source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    William L. Baxter v. Sturm, Ruger and Company, Inc.
    (14881)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.

      Argued June 2
    decision released July 26, 1994

      William C. Longa, with whom was Beverly Stauffer Knapp, for the appellant (plaintiff).

      Robert L. Danaher, for the appellee (defendant).
   Peters, C. J.

The sole issue in this appeal, on certification from the United States Court of Appeals for the Second Circuit, is whether Connecticut law treats a foreign statute of repose as substantive or procedural for choice of law purposes. The plaintiff, William L. Baxter, filed a product liability action in the United States District Court for the District of Connecticut, alleging that the defendant, Sturm, Ruger and Company, Inc., was liable for the injuries received by his son, Andrew T. Baxter, from the accidental discharge of a weapon made by the defendant. The District Court granted the defendant’s motion for summary judgment on the ground that the plaintiff’s claims were time-barred. The plaintiff appealed to the Second Circuit Court of Appeals, arguing that the District Court had improperly held that the Oregon statute of repose governed his claims. The Second Circuit Court of Appeals, sua sponte, certified the choice of law question to this court, which we accepted pursuant to General Statutes § 51-199a and Practice Book § 4168. We conclude that statutes of repose, such as Oregon Revised Statutes (ORS) § 30.905 (1), are indistinguishable from statutes of limitation for purposes of choice of law characterization and, accordingly that, under the established rule in Connecticut for statutes of limitation, ORS § 30.905 (1) should properly be characterized as procedural.

The record certified by the Second Circuit Court of Appeals provides the following facts. In 1990, the plaintiffs son was shot in the abdomen when the plaintiffs firearm accidentally discharged. The firearm had been designed and manufactured by the defendant in Connecticut. In 1968, the firearm had been shipped to a distributor in Oregon, where it was purchased and given to the plaintiff, an Oregon resident.

On August 31, 1991, the plaintiff initiated a product liability action against the defendant in the District Court. The defendant raised several affirmative defenses to the complaint, including the assertion that the plaintiffs claims were time-barred under ORS § 30.905 (1), which is a statute of repose. Each party moved for summary judgment on that issue.

In the District Court, in the Second Circuit Court of Appeals, and in this court, the parties have acknowledged that the proper characterization of ORS § 30.905 (1) is dispositive of the defendant’s motion for summary judgment. If the statute is substantive, as the District Court held, it governs this litigation and bars the plaintiff’s claims. The absence of clearly controlling Connecticut precedents on this question of characterization persuaded the Second Circuit Court of Appeals to seek our guidance by way of certification.

Our analysis of the certified question can best be pursued by considering three underlying issues: (1) under Connecticut law, what are the criteria that determine whether a statute of limitation is procedural or substantive for choice of law purposes; (2) for what purposes does Connecticut law distinguish between statutes of limitation and statutes of repose; and (3) for choice of law purposes, does Connecticut law distinguish between statutes of limitation and statutes of repose? This analysis leads us to conclude that, under Connecticut law, ORS § 30.905 (1) should be characterized as procedural and, therefore, that the plaintiffs claim is not time-barred.

I

Connecticut law has well developed criteria that determine whether a statute of limitation is procedural or substantive for choice of law purposes. “[Under the general rule applicable in the usual case . . . statutes of limitation relate to the remedy as distinguished from the right.” Morris Plan Industrial Bank v. Richards, 131 Conn. 671, 673, 42 A.2d 147 (1945). “It is undisputed that, as a principle of universal application, remedies and modes of procedure depend upon the lex fori.” Thomas Iron Co. v. Ensign-Bickford Co., 131 Conn. 665, 668, 42 A.2d 145 (1945); see also Morris Plan Industrial Bank v. Richards, supra, 673. On the other hand, “if the limitation is so interwoven with . . . the cause of action as to become one of the congeries of elements necessary to establish the right, that limitation goes with the cause of action wherever brought.” Thomas Iron Co. v. Ensign-Bickford Co., supra, 669.

Under our law, proper characterization of a statute of limitation, therefore, requires a determination of whether the limitation is directed at the cause of action “ ‘so specifically as to warrant saying that it qualifie[s] the right.’ ” Thomas Iron Co. v. Ensign-Bickford Co., supra, 131 Conn. 670, quoting Davis v. Mills, 194 U.S. 451, 454, 24 S. Ct. 692, 48 L. Ed. 1067 (1903). If so, the limitation is characterized as substantive, and the lex loci applies. Morris Plan Industrial Bank v. Richards, supra, 131 Conn. 673-74. Otherwise, the limitation merely qualifies the remedy rather than the right, it is characterized as procedural, and the lex fori applies. Id., 673; Thomas Iron Co. v. Ensign-Bickford Co., supra, 669.

A limitation period is considered “one of the congeries of elements necessary to establish the right,” and therefore characterized as substantive, only when it applies to a new right created by statute. Thomas Iron Co. v. Ensign-Bickford Co., supra, 131 Conn. 669; see Morris Plan Industrial Bank v. Richards, supra, 131 Conn. 674. In such circumstances, “[t]he time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone.” (Emphasis added.) The Harrisburg, 119 U.S. 199, 214, 7 S. Ct. 140, 30 L. Ed. 358 (1886) (involving action for wrongful death, which did not exist at common law); Morris Plan Industrial Bank v. Richards, supra, 674. Thus, for the limitation period of the lex loci to apply, the underlying right upon which the lawsuit is based must not have existed at common law. Otherwise, the limitation period established by the lex fori governs. Morris Plan Industrial Bank v. Richards, supra, 674 (common law fraud action); Thomas Iron Co. v. Ensign-Bickford Co., supra, 670 (worker’s compensation statute codifying negligence action).

The present case involves product liability claims. Oregon recognized product liability actions at common law. See, e.g., Kearney v. Montgomery Ward & Co., 55 Or. App. 641, 644, 639 P.2d 682 (1982); see also For-syth v. Cessna Aircraft Co., 520 F.2d 608, 610 (9th Cir. 1975). In oral argument before this court the defendant conceded that, if ORS § 30.905 (1) were a statute of limitation, the Thomas Iron Co. rule would apply and ORS § 30.905 (1) would properly be characterized as procedural.

II

Acknowledging that the Connecticut rule for statutes of limitation would not support its motion for summary judgment, the defendant claims that statutes of repose, such as ORS § 30.905 (1), are always substantive. Undoubtedly, statutes of repose differ in some respects from statutes of limitation. “While statutes of limitation are sometimes called ‘statutes of repose,’ the former bars right of action unless it is filed within a specified period of time after injury occurs, while ‘statute[s] of repose’ [terminate] any right of action after a specific time has elapsed, regardless of whether there has as yet been an injury.” Black’s Law Dictionary (6th Ed. 1990) p. 927; see also Trustees of Rowan Technical College v. Hammond Associates, 313 N.C. 230, 234 n.3, 328 S.E.2d 274 (1985). We must therefore consider for what purposes Connecticut law has distinguished between statutes of limitation and statutes of repose.

In several cases in which Connecticut case law has characterized statutes of repose for domestic law purposes, this court has looked to the comparable law for statutes of limitations. A salient example is the case law under General Statutes § 52-577a, which is a statute of repose because the rights that it delimits can expire “before an individual has been injured and the cause of action has begun to accrue." Daily v. New Britain Machine Co., 200 Conn. 562, 583, 512 A.2d 893 (1986); see also Prokolkin v. General Motors Corp., 170 Conn. 289, 297, 365 A.2d 1180 (1976); Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 175, 127 A.2d 814 (1956). Analogizing to the law governing statutes of limitation, we have characterized § 52-577a as procedural for purposes of its retroactive application; Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 525-26, 562 A.2d 1100 (1989); and for purposes of article first, § 10, the open courts provision of the Connecticut constitution. Daily v. New Britain Machine Co., supra, 582-86. As a matter of domestic law, therefore, the characterization of a statute of repose as procedural or as substantive is governed by the same test that applies to statutes of limitation.

Ill

We recognize that the Restatement (Second) of Conflict of Laws cautions against an automatic transfer of characterizations from domestic law into conflict of laws. In § 7, comment d, illustration 3, the Restatement advises that a court “should not hold [a statute] procedural merely because it has previously been so characterized in [a] local law context . . . unless it is convinced that the policy underlying the distinction between substance and procedure in choice-of-law dictates such result.” We must decide, therefore, whether reasons of policy support characterizing a repose statute as procedural or substantive for choice of law purposes in accordance with the rules that we have developed for statutes of limitation.

