author: Covello, J.

text:
    Grover Payton v. Lawrence Albert, Acting Commissioner of Correction
    (13333)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.

      Argued May 3
    decision released September 6, 1988

      Steven R. Strom, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (respondent).

      Michael J. Isko, deputy assistant public defender, with whom were Temmy Ann Pieszak, assistant public defender, and, on the brief, Elizabeth M. Inkster, assistant public defender, for the appellee (petitioner).
   Covello, J.

This is an appeal from the granting of the petitioner Grover Payton’s application for a writ of habeas corpus. The petition alleged an illegal confinement in that the respondent commissioner of correction had erroneously calculated the effective release date on the petitioner’s two concurrent sentences of two and one-half years each. Specifically, the petitioner claimed that he was entitled, under General Statutes §§ 18-98d and 53a-38 (b), to a sentence reduction of 113 days for the time he had spent in presentence confinement (jail time) awaiting the disposition of his cases. Further, he claimed that the respondent’s construction of §§ 18-98d and 53a-38 (b), crediting him with only seventy-six days of jail time, denied him his constitutional rights of due process and equal protection of the laws as guaranteed him by the fourteenth amendment to the United States constitution and article first, §§ 8 and 20, of the Connecticut constitution.

The habeas court concluded that the respondent had misconstrued § 18-98d, and granted the petition. It rendered judgment ordering the respondent to recalculate the petitioner’s sentence to award him 113 days of jail time credit. The respondent’s petition for permission to appeal to the Appellate Court was thereafter granted. This court then transferred the matter to itself pursuant to Practice Book § 4023.

On appeal, the respondent claims: (1) that the trial court erred in concluding that § 18-98d entitled the petitioner to 113 days of jail time credit for the time he was incarcerated while unable to make bail; and (2) that the denial of such credit to the petitioner does not deny him due process or equal protection of the laws.

We conclude that the respondent correctly construed §§ 18-98d and 53a-38 (b), and that the petitioner’s constitutional rights have not been violated. Therefore, we remand the matter to the trial court with direction to deny the petition.

Examination of the record discloses the following: Docket No. CR 6-262088

Robbery Third Degree, Assault Third Degree, Larceny Second Degree, Criminal Impersonation

On July 22, 1986, the petitioner was arrested and charged with the crimes of robbery in the third degree in violation of General Statutes § 53a-136, assault in the third degree in violation of General Statutes § 53a-61, larceny in the second degree in violation of General Statutes § 53a-123 and criminal impersonation in violation of General Statutes § 53a-130. These offenses allegedly occurred on July 21,1986. The petitioner remained in pretrial confinement for these offenses until he posted bail on November 12,1986,113 days after his arrest. On January 16, 1987, the petitioner pleaded guilty to a single count of robbery in the third degree and was sentenced to a term of imprisonment of two and one-half years.

Docket No. CR 6-263741 Possession of Cocaine

On August 28,1986, the petitioner was charged with the crime of possession of cocaine in violation of General Statutes § 21a-279 (a), the offense allegedly having occurred on June 11,1986. He remained in pretrial confinement on this charge until he posted bail on November 12, 1986, seventy-six days after his arrest for possession of cocaine. On January 16,1987, the petitioner pleaded guilty as charged and was sentenced to a second term of imprisonment of two and one-half years.

The sentencing court ordered that both two and one-half year sentences were to run concurrently. In determining the petitioner’s effective release date, the respondent examined the pretrial confinement time in each case. In Docket No. CR 6-262088, the respondent calculated that 113 days of jail time plus a corresponding reduction of thirty-eight days for good conduct (good time) advanced the petitioner’s release date in that case from July 15,1989, to February 14,1989. In Docket No. CR 6-263741, the respondent calculated that seventy-six days of jail time plus a corresponding twenty-six days of good time advanced the release date from July 15, 1989, to April 4, 1989. Having merged the two sentences and on the basis of the sentence which had the longest to run, the respondent, pursuant to § 53a-38 (b), determined that the actual release date would be April 4, 1989.

The petitioner argues that he should receive jail time credit for all presentence confinement regardless of which offense caused his pretrial confinement and regardless of which sentence caused his subsequent imprisonment. In effect, he seeks to credit the 113 days of jail time accrued in Docket No. CR 6-262088 to the sentence imposed in Docket No. CR 6-263741. We disagree that such a credit is proper.

I

General Statutes § 18-98d (a) provides in relevant part that “[a]ny person who is confined to a . . . correctional institution .... because such person is unable to obtain bail . . . shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement f f

In Breen v. Warden, 173 Conn. 312, 377 A.2d 335 (1977), and Houston v. Warden, 169 Conn. 247, 363 A.2d 121 (1975), we examined this statute’s predecessors, General Statutes §§ 18-97 and 18-98. In these cases we addressed the specific issue of whether jail time credit accruing under one offense can be transferred to a term of imprisonment following sentencing on a different offense. Although neither statute clearly addressed the issue, we concluded in both instances that such transfers of jail time credit were not permitted.

“As our decision in Houston v. Warden, [supra], makes clear, in order for an inmate to be entitled to presentence time-served credit pursuant to the provisions of § 18-97 of the General Statutes, it must appear that he was being confined untier a mittimus which resulted from the offense for which the sentence was imposed. ” (Emphasis added.) Breen v. Warden, supra, 315.

Sections 18-97 and 18-98 were subsequently merged and reenacted in 1980 as § 18-98d. Public Acts 1980, No. 80-442. The issue then arises whether the language of this new enactment should cause us to modify our earlier rulings that jail time credits may not be transferred. We conclude that it does not.

