author: Peters, C. J.

text:
    John Harper et al. v. Tax Commissioner of the State of Connecticut
    (12581)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued February 14
    decision released March 18, 1986

      John B. Willard, for the appellants (plaintiffs).

      Ralph G. Murphy, assistant attorney general, with whom were Robert L. Klein, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Peters, C. J.

The issue in this case is the taxability, under the state capital gains tax, of the sale of patent rights on an installment basis. The defendant, the tax commissioner of the state of Connecticut, assessed a tax deficiency for the 1975 tax year against the plaintiffs, John F. Harper and Margaret Harper. The trial court, having heard the parties, dismissed the plaintiffs’ appeal. The plaintiffs then took a timely appeal to this court. We find no error.

There is no dispute about the underlying facts. The plaintiff John F. Harper sold patent rights in 1956 and 1959. Because of these sales, the plaintiff incurred federal tax liability. He reported the income received from the sales as a capital gain; 26 U.S.C. § 1235 (a); and elected to pay the federal taxes on an installment basis. 26 U.S.C. § 453. At the time of the patent sales, Connecticut did not tax capital gains.

Connecticut first enacted a temporary capital gains tax in 1969. General Statutes § 12-505 et seq. Because § 12-506 expressly taxed only sales “occurring after July 1, 1969,” the tax commissioner promulgated § 12-518-1 (d) (iii) of the Regulations of Connecticut State Agencies. That regulation, in accordance with the statute, stated that “gain which is recognized subsequent to July 1, 1969, from the sale or exchange of property on or before July 1,1969, shall be excluded.” The commissioner relied on the regulation in refunding a capital gains tax payment tendered by the plaintiffs for the tax year 1970. The capital gains tax was reenacted in amended form in 1971, at which time it was broadened to include dividends and to extend its termination indefinitely.

In 1973, the legislature enacted Public Acts 1973, No. 73-356, to enlarge the scope of the capital gains tax itself. As amended, General Statutes § 12-505 defined taxable gain as “gain as determined for federal income tax purposes, after due allowance for losses and holding periods, from sales or exchanges of capital assets or assets treated as capital assets, or from transactions or events taxable to the taxpayer as such shares or exchanges . . . . ” The legislature also amended General Statutes § 12-506 to impose a tax on “the sale or exchange of capital assets which have been earned, received in fact or constructively, accrued or credited to the taxpayer during his taxable year,” expressly deleting the former temporal restriction on when the underlying sales or exchanges had occurred. The commissioner did not, however, amend regulation § 12-518-1 (d) (iii) until 1980.

For the tax year 1975, the chief tax examiner determined that the plaintiffs were subject to Connecticut capital gains tax for royalty payments they received in 1975 from the patent sales made during 1956 and 1959. The plaintiffs asked the commissioner to reconsider their deficiency assessment, claiming that the commissioner’s ruling in regulation § 12-518-1 (d) (iii) had never been overruled and precluded their liability. The commissioner relied on the 1973 amendment of §§ 12-505 and 12-506 in disallowing this request for withdrawal of the deficiency assessment. The plaintiffs then appealed to the Superior Court pursuant to General Statutes § 12-522. The trial court agreed with the commissioner. This appeal ensued.

The plaintiffs’ appeal contains three assignments of error. Two of these claims of error relate to the taxability of patents as capital assets and the third relates to the taxability of gains derived from pre-1969 transactions of sale. We find no error.

I

The plaintiffs’ first two claims of error challenge the conclusion of the commissioner and the trial court that patent sales fall within the statutory ambit of capital assets. The plaintiffs urge us to construe § 12-505 to exclude noncapital assets and to hold that patents are not capital assets. On such a construction, the plaintiffs’ receipt of installment payments from their patent sales would, according to the plaintiffs, be entirely exempt from Connecticut tax.

The plaintiffs’ argument is refuted by the language of § 12-505 and by long-standing precedents of this court. Section 12-505 defines taxable gains as “net gain as determined for federal income tax purposes . . . from (A) sales or exchanges of capital assets or assets treated as capital assets . . . or (B) from transactions or events taxable to the taxpayer as such sales or exchanges . . . under the provisions of the Internal Revenue Code in effect for the taxable year . . . .” This court has consistently held that when our tax statutes refer to the federal tax code, “federal tax concepts are incorporated into state law.” The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 7, 490 A.2d 991 (1985); Yaeger v. Dubno, 188 Conn. 206, 210, 211-12, 449 A.2d 144 (1982); Woodruff v. Tax Commissioner, 185 Conn. 186, 191, 440 A.2d 854 (1981); Peterson v. Sullivan, 163 Conn. 520, 525, 313 A.2d 49 (1972); Kellems v. Brown, 163 Conn. 478, 518-19, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973); First Federal Savings & Loan Assn. v. Connelly, 142 Conn. 483, 489-93, 115 A.2d 455 (1955), appeal dismissed, 350 U.S. 927, 76 S. Ct. 305, 100 L. Ed. 811 (1956); McKesson & Robbins, Inc. v. Walsh, 130 Conn. 460, 461-64, 35 A.2d 865 (1944). It is undisputed that the federal tax code, in 26 U.S.C. §§ 1235 (a) and 453 (a), treats the sale of patents as a sale of capital assets. See Fawick v. Commissioner of Internal Revenue, 436 F.2d 655, 661 (6th Cir. 1971). The trial court was therefore correct in its conclusion that the sale of patents is likewise a sale of capital assets for the purposes of § 12-505.

II

The plaintiffs’ third claim of error challenges the conclusion of both the commissioner and the trial court that §§ 12-505 and 12-506, as amended in 1973, impose a capital gains tax on payments received by the plaintiffs in 1975 on account of their pre-1969 patent sales. This claim of error is a limited one. The plaintiffs do not argue that the legislation governing capital gains taxation in 1975 expressly excludes pre-1969 transactions, nor do they maintain that the legislation is in constitutional jeopardy for failing to contain such an exclusion. They focus instead on the specific language of regulation § 12-518-1 (d) (iii) which excluded from taxable net gain any “gain which is recognized subsequent to July 1, 1969, from the sale or exchange of property on or before July 1,1969 . . . .’’They claim that, just as that regulation excused their tax liability in 1970, so it continued to afford them shelter in 1975. They argue that they were entitled to rely on its continued viability because it was neither rescinded by the commissioner nor disapproved by the legislature.

The crux of the plaintiffs’ position is that the regulation finds support in statutory language that survives the 1973 amendment of §§ 12-505 and 12-506. In their reconstruction of the statutes, they argue that the three capital gains tax statutes enacted in 1969, 1971 and 1973 expressly address only the time of the realization of a taxable gain and not the time of the underlying transaction giving rise to the subsequent gain. The commissioner’s regulation, on this theory, was neither required by the 1969 act nor invalidated by its subsequent amendments.

The plaintiffs' theory cannot be reconciled with the language of the statutes in 1969 and thereafter. In 1969, § 12-506 imposed a capital gains tax “on all gains from the sale or exchange of capital assets occurring after July 1, 1969, which gains have been earned, received, accrued or credited to the taxpayer during his taxable year. This tax shall not be applicable to gains on the sales or exchanges of capital assets occurring after June 30,1971.” Since the statute expressly made gains taxable in the year of their receipt, it was entirely reasonable for the commissioner to construe the phrase “occurring after July 1, 1969” to modify “sale or exchange.” The basic structure of the statute was not changed by the 1971 amendment, in which the legislature substituted the date of December 31,1970, for the date of July 1,1969, and made the duration of the tax indefinite. Gains from pre-1969 transactions continued to enjoy a statutory exemption, while gains from all post-1969 transactions were taxable, originally under the 1969 act and subsequently under the 1971 act. See Peterson v. Sullivan, supra, 524. In 1973, however, the legislature abolished the exemption for pre-1969 transactions when it amended § 12-506 to delete the phrase “occurring after December 31,1970.” As a result, after 1973, the capital gains tax reached all gains in the year of their receipt regardless of the time of the underlying transaction of sale or exchange. This statutory history demonstrates that the legislature, in enacting and amending the statutes governing capital gains taxes, fully understood the distinction between the timing of realized gains and the timing of underlying transactions, and made provision for both. The regulation promulgated by the commissioner was consistent with the legislation enacted in 1969 and 1971 but was in fundamental conflict with § 12-506 as it stood after 1973.