Whether they take the form of statutes of limitation or of statutes of repose, time constraints on the initiation of product liability actions serve the important public policy of preventing the litigation of stale claims. See, e.g., Daily v. New Britain Machine Co., supra, 200 Conn. 584; Prokolkin v. General Motors Corp., supra, 170 Conn. 297; Vilcinskas v. Sears, Roebuck & Co., supra, 144 Conn. 174-75. “If a person is to be sued for negligence, the claim that he is liable should, in fairness, be brought to his attention soon enough after the claimed act of negligence to permit witnesses to be available for his defense.” Vilcinskas v. Sears, Roebuck & Co., supra, 175; Daily v. New Britain Machine Co., supra, 584. This policy both promotes fairness to defendants and helps to ensure the reliability of the fact-finding process. “For example, some of the eviden-tiary problems that may arise in connection with trying cases involving older products include the fact that an older product is more likely to have undergone misuse or alteration since manufacture, the possibility that a jury may inappropriately apply a standard reflecting subsequent technological development when assessing liability, and the fact that witnesses and documents may be difficult to obtain. See Martin, ‘A Statute of Repose for Product Liability Claims,’ 50 Fordham L. Rev. 745, 747-48 (1982).” Daily v. New Britain Machine Co., supra, 583.

The defendant maintains, however, that the policies effectuated by statutes of repose differ fundamentally from those served by statutes of limitation. The defendant relies on decisions of courts in other jurisdictions that have held statutes of repose to be substantive because, in their view, unlike statutes of limitation, statutes of repose operate as a grant of immunity serving primarily to “relieve potential defendants from anxiety over liability for acts committed long ago”; Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir. 1987), cert. denied, 487 U.S. 1218, 108 S. Ct. 2871, 101 L. Ed. 2d 906 (1988); see also Raithaus v. Saab-Scandia of America, 784 P.2d 1158, 1160-61 (Utah 1989). We are unpersuaded that such a difference in policy exists.

This court has long held that “[i]t is consonant with the purpose of protecting defendants against stale claims that the legislature should enact a statute . . . which may on occasion bar an action even before the cause of action accrues.” Vilcinskas v. Sears, Roebuck & Co., supra, 144 Conn. 175. We have acknowledged that legislatures enact statutes of repose in furtherance of “ ‘the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability’; Johnson v. Star Machinery Co., 270 Or. 694, 701, 530 P.2d 53 (1974).” Daily v. New Britain Machine Co., supra, 200 Conn. 582. It is clear, however, that this rationale applies to statutes of limitation as well. Whether seen as a sanction imposed on plaintiffs who sleep on their rights or as a benefit conferred upon defendants to reduce the risk and uncertainty of liability, statutes of limitation and statutes of repose serve the same public policy of avoiding the litigation of stale claims.

To bolster its policy argument, the defendant relies, as did the District Court, on a number of additional cases from other jurisdictions. In Wayne v. Tennessee Valley Authority, 730 F.2d 392, 401-402 (5th Cir. 1984), cert. denied, 469 U.S. 1159, 105 S. Ct. 908, 83 L. Ed. 2d 922 (1985), a statute of repose was held to be substantive, for choice of law purposes, “[b]ecause the date of injury is not a factor used in computing the running of the time period, and such statutes typically do not have tolling provisions . . . .” Wayne’s test for distinguishing between procedural and substantive statutes is one that we have not applied in the past and we decline to do so now. In our view, the fact that a statute of repose may bar a claim before the cause of action has accrued does not form a basis to distinguish it from a statute of limitation for choice of law purposes.

Our conclusion that Connecticut law makes no distinction, for choice of law purposes, between statutes of limitation and statutes of repose finds support in a number of Connecticut District Court cases. Before the present case, the United States District Court for the District of Connecticut had consistently followed the Thomas Iron Co. rule when characterizing statutes of repose under our choice of law rules. See, e.g., Feldt v. Sturm, Ruger & Co., 721 F. Sup. 403, 406 (D. Conn. 1989) (applying foreign statute of repose because foreign statute forming basis of lawsuit created liability unknown at common law); Kelley v. Goodyear Tire & Rubber Co., 700 F. Sup. 91, 93 (D. Conn. 1987) (Connecticut would classify § 52-577a as procedural for choice of law); Habenicht v. Sturm, Ruger & Co., 660 F. Sup. 52, 55-56 (D. Conn. 1986) (characterizing foreign statute of repose as procedural); Mikulis v. Olin Corp., United States District Court for the District of Connecticut, Docket No. B-80-456, slip op. p. 6 (March 25, 1983) (same); Bowman v. Sturm, Ruger & Co., United States District Court for the District of Connecticut, Docket No. B-82-393, slip op. p. 5 (January 26, 1983) (same); see also Brown v. Merrow Machine Co., 411 F. Sup. 1162, 1164 (D. Conn. 1976); Mizell v. Welch, 245 F. Sup. 143, 144 (D. Conn. 1965). Although the ultimate responsibility for interpreting Connecticut law lies with this court; see General Statutes § 51-199 (a); the concurrence of most of our federal court colleagues strengthens our conviction that our conclusion is sound.

We are persuaded, therefore, that our conclusion that statutes of repose are to be analyzed, for choice of law purposes, by the same test that governs statutes of limitation, is consonant with the Restatement’s admonition. Although domestic law precedents are a useful point of reference, we are not simply importing the characterization of domestic law cases into the choice of law context. Rather, recognizing the basic similarity in the policies served by statutes of limitation and statutes of repose, we are persuaded that it is appropriate to use the same analytic test to determine whether such statutes are procedural or substantive. See, e.g., Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195-96, 286 A.2d 308 (1971) (citing Morris Plan Industrial Bank in characterizing a statute for retroac-tivity purposes).

IY

We therefore hold that statutes of repose, like statutes of limitation, are neither substantive nor procedural per se for choice of law purposes. In any given case, the characterization of the applicable statute of repose depends on the nature of the underlying right that forms the basis of the lawsuit. If the right existed at common law, then the statute of repose is properly characterized as procedural because it functions only as a qualification on the remedy to enforce the preexisting right. If, however, the right is newly created by the statute, then the statute of repose is properly characterized as substantive because the period of repose is so integral a part of the cause of action “as to warrant saying that it qualifie[s] the right.” Davis v. Mills, supra, 194 U.S. 454; Thomas Iron Co. v. Ensign-Bickford Co., supra, 131 Conn. 670. Applying this test in the present circumstances, we conclude that, in light of the common law origin of the law of products liability, ORS § 30.905 (1) is procedural and the plaintiffs cause of action is not time-barred.

The certified question asked: “Is a statute of repose, such as Oregon Revised Statutes § 30.905 (1), properly considered substantive for choice of law purposes under Connecticut law?” Our answer is: No.

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

In this opinion the other justices concurred.

       The Second Circuit Court of Appeals certified the following question to this court: “Is a statute of repose, such as Oregon Revised Statutes § 30.905 (1), properly considered substantive for choice of law purposes under Connecticut law?”
      The initial order certifying the question was dated December 16, 1993. The question was revised to this final form in an order amending opinion dated December 21, 1993. Baxter v. Sturm, Ruger & Co., United States Court of Appeals for the Second Circuit, Docket No. 93-7375 (December 21, 1993).

       General Statutes § 51-199a provides in relevant part: “(b) The supreme court may answer questions of law certified to it by . . . a court of appeals of the United States . . . when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
      “(c) This section may be invoked by an order of [the court of appeals of the United States] upon the court’s own motion or upon the motion of any party to the cause.
      “(d) A certification order shall set forth: (1) The questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose. . . .”
      Practice Book § 4168 provides in relevant part: “[certified questions FROM FEDERAL COURTS]-IN GENERAL
      “The supreme court may answer questions of law certified to it by . . . a court of appeals of the United States . . . when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.”

       Oregon Revised Statutes § 30.905 provides: “time limitation for commencement of action
      “(1) Notwithstanding ORS 12.115 or 12.140 and except as provided in subsection (2) of this section and ORS 30.907, a product liability civil action shall be commenced not later than eight years after the date on which the product was first purchased for use or consumption.
      “(2) Except as provided in ORS 30.907, a product liability civil action shall be commenced not later than two years after the date on which the death, injury or damage complained of occurs.”

       The defendant is a Delaware corporation with corporate offices in Connecticut.

       The Oregon Supreme Court has ruled that subsection (2) of ORS § 30.905 is subordinate to subsection (1). See Sealey v. Hicks, 309 Or. 387, 392, 788 P.2d 435, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 39 (1990). Since the action was filed in 1991, more than eight years after the firearm was purchased in 1968, the action would be time-barred by the eight year statute of repose contained in subsection (1).
      If ORS § 30.905 (1) were to be treated as procedural, on the other hand, then General Statutes § 52-577a would apply and the plaintiffs complaint would be timely. The complaint was brought within the three year limitation period prescribed by § 52-577a (a), and the defendant concedes that the repose provision in subsection (c) of that statute does not apply in this case.

