source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL ANGELL
    (15206)
    Peters, C. J., and Callahan, Borden, Berdon, Norcott, Katz and Palmer, Js.

      Argued October 27, 1995
    officially released June 11, 1996

      R. Jeffrey Lyman, special public defender, with whom were Patricia E. McCooey and Bradford Babbitt, special public defenders, and, on the brief, Linda L. Morkan, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, James Turcotte, assistant state’s attorney, and Pamela S. Meotti, former deputy assistant state’s attorney, for the appellee (state).
   PALMER, J.

A jury convicted the defendant, Paul Angelí, of sexual assault in the second degree in violation of General Statutes (Rev to 1989) § 53a-71 (a) (l) and risk of injury to a child in violation of General Statutes (Rev. to 1989) § 53-21. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of the trial court. State v. Angell, 36 Conn. App. 383, 651 A.2d 263 (1994). We granted the defendant’s petition for certification limited to the following issues: (1) “Whether the Appellate Court was correct in concluding that the defendant’s federal constitutional rights of confrontation were not violated when the trial court admitted into evidence constancy of accusation testimony?” and (2) “Whether the Appellate Court was correct in concluding that the defendant’s exception to the trial court’s failure to instruct the jury on the credibility of a child witness was inadequate to preserve the issue for appeal?” State v. Angell, 232 Conn. 915, 655 A.2d 259 (1995). We affirm the judgment of the Appellate Court.

The facts that the jury reasonably could have found are set forth in the opinion of the Appellate Court. “The nine year old victim lived with her family in Wallingford. One night during the late spring or early summer of 1989, the victim spent the night at the apartment of Karen and Michael Gaube. She went to sleep on the couch in the living room, but was awakened at approximately 1 a.m. because the defendant was touching her between her legs. Approximately thirty minutes later, the defendant took the victim into a bedroom. He told the victim to pull down her pants because he wanted to lick her private parts when he returned from the bathroom. While the defendant was in the bathroom, the victim went back into the living room where Karen Gaube and one of her children were sleeping. The victim positioned herself on the floor between them and the wall, and fell asleep.

“After the defendant and Michael Gaube left the apartment the following morning, the victim told Karen Gaube what had occurred during the night. Karen then took the victim home where she related the events to her father and later to her mother. The victim’s parents did not notify the police because the father intended to ‘take care of the defendant himself.

“In December, 1990, the victim’s fifth grade teacher read about the incident in the victim’s school journal. After speaking to the victim about the journal entry, the teacher notified another teacher, the school nurse and the principal. On December 13, 1990, the victim’s father notified Officer Thomas Francolo of the Wallingford police department of the incident, and, on January 10, 1991, Detective Patricia Miranda interviewed the victim. The defendant was thereafter arrested, prosecuted and convicted.” State v. Angell, supra, 36 Conn. App. 384-85.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming, inter alia, that the trial court improperly: (1) permitted the admission into evidence of constancy of accusation testimony in violation of his rights under the confrontation clause of the sixth amendment to the United States constitution; and (2) refused to give the jury a supplemental instruction on the credibility of a child witness. The Appellate Court concluded, first, that the defendant’s constitutional claim was foreclosed by our recent decision in State v. Kelley, 229 Conn. 557, 643 A.2d 854 (1994), and, second, that the defendant was not entitled to review of his claim of instructional impropriety because he had failed properly to preserve that claim for appeal. We agree with the Appellate Court that the defendant’s constitutional claim is without merit. Although we disagree with the determination of the Appellate Court that the defendant’s claim of instructional error was not preserved, we conclude that the trial court did not abuse its discretion in failing to give a supplemental jury charge on child credibility. Accordingly, we affirm the judgment of the Appellate Court.

I

The defendant first maintains that the introduction of constancy of accusation evidence violated his rights under the confrontation clause of the sixth amendment to the United States constitution. In State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), we have today considered and rejected the precise claim raised by the defendant in this appeal, concluding that the federal confrontation clause is not violated by testimony properly admitted into evidence under the constancy of accusation doctrine because such testimony is not admissible unless the victim testifies in court, and is therefore subject to cross-examination. Id., 292-93. The defendant’s sixth amendment claim is, therefore, without merit.

II

The defendant also contends that the Appellate Court improperly refused to review his claim of instructional error on the ground that the claim was not preserved for appeal because it had not been properly raised in the trial court. Although we agree with the defendant that the Appellate Court should have considered his claim, we reject the claim on the merits.

The following additional facts and procedural history are necessary to our resolution of this issue. The trial court, after completing its charge to the jury at the conclusion of the evidence, inquired whether the state or the defendant had any objections to the charge. The defendant objected to the trial court’s failure to instruct the jury on the credibility of a child witness and the court noted the defendant’s exception. The trial court provided no explanation for its decision not to give such an instruction and the defendant did not request one. Finally, it is undisputed that the defendant had not submitted a request to charge on the issue of child credibility.

The Appellate Court concluded that the defendant’s objection to the charge was insufficient to preserve the issue for appeal because he had failed to comply with Practice Book § 852. Quoting from its decision in State v. Frye, 26 Conn. App. 472, 478, 602 A.2d 601 (1992), rev’d on other grounds, 224 Conn. 253, 617 A.2d 1382 (1993), the Appellate Court stated that § 852 “ ‘applies only where the trial court has misstated the applicable law or where there is ambiguity in the jury charge. It does not apply where there is a failure to instruct on something that was never requested in writing prior to the jury instructions. It cannot be used to cure a failure to file a written request to charge.’ ” State v. Angell, supra, 36 Conn. App. 392.

The defendant asserts that his claim of instructional impropriety was properly preserved by virtue of his timely exception to the trial court’s failure to instruct the jury on the issue of child credibility. We agree.

“The rules of statutory construction apply with equal force to Practice Book rules.” (Internal quotation marks omitted.) State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992). Thus, in attempting to discern the meaning of a particular section of our Practice Book, we look first to the language of the provision. See State v. Breton, 235 Conn. 206, 251, 663 A.2d 1026 (1995). In so doing, “[w]e construe words used in the Practice Book according to their commonly approved meaning.” Lo Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989). If the language of the provision is clear and unambiguous, we will interpret it in accordance with its plain meaning absent a compelling reason to the contrary. See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195, 663 A.2d 1001 (1995). Finally, rules of criminal procedure, like penal statutes, “are to be strictly construed to protect the fundamental constitutional right to liberty.” State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981).

The Appellate Court’s conclusion that § 852 “ ‘applies only where the trial court has misstated the applicable law or where there is an ambiguity in the jury charge’ ” is inconsistent with the plain language of that section. There is nothing in the wording or phraseology of § 852 to support the conclusion that the rule applies to certain types of alleged instructional improprieties but not to others. Moreover, we see no overriding reason to limit the scope of the rule, the purpose of which is simply “to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials. ...” (Citation omitted; internal quotation marks omitted.) State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984).

The state, however, suggests that a literal interpretation of § 852 will discourage the submission of requests to charge by defendants because, under such a construction, a claim of instructional error may be preserved without filing a requested jury instruction. We do not subscribe to this view. The state and the defendant share responsibility for providing the trial court with requests to charge that are tailored to the facts and issues of a particular case. By discharging that responsibility, the parties not only render important assistance to the trial court, but also maximize their “opportunity to shape the charge which is given.” J. Fitzgerald & R. Yules, 6 Connecticut Practice Series: Trial Practice (1987) § 10.12, p. 299. Moreover, a party who fails to file a request to charge and then seeks a supplemental instruction after the trial court has already charged the jury runs the risk that the court will decline the request on the ground that the instruction would place undue emphasis on the belatedly raised issue. We do not believe, therefore, that the rule as written will discourage parties from filing requests to charge.