Section 18-98d differs from its predecessors in that it merged § 18-97, which dealt with the presentence confinement of those held under a mittimus, and § 18-98, which dealt with the presentence confinement of those unable to obtain bail. Further, § 18-98d added the provision that “each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement.” As with its predecessors, there is no specific language in § 18-98d dealing with the transferability of jail time credits.

Section 18-98d was enacted after our ruling in Mancinone v. Warden, 162 Conn. 430, 294 A.2d 564 (1972), which concluded that the credits authorized by §§ 18-97 and 18-98 were not mutually exclusive and could be earned simultaneously. The effect of Mancinone was that an alleged parole violator held under a mittimus could earn jail time credit under § 18-97 and also accrue jail time credit under § 18-98 for other charges pending for which he had been unable to obtain bail. Thus, in Mancinone the defendant received two days jail time credit against his sentence for each calendar day spent in presentence confinement as the result of the simultaneous application of the credits authorized under both § 18-97 and § 18-98. See also Delevieleuse v. Manson, 184 Conn. 434, 439 A.2d 1055 (1981) (five days credit for each calendar day of pretrial confinement.) The holding in Mancinone, however, did not deal with the issue in Breen v. Warden, supra, or Houston v. Warden, supra, i.e., whether jail time credits accrued while in pretrial confinement for one offense could be transferred to a sentence imposed for another offense.

There is nothing in the scanty legislative history of § 18-98d that indicates that its enactment was a specific legislative response to our holding in Mancinone v. Warden. It is evident, however, that with the merger of the two statutes, there is now only a single jail time credit applicable to presentence confinements. The availability of but a single jail time credit, together with the new language specifically limiting sentence reductions to a single day for each calendar day of pretrial confinement, effectively deals with the arguably inequitable result that flowed from the concurrent application of §§ 18-97 and 18-98.

With respect to the present issue, however, we observe nothing in the language of § 18-98d, or in its legislative history, that suggests that its enactment was in response to our earlier holdings in Houston v. Warden, supra, and Breen v. Warden, supra, as to the nontransferability of jail time credits between sentences. This being the case, we do not modify our earlier position that our legislature has not intended to authorize the transfer of jail time credits accrued while in pretrial confinement under one offense to the sentence thereafter imposed upon conviction for another offense.

While § 18-98d deals with the calculation of sentences in general, it does not specifically take up the matter of concurrent sentences. General Statutes § 53a-38 (b) does. It provides in relevant part: “If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run . ” (Emphasis added.)

In the present case, the respondent determined that the two and one-half year term imposed in Docket No. CR 6-262088, when adjusted for its authorized credits, would be satisfied on February 14, 1989. The two and one-half year term imposed in Docket No. CR 6-263741, when adjusted for its authorized credits, would be satisfied on April 4, 1989. The two sentences having been ordered to run concurrently, § 53a-38 (b) directed that their merged terms were satisfied by the “discharge of the term which has the longest term to run.” In this instance, the respondent determined that the longer term was the sentence in Docket No. CR 6-263741, i.e., until April 4,1989, and therefore he declared that date as the proposed discharge date since § 53a-38 (b) required him to do so. We conclude that the determination of the discharge date by this method reflects a correct construction of the two applicable statutes.

II

The respondent further claims that the correct application of §§ 18-98d and 53a-38 (b) to the sentencing circumstances of this case does not deny the petitioner his right to equal protection of the laws.

“ ‘When a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear . . . Liistro v. Robinson, 170 Conn. 116, 127, 365 A.2d 109 (1976).

“Equal protection analysis must commence with a determination of whether a legislative classification is invidious, or ‘inherently suspect,’ or whether the legislation impinges upon a fundamental right. Where the legislation impinges upon a fundamental right . . . then it must be struck down unless justified by a compelling state interest.” Laden v. Warden, 169 Conn. 540, 542, 363 A.2d 1063 (1975).

“The refusal to credit the [petitioner] with jail time affects the period of his confinement and directly impinges on his fundamental right of liberty. . . . Hence his lengthened confinement must be justified by a compelling state interest.” (Citations omitted.) Id., 544.

The compelling state interest in upholding the respondent’s calculation here lies in the unacceptable ramifications of transferring jail time credit between different offenses. In order for the petitioner to be eligible for release on February 14,1989, as he claims, the jail time accrued in Docket No. CR 6-262088 would have to be transferred to Docket No. CR 6-263741. The petitioner in effect would have begun serving the sentence in Docket No. CR 6-263741 before he was even charged with the offense in that information. Implicit in the adoption of his construction of §§ 18-98d and 53a-38 (b) is the notion that the petitioner may “bank” jail time credits, thereby reducing criminal sentences that are subsequently imposed. This he may not do.

A petitioner should not, upon posting bail, leave a correctional center with the perception that there is jail time accrued in his name which may be applied to subsequent sentences that may follow criminal activity occurring after his release on bail but before the disposition of the original charges. “The principle that extra time served on a criminal sentence may not be ‘banked’ is strongly rooted in the public policy that individuals should not be encouraged to commit crimes knowing they have a ‘line of credit’ that can be applied against future sentences. [McGinnis v. United States ex rel. Pollack, 452 F.2d 833, 836 (2d Cir. 1971), cert. denied, 406 U.S. 905, 92 S. Ct. 1606, 31 L. Ed. 2d 815 (1972)]; see also Bowen v. Murphy, 693 F.2d 104, 105 (10th Cir. 1982); Miller v. Cox, 443 F.2d 1019, 1021-22 (4th Cir. 1971).” Bryant v. Warden, 776 F.2d 394, 396 (2d Cir. 1985), cert. denied, 475 U.S. 1023, 106 S. Ct. 1216, 89 L. Ed. 2d 327 (1986).

