dissenting. I respectfully disagree with the majority opinion concerning the proper jury instruction of lesser included offenses. The majority recognizes that a reasonable efforts instruction requested by the defendant is not mandated by existing case law, but nevertheless adopts that requirement over the acquittal first instruction as given. I do not agree that this *80new instruction should be mandated, nor should it be applied in this particular case since the defendant was not harmed.
I believe that the trial court properly instructed the jury that it had to be unanimous in its verdict on a greater offense before it could consider a lesser offense. The facts pertinent to this claim are as follows. The defendant requested the court to instruct the jury: “[I]f they find that the elements of murder have not been proven beyond a reasonable doubt, or if they are unable to agree unanimously that the elements of murder have been so proved, they may then consider whether the defendant is guilty of the lesser included offense of manslaughter in the first degree and/or manslaughter in the second degree.” The court did not so charge.
After providing a full explanation of the essential elements of murder, the court instructed the jury as follows: “And if you find that the state has proven each of these elements beyond a reasonable doubt, your verdict would be guilty, as charged, of murder. If, however, you do not find that each of these elements have been proven beyond a reasonable doubt then, obviously, your verdict on the charge of murder would be not guilty. But, again, that does not end your participation in this particular case.
“Assume for the moment that you come to the conclusion that the state has proved the elements of murder and you render a verdict of guilty. Obviously, that would stop your deliberations and you would then report back that verdict. But, if during the course of your deliberations, you come to the conclusion that the state did not prove one or more of the elements that I’ve just given to you on the charge of murder then, obviously, your verdict would be not guilty of murder.
“Then you would go to what we consider in law lesser included offenses. Now, in this case I’m going to charge *81you on two lesser included offenses. They are going to be manslaughter in the first degree and manslaughter in the second degree. So you get to this part of the case if you come to the conclusion that the state hasn’t proved one or more of the elements of the charge of murder.”
Following the court’s instructions as to the essential elements of manslaughter in the first and second degrees, the court explained: “So, then if you find that the state has proven the elements of manslaughter in the second degree, as I’ve given them to you beyond a reasonable doubt then, obviously, your verdict would be guilty. And again, if the state failed to prove any one or more of the elements of manslaughter in the second degree then your verdict would be not guilty.
“So, let’s just recapitulate because, I know I’ve read a lot to you and you might be getting a little concerned about it.
“We start off with the charge of murder and go through that and then decide whether or not the state has proved all the necessary elements as I’ve given them to you of murder in the first degree. And if so, then, that would end your deliberations. You would come back in and find the defendant guilty as charged. If, however, you come to the conclusion that the state has not proved one or more of the elements of murder beyond a reasonable doubt then, obviously, your verdict would be not guilty to the charge of murder.
“Your next step would be then to consider the aspect of manslaughter in the first degree as I charge it to you and the elements I have given on that particular charge. If after your discussion you come to a conclusion that the state has proved all of the elements of manslaughter in the first degree then your verdict would be guilty to manslaughter in the first degree. But, if you go through and come to the conclusion that *82the state has not proved one or more of the elements of manslaughter in the first degree, then you would come to the conclusion and say that the defendant is not guilty of manslaughter in the first degree. Then if you come to that conclusion then you would go through the elements that I have given to you on manslaughter in the second degree. And, again, if you come to the conclusion that the state has proved the elements of the charge beyond a reasonable doubt then your verdict would be guilty of manslaughter in the second degree. Then, obviously, after you deliberate and come to the conclusion that the state has not proved elements of manslaughter in the second degree then your verdict would be not guilty and that would end your deliberations.”
The defendant took an exception to the court’s failure to give his requested charge. The court stated that it was going to recall the jury, and if there were any problems, exceptions could be again noted. The jury was then returned to the court and instructed in regard to accepting the verdict as follows: “The foreperson should take the first seat. And the clerk will then ask the foreperson, have you reached a verdict and, obviously, the answer will be yes or no. So, then, what she will do is to read the information to you on the charge of murder. So, the foreperson will say — and she will ask you, is he guilty or not of the charge of murder as charged. And, obviously, it will either be guilty or not guilty. If you say guilty, that will end it and we will go through what we call a repetition and the clerk will say to each and everyone of you, is that your verdict, so say you all. And, audibly, you all have to answer.
“Now, if per chance on the first charge of murder the foreperson comes back and says not guilty, then the clerk will go through and read the charge of manslaughter in the first degree and we will go through the same thing with the foreperson, is the defendant *83guilty or not guilty of the charge of manslaughter in the first degree. And depending on that, if it is guilty, then we will make a repetition and ask everybody, is that your verdict so say you all. And if the verdict on manslaughter in the first degree is not guilty, then the clerk will go through the charge of manslaughter in the second degree and to go through the same thing with the foreperson and depending on what the foreperson says, guilty or not guilty, and we will go through the same repetition. So, it’s all done orally. That is the sequence that we will follow.”
