source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    CARLTON MARTIN v. WALTER FLANAGAN, STATE’S ATTORNEY
    (SC 16453)
    Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

      Argued December 5, 2001
    officially released February 19, 2002

      Jonathan K. Gable, certified legal intern, with whom was Kent Drager, senior assistant public defender, for the plaintiff in error.

      James Ralls, assistant state’s attorney, with whom, on the brief, were Walter Flanagan, state’s attorney, and David Shannon, assistant state’s attorney, for the defendant in error.
   Opinion

KATZ, J.

The dispositive issue in this writ of error is whether, pursuant to General Statutes § 51-33, the trial court improperly rejected the assertion by the plaintiff in error, Carlton Martin (plaintiff), of his fifth amendment privilege not to testify and improperly held him in contempt for refusing to answer questions at the criminal trial of a codefendant based on the plaintiffs previous waiver of the privilege at his o wn criminal trial.

The record discloses the following undisputed facts. In connection with the death of Bobbie Gallo during an alleged armed robbery at Gallo’s Liquor Store in Danbury on January 18, 1999, the plaintiff was charged with and convicted of felony murder in violation of General Statutes § 53a-54c, first degree robbery in violation of General Statutes § 53a-134 (a) (2), and five counts of tampering with a witness in violation of General Statutes § 53a-151 (a). Following his sentence to a total effective sentence of ninety years imprisonment, the plaintiff appealed from the judgment of conviction to this court. That appeal is still pending.

Thereafter, in connection with the same events, the state proceeded to trial in the case against the plaintiffs codefendant, Tommie Martin, charging that he had conspired with the plaintiff to commit robbery in the first degree. During that trial, the state filed a motion to compel the plaintiffs testimony, contending that, because he previously had waived the fifth amendment privilege against self-incrimination during his own trial, at which he was convicted of charges arising from Gallo’s homicide, the privilege was no longer viable. In response, the plaintiff filed a brief raising essentially four arguments in opposition to the state’s motion. First, the plaintiff claimed that he retained the right to invoke his fifth amendment privilege at Tommie Martin’s trial because that proceeding was separate from his own criminal trial. Second, the plaintiff maintained that, because his judgment of conviction was on appeal, it was not yet final, and consequently, if his conviction were to be overturned, anything that he stated in the trial of Tommie Martin could be used against him at his retrial. Third, the plaintiff contended that he was entitled to invoke his privilege against self-incrimination based upon his legitimate concern that the testimony that the state sought to compel might furnish a link in the chain to other evidence supporting charges against him either for having committed perjury in his previous testimony or for having given a false sworn statement to the police, or for both. Finally, the plaintiff argued that he was entitled to invoke his fifth amendment privilege because the testimony the state possibly would seek to elicit could expose him to prosecution for other offenses, including conspiracy.

The court permitted the state to call the plaintiff as a witness at Tommie Martin’s trial, but ordered that the initial questioning take place outside the presence of the jury. Before the state began its questioning, the trial court advised the plaintiff “that in regard to . . . your testimony connected to the January 18, 1999 robbery and shooting at Gallo’s Liquor Store, you don’t have a fifth amendment privilege. And, I’m ordering you to answer questions that are put to you. If you fail to answer appropriate questions, then I’m going to hold you in contempt of court and give you a jail sentence, which will be consecutive to the time you’ve already gotten. You have your lawyer sitting next to you. If you feel or he feels that some question might elicit information that’s inciiminating in another case or another crime, and I believe that’s appropriate, then I’ll make a decision about whether you should . . . answer those questions. OK? But, I’m telling you that you have to testify here. If you don’t, you may be found in contempt of court and get an additional jail sentence.”

Following some preliminary questions, the state asked the plaintiff the following question: “Did you go to 32 Fairfield Ridge in Danbury, Connecticut in the early morning hours of January 18, 1999?” When the plaintiff refused to answer, the court found him in contempt and sentenced him to six months imprisonment. The state then asked the plaintiff whether he had “testified] previously that [he], Tommie Martin, and Nicole Hams drove to the BP gas station on January 18,1999, in the early morning hours?” He again refused to answer, resulting in a second contempt finding and an additional sentence of six months imprisonment.

The court thereafter cautioned the plaintiff: “I’m going to remind you once again, you do not have a fifth amendment privilege in regard to the events of January 18, 1999, at Gallo’s Liquor Store, and I’m warning you to testify, and if you don’t, I’m going to hold you in contempt of court.” Thereafter, the state asked the plaintiff a series of questions, to which the plaintiff again invoked his privilege against self-incrimination and refused to answer. The questions were as follows: (1) “[D]id Tommie Martin, your cousin, come out of the house when you pulled up—when you got to 32 Fairfield Ridge?”; (2) “Tommie [Martin] was with you at this time, wasn’t he?”; (3) “Did you change your story and tell [Detective Daniel Trompetta of the Bridgeport police department] that you were with Tommie Martin at the BP gas station next to Gallo’s [Liquor Store]?”; (4) “[D]id you testify previously at your trial that you initially didn’t tell [Detective] Trompetta that you were with Tommie Martin because you wanted to protect him?”; (5) “[D]id you tell the police that Tommie Martin wasn’t there in order to protect him?”; (6) “Did you testify previously that you . . . initially told the police Tommie [Martin] wasn’t there in order to protect him? Did you testify to that?”; (7) “[W]as [the .25 caliber Titan handgun, the alleged murder weapon] in your apartment in early January—when it was in your apartment in early January of 1999, was Tommie Martin in the apartment [at] the same time?”; and (8) “These [letters that were being shown by the state] are the letters that Tommie Martin gave you while you [and he] were incarcerated together at Walker correctional facility. Isn’t that correct?” Each time the plaintiff refused to answer a question, the court ordered him to answer and held him in contempt of court for thereafter refusing. The court imposed a fine each of the eight times it held the plaintiff in contempt. See footnote 3 of this opinion.

Later that afternoon, the state called the plaintiff as a witness before the jury. During his testimony, the plaintiff invoked the privilege against self-incrimination eight more times in response to the following questions: (1) “[W]hen you saw [the gun that was the alleged murder weapon] in your apartment in early January of 1999, was . . . Tommie Martin . . . present at the time?”; (2) “[H]ave you testified previously that that gun was in your apartment at the same time Tommie Martin was in your apartment?”; (3) “Did you testify previously that [Tommie Martin] didn’t have a ride in a prior court proceeding?”; (4) “Did you testify previously . . . that when you got to [Harris’] house, that Tommie Martin was coming out of the house. Did you testify to that . . . ?”; (5) “Did you testify previously that Tommie Martin got in the car after he was coming out of the house . . . [stating that] ‘He met me coming to the house, got back in the car and drove off?’ (6) “Did you testify previously . . . [that] Tommie Martin got in the car with you and the three of you went to the BP gas station?”; (7) “[D]id you testify previously that when you got to the BP gas station, Tommie Martin was pumping the gas and Nicole Harris went to go and pay for the gas?”; and (8) “Did you testify previously . . . that you initially told the police Tommie Martin wasn’t with you in order to protect Tommie Martin?”

