author: Santaniello, J.

text:
    State of Connecticut v. Richard McClendon
    (12233)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued October 10, 1985
    decision released March 4, 1986

      James E. Swaine, for the appellant (defendant).

      Robert J. O’Brien, assistant state’s attorney, with whom, on the brief, were Arnold Markle, and Roland D. Fasano, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

On February 1, 1982, the defendant was convicted of four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). He subsequently was sentenced to an effective prison term of not less than ten nor more than twenty years, execution suspended after ten years and five years probation. He now appeals claiming that the trial court erred (1) in denying his pretrial motion in limine and in admitting into evidence testimony of out-of-court identifications of the defendant’s accomplices, and (2) in admitting evidence of a prior crime allegedly committed by the defendant. We find no error.

The jury could reasonably have found the following facts. On the night of January 16, 1981, a dice game took place at 448 Legion Avenue in New Haven involving between seven and twelve participants. At one point during the evening, the defendant and three other men entered the room and announced a “stick-up.” All four intruders were unmasked and armed with pistols or other handguns. The victims were ordered to take off their clothes and to surrender all their money and valuables to the robbers. The entire robbery lasted fifteen to twenty minutes.

I

The defendant claims that the court erred in denying his pretrial motion to bar the introduction of evidence concerning out-of-court identifications of the defendant’s three accomplices in the robbery. He claims that the evidence offered was irrelevant, and also should have been excluded as hearsay. The robbery at the dice game was committed by four armed men, one of whom was alleged to have been the defendant. The state presented four victims as witnesses. All four victims made in-court identifications of the defendant, and three of them had made out-of-court identifications of the defendant. They also testified that they had made out-of-court photographic identifications of the three accomplices within several days of the robbery.

The defendant claims that the evidence of photographic identifications of other participants in the crime was irrelevant and, as such, was inadmissible. He claims that since the co-perpetrators were not defendants in this trial, evidence of their identification should not have been allowed. The state contends that evidence concerning the identity of the other robbers was relevant to whether the defendant was a participant in the crime and was corroborative of other evidence presented on behalf of the state.

In addressing the defendant’s claim, we note at the outset that the trial court possesses broad discretion to resolve questions of relevancy. State v. DeForge, 194 Conn. 392, 396, 480 A.2d 547 (1984). “ ‘ “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. . . ’ State v. Gold, 180 Conn. 619, 645-46, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). Here, the testimony of the four victims as to their out-of-court identification of the co-perpetrators was corroborative of their ability to identify the defendant and, as such, was admissible. Corroborating evidence is “[ejvidence supplementary to that already given and tending to strengthen or confirm it.” Black’s Law Dictionary (5th Ed. 1979); see State v. Pierce, 107 Idaho 96, 100, 685 P.2d 837 (1984); Edwards v. Edwards, 501 S.W.2d 283, 289 (Tenn. App. 1973). Evidence of this nature aided the trier in determining whether the defendant participated in the robbery. Thus, the testimony of these witnesses was relevant and the trial court did not err in so concluding.

The defendant also claims that the witnesses’ testimony about their prior identifications should have been excluded as hearsay. The out-of-court identifications were made within several days of the robbery and were trustworthy. The defendant makes no claim that these identifications were either unreliable or the product of an unnecessarily suggestive procedure. The witnesses testified to the facts and circumstances surrounding the out-of-court identifications and the officer who administered the photographic lineups testified as to the procedures employed. These witnesses were available to the defendant for cross-examination.

Although we have never addressed the specific claim in the context raised by the defendant, we have indicated that an exception to the hearsay rule exists “ ‘where the statements are made under conditions deemed to render them equal in reliability and trustworthiness’ to those made under ‘the sanction of an oath and the test of cross-examination.’ ” Cherniske v. Jajer, 171 Conn. 372, 376-77, 370 A.2d 981 (1976); General Motors Acceptance Corporation v. Capitol Garage, Inc., 154 Conn. 593, 597, 227 A.2d 548 (1967); see also State v. Packard, 184 Conn. 258, 283-85, 439 A.2d 983 (1981) (Bogdanski, J., concurring). And, in State v. Frost, 105 Conn. 326, 341-42, 135 A. 446 (1926), this court allowed the use of out-of-court identifications to support an in-court identification of a defendant based on the argument that even though the evidence itself may be hearsay, the out-of-court identification is nonetheless more reliable because it is made in closer proximity to the actual perception and is usually more trustworthy than the in-court identification.

Other jurisdictions have adopted a similar approach. For instance, the California Supreme Court has stated that: “[ujnlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached . . . evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind.” People v. Gould, 54 Cal. 2d 621, 626, 354 P.2d 865, 7 Cal. Rptr. 273 (1960). Under the federal rules of evidence such statements are excluded from the definition of hearsay. Fed. R. Evid., rule 801 (d) (1) (C); see United States v. Lewis, 565 F.2d 1248,1250-52 (2d Cir. 1977), cert. denied, 435 U.S. 973, 98 S. Ct. 1618, 56 L. Ed. 2d 66 (1978).

Reviewing the testimony of the witnesses concerning the out-of-court identifications in light of the above principles, we conclude that the statements were admissible. We hereby hold that in situations such as this where the identifications were reliable and the witnesses were available for cross-examination an exception to the hearsay rule is warranted. As a result, we find that the trial court did not abuse its discretion in admitting the testimony in question.

II

The defendant next claims that the court erred in denying his motion for mistrial and in admitting evidence of a prior crime allegedly committed by the defendant.

In presenting his alibi defense, the defendant on direct examination testified concerning his relationship with two of his alleged accomplices, Sherman Miles and Julius McFadden. As to Miles, he testified that they had “had a fight” and did not see each other from December, 1980, until after his arrest for the “dice game” robbery. He further testified that he had seen McFadden only once at his home during the same time span and that he did not consider him a friend. In addition, the defendant stated that he had never done anything with Miles and McFadden. On cross-examination,the defendant was asked whether he had given a statement to a police officer indicating that he had been with Miles and McFadden on January 7,1981, and had participated with them in a robbery of a package store. The question was offered to show that the defendant had made a prior inconsistent statement. The defendant objected to the question and moved for a mistrial. The trial court, however, admitted the statement and denied his motion. Immediately afterwards the court instructed the jury that the evidence “was admitted solely on the question of the credibility of the defendant when he testified and testified generally about his relationship with Sherman Miles and Julius McFadden .... The fact that it brought out his alleged involvement in another crime activity, that is not to be considered by you in deciding whether or not he is guilty of the crime or crimes that he is here charged with.”

