State v. Griffin

741 A.2d 913, 251 Conn. 671, 1999 Conn. LEXIS 422

• Court: Supreme Court of Connecticut
• Decided: December 21, 1999
• Docket: SC 15495
• Status: Published

Opinions

Opinion

CALLAHAN, C. J.

The defendant appeals from the judgment of conviction, after a jury trial, of one count of capital felony in violation of General Statutes § 53a-54b (8) and of two counts of murder in violation of General Statutes § 53a-54a.¹ In her appeal, the defendant claims that: (1) the trial court improperly permitted the state to “death qualify”² potential jurors prior to the guilt phase of her trial, thereby denying her right, under the Connecticut constitution, to trial by an impartial jury; (2) the trial court improperly excused a venireperson; and (3) the trial court’s instruction on proximate causation was flawed. We affirm the judgment.

The juiy reasonably could have found the following facts. In 1990, the defendant, Janet Griffin, was employed as a housekeeper at the Pico Resort Hotel in Vermont. Gina Coccia, the executive housekeeper at the hotel, was the defendant’s supervisor.

The two women became friendly, shared an apartment and subsequently became lovers. In June, 1992, Coccia ended her intimate relationship with the defendant. When Coccia terminated the relationship, the defendant became very upset and told Coccia that she wanted it to continue. Around that same time, Coccia and her father purchased a two-family house in Vermont, and the defendant and Coccia moved into that house. There, the two women continued to share a bedroom, but they did not resume an intimate relationship.

Shortly thereafter, while visiting her aunt, Margaret Pugliese, in Bloomfield, Connecticut, Coccia met one of the victims, Patricia Lynn Steller. Steller resided at 14 Red Orange Road, Middletown. Coccia and Steller became friends, and Coccia subsequently returned to Connecticut several times to see Steller. Steller and Pugliese also visited Coccia in Vermont two or three times.

In January, 1993, Coccia requested that the defendant move out of their apartment by June, 1993. The defendant became very emotional, and she stated that she still loved Coccia and did not want to leave. Coccia reiterated that their romantic relationship was over and had been over for some period of time.

In April, 1993, Coccia began an intimate relationship with Steller. Although Steller traveled to Vermont to see Coccia on several occasions, she did not stay at the apartment that Coccia shared with the defendant. Instead, Steller stayed at Pugliese’s nearby vacation home. Coccia, in turn, frequently visited Steller and stayed at Steller’s residence at 14 Red Orange Road, Middletown. Coccia did not inform the defendant of the nature of her relationship with Steller.

In May, 1993, the defendant moved into an apartment owned by Natalie Jurgen. At that time, the defendant and Coccia both were employed by The Woods at Killington, another Vermont resort. Although they no longer were roommates, the two women remained friendly and continued to drive to work together. The defendant, however, repeatedly told Jurgen that she still loved Coccia and that she wanted her back.

The summer of 1993, Coccia decided to leave Vermont and move to Connecticut to be with Steller. Coccia discussed her plans with the defendant, who became veiy upset. Visibly shaken, the defendant stated that she wanted to resume her relationship with Coccia. The defendant told Coccia that it was all or nothing — she did not want to speak to Coccia again if Coccia was not willing to resume their intimate relationship. Coccia replied that she was sorry, but if it was all or nothing, it would have to be nothing. The defendant subsequently called Coccia, however, and indicated that she wished them to remain friendly.

On August 13, 1993, Coccia left Vermont and moved into Steller’s Middletown residence. The second victim, Ronald King, who was Steller’s nephew, also lived at that address. Coccia took her dog, a small Pomeranian, with her when she moved to 14 Red Orange Road. Steller’s house had a “dog door” in the kitchen, a hatch designed to allow the dog to enter and leave the house unassisted.

Coccia and the defendant remained friendly after Coccia moved to Middletown, and the two women exchanged telephone calls on a regular basis. The defendant, however, resented Steller. On August 23, 1993, she told a coworker that Steller was a “city slut dyke” and that Steller was more or less holding Coccia captive and ruining Coccia’s life.

That fall, Coccia and Steller spent two or three weekends at Coccia’s Vermont home. On those occasions, the defendant refused to visit Coccia because she did not want to see Coccia with Steller. Instead, the defendant insisted that Coccia come alone to the defendant’s apartment.

Coccia and Steller spent the first weekend in October, 1993, in Vermont. Before returning to Connecticut, Coccia informed the defendant that she would no longer visit the defendant alone at the defendant’s apartment and that, if the defendant wished to see Coccia in the future, she would have to do so at Coccia’s home when Steller was present. The defendant replied that she was unsure of what she was capable of doing under those circumstances.

The next afternoon, Monday, October 4, 1993, the defendant and her daughter, Melody Jasmin, unexpectedly arrived at 14 Red Orange Road, having driven to Middletown in a rented car. The defendant told Coccia that she had been shopping in the Middletown area and had decided to stop for a visit. The real purpose of the visit, however, was to see the inside of Steller’s house. During the visit, while chatting in the kitchen, Coccia told the defendant a story about having been locked out of the house and having had to crawl into the house through the “dog door.”

October 4,1993, was not the only time the defendant visited Red Orange Road. The defendant and Jurgen had made four trips to Middletown between August, 1993, and November, 1993. The first trip took place at the end of August, when the defendant asked Jurgen to drive her to Connecticut so that she could see where Coccia and Steller lived. On that trip the defendant planned to use magic marker to write epithets on Steller’s car. It was dark when the defendant and Jurgen arrived at Steller’s house, and the defendant exited Jurgen’s vehicle and approached the house. She returned to Jurgen’s automobile, however, without having written on Steller’s car.

A few weeks later, the defendant again asked Jurgen to drive her to Middletown. The defendant hoped to see where Steller, who was employed at Wesleyan University, worked. Upon arriving in Middletown, Jurgen drove to Wesleyan University. The defendant located Steller’s car in a parking lot and photographed it. Jurgen then drove the defendant around the area adjacent to Red Orange Road. As they were driving through that neighborhood, the defendant asked Jurgen questions and took notes regarding routes in and out of the area.

After their second trip to Connecticut, the defendant informed Jurgen that she planned to kill Steller. Nevertheless, in early October, 1993, Jurgen drove the defendant to Middletown a third time. The two women again drove around Red Orange Road and a neighboring street, Brush Hill Road. The defendant told Jurgen that she was planning to kill Steller at a stop sign on Brush Hill Road because she wanted Coccia back. The defendant blamed Steller for the breakup of her relationship with Coccia and planned to douse her with ether, set her car afire and stab her.

Approximately one week later, Jurgen and the defendant traveled to Middletown a fourth time. On that trip, Jurgen parked her car several blocks from Steller’s home and remained in the car while the defendant walked off in the direction of Steller’s house. The defendant returned to Jurgen’s car approximately fifteen minutes later, and the two women then drove down Brush Hill Road again before returning to Vermont.

After they had returned from their fourth trip to Connecticut, the defendant again told Jurgen that she planned to kill Steller on Brush Hill Road. She said that a coworker, Gordon “Butch” Fruean, Jr., had agreed to accompany her to Middletown to assist. Jurgen noticed that the defendant had a black cap, gloves and a gun in her bag. The weapon in the defendant’s bag, a thirty-two caliber handgun, had been given to Fruean by his father. The defendant told Jurgen she was going to use the gun to kill Steller and asked Jurgen to wish her luck.

The defendant and Fruean thereafter drove to Middle-town intending to ambush Steller at an intersection on Brush Hill Road. Steller, however, did not pass through the intersection that night. Fruean became nervous, and he and the defendant returned to Vermont.

The defendant subsequently asked Jurgen to drive her to Middletown again so that she could kill Steller. Jurgen refused. The defendant then made arrangements to pick up a rental car on November 1, 1993.

Before departing for work on November 1, 1993, Steller had erased her telephone answering machine tape and reset the machine, which was located on the kitchen counter. Steller and King then left the Red Orange Road residence together and drove to work at Wesleyan University in Steller’s car. Coccia, the last person to leave 14 Red Orange Road that morning, before leaving placed her dog in its cage and checked that the windows and exterior doors were locked.

That same day, November 1, 1993, the defendant picked up the rental car that she previously had reserved, and she and Fruean drove to 14 Red Orange Road. The defendant and Fruean entered the locked house by crawling through the “dog door.”

Steller and King returned home from work around 3:30 p.m. and entered the house through the garage. When they went into the kitchen, the defendant and Fruean were already waiting.

