text:
    State of Connecticut v. Lionel Brown
    (14883)
    Berdon, Norcott, Katz, E. O’Connell and M. Hennessey, Js.

      Argued December 2, 1994
    decision released March 28, 1995

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Philip D’Eramo, former assistant state’s attorney, and, on the brief, Eugene J. Callahan, state’s attorney, for the appellant-appellee (state).

      Lauren Weisfeld, assistant public defender, for the appellee-appellant (defendant).

       The state’s motion for reargument en banc was granted May 8,1995. This opinion has been superseded by State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995).

   Berdon, J.

The defendant, Lionel Brown, was convicted after a jury trial of, inter alia, attempted larceny in the third degree in violation of General Statutes §§ 53a-49 (a) and 53a-124 (a) (2), and forgery in the third degree in violation of General Statutes § 53a-140 (a). The defendant appealed to the Appellate Court, which reversed his convictions on these two counts and remanded the case to the trial court with direction to render the following judgments: As to the forgery count, the Appellate Court ordered the trial court to render a judgment of acquittal. As to the attempted larceny count, the Appellate Court ordered the trial court to render a judgment of guilty on the lesser included offense of attempted larceny in the fourth degree in violation of General Statutes §§ 53a-49 (a) and 53a-125 (a), and to resentence the defendant accordingly. The Appellate Court also held that the trial court did not violate the defendant’s constitutional rights when it failed to investigate a report of jury misconduct. State v. Brown, 33 Conn. App. 339, 635 A. 2d 861 (1993).

The state and the defendant both petitioned this court for certification to appeal. We granted the state’s petition for certification to appeal whether the Appellate Court had incorrectly concluded that (1) there was insufficient evidence to support the defendant’s conviction on the forgery count, and (2) the dollar amounts that the defendant and his coconspirators attempted to steal could not be aggregated in order to support a conviction of attempted larceny in the third degree. We also granted the defendant’s petition for certification to appeal whether the Appellate Court should have ordered the trial court to conduct a hearing on the report of jury misconduct. We disagree with the state on both of its certified issues, but agree with the defendant on his cross appeal.

The jury could reasonably have found the following facts. On May 8,1991, at approximately 2:45 p.m., the defendant entered the Gateway Bank in Wilton. He identified himself to a bank teller as Clifford Sailer and attempted to make a split deposit involving two checks. Both checks were made payable to and endorsed by “Clifford Sailer.” The first check, which the defendant sought to deposit, was drawn on the account of Beth Anne Onderko in the amount of $728.90. The second check, which the defendant sought to cash, was drawn on the account of St. Pauls Inn of North Carolina in the amount of $960.

The teller, who was acquainted with the real Clifford Sailer, was suspicious of the defendant. She asked him for identification, but he could not produce any. The teller refused to complete the transactions, and the defendant left the bank, taking the checks with him. The teller then notified the bank manager of the incident.

A few moments later, a man identifying himself as Robert Black entered the bank and attempted to make a split deposit involving three checks, all of which were made payable to and endorsed by “Robert Black.” The man sought to deposit the first two checks, which were in the amounts of $776.10 and $78. He wanted to cash the third check in the amount of $880. When he could not produce any identification as requested, the bank manager refused to complete the transactions and the man left the bank. The bank manager then watched him as he joined the defendant and a woman in a waiting car. The bank manager noted the license plate number and called the Wilton police.

Shortly thereafter, a Wilton police officer stopped the car and arrested the three occupants. The woman, who was driving, carried identification in several names, along with $600 in cash. The man who previously had identified himself as Black carried $453. The defendant possessed a valid identification, $32, a deposit slip with Sailer’s address written on it, a paper on which another name and address were written, and two checks totaling $1192 payable to Barbara Matison.

The police also seized a manila envelope from the car. Among the items in the envelope were various bank papers, checks, checkbooks, torn signature cards, customer receipts and change of name forms.

I

We first consider the state’s claim that the Appellate Court improperly concluded that there was insufficient evidence to support the defendant’s conviction on the forgery count.

“[W]e have consistently employed a two-part analysis in appellate.review of the sufficiency of the evidence to sustain a criminal conviction. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. Id. That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence. State v. Carpenter, 214 Conn. 77, 79, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992).” (Internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 570, 638 A.2d 578 (1994). We must be mindful, however, that “[although the jury may draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). Each essential element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).” (Internal quotation marks omitted.) State v. King, 216 Conn. 585, 601, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991).

In order to prove forgery in the third degree, the state was required to establish beyond a reasonable doubt that the defendant, while possessing an intent to defraud, deceive or injure another, had falsely made, completed or altered a written instrument, or had issued or possessed any written instrument which he knew to be forged. General Statutes § 53a-140; see footnote 3. As the Appellate Court noted, however, “the only evidence produced concerning the forgery of the checks was (1) the manila envelope and its contents, (2) the defendant’s conduct, and (3) the bank teller’s statement that the endorsements on the checks looked like [Sailer’s] signature. There was no evidence that the endorsements were not that of [Sailer].” State v. Brown, supra, 33 Conn. App. 349. The Appellate Court, therefore, reversed the defendant’s conviction on the forgery count. Id., 350.

The state argues that the Appellate Court improperly focused “exclusively on the authenticity of the endorsement signature” and disregarded the other methods by which the state could have proved that the defendant had committed forgery. In particular, the state argues that the Appellate Court failed to recognize that “[a]s long as the defendant and/or his accomplices added to a blank check, without proper authorization, the name of the payee, the amount and the maker’s signature, the checks were forged.” The state contends that it presented “strong circumstantial evidence” of such unauthorized additions and that this evidence supported the jury’s verdict of guilty. For example, the state argues that the defendant and his accomplices possessed blank checks drawn on the accounts of Onderko and St. Pauls Inn that matched the two checks the defendant had presented to the bank, that the blank Onderko checks included a carbon copy of the check the defendant had presented, and that the manila envelope found in the car with the defendant included blank checks from seven other accounts.

We find the state’s argument to be lacking. The state failed to present any evidence whatsoever that the payee’s name, the amount or the drawer’s signature on either of the checks was not properly authorized. The state did not call Onderko or any representative of St. Pauls Inn, on whose accounts the allegedly improper checks were drawn, to testify that the checks were not genuine. The state did not call Sailer to testify that he had not personally endorsed the checks or that he had not authorized anyone to do so on his behalf. Moreover, although the state asserts in its brief to this court that some of the checks found in the car “appeared to have been completed in the same handwriting,” the state failed to call an expert witness to compare the handwriting. Indeed, the only witness to testify about the appearance of the checks—the bank teller who dealt with the defendant—indicated that the signatures of Sailer appeared to be genuine.

It is fundamental to our system of justice that the state must prove each material element of a criminal offense beyond a reasonable doubt. State v. Deleon, 230 Conn. 351, 362, 645 A.2d 518 (1994). The state, having failed to present any evidence whatsoever of lack of authorization, cannot now contend that the defendant was properly convicted of forgery in the third degree. The judgment of the Appellate Court reversing the defendant’s conviction of that crime, therefore, is affirmed.

II

The state next claims that the Appellate Court improperly concluded that, as a matter of law, the jury could not aggregate the amounts the defendant and his coconspirators attempted to steal in order to convict the defendant of attempted larceny in the third degree. We disagree with the state’s contention and affirm the decision of the Appellate Court.

The key to a proper analysis of this question is the relationship between several different statutes. In this case, we must begin with the underlying crime of larceny. A person is guilty of committing larceny “when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” General Statutes § 53a-119.

The grade of any larceny offense depends upon the value of the property taken. If the value of the property exceeds $500, for example, the crime constitutes fourth degree larceny. General Statutes § 53a-125. If the value of the property exceeds $1000, however, the crime is third degree larceny. General Statutes § 53a-124. In determining the value of the property taken and the grade of the offense, “[ajmounts included in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated . . . .” General Statutes § 53a-121 (b).