The state also contends that the ruling of the Appellate Court may be upheld on the alternate ground that a claim of instructional error is not properly preserved under § 852 unless the party making the claim has submitted a written request to charge and has raised a timely objection to the charge. We disagree.

Section 852 is phrased in the disjunctive rather than the conjunctive. Although we have, on occasion, construed “or” to mean “and”; see, e.g., D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 170, 455 A.2d 833 (1983); we do so only when “such construction clearly appears to have been the [drafters’] intent.” Id. The state, however, points to nothing in the language or the context of § 852 to warrant such an interpretation. Moreover, on those occasions when we have had reason to refer to the requirements of § 852, we have consistently characterized that provision as affording two alternate means for preserving a claim of instructional error. See, e.g., State v. Jones, 234 Conn. 324, 354 n.21, 662 A.2d 1199 (1995) (“§ 852 requires a written request to charge or an exception to be taken by the party appealing immediately after the charge is delivered” [emphasis added]); State v. Jeffrey, 220 Conn. 698, 715, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992) (“[t]he defendant’s failure to request such a limiting instruction or to take exception to the charge . . . makes [his] claim unreviewable [under] § 852” [emphasis added]); see also W. Moller & W. Horton, 1 Connecticut Practice Series: Practice Book Annotated — Superior Court Civil Rules (3d Ed. 1989) § 315, p. 501, comment (“[l]itigants can preserve their appellate rights concerning the judge’s charge to the jury either by filing written requests to charge ... or by orally excepting to the charge.” [emphasis added]; construing materially identical precursor of § 852); 2 E. Stephenson, Connecticut Civil Procedure (Sup. 1981) § 197 (b), p. S318 (“the trial court must be made aware of a party’s claims concerning the jury charge either through written requests to charge or exceptions to the charge made immediately after its delivery” [emphasis added]; also construing precursor of § 852). We are not persuaded, therefore, that we should adopt the interpretation of § 852 urged by the state.

“The Appellate Court’s [mistaken interpretation of § 852] does not, however, obviate a consideration of the merits of the defendant’s claim [that the trial court improperly refused to instruct the jury on the credibility of a child witness]. Although we could remand this issue to the Appellate Court, we have decided to address the merits ourselves. Because we have before us the same record upon which the Appellate Court would have to act, and because the issue has been fully briefed, we agree with the [defendant] that a final resolution of the defendant’s appeal will best serve the interests of judicial economy.” State v. Hamilton, 228 Conn. 234, 246, 636 A.2d 760 (1994).

In State v. James, 211 Conn. 555, 567-68, 560 A.2d 426 (1989), we adopted “ ‘[t]he prevailing view . . . that a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and, if so, the nature of that instruction.’ ” In so doing, we noted the “difficulty in fixing an age when such an instruction would be necessary,” and expressed concern that singling out “ ‘the testimony of the child witness for special scrutiny may infringe upon the jury’s exclusive role as arbiter of credibility.’ ” Id., 568. We also observed that “the [child credibility] instruction requested by the defendant was not for the statement of any rule of law but for a cautionary comment upon the evidence. We have frequently referred to the broad discretion of a trial court in commenting upon the evidence. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 297, 465 A.2d 294 (1983); Bruneau v. Quick, 187 Conn. 617, 628-29, 447 A.2d 742 (1982); State v. DeMatteo, 186 Conn. 696, 705, 443 A.2d 915 (1982). ‘The degree to which reference to the evidence may be [made] necessary lies largely in the discretion of the court.’ State v. Vincenzo, 171 Conn. 240, 244, 368 A.2d 219 (1976).” State v. James, supra, 571. We then concluded that the trial court had not abused its discretion in refusing to instruct the jury concerning the credibility of the two child witnesses, each of whom was twelve years old at the time of trial. Id.

The defendant in this case has similarly failed to establish that the trial court’s refusal to grant his request for a child credibility instruction constituted an abuse of discretion. The victim, although only nine years old when the offense occurred, had attained the age of thirteen by the time of trial. In view of the age of the victim — who, we note, was one year older than either of the two child witnesses in James — we see no reason to second guess the trial court’s determination that the requested charge was not necessary. This conclusion is buttressed by the fact that because the defendant failed to submit an appropriate request to charge, the trial court would have been required to deliver a separate, supplemental instruction on child credibility, an instruction that might well have unfairly highlighted the issue for the jury.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 53a-71 provides in relevant part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       General Statutes (Rev. to 1989) § 53-21 provides: “Injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be lined not more than five hundred dollars or imprisoned not more than ten years or both.”

       “The victim was thirteen years old when she testified at trial.” State v. Angell, supra, 36 Conn. App. 384 n.4.

       “The defendant, Karen Gaube’s brother-in-law, was spending the night at the Gaube apartment.” State v. Angell, supra, 36 Conn. App. 385 n.5.

       The defendant was sentenced to concurrent prison terms of ten years, execution suspended after seven years, on the two counts.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . .

       The victim reported the sexual assault to her parents and to Karen Gaube on the day of the incident. Approximately two years after the assault, the victim described the incident in a journal that she had prepared for school. Her teacher, upon reading the journal entry, contacted the victim’s parents, who then reported the sexual assault to the police. The victim thereafter provided the police with a statement about the incident. At trial, the victim described the sexual assault and identified each of the individuals to whom she had reported the crime. The victim’s parents and Karen Gaube subsequently testified concerning the details of the victim’s complaint. Also admitted into evidence was the pertinent entry from the victim’s journal and her statement to the police. In its instructions to the jury, the trial court properly explained that the constancy of accusation evidence was admissible for corroborative puiposes only.

       The trial court’s jury charge included a comprehensive general instruction on the credibility of witnesses.

         Practice Book § 852 provides in relevant part that a reviewing court “shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. . .

       One of the child witnesses in James was the victim of the sexual assault and the other observed the incident.

       The defendant, relying on State v. James, supra, 211 Conn. 568, maintains that the instruction was nevertheless required as a matter of law in this case because there was no corroboration of the victim’s testimony other than the constancy of accusation evidence. In James, however, we noted only that some “courts have found a special child credibility instruction, even when appropriate, not to be essential where there is corroboration.” Id. It does not follow, however, that such an instruction is required when there is no corroborative evidence, and we did not so hold in James. As in other circumstances, whether to grant a request for an instruction on the credibility of a child witness is a determination to be left to the sound discretion of the trial court.
      Similarly unavailing is the defendant’s argument that the trial court failed to make any reference to a witness’ age or maturity level in its general instruction on credibility. Although reference to the age or maturity of a witness may be appropriate in certain circumstances, this, too, is a question to be determined by the trial court. The defendant has failed to demonstrate that any such reference was required in this case.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. MICHAEL B. ROSS
    (15330)
    Peters, C. J., and Callahan, Borden, Berdon, Norcott, Palmer and Dupont, Js.
    Argued May 1
    officially released June 11, 1996

      C. Robert Satti, Sr., special assistant state’s attorney, with whom were Harry Weller, assistant state’s attorney, and, on the brief, Kevin T. Kane, state’s attorney, for the appellant (state).