It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny and close examination. State v. Carter, 189 Conn. 631, 640, 458 A.2d 379 (1983). A defendant cannot both take the stand and be immune from impeachment. The state is entitled to cross-examine a defendant and attack his credibility by use of prior inconsistent statements. An accused who testifies subjects himself to the same rules and tests which could by law be applied to other witnesses. State v. Palozie, 165 Conn. 288, 298, 334 A.2d 468 (1973).

The defendant’s credibility was a highly important issue at trial. The defendant in taking the stand opened the door to impeachment and subjected himself to the rigors of thorough cross-examination. It would not be fair to the state if he were allowed to take the stand, misstate the facts and be immune from attack. As Justice Cardozo has written: “justice, though due to the accused, is due to the accuser also.” Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S. Ct. 330, 78 L. Ed. 674 (1934). Fairness is a double-edged sword and both sides are entitled to its benefits throughout the trial.

When the court ruled that the disputed question was proper, the defendant denied having made the inconsistent statement. As a result of this course of events, the state introduced evidence in rebuttal that a police officer was told by the defendant that he had been in the company of both Miles and McFadden on January 7, 1981, and that they had, in concert, committed a robbery of a package store in New Haven. This testimony was offered as a prior inconsistent statement going to the issue of credibility.

As a general rule, evidence of other crimes is not admissible to prove the bad character or criminal tendencies of the defendant. State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). Such evidence, however, may be admissible when a defendant testifies and his credibility is in issue. State v. Brown, 169 Conn. 692, 700-701, 364 A.2d 186 (1975). Even though the evidence may be relevant and material to the issue of the defendant’s credibility, the court is still required to conduct a balancing test to determine whether the probative value of the evidence outweighed its prejudicial tendency. State v. Braman, 191 Conn. 670, 681, 469 A.2d 760 (1983). Ordinarily, “prejudicial material, such as unrelated misconduct of an accused, not having substantial probative value upon some issue in the case should be excluded.” State v. Anonymous (83-FG), 190 Conn. 715, 730, 463 A.2d 533 (1983). A mistrial would be warranted if the introduction of the other crimes evidence denied the defendant an opportunity for a fair trial. State v. Dolphin, 195 Conn. 444, 453, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985).

Here, the defendant testified inconsistently. It is clear from the record that he had confessed to committing an unrelated robbery with Miles and McFadden on January 7, 1981. Yet, he denied seeing Miles from December, 1980, until after his arrest for the “dice game” robbery. He also claimed he had only seen McFadden once at his home during the same time span. On cross-examination, he denied outright making the statement regarding the January 7,1981 incident. As a result of his testimony, the state was justified in bringing to light his prior inconsistent statement in order to impeach his credibility. The court minimized the effect of the other crimes evidence by its cautionary instruction to the jury. In the court’s considered opinion, the evidence offered as to credibility was more probative than prejudicial. The court, in its discretion, ruled the evidence admissible but limited its admissibility to the defendant’s credibility. “ ‘Because of the difficulties in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . .’ ” State v. Braman, supra, 676. When a trial court’s decision on an issue of this type is subjected to appellate review, “ ‘ “[e]very reasonable presumption should be given in favor of the trial court’s ruling.” . . .’ ” Id., 677. Under the circumstances of this case, we cannot say that the court abused its discretion.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides: “robbery 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 provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       The defendant’s appeal from his conviction comes to us by way of habeas corpus proceedings. The defendant originally failed to file his appeal within the time required by our rules. He petitioned for, and was granted, a writ of habeas corpus, and was allowed permission to file this appeal.

       The defendant also claims that the state’s introduction of the identification evidence in its case-in-chief was an attempt to accredit its witnesses prior to impeachment. See State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979). Because we hold that the identifications were relevant to the issue of identity and were admissible independent of impeachment, the defendant’s argument is unavailing.

       We find it interesting to note that, at oral argument, defense counsel conceded that the identification would have been relevant if the witnesses had failed to identify the accomplices.

       Federal Rule of Evidence 801 (d) (1) (C) provides: “A statement is not hearsay ... (C) if one of identification of a person made after perceiving him.”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Judson Brown
    (11751)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued November 13, 1985
    decision released March 4, 1986

      John R. Williams, with whom was Jon L. Schoenhorn, for the appellant (defendant).

      Kevin J. Gumpper, special assistant state’s attorney, with whom were CarlSchuman, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, and Mary Galvin, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant Judson Brown was charged in a substitute information with arson in the second degree in violation of General Statutes (Rev. to 1977) § 53a-112 (a), conspiracy in violation of General Statutes § 53a-48, and attempted larceny in the first degree in violation of General Statutes (Rev. to 1977) § 53a-122 (a) (2), and General Statutes §§ 53a-49 and 53a-8. A jury convicted the defendant on all three counts and he was sentenced by the trial court to an effective sentence of imprisonment aggregating not less than eleven nor more than twenty-five years.

The defendant has appealed claiming: (1) that the evidence was insufficient to prove his guilt beyond a reasonable doubt; (2) that the trial court erred in certain rulings on evidence; (3) that the trial court erred in several respects in its instructions to the jury; (4) that he was denied a fair trial because of the trial court’s behavior toward the only defense witness; and (5) that he was denied effective assistance of counsel. We find no error.

A summary of the facts that the jury could reasonably have found proven is necessary to review the defendant’s claims. On October 7,1978, Michael Have-lick executed a bill of sale to Ophelia Holmes for a laundromat located on Orange Avenue in West Haven. The purchase price was $3000, the price that Havelick had asked when he advertised the laundromat for sale. The laundromat was located in a building with four other stores all under one roof. The laundromat was not doing well financially, and had been shut down by Havelick sometime in August. Its equipment was old. At the time of the purchase, fire insurance in the amount of $30,000 on the equipment and leasehold fixtures and income interruption insurance paying a maximum of $1000 a month for four months were placed on the property. After an initial payment, the premium was financed. The bill of sale to the laundromat and the insurance were both in the name of Ophelia Holmes, who lived with the defendant. Although Holmes was present at times, it was the defendant who negotiated the purchase of the laundromat and he was originally named as the purchaser in the bill of sale. The name of Holmes was later substituted by the seller at the defendant’s request. Similarly, although Holmes was present and ultimately became the insured, it was the defendant who conducted all the business with the agent when insurance coverage was obtained. When the insurance was applied for, the defendant made false representations concerning remodeling to be done and the equipment on the premises. The defendant, who gave the name of “Jerry Holmes,” also' conferred with the owner concerning leasing the building and, at the owner’s suggestion, had a lease drawn. The proposed lease, however, was unacceptable to the owner because Ophelia Holmes was named as the lessee and the owner was under the impression that he had rented the premises to “Jerry Holmes.” Also, the owner of the building wanted the lease to specify the hours of operation because, since Ophelia Holmes had taken over, he had received numerous complaints that the laundromat was not open regularly and, when he called Ophelia Holmes to tell her that there were customers waiting, she had responded in a desultory fashion. A written lease was never executed.