       The defendant also cites numerous other cases compiled in 4 American Law of Products Liability (3d Ed. 1987) § 46.35 n.70. These cases may be organized into two categories according to the nature of the choice of law rule involved. In the first category of cases, the applicable choice of law rule requires the forum court to apply the characterization of the courts of the state that enacted the statute of repose. See, e.g., Walls v. General Motors, Inc., 906 F.2d 143, 145-46 (5th Cir. 1990) (under Mississippi law, the Oregon Supreme Court’s ruling that ORS § 30.905 is substantive is controlling for Mississippi choice of law purposes); see also Crouch v. General Electric Co., 699 F. Sup. 585, 590-91 (S.D. Miss. 1988). In oral argument before this court, the defendant conceded that under Connecticut choice of law rules we are not bound by the Oregon Supreme Court’s ruling that ORS § 30.905 is substantive. See Sealey v. Hicks, 309 Or. 387, 393-95, 788 P.2d 435 (1990). Rather, we must characterize the statute according to our own choice of law rules. Therefore, the cases in the first category are inapplicable.
      The second category is comprised of cases holding that statutes of repose are substantive per se for choice of law purposes. See, e.g., Thornton v. Cessna Aircraft Co., 886 F.2d 85, 87-88 (4th Cir. 1989) (citing Goad v. Celotex Corp., supra, 831 F.2d 510-11, and Wayne v. Tennesse Valley Authority, supra, 730 F.2d 402); White for White v. Winnebago Industries, Inc., 718 F. Sup. 1429, 1431-32 (N.D. Iowa 1989) (same); Boudreau v. Baughman, 322 N.C. 331, 339-40, 368 S.E.2d 849 (1988) (same). Professor Weintraub relies on similar cases for his position that statutes of repose are substantive. See R. Weintraub, Commentary on the Conflict of Laws (3d Ed. 1986) § 3.2C2, p. 58 and n.50. As stated earlier in this opinion, we reject the arguments on which these cases rely.


author:
Per Curiam.
      Berdon, J., with whom Katz, J.,

text:
    State of Connecticut v. Anthony Harris
    (14867)
    Callahan, Borden, Berdon, Katz and Spear, Js.
    Argued June 3
    decision released July 26, 1994

      Shelley A. White, special public defender, with whom was Donald D. Dakers, special public defender, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael D. Glowa, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The issue presented in this criminal appeal is whether the trial court correctly placed the burden on the defendant of proving that he was actually prejudiced by the jury’s consideration of extrinsic evidence during its deliberations. In State v. Harris, 32 Conn. App. 831, 835, 632 A.2d 50 (1993), the Appellate Court concluded that the trial court had properly placed the burden on the defendant. We granted the defendant’s petition to appeal the merits of this conclusion.

After examining the record on appeal and considering the briefs and the oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

Berdon, J., with whom Katz, J.,

joins, dissenting. I disagree with the Appellate Court’s conclusion that, in order to be entitled to a new trial, a defendant must prove that he or she was actually prejudiced by the jury’s consideration of extrinsic evidence. See State v. Harris, 32 Conn. App. 831, 835, 632 A.2d 50 (1993). I would therefore remand this issue to the trial court for reconsideration in light of the appropriate standard.

This case involves a “cop in a box” operation in which an informant in a pickup truck purchased narcotics while a police officer in a cardboard box in the bed of the truck surreptitiously witnessed the transaction through holes in the box the size of quarters. The defendant’s principal defense was that the police officer in the box had mistaken him for someone else. Evidence was presented before the trial court that a juror had performed an experiment outside the jury room to assess whether a person could see clearly through a quarter-sized hole in a cardboard box, and had discussed this experiment with other jurors. The trial court denied the defendant's motion for a new trial on the ground that there was no evidence that the jurors actually considered the out-of-court experiment in reaching their verdict. The Appellate Court upheld this application of an actual prejudice standard.

In State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227 (1984) (Asherman I), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), this court noted that a jury’s “[(‘Consideration of extrinsic evidence is presumptively prejudicial because it implicates the defendant’s constitutional right to a fair trial before an impartial jury.” Accordingly, the court held that a defendant need only prove that there is a “reasonable possibility” that his or her right to a fair trial has been prejudiced by the alleged juror misconduct in order to be entitled to a new trial. (Internal quotation marks omitted.) Id., 739. In determining whether a “reasonable possibility” exists, three factors must be considered: (1) “the magnitude of the juror’s deviation from his proper role”; (2) “the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards” regarding the admission of evidence; and (3) “the likelihood that the impropriety influenced the jury’s verdict.” (Internal quotation marks omitted.) Id. Once the defendant proves that there is a reasonable possibility of prejudice, the burden shifts to the state to prove that the juror misconduct was harmless beyond a reasonable doubt. Id., 742.

Because I believe that “reasonable possibility” is the appropriate standard, and because the trial court did not make any findings beyond the bare fact that there was no proof of actual prejudice, I would remand this issue to the trial court for reconsideration in light of the appropriate standard.

I respectfully dissent.

       We granted the defendant’s petition for certification to appeal limited to the following issue: “Was the Appellate Court correct in finding that a defendant who seeks a new trial based on jury misconduct must prove that he was actually prejudiced by the jury’s use of extrinsic evidence during deliberations?” State v. Harris, 228 Conn. 913, 635 A.2d 1231 (1994).

       The state relies on Asherman v. State, 202 Conn. 429, 442, 521 A.2d 578 (1987) (Asherman II), to claim that this court has adopted an “actual prejudice” standard. This reliance is misplaced. Asherman II was a habeas corpus proceeding in which the defendant challenged the same juror misconduct that he had challenged in his direct appeal in Asherman I. The Asherman II court refused to consider the merits of the defendant’s claim, holding that the claim was barred by res judicata. Asherman II, supra, 443. The Asherman II court did discuss how the burden of proof depends on whether the trial court is implicated in the juror misconduct. If the trial court is implicated, then the state must prove that the juror misconduct was harmless error; if the trial court is not implicated, then the defendant bears the burden of proof. Id., 442. While the Asherman II court used the words “actual prejudice” to describe what the defendant was required to prove under Asherman I; see id., 442 n.10; there is nothing in Asherman II to suggest that the court intended to change the standard. Indeed, the question of whether the Asherman I standard was appropriate was not even before the court.
      Furthermore, it would be unfair to require a defendant to prove actual prejudice. Jurors are instructed at the beginning of every trial that they “may consider only the evidence properly admitted in the case.” D. Borden & L. Orland, 5 Connecticut Practice, Connecticut Criminal Jury Instructions (1986) § 1.10, p. 13; see also id., §§ 1.13 and 1.14, pp. 15, 21-22. They are also instructed, immediately prior to deliberations, that “your verdict must be based absolutely and solely upon the evidence given to you in the trial of the case.” Id., § 2.1, pp. 27-28. The jurors know from these instructions that the consideration of extrinsic evidence is not permitted, and that out-of-court experiments are therefore prohibited. In most cases, it would probably be impossible for the defendant to prove actual prejudice because the jurors will have an interest in denying any experimentation, or at least downplaying the effect it had on their deliberations. For this reason, the “reasonable possibility” standard of Asherman I is more just and appropriate than an “actual prejudice” standard.


author: Katz, J. Berdon, J.,

text:
    State of Connecticut v. Eriberto Deleon
    (14876)
    Callahan, Borden, Berdon, Norcott and Katz, Js.

      Argued May 12
    decision released July 26, 1994

      Lori Welch-Rubin, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom was James E. Thomas, state’s attorney, for the appellee (state).
   Katz, J.

This appeal arises from the criminal trial of the defendant, Eriberto Deleon, that resulted in the judgment of conviction of felony murder. In a five count substitute information, the state charged the defendant with felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-8 (a), robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-8, conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-101 (a) (2), and larceny in the third degree in violation of General Statutes §§ 53a-124 (a) (1) and 53a-8. During his trial, the defendant pleaded guilty to all the charges except felony murder, to which he asserted the statutory affirmative defense. See General Statutes § 53a-54c. Thereafter, he was found guilty of felony murder and sentenced by the trial court to an effective term of imprisonment of sixty years.

The defendant appealed from the judgment of conviction to this court pursuant to General Statutes § 51-199 (b) (3). Pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), we transferred the defendant’s appeal to the Appellate Court and thereafter granted his request to transfer his appeal from that court back to this court. On appeal, the defendant claims that the trial court: (1) violated his right to effective assistance of counsel under the federal and state constitutions by improperly denying his motion for a continuance and his motion to dismiss; (2) violated his rights to due process and a fair trial under the federal and state constitutions by improperly denying his request to open and close the final arguments; and (3) abused its discretion by permitting the state to admit a videotape of the crime scene. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In March, 1991, the defendant and two accomplices stole approximately $100,000 in cash from the victim’s Glastonbury residence. On June 29, 1991, the defendant and three accomplices, Paul Eilerman, Joaquin Santiago and Juan Jimenez, returned to the same residence to steal additional cash. At approximately 12:30 a.m., the defendant and two of the accomplices entered the victim’s residence through a front window.

At about the time the defendant discovered the victim’s safe in the basement, one of the accomplices encountered the victim upstairs and a struggle ensued. During the struggle, the victim received two fatal gunshot wounds. Shortly thereafter, the defendant and the accomplices forcibly removed the victim’s safe from the basement, placed it in the back of the victim’s car and fled the scene.

When the police went to the victim’s residence the following morning, they found the victim’s body at the bottom of the basement stairs. Further, the police observed signs of a struggle throughout the residence and found bullets and bullet holes in the kitchen. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court violated his right to effective assistance of counsel under article first, §§ 8 and 10, of the Connecticut constitution and the sixth amendment to the United States constitution by improperly denying his motion for a continuance and his motion to dismiss. We dismiss this claim as moot.

