concurring and dissenting. I agree with parts I and III of the majority opinion, in which the majority holds that: (1) the evidence was sufficient for conviction; and (2) the trial court improperly gave a consciousness of guilt instruction regarding the defendant’s initial refusal to submit to certain tests.1 I disagree, however, with part II of the opinion, in which the majority, pursuant to our supervisory power over the administration of justice, orders anew, bifurcated trial for the defendant. I therefore dissent.
The majority in effect has established the following rule: in a prosecution under General Statutes *360§ 53a-54b (3),2 unless the state can demonstrate, prior to trial, that there is a need to avoid a bifurcated trial, the trial must be bifurcated so as to require, in the first part of the trial, the state to prove and the jury to find only that the defendant committed the instant murder, and, in the second part of the trial, the state to prove the defendant’s prior murder conviction. Thus, the majority has effectively established a presumption of bifurcation that the state has the burden of rebutting. The state’s burden, moreover, is to establish the admissibility of evidence of the defendant’s commission of the prior murder that is necessary to prove: (1) his identity as the murderer; (2) his intent to murder; or (3) an element of the murder. In addition, while creating an entirely new rule of procedure with an entirely new burden on the state, the majority precludes the state from even attempting to meet this new burden on the remand in this case. I disagree. I would follow a different route, which brings me to a different result in this case.
I agree that, in a prosecution for capital felony under § 53a-54b (3), the trial court has the discretion to structure the trial so as to bifurcate the element of the prior murder conviction from the element of the current murder charged. I would, however, leave that question to the discretion of the trial court, as we do generally regarding questions of severance and joinder, subject to review for an abuse of that discretion. Applying that standard to the facts of this case, I would find no abuse of discretion, and would affirm the judgment.
*361I
There are several aspects of the majority opinion with which I take issue. I discuss them initially because, in my view, they flaw the majority’s analysis and support mine.
A
I disagree with the majority’s characterization of the state’s position in oral argument in this court regarding the issues of prejudice to the defendant caused by the introduction of evidence of the prior homicide and of the prejudice caused to the state by bifurcation. I believe that the majority misconstrues the state’s argument on the first issue and is unduly harsh in its assessment of the second issue.
In responding to questions at oral argument about whether the defendant was “prejudiced” by the evidence, the state repeatedly replied that any “prejudice” was legitimate, because the prior conviction was an element of the capital felony with which he was charged.3 The majority asserts that the essence of the state’s argument is that “the legislature has ‘authorized’ substantial prejudice.” I disagree with this assessment of the state’s argument. The state’s argument was nothing more than the assertion that a defendant is prejudiced by any relevant inculpatory evidence that is introduced at trial. That is precisely why the state, or *362any litigant in any case, introduces evidence against its adversary. In this case, evidence of the prior murder was relevant to prove that the defendant had been convicted of a prior murder, an element of the capital felony charge. The relevant question is not whether the evidence is prejudicial, but whether it is unfairly prejudicial—whether its prejudicial effect outweighs its probative value. See State v. Higgins, 201 Conn. 462, 469, 518 A.2d 631 (1986). The state explicitly and repeatedly argued, both in its brief and at oral argument, that the evidence was not unfairly prejudicial if used by the jury only as evidence of the relevant element of the crime of capital felony, namely, a prior conviction for murder, and took the position, which is correct in my view, that the court’s limiting instruction was sufficient to ensure that the jury did not consider his prior conviction for any other purpose.
