source: Caselaw Access Project

author: MCDONALD, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARK REID
    (SC 15904)
    McDonald, C. J., and Borden, Palmer, Sullivan and Vertefeuille, Js.

      Argued April 26
    officially released September 5, 2000

      Fiona Greaves, with whom were Charles D. Ray and, on the brief, Peter W. Hull, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, C. J.

After a jury trial, the defendant, Mark Reid, was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and the trial court rendered judgment in accordance with the verdict. The defendant appealed from the judgment to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the defendant claims that the trial court improperly: (1) admitted expert testimony relating to microscopic hair analysis; (2) denied the defendant’s motion to suppress the victim’s out-of-court identification of him in a photographic array; and (3) marshaled the evidence at the close of the trial. We reject each of the defendant’s claims, and accordingly, affirm the judgment.

The jury reasonably could have found the following facts. In the early morning hours of November 8, 1996, the victim walked from a bar in East Hartford to her home, which was also in East Hartford. While the victim was walking along Burnside Avenue, the defendant emerged from a path leading out of Martin Park and, after asking the victim for a light, grabbed her by the left wrist. The defendant pushed a sharp object into the victim’s side and forced her approximately seven feet down the path into Martin Park. A struggle ensued between the victim and the defendant, and they both fell to the ground. The defendant put his hands around the victim’s neck to quiet her screams and threatened to kill her. The defendant then carried the victim further along the path into Martin Park, and pushed her to the ground. The defendant straddled the victim and placed his knees upon her arms. The defendant began to choke the victim, with one hand on her nose and mouth and the other around her throat, and again threatened to kill her. The victim began to lose consciousness and, out of fear for her life, decided to stop struggling. The defendant then forced the victim to perform fellatio. He then placed a condom on his penis, turned the victim onto her front side and forced her to engage in vaginal intercourse. The defendant then pulled the victim to her feet and held her by her arm. After the victim pulled up and buttoned her pants, the defendant again threatened to kill her. The defendant continued to hold the victim by the arm, and in this manner forced her along the path toward Burnside Avenue. The defendant let go of the victim, and she walked to her home along Burnside Avenue. When the victim arrived home, she called a friend and told the friend that she had been raped. The victim then hung up and called the police. Officer Brian Fox of the East Hartford police department was dispatched to the home of the victim, and spoke with her about the assault. Fox took the victim to Manchester Hospital, where he secured as evidence her clothes and a screwdriver that she surreptitiously had picked up at the scene of the attack. The victim became increasingly upset, and elected not to be examined at the hospital. Fox then took the victim home. Because the victim was so upset, Fox did not take a statement from her. Fox did, however, obtain from the victim a description of the attacker, which included the fact that he had freckles across his nose and under his eyes.

On November 12,1996, at the request of Officer Francis Malozzi of the East Hartford police department, the victim went to the East Hartford police station to give a statement concerning the attack. After the victim gave a statement about the attack, Malozzi showed her a photographic array containing photographs of eight persons that could have fit the description of her attacker. The victim identified the defendant as her attacker, and began to shake and cry. Later that afternoon, Malozzi searched the area where the attack took place and recovered an earring belonging to the victim. Approximately one week later, the defendant was arrested. Additional facts and procedural history will be provided as needed.

I

The defendant makes two claims with respect to the admission into evidence of certain microscopic hair analysis. First, he contends that such evidence was inadmissible per se because it is unreliable and inherently subjective, and second, he argues that, even if not per se inadmissible, the evidence was inadmissible in this case. We disagree.

A

The following additional facts are relevant to the defendant’s first claim. After commencement of the trial, the state sought to introduce the testimony of Kiti Settachatgul, lead criminologist at the Connecticut state police forensic laboratory, concerning microscopic hair analysis. The defendant moved to exclude all evidence regarding hair analysis in this matter and, pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), requested a hearing as to the reliability of microscopic hair analysis. The trial court held a three day hearing, after which it denied the defendant’s motion and admitted the evidence.

Before the jury, Settachatgul testified that he had examined the clothes that the victim was wearing on the night of the attack and recovered three pubic hairs that did not come from the victim. Then, through a process known as microscopic hair analysis, Settachatgul compared these unknown hairs to hairs provided by the defendant. Settachatgul found that the characteristics of the known hairs from the defendant were similar to the characteristics of those recovered from the victim’s clothing.

The defendant argues that microscopic hair analysis should be excluded per se under the test adopted by this court in State v. Porter, supra, 241 Conn. 57, regarding the admission of scientific evidence. In Porter, this court followed the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis, to determine the reliability of the scientific evidence. See State v. Porter, supra, 84-86. Porter explicitly stated that the flexible Daubert approach was a better approach than the test of general acceptance in the scientific community, which was established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

In Porter, we said that “[a]s science and technology have advanced and become increasingly prevalent in our society, the number of cases, both civil and criminal, in which scientific testimony plays a role has also grown.” State v. Porter, supra, 241 Conn. 92. We explicitly acknowledged, however, that “some scientific principles have become so well established that an explicit Daubert analysis is not necessary for admission of evidence thereunder. . . . Evidence derived from such principles would clearly withstand a Daubert analysis, and thus may be admitted simply on a showing of relevance.” Id., 85 n.30. As an example of such a principle, this court cited a Montana court’s conclusion that a Daubert analysis is not necessary for “ordinary fingerprint identification evidence to be admissible.” Id., citing State v. Cline, 275 Mont. 46, 55, 909 P.2d 1171 (1996).