At approximately 11:30 a.m. on November 6,1978, the Allingtown Fire Department responded to a report of an odor of smoke at 215 Orange Avenue in the Allingtown section of West Haven. It was determined by fire officials that the odor was emanating from an overheated ballast on a fluorescent light fixture at the laundromat. The defendant and Holmes were there when the firemen arrived. The fire marshal ordered the electric power to the laundromat turned off and told the defendant to have the light fixture repaired before turning the power back on.

The fire department personnel left the premises at 12:85 p.m. The defendant and Holmes left together at about the same time and Holmes was seen to lock the front door. After the departure of the firemen, a West Haven police officer observed the defendant in a driveway next to the laundromat carrying a half-filled brown paper grocery bag. During this period, the officer saw Holmes walk by the building twice, both times in opposite directions. The officer was distracted momentarily but then saw the defendant emerge from the driveway without the bag. The officer, at that point, went to lunch. A second witness also saw the defendant in the driveway carrying a brown paper bag and a beer can. The defendant was never seen entering the building. About eight to ten minutes after the officer had gone to lunch he was notified of a second fire at 215 Orange Avenue and ran to the scene.

Fire department personnel responded to the second alarm at 12:49 p.m., fourteen minutes after recall from the first alarm. When they arrived at the laundromat, they found it filled with a heavy black smoke. The front door, the only access to the premises, was locked, and they had to break a glass panel with an axe to gain entry. The firemen noticed that the lights were on although power to the premises had been turned off earlier. Though the fire was quickly extinguished, it caused damage to a three foot by three foot section of the floor and to a portion of a wall and the ceiling. The washers and dryers were slightly discolored, one of the dryers suffered heat damage, and the interior of the premises suffered smoke damage.

Investigation revealed that the source of the fire was a pile of debris behind the dryers consisting of newspapers, a telephone book, rags and wood. Included in the debris was a beverage can. None of this debris had been present when fire department personnel inspected the premises after the first alarm. Firemen testified that at that time the area had been inspected and it was clear. One fireman testified that he had inspected the area behind the dryers and it was “clean, very clean.” Chemical analysis revealed traces of diesel fuel or kerosene in the debris and wood chips taken from the floor in the vicinity of the fire. There was expert testimony that the fire had been fueled by a liquid accelerant and had burned rapidly causing an “alligator effect.” There was also expert testimony that the fire had been deliberately set.

Two days after the fire, the defendant, using the name “James Holmes,” gave a statement to the West Haven police wherein he told them that Ophelia Holmes was the owner of the laundromat and that she had paid $5000 to purchase it and set it up. He also said that fire department personnel on their first visit on November 6 had told him to clean out the debris behind the dryers. Further, he said that he did not know how much insurance was on the laundromat, that the business was doing well and that his wife was making “a little over $1000.00 per month.” He also told police that he was married to Ophelia Holmes and that he worked as a private pilot with a plane based at Sikorsky Airport. The police could find no record of the defendant’s marriage to Holmes and the defendant had only an expired student pilot’s license. The fire took place the day the rent for November was due and the day before the first installment payment on the premium finance agreement for the insurance policy was due.

On November 6, 1978, the day of the fire, a public adjuster, Meyer Biller, who knew the defendant and had previously done business with him, was retained to adjust the claim for fire damage. He inspected the premises that same day. The insurer was the Maryland Casualty Insurance Company (Maryland Casualty). Subsequently, on December 15,1978, Ophelia Holmes submitted a sworn proof of loss to the insurer. The proof of loss stated that the actual cash value of the personal property and loss of income was $41,500 and that the insured was making a claim under the policy for $30,497.12. An adjuster for the insurance company characterized the $41,500 figure as “highly excessive” and stated that “there was nowhere near that kind of contents on the premises.” An expert hired by the insurance company estimated the fire damage to be $3399.20 “giving the insured the benefit of the doubt in every way.” The insurance claim was pursued until sometime in April, 1978, after which the insurance company heard nothing further from either the insured or Meyer Biller. At some point, Maryland Casualty considered the claim abandoned.

I

The defendant first claims that the evidence adduced at trial was insufficient to establish his guilt beyond a reasonable doubt. Each essential element of the crimes charged must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Though the jury may “draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture.” State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). “ ‘Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot “constitutionally stand,” as it is violative of due process under the fourteenth amendment. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Kish, 186 Conn. 757, 768, 443 A.2d 1274 (1982).’ (Footnote omitted.) State v. Haddad, 189 Conn. 383, 387-88, 456 A.2d 316 (1983).” State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

In this case, while all the evidence was circumstantial, it was sufficient, if believed by the jury, to support a verdict of guilty on all three counts. As this court has stated on numerous occasions, “there is no legal distinction between direct and circumstantial evidence so far as probative [value] is concerned.” State v. Haddad, supra, 390. “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981).

Further, “ ‘[conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons. State v. Faillace, 134 Conn. 181, 185, 56 A.2d 167 (1947). It is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. The combination . . . may be proved by circumstantial evidence, that is, by proof of the separate acts of the individuals accused and by proof of circumstances from which the illegal confederation may be inferred. State v. Gerich, 138 Conn. 292, 297, 83 A.2d 488 [1951].’ State v. Holmes, 160 Conn. 140, 150, 274 A.2d 153 (1970).” State v. Baker, 195 Conn. 598, 604, 489 A.2d 1041 (1985).

“In reviewing the sufficiency of the evidence this court must construe the evidence in the light most favorable to sustaining the verdict; State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983); and then determine whether the jury ‘could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficent to justify the verdict of guilty beyond a reasonable doubt.’ State v. Jackson, 176 Conn. 257, 262,407 A.2d 948 (1978); see State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).” State v. Cimino, 194 Conn. 210, 478 A.2d 1005 (1984). “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)].’ (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).” State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985). We conclude that the evidence summarized, though circumstantial, was sufficient to support the verdict of the jury.

