author: Shea, J.

text:
    Zoning Board of Appeals of the Town of North Haven v. Freedom of Information Commission et al.
    (12518)
    Peters, C. J., Shea, Santaniello, Callahan and Ment, Js.
    Argued November 12, 1985
    decision released February 4, 1986

      Mitchell W. Pearlman, general counsel, with whom, on the brief, were Constance L. Chambers, assistant general counsel, and David N. Rubin, for the appellant (named defendant).

      Robert K. Ciulla, for the appellee (plaintiff).
   Shea, J.

This appeal arises out of a Superior Court action reversing a decision of the Freedom of Information Commission (FOIC) which held that an executive session held by the zoning board of appeals of the town of North Haven (ZBA) was improper under General Statutes § l-18a (e). On May 13, 1982, the ZBA, prior to a public session, voted unanimously to enter executive session with its attorney to obtain legal advice relating to a pending use variance request to permit the construction of a condominium complex. Following the executive session, the ZBA returned to public session and approved the variance request.

On June 4, 1982, Louise Kosciuszek, who had opposed the variance, filed a notice of appeal with the FOIC, pursuant to General Statutes § l-21i (b), claiming that the ZBA violated the law by going into executive session with its attorney. Following a hearing on September 23, 1982, the FOIC issued its decision on November 23, 1982. It found that the executive session was improper under General Statutes § l-18a (e) (5) and that the discussion conducted therein was not protected from disclosure by either the common law attorney-client privilege or General Statutes § 1-19 (b) (10), “because it [did] not involve confidential communications.” It declined to reverse the decision of the ZBA, but ordered that the ZBA “henceforth comply with the requirements of [General Statutes] § 1-21 and § l-18a (e) (5).”

The ZBA appealed this decision to the Superior Court which, in reversing the FOIC, concluded that the ZBA was an aggrieved party within the meaning of General Statutes § 1-2 li (d) and that the conversations between the ZBA and its counsel in executive session were confidential communications protected from disclosure under the attorney-client privilege. The trial court also concluded that the time limits for FOIC action set forth in General Statutes § l-21i (b), which the FOIC had failed to meet, were mandatory rather than directory. From this judgment, the FOIC has appealed, claiming that the court erred: (1) in concluding that the oral communications between the ZBA and its attorney were privileged so as to justify an executive session; (2) in holding that the FOIC has no statutory authority to issue orders that command future compliance with the law; and (3) in declaring the applicable time limits to be mandatory. Because we have concluded that the time requirements are indeed mandatory, we do not reach the other issues.

I

Before addressing the dispositive issue in this appeal, we must first decide whether this court has jurisdiction to entertain the appeal. As we have noted, the FOIC did not reverse the decision of the ZBA. Instead, the FOIC ordered that the ZBA “henceforth comply” with the applicable statutes. General Statutes § l-21i establishes a right of appeal for any party aggrieved by a decision of the FOIC under the Freedom of Information Act (the act). Therefore, a showing of aggrievement is necessary to establish the Superior Court’s jurisdiction over the appeal of the ZBA. Kulmacz v. Kulmacz, 111 Conn. 410, 412, 418 A.2d 76 (1979). The trial court concluded that the ZBA was aggrieved by the FOIC finding that the executive session was improper and by the “threat of criminal sanctions” implicit in the order. We agree.

“ ‘The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, “the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” . . . (Citations omitted.) Local 1303 & Local 1378 v. FOIC, 191 Conn. 173, 176, 463 A.2d 613 (1983).’ ” Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Walls v. Planning & Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979).

There can be no question that the interest of the ZBA in obtaining confidential legal advice from its counsel satisfies the personal and legal interest in the subject matter requirement. Nor can it successfully be maintained that its interest has not been “injuriously affected.” The FOIC concluded that the executive session was improper under the act because any attorney-client communications were not confidential, and it ordered the ZBA henceforth to comply with the requirements of the law. General Statutes § 1-2 lk (b) provides that the failure to comply with an order of the FOIC constitutes a class B misdemeanor. Further, if the order had not been vacated by the Superior Court, it would undoubtedly have had a chilling effect on the ZBA the next time it contemplated calling an executive session in order to secure legal advice. The ZBA was aggrieved by the action of the FOIC because the order not only required the ZBA to conform with the requirements of the law, but, considered in tandem with the decision that an executive session to obtain legal advice was improper, also prohibited such executive sessions in the future. Although the FOIC order did not explicitly subject the ZBA to a penalty or overturn its decision, the ZBA was aggrieved.

II

The FOIC concedes, as it must, that it did not comply with the requirements of General Statutes § l-21i (b) that it “shall, within twenty days after receipt of the notice of appeal, hear such appeal . . . and shall decide the appeal within thirty days after such hearing . . . .” (Emphasis added.) The hearing was not held until September 23, 1982, more than three and one-half months after the filing of the appeal on June 4, 1982. The FOIC decision was not issued until November 17,1982, nearly two months after the hearing. In attempting to nullify these admitted violations of the statute, the FOIC argues that the time limits are not mandatory, but merely directory, so that its failure to comply does not invalidate its action. We disagree.

“ ‘For the reason that individuals or the public should not be made to suffer for the dereliction of public officers, provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory.’ 2A Sutherland, Statutory Construction (4th Ed. Sands) § 57.19. Unless there is reason to believe that the legislature intended that the duty not be performed at all except within the time prescribed or that the time restriction should be considered a limitation upon the power of the tardy officer, failure to act within the time specified should not invalidate the action taken. Id. ‘It is of course difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory and when mandatory or imperative, but, of all the rules mentioned, the test most satisfactory and conclusive is, whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial—to matters of convenience or of substance.’ Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334 (1890).” Tramontano v. Dilieto, 192 Conn. 426, 432, 472 A.2d 768 (1984); see Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); State v. Tedesco, 175 Conn. 279, 284-85, 397 A.2d 1352 (1978); Akin v. Norwalk, 163 Conn. 68, 74, 301 A.2d 258 (1972); Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967).

Under this analysis, the FOIC argues that the time periods prescribed in § l-21i (b) are directory because they are “clearly designed for the convenience of persons seeking redress before the FOIC and to expedite such matters.” We disagree with this contention and also with the analysis of many unreported Superior Court decisions cited by the FOIC that have held that the time requirements are merely directory. These cases have concluded that to dismiss a complaint due to the failure of the FOIC to comply with the time requirements would operate to penalize the complainant and frustrate the essential purpose of the act, which is to facilitate public access to government activities. We agree with the interpretation of the court below that the act reflects a legislative purpose to balance the public’s right to access with the government’s need for confidentiality. Wilson v. Freedom of Infor motion Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980). The time requirements were not designed as merely a convenience to complainants under the act. The speedy disposition of complaints is important both to the complainant and to the efficient functioning of the governmental agency involved. Because the time requirements embodied in General Statutes l-21i (b) advance this purpose, they go to the essence of the act and are, therefore, mandatory.