The following facts are relevant to the disposition of this claim. On October 9, 1991, the defendant filed a motion for discovery requesting the state to disclose, inter alia, any statements made by the defendant to law enforcement officers. In its response, dated November 22, 1991, the state contended that the defendant had admitted orally to ownership of a backpack, a handgun, ammunition and some cash.

On March 3, 1992, the defendant’s counsel received notice that the joint trial of the defendant and his codefendant, Joaquin Santiago, would commence on March 10. Thereafter, during the afternoon of Friday, March 6, 1992, the state revealed to the defendant’s counsel for the first time the existence of a statement made by the defendant to law enforcement officials. After learning of this statement, the defendant filed with the trial court a motion for a continuance and a motion to dismiss, dated March 9, 1992, and March 10, 1992, respectively.

During argument on the motion for a continuance, the defendant’s counsel asserted that, in light of the state’s late disclosure, he would require additional time to evaluate his defense of the case. Specifically, the defendant’s counsel argued that he required additional time before trial to decide “whether or not [the statement] changes the nature of our defense; whether or not we’re going to have [the defendant] testify; and whether or not I want to move to suppress [that statement].” In denying the defendant’s motion, the trial court stated that during the voir dire, the defendant’s counsel could discuss the defendant’s defense and whether the defendant would testify at trial. Further, the trial court specified that it perceived no prejudice in requiring the defendant to bring his motion to suppress at an appropriate time during the trial.

In the motion to dismiss, the defendant’s counsel contended that the statement received on March 6 constituted “[n]ew and substantial incriminating evidence” and that he was denied access “to consult with the Defendant regarding [the statement] and otherwise prepare a defense.” Specifically, the defendant’s counsel argued that the professional visitation policy in effect at the Hartford correctional facility’s main building, where the defendant was incarcerated pending trial, prevented him from having adequate time, prior to trial, to consult with the defendant concerning what effect the newly disclosed statement might have on his defense. Ultimately, the defendant asserted that in light of the impending trial date, the state’s untimely disclosure of the defendant’s statement, in conjunction with the restrictive professional visitation policy at the Hartford correctional facility, effectively denied the defendant his constitutional right to effective assistance of counsel.

The state rejoined that the defendant would receive ample opportunity to confer with his counsel during jury selection at the outset of the trial. The state further asserted that the defendant could receive additional time to confer with his counsel within the courthouse by order of the trial court. In denying the defendant’s motion, the trial court concluded that “I’ve heard arguments that your clients have been denied effective assistance of counsel without any concrete factual scenario.”

On March 30, 1992, after the completion of jury selection for the joint trial, the trial court granted the state’s motion to sever the trial. The state proceeded to trial first against Santiago. On May 14, 1992, after the conclusion of Santiago’s trial, the trial court impaneled the defendant’s jury and began his trial.

The defendant claims that the trial court's refusal to grant a continuance or dismissal on March 10, 1992, under the circumstances related above, violated his right to effective assistance of counsel under the federal and state constitutions. We reject this first claim without considering the substantive merits of the defendant’s constitutional arguments, however, because events following the trial court’s denial of the defendant’s motions rendered the issue moot.

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974); State v. Johnson, 11 Conn. App. 251, 256-57, 527 A.2d 250 (1987).” (Internal quotation marks omitted.) State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988). Further, “[w]e ordinarily do not address constitutional issues unless it is necessary.” Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 306, 545 A.2d 530 (1988).

In this case, no controversy exists for and no practical relief can follow from our review of the defendant’s claim because the defendant, prior to his actual trial in May, 1992, received the additional time that he had requested from the trial court in March, 1992. In moving the court on March 10, 1992, for a dismissal, continuance, or delay of his trial, the defendant argued that he required additional time before his jury impanelment to confer with counsel, to decide whether to testify in his own defense and to afford his counsel an opportunity to decide whether to move to suppress the recently disclosed statement. In essence, the defendant contended that, under the totality of the circumstances, he lacked the time and opportunity to discuss and consider with his counsel before trial the overall impact of the statement.

Following the denial of his motions, however, as a result of the severance of the trial, the defendant received more than two additional months before the commencement of his trial. Within this period, the defendant and his counsel were afforded ample time to confer, to review the statement, to consider a possible revision of trial strategy and to decide whether the defendant would testify in his own defense. Thus, the defendant proceeded to trial in May, 1992, after effectively receiving the continuance that he originally had requested from the trial court. Consequently, any possible claim of ineffective assistance of counsel because of a lack of time to prepare became moot during the two month interval prior to his trial. No practical relief remains for us to give the defendant, and this claim is, therefore, moot.

II

The defendant next claims that the trial court violated his right to due process and to a fair trial under the federal and state constitutions by permitting the state to open and close the final arguments. We disagree.

The following facts are relevant to the disposition of this claim. Before trial, the defendant originally pleaded not guilty to all the charges in the substitute information. During his trial, after the close of the state’s case and immediately before he testified, the defendant changed his pleas from not guilty to guilty on all charges except felony murder. The trial court thereafter instructed the jury that it would deliberate only on the remaining charge of felony murder.

Following the close of all the evidence, the defendant moved the trial court to permit him to open and close the final arguments. The defendant argued that he was entitled to this sequence because he carried the burden of persuasion on the statutory affirmative defense. The trial court denied the defendant’s motion, stating that “[t]he state still has the burden of proof, despite the fact that there’s a built-in affirmative defense to [the] felony murder statute.”

The defendant argues that the circumstances of his trial required the trial court to exercise its discretion to permit him to open and close the final arguments. Because we conclude that the trial court properly acted within its discretion, we reject this claim.

“ ‘In order to obtain a conviction for felony murder the state must prove, beyond a reasonable doubt, all the elements of the statutorily designated underlying felony, and in addition, that a death was caused in the course of and in furtherance of that felony. General Statutes § 54a-54c.’ ” State v. Hernandez, 204 Conn. 377, 386-87, 528 A.2d 794 (1987), quoting State v. Castro, 196 Conn. 421, 428-29, 493 A.2d 223 (1985). Thus, the burden to prove all the elements of the crime of felony murder properly falls on the state. State v. Hernandez, supra, 386-87. If a defendant asserts the statutory affirmative defense to felony murder, however, that defendant bears the burden to prove the affirmative defense by a preponderance of the evidence. General Statutes § 53a-12 (b); State v. Valeriano, 191 Conn. 659, 663, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984).

In light of the state’s burden to prove every element of the charged crime beyond a reasonable doubt, practice traditionally grants the prosecution the right to open and close the final arguments to the jury. 3 W. LaFave & J. Israel, Criminal Procedure (1984) § 23.5, pp. 32-33. General Statutes § 54-88 and Practice Book § 874 (4) establish a general rule that in a criminal prosecution, the state is entitled to open and close the argument. Nonetheless, a trial court “for cause” may permit divergence from this established order of argument. Practice Book § 874.

In our review of whether a trial court abused its discretion to find or reject sufficient “cause” in a given case, it is clear that “[t]he trial court is invested with a large discretion with regard to the arguments of counsel, and while its action is subject to review and control, we can interfere only in those cases where the discretion was clearly exceeded or abused to the manifest injury of some party.” Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342-43, 160 A.2d 899 (1960), overruled on other grounds, Queen v. Gagliola, 162 Conn. 164, 292 A.2d 890 (1972). The issue, therefore, is not whether we would reach the same conclusion in the exercise of our own judgment, but only whether the trial court acted reasonably. State v. S & R Sanitation Services, Inc., 202 Conn. 300, 311-12, 521 A.2d 1017 (1987).

The defendant argues that because the state’s traditional entitlement to open and close final arguments stems from the state’s burden of proof in a criminal trial, such entitlement lacks merit in his case where he bore the only “meaningful” burden of persuasion. More specifically, the defendant contends that because he had pleaded guilty to all the underlying charges against him and bore the burden of proof as to the statutory affirmative defense to felony murder, the state no longer had the burden to prove the elements of felony murder beyond a reasonable doubt. Further, the defendant asserts that because he bore the burden of proof on the affirmative defense and the state bore no burden of proof on the elements of felony murder, due process under the federal and state constitutions necessarily required the trial court to reverse the sequence of final arguments. Because this argument misconstrues the relative burdens of proof on the defendant and the state at his trial, we reject it without addressing whether due process demands the reversal of the order of final arguments in favor of a defendant who bears the sole burden of proof at trial.

