author: Peters, C. J.

text:
    Connecticut Education Association, Inc., et al. v. Gerald Tirozzi et al.
    (13380)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued January 3
    decision released March 7, 1989

      Ronald Cordilico and Robert F. McWeeny, for the appellants (plaintiffs).

      John R. Whelan, assistant attorney general, with whom were Robert C. Walsh, certified legal intern, and, on the brief, Joseph I. Lieberman, former attorney general, for the appellees (defendants).

      Patrice A. McCarthy filed a brief for the Connecticut Association of Boards of Education as amicus curiae.
   Peters, C. J.

The dispositive issue in this case, which comes to us by way of reservation, is whether General Statutes (Rev. to 1989) § 10-145b (i) violates the plaintiffs’ due process and contractual rights guaranteed by the federal and state constitutions. The plaintiffs, the Connecticut Education Association, Inc., the Connecticut State Federation of Teachers, Phyllis Greene and Harriet Strain, brought suit in the Superior Court seeking a declaratory judgment that General Statutes (Rev. to 1989) § 10-145b (i) is unconstitutional. The trial court granted the parties’ motion for reservation to the Appellate Court upon stipulated facts to determine the provision’s constitutionality. We transferred the case here pursuant to Practice Book § 4023 and now answer the reserved question in the negative.

Pursuant to Practice Book § 4148, the parties stipulated to the following facts. The plaintiffs, the Connecticut Education Association, Inc., and the Connecticut State Federation of Teachers, Inc., are nonprofit corporations and labor organizations representing public school teachers and local teacher bargaining representatives pursuant to General Statutes § 10-153a. The plaintiff Phyllis Greene resides in Portland, teaches in the Portland public school system and holds a standard teaching certificate issued by the state department of education. The plaintiff Harriet Strain resides in Killingworth, teaches in Old Saybrook and holds a permanent teaching certificate also issued by the state department of education. The defendant Gerald Tirozzi, the state commissioner of education, and the defendant state board of education (board) are jointly charged with the general supervision and control of the state’s educational interests. See General Statutes §§ 10-1, 10-3a and 10-4.

Several statutes provide a frame of reference for the issues in this case. General Statutes (Rev. to 1989) § 10-145, enjoins local boards of education from employing or paying any teacher who does not hold an appropriate state-issued teaching certificate. See Ames v. Board of Education, 167 Conn. 444, 446, 356 A.2d 100 (1975). Related statutes confer upon the defendant board the responsibility for issuing teaching certificates and adopting certificate regulations. General Statutes (Rev. to 1989) §§ 10-144o, 10-145a (a), 10-145d (a) and 10-146b.

Before May, 1986, a two-tiered certification process governed Connecticut school teachers. Newly certified teachers received “provisional teaching certificates,” valid for no fewer than three years. Thereafter, teachers became eligible to receive a “standard teaching certificate,” valid for life and revocable only “for cause,” as provided by statute. General Statutes (Rev. to 1985) § 10-144o; General Statutes (Rev. to 1989) § 10-145b (m); Ames v. Board of Education, supra, 446.

On July 2, 1986, the General Assembly passed the legislation presently at issue, Public Acts, Spec. Sess., May, 1986, No. 1, entitled “An Act Concerning Education Enhancement” (act). The act, as amended by Public Acts 1988, No. 88-273, replaced the two-tiered certificate system with a three-tiered system, beginning with an “initial educator certificate,” graduating to a “provisional educator certificate” and finally to a “professional educator certificate.” General Statutes (Rev. to 1989) § 10-144o (2), (5) and (7). To remain certified to teach, those teachers holding standard or permanent teaching certificates must, by July 1, 1989, exchange them for professional educator certificates. The standard or permanent teaching certificates will be invalid after July 1, 1989. General Statutes (Rev. to 1989) § 10-145b (i). Thus, by July 1,1989, over 30,000 active teachers must surrender their teaching certificates.

The new professional educator certificates will be issued for five year renewable terms. The act, however, conditions the renewal of the certificates solely upon each teacher’s “successful completion of professional development activities which shall consist of not less than nine continuing education units [CEUs] or their equivalent . . . during each successive five-year period.” General Statutes (Rev. to 1989) § 10-145b (l) (l). The act requires state and local or regional boards of education to underwrite the entire cost of CEU offerings. As the plaintiffs conceded at oral argument before this court, the only burden that the act imposes upon teachers already holding standard or permanent teaching certificates is the successful completion of the CEUs.

The provisions for the exchange of certificates and for the continuing education were enacted as part of a comprehensive legislative package intended to upgrade public education in this state. A major purpose of the act was to attract a greater number of qualified people to enter and to remain in the teaching profession. Recognizing the importance of higher salaries to the achievement of this goal, the legislature offered state money to each local and regional school district so that new teachers could be hired at a “state designated target minimum salary.” General Statutes (Rev. to 1989) §§ 10-257a (e), 10-257b. Further funding was provided to school districts so that they could increase the salaries of experienced teachers, address the problem of crowded classrooms, provide mentor and assessment programs and otherwise enhance their general educational offerings. General Statutes (Rev. to 1989) §§ 10-257c, 10-257d and 10-2571 In return for these financial enhancements of the teaching profession as a whole, individual teachers are being required to improve their own teaching skills by completing nine CEUs within five teaching years after they receive their new professional educator certificates in July, 1989. The plaintiffs claim that the mandatory substitution of these certificates for the teaching certificates they presently hold will violate their constitutional rights to due process and to protection of contracts.

I

The plaintiffs make two separate due process arguments: procedural and substantive. We conclude that the act does not violate the plaintiffs’ due process rights in either respect.

A

Analysis of the plaintiffs’ procedural due process claim requires a three part inquiry: (1) did the plaintiffs have a property interest in their standard and permanent teaching certificates; (2) does General Statutes (Rev. to 1989) § 10-145b (i) deprive them of that property interest; and (3) did the deprivation of the interest occur without due process of law? Although we agree with the plaintiffs that they have a property interest that is constitutionally cognizable, we conclude that this interest has not been unconstitutionally impaired.

“Property” is a “broad and majestic” term and a great constitutional concept “ ‘purposely left to gather meaning from experience.’ ” Board of Regents v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), quoting National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S. Ct. 1173, 93 L. Ed. 1556 (1949) (Frankfurter, J., dissenting). Property interests are more than abstract needs, desires or unilateral expectations of benefits or privileges. Rather, a person must have “a legitimate claim of entitlement” to a benefit or privilege to have a property interest in that benefit. Board of Regents v. Roth, supra, 577. “Property interests are not created by the Constitution, ‘they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . ’ ” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), quoting Board of Regents v. Roth, supra, 577; see also Paul v. Davis, 424 U.S. 693, 709, 96 S. Ct. 1155, 47 L. Ed. 2d 405, reh. denied, 425 U.S. 985, 96 S. Ct. 2194, 48 L. Ed. 2d 811 (1976). “The hallmark of property . . . is an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ ” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982). A person has an entitlement in a benefit or privilege if there are “rules or mutually explicit understandings that support his claim of entitlement to the benefit . . . that he may invoke at a hearing.” Perry v. Sinderman, 408 U.S. 593, 601, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); see also Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 48 L. Ed 2d 684 (1976); Bartlett v. Krause, 209 Conn. 352, 362-63, 551 A.2d 710 (1988); 2 R. Rotunda, J. Nowak & J. Young, Constitutional Law: Substance and Procedure (1986) § 17.5, pp. 234-36.

Under the governing statutes and case law, the rights of Connecticut school teachers in their teaching certificates qualify as a property interest because these certificates are needed in order to obtain and maintain a teaching position. General Statutes (Rev. to 1989) § 10-145. Connecticut law provided, prior to the act at issue, that the defendant board could only revoke a teacher’s certificate “for cause,” as defined specifically by statute. General Statutes § 10-145b (m). Accordingly, we have expressly held that “[a] teacher who is given by statute the right to continued employment except upon a showing of cause or the bona fide elimination of his position . . . acquires a property right that is entitled to protection under the due process clause.” Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980). Our holding in Lee readily encompasses the proposition that teachers also have a property interest in the rights that inhere in the underlying certificates guaranteeing their employment. “Once licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood. ... In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971) (driver’s license of a clergyman whose ministry required travel by car); see also Pet v. Department of Health Services, 207 Conn. 346, 353-54, 542 A.2d 672 (1988) (license to practice medicine); Leib v. Board of Examiners for Nursing, 177 Conn. 78, 83, 411 A.2d 42 (1979) (registered nurse’s license); Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 45, 327 A.2d 588 (1973) (license to sell and repair automobiles).

