source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Thomas E. Marra, Jr.
    (13965)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.

      Argued February 18
    decision released June 1, 1992

      Susan M. Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Callahan, J.

This appeal concerns several issues arising out of the criminal trial of the defendant, Thomas E. Marra, Jr. The state charged the defendant with the crime of murder in violation of General Statutes § 53a-54a (a) in connection with the death of Alex Palmieri on February 6, 1984. Following the defendant’s conviction, the court sentenced him to a term of sixty years imprisonment. He appealed to this court under General Statutes § 51-199 (b) (3). We affirm the judgment.

The jury could reasonably have found the following facts principally from the testimony of Nicholas Byers and Frank Spetrino, associates of the defendant. On February 6,1984, the defendant asked Byers to drive the fifteen year old victim, another associate of the defendant, to the defendant’s house later that day. At the same time, the defendant asked Spetrino if he would help him put the victim in a barrel. That evening, Byers drove the victim, Spetrino and Tamara Thiel, the victim’s girlfriend, to the defendant’s house. The defendant, the victim, Byers and Spetrino entered the defendant’s garage, while Thiel remained in the car.

In the garage, the defendant and the victim argued about the defendant’s desire that the victim leave Connecticut and reside for a time in Italy, and the victim’s refusal to do so. When the matter was not resolved to the defendant’s satisfaction, he handed Spetrino an aluminum baseball bat and told Spetrino not to let the victim leave the garage. Thereafter, as the group began to exit the garage, Spetrino struck the victim in the head with the bat. After Spetrino had hit the victim from one to three times, the defendant said, “Let’s get him in the refrigerator.” Spetrino then began to drag the victim toward a refrigerator that was located inside the defendant’s garage. As he was being dragged, the victim began to speak incoherently, and the defendant said, “Shut up Alex. You didn’t go to Italy.” When the victim failed to quiet down, the defendant struck him on the head with the bat numerous times. The additional blows made the victim bleed heavily and caused some of his brain tissue to protrude from his skull. The defendant, Byers and Spetrino then placed the victim into a large refrigerator, and the defendant closed and padlocked the door. The men then loaded the refrigerator into the back of a rented van, and the defendant and Spetrino drove the van to a parking area near the Pequonnock River, where the river empties into the harbor in downtown Bridgeport. After making several holes in the refrigerator with an axe so that it would sink, the defendant and Spetrino slid the refrigerator into the water and it floated away. Although a police dive team searched the harbor for the victim’s body and the refrigerator for a period of five months, the divers could locate neither. The victim has not been seen or heard from by his family or friends since February 6, 1984.

On appeal, the defendant claims that: (1) the trial court lacked personal jurisdiction to try him because the state offered insufficient evidence at his probable cause hearing; (2) the trial court improperly admitted testimony regarding certain items of physical evidence that the state had lost; (3) the trial comí improperly admitted irrelevant evidence of a sneaker, sock and two foot bones; (4) the trial court improperly charged the jury regarding the testimony of accomplices; (5) the trial court improperly broadened the charging document; (6) portions of the state’s closing argument constituted impermissible comment upon the defendant’s right to remain silent; (7) the trial court gave improper preliminary instructions to the jury regarding proof beyond a reasonable doubt; and (8) the trial court improperly marshalled the evidence in favor of the state.

I

The defendant first claims that the evidence submitted at his probable cause hearing was insufficient to establish that the victim had died. He asserts, therefore, that the trial court was without personal jurisdiction to try him for the offense of murder. We disagree.

Because the defendant was charged with the crime of murder in violation of § 53a-54a, he was entitled to a probable cause hearing pursuant to article first, § 8, as amended, of the Connecticut constitution and General Statutes § 54-46a, and, on April 23, 1987, such a hearing was held. At the hearing, the state presented three witnesses: Byers, Thomas J. Scanlon, a Bridgeport police officer, and Theresa Palmieri, the victim’s stepmother.

Byers offered the following testimony. In 1984, at the defendant’s request, he drove the victim and Spetrino to the defendant’s house. Upon their arrival at the defendant’s house, Byers, Spetrino, the victim and the defendant entered the defendant’s garage. While inside the garage, the defendant handed Spetrino an aluminum baseball bat. As he did so, the defendant whispered to Spetrino something to the effect of “don’t let [the victim] get out of here.” As the victim began to leave the garage, the defendant said, “Okay, let’s go,” and Spetrino struck the victim in the side of the head with the baseball bat. After being struck once with the bat, the victim fell to the floor where Spetrino hit him “a couple” more times. Although the victim remained conscious, Spetrino and the defendant dragged him toward a used refrigerator that was stored in the garage. As they dragged the victim, the victim began to yell, and the defendant then struck him on the head with the bat fifteen to twenty times. As the defendant was striking the victim in the head, the victim’s “brains were spilling out.” When the defendant ceased striking the victim, the victim was placed into the refrigerator, and the defendant closed and padlocked it. The locked refrigerator containing the grievously injured victim was then placed into a van that the defendant drove away from his house. Byers testified that the victim did not lose consciousness at any time while he was being assaulted and that, even after he was placed into the refrigerator, he continued to mumble incoherently. Two days after the incident in the garage, the defendant told Byers that, if he talked, there was a “drum big enough for [him].”

Scanlon stated that he had participated in a search of the defendant’s garage on October 7,1985. He testified that sixteen soil and wood samples had been removed from the garage and sent to the state forensic laboratory. The forensic laboratory reported that some of the samples taken from the garage contained human blood. Scanlon also testified that he had determined that the defendant had rented a van on February 6,1984, and had returned it on February 7,1984.

Theresa Palmieri testified that in February, 1984, the victim was fifteen years old. She also stated that prior to the first week in February, 1984, the victim had lived with her and her husband, the victim’s father, on a continual basis. She testified that she had not seen her stepson since the first week of February, 1984, and she knew of no other person who had had any contact with her stepson from that time forward. Byers, too, testified that, following the assault in the defendant’s garage, he had never seen the victim again.

At the conclusion of the probable cause hearing, the trial court, Reilly, J., found that there was probable cause to try the defendant for the crime of murder. Prior to trial, the defendant asserted that the trial court was without jurisdiction to try him for murder because the evidence elicited at the probable cause hearing was insufficient to prove that the victim was dead. After reviewing the transcript of the probable cause hearing, the trial court, S. Freedman, </., stated that it found the evidence offered sufficient to establish probable cause.

“Article first, § 8, of the Connecticut constitution, as amended, provides in part that ‘[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law.’ ” State v. Boyd, 214 Conn. 132, 135, 570 A.2d 1125 (1990). In making a finding of probable cause, the trial court must determine whether the evidence offered would warrant a person of reasonable caution to believe that the accused had committed the charged offense. In re Keijam T., 221 Conn. 109, 115, 602 A.2d 967 (1992); State v. Mitchell, 200 Conn. 323, 336, 512 A.2d 140 (1986). “ 'The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear [t]hat there is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. . . .’ ” (Citations omitted.) In re Keijam T., supra, 115-16. We have held, however, that where the evidence offered at a probable cause hearing is insufficient to establish probable cause, the trial court lacks jurisdiction over the defendant’s person. State v. McPhail, 213 Conn. 161, 170, 567 A.2d 812 (1989); State v. Mitchell, supra, 331.

We conclude that the trial court had jurisdiction to try the defendant because the evidence offered at the probable cause hearing would have warranted a person of reasonable caution to find that the victim died as a result of the injuries intentionally inflicted upon him by the defendant. Although there was no direct evidence that the victim had died as a result of his injuries, a reasonably cautious person could have drawn that inference. It was clear that the victim had been grievously injured by the defendant. The blows to the victim’s head had been so forceful and numerous as to break open his skull causing his brains to “spill out.” Although he was obviously in grave condition, he was placed into a locked refrigerator and driven away in the back of a van, events hardly conducive to his speedy recovery. Moreover, neither Byers nor the victim’s parents ever saw him again. Although the victim might have been conscious or semi-conscious when Byers last saw him, given all of the circumstances, a reasonably cautious person could properly have concluded that the victim had died as a result of the defendant’s actions.