The statute expressly provides that the commission “shall” hold a hearing within twenty days and “shall” decide the appeal within thirty days thereafter. This language, considered in conjunction with the use of the word “may” in other sentences of the same statutory section, supports the conclusion that the legislature acted with complete awareness of their different meanings. Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978). The legislative history similarly buttresses the analysis that the time requirements were intended to be mandatory. If the FOIC finds that it is handicapped by these mandatory time requirements, its appropriate remedy is to request the legislature either to lengthen the applicable time periods or to provide for an extension procedure. The FOIC cannot disregard the time limits in the act by viewing them as merely directory.

We are persuaded that the legislature intended that the failure of the FOIC to comply with the time limits for the hearing and adjudication of a complaint would nullify its subsequent action. Although the use of the word “shall” does not invariably create a mandatory duty, because statutes must be construed as a whole to ascertain the legislative intention; Tramontano v. Dilieto, supra, 433-34; we conclude that the legislature intended the time requirements for FOIC action to be mandatory.

There is no error.

In this opinion the other judges concurred.

       General Statutes § l-18a (e) provides: “(e) ‘Executive sessions’ means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (1) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; (2) strategy and negotiations with respect to pending claims and litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (3) matters concerning security strategy or the deployment of security personnel, or devices affecting public security; (4) discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (5) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19.”

         General Statutes § l-21i (b) provides: “(b) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the denial from which such appeal is taken. Upon receipt of such notice, the commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission. Said commission shall, within twenty days after receipt of the notice of appeal, hear such appeal after due notice to the parties and shall decide the appeal within thirty days after such hearing, by confirming the action of the agency or ordering the agency to comply forthwith with such relief as the commission, in its sound discretion, believes appropriate to rectify the denial of any right conferred by said sections.”

       General Statutes § 1-19 (b) (10) provides: “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (10) records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship . . . .”

       In a separate action instituted by the complainant, the decision of the ZBA granting the use variance was reversed by the Superior Court, Celotto, J., on June 20,1983. The complainant did not appear in the appeal to the Superior Court in the case before us and was ultimately defaulted.

       Our inquiry is focused on the Superior Court’s jurisdiction because General Statutes § l-21i (d) grants the FOIC standing to appeal any decision “overturning or modifying” its decision.

       This is not an instance where Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982), requires us to interpret the time requirements as directory. In Logan, the complainant was prevented from asserting a claim of unlawful termination with the employment commission because the commission had failed to comply with a 120 day convening requirement. The United States Supreme Court held that the employee’s right to use the adjudicatory procedures of the fair employment act was a property right protected by the due process clause that could not be abrogated by the commission’s failure promptly to hear the complaint. The complainant here was not deprived of her due process rights. She did not assert a vital liberty or property interest, she merely sought to reverse the decision of the ZBA.

       Representative Martin B. Burke, who sponsored the bill, commented on the floor of the house: “The appeal is a speedy process. The Freedom of Information Commission must hear it within 20 days of the filing of the appeal and they must decide it within 15 days after the hearing. And I would submit that this administrative commission would be a lot quicker than if there were an appeal to a court.” 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3914.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Theresa Spencer
    (11509)
    Peters, C. J., Shea, Santaniello, Callahan and Brenneman, Js.
    Argued November 6, 1985
    decision released February 4, 1986
   Shea, J.

After a jury trial the defendant was convicted of felony murder in violation of General Statutes § 53a-54c. In her appeal from the judgment she claims error: (1) in the denial of her motion for an acquittal which was based on a claim of insufficiency of the evidence; (2) in the admission of statements by an alleged coparticipant that implicated her in the crime; and (3) in charging the jury upon the necessity for involvement of the defendant in the underlying felony of robbery as a prerequisite for the crime of felony murder. We find no error.

I

Although she maintains that the evidence of her participation in the crime was insufficient, the defendant does not dispute that her two companions, Lawrence Nowlin and Christopher Leecan, did, on December 10, 1980, cause the death of Raymond Lovell in the course of robbing him in his room at the Holiday Inn on Whalley Avenue in New Haven. The defendant had met Lovell while working in New Haven as a member of a door-to-door sales organization which also employed him. She had left this employment, in which she had been engaged since mid-November, 1980, about one week before the crime in order to return to her home in Philadelphia.

On December 8,1980, the defendant returned to New Haven for the stated purpose of obtaining her paycheck and retrieving some clothes she had left. She was accompanied by Christopher Leecan and Lawrence Nowlin, two friends from Philadelphia. They used Leecan’s car in which, as the defendant was aware, he carried a gun, handcuffs and an iron pipe. They spent the night in New Haven at the home of an acquaintance of the defendant whom she believed to be a drug dealer. On the following night, December 9,1980, Leecan and Nowlin stayed at a motel in New Haven. The defendant, who had previously been intimate with Lovell, slept with him at the Holiday Inn.

On December 10,1980, the defendant rejoined Lee-can and Nowlin at their motel. The three of them drove to the Holiday Inn looking for Lovell. As Lovell’s car, a Cadillac, was not parked outside his room, they drove to a parking lot nearby where they smoked marijuana and drank for some time. They returned then to the Holiday Inn and parked outside the door of Lovell’s motel room. After they had waited for some time, Lovell drove up in his car with Mary Clayton, the manager of the sales operation. The defendant called Lovell over to the car and spoke to him about obtaining her paycheck. Lovell told her to call him later that day. The defendant and her companions returned to the nearby parking lot where they again smoked marijuana and drank. In the evening they drove back to Lovell’s motel.

The defendant entered Lovell’s room. After a while her two companions knocked on the door of the room and it was opened by the defendant. A friendly conversation ensued in which Lovell and Leecan discussed Florida. Eventually, Leecan got up to use the bathroom. At the sound of the toilet being flushed, the defendant got up from the bed, where she had been sitting near Lovell, and Leecan emerged from the bathroom with a gun in his hand.

According to the defendant, who testified in her own defense, when she saw Leecan point his gun at Lovell she ran from the room in panic, got into a car, but had to remain there because she had no keys. Lawrence Nowlin, the principal witness against her, testified, however, that the defendant participated in handcuffing Lovell when he was lying on the floor, as he had been ordered by Leecan. Nowlin also testified that when Leecan demanded Lovell’s drugs and money, Lovell replied that his money was not in the room; that the defendant, as requested, handed Leecan an electrical cord, which he used for tying Lovell’s feet; that Leecan gagged Lovell and put a pillow case over his head; that Leecan then struck Lovell on the head with an iron pipe; and that when the defendant pointed out that Lovell’s body was still moving, Leecan struck him twice more. Lovell died from the injuries he had received.

According to Nowlin, the defendant and Leecan removed the victim’s extensive collection of jewelry and clothes from his room. When the trio departed they also took the victim’s car, but abandoned it about a mile from the Holiday Inn. The defendant and her companions drove to Philadelphia, where they sold the victim’s jewelry, the defendant receiving a share of the proceeds. They then drove to North Carolina, where they remained for several weeks.

While staying in North Carolina, the defendant and Leecan stole a car in which they drove to Florida. The defendant was arrested for this theft in Miami. Later it was discovered that there was a warrant for her arrest for the New Haven crimes.

