author: Covello, J.

text:
    State of Connecticut v. Floyd Williams
    (14150)
    Shea, Callahan, Glass, Covello and Berdon, Js.

      Argued September 27
    decision released November 19, 1991

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

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Henry J. Lyons, assistant state’s attorney, for the appellee (state).
   Covello, J.

This is the defendant’s appeal from his conviction of one count of felony murder in violation of General Statutes § 53a-54c. The issues on appeal are whether: (1) the state was entitled to a jury instruction on accessorial liability; (2) a television interview of the victim’s mother, viewed by two jurors, compromised their ability to continue as fair and impartial jurors; (3) the admission of evidence concerning the defendant’s arrest on an unrelated matter constituted evidentiary error; (4) the trial court placed an improper limitation on the cross-examination of a state’s witness; (5) the trial court’s charge to the jury placed undue emphasis on the defendant’s interest in the outcome of the case; and (6) the trial court’s jury instruction on the burden of proof in connection with circumstantial evidence constituted harmful error. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 28, 1989, in the early hours of the morning, the victim, Orville Grant, and Mervin Need-ham were walking on Sixth Street in Bridgeport when they were approached by the defendant, Floyd Williams, and two other men. The defendant and his two companions all were armed with guns. The defendant forced the victim and Needham to lie on the ground while he rifled Needham’s pockets for what turned out to be $5 in cash. The defendant then ordered both men into a nearby yard and again forced them to lie down. After some discussion, all three assailants began shooting. As a result of this assault, Grant died of a gunshot wound to the head.

Just prior to trial, the state filed an amended long form information charging the defendant in a seven count information with violations of the following general statutes: (1) felony murder, General Statutes § 53a-54c; (2) murder, General Statutes § 53a-54a (a); (3) attempted murder, General Statutes §§ 53a-49 and 53a-54a (a); (4) robbery in the first degree, General Statutes § 53a-134 (a) (2); (5) attempted assault in the first degree, General Statutes §§ 53a-49 and 53a-59 (a) (1); (6) assault in the second degree, General Statutes § 53a-60 (a) (2); and (7) carrying a pistol without a permit, General Statutes § 29-35. On August 21,1990, a jury found the defendant guilty of the single count of felony murder. The trial court sentenced the defendant to a term of sixty years imprisonment.

I

The defendant first claims that the trial court erred in instructing the jury on the theory of accessorial liability in connection with the robbery that constituted the felony portion of the felony murder charge. The defendant claims that he was charged only as a principal and therefore, the trial court erred in telling the jury that he could be found guilty of felony murder even though they might conclude that he was only an accessory to the alleged acts. We disagree.

“Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct. State v. Harris, 198 Conn. 158, 502 A.2d 880 (1985); State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979); State v. Parham, 174 Conn. 500, 508, 391 A.2d 148 (1978).” State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); see State v. Smith, 212 Conn. 593, 606, 563 A.2d 671 (1989).

While there is no question that the state produced sufficient evidence from which the jury could reasonably have concluded that the defendant was an accessory to the robbery underlying the felony murder, the defendant argues that the circumstances here are identical to those present in State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), and therefore, the trial court should not have instructed the jury that the defendant could be found guilty of felony murder under a theory of accessorial liability. In Steve, the state’s bill of particulars charged the defendant with robbery and assault in the first degree claiming specifically that he acted as a principal. After the state concluded its case-in-chief, the defendant took the stand in his own defense and testified that a second person had committed the robbery and shot the victim. A second defense witness corroborated the defendant’s testimony but added that she had seen the defendant accompany the assailant. The trial court thereafter charged the jury on accessorial liability and the jury found the defendant guilty of both offenses. On appeal, a majority of this court concluded that the defendant was prejudiced by the variance between the trial court’s charge to the jury and the state’s theory of liability as set forth in the bill of particulars. Specifically, the majority concluded that the defendant relied upon the state’s theory that the defendant was the principal in each crime and that the defendant crafted his defense to address the claim that he had acted as the principal. We conclude that Steve is distinguishable for two reasons.

First, the amended information in this case charged that “said FLOYD WILLIAMS did commit Robbery, and in the course of and furtherance of such crime he or another participant in said crime did cause the death of ORVILLE GRANT . . . .” (Emphasis added.) A fair reading of the information should have alerted the defendant to the fact that the state was claiming that either he or another participant “in said crime,” i.e., the robbery, thereafter caused the death of the victim. The charging document squarely alerted the defendant to the fact that the state was relying on alternative theories of liability and that the evidence to be presented would tend to establish the defendant’s guilt either as a principal or as an accessory. Thus, unlike Steve, there is no factual basis for a claim that the defendant relied upon an information charging him as a principal in preparing a defense that he was only an accomplice.

Second, prior to introducing any evidence in defense of the state’s allegations, defense counsel moved that the court rule on whether the state would be entitled to a jury instruction that would permit a finding of guilt based upon a theory of accessorial liability. The trial court, concluding that the motion was premature, ruled: “I’ll make my determination when, when we are discussing the contents of the Court’s intended charge.” Thus, unlike the situation in Steve, the defendant here was specifically put on notice by the trial court, prior to beginning his defense, that the issue of accessorial liability was still in the case. See also State v. Ives, 172 Conn. 322, 323, 374 A.2d 244 (1977); State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971); State v. Cianflone, 98 Conn. 454, 466, 120 A. 347 (1923); State v. Burns, 82 Conn. 213, 218-19, 72 A. 1083 (1909); State v. Hamlin, 47 Conn. 95, 120 (1879).

II

The defendant next claims that the trial court erred in denying his motion for a new trial based upon the observation by two jurors of an allegedly prejudicial television interview of the victim’s mother. On August 21, 1990, immediately prior to the jury commencing its second day of deliberations, the trial court, having been made aware that such an interview had been broadcast the previous evening, asked the jurors if any of them had seen the newscast. Two jurors recalled seeing small portions of the interview. Neither juror had discussed the interview’s content with the other jurors and both stated to the trial court that they did not believe that their observations had compromised their impartiality as jurors. Without objection, the trial court allowed the jurors to resume their deliberations.

On October 5,1990, the day assigned for the defendant’s sentencing, the defendant moved for a new trial based upon these jurors’ observation of the allegedly prejudicial television newscast. The trial court viewed a videotape of the newscast and thereafter denied the defendant’s motion concluding that its only effect was to “possibly evoke some sympathy” and that “[t]he Court [had] adequately instructed them on that,” i.e., “that they were not to allow sympathy to play any part in their deliberations . . . .”

When “the partiality of an individual juror is placed in issue . . . [the] question is not one of mixed law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Patton v. Yount, 467 U.S. 1025, 1036, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). “Thus the question is whether there is fair support in the record for the state court’s conclusion that the jurors here would be impartial.” Patton v. Yount, supra, 1038.

In the present instance both jurors described a limited viewing of the television interview. One juror stated that he had viewed only a part of the program and by the time he realized that it even concerned his case, the interview was over. The other juror was reading the newspaper while watching television and it was his wife who called his attention to the television. He estimated that he had probably seen the last few seconds of the interview. After the trial court had questioned each juror separately, it determined that the incident had not caused them to form any opinion or reach any conclusion about the case. Neither juror discussed the program with his fellow jurors. Further, the trial court personally viewed a videotape of the newscast and concluded, as stated above, that its only effect was to “possibly evoke some sympathy,” a matter upon which he had previously instructed the jury. Under the totality of these circumstances, we conclude that “there is fair support in the record for the . . . [trial court’s] conclusion that the jurors here would be impartial.” Patton v. Yount, supra, 1036.