II

The defendant next claims that the trial court improperly admitted testimony concerning sixteen bloodstained soil and wood samples that had been removed from the defendant’s garage and had been later lost by the state. He asserts that the admission of that testimony deprived him of his right to a fair trial. We are not persuaded.

At a hearing on the defendant’s motion to suppress the evidence, Scanlon testified that he had assisted members of the state forensic laboratory in conducting a search of the defendant’s garage on October 7, 1985. Scanlon stated that, as a result of the search, he and the state forensic personnel had packaged sixteen soil and wood samples, had removed them from the garage and had forwarded the samples to the state forensic laboratory. Immediately following the search, Scanlon completed a diagram that indicated the specific locations within the garage from which each sample had been taken. William Hughes, an inspector with the Bridgeport state’s attorney’s office, testified that he had delivered the evidence to the state forensic laboratory. Elaine Pagliaro, a supervisor at the state forensic laboratory, testified that, beginning on October 21,1985, she had conducted tests for the presence of blood on each of the sixteen samples that had been taken from the defendant’s garage. Pagliaro further testified that she had determined that human blood had been present on seven of the samples, animal blood had been present on one of the samples, and blood from an unknown source had been present on the remaining eight samples. On June 10,1986, James Giammattei, another inspector, had transported the evidence from the forensic laboratory to the state’s attorney’s office.

On April 23,1987, at the defendant’s probable cause hearing and in the presence of the defendant and his attorney, Scanlon stated that the sixteen samples had been removed from the defendant’s garage by himself and personnel from the state forensic laboratory. Scanlon further testified that the forensic laboratory had tested the samples, and the forensic laboratory’s report was marked for identification purposes. On May 31, 1989, the results of Pagliaro’s tests were formally revealed to the defense in response to a motion for disclosure. Thereafter, on January 3, 1990, the state became aware that it could not locate the evidence and promptly reported its loss to the court and the defendant. Despite his knowledge, prior to January 3,1990, of the existence of the test results, the defendant had not earlier requested to view or test the soil and wood samples.

At trial, the defendant moved to suppress all testimony regarding the lost evidence, and a suppression hearing was held. The defendant argued that the state’s loss of the evidence prejudiced him because his own experts were unable to test the evidence. Following argument by the defendant and the state, the trial court ruled that it would admit the evidence, but would allow the defendant great latitude in cross-examination and would deliver an adverse inference instruction to the jury. Thereafter, over the defendant’s objection, the state presented testimony regarding the blood found in the soil and wood samples. At the close of the trial, the court instructed the jury that, if the state did not produce evidence that it would ordinarily be expected to produce, the jury could infer that the evidence was unfavorable to the state.

“ ‘ “[T]he requirements of due process are met in the trial of a person accused of crime if he has been given the benefit of a fair and impartial trial in accordance with the settled course of judicial proceedings in this state.”. . .’ ” (Citation omitted.) State v. McIver, 201 Conn. 559, 565, 518 A.2d 1368 (1986). Whether the defendant was deprived of a fair trial by the admission of testimony concerning the lost soil and wood samples depends upon “ ‘the reason for the unavailability of the evidence, the materiality of the evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, and the prejudice to the defendant caused by the unavailability of the evidence.’ ” State v. Boucino, 199 Conn. 207, 229, 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982).

In the particular circumstances of this case, we conclude that the admission of testimony regarding the lost evidence did not deprive the defendant of his right to due process. First, the trial court found, and the defendant has not claimed otherwise, that the state had not acted maliciously or in bad faith in losing the evidence. State v. McIver, supra; State v. Boucino, supra; State v. Hamele, supra, 382. Second, although, as in State v. Hamele, supra, it is possible that an examination of the samples by a defense expert might have revealed, contrary to the opinion of the supervisor of the state forensic laboratory, that: (l)no human blood was present in the samples; or (2) any human blood that was present was not the blood of the victim, and although either conclusion would have benefited the defendant, he “failed to seek an independent testing of the evidence while it was available or in a timely fashion, and suggested the possibility of such testing only after he learned that the evidence had been destroyed.” State v. Hamele, supra. Third, although it is possible that the state’s tests were inaccurate, there was no evidence of any error in the state’s procedures. Furthermore, as the trial court noted, Pagliaro made detailed notes of her tests, taking great care to distinguish her results regarding each of the sixteen samples. Finally, the defendant was given full opportunity to cross-examine the state’s witnesses regarding both the testing and the loss of the evidence; State v. Boucino, supra; and the trial court informed the jury that it could infer that the lost evidence was unfavorable to the state. State v. Hamele, supra. Accordingly, we conclude that the state’s loss of this evidence did not deprive the defendant of his right to due process.

Ill

The defendant also claims that the trial court improperly admitted into evidence a sneaker, a sock and two human foot bones. The defendant asserts that this evidence should have been barred because it was irrelevant and more prejudicial than it was probative. We disagree.

Spetrino testified at trial that, following the assault on the victim, the defendant drove the victim, locked inside the refrigerator, to a location in downtown Bridgeport on a bank of the Pequonnock River where the river empties into Long Island Sound. Spetrino stated that, after he and the defendant had made several holes in the refrigerator so that it would sink, they had slid it out of the van and into the river. Spetrino stated that he had watched the refrigerator for a short time and he had noticed that it did not sink, but rather floated on the water.

Although the victim’s body was never discovered, on June 20, 1986, Lillian Somohano, while walking on a sandbar near Seaside Park in Bridgeport, about two nautical miles from the area where the victim had been placed in the water, discovered a sneaker and sock containing what appeared to be part of a human foot. She telephoned the police to inform them of her discovery. The sneaker was a white, size ten, Pro Champs brand with a high top that could be zipped off to convert the sneaker from a high top to a low sneaker. Additionally, there was a velcro strap around the top of the sneaker. William C. Rodriquez III, a forensic anthropologist, testified that the sneaker and sock contained two human bones and a quantity of human tissue. Rodriquez testified that the bones were the left heel bone and left toe bone of a Caucasian male between the ages of fourteen and fifty years. Rodriquez noted that there were barnacles on the sneaker, and that the decomposition of the tissue was consistent with its having been in the water for an extended period of time.

Evidence was offered as to the type of footwear that the victim had been wearing when he was assaulted by the defendant. At trial, Thiel testified that on February 6,1984, when the victim had entered the defendant’s garage, he had been wearing white, high top sneakers that had a zipper so that the top could be zipped off to convert the sneakers from high to low style. When Thiel was shown the picture of the sneaker that Somohano had discovered, she stated that “those are the sneakers that Alex has.” She stated that she recognized the sneakers based upon the zipper, the Pro Champs insignia, the designs on it and the style. Thiel testified that she would “bet [her] life” that Alex had been wearing Pro Champs of that type on the night he was last seen. Byers also testified that when the victim had been assaulted, he had been wearing white, high top sneakers with a velcro band. Spetrino testified that he recalled that the victim had been wearing red and white sneakers with a zipper on the back so that they could be worn as high or low tops. At first, Spetrino stated that he was fairly certain that the victim had been wearing Nike sneakers, but when he was shown a photograph of the sneaker that Somohano had discovered, Spetrino testified that it “looks like the sneaker Alex was wearing.” He testified that the sneaker that Somohano had discovered was the same style and had the same removable high top as the sneaker the victim had been wearing.

At trial, the defendant filed a motion in limine asking that the issue of the admissibility of the sneaker, sock and foot bones be heard before any attempt to introduce them into evidence. When the state moved to make the items full exhibits, the defendant objected, arguing that they had not been sufficiently linked to the victim to be relevant to the case. The trial court stated that the state had not proved conclusively that the sneaker, sock and bones were those of the victim, but it found that, in conjunction with the other evidence in the case, this evidence tended to support the state’s allegation that the victim was dead. The trial court ruled that the sneaker, sock and bones were admissible and that the weight to be given the evidence should be determined by the jury. The defendant took exception.

The defendant claims on appeal that the sneaker, sock and bones should not have been admitted because they were irrelevant. Specifically, the defendant asserts that: (1) the time and location of the discovery of the items were too remote from the time and place of the disposal of the victim to be relevant; (2) there was conflicting testimony regarding the style of sneaker that the victim was last wearing; (3) the size of the discovered sneaker was inconsistent with testimony concerning the victim’s shoe size; and (4) there was no scientific testimony offered regarding blood type or DNA structure of the bones or tissue. We conclude that the trial court properly determined that the evidence was sufficiently relevant to be admissible.