The state contends that the defendant attempted to cash a check for $960 and that his coconspirator attempted to cash a check for $880. The sum of these two checks, $1840, is greater than the $1000 threshold necessary for a conviction of larceny in the third degree. The state argues, therefore, that the jury properly applied the statutes to return a guilty verdict against the defendant for attémpted larceny in the third degree.

As the Appellate Court properly recognized, however, the statute allowing for aggregation of property values, General Statutes § 53a-121 (b), is expressly limited “only to aggregation for thefts committed. There is no provision providing for aggregation for thefts attempted.” (Emphasis in original.) State v. Brown, supra, 33 Conn. App. 352. The Appellate Court further recognized that criminal statutes must be construed narrowly; State v. Crowell, 228 Conn. 393, 399, 636 A.2d 804 (1994); and that courts must resolve doubts against the imposition of a harsher punishment. State v. Hinton, 227 Conn. 301, 317, 630 A.2d 593 (1993). The Appellate Court held, therefore, that the jury could not aggregate the value of the checks that the defendant and his coconspirator had attempted to steal.

In accordance with its analysis of these provisions, the Appellate Court held that the jury verdict against the defendant for attempted larceny in the third degree could not stand. Acknowledging, however, that the evidence against the defendant was sufficient to support a finding that he personally had attempted to steal $960, the Appellate Court therefore reduced the charge of which the defendant had been convicted to the lesser included offense of attempted larceny in the fourth degree. See, e.g., Stale v. Carpenter, supra, 214 Conn. 85 (concluding that evidence was insufficient to support conviction for murder and reducing conviction to lesser included offense of manslaughter in the first degree).

The decision of the Appellate Court reflects a thoughtful and well reasoned analysis as well as a proper application of the law. We therefore affirm the judgment of that court on this issue.

Ill

Finally, we consider the trial court’s failure to hold a hearing on the possibility of jury misconduct in this case. The defendant argues that the Appellate Court should have ordered the trial court to conduct such a hearing. We agree.

The following additional facts are relevant to this issue. After the jury had returned its verdict but before the defendant was sentenced, the trial court received a letter from “a concerned citizen and a disenchanted friend.” The letter, which was otherwise unsigned, was addressed to Judge Ripley, who had presided over the case. The letter addressed concerns the author had about “a trial that was held in your court just recently” and said the case involved an African-American who had been charged with “cashing bad checks.” The author stated that a friend named Dana had been on the jury and that Dana had said that, at certain times while the jurors were sequestered in the jury room, Dana could overhear deputy sheriffs talking in the courtroom. On one occasion, according to the letter, Dana heard a deputy recount how a Wilton detective had shown photographs to one of the witnesses “because the witness couldn’t remember what the guy looked like.” According to the letter, Dana also overheard the deputies discussing a “betting pool,” and “they were betting that the defendant would be found guilty because he was black and from New York.”

Judge Ripley, after receiving the letter, gave it to the chief sheriff and instructed the sheriff to deliver it to the office of the state’s attorney. Judge Ripley failed to instruct the sheriff to forward a copy to the defendant’s attorney. The defendant’s attorney, in fact, only learned of the existence of the letter and its content when he arrived in court the following day for a hearing on his motions for a judgment of acquittal or a new trial and for the sentencing of his client. The defendant’s attorney asked the trial court to make the letter a part of the record, and the court agreed. The attorney then incorporated the allegations of the anonymous letter into his motions for a judgment of acquittal or a new trial. The trial court, however, denied both motions and sentenced the defendant to a term of imprisonment. At no time during this hearing did the defendant’s attorney request the trial court to conduct an investigatory hearing to determine whether possible juror misconduct had occurred.

On appeal, however, the defendant urged the Appellate Court to order the trial court to conduct such a hearing, arguing that the trial court’s failure to investigate sua sponte the possibility of jury misconduct had violated the defendant’s state and federal constitutional rights. The majority of the court, however, refused to order such an investigatory hearing, reasoning that the letter itself had set forth with sufficient specificity the allegations of misconduct and that, even if true, these allegations did not amount to a violation of the defendant’s constitutional rights. State v. Brown, supra, 33 Conn. App. 345-46. Judge Lavery of the Appellate Court dissented, arguing that precedent in this state requires the trial court, sua sponte, “to conduct some minimal investigation where it appears that the jury may have been exposed to prejudicial extrinsic evidence.” Id., 356.

On appeal to this court, the defendant argues that the trial court’s failure to hold an evidentiary hearing to investigate the report of jury misconduct deprived him of several rights protected by article first of the Connecticut constitution, including his right to due process of law; Conn. Const., art. I, § 8; his right to trial by jury; Conn. Const., art. I, § 19; and his right to equal protection of the laws. Conn. Const., art. I, § 20. He also argues that the trial court’s actions deprived him of his rights to due process, equal protection and an impartial jury as guaranteed by the fifth, sixth and fourteenth amendments to the United States constitution. We agree with the defendant that our state constitution requires a trial court in such circumstances to conduct a hearing into allegations of jury misconduct.

The facts of this case and the defendant’s arguments implicate two closely interrelated components of constitutional analysis regarding a criminal defendant’s right to an impartial jury. The first component involves the criminal defendant’s right to have his case decided by a jury that is unprejudiced by events and occurrences extrinsic to the court proceeding. The second component, which revolves around the first, involves the scope of the trial court’s duty, when possible jury misconduct is brought to its attention, to determine whether the accused’s constitutional right to a jury trial has been prejudiced, even if counsel for the accused fails to request such an investigatory hearing. We shall address each of these seriatim.

A

As to the first component, it is well established that a criminal defendant has a fundamental right under both the federal and state constitutions to have a jury decide his fate based only upon evidence introduced at trial. As Justice Holmes noted, “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907). Indeed, “[t]he modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court. See Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S. Ct. 546,13 L. Ed. 2d 424 (1965); Patterson v. Colorado, [supra, 462].” State v. Rodriguez, 210 Conn. 315, 325, 554 A.2d 1080 (1989). This constitutional requirement is essential in order to preserve the “full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.” Turner v. Louisiana, supra, 472-73. Furthermore, when we refer to the rubric of jury misconduct with respect to the jury’s exposure to extrinsic material, we include both the jury’s intentional and inadvertent exposure to such material. The constitutional right to a trial by an impartial jury is concerned with whether the jury was exposed to extrinsic material, not how the exposure occurred. Indeed, the manner in which the jury was exposed to extrinsic material is not relevant. “Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U.S. Const., amend. XIV; Conn. Const., art. I, § 8 . . . .” (Internal quotation marks omitted.) State v. Brigandi, 186 Conn. 521, 542-43, 442 A.2d 927 (1982). “Consideration [by the jury] of extrinsic evidence is presumptively prejudicial because it implicates the defendant’s constitutional right to a fair trial before an impartial jury.” State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

These cases make clear that if the jurors in this case were prejudiced by something they may have heard while they waited in the jury room, their verdict cannot stand. The defendant’s attorney, however, did not ask the court to conduct an evidentiary hearing to determine whether the allegations contained in the anonymous letter were true or whether there may have been other instances of jury misconduct that the letter’s author did not detail. The question in this case, therefore, is whether the trial judge has a duty independent of a request by the parties to investigate allegations of jury misconduct.