The defendant shot and attacked both of the victims as they entered the kitchen. During the scuffle, the telephone answering machine located on the kitchen counter was activated and recorded some of the audible portion of the events that were taking place in the kitchen.³ The defendant shot Steller once and King three times. When the gun had been emptied, the defendant, realizing that the victims were still alive, asked Fruean for assistance. Fruean took a butcher’s knife from a knife block located on the kitchen counter and handed it to the defendant, who proceeded to stab Steller and King several times. The defendant also used a serrated paring knife and a carving knife to stab the victims. Realizing that the victims, even then, still were alive, the defendant smashed a ceramic lamp on Steller’s head and broke a glass mason jar over King’s head. While striking King, the defendant cut her hand on the glass shards of the broken mason jar.

The defendant and Fruean left the three bloodstained knives used in the attack at the scene, but took the gun with them. Blood from the defendant’s wounded hand subsequently was found on King’s clothing, on the wall leading to the front door, on the carpet, on the walkway leading away from Steller’s home and in the rental car. Lisa Flagg, a woman visiting a friend in the neighborhood, observed the defendant and Fruean leaving Steller’s home at approximately 3:55 p.m. Upon leaving, the defendant and Fruean drove to a nearby pond and threw Fruean’s gun into the pond. Fruean’s father later identified the gun recovered from the pond as being the gun he previously had given to his son.

When Coccia returned home from work at approximately 5:30 p.m., she found Steller and King dead on the kitchen floor. The stab wounds and the gunshot wound Steller suffered each was sufficient to have caused her death. King’s death was caused by a combination of the stab and gunshot wounds.

The defendant was charged with two counts of murder and one count of capital felony. She entered a plea of not guilty and elected to be tried by a jury. On November 3, 1995, she filed a motion in limine seeking an order prohibiting counsel from asking potential venirepersons: (1) “[a]ny questions concerning attitudes and beliefs for or against the imposition of the death penalty”; and (2) “[a]ny questions by which it is directly or indirectly suggested that the defendant, if convicted of [c]apital felony, in violation of [§] 53a-54b (8) might suffer the penalty of death.” The motion also sought to prohibit the excusal for cause, prior to the guilt phase of the trial, of prospective jurors who were unalterably opposed to capital punishment. That motion was denied.

Jury selection for the defendant’s trial consumed some forty court days,⁴ during which more than 150 venirepersons were voir dired. The trial court, over the defendant’s objections, excused for cause twelve venirepersons on the ground that their opposition to the death penalty would prevent or substantially impair the performance of their duties as jurors during the sentencing phase of the trial. The trial court also excused for cause three venirepersons who stated that if the defendant was found guilty, the death penalty should be imposed automatically. In light of the capital felony charges, the court granted each party thirty peremptory challenges. Of those, the state used thirty and the defendant used twenty-seven.

The jury returned a verdict of guilty on all counts. Thereafter, the trial court conducted a separate sentencing hearing, pursuant to General Statutes (Rev. to 1993) § 53a-46a,⁵ before the same jury. The jury returned a special verdict finding that the state had proved aggravating factors beyond a reasonable doubt regarding both the murder of Steller and the murder of King, and that the defendant had proved mitigating factors by a preponderance of the evidence. The trial court merged the two murder counts with the capital felony count and rendered a judgment of conviction accordingly, and imposed a sentence of life imprisonment without the possibility of release pursuant to § 53a-46a (g). This appeal followed.⁶

I

The defendant claims that article first, §§ 8 and 19,⁷ of the Connecticut constitution prohibits the identification and excusal for cause, prior to the guilt phase of a bifurcated capital felony trial, of venirepersons whose beliefs concerning the death penalty would prevent or substantially impair the performance of their duties as jurors during the sentencing phase of the trial. Specifically, the defendant maintains that questioning venirepersons, prior to the guilt phase of the trial, about their beliefs regarding the death penalty, and excusing for cause those venirepersons whose opposition to the death penalty would interfere with the performance of their duties as jurors at the sentencing phase of the trial, results in a guilt phase jury that is not impartial because it is: (1) more “conviction prone” than a jury that is not death qualified; and (2) not composed of a representative cross section of the community. The defendant argues that such venirepersons properly may be identified and excused for cause only at the sentencing phase of a bifurcated capital felony trial. We disagree.

In State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we adopted an analytic framework for determining whether our state constitution affords Connecticut citizens greater individual liberties than does its federal counterpart. Specifically, we enumerated six factors to be considered: (1) persuasive relevant federal precedents; (2) the text of relevant constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms. Id.; see also State v. Tuchman, 242 Conn. 345, 360, 699 A.2d 952 (1997); State v. McDougal, 241 Conn. 502, 515-16, 699 A.2d 872 (1997); State v. Webb, 238 Conn. 389, 402, 680 A.2d 147 (1996). None of those factors supports the defendant’s state constitutional claim.

A

Relevant Federal Precedent

The United States Supreme Court first addressed the issue of “death qualification” of jurors in capital cases in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). In Witherspoon, a state statute permitted the excusal for cause of “any [venireperson] who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.” (Internal quotation marks omitted.) Id., 512. Thus, the statute at issue in Witherspoon not only permitted the excusal of venirepersons whose beliefs concerning the death penalty would prevent or substantially impair their ability to perform their duties as jurors, it also allowed the excusal for cause of venirepersons who were opposed to the death penalty even if their scruples against the death penalty would not interfere with the performance of their duties as jurors.⁸

The petitioner in Witherspoon argued that excusal for cause, prior to the guilt phase of the trial, of all venirepersons with scruples against the death penalty results in a jury “necessarily . . . biased in favor of conviction,” thereby violating a defendant’s right under the sixth amendment to the United States constitution to have his innocence or guilt determined by an impartial jury. Id., 516. The court, however, concluded that the petitioner had not presented sufficient evidence to support a conclusion that the excusal, prior to the guilt phase, of venirepersons with scruples against the death penalty necessarily results in a more “conviction prone” jury. Id., 517-18. Consequently, the court rejected the petitioner’s claim that the “death qualification” process utilized at his trial deprived defendants of their federal constitutional right to have their innocence or guilt determined by an impartial jury. Id.

The court also considered, however, the effect that the “death qualification” process utilized at the petitioner’s trial had at the sentencing phase. Witherspoon was decided before the court’s decisions in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), and the then current Illinois death penalty statute provided jurors “broad discretion to decide whether or not [to impose the death penalty] in a given case.” Witherspoon v. Illinois, supra, 391 U.S. 519. Noting that under the Illinois statutory scheme, “a juror’s general views about capital punishment [played] an inevitable role in any such decision”; id.; the court concluded that the excusal for cause of all venirepersons with scruples against the death penalty resulted in a jury that at sentencing was “uncommonly willing to condemn a man to die.” Id., 521. On that basis, the court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id., 522. The court stated, however, that this conclusion did not “render invalid the conviction, as opposed to the sentence, in [Witherspoon] or any other case.” (Emphasis in original.) Id., 522-23 n.21.

The court also suggested in a footnote in Witherspoon that the federal constitution did not prohibit the excusal for cause of venirepersons “who [make] unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) [whose] attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” (Emphasis in original.) Id., 522-23 n.21. Thus, the court’s decision in Witherspoon indicated that in capital criminal trials, two categories of venirepersons properly could be excused for cause on the basis of their opposition to the death penalty: (1) individuals whose beliefs would prevent them from performing their duties as jurors during the guilt phase of the trial; and (2) individuals whose beliefs automatically would prevent them from performing their duties as jurors during the sentencing phase of the trial.

In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), which was decided after Fur-man and Gregg, the United States Supreme Court again considered the effect that a prospective juror’s beliefs concerning the death penalty have on that individual’s eligibility to serve as a juror in a capital case. In Witt, the court noted that its statement in Witherspoon that a venireperson could be excused for cause if his beliefs “automatically” would prevent him from imposing a sentence of death was best understood in the context of the death penalty statute at issue in that case. Id., 418. The court clarified the standard for determining whether a venireperson properly may be challenged for cause on the basis of his beliefs regarding the death penalty. Specifically, the court concluded that the federal constitution permits the excusal for cause of venirepersons whose opposition to capital punishment would prevent or substantially impair the performance of their duties as jurors in accordance with the court’s instructions and the juror’s oath. Id., 424. Thus, as interpreted in Witherspoon and Witt, the federal constitution permits the excusal for cause of venirepersons whose opposition to the death penalty would prevent or substantially impair the performance of their duties as jurors during either: (1) the guilt phase of the trial; or (2) the sentencing phase of the trial. For a venireperson’s opposition to the death penalty to be considered as preventing or substantially impairing the performance of that individual’s duties as a juror during the sentencing phase of the trial, so as to permit excusal for cause, the federal constitution does not require that the venireperson explicitly state that, upon conviction, he automatically would vote not to impose a sentence of death. Instead, the federal constitution permits the excusal for cause of venirepersons whose responses during voir • dire raise serious doubt as to their ability to follow the law during the sentencing phase.