      T. R. Paulding, Jr., for the appellee (defendant).

      G. Douglas Nash, public defender, with whom, on the brief was Gerard A. Smyth, chief public defender, for the office of the chief public defender as amicus curiae.

       Although the defendant has elected to represent himself at trial, he is represented by counsel in this appeal.

   PER CURIAM.

The dispositive issue in this appeal presenting seven questions of law reserved to this court by the trial court is whether, under all of the circumstances presented by this death penalty case, this court should answer the reserved questions in advance of further plenary proceedings at trial. Exercising the discretion vested in this court by General Statutes § 52-235 and Practice Book §§ 4147 and 4148; see State v. Sanabria, 192 Conn. 671, 683-85, 474 A.2d 760 (1984); we conclude that it would be imprudent for us to answer the reserved questions and, therefore, we decline to do so.

The defendant, Michael B. Ross, was convicted of six counts of capital felony in violation of General Statutes § 53a-54b and, after a separate penalty phase hearing pursuant to General Statutes § 53a-46a, was sentenced to death. We affirmed the defendant’s convictions in their entirety but set aside the judgments with respect to the imposition of the death penalty. We held that, contrary to the requirements of § 53a-46a (c), evidentiary rulings by the trial court at the penalty phase hearing had impaired the defendant’s ability to prove extenuating circumstances that might explain his behavior and mitigate his moral culpability and might therefore counsel against the ultimate sanction of death. State v. Ross, 230 Conn. 183, 286, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). Accordingly, we remanded the cases to the trial court for a penalty phase rehearing pursuant to § 53a-46a.

In the course of preparing for the penalty phase rehearing, the state and the defendant entered into a stipulation requesting the trial court to reserve to this court seven questions of law relating to the conduct of such a hearing. The trial court approved the stipulation and agreed to the reservation of the following questions:

“(1) If the rehearing of the penalty phase is held before the court rather than a jury, will the decision of the majority of the judges of that court be sufficient to render judgment as to the findings of the existence or non-existence of an aggravating factor and as to the existence or non-existence of a mitigating factor?
“(2) If the answer to question #1 is in the affirmative, will the decision of the majority of that court be sufficient to impose sentence?
“(3) Does the pro se defendant have the right to waive the presenting of evidence that might tend to be mitigating in nature at the rehearing of the penalty phase?
“(4) If the answer to question #3 is in the affirmative and the defendant waives his right to present possibly mitigating evidence and further objects to the presentment of any possibly mitigating evidence in his behalf, will the trial court be bound by the voluntary actions of the defendant?
“(5) If the answer to question #4 is in the negative, is the court permitted or required to appoint counsel to present evidence that might tend to be mitigating in nature?
“(6) Here, where at the first penalty phase hearing the defendant presented evidence that he then claimed to be mitigating in nature that was insufficient to convince that trier-of-fact that a mitigating factor existed, is the new trier-of-fact required to consider that preexisting evidence in arriving at its judgment, even though the defendant objects to a consideration of such evidence?
“(7) If the sentence of death is imposed, do the provisions of [Public Acts 1995, No. 95-16, § 3 (b)] apply to the review of such sentence by the Supreme Court, thus eliminating any requirement of a proportionality review of such sentence?”

The factual stipulation accompanying the reserved questions recites the following history of events subsequent to the remand ordered by this court. “The defendant has expressed a desire to have the [penalty phase rehearing] before a court (as opposed to a jury); to stipulate to the existence of aggravating facts; and to object to the presentment of any mitigating evidence in his behalf. In pursuit of this alleged desire, he has moved to represent himself[,] has objected to the appointment of counsel to represent him[,] and has objected to the appointment of standby counsel. The trial court ordered a mental examination to determine the competency of the defendant. After a full hearing on the issue of the defendant’s competency and on the voluntariness of his waiver of his right to counsel, the court[:] (1) permitted [the defendant’s] counsel to withdraw[;] (2) permitted the defendant to represent himself[;] and (3) over the defendant’s objection, appointed experienced standby counsel.” The stipulation further states that “[t]he defendant further agrees . . . that the court at the [penalty phase rehearing] will find the existence of an aggravating factor, and that no mitigating factor exists, and thus, under the law, will impose a sentence of death for each of the [capital] felonies that he has been convicted of committing in these cases.”

The stipulation is not, however, conclusive on a number of considerations that have significant bearing on a proper response to the reserved questions. With respect to the first and second reserved questions, the defendant has not yet formally requested, on the record, that the court, rather than a jury, be the decision maker at his penalty phase rehearing, and the state has not yet formally indicated, on the record, whether it would acquiesce in such a request. See General Statutes § 53a-46a (b). With respect to the third, fourth, fifth and sixth reserved questions, the defendant has not yet waived, after a formal canvass on the record, his right to contest the state’s evidence concerning the existence of aggravating factors and his right to present evidence concerning the existence of mitigating factors. With respect to the seventh reserved question, the stipulation does not address how legislative repeal; Public Acts 1995, No. 95-16, § 3 (b); of Supreme Court proportionality review pursuant to General Statutes § 53a-46b (b) (3) will enter into the final determination of the appropriate trial court procedures for the penalty phase rehearing in this case.

Although we are mindful of the public interest in expediting the finality of judicial proceedings, we are persuaded that it would be imprudent for us to answer the reserved questions in this case at this juncture. Because the applicability of the reserved questions of law to the rights of the parties depends upon contingencies that might never arise, the questions presented by the reservation are not, in our opinion, “reasonably certain to enter into the decision of the case.” Practice Book § 4147. In effect, the reservation asks us for advisory opinions, which we decline to give. See Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987); State v. Zach, 198 Conn. 168, 176-78 and 177 n.7, 502 A.2d 896 (1985); Congress & Daggett, Inc. v. Seamless Rubber Co., 145 Conn. 318, 323, 142 A.2d 137 (1958); United Technologies Corp. v. Groppo, 35 Conn. App. 72, 75-80, 644 A.2d 1309 (1994); see also C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 8.11.

We decline to answer the reserved questions.

No costs will be taxed in this court to any party.

       After the filing of the reservation in this court, we ordered the parties to prepare briefs addressing the propriety of a decision by this court responding to the questions of law contained in the reservation. In view of our understanding that the state and the defendant both would urge us to respond affirmatively, we invited other interested persons to file amicus briefs. We are grateful to the office of the chief public defender for its assistance as amicus curiae.

       General Statutes § 52-235 provides in relevant part: “Reservation of questions of law. (a) The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein. ...”

       Practice Book §4147 provides in relevant part: “[Reservations] — In General
      “A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court, or to the appellate court, respectively, had judgment been rendered. . . .
      “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . .”
      Practice Book § 4148 provides: “[Reservations] — Stipulation
      “Before any question shall be reserved by any court, counsel shall file in that, court a stipulation which shall clearly and fully state the question or questions upon which advice is desired; that their present determination by the supreme or the appellate court would be in the interest of simplicity, directness and economy in judicial action, the grounds for such allegation being particularly stated; that the answers to the questions will determine, or are reasonably certain to enter into the final determination of the case; and that the parties request that the questions be reserved for the advice of the supreme or the appellate court.”

       General Statutes § 53a-54b provides in relevant part: “Capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety ... (7) murder committed in the course of the commission of sexual assault in the first degree . . . .”