We conclude that the public policy considerations inherent in discouraging criminal activity rise to the level of a compelling state interest. In our view, therefore, §§ 18-98d and 53a-38 (b) as interpreted and applied in this instance withstand the constitutional challenge raised by the petitioner.

There is error, the judgment is set aside and the matter is remanded with direction to deny the petition.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 18-98d. presentence confinement credit FOR CONFINEMENT RESULTING FROM AN OFFENSE COMMITTED ON OR AFTER July 1,1981. (a) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (2) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement, except that if a person is serving a term of imprisonment at the same time he is in presentence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. In the case of a fine each day spent in such confinement prior to sentencing shall be credited against the sentence at the rate of ten dollars.”
      General Statutes 5 53a-38 (b) provides in relevant part: “A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
      The constitution of Connecticut, article first, § 8, provides in relevant part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”
      The constitution of Connecticut, article first, § 20, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       The record reflects that the petitioner is no longer confined, having served the concurrent sentences as reduced by the 113 day credit ordered by the habeas court. “In light of this, we must decide whether the issues raised in this appeal have become moot. Connecticut Foundry Co. v. International Ladies Garment Workers Union, AFL-CIO, 177 Conn. 17, 411 A.2d 1 (1979).” Plourde v. Liburdi, 207 Conn. 412, 415 n.5, 540 A.2d 1054 (1988). We find that they are not, because our conclusion that the 113 day credit was erroneously issued implicates the petitioner’s liberty interest in this case, as well as the liberty interests of all other inmates currently confined under concurrent sentences. See Delevieluse v. Manson, 184 Conn. 434, 439 A.2d 1055 (1981).

       General Statutes § 18-98d (b) provides: “In addition to any reduction allowed under subsection (a), if such person obeys the rules of the facility he may receive a good conduct reduction of any portion of a fíne not remitted or sentence not suspended at the rate of ten days or one hundred dollars, as the case may be, for each thirty days of presentence confinement; provided any day spent in presentence confinement by a person who has more than one information pending against him may not be counted more than once in computing a good conduct reduction under this subsection.”

       “[General Statutes (Rev. to 1977)] Sec. 18-97. credit towards fine OR SENTENCE FOR A PERIOD SPENT IN CUSTODY UNDER MITTIMUS. Any person receiving a fine or a sentence to a correctional institution or a community correctional center shall receive credit towards any portion of such fine as is not remitted or any portion of such sentence as to which execution is not suspended for any days spent in custody under a mittimus as a result of any court proceeding for the offense or acts for which such fine or sentence is imposed, provided he shall conform to the rules of the institution. Upon notification from the commissioner of correction, the clerk of the court shall enter such credit upon the order in the case of a fine, and upon the mittimus in the case of a sentence and it shall be the duty of the agency or person that held such person under such mittimus to inform the clerk of the court of the proper amount of such credit. In the case of a fine each credit day shall be computed at the rate of ten dollars. In no event shall credit be allowed in excess of the fine or sentence actually imposed.”
      “[General Statutes (Rev. to 1977)] Sec. 18-98. COMMUTATION OF SENTENCE FOR PERIOD DURING WHICH BAIL WAS DENIED OR UNAVAILABLE. Any person who has been denied bail or who has been unable to obtain bail and who is subsequently imprisoned is entitled to commutation of his sentence by the number of days which he spent in a community correctional center from the time he was denied or was unable to obtain bail to the time he was so imprisoned. The commissioner of correction shall, if such person has conformed to the rules of the institution, credit such person with the number of days to which the supervising officer of the correctional center where such person was confined while awaiting trial certifies such person was confined between the denial of bail to him or his inability to obtain bail and his imprisonment.”

       A mittimus is the court document commanding the sheriff to convey the named person to prison and the direction to the jailor commanding him to keep said person until he shall be delivered by due course of law. State v. Lenihan, 151 Conn. 552, 554-55, 200 A.2d 476 (1964).

       Although the petitioner has claimed a due process violation, he does not advance any argument distinct from his equal protection challenge. Accordingly, we consider only the latter.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Jose Quintana
    (13179)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued June 1
    decision released September 6, 1988

      Joette Katz, public defender, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, were Bradford Ward, assistant state’s attorney, Harry Weller, deputy assistant state’s attorney, and Peter Markle, former assistant state’s attorney, for the appellee (state).
   Covello, J.

Following a jury trial, the defendant, Jose Quintana, has appealed from a judgment of conviction of felony murder in violation of General Statutes § 53a-54c. The defendant claims that: (1) his due process rights were violated by the state’s failure to disclose the existence of criminal charges pending against a state’s witness; (2) this nondisclosure contravened Practice Book § 744 and constituted reversible error; (3) the trial court’s instructions to the jury allowed it to convict the defendant on theories of liability that were unsupported by the evidence; (4) the trial court erred in its instructions to the jury on the crime of attempt; (5) the trial court erred in its instructions to the jury on the law of self-defense and the duty to retreat; and (6) the trial court’s instructions on self-defense allowed the jury to convict the defendant on a less than unanimous verdict, in violation of his rights under the Connecticut constitution.

The jury could reasonably have found that on the evening of March 11,1986, the victim, Robert Chrisman, was stabbed in the chest on a sidewalk near his apartment in Waterbury. Police responding to a call reporting the incident found a silver-colored aluminum cigarette case and cigarette lighter on the sidewalk near the victim. The victim’s fiance, who later identified his body, testified that she did not recognize the lighter and cigarette case as belonging to the victim and had never seen them in his possession. The police officers at the scene collected the lighter and cigarette case and brought them to police headquarters for forensic examination. Police experts later determined that fingerprints on both of these items were the defendant’s.

