text:
    State of Connecticut v. Richard B. Crafts
    (13886)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued March 26
    decision released July 6, 1993

      Eugene J. Riccio, special public defender, with whom was Peter J. McGuinness, special public defender, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom were Walter D. Flanagan, state’s attorney, and Brian Cotter, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this criminal appeal is the sufficiency of largely circumstantial evidence to support a conviction of the crime of murder. The state charged the defendant, Richard B. Crafts, with having committed the crime of murder in violation of General Statutes § 53a-54a, by killing his wife, Helle Crafts. After an earlier trial resulted in a mistrial because of the jury’s inability to arrive at a verdict, the state retried the defendant and a jury found him guilty of murder. The trial court then rendered a judgment sentencing the defendant to a term of fifty years imprisonment. The defendant appeals his conviction to this court pursuant to General Statutes § 51-199 (b) (3). We affirm.

At the trial, the state’s theory of the offense was that the defendant had intentionally killed the victim as a result of the deterioration of their marriage. To conceal detection of the crime, the defendant had allegedly devised and executed an elaborate plan to destroy the victim’s body. In support of this proposition, the state presented extensive, but primarily circumstantial, evidence describing the couple’s marital troubles as well as the defendant’s actions during the fall and winter of 1986-1987 to establish that the defendant, with the requisite intent, had murdered the victim. The defendant maintained, to the contrary, that he had not killed his wife, but that he nonetheless did not know her present whereabouts.

The jury could reasonably have found the following facts. Because of the defendant’s continued extramarital affairs, the victim contacted an attorney and began divorce proceedings against him. She hired a private detective, who carried out surveillance of the defendant. The detective confirmed that the defendant was involved with another woman, and presented the victim with photographs of the defendant’s activities. Not only was the defendant himself aware of the victim’s intention to divorce him, but she also had told a number of people of her plans.

The victim’s marital troubles would not, however, have led to her voluntary departure from her home and family. The victim was extremely devoted to her children, was planning to seek their custody in the divorce proceedings, and would not under any circumstances have left them voluntarily. Furthermore, the victim warned several people that, if anything unusual were to happen to her, they should not believe that such an event was of her own making.

The victim was last seen or heard from on November 18, 1986, as she was dropped off at her home by a coworker. On the morning of November 19,1986, the defendant ushered the children and the family’s live-in au pair helper from the home at 6 a.m. to leave for his sister’s house in Westport purportedly, according to what the defendant told the au pair helper at the time, because of the lack of heat due to a power failure during a snowstorm the night before. The defendant’s home, however, had alternative sources of heat, including kerosene heaters, a fireplace and a generator. The victim was not present, and at that time the defendant explained that she had left earlier, probably to go to his sister’s house. In his rush to leave the house, the defendant made no attempt to dress the children for the severe weather and drove through difficult conditions to leave the children with his sister in Westport. Although the victim was not at the sister’s house, the defendant neither mentioned her absence nor inquired regarding her whereabouts. The jury could reasonably have inferred that, in light of all of the evidence, the defendant had already killed the victim during the night and was proceeding with the execution of his plan to conceal the crime.

As part of the defendant’s plan, prior to the events of November 18 and 19,1986, he had arranged for the rental of a woodchipper, the purchase of a truck with which to haul the woodchipper, and the purchase of a large freezer. He picked up the freezer on November 17. Although the defendant had wanted to pick up the woodchipper on November 18, he was not able to do so until November 20, when he was able to obtain access to a rental truck as a replacement for the new truck, delivery of which had been delayed. The defendant returned the woodchipper and the rental truck on November 21, 1986. He therefore had the woodchipper, with the rental truck as a towing vehicle, overnight.

On the evening of November 20, 1986, and into the early morning of November 21, several witnesses observed a woodchipper being pulled by a rental truck at various locations in the general area of the defendant’s home and, additionally, near the offices of his part-time employer, the town of Southbury. At 6:30 p.m. the woodchipper, being operated by a single individual, was observed near a steel bridge in Newtown. Between 3 a.m. and 4 a.m., the woodchipper was observed at various locations in the vicinity of the same steel bridge, again being operated by a lone individual. At approximately 4 a.m. the defendant, along with the truck and woodchipper, was parked in a Southbury school parking lot. There, a coworker talked to the defendant, who, in response to the coworker’s inquiry regarding the woodchipper, replied that he was cleaning up limbs downed in the November 18 storm. Other evidence, however, indicated that no limbs had been downed during that storm and that there was no other existing need for a woodchipper.

State police officers subsequently searched the area near the steel bridge and discovered a number of items relating to the victim. Their initial search uncovered, among piles of woodchips, an envelope bearing the victim’s name and blue fabric of a type similar to clothing formerly worn by the victim. Upon a more detailed search of areas containing the woodchip debris, the police found pieces of bone and tissue, a human fingernail and crowns to the victim’s teeth. The police also recovered, underwater near the steel bridge, a chain saw that belonged to the defendant. From the chain saw and the separately recovered saw blade they recovered blood, tissue, hair fragments and cotton fibers. Some of these remains partially matched the material discovered at the riverside. Furthermore, the blood, tissue and hair fragments were of categories matching those of the victim.

Thereafter, the defendant offered to different parties various stories regarding his wife’s whereabouts, all of which were demonstrated to be incorrect. In addition to the explanation for the victim’s absence on the morning of November 19 offered as he brought his children to his sister’s house, he initially told several of the victim’s friends that in fact she had gone to Denmark to be with her ill mother. He later began to tell acquaintances that the victim might be visiting her friends overseas. In an interview with the police on December 4,1986, the defendant indicated that he had last seen the victim on November 19, 1986, but that, at the time of the interview, she might be visiting a friend in the Canary Islands. Besides numerous inaccurate and contradictory statements regarding the victim’s whereabouts, the defendant also made several incriminating remarks to acquaintances regarding the police investigation, which the jury could reasonably have found to indicate further a consciousness of guilt. For instance, when advised by his brother-in-law of the state police diving efforts, the defendant replied, “Let them dive. There’s no body. It’s gone.”

Relying on this evidentiary showing, the jury hearing the defendant’s case found him guilty of murder as charged. The defendant’s appeal challenges his conviction on five grounds. He claims that the trial court improperly: (1) denied his motion for acquittal because his conviction, resting primarily on circumstantial evidence, was the result of impermissible inferences that were not supported by proof beyond a reasonable doubt, thereby denying his right to due process; (2) instructed the jury that it might infer specific intent to commit murder from the mere fact of the death of the victim, thus denying his right to due process; (3) refused to instruct the jury on three lesser included homicides not requiring a finding of intent to kill; (4) admitted into evidence out-of-court statements made by the victim to others; and (5) denied him a fair trial because of extensive pretrial publicity implicating, again, his right to due process. We are unpersuaded.

I

The defendant claims that his conviction violated the due process provision of the United States constitution because the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt. We review such a claim in accordance with a well established two part test. We first construe the evidence presented at trial in a manner favorable to sustaining the verdict, and then determine whether the jury could reasonably have found, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Gomez, 225 Conn. 347, 350, 622 A.2d 1014 (1993); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991).

In light of the state’s presentation of extensive circumstantial evidence, the principal issue raised by this claim is whether special procedural rules govern the validity of the jury’s ultimate findings regarding each element of the crime of murder if, in making these findings, the jury presumably relied upon sets of multiple inferences, in other words, inferences derived from previous inferences. The defendant maintains that recourse to multiple inferences potentially leads to speculative ultimate findings. From this premise, he contends that due process requires that a verdict of guilty depending on such inferences cannot be sustained unless each successive inference is itself established beyond a reasonable doubt. We reject this contention.

Due process requires that the state prove each element of an offense beyond a reasonable doubt. State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984). It follows that insufficiency of the evidence to support a jury’s ultimate findings on each of these elements requires acquittal. See State v. Carpenter, 214 Conn. 77, 83-85, 570 A.2d 203 (1990).

Due process does not, however, require that each subordinate conclusion established by or inferred from evidence, or even from other inferences, be proved beyond a reasonable doubt. We have regularly held that a jury’s factual inferences that support a guilty verdict need only be reasonable. State v. Grant, 219 Conn. 596, 604-605, 594 A.2d 459 (1991), and cases therein cited. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred facts. State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990), and cases therein cited.