At the conclusion of the plaintiffs testimony, the trial court, outside the presence of the jury, imposed fines for each of its eight additional contempt findings. Therefore, in total, the trial court found the plaintiff in contempt eighteen times and sentenced him to twelve months imprisonment and $1600 in fines. Thereafter, the court remitted all the fines, but left intact the sentences of imprisonment based upon the first two contempt findings.

On appeal, the plaintiff claims that he properly exercised his privilege against self-incrimination and that the trial court therefore, improperly held him in contempt. In support of his claim, the plaintiff reiterates the arguments that he had made before the trial court. The trial court, however, did not address all of the plaintiffs claims, focusing instead on only one factor— that, by testifying at his own trial, the plaintiff had waived his privilege against self-incrimination. The state does not argue in support of the trial court’s reasoning, but, rather, submits a variety of alternate grounds supporting the ultimate findings of contempt. The state’s primary position is that the plaintiff properly was compelled to testify because he could not be punished any further for testifying, either for perjury, conspiracy or felony murder, were his conviction to be overturned. Essentially, the state contends that, because the trial court compelled the plaintiff to testify, the testimony would be inadmissible against him in any subsequent prosecution. In addition, the state claims that some of the questions the plaintiff refused to answer were merely foundational, and that, by answering previous questions in this proceeding, the plaintiff had waived his privilege. We conclude that the plaintiff properly invoked his privilege and, accordingly, that the trial court improperly held him in contempt.

“The present case, which involves a review of a summary criminal contempt proceeding, comes before us on a writ of error which is the sole method of review of such proceedings. Whiteside v. State, 148 Conn. 77, 78-79,167 A.2d 450 (1961); Goodhart v. State, 84 Conn. 60, 63, 78 A. 853 (1911). The scope of our review reaches only those matters appearing as of record. State v. Assuntino, 180 Conn. 345, 347, 429 A.2d 900 (1980); Reilly v. State, 119 Conn. 217, 223, 175 A. 582 (1934). In a review of summary criminal contempt, the inquiry is limited to a determination of the jurisdiction of the court below. Tyler v. Hamersley, 44 Conn. 393, 413 (1877). Subsumed in this inquiry are three questions, namely, (1) whether the designated conduct is legally susceptible of constituting a contempt; Goodhart v. State, supra [63]; (2) whether the punishment imposed was authorized by law; State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960); and (3) whether the judicial authority was qualified to conduct the hearing. May- berry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971). Moore v. State, 186 Conn. 256, 257, 440 A.2d 969 (1982). In re Dodson, 214 Conn. 344, 346-47, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990).” (Internal quotation marks omitted.) Jackson v. Bailey, 221 Conn. 498, 500-501, 605 A.2d 1350, cert. denied, 506 U.S. 875, 113 S. Ct. 216, 121 L. Ed. 2d 155 (1992).

This case implicates only the first question set forth in Jackson, that is, whether the plaintiffs conduct was legally susceptible of constituting a contempt. Id., 500. The plaintiff claims that under the circumstances of this case, he properly refused to answer the questions, and, accordingly, that the trial court improperly determined, based upon his prior conviction of felony murder, that the plaintiff no longer could invoke his privilege against self-incrimination. Therefore, we begin our analysis with our well settled law regarding a witness’ invocation of the fifth amendment privilege.

A court may not deny a witness’ invocation of the fifth amendment privilege against compelled self-incrimination unless it is “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have [a] tendency to incriminate.” (Internal quotation marks omitted.) State v. Williams, 200 Conn. 310, 319, 511 A.2d 1000 (1986), quoting Hoffman v. United States, 341 U.S. 479, 488, 71 S. Ct. 814, 95 L. Ed. 1118 (1951). “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, supra, 486-87; State v. Simms, 170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976). In appraising a fifth amendment claim by a witness, a judge “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” (Internal quotation marks omitted.) State v. Williams, supra, 319.

The plaintiff contends that the trial court improperly concluded that he no longer could invoke the privilege against self-incrimination as a result of having testified in a prior proceeding. Specifically, he contends that the waiver of his privilege against self-incrimination at his own trial did not extend beyond that proceeding. We agree.

It is well settled that a waiver of the self-incrimination privilege in one proceeding does not affect the rights of a witness in another, separate proceeding. State v. Grady, 153 Conn. 26, 34, 211 A.2d 674 (1965) (“It is settled law that even if an accused waives his privilege against self-incrimination by voluntarily testifying [at his own trial], the waiver is limited to the particular proceeding in which he volunteers the testimony. 8 Wigmore, Evidence § 2276 (4), p. 470 [McNaughton Rev. 1961].”); 1 C. McCormick, Evidence (5th Ed. 1999) § 134 (“[a] witness’s loss of the privilege by testifying . . . applies throughout but not beyond the ‘proceeding’ in which the witness has [testified]”). Indeed, virtually all the federal circuits recognize this principle. It similarly is established in numerous states that have addressed the issue that a person who has waived his privilege in one proceeding is not estopped from asserting the privilege in a subsequent proceeding. Given the weight of this authority, the state does not defend the trial court’s reasoning for its decision, but, rather, raises several arguments in the alternative to support the contempt findings. First, the state claims that, by answering some questions before invoking his fifth amendment privilege, the plaintiff essentially waived his right to withhold testimony in connection with any other questions. This court previously has held that “[a] testimonial waiver is not lightly to be inferred . . . [and] should be inferred only in the most compelling circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Altrui, 188 Conn. 161, 169, 448 A.2d 837 (1982). In the present case, before any questions were asked, the trial court issued a directive to the plaintiff to either answer any and all questions related to the robbery of Gallo’s Liquor Store or face contempt. An inference that the plaintiff waived the privilege would require a determination that he began his testimony freely and voluntarily, knowing that his answers to any questions would be interpreted as a waiver. Id., 168. That supposition is not supported by the record here.

The state’s second argument—that the questions relating to the plaintiffs prior testimony were merely foundational questions and were, therefore, not incriminatory in nature—is equally unavailing. Again, the court drew no distinction between foundational and other questions. It did not rule on a question-by-question basis, but, rather, the court issued a preliminary blanket ruling that required the plaintiff to answer any and all questions pertaining to the robbery. Moreover, the mere confirmation of the existence and accuracy of former incriminating testimony, albeit by implication, could itself be incriminating. United States v. Miranti, 253 F.2d 135, 138 (2d Cir. 1958). Indeed, the acknowledgment of his prior testimony that the state sought in the present case would undoubtedly become part of the state’s evidence, in any subsequent prosecution for conspiracy or on retrial after a successful appeal, either as part of its chain of proof or as a means of bolstering the credibility of the prior testimony. See id.