When two statutes are in irreconcilable conflict, the later enactment is presumed to have repealed the earlier one by implication. State v. Jenkins, 198 Conn. 671, 679, 504 A.2d 1053 (1986); Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 521-22, 468 A.2d 574 (1983). It follows logically that a later statute also repeals a prior irreconcilable administrative regulation. An administrative regulation can have no authority beyond the statute that it purports to implement. Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 198-99, 438 A.2d 1178 (1981); Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979); Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 604, 362 A.2d 847 (1975); Austin v. Housing Authority, 143 Conn. 338, 348-49, 122 A.2d 399 (1956). Although the commissioner would have been well advised to have rescinded his regulation promptly after the effective date of the 1973 amendment of § 12-506, his failure to do so does not allow the plaintiffs to rely on an exemption from taxation that the legislature had determined to eliminate. At best, the failure to rescind the regulation might have created an ambiguity in the statute, but an argument to that effect would not avail the plaintiffs because exemptions from otherwise taxable income are a matter of legislative grace and hence are strictly construed against the taxpayer. The B. F. Goodrich Co. v. Dubno, supra, 8-9; Yaeger v. Dubno, supra, 212. The trial court correctly concluded that the plaintiffs were liable for the deficiency that had been assessed against them with regard to their 1975 capital gains tax.

There is no error.

In this opinion the other judges concurred.

       The plaintiff John F. Harper died while this appeal was pending. John B. Willard, the executor of his estate, has been named as substitute plaintiff. For the sake of convenience, we will, however, continue to refer to the parties as they were named in the trial court.

       At the time in question, 26 U.S.C. § 1235 (a) provided in relevant part: “sale or exchange of patents
      “(a) general.—A transfer ... of property consisting of all substantial rights to a patent, or an undivided interest therein which includes a part of all such rights, by any holder shall be considered the sale or exchange of a capital asset . . . regardless of whether or not payments in consideration of such transfer are—
      “(1) payable periodically over a period generally coterminous with the transferee’s use of the patent, or
      “(2) contingent on the productivity, use, or disposition of the property transferred.”

       At the time in question, 26 U.S.C. § 453 provided in relevant part:
      “installment method
      “(a) DEALERS IN PERSONAL PROPERTY.—
      “(1) IN general.—Under regulations prescribed by the Secretary, a person who . . . disposes of personal property on the installment plan may return as income therefrom in any taxable year that proportion of the installment payments actually received in that year which the gross profit, realized or to be realized when payment is completed, bears to the total contract price.
      “(2) total contract price.—For purposes of paragraph (1), the total contract price of all sales of personal property on the installment plan includes the amount of carrying charges or interest which is determined with respect to such sales and is added on the books of account of the seller to the established cash selling price of such property. This paragraph shall not apply with respect to sales of personal property under a revolving credit type plan or with respect to sales or other dispositions of property the income from which is, under subsection (b), returned on the basis and in the manner prescribed in paragraph (1).”

       General Statutes (1969 Sup.) § 12-505 provided: “Sec. 12-505. DEFINITIONS. When used in this chapter, unless the context otherwise requires: ‘Taxpayer’ means each and every individual resident in this state who has earnings received, credited or accrued in any taxable year from gains from the sale or exchange of capital assets which exceed the sum of one hundred dollars; ‘taxable year’ means the same accounting period as the taxpayer’s taxable year for federal income tax purposes or that portion of such year as falls within the period July 1, 1969, through June 30, 1971; ‘tax commissioner’ or ‘commissioner’ means the state tax commissioner; ‘gains from the sale or exchange of capital assets’ means ‘net gain’ as that amount is computed under the internal revenue code of the United States, except that no reduction shall be allowed for loss carry-overs or loss carry-backs.”
      General Statutes (1969 Sup.) § 12-506 provided: “Sec. 12-506. imposition OF tax. (a) A tax is hereby imposed at the rate of six per cent on all gains from the sale or exchange of capital assets occurring after July 1, 1969, which gains have been earned, received, accrued or credited to the taxpayer during his taxable year. This tax shall not be applicable to gains on the sales or exchanges of capital assets occurring after June 30, 1971.
      “(b) The tax imposed by this chapter shall be upon the gains from the sale or exchange of capital assets earned, received, accrued or credited by or to the taxpayer during the taxable year less one hundred dollars, except those persons permitted to file joint returns under the internal revenue code of the United States shall have the same privilege under this chapter, but the tax shall be imposed on the amount in excess of two hundred dollars. The tax imposed by this chapter shall in no instance be less than five dollars for each taxable year in which the taxpayer is subject to the tax.”

       Regs., Conn. State Agencies § 12-518-1 (d) (iii) (effective December 2, 1969) provided: “(d) In computing ‘net gain’ . . . (iii) gain which is recognized subsequent to July 1, 1969, from the sale or exchange of property on or before July 1, 1969, shall be excluded.”

       As amended in 1971, General Statutes § 12-505 provided: “Sec. 12-505. definitions. When used in this chapter, unless the context otherwise requires: ‘Taxpayer’ means each and every individual resident in this state who has earnings received, credited or accrued in any taxable year from gains from the sale or exchange of capital assets, or from dividends subject to tax under this chapter; ‘taxable year’ means the same accounting period as the taxpayer’s taxable year for federal income tax purposes or that portion of such year as commences after December 31, 1970; ‘dividends’ means those dividends taxable for federal income tax purposes without regard to the dividend exclusion; ‘tax commissioner’ or ‘commissioner’ means the state tax commissioner; ‘gains from the sale or exchange of capital assets’ means net gains as defined for federal income tax purposes, after due allowance for losses and holding periods, but not nonrecognition of gains, all as provided under federal income tax law, except that no deduction shall be allowed for losses carried over from years prior to 1971, provided a taxpayer reporting capital gains on the instalment basis for federal income tax purposes need not include in his investment income instalments, except for interest, derived from transactions completed before January 1,1971. ‘Resident’ means an individual: (1) Who is domiciled in this state; provided, if an individual maintains no permanent place of abode in this state, and maintains a permanent place of abode elsewhere, and spends in the aggregate not more than thirty days of the taxable year in this state, he shall be deemed not a resident; or (2) who is not domiciled in this state but maintains a permanent place of abode in this state and is in this state for an aggregate of more than one hundred eighty-three days of the taxable year, unless he, not being domiciled in this state, is in the armed forces of the United States; ‘person’ means the taxpayer or any pledgee, assignee, receiver, referee, trustee, conservator, guardian or other fiduciary of the taxpayer acting for the taxpayer.”
      As amended in 1971, General Statutes § 12-506 provided: “imposition of tax. (a) A tax is hereby imposed at the rate of six per cent on all dividends and gains from the sale or exchange of capital assets occurring after December 31,1970, which have been earned, received in fact or constructively, accrued or credited to the taxpayer during his taxable year subject to the exemptions allowed in subsection (c) of this section.
      “(b) The tax imposed by this chapter shall in no instance be less than five dollars for any year the taxpayer is subject to the tax.”

