author: Norcott, J. Berdon, J.,

text:
    State of Connecticut v. Shelton Adams, Jr.
    (14445)
    Peters, C. J., Borden, Berdon, Norcott and Santaniello, Js.
    Argued December 2, 1992
    decision released March 30, 1993

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and Richard Emanuel, assistant public defender, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Norcott, J.

The defendant, Shelton Adams, Jr., was charged in a substitute information with the crimes of felony murder, conspiracy to commit robbery, first degree robbery and carrying a pistol without a permit in violation of General Statutes §§ 53a-54c, 53a-48, 53a-134 (a) (2) and 29-35, respectively. After a jury trial, the defendant was convicted of felony murder, first degree robbery and carrying a pistol without a permit and was acquitted on the conspiracy count. The trial court sentenced the defendant to a total effective term of fifty-five years imprisonment. The defendant appealed to this court from the judgment of conviction pursuant to General Statutes § 51-199 (b). We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. During the month of April, 1990, the defendant resided with his father, Shelton Adams, Sr., and his aunt in a first floor apartment of a three-family house located at 58-60 Warren Place, New Haven. On the evening of April 15, 1990, the defendant and Sherman Sims approached Nathan Roberts, who lived on the second floor of the same house, and asked him for a gun. Roberts gave the defendant a .38 caliber handgun.

At approximately 2:48 a.m. on April 16, Sims and the defendant called for a taxicab to pick them up at 1561 Chapel Street and to take them to 230 Blatchley Avenue. The Metro Taxi Company dispatched a cab operated by the victim, Allen Hansen, to respond to the call.

When the cab arrived at the Chapel Street location, both the defendant and Sims sat in the back seat with Sims seated behind the victim. As the victim drove down Blatchley Avenue, Sims ordered him to pull over behind the Columbus School. The victim complied. Sims then pulled out a gun, placed it to the victim’s neck and fired the gun. Sims had been holding the victim with his left hand when he fired the gun, and consequently he suffered a bullet wound to his left pinkie finger.

Sims and the defendant exited the cab from the left, or driver’s, side and pulled the victim from the vehicle onto the ground to allow easier access to his pockets. They then took both of the victim’s wallets. The victim died almost immediately after the shooting. Powder bums found around the entry wound indicated that the gun had been held against the victim’s skin when fired.

Sims and the defendant then walked back to the defendant’s apartment. The defendant’s father let the two men in and a few minutes later noticed that the defendant was wrapping Sims’ bleeding hand. A short while later, Sims and the defendant called for another cab to take them to 28 Ellsworth Avenue, where a friend resided.

At 7:15 a.m., Roberts encountered Sims and the defendant walking toward the defendant’s apartment. Roberts had heard about the shooting and asked the defendant if he knew anything about it. Neither the defendant nor Sims responded. Roberts then asked about the handgun that he had given to the defendant the previous night. The defendant first denied knowledge of the whereabouts of the gun, and then claimed that he had thrown it away. Roberts then noticed Sims’ bleeding hand and asked the defendant whether he had shot the victim. In response, the defendant pointed at Sims.

Later that morning, the defendant asked his father to dispose of the handgun. The defendant, his father, and Sims were driven by a friend to the bank of the Mill River near East Rock Road. The defendant’s father then threw the gun into the river.

With the assistance of the defendant’s father, the New Haven police later retrieved the gun from the river. Ballistic tests performed on the gun established that it had fired the shot that had killed the victim. The police also conducted a search of the defendant’s apartment in which they found a jacket identified as the one worn by the defendant on the night of the shooting. The left sleeve of the jacket was encrusted with blood that later tested to be of the same type as that of the victim.

The defendant’s theory of defense focused on his lack of criminal intent. Through the testimony of New Haven police detective Anthony DiLullo during the state’s case-in-chief, the defendant’s version of the shooting was elicited. DiLullo testified that he had met with the defendant the day after the shooting at which time the defendant had given DiLullo a voluntary statement. The defendant admitted being with Sims on the night of the homicide and being in the victim’s cab with Sims before the shooting. The defendant was seated on the right, or passenger’s, side of the back seat of the cab. When the cab stopped at the traffic light at the intersection of Blatchley and Grand Avenues, Sims pulled out a silver colored handgun. The defendant told DiLullo that at this point he had left the cab through the right rear door and had run away. The defendant claimed that he had never seen the gun before and that he had had no idea that Sims was planning to rob the cab driver. He also stated that he had heard a gunshot when he was approximately one and one-half blocks away from the cab.

On appeal, the defendant claims that the trial court improperly: (1) denied his motion for judgment of acquittal as there was insufficient evidence to support the jury’s guilty verdict; (2) violated his constitutional due process and statutory rights by denying his request to instruct the jury on the defense of renunciation pursuant to General Statutes § 53a-10; and (3) instructed the jury on consciousness of guilt and reasonable doubt so as to dilute the state’s burden of proof in violation of the defendant’s constitutional due process rights. We disagree with each of these claims.

I

The defendant first claims that the trial court should have granted his motion for judgment of acquittal because the state produced insufficient evidence to sustain his conviction of felony murder, first degree robbery and carrying a pistol without a permit. He claims that the state’s failure to prove beyond a reasonable doubt each element of the crimes charged against him deprived him of his due process rights under the federal and state constitutions.

The defendant argues that the evidence failed to establish beyond a reasonable doubt his participation in the crimes for which he was convicted. He argues that the state failed to refute his claim that he lacked knowledge of Sims’ intentions, that he was essentially an innocent bystander, and that he fled the cab prior to the shooting. The defendant claims, therefore, that because the evidence was insufficient to preclude a reasonable hypothesis that he left the scene of the crime before the shooting, it was insufficient to find him guilty beyond a reasonable doubt of the felony murder and robbery counts. The defendant also argues that there was no evidence presented at trial to support beyond a reasonable doubt the conclusion that on the day of the offense the defendant carried a pistol without a permit. We disagree.

“In reviewing a claim of insufficiency of the evidence, this court construes the evidence in the light most favorable to sustaining the jury’s verdict and will affirm that verdict if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Citation omitted.) State v. Ruscoe, 212 Conn. 223, 245, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). “While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. State v. Grant, 219 Conn. 596, 604-605, 594 A.2d 459 (1991). . . . State v. Pinnock, 220 Conn. 765, 770-71, 601 A.2d 521 (1992).” (Internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 678, 613 A.2d 788 (1992). “In this 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.” (Internal quotation marks omitted.) State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).

To convict the defendant of the crimes as charged in the substitute information, the state had to prove the following beyond a reasonable doubt. Regarding the charge of felony murder in violation of General Statutes § 53a-54c, the state needed to prove that: (1) the defendant, acting alone or with another participant, committed or attempted to commit robbery; and (2) in the course of or in furtherance of the robbery, he or another participant caused the death of the victim. To convict the defendant of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), the state bore the burden of proving beyond a reasonable doubt that in the course of the commission of a robbery or immediate flight therefrom, the defendant or another participant was armed with a pistol. The charge of carrying a pistol without a permit in violation of General Statutes § 29-35 required the state to prove that the defendant carried a pistol or revolver without a permit outside of his home or place of business.

Nothing in our criminal jurisprudence mandates that a jury accept a defendant’s version of events or the reasonable inferences that flow therefrom. The jury is free to juxtapose conflicting versions of events and to determine which is the more credible. See, e.g., State v. Bunkley, 202 Conn. 629, 645, 522 A.2d 795 (1987); State v. Banks, 194 Conn. 617, 619, 484 A.2d 444 (1984). Should it determine, as it did here, that the state has proven beyond a reasonable doubt facts constituting the elements of the crimes charged, its responsibility is to return verdicts of guilty. “We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991).

