author: Glass, J.

text:
    State of Connecticut v. Vincent Collins
    (13191)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued February 10
    decision released May 24, 1988

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, was Alice Osedach, legal intern, for the appellant (state).

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellee (defendant).
   Glass, J.

This is an appeal, after a grant of certification, from a judgment of the Appellate Court reversing a conviction and remanding the matter for a new trial, because the trial court erred in denying the defendant’s motions to withdraw his guilty pleas, despite his attorney's admittedly incorrect advice given prior to these pleas. We granted the state’s petition for certification limited to the issues of whether the Appellate Court erred in: (1) concluding that an unpreserved claim that the defendant was not advised of minimum and nonsuspendable minimum sentences as specified by Practice Book § 711 (2) and (3) is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); (2) remanding the case for an evidentiary hearing on the question of whether the defendant was actually aware of the minimum and nonsuspendable minimum sentences; and (3) setting aside the judgments of conviction without making a determination that the defendant’s claim that he was unaware of the minimum and nonsuspendable minimum sentences, as specified in Practice Book § 711 (2) and (3), affected his rights as they pertained to the plea bargain to which he had agreed. We also granted the defendant’s motion to submit alternate grounds upon which the judgment of the Appellate Court may be affirmed. These grounds are that: (1) the trial court erred in denying the defendant’s motion to withdraw his guilty pleas made prior to sentencing when the defendant had been misinformed regarding the computation of good time upon the plea bargained sentence; and (2) the trial court erred in refusing to allow the defendant to withdraw his guilty pleas when it did not sentence him in accordance with the terms of the plea agreement. We reverse the judgment of the Appellate Court.

Although the undisputed facts are fully set forth in State v. Collins, 10 Conn. App. 659, 525 A.2d 135 (1987), we summarize those facts pertinent to this appeal. On July 25,1984, at the Superior Court for the judicial district of Stamford-Norwalk, the defendant entered guilty pleas to four counts of robbery in the first degree. On July 27, 1984, at the Superior Court for the judicial district of Fairfield, the defendant entered guilty pleas to one count of robbery in the first degree and two counts of reckless endangerment. On August 3, 1984, at the Superior Court in the judicial district of Ansonia-Milford, the defendant entered a guilty plea to one count of robbery in the first degree. In each case the trial court canvassed the defendant and then accepted the plea. The defendant was informed in each case by the trial court that his plea and agreed sentence was a component of one overall agreement providing for a total effective maximum sentence of seventeen years of incarceration, with the defendant having the right at sentencing to argue for a lesser sentence. The defendant did not express any misunderstanding regarding the sentence for each charge or the total effective sentence of seventeen years of incarceration.

Immediately before sentencing in the StamfordNorwalk and Fairfield judicial districts, the defendant moved to withdraw his guilty pleas on the ground that his attorney had incorrectly advised him regarding the computation of good time for the seventeen year sentence. The defendant’s attorney had told him that with time off for good behavior, he would spend less than ten years in prison in serving the total effective sentence of seventeen years. Contrary to what his attorney had told him, the defendant argued that with good time credit, a seventeen year sentence would result in twelve years and four months of incarceration. The defendant’s motions were denied.

The defendant appealed to the Appellate Court from the judgments rendered in the Stamford-Norwalk and Fairfield judicial districts claiming that: (1) in both cases the trial court erred when, prior to accepting his guilty pleas, it failed to inform him of the minimum sentences for each of the crimes with which he was charged, as required by Practice Book § 711; (2) in both cases the trial court erred in failing to allow the defendant to withdraw his guilty pleas when he was misinformed by his attorney about the computation of good time on the plea bargained sentences he received; and (8) the trial court erred in refusing to allow the defendant to withdraw his guilty plea in the Ansonia-Milford judicial district when the court did not sentence him in accordance with the plea agreement. The Appellate Court found error in the refusal to grant the defendant’s motions to withdraw his guilty pleas, on the first of these claims, and because of that determination did not consider the implications to be drawn from a guilty plea that is based upon misinformation about good time credits. After certification by this court, this appeal from the Appellate Court judgment ensued.

The state’s primary claim is that the Appellate Court erred in concluding that an unpreserved claim that the defendant was not advised of the minimum and nonsuspendable minimum sentences as specified by Practice Book § 711 (2) and (3) is reviewable under State v. Evans, supra. In Evans, we held that we would review a claim of error not properly preserved in the trial court under “exceptional circumstances.” Id., 69. An exceptional circumstance “may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id., 70. We find that the Appellate Court properly invoked the Evans bypass doctrine, but not with respect to the failure to comply with Practice Book § 711 (2) and (3). See State v. Wright, 207 Conn. 276, 289, 542 A.2d 299 (1988) (“the trial court’s omission in failing to advise the defendant of the mandatory minimum sentences did not implicate constitutional rights”).

The essential constitutional requirements for the acceptance of a plea of guilty have been established by the United States Supreme Court. “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the states by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1 [84 S. Ct. 1489, 12 L. Ed. 2d 653 (1963)]. Second, is the right to a trial by jury. Duncan v. Louisiana, 391 U.S. 145 [88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)]. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U.S. 400 [85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)]. We cannot presume a waiver of these three important federal rights from a silent record.” Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The Boykin constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book § 711. The defendant argues that the trial court erred in accepting his guilty pleas without informing him of the minimum sentences mandated by each charge to which he pleaded guilty. We are unpersuaded because the defendant does not claim that the total effective seventeen year sentence imposed is any different from his plea bargained agreement, except in the case of the plea in the Ansonia-Milford judicial district. Many factors may have been considered by the defendant and his attorney in determining whether to plead guilty to the charges. No doubt of great significance was the strength of the admissible evidence, the defendant’s maximum exposure if convicted, and his possible release date if imprisoned. As a result of the charges brought against the defendant, he had exposure to consecutive sentences totaling one hundred twenty-two years plus a fine of $62,000. It is not unreasonable to infer that the dominant consideration in the plea negotiation by both the defendant and the state was the amount of time the defendant would have to serve if he pleaded guilty to all of the charges. See generally State v. James, 197 Conn. 358, 497 A.2d 402 (1985).

Even if the defendant cannot prevail in the argument that the Appellate Court found persuasive, that he had a constitutional right to be informed of the applicable minimum sentences, the defendant urges us to consider, in the alternative, his right to review of his pleas of guilty because of his misunderstanding about the sentence he would have to serve. Under Practice Book § 720, a defendant may withdraw his plea of guilty or nolo contendere as a matter of right until it is accepted by the court. We have held that “ ‘once entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discetion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion’; Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 [1974]; and that ‘[t]he burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.’ State v. Slater, 169 Conn. 38, 46, 362 A.2d 499 [1975]; see also State v. Giorgio, 169 Conn. 624, 629, 363 A.2d 1024 [1975]; State v. Brown, [157 Conn. 492, 495, 255 A.2d 612 (1969)]. Those statements, however, apply only to the withdrawal of pleas which are valid in the first instance.” State v. Battle, 170 Conn. 469, 475-76, 365 A.2d 1100 (1976). Before the imposition of a sentence the trial court is required to permit the withdrawal of a plea of guilty upon proof of any of the grounds set forth in Practice Book § 721. State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983).

In this case, prior to sentencing the defendant informed the court that he had pleaded guilty because of incorrect advice that had been given him by his attorney regarding the period of actual incarceration that would result from a seventeen year sentence of imprisonment. “In order for a plea of guilty to be constitutionally valid, it must be ‘equally voluntary and knowing . . . it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.’ (Emphasis added.) McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Boykin v. Alabama, [supra, 272]; State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); Consiglio v. Warden, 160 Conn. 151, 162, 276 A.2d 773 (1970). An understanding of the law in relation to the facts must include all relevant information concerning the sentence. The length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty.” State v. Collins, 176 Conn. 7, 9-10, 404 A.2d 871 (1978). The defendant’s representation that his attorney’s incorrect advice had influenced his guilty pleas raises the question whether the defendant’s guilty pleas conform to the requirements of Practice Book § 711, and the standards set forth in Boykin v. Alabama, supra, and State v. Collins, 176 Conn. 7, 404 A.2d 871 (1978). Because this issue was raised in timely fashion at the defendant’s sentencing hearing, it is properly before us without regard to the limitations of State v. Evans, supra.