B

The contours of the second component involved in this case—the scope of the trial court’s independent duty to assure that jurors are unprejudiced throughout the proceedings—are somewhat less well defined. Although the United States Supreme Court has expressed approval for a trial court’s decision to hold a hearing on jury misconduct in response to a motion by one of the parties; see, e.g., Smith v. Phillips, 455 U.S. 209, 216-17, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); Remmer v. United States, 347 U.S. 227, 230, 74 S. Ct. 450, 98 L. Ed. 654 (1954); that court apparently has not considered whether the United States constitution requires a court to order such a hearing sua sponte. Moreover, although the defendant cites a decision of the First Circuit Court of Appeals as imposing such a requirement; see United States v. Anello, 765 F.2d 253, 259 (1st Cir. 1985), cert. denied sub nom. Wendolkowski v. United States, 474 U.S. 996, 106 S. Ct. 411, 88 L. Ed. 2d 361 (1985); we do not read Anello as standing for this proposition. Finally, other federal courts have stated that the trial court has no obligation to conduct an investigation if counsel for neither party has requested it. See, e.g., United States v. Bailey, 952 F.2d 363, 366 (10th Cir. 1991); United States v. Cyphers, 553 F.2d 1064, 1071 (7th Cir.), cert. denied, 434 U.S. 843, 98 S. Ct. 142, 54 L. Ed. 2d 107 (1977). Nevertheless, we need not speculate how the United States Supreme Court would rule on the issue because the defendant in this case also invokes the Connecticut constitution. Accordingly, we decide this issue on state constitutional grounds and need not reach the defendant’s federal constitutional claim. See State v. Joyce, 229 Conn. 10, 15-16 n.6, 639 A.2d 1007 (1994).

This court and the Appellate Court have held that article first, § 8, of our state constitution imposes certain special responsibilities on a trial judge who presides over a criminal case. The reason is simple. “In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975).” (Internal quotation marks omitted.) State v. Brigandi, supra, 186 Conn. 543. In keeping with this jurisprudence, this court has held, for example, that a trial judge violates a defendant’s constitutional right to an unprejudiced jury when it instructs jurors that they may discuss the case among themselves before the case is submitted for deliberations. State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980). The Appellate Court, moreover, has held that our state constitution imposes an affirmative obligation on a trial judge who learns that a juror may have been exposed, outside of the adversarial arena, to information that may have some tendency to affect the juror’s deliberations. In State v. Gonzalez, 25 Conn. App. 433, 439-40, 596 A.2d 443 (1991), aff'd on other grounds, 222 Conn. 718, 609 A.2d 1003 (1992), the Appellate Court held that, “[i]n order to determine whether the defendant has been deprived of his right to an impartial jury, the trial court must first determine what, if anything, was said, and if necessary, how the jury interpreted and reacted to the communication made.” Furthermore, in State v. Harris, 32 Conn. App. 831, 836, 632 A.2d 50, appeal dismissed, 230 Conn. 347, 644 A.2d 911 (1994), the Appellate Court stated that “[t]he trial court must conduct a hearing to determine whether jury misconduct occurred. . . . The hearing allows the trial court to assess the credibility of witnesses and the weight to be accorded their testimony. . . . Once the trial court finds that consideration of extrinsic evidence occurred, the court must then determine whether the misconduct actually prejudiced the defendant.” (Citations omitted.) See also State v. Jaynes, 35 Conn. App. 541, 562, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d 880 (1994).

The writings of the earliest legal scholars in this state, as well as our earliest case law, confirm that this approach is the proper one under our common law. Chief Justice Zephaniah Swift, writing in 1822, detailed the obligations of the parties and the trial judge when reports of jury misconduct arise: “In motions to set aside the verdict for misbehaviour of the jurors or the parties, the facts which are the ground of the motion, must be specially stated; and the opposite party may deny or demur to them: when the facts are contested, the court must ascertain their truth, by the testimony of witnesses; and where they find them true, if they are insufficient, the verdict will not be set aside.” (Emphasis added.) 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) p. 776. Indeed, the earliest cases of our Supreme Court indicate that a trial judge, when faced with allegations of jury misconduct, must undertake a fact-finding inquiry in order to determine the veracity of allegations of jury misconduct. See, e.g., Pettibone v. Phelps, 13 Conn. 445, 451-52 (1840) (“[i]n this case, the court has found, that the juror, while the cause was on trial, said to one of the plaintiffs’ witnesses, that the trial had been lengthy, and the cause protracted”); Bennett v. Howard, 3 Day (Conn.) 219, 223 (1808) (“[i]n this case, the court below found, that one of the jurors conversed freely with persons not of the jury, about the case, while it was on trial”).

Furthermore, our more recent decisions, although not specifically referencing the Connecticut constitution, support this view. In State v. Savage, 161 Conn. 445, 450, 290 A.2d 221 (1971), we held that “[ujnless the facts as to outside contact with a juror conclusively show prejudice, the trial court is not bound to declare a mistrial. Rather, the proper procedure is for the court to conduct a hearing, formal or informal as the occasion may demand, in the presence of a court reporter, at which the facts can be established.” (Emphasis added.) Similarly, in State v. Castonguay, 194 Conn. 416, 436, 481 A.2d 56 (1984), we noted that although the trial court had improperly instructed the jury that it could discuss the case before entering formal deliberations, “we certainly will not accept the defendant’s speculation that the jurors did in fact discuss the evidence and evaluate it.” Instead, we remanded the case for an evidentiary hearing so that the trial court could determine whether the jurors had, in fact, done so.

Finally, we have held that certain rights of constitutional magnitude are so fundamental that the trial court commits reversible error when it fails to ask, independent of any motion or request by the parties, whether the defendant has knowingly and voluntarily waived the right. Such rights include the right to represent oneself; State v. Frye, 224 Conn. 253, 262, 617 A.2d 1382 (1992); the right to have a trial by jury; State v. Williams, 205 Conn. 456, 461, 534 A.2d 230 (1987); and the.right to be represented by an attorney who does not have a conflict with the defendant. State v. Williams, 203 Conn. 159, 166-67, 523 A.2d 1284 (1987). Surely, the right of a defendant to be tried by fair and impartial jurors who have not committed misconduct is a right of the same magnitude and, therefore, requires the trial court, when put on notice of possible jury misconduct, independently to assure that the judicial process has not been impermissibly tainted.

We conclude that due process of law under article first, § 8, of our Connecticut constitution requires the trial court to ensure that a jury remains impartial and unprejudiced throughout the trial. When a judge is alerted to the possibility that a juror may have been exposed, outside of the adversarial arena, to information that may tend to affect his or her deliberations, the judge has an independent obligation to investigate by conducting an evidentiary hearing into the allegations. Only in this manner may the court determine whether a juror has been exposed to prejudicial extrinsic evidence and, as a result, whether the defendant’s fundamental right to an impartial jury under our state constitution has been protected. Indeed, the judge’s constitutional obligation to ensure that justice is done is not discharged merely because the defendant has failed to request such a hearing. The trial judge, after all, “is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome.” State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972).

The nature and scope of this hearing, of course, will depend on the nature of the allegations of juror misconduct. “There is no magic formula that the trial court must follow in conducting this inquiry. Rather, it must use whatever inquisitorial tools are necessary and appropriate to determine whether there was a ‘reasonable possibility’ of prejudice.” United States v. Savage, 701 F.2d 867, 871 (11th Cir. 1983). The only limitation upon the court is that, in taking whatever investigatory actions it deems appropriate, it does so with counsel for both parties present and with an opportunity to participate in the proceedings. See Remmer v. United States, supra, 347 U.S. 229-30. These proceedings, of course, must be recorded by the court reporter. State v. Savage, supra, 161 Conn. 450.

A trial court not only has wide discretion in deciding how to pursue the initial inquiry, but also in determining “the nature and effect of information that comes to a juror improperly as well as its potential effect upon the jury if it learns of it. See generally Marshall v. United States, 360 U.S. 310, 312, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959); Remmer v. United States, supra, [347 U.S.] 229-30; United States v. Hillard, [701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S. Ct. 2431, 77 L. Ed. 2d 1318 (1983)].” State v. Rodriguez, supra, 210 Conn. 326. Similarly, in cases where the court determines that the defendant has been prejudiced, the court is vested with discretion to grant the defendant’s motion for a mistrial or, if the verdict has already been rendered, to grant a motion to set aside the verdict. See id., 326-27.