I also think the majority is unduly harsh in its assessment of the state’s argument as to why bifurcation would prejudice the state in this case. The entire question of whether a bifurcated trial would have caused the state any prejudice, as opposed to whether an unbifurcated trial would cause the defendant unfair prejudice, was simply never presented to the trial court or to this court in the briefs of the parties. Indeed, it was not even part of the defendant’s oral argument in this court. The gist of the defendant’s brief, and the way in which he opened his oral argument in this court, was that this case was controlled by the reasoning of State v. Ferrone, 96 Conn. 160, 116 A. 452 (1921), rather than the reasoning of State v. Banta, 15 Conn. App. 161, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988). Thus, when the state, in response to questioning by this court, responded that bifurcation would “change the dynamics” of the trial,4 it was *363doing so without the benefit of having read the record, prepared its brief and presented its oral argument with that particular question in mind. I think it unfair of the majority to assert that the only meaning that could be ascribed to this statement is that the state was concerned that it “would not have been able to use the evidence of the prior murder to create the impression in the jurors’ minds that this defendant was predisposed to kill.” Given that the state had no prior opportunity to consider the issue and that the focus of the state’s answer actually pertained to the prejudice it would suffer in a situtation where it was seeking the death penalty, I do not think that the state’s reluctance to concede the issue should lead the majority to conclude that the state was seeking to preserve its ability “to inflame the jury’s passion.” Indeed, the state’s support of the limiting instruction given by the court belies such an improper motive. Heard fairly and in context, therefore, the state was merely suggesting that it would suffer greater prejudice in a case in which the state did seek the death penalty.
The unfairness of the majority’s interpretation of the state’s argument is made more egregious because it is the basis of the majority’s conclusion that, on the *364remand, the trial must be bifurcated and the state need not be given the opportunity to show prejudice. In doing so, the majority has created a rule of bifurcation that, by its own reasoning, neither the trial court nor the state could have reasonably anticipated, and yet the majority has precluded the state on the remand from even attempting to comply with a burden that it never knew it had. Just as the seriousness of the charge of capital felony requires close scrutiny to ensure fairness to the defendant, the same seriousness of the charge requires that the state be treated fairly in its attempt to prove that charge.
B
I also disagree with the majority’s statement that the purpose of the legislature, in enacting § 53a-54b (3), was “not to define a new type of crime, but rather to enhance the sentence for an activity that is already classified as a crime.” The majority offers no support for this inference of legislative puipose, except to state that “[l]ogic tells us that subdivision (3) is incorporated into § 53a-54b as a matter of convenience so that all capital crimes can be located in one place and that the legislature had no other agenda.” I disagree that logic supports a reading of the statute that is found nowhere in its language or in its legislative history. The attribution of such an intent to the legislature rewrites our current legislative scheme regarding capital felonies, and denigrates the care with which the legislature defined the crime of capital felony and the sentence that follows conviction of the most serious crime in our state.
I agree that capital felony is a form of the generic crime of murder, as is arson murder under General Statutes § 53a-54d,5 and indeed felony murder under *365General Statutes § 53a-54c.6 That conclusion is consistent with our pre-penal code legislation, under which the single crime of murder was divided into two degrees. See State v. Ellis, 197 Conn. 436, 455, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990). It also follows from the language and structure of our current homicide statutes, under which murder is defined by General Statutes § 53a-54a, and pursuant to which “[m]urder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d.” General Statutes § 53a-54a (c); see General Statutes § 53a-45 (a).7
That does not mean, however, as the majority suggests, that the legislative difference between capital *366felony as defined by § 53a-54b, including subdivision (3), and murder as defined by § 53a-54a is simply one of sentencing enhancement. Instead, the difference between the two is one of kind: capital felony is a more serious kind of murder than murder committed in violation of § 53a-54a. In effect, capital felony is to murder, under our current legislative scheme, as first degree murder was to second degree murder, under our legislative scheme that existed before the enactment of our penal code.
Before the enactment of the penal code, the difference between first and second degree murder was not simply one of sentence enhancement. “The more atrocious types of murder were enumerated and classified as murder in the first degree, and all other kinds of murder were classified as murder in the seeond degree.” McBrien v. Warden, 153 Conn. 320, 326, 216 A.2d 432 (1966). After the effective date of the penal code in 1971, and after the enactment of the capital felony statutory scheme in 1973, the difference between murder and capital felony is, likewise, not simply one of sentence enhancement. It is a difference between murder as defined in § 53a-54a, which is punishable by a definite sentence of not less than twenty-five nor more than sixty years; General Statutes §§ 53a-35a (2)8 and 53a-35b;9 and capital felony as defined in § 53a-54b, *367which is punishable by death or by “imprisonment for the remainder of the defendant’s natural life.” General Statutes § 53a-35b.
That is why the elements of capital felony,10 including subdivision (3), are defined by § 53a-54b, and the sentence therefor is defined by General Statutes § 53a-46a (f).11 By lifting subdivision (3) from the context of 53a-54b, and calling it merely a sentencing enhancement provision, the majority performs a judicial tour de force that has no support in the legislative language, structure or history.
