt. 1, 1976 Sess., p. 341, remarks of Senator David H. Neiditz. Statements of legislators often provide strong indication of legislative intent. See Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 224, 332 A.2d 83 (1973). We view the sponsor’s remarks as a clear indication that the pre-1976 statute of limitations was not intended to bar a prosecution for murder, the crime with which the defendant is charged, even though in 1973 the defendant could not have been sentenced to death. See United States v. Helmich, supra; State v. Zarinsky, supra.

In Ellis, we also explained that the policy underlying a criminal statute of limitations represents a balance between the public demand for justice and the right of a person to be free from the continual threat of prosecution for past misdeeds. Moreover, the passage of time may either obscure the recollection of facts necessary to convict, or hinder the presentation of a proper defense. Our legislature has weighed and measured these competing interests through the enactment of General Statutes § 54-193. State v. Ellis, supra, 458-59 n.18; see Toussie v. United States, 397 U.S. 112, 114-15, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970). Yet in this statute, for purposes of limiting a prosecution, we perceive no distinction between crimes other than that which stems from their relative difference in seriousness. As we stated in State v. Ellis, supra, 458 n.18, the difficulty of gathering evidence of a past robbery is not inherently greater than in gathering evidence of a more serious crime such as murder. The fact that particular procedures for implementing the death penalty were held unconstitutional in Furman v. Georgia, supra, and State v. Aillon, supra, does not diminish the serious nature of an offense which, prior to those decisions, was punishable by death. We conclude that the legislature used the phrase “punishable by death” as a shorthand reference to a category of crimes which, because of their atrocious nature, would always be amenable to prosecution. United States v. Provenzano, supra, 666; Butler v. United States, 481 A.2d 431, 447 (D.C. App. 1984).

Our holding in State v. Aillon, supra, in no way counsels a different result. There, we held that a defendant charged with a capital crime was entitled to bail because, in light of Furman, he was no longer being charged with a crime punishable by death for purposes of the constitutional and statutory bail provisions. State v. Aillon, supra, 662. The rationale for denying bail in certain capital cases, however, is not necessarily apposite to the reasons for removing crimes punishable by death from the statute of limitations. The purpose of bail is to ensure the accused’s presence at trial. State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667 (1970). The New Jersey Supreme Court has explained that “[i]n a choice between hazarding his life before a jury and forfeiting his or his sureties’ property, the framers of many State Constitutions felt that an accused would probably prefer the latter. But when life was not at stake and consequently the strong flight-urge was not present, the framers obviously regarded the right to bail as imperatively present.” State v. Johnson, 61 N. J. 351, 360, 294 A.2d 245 (1972); see State v. Zarinsky, supra. The constitutional and statutory provisions refusing bail to certain persons accused of capital crimes, therefore, appear to be closely tied with the imposition of the death penalty itself. Upon the latter’s invalidation, it was logical for this court to conclude that the former would also be inoperative.

In reaching our decision today, we also find it significant that the invalidation of the death penalty occurred through judicial fiat; yet no correlative legislative action took place to eliminate the penalty from our statute books. In United States v. Provenzano, supra, the court, by way of contrast, was faced with a situation where, subsequent to Furman, Congress had amended the relevant kidnapping statute to remove the death penalty from the statute’s punishment provision. While agreeing with the government that the term “capital offenses” in the federal statute of limitations was used as a shorthand reference to a category of particularly serious crimes, the Provenzano court nonetheless concluded that in view of the Congressional action, a violation of the kidnapping statute could no longer be considered an offense “punishable by death.” United States v. Provenzano, supra, 666-67.

Our legislature, however, took no action to remove from our statutes the imposition of the death penalty for murder. Furthermore, the absence of a statute of limitations for crimes punishable by death is directly related to the gravity of the offense rather than the severity of the penalty. Accordingly, the offense for which the defendant is charged is still “punishable by death” for purposes of General Statutes (Rev. to 1972) § 54-193. The answer to the reserved question, “[I]s the prosecution of the defendant, charged with murder in violation of Section 53a-54 (a) (1) (revised to [1972]), barred by Connecticut General Statutes Section 54-193, the statute of limitations in effect in 1973?” is no.

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1972)] Sec. 53a-54. murder defined. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION. (a) A person is guilty of murder when: (1) 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 acted 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 subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime . . . .”

       “[General Statutes (Rev. to 1972)] Sec. 54-193. limitation of prosecutions FOR various OFFENSES. No person shall be prosecuted for treason against this state, or for any crime or misdemeanor of which the punishment is or may be imprisonment in the Connecticut Correctional Institution, Somers, except within five years next after the offense has been committed; nor shall any person be prosecuted for the violation of any penal law, or for other crime or misdemeanor, except crimes punishable by death* or imprisonment in the Connecticut Correctional Institution, Somers, but within one year next after the offense has been committed; but, if the person, against whom an indictment, information or complaint for any of said offenses is brought, has fled from and resided out of this state, during the period so limited, it may be brought against him at any time, within such period, during which he resides in this state, after the commission of the offense; and, when any suit, indictment, information or complaint for any crime may be brought within any other time than is limited by this section, it shall be brought within such time.
      “*Death Penalty declared unconstitutional . . . .”

       Although the reserved question refers to the murder statute as “revised to 1973,” no statutory revision occurred in that year. The statute will be referred to, therefore, as “revised to 1972.” At oral argument, the court queried whether the parties had standing to present the reserved question to this court, in view of the fact that the trial court had already ruled on the motion to dismiss. It is not our practice to entertain reservations on questions which have already been decided by the trial court. Due to the importance of this matter, however, we will treat the trial court’s order reserving the question to us as an implicit revocation of its previous denial of the motion to dismiss.

       In State v. Ellis, 197 Conn. 436, 497 A.2d 974 (1985), we held, inter alia, that a crime punishable either by death or by imprisonment was “punishable by death” for purposes of the statute of limitations and thus prosecution of the defendants, charged with capital felony, was not barred by the statute of limitations.

       In State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983), we addressed the narrow issue of whether this amendment could be applied retroactively. •We ruled it could not, because the amendment, by its terms, did not provide for its retroactive application. Id., 353. We did not address the issue presented today of whether the pre-1976 statute of limitations was intended to apply to prosecutions for crimes which, because of the invalidation of the death penalty, could be punishable only by imprisonment.