In 1986, the United States Supreme Court again addressed the issue of “death qualification” of venirepersons in Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. , 90 L. Ed. 2d 137 (1986). At the trial of the petitioner in Lockhart, the court had excused certain venirepersons for cause in accordance with the Wilt test. Id., 166. On appeal, the petitioner did not claim that any of the jurors who had served at his trial had been “partial” in the sense that they had been unable to render a verdict based solely on the evidence and the trial court’s instructions. Id., 167. Instead, relying on social science evidence, the petitioner contended that the excusal for cause, prior to the guilt phase, of venirepersons whose opposition to the death penalty would prevent them from performing their duties as jurors only at the sentencing phase of a capital criminal trial, results in a more “conviction prone” guilt phase jury, thereby depriving the defendant of his rights under the sixth amendment to have his guilt or innocence decided by: (1) a jury composed of a representative cross section of the community; and (2) an impartial jury. Id., 167-68. The United States Supreme Court disagreed, concluding that: (1) although the sixth amendment requires that juries be fairly selected from a venire pool comprising a representative cross section of the community, it does not require that the actual jury so selected be composed of a representative cross section of the community; id., 173-77; (2) the petitioner had not presented social science evidence establishing the hypothesis that “death qualification” of venirepersons prior to the guilt phase of a bifurcated trial results injuries that are more “conviction prone”; id., 168-73; (3) the sixth amendment right to trial by an “impartial” jury requires only a trial by “jurors who will conscientiously apply the law and find the facts”; id., 178; and (4) consequently, even if the social science evidence had been capable of supporting a finding that the excusal for cause, prior to the guilt phase of the trial, of venirepersons whose beliefs preclude them from serving as jurors only during the sentencing phase of the trial results in juries that are more “conviction prone,” such a finding would not have been a ground for concluding that death qualified juries are not “impartial” within the meaning of the sixth amendment. Id., 174. Thus, the court concluded that the federal constitution did not prohibit the excusal for cause, prior to the guilt phase, of venirepersons whose opposition to the death penalty would preclude them from serving as jurors at the sentencing phase of a capital trial.

In 1992, the United States Supreme Court examined once again the issue of “death qualification” of venirepersons in bifurcated capital felony trials. Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992). At the trial of the petitioner in Morgan, the court had permitted the state, prior to the guilt phase of the trial, to ask potential jurors whether their opposition to the death penalty would prevent them from performing their duties as jurors. Id., 722. The trial court, however, had refused the petitioner’s request to ask potential jurors whether, if the petitioner was convicted, they automatically would vote to impose the death penalty regardless of the facts. Id., 723. The United States Supreme Court concluded that the federal constitution guarantees defendants in capital cases the right to question and excuse for cause any venireperson who, upon conviction, would automatically vote to apply the death penalty regardless of the facts. Id., 735-36.

To summarize, it is well settled that the federal constitution permits the identification and excusal for cause, prior to the guilt phase of a bifurcated capital felony trial, of venirepersons whose beliefs would preclude then from either: (1) serving as a juror during the guilt phase of the trial; or (2) serving as a juror during the sentencing phase of the trial. Wainwright v. Witt, supra, 469 U.S. 424. Excusal, prior to the guilt phase, of venirepersons whose beliefs concerning the death penalty would prevent or substantially impair the performance of their duties at the sentencing phase, but not at the guilt phase, of the trial does not violate a defendant’s rights under the sixth amendment to have his guilt or innocence decided by: (1) an impartial jury that (2) has been selected fairly from a venire pool composed of a representative cross section of the community. Lockhart v. McCree, supra, 476 U.S. 184. The federal constitution, moreover, not only permits questioning of venirepersons regarding their attitudes on the death penalty prior to the guilt phase of the trial, it also provides defendants a constitutional right to ask such questions. Morgan v. Illinois, supra, 504 U.S. 735-36.

It is useful at this juncture to identify what the defendant’s state constitutional claim does not involve. The defendant does not argue that she was deprived of a trial by an impartial jury because the individuals who served as jurors at her trial were not “impartial” in the sense that they were incapable of finding facts solely on the basis of the evidence presented and applying the law in accordance with the court’s instructions. Nor does she contend that the venire panels from which the jury that served at her trial was selected did not consist of a representative cross section of the community. Instead, the defendant asks us to conclude that, as a matter of law, the identification⁹ and excusal for cause, prior to the guilt phase of a bifurcated capital felony trial, of venirepersons whose views about the death penalty would substantially impair their ability to serve as jurors at the sentencing phase results in a jury that is not “impartial” because: (1) it is more “conviction prone”; and (2) it is not composed of a fair cross section of the community. In effect, the defendant maintains that the state constitution requires that “pro-prosecution” and “prodefense” attitudes be balanced across the jury that is selected to decide a defendant’s innocence or guilt. Thus, the defendant contends that our state constitution incorporates a meaning of “impartial jury” that the United States Supreme Court refused to adopt under the federal constitution in Lockhart. Federal precedent, therefore, does not support the defendant’s state constitutional claim; indeed, it is directly contrary to that claim.

B

The Text of Relevant Connecticut Constitutional Provisions

We turn our attention now to the second of the six Geisler factors — the language of the operative state constitutional provisions. Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides in relevant part: “The right of trial by jury shall remain inviolate . . . .” Article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and twenty-nine of the amendments, further provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to a speedy, public trial by an impartial jury. . . .” Thus, the language of article first, § 8, is substantially the same as that of the sixth amendment to the United States constitution, which provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” We can discern nothing in the language of article first, § 8, to suggest that the meaning of the term “impartial jury” in our state constitution is different from the meaning of that same term in the federal constitution— namely, a jury that is: (1) composed of individuals able to decide the case solely on the evidence and apply the law in accordance with the court’s instructions; and (2) properly selected from venire panels comprising a representative cross section of the community.

C

Historical Insights into the Intention of Our Constitutional Forebears

We turn our attention now to the third Geisler factor, historical insights into the intention of our constitutional forebears. In State v. Gannon, 75 Conn. 206, 226-33, 52 A. 727 (1902), this court traced the development of the state constitutional right to trial by an impartial jury: “[A] careful study of our colonial history . . . demonstrates . . . that when our Declaration of Rights was framed in 1818, the ‘right of trial by jury,’ with its well known essential features as then established by our common law, was one of those ‘liberties and rights’ recognized and established and declared to be forever after ‘inviolate.’ ” (Emphasis added.) Id., 231-32. This court noted in Gannon, moreover, that it was a “settled doctrine of the common law” that cases “shall be tried by a jury . . . who shall find the matter of fact . . . according to [the] law and [the] evidence . . . .” (Emphasis added; internal quotation marks omitted.) Id., 228.

Chief Justice Zephaniah Swift, writing in 1822, described the right to trial by an impartial jury that was incorporated by the state constitution in 1818: “It is a rule of the common law, that all questions of fact must be tried by the jury .... When an issue in fact, is to be tried, and the parties do not agree to put it to the judges, it must, of course be tried by a jury .... The mode of selecting, and returning jurors, is prescribed by statute. The civil authority ... in each town are to select from the freeholders, the number prescribed by law, whose names are returned to the town clerk, and put in the box. From these, the clerk . . . may cause fifteen to be summoned to attend the court, twelve of which, shall be designated by lot; and a deficiency may be supplied by any freeholder from the county, who is in such case denominated a talisman. An excellent mode to guard against what are sometimes called packed juries.

“When the jurors are returned, and before they are sworn, the parties have a right to make their challenges. These are to the array, and to the polls. Challenges to the array, are an exception to the whole panel .... In England . . . where the sheriff has a discretionary selection of jurors among the freeholders of the county, it is reasonable that the array should be set aside where the returning officer is interested, or is guilty of any partiality, or misconduct. But in this state, as the . . . returning officers, can never exercise any discretion, but are to draw the number of jurors to be summoned, from the boxes in their respective towns, it is difficult to imagine any ground of challenge to the array for the partiality and misconduct of the returning officer. . . .