Applying these standards to this case, we conclude that the evidence presented by the state could reasonably have persuaded the jury, beyond a reasonable doubt, that the defendant was guilty of felony murder, first degree robbery and carrying a pistol without a permit. A review of the record reveals the following evidence in support of the convictions. The uncontroverted testimony of Roberts established that, prior to the crimes, the defendant had obtained a handgun from Roberts, for which the defendant had no permit. Through the voluntary statement given to DiLullo, the defendant himself confirmed that he had been in the cab with Sims and that he had been with Sims after the shooting. The records of the Metro Taxi Company corroborated that Sims and the defendant were together both before and after the homicide, taking cabs to and from various parts of the city. The morning following the shooting, the defendant gave a handgun to his father, who, at the defendant’s request, threw the handgun into the Mill River. A ballistics expert testified that the bullet that had killed the victim had been discharged from the handgun that Roberts had loaned to the defendant and which the police subsequently had retrieved from the river.

Furthermore, a jacket found during a search of the defendant’s apartment was identified by Roberts and the defendant’s father as one worn by the defendant during the early morning hours on the day of the crime. Expert testimony concluded that blood encrusted on the left sleeve of this jacket was consistent with the unusual blood type of the victim. Also, testimony of investigating police officers revealed that the right rear door, through which the defendant claimed he had exited the cab prior to the shooting, had been locked when the victim’s body was discovered.

The state’s theory was that Sims, with a severely bleeding left hand, would have needed an accomplice to help him drag the victim from the cab and remove his wallets in order for the wallets to remain free of blood. The pooling of the victim’s blood to the right of the front seat, a blood smear on the left rear door, the position of the victim’s body and the vehicle when discovered, and the lack of any traces of blood on one of the victim’s wallets, which was later recovered by the police, all supported the state’s theory that the defendant was present when the victim was shot, and that he aided Sims in pulling the victim from the cab and removing the victim’s wallets.

The jury could also reasonably have inferred the defendant’s consciousness of guilt from his statements to the police after the murder that he had never before seen the gun that killed the victim despite testimony that he had obtained it from Roberts and that he had given it to his father the morning after the shooting. Furthermore, the defendant’s gesturing to Sims when Roberts asked him if he had shot the victim indicated the defendant’s personal knowledge of the shooting.

The defendant argues that because this evidence did not disprove his version of the facts, and because it did not reveal that he possessed the handgun outside of his home, it was insufficient to sustain a guilty verdict. “ ‘[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.’. . State v. Grant, supra, 604. When conflicting explanations are presented, the trier is entitled to reject, as less credible, testimony and inferences offered on behalf of the defendant. State v. Roseboro, 221 Conn. 430, 437, 604 A.2d 1286 (1992). In rejecting the defendant’s version of the surrounding events, the jury concluded that the evidence supported the state’s assertion that the defendant and Sims were together immediately before, during and after the robbery and shooting. Furthermore, it was reasonable for the jury to infer from the evidence that the defendant, outside of his home, possessed the handgun used in the shooting. We conclude, therefore, that the cumulative effect of the evidence was sufficient to permit the jury to find the essential elements of felony murder, first degree robbery and carrying a pistol without a permit and to persuade the jury of the existence of those elements beyond a reasonable doubt.

II

The defendant next claims that the trial court improperly denied his request to instruct the jury on the defense of renunciation pursuant to General Statutes § 53a-10. He claims that the denial of this instruction violated his federal and state constitutional rights to due process and to present a defense pursuant to § 53a-10. We disagree.

The defendant’s theory of defense was that he fled the cab before Sims shot the victim and that he had no prior knowledge of Sims’ criminal intentions when the two men entered the victim’s cab. The state requested that the jury be charged on felony murder, which included a charge on accessorial liability under General Statutes § 53a-8. The defendant subsequently requested that the jury be charged on the defense of renunciation under § 53a-10, a defense which is only available in prosecutions based upon the conduct of another person under the provisions of § 53a-8.

The trial court granted the state’s request to charge on felony murder, including accessorial liability, but denied the defendant’s request to charge on the defense of renunciation. The defendant claims that the jury should have been instructed on renunciation because evidence had been introduced that he renounced any complicity by fleeing the cab when Sims pulled out the gun. The defendant’s understanding of the defense of renunciation, however, is misplaced.

“A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. ...” (Citations omitted; internal quotation marks omitted.) (State v. Belle, 215 Conn. 257, 273, 576 A.2d 139 (1990). We have said that a defendant is entitled to have the court present instructions to the jury relating to any theory of the defense for which there is any foundation in the evidence, even if weak or incredible. Id.; State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). We must consider the evidence presented at trial in the light most favorable to supporting the defendant’s request to charge. State v. Fuller, supra, 279. An instruction on a legally recognized theory of defense, however, is warranted only if the evidence indicates the availability of that defense. See State v. Belle, supra; State v. Fuller, supra, 278; State v. Harris, 189 Conn. 268, 274, 455 A.2d 342 (1983); State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979). The trial court should not submit an issue to the jury that is unsupported by the facts in evidence. State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985).

The defendant was entitled to have the court instruct the jury on the defense of renunciation if there was any evidence to raise a reasonable doubt concerning the existence of the defense. State v. Cassino, 188 Conn. 237, 243, 449 A.2d 154 (1982). The question on appeal is whether, viewing the evidence most favorable to the defendant’s request for charge, we perceive any evidence supporting a defense of renunciation presented at trial. Having undertaken the appropriate review, we conclude that there was no evidentiary basis to support a defense of renunciation and consequently that the court correctly refused to instruct the jury on that defense.

At the outset, we note that the defense of renunciation is extremely narrow. “ ‘Renunciation’ generally requires not only desistance, but more active rejection, and usually contains specific subjective requirements, such as a complete and voluntary renunciation.” (Emphasis in original.) 1 P. Robinson, Criminal Law Defenses (1984) § 81 (a), p. 347. Connecticut has patterned its criminal code after the Model Penal Code, which permits the defense only if the defendant terminates his complicity by, inter alia, wholly depriving his complicity of its effectiveness in the commission of the offense. 1 P. Robinson, supra, pp. 363-64; see General Statutes § 53a-10; I A.L.I., Model Penal Code and Commentaries (1985) § 2.06 (6) (c), comment, p. 326 (hereinafter A.L.I. Model Penal Code). A mere change of heart or flight from the crime scene does not establish the defense of renunciation. Rather, it is necessary that the defendant accomplice both repudiate his prior aid and deprive that aid of effectiveness. 2 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 6.8 (d), p. 162.

“If the prior aid consisted of supplying materials to be used in commission of the offense, effective withdrawal may require that these materials be reacquired so as to prevent their use by the principal.” Id.; see A.L.I. Model Penal Code, supra, § 2.06 (6) (c), comment, p. 326. The action needed to deprive a prior action of its effectiveness will vary from case to case. Id. Indeed, it is conceivable that some actions that serve as the basis for accessorial liability are impossible to renounce given the practical constraints involved in depriving some actions of their effectiveness. Under Connecticut law, for a charge on the defense of renunciation to be warranted, there must be evidence not only that the defendant completely and voluntarily renounced his participation in the crime, but also that he did so in such a way as wholly to deprive or neutralize his participation of its effectiveness.

There is no evidence in the record before us that the defendant took any steps, beyond abandoning the cab, to deprive his complicity of its effectiveness. The sole theory of accessorial liability relied upon by the state was its claim that the defendant had, with the requisite intent, supplied the gun to Sims. The defendant’s participation in the offense prior to its completion was established through the evidence indicating that he had procured the murder weapon and that he had been present when Sims held it to the victim, permitting an inference that the defendant had supplied Sims with the gun. When the act of complicity consists of providing arms, “a statement of withdrawal ought not to be sufficient; what is important is that he get back the arms, and thus wholly deprive [the] aid of its effectiveness in the commission of the offense.” A.L.I. Model Penal Code, supra, § 2.06 (6) (c), comment, p. 326. Depriving this act of its effectiveness would have required a further step, such as taking back the weapon, disposing of it so that it could play no role in the robbery, or warning the police so as to thwart the use of the weapon in the crime.