When the legislature wants to create sentencing enhancers based on prior convictions, it knows how to do it. Compare, e.g., General Statutes §§ 53a-40 (persistent offenders), 53a-40a (persistent offenders of crimes involving bigotry and bias), and 53a-40b (additional term of imprisonment authorized for offense committed while on release). It did not do so in enacting § 53a-54b (3). It made the prior conviction an element of the crime, and provided the particular sentence for conviction: either death or imprisonment for the *368remainder of the defendant’s natural life, depending on the fact finder’s determination regarding aggravating and mitigating factors.
C
In addition, I believe that the majority vastly understates the degree of difficulty that its ruling places on the trial court following the remand in this case, and in future cases prosecuted under § 53a-54b (3). The majority’s ruling imposes on the trial court a number of difficult and unprecedented questions that will inevitably arise, for which it provides no guidance.
Although in this case, the state did not seek the death penalty, and thus the trial will only be bifurcated, what of the case in which the state does seek such a penalty? Presumably, there will then be a trifurcated trial. Moreover, in such a case, how will the trial court and counsel conduct the voir dire? Will the court be barred from telling the venirepersons being questioned in a death penalty case what the particular capital felony is that they will be undertaking to consider?
Moreover, what if, the trial having been bifurcated, the defendant takes the stand and testifies in such a way that would make the prior conviction admissible for impeachment? May the court now wnbifurcate? If not, then what was the value in bifurcation? Furthermore, what if the defendant asserts a defense of mental disorder or defect, or extreme emotional disturbance? In such a case, the evidence of his prior conviction would be admissible to impeach his expert’s testimony. See State v. Carter, 198 Conn. 386, 503 A.2d 576 (1986). Presumably, under the majority’s formulation, however, neither of these situations would be sufficient to preclude bifurcation, because the evidence of the prior murder is not relevant—except in the most indirect and attenuated way—to the defendant’s identity as the mur*369derer, to his intent or to an element of the crime. I see no gain for the administration of criminal justice in such a rule of bifurcation.
Furthermore, I believe that the majority has masked the difficulty of the trial court’s task in determining, pretrial, whether the state has established prejudice by bifurcation, presumably by, for example, convincing the trial court that the evidence regarding the prior conviction will be admissible anyway. It is difficult enough for trial courts to make accurate evidentiary rulings during a trial, when they have the benefit of an overview of the evidence and are able to weigh probative value against unfair prejudicial effect in the context of that evidence. The majority’s ruling requires the trial court to make such determinations pretrial, and places the burden of establishing the admissibility of the evidence on the state.
Even under the example that the majority offers, namely, where the state seeks to introduce the prior conviction as evidence of a signature crime, the admissibility of such evidence requires a delicate balancing process, and will require the state to establish, and the court to envision, the nature of the evidence of the current crime—before any such evidence is presented in the courtroom, and is tested by cross-examination— and then for the court to rule on its admissibility in an evidentiary vacuum. It is precisely because of that difficulty that a trial court often will prudently postpone ruling on a motion in limine, seeking to preclude or admit evidence, until the evidence that is the subject of the motion is offered during the trial.
Thus, the majority, by requiring such a determination pretrial, assumes that the question of admissibility will be fairly clear cut. I do not share that assumption.
*370II
This brings me, therefore, to the following three questions under § 53a-54b (3): (1) Is a trial court precluded from bifurcating the jury’s determinations of the defendant’s guilt of the current murder and his prior conviction of murder? (2) If not, what standards should the trial court employ in making such a determination, and what standard of review should we employ? and (3) Did the trial court’s denial of the motion for bifurcation deprive the defendant of a fair trial in this case? In my view, the answer to the first question is in the negative; the answer to the second question is that the trial court should exercise its discretion as it does in deciding whether to sever or join separate charges against a defendant; and the answer to the third question is in the negative.
