author: Callahan, J. Santaniello, J., with whom, Dannehy, J.,

text:
    Barrie J. Petyan v. Grace Ellis
    (12644)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued January 15
    decision released June 17, 1986

      Thomas B. Wilson, for the appellant (plaintiff).

      James D. Reardon, for the appellee (defendant).
   Callahan, J.

The plaintiff, Barrie J. Petyan, brought suit against the defendant, Grace Ellis, a family practice physician, for (1) libel and (2) intentional infliction of emotional distress. After the plaintiff rested her case, the trial court granted the defendant’s motion for a directed verdict on both counts and rendered judgment for the defendant. From this judgment, the plaintiff appeals, claiming that the trial court erred in finding that (1) the defendant had an absolute privilege to publish an allegedly defamatory statement; (2) the publication was not libelous per se; (3) there was no evidence of malice; and (4) there was no evidence of the type of outrageous conduct necessary to sustain an action for the intentional infliction of emotional distress.

Directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982). A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979). In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. Pinto v. Spigner, 163 Conn. 191, 192-93, 302 A.2d 266 (1972).

In May, 1980, the defendant placed an advertisement in a local newspaper for a “Medical Assistant-Certified.” The plaintiff applied for the position and was hired after she was interviewed by the defendant. Although the plaintiff was not a certified medical assistant at that time, she had completed a two year associate degree course in that discipline at a junior college. Also prior to being hired by the defendant, she had worked for a four-doctor practice as a medical assistant. During the defendant’s interview of the plaintiff, the general duties of the position were discussed. Typing, while mentioned, was not emphasized. The plaintiff told the defendant that she could type but said that she was not “top-notch” and was not a “speed typist.” Approximately two weeks after the plaintiff began work, the defendant indicated she was dissatisfied with the plaintiff’s performance, particularly her typing ability. At the end of the third week, the defendant discharged the plaintiff and gave her an “unemployment notice” stating the reason for her termination to be “personal.” Shortly thereafter the defendant received a “fact-finding supplement” form from the employment security division of the state labor department which included the following language: “If you are unable to attend the scheduled hearing, please enter all pertinent information regarding the reason the above named claimant separated from your employ on 6-27-80.” The form contained no date for a scheduled hearing nor was the defendant notified of one. The defendant filled out the form stating that the plaintiff “was released from this employment for reasons of unsatisfactory performance and, mainly for fraud and lying,” and returned it to the employment security division.

At the unemployment compensation eligibility hearing, which the defendant did not attend, the plaintiff was shown the “fact-finding supplement” form that had been filled out by the defendant. She testified that she became “quite shook and extremely embarrassed.” She also said that for one and one-half years after this occurred “[she] felt betrayed, outraged, extremely upset, began to feel that I didn’t have any confidence left. I was afraid to go out and find another job. I thought that this had ruined my reputation forever, and I just couldn’t bring myself to answer another ad. I was just so terribly shook.”

The plaintiff’s first claim is that the trial court erred in finding that the defendant had an absolute privilege to publish the allegedly defamatory statement in the “fact-finding supplement” form. It has long been established that there is an absolute privilege for statements made in judicial proceedings. Briscoe v. LaHue, 460 U.S. 325, 331-32, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983); Blakeslee & Sons v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894). There is a “long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy.” Circus Circus Hotels, Inc. v. Witherspoon, 99 Nev. 56, 60, 657 P.2d 101 (1983). The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously. Hassett v. Carroll, 85 Conn. 23, 35, 81 A. 1013 (1911); Magnan v. Anaconda Industries, Inc., 37 Conn. Sup. 38, 43, 429 A.2d 492 (1980), rev’d on other grounds, 193 Conn. 558, 479 A.2d 781 (1984). “The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.” Circus Circus Hotels, Inc. v. Witherspoon, supra, 61; Butz v. Economou, 438 U.S. 478, 512-13, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978).

“The ‘judicial proceeding’ to which the immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or ‘quasi-judicial,’ in character.” Prosser & Keeton, Torts (5th Ed.) § 114, pp. 818-19. This privilege extends to every step of the proceeding until final disposition. Id. “[Ljike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are ‘quasi-judicial’ in nature.” Mock v. Chicago, Rock Island & Pacific R.R. Co., 454 F.2d 131, 133 (8th Cir. 1972); Thomas v. Petrulis, 125 Ill. App. 3d 415, 419, 465 N.E.2d 1059 (1984); Richardson v. Dunbar, 95 Ill. App. 3d 254, 256, 419 N.E.2d 1205 (1981); Circus Circus Hotels, Inc. v. Witherspoon, supra, 61.

In Magnan v. Anaconda Industries, Inc., supra, 42, the Superior Court, Berdon, J., held that an employer who discharges an employee has an absolute privilege when supplying the information necessary for the “unemployment notice” required by regulation. The court based its decision on the conclusion that the information is furnished in connection with a quasi-judicial function of an administrative board. That court found that in unemployment compensation proceedings “[t]he administrator, the referee and the review board, including witnesses in proceedings before them, are absolutely privileged to publish defamatory matters provided such statements have some relation to the quasi-judicial proceeding. Other jurisdictions have reached this same conclusion. White v. United Mills Co., 240 Mo. App. 443, 451, 208 S.W.2d 803 (1948); Kitchner v. State, 82 Misc. 2d 858, 860, 371 N.Y.S.2d 91 (1975); annot., ‘Defamation-Administrative Proceeding,’ 45 A.L.R.2d 1296, 1303.” Id., 45.

We agree with the conclusion of the court in Magnan and extend its reasoning to include the information supplied by an employer on the “fact-finding supplement” form of the employment security diviion of the state labor department. In the processing of unemployment compensation claims, the administrator, the referee and the employment security board of review decide the facts and then apply the appropriate law. General Statutes §§ 31-241, 31-242 and 31-249. The employment security division of the labor department, therefore, acts in a quasi-judicial capacity when it acts upon claims for unemployment compensation.

The statement at issue in the present case was made at the behest of the employment security division on a form it sent to the defendant. The form indicated that, if the defendant was unable to attend the plaintiff’s unemployment compensation hearing, the defendant should “enter all pertinent information regarding the reason” the plaintiff was separated from the defendant’s employ. The form also contained language that the defendant certified the statement to be true and correct. Although there was no evidence that the “fact-finding supplement” form was required by statute or regulation, that is immaterial. The information that the employment security division requested was solicited by the administrative agency for its official use and the defendant was admonished that it need be “true and correct.” There is no reason to believe that the defendant thought this statement would be used for other than administrative purposes. General Statutes § 31-254 specifically states that “[t]he administrator may require from an employer . . . any sworn or unsworn reports with respect to persons employed by him which are necessary for the effective administration of this chapter. Information thus obtained shall not be published or be open to public inspection . . . but any claimant at a hearing before a commissioner shall be supplied with information from such records to the extent necessary for the proper presentation of his claim.”

In the present case the defendant’s statement concerning her reasons for discharging the plaintiff from her employ was requested by the employment security division in lieu of her live testimony. The statement was obviously pertinent to the purposes of the hearing and was a communication elicited in connection with and made during an administrative proceeding which was quasi-judicial in nature. It was analogous to a pleading or testimony in a judicial proceeding. Viewed in that light, the dictates of public policy require that an employer involved in an unemployment compensation proceeding be able to state candidly his or her reasons for terminating an employee as long as the employer’s statement bears a reasonable relation to the purpose of the proceeding. Otherwise employers might be reluctant to respond to the employment security division at all or their reply might be colored by fear of subsequent litigation or liability. See Briscoe v. LaHue, supra, 331-32.

Officials of the employment security division have subpoena powers and undoubtedly could have compelled the defendant to attend and testify at the plaintiff’s hearing. See General Statutes § 31-245. There is no doubt that her testimony under those circumstances would have been absolutely privileged. It seems incongruous then to accord less than an absolute privilege to her statement which was elicited by the administrative agency for use at the same hearing. The absolute privilege would serve the same purpose in both instances. We recognize that the witness analogy is less than perfect because a witness is required to testify under oath and, therefore, is subject to criminal penalties for perjury, which presumably inhibit falsification. If, however, the “substantial rights of the parties” required it, the defendant could have been summoned to testify under oath and subjected to criminal penalties if she perjured herself. General Statutes §§ 31-244 and 53a-156. There is, of course, no “really effective civil remedy against perjurers”; that lack is “simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.” Prosser & Keeton, Torts (5th Ed.) § 114, p. 817. The common law absolute privilege itself is not confined to the testimony of a witness but extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy. Id. Thus it applies to statements made in pleadings or other documents prepared in connection with a court proceeding. Id.; 1 Harper & James, Torts § 5.22, p. 426. The “fact-finding supplement” in this case, containing the alleged defamatory statement relied upon by the plaintiff, appears to serve the same function in the administrative proceeding before the unemployment security division as that of pleadings and similar documents in court proceedings. The defendant therefore should be accorded the same absolute privilege whether she testifies in person in response to a subpoena or submits her testimony in writing at the request of the administrative agency.