It is axiomatic that, in order to be admissible, evidence must be relevant to an issue in the case in which it is offered. “Evidence need not be conclusive to be relevant . . . and [t]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” (Internal quotation marks omitted.) State v. Joly, 219 Conn. 234, 252, 593 A.2d 96 (1991). Evidence is relevant if it “has a logical tendency to aid the trier in the determination of an issue. State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986).” State v. Jeffrey, 220 Conn. 698, 704, 601 A.2d 993 (1991). We have also held that “evidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991); State v. Jeffrey, supra, 706.

In the instant case, the state had the burden of proving beyond a reasonable doubt that the victim was dead. To that end, it offered the testimony of Byers and Spetrino who indicated that the victim had been severely beaten by the defendant, locked inside a refrigerator and dumped into the water. Although both men testified that the victim had been grievously injured, neither could conclusively state that the victim had actually expired prior to being placed in the water. The sneaker, sock and bones were obviously offered to attempt to establish that the victim was in fact dead.

Although the evidence could not be conclusively linked to the victim, we conclude that it tended to support the state’s contention that the victim had indeed died as a result of the defendant’s actions. It would certainly have been reasonable for the jury to infer that the person to whom the sneaker, sock and bones had once belonged was dead. The defendant argues, however, that it could not reasonably be inferred that the dead person was the victim in this case. The testimony of Byers, Spetrino and Thiel, however, if credited, could have established that the sneaker that was admitted into evidence was identical to the sneaker that the victim was wearing when he was assaulted and put into the refrigerator. Further, the victim’s body had been placed into the water at a point from which the river flows in the direction of the sandbar where the sneaker was discovered two nautical miles away. Additionally, Rodriquez, a forensic expert, testified that the bones and tissue were those of a caucasoid male between the ages of fourteen and fifty, and that their condition was consistent with having been immersed in water for an extended period of time. Although there were inconsistencies in the testimony regarding the brand and size of the sneakers that the victim was wearing, those discrepancies affect the weight of the evidence and not its admissibility. Tuccio v. Zehrung, 172 Conn. 350, 354, 374 A.2d 1044 (1977). Similarly, the remoteness in the time and place of the discovery of the sneaker, sock and bones are issues that go to the weight to be accorded the evidence and not its admissibility. Finally, although the bones were not conclusively linked to the victim through blood or DNA testing procedures, we have never required the introduction of conclusive scientific proof to establish relevancy. See State v. Piskorski, 177 Conn. 677, 696, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Accordingly, we conclude that the evidence was relevant because it had a tendency to prove that the victim was dead, an essential element of the state’s case.

IV

The defendant next asserts that the trial court’s instruction regarding accomplice testimony improperly bolstered the testimony of Byers and Spetrino and that the instruction amounted to plain error. We do not agree.

At trial, both Byers and Spetrino testified that they had been present when the defendant had murdered the victim, and that they had assisted the defendant in committing the murder. Both witnesses revealed that their testimony had been provided pursuant to agreements with the state. Byers stated that he had initially spoken to the police because he had been told that he would be charged with the murder and that he would go to jail for forty years. He declared that he was testifying pursuant to his understanding that, if he was truthful, he would not be prosecuted for his involvement in the victim’s death. Spetrino testified that before he had provided any information to the police, he had the “feeling” that he could be charged as a result of his involvement in the victim’s death. Spetrino further stated that his testimony also had been given as a result of an agreement with the state. He said that he had been assured that if he told the truth and if he had not actually committed the murder, he would not be charged regarding the victim’s death, and that the state would also assist him in resolving several unrelated cases pending against him.

Prior to deliberations, the trial court explicitly informed the jury that the credibility of witnesses and the weight to be given their testimony was within its province. The jury was also instructed that it could credit all or any portion of a witness’ testimony, and that it should keep in mind all the circumstances of the witness’ testimony, including any possible bias or prejudice of the witness.

Specifically regarding the weight to be given to accomplice testimony, the trial court instructed as follows. “Certain of the witnesses, Nickie Byers and Frank Spetrino by their own testimony, participated in the criminal conduct charged by the State in this case and they are what the law calls accomplices. In weighing the testimony of an accomplice who was a self-confessed criminal, you should consider that fact. All odds being equal, it may be that you would not believe a person who has committed a crime such as this involving moral wrong as readily as you would believe a person of good character. The amount of moral wrong involved in the participation of the witness in the crime should be weighed. Also in weighing the testimony of an accomplice who has not yet been sentenced or his case has not yet been disposed of or who has not been charged with offenses in which the State has evidence, you should keep in mind that he may in his own mind be looking for or hoping for some favorable treatment in the sentence or disposition of his own case or not being arrested. And therefore, he may have such an interest in the outcome of this case that his testimony may [have] been colored by that fact. Therefore, the jury must look with particular care at the testimony of an accomplice and scrutinize it very carefully before you accept it.

“Ladies and gentlemen, on the other hand, there are many offenses that are of such a character that the only persons capable of giving useful testimony are those who are themselves implicated in the crime. Each accomplice’s testimony is an admission by him against his own natural interest in not incriminating himself. And therefore, it may itself be evidence of his testimony’s reliability. It is for you to decide what credibility you will give to a witness who has admitted his involvement and criminal wrong doing, whether you will believe or disbelieve the testimony of a person who by his own admission has committed or contributed to the crime charged by the State here. Like all other questions of credibility, this is a question you must decide based on all the evidence presented to you.”

The defendant now claims that the portion of the instruction indicating that the jury might find that it was against the interests of an accomplice to testify, unfairly bolstered the testimony of Byers and Spetrino because it was clearly in their interests in this case to inculpate the defendant. The defendant concedes that this claim was not preserved at trial, and he now seeks plain error review. Practice Book § 4185.

Plain error review “ ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).” State v. Jeffrey, supra, 710-11. “ ‘The conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he [or she] testifies. When those conditions exist, it is the duty of the judge to specially caution the jury . . . .’ State v. Carey, [76 Conn. 342, 349, 56 A. 632 (1904)].” State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982). “In reviewing a challenge to a portion of the jury instructions, the proper test is ‘whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.’ State v. Estep, [186 Conn. 648, 652, 443 A.2d 483 (1982)].” State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985).

An examination of the totality of the trial court’s instructions reveals that the charge extensively cautioned the jurors to consider the potential motivations and biases of accomplice witnesses. In its charge the court explicitly cautioned the jury that the testimony of the accomplice witnesses may have been colored by their potentially compelling interests in seeking favorable treatment for themselves from the state. Although the challenged portion of the trial court’s accomplice instructions may have been inappropriate under the circumstances of this case, we conclude that it did not so dilute the overall instructions so as to result in any injustice to the defendant and did not constitute plain error.

V

The defendant next claims that the trial court improperly permitted the jury to find that he had caused the victim’s death in a manner that was not charged in the information. As a result, he argues that the trial court enlarged the offense specified in the information in violation of his constitutional right to be informed of the charges against him under the sixth amendment to the federal constitution and article first, § 8 of the constitution of Connecticut. We find no constitutional violation.

The information alleged, in relevant part, that the defendant “did assault with a baseball bat, and cause the death of the said Alex Palmieri.” The trial court’s instructions, however, could reasonably have allowed the jury to find that the defendant caused the victim’s death by assaulting him with a bat and by placing the injured victim into the water while locked inside a refrigerator.

Because the defendant asserts that the trial court’s instruction violated his constitutional rights, he requests review under State v. Golding, 213 Conn. 233, 239-41, 567 A.2d 823 (1989). In order to prevail on appeal under Golding, “the defendant must meet all of the following conditions: ‘(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.’ State v. Golding, supra, 239-40.” State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992). “We have also held that we remain free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) Id.

“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .’’(Internal quotation marks omitted.) State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987); State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979).

