STATE v. SCHIAPPA, 248 Conn. 132 (1999)

728 A.2d 466

(SC 15696)Supreme Court of Connecticut

Callahan, C.J., and Borden, Norcott, Katz, Palmer, McDonald and Peters, Js.[1]

Syllabus
A dual inculpatory statement is admissible under the hearsay exception for statements against penal interest where the declarant is unavailable to

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testify, where the statement so far tends to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement without believing it to be true and where corroborating circumstances clearly indicate the trustworthiness of the statement. Convicted of the crimes of manslaughter in the first degree in connection with the death of her husband and of hindering prosecution in the first degree, the defendant appealed to the Appellate Court challenging the manslaughter conviction. She claimed, inter alia, that the trial court improperly admitted into evidence a certain hearsay statement made by S, a coparticipant in the crime, linking both S and the defendant to the killing. The Appellate Court reversed the judgment of the trial court, determining that S’ claimed partial memory loss regarding the events surrounding the killing did not make him unavailable to testify for the purpose of satisfying the unavailability requirement of the hearsay exception for statements against penal interest. The Appellate Court further concluded that the trial court improperly permitted the jury to make a preliminary factual finding in connection with determining the admissibility of an adoptive admission by the defendant, who allegedly remained silent when a statement implicating her in her husband’s death was made in her presence. On the granting of certification, the state appealed to this court. Held: 1. The trial court did not abuse its discretion in determining that S was unavailable for purposes of admitting his challenged statement into evidence, S having repeatedly testified to an inability to remember many critical aspects of the events surrounding the commission of the crime, including who stabbed the victim and whether the defendant had participated in the fatal attack. 2. The trial court did not abuse its discretion in allowing the state to introduce against the defendant the challenged statement by S under the hearsay exception for statements against penal interest: S, in light of his claimed memory loss, was unavailable as a witness, the statement was squarely against S’s penal interest, the circumstances under which the statement was made were strongly indicative of its reliability and other evidence strongly corroborated the statement’s truthfulness. 3. The trial court properly rejected the defendant’s claim that the admission of the challenged statement by S violated the defendant’s constitutional right to confrontation; the statement bore “particularized guarantees of trustworthiness,” thereby satisfying the requirements of the confrontation

clause. 4. Contrary to the conclusion reached by the Appellate Court, the trial court’s failure to make a preliminary factual determination regarding the admissibility of an alleged adoptive admission by silence did not implicate the defendant’s due process rights; the admissibility of the adoptive admission presented an evidentiary, not a constitutional, question, and the trial court’s instruction on the subject did not transform

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an evidentiary matter into a constitutional one, nor did the admissibility of the adoptive admission constitute plain error. 5. The defendant could not prevail on her unpreserved claim that the trial court’s instructions regarding reasonable doubt undermined the presumption of innocence and diluted the state’s burden of proof; the charge, viewed in its entirety, adequately apprised the jury that the defendant was entitled to a presumption of innocence unless and until the state proved her guilty beyond a reasonable doubt. 6. The evidence presented was sufficient to support the defendant’s conviction of manslaughter in the first degree. 7. There was no merit to the defendant’s claim that she was entitled to a new trial because the trial court rejected her untimely request for a supplemental jury instruction providing that the evidence in the case did not permit the jury to find that her failure to provide assistance to her husband was the proximate cause of his death; the evidence supported a jury finding that the defendant had participated in the stabbing of the victim.

Argued March 24, 1998

Officially released March 23, 1999

Procedural History
Amended information charging the defendant with the crimes of manslaughter in the first degree, conspiracy to commit murder and hindering prosecution in the first degree, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Maiocco, J.; verdict and judgment of guilty of manslaughter in the first degree and hindering prosecution in the first degree, from which the defendant appealed to the Appellate Court, Dupont, C.J., an Landau and Hennessy, Js., which reversed in part the trial court’s judgment and remanded the case for further proceedings on the charge of manslaughter in the first degree, and the state, on the granting of certification, appealed to this court. Reversed; judgment directed.

Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellant (state).

Elizabeth M. Inkster, assistant public defender, for the appellee (defendant).

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Opinion
PALMER, J.

After a jury trial, the defendant, Kim P. Schiappa, was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(3)[2] and hindering prosecution in the first degree in violation of General Statutes § 53a-166.[3] The trial court rendered judgment in accordance with the jury verdict,[4] and the defendant appealed her manslaughter conviction to the Appellate Court,[5] claiming, inter alia, that the trial court had improperly: (1) admitted a hearsay statement of Stephen Staffy after improperly concluding that Staffy was unavailable due to his purported lack of memory regarding the subject matter of the statement; and (2) allowed the jury to make a preliminary factual finding in connection with the determination of the admissibility of an adoptive admission by silence. The Appellate Court agreed with both of these claims and, accordingly, reversed the trial court’s judgment as to the defendant’s manslaughter conviction and remanded the case for a new trial on that count State v. Schiappa, 44 Conn. App. 731, 692 A.2d 820 (1997). We granted the state’s petition for certification to appeal limited to the two issues upon which the Appellate Court relied in reversing the defendant’s manslaughter conviction.[6]

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State v. Schiappa, 241 Conn. 908, 695 A.2d 541
(1997). Thereafter, pursuant to what is now Practice Book §84-11,[7] the defendant presented for review the following alternate grounds for affirming the judgment of the Appellate Court: (1) even if we conclude that the record supports the trial court’s finding that Staffy was unavailable, the trial court nevertheless improperly admitted Staffy’s out-of-court statement under our hearsay exception for statements against penal interest, which corresponds to Fed.R.Evid. 804(b) (3);[8] (2) the admission of Staffy’s statement violated the defendant’s rights under the confrontation clause of the sixth amendment to the United States constitution;[9]
(3) the trial court

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improperly instructed the jury on reasonable doubt; (4) the trial court failed to include certain language in its supplemental jury charge on first degree manslaughter, thereby depriving the defendant of her due process right to an adequately instructed jury; and (5) the evidence was insufficient to sustain the defendant’s manslaughter conviction. Because we resolve the certified issues in favor of the state and reject the defendant’s alternate grounds for affirmance, we reverse the judgment of the Appellate Court.

The Appellate Court set forth the following relevant facts, which the jury reasonably could have found. “On December 11, 1991, the defendant, an employee at Sikorsky Aircraft in Stratford, and a coworker, Stephen Staffy, met after work. They went to a liquor store and then to Staffy’s house in Trumbull, where he lived with his roommate Gary Meier. The defendant and Staffy arrived at the house at approximately 5 p.m., when Meier, a bartender at the Huntington Inn, was leaving for work. The defendant and Staffy remained at the house, consumed alcohol and engaged in sexual intercourse. Sometime thereafter, they left the house and went to a few bars before stopping at the Huntington Inn, where they saw Meier. They left the Huntington Inn around 11 p.m. and drove to Bridgeport to purchase drugs. While in Bridgeport, they were confronted by the defendant’s husband, James Schiappa [victim].