“Challenges to the polls, or to particular jurors, are 1, the want of qualifications, 2 for crimes, and 3 for partiality. . . .

“3. A juror may be challenged for suspicion of bias, or partiality, which may be either a principal challenge, or a challenge to the favour. A principal challenge is, when the cause assigned, carries evident marks of suspicion, either of malice, or favour. Thus when the juror is related to either of the parties, has been an arbitrator on either side, has an interest in the case . . . where he has been bribed, or has been a juror in the same cause, or is the party’s master, servant, steward, attorney, landlord, or tenant, or has published his opinion upon the particular case, or has conversed with the parties . . . upon the subject in dispute, or has formed an opinion upon the merits of the case: these are principal causes of challenge, and if proved, cannot be overruled, but the juror must be excused. . . .

“Challenges to the favour, are founded merely on probable circumstances of suspicion, as particular friendship or enmity to either of the parties: and where the court has reason to think that there is such a bias or prejudice on the mind of a juror, as renders it probable that there will not be a candid and fair trial, they have discretionary power to dismiss him: but they ought not to indulge any unreasonable and groundless suspicion of the party. ... If a sufficient number of jurors are not returned, or so many are challenged that enough are not left to complete the pannel, the court [shall] direct the sheriff to return a sufficient number of the freeholders of the county . . . who are called talismen.” (Emphasis in original.) 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) pp. 737-38.

Chief Justice Swift’s writings make evident that the state constitutional guarantee of trial by an impartial jury incorporates two common-law rights derived from English law: (1) the right to trial by a jury that is properly selected from a venire panel composed of a representative cross section of the community, which right is secured by “challenges to the array”; and (2) the right to trial by a jury composed of individuals capable of deciding the case solely on the basis of the evidence and in accordance with the law, which right is secured by “challenges to the polls,” i.e., in modem terminology, challenges for cause. “The purpose and effect of [article first, §§ 8 and 19] is to preserve ... as a political right ‘the institution of jury trial, in all its essential features as derived from our ancestors and [existent] by force of our common law.’ State v. Gannon, [supra, 75 Conn. 232].” (Emphasis added.) State v. Perrella, 144 Conn. 228, 231, 129 A.2d 226 (1957). The defendant has not cited, and we are not aware of, any historical source that indicates that the common-law right to trial by an impartial jury that was incorporated into our state constitution in 1818 provides criminal defendants not only with the rights to bring challenges to the array and to challenge individual venirepersons for cause because they are not capable of deciding the case solely on the basis of the evidence and in accordance with the law, but also the right to challenge the composition of a selected jury on the ground that “proprosecution” and “prodefense” attitudes are not balanced across the jury. Thus, historical insights into the intentions of our constitutional forebears do not support the defendant’s state constitutional claim.

D

Relevant Connecticut Precedent

We turn now to the next Geisler factor, relevant Connecticut precedent. We repeatedly have equated the common-law right to trial by an impartial jury that was incorporated into the state constitution in 1818 to that provided by the federal constitution: “ ‘Jury impartiality is a core requirement of the right to trial by juiy guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [T]he right to juiy trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . The modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court.’ ” (Emphasis added.) State v. Santiago, 245 Conn. 301, 330, 715 A.2d 1 (1998); State v. Myers, 242 Conn. 125, 140, 698 A.2d 823 (1997); State v. Brown, 235 Conn. 502, 522-23, 668 A.2d 1288 (1995); see also State v. Cruz, 212 Conn. 351, 562 A.2d 1071 (1989). “[Article first, § 8, and the sixth amendment require] that a criminal defendant be given a fair trial before an . . . unprejudiced jury . . . .” (Internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 30, 629 A.2d 386 (1993); State v. Hernandez, 218 Conn. , 590 A.2d 112 (1991); accord State v. Esposito, 223 Conn. 299, 308, 613 A.2d 242 (1992); State v. Brigandi, 186 Conn. 521, 542-43, 442 A.2d 927 (1982).

With respect to the ability of individual venirepersons to serve as jurors, we have stated: “All agree in the value of trial by jury in criminal cases, especially in cases where life is at stake; and all will agree that [the] jury should be indifferent and impartial; that they should be [individuals] whose minds are open to impressions which the facts and law in the case ought to make, so that there should be no combat with preconceived opinions in regard to the case.” State v. Potter, 18 Conn. 165, 171 (1846). “[I]f a potential juror has such fixed and settled opinion of the case that he cannot judge impartially the guilt of the defendant, he should not be selected to sit on the [jury] panel.” State v. Tucker, 226 Conn. 618, 630, 629 A.2d 1067 (1993); State v. Ziel, 197 Conn. 60, 66, 495 A.2d 1050 (1985). “Where [however] a juror has a . . . mere impression, arising from facts supposed to exist, of the truth of which he has formed no opinion . . . there can be no ground to infer hostility or prejudice, and so the juror must be considered indifferent. To exclude persons on such grounds would be to adopt a rule not known to the common law . . . .” (Emphasis added.) State v. Potter, supra, 174-75. “It is enough if a juror is able to set aside any preconceived notions and decide the case on the evidence presented and the instructions given by the court.” State v. Cubano, 203 Conn. 81, 92, 523 A.2d 495 (1987). Thus, we previously have recognized that the state constitutional right to trial by an impartial jury provides criminal defendants the common-law right to bring a “challenge to the polls,” i.e., to challenge prospective jurors for cause and to have excused from service those venirepersons who are unable to set aside preconceived notions and decide the case solely on the evidence and in accordance with the court’s instructions on the law.

Regarding the composition of a venire panel, we have stated that article first, § 8, encompasses “[t]he American tradition of trial by jury . . . [which] necessarily contemplates an impartial jury drawn from a cross-section of the community. . . . This fair cross section requirement mandates that the jury wheels, pools of names, the panels and venires from which juries are drawn must not systematically exclude distinctive groups in the community.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 717, 631 A.2d 288 (1993); see State v. McDougal, supra, 241 Conn. 516-17 (distinguishing representative venire panel from representative jury).¹⁰ Thus, we have recognized that the state constitutional right to trial by an impartial jury incorporates the common-law right to bring “[challenges to the array”; 1 Z. Swift, supra, p. 737; from which a jury is selected.

Moreover, the common-law challenges to the polls and to the array incorporated by the state constitution in 1818 no longer provide the only constitutional bases for challenging the impartiality of a jury. In 1972, article first, § 19, of the constitution of Connecticut was amended to provide in relevant part: “The right of trial by jury shall remain inviolate .... In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily .... The right to question each juror individually by counsel shall be inviolate.” “[T]he enactment of article first, § 19, of the Connecticut constitution, as amended, reflects the abiding belief of our citizenry that an impartial and fairly chosen jury is the cornerstone of our criminal justice system.” (Internal quotation marks omitted.) State v. Tucker, supra, 226 Conn. 630; see State v. Day, 233 Conn. 813, 845, 661 A.2d 539 (1995); State v. Hancich, 200 Conn. 615, 625, 513 A.2d 638 (1986). “One of the principal purposes of individual voir dire [guaranteed by article first, § 19] is the discovery of factors 'that may predispose a prospective juror to decide a case on legally irrelevant grounds'; Rozbicki v. Huybrechts, 218 Conn. 386, 391, 589 A.2d 363 (1991); and thus provide a basis for a challenge for cause or for a peremptory challenge.” (Emphasis added.) Phillips v. Warden, 220 Conn. 112, 146, 595 A.2d 1356 (1991); see State v. Fritz, 204 Conn. 156, 161, 527 A.2d 1157 (1987); State v. Dolphin, 203 Conn. 506, 511, 525 A.2d 509 (1987); Lamb v. Burns, 202 Conn. 158, 162, 520 A.2d 190 (1987); State v. Hill, 196 Conn. 667, 671-72, 495 A.2d 699 (1985). “[I]f there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his [or her] decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice.” (Internal quotation marks omitted.) State v. Hodge, 248 Conn. 207, 217, 726 A.2d 531 (1999); State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985); State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956). “This is particularly true with reference to the defendant in a criminal case. Otherwise, the right of trial by an impartial jury guaranteed to him by article first, § [8], of the constitution of this state might well be impaired.” State v. Higgs, supra, 142; see also State v. Wilson, 38 Conn. 126, 137 (1871); State v. Potter, supra, 18 Conn. 171.

