author: Katz, J.

text:
    State of Connecticut v. Carthaniel Baldwin
    (14496)
    Callahan, Borden, Berdon, Norcott and Katz, Js.

      Argued October 30, 1992
    decision released January 12, 1993

      Leonard M. Crone, with whom was Christopher Santarsiero, certified legal intern, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard Palombo, assistant state’s attorney, for the appellee (state).
   Katz, J.

The defendant, Carthaniel Baldwin, appeals from a judgment of conviction, after a jury trial, of two counts of sale of a narcotic substance, of one count of possession of a narcotic substance with the intent to sell, and of being a subsequent offender of possession of a narcotic substance with the intent to sell, all in violation of General Statutes § 21a-277 (a). He was thereafter sentenced to a term of imprisonment of thirty years on the subsequent offender count of possession of a narcotic substance with the intent to sell and seven years on each of the sale counts, to run consecutively, for a total effective sentence of forty-four years.

The defendant raises eight claims on appeal. In five of his claims, he asserts that the trial court improperly: (1) admitted evidence of his prior misconduct; (2) allowed expert testimony on an ultimate issue; (3) permitted testimony regarding destroyed evidence; (4) permitted thirty-one vials of cocaine to be admitted as evidence when only nine had been tested; and (5) imposed the sentence that it did. In two of the remaining three claims, the defendant asserts that the trial court deprived him of his right to a fair trial by: (1) neglecting to rule on his motion in limine regarding the use of his prior felony record for impeachment purposes; and (2) making inappropriate remarks during indoctrination of the jury. In his last claim, the defendant contends that there was insufficient evidence upon which to convict him of possession of a narcotic substance with the intent to sell. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 1, 1991, the Bridgeport police department and the Connecticut state police were jointly participating in the Save Our Streets drug program in Bridgeport. On that day, Trooper Thomas Bennett and Officer Michael Radozycki were conducting a surveillance of building 23 in Father Panik Village, which was known for heavy narcotics activity. The surveillance was set up at approximately 11 a.m. on the second floor of a vacant building across the street from building 23. The officers used high-powered binoculars to observe the courtyard area of building 23 and were particularly interested in a jog hallway known to be an area where narcotics were sold.

At approximately 11:45 a.m., they observed the defendant standing in the jog hallway. A blue Hyundai was driven into the courtyard. The driver, Thomas Brooks, got out of his car, spoke with Mark Wheeler, and both men approached the defendant. Brooks handed the defendant some money in exchange for several small items. Believing that a narcotics transaction had occurred, the officers radioed a description of Brooks and his vehicle to several unmarked police cars waiting in the area. Brooks drove the Hyundai out of the courtyard and headed west on Hamilton Avenue.

Seconds later, on the basis of the description transmitted over the police radio, Officer Carl Bergquist and Trooper Virgil Procaccini stopped the vehicle and arrested Brooks. Narcotics were not found on Brooks, but Barbara Stratton, who was riding in the front passenger seat, was found to be holding two plastic vials with green caps in her fist. The vials were subsequently tested by the state toxicology laboratory and found to contain crack cocaine.

The police continued their surveillance from the vacant building, and at approximately 12:25 p.m. they observed a blue Chevrolet driven by Sylvester Rogers enter the courtyard of building 23. Rogers got out of the vehicle and spoke with Wheeler. Both men then walked over to building 23, spoke with the defendant and handed him some money in exchange for several small items.

The surveillance officers again radioed the unmarked cars. In response to the radio transmission, Trooper Benjamin Chamble and Officer Robert Novia blocked a nearby street with their car. As the Rogers’ vehicle approached, Chamble got out of the police vehicle and signaled to Rogers to stop. Rogers instead accelerated and drove onto the sidewalk, forcing Chamble to jump out of the way. A short chase ensued. Chamble and Novia were directly behind Rogers in their vehicle when Novia saw him throw several objects out of the driver’s side window. Novia ultimately pulled the police vehicle alongside Rogers’ vehicle and forced him off the road.

While Chamble arrested Rogers, Novia ran back and attempted to retrieve the discarded items. Although a crowd had gathered and began “picking up the evidence” that was lying in the middle of the street, Novia succeeded in recovering one plastic vial with a green top. Toxicological testing revealed that the vial contained crack cocaine.

Meanwhile, a crowd had gathered in the doorway of building 23. The surveillance officers called in all the available police officers involved in the operation to arrest the defendant and Wheeler. Just before the police cars reached the courtyard, however, the crowd dispersed and the defendant entered building 23. The unmarked police vehicles left the area, but Bergquist, after conducting an unsuccessful search for the defendant in building 23, decided to remain and hide upstairs in building 23 to see if the defendant would reappear.

Approximately forty-five minutes later, Wheeler and the defendant were spotted in the doorway of building 23 by the surveillance officers. The defendant handed Wheeler some paper money in exchange for a plastic bag. The surveillance officers radioed the unmarked cars to return to the area and alerted Bergquist. The defendant and Wheeler entered the building and began running up the stairs toward the second floor, where they were spotted by Bergquist. During a short chase, Bergquist observed the defendant reach into his right jacket pocket and throw a clear plastic baggie into an open, abandoned apartment. The defendant and Wheeler then ran out the front door and were apprehended by the officers. The surveillance officers continued to observe the scene from inside the vacant building and verified that the proper persons were arrested. Bergquist then retrieved the baggie from just inside the apartment doorway. The baggie contained thirty-one plastic vials. Field testing of one vial revealed the presence of cocaine.

Of the thirty-one vials discarded by the defendant, Joel Milzoff, a state toxicologist, tested nine, all of which were found to contain crack cocaine. Milzoff testified that the nine vials had been selected at random and that it had been a laboratory policy decision, based on the need for timely reporting of the results, not to test the remaining vials. Through Milzoff, the state introduced, over the defendant’s objections, toxicological reports relating to the three vials connected to Rogers and Stratton. All three of those vials had tested positive for crack cocaine. The contents of the vials, however, had been destroyed by the division of consumer protection with permission of the police department because the underlying prosecutions of Rogers and Stratton had been resolved and it was mistakenly believed the retention of the cocaine was no longer necessary.

During a search of the defendant following his arrest, the police found $158 in his shoe and in his pants pocket. A search of Wheeler uncovered $705. No narcotics were found on Wheeler. At trial, Detective Nikoli Nikola testified that based on his experience and observation of narcotics users, a person possessing thirty-one vials would more likely be planning to sell them, rather than to use them himself.

Nikola also testified regarding prior misconduct of the defendant. Over the defendant’s objection, Nikola testified that on April 13, 1989, he had been working as a member of a surveillance team assigned to observe suspected narcotics activity at an intersection in Father Panik Village. On that date, he had noticed the defendant motioning to and running up to cars. Following a brief verbal exchange with the occupants of the vehicles, the defendant had returned to his original position. Nikola testified that based on his training and experience he believed the defendant had been selling narcotics. After twenty minutes, the defendant was apprehended and found to be in possession of eight or nine plastic vials containing a white powder that subsequently tested positive for cocaine.

The defendant did not testify, although he called several witnesses. Brooks, Stratton and Rogers denied purchasing any narcotics from the defendant. Wheeler testified that he had been “hanging around” the area to buy narcotics, but that he had not sold narcotics or helped the defendant sell narcotics. He explained that he had pleaded guilty to narcotics charges because he wanted to obtain treatment. Additional facts pertinent to the issues raised are set forth below.

I

In his first claim, the defendant contends that the trial court incorrectly allowed Nikola to testify that on April 13, 1989, he saw the defendant engage in what he believed was a sale of narcotics. We disagree.

The law regarding admission of prior criminal acts is clear. “As a general proposition, evidence of guilt of other crimes, because of its prejudicial nature, is inadmissible to prove that a defendant is guilty of the crimes with which he is charged. State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970); State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 (1960). Such evidence is admissible for other purposes, however, such as when it is particularly probative in showing such things as intent, an element in the crime, identity, malice, motive or a system of criminal activity, to name some exceptions to the rule. State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975). The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. State v. Moynahan, [164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973)]; State v. Holliday, supra, 173. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976); Thomas v. Thomas, 159 Conn. 477, 480, 271 A.2d 62 (1970); 1 Wharton, Criminal Evidence (13th Ed.) § 241.” State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980).

