*1 tissue of brain and destruction hemorrhage brain He found hemorrhage. surrounding the area it. There to account for externally unusual nothing objection An testimony. to his no objection was must be taken an exception be made and must Practice Book ground appeal. make a ruling that his was testimony The claim plaintiffs § exer- the court should have and that incompetent its motion instructed cised its discretion and on own where the Only procedure it. disregard 226 is will a set forth in Practice Book followed trial the evidence be considered judge ruling by Practice 652; us. Book Skinner v. Skin- §§ 848. The claim is ner, Conn. A.2d without merit.
There is no error. In this the other opinion judges concurred. of Connecticut v. Patrick Menillo
King, J., Alcorn, House, Ryan, C. Thim and Js. *2 Argued February decided March1970 Theodore I. Koskoff, with whom was P. Michael Koskoff, for the defendant.
Francis M. McDonald, Jr., state’s attorney, whom was Jeremiah M. Keefe, assistant state’s at for the torney, state.
King, C. J. On July defendant was indicted aby grand jury for the crime of the murder, in the first degree, Carol T. DelHobbo, by means of poison (apparently her applied body course of committing an abortion upon her) violation of 53-9 of the Gencral Statutes (Rev. to 1968). guilty found accused if the §53-10,
Under is held hearing further first degree, in the murder the issue jury, whether court trier, before in the discretion whether, is, of penalty, in the stat- as outlined evidence hearing after trier, life imprison- death or should ute, penalty first murder for But since penalty ment. indict- a first-degree death, could be degree an offense indictment ment constitutes offense. by death, is, punishable constitution first of the 8 of article Under § *3 that person it is provided “[n]o (1965), Connecticut any crime, punishable shall be held to answer for a unless on present- death or life by imprisonment, This provi- ment an indictment of a grand jury”. or Stat- sion is 54-45 of the General implemented by § the utes See also 1968). Thus, to (Rev. §54-46. in- as he was, defendant here was required be, a he held dicted before could be the crime murder in the answer on trial for first degree.
After the grand first-degree had returned the made an indictment, applica- defendant tion to be admitted to after bail, which, hearing before the was denied. The defend- Superior Court, ant made an to the application Supreme Court for review order denying bail under Practice Book which authorizes Court, § Supreme “on written motion for review stating grounds for the relief . . . sought, any or vacate modify [to] order denying fixing amount of bail”. See also General Statutes (Rev. to 1968) 54-63g. §
At hearing Superior state Court, claimed since the that, had indicted the defendant for first-degree which a crime murder, for which the punishment could be he death, was not entitled bail 54-53 of the by virtue General § “ Statutes (Rev. provides which 1968), [e]ach detained in person sentencing jail arraignment, or trial for an offense not death shall punishable by be entitled to bail and shall be released from jail upon entering into a with sufficient recognizance, . . . for surety his before appearance court having cognizance of offense”. This statute, which appears the same form as substantially 97 on page § 171 of the Revision makes it of 1821, clear that for a and a century all half, noncapital an accused cases, has been entitled to preconviction release on bail in a reasonable amount.
The defendant claimed 54-53 did not (1) § bail in deny all cases if capital construed in properly light the provision in 8 of article first of § constitution of Connecticut (1965) providing all criminal “[i]n prosecutions, accused shall have a right ... released on bail suffi- upon cient security, except where the offenses, proof is evident or the presumption great” and (2) if that, 54-53 could be properly construed as deny- *4 ing bail in capital cases other than those in which “the proof is evident or the presumption it great”, to the was, extent of that denial, unconstitutional contrary to the bail above-quoted provision of 8§ of article first of the Connecticut constitution.
