author: Palmer, J. Berdon, J.,

text:
    State of Connecticut v. Angel Medina, Jr.
    (14135)
    Peters, C. J., Borden, Berdon, Norcott and Palmer, Js.
    Argued April 30—
    decision released August 24, 1993

      Suzanne Zitser, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).

       The defendant’s motion for reconsideration of the decision and resubmission to a reconstituted court was granted October 7, 1993. This opinion has been superseded by State v. Medina, 228 Conn. 281, 636 A.2d 351 (1994).

   Palmer, J.

A jury found the defendant, Angel Medina, guilty of the crimes of murder in violation of General Statutes § 53a-54a, possession of cocaine with intent to sell in violation of General Statutes § 21a-277 (a), and possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c). The defendant has appealed his convictions to this court pursuant to General Statutes § 51-199 (b) (3). He claims that the trial court improperly denied his motions: (1) to suppress certain incriminatory statements and for a new trial; (2) for a judgment of acquittal because the state failed to prove beyond a reasonable doubt that he possessed the requisite intent for the crime of murder; and (3) for a judgment of acquittal because the evidence established his affirmative defense of insanity. For the reasons set forth below, we are not persuaded that the defendant’s claims are meritorious, and we therefore affirm the judgment.

The jury could reasonably have found the following facts. On September 13,1986, at approximately 11:45 a.m., the Bridgeport police responded to a telephone call from Lucy Ramirez, who had reported that her brother, the defendant, was brandishing a gun in her house. According to Ramirez, the defendant had arrived at her home acting “like a mad man.” He talked about a mission he had to complete and stated that he had killed three demons. The defendant subsequently went outside to his car and returned with two guns, one tucked in his waistband and the other in his left rear pocket. Ramirez and her mother succeeded in distracting the defendant so that Ramirez could retrieve the gun from his waistband. She hid it and telephoned the police.

Ramirez met police officers Kevin Meizies and James Sheffield at the door to her home, and informed them that they would find the defendant in the kitchen and that he had a gun in his left rear pocket. Upon entering the kitchen, Meizies found the defendant standing with his hands in the air. He appeared to be upset and frightened. Meizies attempted to calm him and to distract him long enough to remove the gun. As Meizies was undertaking to disarm him, the defendant uttered that “[t]he devil made me do it,” “[I] killed the devil,” and “I am God.” Meizies asked the defendant “if he was all right, what’s the matter,” and reached around him and removed the gun from the defendant’s rear pocket. The .38 caliber weapon contained five spent cartridges.

Because the defendant continued to be upset, Meizies and Sheffield transported him, in handcuffs, to Bridgeport Hospital for observation. While en route to the hospital, the defendant continued to talk about both God and the devil and stated that “Mary gave me the drugs.” The officers left the defendant at the hospital and returned to the police station.

Shortly after Medina had departed for the hospital, Ramirez and her husband proceeded to the defendant’s apartment at 605 Hallett Street. Between 12:30 p.m. and 1 p.m., the couple entered a rear bedroom and there discovered the body of the victim, Mary Beth Buckley. They summoned the police and medical personnel and met the responding officer, Alan Kohlbacker, at 1:19 p.m. Kohlbacker secured the apartment and called for additional police and emergency medical personnel, who thereafter met Kohlbacker at the scene.

In the bedroom, the police found the victim’s body seated on a bar stool with the right side of her head on the bar. The closet door behind the victim contained four bullet holes. On top of the bar were white powder and drug paraphernalia. The police also seized two empty gun holsters and several live rounds of ammunition that were in plain view on the bedroom floor, as well as a box of .45 caliber ammunition from the kitchen table. Officers Meizies and Sheffield subsequently returned to the hospital to place the defendant under arrest for the murder of the victim.

An autopsy of the victim’s body revealed that she had died from two bullet wounds that had been inflicted approximately four to six hours prior to the discovery of her body. One bullet had passed through her arm and into her chest. The other bullet had entered directly into her chest and passed through her heart and lung into her spine, severing the spinal cord. This bullet had been fired from the handgun recovered from the defendant’s pocket. A third bullet had caused only a superficial wound.

After the trial court, Reilly, J., had found probable cause to continue the prosecution of the defendant for the crime of murder, the defendant, on October 28, 1987, was found incompetent to stand trial by the trial court, Curran, J., and sent to Whiting Forensic Institute. Subsequently, on February 8,1988, he was found competent to stand trial and pretrial hearings on various of the defendant’s motions ensued. A jury of twelve found the defendant guilty of all charges and the trial court, W. Sullivan, J., rendered judgment of conviction sentencing him to a term of imprisonment of fifty-one years.

I

The defendant first invokes the protections of the fifth and fourteenth amendments to the constitution of the United States, and article first, § 8, of the Connecticut constitution, and claims that the trial court improperly denied his motion to suppress the incriminatory statements that he had made to the police in the kitchen of his sister’s apartment and while en route to the hospital. Specifically, the defendant claims that these statements were elicited by the police in the absence of the warnings required by Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Falby, 187 Conn. 6, 11 and n.1, 444 A.2d 213 (1982); and that the statements were involuntary due to his mental condition at the time he made them. We conclude that the statements were not obtained by the police in derogation of the defendant’s Miranda rights, and that the defendant’s mental state at the time he made those statements did not render them involuntary as a matter of law under the due process clause of the United States constitution. We also conclude that the defendant did not properly preserve his claim of involuntariness under the Connecticut constitution and that the record below is not sufficient for our review of that claim.

A

The state acknowledges that the police had not informed the defendant of his Miranda rights prior to the statements he made in his sister’s kitchen and, shortly thereafter, on his way to Bridgeport Hospital. The state maintains, however, that Miranda warnings were not required because at no time was the defendant subjected to police interrogation. We agree with the state.

“Although the Miranda warnings were originally effective in state prosecutions only because they were a component of due process of law under the fourteenth amendment . . . they have also come to have independent significance under our state constitution. . . . The warnings represent the belief, deep-seated in the Anglo-American legal tradition, that a person accused of a crime may be convicted only if exacting measures have been taken to assure that the accused has been treated with the most scrupulous fairness by agents of the government.” (Citations omitted.) State v. Ferrell, 191 Conn. 37, 40-41, 463 A.2d 573 (1983); see also State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987). It is well settled, however, that a defendant is entitled to such warnings only if the statements are the product of custodial interrogation. State v. Rosado, 218 Conn. 239, 252, 588 A.2d 1066 (1991), and cases therein cited.

“[T]he defendant has the initial burden of showing that he was subjected to custodial interrogation”; id.; before the state must prove that adequate warnings of the rights that inhere in the privilege against compelled self-incrimination were given to the defendant and that the defendant’s waiver of his rights was constitutionally valid. State v. Rasmussen, 225 Conn. 55, 76, 621 A.2d 728 (1993); see also State v. Weidenhof, 205 Conn. 262, 267, 533 A.2d 545 (1987); State v. Gray, 200 Conn. 523, 531-33, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Unless it was clearly erroneous, we will accept the trial court’s factual finding that the defendant was not the subject of a custodial interrogation. We will also, however, carefully review the record to determine whether the trial court’s finding is founded on substantial evidence. See State v. Rasmussen, supra, 76-77.

Two conditions, therefore, give rise to the requirement of advice of rights under Miranda: (1) the suspect must be in the custody of law enforcement officials; and (2) the suspect must be subjected to interrogation. State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985). To determine whether a suspect is in custody so as to be entitled to receive Miranda warnings, we inquire whether a reasonable person, in view of all the circumstances, would have believed that he or she was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); State v. Rasmussen, supra, 76; State v. Oquendo, 223 Conn. 635, 647, 613 A.2d 1300 (1992). “The term ‘interrogation’ under Miranda is not limited to questioning explicitly designed to elicit an incriminating response but extends to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a suspect. The police, however, cannot be held accountable for the unforeseeable results of their words or actions. Rhode Island v. Innis, [446 U.S. 291, 301-302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)]; State v. Palmer, [206 Conn. 40, 62, 536 A.2d 936 (1988)]; State v. Vitale, supra, 411-12; State v. Stankowski, [184 Conn. 121, 136-37, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981)].” State v. Rosado, supra, 253. "Voluntary statements of any kind are not barred by the fifth amendment. Miranda v. Arizona, supra, 478.” State v. Vitale, supra, 412.

We examine first the circumstances surrounding those statements made during the brief interval between the arrival of Meizies and his removal of the gun from the defendant’s rear pocket. Meizies, who had been told by Ramirez that the defendant had a gun in his pocket, testified that the defendant had been waving his hands in the air and uttering religious expressions when Meizies confronted him in the kitchen. At that point, Meizies attempted to ascertain why the defendant appeared to be upset and what further action, if any, might be appropriate. Only when Meizies had determined that the defendant in fact had a gun and that his conduct warranted arrest did Meizies secure the weapon and take him into custody. This factual history persuades us that a reasonable person would have believed that he or she was free to leave. The record, therefore, supports the trial court’s determination that the defendant was not in custody prior to the seizure of his weapon and that Miranda warnings were not required prior to that time.