A mere claim of innocence or denial of participation in the crime charged does not, without more, entitle a defendant to a theory of defense charge. State v. Cassino, supra, 242. This is particularly true regarding the defense of renunciation, pursuant to § 53a-10, to a charge of accomplice liability under § 53a-8.

The defendant’s evidence did not tend to show that he had “terminated his complicity” in the offenses charged by meeting both of the requirements of § 53a-10—i.e., (1) manifesting a complete and voluntary renunciation of criminal purpose, and (2) complete deprivation of the effectiveness of his complicity in the crimes. It tended to show only that he had no such complicity. That is a claim that he was not an accomplice under § 53a-8. It is not a claim, cognizable under § 53a-10, that his accomplice liability under § 53a-8 had been terminated.

In other words, § 53a-10, by its specific terms, recognizes a defense only to a charge of accomplice liability under § 53a-8. It does not provide a general defense to a crime charged in which the state does not seek to hold the defendant criminally liable as an accomplice under § 53a-8. Thus, even if the jury believed the defendant’s version of the events—namely, that he was an innocent “bysitter” who fled the cab as soon as he realized the nature of Sims’ intentions—or disbelieved the state’s version, namely, that he supplied the gun to Sims, no instruction under § 53a-10 would have been warranted. Indeed, to hold otherwise would read subdivision (1) out of § 53a-10 (a) in virtually all cases.

The defendant also claims that the court’s failure to charge on the defense of renunciation under § 53a-10 violated his statutory rights. The defendant argues that the failure of the trial court to apply a clearly relevant statute to the case before it constituted plain error. The defendant’s claim suggests that § 53a-10 provides a defendant with a right to have the jury charged on the defense of renunciation whenever a defendant is charged with liability for the acts of another person pursuant to § 53a-8. Although § 53a-10 affords a defense when a defendant is charged with liability for the acts of another, it in no way absolves the defendant of the responsibility of providing an evidentiary foundation for any defense on which the jury is to be instructed. See, e.g., State v. Cassino, 243; State v. Rosado, supra, 707-708. The defendant failed to provide such an evidentiary foundation. We conclude, therefore, that the trial court properly refused to charge the jury on the defense of renunciation.

Ill

The defendant’s final contention is that the trial court’s instructions to the jury regarding “consciousness of guilt” and “reasonable doubt” unconstitutionally diluted the state’s burden of proof. At trial, the defendant objected to the trial court’s instruction on consciousness of guilt on a basis other than the one asserted before this court. Furthermore, the defendant did not object to the trial court’s instructions on reasonable doubt. Neither of these claims, therefore, was preserved at trial.

“A defendant can prevail on an unpreserved claim 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 the harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).” State v. Milardo, 224 Conn. 397, 408, 618 A.2d 1347 (1993).

The jury was instructed that if it should find that the defendant had made false statements about himself or his whereabouts at the time of the offense it would have the right to take such misstatements as proof of the defendant’s consciousness of his own guilt. This instruction was directed specifically at the defendant’s statements to DiLullo claiming that he had never before seen the handgun used to shoot the victim. On appeal, the defendant objects to the portion of the instructions stating that “such statements often tend to show a guilty connection by the accused with the crime charged.” (Emphasis added.) The defendant claims that this instruction diluted the state’s burden of proof by permitting the jury to presume that the opposite of the defendant’s false statement had been established as an affirmative fact. We are not persuaded.

We have previously recognized that a claim challenging an instruction that mandates a particular inference adverse to the defendant may sufficiently implicate constitutional rights to satisfy the second prong of Golding. State v. Smith, 219 Conn. 160, 165, 592 A.2d 382 (1991). “A jury charge in which the court removes from the jury’s consideration an issue that is one of the essential elements of the crime, and thereby relieves the state of the burden of proving every element beyond a reasonable doubt, would violate the holding of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).” State v. Tillman, 220 Conn. 487, 503, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). In the present case, however, the language “guilty connection” did not mandate that the jury find that the facts about which the defendant had made false statements were conclusively established. Rather, the instruction as a whole identified a permissive inference of consciousness of guilt that the jury might draw from the defendant’s false statement, an item of circumstantial evidence. State v. Smith, supra; see State v. Thomas, 214 Conn. 118, 121, 570 A.2d 1123 (1990); State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982).

“Unpreserved nonconstitutional claims such as this ‘do not warrant special consideration simply because they bear a constitutional label.’ State v. Golding, supra, 240.” State v. Smith, supra, 166. In reviewing a constitutionally based challenge to the court’s instruction to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988). It is not reasonably possible that the trial court’s instructions on consciousness of guilt, taken as a whole, misled the jury into shifting the burden of proof to the defendant. See State v. Brown, 199 Conn. 14, 28, 505 A.2d 690 (1986). Because the defendant failed to demonstrate that this claim is of constitutional magnitude alleging a violation of a fundamental right; State v. Golding, supra, 239-40; the defendant cannot prevail on this unpreserved claim.

The defendant also contends that the trial court’s charge on reasonable doubt unconstitutionally diluted the state’s burden of proof. The defendant takes issue with the portions of the charge that stated “[a] reasonable doubt is a doubt for which a valid reason can be assigned” and “is such a doubt as in serious affairs which concern yourselves you would pay heed.” The defendant argues that this language suggested that a reasonable doubt is only one that a juror can articulate and for which a juror can assign a reason.

This court has previously reviewed similar language in jury charges on reasonable doubt and has consistently rejected the proposition that such language amounts to a constitutional error. State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991), cert. denied, U.S. , 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992); State v. Ireland, 218 Conn. 447, 457, 590 A.2d 106 (1991); State v. Thomas, supra, 119; State v. Leecan, 198 Conn. 517, 538-39, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). When read in the context of the complete charge, these instructions did not dilute the defendant’s presumption of innocence or reduce the state’s burden of proof. We conclude that the defendant has failed to demonstrate a violation of a fundamental constitutional right.

The judgment is affirmed.

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

Berdon, J.,

dissenting. I disagree with the majority’s conclusion that the defendant was not entitled to an instruction on the defense of renunciation. The defendant, under the facts of this case, had a constitutional right to have the jury instructed on this defense under General Statutes § EÍSa-lO. “A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) . . . .” (Citation omitted.) State v. Rouleau, 204 Conn. 240, 243, 528 A.2d 343 (1987). “When the legislature has created a legally recognized defense, the defendant is entitled to a proper jury instruction on the elements of that defense so that the jury may ascertain whether the state has sustained its burden of disproving the defense beyond a reasonable doubt.” State v. Havican, 213 Conn. 593, 598, 569 A.2d 1089 (1990); State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). This court, sitting en banc, has unanimously held that “a defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . .” (Internal quotation marks omitted.) State v. Belle, 215 Conn. 257, 275, 576 A.2d 139 (1990).

Because renunciation is a defense, rather than an affirmative defense; State v. Rouleau, supra, 249-50 n.12; the state bears the burden of disproving the defense beyond a reasonable doubt once the issue has been raised at trial. General Statutes § 53a-12. As a result, if the renunciation issue is raised by the evidence, the state must prove that the defendant did not terminate complicity prior to the commission of the offense by “(1) [w]holly depriving it of effectiveness in the commission of the offense, and (2) manifesting a complete and voluntary renunciation of his criminal purpose.” General Statutes § 53a-10. In this case the defendant squarely raised the renunciation issue by filing an appropriate written request to charge on the defense of renunciation. He also took an exception to the court’s charge when it failed to instruct the jury on the issue.

