author: PETERS, J. BERDON, J., with whom MCDONALD, J., MCDONALD, J.,

text:
    CONNECTICUT ASSOCIATED BUILDERS AND CONTRACTORS ET AL. v. THEODORE ANSON, COMMISSIONER OF PUBLIC WORKS
    (SC 16047)
    Callahan, C. J., and Borden, Berdon, McDonald and Peters, Js.

      Argued April 28
    officially released November 16, 1999

      Eliot B. Gersten, with whom were George J. Kelly, Jr., and, on the brief, Edward F. O’Donnell, Jr., for the appellants (plaintiffs).

      Richard Blumenthal, attorney general, with whom were George E. Finlayson, assistant attorney general, and, on the brief, Clare E. Kindall and Cornelius F. Tuohy, assistant attorneys general, for the appellee (defendant).

      Christopher J. Hug, with whom, on the brief, was Scott E. Perry, for the appellee (intervening defendant).

      Donald P. Crestón and Jan S. Amundson, Quentin Riegel, Stephen A. Bokat, Robin S. Conrad and Sussan Mahallati-Kysela, pro hac vice, filed a brief for the National Association of Manufacturers et al. as amici curiae.

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

   Opinion

PETERS, J.

The principal issue in this case is whether a trade association representing nonbidders on a government building project has standing to challenge, on philosophical grounds, the terms of the contract between the state and the successful bidder. Specifically, the association, on behalf of its members, disputes the validity of a construction contract that incorporates a project labor agreement, an agreement that requires contractor compliance with the provisions of collective bargaining agreements and, in return, requires project workers not to strike while the project is under construction. The association represents contractors that, as a matter of philosophy and business practice, favor the use of nonunion labor and therefore eschew submitting bids for any project including a project labor agreement. The association claims that it has made a sufficient showing of impairment of its members’ constitutional rights to freedom of speech and freedom of association to advance their shared goal so that it has the standing necessary to challenge the validity of the project labor agreement. We disagree and, accordingly, affirm the judgment of the trial court dismissing the plaintiffs’ complaint.

The plaintiffs, Connecticut Associated Builders and Contractors (association), All Electric, Inc., and Electric Contractors, Inc., brought this action against the defendant, Theodore Anson, the commissioner of public works (commissioner), and the intervening defendant, Fusco Corporation (Fusco), to enjoin the construction of an office and classroom building and a parking garage at Central Connecticut State University (project). In their amended complaint, the plaintiffs alleged that the commissioner’s inclusion of project labor agreement terms as a condition of a bid on the project: (1) violated the competitive bidding requirements contained in General Statutes §§ 4b-91 through 4b-96, by failing to authorize an award to the “lowest responsible and qualified general bidder” as specified in General Statutes § 4b-92; (2) exceeded the commissioner’s authority under the same competitive bidding statutes, or rendered those statutes unconstitutionally vague; and (3) impaired the plaintiffs’ constitutional rights, under both the federal and the state constitutions, to freedom of speech and association.

The commissioner moved to dismiss the plaintiffs’ complaint on the ground of sovereign immunity. That motion was denied. After having been granted the status of intervening defendant, Fusco filed special defenses and moved to dismiss the complaint on the ground that the plaintiffs lacked standing to raise their challenges to the validity of the project labor agreement. The commissioner joined Fusco’s motion to dismiss for lack of standing.

With the agreement of the parties, the trial court held an evidentiary hearing on the motion to dismiss that addressed not only the merits of the motion to dismiss but also the merits of the plaintiffs’ amended complaint. The trial court dismissed the plaintiffs’ claims for lack of standing, but, in so doing, addressed the substantive merits of at least some of their claims.

The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

I

At the outset, in the interests of clarity, it is useful to take note of those issues that do not require elaboration in this appeal. For differing reasons, we may dispose summarily of issues concerning the merits of some parts of the plaintiffs’ complaint and the standing of some of the plaintiffs.

A

The first two counts of the plaintiffs’ amended complaint alleged that the commissioner had violated statutory competitive bidding requirements, or, in the alternative, had assumed authority that the competitive bidding statutes lawfully could not have conferred upon him. The trial court may have been alluding to those counts in the complaint when, in its memorandum of decision, the court concluded that “the decision to try a [project labor agreement] on this project was a legitimate exercise of [the department’s] discretion . . . .” The trial court noted, in addition, that the commissioner’s decision was not “based on any improper motive.” In its memorandum of decision, the court did not make any further findings, or arrive at any express conclusions of law, with respect to counts one or two.

In their appeal, the plaintiffs have not challenged the validity of the trial court’s implicit substantive conclusion with respect to their expressly statutory claims. Their brief adverts to the statutes only once, in the introductory recitation of the contents of their complaint. Thereafter, although the plaintiffs deplore the public interest implications of the use of project labor agreements and the implementation of project labor agreements through the competitive bidding process, their policy analysis includes no reasoned analysis of the statutes identified in their complaint. Specifically, they have not pursued effectively, on appeal, any claim that the commissioner violated the statutory prescriptions contained in our competitive bidding statutes or any claim that those statutes have any constitutional infirmity. Accordingly, the merits of counts one and two of the plaintiffs’ complaint are not before us on this appeal.

B

The plaintiffs All Electric, Inc., and Electric Contractors, Inc., are not general contractors, but subcontractors. They maintain that the trial court improperly denied them standing to challenge the merits of the commissioner’s use of a project labor agreement as one of the specifications for contract bids on the project by general contractors. We agree with the trial court’s ruling that they have no standing.

Although, on appeal, the subcontractors have vigorously pursued their claim of standing, they cannot be afforded the relief that they seek in light of today’s companion decision in the case of Connecticut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 740 A.2d 813 (1999). Therein, we explain that subcontractors have no standing to pursue a challenge to general bid specifications because, in their own capacity, they never can bid directly for government projects. Their preclusion from the bidding process has no relationship to whether they operate union shops, or whether they are opposed philosophically to union shops. Their preclusion stems from the nondiscriminatory and uncontested industry practice of limiting bidding to general contractors. If general contractors were indeed to incur higher costs because of project labor agreement contract specifications, an allegation that the commissioner disputes, the possible economic consequences of increased costs attributable to potential subcontractors are too speculative and too attenuated to constitute “some direct injury” for the purposes of conferring standing on such subcontractors. See Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981).

II

The principal issue that is not resolved by the companion case is whether a philosophical disinclination to deal with unions gives a nonbidding general contractor on a government project, or an association representing such nonbidders, the standing to challenge the specifications of a bidding process that incorporates a project labor agreement. The association contends that, as a representative of both general contractors and subcontractors, it has constitutional standing to represent the interests of its membership in litigating a challenge to the validity of project labor agreement requirements articulated in count three of the plaintiffs’ complaint.

A trial court’s determination that it lacks subject matter jurisdiction because of a plaintiffs lack of standing is a conclusion of law that is subject to plenary review on appeal. Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999). We conduct that plenary review, however, in light of the trial court’s findings of fact, which we will not overturn unless they are clearly erroneous. See, e.g., Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

It is undisputed that both federal and state law authorize an association, under designated circumstances, to bring an action on behalf of its members. “This court has recognized representational standing in accordance with the holdings of the United States Supreme Court. [A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. [Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977)]. . . . Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 616, 508 A.2d 743 (1986). . . . [T]he propriety of accepting [representational standing depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. . . .” (Internal quotation marks omitted.) Connecticut Assn. of Not-For-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 386-87, 709 A.2d 1116 (1998); Connecticut Business & Industry Assn. v. Commission on Hospitals & Health Care, 218 Conn. 335, 345, 589 A.2d 356 (1991).

As often is the case, what is at issue is not the principle but its application. In particular, we must decide whether any association member has standing to challenge, that is to say has been “actually injured,” by the commissioner’s decision to use a project labor agreement for the project.

The record reveals the following. No plaintiff in this case submitted a bid to the commissioner to undertake the performance of the project. No member of the association submitted such a bid, although two of its members testified, without contradiction, that the project labor agreement requirement deterred them from doing so. The commissioner presented evidence, again without contradiction, that a majority of the bidders on the project, five out of nine, were nonunion shops.

The gravamen of the association’s position is the following. In accordance with the recognized principle of representational standing, the association claims that it has standing to obtain judicial injunctive relief to remedy any injury caused to its members. Its members are contractors and subcontractors that are nonunion. As a matter of philosophy and business practice, the members of the association do not enter into contracts with construction unions. On behalf of its members, the association claims standing to pursue the third count in the plaintiffs’ complaint, which alleges that the imposition of a project labor agreement requirement impairs its members’ constitutional rights to freedom of association and of speech. According to the association, that impairment arises from the fact that its members cannot bid on contracts containing a project labor agreement requirement without undermining their associational commitment to nonunion hiring. In effect, the association argues, its members are in the same position as the nonbidders in Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 694-95, 600 A.2d 1019 (1991), in that they were precluded from bidding because they could not comply with a contract specification that favored some potential bidders over others. We are not persuaded.