It is clear that, if the jury could reasonably have credited the testimony of Nowlin and rejected that of the defendant, there was ample evidence of her participation in the underlying offense of robbery from which the victim’s death resulted. The remaining elements of the crime of felony murder are not disputed. Our review of Nowlin’s testimony, which does contain some improbabilities apparently designed to minimize his own culpability for the crime, discloses no basis for this court to overturn the jury’s finding that the defendant did participate in the underlying crime of robbery. The defendant’s knowing involvement is confirmed by other circumstances that are not disputed, such as the facts that she and her companions waited around for three days for the sole expressed purpose of obtaining her belongings and her paycheck, that she was the means by which Leecan and Nowlin gained entry to Lovell’s room, and that she fled the scene with her companions and remained with them for several months after the crime, though she was aware that a robbery had occurred and claimed to have been informed of the killing two days later. It is not the prerogative of this court to evaluate the conflicting testimony of Nowlin and the defendant, but that of the jurors who heard them testify. State v. Martin, 189 Conn. 1, 9, 454 A.2d 256 (1983). We conclude that there was a sufficient basis in the evidence to support the verdict of guilty and that the trial court properly denied the defendant’s motion for a judgment of acquittal.

II

The defendant claims that certain statements made by Leecan, which were offered through the witness Nowlin, should have been excluded as hearsay. Nowlin testified that three or four weeks after he first met Lee-can and the defendant he had a conversation with them in which Leecan said that he and the defendant were involved in robbing drug dealers, because such victims were not likely to report the crimes. Leecan told him that the defendant would assist by becoming friendly with the potential victims, thus learning their location and the quantity of drugs they might have. When asked whether the defendant was present at the time Lee-can described their robbery operation and whether she “did . . . agree,” Nowlin answered affirmatively. He was unable, however, to say how long before the trip to New Haven this conversation had occurred.

The defendant objected to the admissibility of the conversation on grounds of relevancy and hearsay. The court overruled the objection, admitting the evidence to show motive and a pattern of activity similar to that claimed to have been involved in the murder of Lovell. The court also concluded that the testimony indicated that both Leecan and the defendant had participated in the conversation.

We agree with the trial court that the evidence of the defendant’s participation with Leecan in prior robberies was relevant to show that the defendant was a willing participant in a plan to rob Lovell. See State v. Nardini, 187 Conn. 513, 518-19, 447 A.2d 396 (1982). In view of her claim to have been an innocent bystander, this evidence was also of sufficient probative value to outweigh its prejudicial effect. Id., 519-520. In regard to the hearsay objection, there is a sufficient basis for the view of the trial court that the circumstances of the conversation were such that the defendant’s failure to deny Leecan’s account of her complicity in the prior crimes was an adoptive admission or, based on the testimony that the defendant “did . . . agree,” an express admission. State v. Harris, 182 Conn. 220, 228-29, 438 A.2d 38 (1980).

The state also introduced, without objection, testimony of Nowlin that in driving back from New Haven after the crime the defendant asked Leecan why he had not robbed the drug dealer she had befriended, at whose home they had spent their first night in New Haven, to which question Leecan replied that he had searched the house but could find no drugs, jewelry or money to steal. Nowlin also testified, without any objection, that Leecan had told him that it was necessary to kill Lovell, rather than simply rob him, because Lovell knew that the defendant lived in Philadelphia. In belatedly arguing the inadmissibility of these statements of Leecan, the defendant assumes that her initial hearsay objection to the earlier conversation concerning her participation in other crimes was sufficient to preserve the issue for appellate review. This assumption is clearly unfounded, because the court’s ruling admitting the first conversation in no way indicated that objections to the later conversations would be futile. See Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 511, 227 A.2d 83 (1967).

The defendant also claims that the admission of Lee-can’s statements deprived her of her constitutional right to confront the witnesses against her. Pointer v. Texas, 380 U.S. 400, 403-404, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). To the extent that the admission of these out-of-court statements is claimed to have violated this fundamental constitutional right, the defendant is entitled to appellate review. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant has not demonstrated, however, that “the record adequately supports a claim that [she] has clearly been deprived of a fundamental right and a fair trial.” Id. Her failure to object to the evidence made it unnecessary for the state to establish a foundation sufficient to support the admissibility of the statements, as it had done when objection was raised to the earlier conversation. See State v. Rawls, 198 Conn. 111, 118, 502 A.2d 374 (1985). The state had no occasion to elaborate upon the circumstances in which the conversations took place in order to satisfy the requirements for admissibility of them as statements of a coconspirator or, possibly, as adoptive admissions. Under a well established exception to the hearsay rule, the admission of statements made by a coconspirator in furtherance of the conspiracy is deemed not to violate the confrontation clause, even where the breadth of the exception under state law substantially exceeds that of the evidentiary rule followed in the federal courts. Dutton v. Evans, 400 U.S. 74, 81-82, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970).

In reviewing the impact of the introduction of Lee-can’s statements upon the defendant’s right of confrontation, we are not necessarily concerned with the precise contours of exceptions to the hearsay rule. We are concerned only with whether Leecan’s unavailability for cross-examination deprived the defendant of a fair trial, and we conclude that it did not.

The testimony of Nowlin that the defendant asked Leecan why he had not robbed their drug dealer host in New Haven was significant primarily for the question asked by the defendant, not for Leecan’s response. This question indicated her knowing participation in a continuing robbery scheme closely related to that which resulted in Lovell’s murder. That the defendant had asked this question was, of course, an admission, an exception to the hearsay rule, as it was inconsistent with her claim to have had no knowledge of the planned robbery of Lovell. Falker v. Samperi, 190 Conn. 412, 425, 461 A.2d 681 (1983); State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982). Leecan’s answer, that he had found nothing worth stealing, whether true or false, was of no significance upon the issue of the defendant’s involvement in robbing Lovell. We need not consider, therefore, whether this statement of Leecan might have been admissible for the truth of the matter contained therein under the exception covering statements made by a coconspirator during the flight phase of the conspiracy.

The additional statement of Leecan, that Lovell was killed because he knew that the defendant lived in Philadelphia, also has only minimal logical bearing on the issue of her participation in the underlying felony of robbery, which was the basis for her conviction of felony murder. We must not overlook, however, the emotional impact this testimony may have had upon the jury. It appears that Leecan’s statement of his reason for killing Lovell was made in response to a question of Nowlin: “I asked him, after he killed the man, Mr. Lovell, I asked him. why did he do that.” (Emphasis added.) It is reasonable to infer that Nowlin’s testimony indicates that Leecan’s statement was made immediately after Lovell’s death while the conspiracy to rob him was still being effectuated. The requirement that a statement of a coconspirator be made during the course of the conspiracy was thus satisfied. See State v. Vessichio, 197 Conn. 644, 654, 500 A.2d 1311 (1985); Cooke v. Weed, 90 Conn. 544, 547-48, 97 A. 765 (1916); McCormick, Evidence (3d Ed. 1984) § 267; annot., 4 A.L.R.3d 671 (1965). We also view this statement as related to the furtherance of the conspiracy, since it was an explanation given to Nowlin for the purpose of allaying his doubts about the necessity of the killing at a time when his assistance was needed to help remove Lovell’s belongings. See Wong Sun v. United States, 371 U.S. 471, 490, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Tropiano, 158 Conn. 412, 421-25, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970); Robinson v. Dobbins, 108 Conn. 58, 60-61, 142 A. 572 (1928). The record before us, therefore, is adequate to support the admissibility of Leecan’s statement under the coconspirator exception to the hearsay rule. Thus the admission did not infringe upon the defendant’s constitutional right of confrontation. Dutton v. Evans, supra.