       As amended in 1973, General Statutes § 12-505 provided: “Sec. 12-505. definitions. When used in this chapter, unless the context otherwise requires: ‘Taxpayer’ means each and every individual resident in this state or a husband and wife, both of whom are residents in this state and who file a single federal income tax return jointly, who has or have earnings received, credited or accrued in any taxable year from gains from the sale or exchange of capital assets; ‘taxable year’ means the same accounting period as the taxpayer’s taxable year for federal income tax purposes or that portion of such year as either commences when a taxpayer becomes a resident or ends when a taxpayer ceases to be a resident of this state; ‘tax commissioner’ or ‘commissioner’ means the state tax commissioner; ‘gains from the sale or exchange of capital assets’ means net gain as determined for federal income tax purposes, after due allowance for losses and holding periods, from sales or exchanges of capital assets or assets treated as capital assets, or from transactions or events taxable to the taxpayer as such sales or exchanges, and being the net amount includable in the taxpayer’s adjusted gross income, with respect to all such sales, exchanges, transactions, or events, under the provisions of the internal revenue code in effect for the taxable year; ‘resident’ means an individual: (1) Who is domiciled in this state; provided, if an individual maintains no permanent place of abode in this state, and maintains a permanent place of abode elsewhere, and spends in the aggregate not more than thirty days of the taxable year in this state, he shall be deemed not a resident; or (2) who is not domiciled in this state but maintains a permanent place of abode in this state and is in this state for an aggregate of more than one hundred eighty-three days of the taxable year, unless he, not being domiciled in this state, is in the armed forces of the United States; ‘person’ means the taxpayer or any pledgee, assignee, receiver, referee, trustee, conservator, guardian, custodian or other fiduciary of the taxpayer acting for the taxpayer.” As amended in 1973, General Statutes § 12-506 provided: “Sec. 12-506. imposition OF TAX. (a) A tax is hereby imposed at the rate of six per cent on all net gains from the sale or exchange of capital assets which have been earned, received in fact or constructively, accrued or credited to the taxpayer during his taxable year subject to the exemptions allowed in section 12-506c and section 12-506Í, when applicable.
      “(b) Any individual resident whose net gains from the sale or exchange of capital assets amount to one hundred dollars or less in any taxable year or any husband and wife, both of whom are residents, who file a single return jointly for federal income tax purposes and whose net gains from the sale or exchange of capital assets amount to two hundred dollars or less in any taxable year, shall not be subject to the tax imposed by subsection (a) of this section, and shall not be required to file any return under the provisions of section 12-508, for such year.”

       Regs., Conn. State Agencies § 12-518-1 was repealed on December 18, 1980.

       As the trial court noted, the record does not indicate that the regulation in question was ever approved or disapproved by the General Assembly’s legislative review committee. General Statutes § 4-170a. There is no other current legislative mechanism for review of administrative regulations.

       On the present record, the plaintiffs have demonstrated no reliance in fact on the regulation, since the tax plan with regard to an installment treatment of the 1956 and 1959 patent rights long antedated the enactment of any of the relevant statutes and the regulation. Even had there been demonstrable reliance in fact, it is highly doubtful that an administrator’s conduct would ever create an enforceable estoppel against tax collection. See Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Alan W. Herbert v. John R. Manson, Commissioner of Correction
    (12020)
    Peters, C. J., Healey, Dannehy, Callahan and Stoughton, Js.
    Argued February 13
    decision released March 18, 1986

      Michael 0. Sheehan, for the appellant (petitioner).

      C. Robert Satti, Sr., state’s attorney, with whom, on the brief, was Michael L. Regan, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

The sole issue on this appeal is whether the petitioner has established that his conviction of the crimes of sexual assault in the first degree and kidnapping in the second degree should be overturned because of ineffective assistance of counsel. The petitioner, Alan W. Herbert, filed a petition for a writ of habeas corpus alleging incompetence on the part of his retained counsel. The trial court, after an evidentiary hearing, dismissed the petition but granted the petitioner’s request for certification to permit his appeal to this court. We find no error.

The petitioner claims on appeal, as he did in the trial court, that in defending the criminal action, his counsel should have moved to suppress a dart seized by the Groton police, without a warrant, from the petitioner’s automobile. Alleging that the dart was a critical element in the state’s case, because it tended to link him to the scene of the assault, the petitioner maintains that the failure to file a suppression motion constituted ineffective assistance of counsel. Such ineffective assistance, according to the petitioner, deprived him of his constitutional rights under the sixth and fourteenth amendments to the United States constitution.

The principles that govern claims of ineffective assistance of counsel have recently been fully articulated, both by this court and by the United States Supreme Court. In order to establish his claim for a new trial, a petitioner must make a two-fold showing: (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 688, 694-95, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985); Williams v. Manson, 195 Conn. 561, 564, 489 A.2d 377 (1985).

The trial court in this case concluded that the petitioner had failed to prove that his trial counsel had been ineffective. The court expressly found, with respect to the admissibility of the dart, that the Groton police had discovered the dart “in plain view on the floor of the petitioner’s automobile while checking the windows on the driver’s side of the car, with the permission of petitioner’s wife.” The petitioner’s own expert had testified that an object seized in such circumstances would be admissible. This expert also acknowledged that he had not read the entire transcript in the criminal case, and that, in replying critically to three discrete hypothetical questions posed to him at the habeas hearing, he did not undertake to express any opinion whatsoever about the overall adequacy of counsel’s representation of the petitioner at the criminal trial. The respondent’s expert testified that, in his opinion, counsel’s performance at trial was within the range of competence displayed by lawyers of ordinary training and skill. On this state of the record, the trial court correctly determined that the petition for habeas corpus should be dismissed.

There is no error.

       In the underlying criminal case, the petitioner was sentenced, on April 2, 1979, after a joint trial on assault and kidnapping. On the first of these informations, he was sentenced to confinement of not less than four years nor more than eight years, while on the second, he was sentenced to not less than eight years nor more than sixteen years, suspended, and probation for five years. After the trial court’s decision on the petition for habeas corpus, the petitioner withdrew his appeal from his criminal conviction.
      The petitioner was in custody at the time he filed his petition for habeas corpus. Although he was discharged from parole on the assault charge on December 23, 1983, this appeal is not moot. In attacking the legality of his conviction, the petitioner has stated a claim that survives his release from incarceration and parole. Carafas v LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968).

       In the trial of his habeas petition, the petitioner advanced two additional grounds in support of his claim of ineffective assistance of counsel, one alleging failure of counsel properly to investigate and to prepare the petitioner’s case for trial, and the other claiming impropriety in counsel’s introduction of the petitioner’s handgun into evidence. Because these additional grounds do not appear in the petitioner’s amended preliminary statement of issues and were not briefed, we need not consider them.

       The transcript of the criminal case, in which the petitioner was jointly tried for sexual assault and kidnapping, was not made an exhibit in the habeas case.


author: F. Freedman, J.

text:
    State of Connecticut v. Peter Mandrell
    (11893)
    Healey, Santaniello, Callahan, F. Freedman and Gill, Js.
    Argued December 13, 1985
    decision released March 18, 1986

      Michael J. McClary, certified legal intern, with whom were Todd D. Femow, and, on the brief, Michael R. Sheldon and Richard Hoffman, certified legal intern, for the appellant (defendant).

      Steven M. Sellers, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Carl Schuman, assistant state’s attorney, for the appellee (state).
   F. Freedman, J.

After a trial to the court, Kline, J., the defendant, Peter Mandrell, also known as Paul MacDonald, was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), assault of a victim sixty years or older in the second degree in violation of General Statutes § 53a-60b, forgery in the second degree in violation of General Statutes § 53a-139 (a) (2), and criminal impersonation in violation of General Statutes § 53a-130 (a) (1). On appeal the defendant claims (1) that the trial court abused its discretion in admitting evidence of a prior crime committed by the defendant, and (2) that the conviction for assault was not supported by the evidence.

From the evidence presented at trial, the court could have reasonably found the following facts. On May 17, 1980, at about 3:15 p.m., sixty year old John Piscotty was working as a clerk at the Towne Liquor Store at 350 Asylum Avenue in Hartford. Two black males, one of them identified as the defendant, entered the store and approached the sales counter, behind which Piscotty was standing. The second man asked Piscotty for a bottle of scotch and then for a bottle of rum. As Piscotty reached to retrieve the bottle of rum, the second man came around the counter and pressed into Piscotty’s back something “very, very hard,” which Piscotty thought to be a gun. Piscotty was then ordered to go to the back room and to get down on the floor. The second man then bound Piscotty’s hands and feet and gagged him.

Meanwhile, the defendant remained in the front room of the store, where he attempted to open the cash register. After unsuccessful efforts, the defendant, using profanity, called to the second man to bring Piscotty to the front room. The second man unbound Piscotty and took him to the front room where the defendant, swinging his arms wildly, shouted at Piscotty to open the register. While at the register, Piscotty was face to face with the defendant for ten to fifteen seconds. The second man opened the register with the aid of Piscotty’s instruction. Piscotty was then taken back to the storage room and bound again by the second man. The second man took a wallet and about $300 from Piscotty’s pockets and yelled to the defendant that he had gotten the money. He then joined the defendant in the front room.

Piscotty heard some low talking in the front room followed by soft footsteps. He then received two blows to his head from an object which felt like a bottle. Piscotty did not see who hit him. A broken tenth size bottle was later found near the area where he was struck. At some point during the robbery, the defendant had stood near the counter where the same type bottle was shelved. Piscotty, however, never saw either man with the bottle.

