text:
    State of Connecticut v. Israel Madera
    (12377)
    Shea, Dannehy, Santaniello, L. Doesey and Kline, Js.

      Argued October 2
    decision released December 17, 1985

      John F. Murphy, Jr., with whom were Timothy S. Fisher, Frank F. Coulom, Jr., and, on the brief, Susan C. Marks and Peter J. Ennis, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom were Walter H. Scanlon, chief assistant state’s attorney, Michael E. O’Hare, deputy assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, and Elizabeth Fitzpatrick, legal intern, for the appellee (state).
   Shea, J.

The defendant has appealed from his conviction upon a conditional plea of nolo contendere to an indictment charging him with fourteen counts of arson murder in violation of General Statutes § 53a-54d, one for each of the victims who died in the fire of an apartment building in Waterbury. The trial court imposed on each count the statutorily mandated sentence of life imprisonment without eligibility for parole and structured the sentences on the fourteen counts as consecutive or concurrent to result in an effective sentence of two consecutive life terms, 120 years of imprisonment pursuant to General Statutes § 53a-35b, without eligibility for parole. The defendant has raised three claims of error: (1) the denial of his motion to suppress his statement to the police after he had been arrested at the scene of the fire; (2) the denial of his motion to dismiss which he based upon the claimed unconstitutionality of our arson murder statute, § 53a-54d, by virtue of its inclusion of reckless as well as intentional conduct as a sufficient basis to satisfy the “arson” element of the offense; and (3) the imposition of two consecutive terms of life imprisonment. We reach only the third of those issues, because on the record before us the condition upon which the plea was entered, that the defendant obtain review by this court of the rulings upon his motions to suppress and to dismiss, cannot be fulfilled. Accordingly, we remand the case to the trial court with direction to vacate the plea and for further proceedings.

The state recited the following factual basis for the defendant’s plea at the time it was accepted by the trial court: In the early morning hours of July 5,1982, the defendant visited the apartment of his niece at 45-47 Prospect Street in Waterbury. The defendant argued with his niece concerning his drinking and also about a fire he had started, by his carelessness with a cigarette, on the couch in her apartment. After the defendant complied with her request to leave the apartment, he returned to borrow some matches. A short time later, the defendant set fire to some papers on the stairway of the building. Although the police and fire units of the city of Waterbury arrived on the scene quickly, the blaze had already consumed the building. The defendant was arrested at the scene of the fire at approximately 2 a.m. He was advised of his constitutional rights in English and asked if he understood them. The defendant replied that he did. The defendant was informed that he was under arrest and that he was accused of setting the fire. The defendant denied the accusation.

The defendant was then transported to the Waterbury police station and again advised of his constitutional rights. He continued, when questioned, to maintain his innocence. Following this second inquiry, he became ill and fell to the floor of his cell. He was taken to the emergency room at St. Mary’s Hospital in Waterbury. The defendant’s condition was diagnosed by a staff physician at the emergency room as an “anxiety reaction” and he was discharged from the hospital. The defendant was advised of his rights for the third time at approximately 9 a.m., and he again denied that he had set the fire. After spending the remainder of the day in his cell, he was summoned for further questioning at approximately 8 p.m. The defendant was again advised of his rights. He indicated that he understood them, and that he wished to make a statement, expressly waiving his right to have a lawyer present. Because the defendant had some difficulty describing the incident in English, a Spanish speaking officer was instructed to assist him. At this time he was advised of his rights in Spanish, and he once again indicated that he understood them. At approximately 8:30 p.m., the defendant confessed to starting the fire by igniting some papers on the apartment stairway. His entire statement was given in English. After the statement was transcribed, he signed it and also initialed an additional paragraph noting that the document had been read back to him in both Spanish and English. The defendant also signed a form acknowledging that he had waived his constitutional rights.

The defendant filed a motion to suppress his confession. At the hearing on the motion he claimed that the state had failed to meet its burden of proving by a preponderance of the evidence that he had effectively waived his Miranda rights and that his confession was voluntary. In relation to those issues he presented psychiatric testimony concerning his mental condition. The trial court denied the motion. The defendant also filed a motion to dismiss the indictment claiming that the arson murder statute violates the federal constitution insofar as the arson which is an element of the crime of arson murder may be arson in either the second or third degree. He claimed that the statutorily mandated sentence would be disproportionate to the crime charged, violating the eighth amendment prohibition against cruel and unusual punishment. The trial court denied the motion to dismiss, concluding that the defendant’s motion was premature because it was based upon the speculative assumption that any verdict in this case would be predicated on either second or third degree arson. On September 8, 1983, the defendant entered pleas of nolo contendere to each of the fourteen counts of arson murder, reserving his right to appeal the court’s denial of his pretrial motions under General Statutes § 54-94a.

I

As a general rule, an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Brady v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); State v. Martin, 197 Conn. 17, 25, 495 A.2d 1028 (1985); Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773 (1970). Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable after a plea of guilty or nolo contendere. Boykin v. Alabama, 393 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Godek, 182 Conn. 353, 357, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981); see also Practice Book § 712.

The legislature in 1982 altered the broad waiver of constitutional rights implicit in a plea of guilty or nolo contendere. Public Acts 1982, No. 82-17. General Statutes § 54-94a allows a defendant to enter a plea of nolo contendere, conditional on the right to take an appeal from the trial court's denial of a motion to suppress evidence based on an unreasonable search and seizure, or from the denial of a motion to dismiss. See State v. Martin, supra, 25 n.12; State v. Ross, 189 Conn. 42, 50 n.4, 454 A.2d 266 (1983); State v. Satti, 2 Conn. App. 219, 222, 477 A.2d 144 (1984). The defendant entered his plea under this statute. The record reveals that neither the trial court nor the state had any objection to this procedure.

The threshold question on this appeal is whether the issues reserved for review by this court are within the ambit of § 54-94a. The defendant reserved two claims, one relating to the voluntariness of his confession, the other attacking the constitutionality of the arson murder statute. Clearly, the former is not within the purview of the statute. Under § 54-94a, an appeal is permitted from the denial of a motion to suppress “evidence based on an unreasonable search and seizure” only. The defendant in this case argues that his confession was illegally obtained because his lack of facility with the English language, as well as his alleged mental impairment, made it impossible for him to relinquish his rights effectively. Such a basis for a motion to suppress, implicating the fifth and sixth amendments, is not included in the statutory language allowing appeals only from the denial of a motion to suppress evidence obtained from an illegal search or seizure in violation of the fourth amendment. Moreover, there is nothing in the legislative history of the statute that would suggest such an intention.

The question remains whether we should exercise our inherent supervisory authority over the administration of justice; State v. Cohane, 193 Conn. 474, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984), citing United States v. Butler, 567 F.2d 885, 893 (9th Cir. 1978); and adopt a procedure that would allow criminal defendants to enter pleas based upon conditions other than those specified in § 54-94a.

Prior to the advent in 1983 of federal rule of criminal procedure 11 (a) (2), which allows a conditional plea of guilty or nolo contendere with a reservation of the right to appeal rulings on “any specified pretrial motion,” the federal courts were divided on the permissibility of such a plea. (Emphasis added.) Although the adoption of the rule appears to have quieted some concerns that had arisen; United States v. Morrison, 449 U.S. 361, 363 n.1, 101 S. Ct. 665, 66 L. Ed. 2d 564, reh. denied, 450 U.S. 960, 101 S. Ct. 1420, 67 L. Ed. 2d 385 (1981); cf. Lefkowitz v. Newsome, 420 U.S. 283, 292, 95 S. Ct. 886, 43 L. Ed. 2d 196 (1975); McMann v. Richardson, supra, 770 n.13; it has not entirely stilled objections that the procedure (1) encourages appellate litigation; (2) militates against achieving finality in the disposition of criminal cases; (3) reduces the effectiveness of appellate review because of the absence of a full trial record; and (4) compels decisions on many issues, constitutional or otherwise, that would often be obviated by applying the harmless error doctrine in the light of a full trial record. Comment, “Conditional Guilty Pleas: Post Guilty Plea Appeal of Nonjurisdictional Issues,” 26 U.C.L.A.L. Rev. 360, 375 (1978). Balanced against these considerations is the obvious gain in judicial efficiency that is realized whenever a full trial can be avoided as well as the opportunity afforded to defendants to enter a plea without foregoing substantial constitutional claims. Lefkowitz v. Newsome, supra, 292.

