author: CALLAHAN, C. J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. RUBEN BERGER
    (SC 15825)
    Callahan, C. J., and Borden, Berdon, Katz and Palmer, Js.

      Argued February 17
    officially released June 1, 1999

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom were Cynthia Serafini, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Opinion

CALLAHAN, C. J.

The defendant, Ruben Berger, appeals from a judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a), conspiracy to possess a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 (a) and 21a-278 (a), and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). On appeal, the defendant claims that the trial court improperly: (1) determined that the evidence was sufficient to support the judgment of conviction for possession of narcotics with intent to sell and for conspiracy to possess narcotics with intent to sell; (2) denied his motion to strike certain business records prepared by Northeast Utilities Company (Northeast); (3) denied his request for a jury instruction regarding third party culpability; and (4) determined that the evidence was sufficient to support a finding that the defendant was in exclusive possession of the apartment from which the drugs were seized. We affirm the trial court’s judgment of conviction.

The jury reasonably could have found the following facts. In August, 1996, detectives from the vice and intelligence unit of the Waterbury police department instituted an investigation of the defendant’s brother, Richard Berger. The detectives suspected that Richard Berger had been conducting illegal narcotics activities from an apartment located at 35-16 Mountain Village Road, Waterbury (apartment).

The apartment was leased to the defendant’s girlfriend, Tayna Coles, and the electric utilities for the apartment were listed in the defendant’s name. The defendant, Coles and the couple’s three children, however, lived elsewhere in Waterbury.

On August 15, 1996, the detectives met with a confidential informant and requested that the informant attempt to purchase illegal narcotics from Richard Berger. The informant called Richard Berger and arranged to meet him later that day to purchase cocaine. Thereafter, the detectives established surveillance of the apartment and of the location where the confidential informant had arranged to meet Richard Berger. Shortly before the confidential informant was to meet Richard Berger, the detectives observed the defendant arrive and enter the apartment with a key. The defendant remained in the apartment for approximately five minutes. Upon leaving the apartment, the defendant drove to a parking lot, where he was observed handing an unidentified object to Richard Berger. After receiving the object from the defendant, Richard Berger drove to the prearranged meeting with the confidential informant and sold cocaine to the informant.

On the evening of August 20, 1996, the detectives again placed the apartment under surveillance and observed the defendant enter the apartment with a key. Shortly thereafter, a woman entered the apartment. The detectives continued to watch the apartment for approximately thirty minutes and then terminated their surveillance.

The detectives again arranged for a confidential informant to purchase cocaine from Richard Berger on August 27, 1996. On that day, the detectives conducted surveillance of the apartment, of the location where the arranged sale was to occur, and of Richard Berger himself. While under surveillance, Richard Berger arrived at the apartment and entered with a key. Shortly thereafter, he left the apartment and drove directly to the prearranged meeting with the confidential informant. At that meeting, Richard Berger sold cocaine to the confidential informant. Approximately thirty minutes later, the defendant arrived at the apartment and entered with a key. The defendant remained in the apartment for approximately twenty minutes. The detectives concluded their surveillance shortly after the defendant left the apartment.

Thereafter, the detectives obtained a warrant to search the apartment for illicit drugs. On August 28, 1996, officers of the Waterbury police department executed a search of the apartment. Upon entering, the officers found the defendant, Richard Berger and a young male sitting at the kitchen table. There was virtually no furniture or food in the apartment. The defendant told the police officers that none of the three lived in the apartment, but that the clothing hanging in the bedroom closet belonged to him. The officers then searched the apartment.

During the search, the officers discovered and seized crack cocaine and various items of drug paraphernalia. The majority of the cocaine was found in and on top of a heavy locked safe located in an open storage closet. The officers also found three packets of cocaine in the pocket of a black leather jacket that was hanging in the bedroom closet. The police also found a framed, poster-size picture of the defendant in the bedroom. The picture had a $100 bill inserted under the glass in the frame. In addition to the cocaine, officers seized several straight edge razor blades, small plastic baggies and digital scales, all of which are commonly used in connection with the packaging and sale of narcotics. Moreover, cocaine residue subsequently was discovered on the digital scales.

Thereafter, the defendant, Richard Berger and the young male were placed under arrest. While the three men were waiting to be transported to the Waterbury police station, one of the officers overheard the defendant and Richard Berger tell one another that each would “take the weight” for the drugs. Additional relevant facts will be supplied as necessary.

I

The defendant’s first claim is that the trial court’s denial of his motion for a judgment of acquittal was improper because there was insufficient evidence to sustain his convictions. Specifically, the defendant contends that: (1) the evidence was insufficient to convict him of possession of narcotics with intent to sell, because it was not capable of supporting a finding that he had possessed the drugs that were seized from the apartment; and (2) the evidence was insufficient to convict him of conspiracy to possess narcotics with intent to sell, because it was not capable of supporting a finding that there had been an agreement between the defendant and his brother, Richard Berger. We disagree with both of the defendant’s contentions.

In reviewing a sufficiency of the evidence claim, “we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); see State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. State v. Sivri, supra, 132-33. The trier may “draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) Id. “As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. State v. Sivri, supra, 134. On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. Id.” (Internal quotation marks omitted.) State v. DeJesus, supra, 196.

A

The defendant’s first claim of evidentiary insufficiency is that the evidence was not capable of supporting the conclusion that he possessed the cocaine seized from the apartment. “In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it.” State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). “Where, as here, the cocaine was not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact.” State v. Elijah, 42 Conn. App. 687, 698, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996); see also State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990); State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989); State v. Melillo, 17 Conn. App. 114, 117-18, 550 A.2d 319 (1988). One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. See State v. Alfonso, supra, 633. “Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) Id.

In the present case, there was ample evidence to support a finding that the defendant shared possession of the apartment with Richard Berger. The electric utility bill for the apartment was in the defendant’s name and under his social security number. The apartment was leased to the defendant’s girlfriend, Coles. The defendant, Coles and their three children lived elsewhere in Waterbury. Furthermore, on multiple occasions, the defendant was observed entering the apartment with a key. Finally, a framed poster-size picture of the defendant was found in the bedroom, and clothing belonging to the defendant was found in the bedroom closet.

Moreover, the defendant’s statement to his brother that he would “take the weight” for the drugs, and his statement to the police that clothing, in which cocaine subsequently was found, belonged to him, provided the necessary supporting evidence that the defendant knew of the presence of the cocaine and had exercised dominion and control over it. See id., 633-34 (statement by defendant that cocaine seized from multiple occupant apartment was his sufficient to show possession). We conclude, therefore, that the evidence was capable of supporting a conclusion that the defendant was in constructive possession of the cocaine seized from the apartment.

B

The defendant’s next claim of evidentiary insufficiency is that the evidence was not capable of supporting a conclusion that the defendant and Richard Berger had entered into an agreement to conduct illegal narcotics activity. “To establish the crime of conspiracy under [§ 53a-48], the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy .... The state must also show intent on the part of the accused that conduct constituting a crime be performed.” (Internal quotation marks omitted.) State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987). “The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act.” State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975); see State v. Lewis, 220 Conn. 602, 607, 600 A.2d 1330 (1991); State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986).

Because of the secret nature of conspiracies, a conviction usually is based on circumstantial evidence. State v. Vessichio, supra, 197 Conn. 656. “Consequently, it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words ‘we have an agreement.’ . . . Indeed, a conspiracy can be inferred from the conduct of the accused”; (citation omitted; internal quotation marks omitted) State v. Elijah, supra, 42 Conn. App. 696; and his coconspirator, as well as from the circumstances presented as evidence in the case.