II

The defendant next claims that the court erred in excluding evidence tending to show an innocent explanation for the failure of Holmes to bring suit on the insurance claim within one year as required by the policy. At one point in the direct examination of Robert Clark, an insurance adjuster for Maryland Casualty, Clark was asked if the claim resulting from the fire had been pursued and whether his company had ever paid anything on the claim. He testified that his company had not paid anything on the claim, that it had not been pursued after April, 1979, and that it was considered abandoned.

On the direct examination of Meyer Biller, the public adjuster retained by Holmes, the defendant attempted to elicit testimony that Holmes had accused him of negligence in having failed to advise her properly and in having failed to bring suit on the claim within a year as required by the insurance policy. The defendant claims that such testimony would have provided an innocent explanation for the failure of Holmes to pursue the claim and would have rebutted any inference of consciousness of guilt on her part for her failure to do so. The state objected to the evidence and the trial court sustained the state’s objection on grounds of relevancy. The defendant took an exception. The defendant claims that the court’s ruling deprived him of due process of law by preventing him from exercising his constitutional right to present a defense. We agree with the defendant that the evidence had some relevance and that the trial court erred in excluding it. We do not agree, however, that a single evidentiary ruling on a minor collateral issue such as consciousness of guilt of a co-conspirator deprived the defendant of his due process right to present a defense. The error, therefore, was not of constitutional dimension. “The issue was the relevancy of the testimony. That is not an issue of constitutional dimension, but rather of the trial court’s discretion.” State v. Moye, 177 Conn. 487, 511, 418 A.2d 870 (1979). “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).

Though the evidence excluded may have been relevant to rebut a consciousness of guilt on the part of Holmes, its exclusion was nevertheless harmless. The trial court only charged the jury that the defendant’s own actions or declarations could be used to show a consciousness of guilt on his part. The jury was never instructed that it could consider Holmes’ actions or lack thereof to show a consciousness of guilt on her part. More importantly, a review of the record reveals ample evidence from which the jury could have found Holmes’ involvement absent the evidence that she did not pursue the claim under the policy.

The ruling of the trial court in order to constitute reversible error must have been both incorrect and harmful. State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147 (1969). “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” State v. Vitale, supra, 403. The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result? State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067 (1985). It did neither.

The defendant also claims error in another evidentiary ruling. This claim may be summarily treated. The defendant argues that the trial court erred in sustaining the state’s objection to a question on cross-examination of a fire marshal who had taken a statement from Holmes shortly after the fire. Defense counsel asked, “And then, in the course of the statement you took from Ophelia Holmes, did she admit having insurance coverage on the premises?” The state objected to the question on the ground that it would elicit hearsay. Defense counsel responded, “Well, when I made that objection, Your Honor, it was overruled.” The court sustained the objection and defense counsel took an exception. Defense counsel’s offer was devoid of any specific reason for admissibility. See Practice Book § 288. On this record, it would be improper to find error. See State v. Rothenberg, 195 Conn. 253, 262, 487 A.2d 545 (1985). If, however, it is assumed that there was error, it was harmless. There was an abundance of evidence that there was insurance on the premises, that it was in the name of Ophelia Holmes, and that she was present and participated when the application for the policy was made. The exclusion of the evidence could not reasonably have affected the verdict. See State v. Tropiano, supra, 427.

Ill

The defendant next claims that the trial court erred when it instructed the jury on consciousness of guilt and on conspiracy to commit arson. We are not bound to consider error as to the giving of or the failure to give an instruction unless the matter is covered by a written request to charge or an exception has been taken. Practice Book § 854. Since the defendant did neither, we are not bound to consider the challenges to the trial court’s instructions unless “the record adequately supports a claim that [the defendant] has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The defendant claims that the court’s charge on consciousness of guilt permitted the jury to convict him on insufficient evidence, thus depriving him of due process under both the state and federal constitutions and was plain error. In its charge the court stated that any false statements by the defendant subsequent to the crime “often tend to show a guilty connection” rather than “consciousness.” It is obvious from the text of the charge that the court either inadvertently misspoke or that there was an error in the transcription. In the same segment of the charge the court also said that, from subsequent false statements of the accused, the jury could fairly infer “guilty knowledge.” The defendant appears to argue that the court's charge allowed the jury to consider false exculpatory statements made after the crime as evidence of the defendant’s guilt rather than as evidence of consciousness of guilt. Generally, postcrime false exculpatory statements may only be considered by the jury as circumstantial evidence of consciousness of guilt. United States v. Zang, 703 F.2d 1186, 1191 (10th Cir. 1982); United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir. 1979). Consciousness of guilt may be considered along with other evidence in determining guilt. United States v. Morales, 577 F.2d 769, 772-73 (2d Cir. 1978).

“On appeal, the adequacy of jury instructions is not determined by the giving of any one instruction, but by examining the instruction as a whole.” United States v. Boekelman, supra. The charge is not to be critically dissected in a search for inexact or inadvertent statements. State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977). Whether the words “guilty connection” and “guilty knowledge” allowed the jury to consider false exculpatory statements as evidence of guilt itself, rather than as evidence of consciousness of guilt, is debatable. Assuming that they did, we do not attach a talismanic effect to “consciousness” that automatically turns a conviction after trial into a reversal. The defendant complains of three words in a charge that covered fifty-one pages of trial transcript. The jury was otherwise properly instructed and there was substantial other evidence of guilt. See United States v. Boekelman, supra. Further, the defendant has not in his brief made reference to any particular statements made by him which he claims could have been misused by the jury. Under these circumstances, the record does not bear out the defendant’s contention that the court’s instruction allowed the jury to convict him on insufficient evidence and therefore does not adequately support a claim that he has been deprived of a fundamental constitutional right and a fair trial. See State v. Evans, supra. Nor does the defendant’s claim warrant review under the plain error doctrine. State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

The defendant further claims that the court’s charge on the second count of the information, conspiracy to commit arson, enabled the jury to convict him on evidence which was insufficient as a matter of law and therefore deprived him of due process. His claim appears to be that the court, in reviewing the facts relevant to this count, left the jury with the impression that they could convict the defendant solely by virtue of Holmes’ pecuniary interest in the laundromat. We disagree. “The test of a charge is whether it is correct in law, adapted to the issues and sufficient for the guidance of the jury.” State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979). The court’s charge on conspiracy to commit arson passed that test.

The defendant also claims that the court erred when it instructed the jury as follows: “It is the sworn duty of the Courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law imputes to every person so charged; but the law is made to protect society and innocent persons and not to protect guilty ones.” The defendant argues that the charge diluted the presumption of innocence.