A
In a prosecution under § 53a-54b (3), I do not believe that a trial court is precluded, as a matter of law, from bifurcating the trial, as requested by the defendant in this case, solely because the bifurcation would involve separate determinations regarding elements of the offense. It is true that, although bifurcation of liability and damages is fairly common in civil litigation, bifurcation of the elements of a crime is unprecedented in our criminal jurisprudence. Nonetheless, I believe that a trial court has the inherent power to require such a bifurcation in the interests of justice, and that a prosecution under § 53a-54b (3) may, in an appropriate case, justify such a bifurcation.12
*371My research indicates that there are three other states whose capital crimes statutes contain provisions similar to § 53a-54b (3): Utah, Oregon and Idaho. Several other states, including Florida, Missouri, New Jersey, New Hampshire and Ohio, make a prior murder conviction an aggravating factor in the sentencing phase of the trial.
The Utah Supreme Court has determined, pursuant to its inherent supervisory power, that such a trial must be bifurcated, but that the failure to do so is subject to harmless error analysis. State v. Florez, 777 P.2d 452 (Utah 1989); see also State v. Gardner, 789 P.2d 273 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1837, 108 L. Ed. 2d 965 (1990) (failure to bifurcate held harmless). The Oregon Court of Appeals has determined that bifurcation is not required because the Oregon statutory scheme specifically permits the defendant to eliminate the prior conviction from being presented to the jury by stipulating to it„ which stipulation the court must accept regardless of whether the state agrees to it. State v. Earp, 686 P.2d 437 (Or. App.), rev. denied, 691 P.2d 483 (Or. 1984). Idaho has not decided the question.
It is clear that bifurcation is not required as a matter of the federal due process clause. Marshall v. Lonberger, 459 U.S. 422, 438 n.6, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983); Spencer v. Texas, 385 U.S. 554, 567-68, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967). The majority does not purport to rest its decision on our state constitution.13
Thus, the majority in this case has chosen a path of adjudication that is unprecedented, in our own jurisprudence as well as the jurisprudence of the three states *372that share this unusual capital crime configuration.14 Nonetheless, I recognize the risk of unfairness to the defendant when his prior murder conviction is introduced into evidence as an element of the capital felony with which he is charged.
I do not, however, share the majority’s assumption that the risk is so overwhelming that it cannot be gauged in the context of a particular case, and that it cannot be met with proper cautionary instructions. As the United States Supreme Court has noted: “[T]he most recent scholarly study of jury behavior does not sustain the premise that juries are especially prone to prejudice when prior-crimes evidence is admitted as to credibility. Kalven & Zeisel, The American Jury (1966). The study contrasts the effect of such evidence on judges and juries and concludes that ‘[njeither the one nor the other can be said to be distinctively gullible or skeptical.’ Id., at 180.” Spencer v. Texas, supra, 385 U.S. 565 n.8. In my view, the risk involved in this case is essentially the same type of risk that the trial and appellate courts of this state have been weighing for decades in determining whether trials should be joined or severed. Thus, I do not think that a rebuttable presumption of bifurcation is necessary or appropriate in a case such as this.
B
I would apply the reasoning of the basic rules that govern the question of joinder and severance, which is the juridical model closest to the question of bifurcation presented by this case.
The general rules that govern the question of joinder and severance are as follows. “General Statutes § 54-57 *373and Practice Book § 829 authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. State v. Greene, 209 Conn. 458, 463, 551 A.2d 1231 (1988); State v. Pollitt, 205 Conn. 61, 67-68, 530 A.2d 155 (1987); State v. Boscarino, 204 Conn. 714, 720-21, 529 A.2d 1260 (1987); State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); State v. King, 187 Conn. 292, 299, 445 A.2d 901 (1982); State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976). The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. State v. Boscarino, supra, 721, quoting State v. King, supra, 302; State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952).
“This court recently reexamined the undeniable tension between the need to conserve judicial resources by consolidating cases and the defendant’s right to a fair trial. In State v. Boscarino, supra, [204 Conn.] 721, we held that the trial court had erred in joining four separate counts of sexual assault in the first degree against the defendant because the joinder worked a substantial injustice . . . beyond the curative power of the court’s instructions. We there discussed several factors that a trial court should consider in making its determination whether severance is required in order to avoid the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all. United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S. Ct. 793, 83 L. Ed. 1500 *374(1939). State v. Boscarino, supra, [204 Conn.] 721-22. These factors include: (1) whether the charges involved discrete, -easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. [State v. Boscarino, supra,] 722-23. We held that if any or all of these factors were present, a reviewing court would have to decide whether the trial court’s jury instructions cured any prejudice that might have occurred. Id., 724.” (Internal quotation marks omitted.) State v. Herring, 210 Conn. 78, 94-95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).