“Prior to confronting the defendant and Staffy, [the victim], who worked at the Country Home Bakery located in Bridgeport, was working the third shift from 11:30 p.m. to 7:30 a.m. [The victim] requested permission to leave work early, at about 12:50 a.m., because his son James, who was twelve years old, was home alone. Instead of going home, however, [the victim] went looking for his wife, the defendant.

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“As [the victim] approached the defendant and Staffy in his pickup truck, Staffy drove off and unsuccessfully attempted to evade him. [The victim] followed them into Saint John’s cemetery in Stratford and, upon stopping, exited his pickup truck and approached Staffy’s car. Staffy reached into the backseat of his car, grabbed a softball bat, exited his car and then proceeded to hit [the victim] numerous times with the bat. Staffy also kept a knife under the front seat of his car. [The victim] was stabbed in the neck and the back. The defendant and Staffy left the scene and drove back to Staffy’s house.

“An employee of the Ella Grasso Center, located adjacent to the cemetery, heard noises coming from the area of the cemetery at approximately 1:10 a.m. The employee called her supervisor, Delores Evans, and told her what she had heard. After hearing more noises from the same area, Evans called the Stratford police at approximately 1:15 a.m. Officer Thomas Clements was dispatched to the location and, upon entering the cemetery, noticed a pickup truck. Clements exited his patrol car and observed a white male, later identified as [the victim] lying in front of the truck. He showed no signs of life.

“Meanwhile, Meier returned home from work and, before exiting his car, was approached by Staffy who said, `[t]urn off the lights, I just killed somebody.’ As this was said, the defendant was standing behind Staffy. The defendant, Staffy and Meier went into the house and shortly thereafter Staffy, holding a pair of boots and a leather jacket, said to Meier, `[t]his stuff has to go.’ Staffy put the boots, jacket and a knife in a sheath into a plastic bag and gave the bag to Meier, who took it to Juniper Ridge Road and threw it into a pond. He then returned home.

“The next day, a highway supervisor employed by the town of Trumbull noticed that the pond on Juniper

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Ridge Road was high and saw a garbage bag against the outflow pipe. He pulled the bag ashore and in the process ripped the bag. In the bag were a pair of boots, a leather jacket and a knife in a sheath. Detective Richard Yeomans of the Stratford police department was called to the pond and observed the contents of the bag, including a canceled check belonging to Staffy found in the jacket. The items were tested and the tests revealed a blood type matching that of [the victim] on the boots and the jacket.”State v. Schiappa, supra, 44 Conn. App. 732-34. Additional facts will be set forth as necessary.

I
We begin by addressing the first certified issue, namely, “[d]id the Appellate Court properly conclude that the requirement of the unavailability of the declarant was not met with respect to witness Stephen Staffy’s statement?” State v Schiappa, supra, 241 Conn. 908. For the reasons that follow, we agree with the state that, contrary to the conclusion of the Appellate Court, the record supports the trial court’s finding of unavailability. Consequently, we also must consider the defendant’s two alternate bases for excluding Staffy’s statement, namely, that: (1) the statement is not admissible under the hearsay exception for statements against penal interest; and (2) even if admissible as an exception to the hearsay rule, the state’s use of the statement would violate the defendant’s confrontation clause rights. We reject the defendant’s alternate claims.

The following additional facts and procedural history are necessary to our resolution of these issues. “After Meier tossed the plastic bag containing Staffy’s leather jacket, boots and knife into the pond, he returned home and told Staffy to turn himself in to the police. Meier expressed concern to Staffy that the defendant would be caught and implicate Staffy in the crime. According

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to Meier, Staffy responded, `She’s not going to say nothin’. She beat his ass too.'” State v. Schiappa, supra, 44 Conn. App. 734-35. Although Staffy testified that he recalled hitting the victim with a baseball bat, he could remember little else about the killing. Staffy also testified that he did not remember whether he had in fact made such a statement to Meier.

At trial, the state argued that the defendant’s claimed memory loss rendered him unavailable and, furthermore, that the statement otherwise met the requirements of the hearsay exception for statements against penal interest. The defendant maintained that Staffy’s memory loss regarding the killing in general and about the statement in particular did not render him unavailable for purposes of that hearsay exception and, in addition, that the statement did not otherwise qualify as an exception to the hearsay rule. The trial court agreed with the state and overruled the defendant’s objection to Meier’s testimony regarding Staffy’s out-of-court statement.[10]

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On appeal, the Appellate Court determined that the trial court had abused its discretion in finding that Staffy was unavailable and, consequently, concluded that Meier’s testimony about the statement was inadmissible hearsay. In light of its determination that the trial court had improperly found Staffy to be unavailable, the Appellate Court did not address the defendant’s alternate claims that the statement did not satisfy the requirements of the exception to the hearsay rule for statements against penal interest and that the admission of the statement would violate the defendant’s rights under the confrontation clause.[11] We consider each of these issues in turn.

A
We first address the Appellate Court’s determination that the trial court improperly concluded that Staffy was unavailable. “It is necessary to the use of the penal interest exception that the declarant be unavailable.” State v. Bryant, 202 Conn. 676, 694, 523 A.2d 451 (1987); see also State v Lopez, 239 Conn. 56, 74, 681 A.2d 950 (1996). In light of the fact-bound nature of the inquiry, “[t]he trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. A trial court’s determination of the unavailability of a witness will be overturned only if there has been a clear abuse of discretion.” State v Lapointe, 237 Conn. 694, 738, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S.Ct. 484, 136 L.Ed.2d 378 (1996); accord State v. Rivera, 221 Conn. 58, 62, 602 A.2d 571 (1992). In determining whether the declarant is unavailable, we employ the definitions set forth in rule 804(a) of the

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Federal Rules of Evidence.[12] State v Lopez, supra, 74-75; State v. Bryant, supra, 694; State v. Frye, 182 Conn. 476, 481-82, 438 A.2d 735 (1980). In this case, the state claimed, and the trial court agreed, that the declarant, Staffy, was unavailable under rule 804(a)(3),[13] which defines as unavailable a declarant who “testifies to a lack of memory of the subject matter of [his or her] statement.”

We are persuaded that the trial court did not abuse its discretion in concluding that Staffy’s lack of memory regarding the subject matter of his statement rendered him unavailable for purposes of the hearsay exception. Although Staffy was able to recall that he had struck the victim at least once with a baseball bat, he also testified that he was unable to remember much of what had occurred at and around the time of the killing, including what role, if any, the defendant had played

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in the commission of the crime. Among other things, Staffy claimed that he could not recall where on the victim the blow or blows had landed, the number of blows that had landed, whether he had stabbed the victim, whether the defendant had ever exited the vehicle during the assault, whether the defendant had participated in the attack, what clothes he had been wearing at the time, whether his clothes had been covered with blood, whether he had sought to destroy his clothing by burning it in his fireplace, what kind of knife he may have had in his car on the night of the killing, whether he had told Meier to discard certain incriminating items, whether the knife discarded by Meier and later recovered was his knife, whether that knife had been used in the assault, whether Meier had told him to notify the police before the defendant did so, whether he had told Meier that the defendant had “beat [the victim’s] ass too” and whether he had seen the victim lying in a pool of blood after the attack. In sum, Staffy testified that he was unable to recall the answers to over 100 questions related to the killing. Moreover, although Staffy did remember speaking to Meier after the killing, he asserted that he could not recall what he had said to him other than that he had been in a fight.