Ill

In charging the jury upon the elements necessary for a conviction of felony murder under § 53a-54c, the court declared that the first of the four elements to be proved by the state was “that the accused, Miss Spencer, and!or others, committed or were attempting to commit a robbery.” (Emphasis added.) This instruction followed a paraphrasing of the statute to the effect that “a person is guilty of murder when, acting alone or with one or more persons, he—and they’re talking about she in this particular case—commits robbery . . . .’’The defendant points out correctly that the use of the double conjunction “and/or” in describing the requirement for complicity in the underlying crime is improper, since it would literally allow a jury to find a person guilty of felony murder because he or others had committed the underlying felony. The defendant took no exception to this charge, however, until it was repeated by the court stenographer at the request of the jury. The court refused to correct the charge at this time. Another note was submitted by the jury, requesting “a copy of the four elements stated by the stenographer.” The court explained that to supply the jury with “the four bare bone elements” would be incomplete, but offered to provide a rereading of any portion of the charge. The defendant again pointed out the confusion inherent in the use of “and/or” in the charge. The court offered to call the jury once more in order to reread the statute, and the defendant agreed with this proposal. The court then repeated the statutory provisions, which are applicable to a person who, “when acting alone or with one or more persons . . . commits or attempts to commit robbery . . . .” The defendant had no further exception.

Although it would undoubtedly have been the better practice for the court to have explicitly corrected its original misstatement of the element of complicity in the robbery required to convict the defendant of felony murder, we are satisfied beyond a reasonable doubt that the jury was not misled. In addition to the final reading of the felony murder statute, as adapted to the facts of the case, the court gave an elaborate instruction on the necessity of finding that the defendant intended to participate in the robbery of Lovell and that she was not merely present inactively at the crime or had not innocently performed certain acts which may have facilitated its commission. Toward the conclusion of the charge, the court summarized the elements necessary for a conviction of the defendant. In restating the complicity element, the court charged correctly as follows: “So, to recapitulate, in order to find Miss Spencer, the accused here, guilty of the charge of murder as set forth in the indictment, you must find the State has proven beyond a reasonable doubt, one, that she and others committed or were attempting to commit the crime of robbery . . . . ” (Emphasis added.) After reviewing the charge in its entirety, we are convinced that the original misstatement arising from the use of “and/or” was adequately cured by the remainder of the charge, including the supplementary instructions given at the request of the jury. See State v. Nardini, supra, 531-33.

There is no error.

In this opinion the other judges concurred.

       During argument of this appeal the defendant withdrew her claim, which had been briefed, that the statements she had made to the police in Florida after her arrest and to the New Haven police after her extradition, but prior to her arraignment or indictment, were obtained in violation of her right to have counsel present at the interrogation under the strictures of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). We recently rejected the contention that the right to appointed or retained counsel is triggered by an extradition proceeding, or that an extradition hearing is a “critical stage” of the prosecution requiring the presence of counsel. State v. Falcon, 196 Conn. 557, 564, 494 A.2d 1190 (1985); see Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). The defendant also withdrew her ancillary arguments contained in the same part of her brief that vaguely suggest involuntariness of her statements and noncompliance with the requirements of Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Accordingly, we need not consider an alternative ground relied upon by the state for the admissibility of this evidence, the exception to the hearsay rule for statements of a coconspirator in furtherance of the conspiracy. Nowlin’s inability to relate the conversation to the time of the trip to New Haven or other events indicating the formation of a conspiracy may have rendered this exception inapplicable.


text:
    State of Connecticut v. Christopher Leecan
    (11612)
    Peters, C. J., Shea, Santaniello, Callahan and M. Hennessey, Js.

      Argued November 6, 1985
    decision released February 4, 1986

      Richard Emanuel, special public defender, for the appellant (defendant).

      Judith Rossi, special assistant state’s attorney, with whom were Julia D. Dewey, assistant state’s attorney, and, on the brief, ArnoldMarkle, state’s attorney, for the appellee (state).
   Shea, J.

The defendant was convicted after a jury trial of felony murder in violation of General Statutes § 53a-54c. In his appeal from the judgment the defendant claims error: (1) in the admission of evidence of his pre-arrest and postarrest silence with respect to the murder accusation; (2) in the admission of evidence of (a) threats claimed to have been made by the defendant against a witness for the state, (b) the existence of outstanding arrest warrants against the defendant for unrelated crimes, and (c) his arrests for prior felonies; (3) in charging the jury on felony murder without mentioning the affirmative defenses to that crime set forth in § 53a-54c as well as in explaining what is meant by a reasonable doubt; and (4) in the ineffective assistance rendered at trial by defense counsel. We find no error.

This defendant was convicted of the felony murder of the same person, Raymond Lovell, who was the victim of the crime in State v. Spencer, 198 Conn. 506, 503 A.2d 1165 (1986), wherein this court affirmed the conviction of Theresa Spencer at a separate trial as a participant in the same offense of felony murder. The facts, set forth in greater detail in that opinion, may be briefly summarized for the purpose of this appeal.

The jury could reasonably have found from the evidence that on December 11,1980, Raymond Lovell was found dead in his room at the Holiday Inn in New Haven. He had been bound with handcuffs and a cord, gagged, his head covered with a pillow case, and beaten on the head with a blunt object, causing injuries that resulted in his death.

On December 8,1980, three days before Lovell’s body was discovered, the defendant had driven to New Haven from Philadelphia, accompanied by Lawrence Nowlin and Theresa Spencer. The defendant brought with him a set of handcuffs, a metal pipe and a handgun. Nowlin and Spencer testified in behalf of the state at the defendant’s trial and provided most of the evidence of his involvement in the crime.

The trio spent the night of December 8 in New Haven at the home of an acquaintance of Spencer. They had initially intended to rob this person, but later abandoned the plan. On December 9, Spencer contacted Lovell, the victim, whom she had met previously while working for a magazine sales organization that also employed him. She spent that night with Lovell in his motel room.

The next day, December 10, she rejoined Nowlin and the defendant at the motel where they were then staying. The defendant, with Nowlin and Spencer, drove to the Holiday Inn where Lovell was staying. Lovell did not return to the motel until the late afternoon, at which time he spoke with Spencer about her returning to his room that evening.