It is clear that the trial court in this case should have conducted a hearing to investigate the possibility of jury misconduct once it received the letter. Although the letter was anonymous, it was addressed to Judge Ripley, who had presided over the case, and referred to the trial of an African-American who had been charged with “cashing bad checks.” The author said a friend named Dana had been a member of the jury, and, in fact, a woman named Dana L. Clarke had been a juror on the defendant’s case. The author referred to Dana’s statements that the jury, while waiting in the jury room, had heard the sheriffs discussing the case and the likelihood that the defendant would be convicted. All of these factors, which pointed unavoidably to this case and to the possibility that the jurors had been exposed to extrinsic information that may have influenced their deliberations, required the judge to investigate by conducting a hearing on the allegations.

We disagree with the Appellate Court’s refusal to order a hearing on the grounds that “the note itself set forth with specificity what the author alleged to be the misconduct” and that the court “had a sufficient factual basis on which to determine whether jury misconduct had occurred . . . .” State v. Brown, supra, 33 Conn. App. 345-46. We reach a contrary conclusion for several reasons. First, and most importantly, the letter indicated that the jury, or at least one of the jurors, may have been exposed to racist remarks and attitudes expressed by deputy sheriffs, who are state employees and under the control of the court. Such exposure strikes at the heart of the right to a trial by an impartial jury and the right to equal protection. The alleged wagers by deputy sheriffs that the defendant would be convicted merely because of the color of his skin—wagers made within the halls of justice—singled out the defendant on the basis of race and suggested that the outcome of his trial would hinge on this ground. Such a suggestion is intolerable. Indeed, Justice Norcott, then a judge on our Appellate Court, made this very point in regard to jury selection. His words, however, have equal application to a case wherein the jury is exposed to racist remarks made by court personnel: “[I]t is important that our courts attempt to fashion remedies that both vindicate the accused’s constitutional rights to an impartial jury and protect the pub-lie’s interest in the integrity of the jury selection system, the very bedrock of our truth seeking process. . . . [T]he avoidance of judicial oversight may have been acceptable in times when women, blacks and other minorities were unwelcome within the corridors of the legal system, but they are no longer valid in the pluralistic, race conscious society we inhabit today. . . . Racial bias in jury selection, this courtroom vestige of slavery; D. Colbert, [‘Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges,’ 76 Cornell L. Rev. 1, 6 (1990)]; not only thwarts the exercise of that right, but violates our Constitution and the laws enacted under it [and] is at war with our basic concepts of a democratic society and a representative government. Smithy. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 85 L. Ed. 84 (1940). [I]n such a war the courts cannot be pacifists. People v. Wheeler, [22 Cal. 3d 258, 267, 583 P.2d 748,148 Cal. Rptr. 890 (1978)].” (Internal quotation marks omitted.) State v. Jones, 29 Conn. App. 304, 357-59, 615 A.2d 149 (1992) (Norcott, J., concurring and dissenting).

Second, the very fact that the author of the letter was not a juror, but was instead merely communicating to the court what a friend had said, should have led the court to investigate the allegations. It is quite possible that the author did not personally know about everything the jury may have heard, or that the author had failed to include in the letter certain instances of more prejudicial communications to the jury. As Judge Lavery wrote in his dissent in the Appellate Court, “[t]he letter created the appearance that the jury may have been prejudicially exposed. Therefore, the trial court was required to make some basic factual inquiry about possible misconduct.” State v. Brown, supra, 33 Conn. App. 359. Accordingly, the Appellate Court should have ordered the trial court to conduct an evidentiary hearing on the allegations of jury misconduct contained in the anonymous letter.

We affirm the judgment of the Appellate Court with respect to the first two issues; we reverse the judgment of the Appellate Court with respect to the third issue, and remand the case to that court with direction to remand the case to the trial court for an investigatory hearing.

In this opinion the other justices concurred.

       The defendant also was convicted of conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-124 (a) (2), and criminal impersonation in violation of General Statutes § 53a-130 (a) (1). He has not contested these convictions.

       General Statutes § 53a-49 provides in pertinent part: “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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-124 provides in pertinent part: “larceny in the third degree: class D felony, (a) A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds one thousand dollars . . . .”
      General Statutes § 53a-119 provides in pertinent part: “LARCENY DEFINED. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       General Statutes § 53a-140 provides: “forgery in the third degree: CLASS B misdemeanor, (a) A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or issues or possesses any written instrument which he knows to be forged.
      “(b) Forgery in the third degree is a class B misdemeanor.”

       General Statutes § 53a-125 (a) provides: “A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars.”

       We certified the following questions for review: (1) “Whether the Appellate Court properly reversed the defendant’s conviction of forgery in the third degree on the ground of insufficient evidence?” and (2) “Whether the Appellate Court properly reduced the defendant’s conviction of attempted larceny in the third degree to attempted larceny in the fourth degree on the ground that General Statutes § 53a-121 (b), which permits aggregation of the amounts of separate thefts when committed pursuant to a scheme, does not apply to attempts?” State v. Brown, 228 Conn. 926, 638 A.2d 40 (1994).
      “Should the Appellate Court have directed the trial court to conduct a hearing into allegations of juror misconduct in the circumstances of this case?” State v. Brown, 228 Conn. 925, 638 A.2d 40 (1994).

       A split deposit is the simultaneous depositing of one or more checks and the cashing of another.

       A person is guilty of criminal attempt when, acting with the intent necessary to commit the crime, he “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-49 (a) (2).

       The letter read as follows:
      “Dear Judge Ripley;
      I am writing this letter as a concerned citizen and a disenchanted friend. Myself and a group of friends were out for drinks this past week and somehow the conversation turned to the subject of a few of us being called for jury duty. My friend Dana starts telling us about a trial that she had been involved in. I believe the case involves a trial that was held in your court just recently. The case involvejd] a black man that was on trial for cashing bad checks. She was telling us that several times during the course of the trial the jury would be sent back into the jury room. She said a few times she could hear conversation from the court room. One day she heard one of the sheriffs telling another that he saw a Wilton detective showing some pictures to one of the witnesses because the witness couldn’t remember what the guy looked like. I don’t know what the legal term for something like this is called, but it is improper to allow that to happen. She also told us about a betting pool that the sheriffs had going, they were betting that the defendant would be found guilty because he was black and from New York. Several years ago my brother was found guilty in [a] criminal case because the jury had been allowed to hear things that prejudiced them against him. I didn’t think things like this were that common place. But I was wrong.
      I have thought about this for several days now and have decided that I should [send] copies of this letter to the Norwalk Hour, Chief Prosecuting Attorney, and to the defendant’s Attorney, Mr. Steven Weinstein.”
      The defendant’s attorney at the time of trial, Stephen Feinstein, whose name was spelled differently than the author of the letter believed, indicated that he had not received a copy of the letter.

       For each charge of third degree larceny and conspiracy to commit third degree larceny, the defendant received a four year sentence, to be suspended after two years, with probation for three years; for criminal impersonation and for third degree forgery, the defendant received a six month sentence on each. All of the sentences were to run concurrently.

       Article first, § 8, of the constitution of Connecticut, as amended by article XVII of the amendments, provides in pertinent part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”

       Article first, § 19, of the constitution of Connecticut, as amended by article IV of the amendments, provides, in pertinent part: “The right of trial by jury shall remain inviolate . . . .”