The two ways of causing the death of the victim in this case, either by striking him in the head with a bat or by placing him in the water in a locked refrigerator, would simply constitute two methods of committing the same crime, i.e., the victim’s murder. The defendant’s conviction under either scenario would consequently bar a subsequent prosecution for that crime. State v. Scognamiglio, supra, 22. Because the defendant’s conviction is sufficient to bar reprosecution, to establish an infringement of his right to be informed of the nature and cause of the accusations against him, he must demonstrate that the trial court’s instructions caused him prejudicial surprise or detrimentally affected the presentation of his defense. State v. Franko, supra, 490.

We conclude that the defendant was not prejudiced by the trial court’s instruction. The record is devoid of anything to indicate that the defendant would have altered his defense in any way had the information specifically provided that the victim’s death was caused by assaulting him with a baseball bat and by placing him in the water in a locked refrigerator. At trial, the defendant primarily challenged the state’s allegation that he had been involved at all in killing the victim, and he did not challenge the state’s allegations regarding the manner in which the victim’s death was caused. In large part, the defense focused on discrediting the testimony of the state’s chief witnesses, Byers and Spetrino, who purported to be the only eye witnesses to the killing. The defendant raised questions about their biases and their abilities accurately to recall events by offering evidence that they had secured immunity from the state and that they both had significant histories of drug and alcohol abuse. In his closing argument, the defendant vigorously contended that the testimony of Byers and Spetrino constituted the heart of the state’s case and that it was not credible.

In addition to his attack upon the reliability of Byers’ and Spetrino’s testimony, the defendant further argued that the state had not proved beyond a reasonable doubt that the victim had been killed. He asserted that the victim’s body had never been located, and that the state had offered scant physical evidence of the victim’s death. He attacked the probative value of the sneaker and foot bones discovered on the sandbar, arguing that they could not rationally be connected to the victim. Further, the defendant argued that the blood located on the floor of his garage was not linked to the victim, and that the location and quantity of that blood was inconsistent with the state’s theory of the'case.

Contrary to the state’s theory that the victim had been killed, the defendant offered evidence to indicate that the victim was not, in fact, dead, but had left the country. Evidence was offered to indicate that the victim had possessed a passport, had relatives in Argentina and had packed his bags prior to his disappearance. Further evidence was offered that the victim was alive on February 11,1986, five days after his alleged death, and that he had been present at a travel agency and had exchanged airline tickets on that date. In his closing argument, the defendant suggested that the jury could more reasonably find that the victim had traveled to Argentina, rather than that he had been killed by the defendant.

Further, the defendant offered evidence specifically challenging the state’s theory that the victim had been placed into a refrigerator and then into the harbor. The only witnesses called to testify for the defense were Ralph Sperrazza, Jr., Dusdavo A. Lopez and Robert P. Valenti, each of whom offered evidence tending to counter the state’s theory that the victim had been placed in a refrigerator. Sperrazza testified that he had purchased the defendant’s home in January, 1986, and that there had been a freezer in the basement of the home. Sperrazza and Lopez provided descriptions of the freezer that were similar to the descriptions of the refrigerator allegedly used to dispose of the victim’s body. Valenti testified that, in 1984, the defendant had given him a refrigerator with locks on it, and that he had seen it last in 1987. Valenti described that refrigerator as similar to the refrigerator that had allegedly been used to dispose of the victim’s body. Additionally, the defendant argued that if the victim had been placed into a refrigerator and thereafter into the water, the police dive team that had spent five months looking for the refrigerator would have been able to locate it in Bridgeport harbor. He also argued that the state’s theory that he had rented a van to carry the refrigerator to the harbor was unrealistic. First, he suggested that it would be more sensible to use a stolen van rather than to leave a paper trail by renting one, and second, he noted that the van’s odometer showed that the van had travelled several more miles than would have been necessary to complete the route that Spetrino described as having been taken to dispose of the victim.

On appeal, the defendant has not suggested any additional evidence that he would have offered had he been more specifically notified that the state was alleging that he had caused the victim’s death by assaulting him with a bat and placing him into the refrigerator and then into the water. The defendant cites only one instance wherein he purportedly relied on the information as written and was therefore prejudiced by the trial court’s instruction. He asserts that in the course of closing argument his counsel contended, “They didn’t accuse Thomas of drowning him in the water. They didn’t accuse him of shooting him. They accused Thomas Marra with beating this kid with a baseball bat. They chose the direction they were going to take.” Later in the same argument, however, his counsel stated, “This is a charge of murder beyond a reasonable doubt. Do we have beyond a reasonable doubt that a refrigerator went into the water? Because in order for you to make an inference that death occurred, in order for you to make any type of an inference, the fact upon which you are being asked to draw, the inference must itself be proven beyond a reasonable doubt.” He also argued, “You have to make the assumption that [the victim] was hit with a baseball bat, that he was put in a refrigerator, that he was thrown in the water to the exclusion of any other possibilities.” Because we conclude that the defendant has not demonstrated any way in which the presentation of his defense was prejudiced by the trial court’s expansion of the information, he cannot prevail on this claim of constitutional error. State v. Golding, supra.

VI

Additionally, the defendant claims that the state violated his privilege against self-incrimination under the fifth amendment to the United States constitution and article first, § 8 of the Connecticut constitution by commenting in its closing argument on the defendant’s silence. The defendant asserts that the state’s commentary invited the jury to infer guilt from the defendant’s silence, and that the comments could only be understood by the jury as an unconstitutional criticism of the defendant’s failure to testify. We disagree.

The defendant challenges the comments made by the prosecutor in both the initial and rebuttal portions of his closing argument. First, in his initial argument, the prosecutor stated: “There were only four people who knew about this in the garage. Two of them testified in front of you and told you what they knew and what they observed, but you heard from the third one too, Mr. Marra. And what did Mr. Marra say? Well, Mr. Marra said a lot. Basically his testimony corroborates everything that Mr. Spetrino and Mr. Byers told you.” The state then proceeded to review several out-of-court admissions made by the defendant that the state argued corroborated the testimony of Byers and Spetrino.

The defendant also attacks comments made by the state in its rebuttal argument. At trial, the state offered evidence that the defendant had purchased airline tickets for the victim, presumably because he had wanted the victim to leave the area. In response to the defendant’s closing argument, the prosecutor commented that, “[w]ith respect to tickets, tickets for the airline, you never heard anything about why Mr. Marra is buying [the victim] tickets.” At trial, the state also produced evidence that Spetrino had been covered with blood as a result of the beating of the victim, and that the defendant and his wife had provided Spetrino with a gray sweat suit. The state had also produced a letter from the defendant to his wife that could reasonably be construed as a request to her to forget that they had given the sweat suit to Spetrino. In rebuttal argument, the state again commented on defense counsel’s closing argument, “[w]ith respect to the gray sweat suit, he never explained why he writes his wife a letter and mentions specifically the gray sweat suit unless it, in fact, happened; that a gray sweat suit was provided Mr. Spetrino on the night of the incident. Never touches that.” The state also produced at trial evidence of letters sent by the defendant to several people that could reasonably be viewed as requests to those persons to assist the defendant by eliminating evidence against him. The state commented, “[njever touches why three letters immediately come out from Mr. Marra on just after the October 28th interview. Never says why he is mailing letters to Brenda, to Maria, to James Kallman.” Regarding several contradictory admissions by the defendant, the prosecutor stated, “[hjave you heard any reasons why he gave those false, contradictory stories? No. That was completely forgotten by counsel.” (Emphasis added.) Finally, the state offered evidence that, after the victim had been killed, the defendant had written a letter, purportedly from the victim, to Thiel, in which he explained that the victim would soon return to Connecticut. The state argued, “[hjave you heard any legitimate reason why he is writing letters attributed to Alex if not to make it seem by at least one witness, Tammy, that Alex is still alive?”

The defendant concedes that this issue was not preserved at trial, and he now seeks review of this claim under State v. Golding, supra, and as plain error under Practice Book § 4185.

In determining whether a prosecutor’s comments have encroached upon a defendant’s right to remain silent, we ask: “Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) State v. Negron, 221 Conn. 315, 325, 603 A.2d 1138 (1992); State v. Walker, 206 Conn. 300, 307, 537 A.2d 1021 (1988). We have also recognized that “ ‘closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’ Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974).” State v. Glenn, 194 Conn. 483, 495, 481 A.2d 741 (1984).