In this case, the state introduced Nikola’s testimony to prove intent. As we stated in State v. Amaral, 179 Conn. 239, 245, 425 A.2d 1293 (1979), evidence that the defendant had been a seller of narcotics in the past is relevant to “the nature of his possession of the drug at the time of the alleged offense.” Because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon. See State v. Tucker, 181 Conn. 406, 415, 435 A.2d 986 (1980). It is true that the misconduct evidence introduced was remarkably similar both in kind and location to the evidence before the jury in this trial. These factors, however, make the evidence that much more probative. United States v. Jones, 913 F.2d 1552, 1566 (11th Cir. 1990) (probative value of evidence heightened by similarity); United States v. Dunbar, 614 F.2d 39, 42 (5th Cir.), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980) (virtually identical evidence “highly relevant” on intent issue). The evidence regarding the April 13,1989 incident was introduced for a valid purpose within the guidelines of State v. Holliday, supra.

The defendant argues that “there was more than ample evidence from which to infer intent [and thus] there was no need to allow the prior bad act testimony of Detective Nikola.” This is a convenient escape hatch for purposes of this argument, but directly contradicts the sixth claim on appeal, wherein the defendant continues to argue that there was insufficient evidence of intent to sell upon which to convict him. Intent, or any other essential element of a crime, is always at issue unless directly and explicitly admitted before the trier of fact. State v. Geyer, 194 Conn. 1, 17, 480 A.2d 489 (1984) (Shea, J., concurring); State v. Johnson, 190 Conn. 541, 550, 461 A.2d 981 (1983). Because intent was not admitted in this case, the trial court could reasonably have determined that the evidence had significant probative value to prove intent.

Once evidence of prior bad acts by the defendant has been found relevant, its prejudicial impact must be evaluated. Our analysis begins with the general rule excluding “the evidence so as to avoid the danger of prejudice against the defendant which may result from the admission of such evidence.” (Internal quotation marks omitted.) State v. Onofrio, 179 Conn. 23, 28, 425 A.2d 560 (1979).

In admitting such evidence, the trial court’s discretion is limited. State v. Sierra, 213 Conn. 422, 435, 568 A.2d 448 (1990). “The trial court’s ‘discretion’ to admit other crimes evidence imports something more than leeway in decision-making. Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . When assessing the admissibility of ‘other crimes’ evidence, the application of a mechanical test determining that the proffered evidence fits within some class of exception to the rule of nonadmissibility, may obscure sight of the underlying policy of protecting the accused against unfair prejudice. That policy ought not to evaporate through the interstices of the classification. The problem is thus one of balancing the actual relevancy of the ‘other crimes’ evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Citations omitted; internal quotation marks omitted.) Id.

The record reflects that the trial court carefully balanced the probative value of the evidence against the prejudicial effect and determined that the prejudice did not outweigh its probative value. The evidence of prior criminal conduct was introduced only in connection with the third count and only on the issue of intent. Evidence is prejudicial “when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). In this case, the prior crimes evidence was introduced with specific limiting instructions that were reiterated by the court in its final charge. No conviction for this conduct was mentioned and the state made minimal reference to this evidence during its closing argument. We further note that this prior misconduct evidence did little to undermine the defendant’s posture at trial because it only became relevant once the jury determined that he had been in possession of the narcotics. Moreover, by the time the misconduct evidence was offered, the jury had already heard evidence about the two sales to Rogers, Brooks and Stratton and, therefore, it is not likely that the jury was swayed, shocked or inflamed any further by the evidence in question.

Accordingly, we conclude that the trial court did not abuse its discretion in determining that the probative value of the testimony outweighed any prejudicial effect it might have had on the jury.

II

In his second claim, the defendant asserts that the trial court’s refusal to rule timely on whether the state could impeach him with his prior conviction if he testified caused him to refrain from taking the stand, thereby working a substantial injustice and depriving him of a fair trial. We disagree.

The facts pertinent to this claim are as follows. Prior to trial, the defendant filed a motion in limine to exclude any reference to his prior felony convictions. At a hearing held on March 20,1991, the parties agreed that the only relevant conviction was a February, 1990 conviction for possession of a narcotic substance with the intent to sell. The trial court indicated that it would consider the issue and asked whether the defendant planned to testify. The defendant responded affirmatively. The assistant state’s attorney added that he would be satisfied to ask only about unnamed felonies.

On March 26, 1991, during argument regarding the defense’s motion to preclude the state’s use of the defendant’s prior misconduct in its case-in-chief, the trial court noted that it was still reserving its decision regarding the use of the 1990 conviction for impeachment purposes. The defendant indicated no objection to the court’s reservation of its decision but merely reiterated his understanding that it was “the one that you were going to reserve ruling on till later on.” Later that day, the trial court ruled that the evidence of the defendant’s prior bad acts was admissible for a limited purpose, but made no further mention of whether the conviction itself would be admissible. The defendant gave no indication that he either needed or wanted an immediate decision.

On March 27,1991, testimony was presented regarding the defendant’s prior misconduct. During the discussion of the limitations on the use of that testimony, held outside the presence of the jury, there again was no mention of whether the conviction itself would be admissible. The trial court never ruled on this issue and the defendant ultimately did not testify.

During the trial, the defendant never raised this claim of delay or refusal by the trial court to address the use of his record for impeachment purposes. Although on March 20, 1991, the defendant indicated that his present intention was to testify, at no time during the trial did he object to the court’s continued reservation of its decision regarding the state’s ability to use his prior conviction for purposes of impeachment. The record thereafter is silent with respect to that issue and the defendant’s decision not to testify.

By failing to seek a ruling, the defendant acquiesced in the trial court’s deferral and ultimate abstinence. To take that position at trial and to assert now a lack of a timely ruling for the first time on appeal amounts to trial by ambuscade of the trial judge. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982). Where the claimed error is first raised on appeal, and is not of constitutional dimension, this court will not review it. State v. Golding, 213 Conn. 233, 240-41, 567 A.2d 823 (1989). Although the defendant did file and argue a motion in limine, he allowed the trial to proceed without any objection to the lack of a ruling. The claim of error now asserted relates solely to this lack of a timely ruling and is therefore predicated on a matter never called to the attention of the trial court. Accordingly, we decline to review the defendant’s claim.

Ill

In his third issue on appeal, the defendant challenges the state’s introduction of testimony by Nikola, which he claims constituted expert opinion regarding an ultimate issue. Following Nikola’s testimony that the thirty-one vials discarded by the defendant were a “common form for packaging crack or cocaine” and that each one had a street value of $5, Nikola was asked whether it was unusual to find a person who is a narcotics user in possession of thirty-one vials of crack cocaine at a time. He responded: “Yes. There are— these are more likely to be held by someone that’s selling the product as opposed to someone that’s using them. They wouldn’t have—a user wouldn’t have reason to have this many.”

The defendant objected to Nikola’s testimony on the grounds that the evidence was cumulative of other testimony on the common methods of packaging narcotics, and further, that he did not have sufficient notice that Nikola would be called as a witness. These are not his claims on appeal. Before this court, the defendant tries to distinguish his case from State v. Vilalastra, 207 Conn. 35, 540 A.2d 42 (1988), and State v. Williams, 169 Conn. 322, 333-34, 363 A.2d 72 (1975), by arguing that, despite our earlier pronouncement, the testimony here did amount to an opinion on the ultimate issue and that such testimony violates General Statutes § 54-86L

When objecting to evidence, it is the obligation of counsel to state succinctly the basis of the objection. State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971). The purpose of this rule, as stated in Practice Book § 288, is to inform the trial court of “the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.” State v. Braman, 191 Conn. 670, 684, 469 A.2d 760 (1983). In addition, Practice Book § 4185 requires that appealable claims of error be distinctly raised at trial. State v. Weidenhof, 205 Conn. 262, 273, 533 A.2d 545 (1987). Our review of the trial court’s ruling on an objection is ordinarily limited to the grounds asserted by the party at trial. State v. Braman, supra, 684-85. We have consistently refused to consider evidentiary rulings not properly preserved. Where the issue raised for the first time on appeal is a matter of state evidentiary law, rather than of constitutional significance, this court will deny the defendant appellate review. State v. Forrest, 216 Conn. 139, 146, 578 A.2d 1066 (1990). As this court has stated before, a challenge to expert testimony is usually a matter of state evidentiary law. State v. Vilalastra, supra, 46-47. On the basis of the record below, we decline to review this claim. State v. Forrest, supra.