       General Statutes § 53a-46a provides in relevant part: “Hearing on imposition of death penalty. Aggravating and mitigating factors, (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
      “(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of ... a capital felony, the judge . . . who presided at the trial . . . shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h). . . .”
      “(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. . . .”

       See footnote 6.

       General Statutes § 53a-46a provides in relevant part: “Hearing on imposition of death penalty. Aggravating and mitigating factors. . . .
      “(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of ... a capital felony, the judge . . . who presided at the trial . . . shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h). . . . Such hearing shall be conducted ... (2) before a jury impaneled for the purpose of such hearing . . . (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause or, (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state. . . .”

       As the state aptly observes in its brief, “regardless of the position [the defendant] takes at this moment in time as to any of the questions reserved, his position could change when the matter is [brought] back before the trial court. It is extremely unlikely that any trial judge would prevent a defendant facing the possibility of a death penalty from deciding, at least before the hearing commences, that he will offer mitigating evidence even though contrary to his earlier expressed intent. Nor would the state object to the change in tactic if made before a hearing commences.”

       General Statutes § 53a-46b provides in relevant part: “Review of death sentence, (a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules. . . .
      “(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. . . .”


author: CALLAHAN, J.

text:
    JOSEPH RUGGIERO, ADMINISTRATOR (ESTATE OF JAMES B. IRWIN, JR.), ET AL. v. JOHN T. FUESSENICH ET AL. STATE OF CONNECTICUT v. JOHN T. FUESSENICH
    (15378)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.
    Argued April 24
    officially released June 18, 1996

      Thomas A. Pavano, for the appellants (plaintiff administrator et al.).

      Hope C. Seeley, with whom, on the brief, was Hubert J. Santos, for the appellee (named defendant).
   CALLAHAN, J.

The dispositive issue in this appeal is whether the trial court’s denial of the plaintiffs’ petition for disclosure and release of records relating to the criminal prosecution of the named defendant, John T. Fuessenich, constituted a final judgment for purposes of appeal. During the pendency of the criminal prosecution, the plaintiffs filed a wrongful death action against the defendant for causing the death of James B. Irwin, Jr. (decedent), by shooting him with a .357 caliber magnum revolver. Subsequently, the defendant was acquitted by a jury of murder and the lesser included offense of manslaughter in the first degree after the jury found that the state had failed to prove beyond a reasonable doubt that the defendant had not acted in self-defense. The defendant thereafter pleaded guilty to three related counts of tampering with physical evidence. The plaintiffs then filed a petition for the disclosure and release of the records pertaining to the defendant’s criminal prosecution and trial. The trial court denied the plaintiffs’ petition. The plaintiffs appealed from the decision of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We conclude that the decision of the trial court is not a final judgment and, therefore, dismiss the plaintiffs’ appeal.

The following facts are undisputed. On June 19, 1991, the defendant was arrested and charged with the murder of the decedent in violation of General Statutes § 53a-54a. At the defendant’s first criminal trial in 1992, the jury was unable to reach a unanimous verdict and the trial court declared a mistrial, pursuant to Practice Book § 889.

Thereafter, in a substitute information, the state refiled the murder charge against the defendant and filed five additional charges of tampering with physical evidence in violation of General Statutes § 53a-155 (a). Prior to the defendant’s second criminal trial, he filed a motion to sever the murder count from the five counts of tampering with physical evidence. The trial court granted the defendant’s motion and he proceeded to trial only on the charge of murder. Following the defendant’s second trial in 1995, the jury found him not guilty of murder and the lesser included offense of manslaughter in the first degree. Shortly thereafter, the defendant pleaded guilty to three counts of tampering with physical evidence, and, in return, the state entered a nolle prosequi on the remaining two tampering counts.

In March, 1993, during the pendency of the criminal prosecution, the plaintiffs filed a wrongful death action against the defendant, seeking compensatory and punitive damages, as well as attorney’s fees. In their action, the plaintiffs claimed that the defendant had intentionally assaulted the decedent, had engaged in reckless and/or negligent conduct that had resulted in the decedent’s death and thereby had caused the decedent’s parents and son to suffer damages. Prior to the trial in their wrongful death action and following the resolution of the criminal charges pending against the defendant, the plaintiffs filed a petition for the disclosure and release of all criminal records pertaining to the defendant’s prosecution and trial for murder. Their petition requested the disclosure of the entire record of State v. Fuessenich, Superior Court, judicial district of Litchfield, Docket No. CR91-0073111, “including the trial transcript and all police and prosecutorial authority investigative materials prepared in the criminal matter.” The trial court denied the plaintiffs’ petition and this appeal followed.

As a general matter, if a defendant is found not guilty of a particular criminal charge or the charge against him is dismissed, General Statutes § 54-142a (a) requires that “all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal . . . .” To give effect to this provision, § 54-142a (e) prohibits any person charged with the retention of the erased records from disclosing any information contained in such records. The plaintiffs claimed, however, that they were entitled to the requested records because: (1) subsection (g) of § 54-142a is an exception to subsection (a) that prevents the erasure of records relating to a criminal prosecution if a defendant is found guilty under one count of an information or indictment and the state has entered a nolle prosequi to the remaining counts; (2) General Statutes § 54-142c (b) permits disclosure to the plaintiff administrator, the decedent’s legal representative, who has established that a civil action has been filed; and (3) General Statutes § 51-61 (c) permits disclosure of the records to any person who requests such records. The trial court disagreed with the plaintiffs and denied their petition.

On appeal, the defendant argues that, in view of the fact that a final judgment has not yet been rendered in the plaintiffs’ wrongful death action, the trial court’s decision denying the plaintiffs’ petition is an interlocutory order and, as such, does not satisfy the test permitting the appeal of such orders set forth in State v. Curcio, 191 Conn. 27, 31-34, 463 A.2d 566 (1983). We agree.

“It is axiomatic that, except insofar as the constitution bestows upon this court jurisdiction to hear certain cases; see Fonfara v. Reapportionment Commission, 222 Conn. 166, 610 A.2d 153 (1992); the subject matter jurisdiction of the Appellate Court and of this court is governed by statute. Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993). It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review; see, e.g., General Statutes § 52-2781 (prejudgment remedies); General Statutes § 54-63g (petition for review of bail); General Statutes § 51-164x (court closure orders); State v. Ayala, 222 Conn. 331, 340, 610 A.2d 1162 (1992); [our] appellate jurisdiction is limited to final judgments of the trial court. General Statutes § 52-263; State v. Curcio, [supra, 191 Conn. 30]; Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447, 645 A.2d 978 (1994). . . .

“We have recognized, however, in both criminal and civil cases, that certain otherwise interlocutory orders may be final judgments for appeal purposes. . . . An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, supra, [191 Conn.] 31, citing State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979). State v. Southard, [191 Conn. 506, 509-10, 467 A.2d 920 (1983)]. Unless the appeal is authorized under the Curcio criteria, absence of a final judgment is a jurisdictional defect that [necessarily] results in a dismissal of the appeal. Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974). State v. Paolella, 210 Conn. 110, 119, 554 A.2d 702 (1989).” (Citations omitted; internal quotation marks omitted.) State v. Garcia, 233 Conn. 44, 62-65, 658 A.2d 947 (1995), on appeal after remand, 235 Conn. 671, 669 A.2d 573 (1996). We conclude that the plaintiffs’ appeal does not satisfy either prong of Curcio. We therefore dismiss the appeal.