The defendant and Richard Berger each were observed entering the apartment with a key on multiple occasions. There was virtually no furniture or food in the apartment. Detective Michael Gugliotti, an expert in the field of narcotics trafficking in the Waterbury area, opined that the apartment had been used exclusively as a “stash house” for the packaging and sale of illicit drugs. Moreover, each brother was overheard stating that he would “take the weight” for the drugs that were seized from the apartment. We conclude, therefore, that the evidence was capable of supporting a conclusion that the defendant and Richard Berger had engaged in a mutual plan to possess cocaine with the intent to sell. The defendant’s claims of evidentiary insufficiency on this issue are without merit.

II

The defendant next claims that the trial court improperly denied his motion to strike certain evidence. Specifically, the defendant maintains that Northeast’s records pertaining to electric service at the apartment (account records) should not have been admitted into evidence. We disagree.

The following additional facts and procedural history are relevant to this claim. In order to establish that the account records were admissible as business records, the state presented the testimony of Thomas DellaCamera, a regional manager with Northeast, whose responsibilities included the supervision and processing of Northeast’s accounts. Outside the presence of the jury, DellaCamera testified that: the account records were made in the ordinary course of business; it is the general practice of Northeast to record such information; and the records were made at or near the time of the event set forth in the records, by a person or persons with knowledge of those events. Moreover, DellaCamera testified that, in order to establish an account with Northeast over the telephone, an applicant is required to provide certain personal information that Northeast uses to verify the applicant’s identify and credit history. Specifically, an applicant is required to provide Northeast with: (1) his or her name; (2) his or her social security number; (3) the telephone number of a personal reference; and (4) the telephone number at which he or she can be contacted. DellaCamera further testified that Northeast’s account representatives are trained to verify the caller’s identify by cross-referencing the name and social security number supplied by the applicant.

The account records indicate that on July 2, 1997, a person using the name “Rubin [sic] Berger” called Northeast and requested electric service for the apartment. The caller provided Northeast with the defendant’s social security number and the telephone number of the defendant’s mother, who was to be used as a personal reference. The account records indicate that the telephone number at which the caller indicated that he could be reached was listed to David Turner, who otherwise was not shown to have any connection to the defendant.

The defendant objected to the admission of the account records on the ground that they were more prejudicial than probative. The court overruled the defendant’s objection. Thereafter, DellaCamera was permitted to testify in the presence of the jury, and the account records were admitted into evidence as an exhibit.

The defendant subsequently moved to strike the account records, claiming in essence that the statements contained in the records constituted inadmissible hearsay, and that those statements were not properly authenticated as statements made by the defendant. The court concluded that, even if the statements contained in the report were hearsay, they had been properly authenticated as statements made by the defendant, and, consequently, the statements were within the exception to the hearsay rule applicable to admissions by a party opponent. It is on that basis that the trial court denied the defendant’s motion to strike.

As a threshold matter, we set forth the standard by which this court reviews a challenge to a trial court’s denial of a motion to strike. The trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings “will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).

We begin by reviewing briefly the business records exception to the hearsay rule. “To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter.” (Internal quotation marks omitted.) Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485, 586 A.2d 1157 (1991), quoting Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 422 (1983). The defendant does not dispute that all three criteria have been satisfied in the present case.

The fact that the account records constitute a business record within the meaning of § 52-180, however, does not complete our analysis of the defendant’s claim. “Once these criteria have been met by the party seeking to introduce the record, however, it does not necessarily follow that the record itself is generally admissible, nor does it mean that everything in it is required to be admitted into evidence. . . . For example, the information contained in the record must be relevant to the issues being tried. ... In addition, the information contained in the report must be based on the entrant’s own observation or on information of others whose business duty it was to transmit it to the entrant. . . . If the information does not have such a basis, it adds another level of hearsay to the report which necessitates a separate exception to the hearsay rule in order to justify its admission.” (Citations omitted; internal quotation marks omitted.) Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 190 Conn. 384-85. We must determine, therefore, whether the information contained in the account records was hearsay. If the information was hearsay, in order for the records to be admissible, the information must be within another recognized exception to the hearsay rule.

The defendant claims that the following information contained in the account records is inadmissible: (1) electric service was acquired by a person using the name “Rubin [sic] Berger”; (2) electric service was acquired by a person using the defendant’s social security number; and (3) electric service was acquired by a person who listed the telephone number of the defendant’s mother, who was to be used as a personal reference. That information was within the knowledge of the Northeast account representative. Moreover, at the hearing in limine conducted to determine whether the account records constituted a business record within the meaning of § 52-180, the court stated that the account records were offered “[t]o show the records of Northeast Utilities that the utilities are in his name . . . .” (Emphasis added.) Similarly, in its closing argument, the state contended that the “[utilities [for the apartment] are in his name.” (Emphasis added.) The record, therefore, reveals that the state introduced the account records for the limited purpose of showing that electrical service for the apartment was obtained and billed in the defendant’s name. The records were not introduced to prove the truth of any statements that the caller made to the account representative, or to establish the identity of the caller. Consequently, the contents of the records are not hearsay. Therefore, no further exception to the hearsay rule or authentication was required.

Moreover, even if we were to assume, without deciding, that the caller’s statements to the entrant were hearsay, the account records still would be admissible because the statements made by the caller to the entrant were properly authenticated as statements made by the defendant. As such, they are within the exception to the hearsay rule applicable to admissions by a party opponent.

“Authentication is ... a necessary preliminary to the introduction of most writings in evidence . . . .” (Internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 604, 717 A.2d 713 (1998); see also 2 C. McCormick, Evidence (4th Ed. 1992) § 218, p. 36; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 10.1, p. 289. In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence. New England Savings Bank v. Bedford Realty Corp., supra, 604; see also 2 C. McCormick, supra, §§ 219 through 228, pp. 38-58; C. Tait & J. LaPlante, supra, §§ 10.3 through 10.4, pp. 290-94.

Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege. United States v. Goichman, 547 F.2d 778 (3d Cir. 1976); see also 2 C. McCormick, supra, § 227, pp. 53-54. Rather, there need only be a prima facie showing of authenticity to the court. 2 C. McCormick, supra, p. 54; C. Tait & J. LaPlante, supra, § 10.1, p. 289. Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the jury, which will ultimately determine its authenticity. 2 C. McCormick, supra, p. 54; C. Tait & J. LaPlante, supra, p. 289. The only requirement is that there have been substantial evidence from which the jury could infer that the document was authentic. See generally 2 C. McCormick, supra, p. 54; C. Tait & J. LaPlante, supra, p. 289.

Communications offered over the telephone may be authenticated by circumstantial evidence, if the party calling, in addition to stating his identity, relates facts and circumstances that, taken with other established facts, tend to reveal his identity. See Hartford National Bank & Trust Co. v. DiFazio, 6 Conn. App. 576, 585, 506 A.2d 1069, cert. denied, 200 Conn. 805, 510 A.2d 192 (1986); see also 2 C. McCormick, supra, § 226, pp. 51-52; C. Tait & J. LaPlante, supra, § 10.4.2, pp. 293-94. In the present case, the account records reveal that the caller identified himself as “Rubin [sic] Berger.” Although the defendant spells his first name “Ruben,” DellaCamera testified that it is not uncommon for a Northeast account representative to misspell an applicant’s name. Moreover, the caller provided Northeast with the defendant’s social security number and the telephone number of the defendant’s mother. The information given by the caller provided substantial support for the inference that the caller was the defendant and, therefore, the state satisfied its burden of making a prima facie showing of authenticity. Consequently, the statements were within the exception to the hearsay rule applicable to admissions by a party opponent, and thus, the account records that contained those statements were admissible as business records.