Shortly after he was struck, Piscotty heard the sound of a buzzer, which indicated that the front door had been opened. He freed himself and reached for the telephone. At that point, a man entered the store, spoke to Piscotty and ran to a police cruiser which was parked around the corner.

A few minutes later Officer Sabastian Magnano, one of the officers in the cruiser, entered the store. Piscotty gave him a description of the two men, which Magnano broadcast over his portable radio. Magnano recalled having seen two men fitting this description while he was in the cruiser shortly before he received the robbery report.

Officers James Beaulieu and James W. Howard III, who were one block from the store, heard the report and descriptions over the radio of their cruiser. A few moments later they saw a black man fitting the description of the defendant near the Federal Cafe. The defendant ran into the cafe and then out the side door into the arms of Beaulieu, whereupon the defendant said, “okay, I did it. You got me.” The defendant was then handcuffed and placed in the back seat of the cruiser. The officers observed that the pockets of the defendant’s pants appeared “bulgy” and that currency was sticking out of them. The defendant was brought to the Towne Liquor Store, where Piscotty identified him.

After the identification, Magnano found $345 in the back of the cruiser in which the defendant had been seated. Howard and Beaulieu observed that, at this time, the defendant’s pockets appeared empty. The sum of $382.79, of which $35 was in change, had been taken from the store’s cash register.

At the close of the evidence, the defendant moved for a judgment of acquittal on all charges. This motion was denied by the court.

The defendant’s first claim on appeal is that the trial court abused its discretion in admitting evidence of a prior crime committed by the defendant. At trial, the state offered into evidence the testimony of Donald G. Guilmette, the victim of a 1975 robbery to which the defendant had pleaded guilty and received a sentence of not less than four and one-half nor more than nine years. Guilmette testified that on March 8, 1975, two black men entered the Picadilly Package Store at 280 Asylum Street in Hartford, at which he worked. One of the men grabbed a customer around the neck, put a gun to the customer’s head, and beat the customer. The other man went behind the counter and ordered Guilmette to open the register. The first man took the customer to the back room, told him to lie down, and then, using profanity, called for the second man to bring Guilmette to the back room, whereupon Guilmette was also told to lie down on the floor. Guilmette testified that the first man was very aggressive, and very violent. Guilmette was subsequently twice struck on the head by the first man with two half-gallon wine bottles. Guilmette identified the defendant as the first man. This testimony was admitted at trial over the defendant’s objection. The court admitted this testimony to prove intent to cause injury, use of a dangerous instrument, identity of the user of the dangerous instrument and common scheme.

Evidence of prior convictions committed by a defendant, although not admissible to prove guilt of the crime charged, may be admissible for other purposes, “ ‘such as intent, identity ... or a system of criminal activity’; State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); or an element of the crime charged. State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982).” State v. Shindell, 195 Conn. 128, 133, 486 A.2d 637 (1985). A two-pronged analysis has been adopted to determine the propriety of admitting evidence of other crimes. State v. Shindell, supra, 134. “First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions.” State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983). Second, the probative value of the evidence must outweigh its prejudicial effect. Id.

Evidence of other crimes is relevant to identity, a common scheme, or an element of the crime presently charged, if “the methods used are sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other. Much more is required than the fact that the offenses fall into the same class. ‘The device used must be so unusual and distinctive as to be like a signature.’ ” State v. Ibraimov, supra, 354.

In the present case, both robberies took place in liquor stores located close to each other on Asylum Street in Hartford and were committed by two black males. In each robbery the defendant was identified as using profanity and exhibiting aggressive, violent behavior, the store clerk was forced to lie down on the floor in the store’s back room and the clerk was twice struck on the head with a liquor bottle. Although a gun was openly displayed in the first robbery, and not in the second, the store clerk in the second robbery testified that a very hard object, which felt like a gun, was pressed into his back by one of the perpetrators.

The defendant points to the following dissimilarities: remoteness in time between the robberies, the time of day at which the robberies occurred and the size of the bottles used. While there was a five year period between the two robberies, the defendant was incarcerated during much of that time. The difference in the time of day at which the robberies occurred and the size of bottle used in the assault are merely two factors for the court to consider in conjunction with all other factors. See State v. Braman, 191 Conn. 670, 680, 469 A.2d 760 (1983).

We find that the methods used in the two crimes were sufficiently similar and unique to warrant a reasonable inference that the defendant committed both crimes.

The second prong of the analysis requires the trial court to determine in its exercise of its judicial discretion whether the prejudicial tendencies of the evidence outweigh its probative value. State v. Braman, supra, 681. “ ‘Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.’ ” State v. Falby, supra, 23. Before admitting the evidence the trial court conducted a full hearing, heard the claims, and performed a balancing test to determine if the prejudicial tendencies outweighed the probative value of the evidence. It cannot be said that the trial court’s conclusion that the probative value outweighed the prejudicial value was an abuse of discretion. There is no error in the admission of the prior crime evidence.

The defendant’s second claim of error is that there was insufficient evidence to support his conviction for assault of a victim sixty years or older in the second degree, in violation of General Statutes § 53a-60b. That statute, at the time in question, provided in relevant part, that a person is guilty of assault of a victim sixty or older in the second degree when he commits assault in the second degree under § 53a-60 and the victim is at least sixty years of age. General Statutes § 53a-60 provides in pertinent part that a person is guilty of assault in the second degree when, with intent to cause physical injury to another person, he causes such injury to such person by means of a dangerous instrument.

The defendant argues that the court could not have found beyond a reasonable doubt that he and not the second man wielded the bottle which caused Piscotty’s injury. Therefore, the defendant argues that the element of identity was not proved beyond a reasonable doubt.

“ ‘ “Each essential element of the crime charged must be established by proof beyond a reasonable doubt.” ’ ” State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983); State v. Haddad, 189 Conn. 383, 387-88, 456 A.2d 316 (1983). When a finding of guilty is challenged because of insufficient evidence, the issue is whether the court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the finding of guilty beyond a reasonable doubt. State v. Scielzo, supra; State v. Haddad, supra, 387. The evidence presented at trial must be construed in a fashion most favorable to sustaining the finding of guilty. Id.

At trial the only evidence produced concerning the identity of the assailant was (1) Piscotty’s testimony that the defendant had been standing within arm’s length of the bottle used in the assault, and (2) Guilmette’s testimony that the defendant struck him with a bottle during the 1975 robbery. Even if this evidence is construed in a light most favorable to sustaining the court’s finding, it does not exclude the reasonable possibility that it was the second man, and not the defendant, who struck Piscotty. Although the trier may draw reasonable inferences from the facts proved, it may not resort to speculation and conjecture. State v. Haddad, supra, 388. Where it cannot be said that the trier of fact could find guilt proved beyond a reasonable doubt, then a conviction cannot stand. State v. Scielzo, supra, 197.

The trial court erred in denying the defendant’s motion for judgment of acquittal on the charge of assault of a victim over sixty years of age because there was insufficient evidence to find that he committed that crime. The judgment of conviction for assault of a victim over sixty years is set aside and the case is remanded to the trial court with direction to render a judgment of acquittal on that charge.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1979) § 53a-134 provides: “BOBBERY IN THE FIRST DEGREE: CLASS B FELONY, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.
      “(b) Robbery in the first degree is a class B felony.”

       General Statutes (Rev. to 1979) § 53a-60b provides: “assault of victim SIXTY OR OLDER IN THE SECOND DEGREE: CLASS D FELONY, (a) A person is guilty of assault of a victim sixty or older in the second degree, when he commits assault in the second degree under section 53a-60 or larceny in the second degree under section 53a-123 (a) (3) and the victim of such assault or larceny has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.
      “(b) No person shall be found guilty of assault in the second degree or larceny in the second degree under section 53a-123 (a) (3) and assault of a victim sixty or older in the second degree upon the same incident of assault or larceny, as the case may be, but such person may be charged and prosecuted for all such offenses upon the same information.
      “(c) Assault of a victim sixty or older in the second degree is a class D felony.”
      General Statutes (Rev. to 1979) § 53a-60 provides: “assault in the second degree: class d felony, (a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or (4) for a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to such person, without his consent, a drug, substance or preparation capable of producing the same; or (5) he is committed to the commissioner of correction, or is a parolee from a correctional institution and with intent to cause physical injury to an employee of the department of correction or an employee or member of the board of parole, he causes physical injury to such employee or member.”