The defendants assert that we need not reach the merits of the association’s standing claim because the trial court, in its memorandum of decision granting the motion to dismiss, did not address directly the constitutional argument that the association has raised on appeal. Concededly, the plaintiffs made no effort to seek clarification from the trial court in the form of a motion for articulation. See Practice Book § 66-5. The defendants remind us of our often repeated admonition that appellate review, even of issues that have constitutional dimensions, is predicated upon an appropriate record at trial. Practice Book § 61-10; Lopiano v. Lopiano, 247 Conn. 356, 372, 752 A.2d 1000 (1998); DiBerardino v. DiBerardino, 213 Conn. 373, 376, 568 A.2d 431 (1990).

Viewing the record as a whole, however, we are persuaded that it provides us with a sufficient basis upon which to determine the merits of the association’s standing claim. It makes sense to read the court’s October, 1998 memorandum of decision granting the motion to dismiss for lack of standing in light of the court’s July 30, 1998 memorandum of decision denying the commissioner’s motion to dismiss on grounds of sovereign immunity.

On July 30, 1998, the trial court issued a detailed memorandum of decision to support its conclusion that the plaintiffs’ complaint included sufficient factual allegations to justify an evidentiary hearing to determine the merits of their action against the commissioner. On that occasion, the court addressed, with some particularity, each of the three counts of the plaintiffs’ complaint. See footnote 7 of this opinion. The commissioner had argued to the court that the allegations contained in the third count of the plaintiffs’ complaint were too insubstantial to prevail over a claim of sovereign immunity. Citing Abood v. Board of Education, 431 U.S. 209, 237, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the court rejected that argument and concluded, instead, that the plaintiffs’ claim should not be dismissed on its face.

The trial court framed the relevant issue with respect to the third count in a manner that is significant for the issue now before us. The court noted: “The allegations in count three are consistent with those upheld in Abood. If proven, they show that in order to be eligible to bid on this public works project, the plaintiff contractors would be required to use union workers and collect money to support a broad range of union activities inimical to their political beliefs, and nonunion workers would be required to contribute money to support ideological expenditures unrelated to collective bargaining. The allegations of count three establish a claim of an infringement on the plaintiffs’ rights of free speech and association.” (Emphasis added.)

When the trial court issued the memorandum of decision dismissing the plaintiffs’ claims for lack of standing, it presumably was familiar with the relevant criteria for represenational standing under count three that it had articulated only a few months earlier in its July 30, 1998 decision. Although it made no express finding that the association had satisfied its burden under Abood, the findings that it did make demonstrate that the association had failed to meet its burden of proof.

The trial court found that the association “has not shown the existence of favoritism, fraud or corruption in the bidding process, and therefore does not have standing to challenge the use of the [project labor agreement].” As we have stated in today’s companion case, Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. 181, these are the proper criteria to determine standing for nonbidders challenging allegedly burdensome conditions in government contract specifications.

The court further stated that inclusion of a project labor agreement requirement in the project specifications was justified by the legitimate public interest in completion of “a public works project within time and financial constraints.” The nonstrike clause contained in project labor agreements would further that interest. The commissioner’s decision to use a project labor agreement was not based “on any improper motive.” The court determined that “[t]he state has a legitimate interest in completing a public works project within time and financial constraints. Evidence showed that the commissioner decided to use the [project labor agreement] on this project based on knowledge of the use of [project labor agreements] by other public entities. The plaintiffs did not present any evidence that the [project labor agreement] was a means to exclude nonunion contractors or amounted to such an exclusion. The purpose of the competitive bidding statutes is not to aid the contractors by making it economically feasible for all to bid, but to promote the public interest in the efficient completion of public works projects. . . . The state’s interest in its own finances when undertaking public works projects takes precedence over the finances or business methods of individual contractors. . . . The commissioner’s decision to try a [project labor agreement] on this project was a legitimate exercise of his discretion to find a way to achieve the state’s goal while remaining within the bounds of the competitive bidding statutes.” (Citations omitted.)

It is impossible to reconcile these findings with any conclusion other than that the association failed to establish that the use of a project labor agreement, under the circumstances of this case, constituted an infringement of the constitutional rights of its members. The constitution is not violated simply because a public agency adopts a legitimate public policy that runs counter to the philosophical views or business practices espoused by the membership of the association. The association did not make the evidentiary showing for standing that was its burden to make.

The plaintiffs argue, however, that “[w]hile it is true that the court in this earlier ruling [on sovereign immunity] necessarily accepted the allegations as true, nothing at the subsequent hearing refuted those allegations. In fact, the evidence at the hearing confirmed, in all relevant respects, the plaintiffs’ allegations.” The principle that the plaintiffs invoke is inapplicable in this case. Without any allegation or preliminary showing of invidious discrimination based on factors such as race; see, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097,132 L. Ed. 2d 158 (1995); the defendants had no burden of proof. The trial court properly so held. We cannot supply for the plaintiffs a factual finding that the trial court did not make.

The trial court properly concluded that neither the association nor any other plaintiffs in this case had made an evidentiary showing sufficient to establish their claimed right to standing to challenge the validity of the commissioner’s use of a project labor agreement for the project. We conclude that the trial court’s findings were not clearly erroneous and that its legal conclusions were proper.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN, J., concurred.

BERDON, J., with whom MCDONALD, J.,

joins, dissenting. The sole issue before this court is whether the plaintiffs have standing. In my view, the plaintiffs Connecticut Associated Builders and Contractors (association), All Electric, Inc., and Electrical Contractors, Inc., have standing to challenge the requirement that a bidder must agree to a project labor agreement similar to the one discussed in the companion case, Connecticut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 740 A.2d 813 (1999).

The trial court acknowledges the following: “The plaintiffs presented testimony from representatives of two nonunion general contractors, Thomas Haynes, vice president of Haynes Construction Company, and Michael Kolakowski, president of Konover Construction Company. Both . . . are members of [the association]. They testified that this project was the type of project their companies would usually bid on but they decided not to submit a bid because of the project labor agreement requirement. They claim that the project labor agreement requirement makes it economically infeasible for them to bid on the project because they would not be able to use their own workforce. They claim that this puts them at a disadvantage in the bidding, and is the type of inequity the competition bidding statutes prohibit because it interferes with open competition.” In my view, the foregoing is sufficient to create representational standing for the association. See Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 386, 709 A.2d 1116 (1998) (adopting federal test for representational standing); see also Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. 183-84; id., 198-201 (Berdon, J., dissenting). For the reasons I have stated previously in my dissent in Connecticut Associated Builders & Contractors v. Hartford, supra, 197-98, I believe the subcontractor plaintiffs All Electric, Inc., and Electrical Contractors, Inc., also have standing.

Accordingly I dissent.

MCDONALD, J.,

dissenting. I join in Justice Berdon’s dissent.

The majority today concludes that the plaintiffs have no standing to question the constitutionality of a clause in a public construction contract that contains a project labor agreement requiring any employees on the construction project to be members of a union. The plaintiffs are the Connecticut chapter of a trade association of contractors and subcontractors, two Connecticut subcontractors that are members of the association and an employee of one of those subcontractors, all of whom were capable of engaging in the construction project and ready to do so save for the project labor agreement requirement. The plaintiffs claim to oppose union involvement in labor management relations. They oppose collecting money from nonunion workers to support causes to which the plaintiffs and those workers object, and they view the project labor agreement as forcing such involvement in violation of their federal constitutional right to freedom of association. I would hold that each plaintiff has standing to enter the courtroom and present those claims.

According to the majority, the plaintiffs do not have standing because they have failed to allege a violation of the Connecticut competitive bidding statute. That statute is irrelevant, in my view, to the issue of standing to present this claim of constitutional violation for adjudication. To have standing to sue, a plaintiff must have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions . . . Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); see also Gollust v. Mendell, 501 U.S. 115, 125, 111 S. Ct. 2173, 115 L. Ed. 2d 109 (1991); Franchise Tax Board of California v. Alcan Aluminum Ltd., 493 U.S. 331, 335, 110 S. Ct. 661, 107 L. Ed. 2d 696 (1990); Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). This court has stated that “[s] tan ding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.” (Citations omitted; internal quotation marks omitted.) Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991). The plaintiffs here have demonstrated such a personal stake that would assure concrete adverseness in advocating the issues arising under the merits of their claim.

In Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville, 508 U.S. 656, 666, 113 S. Ct. 2297, 124 L. Ed. 2d 586 (1993), the United States Supreme Court stated, “[t]o establish standing ... a party challenging a set-aside program like Jacksonville’s need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.” The court later characterized its holding in that case to be that “a denial of a benefit in the bargaining process can itself create an Article III injury [one justiciable in federal court], irrespective of the end result.” Clinton v. New York, 524 U.S. 417, 433 n.22, 118 S. Ct. 2091, 141 L. Ed. 2d 393 (1998).