The defendant maintains that we have not expressly considered the effect of the conjunction of these two rules, the appropriate standard of proof for an inference that is derived from another inference. Although he recognizes that we have regularly applied the “reasonableness” standard as the proper measure for the proof of inferences from circumstantial evidence, and have permitted an inferred fact to be the basis of a further inference, he contends that the accumulation of multiple “reasonable” inferences runs the risk of producing ultimate findings that contain “reasonable doubts.” This argument rests on the assumption that inferential thinking necessarily proceeds in a pyramid of dependent inferences, so that ultimate findings inherently include the possible alternatives that may exist in the underlying inferences. Invoking this assumption, the defendant claims that the “reasonableness” standard is constitutionally unacceptable because of the risk that compounded alternatives, as yet not excluded beyond reasonable doubt, may be cumulated so as to reduce the jury’s ultimate findings to mere speculation. The defendant thus asks us to adopt a new rule requiring each inferred fact to be proven beyond a reasonable doubt before it may be considered a basis for an additional inference.

The defendant’s argument that a special standard of proof is required to guard against attenuated probabilities associated with inferences based on inferences is, however, an argument the basis of which we have previously considered and rejected. More than seventy years ago, we concluded, in Sliwowski v. New York, N.H. & H. R. Co., 94 Conn. 303, 310-11, 108 A. 805 (1920), that “[tjhere is, in fact, no rule of law that forbids the resting of one inference upon facts whose determination is the result of other inferences. . . . It is but a rule of caution; its true function is to guide the court in the exercise of its judgment in determining whether or not evidence offered is too remote . . . or, in making its final decision, in deciding whether the plaintiff has established a reasonable probability.” (Citations omitted.) We have adhered to that position, noting that “[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); State v. Grant, supra, 604-605; see also 1A J. Wigmore, Evidence (4th Ed., Tillers Rev. 1983) § 37.6, pp. 1060-62, and § 41, p. 1112 n.3.

The defendant asks us, in effect, to reconsider these precedents as inconsistent with State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985), which requires a jury to be charged that facts, whether basic or inferred, that are essential to proof of an element of a crime must be proved beyond a reasonable doubt. As we explained, however, in State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988): “Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element . . . such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt.” (Emphasis added.) As restated in State v. McDonough, supra, the rule of State v. Rodgers, supra, does not uniformly require inferences drawn from circumstantial evidence to be proven beyond a reasonable doubt. The defendant’s position was impliedly rejected by us in State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992), in which we held that ‘ ‘[wjhile the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.”

We recognize that courts in other jurisdictions have applied a higher standard of proof for inferences based on inferences. We are nonetheless persuaded that our rule comports with the basic understanding that it is the jury’s function to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984). We therefore reject the defendant’s claim that the evidence of his guilt was insufficient because it was measured by an impermissible constitutional standard.

II

The defendant claims that the trial court’s instruction regarding intent was improper because it allowed the jury to infer intent to kill from the fact of the victim’s death alone. The trial court told the jury: “You may, but you need not, infer that a person intends that which is the natural, probable consequences of the act in question, that if he kills a person he intended to kill that person. You may draw that inference.” (Emphasis added.) The defendant maintains that this instruction diminished the state’s burden of proof and violated his right to due process, and thus requires a new trial, because intent may be inferred only from actions and not from results. Although this instruction may well have been improper, we are persuaded that any error was harmless beyond a reasonable doubt in the circumstances of this case.

We review de novo a defendant’s challenge to an instruction regarding an essential element of the crime, because due process requires the state to prove each essential element beyond a reasonable doubt. State v. Arroyo, 180 Conn. 171, 173-74, 429 A.2d 457 (1980). In order to establish murder, the state must prove intent beyond a reasonable doubt. State v. Carpenter, supra, 82. Intent is typically established by circumstantial evidence. State v. Martin, 195 Conn. 166, 170, 487 A.2d 177 (1985). Such circumstantial evidence may include inferences drawn from the conduct of the accused. The knowing and volitional conduct of a defendant is probative of his mental state insofar as he may be found to have intended the ordinary and natural consequences of his acts. It is therefore proper for the trial court to instruct the jury that it may, but need not, determine the defendant’s intent through reasonable inferences from the defendant’s actions. See State v. Palmer, 206 Conn. 40, 47-49, 536 A.2d 936 (1988).

An instruction on intent that, instead of focusing on inferences to be drawn from the defendant’s conduct permits inferences to be drawn from the result of that conduct is problematic because intent cannot be inferred directly from results. The fact that a victim was struck by a bullet would not, in itself, support the inference that the perpetrator intended to kill the victim, because the perpetrator might have acted with a variety of mental states. See footnotes 1 and 7. In this case, similarly, the jury could not properly have inferred an intent to commit murder from the mere fact of the death of the victim, even from her death at the hands of the defendant.

We need not, however, resolve the question whether the court’s instruction violated due process by relieving the state of its burden to prove intent, because even if such a charge is improper in isolation, it was harmless beyond a reasonable doubt in the circumstances of this case. A new trial is not required if “[t]he attacked sentence of the charge, when considered within the context of the court’s charge on murder, its prefatory instructions on inferences and circumstantial evidence, and the charge as a whole, could not be reasonably construed to require . . . [an improper verdict].” State v. Arroyo, supra, 180. Immediately preceding the challenged instruction, the trial court declared that “I will shortly discuss with you, the particular crime charged, [and] you will note that it will be the obligation of the state to prove that the defendant acted with a particular intent, the intent to cause the death of another person, the intent to cause the death of Helle Crafts during the commission of the alleged crime. . . . [The statutory section defining murder requires] that the state . . . prove beyond a reasonable doubt with regard to the death of Helle Crafts first that Richard Crafts caused the death of Helle Crafts. That is Helle Crafts died as a result of the actions of the defendant Richard Crafts. And secondly, that Richard Crafts caused the death of Helle Crafts with the specific intent to cause her death. . . . Even if you were to find that Helle Crafts is dead and that the defendant killed her, the mere fact that the defendant killed Helle Crafts does not alone establish his guilt of murder. There can be no murder unless the defendant intended to cause a person’s death.” In light of the charge as a whole, we conclude that no reasonable juror would have been led to believe that a finding of intent could be premised on the basis of the victim’s death alone.

Ill

The defendant claims that the trial court improperly refused his request to instruct the jury on the lesser included offenses of manslaughter in the first and second degree and criminally negligent homicide. Each of these crimes may, by statute, constitute a lesser included offense of murder. General Statutes § 53a-45 (c); State v. Rodriguez, 180 Conn. 382, 403-404, 429 A.2d 919 (1980). The only difference among these degrees of homicide is the requisite intent. See footnotes 1 and 7. Relying on the fact that the state’s evidence of intent was entirely circumstantial, the defendant argues that he has satisfied the requirements for a charge on these lesser included offenses. We disagree.

Although there is no constitutional right to have a jury consider possible lesser included offenses, Connecticut law entitles a defendant to a lesser included offense charge if his request satisfies the four requirements set forth in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). See State v. Herring, 210 Conn. 78, 104-105, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). The final two criteria of Whistnant require that “there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and . . . [that] the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra.

In State v. Rasmussen, 225 Conn. 55, 65-73, 621 A.2d 728 (1993), we recently reviewed the standard of evidence required to satisfy these aspects of the Whistnant test. We there held that “there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense.” (Emphasis added.) Id., 67-68. We reviewed our previous cases, such as State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982), on which the defendant relies, and expressly rejected the proposition that a defendant is entitled to instructions on lesser included charges based on merely theoretical or possible scenarios. State v. Rasmussen, supra, 66-67.

In light of Rasmussen, we conclude that the trial court correctly decided that there was insufficient evidence to justify the defendant’s request for instructions on any of the lesser included offenses of murder. The evidence to which the defendant points in support of his contention consists of the victim’s reactions and the couples’ arguments regarding the defendant’s extramarital affairs, supposedly suggesting the hypothesis that the two had a confrontation on November 18,1986, during which the defendant, unintentionally, killed the victim. The defendant insists that the fact that he had not yet obtained the woodchipper, which the state claims was a part of the defendant’s arranged plan, until November 20,1986, supports this contention. That evidence, however, cannot be viewed in isolation. It was inextricably linked to the other evidence that the defendant, prior to the victim’s return home on November 18, had arranged for the rental of the woodchipper as part of his prearranged plan to kill the victim and conceal her remains. Thus, the evidence of a sudden confrontation on November 18 is too speculative to put the issue of intent sufficiently in dispute. The defendant otherwise has pointed to no evidence of a lesser degree of homicide than that with which he was charged that would be sufficient to meet the standards articulated by State v. Rasmussen, supra.