“After the completion of the voir dire of a particular venireperson, a party may challenge the venireperson for cause. The court must excuse that juror if the judge ... is of the opinion from the examination that [the] juror would be unable to render a fair and impartial verdict .... Unless one of the parties exercises a peremptory challenge to remove the venireperson, a venireperson who has not been excused for cause must be accepted by the parties as a prospective member of the juiy panel. . . . The purpose of voir dire is to facilitate [the] intelligent exercise of peremptory challenges and to help uncover factors that would dictate disqualification for cause. . . . State v. Robinson, supra, [227 Conn.] 247-48.” (Internal quotation marks omitted.) State v. Hodge, supra, 248 Conn. 217. Thus, the state constitutional guarantee, provided in article first, § 8, of trial by an impartial jury is effectuated not only by correlative rights to challenge a jury array and to challenge prospective jurors for cause, it is also effectuated by the rights, provided in article first, § 19, to individual voir dire and to challenge prospective jurors peremptorily.

We reiterate that to support her state constitutional claim, the defendant does not claim that any of the jurors at her trial was partial in the sense that he or she was unable to decide the case solely on the basis of the law and in accordance with the court’s instruction. Nor does she claim that the trial court improperly refused to excuse, for cause or on the basis of a peremptory challenge, any of the jurors who served at her trial. The defendant also does not claim that the venire panels from which the jury that decided her case was selected were not made up of a representative cross section of the community. Instead, the defendant claims that it was the excusal of certain venirepersons, specifically individuals whose opposition to the death penalty precluded them from serving as jurors at the sentencing phase of the trial, but not at the guilt phase, that deprived her of trial by an impartial jury — a claim that we considered and rejected in State v. Webb, supra, 238 Conn. 468. Connecticut precedent, therefore, also does not support the defendant’s state constitutional claim.

E

Decisions of Courts of Other States

We turn our attention now to the next Geisler factor, relevant decisions of the courts of other states. The defendant has not cited, and we are unaware of, any case in which another state has adopted the defendant’s conception of “impartial jury” as a matter of state constitutional law. In fact, the common-law and federal standard of impartiality appears to have been followed for purposes of state constitutional law in all states that have addressed the issue of “death qualification” of a capital jury prior to the guilt phase of a capital trial. See, e.g., People v. Mattson, 50 Cal. 3d 826, 844, 789 P.2d 983, 268 Cal. Rptr. 802, cert. denied, 498 U.S. 1017, 111 S. Ct. 591, 112 L. Ed. 2d 595 (1990); People v. Davis, 794 P.2d 159, 204 (Colo. 1990), cert. denied, 498 U.S. 1018, 111 S. Ct. 662, 112 L. Ed. 2d 656 (1991); Blount v. State, 511 A.2d 1030, 1036-37 (Del. 1986); State v. Burchett, 224 Neb. 444, 450-52, 399 N.W.2d 258 (1986); State v. Ramseur, 106 N.J. 123, 248-54, 524 A.2d 188 (1987); State v. Barts, 316 N.C. 666, 676-78, 343 S.E.2d 828 (1986); State v. Duvigneaud, 99 Or. App. 279, 281, 781 P.2d 1241 (1989); Commonwealth v. Jermyn, 516 Pa. 460, 488-89, 533 A.2d 74 (1987); State v. McDowell, 391 N.W.2d 661, 664-65 (S.D. 1986); Marquez v. State, 725 S.W.2d 217, 241-42 (Tex. Crim. App.), cert. denied, 484 U.S. 872, 108 S. Ct. 201, 98 L. Ed. 2d 152 (1987); State v. Young, 853 P.2d 327, 342 (Utah 1993); Spencer v. Commonwealth, 238 Va. 295, 308, 384 S.E.2d 775 (1989); State v. Hughes, 106 Wash. 2d 176, 721 P.2d 902, 908 (1986). Decisions of the courts of other states, therefore, do not support the defendant’s state constitutional claim.

F

Economic and Sociological Factors

We consider now the last Geisler factor, economic and sociological norms. The defendant’s state constitutional claim is based on the proposition that, as a matter of fact, identifying and excusing for cause, prior to the guilt phase, venirepersons whose beliefs would substantially impair their ability to serve as jurors at the sentencing phase, but not the guilt phase of the trial, results in a jury that is more “conviction prone.” We reject that hypothesis.

The defendant presented no evidence at trial to support her contention that identification and excusal for cause, prior to the guilt phase, of venirepersons whose beliefs concerning the death penalty preclude them from serving as jurors during the sentencing phase of a capital felony trial results in a more “conviction prone” jury. Moreover, the defendant explicitly declined the trial court’s invitation to provide such evidence. Instead, the defendant now relies entirely upon findings made by two federal district courts on the basis of certain social science evidence that “death qualified juries” are “convictionprone.” See Keeten v. Garrison, 578 F. Sup. 1164 (W.D.N.C.), rev’d, 742 F.2d 129 (4th Cir. 1984), cert. denied, 476 U.S. 1145, 106 S. Ct. 2258, 90 L. Ed. 2d 702 (1986); Grigsby v. Mabry, 569 F. Sup. 1273 (E.D. Ark. 1983), aff'd, 758 F.2d 226 (8th Cir. 1985), rev’d sub nom. Lockhart v. McCree, supra, 476 U.S. 162. In effect, the defendant asks us to take judicial notice of those findings.

“[A]n appellate court may take judicial notice of the existence of a body of scientific literature. ... To ensure consistency in the approach to scientific evidence, a court should examine the foundation evidence received, if any; the scientific literature; and other courts’ analyses. . . . Indeed, even when . . . there has been no evidence introduced at the trial level, an appellate court may properly analy[ze] . . . the issues . . . based [only] on consideration of the information gleaned from prior reported cases and published literature on the subject matter.” (Citations omitted; internal quotation marks omitted.) State v. Porter, 241 Conn. 57, 94-95, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

“ ‘Judicial notice . . . meets the objective of establishing facts to which the offer of evidence would normally be directed.’ ” Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995); State v. Tomanelli, 153 Conn. 365, 368, 216 A.2d 625 (1966). “The true concept of what is judicially known [therefore] is that it is something which is already in the court’s possession or, at any rate, is so accessible that it is unnecessary and therefore time wasting to require evidence of it.” State v. Tomanelli, supra, 368; State v. Main, 69 Conn. 123, 136, 37 A. 80 (1897). “[F]acts may be judicially noticed which are so notorious that the production of evidence would be unnecessary, or which the judicial function supposes the judge to be familiar with, in theory at least, or which, although they are neither notorious nor bound to be judicially known, are capable of such instant and unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tiibunal in the face of an intelligent adversary.” (Emphasis added; internal quotation marks omitted.) State v. Tomanelli, supra, 369. Thus, judicial notice properly may be taken of the courts’ findings in Keeten and Grigsby that “death qualified” juries are more “conviction prone” only if those findings reasonably can be said to be not in dispute.

We begin our analysis by noting that in Lockhart, the United States Supreme Court thoroughly reviewed the social science evidence on which the district courts in Keeten and Grigsby had based their conclusions that “death qualified” juries are more “conviction prone,” and the court concluded that the evidence presented was not capable of sustaining the district courts’ findings. In light of that conclusion, the district courts’ findings that “death qualified” juries are more “conviction prone” can reasonably be said to be in dispute. Consequently, those findings are not the proper subject of judicial notice.

Furthermore, our own thorough examination of: (1) the social science evidence presented in Grigsby and Keeten (social science evidence); (2) the reasoning of the District Courts and the Circuit Courts of Appeal in those cases; and (3) the United States Supreme Court’s analysis in Lockhart of the social science evidence also persuades us that the social science evidence presented in those cases is not capable of establishing the defendant’s hypothesis. That hypothesis, to reiterate, is that in Connecticut in 1999, the removal for cause, prior to the guilt phase of a capital felony trial, of venirepersons whose beliefs concerning the death penalty would prevent or substantially impair the performance of their duties as jurors during the sentencing phase of a capital felony trial results in a more “conviction prone” jury.

The social science evidence on which the defendant now relies consists of fourteen studies. Five of the studies¹¹ did not even identify the participants whose beliefs concerning the death penalty would supposedly preclude them from serving as jurors at the sentencing phase, but not at the guilt phase, of a capital trial. Thus, those five studies are incapable of establishing the defendant’s hypothesis that identification and excusal of venirepersons at issue in the present case — individuals whose beliefs concerning the death penalty preclude them from serving as jurors at the sentencing phase, but not at the guilt phase, of the trial — results in a more “conviction prone” jury. Accord Lockhart v. McCree, supra, 476 U.S. 170-72.