The conclusion that the plaintiffs have a constitutionally protected property interest in their certificates does not of course establish that these property rights have been unconstitutionally compromised by the enactment of General Statutes (Rev. to 1989) § 10-145b (i). It bears repeating that, on July 1,1989, the plaintiffs’ new certificates will afford them the very same rights they had before the act’s passage except that they will have to complete nine CEUs, or their equivalent, within five teaching years, in order to renew their certificates for another five years.

Significantly, the plaintiffs do not contend that the constitution prevents the state, or even a local or regional school board, from imposing additional educational requirements as a condition for continued service as a teacher. Federal cases support the proposition that such educational requirements do not create an unconstitutional burden. “ ‘[LJegislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations.’ ” United States v. Locke, 471 U.S. 84, 104, 105 S. Ct. 1785, 85 L. Ed. 2d 64 (1985), quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976). Furthermore, “[e]ven with respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or to condition their continued retention on performance of certain affirmative duties. As long as the constraint or duty imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such new constraints or duties.” United States v. Locke, supra, 104; see also Brown v. McGarr, 774 F.2d 777, 782 (7th Cir. 1985) (completion of qualifying units a valid condition for admittance to the “trial bar,” even for an attorney who had already been a member of the bar before the creation of the “trial bar”). The plaintiffs implicitly concede, therefore, that the legislature could constitutionally have subjected their existing teacher certificates to divestment, under § 10-145b (m) or otherwise, should they fail to complete the nine CEUs within five teaching years.

The explicit focus of the plaintiffs’ constitutional argument is their dissatisfaction with the statutory mandate that they trade lifetime certificates for renewable ones. We are not persuaded that the difference between the existing standard and permanent teaching certificates and the prospective professional educator certificate is a distinction of constitutional dimension, when completion of the educational requirement is the only statutory condition for renewal of the new certificates. The plaintiffs, in effect, argue that although an added educational requirement may operate constitutionally as a condition subsequent to the continuing validity of an existing teaching certificate, the identical requirement becomes unconstitutional when it is a condition precedent to renewal of a new certificate. Our reading of the relevant constitutional cases discloses no support for this proposition. See, e.g., Rogers v. Bellei, 401 U.S. 815, 833-34, 91 S. Ct. 1060, 28 L. Ed. 2d 499 (1971); Ramos-Hernandez v. Immigration & Naturalization Service, 566 F.2d 638, 642 (9th Cir. 1977). Taking into account the legislature’s laudable objective of upgrading education, we conclude that the act does not constitute a significant present impairment or deprivation of the plaintiffs’ property interests in their teaching certificates, and therefore does not violate their procedural due process rights.

Even were we to find that the act unconstitutionally impairs the plaintiffs’ property interests, “ ‘the question remains what process is due’ ”? Federal Deposit Ins. Corporation v. Mallen, 486 U.S. 230, 240, 108 S. Ct. 1780, 100 L. Ed. 2d 265 (1988); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The “root requirement” of the due process clause is that the state actor afford individuals notice and an opportunity for a hearing before depriving them of their property interests. Cleveland Board of Education v. Loudermill, supra, 542; Boddie v. Connecticut, 401 U.S. 371, 379, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971); Bartlett v. Krause, supra, 372. Although the defendants concede that there was no hearing at which individual teachers had the opportunity to protest the termination of their existing certificates, the legislature provided the plaintiffs with all the process that is their constitutional due. “In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute’s reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements.” United States v. Locke, supra, 108; Texaco, Inc. v. Short, 454 U.S. 516, 532, 102 S. Ct. 781, 70 L. Ed. 2d 738 (1982). In this case the proposed act had been much publicized and the plaintiffs had not only been afforded “a reasonable opportunity to familiarize themselves” with it, but the two plaintiff unions, which also represent the individual plaintiffs, participated in the committee hearings leading up to the act. See Conn. Joint Standing Committee Hearings, Education, Pt. 1,1986 Sess., pp. 156-62, 169-70,172-74 and 206-208. Thus, the legislature accorded to the plaintiffs all the process they were due.

B

We also disagree with the plaintiffs’ claim that the act violates their constitutional rights to substantive due process. The plaintiffs do not belong to a constitutionally recognized suspect class and they have not alleged the impairment of a fundamental constitutional right. Their claim must be tested, therefore, in accordance with the rules that normally govern constitutional challenges of economic or social welfare legislation, by ascertaining whether the legislature has acted arbitrarily or irrationally.

Constitutional attacks on the rationality of economic or social welfare legislation must rebut the presumption of constitutionality that attaches to such legislation. “ ‘[T]he burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.’ ” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 83, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978), quoting Usery v. Turner Elkhorn Mining Co., supra, 15; see also Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 28, 523 A.2d 467 (1987); Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 186, 479 A.2d 1191 (1984); Brunswick Corporation v. Liquor Control Commission, 184 Conn. 75, 82-83, 440 A.2d 792 (1981). The plaintiffs have not satisfied this heavy burden. It was not arbitrary or irrational for the legislature to decide that its goal of enhancing the quality of the state’s educational system as a whole required even teachers who had attained permanent status to continue to sharpen their educational skills. We thus conclude that the act does not violate the plaintiffs’ rights to substantive due process.

II

Finally, the plaintiffs argue that the act violates the constitutional prohibition against impairment of the obligation of their contracts with their respective employers, the local and regional boards of education. U.S. Const., art. I, § 10. Their claim of impairment has three predicates, not all of which are equally persuasive. First, General Statutes (Rev. to 1989) § 10-151 (c) and (d) creates a continuing obligation on the part of each board of education to employ the plaintiffs while they are properly certified. Second, General Statutes (Rev. to 1989) § 10-145 precludes a board of education from continuing to employ or pay a teacher who does not possess a state-issued certificate. Third, any substantial impairment of their continued access to state-issued certification interferes with their employment relationships with their boards of education. We have no reason to question the first two of these predicates. With respect to the third, however, we conclude that the plaintiffs’ employment contracts have not been unconstitutionally impaired by making their teaching certificates, and hence their continued employability, conditional upon their completion of nine CEUs every five teaching years, as required by General Statutes (Rev. to 1989) § 10-145b (i).

“Unlike other provisions in [article I], it is well-settled that the prohibition against impairing the obligation of contracts is not to be read literally.” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 502, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987); see also Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 428, 54 S. Ct. 231, 78 L. Ed. 413 (1934). “Thus, a finding that there has been a technical impairment is merely a preliminary step in resolving the more difficult question whether that impairment is permitted under the Constitution.” United States Trust Co. v. New Jersey, 431 U.S. 1, 21, 97 S. Ct. 1505, 52 L. Ed. 2d 92, reh. denied, 431 U.S. 975, 97 S. Ct. 2942, 53 L. Ed. 2d 1073 (1977). “The threshold question is whether the state law has in fact operated as a substantial impairment of a contractual relationship. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 103 S. Ct. 697, 74 L. Ed. 2d 569 (1983). Factors to be weighed are the severity of the impairment, the extent to which it frustrates a party’s reasonable contractual expectations and the extent to which the subject matter of the impairment has been regulated in the past. Id. If the impairment is minimal the inquiry may end at the embryonic stage. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 245, 98 S. Ct. 2716, 57 L. Ed. 2d 727, reh. denied, 439 U.S. 886, 99 S. Ct. 233, 58 L. Ed. 2d 201 (1978). If, however, the impairment is severe, the legislation will be subjected to an increased level of scrutiny.” Schieffelin & Co. v. Department of Liquor Control, supra, 177-78.