Finally, the state argues that the trial court’s contempt findings were proper because the plaintiffs testimony had been compelled, and consequently, the testimony could not be used against him for any purpose, either in connection with a retrial, should he prevail on appeal, or any other trial. Therefore, according to the state, because his compelled testimony could not be used, the plaintiff could not invoke his fifth amendment privilege to not testify. This argument is flawed both as a matter of logic and law. The court properly cannot compel testimony from a witness who has a legitimate fifth amendment privilege. A court properly can compel a witness to testify only when there is no legitimate privilege. Accordingly, when a court orders a witness cloaked with the privilege to testify, that witness retains the right to exercise the privilege, to refuse to testify, and to thereafter test the validity of the privilege on appeal if the court finds him in contempt. The state’s argument here suggests that when a court improperly orders a witness to testify, it essentially grants him use immunity, notwithstanding the otherwise proper exercise of the privilege, the trial court’s lack of power to grant such use immunity, and the state’s failure to invoke General Statutes § 54-47a. Moreover, the trial court in the present case never intended to provide any immunity, nor did it suggest to the state that it should consider immunity as an option because the court improperly concluded that the plaintiff no longer held a fifth amendment privilege against self-incrimination. Therefore, any representation now by the state that it could not use the plaintiffs testimony at any subsequent proceeding because it was compelled reflects a consideration that it should have, but did not, express at the trial. Finally, the same argument expressed by the state herein was rejected expressly by the Supreme Court in Pillsbury Co. v. Conboy, 459 U.S. 248, 261-63, 103 S. Ct. 608, 74 L. Ed. 2d 430 (1983), when it held that the federal District Court could not hold the witness in contempt for properly exercising his privilege against self-incrimination based upon the trial court’s prediction that a future court would suppress that testimony and thereby not allow it to be used against the witness.

We conclude that the trial court in the present case improperly determined that the plaintiff could no longer invoke the privilege against self-incrimination because of his testimony in a prior proceeding, and we reject the state’s alternate grounds for affirming the judgment of contempt. Accordingly, we conclude that each of the contempt findings must be vacated.

The judgment is reversed and the case is remanded with direction to vacate the contempt findings.

In this opinion the other justices concurred.

       General Statutes § 51-33 provides: “Any court, including a family support magistrate, may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly maimer; but no court or family support magistrate may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both.”

       The appeal of the plaintiffs criminal conviction pending in this court is captioned State v. Martin, Docket No. SC 16448.

       The trial court originally had imposed a $500 fine pursuant to General Statutes § 51-33a for each of the sixteen contempt findings for which the plain! iff did not receive a term of imprisonment. In a subsequent correction, however, the trial court noted that the proper authority for the contempt findings was General Statutes § 51-33, which allows a maximum fine of $100 per finding. Thereafter, the court corrected the amount of the fines imposed accordingly.

       Although it was not the basis of the trial court’s ruling, the state had stated in its motion in limine that the plaintiff no longer could invoke the privilege because he already had been convicted and sentenced for felony mmder and first degree robbery arising out of the incident at Gallo’s liquor Store. The plaintiff claims in his brief to this court that, with respect to those events, he continues to retain his privilege against self-incrimination until the judgment of conviction becomes final. We agree with the plaintiff.
      The weight of authority permits a witness whose conviction has not been finalized on direct appeal to invoke the privilege against self-incrimination and to refuse to testify about the subject matter which formed the basis of his conviction. See Mitchell v. United States, 526 U.S. 314, 326, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999) (only where sentence fixed and judgment of conviction is final is there no basis for assertion of privilege); Ottomano v. United States, 468 F.2d 269, 273 (1st Cir. 1972), cert. denied, 409 U.S. 1128, 93 S. Ct. 948, 35 L. Ed. 2d 260 (1973) (accused could assert self-incrimination privilege on charge on which he already had been convicted when proceedings that could result in new trial were still pending); State v. Gretzler, 126 Ariz. 60, 88, 612 P.2d 1023 (1980), cert. denied, 461 U.S. 971, 103 S. Ct. 2444, 77 L. Ed. 2d 1327 (1983) (“[t]he Fifth Amendment privilege is available to a convicted person when his conviction or sentence is being appealed”); People v. Lopez, 110 Cal. App. 3d 1010, 1021, 168 Cal. Rptr. 378 (1980) (“a witness who has been convicted of a crime and who has appealed that conviction cannot be compelled to testify in the trial of a co-defendant pending the resolution of that appeal”); People v. Villa, 671 P.2d 971, 973 (Colo. App. 1983) (self-incrimination privilege of convicted coaccused “continues” where he “is appealing his conviction ... in order to protect him[self] from the subsequent use of self-incriminating statements in the event relief is granted”); Landeverde v. State, 769 So. 2d 457, 46-M55 (Fla. App. 2000) (witness, who was convicted felon with pending motion to reduce his sentence, retained privilege against self-incrimination with regard to charges on which he was convicted); Landenbergerv. State, 519 So. 2d 712, 713 (Fla. App. 1988) (“[i]n the absence of a [grant] of immunity, a convicted felon with an appeal pending has a Fifth Amendment privilege not to testify [when called as a witness], and this privilege continues throughout the pendency of the appeal [of his conviction]”); State v. Linscott, 521 A.2d 701, 703-704 (Me. 1987) (witness who has convictions pending on appeal may claim self-incrimination privilege with regard to those convictions because of real possibility of new trial; contempt finding reversed); Ellison v. State, 310 Md. 244, 250, 253-54, 528 A.2d 1271 (App. 1987) (“ ‘[i]t is well settled that a witness may invoke his privilege against self-incrimination where . . . the criminal action against him is still pending, as where an appeal is outstanding' ”; “a witness who has been found guilty and sentenced on criminal charges is entitled to claim the privilege against self-incrimination with regard to matters underlying those charges while ... a direct appeal or sentence review is pending”); People v. Robertson, 87 Mich. App. 109, 114,273 N.W.2d 501 (1978) (“it is clear that the privilege against self-inerimination still applies where an appeal is pending after conviction on a charge to which the incriminating testimony would relate”); State v. Pearsall, 38 N.C. App. 600, 602-603, 248 S.E.2d 436 (1978) (witness retains self-incrimination privilege with regard to conviction still pending on direct appeal); State v. Crislip, 110 N.M. 412, 415, 796 P.2d 1108 (App.), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990) (privilege against self-incrimination may be raised while direct appeal pending); State v. Satterfield, 45 Or. App. 145, 147-48, 607 P.2d 789 (1980) (same); Davis v. State, 501 S.W.2d 629, 630-31 (Tex. Crim. App. 1973) (same); State v. Marks, 194 Wis. 2d 79, 91-92, 533 N.W.2d 730 (1995) (privilege against self-incrimination with respect to convictions continues through pendency of appeal of those convictions).

       In State v. Grady, supra, 153 Conn. 29, the defendant was convicted under an information in two parts; the first part charged him with several substantive offenses and the second part charged him with being an “ ‘habitual criminal’ ” under then General Statutes § 54-121. On appeal, this court held that, because the defendant voluntarily testified only at his trial under the first part of the information, his testimony from that trial should not have been read to the jury selected to hear the trial on the second part of the information. Id., 34-35.