IV

The defendant claims that the trial court incorrectly allowed the state to introduce into evidence certain statements made by the victim tending to show the victim’s belief that, if something should “happen” to her, it would not be the result of her own actions. He claims that the statements were inadmissible because they were hearsay, irrelevant and prejudicial. We find no reason to overturn the trial court’s rulings.

Over the defendant’s objections, the state presented the testimony of five witnesses who offered statements made by the victim during the fall of 1986. Diane Andersen, the victim’s attorney handling the divorce proceeding, testified that the victim had told her that “if something should happen to her I should not assume that it was an accident.” Lee Ficheroulle, a coworker and friend, testified that the victim had told her that “her husband would find her wherever she went . . . [and that] he would have an alibi and a well thought out plan”; Ficheroulle’s husband testified to the same effect. Lena Johansson-Long, another coworker, testified that the victim had told her that “if anything ever happens to me, please don’t accept it as an accident no matter what he says.” Finally, coworker Rita Buonanno testified that the victim had told her that “if anything ever happened to me, if you ever hear that I’ve been in an accident or if I’m missing, don’t believe it and do something about it.”

Our review of claims of alleged error in evidentiary rulings is limited. The issue before us is whether the trial court’s admission of this testimony was an abuse of its discretion. State v. Sierra, 213 Conn. 422, 434-35, 568 A.2d 448 (1990).

The defendant initially claims that these out-of-court statements were hearsay. An out-of-court statement is hearsay, however, only if it is offered to prove the truth of the matter asserted in the statement. A statement that is offered to establish circumstantially the state of mind of the declarant is not offered for the truth of the statement. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.3.2. As the trial court correctly observed, because the state offered the evidence to establish only the victim’s state of mind, the statements were not hearsay.

The defendant next claims that these statements were irrelevant. If offered merely as circumstantial evidence of the victim’s state of mind, the defendant maintains that they should have been excluded because, in a murder prosecution, the relevant state of mind is that of the defendant and not that of the victim. State v. Duntz, 223 Conn. 207, 233, 613 A.2d 224 (1992).

Whether the victim’s state of mind is relevant depends, however, on the nature of the issues at trial. A defendant’s articulated or implied theory of defense may make the victim’s state of mind material to the determination of the defendant’s guilt or innocence. In State v. Blades, 225 Conn. 609, 633, 626 A.2d 273 (1993), the defendant, invoking the defense of extreme emotional disturbance to a charge of murder; General Statutes § 53a-54a (a); asserted that his conduct resulted from provocation by the victim. Because the defendant had thereby made the victim’s state of mind an issue in the case, we held that evidence was admissible to show whether it was likely that the victim had provoked the defendant.

In the present case, similarly, the victim’s state of mind became relevant when the defendant questioned whether the victim was in fact dead, or was merely missing or in hiding. Although not overtly adopted as a “theory of defense” at trial and although disavowed on appeal, the defendant’s assertion that he was not guilty because the “victim” had voluntarily left the country or had otherwise disappeared without leaving a trace appears repeatedly in the trial record. Additionally, the defendant at trial challenged not only the state’s assertion that the human fragments in evidence at trial proved that a person had died, but also its claim that the human fragments were those of an identifiable victim, his wife. This evidence of the victim’s state of mind, therefore, was probative of whether she was likely to leave. From this evidence the jury could have concluded that, despite the victim’s concern for her safety, she intended to remain with her family.

We conclude, accordingly, that our holding in Blades supports the trial court’s rulings on the relevance of the victim’s state of mind in this case. The trial court acted within its discretion in determining that the victim’s statements would allow the jury to infer that the victim’s absence was not voluntary and that this evidence was relevant in light of all the circumstances.

The defendant’s final objection to the admission of the statements is that the testimony should have been excluded because it was more prejudicial than probative. The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). The trial court, if called upon to rule on a question of prejudice, must determine whether the adverse impact of the challenged evidence outweighs its probative value. State v. Greene, 209 Conn. 458, 478, 551 A.2d 1231 (1988).

The defendant claims that the testimony regarding the five statements by the victim referring to the defendant was unduly prejudicial because the jury may have focused on the alleged accusatory aspect of the statements and, despite the court’s curative instructions, may have impermissibly considered them as probative of the defendant’s conduct rather than as evidentiary of the victim’s state of mind. We recognize the risk of prejudice in allowing surrogates to speak for the victim “pointing back from the grave.” See State v. Duntz, supra, 232-33; see also Shepard v. United States, 290 U.S. 96, 104, 54 S. Ct. 22, 78 L. Ed. 196 (1933). We conclude, nonetheless, that the defendant has not established that the trial court, which carefully evaluated the statements, noted the absence of any direct accusations of the defendant and determined that in this case the statements were not unduly prejudicial, abused its discretion by admitting them into evidence.

V

The defendant’s final claim is that the trial court was required to dismiss the charges against him because excessive pretrial publicity deprived him of the right to a fair trial. The record demonstrates that his arrest and all proceedings, including the entire first trial that ended in a mistrial, generated an unusually large amount of publicity both in and out of the state. To ameliorate the impact of this publicity, although the murder was alleged to have occurred within the judicial district of Danbury, the defendant’s retrial was moved to the judicial district of Stamford-Norwalk. The defendant moved for dismissal on the ground of prejudicial publicity prior to the second trial, and again at the conclusion of the trial. On appeal, the defendant reasserts his argument that this publicity was so pervasive that prejudice should be presumed because it was impossible to empanel any impartial jury to hear his case. In the alternative, he argues that at least some of the jurors were demonstrably prejudiced by the publicity. We disagree with both of these claims.

To place our analysis of the defendant’s claim regarding the extensive publicity in context, we must recognize the first amendment right of a free press to observe and publicize criminal trials. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982). It follows naturally that the public will hear and read reports of such proceedings. Dissemination of such information and the accompanying publicity itself, therefore, is not constitutionally objectionable. Extensive publicity implicates the defendant’s due process rights only if it rises to a level sufficient to preclude a fair trial for the accused.

The defendant claims that, in this case, the publicity concerning the proceedings against him was so pervasive that he could not empanel an impartial jury. Events across this country remind us of our judicial responsibility to assure that every person accused of criminal conduct receives a fair trial. See, e.g., Lozano v. State, 584 So. 2d 19 (Fla. App. 1991), review denied, 595 So. 2d 558 (Fla. 1992). Although it is the defendant’s burden to show the existence of either inherently prejudicial publicity or actual jury prejudice, appellate tribunals have the duty to make an independent evaluation of the circumstances giving rise to such a claim. State v. Pelletier, 209 Conn. 564, 568, 552 A.2d 805 (1989); State v. Miller, 202 Conn. 463, 477, 522 A.2d 249 (1987); State v. Piskorski, 177 Conn. 677, 686, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

Even without a showing of actual jury prejudice, a conviction must be overturned “in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable.” (Internal quotation marks omitted.) State v. Piskorski, supra, 686. A defendant cannot rely, however, on the mere fact of extensive pretrial news coverage to establish the existence of inherently prejudicial publicity. Prominence does not, in itself, prove prejudice. State v. Pelletier, supra, 570. The defendant must demonstrate that the publicity was so inflammatory or inaccurate that it created a trial atmosphere “utterly corrupted by press coverage.” Murphy v. Florida, 421 U.S. 794, 798, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); see State v. Townsend, 211 Conn. 215, 226-27, 558 A.2d 669 (1989).

Evidence of the publicity of which the defendant complains in this case does not prove inherent prejudice. Most of the news coverage consisted of factual descriptions of information gathered by the police. In particular, virtually all stories highlighted the state’s theory of the case—that the victim was intentionally killed and later her body was disposed of through a woodchipper—and the state’s arrest of the defendant. The case was occasionally referred to in the press as the “wood-chipper murder case.” Following the first trial, the fact that the original jury allegedly deadlocked eleven to one for conviction was also widely reported, as was the state’s attorney’s expressed disappointment with the mistrial.