The court overruled both contentions de- in fendant, effect that holding bail was not permis- sible in a capital case. In so the court holding, fol- lowed the traditional practice in but Connecticut, one which we are now constrained to hold is errone- ous. it Parenthetically, may be noted that this is the first time that a claim for bail in a capital case has been to our made, knowledge, a Connecticut court. Court, Superior hearing the bail
On and did produce, refused to steadfastly state either that to show tending evidence any produce, the defendant’s evident” “the . . . proof [was] “the presump- or that guilt first-degree that defendant A claim of great”. tion [was] he was that proving had the burden of the state him disentitling exception within the constitutional to bail was also overruled. to offer was permitted the defendant
Although his good as to as letters informal such evidence, that as held clear that the court character, indicted been having matter of law the defendant, entitled bail. was not for first-degree murder, on denying The Court bail order of Superior of this case under the circumstances ground, and the as hereinafter was erroneous, discussed, remanded order application for bail must be there be a determine whether hearing new defendant in this case falls within the constitutional in a case “where exception capital bail denying is evident proof great”. presumption in a technical sense this is dispositive While in fairness the trial the state matter, court, and the we think it practically necessary defendant, to two more matters cer- given consideration tain to arise on the these matters rehearing. One of is the amount of evidence ac- bring required cused within the him exception disentitling bail, and the other is the adduc- question of burden of such evidence ing and the risk of nonpersuasion the issue of a right to bail in this case.
(a) *5 The constitution is so worded as to create an ex- which is ception itself is, disjunctive, first- indictment under though even aeccnsed, when except bail is entitled to degree murder, the presumption is evident or [2] proof “[1] great”. ensure bail is to
The fundamental purpose all proceedings, an accused throughout presence were kept If an accused final including judgment. there his arrest,
locked from the time of up jail at all availability would no as to his question article first times. But the of 8 of provision bail § of our makes clear that it was intended constitution that in all cases not within falling even cases, bail in a amount should be reasonable exception, ordered. This is a further reinforced by provision in the same section of our constitution prohibiting requirement of “excessive which thus bail”, pre- vents a court from fixing unreasonably bail an high amount so as to what accomplish indirectly could not accomplish denying directly, is, to bail. But a reasonable amount is not neces- sarily amount within the of an accused to power raise. It is an amount which reasonable is under all circumstances relevant to the likelihood that accused will flee the jurisdiction or otherwise avoid being present for trial. See 395. Swift, p. Digest,
It must not be overlooked that we are concerned here only are preconviction bail. not at all We concerned with postconviction bail and a stay of execution of sentence during of an pendency appeal. Such bail disassociated entirely from the preconviction presumption is not innocence, authorized by any constitutional but requirement only under 54-63f of the General Statutes (Rev.
1968), should be granted with great caution, as pointed out in cases such as State v. Vaughan, 71 Conn. 457, A. *6 test as rule or proper state the
It is difficult to
the presumption
is evident
when “the proof
well
been as
has
think it
probably
but we
great”,
Konigsberg, in
v.
anywhere
expressed
that
it was said
where
(b) The most difficult remains. And that is, question in a postindictment, preconviction application bail in a where the burden does case, lie proof bring accused within constitu- tional exception to the right bail, is, prove that “the proof murder de- guilt of in first [of gree] is evident or the presumption great”. We have held already the court below in this was, case, error deciding, accordance with the claims of the that the state, grand jury’s first-degree indictment was conclusive proof defendant was within the constitutional exception him disentitling to bail and in its further holding, that as claim of the state, also in accord with a in any capital was permissible matter of law bail case. *7 bail in the
In unrelated application another Carter, 287, 159 285, case of Conn. capital day the same 268 A.2d in this court on 677, argued and the state decided this in a day separate opinion, made a claim if bail or alternative secondary that, was after indict- permissible first-degree ment, indictment itself sufficient to make out a is facie prima case that is or the evident proof pre- and sumption great that the burden of producing substantial that the accused evidence countervailing is not within the although on when exception him, is that limited burden of evidence has been producing satisfied, overall risk nonpersuasion issue that the accused falls within the constitutional exception him remains disentitling to bail on the state. This is rule as substantially our to the so- called “defenses” of as outlined in cases insanity, such as State v. Conte, 157 Conn. 251 A.2d 209, 212, of entrapment, as outlined in eases such as State v. Whitney, 157 Conn. A.2d
Although there is a rather surprising uniformity in the wording of the constitutional provisions in the various states as to the right to bail a capital case, the determination of if what, any, evidential weight should be given in a bail hearing to single fact of a grand jury indictment for first-degree murder has produced a contrariety decision.
Cases decided up until
about
covering the
general
right of an accused to bail in a capital case
are collected in an annotation in 39 L.R.A.
(N.S.)
752-785.