IV

The defendant next claims that the introduction into evidence of toxicological reports regarding narcotics that were unavailable deprived him of a fair trial in violation of the due process clause of the fourteenth amendment to the United States constitution. He argues that the state’s recklessness in destroying the narcotics constitutes bad faith and that the trial court was “simply unfair” in allowing testimony as to its nature. We disagree.

“[T]he requirements of due process are met in the trial of a person accused of crime if he has been given the benefit of a fair and impartial trial in accordance with the settled course of judicial proceedings in this state. . . . (Citation omitted.) State v. McIver, 201 Conn. 559, 565, 518 A.2d 1368 (1986). Whether the defendant was deprived of a fair trial by the admission of testimony concerning the lost [evidence] depends upon the reason for the unavailability of the evidence, the materiality of the evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, and the prejudice to the defendant caused by the unavailability of the evidence. State v. Boucino, 199 Conn. 207, 229, 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982).” (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 516, 610 A.2d 1113 (1992). The state argues that no bad faith existed, that the evidence was not material, that there was little likelihood of mistaken interpretation, and that its destruction did not cause prejudice to the defendant.

As to the issue of bad faith, the defendant argues that the state’s destruction of the narcotics was reckless. Bad faith, as used by this court in the numerous cases involving destroyed statements, means that the state deliberately destroyed the evidence with the intent to deprive the defense of information; that is, that the evidence was destroyed by, or at the direction of, a state agent who intended to thwart the defense. State v. Williamson, 212 Conn. 6, 15-16, 562 A.2d 470 (1989); State v. Santangelo, 205 Conn. 578, 587, 534 A.2d 1175 (1987). No such evidence was offered below. The state’s witnesses explained that the evidence had been mistakenly destroyed because the criminal prosecutions against Rogers and Stratton had concluded. The trial court did not question the integrity of this explanation. The issue of motivation was determined by the trier of fact and decisions about witness credibility are within the sole province of the trier of fact. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). The defendant did not challenge the verity of the excuse, but questioned whether the destruction of the evidence was good police practice. Even the state has to concede that it was not. Deliberate destruction of evidence with reckless disregard for the defendant’s rights, however, is not enough to establish bad faith. See State v. Williamson, supra, 16.

In the absence of bad faith, we apply a balancing test and first evaluate whether the missing evidence was material; that is, would the outcome of the trial have been different if the evidence had been made available? United States v. Bagley, 473 U.S. 667, 681-82, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id., 682. There is nothing to suggest that the test results were not accurate; nor was there any evidence of error in the state’s procedures. State v. Marra, supra, 517. The defendant never requested access to the narcotics for independent testing although they were not destroyed until two months after the testing at the state laboratory. State v. Harden, 175 Conn. 315, 327, 398 A.2d 1169 (1978).

There is no question that the state had to prove that the vials contained cocaine as an essential element of sale of a narcotic substance. Nor is there any question that a plea of not guilty puts every essential element of an offense in dispute. State v. Johnson, supra. In evaluating the issue of materiality, however, the theory of defense on which the case was tried does become important. The defendant argued that he did not sell any narcotics, that Rogers and Brooks did not buy any vials of narcotics from him, and that the narcotics that had been confiscated came from another source. Therefore, there is no indication that had he been able to test the vials, his defense would have been any different.

Finally, the issue of the likelihood of misinterpretation must be weighed. Because the defendant cross-examined Milzoff regarding the testing procedures and the circumstances of the destruction of the evidence, the likelihood of misinterpretation is low. See State v. Marra, supra. Therefore, we conclude that the state’s destruction of the three vials of narcotics seized from the defendant’s customers did not deprive the defendant of his right to due process.

Y

In the fifth issue raised on appeal, the defendant contends that the trial court incorrectly admitted all thirty-one vials into evidence when only nine had been tested and found to contain cocaine. At trial, the defendant objected to the state’s introduction of all thirty-one vials, claiming that the state had not demonstrated a sufficient chain of custody. That objection was overruled. Milzoff then testified that the nine vials tested were found to have contained crack cocaine. The state asked whether he had an opinion regarding the contents of the remaining vials, but the defendant again objected and that objection was sustained. Thereafter on cross-examination, Milzoff reiterated that only nine vials had been tested; he believed, however, that this was an excellent sampling and that all the vials probably contained cocaine, although he had “no chemical analysis to verify that statement.”

On appeal, the defendant raises for the first time his theory that the trial court incorrectly admitted into evidence these “numerous vials of untested, suspected narcotics.” This issue was not raised below. Once again, neither the state nor the trial court were apprised of this ground of objection. See Practice Book § 288. Nor does the defendant assert any constitutional violations that would warrant review under State v. Golding, supra, 239-40. Therefore, this evidentiary claim does not merit review. Practice Book § 4185.

VI

The defendant next contends that there was insufficient evidence of the element of intent required to convict the defendant of possession with the intent to sell. The defendant makes two points, neither of which address the issue of intent: (1) that Brooks, Rogers, Stratton and Wheeler all exonerated the defendant; and (2) that the police officers’ testimony was inconsistent as to the defendant’s age and clothing. Neither of these advances the defendant’s cause. The jury was free to reject the testimony of the defense witnesses and this court cannot retry the case or pass on their credibility. See State v. Crump, 201 Conn. 489, 491, 518 A.2d 378 (1986), and cases cited therein. It is not our function to determine if the jury was correct in its evaluation of the credibility of these various witnesses. State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989). The issue is whether there was sufficient evidence before the jury from which it could reasonably infer intent. We conclude that there was.

This court’s role in evaluating the sufficiency of the evidence in a jury trial is well established. “We first construe the evidence presented at trial in a light most favorable to sustaining the verdict, and then determine whether the jury could reasonably have found upon the facts established and the inferences reasonably drawn therefrom, that a cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .” (Citations omitted; internal quotation marks omitted.) State v. Hahn, 207 Conn. 555, 560, 541 A.2d 499 (1988). “ ‘ “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited.’ State v. Rollinson, [203 Conn. 641, 666, 526 A.2d 1283 (1987)].” State v. Carpenter, 214 Conn. 77, 79, 570 A.2d 203 (1990). So far as probative force is concerned, there is no legal distinction between circumstantial and direct evidence. State v. Gaynor, 182 Conn. 501, 506 n.3, 438 A.2d 749 (1980).

“Intent may be, and usually is, inferred from conduct.” State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 (1972). “The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980).” State v. Martin, 195 Conn. 166, 170, 487 A.2d 177 (1985). The evidence from which the jury could reasonably infer intent to sell the crack cocaine includes the defendant’s behavior prior to the chase by the police, in particular, the exchange of money and small items between the defendant and the retrieval of narcotics from Stratton, the passenger in Brooks’ vehicle; the exchange of money and several small items between the defendant and Rogers; the retrieval of narcotics that Rogers had thrown from his car during a chase by police; the amount of cocaine and cash the defendant possessed; the manner in which the cocaine was packaged; and the defendant’s prior misconduct. “The intent of the actor is a question for the trier of fact, and the conclusion drawn by the trier in this regard should stand unless it is an unreasonable one.” State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977). In the present case, the jury’s determination that the defendant possessed the cocaine with the intent to sell was a reasonable conclusion, perfectly consistent with and corroborated by its verdicts of guilty on the two counts of sale of a narcotic substance.

VII

The defendant’s seventh claim pertains to an unfortunate statement made in the trial court’s introductory remarks to the jury array prior to commencement of voir dire. The defendant claims that the statement deprived him of his right to a fair trial. No objection was raised in the trial court to the remarks the defendant now claims denied him a fair trial. While we deplore such comment and caution strongly against it, the record is insufficient for this court to be able to ascertain whether the remarks prejudiced the defendant. In order to prevail on a claim of constitutional error not preserved at trial, the defendant must provide an adequate record to review the alleged claim of error. State v. Stanley, 223 Conn. 674, 688-89, 613 A.2d 788 (1992); State v. Golding, supra, 239-40. “It is the appellant’s responsibility to provide this court with a record adequate to review his claim of error. State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989); State v. Crumpton, 202 Conn. 224, 231, 520 A.2d 226 (1987). This the defendant has failed to do.” State v. Carpenter, supra, 86.

In the trial court, the defendant failed to indicate whether any of the prospective jurors who heard the court’s statement were ultimately selected to sit as a juror on his case. Consequently, because there is no basis upon which we can evaluate and determine prejudice, the defendant cannot prevail on this claim. State v. Golding, supra.