Although the press at times drew dramatic conclusions on the basis of the information, and at times engaged in speculation, none of the coverage was so inflammatory as to prevent the empaneling of a jury dedicated to objectivity and to following the trial court’s instructions. See Beck v. Washington, 369 U.S. 541, 555-57, 82 S. Ct. 955, 8 L. Ed. 2d 98, reh. denied, 370 U.S. 965, 82 S. Ct. 1575, 8 L. Ed. 2d 834 (1962). Furthermore, the passage of an extended period of time from the defendant’s arrest in January, 1987, to the first trial eighteen months later and finally to the second trial in 1989 attenuated the prejudicial effect that the publicity might otherwise have had. See State v. Townsend, supra, 227. Finally, the voir dire in this case reveals that, although many prospective jurors were familiar with the fact of the defendant’s arrest and of his first trial, most had only a vague recollection of any particular accounts of the crime. See State v. Pelletier, supra, 571. We conclude, therefore, that the publicity in this case did not create a trial atmosphere so "utterly corrupted by press coverage”; id., 570; as to deny the defendant’s due process right to an impartial jury.

In the alternative, the defendant maintains that his conviction should be set aside because of actual prejudice in the composition of the jury by which he was tried. This claim has two parts. The defendant first claims that he was forced to exhaust his peremptory challenges with respect to prejudiced members of the venire whom the court should have excused for cause and thus he was unable to exercise peremptory challenges with regard to some of the jurors who actually heard the case. His second claim is that the jurors who actually determined his guilt were largely predisposed in favor of the prosecution.

The defendant cannot prevail in his complaint concerning his peremptory challenges. The trial court has discretion to determine the competency of a juror to serve. General Statutes § 54-82f. On appeal, therefore, we may reverse the trial court’s denial of a request to excuse a juror for cause only upon a showing of abuse of discretion resulting in prejudice to one of the parties. See State v. Pelletier, supra, 572-73. The defendant unsuccessfully challenged twelve venirepersons for cause and used only eight of his twenty-five peremptory challenges to excuse these jurors, leaving four of the twelve for the jury. Our review of the voir dire indicates that the trial court acted well within its discretion by considering and denying each of the defendant’s challenges. State v. Pelletier, supra, 570-71.

We are equally persuaded that the defendant has not proved actual prejudice in his petit jury. We have reviewed the voir dire of the sixteen venirepersons who together comprised the jury and alternates, only four of whom the defendant had challenged for cause. In State v. Pelletier, supra, we observed that, subject to a full exploration of the “level and effects of each prospective juror’s exposure to the publicity concerning the defendant . . . [q]ualified jurors need not ... be totally ignorant of the facts and issues involved.” (Citations omitted; internal quotation marks omitted.) Id., 570-71; Murphy v. Florida, supra, 799-800. Furthermore, we note that the trial court took unusually thorough measures to ensure the jury’s continued impartiality through the use of extensive daily admonishments counseling the avoidance of any publicity. We, therefore, reject the defendant’s claim that he was deprived of a fair trial because the jury manifested actual prejudice against him.

The judgment is affirmed.

In this opinion Callahan, Borden and Norcott, Js., concurred.

Berdon, J.,

dissenting. Although this case raises several problematic issues, at the very least, I would reverse on the ground that the trial court abused its discretion by admitting into evidence the hearsay statements of the alleged victim, Helle Crafts. Helle Crafts’ lawyer and friends were permitted to testify, over the defendant’s objection, that Helle had stated that if anything happened to her they should not believe it was an accident and that the defendant would have a well planned alibi. The majority justifies the admission of these statements on the ground that they were not offered to prove the truth of the matter asserted, but merely to show Helle Crafts’s state of mind. But how is her state of mind relevant in this case? The majority concludes that her state of mind is relevant to disprove the “theory” of the defendant’s defense—that is, Helle Crafts is still alive.

To me, the victim’s fear of the defendant, if relevant at all, would tend to support the opposite conclusion— that she ran off out of fear. The logic of the state’s argument, that Helle’s fear and apprehension show that she would not have left voluntarily, eludes me. How could one logically conclude that, because she feared the defendant and was apprehensive about him, she was dead. In State v. Duntz, 223 Conn. 207, 613 A.2d 224 (1992), dealing with the precise issue of whether the deceased’s hearsay statements of fear may be admitted into evidence, we held the admission of such evidence to be reversible error. “[T]he victim’s alleged fear of the defendant was not relevant, and therefore . . . the testimony was not admissible under the state of mind exception to the hearsay rule. Evidence is relevant only if it has some tendency ‘to establish the existence of a material fact.’ ” Id., 233.

Furthermore, the claim that Helle Crafts was still alive was not the “theory of defense” in the defendant’s second trial. The defendant did not testify at the second trial; rather, the state introduced the defendant’s testimony from the first trial, thereby raising this issue. Similarly, defense counsel did not argue this theory to the jury in closing argument. The majority merely passes this off by stating that although it was “not overtly adopted,” it was in the record. It was in the record, but only because the state put it there.

Finally, although the statements purportedly were admitted to show the victim’s state of mind, ultimately the state used the victim’s statement to prove the truth of a crucial element. The state referred to Helle Crafts’ hearsay statements in its final argument, in conjunction with the issue of intent, as follows: “And so all these last words of Helle Crafts are with you to help determine whether or not in this particular case Richard Crafts possessed the conscious objective to cause a result, that is the death of Helle Crafts. Those are words we’ll never forget.”

Nevertheless, the prejudicial effect of these statements far outweighed any minuscule evidential value. These statements were dynamite. We recognized this in State v. Duntz, supra, when we stated that such hearsay statements of subjective fear had “the tremendous potential ... to prejudice the defendant unfairly.” Id., 233. “[W]hile irrelevant evidence is never admissible, relevant evidence may be rejected if its probative value is outweighed by such factors as time, confusion, or prejudice.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.1.3, p. 227. Generally, the admission of such evidence is within the sound discretion of the trial court; State v. Marquez, 160 Conn. 47, 51-52, 273 A.2d 689 (1970); but, in cases such as this, we have found that the trial court has abused that discretion. State v. Vennard, 159 Conn. 385, 392, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971).

Nor can a limiting instruction from the court help in a case such as this. “To suggest that an instruction would neutralize the prejudicial impact is to defy reality. Not even appellate judges can be so naive as really to believe that all twelve jurors succeeded in performing what Judge L. Hand aptly called a mental gymnastic which is beyond, not only their powers, but anybody’s else. Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932). United States v. Bozza, 365 F.2d 206, 215 (2d Cir. 1966).” (Internal quotation marks omitted.) State v. Couture, 194 Conn. 530, 563, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d (1985).

To admit into evidence these hearsay statements, which tend to prove the crime for which the defendant was charged, violates the defendant’s constitutional rights “to be confronted by the witnesses against him” and to due process of law. Conn. Const., art. I, § 8; U.S. Const., amends. VI and XIV. The majority allows the jury to hear Helle Crafts’ voice, notwithstanding the defendant’s inability to confront or cross-examine her statements.

Accordingly, I respectfully dissent.

       General Statutes § 53a-54a provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       The defendant owned an older freezer that was in service at the home until mid-November, 1986. Although the older freezer was never located during the subsequent police investigation—the defendant claimed that the new freezer was a replacement because the older one did not work properly and he disposed of it at a dump site—the jury could reasonably have inferred that the older freezer was used to store the victim’s body until the defendant had access to the woodchipper. They could also have inferred that the older freezer was then disposed of so that the police would not find any forensic evidence with which to connect the defendant to the crime.

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

      Although the defendant also invokes the due process provision contained in article first, § 8, of the Connecticut constitution, he has provided no separate analysis of his claim under the state constitution. For that reason, we decline to address it. See State v. Reddick, 224 Conn. 445, 463 n.22, 619 A.2d 453 (1993); State v. Cerilli, 222 Conn. 556, 572 n.11, 610 A.2d 1130 (1992).