The facts of this case show that the state throughout the trial continued to bear the burden of proof regarding the elements of felony murder. We note that although the defendant, by having pleaded guilty to the felonies underlying the felony murder charge, did not actively contest the factual elements of those felonies, he likewise never conceded them, and the trial court, to afford the defendant his right to due process, still was required to instruct the jury that, in order to find the defendant guilty of felony murder, it first had to find all the elements of that charge proven beyond a reasonable doubt. State v. Hernandez, supra, 204 Conn. 386-87. Thus, although the defendant may not have actively contested at trial that he, or his accomplices, had caused a death or that the decedent had died during the felonies he committed, the burden to prove these elements of the charge nonetheless rested squarely on the state. To assert that the state bore no burden of proof on an element of the crime merely because the defendant chose not to defend against that element ignores the role of the presumption of innocence in a criminal trial. See State v. Allen, 205 Conn. 370, 376-77, 533 A.2d 559 (1987). “A criminal defendant has the right to put the state to its burden and need not defend until and unless the state has presented a prima facie case.” Id., 376.

Due to the continued burden on the state to prove all the elements of felony murder beyond a reasonable doubt, no reversal or diminution of burdens occurred at the defendant’s trial. Although the felony murder statute required the defendant to prove his affirmative defense by a preponderance of the evidence, the federal and state constitutions compelled the state to prove its case beyond a reasonable doubt. As a result, the trial court’s identification of the continued burden of proof on the state was correct, and the trial court’s decision not to vary the order of arguments was not an abuse of discretion.

Ill

The defendant next claims that the trial court abused its discretion by admitting into evidence a videotape of the crime scene. The defendant asserts that the admission of the videotape permitted the state to introduce “subliminal” material that was unsubstantiated by the evidence. Further, the defendant contends that the prejudicial impact of this subliminal material outweighed its probative value. We disagree.

The following facts are relevant to this claim. On March 26,1992, the trial court, Miano, J., viewed the videotape prior to the commencement of the evidentiary portion of the defendant’s originally scheduled trial. The defendant filed a motion in limine to exclude the videotape, claiming that it was cumulative and more prejudicial than probative. The defendant also argued that the state would use the videotape impermissibly to show that the videographer had to step over the victim’s body in order to move around in the basement. The defendant contended that such use of the videotape would, through unsubstantiated circumstantial evidence, tend to imply that the defendant had knowledge of the victim’s death and had to step over his body in furtherance of stealing money from the safe in the basement.

The state responded by disputing the defendant’s characterization of the videotape as excessively prejudicial and by explaining the videotape’s corroborative and independent relevance to the elements of felony murder. The state argued that the videotape of the residence’s layout and the location of the victim’s body tended to prove the elements of felony murder. Specifically, the state proffered that the videotape tended to prove the elements of intent to commit the underlying felonies and death “in furtherance of” the underlying felonies. The state also asserted that in the event that the defendant asserted the affirmative defense to felony murder, the videotape would tend to refute the assertion that the defendant did not solicit, aid, or become involved in the homicidal acts that caused the victim’s death. After hearing the arguments, the trial court reserved its decision on the motion for a later date.

The following day, the trial court allowed the admission of the disputed portion of the videotape after specifically considering both its potential prejudice and probative value. At the same time, the trial court also rejected the defendant’s argument that the videotape was cumulative evidence. Subsequent to this ruling, the trial court severed the defendant’s case from that of his codefendant. Thereafter, on May 5, 1992, preliminary to his rescheduled trial, the defendant renewed and clarified his objection to the admission of the videotape, and the trial court, Fasano, J., thereafter denied his motion by concurring with the original determination made by Judge Miano.

The defendant claims on appeal that the trial court abused its discretion in admitting the videotape into evidence because its prejudicial impact outweighed its probative value. More specifically, the defendant argues that the trial court should have excluded the videotape because the videographer’s manipulation of the zoom lens and his body movements conveyed “subliminal” messages about the dimensions of the victim’s basement and actions of the defendant that were not substantiated by any testimonial evidence. We reject this claim and conclude that the trial court did not abuse its discretion in finding that the videotape’s probative value outweighed its potential prejudicial effect.

“This court has consistently held that photographic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. . . . There is no requirement in this state that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible; rather, the test for determining the admissibility of the challenged evidence is relevancy and not necessity.

“A potentially inflammatory photograph may be admitted if the court, in its discretion, determines that the probative value of the photograph outweighs the prejudicial effect it might have on the jury. . . . The determination of the trial court will not be disturbed unless the trial court has abused its discretion.” (Citations omitted.) State v. Williams, 227 Conn. 101, 111, 629 A.2d 402 (1993); see also State v. Willis, 221 Conn. 518, 522, 605 A.2d 1359 (1992).

After viewing the videotape, the trial court determined that it was not extraordinarily gruesome or inflammatory. The trial court also noted that the defendant would be entitled to a jury instruction at the appropriate time to guard against the jury considering the body movements of the videographer or the other production characteristics of the videotape to infer that the defendant or his accomplices had been stepping over the victim’s body during the robbery. Thus, the trial court implicitly determined that potential prejudice from any “subliminal” effect on the jury could be cured or mitigated through a proper jury instruction. See Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 652-53, 514 A.2d 352, cert. denied, 201 Conn. 809, 515 A.2d 378 (1986) (trial court’s jury instruction about videotape’s relevance minimizes its prejudicial effect).

Equally important, the trial court considered the state’s claimed need for the videotape and found that it possessed probative value. See State v. Williams, supra, 227 Conn. 111 (approving trial court’s finding that videotape was “most accurate, truthful and representative evidence of the crime scene”). The videotape’s depiction of the victim’s body in the basement was relevant to corroborate the description of the scene given by the police, to support the inference that force had been used on the victim in order to gain access to the safe in the basement and to support the conclusion that the victim’s death therefore had been caused “in furtherance of” the robbery. Evaluating and weighing the appropriate factors, the trial court reached a reasonable decision, and we cannot find, as a matter of law, that any potential prejudice outweighed the videotape’s probative value. Accordingly, we reject the defendant’s claim.

The judgment of the trial court is affirmed.

In this opinion Callahan, Borden and Norcott, Js., concurred.

Berdon, J.,

dissenting. I agree that it is within the discretion of the trial court to determine whether the order of closing argument should be varied. Nevertheless, under the facts of this case, I believe that the trial court abused its discretion by not allowing the defendant to open and close final argument.

Just recently, Justice Glass, writing for a unanimous court, emphasized the importance of closing argument. “Closing argument is an integral part of any criminal trial, for it is in this phase that the issues are sharpened and clarified for the jury and each party may present his theory of the case.” State v. Arline, 223 Conn. 52, 63, 612 A.2d 755 (1992). Indeed, the United States Supreme Court has underscored the importance of closing argument by holding that a meaningful opportunity for it is part of the fundamental right to assistance of counsel. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). “There can be no doubt that closing argument for the defense is a basic element of the adversary fact-finding process in a criminal trial.” Id., 858. The court reasoned: “It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt. See In re Winship, [397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)].” Herring v. New York, supra, 862.

It is true, as the majority states, that while the defendant admitted that he had committed the robbery element of General Statutes § 53a-54c, the felony murder statute, he did not admit that one of his accomplices in the robbery had caused the death of the victim. There was, however, no dispute that the death of the victim had been caused during the course of the robbery committed by the defendant. After the defendant pleaded guilty during his jury trial, the only issue in dispute was whether he was entitled to an affirmative defense under § 53a-54c. The burden of proof for the affirmative defense was clearly on the defendant.

Indeed, counsel for the defendant made this crystal clear when he admitted, in summation, the following: “Essentially, and Mr. Thomas [the prosecutor] is correct, he’s made out his case. Reasonable doubt. He’s made it out. And I’m not going to stand here and tell you he hasn’t. The burden is on me to show you by a preponderance of evidence—and that’s my standard and we’ll talk about that in a moment—that Eddy Deleon did not murder because the statute has an affirmative defense in it.”

Under these circumstances, I believe that the trial court abused its discretion. The defendant had the burden of proof on the only viable issue the jury had to decide. The majority’s attempt to dissociate themselves from the trial court’s ruling by stating that the issue “is not whether we would reach the same conclusion in the exercise of our own judgment” does not make it fair or just. We do not deal with trivia in this matter—the defendant, on the felony murder count, was sentenced to a term of imprisonment of sixty years.

Accordingly, I respectfully dissent.

       General Statutes § 53a-54c provides: “felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”
      General Statutes § 53a-8 provides in relevant part: “criminal liability for acts of another, (a) 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.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”
      See footnote 2 for the relevant text of General Statutes § 53a-8.

       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 the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      See footnote 2 for the text of General Statutes § 53a-101 (a) (2).

       General Statutes § 53a-124 (a) (1) provides: “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is five thousand dollars or less.”
      See footnote 2 for the relevant text of General Statutes § 53a-8.

       See footnote 1 for the text of General Statutes § 53a-54c.

       General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       Practice Book § 4023 provides in relevant part: “The supreme court may transfer to itself a cause in the appellate court. Except for any matter brought pursuant to its original jurisdiction under the constitution, the supreme court may transfer a cause or class of causes from itself to the appellate court. The court to which a cause is transferred has jurisdiction. . . .”
      General Statutes § 51-199 (c) provides: “The supreme court may transfer to itself a cause in the appellate court. Except for any matter brought pursuant to its original jurisdiction under section 2 of article sixteen of the amendments to the constitution, the supreme court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1, 1983, to the appellate court. The court to which a cause is transferred has jurisdiction.”