We recently considered a similar instruction in State v. Palmer, 196 Conn. 157, 168-69, 491 A.2d 1075 (1985), and held that “[ejxamining the questioned instruction both in the context of the portion of the charge in which it was used as well as in the context of the charge as a whole, we see nothing to suggest that the challenged language qualified or diluted the presumption of innocence, or that it might have misled the jury to suppose that the defendant could only invoke the presumption after he had established his innocence.” There was no error in this regard.

IV

The defendant next claims that the trial court denied him his federal and state constitutional rights to a fair trial, an impartial jury, and compulsory process by making “disparaging remarks” toward the only defense witness, Meyer Biller. He claims also that the trial court “raised the spectre” that the witness and the defendant were coconspirators when it referred to defense counsel as the witness’ attorney.

The issues counsel now raises on appeal were not raised at trial. There was no objection to any remarks made by the trial court to the witness, nor was a motion for a mistrial made or a curative instruction requested. We have nonetheless reviewed the entire transcript of Biller’s testimony. We are satisfied that the record does not adequately support a claim that the judge’s conduct toward the witness deprived the defendant of a fundamental constitutional right and a fair trial. Therefore, since the defendant’s claims were not raised and decided in the trial court, we will not consider them. See State v. Evans, supra, 69, 70; see also State v. Mack, 197 Conn. 629, 642, 500 A.2d 1302 (1985).

V

The defendant’s final claim is that he was denied the effective assistance of counsel at his trial. In view of the modification of our procedure in regard to ineffective assistance of counsel claims wrought by the recently decided case of State v. Leecan, 198 Conn. 517, 542, 504 A.2d 480 (1986), “we shall not review at this time even the portion of the defendant’s claim that he contends is adequately supported by the record. Though we have resolved his other claims of error, we believe that his ineffective assistance claims should be resolved not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.”

There is no error.

In this opinion the other judges concurred.

       The defendant was tried and convicted under the name of James Holmes. His true name is Judson Brown.

       General Statutes (Rev. to 1977) § 53a-112 (a) provides: “Sec. 53a-112. ARSON IN THE SECOND DEGREE: CLASS € FELONY, (a) A person is guilty of arson in the second degree when he starts a fire or causes an explosion: (1) With intent to destroy or damage a building (A) of another, or (B) whether his own or another’s, to collect insurance for such loss; and (2) such act subjects another person to a substantial risk of bodily injury or another building to a substantial risk of destruction or damage.”

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes (Rev. to 1977) § 53a-122 (a) (2) provides: “Sec. 53a-122. LARCENY IN THE FIRST DEGREE: CLASS B FELONY, (a) A person is guilty of larceny in the first degree when ... (2) the value of the property or service exceeds two thousand dollars.”

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

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”


author: Shea, J.

text:
    State of Connecticut v. Mickey Williams
    (9864)
    Peters, C. J., Healey, Shea, Santaniello and Ment, Js.
    Argued December 10, 1985
    decision released March 4, 1986

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Susan C. Marks, special assistant state’s attorney, with whom, on the brief, were John M. Massameno, assistant state’s attorney, and Richard D. Arconti, former assistant state’s attorney, for the appellee (state).
   Shea, J.

After a trial to a jury, the defendant, Mickey Williams, was convicted of the crimes of burglary in the third degree, in violation of General Statutes § SSa-lOS, and larceny in the second degree, in violation of General Statutes (Rev. to 1981) § 53a-123. From this judgment the defendant appeals, claiming that the trial court erred: (1) in its jury instructions on the elements of burglary in the third degree in that it unconstitutionally relieved the state of its burden of proving that he acted with the requisite specific intent; (2) in its reinstruction to the jury on the issue of value; and (3) in its failure to appoint counsel to represent him at his sentencing hearing. We find error only on the last claim and remand for resentencing.

At approximately 1 a.m. on July 19, 1979, Arlene Taiyebain was sitting in front of her apartment building, located across the street from Feinson’s Men’s and Boy’s Store (Feinson’s) in Danbury. Immediately after she heard an unusual noise, she saw a black man dressed in white clothing running through the store, grabbing merchandise off the apparel racks. Taiyebain immediately called the police. She then saw the man, whom she recognized as a person she had seen before, leave the store carrying clothing, cross the street and enter an alley. A few minutes later, the man emerged from the alley with another individual, crossed the street and re-entered Feinson’s. The man Taiyebain had recognized then continued to gather clothing off the racks.

Soon thereafter an officer of the Danbury police department arrived at the scene. He observed the store’s rear door shattered and a black man, wearing a white “t-shirt” and light tan pants, leaving the scene on foot carrying clothing. The officer followed the man down an alley but was unable to catch him because the alley became impassable for his cruiser. Several other police officers saw a black man in a white “t-shirt” running through alleys behind the store, and enter an alley behind a restaurant. The officers searched the alley until they noticed the defendant’s foot protruding from a garbage dumpster. The officer originally on the scene immediately identified the defendant as the man he had seen in close proximity to the shattered back door at Feinson’s. At the scene Taiyebain also positively identified the defendant as the man she had seen in the store and whom she had seen previously. The defendant was taken into custody and two bundles of clothing bearing Feinson’s labels and price tags were subsequently found in nearby alleys. The clothes were later examined by the store’s owner and manager and determined to have a market value of $1150 for one pile and $1295 for the other.

The defendant was charged in a substitute information with burglary in the third degree, General Statutes § 53a-103, and larceny in the first degree, General Statutes (Rev. to 1981) § 53a-122. The court granted the defendant’s request to proceed to trial pro se, and ordered a public defender to be available in the courtroom for consultation during the proceedings as standby counsel. At trial the defendant presented a defense of alibi and misidentification. He claimed that he had been at a bar with his brother until it closed at 1 a.m. that morning and then walked home by way of the alley where he was discovered. The defendant testified that when he saw the police officers he panicked because he was on parole and jumped into the dumpster to hide. The jury found the defendant guilty of burglary in the third degree. Although he was not found guilty of larceny in the first degree, he was convicted of the lesser included offense of larceny in the second degree.

I

The defendant first claims that the trial court’s instructions to the jury on the elements required for a conviction of burglary in the third degree violated his constitutional rights by relieving the state of its burden of proving the requisite specific intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Although the defendant took no exception to the instruction he now challenges, we will review his claim under the “exceptional circumstances’’ rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). See State v. Amarillo, 198 Conn. 285, 299 n.9, 501 A.2d 1195 (1986); State v. Fernandez, 198 Conn. 1, 18, 501 A.2d 1195 (1985); State v. Shine, 193 Conn. 632, 644 n.11, 479 A.2d 218 (1984).