The trial court’s denial of the plaintiffs’ petition did not terminate a proceeding that was separate and distinct from the plaintiffs’ civil action. The petition for the release and disclosure of the records pertaining to the defendant’s criminal prosecution was filed as part of the plaintiffs’ civil wrongful death action and was an attempt by the plaintiffs to secure disclosure of information that would assist them in the preparation and prosecution of that action. A party to a pending case does not institute a separate and distinct proceeding merely by filing a petition for discovery or other relief that will be helpful in the preparation and prosecution of that case. See State v. Garcia, supra, 233 Conn. 65 (trial court order granting motion to permit forced medication of criminal defendant does not terminate proceeding separate and distinct from criminal trial itself); Ackerson v. Stramaglia, 225 Conn. 102, 104-105, 621 A.2d 1315 (1993) (denial of motion to dissolve judgment lien does not terminate separate and distinct proceeding); Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 770-71, 613 A.2d 1320 (1992) (interlocutory order compelling arbitration as required by franchise agreement between parties does not terminate separate and distinct proceeding); Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 254, 520 A.2d 605 (1987) (trial court order that defendant produce its claim file for inspection by plaintiff does not terminate proceeding separate and distinct from pending suit). Here, the plaintiffs’ discovery petition was filed solely in aid of their pending wrongful death action against the defendant and the trial court’s decision denying that petition was rendered in the context of that action and did not terminate that action. The trial court’s decision, therefore, does not meet the first prong of the Curcio test permitting the appeal of interlocutory trial court orders. State v. Curcio, supra, 191 Conn. 31.

The defendant also correctly argues that the trial court’s order is not appealable under Curdo because it does not “so conclude the rights of the parties that further proceedings cannot affect them.” Id., 33. “The second test for finality . . . focuses not on the proceedings involved, but on the potential harm to the appellant’s rights. [An interlocutory order] will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial.” (Internal quotation marks omitted.) Id., 33-34. The second prong of Curdo requires, therefore, the plaintiffs to prove that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the plaintiffs irreparably harmed unless they may immediately appeal. State v. Garcia, supra, 233 Conn. 65-66; State v. Coleman, 202 Conn. 86, 90-92, 519 A.2d 1201 (1987); State v. Longo, supra, 192 Conn. 92-93. We conclude that the trial court’s decision denying the plaintiffs’ petition can adequately be reviewed after a trial on the merits without causing irretrievable loss or irreparable harm to the plaintiffs.

At oral argument, counsel for the plaintiffs conceded that the denial of the plaintiffs’ petition did not foreclose their wrongful death action, but merely limited their ability to present relevant and probative evidence. The trial court’s decision, therefore, does not prevent the plaintiffs from pursuing their action against the defendant. The plaintiffs’ petition was, for all intents and purposes, merely a discovery motion, the denial of which did not cause the plaintiffs to suffer an irretrievable loss of a right or an irreparable harm, and which can be rectified on appeal after a final judgment on the merits of the wrongful death action if it is incorrect. Melia v. Hartford Fire Ins. Co., supra, 202 Conn. 255-58; State v. Coleman, supra, 202 Conn. 92; Barboto v. J. & M. Corp., 194 Conn. 245, 249-50, 478 A.2d 1020 (1984); State v. Longo, supra, 192 Conn. 89-90.

Our review of the record and of counsel’s oral argument reveals that, although the records sought by the plaintiffs have been erased pursuant to § 54-142a, they have not been physically destroyed, nor has the defendant made a request for their physical destruction. See Doe v. Manson, 183 Conn. 183, 185, 438 A.2d 859 (1981) (for purposes of § 54-142a, “[e]rasure alone does not mean the physical destruction of the documents”). We have no reason to believe that the defendant will request physical destruction of the records sought by the plaintiffs or that such a request would be granted during the pendency of the plaintiffs’ wrongful death action. See General Statutes § 54-142a (e). Moreover, at oral argument, counsel for the plaintiffs stated that the trial court had issued an order directing that any records relating to the criminal prosecution of the defendant not be destroyed. That order should remain in effect until the completion of a trial of the plaintiffs’ wrongful death action and any subsequent appeal from a final judgment in that action. The plaintiffs’ fear, therefore, that the sought after records might be physically destroyed is unsubstantiated and does not justify a deviation from our policy “of minimizing interference with and delay in the resolution of trial court proceedings.” Madigan v. Madigan, 224 Conn. 749, 752-53, 620 A.2d 1276 (1993); see Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 230 Conn. 450.

The appeal is dismissed.

In this opinion the other justices concurred.

       The plaintiffs in the wrongful death action are Joseph Ruggiero, the administrator of the estate of James B. Irwin, Jr. (decedent), James B. Irwin, Sr., and Rosaría Irwin, the parents of the decedent, and James Irwin, Jr., the son of the decedent.

       Robert G. Bigelow, who was also named as a defendant in the plaintiffs’ wrongful death action, died November 5,1994. Throughout this opinion we will refer to John Fuessenich as the defendant.

       The court requested that the plaintiffs file an amended petition incorporating the docket number of the defendant’s criminal case into the caption of their petition, which they also filed in the criminal case.

       General Statutes § 54-142a (a) provides in relevant part: “Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. . . .”

       General Statutes § 54-142a (e) provides: “The clerk of the court or any person charged with retention and control of such records in the records center of the judicial department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record, upon submission pursuant to guidelines prescribed by the Office of the Chief Court Administrator of satisfactory proof of the subject’s identity, information pertaining to any charge erased under any provision of this section and such clerk or person charged with the retention and control of such records shall forward a notice of such erasure to any law enforcement agency to which he knows information concerning the arrest has been disseminated and such disseminated information shall be erased from the records of such law enforcement agency. Such clerk or such person, as the case may be, shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such records or upon the request of the accused cause the actual physical destruction of such records. No fee shall be charged in any court with respect to any petition under this section. Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”

       General Statutes § 54-142a (g) provides: “The provisions of [§ 54-142a (a) through (f)] shall not apply to any police or court records or the records of any state’s attorney or prosecuting attorney with respect to any count of any information or indictment which was nolled or dismissed if the accused was convicted upon one or more counts of the same information or indictment.”
      General Statutes § 54-142c (b) provides: “Notwithstanding any other provisions of this chapter, within one year from the date of disposition of any case, the clerk of the court or any person charged with retention and control of erased records by the chief court administrator or any criminal justice agency having information contained in such erased records may disclose to the victim of a crime or his legal representative the fact that the case was dismissed. If such disclosure contains information from erased records, the identity of the defendant or defendants shall not be released, except that any information contained in such records, including the identity of the person charged may be released to the victim of the crime or his representative upon written application by such victim or representative to the court stating (1) that a civil action has been commenced for loss or damage resulting from such act or (2) the intent to bring a civil action for such loss or damage. Any person who obtains criminal history record information by falsely representing to be the victim of a crime or his representative shall be fined not more than five thousand dollars or imprisoned not less than one year nor more than five years or both.”
      General Statutes § 51-61 (c) provides: “Each official court reporter, assistant court reporter and monitor shall, when requested, furnish to the court, to the state’s attorney or any assistant or deputy assistant state’s attorney, to any party of record and to any other person, within a reasonable time, a transcript of the proceedings, or such portion thereof as may be desired, except that, if the proceedings were closed to the public, such court reporter or monitor shall not furnish such transcript or portion thereof to such other person unless the proceedings were commenced on or after October 1,1988, and the court in its discretion determines that such disclosure is appropriate.”