       “[General Statutes (1821 Rev.) tit. 59] Sect. 11. No person shall be indicted, informed against, complained of, or in any way prosecuted, before any court, for treason against this state, or for any crime or misdemeanor, whereof the punishment is, or may be, imprisonment in new-gate prison, unless the indictment, presentment, or complaint be made and exhibited within three years, next after the offence shall have been committed: nor shall any person be indicted, informed against, complained of, or in any way prosecuted, before any court, for the breach of any penal law, or for other crime or misdemeanor, excepting crimes punishable by death, or imprisonment in new-gate prison, unless the indictment, presentment, information or complaint, be made and exhibited within one year next after the offence shall have been committed. . . .”

       The statute of limitations referred to in State v. Ellis, 197 Conn. 436, 497 A.2d 974 (1985), General Statutes (Rev. to 1975) § 54-193, is identical to the statute in this case (Rev. to 1972) § 54-193.

       In State v. Ellis, 197 Conn. 436, 449, 497 A.2d 974 (1985), we explained that this category referred to only one crime, manslaughter, because only with respect to that crime was the sentencing court given discretion in determining where the sentence would be served.

       For example, in 1827 the term “new-gate” was replaced by the phrase “Connecticut State Prison” throughout the statute. Public Acts 1827, c. 27, § 9, p. 166. In 1850, a tolling provision was added for accuseds who had fled the jurisdiction. Public Acts 1850, c. 56, p. 40. In 1882, the three year period for “state prison” offenses was extended to five years. Public Acts 1882, c. 15, p. 126. In 1969, “state prison” was changed to “the Connecticut Correctional Institution at Somers.” Public Acts 1969, No. 297.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Catherine A. Galvin v. Freedom of Information Commission et al.
    (12840)
    Peters, C. J., Shea, Dannehy, Callahan and Covello, Js.
    Argued October 2
    decision released November 25, 1986

      Jane S. Scholl, assistant attorney general, with whom were Richard J. Lynch, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellant (plaintiff).

      Steven Spellman, for the appellees (defendant David W. Schoolcraft et al.)

      Mitchell W. Pearlman, general counsel, and Constance L. Chambers, assistant general counsel, Freedom of Information Commission, filed a brief as amici curiae.
   Peters, C. J.

The dispositive issue on this appeal is whether autopsy reports compiled by the office of Connecticut’s chief medical examiner are public records subject to public inspection under General Statutes § 1-19 (a), the mainstay provision of the Freedom of Information Act. The plaintiff, Dr. Catherine A. Galvin, was the state’s chief medical examiner at all times relevant to this appeal. She refused to furnish a copy of an autopsy report requested by the defendant David W. Schoolcraft, a reporter for the defendant Norwich Bulletin Company. The defendants complained to the Freedom of Information Commission (FOIC). After a hearing, the FOIC ordered Dr. Galvin to furnish the defendants with a copy of the autopsy report. She appealed the decision to the Superior Court, Purtill, J., which sustained her appeal. The defendants appealed to the Appellate Court, which set aside the trial court’s judgment and rendered judgment dismissing the plaintiff’s appeal. After petitioning for certification, the plaintiff appealed to this court. We reverse the judgment of the Appellate Court.

The underlying facts are undisputed. On October 13, 1981, a sixteen year old Norwich boy, Dwayne Dodd, was shot and killed in the course of a struggle with a Norwich police officer. Pursuant to General Statutes § 19a-406 (then § 19-530), the medical examiner’s office performed an autopsy on Dodd’s body. On October 21, 1981, at the office of the chief medical examiner in Farmington, the defendant Schoolcraft orally requested Dr. Galvin to furnish him with a copy of the autopsy report. The plaintiff refused to do so. She indicated, however, that Schoolcraft could obtain a copy of the report upon the completion of a pending investigation by the office of the state’s attorney, provided that he obtained the Dodd family’s consent to disclosure of the report. Neither Schoolcraft nor the defendant Norwich Bulletin Company (Bulletin) ever sought or obtained such consent.

Shortly after the meeting with Dr. Galvin, School-craft and the Bulletin filed a complaint with the FOIC, seeking to compel disclosure of the autopsy report. The FOIC received the complaint on November 2, 1981. After a hearing on February 18, 1982, the FOIC rendered a decision ordering the plaintiff to disclose the report. On January 12, 1984, the Superior Court sustained the plaintiff’s appeal of the FOIC’s decision. The Appellate Court found error and ordered dismissal of the plaintiff’s appeal in Galvin v. Freedom of Information Commission, 4 Conn. App. 468, 495 A.2d 1089 (1985).

On appeal to this court, the plaintiff claims that the Appellate Court erred in holding that: (1) state administrative regulations that limit public access to autopsy reports, enacted pursuant to General Statutes § 19a-411, are invalid under General Statutes § 1-19 (a); and (2) General Statutes § 1-19 (b) (2), which exempts from disclosure under § 1-19 “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy,” did not apply to the autopsy report in question. Because we agree with the plaintiffs first claim of error, we need not resolve her second claim.

I

Before addressing the merits of this appeal, we must resolve an important threshold question of jurisdiction. The FOIC’s schedule for hearing and rendering decision in this case exceeded the time limitations imposed by General Statutes § 1-2 li (b). See Hartford v. Freedom of Information Commission, 201 Conn. 421, 518 A.2d 49 (1986). We have previously held that the § l-21i (b) time constraints are mandatory, and that the FOIC’s failure to adhere to them invalidates its subsequent action. Board of Police Commissioners v. Freedom of Information Commission, 199 Conn. 451, 452-53, 507 A.2d 1385 (1986); Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503-506, 503 A.2d 1161 (1986). After these decisions were rendered, the General Assembly enacted Public Acts 1986, No. 86-408, which, in § 2 (a), retrospectively validated FOIC actions not in compliance with § l-21i (b). In Hartford v. Freedom of Information Commission, supra, we held that this retrospective validation is a legitimate exercise of legislative authority. We therefore hold that Public Acts 1986, No. 86-408, § 2 (a), preserved the FOIC’s jurisdiction to act in this case.