While the present case does not present an equal protection claim, the principles underlying the standing analysis in the equal protection cases are applicable to the plaintiffs’ freedom of association claim. The contractor members of the association allege, as do the subcontractors and employees, that the state, through the project labor agreement, is forcing an unwanted association upon them by requiring 90 percent of the employees on the project to be union members in violation of the first amendment to the United States constitution. “[A]t the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State.” Abood v. Board of Education, 431 U.S. 209, 234-35, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977). The alleged “injury in fact” here is a violation of the plaintiffs’ free association rights resulting from the imposition of the project labor agreement requirement in the bidding process. The plaintiffs have demonstrated that they are able and ready to bid on the project, and they claim that the unconstitutional requirements of the project labor agreement prevent them from doing so. I can think of no other parties that would be better suited to challenge the constitutionality of these requirements than these plaintiffs. I therefore conclude that the plaintiffs have established standing to pursue their freedom of association claim. I, of course, do not reach the merits of the plaintiffs’ claims as set out in their complaint, but would leave that to the trial court, after the plaintiffs have had their day in that court.

Accordingly, I respectfully dissent.

       The plaintiffs also included John Schleifer, an employee of All Electric, Inc., suing as an individual and a taxpayer. The trial court concluded that he lacked standing to challenge the bidding process. The plaintiffs’ appellate brief contains no argument in support of Schleifer’s standing as an individual or a taxpayer.

       The trial court permitted Fusco to intervene alter it had become the successful bidder on the project. The court did not permit intervention by the Connecticut Slate Building and Construction Trades Council,which has not pursued an appeal in this court.

       General Statutes § 4b-91 provides in relevant part that, except as otherwise stated: “(a.) Every contract for the construction, reconstruction, alteration, remodeling, repair or demolition of any public building for work by the state, which is estimated to cost more than two hundred fifty thousand dollars . . . shall be awarded to the lowest responsible and qualified general bidder on the basis of competitive bids in accordance with the procedures set forth in this chapter . . .

       GeneralStatut.es § 4b-92 provides in relevant part.: “As used in this chapter and except as otherwise provided, the words ‘lowest responsible and qualified bidder’ shall mean the bidder whose bid is the lowest, of those bidders possessing the skill, ability and integrity necessary to faithful performance of the work based on objective criteria considering past performance and financial responsibility. Essent ial information in regard to such qualifications shall be submitted with the bid in such form as the awarding authority may require by specification in the bid documents and on the bid form. . .

       Fusco also claimed that the issues raised by the plaintiffs were political questions beyond the jurisdiction of the court. That issue is not before us.

       The plaintiffs’ brief and the belated references to the statutes in their reply brief do not contain the reasoned analysis that would have been required to sustain such a claim.

       The trial court had addressed these issues, in some detail, in its memorandum of decision denying the commissioner’s motion to dismiss the complaint on grounds of sovereign immunity. The court noted the plaintiffs’ claim, in count one, that inclusion of a project labor agreement requirement in government contract specifications demonstrated favoritism toward unions. It referred to the plaintiffs’ contention, in count two, that the competitive bidding statutes did not expressly authorize use of a project labor agreement and that, if they did so impliedly, such authorization would constitute an unconstitutional delegation of legislative authority. It also determined that the plaintiffs’ complaint, under count three, contained sufficient factual allegations to support their constitutional cause of action under the first and fourteenth amendments to the United States constitution. Properly, the court did not assess the merits of the three count complaint, concluding only that the plaintiffs’ claims required further factual exploration and documentation.

       The plaintiff John Schleifer, an employee of All Electric, Inc., suing as an individual, shares the standing problem that requires dismissal of the claims of his employer. His interest as a person asserting a right to freedom of association does not give him standing to invalidate the bidding process, as we discuss in part II of this opinion.

       This conclusion applies as well to the claims of the plaintiff John Schleifer as an employee of All Electric, Inc. See footnote 1 of this opinion.

       We may presume that the plaintiffs rely on the rights under the first amendment to the federal constitution. They have advanced no claim under the state constitution in their arguments on appeal.

       As the defendants observe, the plaintiffs’ evidentiary showing at trial did not even include the preexisting collective bargaining agreements that were incorporated into the project labor agreement actually used by the commissioner for this project.

       The project labor agreement subjects all contractors to, inter alia, the terms of collective bargaining agreements, regardless of whether they have previously been parties to those agreements. The project labor agreement provides in relevant part: “Article III. Union Recognition and Employment. Section 1. The Contractor recognizes the Union as the sole and exclusive bargaining representative of all craft employees working on facilities within the scope of this Agreement. Section 2. Applicants for various classifications covered by the Agreement required by the Contractor on the Project shall be referred to the Contractor by the Local Union. The Contractor may bring ten percent (10%) of his workforce to the Project without utilizing the Local Union referral procedures. The Contractor shall have the right to determine the competency of all employees, the right to determine the number of employees required, and shall have the sole responsibility for selecting the employees to be laid off consistent with Article IV, Section 3, below and the attached Schedule A’s. The Contractor shall also have the right to reject any applicant referred by the Local Union, subject to the show-up payments required in the applicable Schedule A. . . . Section 4. All employees covered by this Agreement shall be subject to the union security provisions contained in the applicable Schedule A. . .

       The Jacksonville ordinance in question required that a certain percentage of the amount of money spent on city contracts each year be set aside for “minority business enterprises.”


source: Caselaw Access Project

author: PALMER, J. BERDON, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL WATSON
    (SC 15924)
    Borden, Berdon, Palmer, McDonald and Peters, Js.

    Argued March 23
    officially released November 30, 1999

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

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).

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

   Opinion

PALMER, J.

Following a jury trial, the defendant, Michael Watson, was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). In a subsequent but related proceeding, the trial court found the defendant to be a persistent dangerous felony offender under General Statutes (Rev. to 1993) § 53a-40, as amended by Public Acts 1994, No. 94-37, § 1. After the trial court rendered judgment sentencing the defendant to a total effective term of thirty years imprisonment, the defendant appealed and the Appellate Court affirmed his convictions. State v. Watson, 47 Conn. App. 794, 809, 707 A.2d 1278 (1998). We granted the defendant’s petition for certification limited to the foHowing two issues: “(1) Did the Appellate Court properly uphold the trial court’s instruction that the reasonable doubt standard and the presumption of innocence are ‘designed to protect the innocent and not the guilty’ . . . [and] (2) [d]id the Appellate Court properly conclude that the trial court properly permitted the state to cross-examine the defendant’s alibi witness regarding her failure to report the alibi to the proper authorities?” State v. Watson, 244 Conn. 928, 711 A.2d 729 (1998). We answer both of these issues in the affirmative and, consequently, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. “On the evening of December 17, 1994, Elaine Jackson and Christina Ramirez were employed at a sandwich shop in Bridgeport. At approximately 11 p.m., the defendant entered the store and asked for a soda. Ramirez waited on the defendant. He inquired about a telephone, and Ramirez indicated that there was one on the street comer. The defendant then displayed a gun and demanded money from Ramirez, who was standing next to the cash register. Ramirez called to Jackson, who observed the gun pointed at Ramirez. [Ramirez and Jackson] were behind a floor-to-ceiling partition that had an opening through which customers received their orders. The defendant kept the gun pointed at Ramirez and repeatedly demanded money. The defendant took the money that Ramirez removed from the cash register. He then pointed the gun at Jackson and demanded that she open the door leading to the rear of the store. Apparently unable to exit the store from the rear, he ordered [Ramirez and Jackson] to lie face down on the floor and to count to ten before moving. He left [through] the front door, and [Ramirez and Jackson] then notified the police and the store supervisor.

“[Ramirez and Jackson] described the defendant as a Hispanic male, five feet, five inches tall, who spoke broken English, had a gauze bandage over one eye and was wearing a red and black flannel jacket. Ramirez [and Jackson separately] selected the defendant’s photograph from a photographic array of eight males as being that of the perpetrator. The defendant was thereafter arrested.

“At trial, the defendant presented an alibi defense that on the evening of December 17,1994, he was attending a Christmas party at a club in Stratford with . . . Lisa Cabral, who [was his fiancee at that time]. Cabral testified that she was with him from shortly before 9:30 p.m. until after 12:15 a.m. She testified that the defendant had no accent or injury to his face. Two other witnesses testified that the defendant was at the party and that he had no accent and no injury to, or bandage on, his eye.” State v. Watson, supra, 47 Conn. App. 796-97.