I gather from the majority opinion that it is conceded that there was sufficient evidence to satisfy the second statutory requirement that the defendant manifest a “complete and voluntary renunciation of his criminal purpose.” Surely, there can be no doubt that there was sufficient evidence to satisfy this requirement. Although the defendant did not take the stand, Detective DiLullo testified that the defendant had given a voluntary statement. According to DiLullo, the defendant admitted that he had been with Sims in the victim’s cab until Sims pulled out a gun and attempted to rob the victim. Upon seeing the handgun, the defendant stated, he “opened the door of the cab and ran away from the cab.” He further stated that he was approximately one and one-half blocks away from the point at which he had abandoned the cab when he heard a gunshot.

The majority holds that the renunciation instruction was not warranted in this case because the defendant failed to introduce some evidence for the first statutory requirement—namely, evidence to show that he wholly deprived his complicity of effectiveness in the commission of the offense. The state’s theory was that the defendant supplied Sims with the gun that was used to murder the victim. Accordingly, the majority holds that because the defendant “procured the murder weapon,” he was required to produce some evidence that he took back the weapon, or disposed of it so that it could play no role, in order to be entitled to the instruction. I agree with the majority opinion that if the jury was required to find from the evidence that the defendant supplied or made available the gun, the renunciation instruction would have been available only if the defendant had introduced evidence that he attempted to take back the weapon or in some other manner deprived Sims of its use. The majority’s analysis is flawed, however, because it is predicated on the assumption that the jury was required to conclude that the defendant made the gun available to Sims. This was not the case.

The defendant was entitled to an instruction on the renunciation defense once he introduced evidence that he did not know about the gun prior to the time Sims produced it in the cab. If the defendant did not know about the gun, but only about the underlying robbery, he could terminate his complicity in the robbery and wholly deprive his complicity of effectiveness in the commission of the offense, without attempting to take back the weapon or dispose of it. Under the statute, the defendant is only required to renounce his part in the crime. Accordingly, if the defendant knew only of the robbery and not of the gun, fleeing from the car before the robbery occurred so as to terminate his part in the crime would be enough evidence justifying an instruction on renunciation.

The record supplies ample evidence that the defendant did not know about the gun. DiLullo testified that the defendant stated that he had never seen the gun before, which contradicts the evidence that he supplied the gun. Surely, this was sufficient evidence to make renunciation a jury issue—that is, if the jury found that he did not furnish the weapon, then there was no need for the defendant to produce evidence that he attempted to take back the weapon.

In addition, the renunciation instruction should have been given in this case because there was no direct evidence that the defendant gave Sims the weapon. The evidence included the following: (1) the day before the crime, Roberts, at his apartment, gave the defendant the pistol while Sims was there; (2) the defendant and Sims left Robert’s apartment together; (3) the morning following the shooting the defendant told Roberts that he had thrown the gun away. Surely, the jury could have inferred from this evidence that the defendant gave the gun to Sims. But they were not required to draw such an inference; State v. Price, 205 Conn. 616, 622, 534 A.2d 1196 (1987); and they could have concluded that he did not supply the gun.

Under the facts of this case and the state’s theory, the defendant would not be required to show that he took back the gun unless there was conclusive evidence that the defendant supplied the gun to Sims. Because that evidence could only be drawn from inferences that the jury was free to accept or reject, the defendant would have been entitled to the instruction even if he had not affirmatively introduced any evidence that he did not furnish the gun. For all we know, the jury may have found that he did not furnish the gun. Under these circumstances, the defendant would not have been obligated to get back the gun from Sims.

The majority maintains, however, that the evidence does not show that the defendant had “terminated his complicity” in the offenses charged, but only that he had no such complicity. The majority therefore suggests that if the defendant’s theory was that there was no complicity, then there was no justification for instruction on the renunciation defense because the defense is only available to one who is prosecuted for accomplice liability pursuant to General Statutes § 53a-8. The record reveals, however, that the trial court clearly instructed the jury on accomplice liability in reference to the robbery charge. The court charged the jury “as to what is called in our law, being an accessory to a crime. I refer to this doctrine with respect to the element of robbery or attempted robbery contained in the murder charge. A person is criminally liable for a criminal act if he directly commits it or if he is an accessory in the criminal act of another.” Thus, the jury could have predicated its finding of guilt on a finding that the defendant had been an accomplice in the commission of the robbery. Accordingly, he was entitled to an instruction on the renunciation defense.

Accordingly, I would reverse the defendant’s conviction and remand the case for a new trial.

       The pertinent parts of the statutes under which the defendant was convicted are as follows: “[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, aggravated sexual assault in the first degree, 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.”
      “[General Statutes] Sec. 53a-134. robbery in the first degree: class b FELONY, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”
      “[General Statutes] Sec. 29-35. carrying of pistol or revolver without permit prohibited, exceptions, (a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .
      “(b) The holder of a permit issued pursuant to section 29-28 shall carry such permit on his person while carrying such pistol or revolver.”

       According to the testimony of the victim’s wife, her husband habitually carried two wallets, one in his front pants pocket and one in his rear pants pocket.

       The defendant claims that the insufficiency of the evidence violated his due process rights under both the federal and state constitutions. See U.S. Const., amend. XIV; Conn. Const., art. I, § 8. The defendant has not presented a separate analysis for his state constitutional claims. Accordingly, we limit our analysis to the relevant federal constitutional claim. See State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).
      The defendant concedes in his brief that he did not preserve the insufficiency of the evidence claim regarding the count of carrying a pistol without a permit at trial by moving for judgment of acquittal on that count. He therefore claims that he is entitled to prevail on this claim under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
      The United States Supreme Court held in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61L. Ed. 2d 560 (1979), that the fourteenth amendment commands that “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” If an appellate court is presented with an insufficiency of the evidence claim, reversal is constitutionally required if, “after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id., 319.
      We believe that Jackson v. Virginia, supra, compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. There being no practical significance, therefore, for engaging in a Golding analysis of an insufficiency of the evidence claim, we will review the defendant’s challenge to his conviction on the count of carrying a pistol without a permit as we do any properly preserved claim.

       Under General Statutes § 53a-133, “[a] person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” The element that distinguishes larceny from robbery, therefore, is the use or threatened use of immediate physical force. State v. Crosswell, 223 Conn. 243, 250, 612 A.2d 1174 (1992).

       Mary Beth Gouman, a forensic expert for the state, tested the blood on the sleeve of the defendant’s jacket to determine blood grouping types and to discover the presence of isoenzymes, a chemical substance in the blood that differs among individuals. Gouman testified that she found the blood grouping type to be “A” and the isoenzyme type to be “PGM two minus one plus,” both of which corresponded to the victim’s types. She further testified that approximately two percent of the national population share this blood type.

       At trial, David Low, an expert witness regarding the locking mechanism of the victim’s cab, a 1984 Buick LeSabre, testified that the position of the right rear door “lock bar” of the cab when discovered by the police rendered the defendant’s claim that he had exited the cab through that door implausible.

       The defendant told DiLullo that he had left the cab before the shooting and that he had no knowledge of Sims’ intention to rob the cab driver. He offered as an explanation for the presence of blood on his jacket that the victim’s blood may have dripped onto his jacket when he was tending to Sims’ wounded hand after the shooting. The defendant further contended that Roberts did not accurately remember when he loaned the gun to the defendant, and that there was no evidence that the defendant intentionally supplied the gun to Sims for the purpose of aiding in the robbery.

       General Statutes § 53a-10 provides in relevant part: “(a) In any prosecution in which the criminal liability of the defendant is based upon the conduct of another person under section 53a-8, it shall be a defense that the defendant terminated his complicity prior to the commission of the offense under circumstances: (1) Wholly depriving it of effectiveness in the commission of the offense, and (2) manifesting a complete and voluntary renunciation of his criminal purpose."