       See footnote 2, supra.


author: Dannehy, J.

text:
    State of Connecticut v. Larry McIntosh
    (11882)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued December 13, 1985
    decision released March 18, 1986

      John J. Kindi, special public defender, for the appellant (defendant).

      Martin A. Rader, Jr., special assistant state’s attorney, with whom were Bradford J. Ward, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Dannehy, J.

After a jury trial the defendant, Larry McIntosh, was found guilty of murder in violation of General Statutes § 53a-54a and committed to the custody of the commissioner of correction for a term of forty years. The indictment charged that he had caused the death of Kim Rascoe by blows to the head with a hammer. On appeal, the defendant contends that the trial court erred in refusing his request for instructions on certain lesser included offenses and in admitting hearsay testimony.

It is undisputed that the defendant killed Kim Rascoe. Rascoe, with whom the defendant had broken off relations, lived with their child in the first floor apartment at 37 Vine Street in Waterbury. Her parents and her brother lived on the second floor. The evidence introduced at trial showed that early in the evening of April 23, 1982, Rascoe was found unconscious on the floor of her apartment with severe wounds about the head and body. The apartment was in a state of disarray with the television set overturned. Among the items in the apartment was a hammer. Rascoe was taken to a hospital and died shortly thereafter of multiple fractures of the skull and contusions of the brain caused by lethal blows to the head with a blunt instrument.

Later that evening, at about 10 p.m., a police patrol unit, alerted to look for the defendant, encountered him on upper North Main Street, less than one mile from 37 Vine Street, where he was immediately placed under arrest. The police officer who had apprehended the defendant and accompanied him to the police station testified that he said, “Hold it Larry” and the defendant answered, “My name isn’t Larry.”

The defendant was advised of his rights and then questioned by the police at the station. He was outwardly calm, alert, and without any complaint or visible sign of injury. After some additional questioning, he spoke to one officer alone and gave the officer a statement which was subsequently admitted at trial. The statement revealed that the defendant had gone to Rascoe’s apartment in the afternoon of April 20, 1982, to see their daughter. In the living room of the apartment, the defendant, Rascoe and their daughter were sitting on a couch watching television. According to the defendant’s statement, Rascoe suddenly began to swing a hammer at him and a fight ensued. The defendant admitted hitting Rascoe in the head with the hammer and indicated that when he left, Rascoe was on the floor. The defendant did not testify or present any witnesses at trial.

I

The defendant claims that the trial court erred in denying his request to charge on the lesser included offense of manslaughter in the first degree, in violation of General Statutes § 53a-55 (a) (2). The defendant timely filed his request to charge prior to closing arguments, and took an exception when the charge was not given.

In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), this court determined that a lesser included offense instruction should be given when: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.”

We have previously considered and rejected the claim “that a defendant has a fundamental constitutional right to a jury instruction on a lesser included offense.” Id., 581. The right to such an instruction is purely a matter of our common law as set forth in Whistnant itself. The first prong of Whistnant requires that the defendant request “an appropriate instruction,” and a proposed instruction on a lesser included offense, like any other proposed jury instruction, is not appropriate unless made in compliance with Practice Book § 852. That section provides in full: “Prior to the beginning of the arguments, sufficient copies of written requests to charge the jury must be filed with the clerk, who shall forthwith hand a copy to the judicial authority and to all other parties. Requests shall be in separate and numbered paragraphs, each containing a singleproposition of law clearly and concisely stated with the citation of authority upon which it is based, and the facts supported by the evidence to which the proposition would apply. Requests to charge should not exceed fifteen in number, unless, for good cause shown, the judicial authority permits the filing of an additional number. If a request to charge is granted, the judicial authority shall apply the proposition of law to the facts of the case. A principle of law should be stated in but one request and in but one way. Requests attempting to state in different forms the same principle of law as applied to a single issue are improper. ” (Emphasis added.)

In the present case, the defendant framed his request to charge as follows: “The defendant respectfully requests the Court to instruct the jury as to the elements as to the lesser-included offenses of manslaughter in the first degree, Sec. 53a-55 (a) (1); manslaughter, first degree, Sec. 53a-55 (a) (2); manslaughter, first degree, Sec. 53a-55 (a) (3); criminal attempt to commit murder, Sec. 53a-54a and 53a-49; manslaughter in the second degree, Sec. 53a-56 (a) (1) and assault, first degree, 53a-59 (a) (1); assault in the first degree, 53a-59 (a) (2) and assault in the first degree, 53a-59 (a) (3). State v. Whistnant, CLJ Col. XLI No. 33, p. 5.”

This omnibus request was not an adequate compliance with our rules of practice. The request as framed can hardly be read to state “clearly and concisely” a “single proposition of law.” (Emphasis added.) Practice Book § 852. We count, instead, no fewer than eight distinct statutory theories of lesser or alternative culpability in the single paragraph. Moreover, an “appropriate instruction” under State v. Whistnant must contain “ ‘a complete statement of the essential facts as would have justified the court in charging in the form requested.’ Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925).” State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984). The defendant’s request contains no facts at all. Finally, although the request cites State v. Whistnant as authority for the propositions stated, we emphasize that Whistnant, by itself, does not provide the substantive principles of the criminal law which would justify any particular instruction. In setting the four preconditions to a lesser included offense instruction, Whistnant states no more than a rule of procedure which must be followed before the requested instruction need be given. While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved, we have rejected the broad claim that a trial court has an independent obligation “ 'to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence’ State v. Preyer, 198 Conn. 190, 198 n.9, 502 A.2d 858 (1985); and, as we have stated, a criminal defendant has no fimdamental constitutional right to be convicted of any lesser crime than the evidence warrants. State v. Whistnant, supra. Although it is unnecessary in this case to consider the second, third, or fourth prongs of the Whistnant test, we merely observe that the evidence adduced at trial was more than sufficient to support a jury finding that the defendant intended to commit murder.

The ever increasing refinement of our law justifies the cooperation of counsel in stating requests for jury instructions, and this cooperation is mandated, at least to the extent of substantial compliance with Practice Book § 852. The minor burden of cooperation imposed by this section is neither unreasonable nor novel. Our courts have long recognized that a request of the type made here “hinders rather than helps” the trial court in determining whether a particular instruction should be given. See Marinelli v. Cutarelli, 2 Conn. Cir. Ct. 15, 20, 193 A.2d 727 (1963). The request in this case contains nothing more than a skeletal list of statutory subsections. “As a result it is hard for us, and must have been hard for the trial court, to know the precise point to which the defendant wished to call attention.” State v. McNamara, 128 Conn. 273, 276, 22 A.2d 10 (1941); Walczak v. Daniel, 148 Conn. 592, 594-95, 172 A.2d 915 (1961); Lowell v. Daly, 148 Conn. 266, 270, 169 A.2d 888 (1961). The trial court did not err in refusing the defendant’s request to instruct the jury on the elements of General Statutes § 53a-55 (a) (2).

II

We next address the defendant’s claim that the trial court erred in admitting into evidence a hearsay statement made by the victim. The victim’s mother testified that on the night before the murder, the victim came to her upstairs apartment and asked to use the phone to call the police because the defendant was downstairs at her door. The defendant objected to this testimony on the ground that it was inadmissible hearsay. The trial court overruled the objection and admitted the testimony, under the state of mind exception to the hearsay rule, to show “that the deceased was afraid of the defendant and as a result of her fears, she called the police” when he appeared at her door on the night before her murder. The defendant claims that the admission of this testimony violated his sixth amendment right of confrontation.

While the defendant fashions his claim of error in terms of the sixth amendment, we believe the issue involves only the hearsay rule. While the “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.” California v. Green, 399 U.S. 149, 155-56, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); State v. Rawls, 198 Conn. 111, 115, 502 A.2d 374 (1985). “In this instance, the defendant has put a constitutional tag on a nonconstitutional claim.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. George, 194 Conn. 361, 372, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).