First, regarding the initial portion of the state’s closing argument, we conclude that the state’s comments would not naturally and necessarily be taken as a comment on the defendant’s failure to testify, and that the state did not intend them to have such an-effect. Contrary to the defendant’s assertion that the «state was improperly commenting on his right to remain silent, these initial comments do not concern the defendant’s silence at trial. Rather, they plainly concern admissions that the defendant had previously willfully made. The state argued that the jury could reasonably find evidence of the defendant’s guilt from the defendant’s own admissions, not his silence. The defendant further asserts, however, that the state’s reference to the fact that Byers and Spetrino had testified at trial improperly called the jury’s attention to the fact that the defendant had not testified. Although it is possible that the jury drew that conclusion, such a strained interpretation of the state’s argument by the jury would be neither necessary nor natural.

Second, we also conclude that the jury would not naturally or necessarily take the state’s rebuttal argument as a comment on the defendant’s failure to testify, and it is obvious that the state had no such intent. “In its closing argument the state may properly call to the attention of the jury any portion of the evidence that stands uncontradicted. Such a comment becomes objectionable only when it focuses the attention of the jury on the failure of the defendant to testify and thus violates the holding of the United States Supreme Court in Griffin v. California, [380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965)], that the Fifth Amendment . . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” (Internal quotation marks omitted.) State v. Walker, supra, 307.

We believe the challenged remarks on rebuttal could only be reasonably interpreted as commentary “by the prosecutor on the overall quality of the defendant’s evidence and not as calling specific attention to the failure of the accused to testify.” State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985). The state made all of the challenged comments on rebuttal in the context of defense counsel’s closing argument, and not in regard to the defendant’s failure to testify. The portions of the state’s argument attacked by the defendant obviously were intended by the state to demonstrate that defense counsel had failed to contradict critical portions of the state’s evidence in his final argument. When the state commented that “you never heard,” “he never explained,” “never touches that,” and “never says why,” it was plainly referring to the fact that the jury never heard any argument offered by defense counsel that would contradict the state’s proof. After noting that the jury never heard any reasons for the defendant’s inconsistent admissions, the state commented, “That was just completely forgotten by counsel.” (Emphasis added.) In view of this reasonable interpretation of the state’s closing argument, the jury would not naturally or necessarily have concluded that the state was commenting on the defendant’s failure to testify. Therefore, the state’s comments did not clearly deprive the defendant of his constitutional privilege against self-incrimination. State v. Golding, supra.

VII

The defendant further claims that the trial court’s preliminary instructions to the prospective jurors regarding the reasonable doubt standard were improper and violated his right to a fair trial. Specifically, he claims that the court’s instructions regarding two hypotheticals diluted the state’s burden of proof. We do not agree.

We have thoroughly reviewed both the trial court’s preliminary and final instructions. In its preliminary instructions to the prospective jurors, the court accurately defined proof beyond a reasonable doubt. The court then proceeded to relate two hypotheticals to the prospective jurors, apparently to assist the prospective jurors in distinguishing between the concepts of “reasonable doubt” and “possible doubt.” At the conclusion of the trial, the court again instructed the jury regarding the definition of proof beyond a reasonable doubt. Its final instruction was a detailed and accurate explanation of the state’s burden of proof.

The defendant concedes that this claim was not preserved at trial, and he requests review under the plain error doctrine and State v. Golding, supra, 239-41. We conclude that the court’s preliminary instructions regarding the standard of proof beyond a reasonable doubt did not constitute plain error and were not a clear constitutional violation. Although “ ‘judicial attempts to clarify the meaning of the phrase “reasonable doubt” by explanation, elaboration or illustration . . . more often than not tend to confuse or mislead,’ ” such illustrations do not necessarily constitute reversible error. State v. DelVecchio, 191 Conn. 412, 420-21, 464 A.2d 813 (1983). “ ‘[T]he question on appeal is whether the court’s statements correctly conveyed the concept of reasonable doubt to the jury.” Id., 421. In determining whether preliminary jury instructions require reversal, we must ask whether the “ ‘jury was fully and properly instructed at the critical time, after all the evidence and after the arguments of counsel.’ ” State v. Lewis, 220 Conn. 602, 614, 600 A.2d 1330 (1991).

Our review of the preliminary instructions and the hypotheticals in this case reveals no prejudice to the defendant. Additionally, the jury was fairly and completely instructed regarding the state’s burden of proof beyond a reasonable doubt at the conclusion of the trial. As a result, the defendant was not deprived of his right to a fair trial, and may not prevail under State v. Golding, supra, because he has not demonstrated that an error of constitutional dimension clearly exists. Similarly, the preliminary instructions did not affect the fairness or integrity of the proceedings and, therefore, did not constitute plain error. State v. Jeffrey, 220 Conn. 698, 710-11, 601 A.2d 993 (1991).

VIII

Finally, the defendant claims that the trial court’s instructions unfairly marshalled the evidence, drawing the jury’s attention to the state’s case and obscuring the defendant’s case. He asserts that the instructions violated his federal and state constitutional rights to due process. We do not agree.

In its instructions to the jury following the trial, the court stated: “If at any time you feel I am indicating a preference for one side or the other, if I should mention one side more than the other, let me assure you the Court is neutral. Please do not try to read my mind or interpret the tonal quality of my voice. . . . Irnay make comments to you as to the weight of evidence or the propriety or lack of propriety of your finding certain facts in that evidence. But where I do make such comments, they are merely suggestive for you to approve or disapprove in the exercise of your own judgment. ... If I do refer to certain evidence, don’t assume that I mean to emphasize that evidence nor must you or should you limit your consideration only to it. If I overlook any evidence, you will supply it from your own recollection.”

A review of the body of the court’s charge reveals several instances in which the court summarized evidence offered by the state, and then provided a less detailed reference to the defendant’s case. In addition, however, the trial court specifically marshalled defense evidence of the potential biases of the state’s chief witnesses, Byers and Spetrino, and of prior bad acts by Spetrino.

“[W]e have stated that a charge ‘must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.’ ” State v. Hernandez, 218 Conn. 458, 462, 590 A.2d 112 (1991). “To avoid the danger of improper influence on the jury, a recitation of the evidence ‘ “should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” ’ ” Id. The trial court, however, “has broad discretion to comment on the evidence adduced in a criminal trial. State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989).” Id., 461.

Unlike Hernandez, where we concluded that the trial court’s charge was improper, the court here did not recapitulate “nearly all of the state’s testimonial and physical evidence” and did not frequently comment “favorably on the credibility of the state’s witnesses . . . .’’Id., 464. Although the court did provide a more detailed account of some of the state’s evidence than of the defendant’s counter evidence, it also delivered an accurate and complete cautionary instruction and specifically marshalled the defendant’s evidence regarding the credibility of the state’s primary witnesses. Although the trial court’s charge might have included more references to the defendant’s evidence or theory of defense, we cannot say that the charge as given did any injustice or caused any prejudice to the defendant. Id., 465; State v. Gordon, 197 Conn. 413, 424-25, 504 A.2d 1020 (1985); State v. Ballas, 180 Conn. 662, 680, 433 A.2d 989 (1980). One obvious reason more time was spent in marshalling the state’s evidence is simply that there was more of it. We conclude that the manner in which the trial court marshalled the evidence did not deprive the defendant of his right to due process.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 51-199 (b) (3) provides in pertinent part: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years.”

       The constitution of Connecticut, article first, § 8, as amended, provides in pertinent part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . . .”

       General Statutes S 54-46a provides in relevant part: “(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26,1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.”

       The trial court instructed the jury as follows: ‘ ‘Ordinarily, the State need not produce all the evidence available in a case. If however you find that there was evidence which was available only to the State which you feel it naturally would have produced and such evidence was not produced, you may, you don’t have to, but you may, if you feel you have reason to [do] so considering all the circumstances, including the reason the evidence is missing, draw the inference that the evidence was unfavorable to the State. It is entirely up to you whether you do or do not draw such an inference.”

       In an interview with the police on August 5,1986, however, Thiel stated that, on the night of February 6,1984, the victim had been wearing white, high top sneakers made by Nike or Adidas. In the course of that same interview, however, when Thiel was shown a pair of Pro Champs like the ones that Somohano had found she stated that they were “exactly the same pair of sneakers that [the victim] was wearing.” In that same interview, Thiel stated that she thought that the victim had worn “about a [size] thirteen” sneaker.