       General Statutes § 53a-8 provides in relevant part: “(a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       The defendant requested that the language of General Statutes § 53a-10 be read to the jury and that the following instruction be given:
      “In this case, evidence has been offered that when Sherman Sims pulled out a gun while he and Mr. Adams were in the taxi, Mr. Adams jumped out of the cab and ran away.
      “If the jury accepts this evidence and finds that Mr. Adams terminated his complicity prior to the shooting of Mr. Hansen under circumstances wholly depriving any complicity on his part of any effectiveness in the commission of felony murder and that from the cab and running away Mr. Adams manifested a complete and voluntary renunciation of a criminal purpose, you must find him not guilty of felony murder.
      “Where the defense of renunciation is raised by evidence in the case, the State has the burden of disproving such defense beyond a reasonable doubt.”

       We note, however, that we do not set forth in this opinion an exclusive set of possibilities for renouncing the defendant’s aid; rather, we conclude that under these facts the defendant’s claimed act of renunciation was legally insufficient to permit the jury to be charged on the defense.

       It is well established that to raise an objection in the trial court, counsel should state the basis of his objection in such form as he desires it to go on record. State v. Paulino, 223 Conn. 461, 476, 613 A.2d 720 (1992). Once an objection has been made and the grounds stated, a party is normally limited on appeal to raising the same objection on the same basis as stated at trial. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982). To assign error in the court’s rulings on the “ ‘basis of objections never raised at trial amounts to trial by ambuscade of the trial judge. . . .’’’Id.
      Before the trial court, the defendant objected to the charge on consciousness of guilt on the theory that the jury should have been told that, if it found a reasonable explanation for the defendant’s false exculpatory statement, it was “entitled to consider that other reason as not showing consciousness of guilt.” Before this court, however, the defendant challenges the use of the language “guilty connection” in the charge, claiming that it diluted the state’s burden of proof by suggesting that if the jury disbelieved the defendant’s exculpatory statement, it must necessarily assume the defendant’s guilt. Therefore, in changing the basis of his objection to the charge on consciousness of guilt, the defendant has raised an unpreserved claim.

       The full text of the trial court’s charge on “consciousness of guilt” was as follows: “There is a concept in the law called consciousness of guilt. Whenever a person is on trial for a criminal offense, it is proper to show his conduct as well as any declarations made by him subsequent to the alleged criminal act. The manner in which he conducted himself when accounts by others in respect to this subject were made in his hearing may also be shown. If he should make false statements respecting himself or as to his whereabouts at the time of the affair, these may be shown, because such conduct or such statements often tend to show a guilty connection by the accused with the crime charged.
      “The state claims in this case that the accused made false statements to Detective DiLullo pertaining to several matters. The state claims these include the accused’s statements [that] he had never before seen the weapon which he claims Mr. Sims had in the victim’s taxicab. I charge you that it is your recollection of the evidence which controls in this regard. Also, I instruct you that you must be satisfied beyond a reasonable doubt that if misstatements were made by the accused, that the accused made them or the misstatements were in order for this rule to apply. I also charge you that a misstatement of a suspect to police officers is admissible against him in a later prosecution because it permits the jury to draw the reasonable inference that the misstatement was made in attempt to avoid detection for the crime.”

       The defendant’s claim at trial was that there was an innocent explanation for the false statement concerning the handgun, namely, that he had not admitted to seeing the handgun in order to cover for Roberts, who had given it to him.

       The full text of the court’s charge on reasonable doubt is set forth below: “Now before you can render a verdict of guilty, I as I have said, the state must prove every essential element of the crime charged beyond a reasonable doubt. This phrase reasonable doubt has no technical or unusual meaning. You get the real meaning of the phrase if you emphasize the word reasonable.
      “A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or a surmise. A reasonable doubt is not such a doubt as raised by one who questions simply for the sake of argument. It is not a doubt suggested by the ingenuity of counsel which is not warranted by the evidence. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or in the absence of evidence. It is such a doubt as in serious affairs which concern yourselves you would pay heed. It is such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.
      “Absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of a jury before it returns a verdict of guilty. What the law does require, however, is that if after hearing all the evidence there is something in that evidence or lack of evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt of the guilt of the accused, then the accused must be given the benefit of the reasonable doubt and acquitted.”

       General Statutes § 53a-10 provides: “(a) In any prosecution in which the criminal liability of the defendant is based upon the conduct of another person under section 53a-8, it shall be a defense that the defendant terminated his complicity prior to the commission of the offense under circumstances: (1) Wholly depriving it of effectiveness in the commission of the offense, and (2) manifesting a complete and voluntary renunciation of his criminal purpose.
      “(b) For purposes of this section, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.”

       Although there was a concurring opinion expressing disagreement with a portion of the majority opinion, the seven person court, which included Chief Justice Peters and Justice Santaniello, unanimously agreed that the defendant is entitled to a jury instruction on a defense for which there is any foundation in the evidence. State v. Belle, 215 Conn. 257, 275, 576 A.2d 139 (1990).

       Our standard of review is clear: “When we are reviewing a trial court’s failure to charge as requested, we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” (Internal quotation marks omitted.) State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990); see State v. Rouleau, 204 Conn. 240, 250, 528 A.2d 343 (1987) (“[wjhether the defense . . . was ‘raised’ at the trial must be determined by viewing the record in a light most favorable to the defendant’s claim”).

       “The general principle advanced is that the accomplice must deprive his prior action of its effectiveness. The action needed for that purpose will, of course, vary with the accessorial behavior. If the behavior consisted of aid, as by providing arms, a statement of withdrawal ought not to be sufficient; what is important is that he get back the arms, and thus wholly deprive his aid of its effectiveness in the commission of the offense. If, on the other hand, complicity inhered in request or encouragement, countermanding disapproval may suffice to nullify its influence, providing it is heard in time to allow reconsideration by those planning to commit the crime.” I A.L.I., Model Penal Code and Commentaries (1985) § 2.06 (6) (c), comment, p. 326, and cases cited therein.

       For example, if the defendant had testified and judicially admitted that he furnished the gun used in the crime.


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Police Department of the Town of Windsor Locks v. State Board of Labor Relations et al.
    (14569)
    Peters, C. J., Callahan, Berdon, Norcott and Katz, Js.
    Argued December 3, 1992
    decision released April 6, 1993

      E. Stephen Briggs, for the appellant (named defendant).

      Stephanie E. Lane, with whom were Ralph Dupont and, on the brief, Robert B. Mitchell and Steven J. Sibner, for the appellee (plaintiff).
   Berdon, J.

The sole issue on appeal is whether a part-time municipal employee qualified, for purposes of collective bargaining rights, as an employee under General Statutes § 7-467 (2) and (3) of the Municipal Employee Relations Act (MERA). The employee in question was employed throughout 1986 and for seven months in 1987, but did not work 120 or more days during each calendar year and did not always work more than twenty hours per week.

The following facts are undisputed. On November 24, 1987, the defendant Michael S. Bracken, Jr., who was employed by the plaintiff, the police department of the town of Windsor Locks (police department), as a supernumerary police officer, filed a complaint with the defendant state board of labor relations (board); alleging that the police department had engaged in practices prohibited by MERA when it terminated his employment because of his participation in union activities and refused to consider him for either of two full-time positions.

During a hearing before the board, the police department argued that the board lacked jurisdiction over the case because Bracken was a seasonal employee rather than an employee covered by MERA. The board determined that Bracken had worked “regularly, on a year-round basis for periods of time frequently in excess of [twenty] hours per week,” and therefore concluded that he was an employee as defined by § 7-467 (2) and (3).