The defendant’s former girlfriend, Jeannette Berman, testified that in a conversation with her two days after the stabbing incident, the defendant admitted having stabbed the victim in self-defense in an altercation that, according to the defendant, had been initiated by the victim. She also identified the cigarette case and lighter that police had recovered from the crime scene as belonging to the defendant.

Berman further testified that, a few days after the murder, she picked up the defendant in her car at a prearranged meeting place pursuant to his instructions. As they drove around Waterbury, the defendant ordered her to pull over to pick up a friend of his whom he saw walking nearby. She identified the passenger as Gregorio Hernandez, and testified that the defendant and Hernandez subsequently carried on a conversation in Spanish in the back seat of her car while she drove.

Hernandez testified at the defendant’s probable cause hearing and again at the trial that, during this back seat conversation, the defendant confided in Hernandez that he had killed Chrisman during an attempted robbery.

I

The defendant first claims that his due process rights were violated by the state’s failure to disclose the existence of criminal charges pending against the witness Hernandez at the time of his trial testimony. We find no reversible error.

“In Brady v. Maryland, [373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], the United States Supreme Court stated that ‘suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment . . . .’ ” State v. Pollitt, 205 Conn. 132, 141, 531 A.2d 125 (1987). The state acknowledges that such a request was made, by virtue of the defendant’s motion for disclosure on May 7, 1986, requesting “all exculpatory information and material.”

Hernandez testified at the defendant’s probable cause hearing on May 14,1986. At the time of his probable cause testimony, there were no charges pending against Hernandez. On August 25, 1986, the state responded to the defendant’s motion for disclosure and stated that it “possessed no obviously exculpatory information or material.” The defendant’s trial for felony murder began on January 28,1987, and Hernandez testified again as a witness for the state, essentially reiterating the testimony he had given at the May 14, 1986 probable cause hearing. Criminal charges against Hernandez had arisen during the interval between the probable cause hearing and the defendant’s criminal trial. Thus, at the time of his trial testimony, Hernandez was a witness against whom nondisclosed criminal charges were pending.

The determination of whether the defendant’s due process rights were violated by the states’s nondisclosure of the charges pending against Hernandez at the time of his trial testimony turns on whether that information was material. In United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), the United States Supreme Court articulated the standard of materiality for disclosures mandated by Brady: “ ‘The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ ” See State v. Pollitt, supra, 142-43.

Applying this standard of materiality to the circumstances of this case, “we must determine whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” State v. Monteeth, 208 Conn. 202, 214-15, 544 A.2d 1199 (1988). We conclude that the nondisclosure of Hernandez’ pending charges does not raise a reasonable probability that the outcome of the defendant’s criminal trial would have been different. The crucial aspect of Hernandez’ trial testimony, that the defendant had admitted the stabbing and attempted robbery of the victim, was a reiteration of the testimony Hernandez had presented at the probable cause hearing. The impeachment force of the evidence of the pending charges, i.e., that Hernandez might be induced to give testimony that would benefit his own interest in winning favor with the state, was undermined by the fact that he had presented entirely consistent testimony at the probable cause hearing when there were no such pending charges, and thus no potential inducements affecting the credibility of his statements. In our view, the trial testimony served largely to confirm and restate the evidence given at the probable cause hearing. Further, any perceived infirmities in the probative value of Hernandez’ testimony because of the pending charges could easily have been cured by the rehabilitative effect of the introduction of the probable cause testimony as a prior consistent statement. State v. Dolphin, 178 Conn. 564, 571, 424 A.2d 266 (1979).

Had the pending charges against Hernandez been disclosed by the state, and had the defendant made use of the charges to discredit the witness, the jury could still reasonably have chosen to believe Hernandez on the basis of his earlier, consistent testimony given at the probable cause hearing. We deem the nondisclosure insufficient to have undermined confidence in the outcome of the proceedings, and therefore the information withheld was not “material” according to the test articulated in Bagley. We conclude that under the circumstances of this case, the nondisclosure of criminal charges pending against the witness Hernandez at the time of his trial testimony did not deprive the defendant of due process of law.

II

The defendant next claims that the state’s nondisclosure of the charges against Hernandez violated Practice Book § 744, which provides in relevant part: “After a witness called by the state has testified on direct examination, the prosecuting authority shall disclose . . . any record of felony or misdemeanor charges pending against the witness known to the prosecuting authority.” The defendant contends that the state’s violation of § 744 entitles him to a new trial. We disagree.

As we have just determined, Hernandez’ pending charges did not constitute “material” information within the meaning of United States v. Bagley, supra, and did not, therefore, rise to the level of a constitutional violation. There is no dispute that the required disclosure was not made and that, therefore, a violation of § 744 did occur. This violation is reviewable as plain error. Practice Book § 4185. While we hasten to emphasize that we do not condone the withholding of exculpatory information, it was the defendant’s burden in this case to show the harmfulness of this non-constitutional error. State v. Gonzalez, 197 Conn. 677, 681, 500 A.2d 1330 (1985). On the present record, we are not persuaded that the defendant has made the requisite showing of the harmfulness of this Practice Book violation. Consequently, he has failed to establish his entitlement to a new trial.

III

The defendant next claims that the trial court’s instructions on the charge of criminal attempt were erroneous in that they invited the jury to consider theories of liability unsupported by the evidence. The charge of felony murder was based on a substitute information that claimed that the defendant had caused the death of the victim in the course of and in furtherance of the crime of attempted robbery.

In its instructions to the jury on the crime of attempt, the trial court, pursuant to General Statutes § 53a-49, explained the statutory requirement that the defendant’s conduct constitute a “substantial step” in furtherance of the commission of a crime. The court continued: “To be a substantial step, the conduct must be strongly corroborative of the defendant’s criminal purpose. Examples are . . . .” The court then read to the jury the seven examples set forth in § 53a-49 (b) as examples of conduct that may be corroborative of the actor’s criminal purpose.