The defendant levels his constitutional attack on the following language in the court’s instruction on the specific intent necessary for the crime of burglary: “Burglary is an intrusionary crime. In other words, regardless of the nature of the intrusion it must be proven that the defendant has entered the building unlawfully and . . . that he did so with the intention of committing a crime therein. Intent is used and [sic] established if at all by circumstantial evidence. In addition in this case if you find the evidence in accordance with what the state offered you must find the intent would infer from conduct. And that of course [is] a question of fact.” (Emphasis added.)

The due process clause of the fourteenth amendment to the United States constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). On the basis of this principle, a trial court is prohibited from incorporating evidentiary presumptions in its jury instructions that have the effect of relieving the state of its burden of proving every essential element of the crime. Francis v. Franklin, 471 U.S. 307, 313, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); Sandstrom v. Montana, supra, 520-24; Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). In Sandstrom v. Montana, supra, 517, the United States Supreme Court held that a jury instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts” violated the defendant’s due process rights because a reasonable juror could have interpreted it as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving the critical element of intent. See United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). The defendant here claims that the jury instructions had the effect of relieving the state of its burden of persuasion on the issue of intent by creating a mandatory conclusive presumption of intent upon proof by the state of the physical acts constituting the burglary.

“The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. See Ulster County Court v. Allen, [442 U.S. 140, 157-63, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979)]. That determination requires careful attention to the words actually spoken to the jury, see [id.], at 157-159, n. 16, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom v. Montana, supra, 514; see State v. Vasquez, 182 Conn. 242, 247, 438 A.2d 424 (1980). Sandstrom does not invalidate, for example, the use of an “entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.” Ulster County Court v. Allen, supra, 157; State v. Arroyo, 180 Conn. 171, 175, 429 A.2d 457 (1980). We must, therefore, determine whether the challenged portion of the instruction here creates a mandatory presumption of intent or merely a permissive inference. See Sandstrom v. Montana, supra, 520-24. “A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” Francis v. Franklin, supra, 314. A mandatory presumption violates the due process clause if it relieves the state of the burden of proving an essential element of the offense; Patterson v. New York, supra, 215; while a permissive inference violates the strictures of due process only if the suggested conclusion is not justified by common sense in light of the facts proven. Ulster County Court v. Allen, supra, 157-63.

The challenged sentence in this case was clearly cast in mandatory language. It instructed the jurors that they “must find the intent would infer from conduct, ” if they found “evidence in accordance with what the state offered . . . .” (Emphasis added.) Although these words are garbled, the defendant claims that they convey precisely the same message as the language held unconstitutional in Sandstrom v. Montana. A reasonable juror could easily have viewed such language as mandatory, requiring him conclusively to presume an essential element of the offense of burglary, intent to commit a crime within the building, upon proof of the defendant’s unlawful entry or presence in the building. In this way the instructions “undermine[d] the fact-finder’s responsibilty at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ulster County Court v. Allen, supra, 156. The challenged instructions, standing alone, undeniably created an unconstitutional mandatory conclusive presumption with respect to the element of intent. Francis v. Franklin, supra, 318.

The inappropriate language, however, did not stand alone. Id., 328 (Powell, J., dissenting). In reviewing instructions to the jury we examine the charge as a whole and will not sever one portion and analyze it in isolation from the rest. Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Truppi, 182 Conn. 449, 458, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). We have carefully examined the whole charge and have concluded that additional language, not present in the Sandstrom v. Montana charge, was sufficient to rectify the improper use of the word “must” and to prevent the jury from unconstitutionally relieving the state of its burden of persuasion on the element of intent. See State v. Amarillo, supra, 303; State v. Asherman, 193 Conn. 695, 734, 478 A.2d 227 (1984); State v. Vitale, 190 Conn. 219, 221 n.1, 460 A.2d 961 (1983); Crawford v. Warden, 189 Conn. 374, 380-82, 456 A.2d 312 (1983).

During its general instructions, the court repeatedly informed the jury that the defendant was presumed innocent until proven guilty by the state on each charge. In each instance the court instructed the jury that the state had the burden of proving “each and every element” of the crimes beyond a reasonable doubt. These instructions regarding the presumption of innocence and requirement of proof beyond a reasonable doubt were also repeated at the conclusion of the charge. These general instructions, however, do not vitiate the possible erroneous interpretation of the challenged language. “[GJeneral instructions on the State’s burden of persuasion and the defendant’s presumption of innocence are not ‘rhetorically inconsistent with a conclusive or burden-shifting presumption,’ because ‘[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.’ [Sandstrom v. Montana, supra], 518-519 n.7 . . . .” Francis v. Franklin, supra, 319. Therefore, a reasonable juror could have reasoned that although intent must be proven beyond a reasonable doubt, proof of unlawful entry into the building constituted proof of the defendant’s intent to commit a crime therein.

Although general instructions on the burden of proof and presumption of innocence do not alone dispel the possibility of an unconstitutional interpretation of the challenged language, such instructions may be considered in light of the entire charge to determine whether the jury could have interpreted the presumption involved as mandatory or permissive. State v. Stankowski, 184 Conn. 121, 152, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). In this case, the balance of the court’s instructions, considered in tandem with the court’s general instructions, eliminated the possibility that any reasonable juror could have interpreted the instructions as mandating that the defendant’s criminal intent be inferred from his conduct.

The trial court carefully instructed the jury, after it had used the challenged language, that a guilty verdict required a finding that the defendant had entered or remained unlawfully in a building and that he had done so with the intent to commit a crime therein. Immediately prior to the challenged sentence the court noted that “intent is used and established if at all by circumstantial evidence.” (Emphasis added.) The trial court had previously instructed the jury that they were the sole arbiter of the facts and explained the concept of cirumstantial evidence and inference, noting that an inference was a conclusion drawn from circumstantial evidence. Immediately after the challenged language the court commented, “[a]nd that of course [is] a question of fact.” The court also pointed out that the “[Required intention must be spelled out if at all from the evidence that the defendant’s conduct or facts or circumstances if you find that proof is present sufficient for you to [infer] that the defendant’s intent was to commit a crime within the building then you may find him guilty of burglary.” The court reiterated that a finding of guilty required proof beyond a reasonable doubt that the defendant entered or remained unlawfully in the building with the intention of committing a crime therein, emphasizing: “If you find all those elements present, then you may of course convict.” Most important, however, is the court’s instruction to the jury that if it found that the defendant had unlawfully entered or remained in the building, but did not possess the intent to commit a crime therein, the defendant could be found guilty of criminal trespass, but not of burglary: “The only difference is that there is no intention to commit a crime in the building.” No reasonable juror, in light of this instruction, could have interpreted the entire instructions as mandating a finding of intent simply because the conduct elements of burglary were established.