In an annotation in
bail is proof showing whether case, in a great. or the presumption evident the indictment cases hold A few of older the proof a conclusive presumption furnishes note, See great. or the presumption is evident the rule advanced This is A.L.R.2d 357. the trial court it induced and that which state in the instant case. adopt the fact weight evidential deny any cases Other exists to bail of indictment and hold and that the eases in all cases certain capital except accused falls that the burden is on state to show *8 in those to bail within the exception based The in these cases are cases. decisions the pre- on two The first is that grounds. ground and the of innocence requires result; sumption is since the constitutional ground that, pro- second in all cases not vision entitles accused to bail within the is on the burden of exception, proof state to the accused within that bring exception. this in the annotation type may Cases of be found is A.L.R.2d at 358 3. page This, course, § the rule contended by for defendant.
A third line of cases holds since the accused that, is entitled to bail on and when he only application, makes such an he is application attempting the status change burden of is quo, proof him to show that the proof of his guilt of in the first is not degree evident or presumption is thereof not great. Cases of this be type may found in the annotation in 89 A.L.R.2d at page 362 4. §
We think that
these
rules
oversimplify
problem in this particular
case in that
do not
they
give sufficient consideration to the particular proce-
conduct
in the
jurisdiction
in a given
dure followed
the impor
Indeed
grand jury.
aof
constitutional
rec
is
procedure
grand jury
applicable
tance of
Fontaine,
Taglianetti
v.
recent case of
in the
ognized
which followed
this was not the investigatory general, known to the common law which could into inquire crimes in general and which substan- had functions the same tially as our modern so-called “one-man jury” authorized 54-47 of General *9 Statutes (Rev. to for cases such 1968). See, instance, State v. Kemp, 126 Conn. 9 A.2d 63. 60, 66, 71,
The grand in jury the instant case was for what, convenience, will be termed a constitutional grand Its jury. essential mode of was outlined operation in Lung’s Case, 1 Conn. in certain 428, and details in General Statutes to The (Rev. 1968). §54-45 state’s attorney lays before the court a bill of indict- ment for murder, whether in specifying the first or second the degree; court grand orders a to be jury summoned to consider it; the state’s attorney sub-
274
any
he nor
neither
bnt
witnesses,
mits a list
room;
jury
the grand
is in
the accused
for
counsel
the witnesses
summoned
the
orders
jury
grand
it finds
witnesses
other
any
the
with
together
list
are
these witnesses
and
interrogate,
desirable
to
their
in
truth
accordance
to
the
sworn
speak
rules of evi-
strict
failure to adhere to
and
oath;
grand jury’s
validity
fatal
to the
dence is not
in
charge
its
although
the indictment,
action on
avoid
instructs
them to
court
grand jury,
jury
evidence.1 The grand
inadmissible
admitting
here in-
not
with certain exceptions
proceedings,
Coffee,
State
v.
are conducted in secret.
volved,
accused is not,
A. 151.
410,
Conn.
While
399,
within
as a matter
entitled to be present
of right,
custody
if he is in
grand jury room,
practice,
within
are known
or his whereabouts
state,
the state
he
he is allowed
readily
is
available,
room
grand
privilege
being present
during
of evidence
taking
State v.
not
their
although
during
deliberations.
Fasset, 16 Conn.
The
457,
requirement
secrecy is embodied
the oath
members of
for
constitutional
as set forth in
1-25 of
grand jury
the General Statutes
Since a con-
(Rev.
1966).
does
determine
or
guilt
stitutional
innocence but
merely determines whether
there
probable cause to
trial
justify
the accused on
putting
murder,
accused,
allowed
ask
although
proper
questions of
witnesses before the grand
jury,
is not allowed to
introduce evi-
testify
dence tending to
his innocence
insofar
prove
except
practice,
Under usual
grand jurors
Connecticut
at least one of the
bar,
is a member of the
so that
the exclusion of inadmissible
evi
Davies,
may
See cases such as dence
well
achieved.
139,
Conn. 137,
denied,
921,
148 A.2d
cert.
360 U.S.
79 S. Ct.
*10
1441,
275 dis may witnesses the state’s Ms questioning v, State See case. the state’s weakness of close Hamlin, 95, 104. 47 Conn. require constitutional of our
The basic purpose is to interpose, a grand jury indictment by ment of crime a accused of and one between state life imprison be death may which the punishment persons, disinterested eighteen ment, body Stat the General under 54-45 of twelve whom, indictment, utes must (Rev. agree upon to 1968), shown probable to determine whether the state has em cause for the accused to subjecting expense, Kennedy v. barrassment and risk of such trial.