The defendant challenges this instruction, claiming that by reading to the jury all seven examples of corroborative conduct contained in the statute when several of them lacked any basis in the evidence, the trial court impermissibly allowed the jury to consider statutory alternatives that were not supported by the evidence. The defendant also challenges this instruction on the ground that it deprived the jury of its factfinding role. The defendant contends that the statute requires the jury to determine whether, in the first instance, the conduct at issue was corroborative of the defendant’s alleged criminal purpose. In this case, however, the trial court stated: “To be a substantial step, the conduct must be strongly corroborative of the defendant’s criminal purpose. Examples are . . . .” The defendant claims that, by means of this language, the trial court directly and expressly instructed the jury that the examples that followed were instances of corroborative conduct, thus removing this issue from the jury’s determination as to whether the acts of the defendant did, in fact, constitute corroborative conduct, and thus usurping the jury’s role as factfinder. We disagree with both of these contentions.

A

As to the defendant’s claim that the reading of all seven examples of corroborative conduct contained in § 53a-49 permitted the jury to convict the defendant on the basis of statutory alternatives unsupported by the evidence, our review of the trial court’s instructions convinces us that this claim is without merit. Preceding the challenged language, the trial court instructed the jury that “[y]ou may not go outside the evidence to find the facts. This means that you may not resort to guesswork, conjecture or suspicion . . .” and that “[y]ou are to decide the case solely on the evidence received at trial.” The court then continued its instructions by giving the statutory examples of conduct that may be corroborative of a criminal purpose; and that thereby may constitute the substantial step that is required as an element of the crime of attempt. Immediately following the reading of these examples, the court advised the jury: “It is for you to determine, on the evidence, whether the defendant intentionally did anything which constituted a substantial step in a course of conduct which he planned to culminate in the commission of robbery . . . .” (Emphasis added.)

We agree with the state’s position that the trial court offered these examples simply to illustrate types of conduct that may be legally sufficient to establish the requisite intent for the crime of attempt. The court followed these examples with an immediate reminder that the jury’s determination must be based “on the evidence. ” (Emphasis added.) In our view, these instructions could not reasonably have misled the jury into assuming that they might properly convict the defendant on the basis of illustrative examples that were not grounded in the evidence. Reading the jury instructions as a whole; State v. Price, 205 Conn. 616, 620, 534 A.2d 1196 (1987); State v. Usry, 205 Conn. 298, 314-15, 533 A.2d 212 (1987); we conclude that it is not reasonably possible that the jury was misled into convicting the defendant of attempted robbery on the basis of facts not in evidence.

B

The defendant’s second challenge to the jury instructions is that the trial court’s language regarding attempted robbery allowed the jury to dispense with the inquiry whether the defendant’s conduct was corroborative of a criminal purpose under § 53a-49 (b). The state concedes that this portion of the charge was erroneous, but argues that the error was harmless. We agree.

Section 53a-49 sets forth examples of conduct which, “if strongly corroborative,” (emphasis added) may be legally sufficient to constitute the “substantial step” in furtherance of the commission of a crime required for a conviction for criminal attempt. The statutory scheme contemplates a jury determination as to whether the conduct at issue is indeed corroborative, as a necessary predicate for a finding of a substantial step. The defendant attacks the court’s language, “[t]o be a substantial step, the conduct must be strongly corroborative of the defendant’s criminal purpose. Examples are . . .’’as declaring that the examples that followed are, as a matter of law, strongly corroborative, thereby impermissibly removing this issue from the jury’s consideration.

In our recent review of similar jury instructions, we stated: “Although the use of the questioned language was erroneous, the trial court clearly explained the corroboration principle of attempted robbery both before and after the misstatement.” State v. Price, supra, 621. Reviewing these instructions as a whole and in the context of the overall charge, we conclude that the jury was not reasonably misled. Id., 620-21; State v. Usry, supra, 314-15. The jury could reasonably have believed the testimony at trial that the defendant had himself described the stabbing as having occurred because of the victim’s resistance to the robbery attempt. It is not reasonably possible that the jury would have, instead, speculated as to acts of the defendant never alleged nor proved by the evidence but merely presented as illustrative examples as part of the trial court’s instruction, to find corroborative conduct to constitute the “substantial step” necessary for a verdict of guilty on the charge of attempted robbery.

IV

The defendant’s final claim involves a two-pronged challenge to the jury instructions regarding self-defense. The defendant first points to the trial court’s inaccurate rendition of General Statutes § 53a-19, which imposes a duty to retreat. The defendant also asserts that the self-defense instructions deprived him of his constitutional guarantee that the jury be unanimous in its verdict. We find no reversible error regarding the jury instructions on the issue of self-defense.

A

General Statutes § 53a-19 sets out the defense of self-defense and defines the circumstances that justify the use of physical force. In pertinent part, the statute provides that a person may be justified in using physical force in his own defense if that person reasonably believes that physical force is being used or will imminently be used against him. That justification is unavail: ing, however, if the person “knows that he can avoid the necessity of using such force with complete safety (1) by retreating . . . . ” (Emphasis added.) General Statutes § 53a-19 (b). The trial court's instruction on this issue incorrectly stated that “in most circumstances, a person must retreat from the perceived harm if he is able to do so with complete safety.” (Emphasis added.)