Moreover, even assuming that the defendant had been in police custody upon Meizies’ entrance into the kitchen, we are not persuaded that Miranda warnings were required. The defendant was standing with his arms in the air and was acting upset and frightened when Meizies walked into the room. In response to this conduct, the officer asked the defendant “if he was all right, what’s the matter, that was about it.” Meizies, who was then unaware of the fatal shooting of the victim, further testified that the defendant had initiated their brief conversation and that “I wasn’t really questioning him, I was just trying to get a little bit of control of the situation . . . basically to try to quell the situation.” Our review of the record discloses only police conduct that had both the intent and effect of calming the defendant and maintaining the safety of all at the scene. Because Meizies’ conduct was neither intended nor reasonably likely to provoke an incriminatory response from the defendant; see State v. Rosado, supra, 253-54; State v. Palmer, supra, 62-63; State v. Copeland, 205 Conn. 201, 207-208, 530 A.2d 603 (1987); State v. Evans, 203 Conn. 212, 227, 523 A.2d 1306 (1987); State v. Vitale, supra, 408-12; the officer’s prudent efforts to evaluate and ameliorate the situation, after the defendant had initiated the exchange; see State v. Doehrer, 200 Conn. 642, 645-48, 513 A.2d 58 (1986); did not constitute interrogation requiring Miranda warnings.

The defendant argues also that the trial court should have suppressed his incriminatory statements made en route to the hospital. The state concedes both that the defendant was in custody at that time and that he was not advised of his Miranda rights. In order to prevail on his suppression claim, therefore, the defendant need show only that he was interrogated by the police officers who accompanied him to the hospital. The defendant fails, however, to meet this burden. Although interrogation need not take the form of direct questioning; see State v. Rosado, supra, 253; the record does not disclose any police questioning of the defendant or any other police conduct that was likely to elicit an incriminating response.

The defendant maintains that his statements to the transporting officers should have been suppressed nevertheless because those statements were the product of the earlier “interrogation” in the kitchen. We already have determined, however, that the defendant was neither in custody nor the subject of police interrogation when he made the incriminatory statements in the kitchen. Accordingly, we conclude that the trial court properly denied the defendant’s motions to suppress his statements and for a new trial.

B

The defendant claims, in the alternative, that the trial court improperly denied his motion to suppress his incriminatory statements because they were not voluntary. He argues that his capacity for self-determination was critically impaired because of his mental state at the time that he made the statements to the police. The defendant invokes applicable provisions of both the federal and state constitutions.

1

We review first the defendant’s federal constitutional claim that “[t]he use of an involuntary statement of a defendant in a criminal trial violates a defendant’s right to due process of law. . . .Asa prerequisite to admissibility the state is required to prove, by a preponderance of the evidence, that under all the circumstances admissions by an accused were voluntarily made. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972) . . . .” (Citations omitted.) State v. Kane, 218 Conn. 151, 160, 588 A.2d 179 (1991). Under the federal due process clause, however, the defendant must establish that his lack of voluntariness was the result of improper police activity. “The measure of voluntariness [under the federal constitution] is whether a review of all the circumstances surrounding the elicitation of the statement reveals that the conduct of the law enforcement officials involved was such as to overbear the will of the accused to resist and bring about a statement not freely determined.” State v. Rosado, supra, 254-55. A statement by the defendant that is the product of police coercion, therefore, may not be used by the state against that defendant. Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v. Roman, 224 Conn. 63, 69, 616 A.2d 266 (1992), cert. denied, U.S. , 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993). On appeal we undertake “an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding [with respect to voluntariness] is supported by substantial evidence.” State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986); State v. Rosado, supra, 255.

The defendant’s claim of coercive interrogation by the police is unsupported by the evidence. The only question posed to the defendant by the police was Meizies’ inquiry, upon his arrival at the Ramirez home, as to whether “[the defendant] was all right, what’s the matter.” As we have already determined, the defendant was not in custody at that time and the question was neither intended nor likely to prompt an incriminatory answer; Meizies merely was seeking to identify the cause of the defendant’s behavior and to calm a potentially volatile situation. Nor is there any evidence that the conduct of the officers who transported the defendant to the hospital was in any way inappropriate. Indeed, the record indicates that the police were respectful of the defendant’s rights and that their conduct was in no way provocative or improper. We conclude, therefore, that the statements made by the defendant to the police were not the product of police coercion and that, therefore, the trial court’s admission of those statements did not offend the defendant’s federal constitutional protection against the use of involuntary statements.

2

The defendant requests that we determine the contours of his right against compelled self-incrimination in accordance with the guarantees of article first, § 8, of the Connecticut constitution. He asserts that our state constitutional protections against the admission of a defendant’s involuntary statements, unlike the protections of the federal constitution as defined by the United States Supreme Court in Cobrado v. Connelly, supra, do not require a predicate showing of coercive police conduct. The defendant, noting that this court has “[o]n several occasions . . . left open the possibility that our state constitution might render a defendant’s involuntary statements inadmissible even if they were motivated by factors other than police coercion”; State v. Roseboro, 221 Conn. 430, 443, 604 A.2d 1286 (1992); see also State v. Northrup, 213 Conn. 405, 419-20, 568 A.2d 439 (1990); State v. Madera, 210 Conn. 22, 47-48, 554 A.2d 263 (1989); State v. Gonzalez, 206 Conn. 213, 222, 537 A.2d 460 (1988); State v. Evans, supra, 243; urges us to reach this issue and to reject the requirement of coercive police conduct under our state constitution. Although it is clear that “in some instances . . . the protections afforded to the citizens of this state by our constitution go beyond those provided by the federal constitution”; State v. Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990); the defendant may not prevail in this court on his state constitutional claim because it was not properly raised and preserved in the trial court. The defendant has not satisfied the conditions established in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), for appellate review of unpreserved constitutional claims.

The defendant’s written motion to suppress statements identifies article first, § 8, of our state constitution as one of several bases upon which he claims that his statements should be excluded. The defendant further alleged in his motion that his statements were not made knowingly and voluntarily. The motion, unaccompanied by case citation or a memorandum, otherwise failed to explicate the nature of his state constitutional voluntariness claim.

A thorough review of the record reflects that the litigation of the defendant’s voluntariness claim focused exclusively on the issue of whether the police were required to advise the defendant of his Miranda rights. At the conclusion of the pretrial suppression hearing, the defendant’s argument, addressed solely to the Miranda issue, claimed that his statements were not made knowingly and voluntarily because he had not been given Miranda warnings. Defense counsel’s brief rebuttal to the state’s closing statement, which also focused exclusively on the applicability of Miranda, simply reiterated the defendant’s position that he was in police custody at the time the statements were made. The trial court’s ruling on the defendant’s suppression motion reflects its understanding that the only issue before the court was whether Miranda warnings were required under the circumstances.

At trial, defense counsel renewed his motion to suppress the statements made by the defendant while he was en route to Bridgeport Hospital. He again limited his argument solely to the issue of custodial interrogation, as did the court in its denial of that renewed motion. We find no other argument or mention of the voluntariness issue in the record of the proceedings below.

At no time thereafter did the defendant argue or identify any claim of involuntariness other than his claim under Miranda, or otherwise alert the court that he was pressing any such claim. Nor did he request that the court amplify its rulings on the motion to suppress, even though those rulings clearly were limited to a consideration of the issue of custodial interrogation. The record, therefore, is devoid of any suggestion that the defendant was pursuing a state constitutional claim that his statements were involuntary due to his mental condition at the time he made them. Furthermore, because the defendant did not clearly raise such a state constitutional claim in the trial court, the state was not put on notice that it was required to defend against such a claim. Thus, neither the state nor the trial court—nor this court on appeal-had the benefit of a complete factual inquiry into the nature and extent of the involuntariness of the defendant’s statements.

A defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 239-40. “We have also held that we remain free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 689, 613 A.2d 788 (1992). We conclude that the record of the proceedings below is not adequate for our review of the defendant’s claim that the admission of his statements at trial violated his rights under our state constitution.

The trial court never ruled on the issue of the voluntariness of the defendant’s statements under the state constitution because, as we have determined, that issue was not raised. We do not know, therefore, whether the trial court, after conducting a full evidentiary hearing and applying the state constitutional standard now urged by the defendant, would have found the defendant’s statements to have been involuntary. As we recently held in declining to review an unpreserved claim of constitutional error, “[s]ince such a determination is a question of fact, even if we were to agree with the defendant [on his interpretation of the Connecticut constitution], we would have to remand the case to the trial court for that factual determination, rather than to grant the defendant a new trial. Since, under the test in Golding, we must determine whether the defendant can prevail on his claim, a remand to the trial court would be inappropriate. The first prong of Golding was designed to avoid remands for the purpose of supplementing the record.” (Emphasis in original.) State v. Stanley, supra, 689-90. Because, as in Stanley, the defendant’s claim cannot be resolved without a remand for an evidentiary hearing and findings on the issue of whether his allegedly impaired mental state rendered his statements involuntary, even in the absence of police coercion, we conclude that the record is inadequate for review of that claim. We decline, therefore, to decide his state constitutional claim.