Furthermore, eight of the nine remaining studies¹² only attempted to establish a correlation between views on the death penalty and attitudes regarding certain other aspects of the criminal justice process, the untested assumption being that persons with “proprosecution” attitudes vote to convict criminal defendants more often than persons with “prodefense” attitudes. None of the eight studies involved an actual, or even a simulated, jury experience in which study participants: (1) were instructed as to the presumption of innocence and the obligation to decide the case solely on the evidence and in accordance with the court’s instructions regarding the law; or (2) participated, under oath, in deliberations regarding a “defendant’s” innocence or guilt. We are not persuaded that the correlation these studies purport to have established between death penalty attitudes and certain other criminal justice attitudes is capable of either: (1) predicting jury voting behavior; or (2) establishing the defendant’s hypothesis regarding the effect that identification and excusal for cause of certain venirepersons — individuals whose views on the death penalty would preclude them for serving as jurors at the sentencing phase, but not at the guilt phase, of the trial — has upon jury voting behavior. Accord id.

The final study on which the defendant relies is documented in C. Cowan, W. Thompson & P. Ellsworth, “The Effects of Death Qualification on Jurors’ Predisposition to Convict and on the Quality of Deliberation,” 8 Law & Hum. Behav. 53, 62-63 (1984) (Ellsworth Conviction Proneness Study). This study is not based on current Connecticut data. Instead, it is based on data that was collected twenty years ago in California¹³ from only 240 individuals. “Voir dire” took place during telephone interviews in which subjects were asked only two multiple choice questions: (1) “ ‘Is your attitude toward the death penalty such that as a juror you would never be willing to impose it in any case, no matter what the evidence was, or would you consider voting to impose it in at least some cases? a) I would be unwilling to vote to impose it in any case, b) I would consider voting to impose it in some cases’ and (2) “ ‘Which of the following expresses what you would do if you were a juror for the first part of the trial? a) I would follow the [court’s] instructions and decide the question of guilt or innocence in a fair and impartial manner based on the evidence and the law. or b) I would not be fair and impartial in deciding the question of guilt or innocence, knowing that if the person was convicted he or she might get the death penalty.’ ”¹⁴ No further attempt was made to verify that the respondents were willing and able to put aside preconceived notions and decide a case solely on the basis of the evidence presented and in accordance with a court’s instructions regarding the law. In addition, no attempt was made to ascertain whether respondents would be unable to serve as jurors because their views in favor of the death penalty would cause them automatically to impose a sentence of death. See Morgan v. Illinois, supra, 504 U.S. 735-36. Even assuming, without deciding, that the Ellsworth Conviction Proneness Study is methodologically sound, we do not believe that the “death qualification” process utilized in the study, which entailed only two multiple choice questions posed over the telephone, reasonably can be said to be representative of either the process by which venirepersons in Connecticut are questioned during voir dire about their death penalty attitudes or of the process by which venirepersons who have preconceived notions and biases that would preclude them from serving as jurors are culled from a Connecticut venire panel. For example, jury selection in the present case consumed forty full days during which the questioning of individual venirepersons lasted as long as two hours. We also are not persuaded that a single study based on data collected approximately twenty years ago from 240 California residents provides a proper basis for taking judicial notice that, despite the state constitutional guarantee of individual voir dire and peremptory challenges, the excusal for cause, prior to the guilt phase of a capital felony trial, of venirepersons whose views about the death penalty would prevent or substantially impair the performance of their duties as jurors during the sentencing phase, but not at the guilt phase, of the trial, results in a more “conviction-prone” jury in Connecticut in 1999. The individuals questioned for the Ellsworth Conviction Proneness Study did not serve under oath as jurors in an actual capital trial and, once they had given two multiple choice answers regarding their beliefs concerning the death penalty, were not subjected to further voir dire scrutiny to ensure that they were capable of deciding the case solely on the basis of the evidence and in accordance with the law.

Connecticut experience, moreover, does not support the defendant’s hypothesis that the death qualification procedure utilized at her trial results in a more “conviction prone” jury. For example, in a capital felony case now pending before this court, State v. Johnson, Docket No. SC 14801, the trial court excused for cause twenty-seven venirepersons who stated during voir dire that the death penalty should be imposed automatically in that case. Only seventeen venirepersons were excused on the basis of their opposition to the death penalty. See State v. Ellis, 224 Conn. 711, 724, 621 A.2d 250 (1993) (judicial notice properly may be taken of files of Superior Court cases); McCarthy v. Commissioner of Correction, 217 Conn. 568, 580 n.15, 587 A.2d 116 (1991) (same). Put another way, in State v. Johnson, supra, the death qualification process resulted in the excusal for cause of twenty-seven supposedly “proconviction” venirepersons and only seventeen supposedly “proacquittai” venirepersons. Thus, even if we were to assume, without deciding, that, as the defendant maintains, death penalty beliefs are predictive of jury voting behavior, we still could not conclude that “death qualification” results in a Connecticut jury that is more, rather than less, “conviction prone.”

To summarize, none of the Geisler factors supports the defendant’s state constitutional claim. The state has a valid and important interest in having the same jury serve at the guilt and penalty phases of a capital felony trial. See State v. Webb, supra, 238 Conn. 467 (“In most capital cases, the evidence presented to demonstrate the defendant’s guilt also will be relevant to the determination of the existence of aggravating factors. . . . Thus, if different juries were required to consider the guilt and penalty issues, much of the same evidence would be likely to be presented to each of the juries.” [Citation omitted.]). We conclude that article first, § 8, of the constitution of Connecticut incorporates the standard of “impartial jury” provided by the federal constitution, namely, a jury that is: (1) composed of individuals able to decide the case solely on the evidence and in accordance with the court’s instructions regarding the law; and (2) properly selected from a venire panel that is composed of a representative cross section of the community. Identification and excusal for cause, prior to the guilt phase of a capital felony trial, of venirepersons whose views concerning the death penalty preclude them from serving as jurors at the sentencing phase, but not at the guilt phase, of the trial does not violate the state constitutional guarantee of trial by an impartial jury.

Finally, we note that, as a practical matter, the standard of “impartial jury” advocated by the defendant would require not only that jurors be able to set aside preconceived notions and decide a case solely on the evidence and in accordance with the court’s instructions, but also that “proprosecution” and “prodefense” attitudes — the very attitudes that the jurors have been determined to be capable of setting aside and that the jurors are sworn to set aside — be balanced across the jury. Even if we were to assume, without deciding, that it somehow would be possible to ascertain and balance jurors’ criminal justice attitudes across ajury, the defendant’s proposed standard of “impartial jury” still would not be workable because it effectively would require the elimination of the use of peremptory challenges— challenges that are guaranteed by article first, § 19, of the constitution of Connecticut.

II

The defendant next claims that the trial court improperly excused venireperson F.V. because of her opposition to the death penalty. Specifically, the defendant claims that the court improperly concluded that F.V.’s beliefs concerning capital punishment would prevent or substantially impair her ability to perform her duties as a juror in accordance with the court’s instructions and the juror’s oath.¹⁵ See Wainwright v. Witt, supra, 469 U.S. 419-21. We disagree.

“Our constitutional and statutory law permit each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine the venireperson’s fitness to serve on the jury. Conn. Const., art. I, § 19; General Statutes § 54-82f; Practice Book § [42-12],¹⁶ After the completion of the voir dire of a particular venireperson, a party may challenge the venireperson for cause. The court must excuse that juror if the ‘judge . . . is of the opinion from the examination that [the] juror would be unable to render a fair and impartial verdict . . . .’ General Statutes § 54-82f; Practice Book § [42-12].” State v. Robinson, supra, 237 Conn. 247-48. The trial court is vested with wide discretion in determining the competency of jurors to serve. State v. Day, 233 Conn. 813, 843, 661 A.2d 539 (1995); State v. Tucker, supra, 226 Conn. 630; State v. Esposito, supra, 223 Conn. 310; State v. Pelletier, 209 Conn. 564, 572, 552 A.2d 805 (1989); State v. Cubano, supra, 203 -89; State v. Ziel, supra, 197 Conn. 65; State v. Anthony, 172 Conn. 172, 175, 374 A.2d 156 (1976). “[T]he exercise of [the trial court’s] discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted.” (Internal quotation marks omitted.) State v. Faust, 237 Conn. 454, 462, 678 A.2d 910 (1996); State v. Skipper, 228 Conn. 610, 625, 637 A.2d 1101 (1994).