       Professor Wigmore’s discussion of the validity of inferences that rely upon other inferences methodically explores the argument offered by the defendant here, that “pyramiding” inferences necessarily creates an accumulation of “reasonable doubts.” Wigmore rejects the argument for two fundamental reasons. First, it is not necessarily accurate to describe inferential reasoning as a linear process of pyramiding conclusions. More accurately, inferential reasoning relies on the entirety of the evidence to support initial and then to reinforce subsequent inferences such that the ultimate conclusions are found beyond a reasonable doubt. Second, even if such an explanation of inferential reasoning is accurate, its application to the factfinding process of our jury system would be extremely difficult because, in order to function properly, in effect, it relies on quasimathematical calculations. Furthermore, such a process would be virtually unverifiable upon judicial review. 1A J. Wigmore, Evidence (4th Ed., Tillers Rev. 1983) § 37.6, pp. 1060-62, and § 41, p. 1112 n.3.

       The cases decided in other jurisdictions to which the defendant points as support for his proposition are not persuasive because each relies on the reasoning that we here reject as unsound. See New York Life Ins. Co. v. McNeely, 52 Ariz. 181, 192-99, 79 P.2d 948 (1938); Savarese v. State Farm Mutual Automobile Ins. Co., 150 Cal. App. 2d 518, 520, 310 P.2d 142 (1957); People v. Clay, 95 Mich. App. 152, 159, 289 N.W.2d 888 (1980); State v. Lasley, 583 S.W.2d 511, 516-17 (Mo. 1979).

       See footnote 3.

       General Statutes § 53a-55 provides in relevant part: “(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 (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”
      General Statutes § 53a-56 provides in relevant part: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”
      General Statutes § 53a-58 provides in relevant part: “(a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person . . . .”

       We recognize that courts in other jurisdictions have limited admission of evidence of a victim’s state of mind to certain categories of murder cases. See, e.g., State v. Langley, 354 N.W.2d 389, 398-99 (Minn. 1984) (limiting category of murder cases to which victim’s state of mind is relevant to those involving claims of suicide, accident or self-defense); State v. Magruder, 234 Mont. 492, 765 P.2d 716, 717-19 (1988) (same); but see State v. Silveira, 198 Conn. 454, 462, 503 A.2d 599 (1986) (noting distinction between affirmative defenses recognized by law, such as extreme emotional disturbance, and mere theories of defense, such as claim of innocence).

       The defendant’s testimony, presented in the first trial but properly admitted in the second, for example, indicated that the victim would occasionally leave for longer than usual trips without informing him. The defendant also told the police in an interview on December 4,1986, that he thought that his wife had a friend in the Canary Islands, and that she might be there. The defendant cross-examined the victim’s mother by inquiring whether “the purpose of [the victim’s children being christened in Denmark was] that . . . the children would be entitled to Danish citizenship by virtue of their christening?” In addition, during the cross-examination of Susan Lausten, a neighbor, the defendant inquired whether the victim had made extended trips of up to one week in length, had had friends in several other countries, and had made at least one trip to Tokyo, Japan. A similar inquiry was directed at Pierre Ficheroulle, an acquaintance, regarding a conversation that he had had with the victim, encouraging her to leave the defendant and possibly to go into hiding.

       Contrary to the suggestion of the dissenting opinion, the victim’s state of mind was admitted to show not her fear of the defendant, but her state of mind not to leave.

       Commenting on the victim’s statement, “Dr. Shepard has poisoned me,” Justice Cardozo opined in Shepard v. United States, 290 U.S. 96, 104, 54 S. Ct. 22, 78 L. Ed. 196 (1933), that “[i]t will not do to say that the jury might accept the declarations for any light that they cast upon the exisfence of a vital urge, and reject them to the extent that they charged the death to some one else. Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverberating clang of those accusatory words would drown all weaker sounds.”

       We do not intend to suggest that the existence of a direct accusation is so inherently prejudicial as to be per se harmful. As in all determinations of evidentiary objections based on prejudice, the well established rule that the trial court must assess the probative value of the evidence in light of its potentially prejudicial effect also governs proffers even of a victim’s direct accusations that are otherwise properly admissible.

       The defendant’s first trial was held in the judicial district of New London.

       See footnote 3.

       The defendant submitted copies of the various reports and stories in support of his motion to the trial court. Articles appeared in the New York Times, Boston Globe, Kansas City Star, People Magazine and at least one Danish newspaper, as well as the Danbury News Times, Newtown Bee, Bridgeport Post, Stamford Advocate, Norwalk Hour and Connecticut Magazine. Television coverage was reported on all the Connecticut stations, several New York stations, and, nationally, on the television program, “A Current Affair.”

       The trial court, in responding to the defendant’s motion to dismiss following the second trial and conviction, summarized as follows: “The defendant claims that because the court did not automatically exclude for cause persons with ‘a significant degree of familiarity’ with the case . . . the method of jury selection was unfair because the defendant was forced to use peremptory challenges to exclude such persons from the jury, thereby limiting his ability to exercise those challenges for all of the traditional reasons that such challenges are available.
      “As to the exercise of peremptory challenges, when the presumptive jury—the original twelve jurors—had been selected, the defense had exercised only 17 of its 25 peremptory challenges.
      “When the third of the four alternate jurors had been selected, the defense had utilized only 20 of its 25 peremptory challenges. To exhaust its allotted peremptory challenges, the defense had to use five peremptory challenges to select the fourth and final alternate. Actually, six peremptory challenges, because the court granted an additional peremptory challenge to each of the parties, which the defense promptly exercised.
      “Some of the presumptive jurors selected were not challenged for cause by the defense even though they expressed an initial opinion of the defendant’s guilt or an assumption that Helle Crafts was dead or knew of the previous mistrial and the purported jury vote. . . . I point this out only to support my conclusion that the defendant was not forced to exercise his challenges in order to prevent jurors who had formed opinions about the guilt of the defendant based on widespread publicity and preconceived notions from becoming members of the jury, but rather intentionally was attempting to secure a jury that was acceptable to him from his point of view. A perfectly proper use of peremptory challenges. It is not, however, the court’s duty to grant challenges for cause just to assist in the selection of a particular jury.”

       The majority claims in footnote 10 that the trial court admitted Helle Crafts’ statements for the limited purpose of demonstrating her state of mind not to leave and not for the purpose of showing that she was afraid of the defendant. The limiting instructions, however, never explained to the jury what the legalistic term “state of mind” means, nor did they expressly indicate that “state of mind” was limited to the fact that Helle Crafts would not have left the country voluntarily. The following are examples of the court’s instructions: “I am allowing [Helle’s statements] for a limited purpose only . . . so the jury will have available . . . what might be the state of mind of Mrs. Crafts as it existed on October 7th . . . “I’m not allowing this testimony in . . . to establish that . . . [it] is true. What I am allowing it in for, is to establish the state of mind of Helle Crafts . . . “[T]hat statement of Helle Crafts’can only be used to reflect her state of mind. Her opinion or her attitude. And it is not being offered for the purpose of proving the truth of the statement”; “[The statements are being admitted] merely for the purpose of establishing her state of mind, what was going through her mind at the time she made the statement. ” (Emphasis added.)
      Under these circumstances, it is only reasonable to believe that the jury inferred from this testimony that Helle Crafts was fearful of the defendant. Certainly, the jury would be perfectly reasonable in believing that fear was a central part of Helle’s “opinion or her attitude” and “what was going through her mind at the time she made the statement.” In fact, it is inconceivable that Helle Crafts would have made such statements if she were not afraid of the defendant. Given that fear is the necessary predicate to the existence of such statements, the majority’s suggestion that the statements were admitted only to show Helle’s “state of mind not to leave” and its belief that the jury was capable of extracting and disregarding the overwhelming element of fear from these statements is simply incredible. But even if the majority’s argument is accepted at face value, the statements are not relevant to show that Helle would not have left the house voluntarily. As noted in my dissent, the statements, if relevant at all, would support the inference that she did leave voluntarily.