The conditional plea is susceptible to abuse, however, unless its use is carefully limited to significant issues the determination of which on appeal is likely to be dis-positive of the case. See United States v. Lace, 669 F.2d 46, 53 n.5 (2d Cir. 1982) (Newman, J., concurring). For this reason, the recent federal rule provides that the reserved issues must be specified in writing and that consent of the prosecutor as well as approval by the court are necessary for entry of a conditional plea. Fed. R. Crim. P., rule 11 (a) (2). Our statute, § 54-94a, does not contain these safeguards against potential abuse. The inherent power of the trial court to reject such a plea where it is clearly inappropriate affords some protection against misuse of the statutory procedure, but the court is not in a position to evaluate adequately such prosecutorial concerns as the significance of a particular ruling to the ultimate disposition of a case or the problems entailed by delaying a trial for the period necessary to obtain appellate review. The prosecutor is ordinarily much more familiar with the evidence to be presented that may not be affected by the ruling and also with the effect of delay incident to an appeal upon the availability of witnesses. Even where the prosecutor looks favorably on the conditional plea, as the state apparently does here, the parties, as well as the trial court, must be sure that the issues reserved can properly be reviewed on the record available. Though we perceive no problem in reviewing the ruling upon the admissibility of the defendant’s confession in this case, we have concluded, for reasons explained in part II of this opinion, that the issue of whether the arson murder statute violates the constitutional prohibition against cruel and unusual punishment cannot be properly resolved at this stage of the proceeding. The improvident reservation of that issue under the plea has resulted in a delay of more than two years in the ultimate disposition of this case.

We are not inclined, therefore, on this occasion to resort to our general supervisory powers over appellate procedure; Practice Book §§ 3096, 3063, 3164; State v. Cohane, supra, 499; to allow the reservation under a conditional plea of rulings on pretrial motions beyond those expressly permitted by the statute. It would be unwise to invoke our authority by reviewing the denial of the motion to suppress the confession because the condition of the defendant’s plea was that he obtain an appellate determination on the merits both of that ruling and of the denial of his motion to dismiss which, as we have indicated, the record does not permit. We also are of the view that until a rule has been fashioned containing safeguards similar to those embodied in federal rule 11 (a) (2), the trial courts should not employ this procedural innovation except in situations plainly within the provisions of § 54-94a.

II

Because § 54-94a permits a defendant to reserve for appeal the denial of a motion to dismiss, the second claim reserved by the defendant, attacking the constitutionality of the arson murder statute, appears to fall within the scope of the conditional plea statute. We conclude, nevertheless, that the contemplated appellate determination of that issue on the merits cannot be had on the state of the record before us.

The defendant moved to dismiss the indictment insofar as the arson murder charges were predicated upon his commission of arson in the second or third degree rather than arson in the first degree. He claimed that, since such offenses are designated as class B and C felonies and require a less culpable state of mind than arson in the first degree, a class A felony, the penalty provided for arson murder is unconstitutionally disproportionate to the crime and, therefore, constitutes cruel and unusual punishment prohibited by the eighth amendment to our federal constitution. See Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). In denying this motion to dismiss, the trial court distinguished the Solem precedent relied upon by the defendant because of the more serious nature of the offenses charged in this case, but ultimately held that, regardless of the merits of his unconstitutionality claim, the defendant could not before trial assume that a guilty verdict would necessarily be based upon arson in the second or third degree. The defendant has at no time raised a constitutional challenge to a conviction of arson murder predicated upon arson in the first degree.

At the plea proceedings the state’s narrative of the factual basis for the plea indicated that the defendant had intentionally ignited some papers that he had spread on a stairway of an apartment building occupied by his niece as well as others and thus started a conflagration that resulted in the deaths of fourteen persons. The state referred also to the confession of the defendant in which he admitted visiting the apartment of his niece and starting a fire on a couch within the apartment because of his carelessness with a cigarette. In its response to a motion for disclosure of uncharged misconduct, the state had declared that evidence would be offered that the defendant had started a fire on the couch in the apartment of his niece shortly before he started the fire on the stairway that consumed the premises. The state has contended that the second fire was the sole cause of the death of the fourteen victims. The defendant, however, has argued that, since he does not dispute negligently starting a fire on the couch in the apartment of his niece, which may not have been wholly extinguished when he left the apartment and might have later flared up and consumed the building, a jury might find his conduct with a cigarette to constitute the recklessness required for arson in the third degree. Thus he maintains that, if the arson murder statute is construed to allow a person to be convicted for merely reckless conduct in causing a fire that results in a death, it is unconstitutional because the severe penalties provided are greatly disproportionate to the offense.

This court does not embark upon the resolution of questions involving the validity of a statute in the absence of a practical necessity for their determination in the case presented and a sufficient factual background for their adjudication. Alexander v. Robinson, 185 Conn. 540, 548, 441 A.2d 166 (1981). “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Parker v. Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949); see Moscone v. Manson, 185 Conn. 124, 134, 440 A.2d 848 (1981) (Healey, J., concurring); State v. DellaCamera, 166 Conn. 557, 560, 353 A.2d 750 (1974). Appropriate deference to a coordinate branch of government exercising its essential functions demands that we refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident. See Poe v. Ullman, 367 U.S. 497, 503-506, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961); Tribe, American Constitutional Law § 3-10. The defendant never attempted in his motion for a bill of particulars to ascertain whether the state would rely upon the fire of the couch as the predicate for the arson murder charged in the indictment. It appears quite unlikely, nevertheless, that any occasion will arise in this case to require a determination of the constitutional issues raised by the defendant. The state declared at the plea proceeding that the arson relied upon in the indictment was based upon the fire the defendant had intentionally started on the stairway for the purpose of destroying the building, a position it has also maintained on appeal. Such a scenario, involving intentional conduct solely, would not implicate the recklessness that .is the gravamen of arson in the third degree. “Our penal code . . . expressly defines the terms ‘intentionally’ and ‘recklessly’ in such manner as to render them mutually exclusive.” State v. Ruiz, 171 Conn. 264, 271, 368 A.2d 222 (1976); see General Statutes § 53a-3 (11) and (13). Thus it appears that no occasion amounting to a “practical necessity” will arise in this case to require a determination of the constitutional issues raised by the defendant.

Furthermore, the defendant cannot mount a constitutional challenge to a statute on the basis of its possible applications in circumstances not presented by his own case, unless first amendment freedoms are affected, a situation not claimed to exist here. State v. Pickering, 180 Conn. 54, 57-58, 428 A.2d 322 (1980); State v. Cuvelier, 175 Conn. 100, 111-12, 394 A.2d 185 (1978). “According to well-established principles, a [party] who challenges the constitutionality of a statute must prove that the statute has adversely affected a constitutionally protected right ‘under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist.’ ” Weil v. Miller, 185 Conn. 495, 501, 441 A.2d 142 (1981). “[Judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action.” Poe v. Ullman, supra, 504; United Public Workers v. Mitchell, 330 U.S. 75, 90, 67 S. Ct. 556, 91 L. Ed. 754 (1947). In the absence of a clear indication in the record that the state is relying upon a claim that the defendant “recklessly” caused the destruction of the apartment building and thus committed arson in the third degree as the predicate offense for arson murder, the defendant is not entitled to an adjudication of the constitutional claims raised in his motion to dismiss. As we have noted, the present record discloses that the state asserts the contrary, relying wholly upon a claim that the defendant intended to destroy or damage the apartment building when he started the fire on the stairway.