The particular factors that come into play in the trial court’s joinder or severance determination—namely, whether the factual scenarios are distinguishable, whether the crimes present brutal or shocking conduct by the defendant, and the duration and complexity of the trial—do not apply to the question of bifurcation under § 53a-54b (3). The reasoning underlying the application of those factors, however, does apply.
That reasoning is that joinder ought to be the rule, in the interests of conserving judicial resources, but that if any of those factors was present the question on appeal is the effectiveness of the trial court’s instructions as a cure for any prejudice that might have occurred as a result of the joinder. Thus, the linchpins of the inquiry are whether the trial court abused its discretion in joining, rather than severing, the separate charges, and whether the trial court’s instructions sufficiently protected the defendant against the risk of unfair prejudice.
In applying this test, our courts in effect weigh the risk that the jury will improperly use evidence that is introduced for proper purposes, despite the instructions *375of the court regarding the proper use of that testimony. This is similar to the process that our courts employ in determining the admissibility of evidence regarding prior convictions and other misconduct of the defendant. See State v. Rivera, 221 Conn. 58, 72-73, 602 A.2d 571 (1992).
Although in a case under § 53a-54b (3) the factor of conserving judicial resources is not present, the factor of giving respect to the legislative decision to define the elements of capital felony is present. That legislative decision was to include, as an element of the crime, and not merely as a sentence enhancer, the defendant’s prior conviction, thus rendering him susceptible to the penalties of imprisonment for his natural life, or death. I believe that this legislative decision is sufficiently weighty so as to be at least equal to the weight accorded to the factor of conserving judicial resources in the severance and joinder cases. I would, therefore, leave the question of bifurcation under § 53a-54b (3) to the discretion of the trial court, subject on review to the test of abuse of that discretion,15 and, if the trial court did not bifurcate the trial, I would ask whether the court’s instructions, viewed in the context of the entire case, were sufficient to cure any possible prejudice.
C
Applying that standard, I conclude that the trial court did not abuse its discretion in denying the defendant’s motion to bifurcate, and that its instructions were sufficient to cure any possible prejudice to him that *376attended the introduction of the evidence of his prior conviction. The most important factor leading to this conclusion is that certain evidence that very closely resembled the evidence of the defendant’s prior conviction was introduced in this case without objection of the defendant, and that this evidence was at least facially admissible irrespective of the question of bifurcation.
That evidence was as follows. Frankie Harris testified on direct examination that she had been shown a photographic array on two separate occasions. On the first occasion, she intentionally misidentified two different people as resembling the person whom she had seen discard the camouflage jacket shortly after the shooting. Neither of these was the defendant. When asked by the state why she had identified these two persons, she testified that it was because when she described to her boyfriend the man whom she had seen discard the jacket, her boyfriend had identified that man as the defendant, but had advised her to “keep [her] mouth shut” because “Melvin Jones was no joke, he was a killer,”16 and that he knew that “[b]ecause he had done time with him in Somers prison.” She testified that her first identification of the two other persons was not the truth.17
Harris then testified that, after she heard that the defendant had been arrested, she contacted the police *377again. She was then shown the photographic array a second time, when she identified the defendant as the person who had discarded the jacket. She testified that the reason she identified the defendant the second time, but not the first, was that at the time of the second photographic identification the defendant “was locked up.”18
The state introduced this testimony on Harris’ direct examination, without objection by the defendant. Its obvious purpose was to show that her first, misidentification was the result of her fear of the defendant, resulting from her boyfriend’s warning to her. Thus, the state sought to blunt in advance an anticipated attack on Harris’ credibility based on her inconsistent identifications.
In my view, this evidence, the admission of which the defendant does not challenge on this appeal, is just as “prejudicial,” but not unfairly so, as the evidence of his prior conviction for murder. I can see little difference between the jury learning that the defendant was a “killer” who had served time in Somers and the jury learning that the defendant had been convicted of murder on a prior occasion. Thus, in the context of this case, the functional equivalent of the challenged evidence was introduced without objection.
