author: Glass, J.

text:
    Tshambi Sekou v. Warden, State Prison
    (14061)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued October 4—
    decision released December 25, 1990

      Stephen M. Carney and Mary Chromik, certified legal interns, and Timothy H. Everett, with whom, on the brief, were Todd D. Fernow and Michael R. Sheldon, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (respondent).
   Glass, J.

The petitioner, Tshambi Sekou, also known as Anthony Saia, has appealed from the dismissal of his petition for a writ of habeas corpus, in which he sought to vacate the judgment of the Superior Court convicting him of arson in the first degree in violation of General Statutes § 53a-3.ll. Before the habeas court, Sekou alleged that: (1) the judgment of conviction was procured in violation of his federal and state constitutional rights to counsel of his choice; and (2) his appellate counsel rendered ineffective assistance in neglecting to raise certain constitutional issues for our review in his direct appeal, namely, that the trial court deprived him of his federal and state constitutional rights to a fair trial, and his federal constitutional right to be present at his trial. The habeas court rejected each of Sekou’s claims, and dismissed his petition. We agree with the habeas court that Sekou’s conviction was not procured in violation of his constitutional rights, and that his appellate counsel did not render ineffective assistance. Accordingly, we affirm the decision of the habeas court dismissing his petition for a writ of habeas corpus.

Our review of the habeas court’s decision requires that we consider certain events that took place at Sekou’s first trial upon the arson charge in January, 1972, in order to illuminate the significance of those that occurred at his second trial upon the same charge in June, 1972, during which his constitutional rights were allegedly violated. After his arrest in October, 1971, Sekou applied for appointed counsel, and attorney Richard Scalo from the office of the public defender was appointed to represent him at the January trial. Michael Mahigel, a friend of Sekou’s, subsequently offered to pay private attorney Charles Hanken to defend Sekou at the January trial. Hanken apparently agreed to defend Sekou, but declined to do so after the court denied his request for a continuance.

On the first day of the January trial, Scalo filed a motion requesting that Sekou undergo a mental competency examination. Sekou argued before the court in support of the motion. On the basis of his apparent intelligence and “model” behavior in the courtroom, the court determined that he could understand the proceedings and assist in his defense and denied the motion. On the following day, Sekou was injured when his hands and/or his head went through a window at the courthouse. The court then declared the January trial a mistrial, and ordered Sekou to submit to a competency examination.

Thereafter, a psychiatrist reported that Sekou’s behavior “when taken to court recently and more recent behavior at Somers [prison] indicates that he is making a conscious and planned attempt to avoid prosecution. . . . Past and present behavior indicate that this man will go to any extreme to gratify immediate desires. He should be considered extremely dangerous.” In light of the psychiatric report, the court found Sekou competent to stand trial. On May 2, 1972, this court dismissed Sekou’s appeal from that finding. State v. Saia, 163 Conn. 621, 290 A.2d 357 (1972).

Sometime during the last week of April or at the beginning of May, 1972, Scalo notified Sekou, who at that time had been incarcerated in Somers prison, that his retrial would commence on June 6, 1972. Sekou mailed letters to Hanken and private attorney Leo Fla-herty in mid-May, requesting their assistance at the upcoming June trial. Sekou received a response from Flaherty, who declined the request. He never heard from Hanken. At the habeas hearing, Mahigel testified that he had been unaware that Sekou had been retried in June, 1972, but that if he had known of it, he would have provided Sekou with the funds necessary to hire private counsel.

As a result of a riot at Somers prison, the prison was generally closed to outside visitors and inmates’ telephone privileges were curtailed from May 23 to May 30, and from June 1 to June 4, 1972. Mail privileges also may have been restricted during that period. On June 1, 1972, Sekou obtained an order from a judge presiding over an unrelated proceeding at the prison that he be allowed to consult with Hanken when he arrived at court for the June trial. Upon his arrival, however, Sekou discovered that Hanken was not present in the courthouse. He also learned that Scalo had departed from the public defender’s office for private practice, and that attorneys James Diorio and Dominick Galluzzo, both assistant public defenders, had been assigned to represent him in Scalo’s place.

Diorio testified at the habeas hearing that he had been able to discuss the case with Sekou while the court considered preliminary matters for one and one-half days before jury selection for the June trial. On the day that jury selection had been scheduled to commence, however, and after the court had waited approximately forty-five minutes for Sekou to appear in the courtroom, Diorio informed the court that Sekou had refused to participate in the proceeding until represented by “competent” counsel of his own choice. Diorio also told the court that Sekou had stated that he had mailed letters to three private attorneys during the previous month but the letters had been returned due to the prison closure, and that Hanken had been denied permission to visit him at the prison during the previous week.

The court noted that Diorio was competent and that the public defender’s office had represented Sekou for at least two years. Further, recollecting that Sekou’s actions had so frustrated the January trial that it had been declared a mistrial, the court found that Sekou’s “tactics” of demanding counsel from a distant part of the state and deliberately refusing to appear in the courtroom were a mere “ruse” to achieve the delay of his trial. The court then stated that Diorio could contact private counsel on behalf of Sekou. In fact, Diorio telephoned private attorney Robert Pigeon, but Pigeon opted not to defend Sekou.

Also with respect to Sekou’s refusal to appear in the courtroom for jury selection, the court found that in light of “the prior history of [Sekou’s] activities in and out of the courtroom,” it was “in his best interests that he not be shackled and straitjacketed and placed in front of the jury to secure his presence in the courtroom during his trial. This court has offered [Sekou] the alternatives of either attending the trial dressed normally or hearing and seeing the trial through whatever equipment the court is able to provide down in his cell.” Sekou voluntarily elected to remain in his cell, and the court decided to proceed with jury selection after installing a closed circuit television and loudspeaker system outside of his cell.

During jury selection, Sekou began shouting in his cell in a manner audible in the courtroom: “Judge Mul-vey [is] a bigoted, racist pig.” The court ordered a recess, and directed Diorio to warn Sekou that he would be restrained if he continued to disturb the proceedings. Diorio relayed the warning to Sekou, and upon returning to the courtroom, reported that Sekou had responded that Diorio and Galluzzo did not represent him and were prejudiced against him. Shortly thereafter, a sheriff alerted the court that Sekou had irreparably damaged the television monitor by knocking it over when returning from the men’s room while accompanied by four guards. The sheriff also reported that Sekou had been “going on a rampage” in his cell, apparently breaking benches therein, and the sheriff suggested that restraints were necessary. After consulting with the sheriff, the court ordered him to restrain Sekou in a straitjacket. The court then obtained an operable audio-visual system so that Sekou could continue to observe the proceedings.

On the second day of the June trial, Galluzzo informed the court that Sekou had indicated that he was willing to participate in the proceedings, but he desired to appear in the courtroom attired in civilian clothing. Gal-luzzo also stated that Sekou wished to renew his request for private counsel before the court personally, and that even if the court denied the request, Sekou had indicated that he would cooperate with Galluzzo and Diorio and actively assist in his defense. Taking note of Sekou’s “past history of . . . deliberate actions,” and finding that Sekou’s “actions of yesterday indicate, clearly that he is a person who is prone to violence,” the court ordered that, “for the safety of this court, its personnel, members of the jury” and “any person connected with this trial,” Sekou could attend the trial only if restrained. The court also found Sekou’s request for counsel a meritless “maneuver” to achieve delay and, reiterating that Sekou had been afforded competent counsel, denied the request.

The court then stated that because Sekou had expressed a willingness to cooperate with Diorio and Galluzzo, they would be afforded “any time they need to confer with their client.” Thereafter, numerous recesses were ordered to permit defense counsel to consult with Sekou, and Sekou also communicated with counsel through notes sent from his cell. Sekou testified at the habeas hearing that he “started communicating more with Attorney Diorio, and . . . Galluzzo [and] every five minutes somebody was running down” to his cell to speak with him.

When a witness was taken to his cell to identify him, Sekou declared that he wished “to appear in the courtroom in an orderly and peaceful manner to put on the best defense available . . . .” Diorio later read a note from Sekou into the record, in which Sekou had again requested to be present in an orderly manner in the courtroom. Because of Sekou’s “disgraceful performance of yesterday,” the court stated that “this court cannot rely on him conducting himself in an orderly manner.” The court then repeated that it was unwilling to jeopardize the safety of the court personnel and the jury, and, therefore, Sekou could be present in the courtroom only if restrained.

On the following day, Diorio announced his intention to call Sekou as a witness. The court responded that Sekou could appear as a witness provided that he was restrained with a straitjacket and leg irons, and a sheriff was stationed beside him. Further, the court stated that Sekou would be permitted to take the witness stand before the jury came into the courtroom, and the jury would be excused before Sekou was returned to his cell.

While the jury was absent from the courtroom, Sekou assumed the witness stand in a straitjacket and leg irons, and with a sheriff posted beside him. The jury was called into the courtroom after Sekou’s straitjacket was covered with a sport coat. Immediately after stating his name for the record, Sekou asserted: “[M]ay it be noted for the jury’s sake why I am in these restraints? ... I feel this is very prejudicial to my defense to have me confined in this manner. ... I just wish the jury to be informed of this, your honor.”