       The defendant titled Ms motion to dismiss “Motion to Dismiss, Delay or Other Relief.”

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      Article first, § 8, of the Connecticut constitution as amended provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security; except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. . . .”
      Article first, § 10, of the Connecticut constitution provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       The professional visitation policy in effect at the Hartford correctional facility during the relevant time period permitted defendant’s counsel to meet with the defendant between 1:30 and 3:15 p.m. on weekdays and at no time on the weekends. After receiving the disclosure on the afternoon of Friday, March 6, 1992, the defendant’s counsel attempted, without success, to arrange with officials at the facility for additional time to meet with the defendant either during weekdays or over the weekend.

       The state moved to sever the joint trial after the trial court had granted the defendant’s motion to redact a portion of Santiago’s statement given to police that might have tended to incriminate the defendant or refute the elements of the defendant’s affirmative defense.

       The state argues that the defendant failed to brief properly the state constitutional claim and that we therefore should not consider this claim. See State v. Hamilton, 228 Conn. 234, 246 n.10, 636 A.2d 760 (1994); State v. Campbell, 224 Conn. 168, 181 n.12, 617 A.2d 889 (1992), cert. denied, U.S. , 113 S. Ct. 2365, 124 L. Ed. 2d 271 (1993); State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991). Because we do not reach the merits of the defendant’s substantive arguments, we need not decide whether the defendant sufficiently briefed the state constitutional claim.

       In fact, the defendant conceded at oral argument that he neither sought nor required an additional continuance at the time of his trial in May, 1992.

       The defendant argues that a line of sixth amendment cases, as most recently articulated in State v. Hamilton, 228 Conn. 234, 243-46, 636 A.2d 760 (1994), requires us to focus solely on the propriety of the trial court’s denial of his motions on March 10, 1992, and to apply a per se reversal standard regardless of the events following that day. See, e.g., Geders v. United States, 425 U.S. 80, 91, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976); State v. Mebane, 204 Conn. 585, 595, 529 A.2d 680 (1987), cert. denied, 484 U.S. 1046, 108 S. Ct. 784, 98 L. Ed. 2d 870 (1988). We reject this argument because it ignores an essential distinction between those cases and the present one: the defendants in those cases never received the access to counsel that they had requested. In this case, on the other hand, even if we assume, arguendo, that the trial court improperly denied the defendant’s motions on March 10, 1992, the defendant, in fact, received the additional preparation time and access to his counsel prior to his trial and therefore effectively obtained full relief on his motions.

       In so concluding, we find no exception to permit review of this issue. See, e.g., Perry v. Perry, 222 Conn. 799, 803, 611 A.2d 400 (1992) (reviewing issue despite mootness where “capable of repetition yet evading review”), overruled on other grounds, Bryant v. Bryant, 228 Conn. 630, 637 A.2d 1111 (1994); Barlow v. Lopes, 201 Conn. 103, 105 n.2, 513 A.2d 132 (1986) (deciding merits of criminal appeal despite mootness where adverse collateral consequences exist).

       General Statutes § 54-88 provides: “state to open and close arguments. In any criminal trial, the counsel for the state shall be entitled to open and close the argument.”
      Practice Book § 874 provides in relevant part: “[proceedings at TRIAL]-ORDER OP PARTIES PROCEEDING AT TRIAL
      “Unless the judicial authority for cause permits otherwise . . . (4) The prosecuting authority shall be entitled to make the opening and final closing arguments.
      “(5) The defendant may make a single closing argument following the opening argument of the prosecuting authority.”

       Although the dissent highlights, as evidence of the state’s insignificant burden of proof, that both the state and the defendant emphasized only the affirmative defense during their respective closing arguments, it is obvious that the trial court’s decision not to depart from standard procedure could not be based on any concessions that were made afterward during the closing arguments themselves. Similarly, because the defendant never asked for surrebuttal, we would be hard pressed to hold that the trial court abused its discretion for failure to suggest it to counsel as an alternative accommodation, prior to any concessions that the state had met its burden of proof.

       We reach neither the federal nor the state constitutional arguments in this case.

       The defendant also contends that the trial court should have exercised its discretion pursuant to the procedures under Practice Book § 295. Practice Book § 295 provides in relevant part: “The counsel ... in support of the affirmative of an issue of fact will be entitled to begin trial, and to open and close the argument. Where several issues are to be tried together, as to some of which the plaintiff, and as to others the defendant, has the affirmative, the court shall determine, in its discretion, which party shall open and close.” The trial court’s decision not to rely on a general civil rule rather than a specific criminal rule was not an unreasonable one.
      Further, the defendant contends that the felony murder statute’s use of “in furtherance of” creates a significant “interrelatedness of the elements of felony murder and the elements of its affirmative defense” such that the defendant should receive the favorable argument position. Again, we reject this argument because the trial court sits in the best position to evaluate whether the particular factual or procedural circumstances of a case require an adjustment to the order of arguments. See Practice Book § 874 (permitting trial court in criminal case to alter arguments if sufficient cause shown).

       The videotape contains footage that shows, inter alia, the entire layout of the residence and the area at the foot of the basement steps where the police found the victim’s body. The defendant objected only to that portion of the footage showing the victim’s body and the surrounding basement area.

       After arguing that the state’s photographs of the crime scene adequately depicted the location and position of the victim’s body, the defendant’s counsel stated: “I don’t think there’s any element of the case or any element of the charge on the subject of [the victim’s] death that we’re not prepared to stipulate to, Your Honor. We don’t need to have this evidence in front of the jury. And its purpose to the jury is to inflame, is to reach a state of passion. . . . [L]ooking at that video—my client, Your Honor—that the jury really is not going to be persuaded by anything else in the case. It’s graphic, it’s a technological feat and its purpose, Your Honor, is to inflame passion.”

       The state asserted: “I think this video helps depict [the intent and ‘in furtherance of’ elements] for the jury in that it shows the size and the layout of the house and the proximity of the rooms to one another. The state is not claiming that [the victim] was shot in the basement. He was shot elsewhere in the house and purposely moved to the basement in the furtherance of the robbery and the burglary because that is where the safe was located . . . .”

       The state explained: ‘ ‘ [B]ased on the nature of the layout of the house, Your Honor, the way the victim is found, the proximity to where the safe was located, it’s highly unlikely that a person that was involved in this burglary and robbery could have walked around that house and not seen [the victim] or not know that he was being dragged down the stairs after he had been shot, the purpose being to got information out of him as to either where the money was or the combination of the safe.”

       The trial court stated: “The injuries that are depicted do not appear of a gruesome nature in any way. And I think there is probative value. And as far as any prejudice that may be drawn from that depiction, the court finds that, based on what’s depicted, there will be virtually none. As I understand prejudice, it’s where the facts offered may unduly arouse the jury’s emotions, hostility, or sympathy. And they know this is a death case and there’s no—though one may term bullet wounds extraordinary, certainly. But, in the nature of things, there’s nothing extraordinary about that body.”

       Although the defendant used the term “subliminal” in this argument to rephrase his original concern that the state would use the production characteristics of the videotape, i.e., camera angles, zooming effects and videographer’s body movements, to permit the jury to draw an impermissible inference about the defendant’s knowledge of the victim’s body during the course of the robbery, the arguments by the defendant and the state before both trial courts were essentially the same.
      At trial, the state argued that the second trial court, Fasano, J., was bound by the decision of the first trial court, Miano, J. Because the two trial courts considered comparable arguments and reached the same conclusion about whether the videotape’s potential prejudicial effect outweighed its probative value, however, we need not visit the issue of whether the subsequent trial court’s review of the original determination was permissible under our jurisprudence concerning “the law of the case.” See Breen v. Phelps, 186 Conn. 86, 97-100, 439 A.2d 1066 (1982) (trial judge may review own or other trial judge’s prior determination in certain situations). We need only reiterate the general principle that “ ‘one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.’ 46 Am. Jur. 2d, Judges § 46 [1969]; annot., 132 A.L.R. 14, 49 [1941].” Id., 98-99.

       “[Defense Counsel:] “The statement was made that [the videotape] shows how the defendants were stepping over the body of [the victim] as they continued their—
      “The Court: Well, again, it’s not being offered for that purpose. If you want a limiting instruction I would give it. I don’t think it’s necessary. If the state wants to get into that they can make inquiry of the witnesses as to the cramped quarters, if that’s the case.”

       General Statutes § 53a-54c provides in relevant part: “[I]t shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       Although the defendant did not request that he be granted the right to argue on surrebuttal, the trial court could have considered this as an alternative accommodation. Indeed, whenever the defendant bears the burden of proving an affirmative defense, reason and justice require that he be allowed surrebuttal argument limited to the affirmative defense without regard as to whether he or she has admitted to the other elements of the crime.


author: Borden, J. Berdon, J.,

text:
    State of Connecticut v. Justiniano Torres
    (14838)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      Argued May 10
    decision released July 26, 1994

      Charles L. Howard, with whom were Sheila Huddleston and, on the brief, Gregory T. D’Auria, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Bernadette Conway, assistant state’s attorney, for the appellee (state).
   Borden, J.