Although this court in Porter explicitly adopted the Daubert test to determine the admissibility of scientific evidence; see State v. Porter, supra, 241 Conn. 68; we did not explicitly overrule Connecticut precedent regarding the evidence to which such a test should apply. Prior to Porter, this court had recognized that the Frye test for admissibility should not apply to all expert testimony, but only to that which involves “innovative scientific techniques . . . .” State v. Borelli, 227 Conn. 153, 163, 629 A.2d 1105 (1993); State v. Hasan, 205 Conn. 485, 489, 534 A.2d 877 (1987). In Porter we recognized that Dauberts vagueness as to how and when to apply the factors of the test was necessary. State v. Porter, supra, 78. In order to maintain flexibility in applying the test, we did not define what constitutes “scientific evidence.” Id., 78-79. Accordingly, we must examine the expert testimony at issue in the present case to determine whether it is the type of evidence contemplated by Porter.

In State v. Hasan, supra, 205 Conn. 490, we upheld the admission of the testimony of a podiatrist as to the likelihood that a pair of sneakers would fit the defendant’s feet. We concluded that the podiatrist’s testimony was not “scientific evidence” subject to the Frye test because the podiatrist merely compared the footwear to the defendant’s feet. Id., 491. Accordingly, the “jury [was] in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge.” Id. The testimony was not based on “obscure scientific theories”; id., 491; that had the “potential to mislead lay jurors awed by an aura of mystic infallibility surrounding scientific techniques, experts and the fancy devices employed.” (Internal quotation marks omitted.) Id., 490. Rather, the podiatrist’s testimony concerned a method, the understanding of which “is accessible to the jury”; id., 491; and the value of the “expertise lay in its assistance to the jury in viewing and evaluating the evidence.” Id., 494. Although the podiatrist’s skill and training were based on science, the subject to which he testified “was a matter of physical comparison rather than scientific test or experiment.” Id., 490; see also State v. Ortiz, 198 Conn. 220, 227, 502 A.2d 400 (1985) (opinion testimony of forensic odontologist that defendant made bites in partially eaten apple found at scene admissible).

Settachatgul’s testimony is akin to that of the podiatrist in Hasan. Although Settachatgul’s training is based in science, he testified about a subject that simply required the jurors to use their own powers of observation and comparison. During his testimony, Settachatgul displayed an enlarged photograph of one of the defendant’s hairs and one of the hairs recovered from the victim’s clothing as they appeared side-by-side under the comparison microscope. Settachatgul explained to the jurors how the hairs were similar and what particular features of the hairs were visible. He also drew a diagram of a hair on a courtroom blackboard for the jurors. The jurors were free to make their own determinations as to the weight they would accord the expert’s testimony in the light of the photograph and their own powers of observation and comparison. The jurors were not subject to confusing or obscure scientific evidence, but were able to use the testimony to guide them in their own determination of the similarity of the two hairs.

Other jurisdictions have recognized that a Daubert hearing is not required for admission of microscopic hair analysis. The United States Court of Appeals for the Tenth Circuit, in response to the prosecution’s claim that the United States District Court had applied the wrong standard in ruling that evidence of microscopic hair analysis was inadmissible, stated that the trial court “incorrectly assessed the issue in evidentiary terms under Daubert v. Merrell Dow Pharmaceuticals, Inc. [supra, 509 U.S. 579]. Because the court employed the wrong standard, we reverse its ruling that the hair analysis is inadmissible.” Williamson v. Ward, 110 F.3d 1508, 1522-23 (10th Cir. 1997). The Supreme Court of Hawaii also has allowed evidence of microscopic hair analysis to be admitted without a Daubert hearing. State v. Fukusaku, 85 Haw. 462, 474, 946 P.2d 32 (1997). The court made the distinction between scientific knowledge and technical knowledge, the latter being something that “involves the mere technical application of well-established scientific principles and procedures. In such a situation, because the underlying scientific principles and procedures are of proven vahdity/reliability, it is unnecessary to subj ect technical knowledge to the same type of full-scale reliability determination required for scientific knowledge.” Id., 473. The Supreme Court of Kentucky also determined that microscopic hair analysis was not subject to the Daubert test because such evidence had been admitted for many years, and that, by inference, microscopic hair analysis was valid under a Frye test. Johnson v. Commonwealth, 12 S.W.3d 258, 262 (Ky. 1999). Accordingly, the court determined that the trial courts in Kentucky could take judicial notice that microscopic hair analysis was deemed reliable. Id., 263.

Although we recognize that no Connecticut appellate court previously has held that the technique of microscopic hair analysis is so well established that it does not require a hearing under Porter or Frye, we note that testimony based on the technique has been admitted in Connecticut courts for many years. See State v. King, 249 Conn. 645, 656, 735 A.2d 267 (1999) (human hairs found on ski mask were similar to hair samples taken from both victim and defendant); State v. Conn, 234 Conn. 97, 104-105, 662 A.2d 68 (1995) (hair samples from defendant were not similar to hairs found at scene of crime); State v. Roseboro, 221 Conn. 430, 435, 604 A.2d 1286 (1992) (hair at scene of crime was microscopically similar to defendant’s body hair); Asherman v. State, 202 Conn. 429, 436, 521 A.2d 578 (1987) (knapsack relevant because it contained hair that was microscopically similar to hair of defendant); State v. Burns, 173 Conn. 317, 323, 337 A.2d 1082 (1977) (hair at scene of crime similar to hair of defendant and victim).

We conclude that microscopic hair analysis is not the type of evidence that we contemplated in Porter to be subject to the Daubert test. Accordingly, a hearing as to the admissibility of the evidence was not required by Porter, and the trial court properly admitted the evidence. See State v. Porter, supra, 241 Conn. 85 n.30.

B

The defendant also claims that the trial court abused its discretion when it admitted the testimony of Settachatgul concerning the microscopic hair analysis because the testimony was not relevant and the proper procedures were not followed in conducting the analysis. We disagree.

“ ‘Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.’ ” State v. McClendon, 248 Conn. 572, 585, 730 A.2d 1107 (1999). “ ‘The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.’ ” Id., 585-86. “ ‘Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.’ ” Id., 586. This third prong is essentially a relevancy requirement.

“Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Billie, 250 Conn. 172, 181, 738 A.2d 586 (1999).

The defendant argues that Settachatgul’s testimony was not relevant to the jury’s determination that the defendant was the victim’s attacker. The defendant argues that, because hair analysis is not a method by which identity can be positively established, such testimony is irrelevant and therefore not admissible. We disagree and conclude that the trial court did not abuse its discretion in admitting Settachatgul’s testimony.

Settachatgul testified that, although microscopic hair analysis cannot identify positively the exact individual from whom the hair originated, it is useful for the purpose of determining whether a person is one of the class of people from whom the hair in question could have originated. He testified that microscopic hair analysis alone is not sufficient positively to identify an individual. Settachatgul testified only to the narrow opinion that the hairs recovered from the victim’s clothing were similar to the defendant’s hair. Settachatgul testified that he could not, however, say that the hairs in question were definitely the hairs of the defendant.

We conclude that this testimony was relevant to assist the jury in determining whether the defendant was the attacker. The victim identified the defendant as her attacker in a photographic array and in open court during her testimony. The state offered microscopic hair analysis evidence to show that the defendant has pubic hairs with similar characteristics to those recovered from the victim’s clothing. The trier reasonably could have found that this evidence rendered the victim’s identification of the defendant as her assailant more certain or more probable and tended to support the identification. Thus, the evidence was relevant.

The defendant also argues that the testimony concerning the hair analysis should have been excluded because Settachatgul did not adhere to proper procedures in conducting the hair analysis. Specifically, the defendant claims that Settachatgul’s analysis was unreliable because he did not evaluate all of the hair characteristics discussed in the forensic literature, and because he did not take measurements of the diameter or length of the hair, or quantify the density of pigment, the degree of curliness, or the color of the hair. The state counters that such measurements are not generally required, and that Settachatgul’s nondestructive, comparative procedures fully complied with the standard operating procedures of forensic laboratories in Connecticut.

Once the trial court has served its gatekeeping function in accordance with Porter and determined that the expert testimony will be admitted, any challenges to the methodology used in the process generally go to the weight of the testimony and not its admissibility. “Once the validity of a scientific principle has been satisfactorily established, any remaining questions regarding the manner in which that technique was applied in a particular case is generally an issue of fact that goes to weight, and not admissibility.” (Emphasis in original.) State v. Porter, supra, 241 Conn. 88 n.31.

The defendant had the opportunity to challenge Settachatgul’s methodologies on cross-examination, and, in fact, questioned him concerning his choice of which hair characteristics to analyze, and about forensic literature suggesting that certain measurements of the hair under analysis should always be made. Because the expert testimony pertaining to the hair analysis was relevant to an issue in the case, namely, the identity of the victim’s attacker, and because the defendant’s challenge to the methodology affected the weight of the testimony and not its reliability, we conclude that the trial court properly admitted the testimony.

II

The defendant next claims that the pretrial identification procedure was unnecessarily suggestive and unreliable so that admission of the identification violated his right to due process under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. We disagree.

The following additional facts are relevant to the defendant’s claim. The defendant moved to suppress the victim’s pretrial identification of a photograph of the defendant as that of her attacker. The trial court conducted a hearing on the motion. At the hearing, Malozzi testified that he had learned from his fellow East Hartford police officers that the defendant fit the victim’s description of her attacker. Acting on this information, Malozzi chose to include a photograph of the defendant in the array that he showed to the victim. Malozzi testified that he told the victim that a photograph of a suspect was included in the array. The victim testified, however, that she was not told that there was a photograph of a suspect included in the array. The trial court did not directly resolve this inconsistency. In its ruling on the defendant’s motion, however, the trial court twice pointed to the victim’s testimony that she was not under a belief that the police had put a photograph of anyone they suspected in the array. The trial court went on to state that, regardless of what the victim was told, a victim may be expected reasonably to believe that she is being asked to view the array because there is a suspect, and that a photograph of the suspect will be included in the array. Accordingly, the trial court denied the defendant’s motion to suppress the identification because the procedure used to obtain it was not unduly suggestive. The trial court also found that, even if the identification procedure had been unduly suggestive, the identification nevertheless would have been admissible under the totality of the circumstances. From our review of the record, we conclude that the identification testimony properly was admitted.

“[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 498, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); State v. Figueroa, 235 Conn. 145, 155, 665 A.2d 63 (1995); State v. Howard, 221 Conn. 447, 454, 604 A.2d 1294 (1992). “[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Taylor, supra, 498, quoting State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991). To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. See State v. Taylor, supra, 498; State v. Mayette, 204 Conn. 571, 578, 529 A.2d 673 (1987). “An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” (Internal quotation marks omitted.) State v. Taylor, supra, 499; State v. White, 229 Conn. 125, 161-62, 640 A.2d 572 (1994).

“ [Reliability is the linchpin in determining the admissibility of the identification testimony . . . .” (Internal quotation marks omitted.) State v. Figueroa, supra, 235 Conn. 157, quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as “the opportunity of the [victim] to view the criminal at the time of the crime, the [victim’s] degree of attention, the accuracy of [the victim’s] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) State v. Figueroa, supra, 157; see Manson v. Brathwaite, supra, 114; State v. Wooten, 227 Conn. 677, 687-88, 631 A.2d 271 (1993); State v. Evans, 200 Conn. 350, 356, 511 A.2d 1006 (1986); State v. Theriault, 182 Conn. 366, 373-74, 438 A.2d 432 (1980).

“[W]e examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court.” (Internal quotation marks omitted.) State v. Wooten, supra, 227 Conn. 688. “Absent a very substantial likelihood of irreparable misidentification, [w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (Internal quotation marks omitted.) Id., quoting State v. Ramsundar, 204 Conn. 4, 13, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987); see Manson v. Brathwaite, supra, 432 U.S. 116.