Ill

The defendant’s next claim is that the trial court improperly denied his request for a specific instruction on the relationship between third party culpability evidence and the concept of proof beyond a reasonable doubt. We disagree.

We previously have stated that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request [however] will not constitute error if the requested charge is given in substance.” State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). Moreover, “[w]hen reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the juiy in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995); State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995).

The defendant requested that the trial court specifically instruct the juiy on the effect and purpose of third party culpability evidence. Specifically, the defendant requested that the court instruct the jury in part as follows: “The primary object of third party suspect testimony is not to prove the guilt of the third party but to disprove the guilt of the accused. If it raises a reasonable doubt of his guilt it accomplishes its object.” Although we acknowledge that this portion of the defendant’s request sets forth an accurate statement of law and is relevant to the issues in the case, we conclude that the trial court was not obligated to provide the requested instruction to the jury because the substance of the requested instruction was implicit in the court’s charge and did not require further explication.

Throughout its jury charge, the court repeatedly stressed that the state bore the burden of proving that the defendant had committed each element of the crimes charged beyond a reasonable doubt. The charge also included a comprehensive instruction regarding the defendant’s presumption of innocence, which included the explicit instruction that the defendant was not required to prove his innocence. Moreover, the court instructed the jury: “First, let me say what’s obvious. One of the elements in this, as in every criminal case, the state must prove beyond a reasonable doubt that the defendant is the person or one of the persons who committed the crime or crimes charged. That is the element of identity must, of course, be proven beyond a reasonable doubt.” (Emphasis added.) We conclude, therefore, that the trial court’s charge, read in its entirety, adequately informed the jury that they must acquit the defendant if they had a reasonable doubt concerning whether Richard Berger alone exercised dominion and control over the drugs.

IV

The defendant’s final claim is that the trial court improperly instructed the jury that they could infer that the defendant possessed the cocaine if they found beyond a reasonable doubt that he was in exclusive possession of the apartment. Specifically, the defendant maintains that the court’s instruction was improper because there was insufficient evidence to support a finding that the defendant was in exclusive possession of the apartment.

Where a criminal statute may be violated under alternate theories of liability, we previously have stated that “a jury’s verdict must be affirmed if there is sufficient evidence to support a finding of guilty on at least one theory of liability.” State v. Dyson, 238 Conn. 784, 795, 680 A.2d 1306 (1996); see State v. Chapman, 229 Conn. 529, 539-44, 643 A.2d 1213 (1994). Consequently, in such circumstances, it is not reversible error for “the trial court [to charge] the jury on a factually unsupported basis of criminal liability provided that, in addition to that instruction, the trial court instructs the jury on a factually supported basis.” State v. Dyson, supra, 795.

Here, the trial court instructed the jury that it could conclude that the defendant was in constructive possession of the cocaine if, from the evidence, it found that the defendant was in exclusive possession of the apartment. The trial court further instructed the jury that it could also conclude that the defendant was in constructive possession of the cocaine on the basis of: (1) evidence that the defendant was in joint possession of the apartment; and (2) other evidence tending to show that the defendant actually knew of the presence of, and exercised control over, the cocaine. Even if we assume, without deciding, that the evidence was not sufficient to support a finding that the defendant was in exclusive possession of the apartment, in light of our conclusion, in part IA of this opinion, that the evidence was capable of supporting a finding that the defendant: (1) had shared possession of the apartment with Richard Berger; and (2) knew the presence of, and exercised control over the cocaine, we conclude that the defendant’s claim lacks merit.

The judgment is affirmed.

In this opinion BORDEN, KATZ and PALMER, Js., concurred.

BERDON, J.,

dissenting. The majority tacitly concedes that there was insufficient evidence to justify instructing the jury that the defendant, Ruben Berger, had exclusive possession of the apartment where narcotics were found. Nevertheless, my colleagues hold that this error was harmless, because there was sufficient evidence to justify instructing the jury on an alternative theory of criminal liability. This reasoning cannot withstand scrutiny. The essential problem that inheres in the majority opinion is that we will never know whether the jury convicted the defendant based on nothing more than the theory that he had exclusive possession of the apartment.

“An instruction on a statutory alternative that is not supported by the evidence violates a defendant’s fundamental right, protected by the due process clause of article first, § 8, of the Connecticut constitution, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. State v. Williams, [202 Conn. 349, 363, 521 A.2d 150 (1987)]; see also State v. Rodriguez, 223 Conn. 127, 147, 613 A.2d 211 (1992); State v. Allen, 216 Conn. 367, 388-89, 579 A.2d 1066 (1990); State v. John, 210 Conn. 652, 688, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Arnold, 201 Conn. 276, 281-82, 514 A.2d 330 (1986); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984). A similar principle applies when the trial court instructs the jury that it may convict a defendant on the basis of a statutory alternative for which there is no evidence. Accordingly, it is firmly entrenched in the common law of this state that [t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. State v. Williams, supra, 364; Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). [I]f a claim is made against the evidence in the case, and wholly unsupported by proof, it is error to submit it to the jury as if the evidence justified the claim, and without comment, as there is great danger of its leading to an unjust verdict. Lewis v. Phoenix Mutual Life Ins. Co., 44 Conn. 72, 88 (1876); see also Allen v. Rundle, 50 Conn. 9, 33, 47 A. 599 (1882); Hartford v. Champion, 58 Conn. 268, 276, 20 A. 471 (1890); McGarry v. Healey, 78 Conn. 365, 367, 62 A. 671 (1905); Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250 (1933) . . . Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979).

“The principle of not submitting to the jury any issue for which there is insufficient evidence has roots in our early common law. Justice Swift, writing in 1822, shortly after the adoption of the state constitution in 1818, noted that the jury in its deliberations must find expressly all the facts put in issue, or must negate them all. 2 Z. Swift, Digest of the Laws of the State of Connecticut (1823) p. 774. Similarly, Justice Swift recognized the court’s power to direct the jury to say, in their verdict, on which count they find the defendant guilty, and to find him not guilty on the rest, so that if he should be found guilty on an insufficient count, he might take advantage of it by motion in arrest. Id., p. 383. Also imbedded in our common law is the notion that the judge has the power to defend the innocent against an unjust verdict. . . . Id., p. 413. Implicit in the power to set aside a verdict that has no support in the evidence, is the idea that the court should not submit to the jury, in the first instance, an issue that has no support in the evidence. By doing so, the court invites an unjust verdict. . . . [State v. Chapman, 227 Conn. 616, 627-29, 632 A.2d 674 (1993), superseded by State v. Chapman, 229 Conn. 529, 643 A.2d 1213 (1994).]” (Internal quotation marks omitted.) State v. Chapman, supra, 229 Conn. 549-50 (Berdon, J., with whom Katz, J., joined, dissenting).

Accordingly, I dissent.

       General Statutes § 21a-278 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one omce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”
      General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      General Statutes § 21a-267 (a) provides: “No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance as defined in subdivision (9) of section 21a-240. Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.”

       Although the defendant’s filing of the appeal with this court was improper, we retained jurisdiction over it pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       General Statutes § 52-180 provides: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular coruse of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the malting of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.
      “(c) Except as provided in the Freedom of Information Act, as defined in section 1-200, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”

       The defendant requested that the trial court instruct the jury on the issue of third party culpability as follows: “A defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. The defendant, however, must show some evidence which, if believed, tends to directly connect a third party to the crime with which the defendant is charged. The primary object of third party suspect testimony is not to prove the guilt of the third party but to disprove the guilt of the accused. If it raises a reasonable doubt of his guilt it accomplishes its object.
      “In the present case, if you find that such evidence of a third party suspect has been introduced, the state has the burden of disproving such third party suspect evidence beyond a reasonable doubt. In other words, if after a full and fair consideration and comparison of all the evidence, you have left in your minds a reasonable doubt indicating that the alleged third party culprit, Richard Berger, may be responsible for the drugs that were found in the apartment at 35-16 Mountain Village Road . . . then it would be your duty to acquit the accused, Ruben Berger.”