Ill

The defendant next claims that he was denied his right to a fair trial as the result of a state’s witness testifying about the defendant’s arrest on an unrelated charge. During the presentation of the state’s case, Detective David Silva testified that on October 28, 1989, he assisted in the execution of a search warrant at the home of the defendant’s parents. Silva found the defendant hiding in the attic. Silva then testified that there had been at least two arrest warrant applications in connection with the present charges and that he had made six attempts between August 28,1989, and October 28,1989, to locate the defendant. On cross-examination, defense counsel brought out that the warrant for the defendant’s arrest on the present charges was dated October 30, 1989. Counsel further elicited that the defendant was arrested on October 28, 1989. Defense counsel then asked: “So are you telling the Court then that he was arrested without an arrest warrant?” Silva responded: “He was arrested on a totally unrelated warrant.” There was no request that the answer be stricken nor was there a request for a curative instruction.

On redirect examination of Silva, the state’s attorney asked: “And you say he was arrested on a totally unrelated arrest warrant pending against him at that time? Unrelated to the instant case?” Over the defendant’s objection, the trial court permitted the witness to respond affirmatively that the defendant was arrested on an unrelated matter. There was no further development of the issue.

“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. State v. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977); McCormick, Evidence (3d Ed. 1984) §§ 32, 57. The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986).

In pursuing the discrepancy between the October 28 date of the defendant’s physical arrest and the October 30 date on the arrest warrant the defendant sought to raise in the juror’s minds the clear implication that either: (1) the arrest records were in error; (2) the defendant had been arrested without a warrant; or (3) Silva’s recollection of all of the events, including his testimony that the defendant was hiding in the attic, was faulty. When, upon cross-examination, Silva resolved the apparent anomaly by disclosing that there had been a second warrant on an unrelated matter, this subject became an appropriate topic for Silva’s redirect testimony even though the material might otherwise have been inadmissible.

IV

The defendant next claims that the trial court erred in limiting his cross-examination of Needham in connection with his alleged prior inconsistent statement. On December 14, 1989, while testifying at a probable cause hearing to determine whether the defendant should stand trial for felony murder, Needham stated that in giving a statement to the police the day after the incident: “[The police] made me identify [the defendant].” On August 9,1990, during a hearing on the defendant’s motion to suppress Needham’s out-of-court identification, Needham repeatedly stated that he was not forced into identifying the defendant.

At trial, the defendant sought to elicit during cross-examination Needham’s statement at the probable cause hearing that he was “made” to identify the accused. The trial court sustained the state’s objection to the question on the grounds that the question was beyond the scope of the direct examination as there had been no evidence concerning Needham’s identification of the defendant at any time prior to his doing so in court at the time of trial.

On redirect examination the state asked Needham in connection with a statement that he had furnished the police, “[W]ere you at any time promised any favors or any type of treatment? Or were you threatened by them in any shape or form?” Needham answered: “No.” On recross-examination the defendant sought to introduce as a prior inconsistent statement a transcript of that portion of Needham’s probable cause testimony where he stated that the police “made” him identify the defendant. The trial judge, who had also presided at the probable cause hearing and heard Need-ham’s original testimony, concluded that the word “made” in the context used by Needham did not connote a threat but was simply Needham’s way of describing the next step in the police procedures. The trial court therefore concluded that the statement was not inconsistent and sustained the state’s objection to the introduction of the transcript.

“While it is clearly proper to attack a witness’ credibility by evidence of his materially inconsistent statements; State v. Vega, 163 Conn. 304, 307, 306 A.2d 855 [1972]; State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 [1964], cert. denied sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 [1965]; this can only be done if the court is satisfied that the prior statements are in fact inconsistent. State v. Chesney, 166 Conn. 630, 636, 353 A.2d 783 [cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974)]; 3A Wigmore, Evidence (Chadbourn Rev.) § 1040.” State v. Reed, 174 Conn. 287, 302-303, 386 A.2d 243 (1978). “In determining whether an inconsistency actually exists, the testimony of the witness as a whole, or the whole impression or effect of what has been said, must be examined.” State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). In examining the context in which Needham made this remark; see footnote 3, supra; one can reasonably conclude that he was conveying the notion that identifying the defendant through examination of photographs was simply the next step in the police procedures in which he participated, rather than the notion that Needham was forced into identifying the defendant. Such reasoning, within this context, is empirically sound and clearly falls within the broad discretion reposing in the trial court in such instances.

V

The defendant next claims that the trial court unduly emphasized his interest in the outcome of the case by mentioning it on three separate occasions in the charge to the jury. The defendant took no exception to these portions of the charge; see Practice Book § 315; but now argues that we should review this claim under the bypass rule established in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

“We have treated the basic claim that specific mention of the defendant’s interest infringes upon his right to a fair trial as falling within the claimed deprivation of a ‘fundamental constitutional right’ . . . [and] [w]e must, therefore, examine the nuances of language, belatedly relied upon by the defendant, only for the purpose of determining whether they are significant enough to have affected the fairness of his trial.” State v. Mack, 197 Conn. 629, 637, 500 A.2d 1303 (1985). Specifically, the defendant claims here that the trial court’s three references to the defendant’s interest in the outcome of the case were not “[evenhanded] in referring to the defendant’s interest as compared with that of other witnesses.” State v. Mack, supra, 638. This simply is not so. In each instance the trial court prefaced its remarks concerning the defendant’s interest in the outcome with comments such as: (1) “[Y]ou should apply the same principles by which the testimony of other witnesses are tested”; (2) the accused “is entitled to the same consideration and must have his testimony measured in the same way as any other witness . . .”; and (3) “you should apply the same test to it as you did with the other witnesses . . . .” The continual emphasis was that the jury was to evaluate the defendant’s testimony in the same fashion as the testimony of the other witnesses. We have repeatedly approved the use of similar language and we do not find its use here unduly repetitive or transcending the bounds of even-handedness. State v. Mack, supra, 637-38; State v. Avcollie, 188 Conn. 626, 637, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983).

VI

The defendant finally claims that the trial court erred in its charge to the jury on the standard of proof to be used in evaluating circumstantial evidence. The trial court stated: “[Y]ou can infer one fact from a finding of another fact, only if that first fact is found to be established beyond a reasonable doubt. And also, that that finding enables you to conclude beyond a reasonable doubt that the second fact also exists .... Of course, in passing upon the guilt of an accused person on the basis of circumstantial evidence you must be satisfied beyond a reasonable doubt, first that certain facts or circumstances exist; and second, the existence of those facts or circumstances do beyond a reasonable doubt lead you to the conclusion that the crime was committed by the accused.” While we agree that this statement concerning circumstantial evidence was partially in error, its effect was to increase the burden of proof required by the state to prove the defendant guilty and had, therefore, no prejudicial effect in this instance.

“It is axiomatic that the state’s burden of proof beyond a reasonable doubt applies to each and every element comprising the offense charged. But this burden of proof does not operate upon each of the many subsidiary, evidentiary, incidental or subordinate facts, as distinguished from elements or ultimate facts, upon which the prosecution may collectively rely to establish a particular element of the crime beyond a reasonable doubt. . . . Where the prosecution must rely upon circumstantial evidence, either in part or in whole, each link in the chain of circumstantial evidence need not be established beyond a reasonable doubt.” State v. McDonough, 205 Conn. 352, 362-63, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988).