During voir dire, F.V. stated: “I don’t believe in the death penalty,” and “I can’t justify the death penalty for any reason.” She further stated that: she automatically would vote against the death penalty; her “mind ain’t open to the death penalty”; she could not fairly consider both options for penalty; she could not participate in the process; she “couldn’t be open minded towards a death penalty”; the death penalty is “just as bad as the person who has committed a murder”; and she “wouldn’t vote for a death penalty.”

F.V. also stated, however, that: she could be fair in evaluating the evidence of aggravating and mitigating factors; she “would follow the law that [the court] described”; even “knowing that [the judge] would be bound by the jury’s decision, [she] could still be fair in analyzing the evidence that might be presented [regarding] aggravating and mitigating factors”; her “personal views . . . would make [her] feel uncomfortable, but they wouldn’t make [her] unfair”; her views on the death penalty would not cause her “to go easy on [the defense] when [it tries] to show the jury reasons for life”; she could not overlook whatever was proven because of her beliefs; her strong feelings would not interfere with her ability to be a juror; and she would not automatically vote against the death penalty.

Relying on F.V.’s inherently contradictoiy statements, the trial court reasonably could have concluded that F.V.’s opposition to the death penalty would substantially impair her ability to perform the duties of a juror in accordance with the court’s instructions and the juror’s oath. Wainwright v. Witt, supra, 469 U.S. 419-21; see also State v. Tucker, supra, 226 Conn. 644 (venireperson’s personal assurance of impartiality is not dispositive of that individual’s ability to serve as impartial juror); State v. Cubano, supra, 203 Conn. 92 (same). The trial court, therefore, acted well within its discretion in excusing F.V. from service as a juror on the basis of her opposition to the death penalty.

Ill

The defendant’s final claim is that the trial court’s instruction to the jury regarding proximate cause¹⁷ was flawed. We disagree.

“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995). [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . . State v. Figueroa, 235 Conn. 145, 170-71, 665 A.2d 63 (1995).” (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).

“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. . . . State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995); accord State v. Faust, [supra, 237 Conn. 473-74]; see also State v. Hines, 243 Conn. 796, 818-19, 709 A.2d 522 (1998).” (Internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 171, 728 A.2d 466 (1999).

The defendant first maintains that the trial court’s instruction misled the jury by allowing it to believe that it could convict the defendant of murder even if the state did not prove causation. Specifically, the defendant contends that by stating to the jury that “to be a substantial factor in producing the death the act must have continued down to the moment of injury or the death or at least down to the setting in motion of the final injurious force which materially produced or preceded the death,” the trial court permitted the jury to convict the defendant of murder even if it concluded that: (1) the defendant did not inflict any wounds; (2) she merely inflicted superficial wounds; or (3) she only committed nonfatal acts such as breaking the lamp and glass jar over the victims’ heads. The trial court, however, also instructed the jurors that “the state has to prove beyond a reasonable doubt that the defendant did . . . cause the [victims’] death”; that “[a]n act . . . is the proximate cause of death when it substantially and materially contributes ... to the resulting death. It is the cause without which the death would not have occurred and it is a predominating cause, a substantial factor from which death followed as a natural, direct, and immediate consequence”; that “[t]he state must prove beyond a reasonable doubt . . . that the defendant caused the death of the particular individual”; that “[a]n act ... is the proximate cause of death when it substantially and materially contributes ... to the resulting death”; and that “[i]t is essential the physical acts of [the defendant] be a substantial factor in bringing about the death.” There is no reasonable possibility that the jury was misled into believing that it properly could convict the defendant of the victims’ murders without first finding that the defendant had committed acts that caused the victims’ deaths.

The defendant also maintains that the trial court’s instruction misled the jury by allowing it to convict the defendant even if it concluded that she had been only an accessory to the murders. The defendant impliedly contends that by stating to the jury that “in order for [the defendant] to be relieved of responsibility under this theory of efficient intervening cause . . . you must find that the defendant and Mr. Fruean were not acting jointly to commit the death”; (emphasis added); the trial court permitted the jury to convict the defendant of murder without first finding that she herself had caused the victims’ deaths. The statement upon which the defendant relies, however, clearly indicates that the jury was to consider the question of joint action only if it had first determined that the defendant’s conduct was responsible for the victims’ deaths. There is no reasonable possibility that the jury was misled into believing that the defendant properly could be convicted of the victims’ murders without a finding that the defendant’s own actions had caused the victims’ deaths.

The judgment is affirmed.

In this opinion BORDEN, PALMER and MCDONALD, Js., concurred.

1 General Statutes § 53a-54b provides in relevant part: “A person is guilty oí a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction

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

2 The term “death qualified” jury has been used to refer to a jury from which prospective jurors have been excluded for cause on the basis of their opposition to the death penalty. See Lockhart v. McCree, 476 U.S. 162, 167, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986).

3 When Coccia returned home from work that evening, she entered the house, discovered Steller and King dead on the kitchen floor, and ran to a neighbor’s house to summon the police. Shortly thereafter, while one of the first Middletown police officers to arrive at the scene was standing over the bodies, the answering machine on the kitchen counter clicked on, stated that the tape was full and then shut off. The officer alerted the state police, who obtained a warrant and seized the tape. The seized answering machine tape reveals the following conversation:

The defendant: “I thought you were going to help me.”

Steller: “No, please.”

The defendant: “Butch, hold her.”

Steller: “No, don’t. Don’t, no, don’t, don’t, come on please, I’ve got a son. Come on, Janet.”

Fruean: “Do it.”

Steller: “Janet. No!” (clicking noise)

The defendant: “Oh great. I can’t.”

Steller: “Ronnie, Ronnie, Ronnie, no, no, no, Janet no!” (sound of struggle) Steller: “Ronnie, Ronnie, Ronnie, help me!” (sound of struggle)

Steller: “No! Ronnie, Ronnie, Ronnie, Ronnie, Ronnie, God, no, Godplease! No! No! No, Janet!”

King: (Loud groan)

Steller: “Oh god. Ronnie help me.” (yells; groans)

The defendant: “Give me something, anything.”

Fruean: “Here.” (sound of breakage)

The defendant: “Butch, here, here, he’s not done, he’s not done; no, hand me something.” (sound of breakage)

Fruean: “Let’s go.”

The defendant: “He’s done, let’s go.”

4 Jury selection began on January 9, 1996, and was completed on March 13, 1996.

5 General Statutes (Rev. to 1993) § 53a-46a provides in relevant part: “(a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.

"(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of . . . a capital felony, the judge . . . who presided at the trial . . . shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h). . . . Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if . . . (c) the jury which determined the defendant’s guilt has been discharged by the court for good cause ....

“(c) In such hearing . . . [t]he burden of establishing any of the factors set forth in subsection (h) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.

“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury . . . shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.

“(e) The jury . . . shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.

“(f) If the jury . . . finds that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury . . . finds that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist, the court shall impose a sentence of life imprisonment without the possibility of release. . . .

“(h) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury . . . finds by a special verdict . . . that (1) the defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily ipjury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.”

6 General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony . . . .”

7 Article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and twenty-nine of the amendments, provides in relevant part: “a. In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger. . . .”

Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides: “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

8 At the trial of the petitioner in Witherspoon, the state used the statute to excuse for cause forty-seven venirepersons, nearly one half of the entire venire panel, each of whom had expressed concerns about the death penalty. Witherspoon v. Illinois, supra, 391 U.S. 513-14.

9 Paradoxically, the defendant acknowledges that the state constitution permits the excusal for cause, prior to the guilt phase of the trial, of venirepersons whose views about the death penalty would prevent or substantially impair the performance of their duties as jurors during the guilt phase of the trial. It is difficult to square this acknowledgment with the defendant’s claims.

10 We recognize that the equal protection clauses of the federal and state constitutions provide a defendant with additional bases for challenging the composition of the jury selected to determine the defendant’s innocence or guilt. “In Batson v. Kentucky, [476 U.S. 79, 96, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)], the United States Supreme Court held that the use of peremptory challenges to exclude ‘a cognizable racial group’ from a jury violated the equal protection clause of the United States constitution. That court later explained that this protection concerned the removal of ‘cognizable groups’ by peremptory challenge, but not other groups subject to rational basis review. J.E.B. v. Alabama, ex rel. T.B., 511 U.S. 127, 143, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). In extending the ‘cognizable group’ label to gender-based discrimination, the court stated: ‘All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that, reflect and reinforce patterns of historical discrimination.’ Id., 142-43.” (Emphasis added.) State v. McDougal, supra, 241 Conn. 514. “In balancing the important right of peremptory challenges against the right to have a jury selected in a nondiscriminatory fashion, 1 he United States Supreme Court has determined that the right of peremptory challenges gives way only when challenges are exercised to exclude a cognizable group from a petit jury. J.E.B. v. Alabama ex rel. T.B., supra, [143]; Batson v. Kentucky, supra, [90-93]; Swain v. Alabama, 380 U.S. 202, 214-24, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). Given the unique role of peremptory challenges in this state, we cannot say that the balance should be struck differently under our constitution.” State v. McDougal, supra, 520. Individuals whose views about the death penalty preclude them from service as jurors at the sentencing phase, but not at the guilt phase, of a capital trial, however, do not constitute a “cognizable group” for equal protection purposes. Thus, the death qualification process utilized at the defendant’s trial does not implicate the defendant’s equal protection rights.