       See, e.g., United States v. Gary, 74 F.3d 304, 313 (1st Cir.), cert. denied, 518 U.S. 1026, 116 S. Ct. 2567,135 L. Ed. 2d 1084 (1996) (hornbook law that waiver of privilege is limited to particular proceeding in which witness appears); United States v. Yurasovich, 580 F.2d 1212, 1220 (3d Cir. 1978) (“ ‘[i]t is well settled by the overwhelming weight of authority that a person who has waived his privilege of silence in one trial or proceeding is not estopped to assert [the privilege] as to the same matter in a subsequent trial or proceeding’ ”); United States v. Housand, 550 F.2d 818, 821 n.3 (2d Cir.), cert. denied, 431 U.S. 970, 97 S. Ct. 2931, 53 L. Ed. 2d 1066 (1977) (by weight of authority, fact that witness had testified at prior proceeding did not waive his right to claim privilege against self-incrimination at separate proceeding); United States v. Goodman, 289 F.2d 256, 259 (4th Cir. 1961) (“[i]t has been uniformly held that [prior testimony] . . . cannot constitute a waiver of the [sefi-incrimination] privilege with respect to the same matter in a subsequent legal proceeding”), vacated on other grounds, 368 U.S. 14, 82 S. Ct. 127, 7 L. Ed. 2d 75 (1961); Ballantyne v. United States, 237 F.2d 657, 665 (5th Cir. 1956), quoting Poretto v. United States, 196 F.2d 392, 394 (5th Cir. 1952) (“ ‘[t]he constitutional privilege attaches to the witness in each particular case in which he is called upon to testify, without reference to his declarations at some other time or place or in some other proceeding’ ”).

       See, e.g., State v. Spiegel, 710 So. 2d 13, 16-17 (Fla App.), cert. denied, 728 So. 2d 205 (Fla. 1998) (“waiver of the privilege [against self-incrimination] in one proceeding does not affect the right of a witness or accused to invoke the privilege as to the same subject matter in another independent proceeding”); Anderson v. Southern Guaranty Ins. Co., 235 Ga. App. 306, 310, 508 S.E.2d 726 (1998) (witness’ “election to testify in [a] prior criminal trial did not waive her rights under the Fifth Amendment in [subsequent separate proceeding]”); Novak v. Rathnam, 106 Ill. 2d 478, 484, 478 N.E.2d 1334 (1985) (“[a]n accused who testified in one proceeding does not waive his right to invoke the self-incrimination privilege in a separate and independent proceeding”); State v. Knowles, 395 So. 2d 678, 680 (La. 1981) (“[o]ne can waive silence at one trial and assert the right as to [the] same matter in a subsequent [separate] trial”); State v. Linscott, 521 A.2d 701, 703 (Me. 1987) (witness who previously testified at own criminal trial still entitled to invoke self-incrimination privilege at subsequent trial of alleged accomplice; noting this “nearly universal rule,” contempt finding reversed); Commonwealth v. Borans, 338 Mass. 453, 457-58, 446 N.E.2d 703 (1983) (“ ‘[i]t is the majority rule that waiver by testimony is limited to the proceeding in which it is given and does not extend to subsequent proceedings’ ”); Imboden v. Romines, 760 S.W.2d 130, 134 (Mo. App. 1988) (“[i]n federal courts, as well as state courts, the waiver of the privilege against self-incrimination is ‘limited to the particular proceeding in which the witness volunteers the testimony or the accused takes the stand’ ”); State v. Roberts, 136 N.H. 731, 745, 622 A.2d 1225 (1993) (“[I]t is hornbook law that the waiver [of the self-incrimination privilege] is limited to the particular proceeding in which the witness appears. . . . The majority rule preserves a witness’s right to assert the privilege [even] in subsequent, distinct stages of a single proceeding.” [Citation omitted; internal quotation marks omitted.]); State v. Decola, 33 N.J. 335, 346, 164 A.2d 729 (1960) (recognizing that “[¡Judicial decisions are virtually unanimous” that waiver of self-incrimination privilege in one proceeding does not carry over to another, independent proceeding); State v. Crislip, 110 N.M. 412, 415, 796 P.2d 1108 (App.), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990) (“ ‘A person who has waived his [self-incrimination] privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding. The privilege attaches to the witness in each particular case in which he may be called on to testily, and whether or not he may claim it is to be determined without reference to what he said when testifying as a witness on some other trial, or on a former trial of the same case, and without reference to his declarations at some other time or place.’ ”); State v. Hart, 66 N.C. App. 702, 705, 311 S.E.2d 630 (1984) (“witness who testifies to incriminating matters in one proceeding does not thereby waive the right to refuse to answer questions concerning such matters at a subsequent hearing or trial”); State v. Rawls, 252 Or. 556, 558-59, 451 P.2d 127 (1969) (“the weight of authority and the general rule often repeated in American jurisprudence is that by testifying at a . . . previous trial, a witness does not waive his right to claim the [self-incrimination] privilege at a later trial”); Commonwealth v. Rodgers, 472 Pa. 435, 451 n.6, 372 A.2d 771 (1977) (“[t]he waiver of the privilege against self-incrimination in one proceeding does not affect the right to invoke it in an independent proceeding”); Hummell v. Superior Court, 100 R.I. 54, 57, 211 A.2d 272 (1965) (“[substantial authority supports the proposition that one who testifies [in one proceeding] does not thereby waive the privilege of refusing to testify in some subsequent proceeding on the ground of self-incrimination”); Davis v. State, 501 S.W.2d 629, 630 (Tex. Crim. App. 1973) (“a waiver [of the self-incrimination privilege] does not extend beyond the particular proceeding [at which the waiver occurred] and [thus] by voluntarily testifying at one’s own trial the witness does not lose his privilege at a later proceeding [i.e., a coaccused’s trial]”); Stone v. State, 85 Wash. 2d 342, 344, 534 P.2d 1022 (1975) (“established rule is that a waiver of the privilege against self-incrimination by testifying at one proceeding does not extend to a later, separate proceeding”); State v. Whiting, 136 Wis. 2d 400, 413, 402 N.W.2d 723 (1987) (“A person who has waived the [self-incrimination] privilege in one proceeding is not estopped from asserting it as to the same subject matter in a subsequent proceeding. ... [A] fifth amendment waiver is limited to the particular proceeding in which the waiver occurs.” [Citation omitted.]).

       General Statutes § 54-47a provides: “(a) Whenever in the judgment of the Chief State’s Attorney, a state’s attorney or the deputy chief state’s attorney, the testimony of any witness or the production of books, papers or other evidence of any witness (1) in any criminal proceeding involving narcotics, arson, bribery, gambling, election law violations, felonious crimes of violence, any violation which is an offense under the provisions of title 22a, corruption in the executive, legislative or judicial branch of state government or in the government of any political subdivision of the state, fraud by a vendor of goods or services in the medical assistance program under Title XIX of the Social Security Act amendments of 1965, as amended, any violation of chapter 949c, or any other class A, B or C felony or unclassified felony punishable by a term of imprisonment in excess of five years for which the Chief State’s Attorney or state’s attorney demonstrates that he has no other means of obtaining sufficient information as to whether a crime has been committed or the identity of the person or persons who may have committed a crime, before a court or grand jury of this state or (2) in any investigation conducted by an investigatory grand jury as provided in sections 54-47b to 54-47g, inclusive, is necessary to the public interest, the Chief State’s Attorney, the state’s attorney, or the deputy chief state’s attorney, may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify or produce evidence subject to the provisions of this section.
      “(b) Upon the issuance of the order such witness shall not be excused from testifying or from producing books, papers or other evidence in such case or proceeding on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence, and no testimony or evidence so compelled, and no evidence discovered as a result of or otherwise derived from testimony or evidence so compelled, may be used as evidence against him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence. Whenever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence, the burden shall be upon the person offering the challenged evidence to establish a source independent of the compelled testimony or evidence.”


author: VERTEFEUILLE, J.

text:
    DAVID ISRAEL ET AL. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ET AL.
    (SC 16474)
    Sullivan, C. J., and Norcott, Palmer, Vertefeuille and Zarella, Js.