Walker, 135 337 A.2d 589, aff’d, Conn. 63 262, 270, rehearing U.S. 69 S. Ct. 93 Ed. 901, 1715, L. 1046, 1740. 93 L. Ed. denied, 1493, U.S. S. Ct. 934, These grand settled as to principles constitutional reiter jury procedure in Connecticut were recently ated and Stallings, State v. 154 Conn. explained 224 A.2d Gyuro, 718. See also v. Conn. 242 A.2d 391, cert. 393 U.S. 393, denied, 734, 89 S. 937, Ct. L. Ed. 2d 274. It is obvious in Connecticut the fact of indictment by the grand jury for murder in the first is some degree evidence that there is cause probable to believe the accused is in danger of crime. conviction of that This is so since in especially Connecticut the state’s attorney must lay before the constitutional jury an indictment whether the crime specifying charged is murder in the first or second degree.
General Statutes McBrien (Rev. to 1968) §53-9; Warden, 153 Conn. A.2d 320, 328, 216 If the grand jury fails to find probable cause for murder in the first degree, would fail “a true to endorse bill” on a first-degree murder indictment. If it felt there was probable cause for murder *11 asking it so to the report court,
second would degree, murder second charging indictment If it felt that there was not cause degree. probable fail find for murder in the second it would to degree, a true with an indictment charging bill if presented murder in the second and thus leave to degree state’s if he informa- by attorney, chose, proceed tion A charge on of constitutional manslaughter. is solely charge concerned in the first second It does degree. not act on a charge of McBrien v. manslaughter. Warden, 325. And of course in this supra, particular case, any hearing on constitutional bail, concern is with a solely capital crime, since the unqualified right to reasonable bail is given in all other criminal cases.
Under the New Jersey as outlined in practice, State Konigsberg, N.J. 164 A.2d the state’s attorney . . . “usually gives only legal advice” and directs the entire “generally pro- ceeding” although it is not clear whether he actu- is ally within the grand jury during room its hearings or deliberations. In the state’s attor- Connecticut, ney and in present, this case was not present, in the grand jury room. while the Secondly, state’s attorney naturally supplies grand jury with a list of witnesses who he believes will testify support of the indictment, grand jury may deter- mine from the testimony that other witnesses should be examined and may cause them be called. Thus, the state’s attorney cannot restrict the grand jury to witnesses on his own list. under Thirdly, our practice the grand jury must find a true if at bill, on all, either a first- or second-degree murder indict- ment. It as in find cannot, New Jersey, merely murder of some sort and leave the question of petit be determined degree most importance and probably Fourthly, trial. con- accused, usage permitting is our all, proce- Island Rhode Jersey New
trary inter- during room to be dure, *12 and jury grand the of witnesses rogation questions reasonable himself to propound right the in how, especially see It is to easy witnesses. to the wrong the the have police apprehended where cases involved, is identity simple question person wit- the state’s a few accused, by questions in- case as to weaken the state’s so might nesses, a first-degree fail to return duce the grand jury as the And of course far as murder indictment. this would
constitutional to bail is concerned, be since an indictment for sufficient, second-degree is not an indictment a crime punishable for by death.
For these reasons, under our usual Connecticut there grand jury procedure, we think that is little reason for as rejecting grand jury’s indictment no having evidential value on issue of fact at the re Steigler, In bail hearing. 3 Del. See, instance, 379, 250 A.2d Rptr. hand, On other the indictment should con- not, course, given clusive effect which would lead the same result as court trial reached that bail is, here, could never be granted in a case after indict- ment. In we think that is much in short, there force the state’s alternative as hereinbefore out- claim, as lined, to the prima facie evidential force of the indictment where the usual Connecticut grand jury is procedure followed. But for the reasons herein- after we given need and do reach not, not, or pass on that claim except to the extent of it holding that on the inapplicable facts of this particular case. typewritten appears
This is because made a motion attorney state’s transcript permitted the defendant not be court the state’s to hear and grand jury question room be called that witnesses to witnesses, ground on had been As before threatened. grand jury the motion the de- granting of the consequence fendant was not room. permitted This did the grand proceedings, hot invalidate usual although it was a from the Con- departure Wolcott, necticut v. 21 Conn. practice. Hamlin, State 279; 104. But Conn. 95, as now arises if effect on the question what, any, force fact evidential of the of the indict- ment for murder first bearing degree, *13 of the the strength state’s case against accused, results from the state’s deliberate and ex- planned clusion of the from accused the grand jury proceed- ings. Of course if the accused is not in custody within the jurisdiction his whereabouts are un- and readily known he cannot fore- ascertainable, stall grand jury proceedings by his and absence, is an important reason he has why not an absolute to be in the present grand jury room. But where he is in custody within the state or his whereabouts are either known to the state or readily we ascertainable, think in the that, absence of good cause or reason to the he should be contrary, given the usual opportunity, although of course he cannot be to be compelled, present the grand jury room during examination of the state’s witnesses against him.