       Although the statement of the law in the defendant’s request to charge was accurate, we note that the request did not correctly apply the law to the facts of the case. Specifically, the requested instruction provided in relevant part: “[I]f after a full and fair consideration and comparison of all the evidence, you have left in your minds a reasonable doubt indicating that the alleged third party culprit, Richard Berger, may be responsible for the drugs that were found in the apartment at 35-16 Mountain Village Road . . . then it would be your duty to acquit the accused, Ruben Berger.” (Emphasis added). In light of the state’s theory of the case, namely, that both brothers were involved in the illegal narcotics activity in the apartment, the defendant’s use of the phrase “may be responsible” is incorrect. Even if the jury found that Richard Berger “may have been” responsible for the drugs, such a finding would not necessarily exculpate the defendant. Rather, evidence of Richard Berger’s involvement would have required the defendant’s acquittal only if the jury determined that Richard Berger alone was responsible for the drugs seized from the apartment.

       The trial court instructed the jury in relevant part: “Now, in this case as in all criminal prosecutions, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. The presumption of innocence was with the defendant when he was first presented for trial in this case, continues with him throughout the trial. As far as you’re concerned, the defendant is innocent. He continues to be innocent unless and until such time as all the evidence produced here in the orderly conduct of the case considered in the light of these instructions of law and deliberated upon by you and in the jury room satisfies you beyond a reasonable doubt that he’s guilty. The presumption of innocence alone is sufficient to acquit the defendant. The presumption remains with the defendant throughout the trial and unless you are satisfied beyond a reasonable doubt of the defendant’s guilt from all the evidence in the case. The burden to prove the defendant guilty of the crime for which he is charged is upon the state. The defendant does not have to prove his innocence. This means the state must prove beyond a reasonable doubt each and every element necessary to the crime charged. Whether the burden of proof, whether the burden of proof resting upon the state is sustained depends not on the number of witnesses nor on the quantity of the testimony but on the nature and quality of the testimony. . . .

        “Now, the phrase reasonable doubt has no technical or unusual meaning. You arrive at the real meaning of it by emphasizing the word reasonable. Reasonable doubt is a doubt for which there exists a reasonable basis arising out of the evidence or lack of evidence. It’s a doubt which is something more than a guess or a surmise. It's not a conjecture or a fanciful doubt. A reasonable doubt is not a doubt which is raised by somebody simply for the sake of raising doubts nor is it a doubt suggested by the ingenuity of counsel or any of the jurors which is not justified by the evidence or lack of evidence. A reasonable doubt is a doubt based on reason, not on a mere possibility of innocence. It’s a doubt for which you can in your own mind conscientiously give a reason.
      “A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or the lack of evidence. It’s the kind of doubt which in the serious affairs which concern you in every day life you would pay heed and attention to.
      “Now, of course, absolute certainty in the affairs of life is almost never attainable and the la.w does not require absolute certainty on the part of the jury before you return a verdict of guilty. The state does not have to prove guilt beyond all doubt or to a mathematical or absolute certainty. What the law does require, however, is that after hearing all the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of juries as reasonable men and women a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Any conclusion reasonably to be drawn from the evidence which is consistent with the innocence of the accused must prevail. If there's no reasonable doubt, then the accused must be found guilty. The test is one of reasonable doubt. A doubt based on reason and common sense. . . .
      “Now, I’m going to instruct you on the criminal statutes with which the defendant is charged in this case. It’s your duty to follow these instructions and decide based upon the evidence presented with respect to each charge considered separately whether the state has proven the defendant guilty beyond a reasonable doubt as to each and every element of the crime or crimes charged.
      “First, let me say what’s obvious. One of the elements in this, as in every criminal case, the state must prove beyond a reasonable doubt that the defendant is the person or one of the persons who committed the crime or crimes charged. That is the element of identity must, of course, be proven beyond a reasonable doubt.”

       The trial court’s instructions regarding the element of possession stated in relevant part: “Now, constructive possession requires a showing of two things. Control and knowledge. Now, whether the defendant had possession of the substance in this case is a question of fact for you to decide. And you may, as I’ve told you, draw reasonable and logical inferences from the evidence.
      “Now, in this connection, that is, in connection with possession, there’s another rule of law of which you must be aware. The rule is this. Where the defendant is not in exclusive possession of the premises where the narcotics are found. In other words, the situation where the defendant shares possession of the premises with another, you may not infer that he knew of their presence and that he had control of them unless there are some circumstances which tend to support such an inference. That is other evidence tending to support the inference that he knew of their presence and had control or joint control of them. Therefore, if you find that the defendant was not in exclusive possession. In other words, where he was in joint possession of the premises where the narcotics were found, in order to infer that he knew of their presence and he was in control of them, you must also find that there are circumstances which tend to support that inference.
      “Now, if, however, you find from all the facts and circumstances that the defendant was in the exclusive possession of the premises where the narcotics were found, you may also infer that he knew of their presence there and that he had control of them. In that situation in order to infer that he knew of their presence and that he had control of them, you do not have to find that there are circumstances which support, that inference. . . .”


source: Caselaw Access Project

author: PALMER, J. BERDON, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARLIK MOURNING
    (SC 15913)
    Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued January 20
    officially released June 8, 1999

      Nancy Burton, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom were Robert C. Brunetti, assistant state’s attorney, and, on the brief, Walter Flanagan, assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

In this certified appeal, the defendant, Marlik Mourning, claims that the Appellate Court improperly affirmed the judgment of the trial court revoking his probation and sentencing him to serve his previously suspended three year prison sentence. We conclude that the dispositional phase of the defendant’s probation revocation hearing was flawed because the defendant was not permitted personally to address the court at that phase of the hearing. Consequently, we reverse the judgment of the Appellate Court in part and direct that court to remand the case to another trial court for a new dispositional hearing at which the defendant will have the right of allocution.

The relevant facts are undisputed. After a trial to the court, the defendant was adjudicated a youthful offender by having committed the crime of sexual assault in the third degree in violation of General Statutes § 53a-72a. On January 30, 1996, the court sentenced him to a term of imprisonment of three years, execution suspended, and three years probation. Among other things, the conditions of the defendant’s probation required him to return to school full-time, attend school every day except in the event of an excused absence for illness, arrive at school on time and pass all of his courses to the extent that he was capable of doing so. At the time of sentencing, the trial court was aware that, during the previous school year, the defendant had been absent from school sixty days and tardy fifty-nine days. The defendant also had been suspended five times for his truancy, and once for fighting. Finally, the trial court also was aware that the defendant twice had been adjudicated a juvenile delinquent, that he had failed to complete successfully an alternative incarceration program and that he used illicit drugs.

On April 1,1996, the defendant’s school apprised the defendant’s probation officer that, during the month of March, 1996, the defendant twice had been absent from school without a bona fide excuse, had been tardy twelve times, had been suspended once for leaving the school grounds without authorization and, due to lack of effort, was failing to achieve credit for academic courses. On the basis of this report, the defendant’s probation officer applied for and received a warrant, charging the defendant with violating the conditions of his probation. See General Statutes (Rev. to 1995) § 53a-32. On May 9, 1996, the defendant was arrested pursuant to the warrant.