As worded, the charge in the instant case could have left the jury with the impression that the state must establish each predicate or subsidiary fact beyond a reasonable doubt, thereby substantially increasing the burden of proof imposed upon the state. “The state might well have complained that such a charge imposed a far greater burden upon it than the standard requirement that only the inference of guilt as to each element of the crime, as distinguished from the totality of the subordinate facts from which the inference is to be drawn, need be proven beyond a reasonable doubt.” State v. James, 211 Conn. 555, 581, 560 A.2d 426 (1989). The defendant argues, however, that the challenged instructions placed an unconstitutional burden on him to prove beyond a reasonable doubt the inferences upon which he relied in his defense. The defendant claims that the trial court misled the jury as to the standard of proof required of him because of the charge’s faulty language concerning circumstantial evidence. We disagree for two reasons.

First, the trial court gave its charge upon circumstantial evidence as part of its general charge concerning the state’s burden of proof. The trial court stated at that time: “The burden then is on the state to prove an accused guilty of the crime or crimes with which he is charged. An accused does not have to prove his innocence. That means that the state must prove every element necessary to constitute the crime as charged as I shall explain to you in just a moment. It is not enough for the state to prove certain elements because if proof of even one element is lacking you have to find the accused not guilty as to that particular crime charged. The state in other words can sustain the burden resting on it only if the evidence before you establishes the existence of every element constituting the crime charged beyond a reasonable doubt.” As between the state and the defendant, this language left no doubt as to who had the burden of establishing the defendant’s guilt.

Second, the defendant never relied on circumstantial evidence in crafting his defense. The defendant’s theory of the case was that he was present on Sixth Street when the shootings occurred, but he was in no way associated with the individuals who committed the crime. He did not ask the jury to infer anything. He sought to have the jury believe his direct testimony that he was not the perpetrator. This is not a situation in which an accused who has raised a defense, such as intoxication or insanity, relies upon circumstantial evidence as a basis for drawing inferences that may raise a reasonable doubt as to his guilt. Thus, the erroneous instruction here was simply inapplicable to any claim being made by the defendant.

The judgment is affirmed.

In this opinion the other justices concurred.

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

       On July 23, 1990, in apparent response to the defendant’s motion for a bill of particulars, the state filed a long form information and stated to the trial court that it provided the defendant with “all the information that he is seeking.” While it is arguable that the information did not supply all the information that was requested in the bill of particulars, the defendant has not pursued this issue on appeal as no objection or exception was taken at the time of trial.

       The witness’ response occurred in the context of the following colloquy during cross-examination at the probable cause hearing:
      “Q. Did you provide the police with information . . . that name that you mentioned; Floyd?
      “A. Yeah.
      “Q. And after you provided the police officers with the name of Floyd, what, if anything, did they do with that name? ... In your presence? That you saw with your own eyes and heard with your own ears: what, if anything, did they do with the name, Floyd?
      “A. They made me identify him.

      “Q. They made you identify him. Where?
      “A. At the station.
      “Q. At the station. How?
      “A. They showed me pictures.
      “Q. They showed you pictures. How many?
      “A. One or two.” (Emphasis added.)

       Specifically, in assessing the defendant’s testimony, the trial court stated: “In weighing the testimony of an accused person obviously you should apply the same principles by which the testimony of other witnesses are tested. And that necessarily involves a consideration of his interest in the outcome of the ease. Now an accused person having taken the witness stand stands before you then like any other witness, and is entitled to the same consideration and must have his testimony measured in the same way as any other witness including however his interest in the verdict which you are asked to render.” (Emphasis added.) The trial court further stated: “You are not to disregard the evidence of this accused merely because he was convicted of other crimes. You must weigh the testimony and consider it along with all the other evidence in the case; and you may take into account of course all the evidence that you find to be credible on his part. And the testimony that he has offered to you should be given the same considerations; and you should apply the same test to it as you did with the other witnesses in the course of this trial, including however, consideration of his interest in the outcome of the case.” (Emphasis added.)


source: Caselaw Access Project

author: Berdon, J. Callahan, J.,

license: Public Domain

text:
    State of Connecticut v. Byron Anderson
    (14226)
    Peters, C. J., Callahan, Covello, Borden and Berdon, Js.
    Argued September 26
    decision released November 19, 1991

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

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert Carlson, Jr., assistant state’s attorney, for the appellee (state).
   Berdon, J.

The sole issue in this appeal is whether a criminal defendant who agrees to plead guilty to certain charges in consideration of the state’s promise to recommend a sentence that is below the statutory maximum, while reserving the right to argue for a lesser sentence, has entered into a “plea agreement” within the meaning of General Statutes § 51-195. Under § 51-195, if the trial court imposes a sentence that was negotiated as part of a “plea agreement,” the defendant is not entitled to have the sentence review division of the Superior Court review the imposed sentence. In this case, the Appellate Court held that because the defendant’s agreement with the state was a “plea agreement” within the meaning of the relevant exception contained in § 51-195, he was not entitled to sentence review. State v. Anderson, 23 Conn. App. 564, 571, 583 A.2d 142 (1990). We conclude that the Appellate Court’s decision is contrary to our holding in Staples v. Palten, 214 Conn. 195, 571 A.2d 97 (1990), and we reverse the judgment of the Appellate Court.

The relevant facts are as follows. The defendant, Byron Anderson, was originally charged in an eleven count information for an incident that occurred in Bristol in the early morning hours of January 1,1986. The defendant entered pleas of not guilty to these charges. On January 21,1987, the state filed a substitute three count information charging the defendant with one count of sexual assault in the first degree, one count of burglary in the second degree, and one count of sexual assault in the third degree, in violation of General Statutes §§ 53a-70 (a), 53a-102 (a), and 53a-72a (a) (l) respectively. That same day, the defendant withdrew his prior pleas and entered pleas of guilty to the counts of sexual assault in the first degree and burglary in the second degree, and entered an Alford plea to the count of sexual assault in the third degree.

The defense attorney informed the trial court, Kline, J., that the state intended to recommend a twenty year sentence. He also told the court that the defendant had retained the right to argue for a lesser sentence. At his sentencing, the defendant argued for a ten year period of incarceration. Nevertheless, the trial court, Susco, J., sentenced the defendant to a term of twenty years for the charge of sexual assault in the first degree, and to concurrent terms of five years each on the remaining two charges, for a total effective sentence of twenty years.

The defendant appealed his conviction to the Appellate Court claiming that: (1) the trial court failed to provide him with notice of his statutory right to sentence review; and (2) his guilty pleas were unconstitutional because the trial court failed to inform him that he was facing a mandatory minimum, nonsuspendable sentence on the charge of sexual assault in the first degree. The Appellate Court affirmed the defendant’s conviction. We granted the defendant’s petition for certification limited to the issue of whether the agreement he had entered into with the state constituted a plea agreement within the meaning of § 51-195, so that the defendant was not entitled to a review of his sentence.

Under § 51-195, any person sentenced to serve a prison term of three or more years is entitled to have written notification on the day of sentencing of the right to file within thirty days a petition seeking sentence review. The statute provides for three exceptions where sentence review is not allowed: “[1] in any case in which a different sentence could not have been imposed or [2] in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or [3] in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement.” The present appeal concerns the second exception to the statutory right of sentence review.

At the outset, we recognize that there are two principles of statutory construction that we must consider when construing the meaning of “plea agreement” in the exception to § 51-195. First, “[remedial statutes are to be liberally construed in favor of those whom the legislature intended to benefit.” Hinchliffe v. American Motors Corporation, 184 Conn. 607, 615 n.4, 440 A.2d 810 (1981), citing Hartford Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228 (1973). Second, “ ‘[w]hen a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent.’ ” Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937), citing Bickart v. Sanditz, 105 Conn. 766, 772, 136 A. 580 (1927); State v. Turello, 183 Conn. 330, 335, 439 A.2d 364 (1981). In Staples v. Palten, supra, 200, we stated that § 51-195 is a remedial statute because its purpose is to curb the ill effects stemming from wide judicial discretion in sentencing prisoners for similar offenses. Thus, the statute is to be construed liberally in favor of its intended beneficiaries, the prisoners seeking review of their sentences, and any exception from sentence review eligibility is to be construed strictly. Id., 199-200.