Because the defendant’s appeal from the denial of the motion to dismiss, as well as his appeal from the motion to suppress his statement, are not properly renewable by this court, we are unable to fulfill the plea agreement entered into between the defendant and the prosecutor. The defendant expressly bargained for appellate review of both rulings of the trial court “on the merits.” Our inability to comply with this agreement constitutes a failure of consideration in the plea bargaining process. See Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). Such a failure requires this court to vacate the defendant’s pleas on the ground that they did not “constitute knowing and intelligent voluntary waivers of constitutional rights made with sufficient awareness of the relevant circumstances and likely consequences.” United States v. Cox, 464 F.2d 937, 946 (6th Cir. 1972); see Boykin v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). A plea induced by a court-approved promise that could not be fulfilled cannot be viewed as voluntary. United States v. White, 583 F.2d 819, 826 (6th Cir. 1978); United States v. Swann, 574 F.2d 1316, 1318 (5th Cir. 1978); United States v. Hill, 564 F.2d 1179, 1180 (5th Cir. 1977). Because the defendant is foreclosed from raising the reserved issues before this court, and because the plea was given in reliance on his ability to pursue his appellate remedy, the judgment of conviction must be set aside and the matter remanded to the Superior Court for further proceedings.

Ill

The remaining claim of error, that the court imposed two consecutive terms of life imprisonment on the defendant, though presenting a constitutional question, does not involve the validity of the arson murder statute but the application of it by the trial court. The statute does not specify whether sentences imposed for its violation under separate counts must be consecutive or concurrent, leaving that determination to the judicial discretion of the court pursuant to General Statutes § 53a-37. The defendant contends that consecutive life sentences based upon a single act of arson violate the double jeopardy clause of the eighth amendment to the federal constitution as well as the prohibition against being “punished, except in cases clearly warranted by law” of article first, § 9, of our state constitution. Our reluctance to decide constitutional issues in advance of a present need for their determination is overcome in this instance by three factors: (1) the issues do not involve the invalidation of any legislative enactment; (2) there is a practical necessity to resolve the issues at this time, because they are likely to arise once more at the sentencing proceeding, even though the trial court is not obligated to impose the same sentence, in the event of another conviction of the defendant; and (3) ample precedent supports our practice of reviewing claims of error not essential to the disposition of the appeal that will probably recur when a case is remanded for further proceedings. State v. Morrill, 197 Conn. 507, 509, 498 A.2d 76 (1985); Maltbie, Conn. App. Proc. § 341; see State v. Couture, 194 Conn. 530, 566, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

The defendant’s claim that the two consecutive life sentences imposed on him violate the double jeopardy clause of our federal constitution invokes the protection afforded by that provision against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). As the defendant recognizes in his brief, the issue, though essentially constitutional, becomes one of statutory construction.

We recently rejected a double jeopardy challenge to consecutive life sentences imposed for the felony murder of two of the victims of the same robbery on the ground that the reference to the death of “a person” in General Statutes § 53a-54c, our felony murder statute, was in the singular. State v. Couture, supra, 565. The same language, “causes the death of a person,” is used in the arson murder statute, § 53a-54d, to describe that element of the crime. “A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore, when two or more persons are the victims of a single episode there are as many offenses as there are victims.” State v. Couture, supra, 565-66; State v. Gunter, 132 Ariz. 64, 70, 643 P.2d 1034 (1982); State v. Irvin, 603 S.W.2d 121 (Tenn. 1980); Vigil v. State, 563 P.2d 1344, 1351 (Wyo. 1977).

The defendant argues that an intention to impose the same punishment for the single act of arson regardless of the number of deaths caused may be gleaned from the legislative history of § 53a-54d as well as of the provision of our capital felony statute; General Statutes § 53a-54b (8); that makes a person susceptible to punishment by death who is convicted of the “murder of two or more persons at the same time or in the course of a single transaction.” We are unpersuaded. Nothing in the legislative history is of such significance as to overcome the reference in § 53a-54d to the death of a single person as an essential element of the crime of arson murder, a consideration we found persuasive in the parallel situation of felony murder. State v. Couture, supra, 565. The express reference to multiple murders in § 53a-54b as a basis for a capital felony does not militate against treatment of a single act of arson resulting in the death of multiple victims as separate offenses under § 53a-54d.

There is error in accepting the plea of nolo contendere with conditions that could not be fulfilled under our procedures, the judgment is set aside and the case is remanded to the trial court for further proceedings.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-54d. arson murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole.”

       The court made the life imprisonment terms in counts three to eight concurrent with that imposed in count one. A consecutive life imprisonment term was imposed in count two and the terms imposed in counts nine to fourteen were concurrent with that count. General Statutes § 53a-35a, effective July 1,1981, and applicable to crimes committed after that date, “instituted definite sentencing and effectively eliminated parole in Connecticut .... The effect of General Statutes § 53a-35a is to put the arson murder statute in the context of a definite sentencing scheme and to render the phrase ‘shall not be eligible for parole’ in the statute meaningless .... General Statutes § 53a-54d remains effective to make arson murder a crime and to require anyone convicted of that offense to receive a life sentence.” State v. Dupree, 196 Conn. 655, 659-60, 495 A.2d 691 (1985).
      In view of the result we reach that further trial court proceedings are necessary, we need not consider the effect of § 53a-35a upon the sentences imposed in this case, the defendant having raised no claim of error in that respect.

       See Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       “[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       “A plea of nolo contendere has the same legal effect as a plea of guilty on all further proceedings within the indictment. North Carolina v. Alford, 400 U.S. 25, 35-36 n.8, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); Lawrence v. Kozlowski, 171 Conn. 705, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); see State v. Godek, 182 Conn. 353, 363-64, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). The only practical difference is that the plea of nolo contendere may not be used against the defendant as an admission in a subsequent criminal or civil case. 4 Wigmore, Evidence (Chadbourn Rev. 1972) § 1066 (2), p. 81; Lenvin & Meyers, ‘Nolo Contendere: Its Nature and Implications,’ 51 Yale L.J. 1255 (1942).” State v. Martin, 197 Conn. 17, 20-21 n.7, 495 A.2d 1028 (1985). It is clear, however, that a nolo contendere plea also constitutes a waiver of all nonjurisdictional defects in a manner equivalent to a guilty plea. Lott v. United States, 367 U.S. 421, 81 S. Ct. 1563, 6 L. Ed. 2d 940 (1961); United States v. DePoli, 628 F.2d 779, 781 (2d Cir. 1980).

       A plea, whether conditional or unconditional, does not preclude review of “jurisdictional defects.” Those defects have been characterized as those which would prevent a trial from occurring in the first place. Saltzburg, “Pleas of Guilty and the Loss of Constitutional Rights: The Current Price of Pleading Guilty,” 76 Mich. L. Rev. 1265, 1285-86 (1978). Thus, after an unqualified plea of guilty or nolo contendere, a defendant may challenge his conviction if the conviction is in violation of the double jeopardy clause; Menna v. New York, 423 U.S. 61, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975); if the court lacks subject matter jurisdiction over the case; Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974); or if the statute under which the defendant is charged is unconstitutional. Haynes v. United States, 390 U.S. 85, 87 n.2, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968); see 1 Wright, Federal Practice and Procedure: Criminal 2d (1982) § 175, pp. 624-28.