      Argued November 1, 2001
    officially released February 19, 2002

      David M. Cohen, with whom was Daniel M. Young, for the appellants (plaintiffs).

      John W. Lemega, with whom, on the brief, were Daniel P. Scapellali and Steven H. Broer, for the appellees (defendants).
   Opinion

VERTEFEUILLE, J.

The dispositive issue in this case, which comes to us upon acceptance of two certified questions from the United States Court of Appeals for the Second Circuit, is whether certain language in an umbrella insurance policy issued by the defendants is ambiguous, with the result that the policy must be construed so as to provide the plaintiffs with coverage. We answer the first certified question in the affirmative.

The named plaintiff, David Israel (plaintiff), brought this breach of contract action individually and as personal representative of the estate of his wife, Susan Israel, in the Superior Court after the defendants, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company, denied the plaintiffs claim for underinsured motorist benefits. The defendants removed the case to the United States District Court for the District of Connecticut. The District Court rendered summary judgment in favor of the defendants, from which the plaintiff appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals then certified two questions of law to this court, which we accepted. See footnote 2 of this opinion. We conclude that the insurance policy in question is ambiguous and, therefore, we construe the policy so as to afford the plaintiff underinsured motorist coverage.

The following stipulated facts are relevant to our resolution of the certified questions. The plaintiff was injured, and his wife was killed, when their automobile, which he was driving and in which his wife was a passenger, collided with a vehicle driven by an underinsured motorist. The underinsured motorist had automobile liability insurance, but his coverage fell short of fully compensating the plaintiff and the estate of his wife. Following exhaustion of the underinsured motorist’s coverage, the plaintiff filed a claim for underinsured motorist benefits under a personal liability umbrella insurance policy issued by the defendants to the plaintiffs mother, with whom he lived on a part-time basis. The defendants denied the claim because, inter alia, the plaintiff had failed to maintain underlying uninsured motorist coverage on his automobile, as allegedly required by his mother’s insurance policy. The plaintiff thereafter initiated the underlying litigation and appeal.

We begin by setting forth the standard of review that governs our resolution of the certified question. “[Construction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 543, 687 A.2d 1262 (1996).

The issue that we must resolve is whether the umbrella policy issued by the defendants is ambiguous because it is inconsistent regarding the consequences of the plaintiffs failure to maintain the underlying coverage required by the policy. Specifically, we must decide if the policy is ambiguous as to whether such failure vitiates the umbrella coverage, or merely results in the insured being personally responsible for the amount of the required underlying coverage before the umbrella coverage takes effect. We conclude that the policy is ambiguous.

The policy at issue in the present case consists of four parts: a nine page booklet entitled “Personal Liability Umbrella Policy” (umbrella booklet), an addendum to that booklet entitled “Uninsured Motor Vehicle Coverage” (uninsured addendum), a declarations page, and four pages of endorsements. The umbrella booklet provides in relevant part: “YOUR DUTIES TO US. These are things you must do for us. We may not provide coverage if you refuse to .... 4. maintain your underlying insurance. All insurance listed in the Declarations must be maintained at all times. The limits listed in the Declarations are the minimum you must maintain. If the required underlying limits are not maintained, you will be responsible for the underlying limit amount of any loss. ...” (Emphasis added.)

The uninsured addendum provides in relevant part as follows: “Coverage U—Uninsured Motor Vehicle . . . These conditions apply: 1. You must maintain underlying limits for uninsured motorist motor vehicle coverage equal to the limits listed in the Declarations. If these underlying limits are not maintained, this coverage will not apply. . . . All other provisions of this policy apply.” (Emphasis added.)

The plaintiff claims that these provisions conflict, creating an uncertainty as to the status of the umbrella coverage when the underlying coverage is not maintained and rendering the policy ambiguous. The plaintiff therefore claims that the policy must be construed so as to provide him with coverage. We agree with the plaintiff.

Our analysis of the language of the insurance contract is governed by the well established principle of insurance law that “policy language will be construed as laymen would understand it and not according to the interpretation of sophisticated underwriters, and that ambiguities in contract documents are resolved against the party responsible for its drafting; the policyholder’s expectations should be protected as long as they are objectively reasonable from the layman’s point of view. . . . The premise behind the rule is simple. The party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests. ... A further, related rationale for the rule is that [s]ince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity are resolved in favor of the latter.” (Internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., supra, 239 Conn. 544. This canon, commonly styled contra proferentem, is more rigorously applied in the context of insurance contracts than in other contracts. Id., 545.

The doctrine of contra proferentem applies, however, only if we conclude that the language of the insurance policy is ambiguous. Thus, we must decide whether, reading the policy “from the perspective of a reasonable layperson in the position of the purchaser of the policy,” the policy is ambiguous. Ceci v. National Indemnity Co., 225 Conn. 165, 168, 622 A.2d 545 (1993). In construing the document, we “look at the [policy] as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.” (Internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., supra, 239 Conn. 545-46. Utilizing this approach, we conclude that the policy language is ambiguous.

The “Your Duties to Us” provision of the umbrella booklet and the “Coverage U” section of the uninsured addendum provide the defendants with inconsistent remedies for the plaintiffs failure to maintain the requisite underlying insurance on his automobile. The first provision indicates that in the event of an insured’s failure to maintain underlying coverage, the insured will be responsible for any loss up to the amount of the required underlying coverage before the umbrella coverage takes effect. The latter provision provides that the insured forfeits umbrella coverage completely if he or she does not maintain the requisite underlying coverage.

The language of the policy does not resolve this conflict in any manner that is comprehensible to a lay insured. It simply is unclear from the language of the policy whether the provision of the umbrella booklet or the section of the uninsured addendum is controlling in the event of an insured’s failure to maintain the necessary underlying coverage. Thus, it is not possible to give effect to both of these provisions in a manner that resolves the ambiguity created by the policy language. “[L]eaving a layperson to sort out the ambiguities and misleading inconsistencies in the present policy is precisely the problem that the rules of insurance policy construction were designed to avoid.” (Internal quotation marks omitted.) Id., 546-47. We therefore conclude that the conflict between the language in the “Your Duties to Us” provision of the umbrella booklet and the language in the “Coverage U” section of the uninsured addendum renders the policy ambiguous.

