State v. Ross

These consolidated criminal appeals from the imposition of the death penalty upon the defendant, Michael B. Ross, raise numerous issues concerning the validity of his capital felony convictions and the validity of the procedures that resulted in death sentences for each of these convictions.1 After a trial to *188determine guilt, a jury convicted the defendant of six counts of capital felony2 in violation of General Statutes § 53a-54b.3 At a separate sentencing hearing pur*189suant to General Statutes § 53a-46a,4 the same jury considered further evidence and found an aggravating *190factor and no mitigating factor with respect to each count. As a result, the trial court rendered a judgment imposing the death sentence on the defendant on each count. The defendant has appealed to this court in accordance with General Statutes §§ 51-199 and *19153a-46b.5 We affirm the defendant’s conviction of all counts of capital felony. Because of improprieties in the conduct of the sentencing hearing, however, we reverse the judgments with respect to the imposition of the death penalty and remand for new sentencing hearings on all counts.

The jury could reasonably have found the following facts. On June 13, 1984, the defendant accosted seventeen year old Wendy B. as she was walking along Route 12 in Lisbon. After a short conversation, he pulled Wendy B. over a stone wall, forcing her to go with him into a wooded area that led to an open field. There he sexually assaulted her, forced her to turn over on her stomach, and then strangled her.

On Thanksgiving Day, 1983, the defendant accosted nineteen year old Robyn S. on the grounds of Uncas on Thames State Hospital in Norwich. He forcefully pulled Robyn S. into a wooded area and ordered her to remove her clothing. He then sexually assaulted her *192and, after ordering her to turn over on her stomach, strangled her. Before leaving, he covered her body with leaves.

On Easter Sunday, 1984, the defendant picked up fourteen year old April B. and fourteen year old Leslie S., who were hitchhiking to Jewett City on Route 138. Once the girls had entered his car, he drove them easterly on Route 165 and, over their protests, past their intended destination. When April B. tried to force the defendant to stop the car by threatening him with a knife, he disarmed her and continued to transport the girls against their will, through eastern Connecticut, to Beach Pond in Rhode Island. At Beach Pond, he parked his car and bound both girls hand and foot. He then untied April B.’s feet and forced her to walk a short distance from his car, where he assaulted her sexually, turned her over on her stomach and strangled her. Returning to the car, the defendant killed Leslie S. without sexually assaulting her. He then placed the bodies of both girls in his car and drove back to Preston, Connecticut, where he deposited their bodies in a culvert.

At his trial, the defendant did not deny having committed the sexual assaults, the kidnappings and the murders described above. His defense was insanity, a defense that the jury rejected by finding him guilty as charged. Additional facts will be discussed as they become relevant to the issues before us.

The defendant’s appeal raises a multitude of issues, which we will address in three main parts. First, we will consider the validity of the defendant’s conviction of six counts of capital felony. Second, we will consider the facial constitutionality, under the federal and state constitutions, of imposing the death penalty upon a person who has been found to have committed, in an especially heinous, cruel or depraved *193manner; General Statutes § 53a-46a (h) (4); a capital felony under subsection (5) or subsection (7) of § 53a-54b. Third, we will consider the validity, pursuant to § 53a-46a, of the defendant’s sentencing hearing. In light of our remand for a new sentencing hearing because of substantial noncompliance with the statutory requirements of § 53a-46a, we need not review the defendant’s death sentences pursuant to § 53a-46b.

I

Validity of the Convictions

The defendant has raised numerous challenges to the validity of his conviction of six counts of capital felony. On jurisdictional grounds, he maintains that the trial court lacked the authority to try him for the two counts of capital felony involving the two murders committed in Rhode Island. On evidentiary grounds, he maintains that the trial court improperly: (1) denied his motions to suppress his incriminatory statements to the police; and (2) restricted his cross-examination of a police officer. On instructional grounds, he maintains that the trial court improperly charged the jury concerning: (1) the inferences that could be drawn from missing witnesses; (2) the special evidentiary requirements for proof of a capital crime; (3) reasonable doubt; (4) the burden of proving insanity; and (5) the unavailability of a defense of extreme emotional disturbance. In addition, he maintains that the trial court improperly: (1) denied his motion for severance; (2) permitted prejudicial commentary by the prosecuting attorney; and (3) rejected claims of juror prejudice. We agree with the state that none of the defendant’s claims of error warrant reversal of his convictions.