       During the regular session of the senate, Senator Howard T. Owens, Jr., moved for acceptance of the joint committee’s report and the passage of the bill. 1982 Sess., S.B. 20. In describing the function of the bill, the senator gave an example involving a defendant charged with possession of cocaine who wants to challenge the search and seizure warrant as ineffective. The senator explained that in the absence of a conditional plea procedure, the defendant is forced to go through the entire expense of trial, merely to appeal an unfavorable ruling on his motion to suppress. Nowhere in the legislative history is it suggested that § 54-94a could be used to challenge a motion to suppress anything other than evidence obtained contrary to search and seizure principles. See 25 S. Proc., Pt. 2, 1982 Sess., pp. 350-53; 25 H. R. Proc., Pt. 3, 1982 Sess., pp. 587-91.

         Rule 11 (a) (2) of the federal rules of criminal procedure provides: “With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.”

       Two circuits had approved the entry of conditional pleas; United States v. Moskow, 588 F.2d 882 (3d Cir. 1978); United States v. Burke, 517 F.2d 377 (2d Cir. 1975); while two others had merely praised the concept. United States v. Clark, 459 F.2d 977 (8th Cir. 1972); United States v. Dorsey, 449 F.2d 1104 (D.C. Cir. 1971). Three circuits had concluded that the use of the conditional plea in the absence of statutory authority or court rule is improper. United States v. Brown, 499 F.2d 829 (7th Cir. 1974); United States v. Sepe, 474 F.2d 784, aff’d en banc, 486 F.2d 1044 (5th Cir. 1973); United States v. Cox, 464 F.2d 937 (6th Cir. 1972); see generally United States v. DePoli, 628 F.2d 779, 781 (2d Cir. 1980).

       We need not consider whether General Statutes § 54-94a is a rule of practice or procedure not binding upon the Superior or Supreme Courts of this state; State v. Clemente, 166 Conn. 501, 507, 353 A.2d 723 (1974); since the trial court implicitly acquiesced in the statutory procedure. See Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968). This court also approves the conditional plea procedure set forth in the statute subject to the general authority of the trial court to refuse to accept such a plea where it is inappropriate, as in this case.

       We are not presented in this case with claims of the inadmissibility of statements of a defendant to the police that are intertwined with a motion to suppress evidence based on an unreasonable search and seizure, as in our recent decision of State v. Torres, 197 Conn. 620, 500 A.2d 1299 (1985). In that case the ruling on the motion to suppress had been properly reserved under General Statutes § 54a-94a. Considerations of fairness and judicial economy dictated that the closely related issues concerning the statements of the defendant made during the search as well as afterward should also be resolved. In the case on appeal, the issues concerning the confession are not related to a claim of an unlawful search. Furthermore, as discussed in part II, the remaining issue reserved involving the constitutionality of General Statutes § 53a-54d, our arson murder statute, cannot be reviewed on the present record. Thus none of the issues reserved under the nolo contendere plea is properly before us.

       In the defendant’s motion to dismiss, he challenged the constitutionality of an arson murder conviction predicated on both second and third degree arson. It appears, however, that he has abandoned his claim as to second degree arson, as it was addressed neither in his brief nor during oral argument. It should be noted that both first and second degree arson require a specific intent “to destroy or damage a building.” General Statutes §§ 53a-lll, 53a-112. Arson in the third degree occurs where a person “recklessly causes destruction or damage to a building . . . by intentionally starting a fire or causing an explosion.” General Statutes § 53a-113.

       The written plea of nolo contendere provided as follows: “Upon the acceptance of this plea and the entry of judgment of guilty by the Court, the defendant will seek appellate review of the denial of these motions. Should the Court’s rulings on these motions be affirmed on the merits, and there be no other change in the pretrial rulings and determinations made to date, then this plea of nolo contendere will become final. Should the Supreme Court fail to affirm any or all of this Court’s rulings on these motions on the merits, however, this plea of nolo contendere will be withdrawn.” In view of these conditions of the plea it is curious that the state, though agreeable to review of the motion to suppress the confession, opposes review of the defendant’s constitutional claims on the merits on the ground that the issue is not properly before us on the present record, a contention we have found persuasive.

       The claim that the sentences imposed violate our state constitution was not included in the motion to dismiss filed in the trial court. In this court, the defendant’s brief refers to article first, § 9, without any analysis of its language in relation to his double jeopardy claim. Article first, § 9, provides as follows: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” In the absence of some explanation, we find it difficult to understand the application of this provision to the issues before us. State v. McNally, 152 Conn. 598, 602, 211 A.2d 162 (1965). It is, perhaps, possible that the defendant was referring to article first, § 8, of our state constitution which has been interpreted to include the double jeopardy protection as an element of due process. See Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626 (1962).


source: Caselaw Access Project

author: Shea, J. Dannehy, J., Santaniello, J.,

license: Public Domain

text:
    State of Connecticut v. Bobby Lee Rawls
    (12213)
    Peters, C. J., Shea, Dannehy, Santaniello and Kline, Js.
    Argued October 2
    decision released December 17, 1985

      John W. Watson, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Robert A. Lacobelle, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Shea, J.

After a jury trial, the defendant, Bobby Lee Rawls, was convicted of two counts of possession of narcotics in violation of General Statutes § 19-481 (a). The defendant was sentenced to seven years imprisonment on one count, and to a consecutive sentence of seven years on the other count with execution suspended after one year, making a total effective sentence of fourteen years, suspended after eight, with five years probation. The court, Callahan, J-, subsequently modified the sentences to run concurrently. From this judgment, the defendant appeals claiming (1) that he was denied the right to confront the witnesses against him as to the analysis of the drugs, and (2) that multiple convictions for the simultaneous possession of cocaine and heroin violated his rights under the double jeopardy clause of the United States constitution. We are persuaded only by the double jeopardy claim.

On August 9,1981, at approximately 3:30 a.m., members of the Bridgeport police department conducted a raid at an after hours club. While in the club, a police detective observed the defendant place a black pouch on the bar and begin to walk toward an exit. The defendant was then stopped and asked to return to the bar where he had left the pouch. The detective inspected the bag and found a yellow spoon with a white powder residue, two glassine envelopes, a plastic bag and a film container all of which held a white powder substance. The defendant was arrested for possession of narcotics.

At trial, the state offered Charles Reading, a state toxicologist, to testify as to the nature of the substances that were contained in the black pouch. Reading was qualified as an expert in the field of toxicology and described the testing procedures used to determine the contents of the pouch. On the basis of the test results, he concluded that the residue on the spoon and the substances in the plastic bag and in the film container were cocaine, and that the powder in one of the glassine envelopes was heroin.

I

The defendant claims, for the first time on appeal, that he was denied the right to confront witnesses against him as guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant’s claim relates to the testimony of Reading concerning the testing procedures used upon the substances in the black pouch. He argues that, because Reading did not perform the actual tests on the substances and did not provide the court with adequate indicia of reliability for his statements, his testimony consisted of inadmissible hearsay evidence which deprived the defendant of his right to confront the witnesses against him. We do not agree because the defendant, by his failure timely to raise such an objection at trial, waived his confrontational rights.

At trial, after Reading testified that the contents of the bag were indeed narcotics, the state concluded its questioning. At no time during the direct examination did the defense counsel object to Reading’s testimony. Defense counsel initiated cross-examination by confirming that Reading did not perform the tests himself. At that point, the trial court asked the state’s attorney if he intended to offer the toxicological report into evidence. The state’s attorney responded, “I had intended to offer it to [sic] the last witness.” After defense counsel concluded cross-examination, the state rested its case. After a brief recess, the defendant also rested.

At the close of the evidence, the defendant for the first time objected to Reading’s testimony by way of his motion for judgment of acquittal. Claiming that the “whole evidence of the drugs should go out,” he objected to the evidence on hearsay grounds. Defense counsel recognized that he had failed to object during the examination of Reading, but explained the omission by his misunderstanding of the statement of the state’s attorney that he intended to introduce the report through the “last” witness. Defense counsel, as well as the trial court, interpreted the statement to mean that the report would be offered through another witness. Despite this misinterpretation, the court denied the defendant’s motion.