The defendants concede that the umbrella booklet provision applies generally to the entire policy, including the uninsured addendum. They claim, however, that because the “Coverage U” section of the uninsured addendum is an endorsement, it controls other, more general policy provisions. We reject the defendants’ argument because we disagree with their assertion that the “Coverage U” section is an endorsement. It is clear from the text of the policy that when the defendants issued a policy endorsement, they explicitly labeled the endorsement as such. There are two endorsements in the policy at issue in the present case, and they are entitled, respectively, “Policy Endorsement” and “Amendatory Endorsement.” In accordance with then-status as policy endorsements, these sections clearly and unambiguously indicate to the reader that then-terms supersede other terms in the policy. In contrast, the word endorsement does not appear in the uninsured addendum, and the “Coverage U” section of that addendum in no way suggests that its terms control over other policy terms.

The defendants further argue that, even if the “Coverage U” section of the uninsured addendum is not an endorsement, the language of that section clearly indicates to the reader that the condition contained therein is specific to that section and thus controls over the more general “Your Duties to Us” provision in the umbrella booklet. Specifically, the defendants claim that the following language unambiguously indicates that the conditions contained in the “Coverage U” section control over more general policy provisions: “These conditions apply: 1. You must maintain underlying limits for uninsured [motorist] motor vehicle coverage equal to the limits listed in the Declarations. If these underlying limits are not maintained, this coverage will not apply. . . . All other provisions of this policy apply." (Emphasis added.)

In advancing this argument, the defendants rely upon the well established principle of contractual interpretation that “the particular language of a contract must prevail over the general.” Miller Bros. Construction Co. v. Maryland Casualty Co., 113 Conn. 504, 514, 155 A. 709 (1931). This canon is of no help to the defendants in the present case, however, because the language upon which the defendants rely does not support the claim that the “Coverage U” section of the uninsured addendum is “specific.” Indeed, the use of the phrase “[a]ll other provisions of this policy apply,” without accompanying language indicating that the provisions of the “Coverage U” section control over other generally applicable policy provisions, exacerbates the ambiguity by seemingly giving effect to the conflicting language in the umbrella booklet, leaving no basis for the plaintiff to determine which provision is applicable.

Because we conclude that the policy language is ambiguous, the doctrine of contra proferentem properly is applicable. Thus, we must construe the policy in a manner that affords coverage to the insured. See Hansen v. Ohio Casualty Ins. Co., supra, 239 Conn. 548.

The first certified question that we were asked to answer is: “Where an umbrella insurance policy providing uninsured motorist coverage states that (1) coverage will not apply if underlying insurance is not maintained; (2) coverage may not be provided if the insured fails to maintain underlying coverage; and (3) if underlying coverage is not maintained, the insured will be responsible for the underlying limit amount of any loss, is the policy ambiguous as to whether it completely denies uninsured motorist coverage to an insured who fails to maintain underlying insurance or whether in that event it only requires the insured to bear responsibility for the loss up to the underlying limit amount, and should the policy therefore be interpreted to provide umbrella uninsured motorist coverage in whole or in part to an insured who has failed to maintain underlying coverage?” Our answer is: Yes.

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

In this opinion the other justices concurred.

       General Statutes § 51-199b, the Uniform Certification of Questions of Law Act, provides in relevant part,: “(d) The Supreme Court may answer a question of law certified to it by a court of the United States ... if the answer maybe determinative of an issue in pending litigation in the certifying court and if there is no controlling appellate decision, constitutional provision or statute of this state. . . .”

       The Second Circuit Court of Appeals asked this court to answer the following two questions: (1) “Where an umbrella insurance policy providing uninsured motorist coverage states that (1) coverage will not apply if underlying insurance is not maintained; (2) coverage may not be provided if the insured fails to maintain underlying coverage; and (3) if underlying coverage is not maintained, the insured will be responsible for the underlying limit amount of any loss, is the policy ambiguous as to whether it completely denies uninsured motorist coverage to an insured who fails to maintain underlying insurance or whether in that event it only requires the insured to bear responsibility for the loss up to the underlying limit amount, and should the policy therefore be interpreted to provide umbrella uninsured motorist coverage in whole or in part to an insured who has failed to maintain underlying coverage?” (2) “Where the declarations page of an insurance policy states, ‘If this policy is terminated we will give you and the Mortgagee/ Lienholder written notice in compliance with the policy or as required by law’ and the definitions section of the policy defines ‘you’ as any insured, is the policy ambiguous as to whether ‘you’ refers to the named insured only or to all insureds and should the policy therefore be interpreted to require only the named insured to maintain underlying insurance?” Israel
        v. State Farm, Mutual Automobile Ins. Co., 239 F.3d 127, 129 (2d Cir. 2000).
      Because we answer the first certified question in the affirmative, we need not reach the second certified question.

       References herein to the plaintiff are to David Israel in his personal and representative capacities.

       The Second Circuit Court of Appeals affirmed the District Court’s conclusion, contrary to the defendants’ assertion, that the plaintiff was an “insured” under his mother’s umbrella policy by virtue of his being a part-time resident of his mother’s household. Israel v. State Farm Mutual Automobile Ins. Co., 239 F.3d 127, 132 (2d Cir. 2000). That determination is not challenged by the defendants and was not included in the questions of law certified to this court.

       For example, the “Amendatory Endorsement” section begins by providing: “Under ‘EXCLUSIONS,’ item 10. is deleted and will not apply to this policy.

        “Under‘Other Conditions,'item 11. Cancellation and item 12. Non-Renewal are replaced by the following . . . .”


author: NORCOTT, J.

text:
    STATE OF CONNECTICUT v. RAYMOND APONTE
    (SC 16546)
    Borden, Norcott, Katz, Palmer and VertefeuiUe, Js.

      Argued November 29, 2001
    officially released February 26, 2002

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and John F. Blawie, senior assistant state’s attorney, for the appellee (state).
   Opinion

NORCOTT, J.

The principal issue in this certified appeal is whether the trial court’s instructions to the jury improperly imposed on the jury a mandatory presumption, thereby shifting the burden of proof from the state to the defendant and depriving the defendant of a constitutionally fair trial. Although the trial court’s instructions contained language that we have used in the past, the defendant claims that this language was improper in light of the United States Supreme Court’s decision in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).

The defendant, Raymond Aponte, was convicted, following a jury trial, of the crimes of murder in violation of General Statutes § 53a-54a (a) and conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a). The defendant was sentenced to a total effective term of forty-five years imprisonment. On appeal to the Appellate Court, the defendant claimed that the trial court, Stodolink, J., improperly: (1) failed to charge the jury that the crime of conspiracy to commit murder requires a specific intent to cause the death of the victim; (2) instructed the jury that one who uses a deadly weapon on the vital part of another person will be deemed to have intended the probable result of that act in violation of the principle enunciated in Sandstrom; and (3) charged the jury that the defendant could be found guilty of murder as a principal when there was insufficient evidence to support such a conviction. State v. Aponte, 63 Conn. App. 82, 83, 774 A.2d 1035 (2001). The Appellate Court affirmed the judgment of the trial court. Id., 92. The defendant then petitioned this court for certification to appeal, which we granted, limited to the following two issues: (1) “Did the Appellate Court properly conclude that the trial court’s jury instruction regarding the specific intent necessary for a charge of conspiracy to commit murder was constitutionally sufficient?” and (2) “Did the Appellate Court properly conclude that the trial court’s instruction regarding the use of a deadly weapon on the vital part of another was constitutionally sufficient?” State v. Aponte, 256 Conn. 935, 776 A.2d 1150 (2001). We affirm the judgment of the Appellate Court.