II

The resolution of the plaintiff’s dispositive claim requires the reconciliation of the provisions of two statutes, each of which deals with the public’s right of access to records kept on file by public agencies. General Statutes § 19a-411 sets forth specific guidelines for the preparation, maintenance and disclosure of autopsy reports and other records of investigations conducted by the medical examiner’s office. These statutory guidelines, and the administrative regulations which they expressly authorize, impose stricter limitations on the disclosure of such records than the Freedom of Information Act, General Statutes § 1-19, permits. By contrast, under § 1-19 (a), “[ejxcept as otherwise provided by any federal law or state statute,” all records of public agencies are public records subject to public inspection.

The plaintiff claims that § 19a-411 gives the Commission on Medicolegal Investigations, which supervises the medical examiner’s office, authority to promulgate restrictive regulations concerning the disclosure of autopsy reports. Thus, the plaintiff argues, § 19a-411 is a state statute coming within the “[ejxcept as otherwise provided” exception to § 1-19, with the result that autopsy reports fall outside the ambit of public records.

The defendants claim that § 19a-411 does not exclude autopsy reports from the coverage of the Freedom of Information Act. They argue that, read as a whole and in conjunction with § 1-19, § 19a-411 incorporates the provisions of the Freedom of Information Act, and permits only such regulations on disclosure as do not conflict with the act. The defendants maintain that § 1-19 (a), as amended by Public Acts 1975, No. 75-342, and Public Acts 1984, No. 84-112, invalidates administrative regulations, such as those of the Commission on Medicolegal Investigations, that conflict with § 1-19. The Appellate Court relied on this provision of § 1-19 (a) to hold that § 1-19, as amended, superseded the commission’s regulations limiting public access to autopsy reports. Galvin v. Freedom of Information Commission, supra, 479.

In our view, the disposition of this case turns on whether the authority to restrict disclosure of autopsy reports stems solely from the regulations of the Commission on Medicolegal Investigations, or whether such authority is expressly derived from § 19a-411. In the former case, the restrictions would be void under the provision of § 1-19 (a) that invalidates regulations inconsistent with the Freedom of Information Act. In the latter case, the restrictions would be valid under the provision of § 1-19 (a) that permits other statutes to exclude statutorily defined records from the category of public records to which the Freedom of Information Act applies. We are persuaded that autopsy reports fall within the latter category and that restrictions on their disclosure are therefore valid.

General Statutes § 19a-411 is not a model of the draftsman’s art. We must rely on the tools of statutory construction to resolve its ambiguous and facially inconsistent provisions. It is an accepted principle of statutory construction that, if possible, the component parts of a statute should be construed harmoniously in order to render an overall reasonable interpretation. Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 637, 513 A.2d 52 (1986); Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985). Where statutes contain specific and general references covering the same subject matter, the specific references prevail over the general. Atwood v. Regional School District No. 15, 169 Conn. 613, 622, 363 A.2d 1038 (1975); Meriden v. Board of Tax Review, 161 Conn. 396, 402, 288 A.2d 435 (1971).

With these principles in mind, we turn to the construction of § 19a-411. The guidelines set forth in § 19a-411 for the disclosure of records of the medical examiner’s office vary according to the categories of persons seeking disclosure. The statute differentiates among three classes of record seekers. Two of the classes are restricted to specific types of persons. The third class, into which the defendants fall, is general, encompassing “the public.”

The first of the specific classes defined in § 19a-411 includes “[a]ny state’s attorney, chief of police or other law enforcement official.” Any such official “may, upon request, secure copies of such records or other information deemed necessary by him to the performance of his official duties.” (Emphasis added.) Thus, the statute expressly requires law enforcement officials to make some showing of necessity as a condition to obtaining the records of the investigations of the medical examiner’s office.

The second specific class in § 19a-411, less narrowly defined than the first, includes “[pjublic authorities, professional, medical, legal or scientific bodies or universities or similar research bodies.” Within this category, access to records kept by the medical examiner’s office is “in the discretion of the commission [on med-icolegal investigations] . . . upon such conditions and payment of such fees as may be prescribed by the commission. ” (Emphasis added.) The statute itself specifies one such condition: “where such information is made available for scientific or research purposes . . . the identity of the deceased persons shall remain confidential and shall not be published.” Thus, § 19a-411 delimits the rights of scientists and researchers, among others, to obtain access to records of the medical examiner’s office. The statute also expressly narrows the scope of access, when available, to prevent disclosure of the deceased’s identity.

The portion of § 19a-411 governing disclosure to the general public provides that autopsy reports and other investigative reports “may be made available to the public only through the office of the chief medical examiner and in accordance with section 1-19 and the regulations of the commission. Any person may obtain copies of such records upon such conditions and payment of such fees as may be prescribed by the commission, provided no person with a legitimate interest therein shall be denied access to such records.” (Emphasis added.) Unlike the language relating to the two specific classes of record seekers, the language in this portion of the statute does not set forth any express restrictions on disclosure. As the Appellate Court held, however, the statute does condition the availability of autopsy reports to the general public on compliance with the regulations of the commission on medicolegal investigations. Galvin v. Freedom of Information Commission, supra, 476.

The defendants, focusing on the language “in accordance with § 1-19,” argue that the legislature intended the records of the medical examiner’s office to be public records available for inspection under the provisions of § 1-19. This construction of § 19a-411, however, would allow the general provisions of the statute governing “the public” to supersede the express provisions governing the specifically enumerated classes of disclosure seekers. Under the defendants’ construction, for example, a representative of a medical school conceivably could evade the restrictions that § 19a-411 imposes on disclosure for scientific or research purposes by obtaining an autopsy report as a member of “the public,” whose right to disclosure, under the defendants’ construction, is limited only by § 1-19. Such a broad construction would defeat the policy behind the principle that specific statutory references prevail over general references where the same subject matter is concerned. See Atwood v. Regional School District No. 15, supra; Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 110, 214 A.2d 354 (1965).

The restrictions that § 19a-411 imposes on access to the records of the medical examiner manifest a consistent pattern. Both for specific classes, and for the general public, the statute embodies a policy of conditional rather than unfettered disclosure. With regard to public access to autopsy records, the statute expressly mandates that disclosure must be “in accordance with . . . the regulations of the commission.” In seeking copies of records, disclosure seekers are subject to “such conditions and payment of such fees as may be prescribed by the commission.” The source of the records is similarly restricted: the public’s access is “only through the office of the chief medical examiner.”