The defendant, observing that Lovell wore expensive clothing and jewelry and drove a Cadillac, expressed his intention of robbing Lovell with the assistance of Nowlin and Spencer. The trio returned to the Holiday Inn at about 8 p.m. that evening. Spencer entered Lovell’s room while Nowlin and the defendant remained in the car. After some period of time, Nowlin knocked on the door of the room and Spencer let him and the defendant into the room. The defendant used the bathroom and, when he emerged, he held a handgun. He demanded that Lovell give him his money and his drugs. Lovell was bound, gagged and blindfolded by placing a pillow case over his head. The defendant then struck Lovell several times on the head with an iron pipe. Assisted by Nowlin and Spencer, the defendant searched the room and removed some of Lovell’s jewelry and clothing, which they placed in the trunk of the defendant’s car. One of his accomplices drove Lovell’s Cadillac and followed the defendant, who was driving his own car. After it had been searched, the Cadillac was abandoned on the Merritt Parkway. The trio then returned to Philadelphia.

The defendant testified at trial in support of his alibi defense that, at the time when the crime was committed, he was waiting for Nowlin and Spencer at a bar located near the motel where Lovell resided. He said that they had used his car to pick up some possessions of Spencer at the motel and that, when they returned, the trio drove back to Philadelphia. He also testified that, at the time he learned of the murder several weeks later, when the trio was in North Carolina, both Spencer and Nowlin made statements indicating their involvement in the robbery and murder of Lovell.

I

The defendant claims that certain questions put to him on cross-examination to show that his alibi was of recent contrivance and to attack his credibility violated his constitutional right to remain silent under the strictures of Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Doyle held that postarrest silence is “insolubly ambiguous” because it may have been nothing more than the exercise by an arrestee of his right to remain silent in the wake of the customary warning of his rights given at the time of his arrest pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Long before these decisions this court had reached a similar conclusion, on nonconstitutional grounds, that evidence of silence when an accused is in custody is inadmissible. State v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922). Under such circumstances, “our law accords him the right to reply to question or statement, or to remain silent. His silence under such circumstances cannot be laid in evidence against him.” Id; see State v. Morrill, 197 Conn. 507, 535-36, 498 A.2d 76 (1985); State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977).

A

The defendant seeks to extend the prohibition against evidence of postarrest silence of an accused to the period prior to his arrest. He acknowledges that such a claim, when based upon federal constitutional provisions guaranteeing the right of an accused to remain silent and to due process of law, has been rejected. Jenkins v. Anderson, 447 U.S. 231, 235, 100 S. Ct. 2124, 65 L. Ed. 2d 2486 (1980); Raffel v. United States, 271 U.S. 494, 496-97, 46 S. Ct. 566, 70 L. Ed. 1054 (1926). He maintains, however, that analogous provisions of our state constitution, article first, § 8, should be construed to afford greater protection to these rights of an accused than the federal constitution has provided. The defendant points to no history relating to our state constitution nor to any significant differences from their federal counterparts in the language of the state constitutional provisions relied upon that might warrant a different interpretation. Although this court recognized under principles of the law of evidence the ambiguity inherent in the postarrest silence of an accused long before the advent of Miranda warnings, which add a further dimension of unfairness to its use by the prosecution, we have, nevertheless, followed the general principle that pre-arrest silence under circumstances where one would naturally be expected to speak may be used either as an admission or for impeachment purposes. McCormick, Evidence (3d Ed.) §§ 160, 270. “When a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part.” State v. Cook, supra, 76; State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927). The circumstances, of course, must be such that a reply would naturally be called for even in the prearrest setting. State v. Vitale, 197 Conn. 396, 405-406, 497 A.2d 956 (1985). “Although evidence of silence in the face of an accusation may be admissible under the ancient maxim that ‘silence gives consent’ the inference of assent may be made only when no other explanation is consistent with silence.” State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980). We can perceive no violation of any constitutional right, state or federal, in our continued adherence to these rules.

The additional claim of the defendant, that evidence of his pre-arrest silence was introduced without satisfying the evidentiary standards for admissibility requiring proof of circumstances naturally calling for him to speak, does not involve a claimed violation of any constitutional right. The failure of the defendant to raise any objection in the trial court to the prosecutor’s inquiries on this subject precludes appellate review. Practice Book § 288. We are not convinced that we should invoke our authority to notice “plain error” in accordance with Practice Book § 3063, because, if objection had been raised, the state would have had an opportunity to supplement the foundation shown by the present record for the admission of such evidence.

B

The first claimed violation of the defendant’s right of postarrest silence as delineated in Doyle v. Ohio, supra, relates to his responses on cross-examination to questions concerning his failure to inform the police at the time he “turned himself in” that the car that had been observed at the Holiday Inn in New Haven at the time of the murder was owned by him rather than his uncle, in whose name it had been registered. In presenting its case the state had called Paul Lee-can, the defendant’s uncle, who testified that he took title to the automobile, which the defendant had purchased on July 6, 1980, at the request of the defendant and that he had used the car for only a few days afterward. Paul Leecan also testified that the defendant had told him that he was going to Connecticut to surrender himself to the police and that he would clear up any involvement arising from the registration of the car in the name of his uncle.

On cross-examination the defendant admitted telling Paul Leecan that he was going to Connecticut “to straighten that out.” This response was followed by the question at issue: “And, of course, you immediately came forward then and helped straighten that out, that it wasn’t his car, in March of 1981 when you turned yourself in?” Defense counsel objected that the question constituted an impermissible comment on the defendant’s right to remain silent by highlighting the fact that the defendant, unlike his confederates, Nowlin and Spencer, had never given any statement to the police. The state claimed the question to be related to the credibility of the defendant. The court overruled the objection and defense counsel duly excepted. He also moved for a mistrial, which the court denied. When the question was read back to the defendant on the witness stand, he responded that, at the time, he “was advised by an attorney not to give any statement whatsoever.” The prosecutor also elicited, without further objection being raised, that the answer to his question was “No.”

Although the defendant relies upon the Doyle principle that silence following Miranda warnings is “insolubly ambiguous” and, therefore, cannot be used by the prosecution, he concedes that the record in this case does not disclose whether any such warnings were given or when they may have been given. In Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982), the United States Supreme Court held that the absence of any indication in the record that the silence of a defendant had been preceded by a Miranda warning rendered Doyle inapplicable, even though the inquiry of the prosecutor pertained to the time of arrest. “In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.” Id., 607. This clarification of the scope of Doyle was not envisioned by this court in State v. Cook, supra, 76-77, when we held that it was not essential for the record to disclose at what point or whether Miranda warnings were given to a defendant when his postarrest silence is the subject of a prosecutorial inquiry. Our holding in Cook, that a defendant’s federal constitutional rights are infringed by questions relating to postarrest silence even in the absence of Miranda warnings, must accordingly be modified.

The defendant urges that we continue to abide by our holding in Cook as a matter of state constitutional law or as a rule of evidence. In Cook the failure to except to the evidentiary ruling allowing inquiry concerning postarrest silence required treatment of the claimed error on appeal as the deprivation of a fundamental constitutional right, for which review was available under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). This circumstance, however, does not indicate that any distinct state constitutional right was implicated, because Doyle was plainly viewed as applicable, thus making the issue cognizable as a federal constitutional claim. Cook does not refer to our state constitution even as an additional ground for its holding.