Sekou then testified that he had been incarcerated for approximately sixteen years as a result of his convictions for the commission of several felonies. One of his convictions had resulted from his aid in an attempted escape from a penal institution, and another had arisen from his participation in a prison riot. Sekou also had been charged with the crime of assault with the intent to maim after he had attacked a prison guard with a kitchen knife, but he had been found not guilty by reason of insanity. During his testimony, Sekou requested that the sport coat which concealed his straightjacket be removed because it was “extremely hot.” A sheriff promptly removed the coat. Upon completion of cross-examination, the court excused the jury, and Sekou was escorted to his cell. The court instructed the jury after the close of the evidence not to draw any inference from the fact that Sekou had been restrained while testifying.

I

Sekou first claims that the trial court deprived him of his right to counsel of his choice as guaranteed by the sixth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution by arbitrarily denying his request for a continuance to contact private counsel. According to Sekou, because he had neither met nor consulted with Diorio or Galluzzo before trial, the court’s ruling forced him to proceed to trial with counsel with whom he had “no foundation of trust or communication.” He claims that his unfamiliarity and inability to communicate with his counsel, as well as his expectation that he would be permitted to contact private counsel on the first day of his trial, constituted “valid and sufficient reason” for a continuance. We disagree.

“While a criminal defendant’s right to be represented by counsel ‘ “implies a degree of freedom to be represented by counsel of [the] defendant’s choice . . State v. Reed, 174 Conn. 287, 292, 386 A.2d 243 (1978); this guarantee does not grant a defendant an ‘ “unlimited opportunity to obtain alternate counsel” ’ on the eve of trial. State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987).” State v. Gonzalez, 205 Conn. 673, 683, 535 A.2d 345 (1987). “ ‘In order to work a delay by a last minute [replacement] of counsel there must exist exceptional circumstances.’ . . . United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S. Ct. 118, 21 L. Ed. 2d 111 (1968).” State v. Drakeford, supra, 83-84. “Whether the circumstances warrant the appointment of new counsel is within the discretion of the trial court. [Id., 83]; State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986).” State v. Gonzalez, supra. A court need not permit the replacement of counsel “ ‘upon a defendant’s mere whimsical demand and certainly not where it is evident that a professed disenchantment with his lawyer is a subterfuge to secure an unwarrantéd delay in the trial.’. . . ” (Emphasis omitted.) State v. Beaulieu, 164 Conn. 620, 629, 325 A.2d 263 (1973), quoting United States v. Follette, 282 F. Sup. 993, 995 (S.D.N.Y. 1968), aff'd, 425 F.2d 257 (2d Cir. 1970).

The record in this case reveals that the court was well within its discretion in refusing to grant Sekou’s request for a continuance. Although Sekou had claimed that his efforts to contact private counsel had been thwarted by the prison closure, he had been aware in either the last week of April or in early May that he would be retried in June. Since the prison did not close until May 23,1972, Sekou had approximately three to four weeks from the date he had been notified of his impending retrial in which to engage private counsel.

Long before the June trial, moreover, Sekou had attempted to obtain the services of Hanken for the January trial. Sekou similarly could have sought Hanken’s assistance while his appeal from the court’s competency finding was pending. There is no indication in the record that during the pendency of his appeal Sekou attempted to contact Hanken, or for that matter, any other attorney. The record similarly fails to disclose that Sekou contacted Mahigel, his financial source for counsel for the January trial, at any time other than prior to the January trial. Thus, Sekou delayed his efforts to engage private counsel until the last possible moment. The court was cognizant of the untimeliness of Sekou’s efforts, as well as his prior deliberate attempt to delay his January trial. Therefore, the court was justified in concluding that Sekou’s request for private counsel at the eleventh hour was a mere “ruse” to achieve the delay of his trial.

In addition, despite Sekou’s personal unfamiliarity with Diorio and Galluzzo at the commencement of the June trial, any initial lack of communication between Sekou and his counsel was caused by Sekou’s refusal to confer with them. Although under some circumstances a complete breakdown in communication between a defendant and his counsel may warrant appointment of new counsel; State v. Gonzalez, supra, 684; State v. Gethers, 193 Conn. 526, 543, 480 A.2d 435 (1984); a defendant is not “entitled to demand a reassignment of counsel simply on the basis of a ‘breakdown in communication’ which he himself induced.” McKee v. Harris, 649 F.2d 927, 932 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982); see State v. Gethers, supra, 545. The trial court could reasonably have concluded that Sekou was entirely responsible for whatever lack of communication existed at the onset of the June trial; see State v. Gonzalez, supra, 684; and as a consequence, he is in no position now to complain about the situation. See United States v. Grow, supra, 209; State v. Drakeford, supra, 84. Moreover, as manifested in the record of the June trial and confirmed by Sekou’s testimony at the habeas hearing, Sekou was in constant communication with Diorio and Galluzzo as the trial progressed.

In fact, Sekou has voiced no complaint, nor have we found any indication in the record, that Diorio and Gal-luzzo were incompetent or did not present his defense “in the light most favorable to him or in accordance with his wishes.” State v. Gethers, supra, 546. As the court noted at the June trial, the office of the public defender had represented Sekou for approximately two years, and the court had no reason to assume that either Diorio or Galluzzo was unacquainted with Sekou’s case. Neither attorney requested a continuance for the purpose of further preparation, and therefore, there was no indication to the court that they were unprepared for trial.

Consequently, we are unable to detect any “exceptional circumstances” in the record warranting a continuance for purposes of the replacement of Sekou’s appointed counsel. State v. Drakeford, supra. We conclude, therefore, that the trial court neither abused its discretion nor deprived Sekou of his constitutional right to counsel of his choice in denying his request for a continuance.

II

Sekou next claims that his appellate counsel rendered ineffective assistance in failing to raise and brief two preserved constitutional issues in his direct appeal in State v. Saia, 167 Conn. 286, 355 A.2d 88 (1974). According to Sekou, this court would have reversed his conviction and ordered a new trial if his appellate counsel had argued on appeal that the trial court violated his federal and state constitutional rights to a fair trial by ordering that he be shackled, straitjacketed, and guarded by a sheriff while he testified before the jury, and that the court violated his federal constitutional right to be present at his trial by refusing to permit him to be present in the courtroom unless shackled and straitjacketed. We disagree.

In order to prevail on this claim, Sekou must establish (1) that his appellate counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law, and (2) that this lack of competency contributed so significantly to the affirmance of his conviction as to have deprived him of a fair appeal, thus causing an unreliable conviction to stand. See Valeriano v. Bronson, 209 Conn. 75, 84-86, 546 A.2d 1380 (1988); accord Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). If the issues not raised by his appellate counsel lack merit, Sekou cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation. Accord Williams v. Manson, 195 Conn. 561, 564, 489 A.2d 377 (1985). After reviewing the constitutional claims not raised in Sekou’s direct appeal, we are unpersuaded that his appellate counsel rendered ineffective assistance in failing to pursue them in State v. Saia, supra, 167 Conn. 286.

A

Sekou argues that he was deprived of his rights to a fair trial as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution because: (1) the court failed to conduct a hearing with respect to the necessity for restraining him; (2) the court neglected to detail on the record the reasons for restraining him; (3) the use of restraints and the posting of a sheriff beside him while he testified were unnecessary and excessive under the circumstances; (4) the court “delegated” the decision to restrain him to a sheriff; and (5) the court took no measures to protect him from being viewed prejudicially by the jury. We disagree with Sekou in each respect.

“As a general proposition, a criminal defendant has the right to appear in court free from physical restraints. . . . Grounded in the common law, this right evolved in order to preserve the presumption favoring a criminal defendant's innocence, while eliminating any detrimental effects to the defendant that could result if he were physically restrained in the courtroom.” (Citations omitted.)State v. Williams, 195 Conn. 1, 5-6, 485 A.2d 570 (1985). “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied, 426 U.S. 954, 96 S. Ct. 3182, 49 L. Ed. 2d 1194 (1976). “The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment [to the United States constitution]”; id.; and is also safeguarded by article first, §§ 8 and 9, of the Connecticut constitution. See State v. Lamme, 216 Conn. 172, 177, 579 A.2d 484 (1990); State v. Boyd, 214 Conn. 132, 135, 570 A.2d 1125 (1990); State v. Marra, 195 Conn. 421, 425, 489 A.2d 350 (1985).

A criminal defendant’s right to appear before the jury unfettered, however, is not absolute. See Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970). Since the trial judge “is best equipped to decide the extent to which security measures should be adopted to prevent disruption of the trial, harm to those in the courtroom, escape of the accused, and the prevention of other crimes”; United States v. Samuel, 431 F.2d 610, 615 (4th Cir. 1970), cert. denied, 401 U.S. 946, 91 S. Ct. 964, 28 L. Ed. 2d 229 (1971); accord Corey v. State, 126 Conn. 41, 42-43, 9 A.2d 283 (1939); the decision to employ “[Reasonable means of restraint” upon a defendant when confronted with a reasonable necessity rests within the broad discretion of the trial court. Practice Book § 892; State v. Woolcock, 201 Conn. 605, 615, 518 A.2d 1377 (1986); see State v. Williams, supra, 8. The court’s decision will not be disturbed on appeal unless it is shown that its discretion was clearly abused. State v. Woolcock, supra.