       The majority relies on State v. Blades, 225 Conn. 609, 635, 626 A.2d 273 (1993), but that case is inapposite. In Blades, the victim’s fear of the defendant was relevant to the defense of extreme emotional disturbance to prove that it was unlikely that she was the aggressor. “The victim’s fear of the defendant was relevant to challenge the defendant’s version of the facts by establishing that it was unlikely that the victim, having expressed a grave fear of the defendant in the past, would have behaved aggressively toward the defendant to a point where he felt threatened.” Id.


source: Caselaw Access Project

author:
Peters, C. J.
      Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Catherine Ball et al.
    (14646)
    Peters, C. J., Callahan, Berdon, Norcott and Santaniello, Js.
    Argued April 1
    decision released July 6, 1993

      Kathleen Eldergill, with whom, on the brief, was W. David Zitzkat, for the appellants (defendants).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Jack W. Fischer, assistant state’s attorney, and Andrew Wittstein, supervisory assistant state’s attorney, for the appellee (state).
   Peters, C. J.

This case is a challenge to the constitutionality of the Connecticut Hunter Harassment Act. General Statutes § SSa-lSSa. In response to charges of having violated § 53a-183a, the defendants, Catherine Ball, Arlene Corey, William Mannetti and Derek Oatis, filed motions to dismiss, alleging that the statute is unconstitutional, both facially and as applied to them, under the first and fourteenth amendments to the United States constitution. The trial court denied the motions to dismiss. Reserving their rights to appeal their constitutional contentions, the defendants entered conditional pleas of nolo contendere pursuant to General Statutes § 54-94a and Practice Book § 4003. Each of the defendants was found guilty as charged and fined $100. The defendants thereafter filed a joint appeal from the judgments of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the denial of the motions to dismiss and remand the case to the trial court for a further evidentiary hearing.

At the hearings on the defendants’ pleas of nolo contendere, before Gill, J., the state’s attorney presented the following facts. On October 19,1991, at 6:25 a.m., Robert Dubois, a bow hunter with a valid state archery license, was standing at the entrance to the Tunxis State Forest Wildlife Management Area in Hartland, waiting to enter the park. The area is state owned property subject to regulation by the department of environmental protection. On the day in question, a person with a valid archery license could legally engage in archery hunting in the state forest after 7 a.m.

The defendants approached Dubois and told him that they were antihunting activists and that they would follow him into the park. A few minutes later, conservation officer McNamara arrived at the scene. Dubois complained to McNamara that the defendants were planning to harass him. McNamara warned the defendants that, if they interfered with Dubois’ hunting, they would be subject to arrest. Dubois told the defendants that he planned to hunt deer from an old apple orchard and asked that he be left alone.

At about 7 a.m., Dubois entered the orchard, took a stand under a tree, and notched an arrow into his bow. The defendants formed a semicircle facing Dubois and tried to dissuade him from hunting. Dubois told them that they were interfering with his hunting and asked them to get out of the line of fire. When the defendants did not move, Dubois asked McNamara to come to his assistance. McNamara explained to the defendants that their interference with Dubois’ hunting was illegal and asked them to leave. After consulting among themselves, the defendants decided to be arrested rather than to comply with the request to leave the area. McNamara then arrested the defendants.

In their motions to dismiss in the trial court, the defendants challenged the constitutionality of § 53a-183a both facially and as applied to the facts of this case. The trial court, Dranginis, J., ruled only on their contention that the statute facially violates their rights to free speech. The defendants’ subsequent pleas of nolo contendere precluded further pursuit of their alternate claim that the statute had been unconstitutionally applied in the factual circumstances of their cases.

The trial court upheld the constitutionality of § 53a-183a. In two preliminary respects, the court agreed with the defendants. Accepting the argument that a challenge premised on facial unconstitutionality does not require a factual showing, the court granted the defendants’ motions in limine to preclude the state from making an evidentiary showing concerning the nature and extent of the state’s interest in preventing the harassment of hunters and the circumstances of the defendants’ alleged misconduct. The court also agreed with the defendants that the present statute, like a predecessor statute that had previously been held to be facially unconstitutional; Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988), cert. denied, 490 U.S. 1099, 109 S. Ct. 2450, 104 L. Ed. 2d 1005 (1989); implicates the communicative aspect of the conduct it proscribes and thus falls within the constraints of the first amendment’s protection of free speech. The court concluded, nevertheless, that the statute meets the substantive requirements for the constitutional validity of a statute that implicates first amendment rights. The court agreed with the state that the statute is content-neutral and that its restrictions are narrowly tailored to serve a significant governmental interest. The court then rejected the defendants’ claim of vagueness and overbreadth, in part by narrowly construing some of the provisions contained in the statute.

In their appeal, the defendants reiterate the contention, on which they prevailed in the trial court, that § 53a-183a implicates first amendment rights. They also argue, contrary to the conclusion of the trial court, that the statute is invalid on any one of the following theories: (1) it enacts a content-based constraint on free speech; (2) even if it is content-neutral, it fails to meet the constitutional requirements for a statute that regulates expressive conduct in a traditional public forum insofar as it has not been narrowly tailored to serve a compelling state interest; or (3) even if it is content-neutral and does not regulate protected activity in a traditional public forum, its provisions are (a) facially overbroad or (b) unconstitutionally vague.

The state disputes each of the defendants’ contentions. The state maintains that § 53a-183a is directed only at conduct and, therefore, that it does not implicate first amendment rights at all. Even if the act is held to regulate some aspects of expressive conduct, however, the state argues that the statute is content-neutral, protects an important state interest, and is narrowly tailored. The state further maintains that any unresolved question about the nature of the state’s interest in regulating interference with hunting requires a remand for the evidentiary showing that the trial court improperly precluded by granting the defendants’ motions in limine.

I

An essential predicate of the defendants’ first amendment challenge to § 53a-183a is that the statute implicates free speech. The first issue before us, therefore, is whether the trial court correctly ruled that the harassment and interference with hunting proscribed by the statute encompasses communicative as well as noncommunicative conduct. We agree with the trial court.

The Supreme Court of the United States “has applied First Amendment scrutiny to a statute regulating conduct which has the incidental effect of burdening the expression of a particular political opinion.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 702, 106 S. Ct. 3172, 92 L. Ed. 2d 568 (1986); see Texas v. Johnson, 491 U.S. 397, 406-407, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 297-98, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984); United States v. O’Brien, 391 U.S. 367, 376-77, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). We have applied such scrutiny to a statute that “could, if drafted ambiguously, impinge upon rights of expression protected by the first amendment . . . .” State v. Cavallo, 200 Conn. 664, 671, 513 A.2d 646 (1986). For first amendment purposes, facial constitutional scrutiny of a criminal statute is warranted if the statute makes unlawful “a substantial amount of constitutionally protected conduct,” even if other parts of the statute may have a legitimate application. (Internal quotation marks omitted.) Houston v. Hill, 482 U.S. 451, 458-59, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987); State v. Pickering, 180 Conn. 54, 57 n.3, 428 A.2d 322 (1980).

Without expressly distinguishing these precedents, the state maintains that the conduct prohibited by § 53a-183a does not implicate the first amendment at all. The state contends that interference with another person’s lawful conduct, particularly when such interference may be difficult to avoid, falls entirely outside of the ambit of free speech analysis. The state principally relies, for this argument, on cases in which the United States Supreme Court has upheld governmental prohibition of conduct such as soliciting at airports; International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. , 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992); picketing before a specific residence; Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988); congregating near an embassy; Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988); and camping overnight in a public park. Clark v. Community for Creative Non-Violence, supra.

These cases, however, do not support the state’s argument. Although the United States Supreme Court ultimately concluded in each case that the governmental regulation did not violate the first amendment, the court did not bypass first amendment considerations in arriving at these results. “[I]t is now settled that constitutionally protected forms of communication include parades, dances, artistic expression, picketing, wearing arm bands, burning flags and crosses, commercial advertising, charitable solicitation, rock music, some libelous false statements, and perhaps even sleeping in a public park.” J. Stevens, “The Freedom of Speech,” 102 Yale L.J. 1293, 1298 (1993). The governing federal case law provides no authority for a per se exclusion of expressive conduct, even that which interferes with another’s lawful conduct, from the scrutiny required by the first amendment.

For present purposes, it is sufficient to note that the first amendment threshold is crossed by subsection (b) (1) of § 53a-183a, which criminalizes conduct intended to disturb wildlife while someone is lawfully engaged in hunting, because such interference may be verbal as well as physical. See Dorman v. Satti, supra, 436-37. We conclude, therefore, that § 53a-183a implicates the first amendment.