II

The defendant concedes that he caused the death of the victim. He claims, however, that the trial court improperly denied his motions for a judgment of acquittal because the state failed to prove beyond a reasonable doubt that he had the intent to kill the victim and that the evidence he introduced at trial established his affirmative defense of insanity by a preponderance of the evidence. See General Statutes §§ 53a-12 and 53a-13. The defendant argues that the facts established by the state to prove the requisite statutory intent to commit murder were insufficient to preclude the reasonable hypothesis of recklessness and that the evidence, therefore, supported only a conviction for a lesser included offense. We conclude that the state’s evidence concerning the defendant’s intent and mental capacity was sufficient to support the jury’s verdict, and that the trial court properly denied the defendant’s motions for a judgment of acquittal.

A defendant acts “intentionally” in causing the death of another when he or she has the conscious objective to cause the death of the victim. General Statutes §§ 53a-3 (11) and 53a-54a. “Intent involves ‘a mental process which ordinarily can be proven only by circumstantial evidence.’ ” State v. Rasmussen, 225 Conn. 55, 74, 621 A.2d 728 (1993); see also State v. Salz, 226 Conn. 20, 32-33, 627 A.2d 862 (1993). “The law recognizes no distinction between circumstantial evidence and direct evidence so far as probative force is concerned. . . . Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Citation omitted; internal quotation marks omitted.) State v. Bzdyra, 165 Conn. 400, 403, 334 A.2d 917 (1973); see also State v. Rasmussen, supra. “Intent may be inferred from the nature of any weapons used, the manner in which they were used and the nature and number of wounds inflicted.” State v. Rasmussen, supra; see also State v. Carpenter, 214 Conn. 72, 82-83, 570 A.2d 203 (1990). For example, a jury may properly infer that a defendant had an intent to kill a victim from the evidence that the defendant used a deadly weapon to kill the victim, the manner in which the weapon was used, and the nature and number of wounds inflicted. State v. Rasmussen, supra; State v. Bzdyra, supra, 404.

“ ‘That the jury might have drawn other possible inferences from [the evidence] is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt.’ ” State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991), quoting State v. Sinclair, 197 Conn. 574, 578, 500 A.2d 539 (1985). Upon appellate review, “[w]e . . . review the evidence presented at trial, construing it in the light most favorable to sustaining the facts . . . impliedly found by the jury.” State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); see also State v. Salz, supra, 30-31; State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991).

The jury heard the testimony of the state’s chief medical examiner that the victim had died from gunshot wounds fired from a .38 caliber handgun and that one of the bullets had entered her chest, passed through her heart and severed her spinal cord. Four bullets pierced the closet door in front of which the victim’s body was discovered. The state also presented evidence that the defendant had left the scene when the victim was dead or in extremis and that he apparently made no effort to seek medical assistance for her. In addition, the jury heard testimony of intrigue and jealousy concerning the defendant, the victim and the victim’s former boyfriend, Gerald Wallisa, as well as evidence that the defendant had physically abused the victim not long before her death.

Although it is true, of course, that the state’s proof of the defendant’s guilt must exclude every reasonable supposition of innocence, a mere hypothesis of innocence will not suffice. State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984); see also State v. Salz, supra, 29. And, “[although some evidence may be inconsistent with the state’s theory of the case, the jury is not bound to credit only that evidence to the exclusion of evidence consistent with the state’s theory. State v. Pinnock, 220 Conn. 765, 775-76, 601 A.2d 521 (1992).” State v. Salz, supra, 29-30. The defendant’s assertion that he is entitled to a judgment of acquittal “springs from his supposition of inferences that the jury could have drawn while ignoring inferences consistent only with his guilt that the jury did reasonably draw.” Id., 30. Because the circumstances surrounding the death of the victim permitted the jury to conclude beyond a reasonable doubt that the defendant had intended to cause the victim’s death, the trial court properly denied the defendant’s motion for a judgment of acquittal.

III

The defendant also claims that the trial court improperly denied his motion for a judgment of acquittal because the evidence he introduced at trial established, as a matter of law, his affirmative defense of insanity by a preponderance of the evidence. A review of the evidence introduced at trial, however, reveals a sufficient basis for the jury’s rejection of the defendant’s affirmative defense.

The defense relied primarily on the testimony of three experts and a deputy sheriff. Jeremy August, a psychiatrist who had examined the defendant at his request, testified that: the defendant was suffering from a bipolar affective disorder, a manic depressive illness; persons suffering from this illness experience periods of relatively normal functioning that may be interrupted by episodes of depression or mania; and the defendant’s belief that he was on a special mission from God to purge evil from the world is typical of those who suffer from the illness. August concluded that on September 13,1986, the defendant had been unable to conform his conduct to the requirements of the law.

Melvin Roy, a clinical psychologist, administered a battery of psychological tests to the defendant after he had been incarcerated. He diagnosed the defendant as having an affective bipolar disorder in partial remission. Elizabeth Augustine, also a clinical psychologist, administered psychological tests to the defendant and reviewed information supplied by August and Roy. She diagnosed the defendant as having a bipolar disorder and concluded that he had been unable to conform his behavior to the requirements of the law or appreciate the wrongfulness of his actions on September 13,1986.

David Villa served as a deputy sheriff at the Bridgeport courthouse on September 15,1986, the date of the defendant’s arraignment. He testified that the defendant’s behavior “was the most bizarre episode I’ve ever seen in fifteen years of service,” and that the defendant giggled and laughed and told Villa that he was God. Villa observed that the defendant was “[sjweating profusely and his eyes had a very peculiar and bizarre appearance to them.” The defendant’s behavior on the day of his arraignment caused a group of deputies to place the defendant in a full body manacle.

The state’s evidence in derogation of the defendant’s insanity defense consisted of the cross-examination of the defendant’s witnesses and the introduction of various exhibits. On cross-examination, August testified that the pattern of the illness “is one of recurring episodes with relatively good interepisodic functioning” and that “[t]he frequency of manic . . . episodes is largely individual . . . so that one person might have a manic episode once every ten years . . . [or] once every two months . . . [or] hourly.” Although he did not agree with the diagnosis, August concurred that, upon the defendant’s transfer from the Bridgeport Correctional Center to Fairfield Hills State Hospital, he had been diagnosed as a malingerer. On the basis of documents shown to him by the prosecutor, August also acknowledged that: the defendant had told persons at Fairfield Hills State Hospital that he pretended to be crazy so that he could get out of jail; the staff there had found that the defendant did not suffer from any significant mental illness; the defendant had a substantial history of substance abuse and that he apparently would also qualify for a substance abuse diagnosis; a psychiatrist at the Whiting Forensic Institute had diagnosed the defendant as suffering from a cocaine disorder leading to psychotic symptoms; and the defendant had not been a behavioral problem at either Whiting Forensic Institute or the Bridgeport Correctional Center, where he had sustained good functioning for extended periods of time.

The state elicited on its cross-examination of Elizabeth Augustine that she customarily conducts twelve hours of psychological tests on her patients but administered only three hours of such tests on the defendant. Augustine also acknowledged that she had not settled upon a diagnosis of the defendant until the day before she testified. In addition, the state demonstrated that none of the defense experts had observed the defendant until at least six months after the commission of the alleged crime. The state also impeached Melvin Roy with evidence of a felony conviction for larceny. Roy also testified that the defendant had not been psychotic at the time Roy tested him.

The state also elicited the testimony of a rebuttal witness, Gerald Wallisa, who had lived with the victim for two years. In late August, 1986, Wallisa and the victim moved into the defendant’s apartment. Soon thereafter, the three became involved in an argument and the defendant threatened to kill Wallisa and told him to move out, which he did. A short while later Wallisa returned to visit the victim. The defendant approached them, grabbed the victim and proceeded to drag her down a driveway. The defendant persisted in this conduct notwithstanding the victim’s screams and protests that the defendant was hurting her.

The state also relies on evidence introduced in its case-in-chief to support its contention that the jury reasonably could have found the defendant’s conduct resulted not from a mental disease or defect but instead from his voluntary ingestion of cocaine and alcohol. Walter Young testified that he had known the defendant for six years and that he had been remodeling a bathroom on the second floor of the apartment building at 605 Hallett Street, in which the defendant had lived. Young stated that he had last seen the defendant and the victim between midnight and 2 a.m. on September 13, 1986, seated at the kitchen table of their third floor apartment. Both were drinking alcohol and smoking cocaine. Young also testified that the defendant and the victim had been drinking and ingesting cocaine that day and evening and that they had been “partying” for four days, that the defendant, who also had provided Young with alcohol and cocaine, was ingesting cocaine whenever Young went up to his apartment, and that the defendant was rundown, perspiring and had not slept for quite some time.