Before addressing the multiple claims raised by the defendant, we should take notice of two claims that he does not make. He does not challenge the sufficiency of the evidence to support the jury’s verdicts that he *194was guilty, beyond a reasonable doubt, of each of the counts of capital felony with which he was charged under § 53a-54b (5) and (7). He similarly does not challenge the jury’s determination that he failed to establish his defense of insanity by a preponderance of the evidence.

A

JURISDICTIONAL ISSUES

The defendant maintains that the trial court lacked territorial jurisdiction to try him for the capital felonies relating to the deaths of April B. and Leslie S. because these two victims were not killed in Connecticut. The state argues that Connecticut’s continuing jurisdiction over the defendant’s kidnapping of these victims provides authority for Connecticut to prosecute him for the capital felonies arising out of the murders committed in Rhode Island.

When the issue of territorial jurisdiction was initially raised in the trial court by the defendant’s motion to dismiss, the trial court, Hendel, J., after a hearing, made the following findings of fact. The victims were kidnapped in Connecticut and killed in Rhode Island. At the time of their abduction, the defendant had the intention to assault the victims sexually and to kill them. The victims had the ability to observe the defendant throughout their abduction and thus would have been able to identify him.

From these facts, the trial court concluded that it lacked jurisdiction over the capital felony counts charging the defendant with double murder; § 53a-54b (8); and with the sexual assault and murder of April B.; § 53a-54b (7); because the alleged murders and sexual assault had been committed entirely in Rhode Island.6 The trial court concluded, however, that it had jur*195isdiction over the capital felony counts charging murder in the course of a kidnapping. General Statutes § 53a-54b (5). Without challenging the trial court’s underlying findings of fact, the defendant argues that its ruling of law was incorrect. We disagree.

Our starting point is the observation that, as a general matter, the Superior Court has no territorial jurisdiction to adjudicate a charge of murder unless the state proves, beyond a reasonable doubt, that the victim was murdered in Connecticut. General Statutes § 51-1a (b); State v. Beverly, 224 Conn. 372, 375-76, 618 A.2d 1335 (1993); State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931); A. Spinella, Connecticut Criminal Procedure (1985) § 3A, pp. 18-19. This point of departure is consistent with the common law principle that limits the state’s interest in vindicating its criminal laws to the reach of its territory. State v. Volpe, supra, 294; State v. Grady, 34 Conn. 118, 129-30 (1867); Gilbert v. Steadman, 1 Root 403 (1792). This principle of limited territorial jurisdiction presumably underlay the trial court’s dismissal of the capital felony count charging the defendant with having violated § 53a-54b (8).

The issue before us is whether a different rule should apply to a capital felony that is defined by statute as a “murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety.” General Statutes § 53a-54b (5). The defendant emphasizes that the statute punishes an aggravated form of murder, so that the gravamen of the offense charged is the homicide that occurred in Rhode Island. The state argues, to the contrary, that the statute prescribes a linkage between kidnapping and murder that allows the exercise of territorial jurisdiction over the consequences of a kidnapping that began in Connecticut. The state emphasizes the trial court’s finding of fact that, at the *196time of their abduction, the defendant had the intention to assault the victims sexually and to kill them.

This specific issue is a matter of first impression for this court. To resolve it, we must examine our common law with respect to territorial jurisdiction, as well as changes brought about by the enactment of the penal code.