It is true that only qualified immunity exists in some areas that have a connection to the judicial process, particularly where constitutional rights of an individual are concerned. For example, a police officer sued for false arrest under 42 U.S.C. § 1983 has only a qualified immunity; Pierson v. Ray, 386 U.S. 547, 557, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967); a complaining witness who initiates a prosecution and procures the issuance of an arrest warrant has only a qualified immunity at common law and a police officer who submits an affidavit for an arrest warrant has only a qualified immunity for purposes of 42 U.S.C. § 1983. Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). In none of those instances, however, is the factfinding process of a tribunal directly affected. There has been no abrogation, unless by statute, of the common law protection of absolute privilege for communications or testimony elicited in connection with and pertinent to an ongoing judicial or quasi-judicial proceeding.

We hold, therefore, that an absolute privilege exists and the trial court was not in error when it granted the defendant’s motion for a directed verdict on this issue. This holding also resolves the plaintiff’s claims that the trial court erred in finding that the publication of the statement was not libelous per se and in finding that there was no evidence of malice. We need not address those claims because our conclusion that there was an absolute privilege bars any recovery by the plaintiff even if we were to conclude that the publication of the statement was libelous per se or that a jury could have found malice.

The plaintiffs final claim is that the trial court erred in directing a verdict for the defendant on the count of intentional infliction of emotional distress. She claims there was sufficient evidence to submit that issue to the jury.

The tort of intentional infliction of emotional distress has been recognized and Murray v. Bridgeport Hospital, 40 Conn. Sup. 56, 62, 480 A.2d 610 (1984), provides appropriate guidelines for determining whether a successful cause of action will lie. “In order for the plaintiff to prevail in a case for liability under . . . [the intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. Hiers v. Cohen, 31 Conn. Sup. 305, 329 A.2d 609 (1973); 1 Restatement (Second), Torts § 46.” Murray v. Bridgeport Hospital, supra, 62; see United Services Automobile Assn. v. Glens Falls Ins. Co., 350 F. Sup. 869, 872 (D. Conn. 1972); U.S.A. Oil, Inc. v. Smith, 415 So. 2d 1098, 1100 (Ala. App. 1982); Counce v. M.B.M. Co., 266 Ark. 1064, 1068, 597 S.W.2d 92 (1980); Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611 (1977); Agis v. Howard Johnson Co., 371 Mass. 140, 145-46, 355 N.E.2d 315 (1976); Pyle v. Pyle, 11 Ohio App. 3d 31, 34, 463 N.E.2d 98 (1983); Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145 (1974); Sheltra v. Smith, 136 Vt. 472, 476, 392 A.2d 431 (1978); Prosser & Keeton, supra, § 12, p. 54.

The trial court found that there was no evidence from which the jury could reasonably have found that the defendant’s conduct was intentional or outrageous and therefore apparently determined that the first and second requirements to sustain a cause of action for the intentional infliction of emotional distress were not proven. We agree with the trial court’s conclusion that the defendant’s conduct could not be considered outrageous. Regardless of how the defendant’s conduct is categorized, however, since her comment in the “fact-finding supplement” was absolutely privileged, she would not be liable for the intentional infliction of emotional distress in any event. See Deaile v. General Telephone Co. of California, 40 Cal. App. 3d 841, 115 Cal. Rptr. 582 (1974); Agostini v. Strycula, 231 Cal. App. 2d 804, 42 Cal. Rptr. 314 (1965).

The Restatement of Torts (1948 Sup.) § 46 provides “[o]ne who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily injury resulting from it.” (Emphasis added.) Although 1 Restatement (Second), of Torts (1965) § 46 does not contain the same reference to privilege, the issue of privilege, in the context of the intentional infliction of emotional distress, is discussed in comment (g): “The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.” Since the defendant had an absolute privilege to state her reasons for the termination of the plaintiffs employment in the “fact-finding supplement” solicited by the employment security division, she was exercising a legal right in a permissible fashion and cannot be held liable for the intentional infliction of emotional distress. See Batchelor v. Sears, Roebuck & Co., 574 F. Sup. 1480, 1489 (E.D. Mich. 1983); Novosel v. Sears, Roebuck & Co, 495 F. Sup. 344, 347 (E.D. Mich. 1980). The trial court, therefore, did not err when it directed a verdict for the defendant on this count.

There is no error.

In this opinion Peters, C. J., and Shea, J., concurred.

Santaniello, J., with whom, Dannehy, J.,

joins, dissenting. I respectfully disagree with the result and the reasoning of the majority opinion. The court announces today that employers may intentionally lie on unemployment compensation commission factfinding forms to obtain a chance at reducing their unemployment compensation contributions. I believe that such a result is unwarranted and defeats the purpose of our unemployment compensation laws.

The majority reasons that if the statement was made in the context of a quasi-judicial proceeding, then absolute immunity is required. Although absolute immunity may be necessary in many instances where quasi-judicial proceedings are involved, absolute immunity is not the rule, but rather the exception. In Blakeslee & Sons v. Carroll, 64 Conn. 223, 234, 29 A. 473 (1894), we held that the rule of absolute immunity should be narrowly limited. Indeed, Professor Prosser, upon whom the majority relies, wrote that “[ajbsolute immunity has been confined to a very few situations where there has been an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant’s motives.” Prosser & Keeton, Torts (5th Ed. 1985) § 114, p. 816.

The court’s opinion states that “[tjhere has been no abrogation, unless by statute, of the common law protection of absolute privilege for communications or testimony elicited in connection with and pertinent to an ongoing judicial or quasi-judicial proceeding,” but this is inaccurate. A number of courts, including the United States Supreme Court, disapprove of blind, blanket imposition of absolute immunity for all persons connected with judicial and quasi-judicial proceedings and have held that qualified immunity is preferable in many instances. In Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978), the Supreme Court held that qualified immunity should be applied in cases where a federal official is charged with unconstitutional conduct, unless the official can show that public policy requires absolute immunity be applied in his case. The case involved a civil suit brought against a federal administrative prosecutor, federal agency officials and a group of auditors who each played a part in bringing an administrative complaint against the plaintiff. The court permitted the prosecutor to claim absolute immunity but remanded the case for a determination of whether the auditors and others were entitled to that protection. On remand, the District Court found that the auditors who testified against the plaintiff were only afforded qualified immunity. Economou v. Butz, 466 F. Sup. 1351, 1363 (S.D.N.Y. 1979), aff’d without opinion, 633 F.2d 203 (2d Cir. 1980); see generally 5 Davis, Administrative Law §§ 27:22, 27:23; see also Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) (for “executive officers in general . . . qualified immunity represents the norm”).

Most telling is the recent case of Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986), where the court held that a police officer sued under 42 U.S.C. § 1983 is accorded only qualified immunity from suit where he intentionally falsified an affidavit in applying for an arrest warrant. The court stated that the police officer, much like a complaining witness at common law, is not entitled to absolute immunity because his action was more attenuated with the judicial process than that of a prosecutor. Id., 341-42. The court undertook a policy approach weighing the need for absolute immunity under the circumstances.

I would posit that in this case, as in all cases where we are asked to grant absolute immunity, we should balance the need for such protection against the societal costs of affording it. The relevant policy considerations are: the effect that qualified immunity rather than absolute immunity would have on the integrity of the judicial or quasi-judicial process, the possible motives for and frequency of malicious conduct under the circumstances and the need to provide a remedy for wrongful conduct in similar cases. Analyzing these concerns in this case, I feel that qualified immunity (again, the preference) is more appropriate.

Contrary to the majority’s assertion, imposing qualified rather than absolute privilege would not impair the ability of the unemployment compensation commission to elicit the facts necessary for a fair determination of benefits. As the United States Supreme Court has written, “the qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, supra, 341. To overcome the qualified immunity defense, the plaintiff must ordinarily show malice, a stiff requirement which will afford an honest employer all the protection he needs. Thus, an employer will have no reason to fear being candid if qualified rather than absolute immunity were granted. Limiting the likelihood of intentional lies will, if anything, aid the unemployment compensation commission in its search for the truth concerning the reasons for discharge.