       Article first, § 20, of the constitution of Connecticut, as amended by articles V and XXI of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

       The state contends that the defendant has failed properly to preserve this claim and, therefore, is barred from seeking appellate review of the trial court’s decision. The state claims (a) that “any claims arising out of the anonymous letter should have been raised by a petition for [a] new trial under Practice Book § 904 instead of a motion for a new trial under Practice Book § 902,” and (b) that our decision in State v. Sauris, 227 Conn. 389, 631 A.2d 238 (1993), prevents us from ordering the trial court to conduct a hearing if the defendant failed to request one. We disagree with both contentions.
      First, while it may, in fact, be true that if the defendant were requesting a new trial he needed to have done so by invoking the provisions of § 904, the defendant is not requesting that form of relief. Instead, the defendant merely is requesting an evidentiary hearing before the trial court. Thus, the Practice Book sections cited by the state are inapposite.
      Second, the state misapprehends both the factual setting of Sauris and our holding in that case. In Sauris, the defendant claimed error in the trial court’s refusal to grant his motion for a judgment of acquittal. We explained that in such a case, “the appellant bears the burden of furnishing a record adequate to review a claimed error.” Id., 403. Noting that the defendant had failed to request a voir dire of the individual jurors or request an evidentiary hearing into the allegations of juror misconduct, we held that we could not review his claim of error. Here, however, the defendant is not seeking a reversal of his conviction at this stage, but merely an evidentiary hearing into the allegations of misconduct, and he argues that the trial court was required to order such a hearing sua sponte. In fact, the defendant is seeking the very type of hearing on appeal that the defendant in Sauris failed to request at any time. Our holding in Sauris, therefore, does not prevent us from ordering the trial court to conduct such a hearing. Finally, the defendant in Sauris never claimed that the trial court’s failure to conduct, sua sponte, an investigatory hearing had violated the defendant’s state or federal constitutional rights, and that issue, therefore, was not before us on appeal.

       Indeed, to the extent that Anello is applicable at all, that case seems to undermine, rather than bolster, the defendant’s argument. In Anello, the court learned during in camera interviews with each juror that one alternate juror had seen one regular juror “using a calculator, apparently to determine how much money defendants might make from their drug transactions. The court dismissed both jurors, but it did not ask the other jurors about the incident.” United States v. Anello, supra, 765 F.2d 258-59. The First Circuit Court of Appeals held that the trial court had not abused its discretion in failing to conduct a more thorough investigation. Id., 259.

       Although we hold that the trial court has an obligation, sua sponte, to conduct some sort of an investigatory hearing when it learns of possible juror misconduct, it remains appropriate for either the state or the defendant to initiate such a proceeding by moving to this effect as soon as possible.


source: Caselaw Access Project

author:
      Callahan, J.
      Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Bobby Groomes
    (15122)
    Peters, C. J., and Callahan, Borden, Berdon and Norcott, Js.

      Argued January 12
    decision released March 28, 1995

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   Callahan, J.

This appeal concerns several issues arising out of the criminal trial of the defendant, Bobby Groomes. The defendant appealed from his convictions of twenty-four separate counts that were tried together to a jury. He was convicted of one count of burglary in the first degree as an accessory; General Statutes §§ 53a-101 (a) (1) and 53a-8; one count of robbery in the first degree; General Statutes §§ 53a-134 (a) (4) and 53a-8; one count of larceny in the second degree as an accessory; General Statutes §§ 53a-123 (a) (l) and 53a-8; two counts of burglary in the second degree; General Statutes § 53a-102; one count of attempted burglary in the third degree; General Statutes §§ 53a-103 and 53a-49; and eighteen counts of burglary in the third degree. General Statutes § 53a-103. In a subsequent court trial, the defendant also was convicted of being a persistent serious felony offender; General Statutes § 53a-40 (b); and was sentenced to a total effective sentence of seventy-five years incarceration.

The facts are undisputed. There had been a large increase in the number of burglaries in the Westville area of the city of New Haven beginning in the first week of August, 1991. In many of the burglaries, garages were broken into and bicycles were taken. In response, Detective Frederick Hurley and Officer Michael Pachesa of the New Haven police department conducted a stakeout in Westville on the night of September 14, 1991. The two officers, dressed in plain clothes, patrolled the area in a pickup truck.

The defendant was a suspect in the recent burglaries because he had been convicted of similar burglaries in the same area. Moreover, he had been released from prison in early August, 1991. Not only were the officers aware of this information, but they also knew that the defendant lived about one-half mile from Westville, in the Valley Street projects. The officers had a picture of the defendant with them during the stakeout.

At about 1:30 a.m. on September 14, 1991, Hurley saw the defendant riding a bicycle on Willard Street in Westville. There was nothing on the bicycle other than the defendant, and he did not appear to have anything on his back. The officers followed the defendant and saw him enter the backyard of a house on Willard Street, where, they knew, he did not live. The officers thereafter unsuccessfully searched several backyards on Willard Street, looking for the defendant. Forty to forty-five minutes later, the officers returned to their truck and resumed their patrol of the area.

Shortly after resuming their patrol, the officers saw the defendant riding a bicycle on Barnett Street, also in Westville. At that time, the officers observed that the defendant had a backpack on his back and had an aluminum attache case strapped to the back of the bicycle, neither of which had been in his possession earlier. As the officers drove the truck toward the defendant, he jumped off the bicycle and ran into the backyard of a house, leaving the bicycle on the sidewalk. After calling for backup, the officers followed the defendant into the backyard, shouting “Police, stop.”

Andrew Faggio, a uniformed officer who responded to the backup call, subsequently apprehended the defendant in front of a school on Fountain Street. When Hurley arrived at the school, Faggio was trying to handcuff the defendant. Hurley noticed that the open backpack and books it contained bore the name Josh Forrest, which he knew was not the defendant’s name. Hurley then performed a pat down search for weapons and placed the defendant under arrest, orally advising him of his Miranda rights.

The defendant indicated that he was willing to cooperate with the officers and took them to where he had hidden a video cassette recorder (VCR) that he had taken from a residence at 140 McKinley Avenue that night. After recovering the VCR, the officers and the defendant returned to the abandoned bicycle. There they found a video camera in the aluminum attache case, and a red duffle bag containing a Nintendo video game machine, video game cartridges and frozen food. In the bushes in the backyard on Barnett Street where the defendant had gone initially when he had run from the officers, they also found a flashlight, a metal bar and other tools, all of which were consistent with tools used to burglarize buildings.

The officers next went to 140 McKinley Avenue where, the defendant had told the officers, he had stolen the recovered items. The defendant stated to the officers that he had gained access to the house by passing through a backyard on Willard Street, where the officers had seen the defendant earlier. After waking the occupants of 140 McKinley Avenue, the officers asked if anything was missing from their home. An occupant informed the police that a VCR, video camera, Nintendo machine and cartridges and frozen food were missing. In addition, the occupant verified that his son’s book bag was missing, and that his son’s name was Josh Forrest.

The officers then took the defendant to the police station where Hurley again read him the Miranda rights, this time from a waiver form. After reading the rights form, the defendant initialled the waivers and signed the form at the bottom. He stated that he was willing to tell the officers about other burglaries that he had committed, and agreed to show the officers the locations of these burglaries. Hurley took a number of reports that had been filed concerning recent burglaries in the Westville area, and went with Pachesa to drive the defendant around the neighborhood.

As they drove, the defendant pointed out garages or homes that he had entered and told the officers how he had gained entry and what he had taken. Hurley was able to match the details of what the defendant told him with many of the available burglary reports. The defendant indicated some locations, however, for which there were no reports, and there were some reported burglaries to which the defendant did not admit. He refused to sign a written statement regarding the burglaries. The defendant subsequently was charged only in connection with burglaries of those homes which he orally confessed to having burglarized. Additional facts will be discussed as necessary in connection with the defendant’s specific claims.

The defendant claims on appeal that the trial court improperly: (1) denied his motion for severance; (2) denied his motion to suppress his confession and his motion to suppress physical evidence that flowed from an illegal investigative stop; (3) instructed the jury on flight as consciousness of guilt and as independent circumstantial evidence of the defendant’s guilt; and (4) failed to elicit, on the record, a waiver by the defendant of his right to a jury trial on the persistent serious felony offender charge. We affirm the judgment of the trial court.