It is proper for a court, in determining whether an identification procedure was unduly suggestive, to consider the fact that a police officer tells a victim that a suspect is in a photographic array. State v. Austin, 195 Conn. 496, 500, 488 A.2d 1250 (1985). Such a statement, however, is not enough to render an identification procedure unduly suggestive. See State v. Williams, 203 Conn. 159, 177, 523 A.2d 1246 (1987). It is true that this court previously has stated that an identification procedure could be invalidated when police expressly indicate to a victim that a suspect is included in a photographic array. See State v. White, 229 Conn. 125, 163, 640 A.2d 572 (1994). The admissibility of identification testimony is to be determined by the totality of the circumstances, however. Even if the identification procedure is unnecessarily suggestive because of a police statement, the identification may still be admitted if the totality of the circumstances is such that the identification was nevertheless reliable. See id., 161; see also State v. Findlay, 198 Conn. 328, 338, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986) (photographic identification procedure unnecessarily suggestive but admitted under totality of circumstances); State v. Owens, 38 Conn. App. 801, 811, 663 A.2d 1094, cert. denied, 235 Conn. 912, 665 A.2d 609 (1995) (“[e]ven if a court finds that the police expressly informed witnesses that the defendant would be in the array, our courts have found the identification procedure unnecessarily suggestive only when other factors exist that otherwise emphasize the defendant’s photograph”); State v. Mendez, 15 Conn. App. 531, 534, 545 A.2d 587, cert. denied, 209 Conn. 810, 548 A.2d 441 (1988) (even though photographic identification procedure unnecessarily suggestive, identification admitted under totality of circumstances).

This court has stated explicitly that “little harm is likely to arise where the [victim], even without the police comment, would have inferred that the occasion for his being requested to identify someone is that the police have a particular person in mind who has been included among those to be viewed.” State v. Austin, supra, 195 Conn. 500. When presented with a photographic array by the police, crime victims reasonably can surmise that the police may consider one of the persons in the array to be a suspect in the case. See State v. White, supra, 229 Conn. 163; State v. Williams, supra, 203 Conn. 177; State v. Fullwood, 193 Conn. 238, 245, 476 A.2d 550 (1984). In the present case, the trial court recognized this principle.

We conclude that the trial court reasonably found that the defendant did not meet his burden of showing a substantial likelihood that the identification procedure was so unreliable that the victim’s pretrial identification of him should not be admitted. The trial court found that the victim had ample opportunity to view her attacker both during and after the attack. The victim testified that she clearly saw the defendant’s face while the defendant was on top of her, forcing her to perform fellatio on him for a period of ten minutes. The victim further testified that she had an opportunity to view her attacker’s face after the attack, both as she pulled up her pants and as the attacker held her by the arm and forced her back across the field toward Burnside Avenue. Malozzi testified that, one night, when he was in the area where the attack occurred, he was able to make out the features of another officer’s face from approximately ten feet away. The victim’s description of her attacker, which she gave to Fox shortly after the attack, included freckles across the bridge of his nose. During the trial, the defendant approached the jury box in order to allow the jury to view his facial features and to see his freckles. The victim identified the photograph of her attacker from the photographic array just four days after the attack. See State v. Figueroa, supra, 235 Conn. 159 (nine months between crime and identification not enough to render identification unreliable); State v. Parker, 197 Conn. 595, 600, 500 A.2d 551 (1985) (ten month period between crime and identification not so long as to render identification unreliable). Malozzi testified that the victim identified the defendant immediately when presented with the array, and that she began to cry and shake upon seeing the photograph. The victim testified that her attacker’s face was “[a] face I would not forget. It was imprinted on my mind.” Both Malozzi and the victim testified that Malozzi made it clear that she was not to select a photograph from the array if she did not see her attacker. We therefore conclude that the trial court properly denied the defendant’s motion to suppress the pretrial identification.

III

The defendant’s final claim is that the trial court, in its jury charge, improperly marshaled the evidence in an unfair and inaccurate manner, and unfairly drew attention to the state’s case. We disagree.

“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Albert, 252 Conn. 795, 815-16, 750 A.2d 1037 (2000).

We conclude, after carefully reviewing the court’s instructions, that it is not reasonably possible that the jury was misled by the court’s marshaling of the evidence. At least four times during its final charge to the jury, the trial court explicitly instructed the jury that its exclusive function was to find facts, that the court’s discussion of the facts was not binding and that the jury should make factual determinations independent of the court’s determinations. The trial court also explicitly instructed the jury that the court was not in any way placing emphasis on any of the evidence. Both of these factors have been deemed persuasive to show that it was not possible for the jury to be misled by the trial court’s marshaling of the evidence. See State v. Delgado, 247 Conn. 616, 631, 725 A.2d 306 (1999). Moreover, even if there had been error in the trial court’s charge, the error would have been cured by the court charging the jury “not once but several times, that the jury’s recollection of the evidence controlled.” State v. Pollitt, 205 Conn. 132, 156-57, 531 A.2d 125 (1987).

The defendant relies on isolated instances in the record as support for his claim, rather than viewing the charge to the jury as a whole. See State v. Figueroa, supra, 235 Conn. 170. We conclude, from a “careful and thorough review of the record”; State v. Delgado, supra, 247 Conn. 629; that the trial court properly highlighted facts and theories integral to the defendant’s defense of misidentification. See id., 630.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .

       General Statutes § 53a-92 provides in relevant part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       Furthermore, we note that, even if a Porter hearing were necessary, the trial court properly conducted the hearing and found that microscopic hair analysis satisfied the Porter test because of its general acceptance in the scientific community.