It is in this context that we construe the reference in § 19a-411 on which the defendants rely so heavily: “in accordance with § 1-19.” We cannot accept the defendants’ contention that, notwithstanding the remainder of § 19a-411, this lone, general reference evinces a legislative intent to make autopsy reports public records under § 1-19. To the extent that § 1-19 requires unconditional disclosure of the records of public agencies, its literal incorporation into § 19a-411 would defeat the policy of § 19a-411 and make its own provisions hopelessly inconsistent. We must, if possible, reconcile subsidiary provisions of a statute with the general tenor of the statute as a whole. See, e.g., Peck v. Jacquemin, supra, 63. Accordingly, we conclude that § 19a-411 incorporates only those provisions of § 1-19 that are not inconsistent with the former statute’s restrictions on disclosure. These provisions include, but are not limited to, the exceptions to disclosure set forth in § 1-19 (b), insofar as they apply to the types of records covered by § 19a-411.

The defendants cite other language in § 19a-411 to buttress their claim that they are entitled to unconditional access to the autopsy report. In particular, they point to a provision in § 19a-411 that requires authorities to seek judicial authorization to limit disclosure of medical examiners’ records. In relevant part, § 19a-411 provides that, “[u]pon application by the chief medical examiner or state’s attorney” to the superior court, the court “may limit such disclosure to the extent that there is a showing by the chief medical examiner or state’s attorney of compelling public interest against disclosure of any particular document or documents.” The defendants claim that this language requires a showing of “compelling public interest” before any person can be denied access to records of the medical examiner’s office.

We do not read the provision so broadly. We reiterate that the statute, considered in its entirety, conditions the right to disclosure on compliance with all relevant administrative regulations and other requirements. Accordingly, we construe the provision at issue to apply only when disclosure is sought to be denied to a party who otherwise complies with the conditions imposed by § 19a-411, including the administrative regulations to which the statute refers.

Our construction of § 19a-411 recognizes that the legislature might reasonably have considered the information contained in autopsy reports to be sufficiently sensitive to warrant the imposition of disclosure restrictions not applicable to other records of public agencies. We note, for example, that autopsy reports could contain information which, if disclosed, might cause embarrassment and unwanted public attention to the relatives of the deceased. See generally Meriden Record Co. v. Browning, 6 Conn. Cir. Ct. 633, 634, 294 A.2d 646 (1971). Section 19a-411’s prohibition on disclosure of the deceased’s identity in reports furnished for scholarly, research and other related purposes indicates legislative awareness of a privacy interest in the contents of autopsy reports.

In the case of public records, General Statutes § 1-19 (b) (2) provides an exception to disclosure under § 1-19 for “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” Yet neither § 1-19 nor any other provision of the Freedom of Information Act provides a mechanism whereby a deceased person’s family may invoke a right to privacy before the Freedom of Information Commission. In cases such as the one before us, the family members of the deceased have no standing to receive notice of an FOIC hearing, let alone to object or otherwise be heard at the hearing. Their interests must be represented by the official body seeking to oppose disclosure, in this case the chief medical examiner, whose standing to invoke their claims of privacy is questionable. Our construction of General Statutes § 19a-411 thus permits the vindication of privacy rights that cannot effectively be asserted under the Freedom of Information Act.

General Statutes § 1-19 (a) provides that all records kept on file by public agencies shall be public records “except as otherwise provided by any federal law or state statute.” General Statutes § 19a-411 provides such an exception for autopsy reports. We hold therefore that autopsy reports are not records accessible to the general public pursuant to General Statutes § 1-19. Accordingly, we hold that the Appellate Court erred in concluding that, notwithstanding § 19a-411, the disclosure regulations of the Commission on Medicolegal Investigations contravene the provisions of § 1-19 and are therefore void.

The judgment of the Appellate Court is reversed and the case is remanded with direction to sustain the appeal of the plaintiff from the order of the Freedom of Information Commission.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 1-19. access to public records, exempt records. (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.”

       General Statutes § 19a-406 provides in relevant part: “(formerly sec. 19-530). powers and duties of chief medical examiner, certified pathologists, autopsies, (a) The chief medical examiner shall investigate all human deaths in the following categories: (1) Violent deaths, whether apparently homicidal, suicidal or accidental, including but not limited to deaths due to thermal, chemical, electrical or radiational injury and deaths due to criminal abortion, whether apparently self-induced or not; (2) sudden or unexpected deaths not caused by readily recognizable disease; (3) deaths under suspicious circumstances; (4) deaths of persons whose bodies are to be cremated, buried at sea or otherwise disposed of so as to be thereafter unavailable for examination; (5) deaths related to disease resulting from employment or to accident while employed; (6) deaths related to disease which might constitute a threat to public health.”

       The regulations provide in relevant part: “Sec. 19-525-10. REPORTS and FORMS; INQUIRIES; RECORDS
      “(a) Reports of investigations and of autopsies are prepared on standard forms issued by the Office of the Medical Examiner. The original reports of investigations, reports of hospital deaths, and of authorized autopsies are transmitted to the Office of the Medical Examiner and copies are obtainable only from the Chief Medical Examiner.
      “The standard forms utilized by the Office of the Medical Examiner include: (1) telephone notice of death; (2) report of investigation; (3) hospital report of death; (4) identification form; (5) autopsy report; (6) receipt of evidence.
      “(b) Retention of records; inspection of records. The Office of the Medical Examiner keeps full and complete records of every death reported and investigated. These records pursuant to Section 1-19 of the Connecticut General Statutes, are not open to public inspection. They are retained at the Office of the Medical Examiner for a period of ten years from the date when the death is first reported to it; after which time, the complete files are microfilmed and the original records disposed of. ■
      “(c)----
      “Copies of reports prepared by personnel of the Office of the Medical Examiner, Assistant Medical Examiners and designated pathologists and the Toxicological Services Section of the Connecticut State Department of Health as well as other laboratories where pertinent, or detailed findings of other scientific investigations, are furnished upon payment of fees and upon conditions established by the Commission on Medicolegal Investigations. Copies of records are furnished to those having a legitimate interest therein upon completion of the investigation into the death and final certification of the cause of death. Certified copies of such records are admissible as evidence in any court in the State.
      * ** *
      “(2) Requests for records sought by an attorney acting on behalf of an estate should be accompanied by a duly executed authorization by the executor or administrator of the estate.
      “Requests by attorneys, insurance claims agents or other interested parties, other than the next of kin or persons acting on behalf of the next of kin, should state reasons for which records are required.
      “(3) Upon receipt of request from defense counsel of record in a criminal case for copies of reports in said case, the Chief Medical Examiner shall promptly notify the Office of the State’s Attorney which has jurisdiction of such request and shall release without charge therefor, within seven working days, to the defense attorney such copies as requested unless the Chief Medical Examiner is notified within said period of time that an application limiting disclosure has been made by the State’s Attorney pursuant to provisions of Section 19-535 of the Connecticut General Statutes.
      “The Chief Medical Examiner shall not release the records in a criminal case to anyone else requesting them until such time as the State’s Attorney has indicated in writing no objection. . . .”