This record raises legitimate concerns that the defendant did not fully understand the consequences of his guilty pleas with respect to his possible release date if imprisoned. Resolution of this issue requires that we remand this case to the Appellate Court with direction to remand the matter to the trial court for a factual hearing. If the trial court determines that the defendant would not have entered guilty pleas had he been informed that the plea bargained seventeen year sentence would have resulted in his actual incarceration of twelve years and four months instead of less than ten years as represented by his attorney, then the defendant will be permitted to withdraw his pleas. If, on the other hand, the trial court finds that the defendant would have entered guilty pleas despite this information, then the motions to withdraw his guilty pleas will be denied.

There is error, the judgment of the Appellate Court is reversed and the matter is remanded to that court with direction to remand the matter to the trial court for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       On November 1,1984, the defendant’s attorney argued a motion to withdraw Ms guilty pleas at Ms sentencing hearing in the Superior Court of the Stamford-Norwalk judicial district. On November 30,1984, the defendant appeared for sentencing in the Superior Court of the Fairfield judicial district and argued a pro se motion to -withdraw his guilty pleas to the charges pending for sentencing. Both motions were denied. In the StamfordNorwalk judicial district, the court imposed sentences of seventeen years concurrent on five robbery charges, including a robbery charge that had been transferred from the Ansonia-Milford judicial district, making a total effective sentence of seventeen years for five counts of robbery in the first degree. In the Fairfield judicial district, the court imposed the plea bargained sentence of ten years for robbery in the first degree, and one year each on two counts of reckless endangerment, the sentences to run concurrently with each other and with the sentences imposed in the StamfordNorwalk judicial district.

       “[Practice Book] Sec. 711.--advice to dependant
      ‘ ‘The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       The state concedes that the seventeen year concurrent sentence imposed in the case transferred from the Superior Court of the Ansonia-Milford judicial district is incorrect because the plea bargaining agreement provided for a five year concurrent sentence in that case instead of a seventeen year concurrent sentence.

       “[Practice Book] Sec. 720.—when allowed
      “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

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

       Ordinarily a claim based on an error attributed to defense counsel would be deferred for a habeas corpus proceeding. This claim, however, can properly be resolved in the trial court because the defendant’s counsel has admitted that he gave the defendant incorrect advice that influenced him to plead guilty.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    David G. Kelemen, Sr. v. Rimrock Corporation
    (13268)
    (13269)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.

      Argued January 5
    decision released May 24, 1988

      Lorraine W. Osborne, with whom, on the brief, were Daniel Shepro and Anne Marie W. Vetrosky, for the appellants (plaintiff and intervening plaintiff).

      Theodore R. Tyma, with whom were George L. Holmes, Jr., and, on the brief, James F. Kenney, for the appellee (defendant).
   Arthur H. Healey, J.

This appeal concerns the applicability of the ten year statute of repose for product liability claims; General Statutes § 52-577a (a); to an action filed by the plaintiff, David Kelemen, Sr., against the defendant, Rimrock Corporation. The trial court, Harrigan, J., found that the defendant had parted with possession and control of the product in question over ten years before the action had been initiated, thus barring the claim. We find no error.

The evidence before the trial court revealed the following facts. The plaintiff was employed by Teledyne Mt. Vernon Die Casting Corporation (Teledyne), the intervening plaintiff in this action, when he was injured by a filler cap that blew off a compression tank on May 23, 1978. On May 21, 1981, the plaintiff filed an action against the defendant, the manufacturer of the tank that had sold the compression tank to Teledyne. An amended complaint dated May 18, 1987, brought the action under Connecticut’s product liability statutes, General Statutes § 52-572m et seq. The defendant raised a special defense of the statute of repose, alleging that it had parted with possession or control of the compression tank on May 18,1971, when it placed the tank on a carrier for delivery to Teledyne. General Statutes § 52-577a (a). The parties agreed to waive their right to a trial by jury on the special defense, and a hearing was held before the court to determine this issue. The defendant produced one witness, Arthur R. Prince, a longtime employee of the defendant, on this issue raised by the special defense. He testified that he had shipped the compression tank in question on May 18,1971, from the defendant’s plant in Columbus, Ohio, by loading it on a truck owned by Cooper-Jarrett, Inc., a motor carrier. Prince also testified that the contract provided for F.O.B., Columbus, Ohio; that the defendant did not pay shipping costs and that all its responsibility for the tank had ended when it had been loaded on the carrier. The defendant offered no evidence concerning when the shipment had arrived at Teledyne’s place of business. The defendant’s invoice contained the following language: “Terms: Net 30 Days - All Goods F.O.B. Columbus, Ohio.” The invoice also contained the following language: “All orders accepted and all agreements are subject to delays occasioned by accident, strikes, fires and causes beyond our control. Our responsibility ceases when goods have been delivered to carrier. No goods accepted for return without our approval.” The trial court concluded that the defendant had parted with possession and control of the pressure tank on May 18, 1971, and that the ten year statute of repose therefore barred the plaintiff’s action.

The plaintiff lists five claims on this appeal, but these are more appropriately divided into three issues. The plaintiff contends that the trial court erred in: (1) applying the standards of possession and control under the Uniform Commercial Code (code) and Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986); (2) finding that a letter from the defendant did not constitute continuing control of the compression tank; and (3) holding that General Statutes § 52-577a (a) is constitutional.

I

The plaintiff claims that the trial court erred when it applied the risk of loss provision of the code to arrive at its conclusion that the defendant parted with possession and control of the compression tank on May 18, 1971. He contends that the code does not define “possession” and “control” and that the risk of loss provision is not concerned with possession, making any reliance on that specific provision inapposite. On the other hand, the defendant asserts that the trial court correctly applied the standards of possession and control set out in Daily v. New Britain Machine Co., supra. The trial court, although it acknowledged the Daily definitions extensively, appeared to rely heavily on General Statutes § 42a-2-509, the risk of loss provision of the code. We conclude that such reliance was erroneous because that section was drafted to serve specific purposes that are unrelated to preconditions of statutes of repose. See J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 5-1. Nevertheless, applying the Daily definitions of possession and control to the F.O.B. provision of the contract leads us to the same conclusion as the trial court.

This court discussed the definitions of the words “possession” and “control” in Daily, a case where the plaintiff argued that a courtesy check and service call within ten years of a product liability claim constituted possession or control, leaving the defendant liable under the statute. There, the trial court held in its memorandum of decision that, “[a]s the terms are not defined in the statute, they are to be accorded their ordinary meaning.” Daily v. New Britain Machine Co., supra, 566-67 n.6. The Daily court then quoted a number of dictionary definitions of possession and control, which had been compiled by the trial court. In Daily, we concluded that the actions of the manufacturer did not constitute possession or control as those words are commonly understood. Id., 569. We will undertake a similar analysis in this case.

Neither § 52-577a (a) nor the code define the words “possession” or “control.” “ ‘Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.’ Doe v. Manson, [183 Conn. 183, 186, 438 A.2d 859 (1981)]; Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979).” Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986). Webster’s Third New International Dictionary defines “possession” as “the act or condition of having in or taking into one’s control or having at one’s disposal . . . .” “Control” is defined by Webster’s as the “power or authority to guide or manage: directing or restraining domination.” Accord Daily v. New Britain Machine Co., supra, 566-67 n.6.

In deciding how to allocate control and possession of contract goods, contracting parties sometimes include trade terms such as F.O.B. The applicable code provision, General Statutes § 42a-2-319 (1), defines an F.O.B. shipment contract as follows: “Unless otherwise agreed the term F.O.B., which means ‘free on board,’ at a named place, even though used only in connection with the stated price, is a delivery term under which (a) when the term is F.O.B. the place of shipment, the seller must at that place ship the goods in the manner provided in section 42a-2-504 and bear the expense and risk of putting them into the possession of the carrier . . . .” Since the contract provided for F.O.B. Columbus, Ohio, and no variation was made by mutual agreement, the contract to ship the compression tank is governed by the rules concerning F.O.B. shipment contracts. The words of § 42a-2-319 (1) contemplate that the seller puts the goods “into the possession of the carrier.” (Emphasis added.) The carrier, usually an independent contractor and not an agent of either the buyer or the seller, has possession and control of the goods in the ordinary meaning of the words. The uncontroverted evidence in this case indicates that Cooper-Jarrett, Inc., had no relationship to either the plaintiff or the defendant except as an independent contractor. Under the ordinary meaning of the words “possession” and “control” and under § 42a-2-319 (1), the carrier had actual physical possession of the compression tank and exercised control over it during its journey to the destination of the buyer.