       We note that, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the United States Supreme Court held that a trial court has discretion to apply Daubert to all expert testimony, not just that which constitutes “scientific evidencie.” We need not decide in this case whether to apply Kumho in our Porter analysis, however, because it would not alter our conclusion that the trial court properly admitted the evidence.

       The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be deprived of life, liberty, or property, without due process of law . . . .”
      The fourteenth amendment to the United States constitution provides in relevant part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .”

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions . . . [n]o person shall ... be deprived of life, liberty or property without due process of law . . . .”
      Because the defendant has not briefed his claim separately under the Connecticut constitution, we limit our review to the United States constitution. “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue.
      . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

         White cites to State v. Williams, supra, 203 Conn. 177, which, in turn, cites to State v. Austin, supra, 195 Conn. 500. Austin relies on two federal cases that state that “[l]aw enforcement personnel should avoid telling a witness that a definite suspect is in a lineup but it is not absolutely impermissible. Such statement has some degree of suggestiveness and, depending upon the circumstances, may be a factor to be considered in determining whether the lineup was unduly suggestive.” United States v. Gambrill, 449 F.2d 1148, 1151 n.3 (D.C. Cir. 1971); Martinez v. Turner, 461 F.2d 261, 264 (10th Cir. 1972).

       One court, in a case cited by the trial court in its decision on the defendant’s motion to suppress the identification in this case, has even stated that it is “foolish not to assume” that a victim would believe that at least someone in the array is a suspect. Towles v. United States, 428 A.2d 836, 845 (D.C. App. 1981), on appeal after remand, 496 A.2d 560 (D.C. App.), vacated, 497 A.2d 793 (D.C. App.), cert. dismissed, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985), on reconsideration en banc, 521 A.2d 651 (D.C. App.), cert. denied, 483 U.S. 1008, 107 S. Ct. 3236, 97 L. Ed. 2d 741 (1987).


author: PALMER, J.

text:
    STATE OF CONNECTICUT v. THOMAS J. MURPHY III
    (SC 16282)
    Katz, Palmer, Sullivan, Vertefeuille and Rodriguez, Js.
    Argued May 24
    officially released September 12, 2000

      Michael P. Shea, with whom was Simon Davidson, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and Helen M. Doherty, assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

A jury found the defendant, Thomas J. Muiphy III, guilty of one count of criminal attempt to commit harassment in the second degree in violation of General Statutes §§ 53a-183 (a) (2) and 53a-49, and, subsequently, also found the defendant guilty of being a persistent offender under General Statutes § 53a-40d.* * The trial court rendered judgment in accordance with the jury verdicts and the defendant appealed. On appeal, the defendant claims that: (1) his conviction of criminal attempt to commit harassment in the second degree violated his right to free speech under the first and fourteenth amendments to the United States constitution; (2) the trial court improperly failed to instruct the jury that it could not convict him on the basis of the content of his speech; and (3) the state failed to prove his guilt beyond a reasonable doubt. We reject these claims and, consequently, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant met the victim in 1990 and their relationship subsequently became romantic. Their relationship, however, was marked by domestic discord, and the defendant was arrested on domestic violence charges in September and December, 1994, and again in February, 1995. Ultimately, the defendant was convicted of two counts of assault in the third degree stemming from those incidents of domestic violence. The defendant received a suspended sentence and was placed on probation. In addition, the defendant was ordered to attend Alcoholics Anonymous meetings and to undergo anger management training. A protective order prohibiting the defendant from contacting the victim also was issued at that time. That order later was modified at the victim’s request to permit contact between the victim and the defendant. By December, 1995, however, the victim had terminated her romantic relationship with the defendant.

On January 18, 1996, the defendant entered the victim’s residence without her consent and compelled her to engage in sexual intercourse. Consequently, the defendant was arrested and charged with sexual assault in the first degree, among other offenses. Although, thereafter, another protective order was issued prohibiting the defendant from having any contact with the victim, the defendant, who remained incarcerated in lieu of bond pending his trial, persisted in his efforts to contact the victim by mail and telephone, often entreating her to drop the sexual assault charges. As a result of these contacts, the defendant was charged, in February, 1996, with violating the protective order, and, in May, 1996, with tampering with a witness. In August, 1996, the defendant was found to have violated the terms and conditions of his probation that had been imposed in connection with his third degree assault convictions.

In October, 1996, the defendant pleaded guilty to sexual assault in the first degree under the Alford doctrine. On November 15, 1996, the trial court imposed a sentence of twelve years imprisonment, suspended after five years, and ten years probation. Among the special conditions imposed upon the defendant was a prohibition against any contact with the victim or her children.

Notwithstanding the court’s prohibition against contact with the victim, the defendant continued to attempt to contact her by telephone and mail. On November 25, 1996, the victim received a birthday card from the defendant, which she opened and read. The victim testified that the defendant’s comments in the card were alarming and offensive, and that she was particularly upset at receiving the card so soon after the defendant had been convicted and sentenced for sexually assaulting her. The victim turned the card over to State Trooper Lynn Lewis, who had investigated the defendant’s sexual assault case.

On January 6, 1997, the victim received three more letters from the defendant. The victim, having been upset by the defendant’s continued attempts to contact her, and assuming that the letters contained statements similar to those in the birthday card, turned the letters over to Lewis without opening them. One of the letters, consisting of seven handwritten pages, contained two poems and a note in which the defendant complained about his misfortunes, professed his love for the victim and her children and appealed to her for help. Another letter, consisting of ten handwritten pages, was angrier in tone and repeatedly accused the victim of lying about the sexual assault and attempting to destroy the defendant’s life. In one passage, the defendant wrote to the victim: “[ Y]ou are afraid of what’s going to happen when I get out. So you figure [you will] lie to keep me in here for as long as [you] can [sic] that’s not the right answer . . . believe me. It’s only going to make matters worse . . . .” The defendant later added: “[W]hat do you think is going to happen then . . . [w]hen I do get out of here after all that time.”