II

The manner in which constitutional scrutiny is applied to a statute regulating expressive conduct on public property depends, in the first instance, on whether the statute’s proscriptions are content-based or content-neutral. “The First Amendment generally prevents government from proscribing speech ... or even expressive conduct . . . because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.” (Citations omitted.) R. A. V. v. St. Paul, 505 U.S. , 112 S. Ct. 2538, 2542, 120 L. Ed. 2d 305 (1992); Texas v. Johnson, supra, 406; Boos v. Barry, supra, 321. By contrast, proscriptions that are justified without reference to the content of the regulated speech, and thus are content-neutral, are analyzed under a forum-based approach. “In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. ... In these quintessential public forums, the government may . . . enforce regulations of the time, place, and manner or expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. . . . [On pjublic property which is not by tradition or designation a forum for public communication . . . the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45-46, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983); see also International Society for Krishna Consciousness, Inc. v. Lee, supra, 2705-2706; Frisby v. Schultz, supra, 479-81; see generally L. Tribe, American Constitutional Law (2d Ed. 1988) § 12-2.

The trial court concluded that § 53a-183a was content-neutral on its face, because the statute penalizes intentional or knowing interference with hunting, in one of the specific ways described in the statute, without regard to the content of the communicative conduct that may constitute such interference. For example, intentional noisemaking for the purpose of harassing a hunter would fall within the statute regardless of whether the noisemaker was motivated by a philosophical commitment to the protection of animal rights, by a determination to protest the hunter’s choice of weapon or by a felt need to engage in public prayer. We agree with the trial court.

The defendants recognize that the provisions of § 53a-183a do not, in terms, impose criminal liability because of the content of the communication that intentionally interferes with protected hunting activity. They maintain, however, that the statute’s proscriptions are nonetheless content-based for three principal reasons. We disagree.

First, the defendants argue that the breadth of its provisions ensures that the statute will be enforced only against those who, by their words or conduct, seek to convey a particular message. The possibility that a statute permits excessive prosecutorial discretion is relevant to a consideration of statutory overbreadth, but does not itself convert a facially content-neutral restriction into one that is content-based. In Houston v. Hill, supra, 459, 465-67, for example, on which the defendants rely for their argument of facial overbreadth, a content-neutral statute penalizing the interruption of a police officer in the performance of his or her duties was invalidated because it was not sufficiently narrowly tailored, but the United States Supreme Court did not suggest that the statute thereby became content-based.

Second, the defendants maintain that the legislative history of § 53a-183a demonstrates that it was enacted for the sole purpose of protecting hunters from anti-hunting activists. Just as legislative history cannot add words to a statute that it does not contain; Furstein v. Hill, 218 Conn. 610, 622, 590 A.2d 939 (1991); State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974); so such history cannot render unconstitutional a statute that meets constitutional standards on its face. A statute that is otherwise constitutional does not become invalid “on the basis of an alleged illicit legislative motive.” United States v. O’Brien, supra, 383.

Third, the defendants urge us to conclude that the proscriptions in § 53a-183a will fall disproportionately upon the shoulders of antihunting groups. Neither the statute itself nor the record at trial substantiates this assertion. This case is, therefore, unlike Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 586, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983), in which a state use tax was held unconstitutional because by its terms it expressly singled out the press for special tax treatment.

Contrary to the defendants’ assertions, we are therefore persuaded that § 53a-183a is content-neutral because it restricts all the expressive conduct proscribed by its terms, whenever such expressive conduct intentionally or wrongfully interferes with hunting. As in Clark v. Community for Creative Non-Violence, supra, 295, the statute does not, on its face, single out a particular point of view for discriminatory treatment. In this regard, we see no viable distinction between the regulation of camping in a public park and the regulation of interference with hunting in a public park.

Ill

In analyzing the validity, under the first amendment, of a content-neutral statute that regulates expressive conduct on public property, a court must consider whether the property is a public or nonpublic forum and the nature and the seriousness of the state interest that purports to justify the regulation. The trial court undertook a searching analysis of the provisions of § 53a-183a and concluded that the statute, properly narrowed in certain salient ways, passed constitutional muster. The court, however, assumed the sufficiency of the state’s interest without permitting the state to offer evidence about the public interest in preventing the intentional harassment of hunters.

The defendants maintain that it would be inappropriate to engage in any further analysis of the validity of § 53a-183a, even if it is held to be content-neutral, because the decision of the United States Court of Appeals for the Second Circuit in Dorman v. Satti, supra, definitively resolves the issue of the strength of the state’s interest against the state. That court held a predecessor statute to § 53a-183a to be unconstitutional because there had been “no showing that protecting hunters from harassment constitutes a compelling state interest.” Id., 437. The defendants urge us to conclude, in reliance on Dorman v. Satti, supra, that the state is collaterally estopped from relitigating its interest in proscribing the harassment of hunters.

Collateral estoppel, or issue preclusion, prevents relitigation of an issue that has been determined in a prior suit “when that issue was actually litigated and necessarily determined in [the] prior action . . . .” (Internal quotation marks omitted.) Scalzo v. Danbury, 224 Conn. 124, 128, 617 A.2d 440 (1992). “An issue is ‘actually litigated’ if it is properly raised in the pleadings, submitted for determination, and in fact determined. [1 Restatement (Second), Judgments § 27, comment d (1982).] If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action.” Id., 128-29. Collateral estoppel does not bar relitigation of a nonessential issue because such an issue may not have been afforded careful deliberation and analysis. Id., 129 n.5.

We agree with the state that the defendants’ argument of collateral estoppel must be rejected. In Dorman v. Satti, supra, the Second Circuit analyzed the predecessor statute to § 53a-183a on two alternate assumptions and concluded that the statute was unconstitutional under either analysis. Id., 437. First, the court, assuming that the statute was content-based, determined that it did not pass the strict judicial scrutiny required for content-based regulations, which carry a presumption of unconstitutionality. The court determined that the state had not shown a compelling state interest for the regulation and that the statute was not narrowly tailored to any “putative” purpose. Id. Second, the court held that, even if the statute were content-neutral, it was invalid because it was an unreasonable regulation of the time, place or manner of speech. Id.

Relitigation in this case of the state’s interest in preventing interference with hunting is not precluded by the Second Circuit’s decision in Dorman because that court’s conclusion that the state had not shown a compelling interest was not essential to the court’s holding. Rather, that conclusion was one of three alternate grounds for invalidating the statute.

Moreover, although the Second Circuit concluded that the state had not established a compelling interest sufficient to overcome the presumptively unconstitutional content-based statute, we have already determined that the present § 53a-183a, whose terms the Second Circuit had no occasion to consider, is content-neutral. As a content-neutral statute affecting speech, § 5Sa-183a is valid without a showing of a compelling state interest. The appropriate threshold for a content-neutral regulation of free speech in a state park depends upon whether the park is characterized as a public or nonpublic forum. If the park is a traditional public forum, as the defendants contend, § 53a-183a must advance a significant state interest. If the park is a nonpublic forum, as the state contends, § 53a-183a must advance a reasonable state interest. See International Society for Krishna Consciousness, Inc. v. Lee, supra; Perry Education Assn. v. Perry Local Educators’ Assn., supra. Because these are issues that the Second Circuit did not address, the principle of collateral estoppel does not foreclose plenary consideration at this time of the state’s interest in preventing interference with hunting.

Although we are therefore persuaded that this issue is properly before us, we are also persuaded that a more complete factual record would assist us in resolving this question. The defendants’ motion in limine, which the trial court granted, precluded the state from introducing evidence concerning the public interest in the protection of hunters from intentional harassment. The defendants’ motion should have been denied.

Accordingly, we remand this case to the trial court for an evidentiary hearing to determine the nature and the extent of the public interest served by § 53a-183a. Although neither the state nor the defendants sought at trial to make an evidentiary showing relevant to a determination of whether the public parks where hunting is permissible are public fora, the trial court should permit an evidentiary inquiry in order to enable it to make a finding on this issue as well.

The denial of the motions to dismiss is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Callahan, Norcott and Santaniello, Js., concurred.