       In the motion in limine the defendant stated that the sneaker, sock and bones should not be admitted into evidence because: “(a) No scientific evidence exists connecting the alleged victim with any or all of the items . . . .
      “(b) To permit such evidence or reference thereto would be highly prejudicial to the Defendant in that such evidence will permit the jury to speculate as to whether or not they belong to the victim.
      “(c) Such evidence is insufficient as a matter of law to establish the identity of the victim in this case or to the actual owner in any case.”

       The defendant argued that the items had not been “connected other than by inference, innuendo or speculation to the deceased . . . .’’He further argued that the sneaker and bones could belong to any number of other persons who were believed to be missing in the harbor, and that the jury could not fairly infer that the sneaker and bones were those of the victim. He argued that, because the jury could not connect the sneaker to any issue in the case, other than through impermissible speculation, the evidence was not relevant.

       The defendant also argues in his brief that even if the exhibits were marginally relevant, because they were “repugnant” and likely to arouse unduly the jury’s emotions, hostility and sympathy, and inflame it against the defendant, the trial court should have excluded the evidence because its prejudicial nature outweighed its probative value. State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). At trial, however, the defendant failed to raise this alternative objection to the introduction of the evidence, and we will not review it for the first time on appeal. State v. Pinnock, 220 Conn. 765, 796, 601 A.2d 521 (1992).

       In fact, there was evidence that indicated that Spetrino heard the victim making gurgling noises as the refrigerator filled with water.

       Practice Book § 4185 provides that this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .” Similarly, article first, § 8 of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right . . . to be informed of the nature and cause of the accusation . . . .”

       Initially, the defendant argues that he adequately preserved this claim at trial. Our review of the transcript, however, reveals that he did not.

       The fifth amendment to the United States constitution provides in relevant part that no person shall “be compelled in any criminal case to be a witness against himself . . . .”
      Article first, § 8 of the Connecticut constitution provides in relevant part: “No person shall be compelled to give evidence against himself . . . .”

       Moreover, it seems strange that, if the state’s comments were as egregious at trial as they have been depicted on appeal, no contemporaneous objection was made.

       The defendant also asserts that the trial court’s preliminary instruction to the jury regarding circumstantial evidence was improper. Because he has failed to brief that claim, we consider it abandoned, and will not review it further. Gaudet v. Safeco Ins. Co., 219 Conn. 391, 403, 593 A.2d 1362 (1991).


author: Per Curiam.

text:
    State of Connecticut v. Nelson Kari
    (14450)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued June 3
    decision released June 23, 1992

      John R. Williams, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Margaret Luchansky, assistant state’s attorney, for the appellee (state).
   Per Curiam.

In this criminal appeal, the defendant, Nelson Kari, challenges the sufficiency of the evidence to sustain his conviction of unlawful removal or alteration of records in violation of General Statutes § 53-153. The Appellate Court concluded that his conviction should be affirmed. State v. Kari, 26 Conn. App. 286, 600 A.2d 1374 (1991). We granted certification to permit the defendant to appeal solely on the issue of the sufficiency of the evidence to support a reasonable finding that the defendant had acted “corruptly” within the meaning of the statute.

The opinion of the Appellate Court reports in full the facts that the jury might reasonably have found to support the conviction of the defendant. The defendant contests the reasonableness of an inference of a corrupt motive that a jury might have drawn from evidence establishing that: (1) without the authority to do so, he signed a contract for the purchase of a computer system; (2) in response to an official inquiry, he lied about having signed this contract; and (3) he thereafter destroyed the contract and documentation relating thereto.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted. The certified issue was fully considered in the opinion of the Appellate Court; id., 292; and it would serve no useful purpose for us to repeat the discussion therein contained. See State v. Soltes, 215 Conn. 614, 615, 577 A.2d 717 (1990); State v. Timmons, 204 Conn. 120, 121, 526 A.2d 1340 (1987); State v. Marshall, 199 Conn. 244, 506 A.2d 1035 (1986).

The appeal is dismissed.

       General Statutes § 53-153 provides in relevant part: “Any person who, wilfully and corruptly, takes away, alters, mutilates or destroys any book, record, document, archive or other property in the possession or custody or under the control of any institution, board, commission, department or officer of the state or any county or municipality or court . . . shall be imprisoned not more than ten years.”

       We certified the following issue: “Was there sufficient evidence in the record to support a reasonable finding that the defendant acted ‘corruptly’ within the meaning of Connecticut General Statutes § 53-153?” State v. Kari, 221 Conn. 910, 602 A.2d 9 (1992).


author: Peters, C. J.

text:
    Max F. Brunswick et al. v. Inland Wetlands Commission of the Town of Bethany et al.
    (14402)
    Peters, C. J., Callahan, Glass, Borden and F. X. Hennessy, Js.

      Argued April 28
    decision released June 23, 1992

      Max F. Brunswick, for the appellants (plaintiffs).

      Gerald P. Dwyer, for the appellees (named defendant et al.).

      MarkL. Goodman, for the appellee (defendant DJM Development Corporation).
   Peters, C. J.

The principal issue in this appeal is whether an attorney may sign and issue a citation in an administrative appeal in which he is a party plaintiff. The ten original plaintiffs, who are individual property owners in Bethany, filed an administrative appeal in Superior Court to challenge the action of the defendant inland wetlands commission of the town of Bethany (commission) granting the application of DJM Development Corporation (DJM) for a permit for a subdivision. See General Statutes § 22a-42a (c) and (d). The commission moved the trial court to dismiss the plaintiffs’ appeal on the ground that one of the original plaintiffs, Attorney Max F. Brunswick, had signed the citation in their appeal. The trial court denied the commission’s motion to dismiss, but subsequently rendered judgment on the merits for the commission and DJM. The plaintiffs appealed to the Appellate Court, which determined that Brunswick’s signature on the citation had deprived the trial court of subject matter jurisdiction to hear the plaintiffs’ administrative appeal. The Appellate Court accordingly ordered that the plaintiffs’ appeal be dismissed. Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 596 A.2d 463 (1991). We granted the plaintiffs’ petition for certification to appeal and now reverse the judgment of the Appellate Court.

The following facts are not in dispute. DJM applied to the commission for a permit for a fourteen lot subdivision on property it owned in Bethany. The commission granted DJM’s application. Ten individuals owning property that abuts DJM’s parcel filed an administrative appeal challenging the propriety of the commission’s approval of DJM’s subdivision application. Brunswick, one of the plaintiffs, who is an attorney admitted to practice law in Connecticut and a commissioner of the Superior Court; see General Statutes § 51-85; Practice Book § 18; signed the citation that accompanied the complaint and caused it to be served on the defendants. Approximately eleven months later, the commission filed a motion to dismiss the plaintiffs’ appeal “on the grounds that the writ and citation were not signed by a Commissioner of the Superior Court . . . .” Four days later, Brunswick withdrew from the case and indicated that he would limit his future involvement in the case to the role of counsel for the remaining nine plaintiffs. The trial court, Berdon, J., after hearing oral argument on the motion to dismiss, denied the motion on the basis that the nine remaining plaintiffs “have a right to be in this Court.” The trial court, Flanagan, J., subsequently adjudicated the case on the merits and affirmed the commission’s approval of DJM’s application for a subdivision permit.

The plaintiffs appealed to the Appellate Court. After supplemental briefing on the jurisdictional issue, the Appellate Court, relying on this court’s decision in Doolittle v. Clark, 47 Conn. 316 (1879), concluded that the plaintiffs' administrative appeal should be dismissed for lack of subject matter jurisdiction. Doolittle held that' an attorney cannot sign a writ in his own case. Id., 320-23. The Appellate Court ruled that Doolittle was still good law, both on its merits; Brunswick v. Inland Wetlands Commission, supra, 546-47; and because any reevaluation of its continued validity should be undertaken by this court. Id., 553.