The most significant policy concern I have involves the possible motives for lying. Under General Statutes § 31-225a an employer’s contribution is linked to the number of his employees receiving benefits. See Burnham v. Administrator, 184 Conn. 317, 319-20, 439 A.2d 1008 (1981). It is in the employer’s own interest, therefore, to intentionally lie that the employee was discharged for cause. This motive, coupled with the usual animosity present between an employer and an employee who was fired, presents a case where intentional lying is more likely. The employer can act with vengeance or discriminatory purpose and the employee would have no recourse. To clothe an employer with absolute immunity would only further encourage such behavior.

The last of the policy factors, that of remedy, also clearly weighs in favor of qualified immunity. We should recognize an employee’s right to protect his good name and protect his right to unemployment benefits by granting employers only qualified immunity under these circumstances. As we stated in Blakeslee & Sons v. Carroll, supra, 235, the doctrine of absolute privilege is flatly inconsistent with the rule that there should be a remedy for every wrong. Furthermore, it would be blatantly unfair to give an employer a free chance at reducing his contribution to the unemployment compensation fund by making it more difficult for his former employee to obtain the benefits to which he is entitled. Indeed, it defeats the purposes of the unemployment compensation act itself. See Brittany Farms Health Center, Inc. v. Administrator, 177 Conn. 384, 386, 418 A.2d 52 (1979).

The majority attempts to justify the imposition of absolute immunity on the ground that statements made in the commission’s factfinding forms are the functional equivalent of “testimony in a judicial proceeding” or “pleadings and similar documents in court proceedings.” Such analogies are wanting in several respects. Pleadings are by their nature, allegations and are qualified as such. The statements made by the employer in this context are purportedly true and are relied upon by the commissioner in the making of his award. Thus, statements made on the commissioner’s factfinding form are potentially much more misleading and damaging than pleadings. As to the testimony of witnesses, the majority concedes that the “analogy is less than perfect because a witness is required to tesify under oath and, therefore, is subject to criminal penalties for perjury,” but goes on to argue that the commissioner’s subpoena power cures this problem. I fail to see how the power of subpoena will in any way inhibit falsification. The employer still has the opportunity to give a statement “in lieu of testimony” and to misrepresent the reasons for discharge without the fear of either criminal prosecution or civil liability. The fear of being embarassed if subpoenaed will in all likelihood not deter this type of malicious conduct. Thus, the analogy would be appropriate only if the commission made employers subject to perjury under General Statutes §§ 53a-156 and 53a-157 for falsifying the forms.

The idea of granting only qualified immunity to employers in these circumstances is not new. A number of states have passed laws which provide that employer communications to the commission are absolutely privileged “unless the same be false in fact and maliciously written, sent, delivered, or made for the purpose of causing a denial of benefits . . . .” Miss. Code Ann. § 71-5-131; accord HI. Ann. Stat. c. 48, § 640; Md. Ann. Code art. 95A, § 12 (g); Neb. Rev. Stat. § 48-612. Many states have legislatively mandated absolute privilege but only a very small number have done so judicially. See comment, “Unemployment Compensation—Defamation—Required Separation Reports and Liability Based Upon Defamatory Matter Contained Therein,” 37 Notre Dame Law. 421, 422 (1962); 45 A.L.R.2d 1296,1302-1304. Frankly, I do not find persuasive the two out-of-state lower court cases cited by the majority, White v. United Mills Co., 240 Mo. App. 443, 208 S.W.2d 803 (1948), and Kitchner v. State, 82 Misc. 2d 858, 371 N.Y.S.2d 91 (1975). Other states may have considered absolute privilege necessary because their statutes require employers under penalty to file a factfinding report with the commission. See comment, supra, 422. Other states also may not give the employer incentive to lie because they structure contribution payments differently.

In conclusion then, under the equities of this case, I do not believe we should give an employer the freedom to act with impunity where it would open the door to abuse of the administrative machinery designed by the legislature to aid the unemployed. A qualified immunity is preferable here and the plaintiff should be permitted to recover if able to show that the defendant acted with malice. See Blakeslee & Sons v. Carroll, supra, 238. In this case there was sufficient evidence of malice to submit the issue to the jury. See Hassett v. Carroll, 85 Conn. 23, 36, 81 A. 1013 (1911). I would accordingly find error in the trial court’s ruling on the defendant’s motion for a directed verdict.

       “[Regs., Conn. State Agencies] Sec. 31-222-9. unemployment notices, RETURN-TO-WORK NOTICES, LOW EARNINGS REPORTS AND NOTICE OF LESS THAN FULL-TIME EMPLOYMENT
      “All employers whether or not subject to the act shall submit the following reports at the times and under the conditions specified:
      “(1) an unemployment notice. This notice shall be prepared on forms made up by the administrator and shall contain the information required by such forms and shall be given to the worker immediately upon termination of employment or layoff, whatever the cause of such termination or layoff. This notice shall not be used or required for any purpose other than the filing of a claim for unemployment compensation benefits by the worker. ...”

       General Statutes (Rev. to 1979) § 31-241 as amended by Public Acts 1979, No. 79-187, § 2, provides: “Sec. 31-241. initial determination, notice; appeal. The administrator, or a deputy or representative designated by him and hereinafter referred to as an examiner, shall promptly examine the initiating claim and, on the basis of the facts found by him, shall determine whether or not such claim is valid and, if valid, the weekly amount of benefits payable and the maximum possible duration thereof. He shall promptly notify the claimant of the decision and the reasons therefor, which notification shall set forth the provision of this section for appeal. The administrator, or deputy or representative designated by him and hereinafter referred to as an examiner, shall promptly examine each claim for a benefit payment for a week of unemployment and, on the basis of the facts found by him, shall determine whether or not the claimant is eligible to receive such benefit payment for such week and the amount of benefits payable for such week. The determination of eligibility by the administrator or an examiner shall be based upon evidence presented in person or in writing at a hearing called for such purpose. Notice of the decision and the reasons therefor shall be given to the claimant. The employers against whose accounts charges may be made due to any benefits awarded by the decision shall be notified of the initial determination of the claimant’s benefit entitlement at the time notice is given to the claimant, which notification shall set forth the provisions of this section for appeal, provided any employer who claims that the claimant is ineligible for benefits because his unemployment is due to the existence of a labor dispute at such employer’s factory, establishment or other premises, shall be notified of the decision and the reasons therefor, whether or not benefits awarded by the decision might be charged against such employer’s account. The employer’s appeal rights shall be limited to the first notice he is given in connection with a claim which sets forth his appeal rights, and no issue may be appealed if notice of such issue and the right to appeal such issue had previously been given. The decision of the administrator shall be final and benefits shall be paid or denied in accordance therewith unless the claimant or any of such employers, within fourteen days after such notification was mailed to his last-known address, files an appeal from such decision and applies for a hearing. If the last day for filing an appeal falls on any day when the offices of the employment security division are not open for business, such last day shall be extended to the next business day. Where the administrator or examiner has determined that the claimant is eligible for benefits, benefits shall be paid promptly in accordance with the determination regardless of the pendancy of the period to file an appeal or the pendency of such appeal. No examiner shall participate in any case in which he is an interested party. Any person who has filed a claim for benefits pursuant to an agreement entered into by the administrator with the proper agency under the laws of the United States, whereby the administrator makes payment of unemployment compensation out of funds supplied by the United States, may in like manner file an appeal from the decision of such claim and apply for a hearing, and the United States or the agency thereof which had employed such person may in like manner appeal from the decision on such claim and apply for a hearing.”

       “[General Statutes] Sec. 31-242. referee’s hearing of claim on APPEAL FROM EXAMINER: DECISION NOTICES; DISQUALIFICATION OF REFEREE, challenge. Unless such appeal is withdrawn, the referee shall promptly hear the claim, de novo, and render a decision thereon. Unless he has waived the notice or agreed to a shorter period of time, notice, by mail or otherwise, of the time and place of such hearing shall be given each interested party not less than five days prior to the date appointed therefor. The parties, including the administrator, shall be notified of the referee’s decision, which notification shall be accompanied by a finding of the facts and the conclusions of law upon which the decision is based. Such hearing shall be held by the referee designated by the chief referee. No referee shall hear an appeal if he has any interest in the proceeding or in the business of any party to the proceeding. A challenge to the interest of a referee may be made by any party to the proceeding. The decision on said challenge shall be made by the chairman of the board, after proceedings held in accordance with such rules of procedures as the board may establish.”