Even if it were assumed that the testimony in question was hearsay, the admission of hearsay evidence does not necessarily violate the confrontation clause. In California v. Green, 399 U.S. 149, 155-56, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), the United States Supreme Court noted that “[wjhile it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. . . . Merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.” See note, “Confrontation and the Hearsay Rule,” 75 Yale L.J. 1434, 1436 (1966); State v. Brigandi, 186 Conn. 521, 531, 442 A.2d 927 (1982); State v. Cosgrove, 181 Conn. 562, 577, 436 A.2d 33 (1980); McCormick, Evidence (3d Ed. 1984) § 252.

In State v. Cosgrove, supra, 578, we declared that where hearsay evidence is offered, the proper focus of the court’s concern is whether there are adequate “indicia of reliability” to justify placing such evidence before the jury. See Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S. Ct. 2308, 33 L. Ed. 2d 293 (1972); Dutton v. Evans, 400 U.S. 74, 81, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970). Further, we noted that any such hearsay must “ ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’ ” State v. Cosgrove, supra, 571; California v. Green, supra, 161. We concluded that the admission of a toxicological report, prepared in the regular course of laboratory business, containing statements by a testing chemist who fails to testify, does not violate the defendant’s right to confront and cross-examine the witnesses against him, provided that the report is introduced through a witness who can furnish a basis for its reliability.

The gravamen of the defendant’s claim is not that the failure to call the chemists who actually performed the tests rendered Reading’s testimony inadmissible or denied the defendant his right to confront the witnesses against him. The defendant recognizes that Cosgrove makes such an argument untenable. He argues, rather, that his confrontational rights were violated because Reading’s testimony did not establish “adequate indicia of reliability,” as is necessary for admission under Cosgrove. He cited the state’s failure to mention the names of the testing chemists and to prove that Reading supervised the testing chemists in analyzing the substances seized from the defendant, two components of reliability that were present in Cosgrove. The defendant does not contend that the state had to call further witnesses against him. He argues merely that the state’s ambiguous statement induced him prematurely to terminate his cross-examination of Reading, in the mistaken belief that another witness would provide the needed assurances of reliability.

Throughout the examination of Reading, the defendant never objected to the testimony as to the narcotic content of the substances. As he claims, the defendant may have presumed that the subsequent admission of the toxicological report, through a witness who would provide the necessary foundation and assurances of reliability, would render any hearsay objection ineffective under the rule articulated in Cosgrove. See State v. King, 187 Conn. 292, 309, 445 A.2d 901 (1982); State v. Reardon, 172 Conn. 593, 599, 376 A.2d 65 (1977). However, the mere fact that Reading’s testimony might have been inadmissible hearsay does not inexorably lead to the conclusion that the defendant’s confrontational rights were violated. The primary interest secured by confrontation is “the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983).

The defendant’s right to cross-examine Reading was not restricted. In fact, the defendant elicited from this witness that he did not actually test the drugs. The jury could reasonably have drawn inferences, unfavorable to the state, from that testimony. The defendant did not inquire as to who actually performed the tests, nor whether the tests were performed according to standard toxicological practice. Further, he chose not to cross-examine Reading extensively.

Therefore, the essence of the defendant’s claim is that the state failed to provide the necessary assurances of reliability for Reading’s testimony, as Cosgrove requires. Because of this alleged deficiency, the defendant should have objected to the state’s initial questioning of Reading on the narcotic content of the substances. A timely objection based on the state’s failure to lay a proper foundation for his opinion should have been made before Reading answered the question. See Hackenson v. Waterbury, 124 Conn. 679, 683, 2 A.2d 215 (1938); Snow v. Howard Motors, Inc., 3 Conn. Cir. Ct. 702, 706-707, 223 A.2d 409 (1966). Because the defendant failed to raise a timely objection, the trial court was never alerted as to the constitutional problems resulting from the admission of the testimony. Had the defendant objected, the state might have been able to establish the necessary assurances of reliability to dispense with the requirement of confrontation. See United States v. Helmel, 769 F.2d 1306, 1317 (8th Cir. 1985); United States v. Gibbs, 739 F.2d 838, 847 (3d Cir. 1984) (en banc), cert. denied, 469 U.S. 1106, 105 S. Ct. 779, 83 L. Ed. 2d 774 (1985). The lack of evidence on the record as to the assurances of reliability was directly traceable to the defendant’s failure seasonably to object. United States v. Gibbs, supra, 848. The defendant also could have requested a voir dire examination of Reading in order to determine whether he could provide the necessary assurances of reliability. Because the defendant failed to invoke his right to such an inquiry or to make a timely objection, Reading’s testimony was properly before the jury. “Where hearsay evidence is admitted without objection, such evidence may be given such weight as the trier of fact deems'that it is worth.” State v. Boyd, 178 Conn. 600, 604, 424 A.2d 279 (1979); Cutlip v. Connecticut Motor Vehicles Commissioner, 168 Conn. 94, 98, 357 A.2d 918 (1975); Pluhowsky v. New Haven, 151 Conn. 337, 343, 197 A.2d 645 (1964).

Although he might have been induced to curtail his cross-examination of Reading because of his reliance on the state’s ambiguous statement, the defendant should have moved to strike the testimony when the state closed its case, as it was then clear that there would be no additional witnesses called. See Kowalewski v. Mutual Loan Co., 159 Conn. 76, 78, 266 A.2d 379 (1970); State v. Perelli, 125 Conn. 321, 327, 5 A.2d 705 (1939); Snow v. Howard Motors, Inc., supra, 707.

Had the defendant wanted to challenge the toxicological report, his confrontational rights “were adequately protected by the available procedures for pretrial discovery, Practice Book, 1978, §§ 741, 745, and subpoenaing of the witness[es] during trial. See, e.g., People v. Gower, 42 N.Y.2d 117, 121, 366 N.E.2d 69 [397 N.Y.S.2d 368 (1977)]; State v. Walker, 53 Ohio St. 2d 192, 197, 374 N.E.2d 132 [1978].” State v. Cosgrove, supra, 581-82. The admission of Reading’s testimony did not deprive the defendant of his right to confront the individuals who actually performed the tests. The defendant, at the close of the state’s case, could have moved to strike the expert’s testimony on hearsay or confrontational grounds or could have sought a continuance to allow an opportunity to subpoena the individuals who actually performed the tests. Because he failed to avail himself of opportunities to exercise his confrontational rights even after his initial misunderstanding concerning the statement of the prosecutor had been dispelled, the defendant cannot complain that he was deprived of the right to confront the witnesses against him.

II

The defendant next argues that the trial court, by convicting him of two counts of possession of narcotics for the simultaneous possession of heroin and cocaine, punished him twice for the same offense and thereby violated the double jeopardy provision of the United States constitution. The defendant was charged and convicted under General Statutes § 19-481 (a), which imposes liability on “[a]ny person who possesses or has under his control any quantity of any narcotic substance . . . .” The express language of the statute does not address whether or not a person can be punished for multiple violations based on the simultaneous possession of different narcotic substances.

The double jeopardy clause of the fifth amendment to the federal constitution protects not only against multiple trials but also against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); State v. Wright, 197 Conn. 588, 592-93, 500 A.2d 547 (1985); State v. Sharpe, 195 Conn. 651, 654, 491 A.2d 345 (1985). “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the . . . court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). The issue, though essentially constitutional, becomes one of statutory construction. State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985).