Viewed from this perspective, the plaintiffs’ claim of impairment of contract obligation is, in the present context, virtually indistinguishable from their substantive due process claims, which we have already rejected in part IB of this opinion. The changes wrought by General Statutes (Rev. to 1989) § 10-145b (i) do not constitute a constitutionally unacceptable impairment of the plaintiffs’ teaching contracts. We are hard put to characterize that impairment as anything other than minimal. Furthermore, “[ejven a substantial impairment of a contractual relationship may be justified if the state regulation has a significant and legitimate purpose. Energy Reserves Group, Inc. v. Kansas Power & Light Co., supra, 403; United States Trust Co. v. New Jersey, supra, 22.” Schieffelin & Co. v. Department of Liquor Control, supra, 182. As we have noted above, the act has the significant, legitimate purpose of upgrading the state’s public education system. Thus, even if we were to conclude that the act significantly impairs the plaintiffs’ contractual relationships, the state has a sufficient interest in exercising its police power in this area for the act to pass constitutional muster.

The plaintiffs finally claim that the state was constitutionally obligated to pursue legislative alternatives that would have avoided “the draconian impact of invalidating ‘permanent’ certificates.” They argue that the General Assembly could have encouraged teachers to undertake continuing education voluntarily, by financial incentives, by restricting funds to those who do not apply for professional educator certificates or by a “myriad” of other devices. We recognize that “a State is not free to impose a drastic impairment when an evident and more moderate course would serve its purpose equally well.” United States Trust Co. v. New Jersey, supra, 31. We do not, however, agree that the means chosen by the legislature were so “drastic” or the suggested alternatives so likely to succeed that the legislature’s course of action constituted an unconstitutional impairment of the plaintiffs’ contracts of employment.

The question reserved to this court was: “Whether [General Statutes (Rev. to 1989) § 10-145b (i)J as it applies to holders of standard or permanent certificates is unconstitutional under Article First, Section 8, amended by Article XVII of the Connecticut Constitution, and/or Article First, Section 10 of the United States Constitution, and/or the Fifth Amendment of the United States Constitution and/or the Fourteenth Amendment to the United States Constitution.” For the reasons stated above, we answer “No” to the reserved question.

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 10-145b (i) provides: “Unless otherwise provided in regulations adopted under section 10-145d, in not less than three years nor more than ten years after the issuance of a provisional teaching certificate pursuant to subsection (d) of this section and upon the statement of the employing board of education that the person who holds or has held a provisional certificate has successfully completed course work pursuant to subsection (h) or (j), as appropriate, and has a record of competency in the discharge of his or her duties during such provisional period, the state board, upon receipt of a proper application, shall issue to a person who holds or has held a provisional certificate, a standard teaching certificate prior to July 1, 1989, and a professional educator certificate on or after said date. A signed recommendation from the superintendent of schools for the local or regional board of education or by the superintendent of a nonpublic school approved by the state board of education shall be evidence of competency. Such recommendation shall state that the person who holds or has held a provisional teaching certificate has successfully completed at least three school years of satisfactory teaching for one or more local or regional boards of education or approved nonpublic schools. Any person holding a standard or permanent certificate on July 1, 1989, shall be eligible to receive upon application a professional educator certificate to replace said standard or permanent certificate. On and after July 1, 1989, standard and permanent certificates shall no longer be valid.”
      The legislature initially enacted this provision as Public Acts, Spec. Sess., May, 1986, No. 1, § 23 (i), and then by Public Acts 1988, No. 88-273, changed its effective date from July 1, 1988, to July 1, 1989. The legislature had not yet amended the act prior to the reservation and, therefore, the record refers to No. 86-1. We will refer to the challenged provision as General Statutes (Rev. to 1989) § 10-145b (i) throughout this opinion.

       The question of law reserved for our advice is: “Whether [General Statutes (Rev. to 1989) § 10-145b (i)] as it applies to holders of standard or permanent certificates is unconstitutional under Article First, Section 8, amended by Article XVII of the Connecticut Constitution, and/or Article First, Section 10 of the United States Constitution, and/or the Fifth Amendment of the United States Constitution and/or the Fourteenth Amendment to the United States Constitution.”

       General Statutes (Rev. to 1989) § 10-145 provides in pertinent part: “No teacher, supervisor, administrator, special service staff member or school superintendent shall be employed in any of the schools of any local or regional board of education unless such person possesses an appropriate state certificate, nor shall any such person be entitled to any salary unless such person can produce such certificate dated previous to or the first day of employment.”

       General Statutes (Rev. to 1985) § 10-144o provides in pertinent part: “As used in section 10-145 to 10-159a, inclusive . . .
      “(2) ‘Provisional certification period’ means an initial period of no less than three years, during which the applicant for a standard teaching certificate performs the duties of a teacher;
      “(3) ‘Provisional teaching certificate’ or ‘provisional certificate’ means a license to teach during the provisional certification period, issued to a person who meets in full the preparation requirements of the state board of education;
      “(4) ‘Standard teaching certificate’ or ‘standard certificate’ means a license to teach issued to one who has successfully completed no less than three years of satisfactory teaching experience and fulfilled other requirements while holding a provisional certificate or its equivalent.”
      The predecessor to the “standard teaching certificate” was the “permanent teaching certificate,” as held by the plaintiff Strain. See General Statutes (Rev. to 1975) § 10-145a (5).
      General Statutes (Rev. to 1989) § 10-145b (m) provides: “The state board of education may revoke any certificate issued pursuant to this section for any of the following reasons: (1) The holder of the certificate obtained such certificate through fraud or misrepresentation of a material fact; (2) the holder has persistently neglected to perform the duties for which certification was granted; (3) the holder is professionally unfit to perform the duties for which certification was granted; (4) the holder is convicted in a court of law of a crime involving moral turpitude or of any other crime of such nature that in the opinion of the board continued certification would impair the standing of certificates issued by the board; or (5) other due and sufficent cause. Revocation shall be in accordance with procedures established by the state board of education pursuant to chapter 54.”

       General Statutes (Rev. to 1989) § 10-144o (2), (5) and (7) provide: “(2) ‘Initial educator certificate’ means a license to teach issued on or after July 1,1989, to a person who has successfully met the preparation and eligibility requirements specified by the state board of education for entrance into a beginning educator program . . .
      “(5) ‘Provisional educator certificate’ means a license to teach, issued on or after July 1, 1989, to a person who (A) has successfully completed the beginning educator program and not less than one school year of successful teaching in a public school or (B) has completed at least three years of successful teaching in a public or nonpublic school approved by the state board of education or appropriate governing body in another state within ten years prior to application for such provisional educator certificate . . .
      “(7) ‘Professional educator certificate’ means a license to teach issued on or after July 1,1989, initially to a person who has successfully completed not less than three school years of teaching in a public school or nonpublic school approved by the state board of education while holding a provisional educator or provisional teaching certificate and has successfully completed not fewer than thirty semester hours of credit beyond a bachelor’s degree. Said certificate shall be continued every five years after issuance upon the successful completion of not less than nine continuing education units or their equivalent, as defined by the state board of education, during each successive five-year period. The successful completion of continuing education units shall only be required for certified employees of local and regional boards of education.”

       The renewal requirement applies only to “employees of local and regional boards of education.” General Statutes (Rev. to 1989) § 10-145b (l). Therefore, years that a professional educator certificate holder is not employed by a local or regional board of education do not count against the five years for which the certificate is valid. General Statutes (Rev. to 1989) § !0-146b also provides for an extension of time to complete the requirements in instances of hardship and § 10-145b (n) provides for appeal to the board and to the Superior Court for aggrieved individuals.

       The state and the local or regional boards of education will share the cost of offering the CEUs and each local or regional board must make available within their district no fewer than eighteen units per year. The teachers and their collective bargaining representatives will have input into the choice of the subject matter, time and location of the classes. General Statutes (Rev. to 1989) § 10-145b (l) (1). For those who must exchange certificates, the state even waives the $15 application fee. General Statutes (Rev. to 1989) § 10-145b (p).

       The plaintiffs claim that the act takes property without due process in violation of the amendments to the fourteenth amendment to the United States constitution and article first, § 8, as amended by article XVII of the amendments to the Connecticut constitution. Because the language of the provisions are similar, and because the plaintiffs “ ‘[have] proffered no argument that the rights afforded to [them] by the federal and state constitutions are in any way distinguishable with respect to the substantive issue that [they have] raised’ State v. Chung, 202 Conn. 39, 45 n.7, 519 A.2d 1175 (1987); State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985); we do not independently undertake such an analysis. See also New Haven v. United Illuminating Co., 168 Conn. 478, 494 n.8, 362 A.2d 785 (1975).

       See footnote 4, supra.