The Appellate Court determined that because Staffy was able to recall some of the events surrounding the victim’s death, he was not unavailable for purposes of the hearsay exception. We believe that the Appellate Court’s conclusion reflects too narrow a view of rule 804(a)(3), which requires consideration not only of the facts within the witness’ memory, but, also, a review of the facts that the witness is unable to recall. As the record reflects, Staffy was not unable to recall merely minor or insignificant details related to the killing; rather, he repeatedly testified to an inability to remember many critical aspects of both the crime and his attempts to cover it up. Indeed, as we have indicated,

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Staffy purported to have forgotten who stabbed the victim and whether the defendant had participated in the fatal attack. Such partial memory loss reasonably may provide the basis for a finding of unavailability.[14] 2 C. McCormick, Evidence (4th Ed. 1992) § 253, p. 133 (if declarant’s forgetfulness is only partial, it is appropriate to supplement declarant’s testimony with hearsay testimony to extent required); see, e.g., Commonwealth v. Santiago, 541 Pa. 188, 199, 662 A.2d 610 (1995), cert. denied, 516 U.S. 1053, 116 S.Ct. 722, 133 L.Ed.2d 674 (1996) (hearsay exception for former testimony, which requires unavailability, permits admission of former testimony when physically available and competent witness becomes legally “unavailable” due to full or partial memory loss); Commonwealth v. Graves, 484 Pa. 29, 38, 398 A.2d 644 (1979) (proper for court to admit former testimony where declarant has partial memory loss because “necessary testimony is admitted with the opponent being permitted to cross-examine the [declarant] both as to his asserted lack of memory as well as to his present testimony”); see also United States v. MacDonald, 688 F.2d 224, 233 n. 14 (4th Cir. 1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983) (although declarant testified at length at trial, her asserted memory loss regarding certain statements she allegedly made rendered her unavailable for purposes of Fed.R.Evid. 804 [a]); United States v. Amaya, 533 F.2d 188, 191 (5th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977) (declarant’s memory loss rendered him unavailable to testify at

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trial); McDonnell v. United States, 472 F.2d 1153, 1155 (8th Cir. 1973) (same). But see North Mississippi Communications, Inc. v. Jones, 792 F.2d 1330, 1336-37 (5th Cir. 1986) (trial court did not abuse its discretion in refusing to allow witness to testify about conversation she allegedly had with declarant, who testified at trial and remembered general subject matter of conversation but could not recall details). In light of Staffy’s asserted inability to remember many of the material facts relating to the events leading up to, culminating in and following the victim’s death, including the substance of his statement to Meier, the trial court was within its discretion in concluding that Staffy was unavailable for purposes of allowing Meier to testify about Staffy’s statement.

B
Having concluded that the trial court did not abuse its discretion in finding Staffy to be unavailable, we now consider the defendant’s claim, not addressed by the Appellate Court, that the trial court improperly admitted Meier’s testimony under the statement against penal interest exception to the hearsay rule. Specifically, the defendant contends that dual inculpatory statements[15] are per se inadmissible under rule 804 (b)(3).[16] See footnote 8. Alternatively, the defendant maintains that the state has failed to satisfy the requirements of rule 804(b)(3), including the rule’s second sentence, which, the defendant claims, requires proof of “corroborating circumstances clearly indicat[ing] the trustworthiness of the statement” for dual inculpatory statements as well as for statements against penal interest offered to exculpate the defendant. For the reasons that follow, we conclude that: (1) rule 804

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(b)(3) does not erect an absolute bar to the state’s use of a dual inculpatory statement against the defendant; (2) the second sentence of the rule is equally applicable to both dual inculpatory statements and statements against penal interest offered to exculpate the accused;[17] and (3) the trial court properly determined that Staffy’s statement to Meier satisfied the requirements of rule 804(b)(3).

“The hearsay rule . . . is premised on the theory that out-of-court statements are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener. And the ways in which these dangers are minimized for in-court statements — the oath, the witness’ awareness of the gravity of the proceedings, the jury’s ability to observe the witness’ demeanor, and, most importantly, the right of the opponent to cross-examine — are generally absent for things said out of court.

“Nonetheless, the . . . [r]ules of [e]vidence also recognize that some kinds of out-of-court statements are less subject to these hearsay dangers, and therefore except them from the general rule that hearsay is inadmissible. One such category covers statements that are against the declarant’s [penal] interest. . . .” Williamson v. United States, 512 U.S. 594, 598-99, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). This hearsay “exception

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In State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148
(1980), we expressly adopted the definition of statement against penal interest contained in Fed.R.Evid. 804(b)(3). Id., 642-43 (“We are persuaded of the logic and soundness of [ Fed.R.Evid. 804(b)(3)] and the trend to reject a narrow and inflexible definition of a statement against penal interest. . . . Here, we . . . adopt the definition of statement against penal interest contained in the Federal Rules of Evidence.”). Previously, in State v. DeFreitas, 179 Conn. 431, 450, 426 A.2d 799 (1980), we had “adopted a rule, consistent with Chambers v. Mississippi, supra, [410 U.S. 295] and in accord with rule 804(b)(3) . . . which provides that trustworthy third party statements against penal interest which are exculpatory to the defendant are admissible if the declarant is unavailable.”[18]
(Emphasis added.) State v. Bryant, supra, 202 Conn. 692; accord State v. Boyd, 214 Conn. 132, 138, 570 A.2d 1125 (1990), on appeal after remand, 221 Conn. 685, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S.Ct. 344, 121 L.Ed.2d 259 (1992).

The state maintains, contrary to the defendant’s claim, that, under rule 804(b)(3), third party statements against penal interest that inculpate the defendant also are admissible if the requirements of the rule are satisfied. We agree with the state.

Rule 804(b)(3) carves out an exception to the hearsay rule for an out-of-court statement made by an

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unavailable declarant if the statement “at the time of its making . . . so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Fed.R.Evid. 804(b)(3). The rule further provides that such a statement is not admissible if “offered to exculpate the accused . . . unless corroborating circumstances clearly indicate the trustworthiness of the statement.” (Emphasis added.) Id. “However, the rule does not in express terms, as finally promulgated, regulate the admission of such a statement when offered to inculpate
the accused.[19] Nevertheless, the rule clearly contemplates the admission, under appropriate circumstances, of such inculpatory (to a criminally accused) statements against the declarant’s penal interest.” (Emphasis in original.) United States v. Sarmiento-Perez, 633 F.2d 1092, 1098 (5th Cir. 1981), cert. denied, 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 75 (1982). Thus, as the United States Supreme Court has stated, “[t]here are many circumstances in which Rule 804(b)