The police department appealed the board’s decision to the Superior Court pursuant to General Statutes § 4-183. Finding that Bracken had worked only 105 days in 1986 and ninety-two days in 1987, and that he had often worked fewer than twenty hours per week, the trial court concluded that Bracken did not meet the definition of employee in § 7-467 (2) and (3) because he was “a part-time employee who worked less than twenty hours per week on a seasonal basis.” Accordingly, the trial court reversed the board’s decision and ordered that Bracken’s complaint be dismissed for lack of MERA jurisdiction.

Although it miscalculated the number of weeks in which Bracken worked twenty or more hours, the board maintains on appeal that its factual error does not undermine its original decision because the central issue in this case is whether Bracken worked for a period of more than 120 days per calendar year and therefore was not a seasonal employee. All of the parties now agree with the trial court’s calculation that Bracken worked 105 days in 1986 and ninety-two calendar days in 1987.

Our review of an agency’s decision on questions of law is limited by the traditional deference that we have accorded to that agency’s interpretation of the acts it is charged with enforcing. Board of Education v. State Board of Labor Relations, 217 Conn. 110, 119-20, 584 A.2d 1172 (1991); Lieberman v. State Board of Labor Relations, 216 Conn. 253, 263, 579 A.2d 505 (1990); Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). In this case, General Statutes § 7-471 (2), which defines the powers of the state board of labor relations, authorizes the board to “determine whether a position is covered by sections 7-467 to 7-477, inclusive, in the event of a dispute between the municipal employer and an employee organization.” Our duty is “to decide whether, in light of the evidence, the [agency charged with enforcement] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” Griffin Hospital v. Commission on Hospitals & Health Care, supra.

On appeal, the police department argues that the trial court properly held that Bracken was excluded from the definition of “employee” under MERA because (1) Bracken had worked fewer than 120 days per calendar year in both 1986 and 1987 and was therefore a seasonal employee; and (2) Bracken had often worked fewer than twenty hours per week in 1986 and 1987. We conclude that Bracken was improperly excluded from MERA’s coverage because he was not a seasonal employee, having worked on a continuous basis throughout the calendar year in 1986 and during seven months in 1987.

We begin our analysis by turning to the language of § 7-467 (2) and (3). Section 7-467 (2) provides in relevant part: “ ‘Employee’ means any employee of a municipal employer . . . except . . . part-time employees who work less than twenty hours per week on a seasonal basis . . . .” Under § 7-467 (3), “ ‘[s]easonal basis’ means working for a period of not more than one hundred twenty calendar days in any calendar year.” Incorporating the definition of seasonal basis, § 7-467 (2) provides that only those part-time employees who work fewer than twenty hours per week for a period of fewer than 120 days per calendar year are excluded from MERA.

The plain language of the statute compels the following analysis for determining whether an individual meets MERA’s statutory definition of employee. First, we determine whether the individual is employed on a seasonal basis. If we determine that an individual is not a seasonal employee, then the individual is covered by MERA. Coverage is required because MERA excludes only those employees who work less than twenty hours per week for a period of fewer than 120 days per calendar year. Accordingly, one who is employed for a period of more than 120 days per calendar year is covered by MERA regardless of the number of hours worked per week. Only if the employee is seasonal do we need to go further in our analysis by asking whether the employee works fewer than twenty hours per week. Under the second part of our analysis, a seasonal employee who works fewer than twenty hours per week is not covered by MERA. A seasonal employee who works twenty or more hours per week is, however, covered by MERA.

The police department argues that Bracken is a seasonal employee because the 120 day requirement in the definition of seasonal basis is calculated by counting the actual days worked by the employee. The board asserts that the 120 day requirement refers to the interval of time that the individual was employed—that is, the number of days between the initial date of employment and the final date of employment. We agree with the board.

The legislature defined seasonal basis as “working for a period of not more than one hundred twenty calendar days in any calendar year.” (Emphasis added.) General Statutes § 7-467 (3). The word “period” is defined as “a portion of time determined by some recurring phenomenon.” Webster’s Third New International Dictionary. This suggests that the number of days must be calculated in a group or block of days—a period of time. See Krajniak v. Wilson, 157 Conn. 126, 130-31, 249 A.2d 249 (1968). If the legislature had intended to refer to the actual number of days worked, it would not have used the phrase “for a period of.” Instead, the statute would have read “working not more than one hundred twenty calendar days in any calendar year.”

The police department argues, however, that such a test is unworkable because a student who worked several weeks during summer vacation, and a week during school break, would be covered by MERA. The police department’s argument is flawed because this hypothetical student would not have maintained a continuous employer-employee relationship for a period in excess of 120 days. Instead, the student would have been employed during two isolated and discrete time periods, each less than 120 days. Only if the student had maintained a continuous employer-employee relationship in excess of 120 days per calendar year would he or she be covered by MERA.

Although § 7-467 (2) and (3) do not expressly require an employee to demonstrate the existence of a continuous employer-employee relationship, such a requirement is implicit in the statutory scheme. “In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result. ... A statute . . . should not be interpreted to thwart its purpose.” (Citations omitted; internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, supra, 126-27.

A review of the legislative history of § 7-467 supports our conclusion that an employee who maintains a continuous employer-employee relationship for a period in excess of 120 days is not a seasonal employee.* *** The history reveals a liberal intent on the part of the legislature to provide collective bargaining protection to as many part-time employees as possible without unduly burdening municipal employers. Prior to 1983, all part-time employees who worked fewer than twenty hours per week were excluded from the definition of employee. In 1983, however, the definition of employee was expanded to include nonseasonal employees who worked fewer than twenty hours per week, and seasonal employees who worked more than twenty hours per week. Public Acts 1983, No. 83-503.

In its effort to afford greater bargaining rights to part-time employees, however, the legislature did not want to discourage employers from hiring short-term employees. Reflecting this concern, the definition of “seasonal basis” was amended in 1985 to refer to “working for a period of not more than one hundred twenty calendar days in any calendar year.” Public Acts 1985, No. 85-40. As Senator Kenneth T. Hampton noted in his remarks, “this bill . . . encourages municipalities to hire part-time students during the summer months. What we have done is that we’ve increased the time from 66 days to 120 days to allow those students that come from college, probably the middle of May through the middle of September, and they are not under the collective bargaining act.” 28 S. Proc., Pt. 3, 1985 Sess., p. 756, remarks of Senator Kenneth T. Hampton.

It is clear from the legislative history that the legislature sought to strike a balance between giving permanent part-time employees bargaining protection and not discouraging employers from hiring transient part-time help. The police department’s rigid construction, which affords no protection to individuals who are employed continuously throughout the calendar year, but simply work less than 120 days, contravenes the legislative intent to afford bargaining protection whenever reasonably possible.

Applying our analysis to the facts of the present case, we must first determine whether Bracken is a seasonal employee. Because Bracken was employed continuously throughout 1986 and for seven months in 1987, periods in excess of 120 days per calendar year, we concur in the labor board’s conclusion that he was not a seasonal employee. Having determined that Bracken was not a seasonal employee, we need not determine whether he worked twenty or more hours per week. We hold that Bracken must be considered an employee under MERA.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiff’s appeal.

In this opinion the other justices concurred.

       General Statutes § 7-467 et seq. General Statutes § 7-468 (a) provides: “bights of employees and representatives, (a) Employees shall have, and shall be protected in the exercise of, the right of self-organization, to form, join or assist any employee organization, to bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from actual interference, restraint or coercion.”

       After the board determined that Bracken qualified as an employee under General Statutes § 7-467 (2) and (3), it reached the merits of Bracken’s claim and entered an order directing the police department to “cease and desist from discriminating against Michael Bracken because of his union activities” and ordering it to reinstate Bracken as a supernumerary police officer. That order was not challenged before the trial court and is not challenged on appeal.