Prior to the enactment of the penal code, our common law cases reviewed this state’s exercise of jurisdiction over a number of continuous crimes that had a significant nexus with another state. In those cases, we held that our courts had jurisdiction to consider charges of larceny brought against criminal defendants who are discovered in this state with property stolen in another state. State v. Keeby, 159 Conn. 201, 206, 268 A.2d 652 (1970), cert. denied, 400 U.S. 1010, 91 S. Ct. 569, 27 L. Ed. 2d 623 (1971); State v. Palkimas, 153 Conn. 555, 561-62, 219 A.2d 220 (1966); State v. Pambianchi, 139 Conn. 543, 547, 95 A.2d 695 (1953); State v. Cummings, 33 Conn. 260, 264-65 (1866). Similarly, we held that a defendant had committed the crime of embezzlement in this state when he received bonds in Connecticut, with the present intent to sell them and to appropriate their proceeds, even though the embezzled bonds were actually sold in another state and the proceeds realized there. State v. Serkau, 128 Conn. 153, 156-57, 20 A.2d 725 (1941).

In each of these cases at common law, we construed our statutes to impose criminal liability on the defendants for their conduct in Connecticut. In the larceny cases, we held that our larceny statute imposed criminal liability on the continued retention in Connecticut of stolen property regardless of its provenance. In the embezzlement case, we held that our statute imposed liability on the felonious appropriation of property in Connecticut regardless of the locale of the completion *197of the defendant’s felonious plan. The defendants in those cases were therefore properly convicted in Connecticut, not because Connecticut was exercising extraterritorial jurisdiction, but because the state had established that each element of the crimes charged had been proven to have occurred in this state. See A. Spinella, supra, pp. 18-21. As the defendant correctly points out, the cited precedents would permit a Connecticut prosecution of a capital felony if a murder occurred in this state following a kidnapping that had begun in another state. They would likewise permit a Connecticut prosecution for a kidnapping that began in Connecticut but continued until the victims were released in another state. Presumably they would also encompass a Connecticut prosecution for a murder commenced by a physical attack on a victim in this state, with the intent to kill, even though the victim actually died in a hospital in Rhode Island. See Pollard v. State, 270 Ind. 599, 388 N.E.2d 496 (1979). Those are not, however, the facts of this case.

Adoption of the penal code abrogated our common law of crimes. Valeriano v. Bronson, 209 Conn. 75, 92, 546 A.2d 1380 (1988). Nothing in the text of the penal code indicates that the legislature addressed questions of extraterritorial jurisdiction. The state urges us to adopt the expanded view of extraterritorial jurisdiction advocated by the Model Penal Code, pursuant to which a state has jurisdiction over any crime whenever at least one element of the crime occurred within the state. See 1 A.L.I., Model Penal Code and Commentaries (1985) § 1.03. Although our penal code commission apparently noted and discussed an earlier version of the Model Penal Code incorporating the same expanded view of jurisdiction; see 1967 Report of the Commission to Revise the Criminal Statutes p. 42; that discussion did not result in any textual articulation of legislative intent. See A. Spinella, supra, § 3A. The *198defendant urges us to conclude that enactment of our penal code, without a specific adoption of the Model Penal Code as to jurisdiction, limits the jurisdiction of our courts to crimes committed within this state.

The closest that we have come to judicial adoption of the Model Penal Code’s view of jurisdiction is State v. Stevens, 224 Conn. 730, 620 A.2d 789 (1993). In that case, we held that a police officer, after a lawful arrest in Connecticut for a crime committed in this state, did not exceed permissible territorial limitations on his jurisdiction by having blood tests performed on an allegedly intoxicated driver at the nearest emergency medical facility in Rhode Island. Id., 742-43. Citing the Model Penal Code, we began our discussion by stating that there are situations in which “even a criminal statute may have extraterritorial effect. See, e.g., Strass-heim v. Daily, 221 U.S. 280, 284, 31 S. Ct. 558, 55 L. Ed. 735 (1910) (upholding prosecution in Michigan for acts of bribery and obtaining public money under false pretenses by defendant in Illinois, offenses by their nature peculiarly injurious to the state of Michigan); see also People v. Tyler, 7 Mich. 161, 221 (1859) (‘every sovereignty has the right, subject to certain restrictions, to protect itself from, and to punish as crimes, certain acts which are peculiarly injurious to its rights or interests, or those of its citizens, wherever committed’ [emphasis in original]).” Id., 738.