       “[General Statutes (Rev. to 1979)] Sec. 31-249. appeal from employment SECURITY REFEREE’S DECISION TO EMPLOYMENT SECURITY BOARD of review. At any time before the referee’s decision has become final within the periods of limitation prescribed in section 31-248, any party including the administrator, may appeal therefrom to the board. Such appeal shall be filed and may be heard in any local office of the employment security division or, in the case of an interstate claim, in the office in which the claim was filed, or in the office of the appeals referee or the board of review. Such appeal to the board shall be heard on the record of the hearing before the referee, provided if the ends of justice so require, the board may hear additional evidence or testimony. The board may remand the case to a referee for such further proceedings as it may direct. Upon the final determination of the appeal by the board, it shall issue its decision, affirming, modifying or reversing the decision of the referee. In any case in which the board modifies the referee’s findings of fact or conclusions of law, the board’s decision shall include its findings of fact and conclusions of law.”

       “[T]he rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” (Emphasis added.) Prosser & Keeton, Torts (5th Ed.) S 12, p. 60.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    Sandra Zlokower v. Commission on Human Rights and Opportunities et al.
    (12729)
    Peters, C. J., Shea, Santaniello, Callahan and F. Hennessy, Js.
    Argued March 12
    decision released June 17, 1986

      Roger E. Koontz, with whom, on the brief, was David Silverstone, for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (named defendant).
   Santaniello, J.

The dispositive issue on this appeal is whether a prospective tenant must show that he is qualified for certain housing as part of his prima facie case of discrimination under General Statutes § 46a-64 (a). On March 26, 1982, a hearing officer appointed by the state commission on human rights and opportunities (hereinafter the CHRO) found that the plaintiff, Sandra Zlokower, had denied the complainant, Conrad Pelletier, full and equal access to a public accommodation, in violation of General Statutes § 46a-64 (a). The plaintiff appealed the hearing officer’s decision to the Superior Court pursuant to General Statutes § 4-183, but the court, E. O’Connell, J., affirmed the agency’s findings. The plaintiff now appeals the judgment of the Superior Court, claiming that the court erred: (1) in affirming the hearing officer’s finding that the complainant had established a prima facie case of discriminatory action; (2) in concluding that the officer applied the correct standard in evaluating the plaintiff’s nondiscriminatory reasons for refusal to rent; (3) in concluding that there was sufficient evidence to support the officer’s finding that the plaintiff had engaged in discriminatory practices; and (4) in affirming the officer’s order of relief. We find error on the first of these issues and remand the matter for further proceedings.

After conducting a formal hearing on December 18, 1981, the hearing officer found the following facts. In 1972, the complainant, his sister, his brother and their parents moved into a six room, second floor apartment at 137 Whitney Street in Hartford. The building is a three-family structure and is located in a residential neighborhood. In 1976 the plaintiff purchased the property and executed a written lease with the complainant’s parents. As of May 1, 1981, only the complainant and his mother, Lumina Pelletier, remained as tenants in the apartment. The complainant contributed at least one half of the rent at that time.

In early May, 1981, the plaintiff notified the complainant and his mother that the rent would be increased by $105 per month. A meeting was held among the three at which Lumina Pelletier told the plaintiff that she would be vacating the apartment. The complainant offered to remain in the apartment if he were allowed roommates to share in the rent, and offered to give the plaintiff the opportunity to interview potential roommates and check their references. No specifics as to the complainant’s offer were discussed at this time and no particular names were mentioned as possible roommates. The plaintiff refused the offer, whether or not the roommates were made parties to the lease, stating that she preferred couples or families because they were more “stable.” The plaintiff never offered the complainant a lease and later agreed to rent the apartment to a married couple. Another married couple who applied for the apartment had been rejected because they were students and were unwilling to stay in the apartment for more than a year.

On the basis of these and other facts, the tribunal concluded that the plaintiff had discriminated against the complainant, in violation of General Statutes § 46a-64 (a), because he was a single male. On March 26, 1982, it ordered, inter alia, that the complainant be allowed to rent the apartment with a roommate for the term of one year and that he recover attorney’s fees in the amount of $500 for the costs of defending an illegal entry and detainer complaint filed by the plaintiff, plus the amount incurred in prosecuting the administrative complaint.

The plaintiff’s primary claim on appeal is that the complainant failed to make out a prima facie case of prohibited discriminatory action and that the tribunal applied an incorrect standard in assessing whether such a case had been established.

This case presents the first occasion for us to consider the burden of proof a complainant must bear under General Statutes § 46a-64. In addressing claims brought under the statute, we are properly guided by the case law surrounding the federal fair housing laws, 42 U.S.C. §§ 3601 through 3631, even though there may be differences between the state and federal statutes. This approach is consistent with our practice of looking to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute. See Department of Health Services v. CHRO, 198 Conn. 479, 489, 503 A.2d 1151 (1986); Wroblewski v. Lexinqton Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982).

The federal courts in construing the federal fair housing laws have uniformly adopted the evidentiary requirement articulated by the United States Supreme Court in federal employment discrimination cases, that the complainant must at the outset establish a prima facie case of discrimination. See, e.g., Phillips v. Hunter Trails Community Assn., 685 F.2d 184, 190 (7th Cir. 1982); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1038 (2d Cir. 1979); Smith v. Anchor Bldg. Corporation, 536 F.2d 231, 233 (8th Cir. 1976); In re Malone, 592 F. Sup 1135, 1166 n.21 (E.D. Mo. 1984); see also McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Only when such a threshold has been reached does the burden shift to the respondent to show a legitimate nondiscriminatory reason for the challenged action. Phillips v. Hunter Trails Community Assn., supra; see also McDonnell Douglas Corporation v. Green, supra. These standards have been adopted by this court in state employment discrimination cases; Wroblewski v. Lexington Gardens, Inc., supra, 53; and are applicable in actions brought under General Statutes § 46a-64.

The plaintiff claims that as part of his prima facie case, the complainant was required to show that he was willing to accept the legitimate business terms established by the plaintiff as a condition of leasing. She argues that it was made clear that no subleasing would be allowed and that the complainant never offered to make the proposed roommates parties to the lease. The hearing officer ruled and the Superior Court affirmed that the complainant had no burden under General Statutes § 46a-64 to show that he had met these terms. We agree with the plaintiff that the complainant must, as part of his initial burden, introduce evidence that he was ready to accept the legitimate objective requirements of tenancy and we therefore conclude that the hearing officer erred in holding to the contrary.

Under federal law an individual who alleges intentional discrimination in housing may meet his initial burden of establishing a prima facie case by proving that (1) hé is a member of the statutorily protected class, (2) he has applied for and was qualified to rent or purchase the unit involved, (3) he was rejected by the respondent, and (4) the housing opportunity remained available thereafter. Phillips v. Hunter Trails Community Assn., supra; Robinson v. 12 Lofts Realty, Inc., supra; Davis v. Mansards, 597 F. Sup. 334, 345 (N.D. Ind. 1984); see generally Schwemm, Housing Discrimination Law (1983) pp. 405-406. An individual is deemed “qualified” if he meets the legitimate objective criteria established by the landlord. Robinson v. 12 Lofts Realty, Inc., supra; Duckett v. Silberman, 568 F.2d 1020, 1023 (2d Cir. 1978); Smith v. Anchor Bldg. Corporation, supra; Williams v. Matthews Co., 499 F.2d 819, 826 (8th Cir. 1974). The element that the individual meet the objective business requirements of tenancy is a common sense threshold for making out a case of discrimination. No relief is justified unless the complainant can show that, in the absence of discriminatory intent, he would have been qualified. Although we ordinarily will grant an administrative agency a measure of deference in interpreting the statutes governing its responsibilities; Board of Trustees v. FOIC, 181 Conn. 544, 552, 436 A.2d 266 (1980); in this case we cannot support the CHRO’s position. Reflecting the federal rule in this area, we hold that the complainant, in cases arising under General Statutes § 46a-64, bears the initial burden of showing that he meets the legitimate objective requirements of tenancy. See also Joplin v. Missouri Commission on Human Rights, 642 S.W.2d 370, 372 (Mo. App. 1982).

The CHRO argues that even if the complainant bore the initial burden of showing that the legitimate business requirements of tenancy were met, the hearing officer’s order can still be affirmed because her findings support a showing that the complainant made out a prima facie case. Specifically the CHRO claims that the hearing officer’s conclusion that the plaintiff also refused to rent the apartment to the complainant if his roommates were parties to the lease refutes the plaintiff’s contention that the complainant was not qualified. While it is true that the hearing officer’s finding, if properly reached, would have supported the conclusion that the complainant had made out a prima facie case, the hearing officer’s findings were based on the erroneous assumption that the complainant had no initial burden to prove that the plaintiffs business requirements had been met. The officer’s findings relating to those requirements therefore are invalid and cannot be used to affirm the order.