The jury reasonably could have found the following facts, which are aptly set forth in the Appellate Court decision. “On January 3, 1996, at approximately 12:55 p.m., the victim, Aldrich Mitchell, and two eyewitnesses, Luz Rosado and Juan Vasquez, were standing in front of Rosado’s apartment in the Green Homes apartment complex on Harral Avenue in Bridgeport. As the three of them stood talking, three males approached. Two of them were wearing ski masks, sunglasses and hoods that covered their faces. Vasquez later identified the three men as Luis Delvalle, Jose Garcia and the defendant. All three men were armed.

“The victim attempted to enter Rosado’s apartment and was told by one of the men not to enter the apartment but to come with them. The victim followed the three men away from Rosado’s apartment and toward the driveway of the Green Homes apartment complex. Rosado went into her apartment and watched through her window as the victim left with the three men. The victim turned and ran away from the three men. All three men then turned and fired their weapons at the victim. Rosado heard seven or eight gunshots. The three men then fled, and Vasquez ran to the victim. Vasquez observed a bullet wound to the victim’s head. Vasquez waited with the victim for the ambulance to come and then left the scene after the victim was taken to a hospital.” State v. Aponte, supra, 63 Conn. App. 83-84.

I

The defendant first claims that the trial court improperly instructed the jury regarding the specific intent necessary to find him guilty of conspiracy to commit murder. He argues that the trial court failed to instruct the jury that the intent required was the specific intent to commit murder. The defendant claims specifically that, in order for the instruction to be sufficient, the trial court was required to instruct the jury that, at the time he entered into the conspiracy, he specifically had intended the death of the victim. The Appellate Court determined that the trial court sufficiently had instructed the jury as to the specific intent to murder. We agree with the Appellate Court.

The defendant did not object to the instruction at trial and now seeks to prevail pursuant to State v. Gold ing, 213 Conn. 233, 238-42, 567 A.2d 823 (1989). Under Golding, a defendant may prevail on a claim not preserved at trial only if the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40.

The record is adequate to review the defendant’s alleged claim of error and the claim—that his due process rights were violated—is of constitutional magnitude. Accordingly, he has satisfied the first two prongs of Golding and his claim is reviewable. The defendant’s claim fails, however, under the third prong of Golding review in that there was no clear violation of his constitutional rights and the trial court’s instruction did not deprive him of a fair trial.

“Our analysis begins with a well established standard of review. When reviewing the challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).

“[A]n accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993). “It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . [T]he failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Citations omitted; internal quotation marks omitted.) State v. Denby, supra, 235 Conn. 483-84.

Our examination of the trial court’s instruction regarding the charge of conspiracy to commit murder reveals that each element of the crime was set forth sufficiently, and that it is not reasonably likely that the jury was misled. The charge outlined the elements of the crime of conspiracy, emphasizing that the jury must find that the defendant had the “specific intent to violate the law when he entered into the agreement to engage in conduct constituting a crime,” and that the crime in question was murder. Specifically, the trial court defined murder as requiring the intent “to cause the death of another person and that in accordance with that intent the defendant caused the death of that person.” The trial court instructed the jury as to the elements necessary to prove that the defendant had acted as the principal or as an accessory to the murder. The trial court also instructed the jury that the state of mind required in order to find the defendant guilty of conspiracy to commit murder was that of the intent to cause the death of the victim. In supplemental instructions requested by the jury after two days of deliberations, the court reasserted the separate elements comprising the charge of conspiracy to commit murder. After the defense objected to the trial court’s charge regarding the element of specific intent required to establish the crime of conspiracy to commit murder, the trial court reinstructed the jury that “the question is whether there was a conspiracy to commit murder as I’ve defined that for you.” Thus, by the court’s reference both to murder and its elements, including the intent to kill, the court adequately defined the mens rea for conspiracy to commit murder. We conclude that the charge as a whole was sufficient to instruct the jury as to its role, namely, to determine whether the state had proven each of the specific elements of the crime of conspiracy to commit murder.

II

The defendant next claims that the trial court’s instruction regarding the use of a deadly weapon on the vital part of another person was constitutionally deficient because it established a mandatory presumption and improperly shifted the burden of proof to the defendant. Again, this claim is raised pursuant to Golding and we find that it fails to meet the Golding standard. Although the record is adequate for review and the claim of the violation of due process rights is constitutional, we disagree with the defendant that the constitutional violation clearly exists and clearly deprived him of a fair trial.

The trial court gave the following jury instruction regarding the crime of murder and, specifically, the element of intent: “An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to it [and] immediately following the death. One who uses a deadly weapon on the vital part of another will be deemed to have intended the probable result of that act [and] from such a circumstance a proper inference may be drawn that there was an intent to kill.”

The defendant argues that this instruction impermissibly shifted to him the burden of proof regarding intent because the charge created a mandatory presumption that he had the intent to kill solely by virtue of his use of a deadly weapon. We have used this language in the past when upholding convictions in the face of sufficiency of the evidence claims. Specifically, we have upheld convictions when the instruction has been used to explain why a jury reasonably could have inferred, on the basis of the evidence, that the defendant had intended to kill the victim by the use of a deadly weapon. See State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996) (“[o]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill” [internal quotation marks omitted]); State v. Stanley, 223 Conn. 674, 680, 613 A.2d 788 (1992) (same). The defendant argues, however, that this language is constitutionally deficient in light of the United States Supreme Court’s decision in Sandstrom.

“In Sandstrom v. Montana, supra, [442 U.S.] 517-24, 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 jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. . . . We have, however, recognized that the rule of Sandstrom must not be oversimplified. . . . Sandstrom does not invalidate, for example, the use of an entirely permissive inference or presumption, which allows . . . the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. ... 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.” (Citations omitted; internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 545-46, 679 A.2d 902 (1996).

In the present case, the trial court’s instruction was qualified, both immediately preceding and following the challenged language, by its use of the permissive “may.” The instruction stated: “An intent to cause death may be inferred from circumstantial evidence .... One who uses a deadly weapon on the vital part of another will be deemed to have intended the probable result of that act [and] from such a circumstance a proper inference may be drawn that there was an intent to kill.” (Emphasis added.) We have determined previously that the inclusion of such permissive language tempers the challenged portion of the instruction and ensures that a reasonable jury will not inteipret the charge in an unconstitutional manner. See State v. Pina, 186 Conn. 261, 263, 440 A.2d 967 (1982) (“[i]t is the lack of qualifying instructions as to the legal effect of the presumption, [that] mak[es] it possible for a reasonable jury to interpret the use of the word presume in an unconstitutional manner” [internal quotation marks omitted]); State v. Stankowski, 184 Conn. 121, 151-53, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981) (“The sentence before the portion objected to was [a] person’s intentions may be inferred from his conduct. . . . [W]e conclude that the attacked portions of this charge, when considered in light of the charge as a whole, including the explanatory instructions on inference and circumstantial evidence, could not be reasonably construed to require a conclusive presumption or a shifting of the burden of proof, and did not deprive the defendant of his due process right to a fair trial.” [Citations omitted; emphasis in original; internal quotation marks omitted.]).