A probation revocation hearing was conducted on October 17, 1996. Immediately prior to the evidentiary portion of that hearing, counsel for the defendant sought a continuance of the hearing so that a psychiatric evaluation of the defendant, which had been initiated several days earlier, could be completed. The trial court, noting that the hearing already had been scheduled and postponed eleven times, denied the defendant’s request. The state then presented the testimony of the defendant’s probation officer establishing that the defendant had been fully apprised of the conditions of his probation, and that he had understood them. The state also adduced evidence showing that, during the month of March, 1996, the defendant twice had been absent from school without justification, had been tardy twelve times and had been suspended once.

The defendant, who testified in his own behalf, did not contest the state’s evidence. Rather, he emphasized that, although he frequently had been tardy, he had been absent from school only two days during the relevant time period. He also testified that he had been ill-with the flu on those two days, and that he merely had failed to report his illness until his return to school. Finally, the defendant testified that his suspension was due to the fact that, on one occasion, he had unwittingly violated a school policy by leaving school grounds to buy a soda while school was still in session.

At the conclusion of the testimony, the state argued that the defendant’s repeated tardiness constituted a violation of the conditions of his probation. Defense counsel maintained that, because the defendant had a problem with oversleeping, his tardiness was not wilful and, consequently, the defendant’s conduct did not warrant a finding of a violation. The court, noting that the defendant already had been given “every opportunity” to change his behavior, concluded that the defendant wilfully violated the conditions of his probation. The court then revoked the order of probation and sentenced the defendant to the previously suspended three year term of imprisonment.

Defense counsel immediately objected to the trial court’s imposition of sentence on the ground that she had not been afforded the opportunity to be heard at the dispositional phase of the hearing. With the permission of the trial court, defense counsel then argued that a continuance of the dispositional phase of the hearing was necessaiy so that the defendant’s psychiatric evaluation could be completed. After defense counsel had completed her argument, the court rendered judgment revoking the defendant’s probation and sentencing him to serve the three year term of incarceration that previously had been suspended. Before the defendant had been removed from the courtroom, however, he made several requests personally to address the court. The court rejected the defendant’s requests, stating that the hearing had been concluded.

The defendant appealed from the trial court’s judgment to the Appellate Court, which, in a per curiam opinion, summarily affirmed the judgment of the trial court. State v. Mourning, 47 Conn. App. 916, 703 A.2d 1194 (1997). We granted the defendant’s petition for certification, limited to the following issue: “Under the circumstances of this case, did the trial court abuse its discretion by revoking the defendant’s probation of a conviction as a youthful offender and by sentencing the defendant to imprisonment?” State v. Mourning, 244 Conn. 924, 714 A.2d 11 (1998). We conclude that the trial court properly found the defendant in violation of the conditions of his probation. We also conclude, however, that the defendant is entitled to a new dispositional hearing because the court improperly failed to afford him the opportunity personally to address the court at the dispositional phase of the probation revocation hearing.

I

The defendant first contends that the trial court improperly found a violation of the conditions of probation. In particular, the defendant claims that: (1) the trial court unduly limited his right to present evidence by rejecting his request for a continuance at the dispositional phase of the probation revocation hearing until completion of the psychiatric evaluation; and (2) the defendant’s tardiness was not wilful and, moreover, his overall attendance record had improved markedly since his adjudication as a youthful offender. These claims, which require little discussion, are meritless.

With respect to the defendant’s contention that he was entitled to a continuance of the hearing so that the psychiatric evaluation could be completed, the defendant has made no showing — indeed, he has made no claim — that he suffered from any psychiatric or other mental condition that might have affected his ability to be at school on time. Because the defendant’s repeated tardiness provided a sufficient basis for the court’s finding that he had violated the conditions of his probation, the defendant has failed to demonstrate how the psychiatric evaluation possibly could have had any bearing on the court’s finding of a violation.

With regard to the defendant’s second claim, the record supports the trial court’s determination that the state had demonstrated, by a preponderance of the evidence, that the defendant wilfully violated the condition of his probation requiring him to be punctual in his school attendance. The evidence indicated that the defendant was late for school more than 50 percent of the time class was in session during the month of March, 1996. The evidence adduced at the hearing also established that the defendant understood that, as a condition of his probation, he was not to be tardy. There is nothing in the record to indicate, however, that he had taken reasonable steps to avoid being tardy, such as using an alarm clock. Under the circumstances, therefore, it cannot reasonably be maintained that the evidence was insufficient to establish, by a preponderance of the evidence, that the defendant’s repeated tardiness constituted a wilful violation of his probation.

The defendant further contends that, in light of his improved overall attendance record, the trial court’s determination that he had violated a condition of his probation by being tardy was unfair and unjustified. The defendant, however, ignores the fact that his probation was conditioned expressly on the requirement that he arrive at school on time, not just that he attend school. Moreover, the defendant’s repeated tardiness — he was late for school more often than not in March, 1996 — cannot be characterized either as an improvement or as an inconsequential or trivial breach of the probation order. Because the record fully supports the trial court’s determination that the defendant wilfully failed to comply with the condition of his probation requiring him to be punctual, the defendant’s claim must fail.

II

The defendant next claims that he is entitled to a new dispositional hearing. Specifically, he contends that the trial court abused its discretion in denying him a continuance at the dispositional phase of the hearing so that the defendant’s psychiatric evaluation could be completed. We need not address that argument in light of our determination that the defendant is entitled to a new dispositional hearing because he was denied the opportunity personally to address the court at the original hearing.

In State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997), we held that what is now Practice Book § 43-10 (3), which affords criminal defendants the right personally to address the court at the time of sentencing, also applies to the dispositional phase of a probation revocation hearing. In Strickland, as in this case, the defendant had sought the opportunity to address the court immediately after the court had revoked his probation and imposed sentence. See State v. Strickland, supra, 342-43. The trial court denied the defendant’s request to speak and, on appeal, the Appellate Court affirmed the judgment of the trial court, concluding that the defendant had no right of allocution at the dispositional phase of the hearing. Id., 343. Upon granting the defendant’s petition for certification to appeal in Strickland, we reversed the judgment of the Appellate Court on the ground that our mies of practice provide a defendant with the right personally to address the court at the dispositional phase of a probation revocation hearing. Id., 354. This case is factually and legally indistinguishable from Strickland, Thus, in accordance with our holding in Strickland, we conclude that the defendant is entitled to a new dispositional hearing at which he will be afforded the opportunity personally to address the court.

The judgment of the Appellate Court is affirmed to the extent that it affirmed the trial court’s finding that the defendant violated the conditions of his probation; the judgment of the Appellate Court is reversed to the extent that it affirmed the trial court’s revocation of the defendant’s probation and order sentencing him to serve his previously suspended three year prison sentence, and the case is remanded to the Appellate Court with direction to remand the case to a new trial court to conduct another dispositional hearing at which the defendant is to be afforded the right of allocution.

In this opinion BORDEN, NORCOTT and KATZ, Js., concurred.

BERDON, J.,

concurring in part and dissenting in part. In the present case, the defendant, a sixteen year old African-American named Marlik Mourning (Marlik), was sentenced to spend three months in prison for each of twelve times that he was late for school. Just days after oral argument, we issued a unanimous per curiam opinion ordering Marlik’s immediate release from prison “for reasons that [would] appear in a full opinion to be released subsequently . . . -” State v. Mourning, 247 Conn. 634, 635, 723 A.2d 316 (1999). We all agreed that “it [was] necessary that [Marlik’s] incarceration be terminated immediately . . . .” Id. Unfortunately, however, my colleagxies are unwilling to address the real injustice that lies at the heart of this case. Instead, they have decided this appeal on a technicality. This disposition will once again fuel the perception among members of the African-American community that our system of criminal justice is stacked against them. See, e.g., State v. Hodge, 248 Conn. 207, 269-74, 726 A.2d 531 (1999) (Berdon, J., dissenting) (observing, inter alia, that “conventional wisdom among African-Americans and other minorities is that they are not treated fairly throughout our judicial system because of their race”); Connecticut Judicial Branch, Statewide Public Trust and Confidence Study (October, 1998) p. 17 (finding that 45.5 percent of Connecticut residents polled believe that “Connecticut courts discriminate against minorities”).