Thus, because the hearing officer failed to evaluate the sufficiency of the complainant’s case using the proper standard, the trial court erred in affirming the officer’s findings, and the case must be remanded to the officer for reconsideration. See Department of Health Services v. CHRO, supra, 488. On remand, the hearing officer must consider whether the complainant established the elements of a prima facie case as set out above, including the requirement that he comply with the objective terms of tenancy. In the context of the plaintiffs specific claims, the officer must determine: (1) whether the plaintiff objectively required that there would be no subleasing; (2) whether the prohibition of subleasing is a legitimate business requirement; and (3) whether the complainant offered to comply with this condition, but was nevertheless refused tenancy.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to remand the case to the commission on human rights and opportunities for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 46a-64 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, marital status, age, mental retardation or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; (2) to discriminate, segregate or separate on account of race, creed, color, national origin, ancestry, sex, marital status, age, mental retardation or physical disability, including, but not limited to, blindness or deafness.”

       Title 42 of the United States Code, § 3604, provides: “As made applicable by section 3603 of this title and except as exempted by sections 3603 (b) and 3607 of this title, it shall be unlawful—
      “(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin.
      “(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provisions of services or facilities in connection therewith, because of race, color, religion, sex, or national origin.
      “(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, or national origin, or an intention to make any such preference, limitation, or discrimination.
      “(d) To represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
      “(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, or national origin.”

       There is a similar requirement in employment discrimination cases under General Statutes § 46a-60 that an employee be “qualified” for the contested position. See Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 58, 448 A.2d 801 (1982); see also McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

       Because of our disposition of the plaintiff’s first claim of error, we do not reach the three remaining issues.


author: Arthur H. Healey, J.

text:
    State of Connecticut v. Charles F. O’Neill
    (11990)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued March 12
    decision released June 24, 1986

      Francis T. Mandanici, with whom, on the brief, was Timothy C. Moynahan, for the appellant (defendant).

      F. Patrick O’Sullivan, special assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

After a trial to the jury, the defendant Charles F. O’Neill was found guilty of the crime of arson in the first degree in violation of General Statutes § 53a-lll (a) (l). This appeal followed.

On appeal, the defendant claims that the trial court erred: (1) in admitting “prejudicial evidence concerning unsubstantiated allegations” of prior bad acts by him and in other evidentiary rulings concerning that evidence; (2) in failing to instruct the jury as requested on lesser included offenses; (3) in giving a “Chip Smith” instruction (State v. Smith, 49 Conn. 376 [1881]); and (4) in imposing, pursuant to a statutory scheme involving mandatory sentences, an unconstitutional sentence which was not proportional to the crime and which violated his constitutional right to the equal protection of the laws.

The jury could reasonably have found the following facts: On Sunday morning, February 21, 1982, at 1:20 a.m., a Waterbury police officer was dispatched by car radio to a fire at a house owned by the victim, a former girlfriend of the defendant, located at 51 Edgewood Avenue in Waterbury. Upon his arrival, he observed not only that smoke and steam were coming from the front of the house, but that the fire had been put out by the victim’s son, Steven, with a garden hose. He observed fire damage to the front porch and the aluminum siding. He smelled what he believed to be gasoline, the aroma of which got stronger as he walked nearer to the house. As a result of his investigation in the area, he came upon a truck about 100 yards up Edgewood Avenue on a corner. Under the truck he found a plastic container which had some fluid in it that smelled of gasoline. This truck was later identified to be owned and used by the defendant in his business of servicing and handling fire extinguishers for customers such as factories, shops, stores, schools and convalescent homes.

The defendant testified concerning his background in this area. Much of his time in his four years in the United States Air Force was spent in the fire prevention field. Prior to establishing his own business, he had spent time in Kansas where he sold, serviced and installed fire equipment and later did similar work for approximately five years for a fire equipment company in Las Vegas. He has attended seminars and given demonstrations involving fire.

At the time of the fire, the victim, her son Steven, her daughter Lori and two other persons were on the second floor of 51 Edgewood Avenue, and a tenant was on the first floor. Lori, who was sleeping on a living room couch, awakened upon hearing a “loud boom,” saw a bright light and “orange flames” and yelled that there was a fire. Steven then went down, hooked up a garden hose and put out the fire in “a matter of minutes.” The fire department and additional police came to the scene. Captain Nicholas Russo, the Waterbury deputy fire marshal, noted a “strong smell of gasoline vapors” at the scene. In his opinion, the fire started on the front porch by the use of an accelerant and “human hands [had] set the fire.” A detective at the scene smelled what appeared to be gasoline in the front area of the house.

The defendant and the victim had dated intermittently from about October, 1980, to October 10,1981, at which time their relationship ended. The relationship had been a stormy one, yet the defendant professed his love for her and had asked her to marry him. She refused, and after their October 10,1981 dispute, she never saw the defendant again.

The trial court admitted evidence of several acts of alleged vandalism against the victim or her family that had occurred before October 10,1981. These acts allegedly occurred when the victim and the defendant had had disagreements at various times during the course of their relationship. The acts involved were that two electric meters were taken from her home around Easter of 1981, paint was thrown onto the car of her teenage son, Chris, around July 4,1981, and air was let out of two of the tires on Chris’ car around Labor Day, 1981. The victim maintained that she and the defendant had had disagreements concerning Chris, that the defendant was jealous of the affection she showed for her son and that she did not show the defendant any affection, nor did she love him. She testified that after Labor Day, 1981, upon asking him if he did these things: “[i]n a joking way, he said, ‘yes> I did,’ and he started to laugh.” The evidence was conflicting on whether the defendant “admitted” these acts as well as whether the defendant had ever told her that “he never gets mad, but [that he] just gets even.”

I

We turn first to the defendant’s claim concerning the alleged acts of prior misconduct. The trial court told the jury that it was admitting this evidence for the purpose of motive and identity. The defendant claims that the trial court initially erred in admitting this evidence without first determining by clear and convincing evidence that he had committed these acts. This evidence was, he argues, highly prejudicial because the prosecutor used it to convey to the jury that he had a bad character, the propensity to commit vandalistic acts “such as the said fire” and that he was the type of person to retaliate. He argues that such use of acts of prior misconduct is “clearly forbidden.” He maintains that his main defense, the lack of the intent required for the crime charged, was clearly harmed by the admission and use of such evidence. This is true, he asserts, because if the jury were to have found that he did commit these prior acts, it would be more likely to consider the fire as part of a consistent, intentional and premeditated scheme to harass the victim and her family rather than as an uncontrolled, unintentional, spontaneous act done by him while he was on an alcoholic “binge.” The harmfulness of this evidence was compounded, the defendant continues, by other evidentiary rulings. The first is that he was prohibited from rebutting prior misconduct evidence by testimony from a defense witness about a claimed inconsistency in the victim’s testimony about who vandalized her electric meters. He also claims error in the court allowing the state during its cross-examination of the defendant to ask whether anyone, including the police, had ever questioned him or accused him of this prior vandalism.

As already noted, the trial court admitted the prior acts for the limited purposes of their consideration by the jury on the questions of motive and identity. In addition, whether the defendant had acknowledged committing these acts was a question properly left to the jury. “ ‘As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 [1960].’ State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); McCormick, Evidence (2d Ed. 1972) § 190; 1 Wharton, Criminal Evidence (13th Ed.) § 170. The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. See State v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983); State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167 (1982); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979); 1 Wigmore, Evidence (3d Ed.) §§ 215-18. Evidence of other misconduct, however, ‘may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity’; State v. Ibraimov, supra; or an element of the crime. State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982).” State v. Braman, 191 Conn. 670, 675-76, 469 A.2d 760 (1983); State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980). Despite its prejudicial character, evidence of such misconduct may be admissible if the prior acts are relevant and material to such matters as motive and identity; State v. Johnson, 190 Conn. 541, 548, 461 A.2d 981 (1983); and the trial judge determines, in his judicial discretion, that the probative value outweighs the prejudicial tendency. State v. Asherman, 193 Conn. 695, 728, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Johnson, supra; State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979). “Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” State v. Johnson, supra, 548-49; State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). On our review, therefore, “every reasonable presumption should be given in favor of the trial court’s ruling.” State v. Ryan, supra, 339; State v. Barlow, supra, 394.