It is apparent, therefore, that the jury reviewed conflicting evidence on the issue of the defendant’s mental capacity at the time he fatally shot the victim. The evaluation of such conflicting evidence on the issue of legal insanity is the province of the finder of fact. State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). “[W]e have repeatedly stated that our review of the conclusions of the trier of fact ... is limited. . . . This court will construe the evidence in the light most favorable to sustaining the trial court’s [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The probative force of direct and circumstantial evidence is the same. . . . The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses on the issue of sanity is determined by the trier of fact.” (Citations omitted; internal quotation marks omitted.) State v. Steiger, 218 Conn. 349, 378-79, 590 A.2d 408 (1991).

Although expert witnesses testified on behalf of the defendant and the state called none, that alone is not a sufficient basis to disturb the verdict on appeal; see, e.g., State v. Evans, 203 Conn. 212, 237-38, 523 A.2d 1306 (1987); State v. Perez, supra, 608-10; for the jury “can disbelieve any or all of the evidence on insanity and can construe that evidence in a manner different from the parties’ assertions.” State v. Steiger, supra, 381; see also State v. Jarzbek, 204 Conn. 683, 707, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988); State v. Putnoki, 200 Conn. 208, 221, 510 A.2d 1329 (1986). The jury had before it the defendant’s expert testimony and the state’s vigorous attack on it, as well as other evidence introduced by the state on the issue of the defendant’s sanity. The jury was free to reject the expert defense testimony, in full or in part, and to credit the state’s evidence, including the conclusions of the state medical personnel, elicited on cross-examination of the defendant’s experts, that the defendant was a malingerer who did not suffer from a serious mental illness. The jury may have determined, alternatively, that the defendant’s behavior was due not to a mental disease or defect, but instead to his voracious consumption of alcohol and cocaine. See General Statutes § 53a-13 (b). As we have stated, however, “[i]t is not necessary for us to determine the reasons which the trier had for concluding that the defendant had substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of law.” State v. Perez, supra, 606. We must determine only whether any reasonable trier of fact could have rejected the defendant’s affirmative defense of mental disease or defect. We conclude that the evidence introduced at trial permitted the jury to reject the defendant’s assertion that he did not appreciate the wrongfulness of his conduct and that he was unable to conform his conduct to the requirements of the law at the time he killed the victim.

The judgment is affirmed.

In this opinion Peters, C. J., Borden and Norcott, Js., concurred.

Berdon, J.,

dissenting. Today, the majority upholds the defendant’s conviction for the crime of murder, even though it may have been predicated on a confession made while the defendant was mentally ill, in violation of our state constitution. Following his conviction for murder, in violation of General Statutes § 53a-54a (a), the defendant was sentenced to a prison term of fifty-one years. The defendant’s pretrial motion sought to suppress statements made when he was apprehended on the day of the victim’s death and when he was being escorted to the hospital. At that time, the defendant stated: “The devil made me do it”; “I killed the devil”; “I am God.”

I agree with the majority that under the federal due process clause, the fact that the defendant’s confessions or admissions were made while he was insane does not affect their admissibility. In Cobrado v. Connelly, 479 ■U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986), the majority of the United States Supreme Court held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment” even though the admissions were made by the defendant when he was mentally ill.

I

Reviewability of the State Constitutional Claim

The defendant also argues, however, that the statements should have been excluded under article first, § 8, of the Connecticut constitution. He contends that the admission of his involuntary statements violated his state constitutional right to due process. The majority refuses to review the defendant’s claim on the grounds that it was not raised before the trial court and that there is an insufficient record to review the claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). I agree with the majority that the defendant failed to raise the state constitutional issue before the trial court. Although defense counsel raised at trial the issue of whether the statements were made “knowingly and voluntarily,” the issue was raised in the context of the defendant’s Miranda rights. Defense counsel failed to claim that the defendant’s statements were involuntary because they were made while he was mentally ill, and therefore violated his rights to due process under the federal or state constitutions.

Despite defense counsel’s failure to raise the state constitutional issue before the trial court, I believe that the record is sufficient to warrant review under State v. Golding, supra. The record is replete with evidence of the defendant’s seriously impaired mental condition in this case. It is undisputed that the defendant suffered from bipolar affective illness (manic depressive illness) with psychotic features. At least one expert witness testified without contradiction that the defendant had suffered from this mental illness on the day the murder had been committed. “On appeal, in order to determine whether the defendant’s constitutional rights have been infringed, we review the record in its entirety and are not limited to the evidence before the trial court at the time the ruling admitting the statements was made.” State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986). Indeed, our examination of the record must be “independent and scrupulous” when determining whether a confession is admissible. State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986).

Furthermore, the majority ignores the standard of review for determining the voluntariness of a confession. “Although we normally give great deference to the factual findings of the trial court, the ultimate issue of whether the statement is voluntary and admissible is a legal determination. Arizona v. Fulminante, 499 U.S. 279, 287, 111 S. Ct. 1246, 113 L. Ed. 2d 302, reh. denied, 500 U.S. 938, 111 S. Ct. 2067, 114 L. Ed. 2d 472 (1991). Accordingly, our standard of review is not whether the fact-finding of the trial court is ‘clearly erroneous,’ but whether, upon our review of the record, the state has proven that the incriminating statements were voluntarily made.” State v. Roman, 224 Conn. 63, 76-77, 616 A.2d 266 (1992), cert. denied, U.S. , 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993) (Berdon, J., dissenting).

The following facts are relevant to determining whether the statements are admissible. On September 13,1986, Bridgeport police officers Kevin Meizies and James Sheffield responded to a telephone call from the defendant’s sister, Lucy Ramirez, who was concerned and frightened because her brother had come to her home and was acting “like a madman.” The officers arrived at the Ramirez residence to find the defendant standing in the kitchen with his hands in the air and a gun in his back pocket. Meizies testified that the defendant was sweating, seemed nervous and upset, and that “something was wrong obviously.” Both Meizies and Sheffield testified to the defendant’s bizarre statements, noting that “[h]e said he killed the devil . . . [n]umerous times . . . .” In addition, after Meizies retrieved the defendant’s gun, the defendant “went over to a female relative of his who had answered the door,” and bowed in front of her, saying “I killed the devil. I am Angel Medina. I am God . . . [and] statements to that effect.”

The officers were so concerned about the defendant’s behavior that they transported him to the Bridgeport hospital emergency room. On the way to the hospital, the defendant continued with his bizarre behavior, mumbling unintelligibly, continuing to say that he was God and that he had killed the devil, and that “Mary gave me the drugs.”

In addition, as the majority acknowledges, David Villa, who was on duty as deputy sheriff at the Bridgeport courthouse when the defendant was arraigned, and who had observed the defendant for six hours, testified that the defendant’s behavior “was the most bizarre episode I’ve ever seen in fifteen years of service.” Villa testified that the defendants eyes were “bugged out . . . extended out a lot further than a normal person would. They were blood shot, puffy around the lids and actually [had] the appearance that they were bulging out of his head.” Villa further testified that “the defendant told me directly that he was the devil. On many occasions. He also told me that he was God.” According to Villa, the defendant engaged in a cyclical pattern of behavior, which continued for approximately six hours, being “quiet and almost withdrawn in tears at the back of the cell,” then becoming loud, “screaming in a high voice that he was the devil,” and “thrashing around in the cell.” Villa testified that the defendant “would . . . go in for a few moments of giggling and laughter in the cell, moving around very-agitated in the cell.” The defendant’s behavior was “so intense . . . that a group of deputies, including [Villa], entered the cell and placed [the defendant] into a full body manacle which consisted of a set of leg irons and a belly chain.”

Prior to trial, on September 30,1987, the trial court granted the defendant’s motion for a psychiatric examination. After evaluating the defendant, the clinical team, comprised of social workers, psychiatrists and psychologists, determined that the defendant was not competent to stand trial. They specifically noted that “a major concern to team members was the defendant’s religious delusional system which now substantially interferes in his current competency to stand trial.” The clinical team also documented that the defendant had “indicated that he believes he is a gifted child, has special powers and may be one of Jesus’ followers. He has little concern over what could happen with his human body and 20 years or life imprisonment does not really matter to him. He somewhat philosophized that none of us could really be around even two days from now. He believed that he had died and had come back to life at about the same time that [the victim] was found dead. He has powers and his actions that resulted in his arrest are ‘beyond the recollection of man’s knowledge.’ He then went on to state that time actually went backwards for everyone in August and September of last year. He states that he knows this as it was written in one book and that most people are not aware that time had in fact gone backwards. ... He did make reference to killing the devil, being very vague as to who the devil was. This coincides with the arrest incident report that made reference to a similar statement.”

Following the finding of incompetency, the defendant was admitted to Fairfield Hills Hospital. On November 2, 1987, he was transferred to Whiting Forensic Institute. At Whiting, although he was diagnosed as having a delusional disorder (paranoia), he was nevertheless declared competent to stand trial. The trial court did not rule on the motion to suppress statements until March 19, 1990, at which point it denied the motion despite the 1987 report indicating that the defendant had not been competent to stand trial at that time and had suffered from religious delusional problems consistent with the statements he sought to suppress.