VIII

In his final claim, the defendant asks this court to review his sentence. The trial court sentenced the defendant to a term of imprisonment of seven years on each of the two sale counts and to a term of imprisonment of thirty years on the charge of possession with the intent to sell as a subsequent offender, all sentences to run consecutively for a total effective sentence of forty-four years. The defendant now claims that his sentence, which was within the statutory limits of § 21a-277 (a), was excessive and “inappropriate.”

It is well established that when the sentence imposed is within the limits fixed by statute for the offenses charged, an appellate claim that the sentence is excessive is nothing more than an appeal for clemency and a request that this court exercise discretionary authority it does not possess. State v. Nardini, 187 Conn. 109, 127, 445 A.2d 304 (1982). In State v. Rose, 168 Conn. 623, 638, 362 A.2d 813 (1975), we stated that we have no discretionary power to modify or overturn a sentence that was within the limits fixed by statute for the offense charged, except where a trial court appears to have abused its discretion. See also State v. LaPorta, 140 Conn. 610, 612, 102 A.2d 885 (1954); State v. Van Allen, 140 Conn. 39, 44, 97 A.2d 890 (1953); State v. Horton, 132 Conn. 276, 278, 43 A.2d 744 (1945); State v. Chuchelow, 128 Conn. 323, 324, 22 A.2d 780 (1941). Abuse of discretion, however, means more than that the defendant’s sentence was too severe. See State v. Horton, supra, and cases cited therein. Where the trial court has properly considered all of the offenses proved and imposed a sentence within the applicable statutory limitations, there is no abuse of discretion. State v. LaPorta, supra. A petition for sentence review, which is pending, is the appropriate vehicle by which to have this claim evaluated. See General Statutes § 51-195 et seq.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 21a-277. (Formerly Sec. 19-480). 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 marihuana, 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.”

       Although both these cases were decided pursuant to rule 404 (b) of the Federal Rules of Evidence, that rule is similar to Connecticut case law on the admission of other crimes evidence. It provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404 (b). As is readily apparent, Connecticut case law parallels the exceptions found above.

       Immediately before Detective Nikoli Nikola testified as to the defendant’s prior misconduct, the trial court stated the following to the jury: “You’ll recall in the beginning of the case I mentioned to you that this defendant was charged with three counts, and that each count is a separate crime, and each count has separate elements to it, which must be proved by the prosecutor.
      “Well, the testimony that you are about to hear is relevant, and can only be used by you as evidence to one of the elements of the third count, which is the count which is possession with intent to sell. And the element of the part that it’s—that’s relevant to it, is on the issue of intent.
      “So, I’m instructing you to make sure that you understand that the evidence that you are about to hear from this witness is to be used only as evidence in the third count of the information, and only on the issue of intent. And this evidence should not be considered by you in any way, shape or form as to the first two counts which allege sale.”
      In its final charge to the jury, the trial court instructed as follows: “Now, you heard testimony from Detective Nikola regarding an incident he observed involving the defendant, Mr. Baldwin, in April of 1989. You may consider that testimony only as to the third count of the information, possession of narcotics with the intent to sell. As to that count, you may consider Detective Nikola’s testimony only as to the element of intent of the vials which he possessed.
      “I wrote something else myself. The testimony of Detective Nikola was, as you will recall, concerning his viewing of the defendant making what in his opinion [were] sales of narcotics on another occasion. I instructed you at that time that such evidence was being offered solely on the third count, which is the possession with intent to sell. On the element in that count of intent you should not view the evidence in any other manner except as I have instructed you.”
      The defendant did not object to either charge. When he first learned of the state’s intent to offer this prior misconduct evidence, however, he objected and claimed that no limiting instruction would remove the prejudice.

       The state argued in relevant part: “You also heard testimony after all the six officers testified from a Detective Nikola of the narcotics and vice unit. And he testified as to something which occurred in April of 1989. And the judge is going to give you further instructions based upon that detective’s testimony. So, I’m just going to leave it at that and let the judge instruct you on that detective’s testimony.”

       No claim for review of the issue as one of constitutional dimension has ever been made.

       In State v. Vilalastra, 207 Conn. 35, 540 A.2d 42 (1988), and State v. Williams, 169 Conn. 322, 333-34, 363 A.2d 72 (1975), we concluded that law enforcement personnel, testifying as experts, may properly give an opinion concerning “the quantity of narcotics which a dealer might possess or the manner in which a drug might be transported by a dealer.” (Internal quotation marks omitted.) Stats v. Vilalastra, supra, 42.

       General Statutes § 54-86Í provides: “testimony of expert witness RE MENTAL STATE OR CONDITION OF DEFENDANT. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.”

       Practice Book § 288 provides: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”

       Practice Book § 4185 provides: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       The fourteenth amendment to the United States constitution provides in pertinent part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       The defendant does not claim that the lost evidence was either exculpatory or even potentially exculpatory. Therefore, he is not claiming a violation of, nor is he entitled to the applicability of, the rule of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (prosecutorial suppression of exculpatory evidence), or the rule of Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) (failure to preserve potentially exculpatory evidence). See State v. Cerilli, 222 Conn. 556, 578 n.15, 610 A.2d 1130 (1992).

       The defendant uses the word “recklessness,” as opposed to negligence, but does not develop the record with facts that support it. We do not know what efforts the police made or failed to make to leam about the defendant’s case or its progress before destroying the evidence. The police intended to destroy the evidence, but there has been no claim or evidence to support anything beyond negligent behavior. For the purposes of this claim, however, we accept the defendant’s label.

       This court does indeed recognize the independent responsibility of the state to preserve this evidence and to make it available upon request. Reference to the lack of such request by the defendant pertains only to the issue of materiality and whether the defendant deemed it significant, and does not suggest an excuse for the state’s noncompliance.

       Had the defendant been able to test the vials and had the results by a second expert been different, the defendant could have presented two alternate theories of defense and the contradicting results would have gone to the weight accorded Milzoff s testimony. State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983). There is nothing to suggest, however, based upon a review of the cross-examination of Milzoff regarding the testing procedures, that this scenario is anything more than speculative.

       Although the admissibility of evidence is normally a matter of state law, where it results in a denial of fundamental fairness or the denial of a specific constitutional right, review is appropriate. No such claim here exists. See State v. Smith, 209 Conn. 423, 426, 551 A.2d 742 (1988).

       In connection with this issue, the defendant alluded to other arguments “regarding the claims of error surrounding the element of intent,” and states that these arguments will not be repeated. This court can only assume that he is referring to his claim that the trial court erred in allowing into evidence testimony of prior misconduct, which we have said was more probative of his state of mind than it was prejudicial. If he is also referring to Nikola’s testimony that thirty-one vials of crack cocaine would more likely be held by an individual for purposes of sale rather than for personal use, as stated earlier, this testimony was not challenged as expert opinion. Moreover, there is nothing to distinguish Nikola’s testimony from that approved in State v. Vilalastra, 207 Conn. 35, 540 A.2d 42 (1988), and State v. Williams, 169 Conn. 322, 363 A.2d 72 (1975).

       The defendant conceded in connection with his first argument that “there was more than ample evidence from which to infer intent . . . See part I of this opinion.

       The trial court discussed some general principles of law in relation to criminal cases, including, but not limited to the presumption of innocence and burden of proof. As part of its introduction, the court made the following statement: “I’m sure [the previous judge] stressed the point of one day, one trial. So, most people think they go to jury duty for one day. That we can get rid of business in one day. We’re not that fortunate. We don’t have a totalitarian system that can try you and fry you in the same day as somebody once said. It takes time. It takes time to pick a jury. It takes time to present evidence. It takes time to produce evidence on behalf of the defendant if he wishes to do so.” (Emphasis added.)

       “[General Statutes] Sec. 51-195. application for review of sentence. Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. A form for making such application shall accompany the notice. The clerk shall forthwith transmit such application to the review division and shall notify the judge who imposed the sentence. Such judge may transmit to the review division a statement of his reasons for imposing the sentence, and shall transmit such a statement within seven days if requested to do so by the review division. The filing of an application for review shall not stay the execution of the sentence.”


source: Caselaw Access Project

author: Callahan, J. Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Robert L. Beverly
    (14337)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      (One justice dissenting)

    Argued September 29, 1992
    decision released January 12, 1993

      CarlD. Eisenman, public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, David Shepack, assistant state’s attorney, and John McKinney, law student intern, for the appellee (state).
   Callahan, J.