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(3) does allow the admission of statements that inculpate a criminal defendant.” Williamson v. United States, supra, 512 U.S. 603.[20] In addition, the federal Circuit Courts of Appeals uniformly have held that trustworthy, dual inculpatory statements fall squarely within the purview of Fed.R.Evid. 804(b)(3). See United States
v. Moses, 148 F.3d 277, 280-81 (3d Cir. 1998) United States v. Barone, 114 F.3d 1284, 1300-1301 (1st Cir.), cert. denied, 522 U.S. 1021, 118 S.Ct. 614, 139 L.Ed.2d 500 (1997); United States v. Gio, 7 F.3d 1279, 1287-88 (7th Cir. 1993); United States v Williams, 989 F.2d 1061, 1068 (9th Cir. 1993) United States v. Taggart, 944 F.2d 837, 840
(11th Cir. 1991); United States v. Katsougrakis, 715 F.2d 769, 774-75 (2d Cir. 1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984); United States v Riley, 657 F.2d 1377, 1382-83 (8th Cir. 1981) United States v. Sarmiento-Perez, supra, 633 F.2d 1098-99. Indeed, the defendant has identified no case, and we have found none, in which a court has erected a per se bar to the admission of dual inculpatory statements under rule 804(b) (3). In accordance with unanimous federal precedent, we see no reason to do so here.

The defendant asserts that State v. Boyd, supra, 214 Conn. 132, supports her claim for such a prohibition. We disagree. In Boyd, the police arrested a codefendant who, while in custody, provided the police with a written statement inculpating both himself and the defendant in a felony murder. Id., 134, 140. At the probable

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cause hearing, the trial court allowed the state to use the codefendant’s statement against the defendant. We reversed the defendant’s conviction on the ground that the trial court had abused its discretion in admitting the codefendant’s statement.[21] However, our holding in Boyd, consistent with the great weight of authority, rested on the fact that a statement of a codefendant in police custody generally does not satisfy the requirements of rule 804(b)(3), for “in such situations there exists obvious motives for falsification — the very natural desire to curry favor from the arresting officers, the desire to alleviate culpability by implicating others, the enmity often generated in a conspiracy gone awry, the desire for revenge, all [of which] might lead an arrestee-declarant to misrepresent or to exaggerate the role of others in the criminal enterprise.”[22] (Internal quotation marks omitted.) Id., 140, quoting United States
v. Sarmiento-Perez, supra, 633 F.2d 1102; see als United States v. Oliver, 626 F.2d 254, 261 (2d Cir. 1980). Thus, as our Appellate Court aptly observed, in concluding that trustworthy, dual inculpatory statement are admissible, “Boyd does not create a blanket rule of inadmissibility of all declarations against penal interest when they are inculpatory as to both the declarant and the defendant. Instead, based upon the traditional analysis of trustworthiness, such statements are inadmissible when made after the crime is complete and when made in a custodial environment to a custodian such as a law enforcement officer.” State v Lynch, 21 Conn. App. 386, 396, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990); see als Latine v. Mann,

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25 F.3d 1162, 1166-67 (2d Cir. 1994) (declarant’s dual inculpatory statement made during “a formal police interrogation . . . cannot be introduced against a defendant as evidence of his [or her] guilt unless other evidence demonstrates that the defendant adopted or authorized the statement”).

In light of our conclusion that rule 804(b)(3) does not bar the admission of all dual inculpatory statements, we now must decide whether the second sentence of the rule, which renders a statement against penal interest inadmissible when offered t exculpate the defendant “unless corroborating circumstances clearly indicate the trustworthiness of the statement,” also applies to a statement against penal interest offered to inculpate the defendant. We conclude that it does.

To begin with, we note that both the state and the defendant agree that the second sentence of rule 804(b)(3) is applicable to dual inculpatory statements. Although we are not bound to adopt the position taken jointly by the parties, we are persuaded by the rationale they set forth in support of their conclusion regarding the applicability of the second sentence of the rule to dual inculpatory statements.

First, we agree with the parties that the requirement of corroborating circumstances clearly indicating the trustworthiness of a dual inculpatory statement greatly reduces the possibility of a confrontation clause[23]
violation, even though the statement properly may be admitted under rule 804(b)(3). “The admission of out-of-court statements by an unavailable declarant to inculpate a third party requires careful thought. Because the defendant has no opportunity to cross-examine the witness, the court must be thoroughly satisfied that the

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extended the corroboration requirement to statements that inculpate the accused . . . we have applied the rule as if corroboration were required for such statements” [citation omitted]); cf. United States v. Boyce, 849 F.2d 833, 836 (3d Cir. 1988) (“trustworthiness and reliability of the statement [must] be corroborated by the `totality of circumstances'”).

In light of the significant confrontation clause issues presented by the use of a third-party statement offered t inculpate an accused, we believe that it would be incongruous to allow the admission of such a statement under a less restrictive standard than that employed for determining the admissibility of an exculpatory third party statement offered under rule 804(b)(3) “where [the] confrontation clause values at issue are minimal.” United States v Sarmiento-Perez, supra, 633 F.2d 1099; see als United States v. Riley, supra, 657 F.2d 1381 n. 5 (“[t]he admissibility of exculpatory statements presents similar evidentiary problems but does not involve the same constitutional issues that inculpatory statements raise”). Furthermore, the interpretation of rule 804(b)(3) that we approve today provides a uniform standard for statements against penal interest offered under the rule that either inculpate or exculpate the defendant. See United States v Riley, supra, 1383 n. 7; United States v Alvarez, supra, 584 F.2d 701.

In accordance with this persuasive authority, we hold that a dual inculpatory statement is admissible as a statement against penal interest under rule 804(b)(3) only upon a showing by the statement’s proponent that: (1) the declarant is unavailable as a witness; (2) the statement so far tended to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true; and (3) corroborating circumstances clearly indicate the trustworthiness of

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the statement. Although “there can be no precise formulation of the proof which would constitute sufficient evidence of the trustworthiness of a third party declaration against penal interest”; (internal quotation marks omitted) State v. Bryant, supra, 202 Conn. 693-94; we have identified several general considerations relevant in determining the reliability of such a statement, including the time of the declaration, the party to whom it was made, the extent to which the declaration is squarely against the declarant’s penal interest, and the extent to which the statement is otherwise corroborated. See id., 693. Because the question of whether a dual inculpatory statement is admissible under rule 804(b)(3) “can only be answered in light of all the surrounding circumstances”; Williamson v United States, supra, 512 U.S. 603-604; “[n]o single factor for determining trustworthiness . . . is necessarily conclusive.” (Internal quotation marks omitted.) State
v. Bryant, supra, 694. Rather, the trial court must carefully weigh all of the relevant factors in determining whether the statement bears sufficient indicia of reliability to warrant its admission.[26]

With these principles in mind, we turn to the question of whether Meier’s testimony regarding Staffy’s statement to him implicating the defendant in the crime was admissible under rule 804(b)(3). Having already decided that Staffy, in light of his claimed memory loss, was unavailable within the meaning of rule 804(a)(3); see part I A of this opinion; we now must determine whether the statement satisfies the other requirements

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of the rule. As we previously have stated, “[t]he determination whether a third party declaration against penal interest is trustworthy lies in the sound discretion of the trial court.”State v. Bryant, supra, 202 Conn. 694. We agree with the state that the trial court did not abuse its discretion in allowing Meier to testify about the statement.