We have defined the meaning of “plea agreement,” as used in the exceptions in § 51-195, as “an agreement encompassing a sentence of a specific term of years.” Staples v. Patten, supra, 200. In Staples, the defendant agreed to plead guilty to a substitute three count information. The state and the defendant agreed that no specific sentence would be recommended to the trial court. At sentencing, the state argued for incarceration and the defendant argued for a lesser sentence than he actually received. The defendant was sentenced to a total effective sentence of six years. On appeal, the defendant successfully argued that the sentence review division incorrectly dismissed his application for sentence review. In Staples, we held that because the defendant had not agreed to a “specific term of years” he was not excluded from sentence review under the “plea agreement” exception.

In the present case, the Appellate Court held that the defendant’s agreement to plead guilty and to be exposed to a maximum twenty year sentence was of “sufficient specificity to constitute a ‘plea agreement’ and thus made him ineligible for sentence review.” State v. Anderson, supra, 571. The Appellate Court incorrectly distinguished the facts of this case from those in Staples. The Appellate Court noted that in Staples, the maximum sentence that the defendant was exposed to was set by statute. In the present case, however, the plea agreement set a twenty year maximum prison term, or “cap,” to which the court could sentence the defendant and stay within the boundaries of the agreement between the parties. We are not persuaded by the court’s distinction for the reasons set forth below.

First, the Appellate Court’s holding suggests that because the defendant knew that the state intended to recommend a twenty year sentence, he implicitly agreed to be sentenced to twenty years. This is incorrect because it ignores the fact that the defendant specifically reserved the right to argue for a lesser sentence. A defendant who reserves the right to argue for a lesser sentence anticipates that he may be able to persuade the court to impose a lesser sentence than that which the state is recommending. Here, the defendant was not only hoping to receive a lesser sentence, but he did, in fact, argue for a ten year incarceration. The only effect of the state’s recommendation of the twenty year sentence was that it set a maximum number of years to which the trial court could have sentenced the defendant.

Second, the Appellate Court did not properly take into account the wide discretion that was left to the trial court in the present case. Each party agreed to argue for a sentence that each believed was appropriate. Because there was no agreement for a specific term of years, the trial court could have sentenced the defendant to one year, the minimum sentence for sexual assault in the first degree, or to twenty years, the “cap” set by the state’s agreement with the defendant, or to anything between one year and twenty years. The nineteen year range of possible sentences that was left to the court’s discretion did not amount to an agreement for a “specific term of years.”

We conclude that a “plea agreement,” for the purpose of excluding sentence review under § 51-195, requires that the defendant and the state’s attorney agree to a recommendation of a specific term of years of incarceration, without a reservation by the defendant of the right to argue for a lesser sentence. Any reservation of the right to argue for a lesser sentence affords the court the very discretion that the statute intended to monitor.

The judgment of the Appellate Court is reversed in part and the case is remanded to the Appellate Court with direction to remand the case to the trial court with the instructions that the defendant be given the notice required by § 51-195 and that the defendant be allowed to file an application for sentence review within thirty days of his receipt of such notice.

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

Callahan, J.,

with whom Covello, J., joins, dissenting. I joined Justice Healey’s dissenting opinion in Staples v. Palten, 214 Conn. 195, 201, 571 A.2d 97 (1990), and believe that the reasoning of that opinion is equally applicable to this case. I respectfully dissent.

       General Statutes § 51-195 provides in pertinent part: “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. . . .” (Emphasis added.)

       General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.”
      General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”
      General Statutes § 53a-72a (a) (1) provides: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such person or a third person.”

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), provides that a criminal defendant may submit to being punished as if he were guilty of the crime charged without expressly admitting his guilt. State v. Amarillo, 198 Conn. 285, 314 n.17, 503 A.2d 146 (1986).

       For a more thorough discussion of the historical background of General Statutes § 51-195, see State v. Nardini, 187 Conn. 109, 118-19, 445 A.2d 304 (1982).

       The defendant’s attorney stated to the trial court, Kline, J., that “[m]y client knows that each side is free to argue for whatever sentence they feel is appropriate. The State’s Attorney has told me, and I’ve told Mr. Anderson, that State’s Attorney Carlson intends, at the time of sentencing, to ask for a 20-year sentence. And my client is aware of that, and he's aware that I have the right to ask for a lesser sentence.”

       Also, we are not persuaded by the state’s argument that the present case is distinguishable from Staples v. Palten, 214 Conn. 195, 571 A.2d 97 (1990), because here, unlike Staples, there is a “causal connection” between the sentence the defendant received and the twenty year maximum sentence the court could have imposed. The state argued that without the agreement, the defendant was exposed to a maximum of thirty-five years had he been sentenced to serve consecutive terms for each offense. The state argued that any time there is a “causal connection” between the maximum sentence agreed to and the sentenced imposed, the agreement falls within the “plea agreement” exception to the statute. The state’s distinction ignores the purpose of the statute, which is to monitor unfettered trial court sentencing discretion. In light of the appropriate construction of remedial statutes, any exception to the statute must be strictly construed.


text:
    State of Connecticut v. Norberto Rivera
    (14098)
    Peters, C. J., Callahan, Covello, Borden and Berdon, Js.
    Argued September 26
    decision released November 19, 1991

      Richard S. Cramer, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert Carlson, Jr., for the appellee (state).
   Covello, J.

This is the defendant’s appeal from his conviction of one count of murder in violation of General Statutes § 53a-54a (a), one count of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a) (2), and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The issues on appeal are: (1) whether the defendant proved a witness unavailable to testify so that the witness’ alleged declaration against penal interest should have been admitted into evidence as an exception to the hearsay rule; and (2) whether statements made by the defendant to sisters of the assault victim after the shootings constitute admissions of a party opponent. In both instances we affirm the judgment of the trial court.

The jury might reasonably have found the following facts. Javier Mautino, the assault victim, is the brother of the defendant’s former girlfriend, Maria Ortiz. After Ortiz ended their relationship in 1984, the defendant remained angry at her and blamed her family for interfering with their romance. On February 3, 1987, in a taped telephone conversation with Ortiz, the defendant threatened to kill her brother, Mautino. In June, 1988, shortly before the incident underlying the defendant’s conviction, the defendant placed several telephone calls to Ortiz’ sister, Sonia Fraser, telling her that he planned to kill Mautino.

On the evening of July 1, 1988, Mautino and Fernando Fuentes, the murder victim, were at the Peruvian Club in Hartford. The defendant, who was also present, argued with Mautino and challenged him to a fight outside. Mautino declined and the defendant, calling him a coward, departed. When Mautino and Fuentes left shortly thereafter, the defendant who had remained outside the club, shot both men. Fuentes died from his wounds and Mautino, although surviving the assault, died from cancer before the trial.

On July 13,1990, a jury rendered a guilty verdict on all counts. The trial court sentenced the defendant to three terms of imprisonment: fifty years for the first count of murder; twenty years for the second count of attempted murder; and twenty years for the third count of assault in the first degree. The second and third counts were to run concurrently and both were to run consecutively with the first count for a total effective sentence of seventy years.