In ordering the use of restraints or denying a request to remove them, the court must ensure that its reasons for so ruling are detailed in the record. State v. Williams, supra, 7; see also Practice Book § 892. “An adequate record demonstrating the necessity for the use of the restraints imposed is essential to meaningful appellate review . . . .” State v. Williams, supra, 8. Although it is desirable that an evidentiary hearing be conducted with respect to the necessity for restraints, such a hearing is not mandatory. See State v. Woolcock, supra.

In this case, despite the court’s failure to conduct a hearing inquiring into the necessity for restraints, the record amply demonstrates that the nature and duration of the restraints employed by the court were reasonably necessary under the circumstances. The court was aware of Sekou’s history of insubordination and violence in penal institutions, which included an attack on a prison guard with a knife, and participation in a prison rebellion. See United States v. Fountain, 768 F.2d 790, 794 (7th Cir. 1985), cert. denied sub nom. Gometz v. United States, 475 U.S. 1124, 106 S. Ct. 1647, 90 L. Ed. 2d 191 (1986); Dennis v. State, 170 Ga. App. 630, 632, 317 S.E.2d 874 (1984); compare State v. Williams, supra, 9. Sekou more directly exhibited his violent propensities to the court by toppling the audiovisual system, breaking benches in his cell, and shouting abusive epithets at the judge from his cell. See Broadus v. State, 487 N.E.2d 1298, 1305 (Ind. 1986); accord Bolder v. Armontrout, 713 F. Sup. 1558, 1578 (W.D. Mo. 1989); Dennis v. State, supra; compare State v. Williams, supra, 9. The court was also entitled to take into account Sekou’s calculated effort to impede the progression of his January trial, and the psychiatric report evaluating him as an extremely dangerous man. See State v. Woolcock, supra, 616. In light of these circumstances, as well as Sekou’s prior conviction for his attempt to aid in an escape from custody, and his ability to damage the audio-visual system while guarded by four sheriffs, the court reasonably concluded that the risk that Sekou might attempt to escape or do violence in the courtroom despite the presence of court security personnel outweighed Sekou’s right to be present in court unrestrained. See State v. Williams, supra, 6; Corey v. State, supra, 42-43; State v. Colvin, 452 So. 2d 1214, 1219 (La. App.), cert. denied, 457 So. 2d 1199 (La. 1984); Commonwealth v. Montgomery, 23 Mass. App. 909, 911, 499 N.E.2d 853, rev. denied, 398 Mass. 1107, 503 N.E.2d 36 (1986).

In addition, the record reflects that the decision to restrain Sekou was not, as Sekou claims, delegated by the court to a sheriff. The court decided to restrain Sekou after consulting with the sheriff. Since it was presumably the sheriff, rather than the court, that “ha[d] the experience in the keeping of prisoners and who must provide the guards and bear the major responsibility if untoward incidents occur,” the court was entitled to “rely heavily” upon the sheriff’s advice. United States v. Samuel, supra, 615.

Moreover, contrary to Sekou’s assertions, the court took measures to conceal Sekou’s restraints from the view of the jury by bringing him to and from the courtroom while the jury was absent, and allowing him to be covered with a sport coat while he testified. It was Sekou, rather than the court or the state, who brought his restraints to the attention of the jury. See State v. Colvin, supra, 1220; State v. Staples, 99 Wis. 2d 364, 375, 299 N.W.2d 270 (1980); compare Bolder v. Armontrout, supra, 1578. Even then, the court sought to minimize any possible prejudice that might have been created by Sekou’s statements and the sight of his restraints by cautioning the jury not to draw any inference from the fact that Sekou had testified under restraint. There is no evidence in the record to rebut the presumption that the jury followed the court’s curative instruction.

We conclude, therefore, that the trial court neither abused its discretion nor deprived Sekou of a fair trial by restraining him and stationing a sheriff beside him while he testified. Accordingly, we affirm the decision of the habeas court that the assistance rendered by Sekou’s appellate counsel was not ineffective with respeet to his failure to raise the claim.

B

We now turn to Sekou’s claim that his appellate counsel rendered ineffective assistance by failing to raise for our review in his direct appeal the claim that the trial court deprived him of his constitutional right to be present at his trial. The confrontation clause of the United States constitution guarantees to a criminal defendant the right to be present at all critical stages of his trial. See State v. Gonzalez, 205 Conn. 673, 688, 535 A.2d 345 (1987)We have recognized, however, that a defendant “may waive this right by his conduct, misconduct or his voluntary and deliberate absence from the trial without good cause.” State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987); see Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 253, reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970); Practice Book § 968. The “deliberate absence [of a defendant] without sound reason ‘indicates nothing less than an intention to obstruct the orderly processes of justice . . . .’ ” State v. Drakeford, supra, 80, quoting United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S. Ct. 571, 34 L. Ed. 2d 516 (1972).

Sekou concedes that he waived his right to be present at the beginning of his June trial by voluntarily absenting himself from the courtroom. He maintains, however, that his right to be present at his trial as guaranteed by the sixth amendment to the United States constitution was infringed when, thereafter, the court “forced him to remain absent from his trial” by refusing to permit him to enter the courtroom unless he was physically restrained. According to Sekou, the court should have informed him that he could be present without restraints if he promised not to misbehave. Sekou also contends that before restraining him, the court should have warned him personally and determined whether he understood that his misconduct while in his cell would “jeopardize” his right to be present at his trial, should he later choose to exercise it, without restraints.

As support for his claims, Sekou principally relies on Illinois v. Allen, supra. We disagree with Sekou that the court failed to abide by the constitutional principles set forth in Allen. In Allen, the United States Supreme Court held that a trial judge faced with an obstreperous defendant could undertake any one of three constitutionally permissible courses of action: “(1) bind and gag him, thereby keeping him present; (2) cite him for contempt; [or] (3) take him out of the courtroom until he promises to conduct himself properly.” Id., 344. Although the court expressed a preference for the expulsion of such a defendant from the courtroom, it nonetheless acknowledged that in certain situations, “binding and gagging might possibly be the fairest and most reasonable way to handle a defendant . . . .” Id. The court thus recognized that physical presence itself, maintained through the use of restraints, “to an extent complied] with that part of the Sixth Amendment’s purposes that accords the defendant an opportunity to confront the witnesses at the trial.” Id.

Because it would have been constitutionally permissible under Allen for the court to compel Sekou’s presence through the use of restraints, we discern no sixth amendment violation in the course of action taken by the court. Essentially, the court permitted Sekou to choose between two equally permissible alternatives: presence under restraint, or absence coupled with mechanical observation of the proceedings. Having found the former alternative unsatisfactory, and thus having chosen the latter, Sekou cannot now claim that, by placing the choice in his hands, the court “forced” him to remain absent from his trial or effected a violation of his right of presence. Moreover, the restrictions on Sekou’s entry into the courtroom directly resulted from his own contumacious behavior, and as we have held in Part II, above, it was reasonably necessary under the circumstances for the court to restrain Sekou. We conclude, therefore, that the court did not deprive Sekou of his constitutional right of presence by refusing to permit him to attend his trial without physical restraints.

We are likewise unpersuaded by Sekou’s claims that Allen required the court to inform him that he could attend his trial unrestrained and to administer to him personally any warnings additional to those he had already received. In Allen, the United States Supreme Court held that before removing an unruly defendant from the courtroom, a trial court must first warn the defendant that he would be removed if he continued to disrupt the proceedings. Id., 343. The court also held that a defendant removed from the courtroom could reclaim his right of presence as soon as he was willing to behave appropriately. Id.

The United States Supreme Court did not announce in Allen a sixth amendment requirement that a defendant whose misconduct necessitated that he be physically restrained must thereafter be offered the opportunity to be freed of his restraints. We are unpersuaded that the right to be free of physical restraints is reclaimable by a defendant at any time as an adjunct to his sixth amendment right of presence. Although we have viewed favorably the removal of a defendant’s restraints where circumstances permit; see State v. Williams, supra, 10; we have not suggested that such removal is constitutionally required. We decline to adopt such a requirement at this juncture, for to require a court to offer to remove a defendant’s restraints upon his mere promise of proper behavior, notwithstanding the circumstances that necessitated his restraint in the first instance, would undermine the significance of its “ ‘duty to do what may be necessary to prevent escape, to minimize danger of harm to those attending trial as well as to the general public, and to maintain decent order in the court room.’ ” Id., 6, quoting Commonwealth v. Brown, 364 Mass. 471, 475, 305 N.E.2d 830 (1973). The court is entitled to evaluate the sincerity of a defendant’s promise of good behavior, and to determine whether the circumstances present in each case warrant an offer to remove his restraints. In light of the circumstances in this case as detailed in Part II above, we conclude that the court was justified in declining to offer to Sekou the opportunity to be present at his trial without physical restraints.