       As of July 1, 1989, the teachers must give up their standard and permanent teaching certificates. No teacher will suffer any termination as of that date, however, unless he or she fails to exchange the certificate. The process of exchange depends only on the filing of a proper application and the receipt of a new certificate requires only a ministerial act. No issue of nonrenewal can arise for five more years, and such an event, according to the statute, will occur only if the holders have then arguably failed to complete the required CEUs. The defendants admitted as much in open court. The present record lends no support to any speculative concern that the renewal mechanism provided by the act will be used by the state to revoke certificates for unauthorized reasons.

       While the plaintiffs’ brief is unclear about whether a substantive due process argument has been distinctly raised, doubts raised about the scope of their brief at oral argument persuade us to address this issue briefly.

       This court and, to a certain extent, the United States Supreme Court, have recognized a right to education requiring a heightened scrutiny of state statutes infringing on the right. Plyler v. Doe, 457 U.S. 202, 223-24, 102 S. Ct. 2382, 72 L. Ed. 2d 786, reh. denied, 458 U.S. 1131, 103 S. Ct. 14, 73 L. Ed. 2d 1401 (1982); Horton v. Meskill, 172 Conn. 615, 648-49, 376 A.2d 359 (1977). The state constitutional right to free public education; Conn. Const., art. 8, § 1; protects only the rights of the recipients of educational services to a substantially equal educational opportunity. Campbell v. Board of Education, 193 Conn. 93, 105, 475 A.2d 289 (1984); Horton v. Meskill, supra, 649. Neither the state nor the federal constitution requires a stricter scrutiny merely because the regulation affects teachers. If anything, a fundamental right to equal educational opportunity supports the rationality of legislative efforts to improve the quality of that education.

       Article one, § 10, of the United States constitution provides: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts

       General Statutes (Rev. to 1989) § 10-151 (c) and (d) provide in pertinent part: “(c) The contract of employment of a teacher who has not attained tenure may be terminated at any time for any of the reasons enumerated in subdivisions (1) to (6), inclusive, of subsection (d) of this section; otherwise the contract of such teacher shall be continued into the next school year unless such teacher receives written notice by April first in one school year that such contract will not be renewed for the following year. . . .
      “(d) The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the board of education; or (6) other due and sufficient cause.”

       The plaintiffs stress that this is especially the case with respect to the named plaintiffs who are tenured and hold standard and permanent certificates.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    State of Connecticut v. Marshall Crenshaw
    (13178)
    Peters, C. J., Healey, Callahan, Covello and Santaniello, Js.
    Argued December 14, 1988
    decision released March 7, 1989

      A. Paul Spinella, for the appellant (defendant).

      MitchellS. Brody, deputy assistant state’s attorney, with whom, on the brief, was Dennis O’Connor, assistant state’s attorney, for the appellee (state).
   Covello, J.

The defendant, Marshall Crenshaw, appeals from his conviction of murder in violation of General Statutes § SSa-Ma. The relevant facts are as follows.

On April 21, 1985, the defendant was arrested and charged with the murder of his ten month old daughter, Dale-Lyn Nichole Crenshaw. Following a hearing in probable cause, the defendant pleaded not guilty and elected to be tried by a jury. On December 16, 1985, the trial court, Stoughton, J., ordered a competency evaluation for the defendant pursuant to General Statutes § 54-56d. The evaluation was conducted by a clinical team from the department of mental health comprised of a psychiatrist, a pyschiatric social worker and a psychologist. In its report to the court, the team was unanimous in its opinion that the “defendant’s presumption of competency has been sustained through this examination, and that he both understands the legal proceedings against him and can cooperate with counsel in his own defense.” On December 31, 1985, the trial court, Barall, J., ruled that the defendant was competent to stand trial.

On March 21,1986, the defendant’s counsel, Richard Kelly, filed a motion to withdraw from the case. Attorney Kelly informed the court that if he were “forced to proceed in this particular case, it may well be placing counsel in an irreconcilable ethical conflict.” The trial court, Barall, J., denied this motion.

On April 17,1986, two days after the trial began, the defendant pleaded guilty to murder under the doctrine established in North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). A plea canvass followed. On April 21, 1986, the defendant filed a pro se motion seeking to withdraw his prior guilty plea, electing a trial and requesting the appointment of a special public defender. The trial court, Quinn, J., denied this motion.

On May 14,1986, the trial court granted the defendant’s motion requesting a diagnostic psychiatric examination pursuant to General Statutes § 17-244. A diagnostic team at the Whiting Forensic Institute concluded that the defendant “was not mentally ill to an extent that he posed a danger to himself or to others. The team decline[d] to recommend probation and returned] the defendant for sentencing in accordance with his conviction.” On August 20, 1986, the trial court, Quinn, J., sentenced the defendant to a term of twenty-five years of incarceration.

The defendant claims on appeal that the trial court erred in: (1) denying his motion to withdraw his guilty plea; (2) failing to conduct an evidentiary hearing to determine the factual basis for his motion to withdraw his guilty plea; and (3) denying defense counsel’s request to withdraw from the case. We find no error.

I

The defendant first claims that the trial court erred in denying his motion to withdraw his guilty plea. Practice Book § 721 specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. “[0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion.” Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 (1974) . “The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” State v. Slater, 169 Conn. 38, 46, 362 A.2d 499 (1975) .

The defendant argues that he did not intelligently and voluntarily enter his plea because at the time he entered it he was simply following his attorney’s instructions and did not understand that he would receive a minimum sentence of twenty-five years. He claims, therefore, that he has a plausible reason for withdrawing his plea. We disagree.

Due process requires that a plea be entered voluntarily and intelligently. Boykin v. Alabama, 395 U.S 238, 243 n.5, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986); State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985). “Because every valid guilty plea must be demonstrably voluntary, knowing and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea.” State v. Watson, 198 Conn. 598, 604, 504 A.2d 497 (1986). “A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances.” State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988).

The trial court, Quinn, J., canvassed the defendant concerning the voluntariness of his plea pursuant to Practice Book §§ 711 through 713 and Boykin v. Ala bama, supra. This canvass “necessarily implies that [the trial court] has made an inquiry into the defendant’s competence to plead.” State v. Watson, supra. An examination of the plea canvass reveals the following: The defendant entered an Alford plea. The defendant explained to the court that an Alford plea “means that they have enough evidence against you.” The court expanded upon the defendant’s definition and asked him if he had discussed this with his attorney. The defendant said that he had and that he was satisfied with the advice that his attorney had given him. The court then asked the defendant if he understood that he was giving up his right to a trial by court or jury, along with his right to face and cross-examine witnesses against him, and to bring in any witnesses to testify on his behalf, and that by entering this plea he was incriminating himself and waiving his right against self-incrimination. The defendant responded that he understood the ramifications involved. The state’s attorney then delineated the factual basis that would be produced to establish the defendant’s guilt.

The court then asked the defendant if he was familiar with the maximum penalty that the court could impose on a conviction of murder in the first degree. The defendant responded that it was “sixty-years.” The court then asked the defendant if he understood what the minimum sentence would be. He responded that it would be “twenty-five.” The court then read the defendant the definition of murder.

Finally the court asked the state if there was an agreement as to the penalty to be imposed. The state informed the court that it would be making a recommendation at the time of sentencing of twenty-five years. The defendant stated, in response to the court’s inquiry, that he knew this at the time he entered his plea. The defendant also informed the court that he was not under any threats to plead guilty, that his attorney had been a “great lawyer” and had done everything possible to protect his interests.

In concluding the plea hearing, the court stated that it “will make a finding that [the defendant] has been advised by competent counsel, he understands his constitutional rights and has waived those rights. He understands fully that he has a right to a trial by Court or jury and has waived it.”

On April 21,1986, the defendant mailed to the court a pro se motion to withdraw his guilty plea. In that motion he stated that he had not intelligently and competently entered his plea and that his attorney had led him astray. The defendant claimed that he had been led to believe that he would receive substantially less than the twenty-five year sentence. On May 7, 1986, a hearing was held on this motion and the trial court, Quinn, J., subsequently denied it.

A review of all the relevant circumstances clearly indicates that the defendant had intelligently and voluntarily entered his Alford plea. The trial court’s determination on December 31,1985, that he was competent to stand trial, lays to rest any question about the defendant’s capacity to comprehend the charges against him and the consequences of his plea.