I

The defendant first claims that declarations by a third party, Hernán Vieira, Jr., to the defendant’s nephew, Jose Rivera, should have been admitted into evidence as declarations against Vieira’s penal interest. In an offer of proof made outside the presence of the jury, the defendant elicited testimony from Rivera concerning Vieira’s statements. Rivera testified that in December, 1989, approximately eighteen months after the shooting, he saw Vieira in Connell’s Cafe in Hartford. Vieira approached him and inquired about Rivera’s uncle, the defendant. After Rivera informed him that the defendant was in jail, Vieira allegedly said, “Everything happened too fast. I had to do what I had to do to protect your uncle’s life.” Defense counsel, maintaining that Vieira was unavailable, sought to introduce Vieira’s statements through Rivera to exculpate the defendant. The state objected on the ground that the defendant had not proven that Vieira was unavailable.

In any analysis of the admissibility of a declaration against penal interest, one must first determine whether the declarant is unavailable; if, and only if, this is shown by the proponent of the proffered hearsay statement will the court proceed to examinations of trustworthiness. State v. DeFreitas, 179 Conn. 431, 441-43, 426 A.2d 799 (1980); see also State v. Frye, 182 Conn. 476, 480-81, 438 A.2d 735 (1980). In Frye, we recognized five of the most common situations in which the declarant will be deemed unavailable for the purposes of certain hearsay exceptions. The only situation relevant here is when the declarant is “ ‘absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . by process or other reasonable means.’ ” (Emphasis omitted; emphasis in original.) State v. Frye, supra, 481. In interpreting “reasonable means,” we have held that the proponent must exercise due diligence and, at a minimum, make a good faith effort to procure the declarant’s attendance. State v. Aillon, 202 Conn. 385, 391, 392, 521 A.2d 555 (1987), citing State v. Weinrib, 140 Conn. 247, 252, 99 A.2d 145 (1953), and State v. DeFreitas, supra, 445. The trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. “Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters.” Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987).

To prove that Vieira was unavailable, the defendant called Donald Gates, an investigator. Gates testified outside the presence of the jury about his continuing, but unsuccessful, attempts to locate Vieira. In January, 1990, he first learned of Vieira’s possible whereabouts when Rivera informed him that he had spoken to Vieira in Connell’s Cafe in Hartford. Thereafter, Gates checked for him on the streets and several times at the wrong bar, the Cardinal Cafe in Hartford. In addition, Gates asked Rivera and his family to report to him if they saw Vieira. On June 29, 1990, after the trial had begun, a courtroom spectator, Carmen Feliciano, told Gates that her son had seen Vieira recently on Zion Street in Hartford and that her son believed that Vieira lived on Park Terrace. Gates gave her his card and asked her to have her son call him over the weekend. On June 30, 1990, after waiting in vain for a phone call from Feliciano’s son, Gates looked around the Zion Street/Park Terrace area for about one hour to no avail.

On July 3,1990, Gates testified that just that morning he had contacted Vieira’s father, Hernán Vieira, Sr., at 294 Park Terrace through a lead originally obtained from the Hartford Housing Authority. Gates admitted that the name “Hernán Vieira” was on the mailbox. Vieira, Sr., told Gates that his son lived in the Park Street neighborhood and that he thought that his son was attending a driving school in the Enfield area. On July 5, 1990, Gates testified that upon revisiting Vieira, Sr., on July 3, 1990, he obtained Vieira’s date of birth and a description of his car. Gates then called five driving schools in Enfield, but none of them had a student named Hernán Vieira. A sixth school, the New England Tractor Trailor School in Enfield, informed Gates that he would need a subpoena to obtain any information about students and that it would take at least two days to process such a request. Gates obtained and served a subpoena on the school and looked there for Vieira and a car matching the description of his automobile. Gates further testified that by July 5,1990, his last day of testimony, the school had not complied with his subpoena.

The trial court concluded that the defendant had failed to meet his burden of showing that Vieira was unavailable and concluded, therefore, that the hearsay statements made to Rivera should not be admitted into evidence as a declaration against penal interest. The trial court concluded that the defendant’s efforts were simply a case of too little, too late. Among the reasons cited by the trial court were: (1) pertinent information, especially Vieira’s date of birth, was available well before trial; had such information been obtained in a timely manner, the defendant would have had earlier access to sources useful in determining the declarant’s whereabouts, e.g., the department of motor vehicle records; (2) others had seen Vieira on recent occasions; (3) Vieira presently attended a driving school in the Enfield area; (4) Vieira, Sr.’s name had always been on his mailbox and could have been discovered earlier by simply checking with the postal authorities; (5) Gates checked the wrong bar; (6) no one interviewed Vieira’s alleged girlfriend, Luz Gonzalez, who was available; and (7) the police had not been asked for assistance and might have been quite willing to cooperate in this search since they wanted Vieira on an assault charge and he was, according to the testimony of two defense witnesses, a possible murder suspect.

Since the record here adequately reflects a complete examination of the circumstances surrounding Gates’ investigation and since the trial court fully articulated the numerous relevant reasons that supported its ultimate conclusion that Vieira had not been proven unavailable to testify, we conclude the trial court did not abuse its broad discretion in this instance.

II

The defendant next claims that statements he made subsequent to the shootings to sisters of Mautino, the assault victim, were improperly admitted into evidence as admissions of a party opponent. After an offer of proof was made outside the presence of the jury, the trial court determined that the statements were admissions and allowed Laura Rosario and Sonia Fraser, sisters of Mautino, to testify as to the content of telephone conversations they had with the defendant after the shootings. Rosario testified that approximately two weeks after the July 2, 1988 incident, the defendant telephoned her and said, “You know me. I already killed one, and tonight, you are going to see the rest.” After Rosario expressed confusion as to what he meant, the defendant explained, “I am going to blow up your business tonight.” Fraser testified that the defendant telephoned her approximately twelve times after the incident saying, inter alia, “I shot your brother. I am going to kill your brother. I am going to finish with your brother. I am going to get your sister. I am going to get the whole family.” He also told her that he had only “started what he planned to do.” On another occasion the defendant told her that, next time, he would shoot her brother “in the head,” and that he had to do it because Mautino was the only witness.

The defendant maintains that the trial court abused its discretion in admitting these statements because their prejudicial effect outweighed their probative value and they were only peripherally and tangentially related to the defendant’s state of mind when the shootings occurred. The defendant does not challenge the admissibility of those parts of his statements to the witnesses wherein he admitted shooting and killing Fuentes and shooting Mautino. He claims, however, that his statements regarding his intent to kill the rest of the family should have been excluded. We disagree.

“Among the recognized exceptions to the hearsay exclusionary rule is that for admissions of a party.” State v. Stepney, 191 Conn. 233, 250, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984), citing State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982); C. Tait & J. Laplante, Connecticut Evidence (2d Ed. 1988) § 11.5, p. 330; C. McCormick, Evidence (3d Ed. 1984) § 262, pp. 774-75. “[Statements made out of court by a party-opponent are universally deemed admissible, when offered against him”; 4 J. Wigmore, Evidence (Chadbourn Rev. 1972) § 1048, p. 2; when they are relevant and material to the case. State v. Stepney, supra, 251. “Statements after the act, stating the past intent or motive at the time of the act,” as well as “subsequent statements predicating a then existing state of mind are properly admissible” as admissions. (Emphasis omitted.) 6 J. Wigmore, Evidence (Chadbourn Rev. 1976) § 1732, p. 161. “In both cases the object is to ascertain [the defendant’s] subsequent state of mind, and thence to infer ... his state of mind at the time of the act.” Id., pp. 161-62.