Finally, we find no constitutional infirmity in the warnings received by Sekou. Before he voluntarily waived his right of presence, Sekou was warned that the trial would continue in his absence if he failed to appear in the courtroom. See State v. Gonzalez, supra, 689; State v. Drakeford, supra, 79, 81; Taiton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976). He does not dispute the adequacy of this warning, nor does he claim that he was not warned that he would be restrained if he continued to misbehave while in his cell. At the time of his misbehavior, Sekou had already voluntarily relinquished his right of presence and had not indicated any intention to be present in the courtroom. Thus, at that time, it was unnecessary for the court to administer to Sekou an additional personal warning directed to his previously forsaken right of presence. We find it incredible, moreover, that Sekou would not comprehend that his misconduct, for which he was warned that he would be restrained while in his cell, would “jeopardize” his right to be free of restraints in the courtroom.

We conclude, therefore, that the trial court did not deprive Sekou of his constitutional right to be present at his trial. Accordingly, Sekou has failed to meet his burden of establishing that his appellate counsel was ineffective because he did not raise this claim in his direct appeal. Because we have also held that his appellate counsel was not ineffective in failing to pursue, on appeal, Sekou’s claimed violation of his rights to a fair trial, the habeas court correctly determined that Sekou’s petition for a writ of habeas corpus should be dismissed.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1972)] Sec. 53a-lll. arson IN the first DEGREE: CLASS B FELONY, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, he starts a fire or causes an explosion, and (1) at the time, another person is present in such building or is so close to such building as to be in substantially the same danger as a person in such building would be, and (2) the actor is either aware that a person is present in or close to such building, or his conduct manifests an indifference as to whether a person is present in or close to such building. . . .”

       Our decision affirming Sekou’s conviction is reported in State v. Saia, 167 Conn. 286, 355 A.2d 88 (1974).

       The habeas court found that Sekou’s failure to raise the first of these claims in his direct appeal did not amount to a deliberate bypass of appellate procedure because the claim was based upon material facts not fully contained in the record of his trial. This finding is not disputed. As for the claims that he was denied a fair trial and the right to be present at his trial, Sekou maintained that they were not raised in his direct appeal because of the ineffective assistance of his appellate counsel. We have held “that any claim invoking ineffective assistance of appellate counsel automatically satisfies the deliberate bypass requirement.” Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380 (1988).

       For reasons unknown, Hanken did not appear at the courthouse at any time during the June trial.

       We are also unpersuaded that Sekou offered a credible explanation to the court at the June trial for his unseasonable efforts to contact private counsel when he stated that all of his letters to private counsel had been returned because of the prison closure. Sekou later contradicted that explanation when he testified at the habeas hearing that he had received a response to his letter to Flaherty, who had elected not to defend him.

       We also note that Sekou has failed to explain the absence in the record of any indication that he attempted to contact, through Diorio, any private attorney other than Pigeon during the June trial. Nor has he demonstrated that he would have been able to finance the services of a private attorney for the June trial, had one agreed to represent him. Sekou had represented himself to be indigent at the June trial, and Mahigel, his financial source for the January trial, testified at the habeas hearing that he had been unaware that Sekou had been retried in June.

       Because the federal and state constitutions impose similar constitutional due process limitations, we have treated Sekou’s federal and state due process claims together. See State v. Flanders, 214 Conn. 493, 500 n.4, 572 A.2d 983 (1990).

       The court suggested in Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L. Ed. 2d 253 (1970), that a defendant’s confrontation rights might be undermined by his binding and gagging notwithstanding his physical presence in that “one of the defendant’s primary advantages of being present at [his] trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint.” Presumably because Sekou was not gagged, he does not claim, nor do we detect any evidence in the record, that his ability to communicate with his counsel was impaired by the restraints imposed upon him.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Mark J. Chicano
    (13663)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued October 4—
    decision released December 25, 1990

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and. Herbert Carlson and Dennis O’Connor, assistant state’s attorneys, for the appellee (state).
   Callahan, J.

The defendant, Mark J. Chicano, was charged in a substitute information with three counts of the crime of felony murder in violation of General Statutes § bSa-SAc, three counts of the crime of murder in violation of General Statutes § 53a-54a (a), one count of the crime of capital felony in violation of General Statutes § 53a-54b (8), one count of the crime of injury to a child in violation of General Statutes § 53-21, and one count of the crime of burglary in the second degree in violation of General Statutes § 53a-102 (a). After a trial before a three judge panel, the defendant was convicted of three counts of felony murder, three counts of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2), one count of injury to a child and one count of burglary in the second degree. With respect to the intentional murder charges, the three judge panel found that the state had proven the elements of murder but convicted the defendant of manslaughter in the first degree because it found that he had proven the affirmative defense of extreme emotional disturbance as set forth in § 53a-54a (a). The defendant was acquitted of the capital felony charge on the basis of the court’s conclusion that he was guilty of manslaughter in the first degree rather than murder. The defendant was sentenced to three consecutive terms of sixty years imprisonment for the felony murder convictions, three twenty year terms of imprisonment for the manslaughter convictions, to be served consecutive to each other and concurrent to the three felony murder sentences, ten years for the injury to a child conviction and ten years for the burglary conviction. The panel ordered that the injury to a child and burglary sentences run consecutive to each other and to the manslaughter sentences but concurrent to the felony murder sentences. The defendant’s total effective sentence of 180 years imprisonment, therefore, is based on his three convictions for felony murder. The defendant appealed to this court pursuant to General Statutes § 51-199 (b) (3).

On appeal, the defendant claims that his rights guaranteed by the double jeopardy clause were violated by: (1) his convictions for both felony murder and manslaughter in the first degree; and (2) his convictions for both injury to a child and manslaughter in the first degree. The defendant also claimed that the trial court erred in denying his motion for a psychiatric examination pursuant to General Statutes § 17-244. He subsequently withdrew this last claim of error.

We agree with the defendant that his rights under the double jeopardy clause were violated by his conviction for both felony murder and manslaughter in the first degree and we therefore remand the case to the trial court with direction to combine his convictions for three counts of manslaughter in the first degree with his convictions for three counts of felony murder and vacate his manslaughter sentences. Combining these convictions will leave unchanged the total effective sentence of imprisonment. In view of our disposition of the defendant’s first claim, we conclude that his second claim is moot and therefore do not address it.

The three judge panel reasonably could have found the following facts. The defendant and Ellen Babbit had been involved in a romantic relationship that had deteriorated by the end of 1986. At approximately 2 a.m. on February 28, 1987, the defendant went to see Babbit at her home in East Windsor. While he was outside her home, he saw Babbit’s new boyfriend, Raymond Arnold, arrive by car and enter the house. The defendant then waited outside a bedroom window where he overheard the sounds of sexual activity. After waiting for half an hour, the defendant went into the house and hid in the bathroom for approximately one hour. He then went into the bedroom where Babbit and Arnold were now sleeping and hit Arnold on the head with a crowbar. When Babbit called out Arnold’s name and tried to protect him, the defendant became enraged and continued to strike Arnold, causing his death. The defendant then began punching and kicking Babbit and attempted to bind her. At this point Babbit’s eleven year old son, Mark Babbit, Jr., entered the bedroom and screamed. Attempting to quiet the child, the defendant killed him by strangulation. When Ellen Bab-bit continued to resist his efforts to restrain her, the defendant struck her on the head twice with the crowbar and killed her.

I

A

The defendant argues that his conviction and sentencing for three counts of felony murder and three counts of manslaughter in the first degree violated his state and federal constitutional rights against double jeopardy. The defendant admits that this claim was not raised at trial, but maintains that it is reviewable under the criteria set forth in State v. Golding, 213 Conn. 233, 238-42, 567 A.2d 823 (1989), which restated the guidelines for review established in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). 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.) State v. Golding, supra, 239-40. We conclude that the defendant’s double jeopardy claim is reviewable under Golding and that his fundamental constitutional right against double jeopardy was clearly violated by his convictions for both felony murder and manslaughter.

The state concedes that the first two prongs of the Golding test are satisfied inasmuch as: (1) the record is adequate for review of the double jeopardy claim, which requires reference only to the relevant statutes, the information, and the bill of particulars; State v. John, 210 Conn. 652, 695, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); and (2) the double jeopardy claim involves a fundamental constitutional right. The state does not make a harmless error argument but asserts that this claim is not reviewable because the alleged double jeopardy violation did not clearly deprive the defendant of a fair trial. We disagree.

This court has held that if double jeopardy claims arising in the context of a single trial are raised for the first time on appeal, these claims are reviewable under State v. Evans, supra. State v. Snook, 210 Conn. 244, 263, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. McCall, 187 Conn. 73, 89, 444 A.2d 896 (1982). The Evans test for reviewability applied in the cited cases was whether “the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” (Emphasis added.) State v. Evans, supra, 70. On the basis of that precedent, we conclude that the third prong of the Golding test is satisfied and that the defendant’s double jeopardy claim is reviewable.