       “[General Statutes] Sec. 19a-411. (Formerly Sec. 19-535). records. The office of the chief medical examiner shall keep full and complete records properly indexed, giving the name, if known, of every person whose death is investigated, the place where the body was found, the date, cause and manner of death and containing all other relevant information concerning the death and a copy of the death certificate. The full report and detailed findings of the autopsy and toxicological and other scientific investigation, if any, shall be a part of the record in each case. The office shall promptly notify the state’s attorney having jurisdiction of such death and deliver to him copies of all pertinent records relating to every death in which further investigation may be advisable. Any state’s attorney, chief of police or other law enforcement official may, upon request, secure copies of such records or other information deemed necessary by him to the performance of his official duties. The report of examinations conducted by the chief medical examiner, deputy chief medical examiner, an associate medical examiner or an authorized assistant medical examiner, and of the autopsy and other scientific findings may be made available to the public only through the office of the chief medical examiner and in accordance with section 1-19 and the regulations of the commission. Any person may obtain copies of such records upon such conditions and payment of such fees as may be prescribed by the commission, provided no person with a legitimate interest therein shall be denied access to such records. Upon application by the chief medical examiner or state’s attorney to the superior court for the judicial district in which the death occurred, or to any judge of the superior court in such judicial district when said court is not then sitting, said court or such judge may limit such disclosure to the extent that there is a showing by the chief medical examiner or state’s attorney of compelling public interest against disclosure of any particular document or documents. Public authorities, professional, medical, legal or scientific bodies or universities or similar research bodies may, in the discretion of the commission, have access to all records upon such conditions and payment of such fees as may be prescribed by the commission. Where such information is made available for scientific or research purposes, such conditions shall include a requirement that the identity of the deceased persons shall remain confidential and shall not be published.”

       At oral argument the defendants abandoned the claim, raised in their brief, that the Appellate Court erred in holding that the plaintiff was an aggrieved party with standing to appeal the decision of the Freedom of Information Commission.

       Public Acts 1975, No. 75-342, § 2 (a), provides in relevant part: “Section 1-19 of the General statutes is repealed and the following is substituted in lieu thereof:
      “(a) Except as otherwise provided by any federal LAW or state statute [or regulation], all records [made,] maintained or kept on file by any [executive, administrative legislative or judicial body,] PUBLIC agency, [commission or official of the state, or any political subdivision thereof,] whether or not such records are required by any law or by any rule or regulation, shall be public records and every [resident of the state] PERSON shall have the right to inspect or copy such records at such reasonable time as may be determined by the custodian thereof.”
      Public Acts 1984, No. 84-112, § 1, added the following sentence to § 1-19 (a): “Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.”

       Neither party disputes that § 1-19 and the regulations are in conflict. In particular, the commission’s regulations provide: “These records pursuant to Section 1-19 of the Connecticut General Statutes, are not open to public inspection.” Regs., Conn. State Agencies § 19-525-10 (b).

       We emphasize “expressly” to distinguish this type of statute from one which authorizes an administrative agency to adopt general rule-making procedures. An example of the latter type of statute is General Statutes § 4-167, which in subsection (a) (1) provides that administrative agencies shall “[a]dopt as a regulation a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information or make submissions or requests.”

       In the context of the entire statute, we are unpersuaded by the defendants’ claim that this language merely permits the commission to charge fees, such as copying charges, to compensate for the cost of disclosure.

       Examples of applicable provisions of § 1-19 (b)include the § 1-19 (b) (1) exception for “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure,” and § 1-19 (b) (2), pertaining to “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” We express no opinion on the applicability of these, or any other provisions of $ 1-19 (b), to this case.

       This construction is also supported by the language of § 19a-411 immediately preceding the excerpt on which the defendant relies: “Any person may obtain copies of such records upon such conditions and payment of such fees as may be prescribed by the commission, provided no person with a legitimate interest therein shall be denied access to such records. ” (Emphasis added.) This language is mirrored in the disclosure regulations of the Commission on Medicolegal Investigations, which provide in relevant part: “Copies of records are furnished to those having a legitimate interest therein . . . .” Regs., Conn. State Agencies § 19-525-10 (c). The defendants do not claim that they are persons with “a legitimate interest” within the meaning of either the statute or the regulation. We need not and do not consider, therefore, the validity of administrative distinctions between persons based on the presence or absence of a “legitimate interest” in disclosure.


author: Shea, J.

text:
    State of Connecticut v. Norman P. Higgins
    (12315)
    Peters, C. J., Shea, Dannehy, Callahan and M. Hennessey, Js.

      Argued October 8
    decision released December 2, 1986

      Robert F. McWeeny, with whom was Louis S. Avitabile, for the appellant (defendant).

      Walter H. Scanlon, chief assistant state’s attorney, with whom were Stephen M. Morelli, certified legal intern, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Shea, J.

After a jury trial the defendant was convicted of felony murder in violation of General Statutes § 53a-54c. On appeal he claims the trial court erred: (1) in denying his motion to separate his grand jury proceeding from that of his codefendant; (2) in excluding evidence of the circumstances of a crime committed by the codefendant, who testified for the prosecution, claimed to have been similar to the offense charged; (3) in excluding evidence that another witness for the state had been offered money to kill an unidentified person about the time the victim was murdered; (4) in permitting the codefendant to be recalled during the state’s case in chief for the purpose of correcting his previous testimony; (5) in the manner in which it instructed the jury upon the inference that could be drawn from the possession of recently stolen property that the possessor had participated in the theft; and (6) in charging upon the interest of the accused in the outcome of the trial in relation to the credibility of his testimony. We find no error.