The trial court properly admitted the challenged testimony in this case. The victim’s mother testified from her own personal knowledge that the victim entered her apartment, picked up the phone, and dialed the police. The only possible hearsay component of this testimony concerned the victim’s stated reason for her call, i.e., that the defendant was at her door. The statement was not offered to prove that the defendant, in fact, was at the door, but rather, to show such a state of fear in the victim as to cause her to call the police if she believed that the defendant was at her door. Whether the victim’s statement that the defendant was at her door is characterized as “words accompanying equivocal conduct”; Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 11.3 (b); or as a statement indicative of her then existing state of mind; id., § 11.13; the fact that the victim called the police for the reason she expressed to her mother is strong circumstantial evidence of her belief that the defendant intended to harm her and that she needed physical protection. From this evidence of the victim’s state of mind, the jury could reasonably infer that, because of her fear of the defendant, it was improbable that she, without provocation, had attacked him with a hammer, as he had claimed in his statement to the police. While the chain of inferences between the initial proposition and desired conclusion may be somewhat attenuated, we confide matters of relevance to the sound discretion of the trial court. Under the circumstances of this case, we cannot say that the victim’s intense fear of the defendant, as evidenced by her conduct on the eve of the brutal slaying, was wholly irrelevant to the issues at trial. We therefore conclude that the trial court did not err in admitting the testimony of the victim’s mother concerning the call to police.

There is no error.

In this opinion the other judges concurred.

       The victim, a small woman about five feet one inch tall, was severely beaten. According to medical testimony, she had sustained a severe brain injury with multiple skull fractures, fractures of the ribs and a fracture of the spine. That testimony further indicated that the head injuries were consistent with being struck by the hammer found at the scene and that the injuries were caused by fifteen blows to the head inflicted with considerable force. On April 28,1982, five days after the incident, the victim’s heart and lungs were still functioning but a “flat” E.E.G. indicated that her brain had ceased to function. At 2:22 p.m. on April 28,1982, the victim was pronounced dead when, having obtained the consent of her parents, medical personnel terminated her life support systems. The medical examiner testified that the cause of death was “[bjlunt force trauma of head with depressed skull fractures and contusions of brain.”

       The defendant’s statement introduced into evidence was as follows:
      “On April 23rd, 1982 I went to Kim Rascoe’s house on Vine Street, in the afternoon, to see my daughter, Timira Rascoe. Kim Rascoe is her mother. I went to the side door of the house and knocked and Kim Rascoe let me in. I went into the living room and started to watch t.v. with my daughter. Kim had a stick in her hand when I came in.
      “The three of us were sitting on the couch when all of a sudden, for no reason, Kim started swinging a hammer at me, she must have had the hammer with her all the time, but I didn’t see it until she started to swing it. I caught the hammer and got it away from her and I hit her back with the hammer in her body and shoulder and head. I wanted to hurt her because she was trying to hurt me.
      “My daughter was watching the whole thing. We had struggled in the living room and the t.v. got knocked over. The glass in the hall door also got broken in the struggle.
      “We were tussling on the floor in the living room when I got the hammer, after I hit her with it, I threw it down.
      “I then left by going out through the window in the door that was broken because I heard her family, who live upstairs, coming down and I didn’t want to get involved with them. I mean, I had started to go out that window, but when I heard the family I doubled back and went out the back door. I then walked up by Lakewood.”

       The defendant in his brief to this court claimed error only in the trial court’s refusal to instruct on the elements of manslaughter in the first degree, as defined by General Statutes § 53a-55 (a) (2), and on the elements of manslaughter in the second degree, as defined by General Statutes § 53a-56 (a) (1). At oral argument, the defendant expressly conceded that the trial court did not err in refusing to give the requested instruction under General Statutes § 53a-56 (a) (1).


author: Shea, J.

text:
    State of Connecticut v. John J. McGann
    (12065)
    Healey, Shea, Dannehy, Callahan and Glass, Js.

      Argued December 3, 1985
    decision released March 18, 1986

      ToddD. Femow, with whom were Michael R. Sheldon and, on the brief, Diane L. Welch, certified legal intern, for the appellant (defendant).

      C. Robert Satti, Sr., state’s attorney, with whom were Michael L. Regan, assistant state’s attorney, and James T. Scully, legal intern, for the appellee (state).
   Shea, J.

The defendant was found guilty of capital felony murder in violation of General Statutes § 53a-54b (2) after a trial to a court composed of three judges pursuant to General Statutes § 53a-45 (b). The court found no mitigating factor set forth in subsection (f) of General Statutes § 53a-46a that would bar imposition of the death penalty, nor any aggravating factor set forth in subsection (g) thereof that must be present in order to impose the death penalty. Accordingly, the court sentenced the defendant to life imprisonment in accordance with subsection (e) thereof. On appeal the defendant has raised two claims of error: (1) that the court erred in permitting the alternate grand jurors to remain in the grand jury room during the deliberation phase of the grand jury proceeding; and (2) that there was insufficient evidence to support the finding that he was “hired to commit [the murder] for pecuniary gain,” as required to constitute the offense of capital felony murder as charged in the indictment. We find error only in the finding that the defendant was guilty of capital felony murder and modify the judgment to a conviction of the lesser included offense of intentional murder in violation of General Statutes § 53a-54a.

I

The defendant claims that his conviction should be set aside because two alternate grand jurors were permitted by the court, Spallone, J., to remain in the grand jury room during the deliberative phase of the proceeding in which he was indicted after the presentation of evidence had been completed. The court did advise, however, that the alternates were not “to confer or participate with the other members.” The defendant excepted to this instruction, referring specifically to the prohibition in Practice Book § 609 against the presence of anyone but the grand jurors during deliberations, but the court refused to correct it, construing General Statutes § 54-45 to allow the procedure. We agree with the defendant that the alternate grand jurors should have been excluded during deliberations. We conclude, however, that such a deficiency in the ascertainment of probable cause, absent a showing of prejudice resulting therefrom, does not warrant overturning the conviction of one who has been found guilty of a crime after a fair trial on the merits.

General Statutes § 54-45 requires alternate grand jurors to be sworn separately and directs that they “not counsel or confer with members of the regular panel as to any matters before the grand jury unless they become a part of the regular panel .... They shall attend the sessions of the grand jury and shall be seated with or near the members of the regular panel, with equal opportunity to see and hear all matters adduced in the proceedings. . . .’’The statute makes no express provision for dismissal of alternate grand jurors at the time of deliberations, as General Statutes § 54-82h (c) does for alternates serving on a petit jury. Practice Book § 609, however, provides that “[n]o persons other than the jurors may be present while the grand jury is deliberating or voting.” We reject the contention of the state that the word “jurors” in this rule was intended to include alternate grand jurors as well as regular members of the panel. The purpose of the rule, to ensure against outside influences upon those actually charged with the responsibility of voting upon an indictment, can best be implemented by excluding alternates as well as all other persons from being present during the deliberative phase of the grand jury proceeding.

The defendant relies upon the first opinion published in the case of State v. Washington, 42 Conn. L. J. No. 1, p. 10A (1980), where the court originally set aside a conviction because the presence of alternates on a petit jury, which the trial court had permitted to discuss the evidence during the course of the trial, might have resulted in the participation of the alternates in such discussions. We need not consider the soundness of the reasoning of this opinion, which was later superseded by the official opinion in State v. Washington, 182 Conn. 419, 438 A.2d 1144 (1980), because of the substantial distinction in the function of a grand jury as compared to a petit jury. An indictment by a grand jury follows upon a finding of probable cause to believe a defendant has committed the offense. A conviction after a trial to a petit jury or to a court requires a finding of guilt beyond a reasonable doubt. This difference in function has led to the frequent refusal of appellate courts to set aside convictions for deviations from proper procedure in grand jury proceedings that would require reversal if they had occurred in a trial on the merits. Thus, an indictment may not be challenged because of the inadequacy or incompetency of the evidence adduced at the grand jury hearing. Costello v. United States, 350 U.S. 359, 364, 76 S. Ct. 406, 100 L. Ed. 397 (1956). Even where an indictment is based on evidence obtained in violation of a constitutional right it may stand. United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966). An erroneous instruction relating to the presumption of innocence given to a grand jury does not invalidate the indictment, though the same instruction to a petit jury might well require a new trial. State v. Stepney, 181 Conn. 268, 283-84, 435 A.2d 701 (1980), cert. denied, 449 U.S. 1077, 101 S. Ct. 856, 66 L. Ed. 2d 799 (1981); see State v. Stankowski, 184 Conn. 121, 153-54, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). Even where the exclusion of a defendant from the grand jury proceeding because of his status as an attorney is characterized as an abuse of discretion, it is of no avail to a defendant who has been convicted unless it is shown that harm has resulted. State v. Avcollie, 188 Conn. 626, 633, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983).