At trial, the defendant offered the testimony of three experts—Jeremy August, a psychiatrist, and Elizabeth Augustine and Melvin Roy, clinical psychologists. August diagnosed the defendant as having bipolar affective illness, formerly known as manic depressive illness, with psychotic features. August explained that when bipolar affective illness becomes quite severe, “thinking is disrupted, delusional ideas such as being God or being Satan or being possessed by the devil become prominent; and when that happens, then you have the extra diagnosis of psychotic features.” He further testified that he had observed such psychotic features in the defendant when they met in 1987, and noted that the defendant “believed that he was in a special relationship with God and that he had a mission to kill the devil.” August moreover testified that the defendant was suffering from bipolar affective illness on the date of the murder.

After performing a battery of psychological tests on the defendant, Melvin Roy concluded that the defendant “has a serious affective [bipolar] disorder in partial remission.” Roy described affective bipolar disorder as “a serious disturbance in mood which affects the individual’s behavior drastically ... in other words, a psychotic disorder.” Roy testified that although the defendant had not been psychotic when tested, he concluded that the defendant had been suffering from affective bipolar disorder at the time of the murder.

Elizabeth Augustine testified that she had begun testing the defendant, but had been unable to complete the usual battery of tests, which takes approximately eight or nine hours, because the defendant had become agitated and was unable to concentrate or pay attention after approximately three hours. Augustine testified that during the testing, the defendant’s “behavior and thinking was not within normal limits. He was stimulated by things that would not provoke bizarre thinking in normal individuals.” Augustine testified that the defendant’s behavior had included “rapid speech, agitation, bodily agitation, getting up, pacing, sitting down, getting up, pacing, sitting down, getting up, pacing. Once again, sitting down. Inability to sit still. Coming out with more bizarre statements and delusion material.” She also testified that the defendant was “hyper-religious,” and that he had stated “I am spirit and flesh. I am Holy Ghost.” Finally, Augustine testified that the defendant’s behavior was consistent with a person undergoing a manic phase of bipolar affective illness with psychotic features.

Although the state introduced evidence that the defendant had ingested drugs before he had made the statements at the Ramirez residence, there is also overwhelming evidence of the defendant’s serious mental illness. As the majority acknowledges, the defendant suffered from “bipolar affective disorder, a manic depressive illness; persons suffering from this illness experience periods of relatively normal functioning that may be interrupted by episodes of depression or mania; and the defendant’s belief that he was on a special mission from God to purge evil from the world is typical of those who suffer from the illness.” The nature of the defendant’s confession is consistent with this illness. Even if the defendant’s mental state had resulted from his ingestion of drugs, however, his confession still could not be characterized as voluntary. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).

In view of the fact that the voluntariness of the statement is a legal question, and the overwhelming evidence of the defendant’s mental illness in this case, I believe that the record is adequate to review the defendant’s state constitutional claim. Alternatively, I would remand this case to the trial court for an evidentiary hearing and written findings. See State v. Ellis, 227 Conn. 902, 630 A.2d 73 (1993). This issue has eluded us even though it has been squarely raised before this court; e.g., State v. Roseboro, 221 Conn. 430, 443-44, 604 A.2d 1286 (1992); and I would get to the merits of the issue.

II

The Merits

On the basis of my analysis in State v. Stanley, 223 Conn. 674, 699, 613 A.2d 788 (1992) (Berdon, J., dissenting), which noted that prior to the adoption of the state constitution in 1818, the common law required that the prosecution prove the voluntariness of a confession beyond a reasonable doubt, I conclude that Colorado v. Connelly, supra, must be rejected under the state due process clause. In Stanley, I noted that “[t]he right to have excluded the involuntary confession, under the state constitution, is embraced in the following constitutional clause: No person shall be compelled to give evidence against himself .... Conn. Const., art. I, § 8 (1965). This clause is virtually identical to the one that appeared in our first formal constitution of 1818; Conn. Const., art. I, § 9 (1818); and that of the federal constitution. U.S. Const., amend. V. What is thereby protected from governmental invasion is, quite simply, the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will. Malloy v. Hogan, [378 U.S. 1, 8, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)]. Hence, a confession is involuntary and inadmissible unless it is the product of a rational intellect and a free will. Blackburn v. Alabama, 361 U.S. 199, 208 [80 S. Ct. 274, 4 L. Ed. 2d 242] (1960) .... Lego v. Twomey, [404 U.S. 477, 491, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972)] (Brennan, J., dissenting).” (Internal quotation marks omitted.) State v. Stanley, supra, 698.

“The value the framers of our state constitution placed on the right to remain silent is evident and important in determining the contours of the state constitutional protection. State v. Geisler, [222 Conn. 672, 685, 610 A.2d 1225 (1992)]. Zephaniah Swift, a leading jurist ... of 1818, wrote in his treatise on the law that ‘the confession must be perfectly voluntary: for if the least degree of influence appear to be exercised over the prisoner’s mind, to induce him to disclose his guilt, the whole will be rejected.’ (Emphasis added.) 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 408. Justice Swift also pointed out in his treatise on evidence that voluntary confessions ‘are deemed to be the most conclusive evidence . . . .’ Z. Swift, A Digest on the Law of Evidence (1810) p. 133. He also noted, however, that ‘[tjhere is, perhaps, no part of evidence in which there is so much misrepresentation and fabrication, as in testifying to the confession of a party.’ Id., p. 149.” State v. Stanley, supra, 698-99.

“Common law precedent also leads me to the conclusion that our state constitution requires a higher standard of proof of voluntariness of a confession. E. Peters, ‘Common Law Antecedents of Constitutional Law in Connecticut,’ 53 Alb. L. Rev. 259, 263 (1989). Blackstone, in formally shaping the contours of our common law, wrote: ‘[Ijndeed, even in cases of felony at the common law, [confessions] are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence.’ 4 W. Blackstone, Commentaries on the Laws of England (1807) p. 357.” State v. Stanley, supra, 699.

This analysis, which requires that the state prove the voluntariness of a confession beyond a reasonable doubt, has equal application when the confession was made by a person who is mentally ill. I believe that, under our state constitution, we should adopt the reasoning of Justice Brennan in his dissent in Connelly, as follows: “The absence of police wrongdoing should not, by itself, determine the voluntariness of a confession by a mentally ill person. The requirement that a confession be voluntary reflects a recognition of the importance of free will and of reliability in determining the admissibility of a confession, and thus demands an inquiry into the totality of the circumstances surrounding the confession.” Colorado v. Connelly, supra, 176. Justice Brennan explained the requirements of reliability as follows: “Minimum standards of due process should require that the trial court find substantial indicia of reliability, on the basis of evidence extrinsic to the confession itself, before admitting the confession of a mentally ill person into evidence. . . . To hold otherwise allows the State to imprison and possibly to execute a mentally ill defendant based solely upon an inherently unreliable confession.” Id., 183.

In sum, in order to establish that a confession by a mentally ill person was voluntary and is therefore admissible, our state constitution mandates that the state prove: (1) that the statements were made by the defendant of his own free will; and (2) that there was substantial indicia of reliability on the basis of evidence extrinsic to the confession. In view of the substantial evidence of the defendant’s mental illness in this case, I would hold that the statement was not voluntary and would remand for a new trial. In the alternative, I would remand this matter to the trial court for the purposes of hearing evidence and to make the necessary findings as to voluntariness. See State v. Pollitt, 199 Conn. 399, 416-17, 508 A.2d 1 (1987).

Speaking for eight of the nine justices of the United States Supreme Court, Chief Justice Warren stated the following: “Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion.” Blackburn v. Alabama, 361 U.S. 199, 207, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960).

Accordingly, I respectfully dissent.

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

       General Statutes § 21a-277 provides in relevant part: “penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned. . . .
      “(c) No person shall knowingly possess drug paraphernalia in a drug factory situation as defined by subdivision (20) of section 21a-240 for the unlawful mixing, compounding or otherwise preparing any controlled substance for purposes of violation of this chapter.”
      General Statutes § 21a-240 (20) provides: “(A) ‘Drug paraphernalia’ refers to equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing or concealing, or injecting, ingesting, inhaling or otherwise introducing into the human body, any controlled substance contrary to the provisions of this chapter including . . .
      “(B) ‘Factory’ means any place used for the manufacturing, mixing, compounding, refining, processing, packaging, distributing, storing, keeping, holding, administering or assembling illegal substances contrary to the provisions of this chapter, or any building, rooms or location which contains equipment or paraphernalia used for this purpose . . . .”

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

       These objects subsequently tested positive for the presence of cocaine.