The state filed a three count information charging the defendant with one count of harassment in the second degree and two counts of attempt to commit harassment in the second degree. The birthday card that the victim received in the mail from the defendant on November 25,1996, provided the basis for the count of harassment in the second degree. The defendant’s mailing of the seven page letter that included the two poems and the note formed the basis for one of the two counts of attempt to commit harassment in the second degree, and the mailing of the ten page letter provided the basis for the second such count. The jury acquitted the defendant of harassment in the second degree and found him guilty of the count of attempt to commit harassment in the second degree predicated on the mailing of the seven page letter. The jury could not reach a verdict on the other count of attempt to commit harassment in the second degree and, as a result, the trial court declared a mistrial as to that count. The defendant appeals from the judgment of conviction rendered in accordance with the jury’s verdict of guilty of attempt to commit harassment in the second degree based upon the mailing of the seven page letter to the victim.

I

The defendant first claims that the state violated his first amendment rights by “[unconstitutionally [applying] ... § 53a-183 (a) (2) [t]o [his] [s]peech . . . .” Specifically, the defendant contends that his conviction was predicated upon the content of the letter that he sent to the victim rather than his conduct in using the mail to harass the victim. We disagree.

The defendant concedes that his claim is unpreserved and, therefore, seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),* 1*3********** and the plain error doctrine. Although the record is adequate for our review of the defendant’s claim, we conclude that he is not entitled to a new trial under Golding because he has not established a constitutional violation. We further conclude that the defendant has not demonstrated plain error because the alleged impropriety did not implicate the fairness of his trial.

General Statutes § 53a-183 (a) (2) prohibits communications by mail that are made “with intent to harass, annoy or alarm” and “in a manner likely to cause annoyance or alarm . . . .” Thus, § 53a-183 (a) (2) proscribes harassing conduct via mail and does not seek to regulate the content of communications made by mail. State v. Snyder, 49 Conn. App. 617, 625, 717 A.2d 240 (1998); see also Gormley v. Director, Connecticut State Dept. of Probation, 632 F.2d 938, 942 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980) (§ 53a-183 regulates conduct, not mere speech); State v. Bell, 55 Conn. App. 475, 481, 739 A.2d 714, cert. denied, 252 Conn. 908, 743 A.2d 619 (1999) (same); State v. Anonymous (1978-4), 34 Conn. Sup. 689, 696, 389 A.2d 1270 (1978) (same).

Nevertheless, in a prosecution seeking a conviction under § 53a-183, the fact finder may consider the language used in the communication in determining whether the state has proven the elements of the offense, namely, that the defendant intended to harass, annoy or alarm, and that he did so in a manner likely to cause annoyance or alarm. See Gormley v. Director, Connecticut State Dept. of Probation, supra, 632 F.2d 943; State v. Bell, supra, 55 Conn. App. 484; State v. Lewtan, 5 Conn. App. 79, 83, 497 A.2d 60 (1985); see also Wisconsin v. Mitchell, 508 U.S. 476, 489, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993) (“[t]he First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent”). Indeed, the use of such evidence may be “indispensable to a proper determination of whether the statutory requirement of intent to harass ha[s] been proven.” (Internal quotation marks omitted.) Gormley v. Director, Connecticut State Dept. of Probation, supra, 943.

The state introduced a number of letters into evidence, including the letters that formed the basis of the charges against the defendant, as well as certain tape recordings and transcripts of telephone conversations between the defendant and the victim. The defendant did not object to the introduction of any of these communications at trial. During closing arguments, the prosecutor urged the jury to examine the language the defendant used in his letters and conversations with the victim to assist it in ascertaining the defendant’s intent in sending the allegedly harassing letters. At no time did the prosecutor imply that the defendant should be convicted based upon the content of his communications; rather, the prosecutor argued only that those communications were evidence of the defendant’s intent to harass, annoy or alarm. In fact, during closing arguments, defense counsel also urged the jury to consider the contents of the communications to “get a flavor for all of the words” so that the jury might appreciate the benign intent of the defendant in drafting and mailing the three letters. Indeed, the defendant sought unsuccessfully to introduce into evidence the contents of an additional letter, claiming that it also was relevant to his state of mind, an issue that the defendant accurately characterized as a “central focus of [the] proceedings.” Moreover, during closing arguments, defense counsel expressly urged the jury to consider the defendant’s first amendment rights in evaluating the defendant’s repeated requests for the victim’s assistance in obtaining a sentence reduction.

Finally, the trial court properly instructed the jury on the elements of attempt to commit harassment in the second degree, emphasizing that the state was required to establish that the defendant mailed the letters with the specific intent of harassing, annoying or alarming the victim. At no time did the court suggest or otherwise intimate in its instructions that the jury was free to convict the defendant based upon the content of his communications rather than his conduct in mailing the allegedly offending letters with the intent to harass, annoy or alarm.

The record, therefore, does not support the defendant’s claim that his conviction under §§ 53a-183 (a) (2) and 53a-49 was predicated upon the exercise of his right to free speech. Consequently, he cannot prevail under the third prong of State v. Golding, supra, 213 Conn. 239-40. See footnote 14 of this opinion.

We also conclude that the defendant is not entitled to relief under the plain error doctrine. “The plain error doctrine of Practice Book § 60-5 requires a defendant to demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Woods, 250 Conn. 807, 814, 740 A.2d 371 (1999). “[W]e consistently have stated that review under the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Stephens, 249 Conn. 288, 291, 734 A.2d 533 (1999). Because the defendant’s claim under the plain error doctrine is predicated on his contention that his conviction was obtained in violation of his first amendment rights, a contention that we already have rejected, he cannot prevail on his plain error claim.