The defendant, Robert L. Beverly, a resident of Pittsfield, Massachusetts, was charged with and convicted by a jury of murder in violation of General Statutes (Rev. to 1991) § bSa-Ma,. The crime allegedly occurred in North Canaan, Connecticut. The defendant was sentenced by the trial court to a term of imprisonment of fifty-five years. He appeals to this court pursuant to General Statutes § 51-199 (b) (3).

The victim, Marilyn Bigelow, had also been a resident of Pittsfield, Massachusetts. Her severely decomposed body was found hidden in heavy brush in a limestone quarry in North Canaan, on July 11, 1990. That date was approximately three months after the victim had last been seen alive, with the defendant, in his automobile at 2:34 a.m. on April 14,1990, on Route 7 in Lee, Massachusetts. Earlier that evening, the defendant and the victim had been in each other’s company during a night of socializing, bar hopping, and cocaine use in Pittsfield. The victim never returned home and was never again seen by her family or friends subsequent to April 14, 1990.

The cause of the victim’s death was certified by the state medical examiner, Edward M. McDonough, to be multiple blunt traumatic injuries of the head, neck and torso. The victim’s death was certified by the medical examiner as a homicide. Because of the advanced state of decomposition of the victim’s body, McDonough was unable to determine the time of death or whether all of the massive trauma the victim had suffered had been inflicted antemortem or postmortem. Henry C. Lee, a forensic expert called by the state, testified on cross-examination that he was unable to say positively from the photographic evidence submitted to him whether the victim had been killed at the place where her body was found.

I

The defendant initially claims that the geographic location of the crime is a component of the corpus delicti that the state must prove. He argues that, because both the victim and the defendant had significant ties to Massachusetts and because the victim had last been seen alive in Massachusetts, months before her body was found in Connecticut, the corpus delicti of the charged crime of murder had not been established to be in Connecticut. He contends, therefore, that the judgment of conviction rendered by the trial court should be reversed and a judgment of acquittal rendered. We are not persuaded.

In State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964), we adopted Professor Wigmore’s definition of corpus delicti that limits the required showing of the corpus delicti of a crime to the specific kind of loss or injury embraced in the crime charged. 7 J. Wigmore, Evidence (3d Ed. 1940) § 2072, pp. 401, 403. “[I]n a homicide case, the corpus delicti is the fact of the death, whether or not feloniously caused, of the person whom the accused is charged with having killed or murdered.” State v. Tillman, supra. There is nothing in this definition that suggests that proof of the site where the victim was killed is a necessary component of the corpus delicti of a homicide.

The corpus delicti rule is a rule of evidence intended to protect an accused from conviction as a result of a baseless confession when no crime has in fact been committed. State v. Arnold, 201 Conn. 276, 287, 514 A.2d 330 (1986); State v. DelVecchio, 191 Conn. 412, 427, 464 A.2d 813 (1983); State v. Halstead, 414 A.2d 1138, 1143 (R.I.1980). The purpose of the rule would not be furthered by a requirement that the place of death be a necessary adjunct.

Here, it is undisputed that the dead body found in North Canaan was that of the alleged victim. The necessary factors to constitute the corpus delicti in accordance with the standard enunciated in Tillman were therefore present. The defendant’s first claim is without merit.

II

The defendant next claims that the trial court had no territorial jurisdiction to adjudicate the charge against him because the state failed to prove beyond a reasonable doubt that the victim had been murdered in Connecticut. The state acknowledges that the trial court would not have had jurisdiction of the crime without proof by the state that the victim had been killed within Connecticut’s territorial boundaries. See State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931); General Statutes § 51-la (b); A. Spinella, Connecticut Criminal Procedure (1985) § 3A, pp. 18-19.

At the conclusion of the state’s case, the defendant moved for a judgment of acquittal, claiming that the trial court lacked territorial jurisdiction. The court, at that time, ruled that the evidence in the record supported its jurisdiction over the offense. Later, following his conviction, the defendant filed a motion in arrest of judgment, again arguing that the court lacked jurisdiction because there was insufficient evidence that the crime with which he had been charged had occurred in Connecticut. He maintained that it was the state’s burden to prove the facts underlying the court’s territorial jurisdiction beyond a reasonable doubt and that the state had failed to do so. The trial court agreed with the defendant that the state had the burden of proving the court’s jurisdiction beyond a reasonable doubt. It concluded, however, that the state had satisfied its burden and denied the defendant’s motions. We conclude that there was ample evidence to support the trial court’s rulings and its determination that it had territorial jurisdiction to try the crime charged.

There was evidence from which the court could reasonably have found the following facts. The victim was alive and a passenger in the defendant’s car when it was stopped for speeding by a local police officer on Route 7 in Lee, Massachusetts, at 2:34 a.m. on April 14, 1990. The officer who stopped the defendant’s automobile and a backup officer identified the victim as being the passenger in the defendant’s automobile. After receiving a verbal warning from the officer, the defendant proceeded to drive his automobile south on Route 7 toward the Connecticut border. Approximately one hour later, the defendant stopped at the home of acquaintances of his, Fred White and Margaret Macia, in Salisbury, Connecticut. While White and the defendant talked in the kitchen of the residence, Macia observed the silhouette of a person seated in the front passenger seat of the defendant’s automobile that was parked in the road in front of the house. The White/Maeia house in Salisbury is only seven miles and less than thirteen minutes driving time away from the limestone quarry in North Canaan where the victim’s body was found.

The quarry road was covered with limestone and limestone dust was regularly dumped there. Limestone dust and pebbles were found embedded in the grooves in the soles of the victim’s sneakers, indicating that the victim had been walking upright when the material became embedded. No such accumulation of material could have occurred had the victim been carried or dragged along the quarry road. No trace of limestone residue was found on the passenger side floor mat of the defendant’s vehicle to indicate that the victim had returned to the car after walking on the quarry road. Although the victim’s wounds would have caused considerable bleeding, there was no evidence of bloodstains of the victim’s blood type detected in the defendant’s vehicle to indicate that she had been transported subsequent to the infliction of her injuries.

Moreover, there was evidence that in early May, 1990, prior to the victim’s body having been found, the defendant told a longtime friend, Timothy Dozier, while visiting Dozier in Waterbury, that he had killed a girl and needed a place to hide from the police. He said that he had buried the victim alive behind his mother’s house in Canaan. There was also testimony that the defendant’s family had once lived in North Canaan within walking distance of the quarry where the victim’s body was found. The defendant’s argument that there was insufficient evidence to establish the trial court’s territorial jurisdiction is unavailing.

Ill

The defendant’s final claim is that the jury, not the trial court, should have made the decision concerning the sufficiency of the facts proven to establish territorial jurisdiction in Connecticut. Accordingly, the defendant, prior to closing arguments, requested that the trial court instruct the jury that it must, in order to convict him, find that the state had proven beyond a reasonable doubt that the victim had been murdered in Connecticut. The trial court refused to give the requested instruction, reasoning that the site where the victim’s death occurred was not an element of the crime. The defendant excepted to the court’s ruling.

The duty of the trial court required that it “submit to the jury all controverted questions of fact relating to an element making up [the] crime.” State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 (1975). Generally, the elements of a crime are spelled out in the statute defining the crime, or in the absence of specific statutory guidance are provided by the common law. 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 1.8 (b) n.13. Section 53a-54a, in setting forth the elements of murder, does not state that the physical location of the murder is part of the offense.

Consequently, we have held that the location of the site of the victim’s death is not an element of the crime of murder. State v. Weinberg, 215 Conn. 231, 252, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). Although some authorities have held otherwise; see, e.g., 1 W. LaFave & A. Scott, supra, § 2.7 (b), and cases cited therein; see also, e.g., McKinney v. State, 553 N.E.2d 860, 863 (Ind. App. 1990); Model Penal Code § 1.13 (9) (e); we agree with the decisions holding that the question of where a murder occurred generally is not an element of the offense, but is merely an issue of territorial jurisdiction to be decided by the court. Mitchell v. United States, 569 A.2d 177, 180 (D.C. App. 1990); Mundine v. United States, 431 A.2d 16, 18 (D.C. App. 1981); Adair v. United States, 391 A.2d 288, 290 (D.C. App. 1978); State v. Reldan, 185 N.J. Super. 494, 506, 449 A.2d 1317 (1982) (whether murders occurred in New York or New Jersey); State v. Aguilar, 85 Or. App. 410, 736 P.2d 620, 621 (1987); State v. Halstead, supra, 1144 (whether murder occurred in Rhode Island or New Jersey). A defendant’s constitutional right to a jury does not extend beyond the factual issues that are relevant to the ultimate question of guilt or innocence under the relevant statute. See, e.g., Hildwin v. Florida, 490 U.S. 638, 109 S. Ct. 2055, 104 L. Ed. 2d 728 (1989); State v. Valencia, 121 Ariz. 191, 589 P.2d 434 (1979); People ex rel. Faulk v. District Court, 673 P.2d 998 (Colo. 1983).