The briefs indicate no dispute concerning the facts the jury could reasonably have found from the evidence supporting the verdict. According to the testimony of an accomplice, David Odom, he and the defendant planned to rob any homosexual person whom they might encounter. On the evening of December 28,1980, Odom and the defendant, in accordance with their plan, went to a location in downtown Waterbury where they remained until the murder victim drove up in a Volkswagen. After a conversation relating to homosexual acts, Odom and the defendant entered the car, and the victim drove them to his apartment.

At the apartment the three men had something to eat. The victim then proceeded to cut Odom’s hair. Some time thereafter Odom seized the victim and held him, while the defendant struck him several times with a hatchet he carried under his coat. The victim was also stabbed with a knife. The wounds from both weapons caused his death.

Odom and the defendant took from the victim’s apartment some cash and several items of personal property, which they loaded into his car. They returned to the YMCA where they had been residing, packed their bags, and departed that night for Florida in the victim’s car.

At trial the defendant admitted that on the night of the murder he had left Waterbury and had traveled to Florida with Odom, who informed him of the murder. He also admitted possessing and selling some personal property of the victim, claiming to have received it from Odom. The defendant denied, however, that he had been involved in killing the victim.

I

The grand jury in one proceeding returned a single indictment charging both Odom and the defendant with felony murder occurring during a robbery in violation of § 53a-54c. The defendant claims that the denial of his motion for a separate grand jury proceeding violated his constitutional right of confrontation because the evidence submitted to the grand jury included Odom’s confession to the police implicating the defendant in the crime. His inability to question Odom, who did not testify at the grand jury proceeding, made it impossible for the defendant to contest the credibility of the confession, which he claims was the only evidence before the grand jury that implicated him in the murder.

The defendant attempts to analogize his predicament to that of the defendant in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), where it was held that the admission of the confession of a codefendant at a joint trial violated the right of confrontation established by the sixth amendment to our federal constitution. See State v. McLucas, 172 Conn. 542, 560, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977). There is, however, no such right of confrontation at a grand jury proceeding under our federal constitution. In Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 100 L. Ed. 397 (1956), it was held that a grand jury indictment should not be quashed simply because all of the evidence at the proceeding was in the nature of hearsay. The grand jury procedure used in the federal courts does not allow a defendant to be present during the proceeding unless called to testify, and thus provides no opportunity for him to confront the witnesses against him. Fed. R. Crim. P. 6 (d); 1 C. Wright, Federal Practice and Procedure § 105. “Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence . . . .” United States v. Calandra, 414 U.S. 338, 345, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974).

The defendant urges that we adopt a different rule with respect to the right of confrontation before a grand jury in view of our customary practice of permitting a defendant to attend the grand jury proceeding and to question witnesses offered by the state. State v. Hamlin, 47 Conn. 95, 104-105 (1879). Although this practice has been imprecisely referred to as a “right” of a defendant; State v. Stallings, 154 Conn. 272, 282, 224 A.2d 718 (1966); it is simply a procedure, ordinarily salutary, “grounded upon sound judicial discretion which could be exercised to exclude the defendant for good cause.” State v. Avcollie, 188 Conn. 626, 632-33, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2888, 77 L. Ed. 2d 299 (1983); State v. Menillo, 159 Conn. 264, 278, 268 A.2d 667 (1970).

Even where we have found an abuse of discretion in excluding a defendant from the grand jury proceeding, we have refused to overturn a conviction in the absence of a showing of harm. State v. Avcollie, supra, 633. This defendant cannot demonstrate any harm from the joint grand jury proceeding because the confession of Odom, the accomplice, would have been available even to a separate grand jury summoned, in accordance with his motion, to consider only the charge against the defendant. At such a separate proceeding he could not have objected to the presentation of Odom’s confession, nor is it likely that he would have had an opportunity to question Odom, who never became a witness at the joint grand jury proceeding. The fact that Odom’s confession would not have been admissible at a trial does not preclude its use by the grand jury in ascertaining probable cause. Courts have frequently sanctioned such findings when based upon hearsay deemed to be reliable. Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); State v. Daley, 189 Conn. 717, 725, 458 A.2d 1147 (1983); 1 W. LaFave, Search and Seizure § 3.2 (d).

In any event, the defendant’s claim that hearsay evidence was used against him in the indicting process does not implicate a violation of any of his rights so as to warrant remanding the case to redetermine whether there is probable cause to prosecute him, when his guilt has already been found by a petit jury beyond a reasonable doubt. United States v. Mechanik, 475 U.S. 66, 106 S. Ct. 938, 89 L. Ed. 2d 50 (1986); State v. McGann, 199 Conn. 163, 169, 506 A.2d 109 (1986).

II

The defendant claims error in three rulings on evidence. We find none of the rulings to have been erroneous and, therefore, need not consider their effect on the outcome of the trial.

A

Before beginning his cross-examination of Odom, the defendant sought a ruling by the court as to whether he might inquire into the underlying circumstances of a 1977 incident in which Odom had been arrested for robbery in the first degree. Odom had pleaded guilty and had been convicted of two offenses resulting from this arrest, larceny in the second degree by theft of a motor vehicle in violation of General Statutes § 53a-123 (a) (l), a felony, and physically threatening another person with imminent serious physical injury in violation of General Statutes § 53a-62 (a) (l), a class A misdemeanor. The defendant claimed that in the occurrence upon which these convictions were based Odom had drawn a knife upon the driver of a car from whom he had hitchhiked a ride and thus had stolen the car. The court ruled against the offer of evidence concerning the facts underlying the convictions, but did authorize use of the larceny conviction itself, a felony, for the purpose of impeachment. See Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 471-72, 208 A.2d 341 (1965). The defendant excepted to the ruling.

The primary focus of the defendant’s argument at trial for the admissibility of the circumstances of the 1977 stolen car incident related to Odom’s credibility as a witness. This claim, that inquiry into the facts underlying a conviction beyond the bare facts contained in the judgment of conviction should be permitted for impeachment purposes, has not been briefed on appeal and must be deemed abandoned. McLaughlin Ford, Inc. v. Ford Motor Co.. 192 Conn. 558, 559-60, 473 A.2d 1185 (1984). See C. Tait & J. LaPlante, Connecticut Evidence § 7.21 (d), p. 113. The defendant also mentioned, however, that the evidence was admissible as similar misconduct tending to prove that Odom had murdered the victim of the 1980 crime without assistance. It is this ground for admissibility that the defendant urges on appeal.

“Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to a determination of the matter in issue.” State v. Briggs, 179 Conn. 328, 332, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). Logically relevant evidence, however, may be excluded if its probative value is outweighed by its unfairly prejudicial effect. State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). Various factors, such as the likely effect of the evidence upon the emotions of the jury, its tendency to create side issues and unfair surprise, should be considered. State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). The trial court is given broad discretion in deciding the relevancy of evidence. State v. Briggs, supra, 333.

In this case the proffered circumstances of the 1977 car theft by Odom have very little bearing upon the principal disputed issue at trial, whether the defendant participated in the robbery that resulted in the murder. Where evidence of other crimes is admitted to prove that the person who performed one offense also committed another, the methods used must be “ ‘so unusual and distinctive as to be like a signature.’ ” State v. Ibraimov, supra, 354, quoting C. McCormick, Evidence § 157. Odom’s taking of another vehicle by threatening the driver with a knife, as described in the defendant’s offer of proof, bears no such unique relationship to the present crime as to have any significant probative value upon the issue of whether the defendant participated in the crime of felony murder. That he committed a crime of violence by himself on that occasion is of no particular significance in proving whether he acted without assistance from the defendant on this occasion. In addition, the facts concerning the 1977 incident were disputed. We find no error in the trial court’s exercise of discretion to exclude such evidence.

B

During the cross-examination of another witness for the state, the defendant sought to elicit testimony that the witness, about a week before the murder, had “bragged” that a “guy from OTB was going to give [him] $2000 to kill someone after the holidays.” The court sustained the state’s objection to such testimony and the defendant excepted.

At trial the defendant claimed the evidence to be admissible for impeachment of the witness and also to show that the witness might have had a motive to kill the victim. On appeal the defendant urges only the latter ground, relying on the principle that “[i]t is always competent for a defendant to give evidence tending to show that another committed the crime with which the defendant has been charged.” State v. Hill, 196 Conn. 667, 674, 495 A.2d 699 (1985). In the absence of an offer to prove a relationship between the “someone” referred to in the purported statement of the witness and the murder victim, the evidence was properly excluded as too remote.

C

Odom testified that the defendant had provided the hatchet used in the murder and had also carried it under his coat and struck the victim with it. Just before the close of its case in chief, the state learned that the defendant planned to present a witness, Santos Estrada, who would testify that he had given the hatchet to Odom. When confronted by the state’s attorney with this discrepancy, Odom admitted that he had received the hatchet from Estrada. The state then recalled Odom to the witness stand for the purpose of changing his original testimony concerning the origin of the hatchet. The court overruled the defendant’s objection, and an exception was noted. Odom then testified that Estrada had given him the hatchet the day before the murder and that it had been transferred to the defendant on the night of the murder. He explained that he had lied previously because he had not wanted to involve Estrada or bring him to the attention of the police. Odom continued to maintain, however, that the defendant had used this hatchet to strike the victim.

The defendant contends on appeal that it was improper to permit Odom to be recalled during the state’s case in chief for the purpose of changing his testimony about the source of the hatchet in anticipation of Estrada’s contradiction of the original account. He cites several cases prohibiting the impeachment of a witness by the party calling him to testify. See State v. McCarthy, 197 Conn. 166, 177, 496 A.2d 190 (1985); State v. Jones, 166 Conn. 620, 622, 353 A.2d 764 (1974); State v. Mitchell, 169 Conn. 161, 164-65, 362 A.2d 808 (1975). We have recently abandoned the traditional rule against impeachment of one’s own witness on which the defendant relies. State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986). Even if we still adhered to the rule, it would not be applicable where the state learned, after the witness had testified, that his testimony was not entirely truthful. It is undoubtedly the duty of the state’s attorney “to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty.” State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973). Although the defendant suggests that the state could have fulfilled this obligation by recalling Odom in rebuttal after Estrada had testified, we can discern no more unfairness in the procedure followed by the state than in the familiar tactic employed by defendants of disclosing prior convictions on direct examination to soften the impact their revelation during cross-examination by the state might otherwise entail.

Ill

The defendant claims two errors in the charge to the jury: (1) that the instruction that an inference of participation in the theft could be drawn from the defendant’s possession of the victim’s property should have been balanced by an instruction upon an alternative inference that the defendant might have been guilty only of receiving stolen property; and (2) that the comment upon the interest of an accused in the outcome of the trial imposed a higher level of scrutiny on the defendant’s testimony than on that of other witnesses, such as the police officers and the accomplice who testified for the state, and thus infringed upon the constitutional right to testify.

A

“[T]he possession of property recently stolen, if unexplained and standing alone or without other facts pointing to a contrary conclusion, will justify the trier in drawing an inference that the possessor stole the property, and the inference may be sufficiently strong to warrant a conviction of a charge of theft.” State v. Palkimas, 153 Conn. 555, 558-59, 219 A.2d 220 (1966); State v. Donnelly, 124 Conn. 661, 663, 2 A.2d 214 (1938). The defendant does not challenge this principle but maintains that the instruction upon it “ignored an equally reasonable inference that the defendant was guilty of possession of stolen property,” leaving the jury with only the inference of participation in the theft. Essentially the same claim was expressed in the exception to the charge at trial.

In the context of the whole charge on the defendant’s admitted possession of some of the victim’s property, it is quite clear that the court did not suggest that participation in the theft was the only possible inference to be drawn. The court referred only to a “permissible inference” and not to a “presumption.” See Sandstrom v. Montana, 442 U.S. 510, 524, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); State v. Williams, 199 Conn. 30, 34-36, 505 A.2d 699 (1986). Permissive language was used throughout this portion of the charge. The court indicated that the jury could accept the defendant’s explanation of his possession of certain items, “thereby precluding the drawing of any inference that the defendant took part in the original theft of the articles at the scene of the crime, or by rejecting the explanation as not being reasonable, and then you may draw the inference that the defendant did take part in the original theft, or you may neither accept nor reject the inference and thereby attach no significance at all to the possession.” (Emphasis added.) As the trial court indicated in declining to revise the charge by mentioning an alternative inference that the defendant had received stolen goods in violation of General Statutes § 53a-119 (8), the jury might have been confused by such an instruction, because such a crime was not among the lesser included offenses discussed in the charge. The defendant has never contended that he was entitled to an instruction upon this crime as a lesser included offense. We conclude that this claim of error is without merit.