It is clear that these statements are relevant and material to the issues in this case since the jury might reasonably have inferred from their content that they manifested the defendant’s conscious and continuing resolve to do away with Mautino’s entire family. It is reasonable to assume that the jury would find these statements highly probative as they tended to show the defendant’s intent and motive at the time of the shootings. Moreover, while these statements tend to incriminate the defendant, that, in and of itself, does not imply that they are legally prejudicial. “Evidence is not prejudicial ... merely because it tends to incriminate a defendant. See State v. DeMatteo, supra, 702-703; see also United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). The prejudicial effect that the rules of evidence are designed to alleviate is that which ‘results from an aspect of the evidence other than its tendency to make the existence of a material fact more or less probable, e.g., that aspect of the evidence which makes conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.’ United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982); see State v. DeMatteo, supra, 703. The trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. State v. King, 216 Conn. 585, 603, 583 A.2d 896 (1990).” State v. Joly, 219 Conn. 234, 253, 593 A.2d 96 (1991).

Contrary to the defendant’s assertion, the trial court did balance any prejudicial effect against the probative value when it determined that these statements should be admitted into evidence. In finding that the statements were not too prejudicial, the trial court stated that such threats were not “of such a heinous nature that it would prevent the jury from being objective, fair and impartial.” In addition, the trial court, in explaining why this evidence was important to the issue at hand, stated that: (1) the death of the witness Mautino before trial rendered these statements even more probative because of the “paucity of any eyewitness identification”; and (2) in light of the defendant’s previously admitted threats against Ortiz and Mautino, which occurred before the shootings, these postincident threats were highly relevant. We see these findings as fact specific, logical and relevant to the issue confronting the trial court. Accordingly, we find no abuse of discretion in the trial court’s ultimate conclusion to admit the statements.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides: “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; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
      General Statutes § 53a-49 (a) (2) provides: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-59 (a) (1) provides: “assault in the first degree: class B felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

       “ ‘Unavailability as a witness includes situations in which the declarant—(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of his statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance ... [or testimony] by process or other reasonable means. . . .’ ” State v. Frye, 182 Conn. 476, 481-82 n.3, 438 A.2d 735 (1980).


author:
Glass, J.
      Berdon, J.,

text:
    State of Connecticut v. Shawn Henning
    (13765)
    Shea, Callahan, Glass, Covello and Berdon, Js.
    Argued September 27
    decision released November 19, 1991

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

      MichaelE. O’Hare, special assistant state’s attorney, with whom, on the brief, were Frank Maco, state’s attorney, and David Shepack, assistant state’s attorney, for the appellee (state).
   Glass, J.

After a jury trial, the defendant, Shawn Henning, was convicted of felony murder in violation of General Statutes § BSa-Mc. The trial court sentenced the defendant to a term of fifty years, and this appeal followed.

On appeal, the defendant claims that the trial court improperly: (1) denied his motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that the defendant was guilty of felony murder in violation of General Statutes § 53a-54c; and (2) failed to charge the jury on burglary in the third degree as a lesser offense included in the charge of felony murder. We affirm the judgment of conviction.

The jury could reasonably have found the following facts. During the early morning hours of November 29, 1985, the defendant and two companions, Ralph “Ricky” Birch and Tina Yablonski, stole a 1973 brown Buick Regal from an automobile repair shop in Brook-field. That evening, they drove the Buick to New Hampshire. The Buick was damaged and its muffler was lost in New Hampshire. Due to the loss of the muffler, the car’s engine was very loud.

On Sunday, December 1,1985, the defendant, Birch and Yablonski drove the Buick from New Hampshire to Danbury. They arrived in Danbury in the early evening and went to the residence of a friend, Douglas Stanley. While at Stanley’s residence, the defendant and Yablonski “freebased” cocaine. The defendant, Birch and Yablonski left Stanley’s apartment between 11:10 and 11:20 p.m. and drove to New Milford in the Buick. The defendant and Birch dropped off Yablonski at her home on Aspetuck Road at approximately 11:55 p.m. The defendant and Birch drove to a residential area approximately two miles away, driving north on Aspetuck Avenue to its intersection with Marwick Manor. They turned into Marwick Manor and parked the car between 12:10 and 12:30 a.m. on December 2. The defendant and Birch then walked a short distance to the house at 74 Aspetuck Avenue, on the corner of Aspetuck Avenue and Marwick Manor. They entered the house through the back door, which was unlocked. Everett Carr, a sixty-five year old man who lived with his wife and daughter, was alone in the house. Carr’s wife was out of town and his daughter had gone out for the evening at approximately 9:30 p.m. Carr encountered the defendant and Birch in the hallway adjacent to the kitchen on the first floor. A struggle ensued, and either the defendant or Birch went to the kitchen and obtained a carving knife. During the continued struggle, Carr was stabbed repeatedly, which resulted in his death. The defendant and Birch then searched the house for valuables, taking some jewelry, a videocassette recorder and several other small items. They left the house and drove away in the Buick between 12:30 and 1 a.m. The defendant and Birch returned to the defendant’s home in New Milford between 2 and 4:20 a.m. Carr’s daughter discovered her father’s body when she returned home between 4 and 4:30 a.m. on December 2.

I

The defendant’s principal claim on appeal is that the evidence was insufficient to sustain the jury’s verdict finding him guilty of felony murder in violation of General Statutes § 53a-54c. This court has consistently employed a two-part analysis in reviewing a challenge to the sufficiency of the evidence. State v. Famiglietti, 219 Conn. 605, 609-10, 595 A.2d 306 (1991). We first review the evidence in the light most favorable to sustaining the guilty verdict. State v. Tweedy, 219 Conn. 489, 500, 594 A.2d 906 (1991). We then determine, upon the facts thus established and the inferences reasonably drawn therefrom, whether any rational trier of fact could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. Id. “We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. Id.

In undertaking the foregoing analysis, the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence. State v. Grant, 219 Conn. 596, 600, 594 A.2d 459 (1991); State v. Tweedy, supra. “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). After a review of the record, we conclude that the jury could reasonably have determined that the cumulative effect of the evidence was sufficient to establish beyond a reasonable doubt that the defendant committed the crime of felony murder.

The defendant specifically claims that: (1) the lack of scientific or forensic evidence prevented the state from meeting its burden of proof; (2) his actions in the days following the crime were more consistent with innocence than with guilt; and (3) statements he made to his grandmother and a friend in the months after the crime were consistent with his innocence. Viewing the evidence in the light most favorable to upholding the verdict, as we must, we conclude that the evidence was sufficient.

The defendant first focuses on the lack of forensic or scientific evidence in the state’s case. Since direct and circumstantial evidence have equal probative value, however, the absence of forensic or scientific evidence does not make the evidence insufficient per se. State v. Grant, supra, 600. A review of the record reveals the following evidence: First, two distinct sets of footwear imprints in the blood of the victim were found at the scene of the stabbing. There was uncontroverted expert testimony from Henry C. Lee, M.D., director of the state forensic laboratory, that the imprints were made during a struggle before the victim collapsed to the floor. The same two imprints were tracked in the victim’s blood into areas of the house where items of personal property were missing. In addition, the defendant’s former girlfriend, Tina Yablonski, testified that the defendant and Birch drove in the direction of the victim’s house shortly before a very loud car was heard pulling into Marwick Manor, a few hundred feet from the victim’s house. The testimony of two Marwick Manor residents supported Yablonski’s testimony regarding the direction from which the car arrived. The two residents heard the car park on Marwick Manor, and then heard it start up again approximately one half hour later. One witness testified that he heard the car “speed” up the hill when it drove away and that it was out of sight within the one minute it took him to get to the window. When viewed in conjunction with the other evidence presented, the foregoing evidence, while largely circumstantial, was ample to support the jury’s verdict.