This conclusion is consistent with the principle that “[i]t is within the power of every court to determine whether or not it has jurisdiction of a proceeding brought before it.” Long v. Zoning Commission, 133 Conn. 248, 249, 50 A.2d 172 (1946). It is therefore “sufficient to prove jurisdiction if the evidence, as viewed by the trial justice, indicates that the crime occurred within the territorial jurisdiction of the court.” (Emphasis added.) State v. Halstead, supra, 1144. In the instant case, the evidence, reasonably construed, was sufficient to establish territorial jurisdiction in Connecticut.

The judgment is affirmed.

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

Berdon, J.,

dissenting. I disagree with parts II and III of the majority opiñion because I believe that the territorial jurisdiction issue should have been submitted to the jury. When the state’s territorial jurisdiction is disputed and depends upon a determination of facts, it is within the province of the trier of fact—the jury in this case—to resolve the issue. People v. Cullen, 695 P.2d 750 (Colo. App. 1984); Lane v. State, 388 So. 2d 1022 (Fla. 1980); State v. Darroch, 305 N.C. 196, 212-13, 287 S.E.2d 856 (1982), cert. denied, 457 U.S. 1138, 102 S. Ct. 2969, 73 L. Ed. 2d 1356 (1982); Commonwealth v. Bighum, 452 Pa. 554, 558, 307 A.2d 255 (1973); 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 2.7 (b), p. 163. The locus delicti, under these circumstances, becomes an element of the crime that the state is required to prove beyond a reasonable doubt. Indeed, this court in State v. Volpe, 113 Conn. 288, 155 A. 223 (1931), assumed that jurisdiction was an issue for the trier of fact when it reviewed the trial court’s instructions to the jury on the issue of jurisdiction, but reversed on other grounds.

The majority’s reliance on State v. Weinberg, 215 Conn. 231, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990), is misplaced. The issue in Weinberg was whether the state, having alleged in the information that the crime had been committed “at or near the town of Southbury,” was required to prove the specific location within Connecticut of the crime alleged in the information. The defendant in Weinberg never claimed that the crime occurred in any state other than Connecticut so as to deprive the Connecticut court of jurisdiction. Because the court did not consider the issue of territorial jurisdiction, but merely whether the state was required to prove that the murder occurred in the town alleged in the information, Weinberg is inapposite to the facts of this case.

The majority also relies on Adair v. United States, 391 A.2d 288 (D.C. App. 1978), and its progeny to support its conclusion that the issue of where the murder occurred was a question for the trial court. In Adair, the defendant claimed that the trial court erred by refusing to instruct the jury that if it found that the crimes had occurred in Maryland, it was required to find the defendant not guilty. The court rejected the defendant’s claim because it was conceded that part of the defendant’s criminal conduct was committed in the District of Columbia, thereby presenting a question of law as to whether the District of Columbia had jurisdiction on that basis. Only in dicta did the court note that “the question of jurisdiction is not one of fact for the jury.” Id., 290. Moreover, the dicta in Adair relies solely on United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973). Berrigan did not consider the territorial jurisdiction issue, but was concerned with the issue of discriminatory prosecution. Having undermined the foundation for Adair, the remaining cases relied upon by the majority lose their authority as well.

The defendant in this case raised in a timely fashion substantial factual questions regarding the location of the crime and the territorial jurisdiction of the court. The issue should have been submitted to the jury.

Accordingly, I dissent.

       General Statutes (Rev. to 1991) § 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 or of a third person or causes a suicide by force, duress or deception . . . .”

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

       At trial, the defendant objected to the admission of certain incriminating evidence on the ground that the state had failed to establish that the corpus delicti existed in Connecticut. He does not appear to pursue these particular claims on appeal, but rather seems to contend that because the state failed to demonstrate the existence of the corpus delicti in Connecticut he should be acquitted for the lack of sufficient properly admitted evidence.

       General Statutes § 51-la provides in pertinent part: “(b) The territorial jurisdiction of the supreme court, the appellate court, and the superior court shall be coextensive with the boundaries of the state.”

       The state does not agree with the trial court that the necessary quantum of proof was “beyond a reasonable doubt.” It contends that its burden was to prove territorial jurisdiction only by a preponderance of the evidence. Because the trial court applied the higher standard in this case, it is not necessary that we reach this issue.

       The defendant had once lived in the area of the quarry, which was owned by the Pfizer Corporation, by whom the defendant had previously been employed.

       According to 1W. LaFave & A. Scott, Substantive Criminal Law (1986) § 1.8 (b) n.13, the elements of a crime are “its requisite (a) conduct (act or omission to act) and (b) mental fault (except for strict liability crimes)— plus, often, (c) specified attendant circumstance, and, sometimes, (d) a specified result of the conduct.”

       If the view of the dissent were to prevail, it would require that a defendant be put through the expense, anxiety and uncertainty of a trial to resolve an issue of jurisdiction that could be resolved in a pretrial hearing. See Long v. Zoning Commission, 133 Conn. 248, 249, 50 A.2d 172 (1946).

       “We agree with the weight of authority that this territorial jurisdiction issue must be proved beyond a reasonable doubt. See annot., 67 A.L.R.3d 988 (1975).” Lane v. State, 388 So. 2d 1022, 1029 (Fla. 1980).

       In State v. Volpe, 113 Conn. 288, 155 A. 223 (1931), the state sought to prove that the defendant had carnally abused a fourteen year old girl on December 15, 1930, in Stamford, Connecticut. The defendant claimed that he and the alleged victim were married in Westchester County, New York, on January 23, 1931, and that no illicit relations had occurred in Connecticut before their marriage. After a jury verdict of guilty, the defendant moved to set aside the verdict, claiming, among other things, that the state had not proved that illicit relations occurred in Connecticut before the marriage. The motion was denied. On appeal, the court found error and ordered a new trial. Although the court did not explicitly consider whether territorial jurisdiction is a jury issue, it implied that it is by reviewing the trial court’s instructions to the jury on this very issue. State v. Volpe, Connecticut Supreme Court Records and Briefs, April Term 1931, part 3, p. 1559.

       The majority relies on Mitchell v. United States, 569 A.2d 177 (D.C. App. 1990), Mundine v. United States, 431 A.2d 16 (D.C. App. 1981), and State v. Reldan, 185 N.J. Super. 494, 449 A.2d 1317 (1982), to support its claim that jurisdiction is not an issue of fact for the jury. These cases rely solely on Adair v. United States, 391 A.2d 288 (D.C. App. 1978). State v. Aguilar, 85 Or. App. 410, 736 P.2d 620 (1987), the only other case relied upon by the majority, cites absolutely no authority for its conclusion that the question of jurisdiction is not a question of fact for the jury.


author: Norcott, J.

text:
    Leo Vaillancourt v. New Britain Machine/Litton et al.
    (14503)
    Callahan, Borden, Berdon, Norcott and Katz, Js.

      Argued October 30, 1992
    decision released January 12, 1993

      David A. Kelley, with whom, on the brief, was Dominick Statile, for the appellants (named defendant et al.).

      Laurie Adler, assistant attorney general, with whom were Robin L. Wilson, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant Second Injury and Compensation Assurance Fund).
   Norcott, J.

The dispositive issue in this case is whether, under General Statutes (Rev. to 1983) § 31-349, notice to transfer liability to the Second Injury and Compensation Assurance Fund (Fund) must be given to the Fund ninety days prior to: (1) the expiration of the first one hundred four weeks of the claimant’s disability; or (2) the expiration of the first one hundred four weeks of compensation payments made to the claimant by his employer. The defendants New Britain Machine/Litton (New Britain Machine) and Travelers Insurance Company (Travelers) appealed to the compensation review division from an order of the workers’ compensation commissioner dismissing as untimely their request to transfer the claim of the plaintiff, Leo Vaillancourt (claimant), to the defendant Fund. The compensation review division sustained the decision of the workers’ compensation commissioner. The defendants appealed from the decision of the compensation review division to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the decision of the compensation review division.