       Although the defendant raised and thoroughly briefed the issue of our jurisdiction to entertain this appeal, the plaintiffs did not mention this issue in their brief nor did they file a reply brief addressing this issue.

       General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       At oral argument, the plaintiffs’ counsel argued that the trial court’s decision satisfied the first prong of the Curdo test because it terminated the criminal case, which is separate and distinct from the civil case. This argument is without merit. The plaintiffs were not parties to the criminal case and the trial court’s order to incorporate the docket number from the defendant’s criminal case into the caption of the plaintiffs’ amended petition did not make the plaintiffs parties to the criminal action. The plaintiffs therefore do not have standing to appeal from any decision rendered in the criminal trial of the defendant. Moreover, the criminal case was terminated by a final judgment when the defendant was sentenced by the court. State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201 (1987); State v. Van Sant, 198 Conn. 369, 374 n.5, 503 A.2d 557 (1986); State v. Sanabria, 192 Conn. 671, 682, 474 A.2d 760 (1984).


author: BERDON, J.

text:
    STATE OF CONNECTICUT v. GERALD GERARDI
    (15173)
    Peters, C. J., and Borden, Berdon, Norcott and Katz, Js.

      Argued October 31, 1995
    officially released June 18, 1996

      Joseph G. Bruckmann, public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Nancy Dolinsky, assistant state’s attorney, for the appellee (state).
   BERDON, J.

The defendant, Gerald Gerardi, was convicted of possession of a machine gun for an aggressive and offensive purpose in violation of General Statutes § 53-202 (c), which provides: “Any person who possesses or uses a machine gun for an offensive or aggressive purpose shall be fined not more than one thousand dollars or imprisoned not less than five years nor more than ten years or be both fined and imprisoned.” Subsection (d) of § 53-202 provides in relevant part: “The possession or use of a machine gun shall be presumed to be for an offensive or aggressive purpose ... (3) when the machine gun is of the kind described in subsection (g) hereof and has not been registered as therein required; or (4) when empty or loaded projectiles of any caliber which have been or are susceptible of use in the machine gun are found in the immediate vicinity thereof.” Subsection (e) of § 53-202 provides: “The presence of a machine gun in any room, boat or vehicle shall be presumptive evidence of the possession or use of the machine gun by each person occupying such room, boat or vehicle.” Furthermore, subsection (g) of § 53-202 in turn provides in relevant part: “Any person who fails to register any gun as required hereby shall be presumed to possess the same for an offensive or aggressive purpose.”

The dispositive issues in this case are: (1) whether the trial court’s jury instructions on § 53-202 (d), (e) and (g), providing for mandatory rebuttable presumptions of possession and purpose, violated the due process clause of the federal constitution; and (2) if so, whether the trial court’s instructions were harmless error. We conclude that the instructions did violate the due process clause and that the jury instructions were not harmless beyond a reasonable doubt.

The defendant was charged in an amended information with possession of a machine gun for an offensive or aggressive purpose in violation of § 53-202 (c), knowingly having a weapon in a vehicle in violation of General Statutes § 29-38, altering or removing an identification mark on a weapon in violation of General Statutes § 29-36, and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). All of these charges arose out of one incident involving the defendant’s alleged possession and use of a machine gun. After a jury trial, he was found guilty of possession of a machine gun for an offensive or aggressive purpose, and not guilty of the remaining charges. He was sentenced to five years imprisonment, execution suspended after three years. Following his conviction, the defendant moved for a new trial, raising the dispositive issues before us in this appeal. The trial court denied the motion. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 4023.

The essential facts that the jury could reasonably have found are not in dispute. At approximately 4:35 a.m. on March 7, 1993, Lieutenant Ronald Bussell and Officer Brian Wood of the Darien police department were completing an automobile stop on Hoyt Street in Darien when they heard several rapidly fired gunshots. The officers looked in the direction from which the shots came, heard the sound of a motor vehicle, and then observed a vehicle moving eastbound on Camp Avenue, which intersects with Hoyt Street. The driver of the vehicle turned onto Iloyt, Street and drove toward the officers, who signaled for him to pull over. The driver did not stop, and the officers followed in pursuit until they stopped the vehicle approximately one-half mile from where it had first passed them.

The officers approached the vehicle and found the defendant in the front passenger seat and David Caruthers in the driver’s seat. They observed that the driver’s window was rolled up, while the defendant’s window was rolled down. They also noted that Caruthers appeared nervous and that the defendant stared straight ahead, not looking at either of the officers. While Bussell obtained the vehicle’s registration and identification from the occupants, Wood noticed a shell casing on the floor behind the defendant’s seat. Wood informed Bussell of the casing and Bussell called for backup units. From where he was standing, Bussell was able to see two shell casings on the floor behind the defendant’s seat.

The officers removed Caruthers and the defendant from the vehicle and searched both them and the vehiele. As a result of their search of the vehicle, the officers found only the two shell casings. Believing that a gun may have been thrown from the vehicle, the area was canvassed. A machine gun and a magazine were located on the east side of the road that the officers had driven down during the pursuit.

A firearms examiner at the state police forensic laboratory determined that the machine gun, which was not registered to either Caruthers or the defendant, could be switched from automatic to semi-automatic mode. He also determined that the shell casings found in the vehicle had been fired from the gun. He testified that, when the gun was fired, the shells ejected to the right and slightly to the rear.

At the defendant’s trial, Caruthers testified that he had pleaded nolo contendere to charges of possession of a machine gun in connection with his arrest with the defendant on March 7, 1993. He stated that he had borrowed the vehicle and picked up the defendant, that he had not placed the gun in the vehicle, and that he had neither shot a gun nor thrown one out of the vehicle that night.

The defendant testified that he had been intoxicated on the night of the arrest and remembered very little. He testified that Caruthers had picked him up at his girlfriend’s house on Camp Street and that he had not seen a gun in the vehicle. He stated that the front passenger window was rolled down when he entered Caruthers’ vehicle and, although it was cold outside, he had left the window open while he smoked a cigarette and let the cold air revive him. He further testified that he had not seen anyone firing a gun on the night of his arrest. He added that he had strong feelings against the possession of guns, and that he was unfamiliar with their operation.

The trial court instructed the jury that, pursuant to § 53-202, the presence of a machine gun in any vehicle shall be presumptive evidence of possession or use of the gun, and that the failure to register the gun or the presence of any empty or loaded projectiles of any caliber, which have been or are susceptible of use in the machine gun, is presumptive evidence that the gun was possessed for an offensive or aggressive purpose. The trial court further instructed the jury that “[presumptive evidence is defined as evidence which must be received and treated as true and sufficient until rebutted by other testimony.” The defendant did not challenge those instructions. The state, however, concedes that the constitutionality of these presumptions is reviewable under either the Golding or the plain error doctrine because those mandatory rebuttable presumptions violate the defendant’s fundamental constitutional right that the state prove every element of the crime charged beyond a reasonable doubt. Nonetheless, the state argues that the defendant is not entitled to relief because the challenged instructions were harmless beyond a reasonable doubt. We address these issues in turn.