The defendant contends that in this portion of the charge, the trial court impermissibly replaced the subjective-objective standard contemplated by the statute with a simple objective standard. The statute requires both that a retreat in complete safety be available and that the defendant know of it. “The self-defense statute, i.e., General Statutes § 53a-19 . . . focuses on the person . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact [as to whether a safe retreat was available and whether he knew of it]. . . . This statutory emphasis upon the defendant further demonstrates the function of the jury in their evaluation of the self-defense claim.” (Emphasis in original.) State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). “[Section] 53a-19 (b) requires recourse to retreat in lieu of the use of physical force only when the actor himself ‘knows that he can avoid the necessity of using such force with complete safety . . . State v. Garrison, 199 Conn. 383, 387, 507 A.2d 467 (1986). The state concedes that the instruction as given obviated the statutory requirement that the defendant have actual knowledge of his ability to retreat and was therefore erroneous. Nevertheless, we agree with the state that, under the circumstances of this case, the error was harmless.

“It is well established that individual jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge.” State v. Palmer, 206 Conn. 40, 46, 536 A.2d 936 (1988). “The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” State v. Corchado, supra, 661; see State v. Palmer, supra, 46; State v. McDonough, 205 Conn. 352, 356, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988).

Read as a whole, the trial court’s instruction on self-defense, while not in strict accordance with § 53a-19 (b), “presented the case to the jury in a manner so that no injustice . . . resulted].” State v. DeJesus, 194 Conn. 376, 391, 481 A.2d 1277 (1984).

The defendant, who did not testify at trial, presented the only evidence on the issue of self-defense through the testimony of Berman. She recited the defendant’s version of the events, in which he had characterized the stabbing as an act of self-defense in response to an unprovoked attack by the victim. Hernandez, another witness, contradicted this evidence with his testimony that the defendant had admitted to him that he had stabbed the victim when he resisted the defendant’s attempt to rob him. In this posture, then, the evidence presented to the jury can fairly be said to center on the credibility of Berman’s self-defense version of the stabbing, measured against the credibility of Hernandez’ testimony that an attempted robbery was the motivating force behind the stabbing. The jury’s verdict can fairly be read to indicate a choice between these two inconsistent versions of the stabbing, a choice that accepted the version presented by Hernandez’ testimony and rejected the self-defense version presented by Berman. See State v. McDonough, supra, 358-59. “The principal factual issues, therefore, were not classically dependent upon [the subtleties of the law of self-defense] for their proof, as is true in cases where the principal factual issue is the . . . [defendant's subjective knowledge of the availability of safe escape].'' (Citations ommitted.) Id.; see State v. Mercer, 208 Conn. 52, 73, 544 A.2d 611 (1988). We conclude that the trial court's erroneous instruction on self-defense did not, therefore, constitute reversible error in the circumstances of this case.

B

The defendant’s final challenge to the jury instructions on self-defense is that the instructions as given violated his state constitutional right to be convicted by the unanimous verdict of the jury. The defendant points to the self-defense statute, § 53a-19, and its provisions that specify the circumstances in which the use of physical force is not justified. The court paraphrased the statute and instructed the jury as follows: “You must find the defendant not guilty on grounds of justification [of self-defense] unless the State has proved beyond a reasonable doubt any one of the following elements: One, the defendant did not believe that he was in imminent danger of death, and that the use of force was not necessary to protect himself; or two, he did not have reasonable grounds for such belief; or, three, the force used was unreasonable; or, four, he was the initial provocateur or aggressor and did not attempt to withdraw; or, five, he was engaged in mutual combat not specifically authorized by law. That obviously does not apply in this case.

“So, the State must prove one of those four, as I gave them to you. And, if the State has proven any one or more of these elements by evidence beyond a reasonable doubt, then the defendant was not justified. ” (Emphasis added.)

The defendant contends that by these instructions, the trial court permitted the jury to find that the state had defeated the defense of justification, without imposing on the jury the requirement that they unanimously agree as to which of the four means served to defeat the self-defense claim. The defendant asserts that this instruction violated his right to a unanimous jury verdict.

Despite the fact that the trial court’s instructions may have been in error, our review of the record convinces us that the focal point of contention in the defendant’s asserted self-defense claim was not the manner in which the defendant’s use of force had been unjustified. Rather, the jury’s determination of this issue involved, again, a question of credibility. The only evidence of self-defense came from Berman’s testimony that the defendant had told her that he had been the target of an unprovoked attack by the victim. The state’s witness, Hernandez, rebutted this position and claimed that the defendant had told him that he had “needed money to get high” and had stabbed the victim when he refused to cooperate with the defendant’s attempt to rob him. On the basis of this conflicting evidence, the jury was faced with the resolution of two inconsistent versions of the stabbing incident.

The court instructed the jury that “[i]n order for you to find the defendant guilty of felony murder . . . [you must find] that the defendant . . . committed or attempted to commit the crime of robbery.” Viewed in light of this instruction, the verdict can reasonably be interpreted as the result of the jury’s having rejected the self-defense version and having credited the attempted robbery version of the event. As such, the verdict suggests that there was agreement among the jurors concerning the defendant’s conduct, i.e., that the killing occurred in the course of the defendant’s robbery attempt, and that there was also agreement that his self-defense claim was without merit. We consider it highly unlikely, within the context of these evidentiary circumstances, that the jury was engaged in splitting hairs over which precise events had rendered the use of force unjustified. Rather, the jury rejected the self-defense scenario entirely, in favor of a finding that the fatal injuries were inflicted in the course of an attempted robbery.

In reviewing an error in jury instructions, our task is to determine whether the asserted error in the trial court’s charge to the jury affected the outcome of the trial and, consequently, deprived the defendant of a fair trial. State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980). Where the error is of constitutional dimension, the test is whether it is reasonably possible that the jury was misled. State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985).

“We have often said that the charge should be read as a whole in determining whether it is reasonably possible that an erroneous instruction could have misled a jury .... ‘It is well established . . . that individual instructions are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . ” (Citations omitted.) State v. McDonough, supra, 356.