Berdon, J.,

dissenting and concurring in part. There is no question that the current Connecticut Hunter Harassment Act; General Statutes § SSa-lSSa; like its predecessor, “appear[s] by its terms to be content-neutral,” but is clearly “designed to protect hunters from conduct—whether verbal or otherwise—by those opposed to hunting.” Dorman v. Satti, 862 F.2d 432, 437 (2d Cir. 1988), cert. denied, 490 U.S. 1099, 109 S. Ct. 2450, 104 L. Ed. 2d 1005 (1989).

The legislature attempted to repair the statute by incorporating an element of intent. Nevertheless, as the defendants point out, a protestor can be convicted of violating the statute simply by voicing his or her opposition to the taking of wildlife in a manner that has the incidental effect of impeding or interfering with a hunter. During the debate on the floor of the House of Representatives, Representative Patricia A. Dillon described numerous hypothetical situations in an attempt to discern the line between conduct that could result in prosecution and conduct that would be exempt from prosecution. 33 H.R. Proc., Pt. 30, 1990 Sess., pp. 10,651-10,655. In response to one hypothetical situation, a proponent of the bill explained that the conduct had to be intentional and had to take place when someone was trying to hunt game. He further replied: “[I]f you went on that property, sat on a log, kept your mouth shut and didn’t wave your hands and kept quiet, you wouldn’t be [in violation] of this statute.” 33 H.R. Proc., Pt. 30, 1990 Sess., p. 10,653. The defendant argues that if the same person went into the woods to speak about “the joys of hunting and the sanctity of the rights of hunters, this expressive activity [would] not violate the Act.”

What is particularly troubling to me is that § 53a-183a (b) provides that “[a] person violates [the statute] when he intentionally or knowingly ... (2) blocks, impedes or otherwise harasses another person who is engaged in the process of lawfully taking wildlife . . . .” (Emphasis added.) The trial court’s attempt to narrow this broad sweeping text with limiting judicial gloss is inappropriate when the plain language of the statute is not susceptible to that construction. Dorman v. Satti, supra, 436. To suggest that the phrase “otherwise harass,” which could pertain to virtually any type of conduct, applies “only to ‘core criminal conduct’ . . . [is] tantamount to [having the court] ‘rewrite [the] statute.’ ” Id. “Clearly, this court lacks the authority to reshape public policy by construing a statute in a manner that alters its inherent meaning.” State v. Proto, 203 Conn. 682, 698, 526 A.2d 1297 (1987).

Relying on United States v. O’Brien, 391 U.S. 367, 383, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), the majority circumvents the legislative history of § 53a-183a by suggesting that a statute that is otherwise constitutional does not become invalid “on the basis of an alleged illicit legislative motive.” I disagree. As Professor Lawrence H. Tribe points out: “[T]he broad statement of the Court in O’Brien concerning the limited relevance of legislative motive in constitutional adjudication must be strongly qualified. In Washington v. Davis, [426 U.S. 229, 244 n.11, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976)], Justice White wrote for the majority: ‘To the extent that [some of our cases suggest] a generally applicable proposition that legislative purpose is irrelevant in constitutional adjudication, our prior cases . . . are to the contrary.’ ” L. Tribe, American Constitutional Law (2d Ed. 1988) § 12-6, p. 825.

The legislative history of both the current statute and its predecessor indicates that the legislature intended, at least in part, to insulate hunters from expressive speech by persons opposed to hunting. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1990 Sess., pp. 433-38, 497-501, 517-18, 523-24, 568, 615-16, 665-77; 33 H.R. Proc., Pt. 30, 1990 Sess., pp. 10,642-10,655; 33 S. Proc., Pt. 9, 1990 Sess., pp. 2857-58, and Pt. 10, pp. 3236-39; see also Dorman v. Satti, 678 F. Sup. 375, 377 n.2 (D. Conn. 1988).

Taking into consideration the text of § 53a-183a, its historic background and the legislative motive, I conclude that it is a content-based restriction. “For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Dorman v. Satti, supra, 862 F.2d 437.

Although in Dorman v. Satti, supra, 862 F.2d 437, there was no “showing that protecting hunters from harassment constitutes a compelling state interest,” I believe that the state should be given an opportunity to demonstrate such an interest. The trial court precluded this showing by granting the defendants’ motions in limine. Accordingly, I agree with the majority that we should remand the case to the trial court, but I do not believe that the remand should focus on whether the legislation advances a significant state purpose. Rather, the trial court should determine whether the statute advances a compelling state interest, and if so, whether the statute is narrowly tailored to achieve that end and “leave[s] open ample alternative channels of communication. ” (Emphasis added; internal quotation marks omitted.) Id.

To some, the speech at issue, and the message it seeks to convey, may be considered annoying and, indeed, disturbing. Nevertheless, democracy requires that we have the right to express our thoughts on public land. “If all mankind minus one were of one opinion and only one person were of the contrary opinion, mankind would be no more justified in silencing that person than he, if he had the power, would be justified in silencing mankind .... If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” John Stuart Mill, On Liberty (1859). The first amendment of the United States constitution means exactly what it states—there shall be no law “abridging the freedom of speech.” The Connecticut Hunter Harassment Act, stripped of its garb, was enacted to suppress speech.

Accordingly, I agree that the case should be remanded to the trial court, but respectfully disagree on the test to be applied.

       General Statutes § 53a-183a provides: “obstructing or interfering WITH THE LAWFUL TAKING OF WILDLIFE: CLASS C MISDEMEANOR, (a) No person shall obstruct or interfere with the lawful taking of wildlife by another person at the location where the activity is taking place with intent to prevent such taking.
      “(b) A person violates this section when he intentionally or knowingly: (1) Drives or disturbs wildlife for the purpose of disrupting the lawful taking of wildlife where another person is engaged in the process of lawfully taking wildlife; (2) blocks, impedes or otherwise harasses another person who is engaged in the process of lawfully taking wildlife; (3) uses natural or artificial visual, aural, olfactory or physical stimuli to affect wildlife behavior in order to hinder or prevent the lawful taking of wildlife; (4) erects barriers with the intent to deny ingress or egress to areas where the lawful taking of wildlife may occur; (5) interjects himself into the line of fire; (6) affects the condition or placement of personal or public property intended for use in the lawful taking of wildlife in order to impair its usefulness or prevent its use; or (7) enters or remains upon private lands without the permission of the owner or his agent, with intent to violate this section.
      “(c) For the purposes of this section, ‘taking’ and ‘wildlife’ shall be defined as in section 26-1.
      “(d) Any person who violates any provision of this section shall be guilty of a class C misdemeanor.”
      General Statutes § 26-1 provides in relevant part: “definitions. Words and terms used in this chapter shall be construed as follows . . .
      “(18) ‘Taking’ means shooting, pursuing, hunting, killing, capturing, trapping, snaring and netting any species of wildlife and attempting to shoot, pursue, hunt, kill, capture, trap, snare, net or catch any species of wildlife or any act of assistance to any other person in taking or attempting to take such wildlife whether or not such act results in the capture of any such wildlife. . . .
      “(21) ‘Wildlife’ means all species of invertebrates, fish, amphibians, reptiles, birds and mammals which are ferae naturae or wild by nature.”

       Although the defendants’ constitutional claims included a reference to the state constitution, defendants’ counsel acknowledged in oral argument in this court that the defendants were pursuing only their claims under the federal constitution. The first amendment to the federal constitution provides in relevant part: “Congress shall make no law . . . abridging the freedom of speech . . . .”

       The defendants’ attorney, while voicing his general disagreement with the state’s version of the facts, conceded, without adducing further particulars, that “there were facts upon which a judge could find a guilty plea if presented.” On this record, for the purpose of this appeal, we accept the state’s version of what transpired.

       Because of the defendants’ failure to brief the unconstitutionality of the statute as applied to them, the trial court expressly declined to consider this issue. In their appellate brief, the defendants agree that no such issue is presently before this court.

       We recognize that General Statutes § 53a-183a (b) (7) applies to interference with hunting on private property. The statute nonetheless cannot be found to be constitutional unless its regulation of public property meets the standards imposed by the first amendment.

       See footnote 1 of the majority opinion.

       The first Connecticut Hunter Harassment Act, enacted in 1985, was held to be facially unconstitutional. Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988), cert. denied, 490 U.S. 1099, 109 S. Ct. 2450, 104 L. Ed. 2d 1005 (1989).