As we have previously noted in dismissing the defendant’s claim that pre-arrest silence should be accorded state constitutional protection, there is no historical or lexicological basis for different treatment of the parallel provisions of our state and federal constitutional provisions pertaining to the right of an accused to remain silent under the circumstances of this case. We are also not persuaded that contemporary considerations of soeial policy and the administration of the criminal justice system in this state warrant a broader view of our state constitutional provisions in the context of postarrest silence. Putting a constitutional gloss upon every postarrest silence inquiry makes it possible for defense counsel to sit back without voicing objection when such questions are asked, secure in the knowlege that his neglect may well provide his client with an opportunity to overturn an unfavorable verdict on appeal. See State v. Evans, supra, 67. Our experience with claims of error under Doyle indicates a widespread failure of defense counsel to alert the trial court by a proper objection and exception when improper inquiries concerning the silence of an accused are made. We, therefore, decline in this instance to afford under our state constitution greater protection for the right of postarrest silence than is available under our federal constitution.

We agree with the defendant, nevertheless, that the view we expressed in State v. Ferrone, supra, 266, that postarrest silence is inadmissible under principles of the law of evidence, is sound. Because many persons, even in the absence of a Miranda warning, are aware of their right to remain silent and are frequently advised by counsel to exercise that right when arrested, the custodial setting is simply not an occasion when the circumstances naturally call upon a defendant to speak or to reply to police inquiries. Accordingly, there is ordinarily no reasonable basis to infer that a defendant’s silence in such a situation indicates that he acknowledges the truth of some assertion implicit in a question asked by a police officer. Since Ferrone is grounded upon the rules of evidence and does not purport to establish a constitutional principle, a defendant must seasonably object and take exception to an adverse ruling in order to obtain appellate review of his claim of error in this respect.

The defendant did object to the prosecutor’s inquiry in this case concerning his failure to “straighten out” the problem created for his uncle by the registration of the car in his name. He also excepted to the ruling allowing the question. The basis for his objection, however, was not a claim of Doyle silence or the impropriety of inferring an admission from the defendant’s failure to speak once he had been arrested. His objection was that the question amounted to an impermissible comment on the defendant’s right to remain silent under the fifth amendment to the federal constitution because it drew attention to the fact that the defendant, unlike his confederates, Nowlin and Spencer, had given no statement to the police. In addition to this departure from the requirements of Practice Book § 288, the defendant has failed to persuade us that the error was probably harmful to him. The subject of the inquiry, the defendant’s failure to inform the police that his uncle had never actually owned the car registered in his name, can hardly be regarded as very critical to the determination of guilt. The defendant’s failure to fulfill a promise made to his uncle could have had only slight effect upon his credibility and no effect in establishing his guilt. He had conceded in his direct testimony that the car used by him and his associates, Nowlin and Spencer, belonged to him. We conclude that, although the court erred in allowing the question, the circumstances do not indicate that the error was probably harmful as required for a reversal where no constitutional right is involved. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. Gordon, 185 Conn. 402, 419, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982).

c

The remaining violations of his right of silence claimed by the defendant relate to his testimony on direct examination that he had remained at a bar in New Haven while Nowlin and Spencer went to see Lovell, the victim, at the motel where he resided in order to retrieve Spencer’s personal belongings as well as a paycheck owed to her by her former employer. On cross-examination the defendant testified that he had first learned of the murder when he was in North Carolina in late December, 1980, or in early January, 1981. The prosecutor then asked a series of questions concerning whether the defendant had gone to the police when he learned of the murder to explain that he was not involved in the crime and to give such information as he had about the activities of Nowlin and Spencer. The defendant responded negatively several times, but then, in response to a question of whether he had “come forward to any authorities” to reveal his information, he said: “Not until I turned myself in in March. No, I didn’t.” The cross-examination proceeded:

“Q. And in March, did you tell them that?

“A. No, I didn’t tell them anything. I was under the advice of an attorney.

“Q. So you never said it until you were sitting here?

“A. As a result of the advice of my attorney.

“Q. Well, sir, let me ask you this: From January 15 to the date of March 3, forgetting when you turned yourself in, up to March 3, did you ever go forward and say, ‘Hey, I’ve got some information concerning that accident that took place in New Haven? . . .’

“A. No, I didn’t. . . .

“Q. And you did nothing to clear this case up, did you, during that period of time that you were free and roaming the streets?

“A. Not until I turned myself in, no, sir.

“Q. You didn’t do anything then, did you?

“A. Under the advice of an attorney, no, sir.”

During the remainder of the cross-examination the state repeatedly questioned the defendant about his failure to “come forward” to inform the police about his knowledge of the murder, but these questions clearly focused upon the period prior to March 4,1981, when the defendant surrendered himself to the New Haven police, except in two instances:

“Q. Did you do one thing to clear your name right after you found out about this?

“A. No, I didn’t.

“Q. In all of January?

“A, No, sir, I didn’t.

“Q. In all of February?

“A. No, sir, I didn’t.

“Q. March first?

“A. No, sir.

“Q. Second?

“A. No, sir.

“Q. Third?

“A. No, sir.

“Q. And this is the first time you’ve told this story? [Emphasis added.]

“A. Yes, sir.

“Q. And there was nothing you ever did to clear your name right from the moment you heard the accusations against you to the moment that you surrender to the day you testified? [Emphasis added.]

“A. When you say ‘heard the accusations against me,’ I don’t understand that.

“Q. You didn’t know that you had been accused in this case?

“A. Oh, yes.

“Q. When did you first learn that?

“A. When I was in North Carolina.

“Q. And, of course, you called and said to the sheriff, ‘Hey, I’ve got some information that I want to get to the New Haven Police?’

“A. No, sir, I didn’t.

“Q. You called the New Haven Police and said, ‘I’d like to talk to you guys?’

“A. No, sir, I didn’t.

“Q. You called the State’s Attorneys Office and said, ‘I’d like to talk to you?’

“A. No.

“Q. You called the Public Defenders Office and said, ‘I’ve got some information that I think will clear me?’

“A. No, sir, I didn’t.”

At no time did defense counsel object to any of the questions that related to the defendant’s failure to make a statement to the police after he submitted himself to their custody. The defendant explained simply that he was following the advice of counsel. Though these inquiries were objectionable under the principles of State v. Ferrone, supra, the absence of a seasonable objection and exception precludes reliance upon them in this appeal. Practice Book § 288. The defendant claims, however, that the questions about his postarrest silence violated his constitutional rights as delineated in Doyle v. Ohio, supra, and that he thus is entitled to review pursuant to State v. Evans, supra. We have held Doyle violations reviewable under Evans. State v. Morrill, 197 Conn. 507, 536, 498 A.2d 76 (1985); State v. Zeko, 177 Conn. 545, 553, 418 A.2d 917 (1979).