“Here, there is no reasonable possibility that the defendant’s jurors were incorrectly led to believe that they could return a guilty verdict without all reaching unanimous agreement on the conduct the defendant had committed.” State v. Benite, 6 Conn. App. 667, 676-77, 507 A.2d 478 (1986). In the context of a charge of felony murder premised on the underlying crime of attempted robbery, the jury was free to reject the testimony regarding self-defense and to accept the testimony that related the defendant’s admission that the stabbing had occurred during the commission of a robbery attempt. Further, the trial court expressly instructed the jury that its verdict must be unanimous.

Finally, “the defendant never asked that the jury be polled, when it returned its verdict, to clarify the basis on which the defendant was convicted .... See State v. Carter, 189 Conn. 611, 629, 458 A.2d 369 (1983).” State v. Duhan, 194 Conn. 347, 354, 481 A.2d 48 (1984). The defendant cannot now be heard to complain about a claimed ambiguity in the verdict when he took no steps at trial to resolve that perceived ambiguity. Id.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . 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

       In January, 1987, at the time of his trial testimony, the following charges were pending against Hernandez: assault in the first degree in violation of General Statutes § 53a-59; threatening in violation of General Statutes § 53a-62; and larceny in the fourth degree in violation of General Statutes § 53a-125.

       General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.”

       “[General Statutes] Sec. 53a-19. use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury . . . .”
      The constitution of Connecticut, article first, § 19, as amended, provides: “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

       See generally 3 W. LaFave & J. Israel, Criminal Procedure (1984) § 23.7(f), p. 50.


author: Callahan, J.

text:
    State of Connecticut v. Perry Lee Herring
    (13271)
    Peteks, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued April 6
    decision released September 6, 1988

      Jon L. Schoenhorn, for the appellant (defendant).

      James G. Clark, assistant state’s attorney, with whom, on the brief, were Michael E. O’Hare and Herbert Appleton, assistant state’s attorneys, for the appellee (state).
   Callahan, J.

On September 24, 1985, the defendant, Perry Lee Herring, was charged in two separate informations; in one, with assault in the third degree in violation of General Statutes § 53a-61, and in the other, with threatening and harassment in violation of General Statutes §§ 53a-62 and 53a-183 respectively. On July 1,1987, in open court, the state attempted to enter nolles prosequi as to all the charges in both informations. The ostensible reason for the entry of the nolles, as stated by the assistant state’s attorney, was that the accused had received a sentence of fifty years to life the previous day in Hartford Superior Court and was also scheduled to be returned to New Jersey to finish an eighteen year term of imprisonment in that state. Apparently the state felt that to persist in the prosecution of these pending misdemeanors would be akin to carrying coals to Newcastle.

When the state indicated that it intended to enter nolles, the defendant objected and moved that the charges against him be dismissed pursuant to General Statutes § 54-56b and Practice Book 726. The trial court, however, allowed the nolles to enter and summarily denied the defendant’s motions to dismiss. The assistant state’s attorney did not make, or attempt to make, any representations that a material state’s witness had died, disappeared or become disabled, or that material evidence had disappeared or been destroyed, and that a further investigation was therefore necessary. See General Statutes § 54-56b. From the transcript, however, it appears that he was afforded no opportunity to do so by the trial court and the defendant was similarly not afforded an opportunity to respond. Such representations were essential before nolles could enter to the pending charges against the defendant over his objection. State v. Lloyd, 185 Conn. 199, 202, 440 A.2d 867 (1981). Without those representations, the trial court’s allowance of the entry of the nolles was plain error. State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981); State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); see also LaReau v. Reincke, 158 Conn. 486, 492-93, 264 A.2d 576 (1969).

The question that confronts this court is whether we have jurisdiction to address the trial court’s error. Generally, a party aggrieved by a decision of the trial court may appeal only from a final judgment. General Statutes §§ 52-263 and 51-197a; Practice Book § 4000; State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201 (1987); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The final judgment in a criminal case ordinarily is the imposition of sentence. In re Juvenile Appeal (85-AB), 195 Conn. 303, 306, 488 A.2d 778 (1985); State v. Parker, 194 Conn. 650, 652, 485 A.2d 139 (1984). A nolle prosequi is obviously not a final judgment and generally an appeal would not lie solely from the entry of a nolle prosequi. State v. Lloyd, supra, 207. Consequently, we must decide if this case falls within that narrow exception to the rule of finality that allows an intermediate appeal of interlocutory trial court rulings that, if erroneous, cannot later be remedied by reversal of a conviction after trial. Id.; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). We conclude that the entry of nolles to the charges against the defendant under the factual circumstances evident here fits within that exception and warrants the exercise of our judicial oversight. State v. Lloyd, supra.

If the trial court had adhered to the dictates of § 54-56b, the defendant, when he objected to the attempt of the state to enter nolles, would have been entitled to either a trial or a dismissal unless the state made the requisite representations that would have allowed nolles to enter. Id., 202. Instead, the trial court allowed nolles to enter as to the charges against the defendant without affording him an opportunity to present arguments in opposition thereto or giving the state the opportunity to make the necessary representations justifying their entry. If the present state of affairs is acquiesced in by this court the statutory right of the defendant to have the charges against him disposed of in accordance with the legislative mandate of § 54-56b will never be accommodated. Further, the failure to address the trial court’s error could lead to an indefinite postponement of the criminal proceedings against the defendant that may, under the circumstances, violate his constitutional right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 219-22, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967); State v. Lloyd, supra, 208. The defendant’s statutory and constitutional rights cannot be vindicated by a trial or other proceeding that, in all likelihood, will never take place unless an interlocutory appeal is permitted. State v. Lloyd, supra.