It is essential to follow the precise direction of § 52-577a (a). It unequivocally states that no action can be brought later than ten years “from the date that the party last parted with possession or control of the product.” (Emphasis added.) Prior to the revision of the statute of repose in 1979, the defendant had to prove only that the sale had occurred more than eight years before the action had been commenced by the injured party. See General Statutes (Rev. to 1979) § 52-577a. The legislature, in 1979, changed the date when the repose period commenced from the date of sale to the date that the party last parted with possession or control of the product. It did not use the date that the buyer gained possession or control of the product and we must presume that it meant to make such a distinction. “Where the legislative intent is clear there is no room for statutory construction.” Hartford Hospital v. Hartford, 160 Conn. 370, 376, 279 A.2d 561 (1971); see also Johnson v. Manson, supra, 316; Houston v. Warden, 169 Conn. 247, 252-53, 363 A.2d 121 (1975). “We have recognized that ‘courts do not torture words to import ambiguity where the ordinary meaning leaves no room for it . . . .’ Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980).” Mingachos v. CBS, Inc., 196 Conn. 91, 98, 491 A.2d 368 (1985). The plaintiff argues that Teledyne did not have possession or control of the tank until it actually had received it. Even if factually correct, this point is irrelevant since the operative statutory focus is when the seller “last parted with possession or control of the product.” The intent of the statute is to hold sellers of products liable for a certain time period after those products have left their possession or control and entered the marketplace. Presumably, a seller would have a chance to discover defects and take appropriate action to remedy them while the product remains in its possession. Considering the intent of the statute, whether the product is in the hands of the carrier or the buyer is irrelevant for purposes of computing the running of the statute of repose. The unambiguous language of the statute makes the legislature’s intent obvious. “Where the words of a statute are clear, the task of a reviewing court is merely to apply the directive of the legislature . . . Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982).

The plaintiff argues that the defendant did not part with control of the compression tank since, under certain conditions, a seller has the right to recall the goods under the code. See General Statutes § 42a-2-705 (seller may stop delivery when buyer is insolvent). He also points to General Statutes § 42a-2-310, which provides that payment is not due until the time and place at which the buyer is to receive the goods. The code also provides, however, that the buyer may instruct the carrier to deliver the goods to another person before they reach their destination. General Statutes § 42a-7-303. Thus, contrary to the claims of the plaintiff, the various code provisions do not unequivocally indicate that control is held by the seller until actual delivery to the buyer. The plaintiff attacks the use of the risk of loss provision to determine possession or control but then suggests using other general code provisions to establish such possession or control. The plaintiff cannot have it both ways. We reiterate that the appropriate analysis entails reading the ordinary definitions of possession and control, as set forth in Daily, into the F.O.B. provision of the contract as that term is defined in the code. Accordingly, we conclude that when the defendant placed the compression tank in the possession of the carrier pursuant to an F.O.B shipment contract on May 18,1971, it had parted with “possession or control” within the meaning of § 52-577a (a).

II

The plaintiff’s next claim is that even if the defendant had parted with possession and control when it placed the compression tank on the carrier, a letter dated July 2,1973, evidenced continuing control of the tank. The defendant’s letter notified Teledyne of a potential safety problem with the compression tank and recommended an inspection of the part and replacement if a failure or potential failure was detected. This form letter, sent to all customers of the defendant who had purchased such a tank, also related that beginning on August 1, 1973, the defendant’s pressure tanks would be equipped with a newly designed lid. The trial court held that the letter was “more akin to the minimal contacts described by the Daily court.” We agree.

“When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174, 127 A.2d 814 [1956].” Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957); see also Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 161, 464 A.2d 18 (1983); Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235, 429 A.2d 486 (1980). The plaintiff asserts that the letter demonstrates that the defendant exercised control because it maintained a file of those to whom the product had been sold, continued to be concerned about the product’s safety, notified buyers of harmful defects and advised buyers to undertake corrective repairs. A somewhat similar claim was asserted in Daily where the defendant had made one service call on request and one courtesy call within ten years of the initiation of the court action by the plaintiff. The Daily court held that there was no continuing control because there had been no service contract, the defendant had no influence over the day-to-day operation of the machine, the owner of the machine had been free to obtain service elsewhere, and the owner had requested the service call. Daily v. New Britain Machine Co., supra, 568. The plaintiff in this case attempts to distinguish Daily on the grounds that the defendant in this case did not request any service and that the safety check was not routine. We disagree. The defendant’s form letter was purely informational and left any decision concerning a future course of conduct solely to Teledyne. Teledyne was free to ignore any recommendations of the defendant and it had the option of obtaining service elsewhere. The defendant never heard from Teledyne again and never had anything further to do with the compression tank. The defendant’s actions in this case exhibit even less continuing control than those of the defendant in Daily, where we held that there had been no continuing course of conduct. Cf. Donovan v. A. B. Chance Co., Superior Court, judicial district of New London, Docket No. 75948 (April 8, 1986). We agree with the trial court’s conclusion that the defendant’s letter did not demonstrate the level of control that would toll the statute of repose.

Ill

The plaintiffs final claim is that § 52-577a (a) violates article first, §§10 and 20, of the Connecticut constitution and the equal protection clause of the fourteenth amendment to the United States constitution. We disagree.

The first constitutional challenge is based on the statute’s alleged denial of access to the courts guaranteed by article first, § 10, of our state constitution. This court considered and rejected an identical claim in Daily where we concluded: “ ‘It is consonant with the purpose of protecting defendants against stale claims that the legislature should enact a statute, such as § [52-584 or 52-577a], which may on occasion bar an action even before the cause of action accrues.’ Vilcinskas v. Sears, Roebuck & Co., supra, 175.” Daily v. New Britain Machine Co., supra, 584. The holding and reasoning of Daily control this issue and we refer the plaintiff to the comprehensive discussion in Daily for further elucidation of this issue. Id., 582-86; see Arsenault v. Pa-Ted Spring Co., 203 Conn. 156, 158, 523 A.2d 1283 (1987).

The other constitutional challenge is based on an alleged violation of equal protection guaranteed by article first, § 20, of the state constitution and the fourteenth amendment to the federal constitution. The gravamen of the plaintiffs claim is that there is no valid distinction between those workers covered by workers’ compensation, who are barred from initiating claims by § 52-577a (a) after ten years, and those workers not covered by workers’ compensation, who may make a claim if the injury occurred in the “useful safe life” of the product. General Statutes § 52-577a (c). This issue was also directly addressed by the Daily court, which concluded: “The classification made by the legislature in passing General Statutes § 52-577a is reasonable, not arbitrary, and rests upon a difference having a fair and substantial relation to the object of the legislation.” Daily v. New Britain Machine Co., supra, 579; see Arsenault v. Pa-Ted Spring Co., supra. As with the issue of access to the courts, Daily controls this claim and further insight into the applicable equal protection analysis is set out in the Daily opinion. Daily v. New Britain Machine Co., supra, 576-81.

The plaintiff has not advanced any compelling reason to overcome the well reasoned constitutional analysis in Daily. We agree with the trial court’s conclusion that Daily controls the outcome of the plaintiff’s constitutional challenges.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-577a (a) provides: “limitation of action based on product liability claim, (a) No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered except that, subject to subsections (c) and (d), no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product.”

       The defendant Rimrock Corporation impleaded for indemnity purposes the third party defendant L.W. Fleckenstein, Inc., a manufacturer of component parts for the compression tank at issue in this case. L.W. Fleckenstein, Inc., impleaded Buckeye Fabrication Company as a fourth party defendant under the same theory. Teledyne Mt. Vernon Die Casting Corporation (Teledyne), the plaintiffs employer, intervened in this action as a third party plaintiff to recover workers’ compensation payments that it had made to the plaintiff. Teledyne has also appealed the trial court’s ruling but did not file a brief in this appeal.