As we have previously noted, the record in this case does not indicate that the defendant ever received a Miranda warning, the necessary predicate to reliance upon Doyle. Fletcher v. Weir, supra, 607. Aware of this deficiency, the defendant urges that we take judicial notice of the probability that at some point between his arrest and his trial he would have been advised of his constitutional right to remain silent and told that his silence could not be used against him. He refers to General Statutes § 54-1b and Practice Book § 637, which require an accused at the time of arraignment to be informed that he is not obliged to say anything and that anything he says may be used against him. We do not regard the advice given by a court or a clerk pursuant to these provisions as the functional equivalent of a Miranda warning given by the police prior to custodial interrogation. It is not as explicit, and is thus not so likely to induce silence in reliance upon it. Furthermore, the defendant in this case testified that he had disclosed nothing to the police, not because of any official warning received at arraignment or at any other time, but because his attorney advised him to remain silent. It appears, therefore, that neither the police nor any other government personnel can reasonably be deemed to have induced the defendant’s post-arrest silence, as is essential to support a claimed violation of Doyle. Fletcher v. Weir, supra.

We are also not convinced that, in the context of the entire cross-examination, even if the record demonstrated that & Miranda warning had been given by the police to the defendant at the time of his arrest, a Doyle violation would have occurred. It was not until the defendant, in response to a question that appears to have been related to his pre-arrest silence, declared that he had not “come forward” and given his information to the police “until I turned myself in in March” that the prosecutor asked his first questions about post-arrest silence. The implication of the defendant’s answer, in the absence of clarification by these questions, was that he had revealed what he knew about the murder at the time he surrendered to the police or thereafter. “It goes almost without saying that the fact of postarrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.” Doyle v. Ohio, supra, 619 n.11. In this case the defendant’s unsolicited response that he had given no information about the crime “until” he was taken into custody falls within the parameters of this exception to the prohibition against use of postarrest silence. The follow-up questions focusing upon the period after the arrest were essential in order to clarify the ambiguous response of the defendant. On the two later occasions, when a series of questions concerning his pre-arrest silence included single references also to his postarrest silence, the defendant cannot be said to have invited these postarrest inquiries by his responses. Since these questions were merely repetitious of those asked following the defendant’s initial ambiguous response, however, we conclude that the later inquiries were harmless beyond a reasonable doubt. See Schneble v. Florida, 405 U.S. 427, 431, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972); State v. Pellegrino, 194 Conn. 279, 291-92, 480 A.2d 537 (1984); State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983); State v. Zeko, supra, 554-58.

II

The remaining claims of the defendant regarding improper evidence, which do not implicate any constitutional right, relate to the admission of: (1) a letter containing a threat against a witness for the state; (2) evidence of outstanding warrants for the arrest of the defendant upon unrelated criminal charges; and (3) evidence of other prior felony arrests.

A

The defendant claims that a letter, received by Theresa Spencer while her trial was in progress, that contained a statement of the defendant’s intention to seek reprisal against an unnamed “snitch” was improperly admitted in evidence. The first ground of objection is authenticity, that there was insufficient proof that the defendant had authored the letter. The defendant concedes that at the time the letter was admitted there was a sufficient evidentiary foundation for its admission in the testimony of Spencer that she recognized the letter to be in the defendant’s handwriting and that the fictitious name, “Gemini,” signed by the sender was one the defendant sometimes used as a nickname. Later in the trial a handwriting expert testified that the handwriting on the letter and envelope was not that of the defendant. The state conceded the validity of this opinion but maintained that the defendant’s authorship of the letter was amply proved by its contents and the use of the defendant’s nickname. Though no motion to strike the exhibit was made, the defendant urges us to treat the court’s failure to do so sua sponte as “plain error.” See Practice Book § 3063. We see no basis for doing so, because the defendant’s connection with the letter is sufficiently established by its contents and the circumstances under which it was received.

The defendant also claims that the court abused its discretion in admitting the letter because its probative value was minimal in comparison to its prejudicial effect. On several occasions this court has approved the admission of threats against or attempted intimidation of witnesses as evidence of consciousness of guilt. State v. Maturo, 188 Conn. 591, 598, 452 A.2d 642 (1982); State v. Brokaw, 181 Conn. 475, 479, 436 A.2d 6 (1980); State v. Sorbo, 174 Conn. 253, 256, 386 A.2d 221 (1978); State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970). These cases amply support the court’s exercise of discretion in admitting evidence of the defendant’s intention to seek reprisal against Nowlin for testifying on behalf of the state. The letter is also significant in showing the relationship between Spencer and the defendant during the period before their arrest. We reject this claim of error.

B

Prior to the testimony of Paul Leecan, the defendant’s uncle, the defendant obtained an in limine ruling that the state would not be permitted on direct examination of this witness to show that the reason the car uséd in perpetrating the crime had not been registered in the name of the defendant was the existence of some outstanding warrants for his arrest. Accordingly, no mention was made of any outstanding arrest warrants during the presentation of the state’s case.

During cross-examination of the defendant, however, the state’s attorney, without objection, asked why the car title had been placed in Paul Leecan’s name. The defendant responded “personal reasons” and, upon further inquiry, “insurance purposes.” When asked if that was the only reason, he answered affirmatively. The prosecutor then referred to the “representations” made by counsel for the defendant that the reason for using the uncle’s name “may have been that there was an outstanding arrest warrant for my client.” At this point defense counsel objected and the jury was excused.

The trial court deferred ruling on the objection until a transcript of defense counsel’s remarks during the in limine proceeding could be obtained. Cross-examination of the defendant before the jury continued in the interim and he testified further that the car was not registered in his name because he was under twenty-five years of age at the time and, thus, it was cheaper to use his uncle’s name. Later, the court, after reviewing the in limine proceeding, ruled that the state’s attorney would be permitted to inquire as to whether the existence of outstanding arrest warrants was the reason the car had not been registered in the defendant’s name in view of his testimony of a different reason. The defendant excepted to the ruling.

We conclude that the trial court could have reasonably viewed the earlier statement of defense counsel, made in the presence of the defendant, as inconsistent with the defendant’s testimony that the sole reason for the false registration was to reduce the cost of insurance. The court could reasonably assume that defense counsel’s statement was based upon information given to him by the defendant and thus evidenced a statement made by the defendant. The inquiries concerning the arrest warrants were, therefore, permissible for the purpose of attacking the credibility of the defendant. State v. Reed, 174 Conn. 287, 302, 386 A.2d 243 (1978); State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 (1964), cert. denied sub nom. Joseph v. State, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965).

In a related ruling, the court allowed a deputy sheriff to testify that he had overheard a statement of the defendant during the luncheon recess that followed his testimony that his car had been registered in his uncle’s name for insurance purposes. The defendant had spoken to his attorney in the elevator while the sheriff was also present. The defendant was reported to have said that “he couldn’t have said anything about the outstanding warrants” and that, if he had done so, “that would have been it, wouldn’t it have?” The court overruled defense counsel’s objection that the statement was a privileged communication, a ground for exclusion that has been abandoned on appeal. Belatedly the defendant now argues that the court abused its discretion in balancing the probative value of this evidence against its prejudicial effect, seeking review under the “plain error” principle. Practice Book § 3063. In view of the other evidence on the same subject that we have held admissible, this additional testimony was not of such significance that justice requires us to overlook the failure to state in the trial court the ground of objection relied upon in the appeal. Practice Book § 288. We decline to review this claim of error further.