The defendant claimed in the Appellate Court that “the trial court improperly (1) permitted cross-examination of an alibi witness about her failure to report the alibi, (2) denied the defendant’s motion for a mistrial, which he based on a reference by the prosecutor to his incarceration, (3) failed to inquire about a possible conflict of interest of defense counsel, (4) failed to find ineffective assistance of counsel, and (5) refused to permit the defendant to demonstrate his voice without being forced to testify.” Id., 795. The Appellate Court rejected these claims. See generally id., 797-809. In addition, the Appellate Court, in another published opinion; State v. Watson, 47 Conn. App. 771, 706 A.2d 1368 (1998); denied the defendant’s motion for permission to file a supplemental brief challenging the trial court’s instruction to the jury that the reasonable doubt standard and the presumption of innocence are rules “designed to protect the innocent and not the guilty.” (Internal quotation marks omitted.) Id., 772.

We granted certification to determine whether the Appellate Court properly rejected the defendant’s claims that the trial court improperly: (1) instructed the jury on reasonable doubt and the presumption of innocence; and (2) permitted the state to cross-examine Cabral, a defense witness, regarding her failure to notify either the police or the prosecuting authorities about her alibi story. We affirm the judgment of the Appellate Court.

I

We first consider the defendant’s claim that the trial court improperly instructed the jury that the principles of reasonable doubt and the presumption of innocence are designed “to protect the innocent and not the guilty.” Specifically, the defendant contends that this instruction “impermissibly diluted both the presumption of innocence and the reasonable doubt standard in violation of [his] federal and state constitutional guarantees of due process and a jury trial.” Because the defendant did not object to this instruction at trial, we consider his claim under the standard that we adopted in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), regarding unpreserved constitutional claims.

In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. Because the record is adequate for our review of the defendant’s claim, we address the merits of the claim.

Our resolution of the defendant’s claim is governed by this court’s unanimous en banc decision in State v. Schiappa, 248 Conn. 132, 167-77, 728 A.2d 466 (1999). As we recently stated in State v. Delvalle, 250 Conn. 466, 736 A.2d 125 (1999): “In Schiappa, we addressed a challenge to instructional language virtually identical to that used by the trial court in [Delvalle]. . . . ‘Now . . . the state does not desire the conviction of an innocent person or any person whose guilt upon the evidence is in the realm of reasonable doubt. The state has as much concern in having an innocent person acquitted as in having a guilty person punished. But for the safety and well-being of all persons of the state, for the protection of life and property, the state, of course, is concerned in securing the conviction of persons who have been proven by the evidence to have been guilty of committing . . . the crime or crimes charged beyond a reasonable doubt.

“ ‘It is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence which the law imputes to every person so charged by making the state meet its burden of proof of guilt beyond a reasonable doubt. But you must keep in mind that this rule of law is made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and to render such verdicts.’ . . ,

“In rejecting the defendant’s claim in Schiappa, we relied on the fact that, as in [Delvalle], the ‘challenged portion of the instruction was immediately preceded by language underscoring the presumption of innocence and the state’s burden of proof; [State v. Schiappa, supra, 248 Conn.] 172; and that ‘the allegedly improper language was immediately followed by an instruction that again emphasizes these two critical constitutional principles . . . .’ Id. We also observed in Schiappa that the trial court, both in its preliminary instructions prior to trial and in its final instructions to the jury at the conclusion of the trial, had ‘repeatedly apprised the jury [in clear and legally correct terms] regarding the presumption of innocence and the state’s burden of establishing guilt beyond a reasonable doubt.’ Id. As in Schiappa, the trial court in [Delvalle] repeatedly and accurately explained those principles in its preliminary and final instructions to the jury. [Delvalle], therefore, is indistinguishable from Schiappa.

“The defendant has provided no persuasive reason why we should reconsider our determination of this issue in Schiappa. Accordingly, we conclude, as we did in Schiappa, that ‘the trial court’s charge, when viewed in its entirety, adequately apprised the jury that the defendant was entitled to a presumption of innocence unless and until the state proved [him] guilty beyond a reasonable doubt.’ Id., 173.” (Citation omitted; emphasis in original.) State v. Delvalle, supra, 250 Conn. 471-72. In the absence of any reasonable possibility of juror confusion over the challenged instructional language in the present case, which is identical in all material respects to the challenged instructional language in both Schiappa and Delvalle-, see footnote 8 of this opinion and accompanying text; we reject the defendant’s constitutional claims.

II

The defendant also claims that the trial court improperly permitted the prosecutor to cross-examine Cabral, the defendant’s wife at the time of trial and one of his alibi witnesses, regarding her failure to report her alibi story to either the police or the prosecuting authorities. The defendant further contends that, under the circumstances of this case, the prosecutor’s cross-examination of Cabral violated his constitutional right to a fair trial. We disagree with both of these contentions.

The following additional facts are relevant to our resolution of this claim. At trial, Cabral testified on direct examination that she had been with the defendant, to whom she was engaged at the time, on the night of the crime. Specifically, she testified that she picked up the defendant at his parents’ home in Bridgeport just after 9 p.m. According to Cabral, the defendant was wearing a navy sports coat, black dress pants, a white shirt and a tie, did not have any bandages or patches on any part of his body that evening, and did not speak with an accent.

Cabral also testified that she and the defendant went to a party at the Odd Fellows club in Stratford, arriving there at approximately 10:15 p.m. According to Cabral, she and the defendant were late to the party and had missed dinner, but the hostess, Sonia Williams, provided them with some food. Cabral further testified that she and the defendant remained at the party for approximately two hours. Cabral indicated that after she and the defendant left the party, she drove the defendant straight to his parents’ home, then drove herself home.

On cross-examination, Cabral testified that she had learned, sometime in February, 1995, that the defendant had been arrested for the sandwich shop robbery. The prosecutor asked Cabral if she knew which police department had arrested the defendant for the robbery. Defense counsel objected to the question, claiming that it was irrelevant and outside the scope of direct examination. The trial court overruled the objection. Cabral then stated that she believed that the defendant had been arrested by officers of the Bridgeport police department. The prosecutor then asked Cabral when she had reported her alibi story to the police and, without objection, Cabral responded that she never had done so. Cabral also testified, again without objection, that she never had told the police about any other potential alibi witnesses. The prosecutor then inquired of Cabral whether she ever had informed the office of the state’s attorney that the defendant could not have committed the robbery because he was with her at a party when the robbery was committed. Defense counsel objected on the ground that the “assumption of this question [is] that there was some obligation [for her] to [have done] something.” The trial court overruled the objection, and Cabral stated that she also had not informed the office of the state’s attorney about her alibi story.

The prosecutor then asked Cabral whether she previously had come to court in connection with the defendant’s case. Defense counsel again objected, stating as follows: “If the [prosecutor] is going to continue this line of questioning, I think an offer of proof would be called for. It’s totally irrelevant and outside the scope of direct [examination].” The court then directed counsel to sidebar, where a brief, off-the-record discussion ensued.

At the conclusion of the sidebar conference, the prosecutor once again asked Cabral if she previously had come to court in connection with the defendant’s case. The trial court overruled defense counsel’s relevancy objection. Cabral then responded that the only other time she had appeared in court for the defendant’s case was during jury selection. The prosecutor, noting that Cabral already had testified that she had not told the police or the prosecuting authorities of her alibi story, asked Cabral, without objection, whether she ever had told anyone in “law enforcement” about the alibi. Cabral indicated that she had not. Finally, the prosecutor asked Cabral whether she was aware that the defendant “went to jail” when he was arrested. The trial court sustained an objection to that question by defense counsel, who then requested to be heard outside the presence of the jury. The trial court, noting that the end of the day was drawing near, excused the jury.

After the jury had been excused, defense counsel moved for a mistrial on the ground that the prosecutor had violated the trial court’s prior order precluding the state from adducing testimony regarding the fact that the defendant was incarcerated at the time of trial. The prosecutor responded that the question was proper because the state intended to demonstrate that, if Cabral’s alibi story were true, she would have notified the police or the prosecuting authorities about the alibi in an effort to obtain the defendant’s release from jail on the robbery charges at issue in this case. The trial court denied the defendant’s motion for a mistrial, explaining that the prosecutor had not sought to elicit information regarding the fact that the defendant was incarcerated at the time of trial but, rather, that he had been taken into custody at the time of his arrest. The trial court then adjourned court for the day.

On the next day of trial, the prosecutor requested permission to voir dire Cabral in order to make an offer of proof for further cross-examination. The trial court granted the prosecutor’s request. The prosecutor then elicited testimony from Cabral, outside the presence of the jury, that even though Cabral knew that the defendant had been in custody, in lieu of bond, since February, 1995, she nevertheless had failed to tell the police or the prosecuting authorities that the defendant could not have committed the robbery because he was at a party with Cabral and approximately 140 other people when the robbery occurred.