During the course of deliberations, the jurors sent out a note to which the court responded:
“The Court: I have received the following note. ‘Please provide: 1. Elements of number one murder charge and second manslaughter first degree. 2. Franklin’s account of the actual shooting. Signed [by the] foreperson . . . .’
“What we are going to do first is, we will have the testimony of Franklin played back. We will do that first.”
Whereupon, testimony of Mr. Damon was played back.
“The Court: Okay. Now, the next question you’ve asked — I’m sort of reading it, literally. You asked me to give you back again the elements of the charges of murder and manslaughter in the first degree and that is just what I’m going to give you. I’m not going to read the complete charge. All I am going to give to you is the elements and if you want anything further then that, let me know.” The court then instructed as requested. There were no exceptions taken.
The following day the jurors sent the court a note stating: “With no unanimous decision on the charge of murder or manslaughter in the first degree, but *84unanimous as to guilty on one count or the other, please advise.”
The following dialogue took place in the absence of the jury after the court read the jurors’ note:
“With a discussion with counsel, what the court is going to say in interpreting the note, I will instruct the jury that before they go as to manslaughter in the first degree they must agree unanimously on the charge of murder in their deliberations. That, obviously, would either be guilty or not guilty and they could not go to manslaughter in the first degree until they unanimously came to the position of not guilty on the charge of murder.
“It is the court’s position as far as the law in Connecticut at this particular time, that if they cannot reach a unanimous verdict on the charge of murder either of guilty or not guilty then we get to a question of mistrial and we don’t put the charge of murder aside and go to the manslaughter in the first degree without a decision as to murder.
“Anybody got any comments?
“Mr. McWhirter [Defendant’s Counsel]: Yes, Your Honor. At this time I would simply ask again that the defendant’s request to charge, number two, which I think would instruct the jury contrary to what Your Honor just stated, be given to the jury. I’m sure that Your Honor has already indicated that that will not be done. I would ask it to be done to be consistent. Clearly, that is a request of charge that is crucial at this point in the trial. So, I would renew the request that defendant’s request number two be given to the jury at this time.
“The Court: Miss Klatt.
“Ms. Klatt [State’s Attorney]: And, again, Your Honor, I would object to the defendant’s second request *85to charge. I don’t believe it is a law in the state of Connecticut at least at this juncture. And I have no exception to the court’s proposed instructions to the jury at this point.
“The Court: Obviously, I think you and I agree, Mr. McWhirter, that the present case law in Connecticut says that I cannot do as you are requesting in your request to charge. So, I can only rely on the wisdom from above. And whether that is precise or imprecise at this particular time, we will all have to wait for another day. But, obviously, your exception is noted.”
The court then instructed the jury as follows: “Well, I’m just going to make this brief statement to see if it helps you out. That in the sequence of events in your decision as to the charges that I gave to you the other day, of murder, manslaughter in the first degree or manslaughter in the second degree. The first thing that you must determine is on the charge of murder. Now, you have to come to a unanimous decision on that charge of either guilty or not guilty. And, obviously, if you found your verdict were guilty then you, obviously, wouldn’t go to any lesser included offense.
“You’d have to have unanimous decision of not guilty on the charge of murder before you then started to consider the charge of manslaughter in the first degree and thereon. So, you’ve got to come to decision first of all, unanimously, one way or the other on the charge of murder before you at all consider the lesser included offense of manslaughter in the first degree. And, again, I am not referring to manslaughter in the second degree because that is not included in your note.
“So, if it helps you out at all, again, you have to come to a decision on the crime as charged, murder, before you go to the lesser included offense of manslaughter. It has got to be unanimous, either guilty or not guilty on the charge of murder before [you go on]. And, obvi*86ously, if it were guilty to murder you don’t go to manslaughter in the first degree. So, in order to get to manslaughter in the first degree you must, unanimously, obviously, find the defendant not guilty of murder. And if you can’t do that then send me a note and I’ll see what else I can tell you.”
The defendant noted his exception. Simply stated, the defendant’s claim is that the trial court improperly gave the “acquittal first” instruction when the defendant had requested the “reasonable efforts” instruction. In other words, the jury was instructed not to consider the lesser included offenses until it had unanimously found the defendant not guilty of the greater offense of murder. The requested charge, on the other hand, would have allowed the jury to consider the lesser offenses if it was unable to agree on the murder charge. The defendant argues that the jury instruction given by the court allows a jury to deadlock, whereas the instruction requested by the defendant allows the jury to correlate its verdict with the elements that were proven, and resolve the matter by proceeding to a lesser included offense without a unanimous verdict on the greater offense.