The following facts are relevant to this appeal. On September 18,1980, the claimant sustained an injury to his back in the course of his employment with New Britain Machine. Although the injury initially did not interfere with the claimant’s ability to work, his condition subsequently worsened and, on February 22, 1982, he underwent surgery. At that time he began to receive temporary total disability payments from Travelers, New Britain Machine’s workers’ compensation insurer. On June 16,1986, the claimant’s treating physician opined that the claimant had reached maximum medical improvement. Accordingly, the Travelers’ benefit payments to the claimant were then converted from compensation for temporary total disability to compensation for a 15 percent permanent partial disability of the back.

Travelers first notified the Fund of its intent to transfer liability for the claim pursuant to § 31-349 on January 23,1984. Notice was not perfected, however, until February 15, 1984, when Travelers sent the Fund a voluntary agreement as required by § 31-349. Had the litigation ceased at this point, both notices would have been untimely, as the statutory one hundred four week period would have commenced on the date of the claimant’s surgery, making November 22, 1983, the latest date that timely notice could be given to the Fund.

Litigation stemming from the claimant’s injury, however, continued. As a result of his back surgery, the claimant brought a medical malpractice suit against the surgeon who performed the operation. Travelers intervened in this lawsuit pursuant to General Statutes (Rev. to 1983) § 31-293 to recoup workers’ compensation benefits that it had already paid to the claimant. In October, 1989, the claimant settled his malpractice claim for $30,000, and Travelers received $7000 from the proceeds of the settlement.

Subsequent to their third party recovery, the defendants sought from the workers’ compensation commissioner a determination regarding the timeliness of the February 15, 1984 notice to transfer liability for the claimant’s permanent disability to the Fund. Travelers argued before the workers’ compensation commissioner that its notice to the Fund was timely because, under its interpretation of § 31-349, the weeks of benefits amounting to the equivalent of the $7000 it had recovered in the third party malpractice action should not be counted in calculating the statutory period within which it was required to notify the Fund. Application of this interpretation of § 31-349 would extend the deadline for notice to the Fund to May 4, 1984. The commissioner rejected this argument, and concluded that Travelers’ notice was untimely under § 31-349 and was not cured by the subsequent recovery in the malpractice case. Therefore, the commissioner dismissed Travelers’ request to transfer the claim to the Fund.

The defendants appealed to the compensation review division, which affirmed the commissioner’s finding and award. The review division stated that “the ‘one-hundred-four-week period’ refers to weeks of disability, not to the net number of weeks of benefits paid calculated after credit was given for third party recovery.” The review division noted that the defendants’ interpretation of § 31-349 would impose different time requirements in different situations and would thus diminish the principle of uniformity intended by the notice provision.

On appeal to this court, the defendants claim that the compensation review division improperly affirmed the commissioner’s decision that Travelers’ notice to the Fund was not timely under § 31-349. The defendants claim, alternatively, that: (1) their notice was timely because § 31-349 should be interpreted to require notice of transfer to the Fund ninety days prior to the one hundred fourth week of compensation payments made by the claimant’s employer to the claimant; and (2) any delay in notice should be excused because the delay did not cause prejudice to the Fund. We disagree with both of these claims.

I

The defendants first claim that both the workers’ compensation commissioner and the compensation review division improperly interpreted the phrase “one-hundred-four-week period” in § 31-349 to mean one hundred four weeks of the claimant’s disability. At the time relevant to this appeal, the relevant portions of § 31-349 provided that “[t]he employer . . . shall in the first instance pay all awards of compensation and all medical expenses ... for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer . . . must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case . . . .” (Emphasis added.) See footnote 1.

The defendants contend that the “one-hundred-four-week period” in the notice provision of § 31-349 does not refer to the first one hundred four weeks of the claimant’s disability, but rather to the first one hundred four weeks of unreimbursed payments made by the employer to the claimant, that is, the amount of time it takes for the employer to pay out-of-pocket benefits equal to one hundred four weeks. Under this interpretation, the defendants argue, the $7000 recovery from the malpractice settlement extended the notice period by twenty-three weeks because the employer in effect did not begin making out-of-pocket payments until August 6, 1982. Therefore, according to the defendants, the February 15,1984 notice to the Fund was timely and the commissioner improperly dismissed their request to transfer the claim to the Fund.

The Fund argues that the correct construction of the notice provision of § 31-349 is that, for the notice to be timely, the employer or insurer must give notice of transfer to the Fund ninety days prior to the expiration of the first one hundred four weeks of the claimant’s disability. The Fund contends that the plain reading of the statute as a whole and the purpose of the notice requirement support its construction of the meaning of the “one-hundred-four-week period.” Moreover, the Fund argues that any uncertainty regarding the legislative intent behind the statutory notice provision was clarified by a 1991 technical amendment to the act. Public Acts 1991, No. 91-32, §§ 35, 41. We agree with the Fund’s interpretation of the notice provision of § 31-349.

“ ‘In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature.’ United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). ‘[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). We have acknowledged, however, in the context of workers’ compensation legislation, that ‘[s]uch guidance is often of little help . . . since words seldom have precise and unvarying meanings.’ Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 359 n.3, 349 A.2d 847 (1974).” Weinberg v. ARA Vending Co., 223 Conn. 336, 340-41, 612 A.2d 1203 (1992).

“When the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute’s legislative history and the purpose that the statute was intended to serve.” Id., 341. We have previously recognized that our construction of the Workers’ Compensation Act should make “ ‘every part operative and harmonious with every other part insofar as is possible . . . .’ ” Mingachos v. CBS, Inc., 196 Conn. 91, 104, 491 A.2d 368 (1985). In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989). Reading the notice provision of § 31-349 as a whole, we are led to the conclusion that the legislature intended the “one-hundred-four-week period” to refer to the first one hundred four weeks of the claimant’s disability. The sentence immediately preceding the notice provision states that the employer shall pay all awards of compensation for “the first one hundred four weeks of disability.” The subsequent reference to “one-hundred-four-week period” logically can refer only to its antecedent; the weeks of the claimant’s disability. We note that other courts have already applied this commonsense reading of § 31-349; Kiernan v. Roadway Express, Inc., 15 Conn. App. 625, 628-29, 545 A.2d 1158, cert. denied, 210 Conn. 801, 553 A.2d 615 (1988); Kramer v. General Electric Co., 37 Conn. Sup. 742, 745, 436 A.2d 50 (1981); and we conclude that any other interpretation would require a strained reading of the statute.

Moreover, our interpretation of § 31-349 is consistent with the purposes of the notice provision. “The object of the ninety-day statutory notice is to enable the fund to be apprised promptly of such a claim being made, to obtain a copy of the agreement or award and to have immediate access to all medical reports. Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it.” Plesz v. United Technologies Corporation, 174 Conn. 181, 188, 384 A.2d 363 (1978).

To accept the defendants’ interpretation of § 31-349 would frustrate this purpose. The time for notice in relation to the claimant’s disability would vary from case to case, depending on the size of the employer’s recovery, if any, in third party suits brought by claimants. The Fund would never be able to ascertain with any certainty its liability at the time notice was given, as timeliness of the notice could not be determined until potentially years later, when third party litigation was concluded. We conclude that the running of the notice period from the time of the claimant’s disability advances the purpose of the provision and provides the uniformity intended by any period of limitation.

Finally, we find the legislative intent as expressed in a 1991 amendment to the notice provision controlling. “We have previously considered subsequent enactments in order to illuminate the legislature’s intent with respect to prior legislative action.” Weinberg v. ARA Vending Co., supra, 344-45; AirKaman, Inc. v. Groppo, 221 Conn. 751, 761, 607 A.2d 410 (1992). Number 91-32, § 35 of the 1991 Public Acts amended the portion of § 31-349 at issue in this case to read: “As a condition precedent to the liability of the second injury fund, the employer . . . shall, ninety days before the expiration of the first one hundred four weeks of disability, notify the custodian of the second injury fund of the pending case.” (Emphasis added.) The substitution of “one hundred four weeks of disability” for “one-hundred-four-week period” specifically addresses the ambiguity raised by the defendants. Thus, unless the 1991 amendment reflects a substantive change in the law, the only logical conclusion this court may draw is that the phrase “one-hundred-four-week period” refers to the first one hundred four weeks of the claimant’s disability, not to the number of weeks the claimant’s employer has paid out-of-pocket benefits. Cf. Hernandez v. Gerber Group, 222 Conn. 78, 82, 608 A.2d 87 (1992).