The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). This constitutional guarantee serves three separate functions: (1) “ ‘It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial].’ North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).” State v. Lonergan, 213 Conn. 74, 78-79, 566 A.2d 677 (1989), cert. denied, U.S. , 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).

The defendant’s claim that the double jeopardy clause bars his convictions for both felony murder and manslaughter in the first degree implicates the third type of constitutional protection. “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). “ ‘ “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” ’ State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986).” State v. John, supra, 693. The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., 304; State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990).

The defendant argues that under our decision in State v. John, supra, convicting him of both felony murder and manslaughter in the first degree violated the double jeopardy clause. The state claims that John does not control this case and argues in the alternative that we should reconsider John if we should conclude otherwise.

The defendant in State v. John, was convicted of both felony murder and manslaughter in the first degree for a single homicide. Id., 695. It was not disputed in John that the charges of manslaughter and felony murder arose out of the same act. Id. This court found that the application of the Blockburger test led to the conclusion that there was no double jeopardy violation since each offense required proof of a fact that the other did not. Id. On the basis of our review of the holding in State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), and of the legislative history of the felony murder statute, § 53a-54c, however, we concluded that the legislature intended that manslaughter in the first degree and felony murder “should be treated as a single crime for double jeopardy purposes.” State v. John, supra, 695. In State v. Couture, supra, 560, we stated that “[a]n indictment charging an accused with intentional and felony murder of a particular victim charges a single offense, committed conjunctively in two different ways.”

The state does not dispute that the felony murder and manslaughter convictions in the present case arose out of the same act or transaction. The parties also agree that we properly applied the Blockburger test to the crimes of felony murder and manslaughter in the first degree in our decision in State v. John. The state argues, however, that John is not dispositive because the defendant in John was convicted of manslaughter in the first degree under a different subsection of § 53a-55 than the defendant in the present case. We disagree.

The defendant in John was charged with the crime of intentional murder in violation of General Statutes § 53a-54a (a), and the jury found him guilty of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). The defendant in the present case was charged with intentional murder and was convicted of manslaughter in the first degree under subsection (a) (2) of § 53a-55. A conviction under subsection (a) (1) of § 53a-55 connotes that the trier of fact found that the defendant had acted with the intent to cause serious physical injury rather than death. In contrast, a conviction under subsection (a) (2) of § 53a-55 connotes that the trier of fact found that the defendant had acted with the intent to cause death but under the influence of extreme emotional disturbance. The state claims that our holding in John does not govern double jeopardy claims arising from convictions under subsection (a) (2) of § 53a-55. This argument is based upon the state’s assertion that under the common law there was a closer connection between felony murder and the category of first degree manslaughter referred to in subsection (a) (1), than between felony murder and the category of manslaughter referred to in subsection (a) (2).

The state’s argument misinterprets the basis for our holding in State v. John, supra, concerning the double jeopardy issue. In John we held that “[t]he history of the murder and felony murder statutes, read in conjunction with our holding in Couture, indicates that the legislature contemplated that only one punishment would be imposed for a single homicide, even if that homicide involved the violation of two separate statutory provisions.” (Emphasis added.) State v. John, supra, 696. In John we relied upon Couture and the relevant legislative history to conclude that the intentional murder and the felony murder of a particular victim are the same offense for double jeopardy purposes. This reasoning led us to conclude that manslaughter in the first degree and felony murder are also the same offense for double jeopardy purposes. State v. John, supra, 696-97. We extended this principle to manslaughter in the first degree because intentional murder, felony murder, and manslaughter in the first degree are all homicide offenses as defined under the homicide provisions of the General Statutes; General Statutes §§ 53a-54a through 53a-58a; not because felony murder and the category of manslaughter at issue in John were the same offense under the common law. Our holding in John patently applies to multiple convictions for a single homicide under the felony murder statute and any other homicide statute.

Conceding that the defendant’s double jeopardy claim must prevail if we find that John is controlling, the state urges us to reconsider our holding in that case. The state argues that a review of the legislative history of the felony murder statute indicates that there exists no clear legislative intent to preclude conviction in a single trial for both manslaughter in the first degree and felony murder. Because we considered fully the legislative history of the felony murder statute in State v. John, supra, 696, we decline the state’s invitation to reconsider this issue.

Having concluded that the defendant’s rights under the double jeopardy clause were violated by his conviction and sentencing for both felony murder and manslaughter in the first degree, we must determine a proper remedy for the violation. The defendant argues that we should vacate his felony murder sentences and merge his felony murder convictions into his manslaughter convictions, while the state asserts that we should vacate the defendant’s manslaughter sentences and merge his manslaughter convictions into his felony murder convictions. The determination of the appropriate remedy involves two distinct issues: (1) deciding which of the convictions, felony murder or manslaughter, along with the applicable sentences, should be negated; and (2) determining whether the proper procedure on remand is to merge, or combine, the negated convictions with the remaining convictions or simply to vacate the negated convictions entirely.

B

With respect to the first issue, the state argues that the manslaughter convictions should be abrogated because the prosecution proved the elements of felony murder and the defendant should be required to serve the longer sentences imposed by the three judge panel for that offense. The defendant makes two independent arguments as to why we should instead negate the felony murder convictions: (1) the defendant proved the elements of the affirmative defense of extreme emotional disturbance and he is entitled to the benefit of that defense; (2) the rule of lenity requires that doubts concerning the enforcement of a penal statute should be resolved against imposing the harsher punishment.

This court has never squarely addressed the issue of which convictions should be negated when a defendant has received multiple punishments for the same offense in a single trial in violation of the double jeopardy clause. When faced with double jeopardy violations arising out of multiple convictions at a single trial for both greater and lesser included offenses, our policy has been to remand the case to the trial court with direction to vacate the conviction for the lesser offense. See State v. Amaral, 179 Conn. 239, 245, 425 A.2d 1293 (1979); State v. Goldson, 178 Conn. 422, 427, 423 A.2d 114 (1979). Our practice of eliminating the lesser conviction is consistent with the goal of “ensuring that a defendant is punished for whatever degree of a crime he is adjudged to be guilty of having committed.” United States v. Aiello, 771 F.2d 621, 634 (2d Cir. 1985). Because we have followed this practice without discussing its underlying rationale, a brief discussion of the issue is appropriate. Although felony murder and manslaughter in the first degree do not constitute greater and lesser included offenses, the relevant factors bearing upon the decision of which conviction to negate when two convictions cannot both stand are the same regardless of whether one of the offenses is a lesser included offense of the other.

In Green v. United States, 365 U.S. 301, 302, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961), the defendant was convicted of robbing a bank in violation of 18 U.S.C. § 2113 (a) and assaulting or putting lives in jeopardy by using a dangerous weapon while committing a bank robbery in violation of 18 U.S.C. § 2113 (d). The defendant received a twenty year sentence on the former charge and a twenty-five year concurrent sentence on the latter charge. Id. The defendant argued that he could not be sentenced for both offenses since they were the same offense and claimed that five years should be remitted from his concurrent sentence. Id., 305. In rejecting the defendant’s claim that he should have to serve only the twenty year sentence, the court stated that “[although petitioner is technically correct that sentences should not have been imposed on both counts, the remedy which he seeks does not follow. This is not a case where sentence was passed on two counts stating alternative means of committing one offense; rather, the third count involved additional characteristics which made the offense an aggravated one— namely, putting persons in jeopardy of life by use of a dangerous weapon. Plainly enough, the intention of the district judge was to impose the maximum sentence of twenty-five years for aggravated bank robbery, and the formal defect in his procedure should not vitiate his considered judgment.” (Emphasis added.) Id., 306.

Green v. United States, supra, indicates that when deciding which of two sentences to vacate when both cannot stand, the determinative factor is the intention of the sentencing judge. Thomas v. Morris, 844 F.2d 1337, 1344-45 (8th Cir. 1988) (Bowman, J., dissenting), rev’d sub nom. Jones v. Thomas, 491 U.S. 376, 109 S. Ct. 2522, 105 L. Ed. 2d 322 (1989); Sawyer v. United States, 312 F.2d 24, 27 (8th Cir.), cert. denied, 374 U.S. 837, 83 S. Ct. 1888, 10 L. Ed. 2d 1058 (1963); see United States v. Corson, 449 F.2d 544, 547 n.5 (3d Cir. 1971).

Although the double jeopardy clause was not the basis for the defendant’s claim in Green, the United States Supreme Court recently adopted an approach analogous to that of the Green court in determining which of two convictions must be eliminated when a defendant is convicted under two criminal statutes that punish the same conduct. See Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985). In Ball the court applied the Blockburger test as a rule of statutory construction and held that the defendant could not be punished under both 18 U.S.C. § 922 (h) (1) (receipt of a firearm by a convicted felon) and 18 U.S.C. App. § 1202 (a) (1) (possession of a firearm by a convicted felon) because the crimes constitute the same offense. Ball v. United States, supra, 862-64. The court stated that “the only remedy consistent with the congressional intent is for the district court, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions.” (Emphasis added.) Id., 864. Ball established that the decision of which conviction to negate is a question controlled by the intention of the sentencing court.