B

At trial the defendant excepted to the court’s instruction on the interest of the accused in the outcome of the trial in relation to the assessment of his credibility by the jury. The only ground stated by the defendant was that such an instruction denigrates the right of an accused under article first, § 8, of our state constitution “to be heard by himself.” He also referred to our footnote comment in State v. Kurvin, 186 Conn. 555, 570 n.3, 442 A.2d 1327 (1982), indicating that this court may in the future, especially in the case of a material variation in the language used in such an instruction from that we have previously approved, reconsider the question of “whether such a reference in the charge amounts to a violation of the defendant’s due process rights either under the state or federal constitution.”

The defendant claims that the language used in this portion of the charge did deviate from that we have approved for such an instruction in previous cases. No such claim was raised, however, at the time the defendant excepted to the charge, when he relied solely upon the state constitutional “right to be heard by himself” as barring any comment upon the interest of an accused who chooses to testify. Despite the absence of a specific exception to the form of the instructions, we have examined the nuances of language relied upon and find no significant variation from those we have approved previously. State v. Mack, 197 Conn. 629, 636-38 n.8, 500 A.2d 1303 (1985); State v. Avcollie, 188 Conn. 626, 636-38, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Mastropetre, 175 Conn. 512, 525, 400 A.2d 276 (1978); State v. Guthridge, 164 Conn. 145, 151 n.l, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973).

Although we have not previously considered the state constitutional claim raised by the defendant, we have frequently reviewed claims that a charge upon the interest of an accused denies him due process of law. “We have repeatedly considered and rejected this constitutional claim.” State v. Roos, 188 Conn. 644, 645, 452 A.2d 1163 (1982). In our previous consideration of the “right to be heard by himself and by counsel” provision of our state constitution, we have declined to construe it as creating a right of hybrid representation at a criminal trial; State v. Gethers, 197 Conn. 369, 393-94, 497 A.2d 408 (1985); or a right to override counsel’s determination that a particular witness should not be called to testify. State v. Davis, 199 Conn. 88, 91, 506 A.2d 86 (1986). The defendant assumes that this provision establishes a state constitutional right to testify. Such an assumption is doubtful, however, because, at the time of the adoption of our state constitution in 1818, a defendant was unable to testify as a witness in his own case because of his interest, a disability that was not removed until 1867, when the common law rule was modified by the statutory predecessor of General Statutes § 54-84. State v. Gethers, supra, 391-93. Even if we were to regard a defendant’s state constitutional right to be heard as an additional source of the constitutional right to testify that we have implicitly recognized under the aegis of due process of law provisions of our state and federal constitutions, the scope of the right to testify would not necessarily be changed by virtue of its multiple origin. In any event, the nature of that right would not necessarily be so enhanced as to preclude fair comment upon the interest of an accused.

We perceive no unfairness in the instruction given, particularly in the context of this case where the trial court, in addition to general instructions to consider the interest of any witness in weighing his testimony, also gave special instructions upon the credibility of accomplices, police officers and experts, who had testified for the state. We remain of the view that fair comment upon the interest of an accused, such as that in this case, violates no constitutional right and is not otherwise erroneous. State v. Mack, supra, 637-38.

There is no error.

In this opinion the other justices concurred.

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

       Another claim, that the court had erroneously excluded certain admissions of the witness David Odom, though briefed, was withdrawn during argument. It appears that these statements were admitted in evidence.

       General Statutes (Rev. to 1979) § 53a-123 provides in part: “(a) A person is guilty of larceny in the second degree when: (1) The property consists of a motor vehicle . . . ."

       General Statutes § 53a-62 provides in part: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       The court charged the jury as follows:
      “In this ease we have had testimony and evidence regarding the possession of stolen property stolen from [the victim] including—there were a great many items as you well know—but including among other items a diamond ring that was worn by the defendant which he had cut from his finger and was subsequently pawned. That was State’s Exhibit 40. State’s Exhibit 48, the silver ring with the turquoise and black stones in it, and the Volkswagen itself. That is three of the many items that it could be determined that Mr. Higgins had possession of.
      “All right. It’s the law in Connecticut that possession of property recently stolen can be accepted by any reasonable explanation for such possession or without facts pointing to a contrary conclusion that such possession would justify the jury in drawing an inference that the possessor stole the property, that is, that he took part as a principal in the original theft of the property. That is an inference that may be drawn by the jury. And if you find someone who is in possession of stolen property, you may, you don’t have to, you may not be able to, but you may draw an inference that if he possesses it, that did he get it at the scene? Was he a party to the theft itself? Reverting back to the incident that occurred in the house of [the victim], can you infer that he was present as a result of possessing these things?
      “In this case the defendant took the stand and he offered certain explanations how these and various other items stolen from [the victim] came into his possession. You the jury can accept these explanations as being reasonable and thereby precluding the drawing of any inference that the defendant took part in the original theft of the articles at the scene of the crime, or by rejecting the explanation as not being reasonable and then you may draw the inference that the defendant did take part in the original theft, or you may neither accept nor reject the inference and thereby attach no significance at all to the possession. The determination is entirely within your discretion as triers of the fact. But if you’re going to draw any inferences from this, they must be reasonable inferences and they must be logical inferences, and the inference that you would be drawing, is that from the fact that he had possession of stolen goods or you determined that he had possession of stolen goods. Can you infer from that fact that he therefore had something to do with stealing them, that he was there at the time they were stolen. Maybe that is why he has got possession of them. There is a permissible inference. It’s not compulsory, it’s not necessary that you make it, but if you believe the facts warrant it, that it does indicate and would permit you to draw an inference that he participated in the larceny itself, and if that is a reasonable and logical inference you believe to draw, then you may do so.

       “Now, as you know, the defendant in this case, Mr. Higgins, did take the witness stand and I would just say a word to you about the credibility of the testimony of an accused when he takes the witness stand.
      “In weighing the testimony that the defendant himself has given as a witness, you should apply the same principles by which the testimony of every other witness is tested. And that necessarily involves the consideration of his interest in the outcome of the particular trial. You will also consider the importance to him of the outcome of the trial and his motive, if any, for telling the truth or not telling the truth. An accused person having taken the witness stand stands before you just like any other person and is entitled to the same considerations. He must have his testimony measured in the same way as any other witness including, however, his interest in the verdict you are to render. Okay?”