       The police also conducted a warrantless search of the defendant’s home upon locating the victim’s body. The items seized pursuant to that search, a .12 gauge shotgun and three spent cartridges, were suppressed by the trial court upon motion of the defendant because their seizure did not fall into any recognized exception to the requirement that a search be conducted only with a warrant issued upon probable cause. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

       The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . The fifth amendment is applicable to state criminal prosecutions by virtue of the fourteenth amendment. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).
      Article first, § 8, of the Connecticut constitution provides in pertinent 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 defendant did not testify at the suppression hearing or at trial, so that there is no evidence regarding whether he subjectively believed that he was free to leave.

       The state also proposes that the public safety exception to the requirement of Miranda warnings applies to this case. New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). Because we affirm the trial court’s denial of the defendant’s motion on other grounds, we need not address this issue.

       The trial court initially denied the defendant’s motion to suppress the statements made to the police in the kitchen and on the way to the hospital because “the defendant at that time was not a suspect.” That ruling, without more, would not properly have resolved the defendant’s claim, however, because the defendant, though not a murder suspect, would have been entitled to Miranda warnings had he been subjected to custodial interrogation. The trial court, however, more properly addressed the defendant’s claim in its later ruling on the defendant’s renewed motion to suppress, stating “[the defendant] was not under arrest; so they don’t have to give rights unless the person is under arrest or suspected of a crime for which he’s going to be interrogated or arrested.” Although this ruling was cast in terms of arrest, rather than custody, it is sufficiently clear that the intent of the trial court was to focus on the appropriate factors. Moreover, absent a request for articulation, we read an ambiguous trial record to support, rather than undermine, the trial court’s judgment.

       Our review of the record indicates that the defendant’s federal constitutional claim that his statements were the product of police coercion was not raised by the defendant before the trial court. The sole focus of his suppression claim, rather, was the requirement oí Miranda warnings, and the sole issue litigated was whether the defendant had been subjected to custodial interrogation. At no time did the defendant argue that the statements were the result of police overreaching. The suppression rulings also reflect the trial court’s understanding that the Miranda claim was the only issue to be resolved. We review the defendant’s federal constitutional claim that his statements were the product of police coercion, however, but conclude that the defendant may not prevail under Golding because he has not established a violation of his federal constitutional rights. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       Although the factual findings of the trial court in this case specifically concerned custodial interrogation, not police coercion, we nonetheless conclude that the record is adequate for review of the defendant’s federal constitutional claim that his statements were involuntary because his claim focuses on coercive interrogation. In the particular circumstances of this case, therefore, the factual findings concerning custodial interrogation provide a sufficient basis for review of the unpreserved claim concerning police coercion.

       See footnote 6.

        In Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986), the court held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment,” and the admissibility of a defendant’s statement that is not the product of police overreaching is instead “a matter to be governed by the evidentiary laws of the forum.”

       Exclusive of the prayer for relief, the defendant’s motion to suppress statements reads in full: “The defendant moves pursuant to Section 821 of the Connecticut Practice Book, the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution, and Article One, Sections Seven and Eight of the Connecticut Constitution, to suppress any and all statements of the defendant, written or oral, made to any agents of the State and any testimony in relation to said statements.
      “In support thereof, the defendant alleges:
      “a. Said statements were not made knowingly and voluntarily.
      “b. Said statements were made without the assistance of counsel.
      “c. The procurement of said statements was in violation of the defendant’s rights as enumerated in the constitutional provisions herein cited,
      “d. Said statements were the product of an illegal detainment.”

       The following is the complete text of the closing remarks of defense counsel at the suppression hearing: “It’s clear that Mr. Medina was in custody at the time at the Boston Avenue address. There’s been testimony that he wasn’t free to leave when the police officers arrived, that his responses at the scene resulted from questioning of the police officer, what happened, that there was a complaint of the breach of the peace. Breach of the peace is a crime. There was an expectation of having to deal with that, there’s also an expectation that the person who was searched would have a weapon on him. There were two police officers present at the time and stayed with him at all times thereafter. The individual clearly was showing unusual behavior to the point where Officer Meizies believed that there was a psychological or mental problem requiring him to be taken to a hospital.
      “We would contend that the questioning initiated by Officer Meizies resulted in the statements indicated in the State’s disclosure; and that these statements should be suppressed because they were not made knowingly and voluntarily, that my client was not advised of his rights pursuant to the Constitution and Miranda; that the officer should have informed my client of his Miranda rights, that obviously the statements were made without assistance of counsel, that the statements were in violation of the defendant’s rights against self-incrimination and were the product of an illegal detainment.
      “We would ask your Honor to suppress the statements in the—that allegedly were made by my client to this officer.”

       Defense counsel stated as follows: “Just in response, Your Honor, I believe the Court should find that under the circumstances that the defendant would reasonably believe that he was in custody with the police officers present, eventually he was cuffed, put in the back of a police car, even after allegedly incriminating statements were made, he was never warned of his Miranda rights and I think that the statements should be suppressed, your Honor.”

       The complete statement of the court in connection with its ruling on the defendant’s motion to suppress statements is as follows: “Gentlemen, there are two motions that I have to act on. One is a motion to suppress statements—that motion is denied—in which statements I heard were in the sister’s house and in the police car and at that time, according to the testimony, and according to the facts that were presented to me, the defendant at that time was not a suspect. To my knowledge, there’s no confession here nor any statement concerning the facts signed by the defendant.”

       Defense counsel stated: “I would object to the use of the statement, your Honor, inasmuch as the circumstances that Mr. Medina found himself under were such that would suggest to a person that he was under arrest. That he was in an interrogatory situation. That he had been asked questions already. That he wasn’t warned”; and, “[T]he argument that I would make is that there was an arrest for breach of the peace, that there apparently were grounds for an arrest for breach of the peace, that there was a custodial—that my client was taken into custody, that he had been asked questions prior to being taken into custody, that he was never given his rights against efficient [sic] self-incrimination.”
      Defense counsel did not reargue his suppression motion with respect to the statements made by the defendant in the kitchen. He did, however, object to those statements as hearsay, and the trial court overruled that objection. That ruling is not a subject in this appeal.

       The court stated as follows: “[The police] were called down [to the Ramirez home] and ... he was not under arrest; so they don’t have to give rights unless the person is under arrest or suspected of a crime for which he’s going to be interrogated or arrested.”

       The defendant asserts that the reference to article first, § 8, of the Connecticut constitution in his motion to suppress statements, together with the police testimony concerning the defendant’s bizarre behavior at the time he made the statements, reasonably should have alerted the trial court of the defendant’s state constitutional claim that the statements were involuntary due to his mental condition. We disagree.
      Article first, § 8, is the very provision under which Miranda warnings have “come to have an independent significance under our state constitution.” State v. Ferrell, 191 Conn. 37, 40-41, 463 A.2d 573 (1983); State v. Falby, 187 Conn. 6, 11 and n.1, 444 A.2d 213 (1982). The simple invocation of that constitutional provision, therefore, was not sufficient to have placed the court on notice that the defendant was making a voluntariness claim other than his Miranda claim. Nor can we conclude that the testimony of the police officers concerning the defendant’s unusual behavior, elicited during the hearing on the defendant’s Miranda claim, somehow satisfied the defendant’s obligation to articulate his claims with clarity and specificity. As we have indicated, the record reflects that the defendant did not raise the state constitutional claim in the trial court and it was neither the responsibility not the province of the court to have done so.

       As we stated in State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989), “[t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.”

       As we also noted in State v. Stanley, 223 Conn. 674, 690, 613 A.2d 788 (1992), “deciding this issue on this record would be contrary to our usual and prudent practice of only deciding a constitutional claim when it is necessary to the determination of the case.”

       The defendant moved for acquittal both at the close of the state’s case and also at the close of evidence.

       General Statutes § 53a-12 (b) provides: “When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”
      General Statutes § 53a-13 provides in relevant part: “(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.
      “(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription.”

       As a preliminary matter, the defendant argues that appellate review of a claim of evidentiary insufficiency should be limited to the evidence on the record at the close of the state’s case. He advocates, therefore, that we abandon the so-called “waiver rule,” announced in State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984), which provides that if the defendant elects to introduce evidence after the trial court denies his motion for a judgment of acquittal, appellate review “encompasses the evidence in toto,” including evidence introduced by the defendant. See also State v. Hufford, 205 Conn. 386, 391 n.5, 533 A.2d 866 (1987); State v. Simino, 200 Conn. 113, 118, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464, 508 A.2d 16 (1986); but see State v. Williams, 202 Conn. 349, 351 n.3, 521 A.2d 150 (1987). We need not address this argument because, as we conclude hereinafter, the evidence introduced by the state was sufficient to prove the essential element of “intent to cause the death of another person.” General Statutes § 53a-54a.

       The defendant requested that the trial court instruct the jury on the lesser included offenses of manslaughter in the first degree, manslaughter in the second degree with a firearm, and criminally negligent homicide; see General Statutes §§ 53a-55 (a) (1) and (2), 53a-56a and 53a-58; and the court did so.

       Wallisa’s testimony is summarized in part III.