A reasonable juror, considering the instructions in their entirety, would have concluded that the defendant’s intent to commit a crime in Feinson’s was a question of fact and that such intent was a mental state which must be proven, if at all, by circumstantial evidence. See State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979). A reasonable juror could not have interpreted the instructions as creating a mandatory conclusive presumption on the crucial element of intent. Because the charge read as a whole clearly dissipates the improper isolated use of the word “must,” we hold that the charge did not violate the defendant’s rights under the due process clause. This conclusion makes it unnecessary for us to consider whether the misstatement in the charge may have been harmless error, which the state claims as an alternative ground for sustaining the conviction. See Francis v. Franklin, supra, 325; Connecticut v. Johnson, 460 U.S. 73, 85-86, 103 S. Ct. 969, 74 L. Ed. 823 (1983); State v. Truppi, supra, 466.

II

The defendant next claims that the trial court’s reinstruction on the value element of the larceny charge was so incomplete and misleading that it violated due process and deprived him of a fair trial. In its initial instructions the trial court highlighted the testimony concerning the value of the stolen property and accurately instructed the jury as to the value requirements for the various degrees of larceny. During its deliberations the jury sought clarification of the court’s instructions on larceny, asking the court: “[I]s the jury allowed to question the ‘fair market value of the clothes’ which were taken or do we have to go by the testimony given?” In response, the court provided the following supplemental instruction: “With respect to the first part of the question, the jury is free to question any evidence which was offered. The jury may accept any part of the testimony of any witness or may disregard part of it or disbelieve part of it or all of it or it may believe all of it. It is for you to determine whether or not you believe the testimony that you heard, how much of that you heard you do accept, or you do not have to goby the testimony given. . . . ” (Emphasis added.) The defendant submits that the last clause of this reinstruction was erroneous because it permitted the jury to disregard the testimony presented, to speculate on the element of value, and, therefore, to return a verdict unsupported by the evidence. We disagree.

Although the defendant failed to except to the reinstruction on value, we review this claim under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because the defendant claims that the effect of the objectionable clause was to invite a jury verdict predicated upon speculation and conjecture thus resulting in a fundamental due process violation. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Such a claim does necessitate review for the limited purpose of determining whether a fundamental constitutional right has been infringed. State v. Leecan, 198 Conn. 517, 538, 504 A.2d 480 (1986); State v. Hinckley, 198 Conn 77, 86-87, 502 A.2d 388 (1985).

In evaluating a claim that a supplemental charge is erroneous we must examine both the main and supplemental charge as a whole to determine whether the jury could reasonably have been misled. State v. Reed, 174 Conn. 287, 308, 386 A.2d 243 (1978). We must recognize, however, that “[a] supplemental charge . . . enjoy[s] special prominence in the minds of the jurors” because it is fresher in their minds when they resume deliberation. Arroyo v. Jones, 685 F.2d 35, 39 (2d Cir.), cert. denied, 459 U.S. 1048, 103 S. Ct. 468, 74 L. Ed. 2d 617 (1982); see Bollenbach v. United States, 326 U.S. 607, 611-12, 66 S. Ct. 402, 90 L. Ed. 350 (1946).

In the court’s original instructions the jury was correctly instructed that it was to determine the facts “solely upon the evidence giving to each part of the evidence the weight you consider it deserves.” The court also advised the jury that it was not required to believe even uncontradicted testimony. Specifically on the issue of value, the jury was instructed that “value,” as used in defining the degree of larceny, meant the market value of the property at the time and place of the crime, or the “price which the thief would pay for the property if he bought the property.” See General Statutes § 53a-121 (a) (1); State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985). The jury was further instructed that evidence of the sale prices of the items was only evidence of their market values. Finally, the jury was instructed that a verdict of guilty of larceny in the first degree required a finding that the value of the property exceeded $2000 and that larceny in the second degree would have occurred if the state proved the value of the property to be greater than $500.

The essence of the jury’s question, which prompted the supplemental instruction, was whether it was bound by the testimony of the witnesses produced by the state as to the fair market value of the clothing. Theirs was the only testimony on this subject, and, if fully accepted by the jury, would have resulted in a conviction of first degree larceny based upon a finding that the value of the stolen property exceeded $2000. The court correctly instructed the jury that it was not bound by their testimony in responding that “you do not have to go by the testimony given.” Evidence regarding value “is to aid the trier to arrive at [its] own conclusion which is to be reached by weighing the opinions of the experts in light of all the circumstances in evidence bearing on value and [its] own general knowledge going to establish it.” Bridgeport Hydraulics Co. v. Stratford, 139 Conn. 388, 397-98, 94 A.2d 1 (1953). Although the court’s particular language was not a model of precision, it was not misleading in light of the earlier instruction that facts are to be determined solely from the evidence. “Of necessity, additional instructions given in immediate response to a request are more informal and expressed with less exactness than are studiously prepared formal charges . . . State v. Parker, 114 Conn. 354, 368, 158 A. 797 (1932). We are unable to agree with the defendant that the jury could reasonably have understood the supplemental instructions as allowing it wholly to disregard the state’s evidence of value and to embark on its own determination of the fair market value of the property. The supplemental instruction, viewed in the context of the charge as a whole, could not reasonably have misled the jury in its conclusion. Pursuant to the reinstruction, the jury chose not to believe completely the testimony of the store’s owner and manager, who had testified for the state. The jury, as it was entitled, chose to believe the state’s evidence of value only to the extent that the value of the stolen property exceeded $500. This conclusion was not based on speculation or conjecture, but upon its view of the state’s evidence, which it discounted in the light of its own experience. The trial court’s supplemental instruction on value was not misleading in the context of the whole charge and, therefore, did not violate the defendant’s constitutional right to a fair trial. See State v. Evans, supra.

Ill

The defendant’s remaining claim of error is that the trial court denied him assistance of counsel at his sentencing hearing in violation of the sixth and fourteenth amendments to the federal constitution and article first, § 8, of our state constitution. We examine this claim in the context of these additional facts: Prior to trial, on August 15,1979, George Thim, the defendant’s public defender, requested a continuance because the defendant wanted to obtain a private lawyer. After the court denied the request, the defendant requested permission to represent himself at trial. After discussing with the defendant the dangers of self-representation, the court granted the request, concluding that the defendant’s decision was “knowingly and intelligently” made. See Practice Book § 961; Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981); Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); State v. Gathers, 193 Conn. 526, 533, 480 A.2d 435 (1984). The court informed the defendant that Thim would be available “for consultation” but would not be allowed to participate in the trial “unless you request him to be your attorney.” (Emphasis added.) The defendant conducted his entire trial pro se. When the case was presented for sentencing, Thim was present in the courtroom. The court addressed the defendant, reminding him that Thim was still available for consultation. In response, the defendant initiated the following colloquy:

“Mr. Williams: I would like to have him be appointed back as my Public Defender. I would like him appointed back as my Public Defender.