First, the statement was squarely against Staffy’s penal interest. Although Staffy implicated the defendant in the homicide, he admitted his own participation in the crime by reference to the fact that the defendant had “beat [the victim’s] ass too.” (Emphasis added.) Moreover, there is nothing to suggest that Staffy was attempting to shift blame or responsibility to the defendant or to otherwise minimize his own criminal involvement; he simply was trying to explain to Meier why the defendant had her own reasons to keep quiet about the killing.[27] See State v. Hallum, 585 N.W.2d 249, 255 (Iowa 1998) (“[a]lthough declarations such as `we killed [him]’ could be viewed as an attempt to share
blame, they could not reasonably be seen as an attempt t shift blame away from [the declarant] because [such] assertions [implicate the declarant] fully and equally
in the [crime]” [emphasis in original]).

Second, the circumstances under which the statement was made are strongly indicative of its reliability. Staffy made the statement to his roommate, Meier, in whom he previously had confided that he had “just killed somebody.” Indeed, Staffy trusted Meier to such a degree that he enlisted him to dispose of the incriminating evidence. Furthermore, the statement was made in the immediate aftermath of the killing, while Staffy was still trying to conceal the crime. In light of Staffy’s

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relationship with Meier and Meier’s expressed concern for Staffy’s well-being, Staffy had no apparent motive to lie to Meier about the defendant’s involvement in the crime, a role that Staffy acknowledged only in response to Meier’s suggestion that the defendant might inform the police of the killing.

Finally, other evidence strongly corroborates the truthfulness of Staffy’s statement.[28] Although, at trial,

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Staffy purported not to remember what role, if any, the defendant had played in the victim’s murder, he testified that the defendant was with him when he bludgeoned the victim with the baseball bat. In addition, Arkady Katsnelson, a pathologist with the office of the chief medical examiner, testified that, based upon the nature of the victim’s wounds, it was likely that one person had inflicted the blunt trauma wounds and, thereafter, that another person had inflicted the stab wounds.[29]
Because the evidence established that Staffy and the defendant were the only two people other than the victim present when the victim was killed, Katsnelson’s testimony, coupled with the defendant’s presence at the scene, substantially inculpated the defendant. Moreover, the defendant, instead of notifying the authorities about her husband’s death, concocted a false alibi whereby her cousin, at the defendant’s urging, agreed to say that she and the defendant were socializing together at the time of the killing.[30] Finally, the defendant lied to the police several times regarding her whereabouts at the time of the killing. This conduct also supports the conclusion that the defendant played a guilty role in her husband’s murder.[31]

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In light of all of the circumstances, we conclude that the state met its burden of establishing that Staffy’s dual inculpatory statement was admissible under rule 804(b)(3). Accordingly, the trial court did not abuse its discretion in allowing the state to introduce that statement against the defendant under the rule.

C
Finally, we must decide whether the state’s use of Meier’s testimony about Staffy’s statement to Meier, implicating the defendant in the homicide, violated the defendant’s rights under the federal confrontation clause. We conclude that the statement did not contravene the defendant’s constitutionally protected right to confront the state’s witnesses against her.

The United States Supreme Court has held that the confrontation clause of the sixth amendment to the United States constitution does not necessarily bar the admission of hearsay statements against a criminal defendant. Idaho v Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); see also id., 814 (“[w]hile a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, [the] Court has rejected that view as unintended and too extreme” [internal quotation marks omitted]). “Certain hearsay statements are admissible if (1) the declarant is unavailable to testify, and (2) the statement bears adequate indicia of reliability Ohio v. Roberts, 448 U.S. 56, 66, [100 S.Ct. 2531], 65 L.Ed.2d 597 (1980). . . . A statement is presumptively reliable if it falls within a firmly rooted hearsay exception. [Id.] A hearsay exception is firmly rooted if it rest[s] upon such solid foundations that admission of virtually any evidence within [it] comports with the substance of constitutional protection. Id. Evidence admitted under such an exception thus is presumed to be so trustworthy that adversarial testing

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would add little to its reliability. Idaho v Wright, [supra, 821]. Evidence that does not fall within a firmly rooted hearsay exception, however, is inadmissible under the Confrontation Clause absent a showing of particularized guarantees of trustworthiness. Ohio v. Roberts, [supra, 66].”[32] (Citations omitted; internal quotation marks omitted.) Latine v. Mann, supra, 25 F.3d 1166.

Whether the statement against penal interest exception to the hearsay rule is “firmly rooted” for confrontation clause purposes is a question that has yet to be definitively resolved. Se Williamson v. United States, supra, 512 U.S. 605 (declining to decide “whether the hearsay exception for declarations against interest is `firmly rooted'” and noting split among federal appeals courts on issue). We need not reach that issue, however, because, for the reasons already enumerated; see part

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I C of this opinion;[33] the statement bears “particularized guarantees of trustworthiness,” thereby satisfying the requirements of the confrontation clause.[34] See Ohio v. Roberts, supra, 448 U.S. 66; Latine v. Mann, supra, 25 F.3d 1167. The trial court, therefore, properly rejected the defendant’s claim under the sixth amendment.[35]

II
The state claims that the Appellate Court incorrectly concluded that the trial court improperly allowed the

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jury to make a predicate factual finding in determining the admissibility of an adoptive admission by silence. We agree.

The following additional facts relevant to this issue are set forth in the opinion of the Appellate Court. “In Meier’s December 15, 1991 statement to the police, he stated that Staffy, in response to Meier’s inquiry about what happened, said, `[h]er old man started some shit and I killed him. Or we
killed him.’ At trial, Meier testified that after [he] arrived home from work on December 12, 1991, Staffy said, `[h]er old man started some shit and I killed him.’ On cross-examination Meier testified that he did not think that Staffy said `[w]e killed him.’ On redirect examination Meier was asked, after reviewing his sworn police statement of December 15, 1991, whether reviewing the statement helped him recall what Staffy had said, and Meier responded, `I don’t believe so.’ The trial court charged the jury that it should make the preliminary determination as to what was said and thereafter, based on that determination, [could] consider the statement as an adoptive admission by silence on the part of the defendant.”[36] (Emphasis

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in original.) State v. Schiappa, supra, 44 Conn. App. 740-41. The defendant did not submit a request to charge the jury on this issue, nor did she object to the state’s use of the statement or to the trial court’s instruction on adoptive admissions by silence.

The defendant claimed, and the Appellate Court agreed, that the trial court’s charge violated her due process right to an adequately instructed jury.[37] The Appellate Court concluded that the defendant was entitled to prevail on her claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the jury charge violated her constitutional right to an adequately instructed jury.[38] State v. Schiappa, supra, 44 Conn. App. 742.

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Specifically, the Appellate Court determined that because the trial court was obligated to make a preliminary determination regarding the threshold admissibility of Staffy’s statement, including a determination whether the evidence supported a finding that Staffy had said “[w]e killed him”; (emphasis added); the court’s instruction requiring the jury to decide whether the statement implicated the defendant in the crime was constitutionally improper.[39] See id.