I

It is clear, as conceded by the state, that the trial court’s instructions, which included several of the mandatory rebuttable presumptions set forth in § 53-202 regarding inferences of possession and aggressive or offensive purpose, cannot pass constitutional muster. The Supreme Court of the United States in Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985), reasoned as follows: “The Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. [358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)]. This bedrock, axiomatic and elementary [constitutional] principle . . . prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. . . . The prohibition protects the fundamental value determination of our society, given voice in Justice Harlan’s concurrence in Winship, that it is far worse to convict an innocent man than to let a guilty man go free. . . . The question before the Court in this case is almost identical to that before the Court in Sandstrom [v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)]: whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of . . . state of mind ... by creating a mandatory presumption of intent upon proof by the State of other elements of the offense.

“The analysis is straightforward. The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. . . . The court must determine whether the challenged portion of the instruction creates a mandatory presumption ... or merely a permissive inference .... A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury that a possible conclusion may be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.

“Mandatory presumptions must be measured against the standards of Winship as elucidated in Sandstrom. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense. Patterson v. New York, [432 U.S. 197, 215, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977)] ([A] State must prove every ingredient of an offense beyond a reasonable doubt and . . . may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense). ... A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. Such inferences do not necessarily implicate the concerns of Sandstrom.” (Citations omitted; internal quotations marks omitted.) Francis v. Franklin, supra, 471 U.S. 313-14.

Although the state concedes that the trial court incorrectly instructed the jury that the presumptions contained in § 53-202 (d), (e) and (g) were mandatory rebuttable presumptions, it argues that we should construe those presumptions as permissive inferences under appropriate circumstances in order to preserve them in a constitutional manner. We agree.

The United States Supreme Court in Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979), noted that a statutory permissive inference is one “which allows . . . the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. . . . When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. . . . Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Citations omitted.) See also Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419, 105 L. Ed. 2d 218, reh. denied, 492 U.S. 937, 110 S. Ct. 23, 106 L. Ed. 2d 636 (1989) (court must determine “whether the specific instruction, both alone and in the context of the overall charge, could have been understood by reasonable jurors to require them to find the presumed fact if the State proves certain predicate facts”).

We have the authority to construe our own statutes. State v. Williams, 205 Conn. 456, 473, 534 A.2d 230 (1987). Indeed, “where a statute permits two constructions, one valid and the other invalid as unconstitutional, the valid construction should be adopted, even where it is not the obvious one.” Engle v. Personnel Appeal Board, 175 Conn. 127, 134, 394 A.2d 731 (1978); State v. Warren, 169 Conn. 207, 217, 363 A.2d 91 (1975) (“statute cannot be' held unconstitutional unless its invalidity is established beyond a reasonable doubt”). Although this court in the past has refused to construe a mandatorily phrased presumption, which permitted possession of a gun to be inferred from the mere fact of the gun’s location, as a permissive inference in order to save it; State v. Watson, 165 Conn. 577, 596-97, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974); we do so now in accordance with the principles discussed previously.

In the present case, to preserve the relevant provisions of § 53-202 as permissive inferences, we must construe “shall” as “may.” See General Statutes § 53-202 (d), (e) and (g). It is not conceivable that, pursuant to § 53-202 (d) (3), (d) (4) or (g), the legislature intended for a jury to be required to infer that a defendant had possessed a machine gun for an offensive or aggressive purpose from the mere fact that the gun was unregistered or that live ammunition or shell casings were located in the immediate vicinity of the gun. Rather, it is more likely that the legislature intended that a jury may infer such intent if the statutory predicate fact together with additional appropriate facts are sufficient to render the inference rational. Likewise, it is not reasonable to conclude that, pursuant to § 53-202 (e), the legislature intended to require a jury to infer that all occupants of a vehicle possess a machine gun merely because the gun is located in the vehicle. Rather, it is more likely that the legislature intended that a jury may infer possession under appropriate factual circumstances.

Accordingly, we construe these statutory inferences as permissive inferences that a jury may draw under appropriate circumstances in which such an inference is rational or reasonable. “A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. Ulster County Court [v. Allen, supra, 442 U.S. 157-63].” Francis v. Franklin, supra, 471 U.S. 314-15; see also Tot v. United States, 319 U.S. 463, 467-68, 63 S. Ct. 1241, 87 L. Ed. 2d 1519 (1943) (due process requires that there be at least a “rational connection between the fact proved and the ultimate fact presumed” that is grounded in “common experience”).

The United States Supreme Court in Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), analyzed a presumption that authorized the jury to infer from the defendant’s possession of marijuana two necessary elements of the crime. The Leary court held that “a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Id., 36; see also Ulster County Court v. Allen, supra, 442 U.S. 165 (there must be “a ‘rational connection’ between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is ‘more likely than not to flow from’ the former”).

An inference of possession or intent based solely on the statutory predicate facts enumerated within § 53-202 would not pass constitutional muster. Reason and experience would not permit the drawing of such inferences. If, however, other facts or circumstances are introduced and the totality of the evidence could reasonably and logically support the inference, then the jury may be instructed that it may draw such a permissive inference. In sum, the jury must be instructed that it may infer facts only upon finding sufficient predicate statutory and nonstatutory facts and circumstances that are rationally connected with the ultimate facts inferred. See Ulster County Court v. Allen, supra, 442 U.S. 158-63; State v. Alfonso, 195 Conn. 624, 633-35, 490 A.2d 75 (1985) (insufficient evidence to infer possession of one drug, but sufficient evidence, including additional predicate facts, to allow inference of possession of another drug).

II

The state, however, argues that the inclusion of the mandatory rebuttable presumptions in the jury instructions was harmless beyond a reasonable doubt. The defendant claims, to the contrary, that the state failed to prove that the inclusion of the mandatory presumptions was harmless beyond a reasonable doubt.

Since Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the United States Supreme Court has “repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986). “Despite the strong interests that support the harmless-error doctrine, the Court in Chapman recognized that some constitutional errors require reversal without regard to the evidence in the particular case.” Rose v. Clark, supra, 577. Errors that are not subject to harmless error analysis go to the fundamental fairness of the trial. The court made it clear in Rose that “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments.” Id., 579. The court in Rose held that the harmless error analysis was required for the mens rea element of a crime. Id., 577-78 (harmless error analysis applied to mental state of mind required for murder).

Accordingly, we apply the Chapman test of harmless error analysis to the constitutional violation in this case: whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, supra, 386 U.S. 24. In other words, we review the record to determine whether “there is a reasonable possibility that the evidence [or the mandatory presumptions] complained of might have contributed to the conviction . . . .” (Internal quotation marks omitted.) Yates v. Evatt, 500 U.S. 391, 403, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991).

In order for the defendant to be convicted under § 53-202 (c), the state must prove that (1) he had possession of the machine gun, and (2) the possession or use was for an offensive or aggressive purpose. As noted previously, the mere fact that the machine gun came from the vehicle in which the defendant was an occupant is not sufficient evidence that the machine gun was in the defendant’s possession. See State v. Alfonso, supra, 195 Conn. 633; State v. Watson, supra, 165 Conn. 596-97. While there was some evidence that the machine gun may have been fired by a person sitting in the passenger seat, because of the location of the shell casings in the rear of the vehicle, we cannot conclude with any degree of certainty that the evidence adduced at trial was so overwhelming that it foreclosed the possibility that the jury may have relied upon the improper mandatory presumption regarding possession rather than upon that evidence.