“ Tf a person steals four horses from the barn of another, all being of different color, it would not be competent to charge the thief with four different larcenies when the horses were all taken at the same time and place.’ Braden v. United States, 270 F. 441, 443-44 (8th Cir. [1920]). ‘Merely because one element of a single criminal act embraces two persons or things, a prosecutor may not carve out two offenses by charging the several elements of the single offense in different counts and designating only one of the persons or things in one count and designating only the other person or thing in the other count.’ Robinson v. United States, 143 F.2d 276, 277 (10th Cir. [1944]).” State v. Cimino, 33 Conn. Sup. 680, 684, 366 A.2d 1168 (1976).

The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. Albernaz v. United States, 450 U.S. 333, 337, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980). Therefore, the question before us becomes whether the legislature in enacting § 19-481 (a) intended to authorize dual convictions for the simultaneous possession of cocaine and heroin.

Neither the language of § 19-481 (a) nor its legislative history indicates an intention to authorize multiple punishment for the simultaneous possession of more than one narcotic. The state, at argument, disclaimed the notion that separate packages of the same narcotic substance found in the possession of a person could be the basis for separate punishments under § 19-481 (a). The statute provides no suggestion of a contrary result for the simultaneous possession of separate packages of different narcotics. As the state conceded at argument, the statute at issue here is ambiguous in respect to whether separate punishments were intended for the possession of more than one kind of narcotic substance. It is a fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. See Rewis v. United States, 401 U.S. 808, 812, 91 S. Ct. 1056, 28 L. Ed. 2d 493 (1971); Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955); United States v. Noe, 634 F.2d 860, 862 (5th Cir. 1981); State v. Dupree, 196 Conn. 655, 660, 495 A.2d 691 (1985). The “touchstone” of this rule of lenity is “statutory ambiguity.” Bifulco v. United States, 447 U.S. 381, 387, 100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980). Unless a clear intention to fix separate penalties for each narcotic substance involved is expressed, the issue should be resolved in favor of lenity and against turning a single transaction into multiple offenses. Ladner v. United States, 358 U.S. 169, 178, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958); Bell v. United States, supra, 84. The defendant’s conviction and sentence for possession of heroin, in the absence of a clearly discernible legislative intent for multiple convictions under § 19-481 (a), is barred by the double jeopardy clause.

There is error in the judgment on the additional possession of narcotics count, the judgment on that count is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Peters, C. J., and Kline, J., concurred.

Dannehy, J.,

dissenting. I cannot agree with part II of the decision. Section 21a-279 (a) of the General Statutes provides in part that “[a]ny person who possesses . . . any narcotic substance . . . may be imprisoned.” (Emphasis added.) I believe that “any narcotic substance” as employed in the statute means any single narcotic substance. An individual in simultaneous possession of two different narcotic substances commits two separate statutory violations.

The rationale of the majority seems to be based on a series of concessions by the assistant state’s attorney at oral argument. While a party’s concessions at oral argument often facilitate our consideration of factual or procedural matters peculiar to the case at hand, I do not find them particularly illustrative in determining legislative intent. Perhaps now, instead of responding fairly and honestly to questions posed at oral argument, parties will concede nothing.

I am not surprised that an exhaustive search through the legislative history of § 21a-279 fails to disclose “an intention to authorize multiple punishment for the simultaneous possession of more than one narcotic.” The legislature rarely addresses directly such matters as the double jeopardy implications of its penal enactments. But more close to the point is the truism that men rarely make express what all assume as true. Certainly, the legislature would not have been so careless as to omit discussion of the double jeopardy clause if it could have foreseen how § 21a-279 would later be construed.

Finally, it is my opinion that the copious pages of our General Statutes devoted to the regulation and proscription of illegal substances reflect convincingly a strong legislative policy directed toward the complete suppression of narcotics such as heroin and cocaine. I cannot persuade myself that the legislature intended to treat the simultaneous possession of heroin, cocaine and any number of other narcotic substances as a single offense. Our statutory scheme represents a clear policy aimed at interdicting the flow of illegal narcotics. While the opinion of the court may not significantly impede law enforcement efforts in this area, I nonetheless do not find support for it in reason or policy. Accordingly, I dissent.

Santaniello, J.,

dissenting. I agree wholeheartedly with the dissenting opinion of Justice Dannehy. I write separately to note that the statutory interpretation offered by the defendant in support of his double jeopardy claim leads to a bizarre result.

The defendant argues that the legislature intended that a person who simultaneously possesses both cocaine and heroin should be charged with only one criminal offense under General Statutes § 21a-279 (a). Section 21a-279, however, assesses different penalties for the possession of different types of narcotics. A person who possesses both cocaine as proscribed by § 2 la-279 (a) and marihuana as proscribed by § 21a-279 (b) must be charged with two different criminal offenses. The majority’s interpretation thus leads to an incongruous result: a person possessing both cocaine and heroin will be charged with one crime and a person possessing both cocaine and marihuana will be charged with two crimes. Also, the overall statutory scheme suggests that the legislature intended possession of a “narcotic substance” as proscribed by § 2 la-279 (a) to be a more serious offense than possession of cannabis-type substances as proscribed by § 21a-279 (b) or (c). Thus, oddly, under the majority’s interpretation, a person possessing cocaine and heroin will be subject to a lesser penalty than a person possessing cocaine and marihuana.

Because statutory interpretations which produce a more rational result are favored over those which produce bizarre or incongruous results; State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985); I cannot agree with the majority’s analysis of the double jeopardy claim. I accordingly dissent.

       In 1983, the legislature transferred General Statutes § 19-481 (a) to § 21a-279. Public Acts 1983, No. 83-141.
      “[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for illegal possession, substitution of medical treatment for criminal sanctions, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years, or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       The defendant was also charged, in count one of the information, with possession of narcotics with intent to sell in violation of General Statutes § 19-480a, now § 21a-278. The trial court dismissed this count pursuant to the defendant’s motion for judgment of acquittal. The two possession of narcotics charges were counts two and three of the information.

       Although the Connecticut constitution contains no specific double jeopardy provision, the due process guarantees of article first, § 8, have been held to include such a protection. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

       Although it was not raised at trial, we will address this claim because “the Sixth Amendment’s right of an accused to confront the witnesses against him is ... a fundamental right and is made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. King, 187 Conn. 292, 309, 445 A.2d 901 (1982); State v. Reardon, 172 Conn. 593, 376 A.2d 65 (1977); see State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

       Because of the defendant’s failure timely to object it is not necessary to address the issue of whether or not the admission of Reading’s testimony, without the accompanying toxicological report, was inadmissible hearsay. See Practice Book §§ 288, 3063; State v. Sinclair, 197 Conn. 574, 500 A.2d 539 (1985); Keating v. Glass Container Corporation, 197 Conn. 428, 497 A.2d 763 (1985).

       The definition of “narcotic substance” in General Statutes § 19-443 (30), now § 21a-240 (30), expressly includes both cocaine and heroin.

         In Braden v. United States, 270 F. 441, 443-44 (8th Cir. 1920), a statute proscribing possession of “any of the aforesaid drugs” was held not to authorize separate sentences for each of four narcotic substances simultaneously possessed by the defendant.


author: Peters, C. J.

text:
    State of Connecticut v. Hyde A. Harman
    (10818)
    Peters, C. J., Healey, Shea, Callahan and Aspell, Js.

      Argued October 8
    decision released December 17, 1985

      Hyde A. Harman, pro se, and Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      C. Robert Satti, Sr., state’s attorney, with whom was Michael L. Regan, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue on this appeal is whether the trial court denied the defendant his constitutional right to the assistance of counsel by failing to appoint new counsel for him for eleven weeks after the withdrawal of the defendant’s previous attorney. The defendant, Hyde A. Harman, was convicted, after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a. He appeals from this judgment.