The trial court revoked Marlik’s probation for no reason other than this: he had a habit of sleeping late and, as a consequence, was often tardy for school. As her son was led away to prison, Marlik’s mother speculated that the trial court’s sentence was racially motivated. Although there is absolutely no evidence in the record to support such a conclusion, it is clear- that Marlik’s mother believed it. Moreover, it is all too easy to imagine that other members of the African-American community, upon learning of the circumstances surrounding Marlik’s incarceration, would reach a similar conclusion. Marlik’s mother also repeatedly emphasized that the court’s ruling was “unfair.” With this I agree. To rephrase this agreement in the language of legal discourse, I believe that the trial court abused its discretion by revoking Marlik’s probation and imposing the sentence that it did.

Before turning to the merits of this case, it is necessary to address the fact that the majority decides this case on the technicality that Marlik was deprived of his right of allocution. This issue was never argued by Marlik; was never considered — let alone decided — by the Appellate Court; and has nothing to do with the issue that we certified. See footnote 21 of the majority opinion. Perhaps most importantly, this issue has absolutely nothing to do with the outcome in this case. While I agree that the trial court committed a serious error by depriving Marlik of his right of allocution, the transcript strongly suggests that there was nothing Marlik possibly could have said that would have changed the order of the trial court. See the excerpts from the colloquy between Marlik and the court that occurred at the end of the violation of probation hearing, which is set forth later in this dissent. Significantly, this is not a case in which the trial court simply forgot to ask Marlik whether he wished to be heard. In this case, Marlik repeatedly implored the court to listen to him. Again and again, the trial court refused these requests.

I now turn to the issue that this case is actually about. In order to fully understand the abuse of discretion in this case (and the grave accusation that Marlik’s mother leveled against the trial court), I find it necessary to discuss the facts underlying Marlik’s initial conviction as a youthful offender. At approximately 5:30 on the morning of June 7,1995, an African-American man allegedly groped a 200 pound white woman while she sat on the front steps of her house and smoked a cigarette. Several hours later, a police officer drove the complainant around the area of the assault in an effort to find the assailant. During this drive, the complainant was inattentive, as she had had only four hours of sleep the night before. The officer pointed to Marlik, who was walking toward his school bus, and asked the complainant if he was the assailant. She responded in the affirmative. At a bench trial before the same judge who ultimately revoked Marlik’s probation, the complainant once again identified Marlik as the assailant.

The assault occurred during the darkness of 5:30 in the morning, and the complainant had not been wearing her glasses. Nevertheless, the complainant provided the police with a detailed description other assailant before she identified Marlik on the morning of the assault. According to this description, the assailant bears little resemblance to Marlik, except that they are both African-American. The complainant told the police that the assailant had a medium black skin tone, big round eyes, and a medium build. None of these details describes Marlik, who has very dark skin, almond-shaped eyes, and a slender build. In addition, Marlik’s clothing was completely different from the clothing worn by the assailant. Moreover, Marlik was sixteen years old at the time of his arrest, and the complainant stated that her assailant was between eighteen and twenty years old. The complainant’s in-court identification was not corroborated by any other evidence.

Marlik presented a defense of mistaken identity. More specifically, he testified that he had overslept on the morning of the alleged assault. As we know, Marlik had a habit of oversleeping. Marlik testified that he was in bed, fast asleep, at 5:30 on the morning of the assault. His uncle corroborated this account. William Curtis, the director of a Danbury youth center, testified that Marlik is not an aggressive person and has no history of committing sexual assault or any similar offense.

Marlik’s case was both simple and compelling: (1) it was dark at the time of the assault; (2) the complainant was not wearing her glasses at the time of the assault; (3) Marlik was asleep at the time of the assault; and (4) the initial description of the assailant did not describe Marlik. Despite these evidentiary difficulties, the trial court found Marlik guilty of sexual assault in the third degree. In order to rationalize this judgment, the trial court relied upon an inculpatory fact that had no evidentiary foundation: it announced that the complainant saw the assailant’s face when he used a match to light a cigarette. Although the complainant testified that the assailant smoked a cigarette, there was not a shred of evidence before the trial court that tended to suggest that the complainant ever got a good look at his face.

The following colloquy took place at the sentencing:

“[Marlik’s Mother]: . . . [The assailant] was not my son. The whole description of the person is not my son, but there is nothing I could do about it.

“The Court: . . . The court heard the evidence and made a decision on whether it believed your son — it didn’t. . . .

“[Marlik’s Mother]: [I]t’s not my son and it’s totally a whole different description—

“The Court: As far as this proceeding is concerned, it’s your son, he’s been convicted of it.

“[Marlik’s Mother]: Yeah, but in reality, that’s not right—

“The Court: Reality aside, he is the person who did it as far as this court is concerned—

“[Marlik’s Mother]: Yeah.

“The Court: — and there will be no more discussion about that — that’s over.

* *

“[Marlik’s Attorney]: . . . [N]othing’s to be gained by putting him in jail ....

“The Court: Counselor, I’ve heard that all my life; nothing is to be gained from it. What’s to be lost by it? Take him off the street where he can’t get into — do any more harm.

“[Marlik’s Attorney]: [Probation will] force him to follow the rules.

“The Court: It’s going to postpone the inevitable, that’s all it’s going to do.

* * =!■•

“I don’t care. I’ll give you one chance. You’re not going to make it, I don’t think.

* * *

“Now, don’t come back in here, again, ever, and tell me that your son didn’t get an opportunity. He’s getting an opportunity now. If he throws it away, it’s his fault, not ours.

* * *

“Nobody makes [Marlik] do anything except what he wants to do when he wants to do it.

“[Marlik’s Mother]: Believe me, I try. I do try. I’m not easy on him. I try.

“The Court: Well, it hasn’t been too successful, let’s put it that way.”

The trial court sentenced Marlik to a prison term of three years as a youthful offender, suspended the sentence, and placed him on probation.

Before being placed on probation, Marlik had been absent from school sixty times, tardy fifty-nine times, and suspended six times. While on probation, Marlik followed a sharp upward trajectory of improvement. He was absent only twice; each time, he was in bed with the flu. He was suspended only once, for leaving school grounds during recess to buy a can of soda from a nearby store.1 recognize that Marlik was often tardy. He was tardy because he habitually overslept.

After he had been on probation for five months, Marlik was arrested on a warrant that was issued because he had violated the terms of his probation by being late to school. During his probation, Marlik had become substantially more diligent about his studies. It is apparent to me that probation — as opposed to incarceration — promoted the best interests of Marlik, the best interests of society, and the interests of justice. Recognizing this fact, Shaun Ratchford, the director of a program for students needing academic assistance in which Marlik was enrolled, offered his “strong recommendation that violation of Marlik’s probation [should] not result in incarceration . . . .” (Emphasis in original.) The complainant from the underlying offense joined in this recommendation.

Although Marlik was arrested for violating the terms of his probation on May 9,1996, a special public defender was not appointed to represent him until September 12, 1996. Apparently, the trial court continued the case multiple times during the intervening four months. Just six days after she was finally appointed, Marlik’s attorney sought to retain a psychologist — at the state’s expense— to evaluate Marlik. Marlik’s attorney intended to present the results in his defense at the hearing on the violation of his probation. Marlik met with the psychologist for the first time on October 8,1996, foraninety minute appointment. Additional appointments were scheduled for October 21 and October 28.