“The Court: As far as appointing him right now, no. As far as appointing him as your Public Defender at this point, I will not do it.

“He was appointed for you and you told me that you did not want him. You wanted to represent yourself. I explained to you in regard to this in great specific detail just how foolish I thought this decision was. I told you you should understand just what the impact of such a decision was. I gave you time to make up your mind and told you that you could have more time when we returned.

“You said that you did not want him as your counsel. Even then I made him available for consultation. You made the decision and I concluded my [sic] saying that if you are not happy with the outcome, it was too late to indicate your regrets.

“I will not appoint Mr. Thim as Public Defender. He was removed at your request. I will, however, as I said, let you consult with him. He may be available to you for that purpose.

“Mr. Williams: Is it possible that another Public Defender can represent me?

“The Court: Not at this stage of the proceedings, no.”

The defendant represented himself at sentencing and was sentenced to a term of imprisonment of not less than two nor more than five years on each count, such sentences to be served consecutively.

The state does not dispute that the defendant had a state and federal constitutional right to assistance of counsel during the sentencing hearing. In Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269 (1966), we held that “the sentencing process is a critical stage of a criminal trial.” See Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); McConnell v. Rhay, 393 U.S. 2, 3-4, 89 S. Ct. 32, 21 L. Ed. 2d 2 (1968); Townsend v. Burke, 334 U.S. 736, 740, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948). The state argues, however, that the defendant’s voluntary relinquishment of his right to counsel during trial extended through the sentencing hearing. We disagree.

The defendant does concede that absent an indication to the contrary, a trial court is entitled to rely on a presumption that a defendant’s election to represent himself continues through sentencing. “A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings.” (Emphasis added.) Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir. 1969); see Panagos v. United States, 324 F.2d 764, 765 (10th Cir. 1963); Davis v. United States, 226 F.2d 834, 840 (8th Cir. 1955), cert. denied, 351 U.S. 912, 76 S. Ct. 702, 100 L. Ed. 1446 (1956). The defendant asserts, however, that because his voluntary waiver of counsel at the outset of the trial was not intended to extend through the sentencing procedure, and because he clearly asserted his desire for counsel at sentencing, the court unconstitutionally refused to appoint him counsel.

The record here does not establish that the defendant was informed by the court that his initial waiver of counsel would extend to sentencing. In fact, the trial court’s comment in reference to the standby counsel, “I will not allow him to participate unless you request him to be your attorney,” implied that the court would reappoint Thim to represent the defendant if the defendant requested it. Nor is there any indication on the record that supports a conclusion that the defendant intended to waive counsel at sentencing. The defendant explained to the court that he wished “to represent myself in this trial.” (Emphasis added.) The court inquired, “[y]ou wish to represent yourself in this trial?” The defendant responded, “Yes.” Most importantly, the defendant expressly requested that Thim be appointed to represent him at sentencing. Because the defendant specifically requested counsel at sentencing, and gave no indication that his initial waiver extended beyond the adjudicatory stage of the prosecution; see Gilbert v. California, 388 U.S. 263, 271, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); the defendant was deprived of his constitutionally protected right to counsel.

There is no error in the judgments convicting the defendant of burglary in the third degree and larceny in the second degree.

There is error in the denial of the defendant’s request for counsel at the sentencing proceeding.

The sentence imposed is vacated and the case remanded for resentencing.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-103. burglary in the third degree: class d felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       “[General Statutes (Rev. to 1981)] Sec. 53a-123. larceny in the second degree: class d felony, (a) A person is guilty of larceny in the second degree when: (1) The property consists of a motor vehicle, (2) the value of the property or service exceeds five hundred dollars, or (3) the property, regardless of its nature or value, is taken from the person of another.”

       After the defendant’s brief was filed in this case, the state filed a motion for rectification with the trial court, seeking alterations in the portions of the transcript of the jury instructions pertaining to intent. After a hearing the court, Moraghan, J., granted the state's motion and ordered that corrected transcript pages be prepared. On April 29,1985, the defendant filed a motion for review with this court claiming that the trial court’s wholesale changes were unsupported by the record below. We granted the motion to review, but denied the relief requested therein without prejudice to renewal at a full hearing. The court also ordered the defendant to file a supplemental brief addressing only those new issues raised by the trial court’s revision of the transcript. Based on a careful re-examination of the record and transcript from the hearing on the motion for articulation and the papers filed with the motion for review, we decide today to address the issues on appeal on the basis of the original transcript. We therefore disregard all corrections made in the transcript by the trial court. See Papallo v. Meriden Savings Bank, 128 Conn. 289, 291, 22 A.2d 637 (1941). It is, therefore, unnecessary to consider the defendant’s additional claims, raised in his supplemental brief, based solely on the “corrected” transcript.

       “A mandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the case once the State has proven the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted. See Sandstrom v. Montana, 442 U.S. 510, 517-18 [99 S. Ct. 2450, 2455-56, 61 L. Ed. 2d 39] (1979).” Francis v. Franklin, 471 U.S. 307, 314 n.2, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).
      We agree with the defendant and the state that the challenged instruction here, because it neither used the word “presume” nor explicitly addressed the burden of proof, could not have been interpreted as burden-shifting, but only as a conclusive presumption.

       We see no merit in the defendant’s claim raised in his supplemental brief that “the absence of an accurate transcript [for our review] deprives him of his right to a meaningful appeal under the due process clauses of the state and federal constitutions.” See Cole v. United States, 478 A.2d 277, 281 (D.C. 1984). The isolated passages in the transcript, which may have resulted from stenographic errors, have been adequately reconstructed favorably to the claim raised by the defendant.

       In support of Ms position the defendant inappropriately relies on State v. Saracino, 178 Conn. 416, 423 A.2d 102 (1979) (per curiam). In Saracino we held that a jury’s determination of value for a charge of larceny in the first degree was a product of speculation and conjecture because there was insufficient evidence presented by the state to support the jury’s conclusion that the defendant had received stolen property valued in excess of $2000. Id., 420. In the present case the state clearly presented evidence sufficient to justify the jury’s verdict of guilty of larceny in the second degree.