We granted certification to consider whether we should continue to adhere to the rule of law established in Doolittle. The plaintiffs urge this court to overrule Doolittle because the policy reasons underlying the court’s decision in 1879 no longer exist. In the alternative, the plaintiffs argue that Brunswick’s withdrawal from the administrative appeal cured any defect as to the other nine plaintiffs and that General Statutes § 8-8 (p) authorizes such a cure of their appeal. The commission and DJM assert, to the contrary, that the policy considerations of the rule that an attorney may not sign the writ in his own case “continue to be as viable in the late twentieth century as in 1879 . . . .” They further contend that Brunswick’s withdrawal from the appeal did not cure the defect as to the remaining plaintiffs because the citation was “defective ab initio as to all plaintiffs” and that § 8-8 (p) does not cure such a defect. We agree with the plaintiffs that current procedural safeguards have eroded many of the concerns upon which the Doolittle rule was predicated. We, therefore, overrule Doolittle and reverse the judgment of the Appellate Court.

I

The procedures that govern an administrative appeal from the decision of an inland wetlands commission are, by virtue of General Statutes § 22a-43 (a), the procedures specified by the Uniform Administrative Procedure Act, General Statutes § 4-183. Under § 4-183 (b), an administrative appeal must include a proper citation in order to invoke the jurisdiction of the court. See McQuillan v. Department of Liquor Control, 216 Conn. 667, 671, 583 A.2d 633 (1990); Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); see also Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339, 170 A.2d 732 (1961). “In administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970 & Sup.) § 18. ‘The citation, signed by a competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. . . .’ ” McQuillan v. Department of Liquor Control, supra.

Section 22a-43 (a) provides that an appeal from an inland wetlands commission “shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.” A proper citation, in accordance with General Statutes § 52-45a, is a document that, in addition to describing the parties, the court to which it is returnable, the return date and the date and place for filing an appearance, is “signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.” As in Doolittle, the issue in this case is whether a citation is jurisdictionally defective if it is signed by a commissioner of the Superior Court who is himself a party to the litigation. The commission and DJM contend, as the Appellate Court held, that such a citation fails to confer subject matter jurisdiction on the Superior Court.

Construing the statute on mesne process in effect in 1879, this court in Doolittle v. Clark, supra, concluded that an attorney was precluded from signing a writ in a case in which he was a plaintiff. Id., 322-23. The plaintiffs in that case were partners in a law firm. One of the plaintiffs had signed the writ in a contract action brought in the name of the law firm. The defendants filed a plea in abatement on that ground. We stated that “[i]t would not seem to require any extended argument to show that this ought not to be allowed under the laws of this state. ... It would be putting altogether too much power into the hands of one man, to be exercised for his own individual benefit, for if a plaintiff can sign his own writ in an ordinary action arising upon contract, he may sign it in an action arising from a tort, and without responsibility other than his own bond, may attach all the estate of the defendant or attach his body and commit him to prison.” Id., 320-21. This court further stated that “[o]ne object of the [mesne process] statute clearly is to throw some safeguard around the rights of a defendant, and that he might presume at least that the officers named in the act would not sign a writ for a groundless cause, nor grant one against his person or property to gratify the inclination of a litigious plaintiff. Another purpose which the statute has in view is that the writ shall be an instrument of dignity, bearing the impress of the power and authority of the state, and be respected and obeyed by the citizen against whom it is directed, its purpose being to compel his attendance before a proper tribunal, that justice may be done. But if each man who happens to be a justice of the peace, or commissioner of the Superior Court, or senator, may sign and issue a writ in his own name, there is no safeguard thrown around the process and no dignity attached to it.” Id., 322-23. We abated the writ on these public policy grounds. Id., 323.

Seventy years after our decision in Doolittle, we extended its holding to apply as well to citations signed by attorneys who are plaintiffs in administrative appeals. In Willard v. West Hartford, 135 Conn. 303, 305, 63 A.2d 847 (1949), an appeal from the decision of a zoning board of appeals, we stated that “[t]he plaintiff is a commissioner of the Superior Court and himself signed the citation. This he may not do.” In recent years, however, numerous trial court decisions have questioned the continued validity of the Doolittle principle.

II

The Appellate Court’s ruling in this case construed Doolittle as stating a rule relating to the Superior Court’s subject matter jurisdiction. Brunswick v. Inland Wetlands Commission, supra, 545-49. “ ‘The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage of the proceedings.’ ”Neyland v. Board of Education, 195 Conn. 174, 177, 487 A.2d 181 (1985); see also Practice Book § 145; McQuillan v. Department of Liquor Control, supra, 670; Pet v. Department of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988).

Just three months after our decision in Doolittle, this court decided, however, that defendants who had not objected to the plaintiff attorney’s signature on the writ “until the case had been in court for nearly two years” had waived their objection to the defect. Parrott v. Housatonic R.R. Co., 47 Conn. 575, 576 (1880). Because the defendants had pleaded the general issue and the case was awaiting trial upon its merits, we did “not hesitate to regard the objection to the legal signing and issuing of the writ as waived,” and, therefore, found no error. Id.

In Brown v. Allen, 166 Conn. 174, 175-76, 348 A.2d 666 (1974), this court similarly declined to dismiss an action on the basis that the writ had “not in fact [been] signed by a commissioner of the Superior Court . . . but, rather, [had been] signed by the plaintiff acting by an agent,” and, therefore, the defendant contended, had not complied “with statutory requirements for the issuance of mesne process.” We noted that, despite the claimed defect in the writ, “the defendant nevertheless [had] entered a general appearance and [had] filed no pleading to open the default or to contest the court’s jurisdiction but [had] proceeded to contest the merits of the plaintiffs contentions and the relief which should be granted to him. Under these circumstances and the fact that the defendant failed to enter a special appearance . . . and properly to plead his jurisdictional contentions, it must be held that the defendant submitted himself to the jurisdiction of the court and waived any right to claim that the court lacked jurisdiction over him because of any defect in the process to which he had responded.” Id., 176-77; see also 1 E. Stephenson, supra, (1982 Sup.) § 17 (a) (“A claim that a writ is improperly executed is waived by failure to file a timely motion to dismiss.”).

Although Parrott and Brown were civil causes of action and not administrative appeals, we conclude that the alleged defect in the citation in the present case affected only the court’s personal jurisdiction over the defendants. While we require strict compliance with statutory provisions upon the initiation of an administrative appeal; see Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, 356; the statute on mesne process, § 52-45a, does not on its face exclude an attorney from signing a writ in a case in which he is a plaintiff. The rule that an attorney may not sign a writ in his own case, and the application of that rule to an administrative appeal, has developed solely through case law. See, e.g., Doolittle v. Clark, supra, 320; Yudkin v. Gates, 60 Conn. 426, 428, 22 A. 776 (1891) (applying rule to judge or clerk); Willard v. West Hartford, supra, 304. Because the writs used to commence civil actions are analogous to the citations used to commence administrative appeals, there is no basis for regarding such a defect in the one as implieating subject matter jurisdiction, while regarding the defect in the other as relating only to personal jurisdiction. Indeed, we have held in Johnson v. Zoning Board of Appeals, 166 Conn. 102, 107-108, 347 A.2d 53 (1974), that an improperly executed citation implicates the personal jurisdiction of the court.

An improperly executed writ or citation does not, therefore, affect the subject matter jurisdiction of the trial court. As a defect in having the court acquire personal jurisdiction over the defendant, an improperly executed citation may be waived by the defendant. In this case, such a waiver occurred when the commission and DJM failed to file a timely motion to dismiss the administrative appeal in the trial court. A defendant may contest the personal jurisdiction of the court “even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.” Practice Book § 142. The commission’s motion to dismiss was not filed until December 19,1989, approximately eleven months after the commission had filed its appearance. DJM did not, so far as the record indicates, contest the execution of the citation at any time. The commission and DJM, therefore, had submitted to the jurisdiction of the trial court and the Appellate Court was mistaken in ruling to the contrary. The Appellate Court’s mischaracterization of the jurisdictional implications of Doolittle requires a reversal of its judgment.

Ill

Because the commission and DJM failed to preserve their jurisdictional challenge in timely fashion, we need not consider the continuing validity of the rule in Doolittle v. Clark, supra. Because the issue has been fully briefed, however, and has frequently arisen in the Superior Court, we will, in the interests of our supervisory role over the administration of justice in this state, reexamine the propriety of a citation signed by an attorney in a case in which the attorney is a plaintiff.