The trial court admitted this evidence after a full hearing in the absence of the jury. At that time, the victim was examined at length by the state and not at all by the defense. The court recognized that the state’s claim here encompassed, inter alia, that the defendant struck out against the victim in return for her treatment of him over the stormy course of their association. It perceived the relevance of this evidence on motive and identity. There is no question that motive may be probative of the identity of a perpetrator. See, e.g., State v. Green, 232 Kan. 116, 121, 652 P.2d 697 (1983); McCormick, Evidence (3d Ed. 1984) § 190, p. 562. It is true that the court did not state, as the defendant claims it should have, that, in admitting that evidence, it had first determined “by clear and convincing evidence that the defendant committed the acts.” The short answer to that is that it was not required to do so with reference to this evidence nor does the defendant refer us to any Connecticut law that so mandates. A fair reading of the transcript does disclose that the court performed the weighing process and, in doing so, excluded other prior misconduct evidence. In addition, it properly left the question of their commission and consequent weight for the jury to determine.

There is no merit to the defendant’s claim that the prosecutor used this evidence to convey to the jury that the defendant had a bad character and a propensity to commit vandalistic acts such as the fire in question and that he was a person to retaliate. The defendant specifically points to certain language used by the prosecutor in his closing argument to the jury such as: “[The defendant was] the scorned lover, scorned boyfriend [who] finally acted on his statement that he didn’t get mad, he got even . . . .” The defendant did not object to this argument at trial nor did he request curative instructions. “We have held on a number of occasions that where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal.” State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985).

Likewise, we reject the defendant’s argument that the admission and use of the prior misconduct evidence so undermined his “main defense” of the lack of the requisite mens rea due to his intoxication that even if he had started the fire while on a “binge” as an unintentional, uncontrolled and spontaneous act, the evidence might have encouraged a wavering jury to find that starting the fire was a “premeditated act of retaliation.” There was no doubt that credibility, particularly that of the defendant, was crucial. See State v. Carter, 189 Conn. 631, 640, 458 A.2d 379 (1983). There was a plethora of evidence from him of an amazing recall of the events of Saturday, February 20, 1982, to the approximate time of the fire early the next morning at 1:20 a.m. This recall included all the places he had been, including some seven cafes and restaurants, the order in which he had visited them, the time he had spent there and what and how many alcoholic beverages he had had at each. He also recalled a number of the persons he had seen, and where and when he had seen them. He testified as to routes taken that day both when he had been driving his truck and while walking. He said that he had still been driving his truck at about 11 p.m. on Saturday night which was after he had been to five cafes or restaurants where he had consumed about fourteen or fifteen mixed drinks in addition to one or two glasses of wine and three or four drinks of Sambucca with coffee. After 11:30 p.m., he said he had had two more drinks while looking for his truck. It was while he had been walking home that the police apprehended him about 2:15 a.m. Interestingly, several police officers observed him shortly after that time. One said he had “possibly” been drinking or under the influence of liquor, another did not remember smelling alcohol on the defendant and another noticed a “slight trace of alcohol on his breath,” but he would not say that the defendant had been intoxicated. We refer to such evidence to demonstrate the fact-bound context of this case replete with questions of credibility which are so uniquely proper for the trier of fact. The jury had the testimony of twenty-five witnesses to assess and the issue of intoxication which bears on the existence of the requisite intent permeated not only the defendant’s but the state’s claim on intent. The trial court carefully instructed, without exception, on intoxication as well as its relation to the element of intent. We have already held that the prior misconduct testimony was properly admitted and that it was not improperly used by the state. The present claim, shorn of its assertions, must fail.

As a subissue of his overall argument on the admission and use of the prior misconduct evidence, the defendant also claims error in two evidentiary rulings. First, he claims error in the exclusion of testimony of Eleanor McNamara, a defense witness, who allegedly would have testified that the victim had made statements to her concerning the vandalizing of her electric meters that were inconsistent with the victim’s testimony at the trial. We cannot conclude that the trial court erred in the exercise of its discretion in excluding this extrinsic evidence. See State v. Crane, 169 Conn. 242, 245, 362 A.2d 843 (1975); State v. Wilson, 158 Conn. 321, 324, 260 A.2d 571 (1969); McCormick, Evidence (3d Ed. 1984) § 36; 81 Am. Jur. 2d, Witnesses §§ 474-76.

Error is also claimed because the trial court allowed the state, over objection, to cross-examine the defendant as to whether anyone, including the police, had ever questioned him concerning the prior acts of vandalism or whether he was responsible for them. The defendant’s counsel objected, saying that there had been nothing on his direct examination about that, that it was “totally irrelevant,” that it created a “side issue” and was not material. The ruling was not error because the transcript discloses that defense counsel had explored this matter on his direct examination.

II

The defendant also claims that the trial court erred in failing to instruct the jury, as requested, on the lesser included offenses of arson in the third degree, General Statutes § 53a-113, and reckless burning, General Statutes § 53a-114. We do not agree. “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant not guilty of the greater offense but guilty of the lesser.” State v. Smith, 185 Conn. 63, 76-77, 441 A.2d 84 (1981); see State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). At oral argument, the state conceded that the first three prongs of Smith had been met but maintained that the fourth had not. At oral argument, the defendant, sensing the fragility of his claim, said that in making this claim he was asking this court essentially to make a major modification of our lesser included offense rule. While he recognizes that, given the substitute information, the evidence in this case was not “sufficiently in dispute” to satisfy the fourth prong oí Smith, he, nevertheless, argues that the unique circumstances of this case require that we modify our lesser included offense rule as set out in Smith. He claims that the state wrongfully “editfed]” the charge by not charging him with that portion of § 53a-lll (a) (1) which would require the state to prove that the defendant “[had] reason to believe the building may be inhabited or occupied,” but rather charged him with that portion that required the state to prove only that “the building [was] inhabited or occupied.” This “editing” not only effectively blocked a lesser offense instruction, according to the defendant, but also enabled the state “to pick and edit” the charge in a manner such that at sentencing it “tied the court’s hands” because a conviction under the charge selected by the prosecutor required the imposition of a mandatory nonsuspendible minimum sentence. See General Statutes §§ 53a-29, 53a-35a. Had the state charged only that portion of § 53a-lll (a) (1) which required that it prove that the defendant “[had] reason to believe the building may be inhabited or occupied,” then, he argues, because of his claimed intoxication with its effect on the specific intent required, a lesser included offense charge would have been mandated because then the fourth prong of Smith would be met.

Not only do we decline to modify our lesser included offense rule as urged by the defendant, but we reject his “editing” claim.* *** “We have always held that prosecutors have broad discretion in determining what crime or crimes to charge in any particular situation. State v. Villafane, 171 Conn. 644, 664, 372 A.2d 82 [(1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977)]; State v. Townsend, 167 Conn. 539, 554, 356 A.2d 125 [cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975)].” State v. Chetcuti, 173 Conn. 165, 168, 377 A.2d 263 (1977); State v. McKenna, 188 Conn. 671, 680, 453 A.2d 435 (1982). The state has “considerable latitude as to how and in what manner it shall proceed against an accused.” State v. Zeko, 176 Conn. 421, 423, 407 A.2d 1022 (1979). The discretionary power of the state to select an appropriate charge is, of course, “limited in the usual and lawful manner by the facts the prosecutor may be reasonably expected to prove at trial.” State v. Darden, 171 Conn. 677, 682, 372 A.2d 99 (1976); People v. Eboli, 34 N.Y.2d 281, 313 N.E.2d 746, 357 N.Y.S.2d 435 (1974). The decision of the state here was a proper exercise of its discretion as the statute provided a choice between options as evidenced by the clearly disjunctive language used by the legislature in § 53a-lll (a) (1). The rationale of such cases as Hutcherson v. United States, 345 F.2d 964 (D.C. Cir.), cert. denied, 382 U.S. 894, 86 S. Ct. 188, 15 L. Ed. 2d 151 (1965), is applicable. See also People v. Eboli, supra. Hutcherson pointed out that it was not a denial of due process where the prosecution proceeded under one of two applicable statutes, stating: “A defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution.” Hutcherson v. United States, supra, 967. It is also significant that the defendant in this case expressly makes no claim of prosecutorial misconduct as a component of his “editing” claim.

Ill

Next, the defendant claims that the trial court erred in giving the “Chip Smith” charge under the special circumstances of this case. The key circumstance the defendant advances here is that it was given, not only on the third day of deliberations but in a case where a lesser included instruction was erroneously refused, thus greatly weakening his crucial factual claims concerning the effect of his intoxication. Here he argues that the “only real factual issue” in the case involved his intoxication. Given, as it was, on the third day of deliberations, it was coercive and undermined the position of the conscientious dissenting juror. The result of these circumstances, he asserts, violated his right to due process and a fair trial under both the United States and the Connecticut constitutions. The defendant objected before the trial court gave this instruction, and his motion for a mistrial after it was given was denied. The trial court did not err as claimed.