11 H. Zeisel, “Some Data on Juror Attitudes Toward Capital Punishment,” University of Chicago Law School: Center for Studies in Criminal Justice (1988) (data collected in 1954 and 1955); W. Wilson, “Belief in Capital Punishment and Jury Performance,” University of Texas (1964) (unpublished) (data collected from 187 college students in 1964); F. Goldberg, “Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law,” 5 Harv. C.R.-C.L. L. Rev. 53 (1970) (data collected from college students in 1966 and 1967); G. Jurow, “New Data on the Effect of a ‘Death Qualified’ Jury on the Guilt Determination Process,” 84 Harv. L. Rev. 567 (1971) (data collected prior to 1970 from 211 New York employees of Sperry Rand Corporation); L. Harris & Associates, Inc., “Study No. 2016” (1971), reported in W. White, “The Constitutional Invalidity of Convictions, Imposed by Death-Qualified Juries,” 58 Cornell L. Rev. 1176 (1973) (data collected in 1971 from 2068 adults throughout United States).

12 E. Bronson, “On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen,” 42 U. Colo. L. Rev. 1 (1970) (data collected in 1968 and 1969 in Colorado); E. Bronson, “Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California,” 3 Woodrow Wilson J.L. 11 (1980) (data collected in 1969 and 1970 in California); R. Fitzgerald & P. Ellsworth, “Due Process vs. Crime Control: Death Qualification and Jury Attitudes,” 8 Law & Hum. Behav. 31 (1984) (data collected in 1979); P. Ellsworth, R. Bukaty, C. Cowan & W. Thompson, “The Death-Qualified Jury and the Defense of Insanity,” 8 Law & Hum. Behav. 81 (1984) (data collected in California; thirty-five participants); W. Thompson, C. Cowan, P. Ellsworth & J. Harrington, “Death Penalty Attitudes and Conviclion Proneness: The Translation of Attitudes into Verdicts,” 8 Law & Hum. Behav. 95 (1984) (data collected in California; thirty-six participants); C. Haney, “On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process,” 8 Law & Hum. Behav. 121 (1984) (data collected in California; sixty-seven participants); L. Harris & Associates, Inc., “Study No. 814002” (1981) (unpublished); R. Seltzer, G. Lopes, M. Dayan & R. Canan, “The Effect of Death Qualification on the Propensity of Jurors to Convict: The Maryland Example,” 29 How. L.J. 571 (1986) (data collected in 1983).

13 See Chigsby v. Mabry, supra, 758 F.2d 234.

14 Ellsworth Conviction Proneness Study, supra, pp. 62-63.

15 The defendant has not raised this claim as a matter of independent state constitutional law, and she does not dispute that the Witt standard, which currently serves as the relevant standard for evaluating federal constitutional claims, governs the propriety of the trial court’s ruling. The Witt standard permits the excusal for cause of venirepersons whose beliefs concerning capital punishment would prevent or substantially impair the performance of their duties as jurors. Wainwright v. Witt, supra, 469 U.S. 419-21.

16 General Statutes § 54-82f provides: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”

Practice Book § 42-12 provides: “Each party shall have the right to examine, personally or by counsel, each juror outside the presence of other prospective jurors as to qualifications to sit as a juror in the action, or as to interest, if any, in the subject matter of the action, or as to relations with the parties thereto. If the judicial authority before whom such examination is held is of the opinion from such examination that any juror would be unable to render a fair and impartial verdict, such juror shall be excused by the judicial authority from any further service upon the panel, or in such action, as the judicial authority determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of the trial.”

17 With respect to proximate cause, the trial court instructed the jury: “I’m focusing your attention now on an additional instruction on the second element in each murder and that is causation. In each of the two murders the state has to prove beyond a reasonable doubt, that’s the second element in each, that the defendant did cause the death of Miss Steller in count one and the defendant did cause the death of Mr. Ronald King in count two.

“So, the second element in each count of murder is that the defendant did cause the death of Miss Steller and Mz\ Ronald King, respectively. This means that [the defendant’s] conduct, and again, when I talk about conduct I’m talking about the acts that she allegedly committed at that date at that time. This means that [the defendant’s] conduct was the proximate cause of the death of Patricia Lynn Steller and Ronald King, respectively. And this definition that is going to follow applies to each count of murder.

“An act or an omission to act is the proximate cause of death when it substantially and materially contributes in a natural and continuous sequence unbroken by an intervening cause to the resulting death. It is the cause without which the death would not have occurred and it is a predominating cause, a substantial factor from which death followed as a natural, direct, and immediate consequence. Where the death or injury caused by [the defendant’s] conduct is a foreseeable and natural result of that conduct, the law considers the chain of causation unbroken and holds the defendant . . . criminally responsible.

“The state must prove beyond a reasonable doubt in each count that the defendant caused the death of the particular individual. This means that the defendant’s conduct was the proximate cause of the victim[s’] death[s]. An act is the proximate cause when it substantially and materially in a natural and continuous sequence unbroken by an intervening cause contributes to the resulting death.

“Now, there is evidence put before you and it’s for you to decide. Anything I say here is subservient to your finding whatever facts have been proven to you. Your finding of facts is controlling. There is evidence of another party present at the premises of 14 Red Orange Road on the afternoon of November 1, 1993 and that individual is Gordon ‘Butch’ Fruean. It is not essential that the defendant ... be the sole cause of death. It is not essential that her act or ads be the immediate cause of death. It is essential the physical acts of [the defendant] be a substantial factor in bringing about the death. So, where a wound has been a substantial factor in causing a death, it is still to be regarded as the cause of death even though the infliction of wounds by another is a contributing factor.

“The act or acts of the defendant, to be the proximate cause, must be a substantial factor in producing death and to be a substantial factor in producing death the act must have continued down to the moment of injury or the death or at least down to the setting in motion of the final injurious force which materially produced or preceded the death.

“If you find that the act or acts of both these parties were substantial factors in producing the particular deaths then any contributing act by Fruean will not relieve the defendant of responsibility.

“There may be situations when the defendant’s conduct is a cause in fact of the victim’s death but an act or force intervenes in such a way to relieve a defendant whose conduct contributed in fact to the victim’s death from responsibility. You may find that some other circumstances subsequently occurred, the course of which may be an act by another person that does more than supply a concurring or contributing cause of death but is unforeseeable and sufficiently powerful in its effect to relieve the defendant of criminal responsibility for her conduct.

“To be relieved of criminal responsibility the efficient intervening cause that produced the death must supersede the defendant’s conduct. In order for [the defendant] to be relieved of responsibility under this theory of efficient intervening cause by another, you must find that the defendant and Mr. Fruean were not acting jointly to commit the death and the superseding conduct of Fruean was unforeseeable.

“Whether circumstances subsequent to the defendant’s conduct constitute a concurring or contributing cause of death, which will not relieve [the defendant] of criminal responsibility or constitute a superseding efficient intervening cause of death, which would relieve the defendant of responsibility, are questions of fact for the jury.

“If you find that the defendant’s conduct was the proximate cause of the vic.tim[s’] death[s] you should also consider whether Mr. Fruean engaged in any conduct which caused the death[s] of the victim[s]. If you find there is such evidence, you must decide whether Mr. Fruean’s conduct just contributed or cooperating cause of death or whether Mr. Fruean’s conduct to operate to supersede as an efficient intervening cause that produced the victim[s’] death[s].

“If Mr. Fruean’s conduct combined with the defendant’s to cause the victims’ death[s], the defendant is not relieved of criminal responsibility. If Mr. Fruean’s conduct was unforeseen and sufficiently powerful to supersede the defendant’s conduct in causing the victim[s’] death[s], then he would be an intervening cause that produced the death and the defendant would be relieved of criminal responsibility in the death of that particular victim.”