In this case, the intention of the three judge panel that convicted the defendant is clear. The panel sentenced the defendant to three consecutive terms of sixty years on the felony murder convictions while it sentenced him to three consecutive twenty year terms on the manslaughter convictions to run concurrently with the felony murder sentences. The sentences and the manner in which they were imposed clearly indicate that the panel intended that the sentences for the felony murder convictions control. There is, therefore, no need for the trial court to exercise again its sentencing discretion.

The foregoing analysis does not address the defendant’s principal claim concerning why we should eliminate the felony murder convictions rather than the manslaughter convictions. The defendant argues that the felony murder convictions should be negated because his manslaughter convictions, unlike the manslaughter conviction in State v. John, supra, were based on the finding that he acted under the influence of extreme emotional disturbance. He claims that if we negate his manslaughter convictions and leave his felony murder convictions intact, we would deprive him of the affirmative defense of extreme emotional disturbance to which he claims to be entitled under the circumstances of this case. The defendant does not go so far as to argue that extreme emotional disturbance would be a defense if the state had charged him with only felony murder. He asserts rather that once it has been determined that the death of a single victim can be the basis for only one homicide conviction, the conviction for which mitigating circumstances have been found must be the conviction left intact. The state, in refutation of this claim, relies upon the absence of any reference in § 53a-54c to extreme emotional disturbance as a defense to felony murder and upon the legislative history of the statute.

The defendant’s argument is inextricably linked to his dual convictions for felony murder under § 53a-54c and manslaughter in the first degree under § 53a-55 (a) (2). He contends that he cannot be sentenced for felony murder because the three judge panel found that the existence of extreme emotional disturbance provided a defense to the intentional murder counts of the information. The premise of the defendant’s argument is that when two homicide convictions are deemed to be the same offense for double jeopardy purposes, a statutory defense to one of the crimes must necessarily be a defense to the other. We disagree.

In State v. Ellis, 197 Conn. 436, 471-72, 497 A.2d 974 (1985), we stated that “it serves little purpose to characterize ‘offenses’ as ‘different’ or the ‘same’ without the purpose of the comparison as a point of reference. That two offenses may be the ‘same’ for purposes of double jeopardy does not mean that they are the same for purposes of the statute of limitations, or res judicata, or for any other purpose. It means only that they are the ‘same’ for purposes of double jeopardy, which in turn, is a concise way of saying that the legislature did not intend that cumulative punishments be imposed under separate statutory sections .... This single point of similarity, while of inestimable importance in our scheme of individual liberties, does not make two offenses the same for all other purposes.” (Citations omitted.)

Our holding in John determined that the legislature did not intend that a defendant be punished for both felony murder and manslaughter in the first degree when his dual convictions arose from a single homicide. The double jeopardy analysis in John, however, does not dictate which of the two convictions should be vacated, that for felony murder, or that for manslaughter. If we were to hold that a court, when determining which of two convictions for the same homicide should be set aside, must give effect to an affirmative defense that applies to only one of the two convictions, we would be extending double jeopardy analysis beyond its proper bounds.

The express provisions of the intentional murder, manslaughter in the first degree, and felony murder statutes clearly demonstrate that the legislature did not intend that extreme emotional disturbance be an affirmative defense if the sole crime with which a defendant is charged is felony murder. “ ‘[I]n the absence of ambiguity, courts cannot read into statutes, by construction, provisions which are not clearly stated; Point O’ Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979). . . .’’’Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984). Section 53a-54a (a), which states that extreme emotional disturbance is an affirmative defense to the crime of intentional murder, provides that “nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.” (Emphasis added.) Section 53a-55 (a) (2) establishes that an intentional murder committed under the influence of extreme emotional disturbance constitutes manslaughter in the first degree rather than murder. The felony murder statute, § 53a-54c, expressly lists the elements of the sole affirmative defense to that crime. Extreme emotional disturbance is not that defense and we can only deduce that the legislature did not intend it to be; otherwise, it could easily have so provided. See Caulkins v. Petrillo, 200 Conn. 713, 719, 513 A.2d 43 (1986).

Our conclusion that extreme emotional disturbance does not mitigate a single felony murder charge is not dispositive because the defendant, as stated earlier, does not make that claim. Rather, in arguing that we must give effect to the defense of extreme emotional disturbance, he asserts that the legislative history of the murder statutes suggests that the legislature did not intend that felony murder be charged in cases where the state could prove the intent to cause death. The defendant claims that when felony murder is charged under those circumstances, the affirmative defense of extreme emotional disturbance applies to both the felony murder and intentional murder counts. Because we do not agree with the defendant’s interpretation of the legislative history, we cannot agree with his conclusion that the legislature intended that extreme emotional disturbance mitigate felony murder when a defendant is charged with both intentional and felony murder.

“The legislative history of the felony murder statute, § 53a-54c, indicates that its purpose was to fill an omission in the statutory definition of murder in § 53a-54a. In restoring the concept of felony murder, which had been omitted from the original enactment of the penal code, the legislature intended to specify another manner in which the crime of murder could be committed, rather than create a new crime. Such a purpose would have been in keeping with this state’s murder statute prior to the enactment of the penal code, when the felony murder principle was simply included in the statutory definition of first degree murder. General Statutes § 53-9.” State v. John, supra, 696.

The defendant’s claim that the legislature intended the use of the felony murder statute only for cases where the state lacked proof of intent to cause death is without support. The legislative history indicates that the primary concern leading to the reenactment of the felony murder statute was that its omission was forcing prosecutors to accept manslaughter convictions, in cases where they would previously have obtained felony murder convictions, because they could not prove the intent to cause death required under the existing murder statute. 17 H.R. Proc., Pt. 6, 1974 Sess., pp. 3218-19, 3221-22; Conn. Joint Standing Committee Hearings, Judiciary, 1974 Sess., pp. 236-37. The legislative history also reveals that § 53a-54c was designed to restore the concept of felony murder that was included in the statutory definition of murder before the penal code was adopted. 17 H.R. Proc., Pt. 6,1974 Sess., pp. 3218-19, 3221-22; Conn. Joint Standing Committee Hearings, Judiciary, 1974 Sess., pp. 236-37; State v. John, supra, 696. The importance of the legislative purpose of restoring the concept of felony murder lies in the fact that this court, in construing the murder statute in effect prior to the enactment of the penal code, had held that a defendant could be charged with both intentional murder and felony murder for a single homicide because these crimes represented alternative methods of committing the crime of murder. State v. Cofone, 164 Conn. 162, 166, 319 A.2d 381 (1972); State v. Edwards, 163 Conn. 527, 532, 316 A.2d 387 (1972). Since the legislature is presumed to know the history of a statute as judicially construed; Peck v. Jacquemin, 196 Conn. 53, 72, 491 A.2d 1043 (1985); Lukas v. New Haven, 184 Conn. 205, 213, 439 A.2d 949 (1981); the defendant’s claim that the legislature intended the felony murder statute to be used only in cases where the state lacked proof of intent to cause death cannot withstand scrutiny.

The defendant also argues that if we reject his claim that the legislative history of the felony murder statute requires us to give effect to the defense of extreme emotional disturbance to the felony murder counts, we should then find that the legislative intent on this issue is at least unclear and apply the “fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.” State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985). “This policy of lenity means that the Court will not interpret a . . . criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Ladner v. United States, 358 U.S. 169, 178, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958).

“The ‘touchstone’ of this rule of lenity is ‘statutory ambiguity.’ Bifulco v. United States, 447 U.S. 381, 387, 100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980).” State v. Rawls, supra, 122. The problem with the defendant’s invocation of this rule is that he assumes that the question of which conviction should survive, felony murder or manslaughter, involves a standard question of legislative intent. Because the legislature did not intend a defendant to be punished for both felony murder and manslaughter in the first degree for a single homicide, it certainly could not have considered or exhibited any intent concerning which conviction should be nullified if a defendant was convicted of both crimes. It is therefore anomalous to speak of “statutory ambiguity” with respect to an issue that the legislature logically could not have considered.

A distinction must be drawn between the role played by legislative intent in deciding two different issues: (1) whether a defendant has been subjected to multiple punishments for the same offense in the context of a single trial in violation of the double jeopardy clause; and, if so, (2) which punishment should be set aside. With respect to the first issue, an examination of the legislative intent is necessary in order to avert multiple punishments for the same crime and thereby “prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). On the other hand, determining which conviction should be set aside when a defendant is convicted of multiple crimes for the same offense is not truly a question of legislative intent, but is rather a decision requiring the exercise of the sentencing court’s discretion. Ball v. United States, supra, 864. The question of which conviction should be set aside does not involve the type of statutory construction problem to which the rule of lenity applies because there is no issue of legislative intent and ultimately there will be imposed but a single legislatively prescribed punishment. Compare State v. Rawls, supra, 121-22 (rule of lenity applied to question of whether legislature intended multiple punishments under a single narcotics statute for simultaneous possession of heroin and cocaine). The defendant is unable to cite any cases in which the rule of lenity has been applied in this context, and we decline to apply it in this instance.