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We disagree with the Appellate Court that the defendant is entitled to prevail on this claim. It is well established that “a defendant can prevail on a claim of constitutional error not preserved at trial 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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.)State v. Golding, supra, 213 Conn. 239-40. The defendant’s claim fails under the second and third prongs o Golding. Because the question of whether a third party statement may be used against the defendant as an adoptive admission by silence is an evidentiary issue; see, e.g. State v. Moye, 199 Conn. 389, 393, 507 A.2d 1001 (1986); State v. Morrill, 197 Conn. 507, 535, 498 A.2d 76 (1985); the admissibility of Meier’s testimony regarding Staffy’s out-of-court statement presented an evidentiary, not a constitutional, question. As we previously have stated, a nonconstitutional claim cannot be transformed into a constitutional claim simply by virtue of the label placed upon it by a party. State v. Taylor, 239 Conn. 481, 502-503, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997); State v Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993); se State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). Thus, contrary to the conclusion of the Appellate Court, the trial court’s

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failure to make a preliminary factual determination regarding the admissibility of Staffy’s statement did not implicate the defendant’s due process rights.

The Appellate Court concluded that the trial court’s impropriety in allowing the jury to make the preliminary factual determination regarding the admissibility of the defendant’s alleged adoptive admission by silence was an error of constitutional magnitude because the court’s jury charge on the issue was improper. Not every improper jury charge, however, results in constitutional error. Although an improper instruction that relates to a constitutionally protected right is likely to fall into that category, an instruction that does not relate to such a right is not apt to give rise to a constitutional violation. As we stated in State v. Walton, supra, 227 Conn. 32, “[j]ust as every claim of evidentiary error by the trial court is not truly constitutional in nature . . . every claim of instructional error is not truly constitutional in nature. We have recognized, for example, that claimed instructional errors regarding the elements of an offense . . . and claimed instructional errors regarding the burden of proof or the presumption of innocence . . . are constitutional in nature, so as to satisfy the second Golding requirement. We have also recognized, however, that claimed instructional errors regarding general principles of credibility of witnesses are not constitutional in nature. . . . Indeed, it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.” (Citations omitted.) Id., 64-65. Thus, the mere fact that a court instructs the jury in a manner consistent with the court’s flawed evidentiary ruling does not in and of itself transform the error from an evidentiary matter into a constitutional one. “Robing garden variety claims of improper jury instructions concerning evidentiary

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matters in the majestic garb of constitutional claims does not make such claims constitutional in nature.” State v Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). In circumstances where, as here, the defendant cannot establish that the unpreserved claim of an improper jury instruction violated her constitutional rights, the defendant cannot prevail under Golding.

The defendant also seeks reversal of her first degree manslaughter conviction under the plain error doctrine.[40] “The defendant cannot prevail under [that doctrine] however, unless [she] demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.”State v. Day, 233 Conn. 813, 849, 661 A.2d 539
(1995). “Plain error review is reserved for truly extraordinary situations”; (internal quotation marks omitted) State v Taylor, supra, 239 Conn. 502; and “is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Moreover, because the claim raised here is nonconstitutional, the defendant must demonstrate that the trial court’s improper action likely affected the result of [her] trial.” (Citations omitted; internal quotation marks omitted.)State v. Day, supra, 849-50.

We reject the defendant’s claim under the plain error doctrine. The trial court instructed the jury that it could not consider Staffy’s statement to Meier, which inculpated the defendant, as an adoptive admission unless it first determined that the state had proven that the statement incriminated the defendant. See footnote 36. Because, as the defendant contends,

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the evidence was insufficient to support a finding that Staffy had said “[w]e killed him,” and not “I killed him”;[41] (emphasis added); then the jury, in accordance with the court’s instructions, was not free to consider the defendant’s silence in response to Staffy’s statement as an adoptive admission by silence. See, e.g. State v. Jimenez, 228 Conn. 335, 342, 636 A.2d 782 (1994) (jury presumed to follow court’s instructions absent clear indication to contrary); State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992) (same). In such circumstances, the likelihood that the defendant was prejudiced by the court’s failure to make the requisite preliminary factual determination regarding the admissibility of the alleged adoptive admission was slight. Furthermore, we already have concluded that the trial court properly allowed the state to introduce into evidence Staffy’s statement to Meier indicating that the defendant had “beaten [the victim’s] ass too.” See part I B of this opinion. Consequently, Meier’s testimony relating to the defendant’s purported adoptive admission by silence was merely cumulative of other admissible evidence and, therefore, posed no reasonable likelihood of unfair prejudice to the defendant. Thus, the defendant has not shown that the trial court’s failure to make a preliminary factual finding regarding the admissibility of the defendant’s alleged adoptive admission resulted in any unfair prejudice to the defendant. Absent such prejudice, the defendant cannot prevail under the plain error doctrine.

III
The defendant also claims that the trial court improperly instructed the jury on reasonable doubt in violation

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of her fifth amendment right to due process and sixth amendment right to a jury trial. Specifically, she asserts that the trial court’s charge to the jury that the principle requiring the state to establish guilt beyond a reasonable doubt is a “rule of law . . . made to protect the innocent and not the guilty” impermissibly undermined the presumption of innocence, thereby diluting the state’s burden of proof.[42] Although we disapprove of the challenged language and, pursuant to our supervisory authority over the administration of justice, direct our trial courts to refrain from using the challenged language in future cases, we nevertheless reject the defendant’s constitutional claim.[43]

The following summary of the pertinent portions of the trial court’s charge is necessary to our resolution of the defendant’s claim. Prior to trial, the court, in its preliminary instructions, informed the jury that the information was merely a charging document, not evidence, and that it gave rise to no inference of guilt. During its brief description of the charged offenses, the court reminded the jury on four separate occasions that the state bore the burden of proof. Thereafter, the court apprised the jury that the defendant had no obligation to offer evidence or otherwise establish her innocence. After noting again that the state bears the burden of proof, the court informed the jury that “every defendant in a criminal case is presumed to be innocent and this presumption of innocence remains with the defendant throughout the trial unless and until she is proven guilty beyond a reasonable doubt.” The court then reiterated that the state has the burden of proving the defendant’s

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guilt beyond a reasonable doubt and, further, that this burden never shifts to the defendant.

In its final instructions to the jury at the conclusion of the trial, the court stated that “the state has the burden of proof as to all the necessary elements of the crimes charged beyond a reasonable doubt and the defendant has [no] burden to prove or disprove anything.” The jury was instructed further that it must acquit the defendant if the state failed to establish “each and every element of the particular crime charged beyond a reasonable doubt. . . .” The court then charged the jury on circumstantial evidence, concluding with yet another reminder that the defendant is entitled to an acquittal if the state failed to satisfy its burden of proving the defendant guilty beyond a reasonable doubt.