“The ‘Chip Smith’ charge has been so consistently upheld by this court that the defendant does not challenge it directly. See State v. Stankowski, 184 Conn. 121, 145-46, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981), and cases cited therein.” 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. Jones, 193 Conn. 70, 91-92, 475 A.2d 1087 (1984). Rather, he claims that the “special circumstances” of this case rendered the instruction harmful error. We do not agree.

The jury wrote a note to the trial court, signed by its foreperson, which simply said: “The jury cannot reach a unanimous verdict.” There was no indication then or thereafter of the nature or number of the division of the jury. See Brasfield v. United States, 272 U.S. 448, 47 S. Ct. 135, 71 L. Ed. 345 (1926). Initially, we point out that the trial judge clearly and articulately instructed the jury just prior to the “Chip Smith” charge that the charge was not to be construed as “coercive in any manner,” that it was “designed to aid” the jury and that the instructions were not “to suggest ... in any manner, that you are compelled to reach a verdict or must reach a verdict.” Rather, the jury was told that the charge it was about to give was “to see whether or not it is within your reach to arrive at a verdict in this matter.” It was right after these patently fair threshold instructions that the “Chip Smith” charge itself was given.13

The charge itself was not at all coercive or prejudicial as claimed. “While a defendant is not entitled to an instruction that a jury may ‘hang’ . . . he is entitled to a jury unfettered by an order to decide.” (Citations omitted.) State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974); State v. Peary, 176 Conn. 170, 184, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979). The instruction falls squarely within that principle. There was no direction to decide; it was told “[to] see if you can arrive at a verdict.” While the claim that the “Chip Smith” charge undermined the position of the conscientious dissenting juror has no factual basis, the trial court referred “to a dissenting juror or jurors” in its evenhanded instruction. It did not direct a verdict, and, while arguably encouraging one; see State v. Avcollie, supra, 647; it made clear that whether they arrived at a verdict was entirely up to them. The potential of a mistrial, upon a deadlock, often regarded as coercive, was fully absent in this charge. See, e.g., Commonwealth v. Rodriquez, 364 Mass. 87, 100 n.16, 300 N.E.2d 192 (1973). Because the possibility of disagreement by a jury and the consequent lack of a unanimous verdict “is a protection conferred upon a criminal defendant in a criminal case by the [United States] constitution,” for a judge to tell a jury that a case must be decided is not only coercive in nature but is also misleading in fact because to do so precludes the right of a defendant to rely on the possibility of a disagreement by the jury. United States v. Harris, 391 F.2d 348, 355 (6th Cir.), cert. denied, 393 U.S. 874, 89 S. Ct. 169, 21 L. Ed. 2d 145 (1968).

The “Chip Smith” instruction was timely given, and it accurately set out the jurors’ duty and, even without the instructions immediately preceding it, was not erroneous as argued in the “special circumstances” of this case. There was no constitutional violation of the defendant’s rights as claimed.

IV

Finally, the defendant claims that because of an alleged unconstitutional statutory scheme involving mandatory minimum sentences, the trial court imposed a sentence which was unconstitutional because it was not proportional to the crime. Invoking both the United States and Connecticut constitutions, he asserts that the sentence imposed was unconstitutional because it violated his rights to equal protection of the laws, due process and against cruel and unusual punishment.

Certain background circumstances are necessary to put this equal protection claim in context. At the time of sentencing in 1982, the defendant argued that the requirement that arson in the first degree required a mandatory nonsuspendible minimum sentence of ten years rendered the sentencing scheme unconstitutional. Although he urged the trial court to impose a sentence of ten years suspended after five, the trial court refused to do so indicating that, in its view, the statutory scheme afforded it no discretion but to impose the mandatory nonsuspendible minimum sentence of ten years, which it did. See General Statutes §§ 53a-lll, 53a-35a (3). Sometime later, in June, 1985, the defendant filed a motion to reduce his sentence and at the hearing on that motion, the defendant’s counsel cited our recently published decision in State v. Dupree, 196 Conn. 655, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985), which held that the trial court had properly suspended a portion of a sentence for arson murder. He argued that, therefore, a sentence for arson in the first degree could be suspended. The trial court refused to grant the motion, indicating that Dwpree did not apply because that case involved an unclassified felony as opposed to the “classified” felony in this case, as well as saying that it would not interfere with the penalty that the legislature has prescribed.

About three weeks prior to oral argument in this case, we handed down our decision in State v. Jenkins, 198 Conn. 671, 504 A.2d 1053 (1986). In Jenkins, the defendant had been convicted of kidnapping in the first degree without a firearm, General Statutes § 53a-92 (a) (2) (C). At his sentencing, Jenkins asked the trial court to consider suspending part of the ten year minimum sentence prescribed for his conviction under General Statutes § 53a-92. State v. Jenkins, supra, 673. The defendant acknowledged that General Statutes §§ 53a-92, 53a-28 and 53a-29 prohibited suspension of sentences for Class A felonies. Asking the trial court to read these statutes together with General Statutes § 53a-92a, governing kidnapping in the first degree with a firearm, he maintained that, because § 53a-92a permits suspension of the sentence after one year, an ambiguity existed between the statutes. The defendant’s counsel, therefore, asked that the court consider suspending Jenkins’ sentence after seven years. State v. Jenkins, supra. While agreeing with the defendant that there was some ambiguity between the relevant statutes, we found the record clear that the trial court felt constrained to impose a mandatory sentence and that it could not suspend any portion of it. In Jenkins, unlike this case, we had to “deal with legislative error that mistakenly assigns a lesser penalty to a greater crime.” Id., 677. A literal reading of the statutes in that case persuaded us that Jenkins was required to be given a mandatory minimum sentence that exceeded by nine years the mandatory minimum sentence that would be given a person convicted of kidnapping in the first degree with a firearm—a crime obviously more serious than that of which Jenkins had been convicted. We therefore concluded that “[s]uch a discrepancy necessarily implicates the equal protection clauses of our federal and state constitutions.” Id.

Conscious of the legislative prerogative and the desire to avoid a constitutional confrontation, as well as recognizing that Jenkins’ sentence needed further review, we acknowledged that “[t]he legislature, cognizant of the constitutional guarantees of equal protection, must be deemed to have sought to attain a rational and sensible result that avoids placing a statute in constitutional jeopardy.” Id., 679. Applying that theorem in Jenkins, we stated: “It is not rational and sensible to impose a lesser term of mandatory imprisonment on one convicted of kidnapping with the use of a firearm than on one convicted for a similar crime not involving a firearm.” (Emphasis added.) Id., 679-80. There, we found error in the trial court’s refusal to exercise the discretion conferred on it by § 53a-92a (b) to consider suspension of Jenkins’ sentence of imprisonment after one year.

The defendant claims that Jenkins is dispositive of this issue in this case. We agree. At oral argument, the state conceded that Jenkins applied and that it could not distinguish it “morally or legally.” In conceding this as to the sentencing phase, the state agreed that that meant that we should remand this case to the trial court for it to determine whether it would consider a suspension of the defendant’s sentence of imprisonment. This is so because we regard the rationale of Jenkins as persuasive in this case on the equal protection ground.

We point out that, as in Dupree, the classification of crimes is for the legislature. State v. Dupree, supra, 665; State v. Rao, 171 Conn. 600, 603, 370 A.2d 1310 (1976); State v. Robbins, 257 N.W.2d 63, 67 (Iowa 1977). It is the general rule that while the legislature has wide power to prescribe the nature, character and extent of defined offenses, its power to fix penalties is, however, subject to constitutional proscription. People v. Bradley, 79 Ill. 2d 410, 417, 403 N.E.2d 1029 (1980); People v. Dixon, 400 Ill. 449, 453, 81 N.E.2d 257 (1948); Commonwealth v. Jackson, 369 Mass. 904, 909, 344 N.E.2d 166 (1976); State v. Moore, 286 N.W.2d 274, 278 (N.D. 1979), cert. denied, 446 U.S. 943, 100 S. Ct. 2170, 64 L. Ed. 2d 799 (1980); State ex rel. Cogar v. Kidd, 160 W. Va. 331, 371, 376, 234 S.E.2d 899 (1977); see Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 469, 67 S. Ct. 374, 91 L. Ed. 422 (1947). Whether a penalty is proportional to a certain offense is a legislative question which courts cannot change unless that legislative determination is unconstitutional. Clifton v. State, 176 Ind. App. 395, 397, 375 N.E.2d 1126 (1978). The legislature is entitled to establish more severe penalties for acts which it believes have greater impact and graver consequences. Sheriff, Clark County v. Williams, 96 Nev. 22, 24, 604 P.2d 800 (1980).