Defense counsel then briefly voir dired Cabral, raising, for the first time, the issue of whether Cabral had spoken to anyone else regarding her alibi story. In response to questioning from defense counsel, Cabral testified that, following the defendant’s arrest in connection with the robbery at issue in this case, the defendant had told Cabral that he was represented by Attorney William Schipul. Cabral also acknowledged that: (1) she had told Schipul’s office about her alibi story; (2) she had understood that Schipul was “in control of the case” and that he would decide what to do with the evidence in the case; and (3) she did not think that it was appropriate for her to go to the police or the office of the state’s attorney after telling Schipul about the alibi. At the conclusion of Cabral’s voir dire examination, defense counsel claimed that the prosecutor should not be permitted to elicit testimony from Cabral concerning her failure to notify the authorities of the alibi, even though she knew that the defendant remained incarcerated on the robbery charges, because she had taken appropriate steps to inform defense counsel of the alibi.

The trial court took a brief recess to review certain case law that the prosecutor had brought to the attention of the court and defense counsel prior to the voir dire examination of Cabral. After the recess, and following argument of counsel, the trial court precluded the prosecutor from further questioning Cabral about her knowledge of the defendant’s incarceration on the ground that the prejudicial effect of such testimony outweighed its probative value.

The jury then returned to the courtroom, and the prosecutor proceeded with some brief, additional cross-examination of Cabral unrelated to her failure to report the alibi to law enforcement officials. On redirect examination, however, defense counsel revisited the issue, eliciting testimony from Cabral that: (1) she had told Schipul about her alibi story; (2) she had understood that Schipul was in charge of handling the defendant’s case; and (3) she expected Schipul to use her information concerning the alibi in whatever way he deemed appropriate.

In closing argument, defense counsel defended Cabral for bringing her alibi story to him because he alone was charged with safeguarding the defendant’s rights. Defense counsel explained to the jury that it would have been futile for Cabral to have informed the authorities of her story because the state likely would not have dismissed the defendant’s case on the basis of an alibi provided by the defendant’s fiancee.

On appeal to this court, the defendant claims that the Appellate Court improperly concluded that the trial court properly permitted the state to cross-examine Cabral regarding her failure to tell the police or prosecuting authorities about her exculpatory information. Specifically, the defendant claims that such cross-examination was improper because Cabral had reported her version of the facts to defense counsel, who she reasonably believed would use that information appropriately and in the defendant’s best interests. Because the defendant failed to alert properly the trial court that Cabral had spoken to defense counsel, we reject the defendant’s claim of evidentiary impropriety.

“Our role in reviewing evidentiary rulings of the trial court is settled. This court has consistently held that trial courts are vested with broad discretion in rulings on relevancy and every reasonable presumption must be given in favor of the court’s ruling. . . . Evidence is relevant if it tends to establish a fact in issue or corroborates other direct evidence. . . . Rulings on such matters will be disturbed on appeal only upon a showing of a clear abuse of discretion.” (Internal quotation marks omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 184-85, 646 A.2d 195 (1994).

In State v. Ghere, 201 Conn. 289, 513 A.2d 1226 (1986), we stated that, “ [although we do not believe that an alibi witness has a duty to report an alibi story to the police or, for that matter, to any other person, a witness in many instances naturally may be expected to convey such information, especially when the witness is friendly with the accused.” Id., 304. We concluded that the “[fjailure of the witness to do so would, under [those] circumstances, constitute grounds for impeachment”; id.; because the failure to report an alibi under such circumstances is “relevant on the issue of credibility or, more specifically, the issue of fabrication.” Id.; see also State v. Jones, 205 Conn. 723, 737-38, 535 A.2d 808 (1988); State v. Mullings, 202 Conn. 1, 14-15, 519 A.2d 58 (1987).

Thereafter, in State v. Bryant, 202 Conn. 676, 705, 523 A.2d 451 (1987), we recognized that an alibi witness’ failure to report an alibi to law enforcement officials may not always be appropriate grist for the cross-examination mill. As we stated in Bryant, “some persons may routinely avoid contact with law enforcement authorities out of an ingrained sense of fear or mistrust of officialdom. . . . Others may refrain from volunteering information to the police or [prosecuting attorney] because they believe that their efforts to exonerate the suspect would be futile . . . [and] some may remain silent because they were explicitly instructed to do so by the defendant’s attorney. . . . These examples are, however, hardly exhaustive.” (Citation omitted; internal quotation marks omitted.) Id. Thus, in Bryant, we noted that “[i]t may be prudential for the trial court to have a bench conference to ascertain whether [a] witness refrained from speaking under the advice of defense counsel, for in such a case examination on the issue of the witness’ postconsultation silence would be improper and could well result in a mistrial.” (Internal quotation marks omitted.) Id., 705-706.

In this case, the defendant failed to object to the prosecutor’s cross-examination of Cabral on the ground that she had provided her alibi story to defense counsel; indeed, there is nothing in the record to indicate that, prior to the prosecutor’s voir dire examination of Cabral, either the state or the trial court was aware of the fact that Cabral had approached defense counsel and informed him of the alibi. Instead, defense counsel merely claimed that the prosecutor’s line of questioning was improper on the grounds that it was irrelevant and beyond the scope of direct examination. In light of our holding in Ghere, however, and in the absence of any notice to the trial court that Cabral had informed defense counsel about her alibi story, the court reasonably concluded that the prosecutor’s line of questioning was proper because, in light of Cabral’s close, personal relationship with the defendant, “it would only have been natural for [Cabral] to exculpate the defendant of any wrongdoing by approaching [law enforcement officials].” State v. Ghere, supra, 201 Conn. 305. To reach a different conclusion “would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 311, 664 A.2d 743 (1995); accord State v. Newsome, 238 Conn. 588, 597, 682 A.2d 972 (1996).

The defendant also contends, however, that even if his claim of evidentiary impropriety was not preserved properly, the prosecutor’s cross-examination of Cabral violated his due process right to a fair trial. The defendant seeks to prevail on his constitutional claim under State v. Golding, supra, 213 Conn. 239-40. While the record is adequate for our review of the defendant’s unpreserved constitutional claim, we reject his contention that the testimony the prosecutor elicited from Cabral on cross-examination violated the defendant’s due process rights.

“Due process seeks to assure a defendant a fair trial, not a perfect one.” State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982); accord State v. Rhodes, 248 Conn. 39, 47, 726 A.2d 513 (1999); State v. Daugaard, 231 Conn. 195, 218, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). Thus, principles of due process are violated only if the alleged impropriety so compromised the integrity of the trial as to call into question the reliability of the verdict.

Although the jurors learned of Cabral’s failure to contact the police or prosecuting authorities regarding her alibi story, they also learned that Cabral had informed defense counsel of her version of the events and, furthermore, that she believed that defense counsel would use her information as he deemed appropriate, in the defendant’s best interests. Cabral’s entirely plausible explanation was buttressed by defense counsel who, in closing argument, stated that Cabral, by informing him that she was with the defendant when the robbery occurred, had done “the reasonable thing.” Defense counsel further explained to the jury that it would be naive for the jury to think that the state would have dropped the charges against the defendant if Cabral, his fiancee at the time, had informed the police or the prosecuting authorities that the defendant was with her on the night of the robbery. Furthermore, the prosecutor, in closing argument, did not mention the fact that Cabral had failed to notify law enforcement officials of her alibi story. Finally, the prosecutor did not attempt to adduce testimony indicating that Cabral had refrained from speaking to the police or prosecuting authorities on the advice of defense counsel, nor did the defendant ever claim that Cabral had received such advice from defense counsel. See State v. Bryant, supra, 202 Conn. 705-706 (noting impropriety of cross-examining alibi witness’ postconsultation silence if that “witness refrained from speaking [to law enforcement officials] under the advice of defense counsel” [internal quotation marks omitted]). Thus, as the Appellate Court stated, “Cabral was given an opportunity to explain her silence without having to divulge the substance of any conversation with defense counsel.” State v. Watson, supra, 47 Conn. App. 802. Under such circumstances, we cannot conclude that Cabral’s testimony regarding her failure to notify law enforcement officials of her alibi story so tainted the trial as to cast doubt on its fundamental fairness. Consequently, the defendant’s constitutional claim must fail.

The judgment of the Appellate Court is affirmed.

In this opinion BORDEN, MCDONALD and PETERS, Js., concurred.

BERDON, J.,

dissenting. I would reverse the conviction of the defendant, Michael Watson, on the ground that his due process rights were violated when the trial court instructed the jury that the reasonable doubt standard and the presumption of innocence are “designed to protect the innocent and not the guilty” (protect-the-innocent instruction). Although the majority has finally agreed with me that the protect-the-innocent instruction should not have been given, they refuse to reverse the defendant’s conviction because, in the context in which the jury was instructed, it did not reach constitutional proportions. The majority reaches this amazing conclusion based upon two recent cases — State v. Delvalle, 250 Conn. 466, 736 A.2d 125 (1999), and State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (1999). The constitutional aspects of the protect-the-innocent instruction were wrongly decided in Schiappa and Delvalle, standing the holding of United States v. Doyle, 130 F.3d 523 (2d Cir. 1997), on its head.