The defendant cites numerous cases in which Rule 6 (d) of the federal rules, which is similar to Practice Book § 609 in prohibiting the presence of anyone but the grand jurors during deliberations and voting, has been applied to require a dismissal of the indictment, where the rule is breached, without the necessity of showing prejudice. United States v. Computer Sciences Corporation, 511 F. Sup. 1125, 1144 (E.D. Va. 1981); United States v. Furman, 507 F. Sup. 848, 854 (D. Md. 1981); United States v. Treadway, 445 F. Sup. 959, 962 (N.D. Tex. 1978); United States v. Bowdach, 324 F. Sup. 123, 124 (S.D. Fla. 1971). Most of the dismissals have occurred, however, in the trial court prior to a judgment of conviction following a trial on the merits. United States v. Lill, 511 F. Sup. 50, 61 (S.D. W. Va. 1980). The majority of state courts that have considered the question hold that the presence of an unauthorized person during the grand jury proceeding is not a sufficient basis for dismissing an indictment in the absence of prejudice to the accused. Annot., 23 A.L.R.4th 397, 404-408.

It is only a violation of the most sacrosanct of constitutional rights in the indicting process, such as racial discrimination in the composition of the grand jury, that can justify the illogic of remanding a case to redetermine whether there is probable cause to prosecute a defendant whose guilt after a fair trial has been found beyond a reasonable doubt. See Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 622-23, 88 L. Ed. 2d 598 (1986); Rose v. Mitchell, 443 U.S. 545, 551-59, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979). Even in this limited context the practice has been questioned. Vasquez v. Hillery, supra, 626-34 (Powell, J., dissenting); Rose v. Mitchell, supra, 574-89 (Stewart and Powell, Js., concurring); Cassell v. Texas, 339 U.S. 282, 302, 70 S. Ct. 629, 94 L. Ed. 839 (1950) (Jackson, J., dissenting). We can perceive no violation of any constitutional right in the presence of two superfluous grand jurors during the deliberations of the regular panel. We have no reason to presume that the two alternate grand jurors violated the court’s instruction not “to confer or participate with the regular members.” The rule of practice limiting attendance to regular grand jurors at that stage of the proceeding does not create a constitutional right. Accordingly, despite the failure of the court to follow the rule, the conviction of the defendant should not be set aside because of this impropriety in the absence of a demonstration of prejudice.

II

The indictment charged that Geraldine Burke hired the defendant “for his pecuniary gain, for the purpose of causing the death of her husband, Donald C. Burke,” and that Donald C. Burke was murdered in Waterford on or about August 9, 1981, “by a person or persons, including [the defendant], which person or persons with intent to cause the death of Donald C. Burke, caused the death of said Donald C. Burke.” From the evidence presented in support of this charge the trial court could reasonably have found the following facts:

Geraldine Burke wanted to have her second husband, Donald Burke, to whom she had been married for two years, killed because of his claimed maltreatment of her. They continued to live in the same house, however, with their respective children from prior marriages. Geraldine enlisted the aid of her daughter, Tammy Pate, to find someone willing to commit the murder. Tammy, who had recently returned from Florida at her mother’s request, began to date the defendant in July, 1981. He visited her frequently at the house in Waterford where she lived with her mother. In the course of these visits Geraldine frequently discussed her marital problems with the defendant and, as their acquaintance developed, she ultimately inquired whether he knew anyone she could pay to kill her husband. Some time later the defendant told her that he had found a person named George Rooney who “would do the job or see that it was done” for $4000.

On July 20,1981, Geraldine borrowed $3500 from a neighbor, which she gave to the defendant with the understanding that he would advance the balance of $500 needed to pay Rooney. The defendant had previously spoken with Rooney about the killing, but the price quoted was $3000 rather than $4000 as the defendant had informed Geraldine. The defendant paid Rooney $3000 in two installments, secretly retaining the additional $500 that he had received. Rooney accepted the money without any intention of fulfilling his agreement.

It had been planned that Donald Burke would be murdered while Geraldine was in the hospital receiving medical treatment. Because her husband, the intended victim, was still alive when she was released from the hospital, Geraldine became upset about the delay and anxious about repaying her debt to the neighbor. She discussed her concern with the defendant, who had assured her while she was in the hospital that she would not be “ripped off” and that her husband would be killed even if the defendant had to do it himself. The defendant contacted Rooney on several occasions to inquire “when the job would be done.” When it appeared that-Rooney was “stalling” him, the defendant, as Geraldine had requested, demanded the return of the money he had paid to Rooney.

On August 8,1981, Geraldine, her daughter, Tammy, and the defendant met at the home of his Mend, James Hope, with whom he was planning to travel to California. Using Hope’s telephone, the defendant made a call to Rooney, asking for the return of the money he had paid. Rooney said he would return the money, but that it would take “approximately a week to get it back.” The defendant and Geraldine became convinced that the money would not be returned. The defendant then said he himself would kill Donald Burke. James Hope had previously told Geraldine that he would prefer to commit the murder, because the defendant was likely to “mess it up.” Hope had said that he could kill a man with one blow and “nobody will know.”

The group left Hope’s house and drove to a bar for some drinks. There the defendant indicated that Donald Burke should be killed that night. Geraldine returned to her home, as the defendant directed. She arranged for all of her children and those of her husband to be away from the house that evening. She received a telephone call from the defendant instructing her to obtain her husband's gun and to bring it to a parking lot near the bar where he and Hope had remained.

After her husband was asleep, Geraldine obtained his gun and, with her sister-in-law, Carroll Pate, drove to the parking lot. There she met the defendant and Hope. The defendant took possession of the gun. By the time Geraldine returned to her home, the defendant and Hope were already there. At Hope’s request, she went into the bedroom to see whether her husband was awake. She found him still asleep. She then went to the living room, where Carroll Pate was waiting. Hope entered the bedroom and struck the victim several times. The defendant also entered the bedroom and fired several shots into the victim’s body. His death was caused by those gunshot wounds.

In claiming there was insufficient evidence to support his conviction of capital felony murder, the defendant challenges none of the facts we have recited. He contends, nevertheless, that these facts do not reasonably support the trial court’s conclusion that the killing of the victim constituted a “murder committed by a defendant who is hired to commit the same for pecuniary gain,” as required by General Statutes § 53a-54b (2) for the crime of capital felony murder. The defendant focuses upon the definition of the word “hired” as implying a relationship wherein one person engages the services of another who, for compensation, agrees to perform specified services. Webster’s Third New International Dictionary; The Oxford English Dictionary (1961); see Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 108, 362 A.2d 1359 (1975) (Cotter, J., concurring). He refers to the testimony of Geraldine Burke that she had never hired him and of Tammy Pate that her mother had not given the money “for John to kill.” He maintains that his relationship with Geraldine in the killing of Donald Burke does not satisfy this definition of “hired” because the evidence was insufficient to prove (1) that the defendant accepted the $3500 from Geraldine with the understanding that he would kill her husband in exchange therefor, and (2) that Geraldine gave him the money with that understanding.

The trial court found that the arrangement made at the time the defendant received the $3500 from Geraldine was that he would pay this sum to Rooney, who would accomplish the murder of the victim. The trial court also found that the defendant did not commit the murder “solely as consideration for the receipt or retention of anything of pecuniary value,” such as the $500 he had secretly kept for his own use from the sum given him by Geraldine, but was also “motivated by other considerations in the nature of a warped sense of love, affection and/or duty or obligation.” The court concluded, nevertheless, that after his attempt to hire Rooney in behalf of Geraldine Burke had failed, the defendant “became the hired person who actively participated, aided, and/or abetted in the events which proximately caused the death of Donald Burke.”