I

The defendant first claims that the trial court improperly denied his motion for severance. Before trial, the defendant argued that he would be prejudiced substantially by the consolidation in a single trial of all of the counts with which he was charged and that trial of all the incidents should be severed from each other. The defendant offered four reasons in support of his motion for severance: first, the “very fact [that] they’re all very similar crimes would prejudice him”; second, the weight of cumulative evidence might persuade the jury that the defendant must have done something wrong and influence them to convict him when separate trials might lead to acquittals on some or all of the individual counts; third, the jury might use evidence in one case improperly when considering guilt of another; and fourth, the defendant’s decision to testify might be influenced by the consolidation because he might wish to testify regarding only one or several of the charges, but not all of the charges.

The court denied the motion to sever. It found that the facts of the separate cases were not complex, the factual situation would not be inflammatory and the central piece of evidence would be the confession of the defendant, which included all the offenses.

On appeal, the defendant again argues that the trial court improperly rejected his arguments for severance, “but narrows the claim to focus on the compelling need for severing the first three counts (the armed robbery, burglary and car theft from the Bango residence); from the 21 cat burglaries . . . .’’In this court, in other words, the defendant has not argued, as he did at trial, that all counts of the information should have been severed, but has focused instead only on the severance of the first three counts of the information. These counts charged the defendant with being an accessory to burglary in the first degree, robbery in the first degree and larceny in the second degree, and arose from an incident that occurred at the residence of the Bango family, located at 40 Alston Avenue in West-ville on August 24, 1991.

Joseph Bango testified at trial concerning that incident. He testified that at around 3 a.m. on August 24, he was asleep in the sun porch of his home while his parents were asleep on the second floor. He heard a noise that woke him and saw two figures approaching him in the dark. He reached for his hand gun, which was next to him, but hesitated because he thought that one of the figures may have been his father. He thereafter was struck in the head and told to face the wall. There were two people in the room with him, one of whom took his gun, which he knew to be loaded and operable. One of the men then held him at gunpoint while the other searched the house. Bango described the intruder who searched the house as older and more aggressive and referred to him as the leader. He described the man who held him at gunpoint as younger and less aggressive, even apologetic. He said that the perpetrator who had his gun was fascinated with it, asking if it was a “Clint Eastwood” gun and if it was loaded. Bango answered in the affirmative to both questions.

Bango further testified that both of the perpetrators threatened to kill him if he did not tell them where they could find money. The leader also forced him to identify and turn over the keys to his car. While the leader was outside at the car, Bango convinced the younger intruder to let him go upstairs, where his parents were sleeping, to get some money. When the leader reentered the house and saw the two halfway up the stairs, however, he ordered them both downstairs and went upstairs himself. Bango then heard his mother scream and he ran to the basement to get a rifle. The intruders fled in his car. The police later found the car, without its battery, in a parking lot in the Valley Street projects near the defendant’s home.

At trial, the defendant was ordered to speak aloud for a possible voice identification. Bango identified the defendant’s voice as that of the younger perpetrator, but said he was only 60 percent sure of this voice identification.

The defendant argues on appeal that the charges arising out of this incident should have been severed from the twenty-one other charges because of the dissimilarities between the Bango incident and the other burglaries. He argues that the “emotionally charged and prejudicial evidence” regarding this incident influenced the outcome of the case. The defendant claims that this issue was preserved for review. We disagree.

Before the trial court, the defendant argued only that the similarity of all of the charges mandated severance of all of them. There is no basis in the record for the defendant’s argument on appeal that the dissimilarity of the first three counts compelled severance of those charges. “ ‘This court will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the trial court . . . .’ State v. Simms, 170 Conn. 206, 208, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976); Practice Book § 4185.” Skrzypiec v. Noonan, 228 Conn. 1, 13, 633 A.2d 716 (1993). The claim posited by the defendant on appeal, i.e., that the first three counts of the information should have been severed because of the dissimilarity of the Bango incident to the other burglary counts, was not raised at trial and, therefore, the issue was not properly preserved.

In declining to review this claim of the defendant, we do not erect or rely on a technical barrier to review. Rather, we reassert the fundamental principle that, if the defendant deems an action of the trial court necessary to the fairness of his trial, he has a responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily a defendant must raise in the trial court the issues that he intends to raise on appeal.

In this case, by urging the trial court to sever all of the counts on the basis of their inherent similarity, the defendant in effect deflected the trial court from any consideration of severance of the first three counts on the basis of their prejudicial dissimilarity with respect to the other twenty-one counts. To countenance on appeal the defendant’s claim regarding the first three counts would be to impose an untenable burden on the trial court and would amount to appeal by ambuscade. We decline to do so.

The defendant asserts, in the alternative, that the trial court’s denial of severance with regard to these three counts was plain error that denied him a fair trial. “The court may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185. “It is also well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 77, 644 A.2d 887 (1994); State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992); State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987). The trial court did not commit plain error by failing to sever, sua sponte, the first three counts of the complaint.

II

The defendant next claims that the trial court improperly denied his motion to suppress his confession and his motion to suppress physical evidence seized because, he argues, both his confession and the seized evidence flowed from an illegal investigative stop. The defendant argues, relying on State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992), that the officers did not have a reasonable and articulable suspicion that a crime had been or was about to be committed when, upon their second sighting of the defendant, they pursued him into the backyard of a house on Barnett Street. We are not persuaded.

Under both the federal and state constitutions, police may detain an individual for investigative purposes if there is a reasonable and articulable suspicion that the individual is engaged in or about to engage in criminal activity. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). “[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that [stop].” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). “ ‘Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable to show probable cause.’ Alabama v. White, [496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)].” State v. Cofield, 220 Conn. 38, 47-48, 595 A.2d 1349 (1991).

“A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom.” State v. Oquendo, supra, 223 Conn. 654. “The determination of whether a reasonable and articulable suspicion exists involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). We must determine, therefore, whether the trial court’s conclusion that the police had a reasonable and articulable suspicion when the officers observed the defendant running into a backyard on Barnett Street was legally and logically consistent with the facts, including any reasonable inferences derived therefrom.

We determine that the facts that the trial court reasonably found as the basis for its denial of the defendant’s motion to suppress evidence adequately support the court’s conclusion. With respect to the motion to suppress, the court found the following facts. Hurley and Pachesa were conducting a stakeout in the early morning hours on September 14,1991, in an unmarked pickup truck in the Westville area. The officers were aware of the defendant’s past convictions for burglary and that he had been released from incarceration in August, 1991. They considered him a suspect in the recent outbreak of burglaries in Westville. The officers had a picture of the defendant with them on the stakeout.

At approximately 1:30 a.m. the officers spotted the defendant riding a bicycle on Willard Street. The officers noticed nothing on the bicycle other than the defendant and he had nothing on his back. The defendant then ducked into a backyard on Willard Street that the officers knew was not his home. The officers followed the defendant into the backyard but were unable to locate him after searching for approximately forty-five minutes. The officers returned to their truck and resumed their patrol.

The officers next sighted the defendant riding a bicycle toward them on Barnett Street. They noticed that the defendant had something on his back and that there was something on the back of the bicycle. When their truck came to within fifty feet of the defendant, the defendant got off of the bicycle and ran into a backyard on Barnett Street. The officers radioed for backup and then exited the truck to pursue the defendant.

The trial court concluded that at this point the officers had a reasonable and articulable suspicion that a crime had been committed or was about to be committed. The defendant claims that the facts of this case do not support that conclusion. Rather, he argues, the defendant was seized when the officers exited the truck, identified themselves as police officers and ordered the defendant to stop. We disagree.