II

The defendant’s second claim is related to his first: the trial court improperly failed to instruct the jury that it could convict him only on the basis of his conduct and not the content of his speech. The defendant contends that, as a result of the trial court’s omission, the jury necessarily convicted him on the basis of the content of his communications in violation of his rights under the first amendment. Because the defendant never requested such an instruction, he seeks a new trial under State v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine. Although the record is adequate for our review of the defendant’s claim, we conclude that he cannot prevail thereon because he has not demonstrated that the trial court’s instruction was improper.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995). [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . . State v. Figueroa, 235 Conn. 145, 170-71, 665 A.2d 63 (1995). . . . State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).

“In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995) . . . .” (Internal quotation marks omitted.) State v. Albert, 252 Conn. 795, 815-16, 750 A.2d 1037 (2000).

In its instructions to the jury, the trial court recited the text of § 53a-183 (a) (2) and properly described the elements of the crime of attempt to commit harassment in the second degree. Indeed, the defendant does not claim otherwise. As we previously have indicated; see part I of this opinion; § 53a-183 (a) (2) prohibits conduct, not speech. “What is proscribed is the [mailing of the letter], with the requisite intent and in the specified manner. ... To run afoul of the statute, [the letter] must be [mailed] not merely to communicate, but with intent to harass, annoy or alarm and in a manner likely to cause annoyance or alarm . . . .” (Citation omitted; internal quotation marks omitted.) State v. Bell, supra, 55 Conn. App. 480-81, quoting Gormley v. Director, Connecticut State Dept. of Probation, supra, 632 F.2d 941-42. There is nothing in the court’s instructions or in the arguments of counsel that would have caused the jury to reach a contrary understanding. Because the trial court’s instructions with respect to § 53a-183 (a) (2) were proper in all respects, the defendant cannot prevail on his claim of instructional impropriety under State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine.

Ill

The defendant also maintains that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that he had intended to harass, annoy or alarm the victim and that he had communicated with her in a manner likely to cause annoyance or alarm. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239-40, 745 A.2d 800 (2000).

The evidence revealed that the defendant had engaged in several acts of domestic violence against the victim. He was convicted of assault in the third degree stemming from that misconduct and a court had issued a protective order prohibiting the defendant from contacting the victim. Although that order later was modified, the defendant subsequently sexually assaulted the victim by forcing her to have intercourse with him. Thereafter, another protective order was issued. The defendant nevertheless sent letters to the victim and continued to attempt to contact her by telephone. In his letters, the defendant repeatedly accused the victim of being a liar and of ruining his life. The defendant also persisted in seeking to communicate with the victim after his sexual assault conviction, even though he knew that she did not want him to do so. Indeed, he sent her a birthday card just a few days after sentencing for that offense, which was followed by more letters shortly thereafter.

In light of this evidence, the jury reasonably could have concluded that, by January 6, 1997, the date on which the victim received, inter alia, the seven page letter that led to his conviction under §§ 53a-183 (a) (2) and 53a-49, the victim reasonably felt harassed, annoyed and alarmed by the defendant’s repeated attempts to communicate with her despite her requests, and court orders directing, that he cease doing so. The jury also reasonably could have concluded that the defendant knew that the victim’s receipt of that letter would cause her to feel harassed, annoyed or alarmed, and that he mailed the letter intending to evoke such a reaction. We conclude, therefore, that the evidence was sufficient to support the defendant’s conviction for attempt to commit harassment in the second degree.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-I83 (a) provides in relevant part: “A person is guilty of harassment in the second degree when ... (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail ... or by any other form of written communication, in a manner likely to cause annoyance or alarm . . . .”

       General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. . .

       General Statutes § 53a-40d provides in relevant part: “(a) A persistent offender of crimes involving . . . harassment ... is a person who (1) stands convicted of . . . harassment under section 53a-183 . . . and (2) has, within the five years preceding the commission of the present crime, been convicted of ... a class C felony ....
      “(b) When any person has been found to be a persistent offender of crimes involving . . . harassment . . . and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that an increased penalty will best serve the public interest, the court shall, in lieu of imposing the sentence authorized for the crime under section 53a-36, impose the sentence of imprisonment authorized by said section 53a-36 for the next more serious degree of misdemeanor

       The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       The first amendment to the United States constitution provides in relevant part: “Congress shall make no law . . . abridging the freedom of speech . . . .”
      The first amendment right to free speech is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. E.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1, 116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996).

       See General Statutes § 53a-61 (a) (“A person is guilty of assault in the third degree when: (1) With intent to cause physical ipjury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”).

       See General Statutes § 53a-70 (a) (“A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person ... or by the threat of use of force against such other person . . . which reasonably causes such person to fear physical injury . . . .”).

       Between January and May, 1996, the defendant mailed approximately ten letters to the victim, and called or attempted to call the victim via telephone five times.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       As part of the presentence investigation conducted in connection with the defendant’s conviction for sexual assault in the first degree, the victim informed Sharon Ezzo, the defendant’s probation officer, that she and her children were afraid of the defendant.. She explained to Ezzo that she believed that the defendant would just “fester in prison” and would sexually assault her again once he was released. Accordingly, the victim requested that she be notified prior to the defendant’s release from prison.

       Tlio card provided in relevant, part,: “Thanks for always being there for me when I needed you the most in my life. . . . Maybe some day I can do the same for you as well. . . . Well . . . you can look at things this way, it must be nice not having to fit me into anything anymore like you used to HA. ... I just wish this nightmare would end for everybody’s sake. [DJon’t you think enough is enough already .... Like always hang in there . . . and enjoy all you can because life is short sometimes.” (Emphasis in original.)

       The judgment file indicates that this count, which is not a subject of this appeal, was dismissed.