The defendant correctly points out that many states have adopted the so called reasonable efforts instruction, as have several federal circuits including the Second Circuit Court of Appeals. The reasonable efforts instruction “permitting the jury to move on to the lesser offense if after all reasonable efforts it is unable to reach a verdict on the greater . . . has advantages and disadvantages to both sides .... It facilitates the Government’s chances of getting a conviction for something, although at the risk of not getting the one that it prefers. And it relieves the defendant of being convicted on the greater charge just because the jury wishes to avoid a mistrial, but at the risk of a conviction on the lesser charge which might *87not have occurred if the jury, by being unable to agree to acquit on the greater, had never been able to reach the lesser.” United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978). In considering the instruction with approval, the Second Circuit Court of Appeals held: “With the opposing considerations thus balanced, we cannot say that either form of instruction is wrong as a matter of law. The court may give the one that it prefers if the defendant expresses no choice. If he does, the court should give the form of instruction which the defendant seasonably elects.” Id.
I agree that the modern trend is to grant a defendant’s request to allow a jury to consider lesser offenses absent acquittal of the greater offense, given the fact that the defendant’s liberty may be at stake and that he has a compelling interest in concluding his confrontation with society. I recognize that the defendant’s arguments are well stated: The reasonable efforts instruction serves the defendant’s interest in resolving his case, it promotes society’s interest in fair trials and a just result, and it causes less mistrials due to a deadlocked jury, which waste the scarce time and resources of the judicial system. We must first decide, however, whether Connecticut’s law allows us to follow the modern trend and if so whether the defendant in this case was in any way prejudiced.
The requirement of a unanimous verdict is part of the constitutional safeguard of trial by jury. State v. Peary, 176 Conn. 170, 183, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979). Our Supreme Court, in affirming the trial court in State v. Stankowski, 184 Conn. 121, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981), recognized the unanimity requirement even at the transitional point between a greater and lesser offense. The Supreme Court noted that the jury *88“came back and asked the trial court whether they had ‘to reach a unanimous decision on the first or more serious charge before considering the lesser charge?’ After the trial court answered yes and explained its answer, it then gave the jury a charge on the role and responsibility of the jurors, commonly referred to as a ‘Chip Smith’ instruction.” Id., 142-46. The court had before it the exact language of the trial court in answering that question which it quoted as follows: “The court stated: ‘The last question which you sent out reads as follows: “Does the jury have to reach a unanimous decision on the first or more serious charge before considering the lesser charge?” The answer to the question is yes. You make a decision on the greater charge first and then you go on to the lesser charge, if you decide that the accused is not guilty of murder in the first degree on the first charge. Then and only then will you consider the lesser included charge.’ ” Id., 146 n.6. The defendant in Stankowski was convicted of the greater charge of murder, after receiving the Chip Smith instruction1 and the jury never got to consider a lesser included offense.
This court will not reevaluate Supreme Court precedent. State v. Wilson, 17 Conn. App. 97, 98 n.1, 550 A.2d 21 (1988). Although an acquittal first instruction was not at issue in Stankowski, I assume that the Supreme Court, in directly quoting the trial court’s jury charge, gave implicit approval to the instruction, and recognize that this implicit approval may not constitute binding precedent. Since our Supreme Court had before it the very language that we are dealing with, I must conclude that even though the issue itself was not before it, our Supreme Court, in failing to notice plain error, as it could have; Practice Book § 4185; recognized the acquittal first instruction as the proper instruction to be followed in our state. While our *89Supreme Court is not bound to consider a claim not distinctly raised at trial, and does not ordinarily do so, that court has on occasion considered a question not so raised, not by reason of the appellant’s right to have it determined but because it was in the interest of public welfare or of justice to so do. Persico v. Maher, 191 Conn. 384, 403, 465 A.2d 308 (1983). Nonetheless, whether the implications of Stankowski should be examined in light of the modem trend of allowing the defendant to choose between an acquittal first or a reasonable efforts instruction is not for this court to decide.
Assuming arguendo that the language in State v. Stankowski, supra, is not sufficient to warrant the conclusion that the existing state of the law in Connecticut is the acquittal first instruction, the defendant was in no way prejudiced by such an instruction under the circumstances of this case.