       General Statutes § 4-183 provides that “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision” may appeal to the Superior Court.

       In its decision, the board concluded that Bracken had worked twenty or more hours per week for twenty-six weeks in 1986 and seventeen weeks in 1987. On appeal, the board admits that it erroneously concluded that Bracken had worked twenty or more hours per week for twenty-six weeks in 1986, instead of seventeen weeks as indicated by the police department and determined by the trial court. The board maintains, and the police department does not dispute, that Bracken worked twenty or more hours per week for seventeen weeks in 1987 as well. They also agree that Bracken worked 105 calendar days in 1986 and ninety-two calendar days in 1987.

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

       “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. General Statutes § 1-1 (a). Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” (Internal quotation marks omitted.) Southington v. State Board of Labor Relations, 210 Conn. 549, 561, 556 A.2d 166 (1989).

       "pp-jjjg fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature.’ ” Warkentin v. Burns, 223 Conn. 14, 20, 610 A.2d 1287 (1992). Surely, when determining this intent we may look to the legislative history. See State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989).

       “All this amendment is stating is that those employees who work less than 20 hours and who are not seasonal . . . could also be granted collecfive bargaining rights. It’s not a guarantee. They would certainly have to go before the board and ask for inclusion, so its not a guarantee, it's not a right. All we’re doing is giving these people their day in court as it were.” 26 H.R. Proc., Pt. 6, 1983 Sess., p. 2255, remarks of Representative William A. Kiner.

       The police department claims that the board expanded the scope of the definition of “employee” under General Statutes § 7-467 (2) and (3) when it included employees who sometimes work twenty hours or more hours per week, even if they do not work twenty or more hours per week during most weeks, or even on average. Because we determine that Bracken was not a seasonal employee, we need not determine whether the labor board properly interpreted the phrase “less than twenty hours per week.”


author: Per Curiam. Berdon, J.,

text:
    Thom Serrani v. Board of Ethics of the City of Stamford
    (14570)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.
    Argued January 5
    decision released April 6, 1993

      James R. Fogarty, with whom was Carolyn W. Alexander, for the appellant (plaintiff).

      Thomas F. Maxwell, Jr., with whom were Laura P. O’Connor and, on the brief, Linda R. Pesce, law student intern, for the appellee (defendant).
   Per Curiam.

The substantive issue in this appeal is whether the expiration of a public employee’s term of office divests a municipal board of ethics of the authority to continue an investigation into alleged official misconduct during the term of public employment. The plaintiff, Thom Serrani, brought an action for declaratory and injunctive relief to prevent the defendant, the board of ethics of the city of Stamford, from exercising continuing jurisdiction to investigate his conduct during his expired term of office as mayor. The trial court, after an evidentiary hearing, denied the plaintiff’s application for a temporary injunction. The plaintiff then moved the court to render judgment in favor of the defendant. Despite the defendant’s objection, the trial court granted the plaintiff’s motion. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). Because we conclude that the trial court did not have jurisdiction to render a judgment on the present record, we reverse and remand the case for further proceedings.

The procedural history of this case is undisputed. As the trial court observed in its memorandum of decision denying the plaintiff’s application for a temporary injunction, the plaintiff’s complaint sought injunctive relief as part of a claim for a declaratory judgment. After the trial court’s denial of the temporary injunction, the plaintiff moved the trial court to render judgment in favor of the defendant. The plaintiff represented to the court that he had no further evidence or argument to offer to advance his claim that § 15 of the Stamford Municipal Code of Ethics is unenforceable in the circumstances of his case. Although the defendant objected, seeking the opportunity to bolster further its arguments to sustain the validity of § 15, the trial court granted the plaintiff’s motion and rendered judgment for the defendant.

A declaratory judgment action was the proper way to raise the plaintiffs challenge to the validity of § 15 of the Stamford Municipal Code of Ethics, which purports to authorize the defendant, upon an affirmative vote, to exercise continued jurisdiction over officials after they have left municipal office. See Bombero v. Planning & Zoning Commission, 218 Conn. 737, 742-43, 591 A.2d 390 (1991). The jurisdiction of the trial court over declaratory judgment actions depends upon compliance with the notice requirement of Practice Book § 390 (d). That section provides in relevant part: “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint . . . have reasonable notice thereof.” Failure to comply with § 390 (d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment. See, e.g., Connecticut Ins. Guaranty Assn. v. Raymark Corporation, 215 Conn. 224, 229, 575 A.2d 693 (1990); Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 (1966). “[JJurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. . . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon.” (Internal quotation marks omitted.) In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992); Practice Book §§ 143, 145.

Because neither the Supreme Court record nor the trial court file disclosed compliance with § 390 (d), this court asked the parties for clarification. Without conceding the existence of any jurisdictional difficulty, the plaintiff offered to effect a cure by withdrawing his second request for declaratory relief, thereby purporting to limit his claim to one directly addressing only his own right to relief from the defendant’s continued exercise of investigatory authority after his departure from mayoral office.

We need not decide whether a partial withdrawal of the plaintiff’s complaint, if it had predated the purported rendering of a final judgment in this case, would have allowed him to bypass the notice requirements for a declaratory judgment. The lack of subject matter jurisdiction to render a final judgment cannot be cured retrospectively. Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985). The judgment presently on appeal must, therefore, be set aside.

Our conclusion that the trial court lacked subject matter jurisdiction to render its declaratory judgment does not, however, require a dismissal of the plaintiffs action on remand. A jurisdictional defect relating to notice can be remedied in any of the ways noted in Connecticut Ins. Guaranty Assn. v. Raymark Corporation, supra, 230. Notably, the plaintiff may ask for an order of notice in order to comply with the procedural requirements of the Practice Book with respect to individuals whose identity might otherwise be difficult to ascertain. Once there has been compliance with § 390 (d), the trial court will have plenary authority to render whatever judgment it then deems appropriate. Id.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

Berdon, J.,

dissenting. The majority remands this case to the trial court on the basis of a hypertechnical application of our subject matter jurisdiction.

The issue that both parties urge us to decide today is a pure question of law—that is, whether the defendant board of ethics of the city of Stamford retains jurisdiction to investigate alleged official misconduct after the official in question has left municipal office. The underlying controversy dates back to 1990, when the board of ethics began holding informal hearings to determine whether there was probable cause to believe that the plaintiff, Thom Serrani, then mayor of Stamford, had violated.the city’s code of ethics by purchasing equipment through bid waiver rather than public bids.

I believe that Serrani, the board of ethics and, most importantly, the people of Stamford are entitled to an expeditious determination of whether the board continues to have jurisdiction to investigate the former mayor. The majority refuses to make this determination. Instead, they insist upon pursuing the jurisdictional question, even though both parties urge us to reach the merits and there is no factual basis for concluding that there was insufficient notice for the declaratory judgment.

First, let me indicate those matters upon which the majority and I agree. It is true that “unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof”; Practice Book § 390 (d); the court does not have subject matter jurisdiction. E.g., Connecticut Ins. Guaranty Assn. v. Raymark Corporation, 215 Conn. 224, 229, 575 A.2d 693 (1990). Subject matter jurisdiction cannot be waived. E.g., Practice Book § 145; In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992). Lack of subject matter jurisdiction can be raised on appeal for the first time by the parties or the court. Lo Sacco v. Young, 210 Conn. 503, 508, 555 A.2d 986 (1989).

In this case, the court raised the issue on its own. The plaintiff responded that notice was given by serving the complaint on the only two nonparties who might be affected even indirectly, namely, the city of Stamford and Thomas Canino. The defendant does not contest this. What more does the court require? The majority does not identify anyone who has not been, but should have been made a party or given notice. Clearly, unless it is patently deficient, we should rely upon the adversary system for the predicate facts, even where subject matter jurisdiction is concerned.