       General Statutes § 42a-2-509 (1) provides: “risk of loss in the absence of breach. (1) Where the contract requires or authorizes the seller to ship the goods by carrier (a) if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier even though the shipment is under reservation, as provided in section 42a-2-505; but (b) if it does require him to deliver them at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery.”

       In Daily v. New Britain Machine Co., 200 Conn. 562, 566-67 n.6, 512 A.2d 893 (1986), the court noted the following definitions of possession and control as stated by the trial court below: “ ‘ “Possession” is defined in Webster’s Third New International Dictionary as: “the act or condition of having in or taking into one’s control or having at one’s disposal . . . actual physical control or occupancy of property by one who holds for himself and not as servant of another without regard to his ownership and who has legal rights to assert interests in the property against all others having no better right than himself.”
      “ ‘Black’s Law Dictionary, Fifth Edition, gives this definition: “The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one’s use and enjoyment .... That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.”
      “ ‘ “Control” is defined in Webster’s as: “power or authority to guide or manage: directing or restraining domination.”
      “ ‘Black’s states the following: “Power or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee . . . power or right to order or direct . . . exercise restraining or directing influence over.”
      “ ‘To the same-effect is Ballentine’s Law dictionary, Third Edition: “To check, restrain, govern, have under command and authority .... A position of authority in direction and management.” . . .’ ”

       General Statutes (Rev. to 1979) § 52-577a (a) provides: “limitation of action based on strict tort liability, (a) No action to recover damages for injury to the person or to real or personal property caused by any product in a defective condition shall be brought against one who manufactures, sells, leases or bails any such product but within three years from the date when the injury is first sustained, discovered or in the exercise of reasonable care should have been discovered. However, no such action may be brought later than eight years from the date of sale, lease or bailment of such product.”

       The constitution of Connecticut, article first, § 10, provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       The constitution of Connecticut, article first, § 20, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”

       The constitution of the United States, amendment fourteen, § 1, provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       General Statutes § 52-577a (c) provides: “The ten-year limitation provided for in subsection (a) shall not apply to any product liability claim brought by a claimant who is not entitled to compensation under chapter 568, provided the claimant can prove that the harm occurred during the useful safe life of the product. In determining whether the product’s useful safe life has expired, the trier of fact may consider among other factors: (1) The effect on the product of wear and tear or deterioration from natural causes; (2) the effect of climatic and other local conditions in which the product was used; (3) the policy of the user and similar users as to repairs, renewals and replacements; (4) representations, instructions and warnings made by the product seller about the useful safe life of the product; and (5) any modification or alteration of the product by a user or third party.”


author: Callahan, J.,

text:
    State of Connecticut v. Roland Boucher
    (13261)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued March 8
    decision released May 31, 1988

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, was James G. Clark, assistant state’s attorney, for the appellant (state).

      James J. Sullivan, for the appellee (defendant).
   Callahan, J.,

The defendant was charged in an information with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). The charge resulted from the defendant’s arrest at 12:06 a.m. on January 16, 1986, while seated in a pickup truck that had its motor running in the parking lot of a Midas Muffler (Midas) shop in the town of Manchester. Prior to trial, the defendant moved to dismiss the information against him. For the purpose of his motion, the defendant stipulated that he was operating a motor vehicle while intoxicated in the Midas parking lot at 285 Main Street in Manchester and that the parking lot was a parking area “for ten or more cars,” a necessary element of § 14-227a (a). For the purpose of the defendant’s motion, the state conceded that the use of the parking lot was restricted to Midas customers.

In support of his motion to dismiss, the defendant argued that he could not be convicted of a violation of § 14-227a (a) because the parking area in which he was arrested was limited to use by Midas customers and was, therefore, not “open to public use” as required by the definition of “parking area” in General Statutes § 14-212 (5), which definition is applicable to § 14-227a (a). He claimed, consequently, that the Midas parking lot was not a parking area in which operating a motor vehicle while under the influence of intoxicating liquor was prohibited by § 14-227a (a). The trial court agreed with the defendant’s reasoning and dismissed the information against him with prejudice.

The state subsequently sought and obtained permission to appeal the decision of the trial court to the Appellate Court. A divided Appellate Court affirmed the trial court’s decision. State v. Boucher, 11 Conn. App. 644, 528 A.2d 1165 (1987) (Daly, J., dissenting). A majority of the Appellate Court concluded that, because the use of the Midas parking area was restricted to Midas customers and employees, it was not “open to public use” and was, therefore, not a parking area that came within the purview of § 14-227a.

On the state’s petition, we granted certification limited to the question: “Did the Appellate Court erroneously preclude the applicability of General Statutes §§ 14-227a and 14-212 (5) to the operator of a motor vehicle in the parking area of a business establishment to which the general public was invited?” We conclude that the majority of the Appellate Court took too restrictive a view of the phrase “open to public use,” and we reverse.

For an area to be “open to public use” it does not have to be open to “everybody all the time.” State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 1011, 102 S.W.2d 99 (1937); see also Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403, 410, 170 S.E.2d 709 (1969); Commissioner v. Baughman, 357 Pa. Super. 535, 538, 516 A.2d 390 (1986), appeal denied, 515 Pa. 572, 527 A.2d 534 (1987). The essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character. See Columbia Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59, 63 (3d Cir. 1986); Thayer v. California Development Co., 164 Cal. 117, 127, 128 P. 21 (1912); State ex rel. Anderson v. Witthaus, supra; People v. Sherman, 158 N.Y.S.2d 835, 837 (Mag. Ct. 1957); State v. Mulder, 290 Or. 899, 903-904, 629 P.2d 816 (1981); Frawley Ranches, Inc. v. Lasher, 270 N.W.2d 366, 369 (S.D. 1978); 1 R. Erwin, Defense of Drunk Driving Cases (3d Ed.) § 1.03 [5] [c].

It is common knowledge that Midas spends a great deal of money on advertising to induce the public to avail itself of its products and services and to patronize its various Midas shops. See Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 491, 356 A.2d 117 (1975); Mayock v. Martin, 157 Conn. 56, 63, 245 A.2d 574 (1968), cert. denied, 393 U.S. 1111, 89 S. Ct. 924, 21 L. Ed. 2d 808 (1969). Midas, in turn, makes its products and services available to any member of the public inclined to bring his or her automobile to Midas for repairs. There is no known criterion for the use of a Midas parking lot except being a Midas customer. Further, there is no known criterion for being a potential Midas customer except perhaps a noisy muffler and a knowledge that “nobody beats Midas, nobody.” In short, Midas invites the general public to make use of its services and Midas’ services are available to any member of the general public disposed to procure them.

Midas’ invitation to the public, its availability to the public and its creation of parking lots for the use of the public while doing business with Midas add up to a parking area at the Manchester Midas Muffler shop that is “open to public use” as that term is used in § 14-212 (5). A place is “public” to which the public is invited either expressly or by implication to come for the purpose of trading or transacting business. State v. Baysinger, 272 Ind. 236, 240-41, 397 N.E.2d 580 (1979), appeal dismissed sub nom. Dove v. State, 449 U.S. 806, 101 S. Ct. 52, 66 L. Ed. 2d 10 (1980); Peachey v. Boswell, 240 Ind. 604, 622, 167 N.E.2d 48 (1960). “[A]ny parking lot . . . which the general public has access to, is a public parking lot.” Houston v. State, 615 P.2d 305, 306 (Okla. Crim. App. 1980); see also Columbia Pictures Industries, Inc. v. Aveco, Inc., supra, 63; People v. Sherman, supra, 837. “The terms ‘open to the public’ and to which ‘the public has access’ [in drunk driving statutes] are usually held to be broad enough to cover parking lots of restaurants, shopping centers, and other areas where the public is invited to enter and conduct business. ” (Emphasis added.) 1 R. Erwin, supra, § 1.03 [5] [c].