In this certified appeal, the defendant, Justiniano Torres, appeals from the judgment of the Appellate Court affirming his conviction of possession of marijuana with the intent to sell in violation of General Statutes § 21a-277 (b), and possession with the intent to use drug paraphernalia in violation of General Statutes § 21a-267 (a). Following the trial court’s denial of his motion to suppress, the defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, to the two offenses. The trial court rendered a judgment of conviction, which the Appellate Court affirmed. State v. Torres, 31 Conn. App. 443, 625 A.2d 239 (1993).

We granted the defendant’s petition for certification to appeal limited to the following questions: (1) “Did the Appellate Court correctly conclude that an inadequate record barred review of the defendant’s unpreserved claim that a sniff by a police dog of the exterior of the defendant’s stopped car was a search that was in violation of the state and federal constitutions because it was not supported by reasonable and articulable suspicion?”; and (2) “If the answer to question (1) is no, was the dog sniff a search under either the federal or state constitution that was not supported by reasonable and articulable suspicion?” State v. Torres, 227 Conn. 906, 632 A.2d 698 (1993). We affirm the judgment of the Appellate Court.

The Appellate Court’s opinion states the facts found by the trial court on the defendant’s motion to suppress: “On August 13, 1990, at approximately 8 p.m., State Trooper David Mitch was informed by his dispatcher that the state police had received an anonymous tip that ‘Junior Torres’ had gone to New York to pick up marijuana and would be returning to 93 Atwood Street in Hartford within the next one to two hours. According to the informant, Torres would be operating a black 1977 Ford Thunderbird with Massachusetts license plates.

“Acting on the tip, Mitch proceeded with Yukon Jack, a German shepherd police dog trained to sniff out narcotics, to the Middletown rest area of Interstate 91 to monitor the northbound traffic lanes. At approximately 9:35 p.m., Mitch observed a black Thunderbird with Massachusetts license plates traveling north at seventy miles per hour. Mitch followed the automobile and radioed a request for a registration check. Upon receiving a reply that the license number was not listed on the computer, Mitch directed the operator of the automobile to pull over and asked for his license and registration. The defendant was the operator of the automobile. He did not have a license but identified himself as Justiniano Torres and said that he was [coming] from New York en route to 93 Atwood Street in Hartford.

“Acting on the corroboration of the details supplied by the informant, Mitch utilized Yukon Jack to conduct an exterior search of the automobile while the defendant and his passenger remained seated in the automobile. Yukon Jack began to circle the automobile and exhibited a positive alert for narcotics at the trunk of the vehicle. Mitch, now accompanied by another trooper and a detective, searched the trunk but found no narcotics. Reasoning that the odor of narcotics had been carried by wind currents to the trunk area from the front of the automobile, they searched the engine compartment, where they discovered a large cellophane envelope containing marijuana hidden under the automobile’s battery. Mitch then placed the defendant under arrest.

“At trial, the defendant moved to suppress the marijuana on the ground that the warrantless search of the automobile was not supported by probable cause. The court, O’Keefe, J., denied the motion and the defendant pleaded nolo contendere.” State v. Torres, supra, 31 Conn. App. 444-45.

In his appeal to the Appellate Court, the defendant claimed for the first time that the canine sniff constituted a search under both the United States and Connecticut constitutions, and that there was no reasonable and articulable suspicion to justify such a search. The Appellate Court declined to review this unpreserved claim on the ground that the record was inadequate to review it as required by the first prong of the test set forth in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The Appellate Court interpreted our holding in State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992), to preclude review of the defendant’s canine sniff claim because the trial court had not made a determination of whether the sniff was a search under the state or federal constitution, or, if it was a search, whether this search was supported by reasonable and articulable suspicion. The Appellate Court reasoned that the record was inadequate, because “there was no reason for the trial court to make factual findings on these issues.” State v. Torres, supra, 31 Conn. App. 449. This appeal followed.

I

The defendant first claims that the Appellate Court improperly concluded that the trial court record was inadequate to review the defendant’s canine sniff claim under State v. Golding, supra, 213 Conn. 233. We agree.

In Golding, we set forth the conditions under which a defendant can prevail on a constitutional claim that had not adequately been preserved at trial. We held that the defendant can prevail only if all of the following 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.” State v. Golding, supra, 213 Conn. 239-40.

An appellate court “remain[s] free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Stanley, supra, 223 Conn. 674; State v. Nelson, 221 Conn. 635, 639, 605 A.2d 1381 (1992); State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992); State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990); State v. Golding, supra, 213 Conn. 240. In State v. Stanley, supra, the defendant on appeal claimed for the first time that, under the state constitution, the state was required to prove beyond a reasonable doubt that the defendant’s waiver of his Miranda rights had been knowing, intelligent and voluntary. We declined to review the defendant’s claim, however, because the defendant had not raised the issue of the proper standard at trial, and the trial court had made its determination using a preponderance of the evidence standard. “We [did] not know, therefore, whether the trial court would have found that the state had sustained that higher burden of proof [beyond a reasonable doubt]. . . . Since such a determination is a question of fact, even if we were to agree with the defendant, we would have to remand the case to the trial court for that factual determination, rather than to grant the defendant a new trial. Since, under the test in Golding, we must determine whether the defendant can prevail on his claim, a remand to the trial court would be inappropriate. The first prong of Golding was designed to avoid remands for the purpose of supplementing the record.” (Emphasis in original.) State v. Stanley, supra, 689-90.

The Appellate Court read Stanley too broadly in applying its holding in the circumstances of this case. In Stanley, we held that Golding review was unavailable not merely because the record lacked a trial court determination on the issue appealed, but because in that case the record lacked a trial court finding of fact forming the basis for the defendant’s claim. A record is not inadequate for Golding purposes because the trial court has not reached a conclusion of law if the record contains the factual predicates for making such a determination.

In contrast to Stanley, in this case the Appellate Court was not asked to make a determination of fact that the trial court had not been asked to make. In this case, the Appellate Court was asked to reach a legal conclusion that the trial court had not been asked to address, based on an undisputed factual record.

Under the Golding doctrine, a conclusion of law can properly be made by an appellate court, even if the trial court was never asked to make, and never made, such a determination, so long as the factual record is adequate to provide the basis for such a conclusion. Indeed, the court in Golding recognized that this would frequently be the case in the review of unpreserved claims. “An adequate factual record is especially crucial when dealing with a claim that was not preserved at trial, since consideration is being sought for review of a claim for which we lack a trial court ruling.” State v. Golding, supra, 213 Conn. 240 n.10.

Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Futhermore, the question of whether reasonable and articulable suspicion arises from an underlying set of facts is a legal conclusion that, if made by a trial court, is subject to plenary review by an appellate court. See State v. Geisler, 222 Conn. 672, 693, 610 A.2d 1225 (1992). Accordingly, if there is in the appellate record a sufficient underlying set of facts upon which an appellate court can answer the question of whether a reasonable and articulable suspicion existed, the first prong of Golding is satisfied. In this case, therefore, the question is the existence of such a sufficient underlying set of facts.

We conclude that the trial court record in this case contains the factual basis necessary for appellate consideration of the defendant’s claim. The necessary facts are derived from the testimony of Mitch, the state’s witness at the suppression hearing. Indeed, the defendant does not contest those facts and relies upon them in his brief. Furthermore, the state does not claim that, had the defendant questioned in the trial court the validity of the canine sniff, the state would have presented more or different evidence to support its validity. The state conceded at oral argument that a decision by the trial court on the defendant’s claim would have added little to the record. In this case, therefore, the record contains undisputed facts sufficient to determine that a canine sniff had occurred and the circumstances under which it had occurred. There is, therefore, an adequate record for review of the defendant’s claim.

II

The defendant next claims that the canine sniff of his automobile was a “search” under the fourth amendment to the United States constitution and the constitution of Connecticut, article first, § 7, and that it was not based on reasonable and articulable suspicion. The state responds that: (1) the canine sniff was not a search under either constitution; and (2) even if it were, it was supported by reasonable and articulable suspicion. Because we conclude that the police had a reasonable and articulable suspicion in this case, we need not reach the issue of whether the canine sniff at issue constituted a search under either the federal or state constitution.

The question of whether, and, if so, under what factual circumstances, a canine sniff may constitute a “search” has yielded a variety of judicial responses under both the fourth amendment and analogous state constitutional provisions. We are not prepared to say that a canine sniff is always, or is never, a search within the meaning of either the fourth amendment or article first, § 7. It is not necessary to the determination of this appeal that we decide whether the circumstances of this canine sniff constituted such a search because: (1) we have found no case that has held such a sniff of an automobile, properly stopped by the police, to a standard more demanding than reasonable and articulable suspicion; see footnote 5; (2) the defendant in oral argument in this court conceded that standard to be applicable to the facts of this case; and (3) the canine sniff of the defendant’s automobile at issue here was based on reasonable and articulable suspicion. Ordinarily, “[c]onstitutional issues are not considered unless absolutely necessary to the decision of a case . . . .” (Internal quotation marks omitted.) State v. Cofield, 220 Conn. 38, 49-50, 595 A.2d 1349 (1991); State v. Onofrio, 179 Conn. 23, 37-38, 425 A.2d 560 (1979); State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974); see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring).