In State v. Stevens, supra, 224 Conn. 739, we nonetheless resolved the issue in favor of jurisdiction on a narrower ground than that advocated by the Model Penal Code when we invoked a test that “balancefd] the legitimate interests of the adjoining sovereignties.” See also State v. Mueller, 44 Wis. 2d 387, 392-93, 171 N.W.2d 414 (1969). We noted that the courts of Rhode Island would have had no jurisdiction over the defendant’s offenses; State v. Stevens, supra, 737; and that the statutes of Rhode Island permit “ ‘any one’ to arrest or *199to seize evidence after the commission of ‘any offense.’ ” Id., 739. On the Connecticut side of the ledger, we emphasized our state’s “unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers.” Id. Finally, we looked to the language of the governing Connecticut statute, General Statutes § 14-227b. We thought it highly significant that “nothing in the language or legislative history of § 14-227b [suggests] that the legislature intended that a police officer should endanger the life of an arrestee by contravening the judgment of emergency medical personnel and requiring them to transport the arrestee to a more distant hospital so that the officer may gather evanescent evidence on Connecticut soil.” Id., 742.

Stevens is not a controlling precedent because, in that case, we addressed the extraterritorial authority of a Connecticut police officer, rather than the extraterritorial authority of a Connecticut court. Stevens is, nonetheless, significant because, rather than adopting the provisions of the Model Penal Code wholesale, we undertook an examination of the underlying public policy and a close reading of the relevant statutes.

Applying the methodology of Stevens, we note that Stevens assumed that, as a matter of public policy in the realm of criminal law, the General Assembly has the constitutional authority to enact a statute that has an extraterritorial effect. We agree with that assumption. As the Supreme Court of Florida has held, if the legislature so directs, “[a] person who commits a crime partly in one state and partly in another state may be tried in either state under the sixth amendment of the United States Constitution.” Lane v. State, 388 So. 2d 1022, 1028 (Fla. 1980);7 see also Conrad v. State, 262 *200Ind. 446, 450, 317 N.E.2d 789 (1974); State v. Harrington, 128 Vt. 242, 250, 260 A.2d 692 (1969). Connecticut does not lack the authority to make it a capital crime in Connecticut to form the intent here to cause the death of a victim elsewhere and to act in furtherance thereof or to commit an underlying felony in this state that results in a murder elsewhere. Lane v. State, supra, 1028; see also Heath v. Jones, 941 F.2d 1126, 1138 (11th Cir. 1991).

The ultimate question is, therefore, as Stevens suggests, a matter of statutory construction. We must decide whether, in enacting § 53a-54b (5), the legislature manifested its intention to give extraterritorial effect to the capital felony it therein defined as a “murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety.” We recognize that, unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state. State v. Russell, 218 Conn. 273, 278, 588 A.2d 1376 (1991); State v. Torres, 206 Conn. 346, 355, 538 A.2d 185 (1988). We are, however, persuaded that the statute, as drafted, unambiguously manifests the legislature’s intent to allow a capital felony prosecution of the defendant in the circumstances of this case.

On its face, the statute requires the state to prove a murder by a kidnapper without requiring that the *201murder have been committed in Connecticut. The strongest argument against such a literal construction of § 53a-54b (5) is that its language does not parallel the language of the felony murder statute, General Statutes § 53a-54c. The latter statute provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits . . . kidnapping . . . and, in the course of and in furtherance of such crime or of flight therefrom, he . . . causes the death of a person other than one of the participants . . . .” When the predicate crime is a kidnapping, the felony murder statute encompasses any killing of the victim that occurs during the victim’s unlawful detention. See State v. Gomez, 225 Conn. 347, 350-51, 622 A.2d 1014 (1993). Presumably, the felony murder statute would encompass such a murder if it occurred in another state. Although the language of the capital felony statute is slightly different, because it penalizes a “murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety”; General Statutes § 53a-54b (5); we are not persuaded that these differences in statutory formulation are sufficient to ascribe an extraterritorial effect to the one statute and not to the other.