As early as 1992,1 urged this court to disapprove of this problematic protect-the-innocent instruction because it unconstitutionally dilutes the presumption of innocence and the reasonable doubt standard. See State v. Stanley, 223 Conn. 674, 702-703, 613 A.2d 788 (1992) (Berdon, J., dissenting); see also State v. Hines, 243 Conn. 796, 824, 709 A.2d 522 (1998) (Berdon, J., dissenting). Justice Borden, writing for the majority in Stanley, sharply rejected the defendant’s argument that the court should “change its mind” about allowing the protect-the-innocent instruction by tersely stating, “[w]e do not change our mind.” State v. Stanley, supra, 695. Seven years later, in State v. Schiappa, supra, 248 Conn. 168, this court finally started to change its mind by holding that “[although we disapprove of the challenged language and, pursuant to our supervisory authority over the administration of justice, direct our trial courts to refrain from using the challenged language in future cases, we nevertheless reject the defendant’s constitutional claim.” See also State v. Delvalle, supra, 250 Conn. 475. As I will discuss later in this dissent, I do not think Schiappa was decided correctly. I agree with the majority in Schiappa that the protect-the-innocent instruction should not be given under any circumstance but I disagree that the instruction did not reach constitutional proportions.

Unfortunately, over the course of the years, this jury instruction, which the majority has finally recognized as being improper, probably misled many jurors. Of course, we will never know the true extent of the injustice caused by the protect-the-innocent instruction. Indeed, in addition to the present case, this court certified for appeal a review of a similar jury instruction that “ ‘the law is made to protect society and innocent persons, and not to protect guilty ones.’ ” State v. Coleman, 245 Conn. 907, 718 A.2d 15 (1998). So long as the trial courts continue to use it and this court continues to find no reversible error, we will convict criminal defendants without regard to their constitutional rights.

Any doubt as to the unconstitutionality of the protect-the-innocent instruction was put to rest by the Second Circuit Court of Appeals in United States v. Doyle, supra, 130 F.3d 523. In Doyle, the court held that an instruction violated the defendant’s federal constitutional right to due process and, consequently, reversed the defendant’s conviction. Id., 539. Several other federal circuit courts have reversed convictions based on similar jury instructions that imply that the reasonable doubt standard does not apply to guilty individuals. See, e.g., United States v. Bridges, 499 F.2d 179 (7th Cir. 1974); Reynolds v. United States, 238 F.2d 460 (9th Cir. 1956); Gomila v. United States, 146 F.2d 372 (5th Cir. 1944). We should join the Second Circuit and “reaffirm the proposition that the presumption of innocence and the beyond-a-reasonable doubt standard apply to all criminal defendants without regard to their actual guilt or innocence.” United States v. Doyle, supra, 538.

As I have advocated since my dissent in State v. Stanley, supra, 223 Conn. 702-703, this jury instruction violates a defendant’s due process rights by impermissibly diluting the presumption of innocence and the state’s burden to prove the defendant guilty beyond a reasonable doubt. See also United States v. Doyle, supra, 130 F.3d 533. The due process clause protects the criminal defendant’s right to a presumption of innocence until proven guilty. It also requires that this presumption continues until the prosecution satisfies its evidentiary burden of proof. See In re Winship, 397 U.S. 358, 361-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); United States v. Doyle, supra, 538-39. Thus, when a jury is instructed improperly on the presumption of innocence, it dilutes the state’s burden of proving guilt beyond a reasonable doubt.

Jury instructions are the primary mechanism through which the trial court guides jurors in their deliberations. “To be a meaningful safeguard, the reasonable doubt standard must have a tangible meaning that is capable of being understood by those who are required to apply it. It must be stated accurately and with the precision owed to those whose liberty or life is at risk. Because of the extraordinarily high stakes in criminal trials, ‘[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.’ ” Victor v. Nebraska, 511 U.S. 1, 29, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) (Blackmun, J., concurring and dissenting). Similarly, the Second Circuit in Doyle recognized the potential for this challenged language to interfere with jurors’ reasoning process. United States v. Doyle, supra, 130 F.3d 538-39. Ideally, jurors presume that the defendant is innocent until the prosecution satisfies its burden of proof. By instructing jurors that the presumption of innocence protects only the innocent and not the guilty, the trial court suggests to jurors that their assessment of the defendant’s guilt is separate and distinct from the prosecution’s burden of proving guilt beyond a reasonable doubt. “[I]t implies that a person who is actually guilty, in the sense of ‘what really happened,’ as opposed to the sense of having been legally determined to be guilty, is not entitled to the presumption of innocence through trial and deliberations.” Id., 538. The consequence of asking jurors to assess guilt too early is that “[t]he presumption of innocence and the reasonable doubt standard are eviscerated if the jury believes that it must, or even may, make a determination of the defendant’s guilt or innocence before evaluating the strength of the Government’s case.” Id.

The instruction may also undermine the allocation of decision-making authority by permitting the jury to infer that the judge herself believes that the defendant is guilty. “A natural inclination of some jurors may be to assume that, because the defendant has been selected for prosecution, he must be guilty. One of the greatest responsibilities of the trial judge is her duty to overcome that inclination by impressing upon the jury the importance of the presumption of innocence and of the Government’s burden to prove guilt beyond a reasonable doubt. ... As the Supreme Court noted in [In re Winship, supra, 397 U.S. 363-64], the reasonable doubt standard is vital in part because it ensures against unjust convictions and reduces the risk of factual error. ... In order to reduce those risks, then, the jurors must be made to see that the case against the defendant begins as a tabula rasa, a slate upon which may be written only such marks as derive from the evidence admitted at trial. Unless and until the Government meets its burden of proof beyond a reasonable doubt, the presumption of innocence remains with the accused regardless of the fact that he has been charged with the crime, regardless of what is said about him at trial, regardless of whether the jurors believe that he is likely guilty, regardless of whether he is actually guilty. The presumption attaches to those who are actually innocent and to those who are actually guilty alike throughout all stages of the trial and deliberations unless and until that burden is met. A jury charge which implies otherwise creates a serious risk of undermining that vital protection.” (Citations omitted.) United States v. Doyle, supra, 130 F.3d 538-39.

In the present case, the majority summarily concludes, as it did in Schiappa and Delvalle, that the trial court repeatedly and accurately explained those required principles in its preliminary and final instructions to the juiy. Therefore, according to the majority, the protect-the-innocent instruction was harmless. While the majority finds the present case is indistinguishable from Schiappa and Delvalle, from my perspective both those cases were wrongly decided.

In Schiappa, the court relied on the language in Doyle that if the jury instruction correctly and repeatedly explained the presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt it would pass constitutional muster. State v. Schiappa, supra, 248 Conn. 172-74; see United States v. Doyle, supra, 130 F.3d 539. The Schiappa court pointed out the numerous references that were made in the instructions to the burden of proof and the presumption of innocence. State v. Schiappa, supra, 172-73. But in the present case, as well as in Schiappa, those references cannot overcome the likelihood that the jury misinterpreted its instructions for several reasons.

First, although Doyle referred to the repeatedly correct instructions, in my view the Second Circuit did not merely have references to the constitutional guarantees but, rather it referred to complete statements of the presumption of innocence and the state’s burden of proof. United States v. Doyle, supra, 130 F.3d 539. By contrast, the so-called repeated instructions upon which the court in Schiappa, and the majority in this case, rely were mere fragmented references to those constitutional principles. State v. Schiappa, supra, 248 Conn. 168-69.

Second, this case is even more compelling than Doyle, wherein a correct instruction was given at the end of the trial court’s substantive instructions to the jury. United States v. Doyle, supra, 130 F.3d 539 (“[wjhile [the] final section of the court’s instructions was undoubtedly more appropriately worded than was its reference to guilty defendants, we nevertheless agree . . . [that] ‘[w]hat influences juries, courts seldom know’ ”). In Schiappa and in this case, the improper instruction was given at the end of the substantive part of the jury instructions and after any further references were made to the burden of proof and presumption of innocence instructions. State v. Schiappa, supra, 248 Conn. 169-71.

The final instruction on the substantive law given by the trial court in this case was: “It is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence which the law imputes to every person so charged by making the state meet its burden of proof beyond a reasonable doubt. But, you must keep in mind that this rule of law is made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and to render a verdict of guilty.” (Emphasis added.) This court has long noted the magnitude of the effect of the last words heard by a jury. See State v. Gallivan, 75 Conn. 326, 333-34, 53 A. 731 (1902) (“[wjhere the court . . . returns to a subject considered [earlier] and gives additional instructions in regard to it, the jury may naturally regard them, so far as they may state a new and different rule, to be intended to qualify, as a last word, that which had been previously said”). In effect, the incorrect statement of the law was followed by an admonition to find the defendant guilty. In this context, the jurors reasonably could have believed that if the defendant was guilty, then it was not necessary to apply the presumption of innocence until the state satisfied its burden of proving guilt beyond a reasonable doubt.