The defendant is entitled to a warranted instruction on a lesser included offense, and refusal to so charge cannot be held harmless merely because the defendant was convicted of a greater offense. State v. Hall, 213 Conn. 579, 588, 569 A.2d 534 (1990); State v. Monte, 131 Conn. 134, 137, 38 A.2d 434 (1944). Therefore, when the jury has been denied the opportunity to consider all the possibilities of lesser included crimes, conviction of the greater offense does not render the failure to give the lesser included offense academic or harmless. In this case, however, the trial court properly instructed the jury on the crime of murder and the lesser included offenses of manslaughter in the first and second degrees as requested by the defendant. In following the court’s instructions, the jury obviously did not unanimously agree that the state had proven beyond a reasonable doubt the essential elements of the crime of murder, so they proceeded to unanimously agree that the defendant was not guilty of that crime. In following the court’s instruction, the jury then delib*90erated whether the state had proven beyond a reasonable doubt the essential elements of the crime of manslaughter in the first degree. The verdict indicates there was unanimity on this point, so the jury never had to go further. The jury never had to unanimously consider the lesser offense of manslaughter in the second degree because it found the defendant guilty of manslaughter in the first degree. Unlike State v. Monte, supra, the court herein did not refuse to give a warranted instruction on lesser included offenses. The instruction in no way precluded the jury from considering the lesser included offenses. Therefore, the defendant was not prejudiced.
Even assuming that the court had instructed as the defendant requested, allowing the jury to proceed to a lesser included offense without first having unanimously found the defendant not guilty of the greater, the result would not have been different. If we assume as we must, that the jury followed the court’s instructions, the jury would have gone no further once they unanimously agreed that the defendant was guilty of manslaughter in the first degree. That unanimous determination precludes the jury from proceeding to any lesser included offenses.
The majority indicates that the acquittal first instruction required the jury to overcome a preliminary hurdle, a unanimous acquittal on manslaughter in the first degree. I cannot agree that the defendant was deprived of his right to have the jury consider this lesser included offense. The majority wpuld have us speculate that first the jury cculd not unanimously find the defendant not guilty of manslaughter in the first degree and then proceed to unanimously find him guilty of that charge. Procedurally this does not comport with the jury instruction which requires the jury to first determine whether the state has proven each and every element *91as charged beyond a reasonable doubt so as to allow a unanimous guilty verdict.
I do not agree that we are free to adopt a new requirement of reasonable efforts when requested by the defendant as the mandated jury instruction. In any event the defendant was not harmed, even assuming an improper charge.
Accordingly, I dissent from the decision of the majority and now address the defendant’s other claim.
The defendant claims that the statute under which he was convicted of manslaughter in the first degree, General Statutes § 53a-55 (a) (3), is unconstitutionally vague as applied in this case because the elements that distinguish the degrees of manslaughter were not defined meaningfully by the legislature, and the trial court did not adequately distinguish between manslaughter in the first and second degrees. The defendant claims that no actual distinction exists between simple reckless conduct, as proscribed by General Statutes § 53a-56, and reckless conduct aggravated by “extreme indifference to human life” as proscribed by § 53a-55 (a) (3).
The defendant acknowledges that this claim was not preserved at the trial court. The defendant seeks review under Evans/Golding,2 claiming that he was deprived of a fundamental constitutional right, and he also seeks review as plain error under Practice Book § 4185.3 The defendant’s failure to raise the constitutionality of *92§ 53a-55 (a) (3) at trial, or object to the instruction given, leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally vague as applied to him. State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). Absent such a record, review is precluded. State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989).
As part of this claim the defendant alleges that the jury was not instructed properly on the distinction between the two degrees of manslaughter. In the absence of a properly preserved claim, “reversal is warranted only if the charge failed to provide the jury with the essential elements of the offense on which the conviction rests or the case must invoke plain error requiring such result in the interests of justice.” State v. Woods, 23 Conn. App. 615, 623, 583 A.2d 639 (1990). The defendant acknowledges that the essential elements of each lesser included offense were properly given. “[W]here the defendant fails to object to an instruction, ‘the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial; State v. Cosby, [6 Conn. App. 164, 172, 504 A.2d 1071 (1986)]; is seriously undercut. See also State v. Kurvin, [186 Conn. 555, 567, 442 A.2d 1327 (1982)].’ State v. Huff, 10 Conn. App. 330, 338, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).” State v. Callahan, 21 Conn. App. 654, 660-61, 575 A.2d 704, cert. denied, 216 Conn. 803, 577 A.2d 716 (1990). Review of the claim on this basis is unwarranted.
The defendant’s claim is also unreviewable as plain error under Practice Book § 4185. Plain error review *93“ ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990). The claimed error here is not so egregious or obvious as to merit such review. State v. Gagnon, 18 Conn. App. 694, 712, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989).
Accordingly, I would affirm the judgment of conviction.
State v. Smith, 49 Conn. 376 (1881).
State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
Practice Book § 4185 provides: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.
“In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel *92has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”