Furthermore, when the evidence of the defendant’s prior conviction was introduced, the trial court gave a thorough cautionary instruction.19 Neither the *378majority nor the defendant takes issue with the propriety of this instruction. In addition, in my view, the state’s evidence of identification, although not overwhelming, was strong,20 and the defendant’s only evidence in response was the absence of fingerprint identification.
*379In sum, therefore, the functional equivalent of the challenged evidence was admitted at the trial irrespective of any bifurcation, the evidence against the defend*380ant was strong, and the court gave a thorough cautionary instruction. I conclude, therefore, that the trial court did not abuse its discretion in denying his motion to bifurcate, because, under all of the circumstances of the case, the defendant was sufficiently protected against the risk of unfair prejudice resulting from any improper use by the jury of the evidence of his prior conviction. I would, therefore, affirm the judgment of the trial court.
Although I agree with the majority that the trial court should not have given the consciousness of guilt instruction, I would hold that it was harmless under the facts of this case. I would not, therefore, reverse the judgment of conviction.
General Statutes § 53a-54b provides in relevant part: “capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (3) murder committed by one who has previously been convicted of intentional murder or of murder committed in the course of commission of a felony . . . .”
The state argued: “But, the legislature has determined, Your Honor, that that is a legitimate prejudice, so long [as] it is used properly. The legislature hasn’t considered this just a sentencing enhancer. This is a legitimate prejudice.
“The word prejudice has to be used in the right context. There’s prejudice which is improper, and there’s prejudice that’s appropriate. If you’ve made an element of the crime prejudiced, I think this court would be rewriting the statute by, first of all, not just bifurcating, but in a real capital case, where the death penalty was sought, trifurcating the hearing. You would have three separate trials.”
When asked whether the state would be prejudiced by bifurcation, the state responded: “I think that it—that the state certainly would have a *363greater—a more extensive procedure. I think it changes the dynamics of the case. Maybe not in this case, where they didn’t seek the death penalty. But, it would when you’re death qualifying a jury, and you’re trying to find from the jury those factors. For instance, you voir dire a death qualified jury. And you’re determining what factors are going to go into, not only their consideration of the case, but what they’re going to do when they reach the sentencing phase. How are they going to be prejudiced? Then you’re not going to inform them [ofl the fact that an element of the capital felony that you’re charging is a prior murder, and how that [ajffects the whole outcome of the case.
“And of course, here, the answer could be—Well, the defendant didn’t have to worry about that. He wasn’t facing the death penalty. And he made a request. But, if you make that as a policy for the courts, then does it have to be followed at all times? It does change the dynamics of a capital felony. It does change the dynamics of the trial.”
General Statutes § 53a-54d provides: “arson murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. *365Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole.”
General Statutes § 53a-54c provides: “felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
General Statutes § 53a-45 (a) provides: “murder: penalty; waiver of JURY trial; FINDING OF lesser degree, (a) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d.”
General Statutes § 53a-35a provides in relevant part: “imprisonment FOR ANY FELONY COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; terms authorized. For any felony committed on or after July 1,1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows ... (2) for the class A felony of murder, a term not less than twenty-five years nor more than life . . . .”
General Statutes § 53a-35b provides: “ ‘life imprisonment’ defined. A sentence of imprisonment for life shall mean a definite sentence of sixty years, unless the sentence is life imprisonment without the possibility of release, imposed pursuant to subsection (f) of section 53a-46a, in which case the sentence shall be imprisonment for the remainder of the defendant’s natural life.”
The majority, in distinguishing this case from State v. Banta, supra, 15 Conn. App. 161, reads that case selectively. Although most of the discussion in Banta focused on the fact that, as in this case, the prior conviction was an element of the crime charged, and that the rule of State v. Ferrone, supra, 96 Conn. 160, and its Practice Book analogues, apply only to recidivist charges; see State v. Banta, supra, 173-74; the majority refers to but one sentence of Banta, and that sentence is preceded by the word “additionally,” which the majority does not quote: “Additionally, an information alleging only that a defendant possessed a handgun, without mention of his prior conviction, would fail to allege any cognizable offense under our penal code.” (Emphasis added.) Id., 173.