Third, notwithstanding the repeatedly correct instruction language in Doyle, the Second Circuit recognized that its prior opinion in United States v. Bifield, 702 F.2d 342 (2d Cir. 1983), on the protect-the-innocent instructions “addressed only the aspect of the presumption of innocence, and not the effect of the charge upon the reasonable doubt standard. For our purposes, [the Second Circuit recognized that] this is a critical distinction: the Supreme Court has provided new and definitive guidance reinforcing the importance of the reasonable doubt standard in the years since Bifield. For these reasons, we take a fresh look at whether this instruction violates a criminal defendant’s rights to the presumption of innocence and to have his guilt established by the Government beyond a reasonable doubt, while keeping in mind our repeated disapproval of the instruction in question in the past.

“ ‘The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of our criminal law.’ Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 403, 39 L. Ed. 481 (1895). This presumption ‘is a basic component of a fair trial,’ Estelle v. Williams, 425 U.S, 501, 503, 95 S. Ct. 1691, 1692, 48 L. Ed. 2d 126 (1976), and derives from the Due Process Clauses under the Fifth and Fourteenth Amendments of the Constitution, Taylor v. Kentucky, 436 U.S. 478, 485-86 n.13, 98 S. Ct. 1930, 1935 n.13, 56 L. Ed. 2d 468 (1978). Likewise, requiring the Government to carry the heavy burden of proving a defendant guilty beyond a reasonable doubt is sacrosanct law and derives from the Due Process Clause. In re Winship, [supra, 397 U.S. 361-64] (conviction requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged). See also Jackson v. Virginia, 443 U.S. 307, 313-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979) (habeas petition following state conviction) (proof beyond a reasonable doubt must be established for every element of the crime charged). [In re Winship] made clear that the reasonable doubt standard is the means by which the presumption of innocence is implemented. [In re Winship, supra, 363]. Because our system entrusts the jury with the primary responsibility of implementing the substantive protections promised by the reasonable doubt standard, reasonable doubt jury instructions which appropriately convey [In re Winship] concepts are critical to the constitutionality of a conviction. See, e.g., Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990). Similarly, the Court has recognized that ‘an instruction on the presumption [of innocence] is [the] one way of impressing upon the jury the importance of that right.’ Taylor [v. Kentucky, supra, 485] (collecting cases). The case at bar thus squarely implicates both principles of law.” United States v. Doyle, supra, 130 F.3d 534-35.

As pointed out in Doyle, “ [w] e cannot be sure whether [the] jury actually misunderstood its obligations under the presumption of innocence and the reasonable doubt standard. But . . . we need not be sure. We need only determine whether there is a reasonable likelihood, even if less than a probability, that the jury misunderstood these principles of law.” Id., 539. In sum, I conclude in this case that it was reasonably likely that the jury unconstitutionally applied the protect-the-innocent instruction. Therefore, I would hold that the defendant’s federal constitutional right to due process was violated, reverse the judgment of conviction and remand the case for a new trial.

Accordingly, I dissent.

       General Statutes § 53a-134 provides in relevant part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”
      General Statutes § 53a-133 defines robbery as follows: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of ihe property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes (Rev. to 1993) § 53a-40, as amended by Public Acts 1994, No. 94-37, § 1, provides in relevant part: “(a) A persistent dangerous felony offender is aperson who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, aggravated sexual assault in the first degree, sexual assault in the third degree with a firearm, robbery in the first or second degree, or assault in the first degree, and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (A) The crimes enumerated in subdivision (1) of this subsection ....
      * * *
      “(f) When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35 forthe crime of which suchperson presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981, shall sentence such person to a term of imprisonment of not more than forty years and, if such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in subdivision (2) of subsection (a) of this section, sentence such person to a term of imprisonment of not more than life. . . .”
      The defendant previously had been convicted of robbery in the second degree.

       The defendant originally appealed to this court. We transferred the appeal to the Appellate Courtpursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

         As the Appellate Court noted, the defendant filed his motion for permission to submit a supplemental brief “in light of United States v. Doyle, 130 F.3d 523 (2d Cir. 1997).” State v. Watson, supra, 47 Conn. App. 771. “In Doyle, the defendants appealed from a judgment of conviction, arguing that the [federal] District Court committed reversible error when it instructed the jury that the reasonable doubt standard and the presumption of innocence were rules ‘designed to protect the innocent and not the guilty.’ [United States v. Doyle, supra,] 533. The United States Court of Appeals for the Second Circuit agreed with the defendants [in Doyle\ and held that such a jury charge ‘incorrectly states both the reasonable doubt standard and the presumption of innocence.’ Id., 538.” State v. Watson, supra, 772. In recognition of the fact that this court consistently had approved such jury instructions, and noting that the Appellate Court, is bound by decisions of this court and not the decisions of the United States Courts of Appeals, the Appellate Court denied the defendant’s motion because “the issue that the defendant [sought] to brief would not [have] affect[ed] [its] decision in [that] case.” Id.

       Because the defendant has failed to provide an independent analysis of his state constitutional claims, we limit our review to the defendant’s claims under the federal constitution. E.g., State v. Beltran, 246 Conn. 268, 277 n.7, 717 A.2d 168 (1998).

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” The sixth amendment right to a jury trial is made applicable to the states through the fourteenth amendment due process clause. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); see footnote 6 of this opinion.

       The challenged language in the present case is identical in all material respects to the language of the instructions at issue in both Schiappa and Delvalle, and, as in those cases, was preceded and followed by language emphasizing the presumption of innocence and the state’s burden of proof.

       “Although, in Schiappa, we rejected the defendant’s constitutional claim, we also acknowledged that ‘[bjecause the guilty as weE as the innocent are entitled to the protections afforded by the presumption of innocence and the reasonable doubt standard, the chaflenged portion of the charge, when viewed in isolation, gives rise to a danger of juror misunderstanding.’ State v. Schiappa, supra, 248 Conn. 175. We, therefore, exercised our supervisory authority over the administration of justice to direct our trial courts to refrain from using such language in future cases.” State v. Delvalle, supra, 250 Conn. 473 n.10.
      It should be noted that the trial of the defendant’s case was concluded prior to the issuance of our opinion in Schiappa.

       Williams testified that she had seen Cabral and the defendant at the party that night, and that she had reheated some food for them a little after 10 p.m.

       Cabral also resided in Bridgeport.

       At the time of his arrest in this case, and during the pendency of the trial, the defendant was incarcerated on unrelated charges.

       The prosecutor explained the reason for his question as follows: “If it’s relevant that an individual knows that someone is innocent and has been arrested wrongfully, if it’s relevant they never went to the police department and informed the police of that, how much more relevant is it when they know it’s your husband you cared enough to marry locked up in jail and you make no effort to inform anyone this is a wrongful arrest. It is a totally relevant and appropriate question to be asked at this point.”

       The trial court’s denial of the defendant’s motion for a mistrial is not a subject of this appeal.

       Schipul represented the defendant throughout the trial in this case.

       This case law, which is pertinent to the issue raised by the defendant, and which is discussed more fully hereinafter, includes State v. Jones, 205 Conn. 723, 535 A.2d 808 (1988), State v. Bryant, 202 Conn. 676, 523 A.2d 451 (1987), State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987), and State v. Ghere, 201 Conn. 289, 513 A.2d 1226 (1986).

       The trial court gave several reasons for its ruling, including the fact that testimony regarding the defendant’s incarceration after his arrest on the robbery charges might open the door to testimony about certain “other matters” for which the defendant also had been incarcerated. In addition, the court noted that the state’s proffered cross-examination of Cabral could lead to testimony regarding the advice that Schipul had given to her when she told him of the alibi, an issue that the trial court characterized as “extraneous.”

       Cabral testified in relevant part as follows:
      “[William Schipul, Defense Counsel]: You heard [the prosecutor] ask you whether you had gone to the police with information that [the defendant] had been at a party on the evening of [December 17, 1994], is that correct?
      “[Cabral]: Yes.
      “[Schipul]: Did you tell anybody about him being at a party on the evening of [December 17]?
      “[Cabral]: Yes.
      “[Schipul]: And who did you tell about being at the party on the evening of [December 17]?
      “[Cabral]: His legal representative, you, Attorney Schipul.
      “[Schipul]: Who was in charge of [the defendant’s] case, in the way that case would be presented, in the way that case would be investigated [and] in the way that case would be handled, to the best of your knowledge?

        “[Cabral]: To the best of my knowledge, you, Attorney Schipul.
      “[Schipul]: And who was the only representative that [the defendant] had, the representative who was charged to represent his rights, to the best of his ability?
      “[Cabral]: You.
      “[Schipul]: [And] why didn’t you go to the prosecutor and police with that information?
      “[Cabral]: Because I trusted you to discern the information and use it as it was, as representing my husband.”