We know that it is not the prerogative of courts in this area lightly to “launch an inquiry to resolve a debate which has already been settled in the legislative forum.” Commonwealth v. Leis, 355 Mass. 189, 202, 243 N.E.2d 898 (1969) (Kirk, J., concurring). It is clear, however, as the United States Supreme Court has said in Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 54 L. Ed 793 (1910), that it is “a precept of justice that punishment for crime should be graduated and proportioned to the offense.” In Jenkins, we determined that the “effect of the enactment of § 53a-92a [was] to link a more serious crime with a less serious penalty.” State v. Jenkins, supra, 676. While the background circumstances in Jenkins are not those in this case, the equal protection constitutional guidelines and the ultimate effect are the same. Arson murder requires a greater degree of culpability and criminality than first degree arson because arson murder involves both arson and a death. On the other hand, arson in the first degree requires a lesser degree of culpability and criminality. Although different statutes were involved in Jenkins, there is a compelling constitutional parallel between that case and this which persuades us that this defendant’s equal protection rights have been violated. Here, this defendant who acted with the less culpable intent and who caused a less serious result than a defendant who commits arson murder should not receive the greater penalty—a mandatory nonsuspendible ten year minimum term. The constitutional infirmity violates his equal protection rights. The trial court was in error in refusing to exercise its discretion to consider any suspension of the defendant’s sentence of imprisonment.

There is error, the judgment is set aside and the case is remanded only for resentencing in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 53a-lll (a) (1) provides in relevant part: “arson in the first degree: class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage á building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . . .”

       At oral argument, the defendant’s counsel stated that he was withdrawing a claim of prosecutorial misconduct in the state’s closing argument as a distinct assignment of error, but that he was, nevertheless, going to use the claimed misconduct in the argument to show prejudice insofar as that argument contravened the basis upon which the court had admitted the prior acts of claimed misconduct.

       At oral argument, the defendant was given permission to file an amended statement of issues so as to incorporate in this claim of error the principles of our recent decision in State v. Jenkins, 198 Conn. 671, 504 A.2d 1053 (1986). The defendant has done so and has also filed a memorandum setting out his claims as to the applicability of Jenkins.

       The evidence was conflicting, inter alia, concerning whether it was the victim or the defendant who decided to end their relationship on October 10, 1981.

       On this nonconstitutional evidentiary claim, the defendant refers to State v. Guthridge, 164 Conn. 145, 156, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973), for support. That case is clearly inapposite. In Guthridge, we said that the state satisfied its burden of showing by clear and convincing evidence that an in-court identification was independent of a prior one-on-one showing of the defendant that was claimed to be fundamentally unfair. That is hardly this case.

       General Statutes § 53a-113 provides in part: “(a) A person is guilty of arson in the third degree if he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or of another by intentionally starting a fire or causing an explosion.”

       General Statutes § 53a-114 provides in part: “(a) A person is guilty of reckless burning if he intentionally starts a fire or causes an explosion, whether on his own property or another’s, and thereby recklessly places a building, as defined in section 53a-100, of another in danger of destruction or damage.”

       The substitute information was the following:
      “Paul E. Murray, Assistant State’s Attorney for the Judicial District of Waterbury accuses CHARLES F. O’NEILL, 1417 E. Main Street, Waterbury, Ct. of ARSON in the First Degree and charges that at the Town or City of Waterbury on or about the 21st day of February, 1982, at approximately 1:20 A.M. at 51 Edgewood Avenue the said CHARLES O’NEILL did, with intent to damage and destroy a building, start a Fire, and at that time the said building was inhabited and occupied, in violation of Section 53a-lll (a) (1) of the General Statutes.”

       Our rejection of the defendant’s “editing” claims makes unnecessary any extended discussion of the defendant’s claim that either arson in the third degree in violation of General Statutes § 53a-113 or reckless burning in violation of General Statutes § 53a-114 are lesser included offenses of arson in the first degree in this case. In any event, arson in the third degree would not be a lesser included offense in this case because it requires an element, i.e., the intentional starting of a fire or causing an explosion, not required for arson in the first degree. See State v. Whistnant, 179 Conn. 576, 584, 427 A.2d 414 (1980). Likewise, reckless burning is not a lesser included offense as it too requires an element, i.e., the intentional starting of a fire or explosion, not required by arson in the first degree. Id. The intent required for arson in the first degree, i.e., “to destroy or damage a building” is, on the other hand, the intent to effect a result different from the result or effect which is required by the “intentional” conduct in either arson in the third degree or reckless burning.

       In his brief and in oral argument before us, the defendant’s counsel referred to the dissenting juror. At oral argument, he acknowledged that the record does not support any claim that there was one dissenting juror when the “Chip Smith” charge was given.

       The defendant, referring to State v. Peary, 176 Conn. 170, 183, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979), argues that a “fundamental right” is involved when an issue is raised concerning a coercive jury instruction. Alleging that giving the challenged instruction violated both the United States and Connecticut constitutions, he claims that the burden is on the state to prove the alleged violation harmless beyond a reasonable doubt. Peary is not authority for moving the burden to the state. Peary involved the “Chip Smith” charge, to which the objection on appeal was not made at trial. Id. Despite a failure to object, in Peary we considered the objection “because a fundamental right is involved and review may be made on the record” and for that proposition cited two cases, i.e., State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and a post-H/raws case which in turn relied on Evans for the issue reviewed. See State v. Chesney, 166 Conn. 630, 639, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974).

       Immediately prior to the “Chip Smith” charge, the trial court charged the jury as follows:
      “[Tjhe court feels that this matter has been well tried and you have heard the evidence in the matter and although this is not three complete days, but this is the third day of deliberations, that 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 the 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, the instructions are designed to aid you in considering your own positions, individually and weighing your individual positions against the collective 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, not to suggest to you, in any manner, that you are compelled to reach a verdict or must reach a verdict.
      “The court’s instructions that I shall give you now is 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.”
      13 The “Chip Smith” instruction given was the following:
      “Along these lines, the court would like to state the following to you: although the verdict to which each of you agrees must express his or her own conclusion and not a mere acquiescence in the conclusion of your fellow jurors, yet in order to bring your six minds to a unanimous result, you should consider the questions you have to decide, not only carefully, but also with due regard and deference to the opinions of eaeh other.
      “In conferring together, you ought to pay proper respect to each other’s opinion and listen with an open mind to each other’s argument. If much the larger number of you reach a certain conclusion, a dissenting juror or jurors should consider whether his opinion or her opinion is a reasonable one, when the evidence does not lend to a similar result in the minds of so many of you who are equally honest and equally intelligent with yourself, who have heard the same evidence with the same attention, with equal desire to arrive at the truth and under the same sanctions of the same oath. If the majority of you are for one decision, the minority ought seriously to ask themselves whether they may not reasonably or ought not to doubt their own conclusions when it is not concurred in by most of those with whom they are associated and they may well distrust the weight or sufficiency of the evidence upon which they rely when it fails to bring the minds of their fellow jurors to the same conclusions that you hold.
      “I have stated this to you in order to get you to further consider in your deliberations the opinions of your fellow jurors. This is all.
      “I am going to ask you to return to the jury room and see if you can arrive at a verdict. All right. You may return to the jury room.”

       Because we dispose of this claim on equal protection grounds, we need not discuss the tenuous branch of this claim that asserts that the sentence imposed constituted cruel and unusual punishment; see Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); nor need we discuss the defendant’s due process claim.

       At that time, the trial court indicated that, were the mandatory nonsuspendible minimum sentence not required, it did not know what sentence it would impose upon the defendant.

       To avoid the “constitutional quagmire” that would otherwise face us in Jenkins, we held that General Statutes § 53a-92a (b) had “created an irreconcilable conflict in the statutes governing mandatory minimum sentences for kidnapping in the first degree” and we were careful to state that we also held that “until the legislature takes corrective action, the sentencing provision of § 53a-92a (b) governs all prosecutions for kidnapping in the first degree.” State v. Jenkins, 198 Conn. 671, 680, 504 A.2d 1053 (1986). We held, accordingly, that the trial court erred “in refusing to exercise the discretion conferred upon it by § 53a-92a (b) to consider suspension of the defendant’s sentence of imprisonment after one year.” Id.