General Statutes § 53a-46a (f) provides: “If the jury or, if there is no jury, the court 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 or, if there is no jury, the court 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.”
In this respect, although I disagree with the majority that the legislature, in enacting § 53a-54b (3), was simply enacting a sentence enhancer, I agree with the majority that the legislature simply did not envision the question of bifurcation, and did not intend to encroach on the court’s inherent power over the management of trials in the interests of justice.
Although the defendant mentioned the state constitution in his brief, he failed to present an independent and adequate state constitutional analysis.
Although Utah has chosen a path similar to that of the majority, the Utah cases differ significantly because, unlike the majority in this case, which presumes harmful error from the failure to bifurcate, Utah subjects the failure to bifurcate to harmless error review.
Indeed, as I read the record, that is how the defendant treated the matter before the trial court. His motion seeking bifurcation relied on cases that involved the discretion of the trial court to exclude certain prejudicial misconduct evidence. Furthermore, in oral argument in this court, the defendant stated that if we determined that this case did not fall within the contours of State v. Ferrone, supra, 96 Conn. 160, we should find that the denial of the motion to bifurcate constituted an abuse of discretion in accordance with State v. Nardini, 187 Conn. 513, 447 A.2d 396 (1982).
Furthermore, on cross-examination of Harris, the defendant elicited a repetition of this testimony:
“Q. Now going back a little bit. When you said that your boyfriend told you that he knew this guy, you mentioned the name Melvin Jones and he was no joke, he was a killer. Didn’t you say that?
“A. Yes.”
The reason that, as the majority points out, the state did not rely on this testimony of Harris regarding the issue of prejudice to the state by bifurcation, is that, until raised by this court at oral argument, that issue was never in the case. Moreover, in this connection, the majority misreads Ferrone by claiming that one of the factors we considered in that case was the degree of prejudice to the state. I can find no such reference in Ferrone.
Furthermore, her testimony in this regard was corroborated by Detective Leroy Dease of the New Haven police department. Dease testified to Harris’ two different identifications, and to her explanation that her first, untruthful identification was because “she was afraid.”
The trial court instructed the jury as follows: “Ladies and gentlemen ... I wanted to indicate to you at this time the purpose for which that evidence that you just heard. . . and the exhibits which I don’t think you’ve seen as yet, but you will eventually . . . the purpose for which they were offered. Now, you will recall that just before we started the evidence yester*378day morning I explained in very brief summation what the crime of capital felony means and I told you that capital felony is the crime that is charged when it is the . . . underlying claim of the state that the defendant with intent to cause the death of another person caused the death in this case of Wayne Curtis . . . and then I told you an additional element in connection with that charge is that in an unrelated case the defendant previously [had] been convicted of . . . murder. The evidence you just heard was evidence offered by the State in an effort to prove that last element I mentioned, that the defendant had previously been convicted of . . . murder, that was the purpose for which that evidence was offered, solely to prove that it did happen. That is the claim of the state. I want to stress that that evidence isn’t to be considered by the jury along the lines of, well, if he did it once he did it again. That is not the purpose for which that evidence is offered. It isn’t to be considered by you in that light. It is to be considered by you solely as evidence offered by the State in an effort to prove that this defendant was convicted, previously convicted of . . . murder according to the offer sometime in 1976. Now, that is the sole purpose of the offer. You are not to take it as meaning that, well, if he was convicted in 1976 he is a bad person, and he must have done it again, or anything like that. It is limited solely to prove one of the elements of capital felony, it is that element which distinguishes murder from capital felony i 7
In addition to the evidence recited by the majority, there was additional identification evidence offered at the defendant’s trial. As the majority notes, Bonaventura Console positively identified the defendant as the person whom he saw walking toward the victim’s automobile moments before the shooting. Console, who lived in the neighborhood, saw the defendant as the defendant approached the victim’s car shortly before the shooting. Console also testified that he “would see [the defendant] routinely three or four times a week” in the neighborhood. Thus, in Console the state presented a witness who had no obvious impeaching characteristics, and who saw the defendant walk toward the victim’s car immediately before the shooting.