Furthermore, aside from his bald assertion, the defendant produced no evidence that he was simply following his attorney’s instructions when he entered his plea. “It is not enough for the defendant to claim that he was told what to say by his lawyer. To warrant consideration, the defendant must allege and provide facts which would justify permitting him to withdraw his plea . . . . ” State v. Deboben, 187 Conn. 469, 474, 446 A.2d 828 (1982).

Finally, the record does not support the defendant’s claim that he was confused at the time he entered the plea. Significantly, it was the defendant and not the trial court who first mentioned that the minimum sentence for a conviction of murder is twenty-five years. Additionally, the defendant told the court that he knew that the state would be recommending a twenty-five year prison term and that he had known this at the time he entered his plea. We are therefore unpersuaded when he now claims that he did not understand that he would receive a twenty-five year sentence.

II

The defendant next claims that the trial court erred in failing to hold an evidentiary hearing on his motion to withdraw his guilty plea. He argues that the voluntariness of his plea is questionable in light of his mental capabilities and the inadequacy of the trial court record. We disagree.

“For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under [Practice Book] § 721, and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, then an evidentiary hearing is required.” State v. Torres, 182 Conn. 176, 185-86, 438 A.2d 46 (1980). In light of the record of the plea canvass, the hearing on the motion to withdraw the plea, and examination of the court file, we conclude that the defendant’s claim of error is conclusively refuted within the meaning of State v. Torres, supra.

The trial court conducted a complete canvass in accordance with the rules of practice and was satisfied that the defendant’s plea had been knowingly and voluntarily entered. As noted above, the defendant’s dialogue with the trial court at the plea canvass furnishes a more than adequate basis for determining his full understanding of his plea and its ramifications.

Finally, three months prior to the defendant entering his plea, the trial court ordered the commissioner of mental health to effect a competency examination on the defendant. In a unanimous opinion a clinical team found that the defendant “both understands the legal proceedings against him and can cooperate with counsel in his own defense.” In light of this evaluation, we are unpersuaded that the trial court had an insufficient record upon which to base its decision.

We find, therefore, that the defendant failed “to sustain his burden of coming forward with sufficiently specific unrefuted factual allegations to require an evidentiary inquiry into his alleged incompetence at the time of the acceptance of his guilty [plea].” State v. Watson, supra, 613-14. Accordingly, we find no error.

Ill

The defendant next claims that the trial court erred in denying his attorney’s motion to withdraw from the case. The defendant argues that as a result, he did not receive representation free of conflict because his attorney believed him guilty. He further claims that his counsel was ineffective in his representation. We reject both claims.

“Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); State v. Festo, 191 Conn. 622, 626-27, 469 A.2d 1181 (1983). The record here is clear that the reason Attorney Kelly asked to withdraw from the case was not because he believed that the defendant was guilty as the defendant claims, but because the defendant had told him that he, the defendant, wanted to perjure himself on the witness stand. Any conflict which may have existed between the defendant and his attorney “was one imposed on the attorney by the client’s proposal to commit the crime of fabricating testimony . . . . ” Nix v. Whiteside, 475 U.S. 157, 173, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986). Such a conflict, when created by the defendant, does not require the appointment of new counsel. See State v. Gonzalez, 205 Conn. 673, 684, 535 A.2d 345 (1987); State v. Drakeford, 202 Conn. 75, 84, 518 A.2d 1194 (1987).

As the trial court noted, any counsel representing the defendant would have been confronted with the same dilemma. Allowing this attorney, and then all subsequent attorneys, to withdraw from this case would have impaired the defendant’s right to be represented by counsel. This we cannot condone.

“Whether the circumstances warrant the appointment of new counsel is within the discretion of the trial court.” State v. Gonzalez, supra, 683. “[Ajbsent a factual record revealing an abuse of [the court’s] discretion, the court’s failure to allow new counsel is not reversible error.” State v. Drakeford, supra, 83; El Idrissi v. El Idrissi, 173 Conn. 295, 302-303, 377 A.2d 330 (1977). We note that the motion to withdraw was made and denied in advance of the defendant’s trial. Later, at the time of the plea canvass, the defendant expressed his complete satisfaction with the advice he had received from his attorney. We conclude, therefore, that the trial court did not abuse its broad discretion in denying defense counsel’s request to withdraw and the defendant was not thereby prejudiced.

The defendant’s further claim of ineffective assistance of counsel is inappropriate on a direct appeal. Such claims are properly pursued on a petition for a writ of habeas corpus, or on a petition for a new trial. State v. Williamson, 206 Conn. 685, 707, 539 A.2d 561 (1988); State v. Gonzalez, supra; State v. Tirado, 194 Conn. 89, 92-93, 478 A.2d 606 (1984); State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982). Accordingly, we do not consider it.

We find no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides: “murder defined, affirmative defenses, evidence of mental condition, classification, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       General Statutes § 54-56d provides in part: “competency to stand trial, (a) competency required, definition. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.”

       Attorney Kelly submitted to the court the following written statement: “I will represent the following to Judge Barall in chambers: 1. that Marshall Crenshaw has told me and others employed by the defense, on more than one occasion, that he committed the acts that caused the death of DaleLyn; 2. that on 3/18/86, at a conference which I had with Marshall Crenshaw at the Hartford Correctional Center, I was told by Marshall Crenshaw that he intends to testify in his trial that he did not do any of the acts that caused the death of Dale-Lyn and, rather, that Dale-Lyn’s death was caused by one Susan Lard.”

       “An Alford plea allows a defendant in a criminal case to consent to punishment as if he were guilty without his express acknowledgment of his guilt.” State v. Watson, 198 Conn. 598, 601 n.3, 504 A.2d 497 (1986).

       General Statutes § 17-244 provides: “certain convicted persons to be examined, report and recommendation, (a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction. Such examination shall be conducted and the report made to the court not later than fifteen days after the order for the examination. Such examination may be conducted at a correctional facility if the defendant is confined or it may be conducted on an outpatient basis at the institute or other appropriate location. If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the institute for a period not to exceed sixty days, except as provided in section 17-245 provided the hearing may be waived by the defendant. Such commitment shall not be effective until the director certifies to the court that space is available at the diagnostic unit. While confined in said diagnostic unit, the defendant shall be given a complete physical and psychiatric examination by the staff of the unit and may receive medication and treatment without his consent. The director shall have authority to procure all court records, institutional records and probation or other reports which provide information about the defendant.
      “(b) The request for such examination may be made by the state’s attorney or assistant state’s attorney who prosecuted the defendant for an offense specified in this section, or by the defendant or his attorney in his behalf. If the court orders such examination, a copy of the examination order shall be served upon the defendant to be examined.
      “(c) Upon completion of the physical and psychiatric examination of the defendant, but not later than sixty days after admission to the diagnostic unit, a written report of the results thereof shall be filed in quadruplicate with the clerk of the court before which he was convicted, and such clerk shall cause copies to be delivered to the state’s attorney, to counsel for the defendant and to the office of adult probation.
      “(d) Such report shall include the following: (1) A description of the nature of the examination: (2) a diagnosis of the mental condition of the defendant; (3) an opinion as to whether the diagnosis and prognosis demonstrate clearly that the defendant is actually dangerous to himself or others and requires custody, care and treatment at the institute; and (4) a recommendation as to whether the defendant should be sentenced in accordance with the conviction, sentenced in accordance with conviction and confined in the institute for custody, care and treatment, placed on probation by the court or placed on probation by the court with the requirement, as a condition to probation, that he receive outpatient psychiatric treatment.”

       Practice Book § 721 provides: “—grounds
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       The trial court stated: “Essentially that is true. Let me ask you some questions and maybe we can clarify it. What you’re telling this Court is that you’re entering this plea of guilty because you feel that if the State were to proceed and present evidence to a jury against you, that the probability would be that the jury would find you guilty of the charges, is that correct?” The defendant responded, “Yes, your Honor.”

       The state proffered the following factual basis for the plea: On April 20, 1985, the defendant and his ten month old daughter were in their apartment at 40 Olcott Street in Manchester. While the child’s mother was out of the apartment the defendant suffocated his daughter by pushing her head into the mattress of her crib.


author: Arthur H. Healey, J.

text:
    State of Connecticut v. Angel L. Rodriguez
    (13252)
    Healey, Callahan, Glass, Covello and Hull, Js.
    Argued November 10, 1988
    decision released March 7, 1989

      William B. Collins, special public defender, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, was Kevin McMahon, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

After a trial to the jury on a substitute information, the defendant, Angel Rodriguez, was convicted of the crimes of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a (a) and of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a. This appeal followed.