       The jury also heard testimony from Walter Young; see part III; that the defendant had steadily consumed cocaine and alcohol for several days prior to the fatal shooting on September 13,1986, and on that date as well. Although it is clear that the “defendant’s intoxication is relevant to the determination of his capacity to form a specific intent to commit a crime”; State v. Vinal, 198 Conn. 644, 658, 504 A.2d 1364 (1986); the jury reasonably could have determined that the defendant, even if intoxicated at the time of the shooting, was capable of forming the specific intent required to commit the crime of murder. See, e.g., State v. Traficonda, 223 Conn. 273, 279, 612 A.2d 45 (1992).

       August defined malingering as “the conscious manipulation of facts and details for self-serving ends. Basically lying about your condition so that people will believe [that you suffer from the feigned condition].”

       See State v. Perez, 182 Conn. 603, 609-10, 438 A.2d 1149 (1981). In Perez, the defendant claimed that he lacked the mental capacity to appreciate the wrongfulness of his conduct and to conform his conduct within the requirements of the law. The state, which at that time bore the burden of establishing the defendant’s sanity beyond a reasonable doubt, did not call any expert witnesses and relied instead upon its cross-examination of the defendant’s psychiatric expert and the documents introduced through that expert witness. We held that “[t]he trier was entitled ... to find that the state had met its burden of proving the defendant’s sanity beyond a reasonable doubt by introducing the medical records of his stay at Whiting. These records are fully probative even though they were introduced as part of the cross-examination of [the defense expert] rather than as part of the state’s case-in-chief.” Id.

       Article first, § 8, of the Connecticut constitution 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 . . . .”

       It is not clear whether the defendant also claims that the admission of the statements violated his state constitutional right not to “be compelled to give evidence against himself . . . .” Conn. Const., art. I, § 8.

       Even if the record were not adequate, I would still review the claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because the defendant asserts the violation of a fundamental constitutional right and the record can be augmented simply by a hearing before the trial judge. In State v. Ellis, 227 Conn. 902, 903, 630 A.2d 73 (1993), this court on its own, without a request from either party, remanded the case “to the trial court for an evidentiary hearing and written findings . . . .” Likewise, in State v. Pollitt, 199 Conn. 399, 416, 508 A.2d 1 (1986), this court remanded the case to the trial court for a hearing to determine whether Brady materials were withheld from the defendant. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Moreover, in State v. Patterson, 227 Conn. 448, 629 A.2d 1133 (1993), we remanded the case to the three judge court for an articulation of the facts upon which the court based its verdict. Indeed, a remand is particularly appropriate and fair in this case in view of the trial court’s decision on the motion to suppress, which indicated the court did not even reach the Miranda issues that were clearly raised. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); see Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981). At the conclusion of the evidentiary hearing on the motion to supress, the trial court stated: “To my knowledge, there’s no confession here nor any statement concerning the facts signed by the defendant.”

       We have not done well during the past year regarding mental illness issues in relationship to the criminal law. State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992) (refusal to review under state constitution whether state is required to prove beyond a reasonable doubt that the defendant’s confession was voluntary); State v. Raguseo, 225 Conn. 114, 622 A.2d 519 (1993) (defense of extreme emotional disturbance is determined from the viewpoint of a “reasonable” person in the defendant’s situation); State v. Joyner, 225 Conn. 450, 625 A.2d 791 (1993) (upholding a statute imposing on the defendant in a criminal prosecution the burden of establishing the defense of mental disease or defect).
      Today, we add to the list our refusal to reach the issue of whether under our state constitution we will admit incriminating statements made while the defendant was mentally ill.


source: Caselaw Access Project

author: Palmer, J.

license: Public Domain

text:
    County of Westchester, New York v. Town of Greenwich et al.
    (14710)
    Peters, C. J., Callahan, Borden, Katz and Palmer, Js.

      Argued April 27—
    decision released July 28, 1993

      Karl S. Copian, pro hac vice, with whom were John M. Callagy, pro hac vice, Elizabeth Tyler Grove, Stuart A. McKeever and, on the brief, Edward V. O’Hanlon, John E. Meerbergen, Joyce H. Young, Eve C. Gartner, pro hac vice, William Schwartz, pro hac vice, Chase Rogers and Rosalind Kelley, for the appellants (defendant town of Greenwich et al.).

      Marguerite R. Wiess, pro hac vice, with whom were Russell J. Tenenzapf pro hac vice, and, on the brief, Carol L. Van Scoyoc, pro hac vice, and Marilyn J. Slaatten, pro hac vice, for the appellee (plaintiff).

      Karen P. Blado, J. E. Murdock III, Leonard A. Ceruzzi, pro hac vice, and Janet V. Lanigan, pro hac vice, filed a brief for the National Business Aircraft Association et al. as amici curiae.

      William E. Hegarty and John B. Conway, pro hac vice, filed a brief as amici curiae.

      Richard Blumenthal, attorney general, and Cornelius F. Tuohy, assistant attorney general, filed a brief for the state of Connecticut as amicus curiae.

      John S. Yodice, Ronald D. Golden and Raymond C. Speciale, pro hac vice, filed a brief for the Aircraft Owners and Pilots Association as amicus curiae.
   Palmer, J.

The dispositive question in this case is whether the plaintiff, the county of Westchester of the state of New York, has acquired an air navigation (avigation) easement by prescription over certain Connecticut property under the laws of this state. This and other questions come to this court upon our grant of certification from the United States Court of Appeals for the Second Circuit pursuant to General Statutes § 51-199a and Practice Book § 4168. Westchester v. Greenwich, Docket No. 92-7698 (L) (2d Cir. January 6, 1993). We conclude that, in the circumstances of this case, the plaintiff has not acquired an avigation easement by prescription.

The record certified by the Second Circuit Court of Appeals provides the following facts. The plaintiff is a New York municipal corporation that owns and operates the Westchester County Airport (airport). The airport is located in New York adjacent to the border between New York and Connecticut. The airport currently utilizes two runways. Runway 11/29 (runway) is an alternative runway that is normally used only if prevailing crosswinds make use of the main runway too dangerous for all but the largest aircraft or during an emergency. The runway abuts New York’s border with Connecticut and its air approach zone is located almost entirely above Connecticut. The defendants are Connecticut residents who own the land below the approach zone. Trees on their land have, over time, grown into that airspace.

Buffers of airspace known as clear zones surround the actual flight paths used by aircraft during take-offs and landings. The Federal Aviation Administration requires that these clear zones be kept free of obstructions so that aircraft may navigate safely during takeoffs and landings. In 1989, due to penetration into the clear zone by certain of the defendants’ growing trees, the Federal Aviation Administration, in effect, reduced the usable length of the runway by approximately 1350 feet.

As a consequence, in February, 1990, the plaintiff initiated an action for injunctive and declaratory relief in the United States District Court for the Southern District of New York claiming, inter alia, that the defendants’ trees interfered with the use of the runway. Westchester v. Greenwich, 745 F. Sup. 951, 953 (S.D.N.Y. 1990). The plaintiff claimed in the District Court that “the use of the airspace for approximately forty years has given [it] a prescriptive easement in this flight zone”; id., 954; and sought an injunction authorizing it to top or cut down, as necessary, trees that had penetrated into that zone and had thereby interfered with the plaintiffs claimed easement.

Both the plaintiff and the defendants subsequently filed motions for summary judgment. Westchester v. Greenwich, 793 F. Sup. 1195 (S.D.N.Y. 1992). The District Court, acknowledging that the courts of this state had never determined whether avigation and clearance easements may be acquired by prescription, concluded nevertheless that the plaintiff had acquired such easements; id., 1205, 1207; and granted the plaintiff “a limited injunction to cut back, at its own expense, the trees occupying runway 11/29’s clear zones. . . .”Id., 1222. The court further held that “[t]o the extent, certain trees cannot be simply trimmed back without destroying them, the County shall be permitted to remove them completely but must compensate defendants for their loss.” Id. The defendants appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals subsequently certified the present questions to this court.

Prescriptive easements are recognized in this state. General Statutes § 47-37; Klar Crest Realty, Inc. v. Rajon Realty Corporation, 190 Conn. 163, 459 A.2d 1021 (1983). “To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised.” Whiting v. Gaylord, 66 Conn. 337, 344, 34 A. 85 (1895). In order to prove such adverse use, the party claiming to have acquired an easement by prescription must demonstrate that the use of the property has been “open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.” Andrzejczyk v. Advo System, Inc., 146 Conn. 428, 431, 151 A.2d 881 (1959); Klar Crest Realty, Inc. v. Rajon Realty Corporation, supra, 168; Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 515, 227 A.2d 83 (1967). There can be no claim of right unless the use is “unaccompanied by any recognition of [the right of the servient tenement] to stop such use. A use by express or implied permission or license cannot ripen into an easement by prescription.” Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22 (1936); Klar Crest Realty, Inc. v. Rajon Realty Corporation, supra. Connecticut law refrains from extinguishing or impairing property rights by prescription unless the party claiming to have acquired an easement by prescription has met each of these stringent conditions.