The court thereafter instructed the jury in detail regarding the presumption of innocence and reasonable doubt: “[I]n this case, as in all criminal cases, the accused is presumed to be innocent until and unless she is proven guilty. That is, that at the moment that [the defendant] was presented before you for trial, nothing that you knew about her past, or might surmise or guess about her past, should be considered by you at all. Her slate was wiped clean at that moment, and she stood before you free from any bias, prejudice or burden arising from her position as an accused. As far as you were concerned, she was then innocent and she continues [to be] innocent until such time as the evidence and matters produced here in this very courtroom, in the course of this very trial, satisfy you that she is guilty. Up to the moment that you are so satisfied from what has taken place here in the courtroom that she is guilty, insofar as you are concerned up to that moment, she was innocent of the crimes of which she was charged. The burden then is on the state to prove an accused guilty of the crime or crimes with which she is charged

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and the accused does not have to prove her innocence. That means that the state must prove every element necessary to the particular crime as charged beyond a reasonable doubt.” After defining the concept of reasonable doubt,[44] the trial court again reminded the jury that the defendant “is under no obligation to prove her innocence. . . .” Then, prior to its instructions on the substantive offenses, the court advised the jury that it should draw no inference of guilt merely because the defendant had been charged with a crime, noting that “[o]nly the testimony and exhibits presented during the course of the trial through the witnesses constitute the evidence in the case that is probative to your deliberations.”

Finally, in explaining that the jury was required to render a verdict of not guilty if the facts and the law so required, the court instructed the jury in terms that contained the allegedly improper language: “Now, the state does not desire the conviction of an innocent person or any person whose guilt upon the evidence is in the realm of reasonable doubt. The state has as much concern in having an innocent person acquitted as in having a guilty person punished. But for the safety and well being of all the persons of the state, and for the protection of life and property, the state is concerned in securing the conviction of persons who have been proven by the evidence to have been guilty of committing a crime beyond a reasonable doubt. It is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence which the law imputes to every person so charged by making the state meet its burden of proof of guilt beyond a reasonable doubt. But you

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must keep in mind that this rule of law is made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and to render verdicts of guilty.” (Emphasis added.)

“In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied . . . is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.)State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995); accord State v. Faust, 237 Conn. 454, 473-74, 678 A.2d 910 (1996); see also State v Hines, 243 Conn. 796, 818-19, 709 A.2d 522 (1998). Although we recently have suggested that trial courts either omit the challenged language or modify it to avoid any “possibility that a juror . . . might be given to understand from it that only innocent persons should be acquitted”;[45] State v. Francis, 228 Conn. 118, 136 n. 19, 635 A.2d 762 (1993); we nevertheless have concluded repeatedly that such language, when considered in light of the charge as a whole, could not possibly have confused the jury regarding the state’s burden of

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proving its case beyond a reasonable doubt. State v Faust, supra, 477-78; State v Cassidy, 236 Conn. 112, 145, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996) State v. Palmer, 196 Conn. 157, 168-69, 491 A.2d 1075 (1985); see State v. Ellis, 232 Conn. 691, 705-706, 657 A.2d 1099 (1995); State v Francis, supra, 135; State v. Walton, supra, 227 Conn. 66-67; State v. Tucker, 226 Conn. 618, 651-52, 629 A.2d 1067 (1993); State v Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992) State v. Thomas, 214 Conn. 118, 119-21 n. 1, 570 A.2d 1123 (1990); State v. Just, 185 Conn. 339, 352-53, 441 A.2d 98 (1981); State v Guthridge, 164 Conn. 145, 154, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S.Ct. 1519, 36 L.Ed.2d 186 (1973) State v. Cari, 163 Conn. 174, 180-81, 303 A.2d 7 (1972); cf. State v. Colonese, 108 Conn. 454, 460, 143 A. 561 (1928).

For the reasons stated in previous cases, and in light of the totality of the trial court’s instructions in this case, we see no compelling reason to deviate from our prior constitutional precedent. The court, in clear and legally correct terms, repeatedly apprised the jury regarding the presumption of innocence and the state’s burden of establishing guilt beyond a reasonable doubt. Moreover, the challenged portion of the instruction was immediately preceded by language underscoring the presumption of innocence and the state’s burden of proof: “It is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting th presumption of innocence which the law imputes to every person so charged by making the state meet it burden of proof of guilt beyond a reasonable doubt.” (Emphasis added.) Furthermore, the allegedly improper language was immediately followed by an instruction that again emphasizes these two critical constitutional principles: “If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty

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of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and to render verdicts of guilty.” (Emphasis added.) These two sentences, taken together with the court’s repeated explanations of the presumption of innocence and the state’s burden of proving the defendant guilty beyond a reasonable doubt, eliminated any reasonable likelihood of juror misunderstanding as to the state’s burden and the proof necessary for a conviction. See State v. Francis, supra, 228 Conn. 136 n. 19 (“[u]nder these circumstances, it is unlikely that a reasonable juror would have heard the challenged language as meaning anything more than the language that followed it, namely, that if the jurors were convinced of the defendant’s guilt beyond a reasonable doubt, they are obligated to convict”). Thus, the trial court’s charge, when viewed in its entirety, adequately apprised the jury that the defendant was entitled to a presumption of innocence unless and until the state proved her guilty beyond a reasonable doubt.

The defendant, in reliance on a recent decision of the United States Court of Appeals for the Second Circuit, United States v. Doyle, 130 F.3d 523 (2d Cir. 1997), contends that we should reconsider our long-standing precedent and declare the challenged charge unconstitutional. I Doyle, the court reversed the defendant’s convictions due to the federal district court’s use of the same language at issue in this case. Id., 533, 540. In reaching its conclusion, the court in Doyle acknowledged that the Second Circuit, in an unbroken line of cases from 1950 to 1996, had affirmed convictions despite the trial court’s use of language indicating that the reasonable doubt standard is designed to protect the innocent and not the guilty. Id., 533; see United States v. Ciak, 102 F.3d 38, 45-46 (2d Cir. 1996); United States
v. Bifield, 702 F.2d 342, 351 (2d Cir. 1983); United States
v. Farina, 184 F.2d 18, 20-21 (2d Cir.), cert. denied, 340 U.S. 875, 71 S.Ct. 121, 95 L.Ed. 636 (1950).

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In recent years, the Second Circuit has recognized that “it is better practice to avoid using [such] language. . . .”United States v. Bifield, supra, 351; accor United States v. Ciak, supra, 45. Unti Doyle, however, the Second Circuit consistently had held that the challenged instruction was not grounds for reversal. In each case, the court reviewed the objectionable language in the broader context of the entire charge, concluding that any possibility of juror confusion had been eliminated by the trial court’s otherwise accurate and repeated instructions on reasonable doubt and the presumption of innocence. See United States v. Ciak, supra, 46; United States
v. Bifield, supra, 351; United States v Farina, supra, 21.