Furthermore, the jury’s finding in this case of not guilty on another count charged involving the machine gun implies that the jury would not have found that the defendant had use or possession of the machine gun without the aid of the mandatory rebuttable presumption of possession. The jury found the defendant not guilty of knowingly having a weapon in a vehicle in violation of § 29-38. The weapon at issue was the same machine gun that formed the basis for the state’s charge under § 53-202 (c). The trial court’s instructions to the jury with respect to § 29-38 did not include a presumption of possession. The jury, however, did find the defendant guilty under § 53-202 (c), where the mandatory rebuttable presumption of possession had been included in the jury instructions. This discrepancy leads us to conclude that the charged presumption of possession pursuant to § 53-202 (e) was instrumental to the jury’s finding of guilt. The state therefore has failed to prove that the erroneous instruction on possession was harmless beyond a reasonable doubt.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other justices concurred.

       General Statutes § 53-202 provides: “(a) As used in this section: (1) ‘Machine gun’ shall apply to and include a weapon of any description, loaded or unloaded, which shoots, is designed to shoot or can be readily restored to shoot automatically more than one projectile, without manual reloading, by a single function of the trigger, and shall also include any part or combination of parts designed for use in converting a weapon into a machine gun and any combination of parts from which a machine gun can be assembled if such parts are in the possession of or under the control of a person. (2) ‘Crime of violence’ shall apply to and include any of the following-named crimes or an attempt to commit any of the same: Murder, manslaughter, kidnapping, sexual assault and sexual assault with a firearm, assault in the first or second degree, robbery, burglary, larceny and riot in the first degree. (3) ‘Projectile’ means any size bullet that when affixed to any cartridge case may be propelled through the bore of a machine gun.
      “(b) Any person who possesses or uses a machine gun in the perpetration or attempted perpetration of a crime of violence shall be imprisoned not less than ten years nor more than twenty years.
      “(c) Any person who possesses or uses a machine gun for an offensive or aggressive purpose shall be fined not more than one thousand dollars or imprisoned not less than five years nor more than ten years or be both fined and imprisoned.
      “(d) The possession or use of a machine gun shall be presumed to be for an offensive or aggressive purpose: (1) When the machine gun is on premises not owned or rented, for bona fide permanent residence or business occupancy, by the person in whose possession the machine gun was found; or (2) when in the possession of, or used by, an unnaturalized foreign-bom person, or a person who has been convicted of a crime of violence in any state or federal court of record of the United States of America, its territories or insular possessions; or (3) when the machine gun is of the kind described in subsection (g) hereof and has not been registered as therein required; or (4) when empty or loaded projectiles of any caliber which have been or are susceptible of use in the machine gun are found in the immediate vicinity thereof.
      “(e) The presence of a machine gun in any room, boat or vehicle shall be presumptive evidence of the possession or use of the machine gun by each person occupying such room, boat or vehicle.
      “(f) Each manufacturer shall keep a register of all machine guns manufactured or handled by him. Such register shall show the model and serial number, date of manufacture, sale, loan, gift, delivery or receipt, of each machine gun, the name, address and occupation of the person to whom the machine gun was sold, loaned, given or delivered, or from whom it was received and the purpose for which it was acquired by the person to whom the machine gun was sold, loaned, given or delivered. Upon demand, any manufacturer shall permit any marshal, sheriff or police officer to inspect his entire stock of machine guns, and parts and supplies therefor, and shall produce the register, herein required, for inspection. Any person who violates any provision of this subsection shall be fined not more than two thousand dollars.
      “(g) Each machine gun in this state adapted to use projectiles of any caliber shall be registered in the office of the commissioner of public safety within twenty-four hours after its acquisition and, thereafter, annually, on July first. Blanks for registration shall be prepared by said commissioner and furnished upon application. To comply with this subsection, the application as filed shall show the model and serial number of the gun, the name, address and occupation of the person in possession, and from whom and the purpose for which the gun was acquired. The registration data shall not be subject to inspection by the public. Any person who fails to register any gun as required hereby shall be presumed to possess the same for an offensive or aggressive purpose. The provisions of this subsection shall not apply to any machine gun which has been registered under the provisions of subsection (f) and which is still in the actual possession of the manufacturer.
      “(h) No provision of this section shall apply to: (1) The manufacture of machine guns for sale or transfer to the United States government, to any state, territory or possession of the United States or to any political subdivision thereof or to the District of Columbia; (2) the possession of a machine gun rendered inoperable by welding of all critical functioning parts and possessed as a curiosity, ornament or keepsake; or (3) a machine gun acquired, transferred or possessed in accordance with the National Firearms Act, as amended, provided such machine gun shall be subject to the provisions of subsection (g) of this section.”

       We confine our discussion to the four inferences involved in this appeal; General Statutes § 53-202 (d) (3), (d) (4), (e) and (g); and leave for another day the other statutory inferences set forth in § 53-202.

       We therefore need not reach the two other issues raised by the defendant, namely, (1) whether the trial court’s instructions on a statutory alternative unsupported by the evidence violated the defendant’s right to due process of law under article first, § 8, of the Connecticut constitution, and (2) whether the trial court’s instructions on the essential element of possession violated the defendant’s right to due process of law under the fourteenth amendment to the federal constitution.

         A magazine is “a holder that is incorporated in or attachable to a gun and that contains cartridges to be fed into the gun chamber by the operation of the piece.” Webster’s Third New International Dictionary.

       In fact, the defendant’s request to charge specifically asked the trial court to use the language of § 53-202 (c), (d) (3), (d) (4), (e) and (g).

       In State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), this court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) The present case clearly satisfies all four prongs of Golding.

       “Under Practice Book § 4185, although we are not bound to review the defendant’s claim, we may in the interests of justice notice plain error not brought to the attention of the trial court. . . . 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.” (Citations omitted; internal quotation marks omitted.) Westport Taxi Service v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995). We need not decide whether the defendant’s claim is reversible under the plain error doctrine because we conclude that the defendant’s conviction is reversible under Golding.

       With respect to possession, in State v. Watson, supra, 165 Conn. 596-97, this court declined to construe General Statutes § 29-38 in such a manner as to save the invalid provision. We applied the test enunciated in Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), and concluded that “[p]roof of presence of a weapon in a motor vehicle, although relevant and admissible evidence on the charge made in this case, is insufficient standing alone to show a violation of the statute with ‘substantial assurance.’ It cannot be logically and reasonably presumed that an occupant of a motor vehicle knew of the presence of an unregistered weapon in a vehicle simply on the fact that he was an occupant. Presence alone, ‘unilluminated by other facts’ is insufficient proof of possession. United States v. Romano, [382 U.S. 136, 141, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965)]. Imputing knowledge of the presence of a weapon in a vehicle to an occupant without proof of any other relevant circumstance would be based on pure speculation and could not meet the standards reiterated in Leary v. United States, supra [36].” State v. Watson, supra, 596; see also State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985) (“[w]here the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference’ ”).

       Although § 29-38 contains a mandatory rebuttable presumption of possession, the trial court did not instruct the jury as to that presumption. Instead, the trial court instructed the jury that “[a] person is in violation of [§ 29-38] if he ‘knowingly has in any vehicle owned or operated or occupied by him any weapon for which a proper permit has not been issued or has not registered such weapon as required.’ ” To provide further guidance to the jury, the trial court charged that “[t]he state must prove beyond a reasonable doubt that the defendant knowingly had a weapon in the vehicle which was owned, operated or occupied by him and that it was a weapon for which a proper permit or registration had not been issued.”