An alternate argument contrary to a literal construction of § 53a-54b (5) is premised on the proposition that, because commission of a murder is the major premise for any capital felony under § 53a-54b, the legislature cannot have intended to have Connecticut assume jurisdiction over a murder committed in another state under any circumstances. This argument is unpersuasive for two reasons. Structurally, although most subsections of § 53a-54b require the state to prove the commission of a murder, subsection (6) has no such requirement. See footnote 3. Linguistically, § 53a-54b (5), the subsection presently at issue, speaks of “murder by a kidnapper” and does not prioritize between the commission of the two predicate felonies, kidnapping and murder.

*202To reach the conclusion that § 53a-54b (5) applies to the Rhode Island murders in the circumstances of this case, we need not embrace the policy of the Model Penal Code in its entirety for all criminal prosecutions. It bears emphasis that in this case we have a defendant who, in this state, intentionally committed two kidnappings with the contemporaneous intent to cause the death of his victims. With that intent, and during the uninterrupted course of the kidnappings, he killed the victims. Although the murders occurred in Rhode Island, the defendant returned the victims’ bodies to Connecticut. This case, therefore, demonstrates an overwhelming factual nexus between the crimes and Connecticut. We are persuaded that the legislature intended the literal language of the statute to apply to a case so closely tied to the public welfare of this state.

In summary, we conclude that the defendant’s jurisdictional defense cannot be sustained in the circumstances of this case. The defendant was properly convicted of the two counts of capital felony arising out of his kidnapping of April B. and Leslie S., even though he murdered them in Rhode Island.

B

EVIDENTIARY ISSUES

The defendant next maintains that several allegedly improper evidentiary rulings entitle him to a new trial. He urges us to conclude that the trial court improperly: (1) denied his motions to suppress his incriminatory statements to the police; and (2) restricted his cross-examination of a police officer. We disagree.

1

On June 28, 1984, while at the Lisbon town hall, the defendant made numerous inculpatory statements to the state police. He admitted, orally and in writing, that he had killed Wendy B. and Robyn S., murders that *203were committed in New London county. He also confessed to killing April B. and Leslie S. in Rhode Island and to other murders in Windham county.

After an evidentiary hearing, the trial court, Hendel, J., denied the defendant’s motion to suppress his inculpatory statements. In support of its ruling, the trial court made the following findings of fact. The defendant came to the Lisbon town hall voluntarily. He made his first incriminatory statement to detective Michael Malchik before having received Miranda warnings. This statement resulted from an extended conversation in a town hall conference room. During this conversation, the defendant was not physically restrained and twice had been advised that he was free to leave. It was the defendant who initiated an inquiry into the type of person who might have killed Wendy B. and whether such person might receive psychotherapy. The defendant then asked Malchik whether Malchik thought the defendant had killed Wendy B. Malchik replied in the affirmative and told the defendant that he felt that “he [the defendant] would do it again and I thought that was the most important thing, that he didn’t do it again.” Immediately thereafter, without any questioning by Malchik, the defendant admitted to having killed Wendy B. Upon hearing this incriminatory statement, Malchik terminated any further conversation with the defendant and treated him as a custodial suspect. Before asking any further questions, Malchik gave the defendant the required Miranda warnings; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and asked the defendant to sign a Miranda waiver, which he did. All the defendant’s subsequent incriminatory statements followed repeated Miranda warnings and waivers.

The trial court concluded that: (1) the police had not illegally detained or arrested the defendant; (2) the defendant had made his statements to the police volun*204tarily; and (3) there was no Miranda violation in the manner in which the police obtained statements from the defendant. Accordingly, the trial court denied the defendant’s motion to suppress.