The jury could reasonably have found the following facts concerning the underlying crime. The defendant and his wife separated in June, 1979. On October 28, 1979, the defendant drove to his wife’s house, after having called her to say that he was going away and wanted to give her their dog. As he pulled into the driveway, his wife left the house and approached the car. Emerging from the car with a rifle in hand, the defendant told his wife that he was going to kill her, and then shot her in the stomach. As she turned to run away, he shot her three more times in the back. After she fell, he shot himself in the stomach.

The defense, at trial, centered on a claim of mental disease or defect, a defense that the jury rejected. On appeal, the defendant’s chief claims of error are that the trial court deprived him of a fair trial in: (1) allowing him to remain unrepresented by counsel for eleven weeks; (2) erroneously instructing the jury on the insanity defense; and (3) improperly admitting the testimony of a psychiatrist. We find no error.

I

The defendant first argues that the original trial court, Hendel, J., unconstitutionally left him unrepresented for eleven weeks. On September 17,1980, the defendant’s attorney, special public defender Chester Fairlie, successfully moved to withdraw from the case. The trial court did not appoint new counsel to represent the defendant until December 8,1980. The defendant claims that the trial court, by failing to replace Fairlie in a timely manner, violated his right to counsel guaranteed by the sixth amendment to the federal constitution and by article first, § 8, of the Connecticut constitution. In light of the unusual circumstances present in this case, we disagree.

The record reveals an undisputed history of stormy relationships between the defendant and the attorneys appointed to represent him in this case. After the defendant’s arrest, the court named assistant public defender Richard Singer to serve as defense counsel. The defendant soon began to complain that he did not want Singer and, on January 22, 1980, the trial court replaced Singer with public defender Edward Lavallee. By May, 1980, the defendant had ceased cooperating with Lavallee and had written a number of letters to the court demanding new counsel. On May 19, 1980, Lavallee withdrew and the court appointed a special public defender, Fairlie, to represent the defendant. The defendant repeatedly expressed dissatisfaction with Fairlie and refused to cooperate with him, prompting Fairlie twice to move to withdraw. The court denied both motions. To force the trial court to appoint new counsel, the defendant brought suit in federal court against Fairlie, as well as against Lavallee and Singer. On September 17,1980, having received notice of the federal suit, the trial court allowed Fairlie to withdraw.

Immediately thereafter, the trial court began its attempt to appoint new counsel. The defendant refused to waive his right to counsel, but warned the court that he would strongly object to the appointment of a public defender and threatened to cause further problems if the attorney he received did not satisfy him. The trial court told the defendant that it would not appoint counsel whom the defendant found objectionable and ordered that a public defender from another county be located. On September 24, the defendant returned to court and reiterated his objection to the appointment of a public defender. In light of the defendant’s stance, the court did not appoint counsel. The defendant next appeared before the court on October 14. During that session, the state recommended an attorney to represent the defendant. The defendant objected. The court then offered to permit the defendant to interview another attorney. It gave the defendant the option of either accepting the attorney without objection after the interview or proceeding pro se. On October 21, after having met with the attorney, the defendant informed the court that he would accept him but that he would also object. The court declined to appoint the attorney. Rather than compel the defendant to represent himself, however, the court transferred the case to Hartford where it hoped that the defendant would obtain counsel satisfactory to him. Due to the heavy caseload in Hartford, the defendant’s case was returned to the original trial court. During proceedings held on November 25, 1980, attorney Leo Flaherty offered to represent the defendant if the court transferred the case to Tolland. The defendant agreed to accept Flaherty without objection and the court transferred the case to Tolland. On December 3,1980, the court in Tolland, Spada, J., formally appointed Flaherty, who then served as the defendant’s counsel for the remainder of the trial.

It is against this factual background that we must decide whether the trial court violated the defendant’s constitutional rights by failing to appoint new counsel for him for eleven weeks. Trial courts have an unquestioned obligation, under both the state and the federal constitutions, to provide indigent defendants with legal representation. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); see State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984). If appointed counsel withdraws from the case for good cause, the trial court must furnish a new attorney for the defendant. McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981); United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972); State v. Beaulieu, 164 Conn. 620, 628-29, 325 A.2d 263 (1973). The emergence of a conflict of interest between the defendant and his attorney establishes good cause for withdrawal of counsel. McKee v. Harris, supra; United States v. Calabro, supra. When a trial court is called upon to provide substitute counsel, it must do so expeditiously.

The defendant claims that the trial court’s eleven week delay in appointing new counsel was an unconstitutional denial of his right to the assistance of counsel. The defendant does not challenge the trial court’s apparent finding that, by suing Fairlie, he had himself created the conflict of interest that entitled him to a new attorney. He maintains, however, that the length of this delay, during an allegedly critical stage of the prosecution, necessarily gave rise to an irrebuttable presumption that he had been denied a fair trial. See United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).

Even if we were to agree with the defendant that, in the ordinary case, an eleven week delay in the appointment of substitute counsel is constitutionally impermissible, this is not the ordinary case. When the defendant’s obstreperous behavior has materially contributed to the delay, we look to the totality of the circumstances to determine the propriety of the trial court’s action. Cf. Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970); United States v. Gipson, 693 F.2d 109 (10th Cir. 1982), cert. denied, 459 U.S. 1216, 103 S. Ct. 1218, 75 L. Ed. 2d 455 (1983). In this case, the defendant’s conduct justified the trial court’s delay in naming a new attorney. The trial court could have immediately assigned a lawyer to whom the defendant objected and then insisted that the defendant either accept the appointed counsel or proceed pro se. See McKee v. Harris, supra, 931; United States v. Calabro, supra; State v. Gathers, 197 Conn. 369, 380, 497 A.2d 408 (1985); State v. Beaulieu, supra, 629-31; State v. Hudson, 154 Conn. 631, 637, 228 A.2d 132 (1967); State v. Nash, 149 Conn. 655, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962). Instead, the trial court, aware of the defendant’s previous problems with his attorneys, sought to accommodate the defendant’s objections and thereby prevent future disruptions of the trial that might prejudice the defendant. Indeed, the trial court took considerable pains to provide the defendant with a satisfactory attorney, transferring the case twice and repeatedly asking the defendant, to no avail, to name an attorney that he desired.

On this record, we are unpersuaded that the defendant was harmed in any way by the eleven week hiatus in his representation by counsel. The trial court did not compel the defendant to represent himself. Court proceedings during this period focused almost exclusively upon the search for new counsel. When the defendant insisted on immediate judicial disposition of his pro se motions for discovery, the court initially decided the motions but then refused to allow the defendant to argue pro se, ruling that the defendant had not waived his right to counsel and was merely awaiting the appointment of a new attorney. In effect, the court virtually suspended ‘the case until satisfactory counsel could be found. The defendant claims that, because he had no lawyer for eleven weeks, he was unable to depose a witness who was unavailable during trial. The defendant concedes, however, that this witness was available both before and after the gap in representation. The defendant also contends that he was unable to retain an investigator or a psychiatrist during that time. His new attorney, however, had ample time to investigate, obtain a psychiatrist, and conduct further discovery after the court had appointed him.

This claim of error challenges the propriety of the trial court’s response to extraordinary circumstances that the defendant himself created. “While courts must be assiduous in their defense of an accused’s right to counsel, that right may not be 'manipulated [by the accused] so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.’ United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied sub nom. Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963). . . United States v. Calabro, supra. In this case, the trial court attempted to prevent such manipulation while ensuring that the defendant received assistance of counsel that both protected his rights and met with his satisfaction. We find no error in its actions.

II

The defendant next contends that the trial court committed reversible error by inaccurately instructing the jury on the statutory defense of insanity. Although the court set out the elements of the defense contained in General Statutes (Rev. to 1981) § 53a-13, the defendant argues that the language used by the court in explaining the defense injected into the charge common law definitions that are irrelevant to the insanity defense in Connecticut. Because the defendant failed to object to these instructions at trial, we need not review this claim on appeal.