On appeal, the defendant claims that the trial court erred in permitting a juror to testify at his trial concerning a conversation between that juror and the defendant, thus denying him due process of law and a fair trial. We find no error.

From the conflicting evidence presented at trial, the jury could reasonably have found the following: Prior to October 18, 1985, the defendant and the victim R had lived together for several years. Although they were not married, the defendant was the father of R’s third child. They had lived apart for several months prior to October 18,1985, during which time he sought to return on two or three occasions. R refused to permit this.

At about 8:15 p.m. on October 18, 1985, R and her friend, Maria Centeno, went to the Aqui Mequedo International Restaurant on Main Street in Hartford. Upon their arrival in front of the restaurant, they were met by the defendant. An argument ensued in front of the restaurant during which the defendant swore at R and slapped her several times in the face. He then grabbed R by the hair and, holding her, forced her to walk to his van. Centeno walked behind them along the street to the van. On the way to the van, the defendant displayed a pistol to R and threatened her.

The defendant took R to a motel in Newington, where inside one of the rooms he asked her to renew their terminated relationship. When she refused, he threatened her with a pistol by pointing it at her head and then putting it in her mouth. He then removed her clothes and had vaginal intercourse with her against her will. After intercourse, she washed herself at the motel.

After this incident, the defendant drove R to her home. Upon their arrival, the defendant and R learned that the police had been notified and the defendant left. R told the police what had taken place. Despite some pain, she did not seek medical attention, although the police asked her to go to the hospital to be examined. R did, however, give the police the panties that she had worn after the assault and accompanied the police to the motel where the incident took place. The chief state toxicologist testified that the panties were examined for the presence of semen and the tests were positive.

We turn now to the circumstances involving the defendant’s claim. Selection of a jury of six and two alternates began on Tuesday, July 7,1987. Five jurors were selected on that date and each juror was sent home after his or her selection and ordered to return on the morning of Friday, July 10, 1987. Scott Han-nan was voir dired as a prospective juror on Wednesday, July 8,1987, and selected on that date as the sixth juror. He was also sent home with instructions to report on July 10, 1987. Two alternates, James Bishop and Allan LaChappelle, were also selected on that date. Court was then adjourned to Friday, July 10, 1987.

On the morning of July 10, 1987, before the jury and the alternates were sworn, the court said that “counsel has been alerted that this morning, the Court was informed by the jury clerk that one of the jurors on the panel [Scott Hannan] reported to the jury clerk being approached by the Defendant. And the manner in which the juror reported this incident, it does appear to the Court to be sufficient to disqualify the juror.” The court further indicated that, prior to doing so, it would call the juror in and inquire about this event and that counsel would also have the opportunity to inquire. It also observed that “because of the manner in which the incident was reported by the jury clerk, if reported the same way, [it] would have some prejudice to the Defendant,” but the trial court would make that determination after questioning Hannan.

Hannan then took the witness stand and indicated that the incident took place at approximately 9:15 a.m. that morning as he had just finished buying a pastry and milk at the truck that is downstairs outside the front of the court building. He said that the defendant, whose name he knew because of what he had previously seen in court, “first approached” him and asked, “You don’t know who I am, do you?” Hannan indicated that he did know who he was and then the defendant “began to say something else, started off with ‘woman’s’ and as soon as I heard that I cut him off.” He then told the defendant that he did not think that he should be talking with the defendant. Hannan then said: “[The defendant] agreed. He acknowledged it; he said, ‘O.K., I understand.’ And that was the end of it. And I wasn’t sure what I should do. So I asked the clerk.” During further testimony by Hannan, he said that he harbored no bias or prejudice about sitting on the case and that he would not let the incident “influence [his] judgment at all.”

In the absence of Hannan, the state expressed concern over the incident possibly playing a role in the trial in “perhaps—consciousness of guilt” as well as “potential further criminal charges.” The state also indicated that it intended to call Hannan as a witness, for which he would have to be disqualified as a juror, and that it intended “to show similar consciousness of guilt evidence,” saying that it anticipated bringing out that “[the defendant had] approached other witnesses.” Defense counsel argued against disqualifying Hannan maintaining that the incident related was not probative, as the state claimed, and that Hannan had said that it had not influenced or prejudiced him. Sensing that the court might excuse Hannan, defense counsel then noted that, if that in fact took place, it would mean that the remaining jurors would then be familiar with and know a witness in the case. The court was concerned about the defendant’s approach to Hannan, noting that the defendant had sat through the voir dire and heard the court admonish the jurors not to talk to anyone about the matter.

Hannan thereafter returned to the courtroom and, upon further inquiry by the court, said that the other jurors chosen knew that he also had been selected as a juror, that he had “a general conversation [with them] as a group” but not about the case, and that they knew he was in the courtroom “right now” but that they had no idea why he was there.

Proceeding again in the absence of Hannan, the court noted that the question now arose whether the defendant would request a mistrial concerning the balance of the panel. The state argued that there was no “additional prejudice” arising from letting Hannan testify before the “five same jurors” or “six totally different jurors,” especially because the defendant’s conduct created the problem. The court opined that the matter of prejudice could best be met by inquiring of the remaining jurors. Defense counsel moved for a mistrial, arguing that it would be highly prejudicial to have Han-nan testify before his fellow jurors, maintaining that Hannan “had to [have formed] some kind of relationship with them” having spent a number of hours a day “with this group of people for the last week.”

After a luncheon recess, the state reiterated its intention to call Hannan as a witness on the matter of consciousness of guilt. The defendant again moved for a mistrial, making his motion under Practice Book § 887. The court again said that it was going to voir dire the remaining jurors not only to ascertain whether “this has created any particular bias or prejudice,” but also “whether or not anybody ever approached them.” A further motion for mistrial was made, which was denied, and the defendant took an exception. Hannan returned to the courtroom and the court excused him from sitting on the case, indicating that counsel for the state wanted to talk with him. Thereafter, the court adjourned.

On Monday, July 13, 1987, the defendant objected to the proposed voir dire of the remaining jurors, maintaining that they would “have to have a bias or prejudice, because [Hannan is] a fellow juror of their[s] . ” Thereafter, the trial court itself separately questioned each of the remaining five jurors and the two alternates. That voir dire indicated that, if Han-nan testified as a witness, none of them would have any bias or prejudice for or against his testimony and that none of them had overheard any discussion of the case or discussed it with anybody else. A renewed defense motion for mistrial was denied and an exception taken. Thereafter, the jury of six and one alternate was sworn.

The state presented ten witnesses in its case-in-chief. The first witness to testify for the state was R, the victim of the crimes alleged. Hannan was the state’s second witness; he testified after further objection by the defendant. He testified that, as he stood in line to buy a pastry and milk at the coffee truck, he noticed the defendant standing behind him “three—four—five feet away.” Hannan glanced up several times to see if the defendant was still standing where he first noticed him and “[the defendant] was moving along the same as [Hannan] was,” “[the defendant] definitely could see [Hannan]” as “he was facing directly toward [Han-nan].” After Hannan paid for his food and started to walk away, the defendant approached him and asked, “you don’t know me, do you?” Hannan answered, “yes,” and as he started “walking toward the door, to go into the courtroom,” the defendant “started saying something about ‘woman’s’ ” and Hannan cut him off and told the defendant that he (Hannan) “didn’t believe that [Hannan] should be speaking to him.” Han-nan testified that the defendant responded, “I understand.” Hannan had the “impression” that the defendant knew who he was. In Hannan’s mind, when the defendant said “woman’s,” Hannan “definitely” believed that he was going to start talking about the case.