The reasonable and articulable suspicion standard also defines the showing required for a prearrest detention under the fourth and fourteenth amendments to the federal constitution; Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); and under our state constitution. State v. Lamme, 216 Conn. 172, 579 A.2d 484 (1990). “In justifying the particular intrusion ‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio, supra, [392 U.S.] 21.” State v. Januszewski, 182 Conn. 142, 148-49. “The police officer’s decision . . . must be based on more than hunch or speculation.” State v. Cofield, supra, 220 Conn. 45. We conclude that the undisputed facts satisfied this standard.

To determine whether the police had a reasonable and articulable suspicion that warranted the canine sniff around the defendant’s automobile, we look to the totality of the circumstances surrounding the police action. State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987); State v. Aversa, 197 Conn. 685, 690, 501 A.2d 370 (1985); see also United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). In the present case, the anonymous tip was telephoned to the police and relayed by a dispatcher to the arresting officer. The tip included the name of the person who would be driving the automobile, the model, year and color of the automobile, the fact that the automobile bore Massachusetts license plates, the specific destination of the automobile, and the approximate time the automobile would be passing through the Middletown area on its way to Hartford. Every aspect of the tip was corroborated by Mitch during the period before and after he stopped the defendant’s car. The tip not only revealed facts in existence at the time of the call, but also predicted the defendant’s future behavior, namely his destination and the approximate time of his arrival. This was a strong indication of the reliability of the tip, “because it demonstrated inside information—a special familiarity with [the defendant’s] affairs. . . . Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities.” Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). The high indicia of reliability of this tip combined with corroboration of innocuous facts by independent police work was sufficient to provide Mitch with a reasonable and articulable suspicion that the defendant was carrying the drugs indicated by the tipster. Id.

The judgment of the Appellate Court is affirmed.

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

Berdon, J.,

concurring. I concur in the result because I agree that the police had a reasonable and articulable suspicion to conduct the canine sniff of the car and because the defendant, Justiniano Torres, does not claim that a higher standard must be met under the state or federal constitution. Accordingly, I leave to another day the issues of whether a sniff by a trained police dog is a “search” in the constitutional sense, and, if so, whether a canine sniff search of a car requires probable cause.

       General Statutes § 21a-277 (b) provides in relevant part: “penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING. . . .
      “(b) Any person who . . . transports with intent to sell or dispense, possesses with intent to sell or dispense . . . any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       General Statutes § 21a-267 (a) provides in relevant part: “prohibited acts re drug paraphernalia, (a) No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240, to . . . pack, repack, store, 'contain or conceal . . . any controlled substance . . . .Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.”

       The defendant also claimed that there was no probable cause to justify the search under the hood of his automobile. The Appellate Court stated that “the trial court’s conclusion that probable cause existed to search the entire automobile was grounded not only on the [canine] sniff, which the court found to be reliable, but also on its finding that several details of the informant’s tip had been corroborated. We conclude that, in light of those findings, the court properly determined that probable cause existed.” State v. Torres, supra, 31 Conn. 452. The defendant does not claim in this appeal that, if the canine sniff was permissible, the ensuing search under the hood of the automobile was not supported by probable cause. Indeed, he conceded at oral argument in this court that the validity of the search under the hood rises or falls on whether the canine sniff was supported by reasonable and articulable suspicion.

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

       Federal courts that have addressed the issue of whether a canine sniff is a search have come to different results depending on the circumstances of the search and to what extent the search infringes on reasonable expectations of privacy. See, e.g., United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (canine sniff of luggage detained upon reasonable suspicion in public airport does not constitute search); United States v. Dovali-Avila, 895 F.2d 206, 207-208 (5th Cir. 1990) (canine sniff at primary and secondary border checkpoints not search); United States v. Stone, 866 F.2d 359, 363 (10th Cir. 1989) (canine sniff of exterior of car stopped on reasonable suspicion to believe it contains narcotics not search); United States v. Hardy, 855 F.2d 753 (11th Cir.), reh. denied, 861 F.2d 1281 (11th Cir. 1988), cert. denied, 489 U.S. 1019, 109 S. Ct. 1137, 103 L. Ed. 2d 198 (1989) (canine sniff analogous to Terry stop); United States v. Whitehead, 849 F.2d 849 (4th Cir.), cert. denied, 488 U.S. 983, 109 S. Ct. 534, 102 L. Ed. 2d 566 (1988) (reasonable, articulable suspicion required for canine sniff of train sleeping compartment); United States v. Quinn, 815 F.2d 153 (1st Cir. 1987) (reasonable, articulable suspicion required for canine sniff of stopped car); United States v. Thomas, 757 F.2d 1359 (2d Cir.), cert. denied sub nom. Fisher v. United States, 474 U.S. 819, 106 S. Ct. 66, 88 L. Ed. 2d 54 (1985) (probable cause required for canine sniff outside residence).
      State courts also have reached varied conclusions under their state constitutions. See, e.g., McGahan v. State, 807 P.2d 506, 510-11 (Alaska App. 1991) (canine sniff of warehouse exterior accessible to public is state constitutional search requiring reasonable, articulable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska App. 1985) (exposure of luggage checked with airline to canine sniff is state constitutional search requiring reasonable, articulable suspicion); People v. Mayberry, 31 Cal. 3d 335, 340, 644 P.2d 810, 182 Cal. Rptr. 617 (1982) (canine sniff of containers in baggage area of airport not state constitutional search); People v. Unruh, 713 P.2d 370, 377-78 (Colo.), cert. denied, 476 U.S. 1171, 106 S. Ct. 2894, 90 L. Ed. 2d 981 (1986) (canine sniff of safe is state constitutional search requiring reasonable, articulable suspicion); O’Keefe v. State, 189 Ga. App. 519, 525-26, 376 S.E.2d 406 (1988) (canine sniff of exterior of automobile not state constitutional search); State v. Pellicci, 580 A.2d 710, 715-17 (N.H. 1990) (canine sniff of vehicle’s exterior is state constitutional search requiring reasonable, articulable suspicion); People v. Dunn, 77 N.Y.2d 19, 25, 564 N.E.2d 1054, 563 N.Y.S.2d 388 (1990), cert. denied, 501 U.S. 1219, 111 S. Ct. 2830, 115 L. Ed. 2d 1000 (1991) (canine sniff of common hallway outside defendant’s apartment door is state constitutional search requiring reasonable, articulable suspicion); State v. Kosta, 75 Or. App. 713, 708 P.2d 365, 368 n.10 (1985) (canine sniff of package in mail akin to valid stop), aff’d on other grounds, 304 Or. 549, 748 P.2d 72 (1987); Commonwealth v. Martin, 534 Pa. 136, 140-41, 626 A.2d 556 (1993) (canine sniff of defendant’s person requires probable cause); Commonwealth v. Johnston, 515 Pa. 454, 462-66, 530 A.2d 74 (1987) (canine sniff of rented storage locker is state constitutional search requiring reasonable, articulable suspicion); State v. Boyce, 44 Wash. App. 724, 725-26, 723 P.2d 28 (1986) (circumstances of canine sniff determine whether it is search—sniff of safety deposit box at bank not state constitutional search).

       The defendant does not contest that Mitch had reasonable and articulable suspicion to stop the defendant’s automobile on the basis of the absence of registration information on the police computer and on the automobile’s excessive speed.

       We are not persuaded by the defendant’s argument that because the tipster did not speak directly to Mitch, we cannot defer to what the defendant refers to as the trooper’s “learned instincts” regarding the reliability of the tip. If anything, the fact that the call came in to the police and the tip was relayed to Mitch by a dispatcher serves to diminish any concern with citizens “being seized and questioned by any officer who is prepared to testify that the warrantless stop was based on an anonymous tip predicting whatever conduct the officer just observed.” Alabama v. White, supra, 496 U.S. 333 (Stevens, J., dissenting).
      We do not consider the tipster’s failure to supply other details, such as the defendant’s full name, and that he was accompanied by a young woman and that the automobile belonged to his brother, to outweigh the fact that all the details that were supplied were corroborated. Contrary to the defendant’s suggestion, we think the fact that the defendant gave his name as “Justiniano Torres” sufficiently corroborated the information provided by the tip that “Junior Torres” would be driving the car.

       We have questioned “whether verified information regarding such mundane facts as the defendant’s address and the model of his cars, taken by itself, may properly be found to establish the reliability of an informant” in determining whether an affidavit establishes probable cause. State v. DeFusco, 224 Conn. 627, 644-45 n.24, 620 A.2d 746 (1993). Such verified information can, however, provide a police officer with a reasonable and articulable suspicion, a lesser standard than probable cause, protecting against less intrusive infringements on privacy rights such as Terry stops and, arguendo, canine sniffs. Alabama v. White, supra, 496 U.S. 330.