The defendant in his brief and the Appellate Court in its opinion, although denying the applicability of § 14-227a (a) to the Midas parking area in question, acknowledged its applicability to private parking areas “at shopping centers where the user is encouraged to patronize a number of stores.” State v. Boucher, supra, 647. The legislature, however, made no distinction between parking areas based on the number of appurtenant stores. The only requisites that the legislature imposed for the application of § 14-227a (a) to parking areas were that the parking area be “for ten or more cars” and that it be “open for public use.” General Statutes § 14-212 (5). The Appellate Court by its construction of §§ 14-227a (a) and § 14-212 (5) has erroneously engrafted an exception to the legislative response to the threat posed to the public by intoxicated drivers merely because it perceived good reason for doing so. State v. Baker, 195 Conn. 598, 602, 489 A.2d 1041 (1985); Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975); State ex rel. Heimov v. Thomson, 131 Conn. 8, 12, 37 A.2d 689 (1944); State v. Frank, 2 Ohio App. 3d 392, 395, 442 N.E.2d 469 (1981).

It would not be in keeping with the legislative intent and the purpose of statutes prohibiting driving while under the influence of intoxicating liquor to create a distinction as to the applicability of § 14-227a (a) grounded on the number of stores served by a particular parking area. See State v. Sisti, 62 N. J. Super. 84, 87, 162 A.2d 297 (1960); Houston v. State, supra, 306. Pedestrians, occupants of other automobiles, and property are just as vulnerable to an intoxicated driver in a parking area for one store as they would be in a parking area for two, three, or more stores. See People v. Guynn, 33 Ill. App. 3d 736, 739, 338 N.E.2d 239 (1975); State v. Carroll, 225 Minn. 384, 386-87, 31 N.W.2d 44 (1948); State v. Magner, 151 N.J. Super. 451, 454, 376 A.2d 1333 (1977); People v. Taylor, 202 Misc. 265, 267, 111 N.Y.S.2d 703 (1952). The legislature enacted the statutes governing the operation of motor vehicles for the protection of all of the citizens of this state; Shore v. Stonington, 187 Conn. 147, 162, 444 A.2d 1379 (1982) (Peters, J., dissenting); Hickey v. Commissioner of Motor Vehicles, 170 Conn. 136, 139, 365 A.2d 403 (1976); see also Conner v. State, 696 P.2d 680, 683 (Alaska App. 1985); State v. Bromley, 117 Vt. 228, 230, 88 A.2d 833 (1952); not just those who patronize large shopping centers. The offense of driving under the influence of intoxicating liquor is particularly dangerous; Hickey v. Commissioner of Motor Vehicles, supra, 140; State v. Gillespie, 100 N.J. Super. 71, 75, 241 A.2d 239 (1968); State v. Drews, 23 Ohio Misc. 370, 372, 261 N.E.2d 357 (1970); State v. Day, 27 Wash. App. 854, 857, 620 P.2d 1023 (1980), rev’d on other grounds, 96 Wash. 2d 646, 638 P.2d 546 (1981); and the legislatures and the courts have emphasized the need to protect the public from drunk drivers whether on streets or highways or other public or private property. Cook v. State, 220 Ga. 463, 464-65, 139 S.E.2d 383 (1964); Huey v. State, 503 N.E.2d 623, 626 (Ind. App. 1987); State v. Carter, 424 N.E.2d 158, 160 (Ind. App. 1981); Schafer v. Commissioner of Public Safety, 348 N.W.2d 365, 368 (Minn. App. 1984); State v. Frank, supra, 393; 14 H.R. Proc., Pt. 5, 1971 Sess., pp. 2363-66; 1 D. Nichols, Drinking and Driving Litigation § 2.08.

We conclude, therefore, that the legislature, in enacting §§ 14-227a and 14-212 (5), intended to extend the prohibition against operating a motor vehicle while under the influence of intoxicating liquor to any parking area for ten or more cars to which that indefinite group labeled “the public” is invited or permitted to use. That conclusion requires that we reverse the Appellate Court and direct it to remand to the trial court with direction to reinstate the information charging the defendant with a violation of § 14-227a (a).

There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court with direction to reinstate the information charging the defendant with a violation of § 14-227a (a).

In this opinion the other justices concurred.

       General Statutes § 14-227a (a) provides in pertinent part: “operation WHILE UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY liquor, (a) Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-212 (5) provides: “definitions. Terms used in this chapter shall be construed as follows, unless another construction is clearly apparent from the language or context in which the term is used or unless the construction is inconsistent with the manifest intention of the general assembly ....
      “(5) ‘Parking area’ means lots, areas or other accomodations for the parking of motor vehicles off the street or highway and open to public use with or without charge.”

       In its opinion the Appellate Court stated: “At trial, the defendant presented evidence that the lot was used exclusively by Midas employees and customers and that large signs inform the public that noncustomers who park on the lot are subject to being towed at the owners’ expense.” State v. Boucher, 11 Conn. App. 644, 646, 528 A.2d 1165 (1987). A thorough review of the transcript of the hearing on the defendant’s motion to dismiss, which was the only relevant trial court proceeding in this matter, reveals that no evidence was taken, and that there was no mention of either the use of the parking lot by employees or of the existence of signs. The Appellate Court apparently obtained this information from the defendant’s Appellate Court brief. We do not think, however, that those “facts” apparently considered by the Appellate Court are essential to a determination of this matter.

       The defendant in his brief maintains that the Midas parking lot is not open to the public because it is only open to Midas customers, “a limited group of individuals possessing a unique status.” If the defendant’s reasoning were followed to its logical conclusion, General Statutes § 14-227a (a) would not apply to the parking areas of any privately owned business establishments. This is clearly not the legislative intent. 14 H.R. Proc., Pt. 5, 1971 Sess., pp. 2363-66.


author: Hull, J. Shea, J.,

text:
    State of Connecticut v. Melico Butler
    (13140)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued March 9
    decision relased May 31, 1988

      Louis S. Avitabile, special public defender, with whom, on the brief, was Denise Dishongh, special public defender, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, was Peter Maride, assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant, Mélico Butler, was charged with the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and of being a persistent dangerous felony offender in violation of General Statutes § 53a-40. After a jury trial, the defendant was found guilty of the robbery charge and pleaded guilty to the charge of being a persistent dangerous felony offender. He appeals the judgment of conviction.

On appeal, the defendant claims that the trial court erred (1) in admitting into evidence, for purposes of impeaching the credibility of a defense witness, a typewritten but unsigned out-of-court statement made by the witness, (2) in charging the jury on its use of the statement, (3) in lowering the state’s burden of proof on an element of the crime, by virtue of its charge to the jury on the statement, (4) in failing to instruct the jury on the degree of certitude necessary to arrive at a verdict of guilty, and (5) in instructing the jury on the state’s burden of proof beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. On February 18,1986, at approximately 8 p.m., two men committed a robbery at the Brewster Pharmacy in Waterbury. One of the men was wearing a brown, three quarter length coat and a green ski mask, and he was carrying a rifle. The other man was Anthony Nichols. After they had collected the money from the cash registers, the robbers fled the scene. A witness who saw the men running from the pharmacy flagged down a police cruiser and told the police officer the direction in which they had gone. The police officer followed the trail of the suspects to the backyard at 101 Division Street in Waterbury where he was joined by other police officers who had arrived in response to a report of a possible break-in. There they arrested Nichols and the defendant, and seized a coat, ski mask and rifle which they found nearby.

I

The defendant’s first three claims pertain to the admission into evidence of a statement allegedly made by Nichols to a police detective that directly contradicted Nichols’ trial testimony. Against the advice of defense counsel and at the defendant’s insistence, Nichols was called as a defense witness. He testified that, on the afternoon of February 18,1986, he had borrowed the defendant’s rifle, telling the defendant that he needed it to protect himself from some persons with whom he had had some problems. He stated that, on the evening in question, he and an accomplice committed the robbery; that the accomplice was not the defendant but another person known to Nichols only by his nickname, J.D.L.; and that, following the robbery, he and J.D.L. ran through a number of yards, eventually arriving at a yard where they found the defendant working on his car. Nichols further testified that J.D.L. threw off his coat and continued to run, but Nichols stayed behind, waiting for the defendant to give him a ride. He said the police then arrived and arrested him and the defendant. Nichols asserted that he had not given any statement to the police.