Thus, we conclude that the qualifying language included in the trial court’s charge served to protect the defendant’s constitutional rights and the instruction, therefore, did not contain a Sandstrom violation. With the qualifying language, the charge, “will be deemed to have intended,” was not harmful in the present case. Nevertheless, it has become apparent to us, after further consideration of the issue, that the challenged portion of the charge, when viewed in isolation from the qualifying language concerning the permissive nature of the inference, could give rise to a danger of juror misunderstanding. See State v. Schiappa, 248 Conn. 132, 175, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). “We believe that the time has come for us to ensure that the challenged language is not included in any future jury instructions.” Id. Accordingly, in the exercise of our supervisory authority over the administration of justice, we direct our trial courts in the future to refrain from instructing jurors that one who uses a deadly weapon on the vital part of another “will be deemed to have intended” the probable result of that act and that from such a circumstance the intent to kill properly may be inferred.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . .

       General Statutes § 53a-48 (a) provides: “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 (he performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       Detective Leonard Sattani of the Bridgeport police department investigated the shooting. He discovered eleven spent cartridge casings and one spent bullet at the scene. Edward McPhillips, a firearms examiner for the state of Connecticut, examined the bullet and cartridge casings. He testified that five of the cartridges came from one gun and that the remaining six could have come from one gun or several different guns.

       Malka B. Shah, an associate medical examiner for the state of Connecticut, performed an autopsy on the victim. She testified that a single bullet entered the victim’s body at the lower part of his shoulder, initially exited at the top of his shoulder, reentered at the back of his head, and came to rest at the left side of his jaw. The bullet damaged the victim’s spinal cord and brain, thereby causing his death. Shah certified that the cause of the victim’s death was a gunshot wound to the head and neck.


author: SULLIVAN, C. J.

text:
    IN RE CANDACE H.

    (SC 16555)
    Sullivan, C. J., and Norcotl, Katz, Vertefeuille and Zarella, Js.
    Argued November 27, 2001
    officially released February 26, 2002

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Benjamin Zivyon, assistant attorneys general, for the appellant (petitioner).

      Carolyn C. Mihalek, for the appellee (respondent mother).

      Sharon Wicks Domfeld, for the appellees (intervening foster parents).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Opinion

SULLIVAN, C. J.

This certified appeal arises from a petition by the department of children and families (department) for, inter alia, a determination of neglect as to the minor child, Candace H. (child). By agreement of the parties, the child was adjudicated neglected and was committed to the temporary custody of the department. On December 3, 1999, the department filed a motion with the trial court pursuant to General Statutes (Rev. to 1999) § 46b-129 (k) (1) for review and approval of a permanency plan with respect to the child. On February 3, 2000, the respondent mother of the child (respondent) filed a motion for visitation. After conducting a hearing, the trial court granted the department’s motion for approval of the permanency plan and denied the motion for visitation. In denying the motion for visitation, the trial court determined that court ordered visitation was not in the child’s best interests, but it did not bar future visitation entirely. Rather, the court concluded that the department might, in its discretion, together with the foster parents, permit future visitation by the respondent. On June 1, 2000, the department filed a petition for termination of parental rights as to the child.

On March 30, 2000, the respondent appealed to the Appellate Court from the trial court’s denial of her motion for visitation with the child. The Appellate Court reversed, in part, the judgment of the trial court, concluding that the trial court properly had denied the respondent’s motion for visitation; In re Candace II., 63 Conn. App. 493, 502, 776 A.2d 1180 (2001); but impermissibly had delegated to the department and to the child’s foster parents “its independent obligation to determine and further the child’s best interest.” Id., 504. The department then filed its petition for certification to appeal to this court, which we granted. In re Candace H., 257 Conn. 907, 777 A.2d 686 (2001).

On October 10,2001, the respondent voluntarily relinquished her parental rights to the child. Thereafter, this court, sua sponte, ordered the parties to file supplemental briefs on the issue of whether the respondent’s voluntary relinquishment of her parental rights rendered the appeal moot, and, if so, whether the appeal qualified for review under the “ ‘capable of repetition, yet evading review’ ” exception to the mootness doctrine. Loisel v. Rowe, 233 Conn. 370, 382, 383-88, 660 A.2d 323 (1995). The department, which had filed a supplemental brief arguing that the issue was capable of repetition, yet evading review, subsequently filed a motion requesting, in the event that this court determines the appeal to be moot that this court vacate the judgment of the Appellate Court to the extent that it reversed the trial court’s decision empowering the department and the foster parents to determine the propriety of any future visitation.

After examining the record and considering the briefs and oral arguments of the parties, we conclude that this appeal has been rendered moot and should be dismissed. See In re Jessica M., 250 Conn. 747, 749, 738 A.2d 1087 (1999). “When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481,493, 778 A.2d 33 (2001); State v. Daniels, 248 Conn. 64, 70, 726 A.2d 520 (1999); In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994). We further determine that the issue presently before the court is not capable of repetition, yet evading review and, therefore, does not qualify for review under the exception to the mootness doctrine as enunciated in Loisel v. Rowe, supra, 233 Conn. 382-88. We conclude, moreover, that the judgment of the Appellate Court in this matter should be vacated. Vacatur is appropriate when the public interest is served. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26, 115 S. Ct. 386, 130 L. Ed. 2d 233 (1994).

The appeal is dismissed and the judgment of the Appellate Court is vacated.

In this opinion the other justices concurred.

       We granted the petition of the department of children and families for certification to appeal from the judgment of the Appellate Court; In re Candace H., 63 Conn. App. 493, 776 A.2d 1180 (2001); limited to the following issue: “Did the Appellate Court properly conclude that the trial court impermissibly delegated to the department of children and families the responsibility of determining, in the future, whether visitation by the respondent mother is in the best interests of the child?” In re Candace H., 257 Conn. 907, 777 A.2d 686 (2001).

       General Statutes (Rev. to 1999) § 46b-129 (k) (1) provides in relevant part: “Ten months after the adjudication of neglect of the child or youth or twelve months after the vesting of temporary care and custody pursuant to subsection (b) of this section, whichever is earlier, the commissioner shall file a motion for review of a permanency plan and to extend or revoke the commitment. Ten months after a permanency plan has been approved by the court pursuant to this subsection, unless the court has approved placement in long-term foster care with an identified person or an independent living program, or the commissioner has filed a petition for termination of parental rights or motion to transfer guardianship, the commissioner shall file a motion for review of the permanency plan to extend or revoke the commitment. ...”

       The respondent father, who is not a party to this appeal, consented to the termination of his parental rights on May 16, 2001.

       The child’s paternal aunt and uncle are her foster parents. In re Candace H., supra, 63 Conn. App. 496.

       “Vacatur is‘commonly utilized . . . to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.’ United States v. Munsingwear, Inc., 340 U.S. 36, 41, 71 S. Ct. 104, 95 L. Ed. 36 (1950).” In re Alex M., 59 Conn. App. 389, 393, 757 A.2d 66 (2000).