On appeal, the defendant does not challenge the trial court’s determination that he came to the Lisbon town hall voluntarily and, while there, made his incriminatory statements voluntarily. His principal claim, rather, is that his noncustodial interview with Malchik was transformed into a custodial detention once Malchik told the defendant that he, Malchik, thought that the defendant had killed Wendy B. Immediately thereafter, according to the defendant, Miranda warnings were required. Because no such warnings were given until after he made his first incriminatory statement, he claims that all his subsequent statements should have been suppressed. We disagree.

To sustain the defendant’s argument, we would have to conclude that the trial court made a clearly erroneous finding of fact when it determined that the defendant was not in custody at the time that he told Malchik that he had killed Wendy B. State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990); State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989). “A person is in custody only if, in view of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. . . . ‘Although the circumstances of each case must certainly influence a determination of whether a suspect is “in custody” for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest. . . .’” (Citations omitted.) State v. Pittman, supra, 608. “[A]n officer’s [articulated] views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many *205factors that bear upon the assessment whether that individual was in custody,” but such statements are not, of themselves, “dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.” Stansbury v. California, U.S. , 114 S. Ct. 1526, 1530, 128 L. Ed. 2d 293 (1994).

Malchik testified that, just prior to the defendant’s first incriminatory statement, Malchik would have allowed the defendant to leave the conference room had he elected to do so, even though Malchik had felt that the defendant had killed Wendy B. The objective circumstances are in accord with this intent. Malchik came and went from the conference room, leaving the defendant alone on several occasions. Immediately before the interchange between the defendant and Mal-chik, the defendant had been told that he could leave at any time, and he had responded that he understood he was there voluntarily. Also, when concern was expressed that the defendant would be late for work, the defendant had responded that he did not need to leave for work but was willing to stay and talk. We find it especially probative that, contrary to the facts of the cases on which the defendant relies, it was the defendant, not Malchik, who initiated the discussion of the murder of Wendy B. The defendant deliberately solicited Malchik’s belief that the defendant had killed Wendy B. Immediately thereafter, although no question had been posed by Malchik, the defendant spontaneously offered that he had killed Wendy B. Considering the record of the meeting in its entirety, we are persuaded that the trial court was not clearly erroneous in its determination that a reasonable person in the defendant’s position would have felt free to leave even after Malchik had voiced his belief that the defendant had killed Wendy B.

The defendant also challenges the validity of the Miranda waivers that he executed prior to giving fur*206ther incriminatory statements. In large part, this argument is predicated upon his contention, which we have rejected, that his first incriminatory statement was inadmissible. The defendant also argues, however, that even if that statement was properly admitted, he was given contradictory directions that undermined his ability to exercise the independent judgment implied in the execution of Miranda waivers. We are convinced, however, that the trial court properly found, in light of all the circumstances, that the defendant had knowingly, intelligently and voluntarily waived his rights. The defendant was both a college graduate and a person with prior experience with the criminal justice system. He adduced no persuasive evidence of police overreaching or coercion.

2

Alternatively, the defendant claims that the trial court’s findings at the suppression hearing should be set aside because the trial court improperly: (1) restricted his opportunity to cross-examine Malchik during the suppression hearing; and (2) denied his subsequent motion to open the suppression hearing. Both claims relate to the defendant’s efforts to link the reliability of Malchik’s testimony concerning the admissibility of the defendant’s incriminatory statements to the reliability of Malchik’s testimony concerning his investigatory efforts to ascertain the geographical location of the murders that were committed in Rhode Island. We reject both claims.