Here the state proved the elements of felony murder and the three judge panel ordered the defendant to serve an effective sentence of 180 years for the three felony murder convictions, with all other sentences to run concurrently thereto. By imposing the defendant’s sentences in the manner in which it did, the panel obviously intended the sentences for felony murder to be the controlling punishment. We conclude, therefore, that the felony murder convictions should stand and that the convictions for manslaughter in the first degree should be nullified.

C

We must now determine the proper procedural form for our remand. In the past, in cases where we have concluded that multiple punishments had been imposed for the same offense, we have set aside the judgment of conviction for one of the offenses, thereby vacating both the conviction and the sentence for that offense. State v. John, supra, 697; State v. Rawls, supra, 122; State v. Amaral, 179 Conn. 239, 245, 425 A.2d 1293 (1979); State v. Goldson, 178 Conn. 422, 427, 423 A.2d 114 (1979).

The form of remand requested by the state, which would vacate only the sentence, is similar to the form adopted by the United States Court of Appeals for the Second Circuit in United States v. Osorio Estrada, 751 F.2d 128, 133-35 (2d Cir. 1984), cert. denied, 474 U.S. 830, 106 S. Ct. 97, 88 L. Ed. 2d 79 (1985). The defendant in Osorio Estrada had been convicted of two counts of conspiracy and one count of conducting a continuing criminal enterprise, and the trial judge imposed concurrent sentences for all three convictions. Id., 133-34. Noting that “[t]he law in this Circuit is that a conviction on a lesser included offense may not stand as a separate conviction,” the court concluded that the trial court had erred in sentencing the defendant for the two conspiracy convictions since these charges were found to be lesser included offenses of the continuing criminal enterprise charge. Id., 134.

Addressing the issue of whether it was required to vacate both the conviction and the sentence or only the sentence, the court reviewed the concerns underlying these alternative approaches. “The rationale for vacating a conviction as well as the sentence is that a conviction alone—even without a sentence—may entail adverse ‘collateral consequences.’ ” Id. These consequences include the risk that the existence of multiple convictions may harm the defendant in obtaining parole or employment or in testifying as a witness. United States v. Hooper, 432 F.2d 604, 605 n.3 (D.C. Cir. 1970); State v. John, supra, 694. The argument for vacating only the sentence is that if the conviction on the lesser offense is vacated, the defendant might be able to escape all criminal liability if an appellate court later reversed the conviction on the greater offense but would have upheld the conviction for the lesser offense. United States v. Osorio Estrada, supra, 134. The Osorio Estrada court concluded that the defendant’s “convictions on the lesser offenses should be combined with the conviction on the greater offense, i.e., the [continuing criminal enterprise] count. . . .

“Under this method, the convictions on the lesser counts become combined with that on the compound offense and would not be merged out of existence. This leaves the part of the conviction on the lesser offense unaffected should the compound offense be invalidated as a matter of law. The convictions on the lesser offenses would not exist as separate convictions so long as the [continuing criminal enterprise] conviction remained in place. Thus, the risk of any collateral consequences that separate convictions may entail would be eliminated . . . .” (Emphasis in original.) Id., 135.

In United States v. Aiello, supra, the Second Circuit Court of Appeals addressed the issue of whether its decision in Osorio Estrada was consistent with Ball v. United States, supra. In Ball, the court had ordered the district court to “vacate one of the underlying convictions” because a defendant had suffered multiple punishments for a single offense. (Emphasis added.) Ball v. United States, supra, 864. In Aiello, the Second Circuit concluded that Ball was not inconsistent with the procedure adopted in Osorio Estrada because Ball did not address the specific concern discussed in Osorio Estrada, namely, the effect of a subsequent reversal of the conviction left intact. United States v. Aiello, supra, 633. The court reasoned that “[t]he Supreme Court’s objective in Ball, to avoid the punitive consequences that might follow from having dual convictions on a defendant’s record, is achieved by the procedure adopted by us in Osorio Estrada of ‘combining’ convictions to ‘eliminate’ the ‘risk of any collateral consequences that separate convictions may entail.’ ” Id., quoting United States v. Osorio Estrada, supra, 135.

In State v. Napoleon, 12 Conn. App. 274, 277-83, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987), the Appellate Court refused to adopt the remand procedure outlined in Osorio Estrada. In reaching this conclusion the Napoleon court relied largely on the uniform precedents of this court vacating both the conviction and the sentence. Id., 282. The Appellate Court also concluded that Ball v. United States, supra, requires the vacation of both the conviction and the sentence. We disagree with the Appellate Court concerning the effect of Ball because we find the reasoning of the Second Circuit in United States v. Aiello, supra, 633-34, to be persuasive.

We conclude that the Second Circuit’s approach to this procedural issue adequately addresses the dual concerns relating to a subsequent reversal of the remaining conviction and subjecting a defendant to the collateral consequences of multiple convictions. Therefore, the proper disposition of this case is to combine the convictions for manslaughter in the first degree with the felony murder convictions and vacate the manslaughter sentences. If the felony murder convictions are later invalidated for any reason and the defect at issue does not affect the convictions for manslaughter in the first degree, the manslaughter convictions would be resuscitated and the defendant could be punished for those convictions.

II

The defendant’s second double jeopardy claim arises from his convictions for both manslaughter in the first degree and injury to a child. We conclude that this issue is moot because of our disposition of his first double jeopardy claim. The defendant argues that this question would not be moot unless we were to order a judgment of acquittal on the manslaughter convictions. We have held that a finding that a defendant has been given multiple punishments for the same offense in a single trial cannot support a motion for acquittal. State v. Usry, 205 Conn. 298, 318, 533 A.2d 212 (1987). The defendant argues that, absent a judgment of acquittal, the mere existence of the manslaughter convictions along with the injury to a child conviction raises a double jeopardy problem even though the punishment related to the manslaughter convictions, including any potential collateral consequences, has been eliminated. We disagree.

In the context of a single trial, “the role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” (Emphasis added.) Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). In United States v. Osorio Estrada, supra, 134-35, and United States v. Aiello, supra, 633-34, the Second Circuit concluded that the mere existence of a conviction, without any related sentence or collateral consequences, does not pose any double jeopardy problems, since there is no punishment associated with the conviction. The trigger for double jeopardy analysis in the context of a single trial is multiple punishment; where there is no punishment associated with a conviction there is no double jeopardy.

In light of our disposition of the defendant’s first double jeopardy claim, it is necessary to determine whether the existence of the convictions for both felony murder and injury to a child poses any double jeopardy problems. There is no dispute that these convictions arose from the same act. Felony murder and injury to a child, however, do not constitute the same offense under the Blockburger test because each offense requires proof of a fact that the other does not. Under § 53a-54c, felony murder requires proof of a predicate felony, but does not require proof that the victim was a child. Under § 53-21, injury to a child requires proof that the endangered child was under the age of sixteen years, but does not require proof of a predicate felony.

If each of two offenses requires proof of a fact that the other does not, the Blockburger test gives rise to the presumption that the legislature intended multiple punishment for the offenses. State v. Delgado, 19 Conn. App. 245, 251-52, 562 A.2d 539 (1989). That presumption is rebutted only by a clear indication of a contrary legislative intent. Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985). In this instance there is no clear legislative intent evident from either the wording of the statutes or their legislative histories that the legislature did not intend multiple punishments for the distinct crimes of felony murder and injury to a child. Consequently, the Block-burger presumption is not rebutted.

The judgment is reversed in part and the case is remanded to the trial court with direction to combine the defendant’s manslaughter convictions with his three felony murder convictions and to vacate his manslaughter sentences. The judgment of the trial court is not otherwise modified. The defendant’s consecutive sentences for felony murder remain the effective term of imprisonment.

In this opinion the other justices concurred.

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

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

       “[General Statutes] Sec. 53a-54b. CAPITAL felony. A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction.”

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals OF, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-102 (a) provides: “burglary in the second degree; class c felony, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       “[General Statutes] Sec. 53a-55. manslaughter in the first degree: class b felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection . . . .”

       General Statutes § 51-199 (b) (3) provides: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years.”

       The opinion referred to as State v. John, 210 Conn. 652, 557 A.2d 93 (1989), included the decisions for two separate appeals: State v. John (Docket No. 13056) and State v. Seebeck (Docket No. 13057). The holding relied upon by the defendant is actually part of the decision in State v. Seebeck, but we will refer to the case as State v. John for citation purposes.

       The court noted that felony murder requires proof of a predicate offense but does not require proof of a specific intent to do harm, while manslaughter in the first degree requires proof of intent to cause serious physical injury or death but does not require proof of a predicate offense. State v. John, 210 Conn. 652, 557 A.2d 93 (1989).