Although these principles are firmly rooted in our statutory and common law, the issue of whether an avigation easement may be acquired by prescription is one of first impression in this state. At least two other courts have held that an avigation easement may not be acquired by prescription. See Hinman v. Pacific Air Transport, 84 F.2d 755 (9th Cir. 1936), cert. denied, 300 U.S. 654, 57 S. Ct. 431, 81 L. Ed. 865 (1937); Sticklen v. Kittle, 168 W. Va. 147, 287 S.E.2d 148 (1981). Although we are not aware of any case in which a prescriptive avigation easement has been upheld, several jurisdictions have suggested that such an easement may be acquired under appropriate circumstances. See, e.g., Drennen v. Ventura, 38 Cal. App. 3d 84, 112 Cal. Rptr. 907 (1974); Shipp v. Louisville & Jefferson County Air Board, 431 S.W.2d 867 (Ky. 1968), cert. denied, 393 U.S. 1088, 89 S. Ct. 880, 21 L. Ed. 2d 782 (1969); Petersen v. Seattle, 94 Wash. 2d 479, 618 P.2d 67 (1980). Because we conclude that the plaintiff did not acquire a prescriptive avigation easement in the circumstances presented, we need not decide whether an avigation easement may ever be acquired by prescription in this state.

As we have stated, an easement may not be acquired by prescription unless the use of the property is “such as to give a right of action in favor of the party against whom [the adverse use] has been exercised.” Whiting v. Gaylord, supra, 344. For the plaintiff to have acquired a prescriptive avigation easement, therefore, the defendants must have had a right of action against the plaintiff during a fifteen year period when the plaintiffs use of the airspace over the defendants’ properties was “open, visible, continuous and uninterrupted.” The defendants, however, had no right of action against the plaintiff to stop the overflights because federal law prohibits landowners from obtaining injunctive relief against aircraft using the navigable airspace of the United States. United States v. New Haven, 367 F. Sup. 1338, 1341 (D. Conn. 1973), aff'd, 496 F.2d 452 (2d Cir.), cert. denied, 419 U.S. 958, 95 S. Ct. 218, 42 L. Ed. 2d 174 (1974); East Haven v. Eastern Airlines, Inc., 331 F. Sup. 16, 32-33 (D. Conn. 1971), aff'd, 470 F.2d 148 (2d Cir. 1972), cert. denied, 411 U.S. 965, 93 S. Ct. 2144, 36 L. Ed. 2d 685 (1973). In these circumstances, the defendants could not have reclaimed the exclusive use of the airspace above their properties and, therefore, the use of that airspace by the plaintiff can not be considered adverse.

The plaintiff argued, and the District Court agreed, that the right of the defendants to seek compensation from the plaintiff for aircraft flights “so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land”; United States v. Causby, 328 U.S. 256, 266, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946); Griggs v. Allegheny, 369 U.S. 84, 88-89, 82 S. Ct. 531, 7 L. Ed. 2d 585 (1962); constituted a right of action sufficient to satisfy the requirements of our law of prescription. We disagree. The certified record does not include any facts to suggest, and the District Court did not find, that the overflights had, in any manner, harmed the defendants’ trees or otherwise interfered with the use and enjoyment of the defendants’ properties. Nor did the defendants so claim. The defendants cannot have been required to have sought compensatory relief in order to have forestalled the plaintiff’s acquisition of a prescriptive avigation easement when the overflights had never interfered with the defendants’ use and enjoyment of their properties. Although we doubt that we would ever require a landowner to assert a constitutional takings claim in order to avoid the acquisition, of a prescriptive avigation easement, we are satisfied that these defendants were not obliged to do so.

The first certified question is answered: No, not in these circumstances; because the plaintiff has failed to show that its use was adverse as required by Connecticut law.

No costs will be taxed to either party.

In this opinion the other justices concurred.

       “An avigation easement is an easement of right to navigation in airspace over designated land.” Sticklen v. Kittle, 168 W. Va. 147, 155, 287 S.E.2d 148 (1981).

       The Second Circuit Court of Appeals certified the following questions to this court:
      “1. Can an avigation easement be acquired by prescription in the State of Connecticut?
      “2. If under Connecticut law a clearance easement is distinct from an avigation easement, can a clearance easement be acquired by prescription in the State of Connecticut?
      “3. Whether conceived as incident to an avigation easement or as constituting a separate clearance easement, would a clear zone include whatever air space is necessary to use the easement?” Westchester v. Greenwich, Docket No. 92-7698 (L) (2d Cir. January 6, 1993).

       General Statutes § 51-199a provides in relevant part: “(a) This section may be cited as the Uniform Certification of Questions of Law Act.
      “(b) The supreme court may answer questions of law certified to it by . . . a court of appeals of the United States . . . when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
      “(c) This section may be invoked by an order of [the court of appeals of the United States] upon the court’s own motion or upon the motion of any party to the cause.
      “(d) A certification order shall set forth: (1) The questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.”
      “[Practice Book] Sec. 4168. [certified questions from federal COURTS]-IN GENERAL
      “The supreme court may answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States or a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.”

       Our resolution of this issue makes it unnecessary for us to decide the second and third certified questions.

       See Practice Book § 4065 (c).

       The defendants originally included: the commissioner of transportation of the state of Connecticut; the town of Greenwich; Laurelton Nursing Home, Inc.; Greenwich King Street Associates II, L.P.; Mildred Tomonto; and the Convent of the Sacred Heart. See footnote 8.

       The District Court also noted “[the County’s] additional motivation behind the . . . present litigation. The County has planned to expand the airport by adding an additional runway and a new terminal. To be eligible for federal grants for airport development projects under the federal-aid Airport Program, the County must own, acquire, or agree to acquire control over, or a property interest in, runway clear zones that the Administrator considers adequate. ... An airport possesses a sufficient property interest if it has an easement . . . giving it enough control to rid the clear zone of all obstructions . . . and to prevent the creation of future obstructions; together with the right of entrance and exit for those purposes, to ensure the safe and unrestricted passage of aircraft in and over the area.” (Citations omitted; internal quotation marks omitted.) Westchester v. Greenwich, 793 P. Sup. 1195, 1203 n.4 (S.D.N.Y. 1992).

       The District Court subsequently dismissed the plaintiff’s state law cause of action against the commissioner of transportation concluding that the eleventh amendment to the United States constitution prohibited such a suit. Westchester v. Greenwich, 745 F. Sup. 951, 957 (S.D.N.Y. 1990).

       The District Court separated the plaintiffs claimed right to remove certain of the defendants’ trees from the clear zone into two distinct easements: “an avigation or flight easement giving [the plaintiff] a right to fly through the airspace above [the] defendants’ properties”; and “a clearance easement providing [the plaintiff] the right to cut down those trees obstructing the approach to runway 11/29 and its clear zones.” Westchester v. Greenwich, 793 F. Sup. 1195, 1204 (S.D.N.Y. 1992). The court explained that “[t]he function of the clearance easement . . . is:‘to increase the margin of safety for flying by assuring that the glide zone will be free from natural growth or man-made obstructions and the pilot’s vision unobscured above a designated altitude.’ ” Id., quoting Oakland v. Nutter, 13 Cal. App. 3d 752, 763 n.13, 92 Cal. Rptr. 347 (1970).

       “[General Statutes] Sec. 47-37. when acquired by adverse use. No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.”

       Section 1304 of title 49 of the United States Code provides in relevant part: “There is hereby recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States.” “Navigable airspace” is defined as “the minimum altitudes of flight prescribed by regulations . . . [including] airspace needed to insure safety in take-off and landing of aircraft.” 49 U.S.C. § 1301 (29); see United States v. Causby, 328 U.S. 256, 266, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946).

       This conclusion also follows from application to the facts of this case of the correlative proposition that the use of property by permission or license cannot ripen into an easement by prescription. That the use of the airspace is authorized by federal law rather than by the defendants does not alter our conclusion. See, e.g., Pro-Fac Cooperative, Inc. v. Baltimore & Ohio R. Co., 36 App. Div. 2d 441, 443-44, 321 N.Y.S.2d 208 (1971) (during period of time that use of property is authorized by state statute, such use cannot ripen into prescriptive easement).

       The Federal Aviation Administration defined approach path lies at its lowest point within thirty-one feet of the surface of Tomonto’s property and seventeen feet above the land of Greenwich King Street Associates II, L.P.

       In United States v. Causby, 328 U.S. 256, 264-65, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946), the United States Supreme Court held that a private landowner may have a takings claim under the fifth and fourteenth amendments to the United States constitution for damages caused by flights of aircraft over the property. The court recognized, however, that “[t]he airplane is part of the modem environment of life and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain”; id., 266; and flights over private land, therefore, “are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” Id.

       The town of Greenwich also argues that the plaintiff’s claim to have acquired a prescriptive avigation easement as to the town fails because an easement may not be acquired over a municipality's right-of-way. Our resolution of the matter on other grounds makes it unnecessary for us to consider this argument.