The same trial judge who had convicted and sentenced Marlik conducted a probation violation hearing on October 17,1996 — a few days before Marlik’s second scheduled appointment and just more than one week before his third and final scheduled appointment. Marlik’s attorney sought a continuance because the psychologist had not yet completed her evaluation. The trial court’s sole response to this request was to ask “Is there anything else?” and — upon being told that there was not — informed the sheriff that “[Marlik is] remanded to custody . . . .” For all intents and purposes, the trial court ignored the public defender’s request for a continuance. In so doing, the trial court clearly acted upon its sense that “the probation system [has] become ajoke” and that “[w]e’re continuing cases . . . until they go out of style.” While it is true that four months elapsed between the time when Marlik was arrested for violating his probation, it is apparent that this delay was not Marlik’s fault. More to the point, whether or not there is any merit to the trial court’s obvious frustration, the court should not have sought catharsis by depriving a sixteen year old of his liberty.

In my view, the trial court abused its discretion by refusing to consider the psychologist’s report before (1) finding that Marlik had violated his probation and (2) sentencing him to spend three years of his life behind bars. The majority counters that Marlik “has failed to demonstrate how the psychiatric evaluation possibly could have had any bearing on the court’s finding of a violation.” This assertion is silly. If the psychologist’s report had demonstrated that Marlik’s tardiness was attributable to psychological difficulties that were beyond his control, then of course this evidence would have been relevant to the issue of wilfulness. Equally important, the psychologist could have testified as to (1) whether incarceration held any promise of contributing to Marlik’s rehabilitation and (2) whether Marlik represented a threat to any members of the community. Accordingly, even if the trial court had found a wilful violation after considering the psychological evaluation, the psychologist’s testimony might have enabled the court to realize that sentencing a sixteen year old to spend three months in jail for each of the twelve times that he was late for class was so grotesquely disproportionate as to constitute an abuse of discretion.

The following colloquy took place at the end of the trial court’s hearing on Marlik’s violation of the terms of his probation:

“The Court: . . . The court is tired of people who abuse the violation of probation — the probation system [has] become a joke. We’re continuing cases on here until they go out of style ....

“[Marlik is] ordered committed to the custody of the commissioner] of correction ....

“[Marlik’s Attorney]: Your Honor, I’d like to be heard on sentencing. I didn’t have any opportunity to be heard on sentencing after you found the violation of probation.

“The Court: Go ahead.

“[Marlik’s Attorney]: . . . [T]he school recommends that he not be incarcerated, but [rather] placed in a residential placement. ... I think that ought to be considered by the court and that we have time to complete the [psychological] evaluation and find an appropriate residential placement for [Marlik].

“The Court: Is there anything else? Is there anything else?

“[Marlik’s Attorney]: No, Your Honor.

“The Court: He’s remanded to custody, Sheriff. . . .

“[Marlik]: Your Honor, I’m trying.

“The Court: He’s remanded to custody, that’s the end of it. Now.

“[Marlik]: Your Honor, I’ll start going to school.

“[Marlik’s Mother]: Your Honor, [he’s getting] railroaded] ....

“[Marlik]: Your Honor, can I please talk to you—

“[Marlik’s Mother]: If I would have known this was going to [happen], I would have had witnesses here to talk in my son’s favor. You didn’t even allow him that.

“[Marlik]: Your Honor, please. Please.

“[Marlik’s Mother]: He’s not a bad kid. He’ll change, Your Honor, but you don’t even give us a chance to prove it.

“[Marlik]: Your Honor, Ijust want to — I just want to—

“[Marlik’s Mother]: He did not commit that crime.

“The Court: Sheriff. You [are] remanded to custody. Go. . . .

“[Marlik’s Mother]: If he was a white kid, he wouldn’t be—

“[Marlik]: [I’ve been] trying since I got out last time, [I’ve been] doing good. I go to school, I’ll look for a job, Your Honor.

“[Marlik’s Mother]: He didn’t rape no white woman.

“[Marlik]: Your Honor, can I please talk to you please. Talk to me, please. I want to talk to you—

“[Marlik’s Mother]: It’s not fair to my son.

“[Marlik]: Please, Your Honor.

“[Marlik’s Mother]: You’re not fair to my son.

“The Court: Your son has been given every opportunity, I told you that at the sentencing.

“[Marlik’s Mother]: No, it’s not fair.

“The Court: And I told you that at the sentencing.

“[Marlik’s Mother]: No, it’s not fair.

“The Court: I’ve heard you before.

“[Marlik’s Mother]: It’s not fair.

“The Court: There was no—

“[Marlik’s Mother]: It’s not fair.

“The Court: There was no attempt to have you heard this time.

“[Marlik’s Mother]: No, you railroad[ed] and hurt my child.

“The Court: That’s all.”

More than 800 days of Marlik’s life have been irretrievably lost to the horrors of prison. Unfortunately, I have no power to undo that. Because it is all that I can do, I dissent from the majority’s conclusion that the trial court did not abuse its discretion by revoking Marlik’s probation, thus sentencing a sixteen year old to spend three months in prison for each of the twelve times that he overslept.

       On January 25, 1999, five days after oral argument in this appeal, we granted the defendant a new dispositional hearing. Because the defendant already had served over 800 days of his three year sentence as of that date, we immediately issued a per curiam decision reversing the judgment of the Appellate Court and remanding the case to that court with direction to: (1) reverse the judgment of the trial court in part; and (2) remand the case to the trial court for a new dispositional hearing. State v. Mourning, 247 Conn. 634, 635, 723 A.2d 316 (1999). We also indicated that this opinion, which more fully explains our reasons for reversing the judgment of the Appellate Court, would be released subsequently. Id.

       See General Statutes § 54-76b et seq.

       General Statutes § 53a-72a provides in relevant part: “Sexual assault in the third degree ... (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . . .”

       The defendant also was required, as a condition of his probation, to undergo random urine testing due to his illegal drug use.

       The report submitted to the defendant’s probation officer by the school indicated that there were twenty-two days in the month of March when school was open and the defendant was expected to be in attendance.

       General Statui es (Rev. to 1995) § 53a-32 provides in relevant part: “Violation of probation or conditional discharge: Arrest; procedure, (a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge . . . . Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. . . . Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       The probation revocation hearing was held before the same trial judge who had adjudicated the defendant a youthful offender and imposed the suspended three year prison sentence.

       Although the state, in closing argument, directed the court’s attention specifically to the defendant’s repeated tardiness, the state also relied on the defendant’s unexcused absences and suspension from school to support its claim that the defendant had violated the conditions of his probation.

       Defense counsel also indicated that she needed the additional time to find a suitable residential placement for the defendant.

       Immediately after the trial court had imposed sentence and remanded the defendant to custody, the defendant asked: “Your Honor, can I please talk to you?” Shortly thereafter, the defendant again tried to get the court’s attention, but was interrupted by his mother, who insisted upon addressing the court — sometimes in wholly inappropriate terms — even after the sentence had been imposed. Finally, before the sheriff removed the defendant from the courtroom, the defendant once again stated: “Your Honor, can I please talk to you, please? Talk to me, please? I want to talk to you — ”

       As we have stated, “a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the . . . court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of ‘the whole record,’ the trial court ‘may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.’ General Statutes § 53-32 (b). In malting this second determination, the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) (Citation omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994).

       The psychiatric evaluation was not completed by October 17, 1996, the date of the probation revocation hearing, even though the defendant had been arrested for allegedly violating the conditions of his probation on May 9, 1996.