       See footnote 2, supra, for the text of General Statutes § 53a-54a (a).

       See footnote 6, supra for the text of General Statutes § 53a-55 (a) (1).
      Although the judgment in State v. John, 210 Conn. 652, 557 A.2d 93 (1989), did not specify the subsection of § 53a-55 under which the defendant was convicted, the jury charge on manslaughter addressed only subsection (a) (1) of § 53a-55, which applies when a person causes the death of another person while acting with the intent to cause serious physical injury.

       The state notes that under the common law the concept of murder included: (1) intentional homicide; (2) killing done with intent to cause grievous bodily harm; (3) unintentional homicide done under circumstances indicating a depraved mind or an abandoned and malignant heart; and (4) felony murder. See II A.L.I., Model Penal Code and Commentaries (1980) § 210.2, comment, pp. 14-15. The state also notes that the origin of the crime of first degree manslaughter based on the defense of extreme emotional disturbance is the common law offense of voluntary manslaughter, which involved an intentional killing while under the heat of passion. See State v. Yanz, 74 Conn. 177, 179-80, 50 A. 37 (1901).
      The foundation of the state’s argument is that murder and voluntary manslaughter were separate crimes under the common law. The state claims that while the types of homicide at issue in State v. John, 210 Conn. 652, 557 A.2d 93 (1989), namely, felony murder and killing done with intent to cause serious injury, were the same offense under the common law, the types of homicide at issue in this case, felony murder and intentional murder under the influence of extreme emotional disturbance, were not the same crime under the common law.

       In State v. John, 210 Conn. 652, 557 A.2d 93 (1989), as in the present case, the defendant’s prison sentence for his manslaughter conviction was less than the sentence for his felony murder conviction. After determining that the defendant’s rights under the double jeopardy clause had been violated, we remanded the case to the trial court with direction to vacate the judgment of conviction on the manslaughter charge. Id., 697. The defendant in John, however, had requested that we vacate the manslaughter conviction. Consequently, we did not have to address the issue, at that time, of how to determine which conviction should be eliminated.

       In Holiday v. Johnston, 313 U.S. 342, 349, 61 S. Ct. 1015, 85 L. Ed. 1392 (1941), the court had held that a defendant could not receive two sentences for the same offense under the Bank Robbery Act but that this error did not constitute double jeopardy. The court concluded that the appropriate remedy for this error was for the defendant to apply for vacation of the sentence and resentencing in conformity with the statute. Id.

       Although the Ball court left the decision of which of the two convictions to vacate to the trial court, at least three United States Circuit Courts of Appeal applying Ball in cases involving greater and lesser included offenses have directed the trial court to eliminate the conviction for the lesser offense. See United States v. Hernandez-Escarsega, 886 F.2d 1560, 1582 (9th Cir. 1989), cert. denied, U.S. , 110 S. Ct. 3237, 111 L. Ed. 2d 748 (1990); United States v. Maull, 806 F.2d 1340, 1347 (8th Cir. 1986), cert. denied, 480 U.S. 907, 107 S. Ct. 1352, 94 L. Ed. 2d 522 (1987); United States v. Aiello, 771 F.2d 621, 632-35 (2d Cir. 1985).

       In cases where the intention of the sentencing court as to which sentence should control is not as clear as it is in this case, our remand could order the sentencing court to decide which conviction to negate. Requiring the three judge panel to complete this additional step is unnecessary in this case since the panel’s intent is clear.

       General Statutes § 53a-54c provides in pertinent part: “[I]t shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       Although this issue was not briefed by the parties, it was raised by the defendant’s request in his brief that we “merge” the felony murder convictions into the manslaughter convictions and vacate the felony murder sentences. The procedural format of this request is consistent with the procedure followed by the Second Circuit Court of Appeals; see United States v. Roman, 870 F.2d 65, 75-76 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S. Ct. 3164, 104 L. Ed. 2d 1026 (1989); United States v. Aiello, 771 F.2d 621, 632-33 (2d Cir. 1985); but it is not consistent with the procedure followed by this court in prior cases involving successful double jeopardy claims. See, e.g., State v. Rawls, 198 Conn. 111, 122, 502 A.2d 374 (1985). During oral argument the state indicated that it had assumed that we would continue to follow the procedure of ordering the trial court to vacate both the conviction and the sentence, but it urged this court to adopt the procedure followed by the Second Circuit if we reached this issue.

       A majority of the circuits follow the procedure of vacating both the conviction and the sentence on the lesser offense. See United States v. Possick, 849 F.2d 332, 341 (8th Cir. 1988); United States v. Stallings, 810 F.2d 973, 975-76 (10th Cir. 1987); United States v. Schuster, 769 F.2d 337, 343-45 (6th Cir. 1985), cert. denied, 475 U.S. 1021, 106 S. Ct. 1210, 89 L. Ed. 2d 322 (1986); United States v. Bascaro, 742 F.2d 1335, 1357-58 (11th Cir. 1984), cert. denied sub nom. Hobson v. United States, 472 U.S. 1017, 105 S. Ct. 3476, 87 L. Ed. 2d 613 (1985); United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir. 1984), cert. denied, 469 U.S. 1113, 105 S. Ct. 797, 83 L. Ed. 2d 790 (1985); United States v. Smith, 703 F.2d 627, 628 (D.C. Cir. 1983) (per curiam).
      The procedure of vacating only the sentence has found support in at least three circuits other than the Second Circuit. See United States v. Moya-Gomez, 860 F.2d 706, 752-54 (7th Cir. 1988), cert. denied sub nom. Estevez v. United States, 492 U.S. 908, 109 S. Ct. 3221, 106 L. Ed. 2d 571 (1989); United States v. Grayson, 795 F.2d 278, 287 (3d Cir. 1986), cert. denied sub nom. Robinson v. United States, 479 U.S. 1054, 107 S. Ct. 927, 93 L. Ed. 2d 978 (1987); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir. 1985); see also United States v. Fuentes, 729 F. Sup. 487, 492-93 (E.D. Va. 1989) (noting conflict within the Fourth Circuit on this issue and vacating only the sentence).


text:
    Julie Lewin et al. v. United States Surgical Corporation et al.

      Kathleen Eldergill, in support of the petition.

      Bruce R. Genderson, Diana L. Schacht, Daniel J. Mahaney, and Richard J. Lynch and Andrea B. Gaines, assistant attorneys general, in opposition.
    Decided July 11, 1990
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 21 Conn. App. 629, is denied.


text:
    State of Connecticut v. Antonio Osman

      Timothy H. Everett and Dana E. Shaw, certified legal intern, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
    Decided July 11, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 299, is granted, limited to the following issues:

“ 1. Did the Appellate Court correctly conclude that the evidence adduced at trial to prove identification was sufficient to sustain, logically and beyond a reasonable doubt, the jury’s guilty verdict on first degree robbery and conspiracy to commit first degree robbery?
“2. Did the Appellate Court correctly determine that evidence of a coparticipant’s use or threatened use of a tire iron was sufficient to sustain the defendant’s conviction of conspiracy to commit first degree robbery, in violation of C.G.S. §§ 53a-48 and 53a-134 (a) (3), where that theory of liability was neither charged in the information nor instructed upon at trial?”


text:
    Gene DeMatteo v. Norma J. DeMatteo

      William F. Gallagher, in support of the petition.

      Daniel J. Mahaney, in opposition.
    Decided July 11, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 582, is denied.


text:
    Joseph Cleveland v. U.S. Printing Ink, Inc., et al.

      Robert E. Beach, in support of the petition.

      Dennis A. Ferdon, in opposition.
    Decided July 11, 1990
   The defendants’ petition for certification for appeal from the Appellate Court, 21 Conn. App. 610, is granted, limited to the following issues:

“Did the Appellate Court properly conclude that because there was sufficient contact with Connecticut by the plaintiff truck driver and his employer, both being domiciled in New Jersey, to give this state jurisdiction, the Connecticut workers’ compensation law, both procedural and substantive, should apply?
“Should the Appellate Court have dismissed the appeal suo motu for lack of a final administrative determination?”


text:
    Bernard C. Fisher v. Jean B. Fisher

      L. Paul Sullivan, in support of the petition.

      John A. Berman, in opposition.
    Decided July 11, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Ronald Callahan

      Martin Zeldis, assistant public defender, in support of the petition.
    Decided July 11, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 654, is denied.


text:
    Thomas P. Dugas v. Lumbermens Mutual Casualty Company

      Michael Brodinsky, in support of the petition.
    Decided July 11, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 27, is granted, limited to the following issues:

“1. Did the Appellate Court properly consider the validity of Regulations of Connecticut State Agencies § 38-175a-6 (d) (3)?
“2. Did the Appellate Court properly conclude that this insurance regulation is void?”


text:
    State of Connecticut v. William J. Safford

      William J. Safford, pro se, in support of the petition.

      James A. Killen and Warren Maxwell, assistant state’s attorneys, and John Bailey, state’s attorney, in opposition.
    Decided July 11, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 467, is denied.