The defendant next contends that his actions in the days immediately following the crime are more consistent with innocence than with guilt. “ ‘[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. . . . State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); State v. Foord, [142 Conn. 285, 294, 113 A.2d 591 (1955)].’ State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985).” State v. Grant, supra, 604. The jury may draw such inferences from the evidence or facts established by the evidence as it deems to be reasonable and logical. Id. The jury reasonably and logically could have inferred the defendant’s consciousness of guilt from his actions and statements to police after the murder.

Tina Yablonski testified that she, the defendant and Birch had two discussions about the murder during which the defendant expressed concern about being a suspect. The defendant agreed to go along with a fabricated story regarding the group’s movements during the late evening hours of December 1 and the early morning hours of December 2,1985. During these discussions, the defendant told Birch and Yablonski that they all had to “get [their] stories straight.” The defendant told the story agreed upon to state police detective Patrick McCafferty on December 4, 1985.

On December 5, 1985, the defendant hid the Buick in heavy underbrush near the reservoir in New Milford. After the police, with Birch in the car, encountered the defendant walking on a nearby road, he led them to where the car was hidden. Later that day, the defendant spoke with state police detective Scott O’Mara, and claimed that he had not told McCafferty about the car on December 4, because the car was stolen. The defendant told O’Mara that he, Birch and Yablonski had left Stanley’s apartment in Danbury on the morning of December 2, 1985, between 12:30 and 2:30 and had driven to Yablonski’s house. He said that he and Birch had then gone to either his father’s house or the reservoir. O’Mara testified that, when he showed the defendant a picture of the victim, the defendant indicated that he recognized the victim because of his tattoos, even though no tattoos were visible in the photograph. The defendant said he might have passed the victim on the street. When asked to theorize about what had happened, the defendant referred to the manner of the victim’s death, despite not having been informed of it by O’Mara.

On December 9, 1985, the defendant again spoke with McCafferty. McCafferty confronted the defendant with the conflict between his account of when he, Birch and Yablonski had left the Stanley residence and the account of Effie Coates, the woman who lived with Douglas Stanley. According to McCafferty, the defendant then said: “I have to remember where I was. I know I was with Ricky and Tina.” McCafferty also testified that the defendant’s leg began to shake violently when McCafferty told him that residents at Marwick Manor had heard the Buick on the night of the murder and that the police knew where he had parked and turned around. According to McCafferty, the defendant then stated that he, Birch and Yablonski may have turned around in the victim’s driveway. When McCafferty inquired how the defendant had entered the victim’s house, the defendant responded: “Tina and I did not go into the house.” McCafferty then asked the defendant whether he was saying that Birch had entered the house, to which the defendant responded that McCafferty would have to ask Birch. Finally, the defendant twice denied having killed anyone. From the evidence of the defendant’s actions and statements to police after the crime, including the defendant’s own testimony, the jury was entitled to infer consciousness of guilt and firsthand knowledge of the murder.

Finally, the defendant asserts that statements he made regarding the crime to his grandmother and a friend do not support his conviction. The jury heard testimony from the defendant’s grandmother, Mildred Henning, and a friend, Timothy Saadloff, regarding statements the defendant made to them after the crime. Mildred Henning testified that she had received a telephone call from the defendant in early 1986 during which he told her that he was in trouble, that there had been a burglary and an “old man” had been killed. The defendant told her that he was at the scene of the crime but that he did not kill the victim and that someone else had participated in the burglary. She said that the defendant had sounded upset and that they both had cried. Mildred Henning also testified regarding a subsequent conversation she had with the defendant in August, 1987. She testified that, during that conversation, the defendant had rescinded what he had told her previously, saying that he had never told her about the crime. He said that what he had told her earlier was only what the police had alleged against him.

Timothy Saadloff, who described himself as the defendant’s best friend, testified that he had received a telephone call from the defendant sometime in 1986. The defendant said that he was in a “little bit of trouble.” He told Saadloff that he and a friend had broken into a house, and had surprised the man who lived there, who they thought was not at home. The defendant told Saadloff that the man had been murdered, but that he did not do it and that his friend had done it. Saadloff recalled that the defendant had used the word “stabbing” when referring to how the man had been killed.

The testimony of Mildred Henning and Timothy Saadloff was an integral part of the state’s case. While both witnesses testified that the defendant had denied committing the actual killing, the jury could reasonably have inferred from his statements to these witnesses that the defendant was present at the scene of the crime and participated in the burglary. This evidence, when viewed together with all of the evidence presented against the defendant, is sufficient to sustain the jury’s verdict finding the defendant guilty of felony murder beyond a reasonable doubt.

II

The defendant next claims that the trial court improperly failed to charge the jury on burglary in the third degree as a lesser offense included in the charge of felony murder. The information filed by the state charged the defendant with two separate crimes: felony murder in violation of General Statutes § 53a-54c, and burglary in the second degree in violation of General Statutes § 53a-102. At the close of the evidence, the defendant filed a written request to charge with the trial court, requesting that the court instruct the jury-on burglary in the third degree as a lesser included offense of burglary in the second degree. The trial court found that the state had failed to present sufficient evidence that the entering or remaining unlawfully in a dwelling occurred at night, and, therefore, did not submit to the jury the second count of the information charging the defendant with burglary in the second degree. The court instructed the jury only as to the felony murder count of the information, instructing on burglary in the third degree as the underlying felony. The defendant did not request a charge on burglary in the third degree as a lesser included offense of felony murder, and took no exception to the charge as given by the trial court.

Since the defendant neither requested an instruction on burglary in the third degree as a lesser included offense of felony murder nor took an exception to the trial court’s charge, this court is not bound to review the defendant’s claim. For the purposes of this appeal, however, we will treat the issue as properly raised below. We conclude that the requested instruction does not survive the test set forth in State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980).

“ ‘When we are reviewing a trial court’s failure to charge as requested, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” . . . ’ State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986).” State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990). Under State v. Whistnant, supra, 588, a defendant is entitled to an instruction on a lesser included offense only if four conditions are met: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” A review of the record reveals that the defendant was not entitled to a jury instruction on burglary in the third degree as a lesser included offense of felony murder because the fourth condition of Whistnant was not satisfied.

We need spend little time on the first three conditions of the Whistnant test. We will assume, for the purposes of this analysis, that the first condition has been satisfied. It is clear from the information that the defendant could not have committed felony murder without having committed burglary, and, thus, the second condition is also satisfied. Finally, a review of the record reveals some evidence that would justify conviction of the lesser offense, and, therefore, the third condition has been met.

The fourth condition is the critical factor in the present case. We must first differentiate the elements of burglary in the third degree from those of felony murder, and then determine if these elements were sufficiently in dispute to permit the jury consistently to find the defendant innocent of felony murder but guilty of burglary. State v. Whistnant, supra, 588. General Statutes § 53a-54c, which defines felony murder, provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits . . . burglary . . . and, in the course of and in furtherance of such crime ... he, or another participant, if any, causes the death of a person other than one of the participants . . . .” Burglary in the third degree is defined in General Statutes § 53a-103 as “entering] or remaining] unlawfully in a building with intent to commit a crime therein.” Since felony murder, as defined in § 53a-54c, includes the crime of burglary, the only elements that differentiate burglary from felony murder are indicated by the language, “in the course of and in furtherance of such crime . . . he, or another participant, if any, causes the death of a person other than one of the participants.”