Therefore, this defendant is in much the same position as the defendant in State v. Lloyd, supra, 207, wherein we stated: “The purpose of providing judicial oversight over the entry of a nolle prosequi to which the defendant timely objected is to protect the defendant from the repeated initiation and termination of charges that, while discharging him from custody, leave him in legal limbo.” This defendant too, finds himself in that vacuous place of oblivion.

Since the effect of the entry of the nolles was only to terminate this particular prosecution without an acquittal and without placing the defendant in jeopardy, he remains vulnerable to reinstatement of a prosecution against him. State v. Gaston, 198 Conn. 435, 440-41, 503 A.2d 594 (1986); State v. Lloyd, supra, 201; Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed. 2d 218 (1971). Even if the statute of limitations as to these misdemeanors were to expire and the erasure statute become operative to deprive the state of access to records concerning these charges so as to render reinitiation of prosecution difficult and improbable, reinitiation of prosecution is not impossible. The statute of limitations is an affirmative defense, not a jurisdictional bar to prosecution; State v. Coleman, supra, 91; and the erasure statute does not foreclose the utilization of the personal and independent observation of witnesses to initiate a new prosecution. State v. Morowitz, 200 Conn. 440, 447-52, 512 A.2d 175 (1986); State v. Gaston, supra, 441; Hampton v. Manson, 5 Conn. App. 343, 346, 497 A.2d 1044 (1985); State v. Anonymous (1980-2), 36 Conn. Sup. 91, 92, 412 A.2d 708 (1979).

Consequently, the nolled charges, particularly in a prison setting, may threaten the defendant indefinitely. Further, his constitutional and statutory rights to have the charges appropriately resolved in a timely fashion will have vanished unless his interlocutory appeal is allowed. The case is properly here. State v. Lloyd, supra, 208. That being so, we find error and remand this matter to the trial court with instructions to allow the state the opportunity to make the requisite representations to allow the trial court to determine whether nolles should enter as to the charges in question. See id., 205. If the state is unable or unwilling to make the requisite representations, the defendant is entitled to a dismissal of the charges or an immediate trial.

There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1985)] Sec. 53a-61. assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
      “(b) Assault in the third degree is a class A misdemeanor.”

       “[General Statutes] Sec. 53a-62. threatening: class a misdemeanor. (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience.
      “(b) Threatening is a class A misdemeanor.”

       “[General Statutes] Sec. 53a-183. harassment: class c misdemeanor. (a) A person is guilty of harassment when: (1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph, mail, or any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversion ensues, in a manner likely to cause annoyance or alarm.
      “(b) For purposes of this section such offense may be deemed to have been committed either at the place where the telephone call was made, or at the place where it was received.
      “(c) The court may order any person convicted under this section to be examined by one or more psychiatrists.
      “(d) Harassment is a class C misdemeanor.”

       Evans, Dictionary of Quotations (1968) p. 113; Source “I” autobiography of James Melville 1583.

       “[General Statutes] Sec. 54-56b. eight to dismissal or trial on nolle. A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.”

       “[Practice Book] Sec. 726.--objection by defendant
      “Where a prosecution is initiated by complaint or information, the defendant may object to the entering of a nolle prosequi at the time it is offered by the prosecuting authority and may demand either a trial or a dismissal, except when a nolle prosequi is entered upon a representation to the judicial authority by the prosecuting authority that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.”

         “[General Statutes] Sec. 52-263. appeals from superior court, exceptions. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8, 8-9, 8-28 and 8-30.”

       General Statutes § 51-197a provides in pertinent part: “appeals to APPELLATE COURT. WRITS. TRANSFER OF JURISDICTION FROM APPELLATE session, (a) Appeals from final judgments or actions of the superior court shall be taken to the appellate court in accordance with section 51-197c, except for small claims, which are not appealable, appeals within the jurisdiction of the supreme court as provided for in section 51-199, appeals as provided for in sections 8-8, 8-9, 8-28 and 8-30, and except as otherwise provided by statute.”

       “[Practice Book] § 4000. (Formerly Sec. 3000). right of appeal
      “If a party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, that party may appeal from the final judgment of the court or of such judge, or from a decision setting aside a verdict except in small claims cases, which shall not be appealable, and appeals as provided in Gen. Stat. §§ 8-8, 8-9, 8-28 and 8-30.”

       General Statutes (Rev. to 1985) § 54-193 (b) provides in pertinent part: “LIMITATION OF PROSECUTIONS FOR VARIOUS OFFENSES. . . .
      “(b) No person may be prosecuted for any offense, except a capital felony or a class A felony, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony or a class A felony, except within one year next after the offense has been committed.”

       General Statutes § 54-142a (c) provides: “(Formerly Sec. 54-90). erasure of criminal records. . . .
      “(c) Whenever any charge in a criminal case has been nolled in the superior court, or in the court of common pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased. However, in cases of nolles entered in the superior court, court of common pleas, circuit court, municipal court or by a justice of the peace prior to April 1, 1972, such records shall be deemed erased by operation of law and the clerk or the person charged with the retention and control of such records shall not disclose to anyone their existence or any information pertaining to any charge so erased, provided nothing in this subsection shall prohibit the arrested person or any one of his heirs from filing a petition to the court or to the records center of the judicial department, as the case may be, to have such records erased, in which case such records shall be erased. Whenever any charge in a criminal case has been continued at the request of the prosecuting attorney, and a period of thirteen months has elapsed since the granting of such continuance during which period there has been no prosecution or other disposition of the matter, the charge shall be construed to have been nolled as of the date of termination of such thirteen-month period and such erasure may thereafter be effected or a petition filed therefor, as the case may be, as provided in this subsection for nolled cases.”