       Defense counsel argued in relevant part: “Now, [Cabral] did not go to the police department and [she] did not go to the prosecutor’s office. [Cabral] did the reasonable thing. [She] went to the . . . attorney’s office. [Cabral] knows the only person who has the best interest of his client in mind is the defense attorney and he would make the best choice of what to do with the information because common sense tells you, once an arrest takes place, it’s much more difficult to undo an arrest after it’s taken place and this arrest had taken place. Do you think [that] if somebody marched in and said, ‘I’m the wife of the defendant in this case and he wasn’t there,’ . . . they would just have said . . . we’ll dismiss this case? They would say that is up to the jury to decide: by the way, what is your name and sit down. We’ll have a chat, but we’re not going to dismiss that case. We’re not going to dismiss that case. That goes against reason because if that were the case I guess there is probably a bridge in Brooklyn that might be for sale. In order to prove what actually happened, [the defendant] is relying on you, the jury. He’s not relying on the police. He knows the police made a mistake. Once you commit yourself to something, you tend to go down that road. You tend to stick with that perception. You tend to dig in and say I’m not wrong. You got it wrong. I’m not wrong.”

       As the defendant conceded in his brief to this court: “The state was apparently surprised by the [testimony of Cabral] because [the state had] not filed a demand for notice of alibi pursuant to [Practice Book] § 40-21.”

       The evidence also established that Cabral, a Bridgeport resident, had numerous opportunities to notify the police or the prosecuting authorities of her alibi story.

       We note, moreover, that the defendant never sought a curative or cautionary instruction regarding Cabral’s testimony on cross-examination.

       Thus, defense counsel, instead of seeking a curative or cautionary instruction regarding Cabral’s testimony on cross-examination; see footnote 22 of the opinion; chose to address the issue of her failure to alert the police or prosecuting authorities about her alibi story by highlighting the fact that Cabral had informed defense counsel.

       For purposes of future cases, we note that both the state and the accused can assist the trial court in avoiding the problems that gave rise to the defendant’s claim in this case. For example, the state has the right to obtain the names and addresses of alibi witnesses pursuant to Practice Book § 40-21 and, consequently, can determine whom the defendant intends to call in support of his or her alibi defense. Furthermore, the accused may file a motion in limine detailing the reasons why cross-examination of an alibi witness concerning that witness’ failure to report the alibi to law enforcement officials would be inappropriate.

       A more extensive portion of the trial court’s instructions in this case appears later in this opinion.

       I was not assigned to sit on the panel for Schiappa, which was decided by a full court of seven justices (a senior justice was selected to complete the panel of seven). Nor was I assigned to the panel of five justices that decided Delvalle.

      I have long been of the view that every case heard in this court should be by an en banc panel consisting of the chief justice and six associate justices. Senior justices should participate on an en banc panel only if there is a disqualification of the chief justice or an associate justice. This will assure that all the justices of this court would have an opportunity to participate and express their views on all the issues that come before the court so that justice is not dispensed by the luck of the draw. Furthermore, if an issue is important enough to come to this court, an en banc panel should review it.

       The protect-the-innocent instruction could well have influenced the jury’s determination that the defendant in Stanley was guilty of murder because the evidence to support an intent to kill was paper-thin.

       Although the entire text ol' the instructions given to the jury in Doyle is not available to me, I suspect that there also were numerous fragmented references to the government’s burden of proof and the presumption of innocence.

       In Sch'i appa, this court interpreted the challenged language in the context of the jury instruction as a whole. The court rationalized that “in light of the totality of the trial court’s instructions in this case, we see no compelling reason to deviate from our prior constitutional precedent. The court, in clear and legally correct terms, repeatedly apprised the jury regarding the presumption of innocence and the state’s burden of establishing guilt beyond a reasonable doubt.” State v. Schiappa, supra, 248 Conn. 172. It is important, however, to consider not just that references were made but the sufficiency of these repeated references.
      The court in Schiappa summarized the applicable instructions noting that the jury received reminders that the state had a burden to prove guilt beyond a reasonable doubt and the defendant did not have a corresponding burden. See id., 168. Subsequently, the trial court gave explicit instructions as follows: (1) “ ‘every defendant in a criminal case is presumed to be innocent and this presumption of innocence remains with the defendant throughout the trial unless and until she is proven guilty beyond a reasonable doubt’ (2) “ ‘the state has the burden of proof as to all the necessary elements of the crimes charged beyond a reasonable doubt and the defendant has [no] burden to prove or disprove anything’ and (3) “[t]he jury must acquit the defendant if the state failed to establish ‘each and every element of the particular crime charged beyond a reasonable doubt Id., 168-69.
      What the majority considers as repeated references to the defendant’s constitutional rights can be seen only as fragmented references to abstract legal concepts. In the spirit of more is better, the majority ignores the likelihood that abstract legal concepts may be meaningless to the lay juror no matter how many times they are repeated.

       The remaining instructions by the trial court after the protect-the-innocent instruction referred to the requirement of a unanimous verdict and to procedural matters such as the selection of a foreperson.

       I suspect that this was also the case in Schiappa because the protect-the-innocent instruction was part of the informal pattern jury instructions utilized by the trial judges. Indeed, in Justice Borden’s treatise on criminal jury instructions, which he authored with Professor Orland, the instructions recommended to be given at the conclusion of the charge were as follows: “It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence, which the law gives to every person so charged. But the law is made to protect society and innocent persons, and not to protect guilty ones. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that an accused person is guilty of the crime charged, then it is the sworn duty of the jury to enforce the law and to render a verdict of guilty.” (Emphasis added.) D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (2d Ed. 1997) § 4.3, pp. 222-23.


author: PER CURIAM. BERDON, J.,

text:
    STATE OF CONNECTICUT v. CHARLES W. COLEMAN
    (SC 15947)
    Borden, Berdon, Palmer, McDonald and Peters, Js.

    Argued March 23
    officially released November 30, 1999

      Richard Emanuel, special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Timothy J. Sugrue, executive assistant state’s attorney, John Waddock, senior assistant state’s attorney, and Susann E. Gill, assistant state’s attorney, for the appellee (state).

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

   Opinion

PER CURIAM.

The defendant, Charles Coleman, was convicted, after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), burglary in the second degree in violation of General Statutes § 53a-102 (a), sexual assault in the first degree in violation of General Statutes (Rev. to 1985) § 53a-70 (a), and unlawful restraint in the first degree in violation of General Statutes (Rev. to 1985) § 53a-95. The Appellate Court originally reversed the judgment of conviction for what it perceived to be an evidentiary error by the trial court; State v. Coleman, 42 Conn. App. 78, 80, 679 A.2d 950 (1996); and, on a certified appeal from that judgment, we reversed the judgment of the Appellate Court and remanded the case to that court for consideration of the defendant’s remaining claims. State v. Coleman, 241 Conn. 784, 792, 699 A.2d 91 (1997).

Following our remand, the Appellate Court reversed the trial court’s judgment only as to the conviction of burglary in the second degree, and affirmed the judgment in all other respects. State v. Coleman, 48 Conn. App. 260, 274, 709 A.2d 590 (1998). We then granted the defendant’s certification to appeal from the judgment of the Appellate Court, limited to the following two issues: “1. Should this court review the defendant’s challenge to the trial court’s instructions that ‘the law is made to protect society and innocent persons, and not to protect guilty ones?’ ” and “2. If the answer to the first question is yes, did the instructions violate the defendant’s federal or state constitutional rights to have the jury adequately instructed regarding the presumption of innocence and the concept of reasonable doubt?” State v. Coleman, 245 Conn. 907, 718 A.2d 15 (1998). This certified appeal followed.

This case is controlled by our recently issued decision in State v. Schiappa, 248 Conn. 132, 167-77, 728 A.2d 466 (1999). In that case, we considered and rejected claims essentially identical to those presented by the certified questions in the present appeal.

The judgment of the Appellate Court is affirmed.

BERDON, J.,

dissenting. I would reverse the conviction of the defendant, Charles Coleman, on the ground that the trial court’s jury instruction — “the law is made to protect society and innocent persons, and not to protect guilty ones” — was unconstitutional. As I explain in my dissent in State v. Watson, 251 Conn. 220, 244-49, 740 A.2d 832 (1999), this court’s decision in State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (1999), was wrongly decided. Instead, this court should be guided by the reasoning set forth in the Second Circuit Court of Appeals’ decision in United States v. Doyle, 130 F.3d 532, 539 (2d Cir. 1997), and should hold that the challenged language of the jury instruction in this case “created a reasonable likelihood that the jury misunderstood the reasonable doubt standard and the presumption of innocence.”

Accordingly, I dissent.

       I was not assigned to sit on the panel for Schiappa, which was decided by a full court of seven justices (a senior justice was selected to complete the panel of seven). Nor was I assigned to the panel of five justices that decided State v. Delvalle, 250 Conn. 466, 736 A.2d 125 (1999).