Shortly after the shooting, Nilda Mercado, the twelve year old girl who had witnessed the shooting, described the shooter to Patrol Officer Andrew Faggio as a black male, with braided hair, wearing a green army jacket, and as someone whom she recognized from the neighborhood. This testimony, which was admitted on the basis of the excited utterance exception *379ió the hearsay rule, was in addition to the tape and transcript of her statement at the New Haven police station, which was also introduced under that exception without objection by the defendant.
Rosalie Mongillo had worked for thirty years at the Tip Top Quality Market, which was owned by her husband, and was located on Kimberly Avenue. She testified that the defendant had frequented the market almost daily for approximately three weeks prior to the slaying, that he always ordered a “roast beef sub,” that he was normally dressed in camouflage fatigues and wore his hair in four braids “just like [he had] them now,” and that he was the only person whom she had seen for approximately one year prior to the slaying “who had that combination of camouflage and braids in his hair in Kimberly Square.” She specifically recalled him as very neat, quiet, carrying books as though he was going to college, and as conducting himself as “a gentleman.”
Finally, the majority misconstrues the evidence when it states that Larry Hodge “retracted . . . before the jury” his earlier identification of the defendant as the person whom he had seen enter the victim’s vehicle earlier that morning. Although while on the stand Hodge did not positively identify the defendant as the person he had seen enter the victim’s vehicle, he did testify that the person he had seen enter the vehicle was “familiar” to him from “around the neighborhood,” was wearing his hair in “braids [that] stood out,” and looked “similar” to the defendant.
Furthermore, Hodge’s prior, sworn statement to the police was introduced into evidence as substantive evidence, pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). In that statement, Hodge stated that: he had seen the man from a distance of fifteen to twenty feet; he had had a “good look” at him because the light from the streetlight illuminated his face; he knew the person involved as a black man whom he had previously seen in the neighborhood of the shooting and who wore braids; he had identified the defendant’s photograph from a photographic array; and he had “no doubt” that the defendant was the person he had seen seated in the victim’s vehicle. In addition, the photographic array from which Hodge had positively identified the defendant was introduced into evidence, and that photographic array presented a very fair selection of potential suspects bearing a physical resemblance to the defendant.
There was also other evidence that corroborated these identification witnesses, and that evidence came essentially from the defendant himself. When the defendant was arrested he was wearing a camouflage jacket that was labeled “[ejxtra small, regular” in size. As the state argued, the jury could determine, from his body type, that such a size jacket would not have been *380appropriate for him to. wear. Thus, this evidence corroborated Harris’ testimony that the defendant had discarded the jacket he had been wearing at the time of the shooting.
Furthermore, Officer Brendan Cannon of the New Haven police department testified that, on the night of October 19, 1990, while on patrol in the Kimberly Square area, he saw the defendant, who fit the description of someone wanted for the murder two nights before, namely, a black male with his hair in four braids, and wearing a camouflage jacket. As Cannon approached him, and before Cannon had said anything to him, the defendant stated to Cannop: “I’m not the person you’re looking for.” At that point, Cannon arrested the defendant, not for the murder, but on an outstanding warrant for breach of the peace. Thus, the defendant’s spontaneous claim of innocence of a crime for which he had not yet been apprehended or questioned and his appearance corroborated the testimony of the state’s witnesses identifying him as the murderer.
In addition, after the defendant was arrested for this murder, he gave an oral statement to the police after waiving his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In that statement, the defendant stated that he had been ill at home with his girlfriend the entire evening of October 16-17, 1990, that on October 17, his girlfriend went to work at 7 a.m. and he stayed in bed until 9:30 a.m., and that he stayed at home or in close proximity thereto until 6 p.m. He also stated that he frequently walked through the neighborhood of the shooting, and that he wore “Army fatigue uniforms” 90 percent of the time. Thus, his statement corroborated the testimony of the various identification witnesses in two ways. First, as the trial court instructed the jury, if the jury believed that his statement to the police regarding his whereabouts at the time of the murder was false, the jury could consider that as “evidence of guilty consciousness.” Second, his statement corroborated the testimony of the state’s witnesses that he frequented the neighborhood wearing camouflage clothing.