This court reaches the merits on issues not raised at trial only where “a new constitutional right not readily forseeable has arisen between the time of trial and appeal” or where “the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant in this case claims that the trial court’s submission of a technically incorrect instruction on the insanity defense violated a fundamental constitutional right and denied him a fair trial. We disagree.

.Although a defendant who raises the insanity defense is constitutionally entitled to an instruction that explains the defense to the jury, there is no fundamental constitutional right to a perfect charge. In a criminal case, the state must prove, and the trial court must instruct the jury on, each essential element of the crime charged. See Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see also Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); State v. Griffin, 175 Conn. 155, 162-63, 397 A.2d 89 (1978). A trial court’s failure to instruct on any of these elements warrants reversal regardless of whether the defendant objected at trial. See State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). Under General Statutes § 53a-13 as it read at the time of this trial, the state was required to prove the defendant’s sanity, as an essential element of the state’s case, whenever a defendant claimed insanity. State v. Ontra, 178 Conn. 480, 423 A.2d 134 (1979). Consequently, the trial court was constitutionally obligated to give the jury meaningful guidance on the insanity defense. The court’s constitutional obligation did not extend to the giving of a charge that was beyond criticism in every particular. State v. Kurvin, supra. Accordingly, in the absence of plain error, State v. Evans does not mandate review of a claim that a reasonably informative instruction on insanity was in some particulars inaccurate, when the defendant has failed to take a proper objection at trial. State v. Hinckley, 198 Conn. 77, 84, 502 A.2d 388 (1985); see Practice Book § 3063 and cf. State v. Smith, 194 Conn. 213, 219-20, 479 A.2d 814 (1984).

In this case, the defendant concedes that the court submitted instructions on the insanity defense that were grounded in the requirements of the appropriate statute. Indeed, at trial the defendant’s attorney praised the court’s insanity instruction as the best he had ever heard. On appeal, the defendant complains only that the trial court used inaccurate language in explaining several elements of the defense. Neither this claim nor the record supports a conclusion that Evans review is warranted.

Ill

The defendant’s third claim of error challenges the admissibility of testimony given by a court-appointed psychiatrist who examined the defendant before trial. The defendant argues that this testimony should have been suppressed because it revealed information that the psychiatrist had obtained during his examination of the defendant. According to the defendant, the court ordered the defendant to undergo the examination before he had placed his mental status in issue and thereby violated the privilege against self-incrimination protected by the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. See State v. Fair, 197 Conn. 106, 110-11, 496 A.2d 461 (1985); State v. Lovelace, 191 Conn. 545, 550-51, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984). We find that the trial court properly admitted the testimony.

We need not consider the constitutionality of the court-ordered psychiatric examination in this case because the defendant stipulated to the admissibility of the psychiatrist’s testimony. At trial, the state, out of concern that the psychiatrist’s testimony might be suppressed, asked the court to order a new examination of the defendant and moved that the court forbid the defendant to introduce the testimony of his own psychiatrist because the defendant had failed to notify the state in timely fashion of his intent to rely on the insanity defense. To induce the state to withdraw these motions, the defendant agreed to stipulate to the admissibility of the testimony of the state’s psychiatrist. Having expressly consented, for tactical reasons, to allow the state’s psychiatrist to reveal information he received during the examination, the defendant waived any constitutional claims he may have had with respect to this testimony and may not now challenge its admissibility on appeal. See Neher v. United States, 265 F. Sup. 210, 215 (D. Minn. 1967); People v. Fisk, 50 Cal. App. 3d 364, 370-71, 123 Cal. Rptr. 414 (1975).

IV

The defendant in his supplemental brief raises certain other claims of error that require little discussion in light of the record before us. These claims relate to the evidence admitted at the trial and to the sufficiency of the evidence to establish the defendant’s guilt.

The defendant argues that the trial court erroneously permitted the jury to consider evidence of prior misconduct on his part. The defendant complains of evidence presented upon defense cross-examination of the defendant’s wife and of hypothetical questions posed by the state in its cross-examination of the defendant’s psychiatric expert. As to the former, the defendant cannot be heard to complain about testimony that he himself elicited. As to the latter, the earlier testimony having been properly admitted, the defendant cannot show prejudice.

The defendant’s challenge to the testimony of the state’s firearms and chemical experts cannot be sustained because of the absence of any objection at trial to the evidence now being questioned. In the absence of plain error or error falling within the constitutional ambit of State v. Evans, supra, these evidentiary challenges are unreviewable. See Practice Book § 3063.

The defendant’s final argument concerns the sufficiency of the evidence to sustain his conviction. He attacks both the credibility of the witnesses against him and the good faith of the prosecutor. Our review of the record establishes that he can prevail on neither of these claims. See State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984).

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] See. 53a-49. criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor's conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       “[General Statutes] Sec. 53a-54a. 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.”

       Although the defendant never raised this claim at trial, we consider it here because the question of whether the trial court denied the defendant the right to the assistance of counsel involves a fundamental constitutional right. State v. Vitale, 190 Conn. 219, 232, 460 A.2d 961 (1983); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       On appeal the defendant expresses no dissatisfaction with the performance of his new attorney.

       General Statutes (Rev. to 1981) § 53a-13 provides as follows: “Sec. 53a-13. insanity AS defense. In any prosecution for an offense, it shall be a defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription. As used in this section, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

       The defendant alleges that the court’s instructions improperly included elements of the Durham test; Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954); and the irresistible impulse test for insanity. General Statutes § 53a-13 employs neither test in defining insanity.

       The trial court summarized the agreement between the state and the defendant:
      “The Court: Are you comfortable then with the attorney’s representation as to Dr. Miller and—the second doctor is Langhammer?
      “Mr. Flaherty, Jr.: He is the first doctor. He is our doctor.
      “The Court: Yes. But the Dr. Langhammer and Dr. Miller, that both doctors, notwithstanding whatever interpretation may be applied to Section 760, 759 of the Practice Book, may be fully examined in chief in cross-examination for the purposes of assisting the trier of facts and sharing the doctor’s opinion or his conclusions as to the mental defect at the time of the alleged act. Are we in agreement on that?
      “Mr. Satti: The State agrees.
      “Mr. Flaherty, Jr.: Yes, your Honor, defense agrees.
      “The Court: That if any statements were made by the accused to the doctor, and the doctor has relied upon some of those statements and/or admissions in arriving at his opinion as to whether a deficiency—mental deficiency existed or not, that that testimony will be allowed to be admitted without objection, subject only to the Court curing that admission by a proper warning to the jury, proper caution to the jury?
      “Mr. Satti: That is the agreement of the State, your Honor.
      “Mr. Flaherty, Jr.: Yes.
      “The Court: Okay. Having said that, it means, Mr. Satti, that you will withdraw your motion?
      “Mr. Satti: Withdrawn, your Honor, the objection to the testimony of expert witnesses dated January 12, 1981. Then I will also withdraw the motion for a psychiatric examination, dated January 12, 1981.
      “The Court: Okay. You are withdrawing your objection then to the psychiatric expert that Attorney Flaherty will be introducing on behalf of Mr. Harman. You will also withdraw your request for the 760 Examination; is that correct?
      “Mr. Satti: That is correct, your Honor.”

       The state correctly notes that the defendant has briefed this issue improperly by failing to cite the specific evidence he finds objectionable. See Practice Book § 3060F (c); see also State v. Jones, 193 Conn. 70, 74 n.2, 475 A.2d 1087 (1984). We have decided, in the particular circumstances of this case, to consider this claim to the extent that we have done so only because the defendant has raised it pro se.

       We also note that the trial court instructed the jury that it was to consider the evidence of prior misconduct only in determining the defendant’s sanity and not in deciding whether the defendant shot his wife.