This court has previously examined the legislative history of No. 91-32 of the 1991 Public Acts and determined that “it was intended to be a technical amendment.” Weinberg v. ARA Vending Co., supra, 346. Comments made on the bill on both the Senate and House floor and during a hearing of the joint standing committee make clear that the purpose of the bill was to make only minor, technical changes to the existing law. Id., 346-47. It is therefore manifest that the substitution of “one hundred four weeks of disability” for “one-hundred-four-week period” in the 1991 amendment merely clarified the meaning of the one hundred four week period as it had originally been intended and did not introduce a substantive change in the law.

We conclude that the “one-hundred-four-week period” of the notice provision of § 31-349 refers to the first one hundred four weeks of the claimant’s disability. The defendants’ February 15, 1984 notice to the Fund failed to notify the Fund ninety days prior to the expiration of this term. The compensation review division therefore properly affirmed the commissioner’s decision that the defendants’ notice was untimely and therefore dismissal of the defendants’ request to transfer the claim was proper.

II

The defendants also claim that, even if we interpret the “one-hundred-four-week period” under § 31-349 to refer to the one hundred four week period from the claimant’s disability, the transfer of the claim to the Fund should not automatically have been barred because the Fund did not suffer any prejudice due to the untimely notice. The defendants argue that since the delayed notice did not frustrate the purposes of the notice of transfer provision, the compensation review division improperly affirmed the commissioner’s dismissal of the defendants’ request to transfer the claim to the Fund. We disagree.

Whether the failure to notify the Fund in accordance with the mandates of § 31-349 requires barring transfer of the claim merits little discussion. The notice requirement of § 31-349 states: “As a condition precedent to the liability of the second injury fund, the employer . . . must . . . notify the custodian of the second injury fund of the pending case.” This court has consistently stated that “[i]f the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction.” Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); see also Rose v. Freedom of Information Commission, 221 Conn. 217, 602 A.2d 1019 (1992); Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990). Furthermore, in the context of this and other provisions of the Workers’ Compensation Act, Connecticut courts have stated that notice provisions under the act should be strictly construed. Walsh v. Waldron & Sons, 112 Conn. 579, 582-84, 153 A. 298 (1931); Kiernan v. Roadway Express, Inc., supra, 630; Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 384, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988).

Timely notice is specifically required as a condition precedent to the transfer of liability to the Fund. This statutory hurdle to a transfer of liability to the Fund leaves little to either interpretation or imagination. Indeed, this same argument was specifically rejected by the Appellate Court; Kiernan v. Roadway Express, Inc., supra, 631; and we find no basis for an alternative construction. See also Plesz v. United Technologies Corporation, supra, 188 (court rejects argument that failure to comply with statutory notice of § 31-349 merely postpones Fund’s obligation until proper notice is actually given).

We conclude that the giving of timely notice is the condition precedent to an effective transfer of liability to the Fund under § 31-349. Had the legislature intended to include a provision regarding the showing of prejudice, it could easily have done so. We are not permitted to supply statutory language that the legislature may have chosen to omit. Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975). The compensation review division properly sustained the commissioner’s dismissal of the defendants’ request to transfer the claim to the Fund for failure of timely notice.

The decision of the compensation review division is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1983) § 31-349 provides in part: “The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of this chapter. In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing benefits until the outcome is finally decided, and if the employer or carrier prevails all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or carrier by the second injury fund. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical bills have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. If the subsequent injury of such an employee resulting from an accident arising out of and in the course of his employment shall result in the death of the employee, and it shall be determined that either the injury or death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall, in the first instance, pay the funeral expense described in this chapter, and shall pay death benefits as may be due for the first one hundred four weeks. Ninety days prior to the expiration of the one-hundred-four-week period, the employer or his insurance carrier shall notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation has been paid for the one-hundred-four-week period, and indicating thereon the date that the custodian was notified of the pending case. Thereafter all responsibility for compensation shall be with the custodian of the second injury fund. Employees shall not be denied any of the benefits provided by any provisions of this chapter by reason of the execution of an acknowledgment of physical defect, but the benefits specified in this chapter which would be payable except for the execution of such acknowledgment shall be paid entirely out of the second injury fund. Claims for such benefits shall be filed with the commissioner, who shall refer such claims to the custodian of the second injury fund as specified above. The custodian of the second injury fund may make payment by way of final settlement in any matter concerning the fund, subject to the approval of the commissioner, when it is for the best interests of the injured employee.”

       The defendants New Britain Machine and Travelers are the appellants herein. Although the Fund is also a defendant, it is the appellee. We refer herein, therefore, to New Britain Machine and Travelers as the defendants.

       General Statutes (Rev. to 1983) § 31-349 provides some relief to an employer whose employee suffers a work-related injury if such employee had a preexisting permanent physical impairment, thus making the compensable permanent disability greater than that which would have resulted from the second injury alone. See, e.g., Lovett v. Atlas Truck Leasing, 171 Conn. 577, 578, 370 A.2d 1061 (1976). The statute provides that the employer or his insurance carrier shall “pay all awards of compensation and all medical expenses provided by [the workers’ compensation act] for the first one hundred four weeks of disability.” The employer may thereafter transfer liability for the permanent disability payments to the Fund, provided that the statutory requirements are met.

       General Statutes (Rev. to 1983) § 31-349 provides in pertinent part: “As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire.”

       The record does not reflect when the malpractice action was commenced or when Travelers intervened in that action.

       General Statutes (Rev. to 1983) § 31-293 provides in relevant part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter . . . but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. If either such employee or such employer brings such action against such third person . . . such other may join as a party plaintiff in such action . . . .”

       The commissioner reaffirmed this decision in each of two subsequent decisions on motions to correct filed by Travelers arising out of the commissioner’s original decision.

       Pursuant to General Statutes § 31-306 et seq., workers’ compensation benefits are paid in terms of weekly benefits. The claimant’s basic compensation rate was $298.29, making the $7000 recovery sufficient to cover 23.5 weeks of benefits.

       If the “one-hundred-four-week period” did not begin until August 6, 1982, the notice due ninety days prior to the expiration of this period would have been due no later than May 4, 1984.

       The facts of this ease provide an excellent example of the uncertainty that would result from the defendants’ interpretation of General Statutes (Rev. to 1983) § 31-349. Here, the third party malpractice suit was settled over five years after the defendants gave notice to the Fund. The purpose of enabling the Fund to set reserves and investigate claims is surely frustrated when it cannot determine the timeliness of a notice until years after it is received.
      The defendants argue that our interpretation of the notice provision could lead to an absurd result. They offer the example of occupational diseases, and the three year period of limitation for an employee’s notification to his employer of a claim under General Statutes (Rev. to 1983) § 31-294. The defendants argue that theoretically the time period for transferring the claim under § 31-349 could run before the employer ever receives notice of the existence of that claim. We note that our decision today is narrow, and does not address issues not yet before this court. We suggest, however, that further construction of the notice provision, when and if it becomes necessary, would not require a type of notice that is impossible to give.

       For example, during the public hearings before the committee on labor and public employees, Senator James H. Maloney, presiding chairman, introduced the impending discussions about the bill with the following: “The bill that we are going to hear today is a technical revision in affect to the existing statute. It doesn’t change substantive law, or if it does we want to hear about it.” The first speaker, then workers’ compensation commission chairman, John A. Arcudi, next stated: “So that, this is the purpose of the bill, not to change substance, but to try to simplify language and eliminate archaic language, reduce language if possible, that’s been the attempt . . . .” (Emphasis added.) Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 1991 Sess., pp. 16-17.

       Indeed, the defendants also appeared to recognize the novelty of their argument. In oral argument the defendants stated in rebuttal that “[regarding prejudice by the lack of notice, the trial brief of the attorney general’s office stated that there was no prejudice and that issue was immaterial. That wasn’t raised below and I believe that’s a correct statement.” We reach this issue, however, because it is unclear whether the defendants intended to abandon this argument by their statement.

       For instance, General Statutes (Rev. to 1983) § 31-294 governs an employee’s obligation to notify his employer of any injury sustained in the course of his employment. The statute provides, if the employee fails to give such notice, that “the commissioner may reduce the award of compensation proportionately to any prejudice which he finds the employer has sustained by reason of such failure . . . .”