During the trial, the state, in addition to offering Hannan’s testimony on the issue of consciousness of guilt, presented other evidence that it argued went to that issue. This included testimony by R that, about two weeks after the alleged assault, the defendant offered her money to drop the charges. Centeno testified that, about two weeks before the trial, the defendant spoke to her and asked her to say everything “was a lie.” She said she went to see the defendant’s attorney and told her that “everything that [R said] was a lie.” Centeno, however, at the trial, repudiated her repudiation. At the trial, the state also elicited evidence from the defendant that, although he was working prior to October 18,1985, he never returned to that job but just quit and lived in New Britain. This evidence was cast in terms of consciousness of guilt or flight or the defendant’s making himself inaccessible. Other similar evidence was the defendant’s testimony that he failed to visit his child from October 19,1985, until his arrest in March, 1986. Further evidence of flight or inaccessibility was introduced through Flynn O’Keefe, the defendant’s probation officer, who said that the defendant reported to her on September 9, 1985, but failed to keep his next appointment on October 25, 1985. He did, however, see her on December 31,1985, at which time O’Keefe said that he indicated that approximately one and one-half months earlier he had had a fight with his wife, that his wife later told him that she had filed a complaint and that there was a warrant outstanding in that matter.

During the final arguments, counsel emphasized the crucial nature of the issue of credibility. Counsel for the state reviewed the evidence, stressing the issues of consciousness of guilt and flight. In doing so, he discussed Hannan’s testimony.

Certain legal principles that are helpful in resolving the issue before us are appropriately set out at this point. It cannot be questioned that the due process clause of the fourteenth amendment extends to state court defendants the right to be tried by an impartial jury. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 551, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976); Ristaino v. Ross, 424 U.S. 589, 595 n.6, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (sixth amendment right to jury trial); Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (due process right to trial by an impartial jury). The modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court. See Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965); Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907). We have noted that the right to a fair trial is implicit in the term “due process of law.” State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975). “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). This is wholly in keeping with our view of jury impartiality as a core requirement of the right to trial by jury. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). “In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the [prosecution] to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Mattox v. United States, 146 U.S. 140, 148-50 [13 S. Ct. 50, 36 L. Ed. 917 (1892)] . , . .” Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 98 L. Ed. 654 (1954); United States v. Hillard, 701 F.2d 1052, 1061 (2d Cir.), cert. denied, 461 U.S. 958, 103 S. Ct. 2431, 77 L. Ed. 2d 1318 (1983). Where an accused makes a plausible claim that his constitutional right to a fair trial may be violated because the jury is not impartial, the burden is upon the state to rebut the presumption of prejudice that denies a fair trial. See, e.g., Remmer v. United States, supra.

A trial judge is generally in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure to improper matter has prejudiced a defendant. See, e.g., United States v. Wiley, 846 F.2d 150, 157 (2d Cir. 1988); State v. Asherman, supra, 736. A trial court has wide discretion in deciding how to pursue an inquiry into the nature and effect of information that comes to a juror improperly as well as its potential effect upon the jury if it learns of it. See generally Marshall v. United States, 360 U.S. 310, 312, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959); Remmer v. United States, supra, 229-30; United States v. Hillard, supra, 1064. Where, as here, the impartiality of the jury was challenged by a motion for mistrial, the trial court’s determination will be reversed only where it can fairly be said that it abused its discretion in denying the mistrial. See generally United States v. Wiley, supra, 158; State v. Brigandi, supra, 543-44. In noting that a trial court has wide discretion in passing on motions for mistrial, we have said that “ ‘[t]he general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated.’ ” State v. Brigandi, supra, 543; State v. Cavros, 196 Conn. 519, 526, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985); State v. Marra, 195 Conn. 421, 436, 489 A.2d 350 (1985).

In our analysis of this case, we first point out that the core impartiality of a jury in a criminal trial presents an unusual problem where a “sitting juror” is called upon to be, and becomes, a witness in the very proceeding that he and his fellow jurors were carefully selected to decide. We have already set out at length the relevant circumstances in the record that, upon application of appropriate legal principles, demonstrate that the trial court did not abuse its discretion in denying a mistrial. We reject the state’s claim that the essential claim of error involves only an evidentiary claim, i.e., weighing the probative value of Hannan’s evidence against its prejudicial effect, upon which the defendant has the burden. Rather, the defendant’s preserved claim is of constitutional dimension directly implicating his due process right to a fair trial upon which the state has the burden of showing no reversible error. The state has sustained that burden.

Although Hannan was not a “sitting” juror, because the jury had not actually been sworn, and although the “trial” had not yet commenced insofar as the presentation of evidence to the factfinder to determine the defendant’s guilt or innocence, cases involving attempts to influence conduct of a “sitting juror” where evidence is in the course of being presented to the jury furnish certain guidance. For example, in Smith v. Phillips, supra, 215, where, unlike this case, there existed a genuine issue as to juror misconduct, the United States Supreme Court said that it had “long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” See Remmer v. United States, supra; State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983).

Where the constitutional due process guaranty of a fair trial before an impartial jury is fairly raised, as it is in this case, a presumption of prejudice to the defendant arises, which the state has the burden to rebut. The burden properly rests on the state for several reasons: the overarching importance of protecting the defendant’s constitutional right to a fair trial, the continuing maintenance of the integrity of the jury system and the necessity of continuing to preserve the trust reposed in criminal jury verdicts. In determining whether the state has successfully rebutted that presumption and, thereby, demonstrating that the defendant’s right to a fair trial was not violated, it is necessary to decide whether the trial court abused its discretion in denying the mistrial.

The task of the trial court in this case was not only delicate, but also difficult because, as Chief Justice Hughes said in speaking about an impartial jury: “Impartiality is not a technical conception. It is a state of mind.” United States v. Wood, 299 U.S. 123, 145, 57 S. Ct. 177, 81 L. Ed. 78 (1936), reh. denied, 299 U.S. 624, 57 S. Ct. 319, 81 L. Ed. 459 (1937). Although articulated in a dissenting opinion, Justice Harlan’s statement that “ ‘[I]t is an impossible standard to require that tribunal [the jury] to be a laboratory, completely sterilized, and freed from any external factors’ ” brooks of little cavil. (Brackets in original.) Parker v. Gladden, 385 U.S. 363, 369, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966) (Harlan, J., dissenting), quoting Rideau v. Louisiana, 373 U.S. 723, 733, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (Clark, J., dissenting). Recently the United States Supreme Court, quoting Smith v. Phillips, supra, 217, said “that the constitution ‘does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ ” Rushen v. Spain, 464 U.S. 114, 118, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983).

It is apparent that the trial court was concerned about the potential for “some prejudice” to the defendant if the incident, as reported by the jiiry clerk, actually occurred in that manner. Appropriately, it indicated that it would make that determination after questioning Hannan. The trial court did this in the presence of counsel for the state, as well as counsel for the defendant, and at that time Hannan reiterated that he could still be an impartial juror. In Hannan’s absence, the trial court was then confronted with the state’s claim that this incident might play a part in the upcoming trial perhaps on the issue of “consciousness of guilt,” and that the state intended to call Hannan as a witness. The state also intended to show “similar consciousness of guilt evidence,” claiming that the defendant had approached other witnesses.

In questioning Hannan, the trial court raised the prospect that, if he were excused as a juror to become a witness, then the defendant might claim a mistrial concerning the balance of the panel. Confronted with the state’s intention to use Hannan as a witness, as well

as its position that the defendant be tried before this jury, and the defendant’s claim that it would be prejudicial to have Hannan testify as a witness before a jury on which he had been selected to serve, the trial court decided that the best way of meeting the defendant’s claim of prejudice was to go further and examine the remaining jurors and the two alternates. Significantly, it stated that it planned also to question them on “whether or not anybody ever approached them.” This was done and each juror indicated that not only would each not have any bias or prejudice for or against Han-nan’s testimony, if he did testify, but also that none of them had discussed the case with anyone else or had overheard any discussions of the case. We appreciate that the testimony of the jurors themselves that each would be fair and impartial, while not determinative, is significant. See Irvin v. Dowd, supra, 727-28; Bayramoglu v. Estelle, 806 F.2d 880, 888 (9th Cir. 1986). We are not inclined to disregard the statements of those jurors interviewed as “inevitably suspect.” United States v. Williams, 737 F.2d 594, 612 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1355, 84 L. Ed. 2d 377 (1985); see Smith v. Phillips, supra, 217 n.7. In Dennis v. United States, 339 U.S. 162, 171, 70 S. Ct. 519, 94 L. Ed. 734 (1950), a jury impartiality case, the United States Supreme Court said: “One may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” But in such an inquiry, which is essentially factual, the trial court that conducts it is in the best position to assess the testimony of those on the jury panel, including its impact on the fairness of the trial, and its conclusion is entitled to “substantial weight,” United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir. 1988); see Rushen v. Spain, supra, 120; State v. Brigandi, supra, 543; State v. Coburn, 220 Kan. 743, 746-47, 556 P.2d 376 (1976). Considerable deference is to be accorded to the trial court since “ ‘[t]he trial judge is uniquely qualified to appraise the probable effect of information on the jury, the materiality of the extraneous material, and its prejudicial nature.’ ” United States v. Steele, 785 F.2d 743, 746 (9th Cir. 1986), quoting United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981), cert. denied, 456 U.S. 962, 102 S. Ct. 2040, 72 L. Ed. 2d 487 (1982).