On cross-examination, Nichols admitted that he had spoken to Detective John Maia on the night of the robbery and had told him that he had committed the robbery, but had not named his accomplice. The state then showed him a two page typewritten and unsigned document, titled “Voluntary Statement,” and asked him if he had ever seen it before. Nichols replied that he had. The defendant objected to the use of the statement and the jury was excused. The state said it intended to offer the document as a prior inconsistent statement. Nichols was then asked if he had seen the statement before, to which he replied that he had only that day been shown the document by his lawyer. He said he recalled talking to Maia but asserted that Maia had not typed anything while they talked nor had he read the statement back to Nichols. He further testified that he had not refused to sign a statement. The state withdrew its offer of the statement and apprised the court that it intended to call Maia as a witness. The defendant’s objection was sustained. The jury returned and was instructed to disregard the reference to the document as a statement. The statement was marked as an exhibit for identification.

When cross-examination of Nichols resumed, the state again showed him the statement which he maintained he had never seen until that day. He adhered to his testimony that J.D.L., not the defendant, had been his accomplice in the Brewster Pharmacy robbery. He also asserted that Maia had wanted him to implicate the defendant in the robbery but that he had not done so. He repeated that although he had recounted the robbery to Maia, Maia had not, in his presence, typed any statement, nor had he asked Nichols to read a typed statement.

Subsequently, the state called Maia. He testified that, sometime after 3 a.m. of the day following the robbery, after he had advised Nichols of his constitutional rights, he had interviewed him in the cell block at the police department. He said that Nichols had admitted to having committed the robbery, at which point, Maia had brought him to the detective bureau where a typewriter was available. Maia said he had again advised Nichols of his constitutional rights and had asked Nichols for the details of the robbery. He stated that he had typed Nichols’ account of the robbery as it was given by Nichols. The state showed the statement to Maia who acknowledged that it was the statement given by Nichols and typed by Maia; he confirmed that he had made no changes to the statement since he took it down. Maia further testified that upon completion of the statement, he gave it to Nichols who had apparently read it. He said that Nichols had subsequently refused to sign it.

The state then offered the statement as a full exhibit and defense counsel objected on the ground that it was hearsay. The state responded that it offered the statement as a prior inconsistent statement. The court ruled that a prior inconsistent statement, although hearsay, is admissible for the sole purpose of impeaching the credibility of the witness, and advised counsel that it would instruct the jury that use of the statement was limited to impeachment purposes and it could not be used for the substantive purpose of determining the defendant’s guilt or innocence. The defendant excepted to the ruling. Maia, thereupon, was permitted to read the statement aloud. The statement described, allegedly in Nichols’ own words, how Nichols and the defendant had planned and executed the robbery, directly contradicting Nichols’ trial testimony. Immediately thereafter, the court formally charged the jury as promised. Maia testified that Nichols had named only the defendant as his accomplice and had never mentioned anyone called J.D.L. He stated further that, had Nichols mentioned J.D.L., it would have appeared in the statement.

In its charge to the jury at the close of the evidence, the court again cautioned the jury that the statement could be used only to test Nichols’ credibility and added that, because it was not signed, it could be used for this limited purpose only if it found that Nichols had, in fact, adopted the statement. The court cited the harm that could be done by admitting into evidence an unsigned, false statement typed by one person and attributed to another. The court then summarized the testimony of Nichols and Maia. Nichols, the court recollected, completely denied the statement was his own. With respect to Maia’s testimony, the court erroneously recalled that Maia had testified that Nichols had acknowledged that the statement was correct and accurate but then refused to sign it. The court concluded this portion of its charge by admonishing the jury that if it did not believe Maia, but believed that Nichols had never adopted the statement, it could not be used for any purpose at all.

A

The defendant concedes that a prior inconsistent statement of a witness, whether oral or written, is admissible to impeach the credibility of the witness. He principally objects to the form in which the statement was admitted, contending that, because it was neither signed nor adopted by Nichols, it was hearsay, admitted to prove the substantive fact that the statement was made. The state counters that the statement, having been offered for the sole purpose of impeachment, was properly admitted, and the scope of its use was adequately conveyed to the jury by the trial court. We agree with the state.

“It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court or in other proceedings which contradict those made upon direct examination.” State v. Saia, 172 Conn. 37, 45, 372 A.2d 144 (1976); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.) § 7.24.3 (a); see also G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 60-61, 411 A.2d 31 (1979). The impeaching statement may be oral; Branford Trust Co. v. Prudential Ins. Co., 102 Conn. 481, 485, 129 A. 379 (1925); or written. Schurgast v. Schumann, 156 Conn. 471, 482, 242 A.2d 695 (1968); see also State v. Rivera, 200 Conn. 44, 51 n.5, 509 A.2d 505 (1986). Where a party seeks to impeach a witness by using extrinsic evidence, certain standards must be met. The inconsistent statement must be relevant and of such a kind as would affect the witness’ credibility, and, generally, a foundation for introducing the statement should be laid at the time of cross-examination of the witness. State v. Saia, supra, 45-46; C. McCormick, Evidence (3d Ed.) § 37. “In this state, we have no inflexible rule regarding the necessity of calling the attention of a witness on cross-examination to his alleged prior inconsistent statements before either questioning him on the subject or introducing extrinsic evidence tending to impeach him. From early times, it has consistently been held that it rests within the judicial discretion of the trial court whether to admit the impeaching statements where no foundation has been laid. . . . The trial court is vested with a liberal discretion as to how the inquiry should be conducted in any given case.” State v. Saia, supra, 46.

Usually, the foundation for introducing a prior inconsistent statement is laid by asking the witness on cross-examination whether he made the statement and alerting him to the time and place at which it was made. Adams v. Herald Publishing Co., 82 Conn. 448, 452-53, 74 A. 755 (1909); Bradley v. Gorham, 77 Conn. 211, 213, 58 A. 698 (1904). Where the witness denies having made the statement or is unable to recall having done so, extrinsic evidence may be admitted to show it was made. State v. Williams, 204 Conn. 523, 534-35, 529 A.2d 653 (1987); G & R Tire Distributors, Inc. v. Allstate Ins. Co., supra, 61; State v. Saia, supra.

The foundation for admitting extrinsic evidence of Nichols’ prior inconsistent statement was adequately established. Nichols was shown the statement and was apprised of the time and place at which it was allegedly made. Although he admitted to having spoken to Maia, he denied having made the proffered statement, thus establishing the basis upon which to introduce extrinsic evidence to show it had been made.

The defendant argues, however, that the typewritten, unsigned statement was hearsay, relying principally on Judge Levin’s dissenting opinion in People v. Rodgers, 36 Mich. App. 211, 220-31, 193 N.W.2d 412 (1971), which was adopted by the Michigan Supreme Court when it reversed the decision of the Michigan Court of Appeals. People v. Rodgers, 388 Mich. 513, 201 N.W.2d 621 (1972). In Rodgers, a police detective, over the objection of the defendant, read a memorandum containing a statement allegedly taken from a defense witness who never signed it. The trial court had admitted the statement under the past recollection recorded exception to the hearsay rule. The Court of Appeals held that it was admissible as a prior inconsistent statement, that a proper foundation had been laid, that it was a question of fact for the finder to determine whether the writing was a verbatim transcription of the witness’ statement or the conclusion of the detective, and that the jury had been instructed that its use was limited to impeachment of the witness’ credibility. People v. Rodgers, 36 Mich. App. 211, 217-20, 193 N.W.2d 412 (1971).

As to the status of the statement as a prior inconsistent statement, the dissent asserted that, while the statement itself was admissible to impeach the witness’ credibility, the manner of proving that it had been made resulted in the admission of hearsay. Id., 221. The writing in question opened with the following sentence: “ ‘This is the statement of Samuel King taken by Detective Charles Taylor at 2249 South Electric, Detroit, Michigan. Time: 1:30 a.m. Saturday, June 14,1969.’ ” Id., 223. There followed, in quotation marks, the alleged statement of the witness. At the end of the writing appeared the sentence, “ ‘This is what he told me.’ ” Id. Judge Levin characterized the written memorandum as an out-of-court statement made by the writer that the other person had said what was contained in the writing and thus contained two statements: (1) the written statement of the writer that (2) the other person had made the oral statement attributed to him. Judge Levin further posited that an out-of-court written memorandum of an oral statement allegedly made by the witness may be used to prove the fact that the statement was made only if that fact is provable by means of such a memorandum. Id., 224-25. The Supreme Court of Michigan agreed that the memorandum was an extrajudicial statement by the detective offered to prove the truth of the thing said, that the witness had spoken the words imputed to him, and was therefore hearsay. People v. Rodgers, 388 Mich. 513, 519, 201 N.W.2d 621 (1972). The defendant urges us to so characterize the writing admitted in this case. We decline to do so.