Since the grand jury proceedings are secret, accused, unless permitted to listen to the state’s wit- nesses before the grand jury, would not know what the state’s evidence was which he would be called entirely This hearing. in the hail meet upon the ac- furnishing of the practice from different before the evidence of transcript with a cused procedure the current appears grand 325, Nev. State, v. Nevada. Serrano P.2d 831. to hold the absurd would border
Indeed, exclusion and planned its deliberate after state, accorded ordinarily the privilege an accused from in the being him under our practice hearing, him in a bail force upon could still room, nothing say (to evidence burden of producing nonpersuasion) burden of risk him against adduced unheard and unknown evidence disentitle insufficient before the was grand jury Ford v. Konigsberg, supra; him See to bail. little find
Dilley, 174 Ia. We N.W. modern dis merit that under state’s claim learn about is able to covery an accused procedures, without even before the testimony grand jury In this connection being personally present. discovery
state failed these modern what specify procedures were. to be re-
General appears Statutes 54-47 stricted to a general investigatory an ac- access any event authorizes cused under Con- only testimony to his own which, *14 in necticut given is not procedure, permitted case of a (a) constitutional Subsection grand jury.
of No. 680 of the Public Acts of 1969 provides in called “any criminal a witness after prosecution, by prosecution direct examina- has testified on tion, court shall the defendant on motion of order the prosecution oral to statement produce any or written in the of the possession witness prosecution which relates matter as subject to the court shall has and testified, which the witness
to to the directly be delivered order said statement and use.” If state defendant his examination for seem to afford in it does not mind, had this statute the accused’s presence an substitute equivalent in the room. highly
In the first it is at least place, questionable whether at all a bail hearing. the statute applies considered ordinarily Such a would not be hearing abe “criminal prosecution”. facie under the state’s Second, prima theory, state would have no testi- obligation produce any at mony first instance the bail hearing, there would be no “witness called by prosecu- tion” who had direct testified “on examination” until the defendant had his evidence produced he was entitled to reasonable bail. since the state’s himself is
Third, attorney the grand jury room and the before a proceedings constitutional grand are not stenographically there transcribed, would be which way no of a testimony witness the grand before would be “in the possesssion of the within prosecution” of the meaning 1969 Act. even
Furthermore, an though accused is not al- lowed to introduce evidence in his or himself favor, testify his before the favor, he is jury, allowed reasonably to question witnesses produced and we state, do not see we can how say such questions might not so weaken the state’s case as to influence the grand jury to refuse to find a true bill of murder in the first degree. we Certainly know of no discovery procedure which would effective substitute for this valuable privilege.
In the instant under the case, which procedure state deliberately chose to we follow, do not feel *15 grand to the weight can attach evidential that we a prima out even make sufficient to indictment jury’s hail provision under the constitutional facie case the on In other words, case. to a capital applicable at forward go must this case the state remand in to- which, from and offer evidence hearing the bail the by accused, offered gether any evidence pre- or the can find that is evident proof court the defendant committed great sumption crime the first degree.2 of murder in Con- of first impression
Since this is a case
case
the precise
we restrict
this
necticut,
opinion
of the
before us.
do not
pass upon
question
We
burden
with evi-
either of
forward
proof,
going
dence
as whether
or of
risk of
nonpersuasion,
an accused
fall
to the
would
within the exception
of bail in a
he
granting
case if
capital
(1)
present
within the
he
grand
chooses,
or
if
jury room,
(2)
with the advice of
counsel, not to be present
grand
if he
jury room,
juris-
is not within the
(3)
diction or otherwise
available
accorded
readily
to be
the opportunity to
before the
go
grand jury. We
Superior
One claim made
defendant
both
Court and
in this
that, notwithstanding
court was
indictment of
first-degree murder, as
not
matter
law he could
be convicted of
first-degree murder and thus was entitled to bail since the ease would
theory
be a
case. This claim is based on the
attempt
homicide occurred in the
to commit an abortion and thus as
a matter of
degree
law could not
the first
under our
statute.