The adoption in 1973 of General Statutes § 53a-54b reintroduced the death penalty in this state for certain specified offenses, presumably in accordance with the guidelines suggested in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, reh. denied, 409 U.S. 902, 34 L. Ed. 2d 164, 93 S. Ct. 89 (1972), a deck sion which had effectually invalidated our previous death penalty statutes as violative of the federal constitution. The extensive legislative history attending the enactment of this “capital felony” statute contains few references specifically relating to subsection (2) of the statute, “murder committed by a defendant who is hired to commit the same for pecuniary gain or murder committed by one who is hired by the defendant to commit the same for pecuniary gain.” During the debate in the Senate this provision was described as pertaining to “the hired assassin, the hired gunman.” In the House debate “murder by a kidnapper of a kidnapped person” was equated in culpability with “murder for hire.”

We must reject the defendant’s challenge to the finding of the trial court that he was partially motivated by his desire for “pecuniary gain” to become involved in the events leading to the murder of Donald Burke and in ultimately assuming the role of killer. This finding is adequately supported by the evidence of the surreptitious retention of $500 of the $3500 he received from Geraldine and by his failure to return the sum he had kept when efforts were made to have Rooney give back the $3000 paid to him. Though Geraldine might never have discovered the defendant’s deception even if her husband had remained alive, the defendant may have feared she might contact Rooney directly in seeking the return of her money and thus discover his fraud. He may have thought she was less likely to approach Rooney once her husband had been murdered. The evidence lends reasonable support to these inferences as a basis for finding the defendant to have been partially motivated by a desire for pecuniary gain. The court was not obligated to conclude from the evidence, as the defendant contends, that he was motivated solely by other considerations, such as his concern for Geraldine and her family. Though the defendant’s financial motivation for becoming involved in the transaction is thus adequately established, the statutory requirement of a hiring for pecuniary gain must also be satisfied.

It is undisputed that Geraldine Burke did not originally contemplate that the defendant himself would kill her husband. She did, prior to commission of the crime, however, agree to his assumption of the role of murderer and accept his performance of the obligation that she believed Rooney owed her. Even under the original arrangement, performance by Rooney in person was not bargained for, because Geraldine had been told that Rooney would either “do the job or see that it was done.” If Rooney, as Geraldine assumed, had received the entire $3500 she delivered to the defendant, and had then paid the defendant or some other person $500 to kill the victim, we agree with the state that it would be nonsensical to argue that the killer had not been hired to commit the murder for pecuniary gain simply because Geraldine was unaware of his identity. There is, however, no evidence of this hypothetical scenario.

Although Geraldine was aware that the defendant was taking an active part in the murder, she was unaware of his fraudulent retention of some of the money she had given him to hire Rooney. She had no reason to believe that the defendant was partially motivated by pecuniary gain and she must have assumed that he was carrying out the murder because of his friendship with her and his embarrassment over the financial loss she had sustained as a result of his recommendation of Rooney. The circumstances known to her concerning the defendant’s motivation and relationship to the murder would not have led a reasonable person in her situation to believe that she had hired the defendant to commit the murder and had thus violated the provisions of § 53a-54b (2) that imposes liability for a capital felony on the hirer as well as the person hired.

The defendant similarly cannot reasonably be charged with the realization that he had been hired by Geraldine to commit the murder. Though the trial court could reasonably have found he was partially motivated by his desire to retain the money he had obtained by deceiving Geraldine, those circumstances do not establish a hiring relationship because the essential element of an agreement to compensate the defendant for his services is absent. His motive to avoid having to return the money he had fraudulently obtained cannot be regarded as legally sufficient to constitute an agreement for compensation. Geraldine had no knowledge of this aspect of his motivation and therefore could not have agreed to such compensation. From the viewpoint of the defendant also, his desire to conceal his fraud and thus achieve a pecuniary gain could not have induced in a reasonable person a realization that he was committing a murder for compensation.

A construction of the statute that treats the defendant as hired simply because he assumed the responsibility of fulfilling an obligation of the person he had recommended and because he would gain financially by doing so is not readily apparent or reasonably foreseeable. “When a[n] . . . unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.” Bouie v. Columbia, 378 U.S. 347, 354-55, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964); see Douglas v. Buder, 412 U.S. 430, 432, 93 S. Ct. 2199, 37 L. Ed. 2d 52 (1973). Criminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. 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); State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985); State v. Dupree, 196 Conn. 655, 660, 495 A.2d 691 (1985). These considerations are especially pertinent to a death penalty statute such as § 53a-54b. The trial court overlooked these principles in concluding that the defendant, upon the failure of his attempt to hire Rooney to commit the murder, “became the hired person” and thus had committed a capital felony.

In deciding whether a person has been hired to commit a murder for pecuniary gain we are concerned principally with adopting a construction of subsection (2) of § 53a-54b that effectuates the legislative intention, not with the technical niceties of contract law. We conclude that the circumstances of the defendant’s involvement in the murder of Donald Burke do not bring him within the category of “hired assassin” that the legislature sought to punish for the offense of capital felony. The trial court erred in finding him guilty of that crime.

Our conclusion that the judgment of the trial court was erroneous in convicting the defendant of a capital felony does not require a remand for a new trial. Murder in violation of General Statutes § 53a-54a is a lesser included offense of a capital felony in violation of § 53a-54b (2) as charged in the indictment. As thus charged, the defendant could not have committed “murder for hire” without also committing intentional murder in violation of § 53a-54a. The failure of the state to prove the additional element of a hiring to commit the murder leaves standing the finding of the court that the defendant did murder Donald Burke. The case must be remanded to modify the judgment and to resentence the defendant accordingly.

There is error in part, and the case is remanded to the trial court with direction to modify the judgment to reflect a conviction of murder in violation of § 53a-54a and for further proceedings in regard to sentencing.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-54b. capital felony defined. A person is guilty of a capital felony who is convicted of any of the following: (1) Murder of a member of the division of state police within the department of public safety or of any local police department, a chief inspector or inspector in the division of criminal justice, a sheriff or deputy sheriff, a constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18, an official of the department of correction authorized by the commissioner of correction to make arrests in a correctional institution or facility, or of any fireman, as defined in subsection (10) of section 53a-3, while such victim was acting within the scope of his duties; (2) murder committed by a defendant who is hired to commit the same for pecuniary gain or murder committed by one who is hired by the defendant to commit the same for pecuniary gain; (3) murder committed by one who has previously been convicted of intentional murder or murder committed in the course of commission of a felony; (4) murder committed by one who was, at the time of commission of the murder, under sentence of life imprisonment; (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety; (6) the illegal sale, for gain, of cocaine, heroin or methadone to a person who dies as a direct result of the use by him of such cocaine, heroin or methadone, provided such seller was not, at the time of such sale, a drug-dependent person; (7) murder committed in the course of the commission of sexual assault in the first degree; (8) murder of two or more persons at the same time or in the course of a single transaction.”
      See Public Acts 1973, No. 73-137, § 3.

       General Statutes § 53a-46a provides in part: “(f) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (d), that any mitigating factor exists. The mitigating factors to be considered concerning the defendant shall include, but are not limited to, the following: That at the time of the offense (1) he was under the age of eighteen or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution or (4) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (5) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.
      “(g) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict as provided in subsection (d) that (1) the defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.”

       Because constitutional grand juries are no longer required in this state, Practice Book § 609 was repealed on October 1, 1984. See article seventeenth of the amendments to the Connecticut constitution (1965), adopted in the November, 1982 general election; see also State v. Sanabria, 192 Conn. 671, 474 A.2d 760 (1984).

       Public Acts 1973, No. 73-137, § 3.

       During the debate in the House of Representatives on the adoption of Public Acts 1973, No. 73-137, Representative James F. Bingham, in defending subsection (5), “murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety,” remarked: “Murder by a kidnapper of a kidnapped person is the same as murder for hire.” 16 H.R. Proc., Pt. 6, 1973 Sess., p. 2964.
      During the Senate debate, Senator George C. Guidera referred to subsection (2) as providing for “the hired assassin, the hired gunman.” 16 S. Proc., Pt. 4, 1973 Sess., p. 1868.

       General Statutes § 53a-54b (2) defines a capital felony both as “murder committed by a defendant who is hired to commit the same for pecuniary gain” and a “murder committed by one who is hired by the defendant to commit the same for pecuniary gain.” Geraldine Burke was not convicted under this provision but was convicted on a plea of nolo contendere of murder and conspiracy to commit murder.

       “[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.”