The state presented uncontroverted evidence that the death of Everett Carr was caused during the course of and in furtherance of a burglary by one or more of the participants in the burglary. There was evidence of two distinct sets of footwear imprints in the blood of the victim made during a struggle before the victim collapsed. The injuries sustained by the victim indicated a struggle with one or more assailants. Both footwear imprints were tracked in the victim’s blood into rooms where items of personal property were missing, and blood was found on articles of clothing and a dresser drawer. In addition, the defendant’s grandmother testified that the defendant had admitted to her in early 1986 that he had been present at a burglary in which an “old man” had been killed. Finally, Timothy Saadloff testified that the defendant had told him in 1986 that he had participated in a burglary, in which a man was stabbed to death by the defendant’s friend.

In State v. Morin, 180 Conn. 599, 602, 430 A.2d 1297 (1980), the defendant was charged with felony murder, and he requested a lesser included offense instruction on burglary or robbery in the first degree. The only issue that was arguably in dispute was the cause of death of the eighty year old victim, who died more than four months after the defendant had severely beaten him while robbing him in his home. Id., 605. This court found that, despite the time lapse between the injuries inflicted by the defendant and the victim’s death, the evidence, when viewed in the light most favorable to the defendant, supported the jury’s conclusion that the victim’s death was caused by the defendant in the course of a burglary or robbery. Id., 609. Thus, the jury could not consistently have found the defendant guilty of the lesser crimes of robbery or burglary and not guilty of felony murder. Id.

In the present case, the causal link between the burglary and the victim’s death was more direct than it was in Morin and is undisputed by the defendant. The evidence presented by the state was controverted only by the defendant’s trial testimony that he did not participate in either the burglary or the murder. The jury thus had before it evidence that indisputably showed a killing committed in the course of a burglary and sufficient evidence implicating the defendant in the burglary, on the one hand, and the defendant’s testimony that he was not present, on the other. The jury was entitled to disbelieve the defendant’s testimony.

Participation in the underlying felony is sufficient to sustain a conviction of felony murder. Viewing the evidence in the light most favorable to the defendant, there was simply no evidence to allow the jury consistently to find that the defendant had participated in the burglary but was innocent of the felony murder charge. Since the elements that differentiate burglary from felony murder were thus not sufficiently in dispute, the defendant has failed to satisfy the fourth condition of State v. Whistnant, supra. We therefore conclude that the defendant was not entitled to a jury instruction on burglary in the third degree as a lesser included offense of felony murder.

The judgment is affirmed.

In this opinion Shea, Callahan and Covello, Js., concurred.

Berdon, J.,

concurring. I agree with the majority that the judgment of felony murder should be affirmed. I, however, disagree with the majority’s consideration of whether there was sufficient evidence to instruct the jury on the lesser included crime of burglary in the third degree. Whistnant makes clear that to be entitled to a jury instruction on a lesser included offense, the party seeking the charge (either the state or the defendant) must request such an instruction. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). In this case the majority correctly points out the “defendant neither requested an instruction on burglary in the third degree as a lesser included offense of felony murder nor took an exception to the trial court’s charge. . . .” Preclusion of a claim of ineffective assistance of counsel, if that be the purpose of the majority in reviewing the merits of the claim, should be left to another day in another forum. Accordingly, I concur in the result.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit . . . burglary . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       “[General Statutes] Sec. 53a-103. burglary in the third degree: CLASS D felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.
      “(b) Burglary in the third degree is a class D felony.”

       Testimony at the trial indicated that Aspetuck Road and Aspetuck Avenue are distinct roads.

       Two witnesses, Alice Kennel and Brian Church, heard the car pull into Marwick Manor from their second floor bedrooms at 16 and 68 Marwick Manor, respectively. Kennel described the car as “terribly noisy,” while Church referred to a “very loud” muffler sound.

       According to Yablonski, on one of these occasions the defendant said: “What if we get caught? What if they suspect us?”

       The defendant, Birch and Yablonski agreed to tell the police that they had left Douglas Stanley’s apartment in Danbury between 12:30 and 1 a.m. on December 2, 1985, and had hitchhiked from there to New Milford. In his trial testimony, the defendant admitted that he had agreed to tell a false story to the police, and that he had in fact done so.

       The defendant admitted having said words to this effect.

       The defendant told a different story at trial. He testified that, after leaving the Stanley residence in Danbury at approximately 11:30 p.m., he, Birch and Yablonski stopped for approximately forty-five minutes to smoke cocaine. After the defendant and Birch drove Yablonski to her house, they drove to two different locations in New Milford to siphon gas. They then returned to the defendant’s father’s house.

       The defendant told O’Mara that he thought someone had interrupted a burglary and that it would have been sufficient to knock out the victim rather than “slice” him.

       The defendant’s grandmother testified that the defendant had told her that there was a dog in the area where the man was killed. She recalled the defendant saying during the early 1986 conversation that the dog had been killed. A dachshund, belonging to the victim’s daughter, was in the house on the night of the crime but was apparently unharmed. In light of the substantial other evidence against the defendant, this inconsistency between the defendant’s statement and the facts does not affect the overall sufficiency of the evidence.

       The defendant raises two additional claims, both of which relate to the claim for a lesser included offense charge. First, the defendant claims that alibi should be treated as a defense, and that there was sufficient evidence of alibi presented to require a jury charge regarding lesser included offenses to felony murder. Second, the defendant asserts that the trial court erred by failing to remedy its error during the defendant’s postverdict motion for acquittal. The defendant claims that the trial court should have remedied its error by acquitting him of the felony murder charge and finding him guilty of burglary in the third degree. The defendant abandoned the foregoing claims at oral argument. Moreover, since we find that the trial court properly omitted the lesser included offense instruction, these claims must necessarily fail.

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

       The relevant portion of the defendant’s request to charge read as follows: “3. LESSER INCLUDED OFFENSES. If you find that the State has proven beyond a reasonable doubt that the accused entered or remained unlawfully in the premises with the intent to commit a crime therein, but do not find that the entry or remaining unlawfully took place at night beyond a reasonable doubt then you shall determine whether the accused committed the crime of burglary in the third degree.”

       Pursuant to Practice Book § 4185, this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” In criminal cases, this section does not bar review where a defendant claims, and this court finds, denial of a “fundamental constitutional right and a fair trial.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); see also State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). No such claim was raised in the present case.

       The first count of the information alleged that “at the Town or City of New Milford on or about 9:30 p.m. on December 1,1985, and 4:30 a.m. on December 2, 1985, the said Shawn Henning acting with another person, to wit: Ralph ‘Ricky’ Birch committed and attempted to commit burglary at 74 Aspetuck Avenue, New Milford and in the course of and in furtherance of such burglary or in flight therefrom, the said Shawn Henning or Ralph ‘Ricky’ Birch did cause the death of another person not a participant in the crime, to wit: Everett Carr in violation of Connecticut General Statutes § 53a-54c.”

       Evidence that would justify a conviction of burglary in the third degree includes: (1) the testimony that a very loud car driving north on Aspetuck Avenue pulled up and parked near the Carrs’ residence between 12:10 and 12:30 a.m. on December 2,1985, and drove away approximately thirty minutes later; (2) evidence that items of personal property were missing from the Carrs’ house; and (3) the defendant’s statements to Mildred Henning and Timothy Saadloff, in which the defendant admitted participating in a burglary at which a man was killed.

       Participation in the underlying felony may not be enough to sustain a conviction, when a defendant, who was not the only participant in the underlying felony, asserts the affirmative defense that he “(A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.” General Statutes § 53a-54c. This statutory defense was not raised by the defendant in the present case.