There were three bases for this court’s decision in Doolittle that an attorney may not sign a writ in his own case. First, we were attempting to safeguard against attorneys who, acting in their own interests, could summarily “attach all the estate of the defendant or attach his body and commit him to prison” merely upon their signature. Id., 321. Second, this court was responding to the concern that, if allowed to sign writs in their own cases, litigious attorneys would commence groundless claims or claims intended solely to harass another. Id., 322. Third, we were concerned that allowing attorneys to sign their own writs would degrade the dignity of the writ and the process of law. Id., 322-23.

The law governing attachments has changed dramatically since 1879. “Prior to the adoption of Public Act 73-431 [in 1973], writs of attachment signed by a commissioner of the Superior Court could be, and commonly were, issued by attorneys as commissioners of the Superior Court without notice, hearing or any judicial action.” E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 624, 356 A.2d 893 (1975). Under current law, however, statutory authorization for body attachments has been eliminated; see Public Acts 1981, No. 81-410; and a writ of attachment can no longer “be issued at the discretion of the commissioner of the Superior Court and without a judicial order. It can now be issued only after a due process judicial hearing on notice and pursuant to an order of the court.” Id., 628; see General Statutes §§ 52-278a through 52-278d; see also Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991) (invalidating as unconstitutional General Statutes § 52-278e, which allowed ex parte attachments under certain circumstances). Thus, the concerns stemming from an attorney’s authority to attach another’s body or property for his own benefit merely upon his signature are no longer viable.

The fear that litigious attorneys will bring groundless claims to harass defendants merely because they are authorized to sign writs on their own behalf does not warrant adherence to the rule in Doolittle. All attorneys in this state are bound by the Rules of Professional Conduct not to “bring . . . a proceeding . . . unless there is a basis for doing so that is not frivolous”; Rules of Professional Conduct 3.1; and have taken an oath not to “wittingly or willingly promote, sue or cause to be sued, any false or unlawful suit, or give aid, or consent, to the same,” and to delay “no man for lucre or malice.” General Statutes § 1-25; see also Sharkiewicz v. Smith, 142 Conn. 410, 412-13, 114 A.2d 691 (1955). “An attorney ‘as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him.’ In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). This ‘unique position as officers and commissioners of the court . . . casts attorneys in a special relationship with the judiciary and subjects them to its discipline.’ (Citations omitted.) Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 524, 461 A.2d 938 (1983).” Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 237-38, 558 A.2d 986 (1989). These professional responsibilities govern the conduct of attorneys whether they represent themselves or others. The accountability of all attorneys for their professional conduct provides an adequate safeguard to protect defendants against groundless claims brought by litigious attorneys.

Lastly, the apprehension that allowing an attorney to sign a writ of process will somehow degrade the process of law is no longer sustainable. This court concluded, in 1955, that a plaintiff cannot compel a commissioner of the Superior Court to sign a writ of mesne process. Sharkiewicz v. Smith, supra, 412. We emphasized, in that case, that the signing of a writ is not a mere ministerial act and that it should not be undertaken indiscriminately. Id.; see also In re Application of Griffiths, 162 Conn. 249, 255, 294 A.2d 281 (1972), rev’d on other grounds, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973); Doolittle v. Clark, supra, 320. In 1978, however, the Practice Book section concerning mesne process was amended to provide that “[i]f any person is proceeding without the assistance of counsel, he shall sign the complaint and present the complaint and proposed writ of summons to the clerk . . . .” Practice Book § 49. It further provides that “the clerk shall review the proposed writ of summons and, unless it is defective as to form or does not contain a bond for prosecution . . . shall sign it.” Practice Book § 49; see also 1 E. Stephenson, supra, § 17. The purpose of the amendment was no doubt to provide greater access to the courts of this state. The act of the clerk in signing the writ on behalf of a pro se plaintiff is, however, purely ministerial. The clerk has no discretion whatsoever to refuse to sign the writ of a pro se litigant in a cause of action unless the writ is defective as to form or lacks a bond for prosecution. At this stage of our law, when an attorney who is representing himself pro se can have his writ signed by a clerk acting in a ministerial role, we cannot discern how allowing that same attorney to sign his or her own writ could diminish in any way the dignity of the process of law.

Absent the public policy reasons that existed in 1879, and in light of the change in the Practice Book, adherence to the rule that an attorney may not sign a writ in a case in which he or she is a party plaintiff no longer serves any purpose. “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” O. Holmes, “The Path of the Law,” 10 Harv. L. Rev. 457, 469 (1897). We, therefore, overrule Doolittle v. Clark, supra, and its progeny.

The judgment is reversed and the case is remanded to the Appellate Court for consideration of the merits of the plaintiffs’ claims challenging the decision of the commission.

In this opinion the other justices concurred.

       The citation that is used to commence an administrative appeal is analogous to the writ used to commence a civil action. See General Statutes § 52-45a; Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991); Sheehan v. Zoning Commission, 173 Conn. 408, 412, 378 A.2d 519 (1977); Johnson v. Zoning Board of Appeals, 166 Conn. 102, 104 n.1, 347 A.2d 53 (1974); see also 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970 & Sup.) § 18 (a).

       The original plaintiffs to the administrative appeal were Max F. Brunswick, Linda Brunswick, James D. Kelly, Helen Kelly, Robert J. Downs, Jean Downs, George Reynolds, Eldona Reynolds, Edward Coppola and Jacqueline Coppola.

       The plaintiffs also named as defendants the town clerk of Bethany and the commissioner of environmental protection of the state of Connecticut. The term “commission” as used in this opinion refers to both the defendant inland wetlands commission and the defendant town clerk. The commissioner of environmental protection did not appear before the Superior Court to contest the plaintiffs’ administrative appeal, nor has he filed an appearance in the present appeal.

       Attorney Brunswick has since withdrawn as a plaintiff to the appeal.

       Certification was granted limited to the following questions:
      “1. Did the Appellate Court properly hold that the trial court should have dismissed the appeal for want of subject matter jurisdiction because one of the ten plaintiffs was an attorney who also signed the writ?

        “2. Was the Appellate Court correct in refusing to find that the withdrawal of the plaintiff-attorney from the appeal cured any defect in the appeal as to the other nine plaintiffs?
      “3. Does General Statutes § 8-8 (p) authorize the plaintiffs’ attempt to cure the defect relied upon by the Appellate Court in dismissing the action?” Brunswick v. Inland Wetlands Commission, 220 Conn. 929, 598 A.2d 1100 (1991).

       General Statutes § 8-8 provides in pertinent part: “(p) The right of a person to appeal a decision of a board to the superior court, and the procedure prescribed in this section, shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice. The appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the superior court, pleadings may be filed, amended or corrected, and parties maybe summoned, substituted or otherwise joined, as provided by the general statutes.” “Board” is defined in § 8-8 (a) (2) as “a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or other board or commission the decision of which may be appealed pursuant to this section.”

       General Statutes § 22a-43 provides in pertinent part: “(a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may appeal to the superior court in accordance with the provisions of section 4-183 .... Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”

       “[General Statutes] Sec. 52-45a. (Formerly Sec. 52-89). commencement OF CIVIL ACTIONS. CONTENTS AND SIGNATURE OF PROCESS. Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.”

       The statute in effect in 1879 provided that “[t]he process shall describe the parties upon whom it is to be served, the court to which it is returnable, and the time and place of appearance; and all writs in actions at law shall describe the plaintiff and the form of action. All such process shall be signed by the Governor, Lieutenant Governor, a senator, justice of the peace, commissioner of the Superior Court, or a judge, or clerk of the court to which it is returnable; and writs signed by any of said authorities may run into any county.” General Statutes (1875 Rev.) title 19, c. 1, $ 1, pp. 396-97.

       In view of our holding, we need not consider the remaining two issues certified on appeal.


text:
    Peter Cyr v. Deborah Cyr
    (14473)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued June 5
    decision released June 23, 1992

      Joseph X. DuMond, Jr., assistant attorney general, with whom were Seymour Dunn, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellant (state).

      Louis Kiefer, for the appellee (plaintiff).

      Lucy Potter, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.