We are unable to discern any appreciable difference between an evidentiary showing to prove a prior inconsistent oral statement, and that made through Maia’s testimony and the admission of the statement, with the exception of the fact that the typed statement itself was admitted. Proof that a prior inconsistent oral statement was made involves testimony that the statement was made and a recitation of its content. Indeed, the defendant concedes that Maia could have testified with respect to prior inconsistent oral statements for the purpose of impeaching Nichols. Whether Maia testified from memory as to the content of the statement or the content of the statement was introduced in an unsigned, typed writing, it remained a question of fact for the jury to determine whether it was Nichols’ statement. This was a question going to the credibility of the witnesses. We, therefore, conclude that the court did not err in admitting the statement.

B

The defendant’s second claim challenges the trial court’s instructions to the jury on its use of the prior inconsistent statement on the ground that the instructions were predicated on the erroneous assumption that the statement was admissible and not hearsay. We have resolved the issue of its admissibility in part IA of this opinion and, accordingly, need not address this argument.

The defendant also contends that the trial court’s instructions on how the jury was to determine whether it was Nichols’ statement were erroneous and misleading. The state points out that the defendant did not file a request to charge on this issue, nor did he take an exception to this part of the charge or request a supplemental instruction, and that, accordingly, the alleged error is not reviewable. The defendant, nonetheless, urges us to grant review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), which permits review of an unpreserved claim where the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial. He argues that since the evidence does not support the court’s characterization of Maia’s testimony as stating that Nichols acknowledged the statement, the jury might have construed the court’s comments as telling them how to resolve a disputed issue of fact.

We disagree with the defendant that review of this claim under Evans is warranted. The court was careful to explain to the jury that, while the court might comment on the evidence, the jury was in no way bound by the court’s recollection of the evidence, and that the jury’s recollection, if it conflicted with the court’s, was to control. Further, the court emphasized that the words it used in summarizing Maia’s testimony were the court’s, not Maia’s. We are satisfied that the error complained of, if any, was not significant and was presumptively cured by the court’s charge that the jury’s recollection of the testimony should control. State v. Reid, 193 Conn. 646, 664, 480 A.2d 463 (1984). “It must have been apparent to counsel during the charge that the statement was made by mistake. In such cases the attention of the court should be called at the time to the error so as to have it corrected, and when that is not done it will ordinarily be presumed that the jury, whose duty it is to remember the testimony, are not misled by an inadvertence of the court in summing up the testimony.” Sullivan v. Nesbit, 97 Conn. 474, 479, 117 A. 502 (1922) (trial court charged jury that certain claim had not been made when, in fact, it had).

C

The defendant’s remaining claims with respect to the charge on the statement are similarly unmeritorious. The defendant asserts that the jury should have been charged that they could believe Maia and still find that Nichols did not adopt the statement because Maia’s testimony was insufficient to prove that fact. The defendant made no such request to charge nor did he except to the charge as given or ask for a supplemental charge. We shall, therefore, not consider this claim.

He also contends that the charge diluted the state’s burden of disproving beyond a reasonable doubt the defense’s evidence of the absence of the defendant at the scene of the crime. Throughout his brief, the defendant characterizes Nichols’ testimony as “reverse” or “insider’s” alibi evidence and claims that he was entitled to have the jury charged that Maia’s testimony, together with other evidence in the case, must be believed by them beyond a reasonable doubt before Nichols’ testimony could be discounted or disregarded. The state counters that Nichols’ testimony, although exculpatory, was not alibi evidence because it did not place the defendant at some place other than the Brewster Pharmacy at the time of the robbery.

A defendant asserting an alibi and relying upon it as a defense is entitled to have the jury charged that the evidence offered by him on that subject is to be considered by them in connection with all the rest of the evidence in ascertaining whether he was present, and that if a reasonable doubt on that point exists, it is the jury’s duty to acquit him. State v. McKnight, 191 Conn. 564, 584, 469 A.2d 397 (1983). We need not decide, however, whether the defendant was entitled to this charge since he failed to request it at trial. “[A] trial court has no duty to instruct upon alibi in the absence of a request, and . . . the failure to instruct in such an instance will not ordinarily constitute reversible error, even though substantial alibi evidence may have been introduced by the defense.” State v. Parham, 174 Conn. 500, 510, 391 A.2d 148 (1978). The defendant asserts that the omission of an alibi instruction is reviewable under Evans. The court instructed the jury that its deliberations must cease if it found that the state did not prove beyond a reasonable doubt that the defendant was present at the scene of the robbery. The defendant does not claim error in this aspect of the charge. Under such circumstances, the defendant was not deprived of a fundamental constitutional right and a fair trial. Id., 510-11.

II

The defendant argues that the court impermissibly diluted the state’s burden of proving him guilty beyond a reasonable doubt. He asserts that, in its charge to the jury on reasonable doubt, the court failed to instruct the jury on the degree of certainty necessary to a finding of guilt and prejudiced the defendant by instructing the jury to disregard the standard of moral certainty mentioned by defense counsel in his closing argument. He also claims that the trial court erroneously related the standard of reasonableness to proof of guilt rather than to doubt and acquittal, contrary to the defendant’s request to charge. While the defendant, by filing a written request to charge the jury with regard to the second prong of his challenge to the court’s charge, preserved it; Practice Book §§ 852, 4185; he did not preserve his claim regarding the court’s treatment of the concept of moral certainty. We have previously held, however, that such a claim is reviewable under State v. Evans, supra, since the error alleged might infringe upon the defendant’s due process rights, thus depriving him of a fair trial. State v. Simms, 201 Conn. 395, 415, 518 A.2d 35 (1986).

A

The defendant argues that the trial court erred in failing to charge the jury that if a reasonable doubt of the defendant’s guilt exists, he must be acquitted. The defendant had requested that the jury be charged as follows: “What the law does require, however, is that after hearing all the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of the jury, as reasonable men and women, a reasonable doubt about the guilt of the accused, the accused must be given the benefit of that doubt and acquitted. If there is not reasonable doubt, then the accused must be found guilty. Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except [guilt], is consistent with guilt, and is inconsistent with any other reasonable conclusion. If you can, in reason, reconcile all of the facts proved with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty.”

The defendant cites as erroneous the following language from the jury charge: “The demonstration of guilt need be only beyond a reasonable doubt, one that a reasonable person reasonably entertains after a fair evaluation of all the evidence in the case.” He argues that the charge connects reasonableness to the demonstration of guilt, not to the presumption of innocence. We disagree.

A jury instruction is to be examined in its entirety and its correctness tested by whether the charge as a whole presents the case to the jury so that no injustice will be done. State v. Lytell, 206 Conn. 657, 664, 539 A.2d 133 (1988); State v. Simms, supra, 416. “ ‘A charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.’ Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 [1933]; State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 [1977].” State v. Reed, 174 Conn. 287, 304-305, 386 A.2d 243 (1978). Therefore, we must examine the challenged language in the context of the entire charge.

The court clearly related the presumption of innocence to reasonable doubt. It charged the jury that the defendant is presumed innocent until proven guilty beyond a reasonable doubt; that, if an item of evidence is capable of two reasonable constructions, one of which is consistent with innocence, it is to be construed in favor of innocence; that the presumption of innocence applies to every element of the crime charged; and that the state bears the burden of overcoming the presumption of innocence by establishing proof of each element of the crime beyond a reasonable doubt. The court then instructed the jury as to reasonable doubt as follows: “A reasonable doubt is not a doubt that is raised by one questioning simply for the sake of a doubt, nor is it a surmise, or a guess, or a speculation, or a doubt not founded upon the evidence. It is not hesitation arising from feelings of sympathy or pity for the accused or his family. A reasonable doubt is one that is based upon reason and which grows out of the evidence or the lack of evidence in the case. A reasonable doubt is one that is reasonable in light of all the evidence, and one that is honestly entertained after a thorough evaluation and careful examination of all the evidence in the case. In summary then, on this matter of reasonable doubt, an absolute demonstration of guilt is not required to convict. The demonstration of guilt need be only beyond a reasonable doubt, one that a reasonable person reasonably entertains after a fair evaluation of all the evidence in the case.”