       Of course, some speech “falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction.’’ Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); see also Mozzochi v. Borden, 959 F.2d 1174, 1178 (2d Cir. 1992) (mailing that “can plainly be interpreted as a threatening communication ... is beyond the protection of the First Amendment”). For purposes of this appeal, however, we assume that the content of the defendant’s letter constituted protected speech under the first amendment.

       Under Golding, “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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Practice Book § 60-5, which incorporates the plain error doctrine, provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       We note that the defendant has not challenged the constitutionality of § 53a-183 (a) (2).

       The defendant does not dispute the admissibility of any of these communications.

       With respect to the recorded or transcribed telephone conversations that the state had introduced into evidence, the trial court charged the jury that those communications were admitted only “to show or establish the mental state of the defendant, which is one of the elements of the crime charged. The evidence may also be used ... to identify the person who committed the crime, and you may consider it as to motive. However, motive is not an element of this crime. . . . [Y]ou may consider this evidence only on the issue of intent and for no other purpose.”

       With respect to the content of the defendant’s communications, the prosecutor made the following comments in her initial closing argument to the jury: “I want you to look very carefully at . . . the birthday card . . . and look closely at the language of that card. You are going to have to decide what it is that you believe that [the defendant] intended when he drafted and prepared that and mailed it to [the victim]. You are going to have to decide whether or not you think that that communication was harassing, annoying or alarming. That is your job. I am asking you ... to do it. If you don’t believe that the evidence that [was] presented here establishes beyond a reasonable doubt that [the defendant] intended to, in fact, harass, annoy, or alarm [the victim], then you should return a not guilty verdict
      “You will also have other exhibits that are tape-recorded conversations, transcripts of those conversations. Use these ... in coming to your conclusions as to [the defendant’s] intentions. They give you a window into his mind.

      * ** *
      “In the course of the testimony . . . something becomes very clear. What happened was [that the defendant] communicated with [the victim] between January . . . and May of 1996. He requested her assistance. . . . She refused to do that. You have to take that information . . . and consider it carefully ... in thinking about what you believe [the defendant] meant and intended when he sent the letters on November 25, [1996] and the letters that were received January 6, 1997. . . .

      “Now . . . you also heard several other [tape-recorded conversations]. . . . Pay close attention to these conversations. . . . Particularly, pay attention to the conversation in April [1996, in which the defendant] learned that [the victim] changed her number to an unpublished number. I believe that that evidence is very powerful, very credible. It gives you a very good insight into exactly what [the defendant’s state of mind] was when he was drafting and communicating with [the victim] in November of [1996] and January of [1997].” (Emphasis added.)
      The prosecutor made the following remarks regarding the defendant’s communications during her rebuttal closing argument: “[Defense counsel] indicated to you and brought your attention to . . . the birthday card. . . . Make sure you read [that card] carefully. . . . What do you think [the defendant] meant, ladies and gentlemen? . . . What do you think his [indentions were? ... I think the evidence clearly shows that [the defendant] was attempting to inconvenience, annoy and alarm [the victim], but the birthday card, the letters, they speak for themselves.
      “[Defense counsel] also brought your attention to the tape-recorded information and argued to you what [the defendant’s] interest was in [the victim] when he spoke to her. The court will instruct you that you have to evaluate people’s motivation, what people do in the ordinary course of affairs, and if [the defendant] was attempting to manipulate, that would mean to get [the victim] to do something for him, and whether you feel he is trying to manipulate . . . ask yoursel[ves] those questions. . . .
      “[Defense counsel] argued to you . . . that the communication that [the defendant] made in November [of 1996] and the communications that were received in January of [1997] were for the purpose of righting the wrong that was done. Ask . . . yourselves whether the love poems . . . [were] communicated to [the victim] to captivate [her] .... Ask yoursel[ves] about the love letters that we discussed .... [T]he letters and poems speak for themselves. What was in [the defendant’s] mind when he did that? That is for you ... to decide.” (Emphasis added.)

       In her rebuttal closing argument, the prosecutor responded to defense counsel’s comment by noting that the first amendment does not protect criminal conduct.

       See part II of this opinion.

       See footnote 14 of this opinion.

       See footnote 15 of this opinion.

       The trial court instructed the jury in relevant part: “I will read the relevant parts of [§ 53a-183] to you. A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person, he communicates with a person by mail. For you to find [the defendant] guilty of this charge, the state must prove beyond a reasonable doubt that the defendant intended to harass, annoy, or alarm . . . [the victim] by communication by mail. For purposes of the statute, ‘harass’ means to trouble, worry, torment, and ‘annoy’ means to irritate, vex, bother as by a repeated action, and ‘alarm’ means to make suddenly afraid or anxious, frightened. The test is whether the alleged communication would be likely to cause annoyance or alarm to a person of common intelligence.”
      The trial court also instructed the jury on § 53a-49, the statute defining criminal attempt. See footnote 2 of this opinion. The defendant does not take issue with the trial court’s instruction on § 53a-49.

       In so concluding, we do not mean to suggest that it would have been improper for the trial court to have instructed the jury expressly that § 53a-183 (a) (2) prohibits conduct rather than speech. Indeed, such an instruction might have been useful to emphasize that fact. We hold, rather, that the trial court’s failure to give such an instruction, sua sponte, did not violate the defendant’s first amendment rights.

       For example, shortly after the sexual assault, the defendant telephoned the victim from prison and told her that he did not plan to plead guilty to the sexual assault charges and that he would be very angry when he was released from prison. The victim also received several additional telephone calls from the defendant in the ensuing weeks and, as a result, had her telephone number changed. After the victim changed her number, the defendant called her at her place of employment. The victim refused to provide him with her new number and reported this telephone call to State Trooper Lewis.

       The victim stated that she was “upset,” “livid” and “furious” when she received letters from the defendant on January 6, 1997, even though she did not read them.