The defendant likens the facts of his case to those in State v. Oquendo, supra, 223 Conn. 635. In Oquendo, a uniformed police officer in a marked police vehicle came upon two individuals in a residential area at approximately 12:50 a.m. The officer recognized the defendant’s companion as someone who had been arrested recently on burglary charges. There also recently had been a series of burglaries in that neighborhood. The officer noticed that the defendant was wearing a zipped-up winter jacket on the warm August night and was carrying a duffel bag. The officer testified that he had a “hunch” that the defendant had committed or was about to commit a burglary. The officer, therefore, stopped near the defendant, exited the cruiser and questioned the individuals. When the officer was not satisfied with their story, he asked the defendant to approach the police car. When the defendant handed the duffel bag to his companion, the officer instructed the defendant to bring the duffel bag with him. In response, the defendant took the duffel bag from his companion and ran away, discarding the duffel bag in a wooded area. Id., 640-42.

This court concluded that, at the time the police officer in Oquendo had exited the cruiser to stop the defendant, the officer had not had a reasonable and articulable suspicion that a crime had been or was about to be committed. Therefore, the court held, the investigative stop of the defendant had been illegal. Id., 656-57. The court further concluded that, because the stop had been illegal, the defendant’s flight from the officer after that stop could not be used retroactively to justify the stop. The court explained that “[w]hile a suspect’s flight may, in certain cases, be considered in determining whether there existed a reasonable and articulable basis of suspicion . . . police conduct that provokes flight precludes the consideration of this factor.” (Citation omitted; emphasis in original.) Id., 655-56; see also Terry v. Ohio, supra, 392 U.S. 19-20 (in evaluating reasonableness of investigative stop, court must determine “whether the officer’s action was justified at its inception” [emphasis added]); accord State v. Williamson, 10 Conn. App. 532, 540, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987), cited with approval in State v. Oquendo, supra, 223 Conn. 656.

Unlike the facts of Oquendo, the defendant’s flight in this case properly could be considered in determining whether there existed a reasonable and articulable basis of suspicion, because the defendant began to flee before the police attempted to stop him. The trial court found that the defendant ran into the backyard on Barnett Street, having abandoned the bicycle before the officers even exited their unmarked vehicle. In this case, therefore, the defendant’s flight was not an illegally provoked reaction that now is being used retroactively to justify the police officers’ conduct. Rather, the flight was unprovoked, and it was observed by the officers before they took any action.

The defendant’s flight, coupled with the other specific facts known to the officers at the time, gave rise to a reasonable and articulable suspicion that a crime had been committed or was about to be committed and therefore justified the investigative stop. After observing a known burglar go into a backyard of someone’s home at 1:30 a.m., seeing him again approximately forty-five minutes later carrying items that he had not had a short time before and seeing him flee into yet another backyard, the officers not only had more than an ample basis for a reasonable and articulable suspicion, but should have been summarily drummed out of the corps if they had failed to effectuate an investigative stop.

Ill

The defendant next claims that the trial court improperly instructed the jury on the defendant’s flight as consciousness of guilt and as independent circumstantial evidence of the defendant’s guilt. The defendant’s argument is twofold. First, he argues that the instruction on flight was not fair because it did not recite the possible innocent inferences to be drawn from flight. Second, the defendant argues that we should characterize inferences to be drawn from flight as argument, more appropriately presented to the jury by counsel than by the court. The defendant urges, in effect, that we should eschew precedent and no longer permit trial courts to give a flight instruction or that we should require that the instruction be expanded radically. We are not persuaded.

“We have stated: [fjlight, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration.’ (Citation omitted; internal quotation marks omitted.) State v. Holloway, 209 Conn. 636, 651-52, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). ‘The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.’ State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).” State v. Freeney, 228 Conn. 582, 593-94, 637 A.2d 1088 (1994).

The trial court’s jury instruction regarding flight conformed to our case law. The defendant nevertheless claims that the instruction was improper because it was not evenhanded with regard to the possible innocent explanations for the defendant’s flight.

In this case, however, the defendant did not testify or offer any independent evidence of other explanations for his flight. The court was not required to supply to the jury possible innocent explanations that the defendant himself had not offered. Indeed, even when there is such evidence, we have held that, although the trial court may, it is not required to “enumerate all the possible innocent explanations offered by the defendant.” Id., 594.

The trial court properly instructed the jury that “if you find that the defendant’s acts or flights showed consciousness of guilt, you may use that conclusion or inference as independent evidence of guilt along with the other facts of the case to determine whether or not he has been proven guilty . . . .” (Emphasis added.) The instruction did not create a presumption of guilt; State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976); nor did it allow an inference of guilt unless the jury was convinced that flight emanated from a consciousness of guilt. “ ‘The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.’ State v. Nemeth, 182 Conn. 403, 408, 438 A.2d 120 (1980).” State v. Wright, supra, 198 Conn. 281. We conclude that the court’s instruction on flight was proper.

We recently reiterated the appropriateness of the flight instruction in State v. Freeney, supra, 228 Conn. 582. The defendant has not presented any persuasive argument for us to abandon our precedents. We decline his invitation to do so.

IV

The defendant’s final claim is that the trial court failed to elicit, on the record, a proper waiver by the defendant of his right to a jury trial on the charge of being a persistent serious felony offender. The defendant argues that the record is silent as to the defendant’s election of a court trial, and that the court improperly accepted defense counsel’s “bare assertion” of the defendant’s waiver. We disagree.

“The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be ‘knowing and intelligent,’ as well as voluntary. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. . . . In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal [such as in this case], our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 205 Conn. 456, 460-61, 534 A.2d 230 (1987).

Applying these principles, we conclude that the record is not silent with regard to the defendant’s election of a court trial on the persistent serious felony offender charge. Rather, it was only the defendant who was silent. We decline to allow the defendant to preserve a ground for appeal merely by refusing to respond to the court’s questions regarding whether he waived his right to a jury trial.

The facts are as follows. After a recess, which was called for the express purpose of allowing the defendant to confer with his attorney to determine whether he desired a jury trial, the following occurred:

“Mr. Moscowitz [Defense Counsel]: Your honor, I have had discussions with my client. My client indicates to me that he does wish to waive a trial by Jury, but wants a trial by Court. I would indicate for the record what I have advised him and he is basically not going along with my advice, but he did indicate to me verbally, during the short recess that he wished to waive the Jury.
“The Court: Now, Mr. Groomes you understand that you have the right to the Jury. Do you understand that sir? Mr. Groomes.
“Mr. Moscowitz: He’s indicated to me that he’s not going to respond to the Court. I’ve indicated the problem in doing that.
“The Court: Well, Mr. Groomes, if you refuse to answer and you really don’t have to, but I gather that you have listened to Counsel and you are waiving the Jury.” (Emphasis added.)

The defendant’s refusal to respond to the court’s questions does not constitute a silent record as to whether the defendant had waived his right to trial by jury. The record here reflects that, not only did the defendant discuss with his attorney the option of waiving a jury trial, but that he rejected the advice of his attorney by electing a court trial. The defendant’s counsel indicated to the defendant the “problem” in not addressing the court in response to its canvass. What is reflected on the record is not a “bare” assertion by counsel, but rather a silent defendant who, through his attorney, made a voluntary, knowing and intelligent waiver of his right to a jury trial.

“The ‘determination of whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” (Citations omitted.) State v. Shockley, 188 Conn. 697, 707, 453 A.2d 441 (1982). In this case, the defendant knew that he was expected to answer the court’s questions and that he could address the court directly. Earlier in the proceedings the defendant had done so to request different counsel. Furthermore, the defendant had had prior experience with the criminal justice system.

We conclude, in light of the totality of the circumstances on the record, that the defendant waived his right to a jury trial on the persistent serious felony offender charge, and that his waiver was voluntary, knowing and intelligent.

The judgment is affirmed.