The court also apprised the jury that, if it found that the state had not proven beyond a reasonable doubt that the defendant had been the person who robbed the Brewster Pharmacy, it must find-him not guilty. Furthermore, after charging the jury on the elements of robbery, the court instructed the jury that, if they did not find that all the elements of the crime had been proven beyond a reasonable doubt, then it must find the defendant not guilty. At several other points in the charge, the court referred to the state’s burden of proving the defendant guilty beyond a reasonable doubt.

Viewing the charge as a whole, we are satisfied that it adequately and fairly apprised the jury of the state’s burden of proof beyond a reasonable doubt. The portion pertaining to the character of reasonable doubt is substantially similar to charges we heretofore have found acceptable. See, e.g., State v. Simms, supra; State v. Moss, 189 Conn. 364, 368, 456 A.2d 274 (1983); State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). Further, even though the court did not use the language requested by the defendant, its instruction on the presumption of innocence “substantially embodies the content of the legal proposition claimed by the defendant and we find no merit in the claimed deficiency in the charge.” State v. Moss, supra, 367.

B

Finally, the defendant argues that the court’s charge on reasonable doubt failed to convey the degree of certitude necessary to convict him because it did not apprise the jury that it must have been convinced of his guilt to a “moral certainty,” or by “utmost certainty,” or to “near certainty.” We have previously considered whether a trial court’s charge on reasonable doubt requires the use of such language and have resolved this issue against the defendant. State v. Simms, supra, 419; State v. Ryerson, 201 Conn. 333, 341-42, 514 A.2d 337 (1986).

Nor do we find error in the court’s admonition to the jury to disregard defense counsel’s use of the term “moral certainty” in his discussion of reasonable doubt. Defense counsel had stated to the jury: “You promised me that you understood and believed in the presumption of innocence, that the accused in a criminal trial is innocent until proven guilty beyond a reasonable doubt. You promised me that you understood and believed that someone accused of a crime does not have to prove his own innocence. The burden of proof, ladies and gentlemen, is not with the accused, but with the state. This is the United States, this is not Moscow or Nicaragua. The state has a heavy burden. Proof beyond a reasonable doubt, not absolute certainty, certainly not, but moral certainty.”

Following its explanation of reasonable doubt, the court stated: “It is my recollection, ladies and gentlemen, that one of the attorneys in their argument to you in pointing out that proof beyond all possible doubt or absolute demonstration of guilt was not necessary. It was only necessary that it be proven by a moral certainty. That expression is not one that we use in the law. So, I would ask you to put that aside. Our standard is proof beyond a reasonable doubt, ladies and gentlemen, that I have instructed you on. I couldn’t instruct you on this other standard of proof to a moral certainty. So, please put that expression out of your mind and just determine whether or not the State has proven guilt beyond a reasonable doubt in accordance with these instructions which I have just given you.”

A trial court is required to give jury instructions that are accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict. State v. McDermott, 190 Conn. 20, 25, 458 A.2d 689 (1983); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980). A criminal defendant is entitled to a clear and unequivocal charge that his guilt must be proven beyond a reasonable doubt. State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983). We have recognized that “ ‘[attempts to explain the term “reasonable doubt” do not usually result in making it any clearer to the minds of the jury.’ Miles v. United States, 103 U.S. 304, 312, 26 L. Ed. 481 (1881).” Id. We have further noted that “ ‘[jjudicial attempts to clarify the meaning of the phrase “reasonable doubt” by explanation, elaboration or illustration . . . more often than not tend to confuse or mislead.’ United States v. Pinkney, 551 F.2d 1241, 1244 (D.C. Cir. 1976).” Id.; see also State v. Ryerson, supra, 342. Likewise, we find no abuse of discretion in the court instructing the jury to disregard argument by counsel tending to cloud the meaning of so important a concept as reasonable doubt. In so doing, the trial court discharged its duty to give jury instructions that are accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.

There is no error.

In this opinion Peters, C. J., Callahan and Covello, Js., concurred.

Shea, J.,

concurring. Although I agree with the remainder of the majority opinion, I disagree with the portion of part IA holding that there was no error in the admission of the typewritten document prepared by Detective John Maia that purported to be the unsigned statement of a witness for the defense, Anthony Nichols. Nevertheless, I concur in the result because, apart from the admission of the document, Maia testified to the same critical fact contained in the unsigned statement, viz. that Nichols had named the defendant as his companion in the robbery. Such an evidentiary ruling has no constitutional implications, and, therefore, the defendant must demonstrate that the admission of the unsigned statement for the purpose of impeaching Nichols was probably harmful to him. State v. Artieri, 206 Conn. 81, 88, 536 A.2d 567 (1988). Not only is there other testimony of Maia concerning the gist of his conversation with Nichols, but it is apparent that, even if the document had been excluded from evidence, its entire substance could have been introduced through the oral testimony of Maia by using it to refresh his recollection. See C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.) § 7.14.1. If Maia had no present memory of particular details capable of being refreshed by reference to the document, those portions of his typewritten account of what Nichols had told him would have been admissible as a past recollection recorded. Id., § 11.21.

Despite its harmlessness in this case, the admission of Maia’s written account of what Nichols told him concerning the robbery was a violation of the hearsay rule as it is still observed in this state. This typewritten version of the conversation, prepared by Maia but disavowed by Nichols, merely served to reinforce Maia’s testimony as to what Nichols had told him. It was what has often been characterized as a “self-serving declaration,” because it was prepared by the witness and served only to corroborate his oral testimony that Nichols had implicated the defendant in the robbery. Hutchinson v. Plante, 175 Conn. 1, 6, 392 A.2d 488 (1978); Tough v. Ives, 162 Conn. 274, 284, 294 A.2d 67 (1972); Pluhowsky v. New Haven, 151 Conn. 337, 342, 195 A.2d 645 (1964). “Letters written by a party are not evidence for him any more than his declarations.” Smith v. Phipps, 65 Conn. 302, 309, 32 A. 367 (1894). Such a use of written documents to enhance the persuasiveness of the trial testimony of a witness has traditionally been regarded as analogous to lifting oneself by his own bootstraps. Id.; G. Lilly, Evidence § 52, p. 182. One vice that the orthodox view excluding writings that serve merely to corroborate the testimony of the declarant-witness has avoided is that such documentary evidence, which is normally available to a jury as an exhibit during deliberations, may be given more emphasis than testimony of a witness at trial.

The federal courts have now abandoned some restrictions upon the admissibility of prior statements, written or oral, made by a declarant-witness available for cross-examination. Fed. R. Evid. 801. Perhaps this court should follow that lead, since it would eliminate many troublesome evidentiary problems in the admission of such documentary evidence. The majority opinion, however, does not purport to take such a giant step in concluding that the admission of Maia’s written version of Nichols’ statement was not erroneous.

Accordingly, I disagree wih the implicit view of the majority that the admission of that document comports with our previous decisions concerning the introduction of documentary evidence.

       “[General Statutes] Sec. 53a-134. robbery in the first degree .... (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 ... (2) is armed with a deadly weapon.”

       “[General Statutes] Sec. 53a-40. persistent offenders: definitions; defense; authorized sentences, (a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in the first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1,1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82,53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (iy or (2).”

       According to the state, the defendant and Nichols were seated on a stairway leading to a porch at 101 Division Street and the clothes and rifle were behind the defendant. The defendant states that Nichols picked up the clothes and gun and placed them on the porch, and that the defendant was in the yard repairing his car.

       The state also notes that the defendant failed to file a notice of intent to offer a defense of alibi as required by Practice Book § 763. In light of our disposition of this issue, we need not address the effect of this failure.