         The state has the burden of establishing a violation of the conditions of probation by a fair preponderance of the evidence. State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994).

       The defendant testified that he did not have an alarm clock. He gave no reason, however, for not obtaining one.

       The defendant does not claim that the condition of his probation requiring that he not be tardy was unlawful or otherwise improper.

       We note that the trial court, when imposing sentence in connection with the defendant’s third degree sexual assault conviction, indicated that the defendant needed structure in his life and expressly informed the defendant that he would be imprisoned if he did not comply strictly with the conditions of his probation. Indeed, defense counsel, who had acknowledged that the defendant’s “real problem in life is his chronic tardiness, which has affected his schoolwork and family,” urged the court to “[p]ut something hanging over his head that’s going to force him to follow the rules.”

       The dissent gratuitously iqjects the specter of racial discrimination into this case. This case is not about discrimination, and no such allegation ever has been raised by the defendant or defense counsel, either in the trial court or on appeal.

       As we indicated in our per curiam decision announcing our judgment in this case; see State v. Mourning, 247 Conn. 634, 635 n.1, 723 A.2d 316 (1999); the defendant now will have the opportunity to pursue the psychiatric evaluation if he still wishes to do so.

       Practice Book § 43-10, formerly § 919, provides in relevant part: "Sentencing Hearing; Procedures to Be Followed
      “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows . . .
      “(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. . . .”

       We note that the per curiam decision of the Appellate Court in this case was issued on December 2, 1997, the very same day on which we released our decision in Strickland.

       It bears mention that even though this case is controlled by our holding in Strickland, neither party referred to that case, or raised the issue decided by that case, in their briefs or at oral argument. Although we normally would not decide an issue that has not been raised by the parties without first affording the parties an opportunity to address it, we have chosen to deviate from that practice in this case because we are satisfied that Strickland, which we decided approximately one and one-half years ago, cannot be distinguished from this case. Moreover, for whatever reasons, we did not hear oral argument in this case until the defendant had completed approximately three quarters of his three year prison sentence. In light of our holding in Strickland, any further delay in the resolution of this appeal simply cannot be justified.

       By the time we entered our order of release, Marlik had been incarcerated for more than 800 days.

       Although the interim per curiam opinion, which I joined, focused on the "dispositional phase of the probation revocation proceeding”; State v. Mourning, supra, 247 Conn. 635; I now conclude for the reasons set forth in this dissent that Marlik is entitled to a new hearing on whether he wilfully violated his probation. See footnote 10 of this dissent.

       In its original opinion released on June 8,1999, the majority conceded that "[t]he state relied solely on [Maxlik’s] tardiness to support its claim that [he] had violated the conditions of his probation." (Emphasis added.) The clairvoyant majority, in an amendment to its original published opinion, now claims that “the state also relied on [Marlik’s] [two] unexcused absences and suspension from school” (based on Marlik’s purchase of a soda off school grounds), notwithstanding the failure of the state to advance those claims in its argument before the trial court. See foot note 8 of the majority opinion.

       The majority states that “[t]his case is not about discrimination, and no such allegation ever has been raised by [Marlik] or defense counsel . . . This statement simply misses the point. It is technically true that Marlik did not allege that he was the victim of discrimination; because he was denied his right of allocution, he had no opportunity to do so. It is also technically true that defense counsel did not advance this argument. The whole truth, however, is that Marlik’s mother articulated with unambiguous clarity her opinion that the trial court imposed a draconian sentence upon her child because he was African-American. Far from feeling any desire to “[inject] the specter of racial discrimination into this case,” I simply feel it is my obligation to report the statements that Marlik’s mother made. On the record and in open court, Marlik’s mother expressed her belief that the trial court was swayed by two invidious facts: (1) Marlik is African-American; and (2) the alleged victim of the underlying offense is white. Under the circumstances of this case, we simply cannot ignore this belief, which echoes those held by nearly one half of the respondents to the recent Statewide Public Trust and Confidence Study, supra. In my view, the trial court abused its discretion by failing to make any effort to dispel the appearance of injustice.

       We granted certification limited to the following issue: “Under the circumstances of this case, did the trial court abuse its discretion by revoking [Marlik’s] probation of a conviction as a youthful offender and by sentencing [him] to imprisonment?” State v. Mourning, 244 Conn. 924, 714 A.2d 11 (1998). It is apparent that this question has nothing to do with depriving Marlik of his right of allocution.

       Based upon the record before us, there is a substantial doubt in my mind that Marlik committed the underlying offense. Nevertheless, I realize that this concern lies outside 1he scope of the question that is before the court. See footnote 5 of this dissent.

       There is no evidence in the record suggesting that Marlik knew that his errand constituted an infraction of school rules.

       Although an undated appearance form was filed by an attorney from the public defender’s office on behalf of Marlik, that attorney did not represent him because of a conflict of interest. The conflict was based on the fact that the public defender’s office previously had represented Marlik’s accuser who herself had a prior criminal case that had resulted in a conviction. A special public defender was not appointed as trial counsel until September 12, 1996.

       Trial counsel for Marlik pointed out before the Appellate Court: “The next day [after appointment of trial counsel for Marlik on September 12, 1996] I had contacted the doctor to find out the cost and whether an evaluation could be done. On [September 18] I put in the request for funds, which was granted on October 1. And between October 1 and October 17,1 managed to get at least one appointment in with the doctor. So I did indicate to the [trial] judge at the beginning,‘this is what I’ve done. . . . And we just haven’t had time to get it finished because we had to go through the public defender’s office and get the funds.’ And that was why I was requesting a continuance so that I could have that evidence to present. And the [trial] judge did not permit that. He precluded me from presenting evidence that would support our proposition that [Marlik] was still receiving the . . . benefits of probation and that probation should be continued.”

       The evaluation was delayed until early October because it took a considerable amount of time to obtain approval for the funds used to retain the psychologist. See footnote 12 of the majority opinion.

       As discussed previously, Marlik’s attorney sought to retain a psychologist just six days after she was appointed. See footnote 9 of this dissent.

       The trial court was required to make an inquiry “into the reasons for the failure to obey the conditions of probation and an assessment ... as to whether those reasons fall into the category of willful disobedience of the court’s sentence .... See Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).” State v. Cooley, 3 Conn. App. 410, 414, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1241 (1985).
      Furthermore, the majority’s claim of irrelevance disregards the fact that the trial court authorized the expenditure of $1000 of the state’s funds in order to conduct a psychological evaluation of Marlik. Clearly, the trial court believed at one point that such an evaluation might have some bearing upon its deliberations. Having made such a determination, I believe that the trial court abused its discretion by revoking Marlik’s probation just days before the state-sponsored evaluation was scheduled to have been completed.

       In my view, the state has an obligation to make appropriate professional services available to Marlik, in an effort to (1) address the trauma caused by his incarceration and (2) compensate for any education that he may have missed.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. DAVID BISPHAM
    (SC 15925)
    Callahan, C. J., and Norcott, Katz, McDonald and Peters, Js.
    Argued April 21

    officially released June 8, 1999

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin J. Murphy, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was granted improvidently.

The appeal is dismissed.

       We granted the defendant’s petition for certification to appeal from the judgment of the Appellate Court; State v. Bispham, 48 Conn. App. 135, 708 A.2d 604 (1998); limited to the following issue: “Did the Appellate Court properly conclude that the trial court did not abuse its discretion in admitting a written statement of the complainant as constancy of accusation evidence, and that the defendant did not show prejudice from the admission of such evidence, despite the prosecutor’s closing argument that the written statement would be available for review in the jury room to support the complainant’s credibility?” State v. Bispham, 244 Conn. 929, 711 A.2d 728 (1998).