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

Berdon, J.,

dissenting. One of the principal issues in this appeal is whether the trial court, for trial purposes, should have severed the three serious felony counts from the twenty-one counts stemming from “cat burglaries.” The defendant, Bobby Groomes, was tried on all twenty-four counts in one trial, which resulted in convictions for which he received a total effective sentence of seventy-five years of imprisonment—a sentence that is fifteen years longer than a life sentence in Connecticut.

Prior to trial, the defendant moved generally to sever each of the twenty-four counts with which he was charged, arguing that a separate trial was needed for each. On appeal, however, the defendant has narrowed this claim. He now argues that of the twenty-four counts with which he was charged, only three should have been severed and tried separately. He claims that the more serious counts of aiding first degree burglary, aiding first degree robbery and aiding second degree larceny—all of which stemmed from the single incident at the Bango home—should have been severed from the less serious counts constituting the twenty-one “cat burglaries.” He bases his argument largely on our decisions in State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987), and State v. Herring, 210 Conn. 78, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

The majority declines to address this issue because the defendant failed to articulate his narrower claim for severance with requisite specificity before the trial court. Concluding that “[t]he claim posited by the defendant on appeal” is not the mirror image of the one he urged at trial, the majority refuses to address it.

I believe the court is wrong for two reasons. First, this court has stated unequivocally that a defendant’s failure to articulate a severance claim at trial is not grounds for refusing to review the issue on appeal. In State v. Herring, supra, 210 Conn. 95 n.16, the state argued that this court should decline to address the defendant’s claim for severance because he had failed to articulate the legal basis for severance before the trial court. We rejected this argument: “We disagree with the state’s contention that we should limit our review of this claim because the defendant failed to raise any of the specific Boscarino factors as grounds for severance at the trial. State v. Boscarino, [supra, 204 Conn. 722-24]. Despite the general rule that ‘this court will not consider claimed errors on the part of the trial court unless there has been a compliance with the provisions of [Practice Book § 4185]’ . . . that rule cannot foreclose a review in the present circumstances. Several of the factors that we stressed in State v. Boscarino [supra, 721-22,] require hindsight in determining whether the defendant received a fair trial. While it may be relevant to consider whether the defendant raised the question of prejudice at trial or requested appropriate curative instructions, the effect of a denial of severance may be difficult to predict in advance of the actual testimony at trial.” State v. Herring, supra, 95 n.16. This reasoning applies with equal force to this case. The majority, therefore, should address and rule on the defendant’s narrow claim of severance.

Second, the plain error doctrine demands that this court hear the defendant’s claim. We have defined plain error to be those “situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the jury proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). The Boscarino factors, which we are to consider in determining whether counts should be severed for trial purposes, are “(1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial.” (Internal quotation marks omitted.) State v. Herring, supra, 210 Conn. 95; State v. Boscarino, supra, 204 Conn. 722-23. In this case, the three counts that the defendant argues should have been severed stemmed from the anomalous incident at the Bango home, which involved a gun and physical violence. Indeed, these three serious felony charges account for forty-five years of the defendant’s seventy-five year sentence of imprisonment.

This court has emphasized that severance is necessary to avoid the “omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all.” (Citations omitted; internal quotation marks omitted.) State v. Boscarino, supra, 204 Conn. 721-22. Fundamental fairness and the integrity of our judicial system demand that we review the defendant’s claim, reverse the convictions and order new trials with the serious felony charges severed from the “cat burglary” charges.

Accordingly, I respectfully dissent._

       The defendant appealed from the judgments of conviction of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       General Statutes § 53a-101 provides in relevant part: “burglary IN the first degree: class b felony, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”
      General Statutes (Rev. to 1991) § 53a-8 provides in relevant part: “criminal liability FOR ACTS OF another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes (Rev. to 1991) § 53a-134 provides in relevant part: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-123 provides in relevant part: “larceny in the second degree: class C felony, (a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and:
      (1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars . . . .”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       General Statutes § 53a-102 provides in relevant part: “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. . . .”

       General Statutes § 53a-103 provides in relevant part: “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. . . .”
      General Statutes § 53a-49 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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
      (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-40 (b) "provides: “A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) of this section and the prior conviction was for a crime other than those enumerated in subsection (a) of this section.” None of the crimes of which the defendant had been convicted is enumerated in § 53a-40 (a).

       The pat down search yielded a screwdriver, wrench and pliers, which, Hurley testified, often are used as burglary tools, as well as wires for a video cassette recorder that were hanging out of the defendant’s pocket.

       See Miranda v. Arizona, 384 U.S. 436, 469-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (“The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. . . . [A]n individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . [and] if he is indigent a lawyer will be appointed to represent him.”).

       Practice Book § 4185 provides in relevant part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .”

       The defendant has not merely “narrowed” his claim on appeal as stated by the dissent, but has changed it completely. We refuse to review the defendant’s claim not because it is not a “mirror image” of the claim he raised at trial, but because it is an entirely different claim. State v. Bosearino, 204 Conn. 714, 529 A.2d 1260 (1987), and State v. Herring, 210 Conn. 78, 554 A.2d 686, cert. denied, 492 U.S. 912,109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989), cited by the dissent, are inapposite because the severance sought in the trial court in those cases was the same as that pursued on appeal. The dissent seems to place some importance on the length of the defendant’s sentence in determining whether severance should have been granted. We find no authority for such a proposition, nor has the dissent cited any.

       The defendant does not argue that the officers lacked probable cause when they arrested him. Our inquiry, therefore, is limited to the issue of whether, prior to arrest, there was a stop made without a reasonable and articulable suspicion.

       The trial court stated: “At this point the Court finds that the police had reasonable and articulable suspicion that a crime had been committed or was about to be committed; and that the police were justified in at least stopping the defendant to stop and question him; and that the police had a particularized and objective basis for suspecting the defendant of criminal activity.” The court went on to find that officers chased the defendant into the backyard and then shouted: “Police, stop.” The court later concluded that there was probable cause to arrest the defendant when Hurley saw the backpack with someone else’s name on it, and that the pat down search was lawful as incident to arrest. Because the defendant only claims that there was an illegal investigative stop, and does not claim that there was no probable cause for his arrest, we need not address the court’s finding of probable cause.

       The trial court instructed the jury in relevant part: “The law of this State recognizes a [principle] known as admission by conduct. Certain conduct of a person may be considered by you to show a guilty knowledge or consciousness of guilt. When a person is on trial for a criminal offense, it is proper to show his conduct subsequent to the alleged criminal offense, which may fairly have been influenced by that act. Flight may indicate consciousness of guilt if the facts and circumstances support it. If you find that the defendant did flee or did hide from the police, following the commission of a crime alleged, you may find that such conduct and such action tend to show a guilty connection with that crime. [In other] words, any actions of the defendant subsequent to the criminal act alleged, which you find showed a guilty knowledge influenced by the criminal act itself may be used by you as circumstantial evidence of the defendant’s guilt. That is if you find that the defendant’s acts or flights showed consciousness of guilt, you may use that conclusion or inference as independent evidence of guilt along with the other facts of the case to determine whether or not he has been proven guilty of any one or more of the crimes charged.”

       The defendant labels as “cat burglaries” those burglaries of “garages and/or sunrooms/porches” in which “no weapons were involved, no occupants were ever aware of the intruder (much less held at gunpoint and threatened with death), and no cars were stolen.”

       The defendant was sentenced as a persistent serious felony offender. The first twenty-five years of his seventy-five year sentence are based on his conviction under the first and second counts, aiding first degree burglary and aiding first degree robbery, respectively. The next twenty years are based on his conviction under the third count, aiding second degree larceny.

       “Life imprisonment” is defined as a sentence of sixty years. General Statutes § 53a-35b.

       “The court may in the interest of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185.

       In addition, I continue to be concerned about jury instructions on consciousness of guilt that are predicated on nothing more than the defendant’s flight. See State v. Freeney, 228 Conn. 582, 602-609, 637 A.2d 1088 (1994) (Berdon, J., dissenting).