In Doyle, the Second Circuit recognized that, i Ciak and Bifield, it had “identified two factors that sufficiently mitigated any harm resulting from the challenged language: (1) [t]he [trial] court instructed the jury specifically and repeatedly that [the defendant] was innocent when presented for trial and continued to be innocent until such time, if ever, as the government proved his guilt beyond a reasonable doubt, and (2) [t]he court stressed that [the defendant] did not have to prove his innocence, but rather that the government had to prove his guilt.” (Internal quotation marks omitted.) United States v. Ciak, supra, 102 F.3d 45, quoting United States v. Bifield, supra, 702 F.2d 351. In accordance with Ciak an Bifield, the court in Doyle expressly acknowledged that “instructions correctly explaining the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt, when given repeatedly . . . can render a charge in its entirety adequate to avoid reversal, despite inclusion of the objectionable `protect-the-innocent’ language. . . .” (Citations omitted; internal quotation marks omitted.) United States v. Doyle, supra, 130 F.3d 539. The court in Doyle went on to conclude, however, that,

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unlike the instructions given by the trial courts i Ciak, Bifield and Farina, the instructions given by the trial court in Doyle, when taken as a whole, were not sufficient to overcome the risk of juror confusion created by the court’s use of the challenged language.[46] Id.

Because the guilty as well as the innocent are entitled to the protections afforded by the presumption of innocence and the reasonable doubt standard, the challenged portion of the charge, when viewed in isolation, gives rise to a danger of juror misunderstanding. Indeed, it was in recognition of that risk that we suggested that the challenged language be omitted altogether or, alternatively, that it be substantially modified. See footnote 45. We believe that the time has come for us to ensure that the challenged language is not included in any future jury instructions. Accordingly, in the exercise of our supervisory authority over the administration of justice,[47] we direct our trial courts to refrain from the use of that language in the future.

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We nevertheless are satisfied that, as Judge Augustus Hand stated for the Farina majority, “the [trial court’s] instructions [in the present case] were so clear and explicit [and] that any generalization indulged in by the [court] to the effect that the presumption was not intended as a bulwark behind which the guilty might hide could not . . . mislead the jury regarding the duty of the [state] to go forward with convincing proof before a verdict of guilty could properly be rendered.”United States v. Farina, supra, 184 F.2d 21. Because, under the third prong of Golding, “[a] defendant may prevail

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. . . on a claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled”; (internal quotation marks omitted) State v. Webb, 238 Conn. 389, 456, 680 A.2d 147 (1996); we reject the defendant’s constitutional claim.

IV
The defendant also claims that the state failed to adduce evidence sufficient to warrant her conviction for manslaughter in the first degree. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. James, 237 Conn. 390, 435, 678 A.2d 1338 (1996). In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995).

“While the [trier of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be [proven] beyond a reasonable doubt. . . . If it is reasonable and logical for the [trier] to conclude that a basic fact or an inferred fact is true, the [trier] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the

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evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . State v Newsome, 238 Conn. 588, 617, 682 A.2d 972 (1996). Moreover, [i]n evaluating evidence that could yield contrary inferences, the [trier of fact] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [trier], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . State v. DeJesus, supra, 196; see also State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).” (Internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489-90, 698 A.2d 898 (1997).

Upon application of these principles, we conclude that the jury verdict was adequately supported by the evidence. Staffy testified, without contradiction, that the defendant was present with him when he assaulted the victim with a baseball bat. Staffy also testified that he generally kept a knife in his car. According to Meier, Staffy told him shortly after the crime that the defendant had “beat [the victim’s] ass too.” Furthermore, the medical examiner, Katsnelson, indicated that the defendant’s death had been caused by blunt trauma wounds and by stab wounds, and that it was unlikely that the same person caused both sets of wounds. The defendant also

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created a false alibi in an effort to establish that she was not present when the victim was killed and lied repeatedly to the police about her whereabouts the night of the killing. The jury reasonably could have considered this conduct, along with the defendant’s failure to inform the authorities of her husband’s violent death, as convincing proof that the defendant was more than an innocent bystander who bore no responsibility for the victim’s death. In light of this evidence, the jury reasonably could have concluded that the defendant was guilty of the crime of first degree manslaughter beyond a reasonable doubt.

V
The defendant’s final claim is that the trial court improperly failed to give the jury her requested supplemental instruction on the crime of manslaughter in the first degree. We are unpersuaded.

The following additional facts are necessary to our resolution of this claim. At the conclusion of the evidence, the trial court instructed the jury on the applicable legal principles. The defendant did not object to the court’s charge on the elements of the offense of first degree manslaughter.

After commencing its deliberations, the jury forwarded a note to the trial court that contained the following question: “What constitutes extreme indifference to [human] life?” Thereafter, the trial court, with the agreement of counsel, reinstructed the jury regarding the meaning of “extreme indifference to human life” in a manner consistent with the court’s original charge.[48]

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Neither the state nor the defendant excepted to the trial court’s supplemental charge.

After the jury had deliberated for a short period of time; see footnote 48; the court adjourned deliberations for the day, and, at 10 a.m. the next day, the jury returned to resume its deliberations. Shortly thereafter, the defendant informed the court that she had just filed a supplemental request to charge on first degree manslaughter. The only aspect of that request to charge that differed in any material respect from the charge

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already given by the trial court was the statement that the “evidence in this case does not permit you to find that the defendant’s failure to do something to aid the victim was the proximate cause of his death.” Although the defendant acknowledged that her belated request was “quite unusual and somewhat untimely,” and, further, that she had failed to take exception to the trial court’s supplemental charge, the defendant nevertheless claimed that the requested charge was necessary because the state had not adduced evidence sufficient to establish “that, had [the defendant] summoned help or called an ambulance or in any manner aided her husband, that he would have lived.”[49]

The state maintains that because the defendant’s supplemental request to charge was not timely filed under what is now Practice Book § 42-17,[50] the trial court was under no obligation to give it. The state also asserts that, under Practice Book § 42-16,[51] we are not bound to consider the defendant’s claim because she failed to

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except to the trial court’s supplemental charge immediately after it had been delivered. Although the state is correct that the defendant’s supplemental request to charge was untimely, we choose to address, and reject, the defendant’s claim on its merits.

First, in light of the testimony of Katsnelson, the medical examiner, that the defendant had died only after having been beaten and then stabbed repeatedly; see footnote 29; the jury, even if it found that the defendant had not actively participated in the killing, reasonably could have concluded, in the particular circumstances of this case, that the defendant’s failure to take any action to intercede on the victim’s behalf satisfied the requirements of first degree manslaughter. Moreover, even if it is assumed, arguendo, that the evidence was insufficient to prove that the defendant was guilty of manslaughter in the first degree unless she actually had stabbed the victim, the defendant has not established that she suffered any harm as a result of the trial court’s failure to give the requested instruction. As we have recognized in a closely analogous context: “Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law — whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence. . . . [Thus, it] is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance — remote, it seems to

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us — that the jury convicted on the ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.” (Citation omitted; emphasis in original; internal quotation marks omitted.)State v. Chapman, 229 Conn. 529, 539-40, 643 A.2d 1213 (1994), quoting Griffin v. United States, 502 U.S. 46, 59-60, 112 S.Ct. 466, 116 L.Ed.2d 371
(1991). In this case, the evidence supported a jury finding that the defendant had participated in the stabbing of the victim. Accordingly, the defendant’s claim that she is entitled to a new trial because the trial court rejected her untimely request to charge is without merit.[52]

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.