It was only after this thorough inquiry by the trial court that it then excused Hannan as a potential juror, and decided, after denying the mistrial, to permit the case to proceed before the jury consisting of the five jurors originally selected with the addition of one of the alternates. In doing so, the trial court did not abuse its wide discretion. On the record before it, the trial court could have found that the state had successfully rebutted the presumption of prejudice to the defendant and that he could receive a fair trial before that jury. While the trial court could initially have discharged the jurors and alternates originally selected and drawn a new jury, the alternative it adopted properly protected the defendant’s right to a fair trial and was not an abuse of discretion.

Because of the unique circumstances of this case, including the fact that the presentation of all of the evidence actually took place after the challenged motion for a mistrial, we have examined the entire record of the trial in order to determine whether a constitutionally fair trial ensued. In doing so, we point out that the denial of the mistrial was not a ruling that can be constitutionally or conceptually compartmentalized once made or preserved in a procedural cocoon for appellate review. It was a ruling that permitted this jury to hear all of the evidence and decide the defendant’s guilt or innocence after a trial during which Hannan testified.

The trial transcript discloses that guilt or innocence did not hinge upon any “swearing” contest solely between those witnesses allegedly involved in this crime. It is true that R, the victim, and her friend, Centeno, told one version of the incident that the defendant, who testified, denied. There was, however, as we have already pointed out, considerable evidence that went to “consciousness of guilt” other than that offered by the state through Hannan. Briefly, that encompassed (1) the evidence of the defendant’s offer of money to R to drop her complaint, (2) the defendant’s effort to have Centeno repudiate her statement inculpating him, (3) the defendant’s own testimony that he did not visit his child who lived with R after the incident of October 18, 1985, until his arrest in March, 1986, (4) the defendant’s own testimony that, as of the day after the alleged assault, he never returned to a job which he had held up to that time, and (5) the testimony of Keefe, his probation officer, concerning his failure to report and his December, 1985 reference to a complaint of R against him. The defendant’s testimony before the jury included his version of the contact with Hannan.

The record of the entire trial discloses that nothing occurred during the trial that derogated from the defendant’s right to a fair trial. The trial court was entitled, as we are, to assume that the jurors not only followed its instructions at the end of the trial but also its instructions during its individual voir dire. Moreover, on a number of occasions during its final instructions to the jury, the trial court cautioned the jury to decide the case on the evidence disclosed in court and the law. “The jury, in the absence of a fair indication to the contrary, is presumed to have followed the instructions of the court.” State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); State v. Maye, 199 Conn. 389, 396, 507 A.2d 1001 (1986). There is no fair indication to the contrary in the record.

In appeals involving a claim that a criminal defendant’s jury was not impartial as constitutionally mandated because of some incident involving the jury, our focus is not solely on the alleged incident, but also on whether ultimately that incident generated prejudice such that the defendant was denied his right to a fair trial. “The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome.” State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972); State v. Brigandi, supra, 543. The trial court did not abuse its discretion in denying a mistrial; this defendant received a fair trial.

There is no error.

In this opinion the other justices concurred.

       The substitute information was in four counts and charged the defendant with four crimes: kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A); kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a (a); sexual assault in the first degree in violation of General Statutes § 53a-70 (a); and sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a.

       General Statutes § 53a-92a (a) provides: “kidnapping in the first DEGREE WITH A FIREARM: CLASS A FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a-92, and in the'commission of said crime he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the first degree and kidnapping in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       General Statutes (Rev. to 1985) § 53a-70a (a) provides: “SEXUAL assault IN THE FIRST DEGREE WITH A DEADLY WEAPON: CLASS B FELONY; FIVE YEARS NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degree with a deadly weapon when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a deadly weapon. No person shall be convicted of sexual assault in the first degree and sexual assault in the first degree with a deadly weapon upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       R testified that she saw a gun. Centeno testified that she never saw a gun. Centeno followed them not only out of solicitude for R but because she herself felt threatened. Both R and Centeno testified that each of them had to get into the defendant’s van. R and Centeno each testified that it was about a five minute walk from the restaurant to the van. Each also testified that the defendant stopped the van and let Centeno out near her home.

       A Hartford policewoman who went to R’s home on the night of the assault testified that Centeno had notified the police.

       Hannan also testified that as soon as he “got to the truck, [the defendant] walked up behind [him]” and at this time there were “one or two” people standing in front of Hannan at the truck. Although Hannan noticed the defendant standing there, he tried to avoid contact with Rodriguez.
      Thereafter, and before talking to the clerk who told him not to mention it to anyone, Hannan went upstairs in the courthouse and he “sort of wasn’t too sure what [he] should do,” and he did mention the incident to two persons. One of these was a member of the initial group of jurors that constituted the panel from which the defendant’s jury was actually selected; that person had been voir dired as a prospective juror and was excused by the state. The other person Hannan spoke to was in the courthouse on jury duty but had not been on the panel from which the defendant’s jury was selected. Hannan testified that he had asked both not to say anything.

       Practice Book § 887 provides: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. If there are two or more defendants, the mistrial shall not be declared as to a defendant who does not make or join in the motion.”

       When the defendant testified at the trial, he admitted that he spoke to Hannan at the coffee truck. When defense counsel asked what his intention was when he spoke to Hannan, he answered:
      “A. My intention was not to—because he was in the coffee line. I was behind about two [or] three feet away, because I was going to get coffee, too, on the same line. He turned around, and said ‘Hi,’ with his head. I repeated ‘Hi,’ back to him. And I told him—first he goes—when he said ‘Hi’ to me, I turned and say, ‘You remember me, huh?’ And he say, ‘Yes, I do.’ That’s when he say, ‘You know I’m not allowed to talk to you.’ I told him, ‘Yes, I understand that.’
      “Q. Did you make any attempt to pursue the conversation after that?
      “A. No, I didn’t.
      “Q. Did you have any intention of discussing anything involving the case with him?
      “A. No.
      “Q. This Court case?
      “A. No.”
      He also said, on direct examination, that he made no attempt to pursue the conversation after that and that he did not have any intention of discussing anything involving the case with Hannan.
      On cross-examination, the defendant said that he did not “follow [Han-nan] at the time” because he, like Hannan, was there to buy coffee, which he did. The defendant denied that he made any statements that included the word “woman’s” or that he said anything like that. He admitted being in the courtroom when each of the jurors and Hannan were instructed not to discuss the case and that he heard those instructions, but he maintained that he started talking to Hannan because Hannan had said “Hi” to the defendant first. He testified that the only thing he said “was only if he knows me; so he knows me, that’s all. I didn’t say nothing particular.”

       O’Keefe testified for the state on rebuttal after the defendant had testified that he did not know until March, 1986, that the police had a warrant for him, at which time he immediately turned himself in to the police.

       The Seventh Circuit Court of Appeals, in noting that “[n]ot every improper ex parte contact with jurors requires a mistrial,” also said that “[o]ur system of justice has not delegated to every reprobate the power to effect a mistrial.” United States v. Williams, 737 F.2d 594, 612 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1355, 84 L. Ed. 2d 377 (1985). Similarly, the Court of Appeals for the District of Columbia Circuit, while recognizing the long-standing rule against “unauthorized communications between jurors and others ... in order to safeguard the accused’s constitutional right to an impartial jury,” said: “But courts must not allow this protection to ‘delegate[] to every reprobate the power to effect a mistrial.’ ” United States v. Williams, 822 F.2d 1174, 1190 (D.C. Cir. 1987).

       During its final instructions, the trial court, in referring to the evidence, included references of that evidence claimed to go to consciousness of guilt and it also instructed on the law in that regard. See, e.g., State v. Moynahan, 164 Conn. 560, 595-96, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).