Although notice to persons or entities who might be affected by a judgment is important for due process reasons, there are practical limitations dictated by reasonableness. “In any common law system of adjudication, rules of general application are established through litigation between private parties. Should due process require those parties to give notice to the world that they are in litigation over an important legal issue or lose the right to bring their dispute to court, the judicial process would be burdened with a requirement which may be costly, heretofore unnecessary, and in some cases impossible to fulfill.” 2 E. Stephenson, Connecticut Civil Procedure (C. Tait, J. Daly & P. Adomeit, Sup. 1976) p. 74.

In the past, this court has been inconsistent in its holdings on declaratory judgment jurisdiction. For example, in State ex rel. Kelman v. Schaffer, 161 Conn. 522, 522-23, 290 A.2d 327 (1971), the plaintiffs sought a declaratory judgment that a statute prohibiting citizens under age twenty-one from holding municipal office was unconstitutional. The trial court rendered a declaratory judgment upholding the statute’s validity. Id., 524. Upon finding that the plaintiffs had failed to comply with the notice requirement for declaratory judgment jurisdiction, this court remanded the case to the trial court with direction to dismiss the declaratory judgment claim. Id., 529, 531. In contrast, in Knights of Columbus Council No. 3884 v. Mulcahy, 154 Conn. 583, 586, 227 A.2d 413 (1967) (appeal of a declaratory judgment that a statute prohibited bingo on Sunday and was constitutional), this court proceeded to the merits even though the record failed to disclose whether interested parties existed who might be affected by the judgment. In Knights of Columbus Council No. 3884, this court merely noted the jurisdictional problem and held that “any declaratory judgment rendered in this case must be limited solely to the effect of the statute on the activity conducted by the plaintiff.” Id.

It has been suggested by legal scholars that these inconsistencies result from an unrealistically broad definition of interested parties. “[A]n analysis of what the Connecticut Supreme Court is in fact doing reveals that in some cases, notice requirements of utmost strictness are imposed and enforced with rigor; and in other cases, they are not imposed, or even mentioned, with no explanation for the difference in treatment. We believe that the cause of the problem is in the court’s expanded definition of what constitutes an interested person. The Court could eliminate the difference between the theory and the practice by relaxing the definition of interested persons, to include only those directly and immediately affected by the operation of the judgment in the individual case.” 2 E. Stephenson, supra, pp. 75-76.

Nevertheless, the parties argue that if this court is not satisfied that the appropriate notice has been given, the plaintiff should be allowed to withdraw the declaratory judgment claim. This would leave the final judgment on the permanent injunction, over which we clearly have jurisdiction. The majority, however, rejects this approach.

To justify this rejection, the majority first indicates that the claim for a permanent injunction was merely collateral to the claim for a declaratory judgment. I do not read the prayer for relief in that manner, nor does either party advocate such a reading.

The majority next indicates that the issue in this appeal is properly raised through an action for declaratory judgment, suggesting that this is the exclusive manner of raising it. Although a declaratory judgment action is appropriately employed to construe an ordinance; e.g., West Haven v. Impact, 174 Conn. 160, 384 A.2d 353 (1978); or to determine the constitutionality of an ordinance; e.g., Horwitz v. Waterford, 151 Conn. 320, 197 A.2d 636 (1964); the parties are not precluded from raising such an issue by means of an action for an injunction. E.g., Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 524 A.2d 621 (1987) (action to enjoin the town from enforcing an ordinance).

Accordingly, I would hold that we have subject matter jurisdiction because those persons or entities who will be directly and immediately affected have either been made parties or been given notice. In the alternative, I would allow the plaintiff to withdraw his claim for a declaratory judgment and thereupon decide the matter on the claim for a permanent injunction. In either case, we should reach the merits of the issue presented to us by the parties in deference to the public interest and the substantial legal costs incurred by the parties.

Accordingly, I dissent.

       The plaintiff’s substitute request for relief expressly seeks a declaratory judgment. It requests: “1. A declaratory judgment determining that the Defendant lacks jurisdiction over the Plaintiff;
      “2. A declaratory judgment determining that § 15 of the Code of Ethics of the City of Stamford is illegal to the extent that it purports to authorize the Defendant’s continued jurisdiction over former employees or officers of the City of Stamford;
      “3. A declaratory judgment declaring null and void the action of the Defendant taken on February 29,1992, purporting to continue jurisdiction over the Plaintiff;
      “4. A declaratory judgment declaring null and void any and all action of the Defendant taken subsequent to February 29, 1992, purporting to render a decision and/or finding of facts regarding the Plaintiff;
      “5. A temporary and permanent injunction enjoining the Defendant and its members, agents and employees from exercising or purporting to exercise jurisdiction over the Plaintiff;
      “6. Such other and further relief in law or equity as the Court deems appropriate.”

       Section 15 of the Stamford Municipal Code of Ethics, Stamford Code of Ordinances No. 640 Sup. (1989), provides: “JURISDICTION If an officer or employee under investigation leaves office, or employment, the Board by a majority vote shall have the power to continue the investigation.”
      On February 29, 1992, the defendant voted, by the requisite majority, to continue investigation of the official conduct of the plaintiff after the expiration of his term as mayor.

       The plaintiff filed the motion for judgment on April 13,1992. Also on that day, he filed an amended complaint containing a substitute request for relief in response to the defendant’s April 10, 1992 request to revise the plaintiff’s complaint. The plaintiff also filed an application to the chief justice for certification to appeal pursuant to General Statutes § 52-265a, which was denied by Associate Justice David M. Shea on April 14, 1992.
      On April 22,1992, when the motion for judgment was granted, the defendant had not yet filed an answer to the complaint. The pleadings were, therefore, not closed. In response to an inquiry by this court about the jurisdictional consequences of the fact that the pleadings had not been closed; see Pendiman Corporation v. White Oak Corporation, 195 Conn. 393, 397-98, 488 A.2d 449 (1985); Doublewal Corporation v. Toffolon, 195 Conn. 384, 391-92, 488 A.2d 444 (1985); the defendant at oral argument waived its objection to appellate consideration of the merits of the plaintiff’s substantive claim. We need not, in this case, decide the effectiveness of such a waiver.

       See footnote 1.

       Our decision in Connecticut Ins. Guaranty Assn. v. Raymark Corporation, 215 Conn. 224, 230, 575 A.2d 693 (1990), that a trial court may entertain procedural efforts to cure a jurisdictional defect with regard to the giving of notice under Practice Book § 390 finds support in the language of the Practice Book provision. Section 390 explicitly states that the “court will not render declaratory judgments upon the complaint of any person . . . unless all persons having interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” (Emphasis added.) Unlike other jurisdictional defects implicating the trial court’s subject matter jurisdiction, therefore, the bringing of a declaratory judgment action is not itself precluded by a failure to comply with the notice requirement. To the extent that State ex rel. Kelman v. Schaffer, 161 Conn. 522, 528, 531, 290 A.2d 327 (1971), is to the contrary, it is overruled.

       Presumably the trial court will also ascertain that the pleadings have been closed. See footnote 3.

       Canino is another former employee of the city of Stamford against whom charges were pending before the board of ethics.

       Although I do not agree with the majority, I must concede that they take a more sensible route by ordering a remand for further proceedings rather than dismissing the action. Indeed, I applaud footnote 5 of the majority opinion, which finally puts to rest the anachronistic decision in State ex rel. Kelman v. Schaffer, 161 Conn. 522, 528, 531, 290 A.2d 327 (1971). Nevertheless, even if there was a notice problem (and I do not agree that there is in this case), I would merely inquire of the trial court whether a finding could be made that notice has been satisfied. If so, I would go on to decide the merits of the case.

       See footnote 1 of the majority opinion.