Since neither
the state nor
defendant
offered evidence
issue,
relevant
lacking
this
facts
are
our definitive determina
tion
question,
may
although
rehearing
be raised at the
defendant’s
connection,
reasonable bail.
In this
see
Swift, Digest, p. 269, written before murder
in Connecticut was
divided
degrees,
Reid,
into two
and cases such as State v.
146 Conn.
227, 230,
Dowd,
confine situation ourselves was in this case where the accused was available and room excluded from deliberately interrogation of witnesses. throughout It out the bail should be perhaps pointed innocence guilt determination of hearing but rather a issue preliminary determination of the of the right reasonable bail. Unless the accused insists well be conducted somewhat otherwise, may If informally, affidavits. this cannot be upon agreed then the upon, accused has of cross- right examination of the state’s witnesses at bail hear- ing as well as the to introduce evidence his favor. But the court should confine the evidence to the issue involved and not allow an accused to trans- form the hearing into an discovery unorthodox pro- cedure for forcing state produce its case. State v. Obstein, 52 N.J. 5. A.2d
It is also important that the trial court avoid even the appearance of a determination ultimate guilt or innocence, lest the rights of the state or the ac- cused be prejudiced in the subsequent trial on the In re merits. Steigler, Del. Rptr. 250 A.2d 379. Unless the accused the safest course objects, would probably be to hold the bail hearing camera. State v. Obstein, supra, Experience with applications for bail in cases may indi- cate the desirability regulating procedure in hearings such applications by appropriate rules of court.
There is error, order denying bail is set aside and the Superior Court is directed to grant new hearing on the defendant’s motion for bail to be conducted conformity with this opinion. In this opinion Alcorn, House and Ryan, Js., con- curred. result I concur (concurring). J.
Thim, my reasoning employed of the much em- much too feel that I Nevertheless, colleagues. defendant the absence upon is placed phasis The grand jury proceedings. from case in this that, implies strongly a test reliance on such heavy during grand is present accused where in cases *17 furnish would the indictment proceedings, and of conviction likelihood of facie evidence prima forward going of its burden from relieve state hearing. the bail at the evidence rest on not to ought result in the instant The case attend to the defendant is permitted whether knowledge thereby acquire and proceedings should be reached the result state’s case. Rather, in this state that an indictment dictated aby holding of likelihood facie cannot amount evidence prima the ac- of attendance of conviction, irrespective This is so for at the grand jury cused proceedings. instructed not two reasons. is First, grand jury its sole innocence; to concern itself with guilt a function is determine there should be whether returned trial. true bill could he a Consequently, even in a case where a of the majority felt there was chance if sufficient little of conviction jurors concluded that the evidence still warranted since the is instructed to trial, ignore if the guilt. even accused question Second, he present during is denied counsel proceedings, and forbidden to introduce of his any evidence own.
Thus, indictment procedure Connecticut, even when the accused is does not ade- present, provide quate safeguards for him excul- opportunity himself pate so as fairly produce finding likelihood of The conviction. conclusion is ines- capable that an indictment cannot he ac- properly
corded any above that dne significance very- limited determination there should be a trial. It therefore would be of little value in evidentiary a bail hearing at which the quite separate question of likelihood of conviction must be decided. After all, provision for such a hearing admits, necessity, that even though accused is indicted he is not necessarily likely to be convicted. For these reasons this court should hold that an unequivocally indict- ment can never be facie prima evidence of likelihood of conviction and that the state should always bear both the burden of proof and of going forward with the evidence at the bail hearing.
An incidental benefit of such a holding would be to place the state in control of the of the scope bail hearing. Since it would have both it could burdens, choose how much of its case to put on at the hearing (with the risk, of course, it might fail to sustain *18 its burden on the issue of bail), and the accused would be limited ato rebuttal of what the state chose to introduce.