During the suppression hearing, the defendant attempted to challenge the credibility of Malchik’s testimony that the defendant had not been in police custody prior to his first incriminatory statement. The defendant sought, in this regard, to question Malchik about his failure immediately to investigate and locate the scene of the murders that had occurred in Rhode *207Island. Although the trial court originally sustained an objection by the state on the ground of immateriality, it thereafter reversed its ruling and permitted the defendant to pursue his inquiry. The only question ultimately excluded related to Malchik’s failure to ask the defendant to take the police to the place where the crimes had been committed. Because that question did not impugn Malchik’s motive, interest, bias or prejudice, the trial court’s ruling did not deprive the defendant of his constitutional rights under the sixth amendment to the United States constitution. State v. Vitale, 197 Conn. 396, 402-403, 497 A.2d 956 (1985); State v. Talton, 197 Conn. 280, 284, 497 A.2d 35 (1985). Having afforded the defendant his constitutional rights, the trial court did not abuse its discretion by excluding this one question on the ground that it related to matters immaterial to the suppression hearing. See State v. Dobson, 221 Conn. 128, 137, 602 A.2d 977 (1992).

At a hearing held, a year later, on the defendant’s motion to dismiss the counts relating to the Rhode Island murders for lack of territorial jurisdiction, Mal-chik was again questioned about his failure immediately to ascertain the geographical location of these murders. During the hearing, the trial court expressed its concern that Malchik had not offered a credible explanation for this investigatory delay. As a result of the questions raised at the dismissal hearing, the defendant moved to open the suppression hearing.

In a posttrial articulation, after having reviewed the relevant transcripts, the trial court withdrew its criticism of Malchik’s investigation and stated that, in its view, Malchik had testified truthfully during the suppression hearing. In light of the articulation, we conclude that the trial court’s denial of the motion to open the suppression hearing was not an abuse of its discretion. The court could reasonably have concluded that *208Malchik’s credibility concerning his investigatory activities subsequent to the defendant’s confessions was collateral to his credibility about the events leading up to the confessions. The defendant’s offer of proof, in support of his motion to open, consisted solely of the representations of counsel and centered on the defendant’s contention that Malchik had taken him into custody as soon as Malchik invited him to drive with Malchik to the town hall, a claim that has now been abandoned.

We have examined the defendant’s challenges to the admissibility of his incriminatory statements under the principles established by the United States constitution and Connecticut common law. Although the defendant’s brief adverts to independent rights under the Connecticut constitution, no such arguments have been briefed and they are therefore deemed to have been waived. See State v. Hamilton, 228 Conn. 234, 246 n.10, 636 A.2d 760 (1994). We conclude, therefore, that the trial court properly admitted the defendant’s incriminatory statements into evidence.

3

During the trial to adjudicate the defendant’s guilt of the crimes with which he had been charged, the defendant renewed his effort to cross-examine Malchik about his investigatory efforts with respect to the Rhode Island murders. Although the defendant characterized this inquiry as relevant to Malchik’s credibility, the trial court, Ford, J., could reasonably have concluded, as did the trial court, Hendel, J., at the suppression hearing, that the motive for Malchik’s delay in going to the scene of these crimes was collateral and immaterial. Considering the breadth of the defendant’s cross-examination of Malchik, we are persuaded that the defendant’s constitutional rights were not impaired, and that the trial court’s ruling was not an abuse of its discretion.

*209c

INSTRUCTIONAL ISSUES

The defendant also maintains that he is entitled to a new trial to determine his guilt because the trial court, Ford, J., misinstructed the jury. He claims that the trial court improperly: (1) charged the jury on inferences that might be drawn from his failure to call two witnesses concerning his mental status; (2) failed to charge the jury with respect to the special evidentiary requirements for proof of a capital crime; (3) diluted the charge to the jury on what constitutes proof beyond a reasonable doubt; (4) imposed on the defendant the burden of proving insanity by a preponderance of the evidence and did not fully inform the jury about the consequences of a verdict of not guilty by reason of insanity; and (5) refused to charge the jury on the availability of the defense of extreme emotional disturbance. Because we are unpersuaded that the instructions given by the trial court deprived the defendant of a fair trial, we conclude that reversal of his convictions is not required.

1

The defendant asserts that the trial court improperly gave a Secondino charge instructing the jury that it might draw inferences unfavorable to the defendant because two psychiatric experts whom he had consulted were not called to testify as witnesses on his behalf. In S