C

The defendant claims that the court erred in permitting the state’s attorney to cross-examine him about his prior felony arrests. On direct examination he had testified that “this [was] the first time [he] ever saw a trial” and that he had never been in jail before. The court ruled that the inquiries concerning the defendant’s prior arrests were pertinent in view of the defendant’s testimony that he was a newcomer to the courts. No exception was taken to this ruling, however, and we shall not review it further. Practice Book § 288. The defendant claims no violation of any constitutional right nor any plain error that would allow review of this claim in the absence of an exception. See Practice Book § 3063; State v. Evans, supra.

Ill

The defendant also claims that the court erred in its charge to the jury in three respects, two of which were not properly raised in the trial court. Despite his arguments to the contrary, we are not persuaded that any of the claimed errors belatedly raised on appeal qualify for review as issues involving the denial of a fundamental constitutional right under State v. Evans, supra, or as “plain error” under Practice Book § 3063.

A

Despite the absence of a request to charge or an exception to the charge as given, the defendant claims error in the failure of the court to charge upon the affirmative defense to a felony murder charge, as set forth in General Statutes § 53a-54c. We have recently indicated that a failure to charge upon an affirmative defense, in the absence of a request or an exception, does not amount to the denial of a fundamental constitutional right and, therefore, does not qualify for review under Evans. State v. Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1985). The circumstances also do not warrant application of the “plain error” doctrine, because the only evidentiary basis for this affirmative defense was the defendant’s testimony in support of his alibi, which the jury’s verdict implicitly rejected. See State v. Valeriano, 191 Conn. 659, 664, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984).

B

The defendant also claims error in the charge upon reasonable doubt, to which no exception was taken, in two respects: (1) the definition of a reasonable doubt as “a doubt for which a reasonable man can give a valid reason”; and (2) the failure to mention that a reasonable doubt may arise from the lack of evidence when charging that it is not a doubt “unwarranted by the evidence” and is a doubt “founded on the evidence.” The defendant claims that these instructions impermissibly lowered the constitutionally mandated standard of proof beyond a reasonable doubt that the state must sustain in order to support a conviction. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Despite the failure to raise the issue in the trial court, such a claim does necessitate review for the limited purpose of determining whether a fundamental constitutional right has been infringed. State v. Hinckley, 198 Conn. 77, 86-87, 502 A.2d 388 (1985); State v. Evans, supra, 69.

This court has held that an instruction that a reasonable doubt is “one for which you can, in your own mind, conscientiously give a reason” does not violate any constitutional right of a defendant. State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). Although more recently the instruction has been criticized; Adams v. South Carolina, 464 U.S. 1023, 104 S. Ct. 558, 78 L. Ed. 2d 730 (1983) (Brennan and Marshall, Js., dissenting from denial of certiorari); Butler v. South Carolina, 459 U.S. 932, 103 S. Ct. 242, 74 L. Ed. 2d 191 (1982) (Marshall, J., dissenting from denial of certiorari); we are not persuaded to change our view that, in the context of the whole charge on reasonable doubt, such an instruction violates no constitutional right.

Our analysis of the failure to instruct that a reasonable doubt may arise from the lack of evidence in a case as well as from the evidence produced is similar. We do not believe that this omission rendered the charge on reasonable doubt so defective as to violate the defendant’s constitutional right to a fair trial. See State v. Evans, supra.

C

The defendant did take exception to the trial court’s “missing witness” instruction with respect to his failure to produce his wife as a witness. The state had requested such an instruction in accordance with Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), and had obtained permission in accordance with State v. Daniels, 180 Conn. 101, 113-14, 429 A.2d 813 (1980), to argue that an inference should be drawn from the absence of the defendant’s wife as a witness. The defendant excepted to the charge on two grounds: (1) the failure of the state to demonstrate that the defendant’s wife was available to testify; and (2) the absence of any indication that his wife’s testimony would relate to any material issues in the case.

The defendant testified that he had lived with his common-law wife in Philadelphia for eight years and that they had one child. Since the time of his arrest his wife and child had continued to occupy the same residence that he had shared with them previously. There was also evidence of continuing communication and a cordial relationship between the defendant and his wife since he had been in prison. The fact that his wife resided in another state did not render her unavailable as a witness. State v. Bennett, 171 Conn. 47, 56-57, 368 A.2d 184 (1976); see General Statutes § 54-82L We conclude that there was sufficient evidence of availability of the witness to satisfy this requirement of Secondino.

With respect to the materiality of the testimony of the defendant’s wife, it appears that she might have been able to support his claim that he had separated from Nowlin and Spencer prior to learning of their arrest and had returned to Philadelphia with the intention of surrendering to the police in order to respond to the charges against him. The defendant testified that his wife sent him some money so that he could return from Florida to his home by bus. He also said he first learned of the apprehension of Nowlin and Spencer from his wife some time after he had come back to live with her in Philadelphia. Her testimony, therefore, could reasonably have been viewed as sufficiently important to warrant an unfavorable inference from the failure to produce her as a witness with respect to those aspects of the defense claim.

The defendant also claims that the content of the “missing witness” charge was deficient in that the court failed to limit the doctrine to a witness who would naturally be produced because of his possession of “peculiar or superior information material to the case which, if favorable, the party would produce.” See Secondino v. New Haven Gas Co., supra, 675. Because of the failure to except to the charge on this ground, however, we shall not review this claim of error. Practice Book § 854. The omission relied upon does not involve any constitutional right nor is it of such significance that we should review it as “plain error.” Practice Book § 3063.

IV

The final claim of the defendant is that he was denied the effective assistance of counsel. “This court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal.” State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982); State v. Just, 185 Conn. 339, 370-71, 441 A.2d 98 (1981). The trial transcript seldom discloses all of the considerations of strategy that may have induced counsel to follow a particular course of action.

The defendant appears to have been concerned that his failure on appeal to raise any ineffective assistance claims that the record adequately supports might be regarded as a deliberate bypass of the appellate remedy, which would preclude review of them in a habeas corpus proceeding. See State v. Gethers, 193 Conn. 526, 541, 480 A.2d 435 (1984). We have recently relaxed the deliberate bypass rule in cases in which the sole claim for relief from a criminal conviction is a claim of ineffective assistance of counsel. State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985). In this appeal the defendant has raised several grounds for setting aside his conviction in addition to his claim of incompetent counsel and, thus, Rivera is not controlling. On further consideration, however, we have decided once more to lower this barrier to habeas corpus relief. It is preferable that all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding. A defendant should not be required to await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal. An appeal by the state or the defendant from the determination of the incompetency of counsel question may also be joined with a pending appeal from the judgment of conviction, thus allowing a single resolution on appeal of all the claims of error that have been raised.

In view of this modification of our procedure in regard to ineffective assistance claims, we shall not review at this time even the portion of the defendant’s ineffective assistance claim that he contends is adequately supported by the record. Though we have resolved his other claims of error, we believe that his ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.

There is no error.

In this opinion the other judges concurred.

       The attorney representing the defendant on appeal did not represent him at trial.

       “[Conn. Const., art. I] (Rights of accused in criminal prosecutions. What cases bailable. Speedy trial. Due process. Excessive bail or fines. Presentment of grand jury, when necessary.) Sec. 8. In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

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