author: Norcott, J.

text:
    Kim I. Trotta et al. v. Town of Branford
    (9998)
    O’Connell, Norcott and Lavery, Js.
    Argued November 5, 1991
    decision released January 21, 1992

      Karen E. Souza, for the appellant (named plaintiff).

      Patricia Cofrancesco, for the appellee (defendant).
   Norcott, J.

The named plaintiff, Kim I. Trotta (plaintiff), appeals following the granting of the defendant’s motion for summary judgment. She claims that the court improperly granted the motion because it failed to find that a claimed design defect in a town road was within the ambit of General Statutes § 13a-149, one of this jurisdiction’s highway defect statutes. We affirm the trial court’s judgment.

The following undisputed facts are relevant to the disposition of this appeal. The plaintiff served notice on the defendant and brought this action, pursuant to General Statutes § 13a-149, alleging that she was involved in an automobile accident on November 27, 1988, at Park Place and Main Street in Branford. By way of an amended complaint in two counts, she alleged that she had stopped her vehicle at a stop sign at the intersection, but that the presence of a neck-out—a rounded sidewalk extension—forced her to pull into the intersection farther than she would have if the neck-out had not been present, thereby resulting in a collision with another vehicle.

The plaintiff alleged, and the defendant admitted, that the neck-out was within the town’s territorial boundaries. The plaintiff further alleged that the defendant breached its statutory duties to her by building and maintaining the neck-out, and by thereafter failing to take steps to prevent the collision. The defendant denied these allegations.

On October 4, 1990, the defendant moved for summary judgment, claiming that no genuine issue of material fact existed because, as a matter of law, a town cannot be held liable for design defects as alleged in the plaintiffs complaint. On November 8, 1990, the court granted the motion for summary judgment, finding that the plaintiff had failed to set forth a cause of action based on a design defect under General Statutes § 13a-149.

The plaintiff claims that the court improperly granted the motion for summary judgment because a genuine issue of material fact exists as to whether the claimed design defect is within the purview of General Statutes § 13a-149.

The standard for appellate review of a trial court’s decision to grant a summary judgment motion is well established. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). “ ‘ “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984)]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978).” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). “The test is whether a party would be entitled to a directed verdict on the same facts.” Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).’ ” Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781, citing Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). The dispositive issue here is whether the court properly determined that judgment for the defendant was required as a matter of law because the plaintiff failed to state a cause of action based on a design defect.

A defect in a highway has been described as “ ‘any object or condition in, upon, or near the traveled path which would necessarily obstruct or hinder one in the use of the- road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result.’ ” Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 202, 592 A.2d 912 (1991). General Statutes § 13a-149 governs actions against municipalities while § 13a-144 governs similar actions against the state. Baker v. Ives, 162 Conn. 295, 298-99, 294 A.2d 290 (1972). When claims are adjudicated under either of these statutes, we apply the same rationale because no material difference exists in the obligations they impose on the state and its municipalities. Hall v. Burns, 213 Conn. 446, 477, 569 A.2d 10 (1990); Baker v. Ives, supra, 299.

Although our Supreme Court has said defects in a plan of construction are not within the ambit of General Statutes § 13a-144, it has carved out an exception to this rule when it can be shown that the plan adopted “ ‘was totally [unacceptable in that] the highway would have been in such a defective condition as to have been out of repair from the beginning.’ ” Donnelly v. Ives, supra, quoting Hoyt v. Danbury, 69 Conn. 341, 352, 37 A. 1051 (1897); see also Perrotti v. Bennett, 94 Conn. 533, 541, 109 A. 890 (1920); D’Arcy v. Shugrue, 5 Conn. App. 12, 15, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). Because this rationale applies to claims brought under § 13a-144, it applies as well to claims brought under § 13a-149. Hall v. Burns, supra; Baker v. Ives, supra. Therefore, to bring her claim within the design defect exception, the plaintiff must present evidence sufficient to show that the plan for the neck-out was so defective as to have been faulty from the start.

To determine if the plaintiff presented such evidence, we look to the documentary proof submitted to the court in support of and in opposition to the defendant’s motion for summary judgment. The plaintiff’s complaint alleged that the neck-out “exists at the intersection,” and that the defendant “erected” it, “kept and maintained” it, “permitted [it] to remain,” and failed to warn drivers it obscured their Anew at the intersection. The complaint also alleges that the defendant failed to install a traffic light at the intersection and to remove the neck-out so as to prevent the plaintiff’s collision. Nowhere does the complaint allege that the neck-out was “ ‘in such a defective condition as to have been out of repair from the beginning.’ ” Donnelly v. Ives, supra, quoting Hoyt v. Danbury, supra; see also Perrotti v. Bennett, supra; D'Arcy v. Shugrue, supra. At oral argument, the plaintiff’s counsel conceded that the complaint did not allege a design defect and that it was inartfully drafted. Counsel contended, however, that it was implicit throughout the proceedings before the court that a design defect was at issue.

The purpose of a complaint is to limit the issues at trial, and it is calculated to prevent surprise. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987). It must provide adequate notice of the facts claimed and the issues to be tried. Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990). In order to surmount a motion for summary judgment, a party must demonstrate that there exists a genuine issue of material fact. Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, citing Connell v. Colwell, supra. Demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969). A material fact is one that will make a difference in the result of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986); Lopez v. United Nurseries, Inc., 3 Conn. App. 602, 606, 490 A.2d 1027 (1985). Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983). Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment. Paine Webber Jackson & Curtis v. Winters, 13 Conn. App. 712, 721, 539 A.2d 595, cert. denied, 200 Conn. 803, 545 A.2d 1100 (1988). “The issue must be one which the party opposing the motion is entitled to litigate under [her] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.” Shuster v. Buckley, 5 Conn. App. 473, 477, 500 A.2d 240 (1985).

Viewing the documentary proof before the court in a light most favorable to the plaintiff, we conclude that there was no genuine issue of material fact that should have been resolved at trial. The facts alleged in the complaint, together with inferences that reasonably and logically could be drawn therefrom, fail to bring the plaintiff’s cause of action within the design defect exception under General Statutes § 13a-149. There is a distinct difference between something that exists and something in its design stage, which does not yet exist. The assertions that the neck-out “exists,” and that the defendant “erected,” “kept and maintained” it and “permitted [it] to remain,” do not reasonably and logically permit the inference that it was defectively designed, no matter how favorably we view the complaint. Nor does the alleged failure to install a traffic light, remove the neck-out or warn drivers that their view would be obscured give rise to any claim of defective design. In short, the plaintiff presented no evidentiary facts outside the pleadings from which the claimed allegation in the pleadings of a design defect could be warrantably inferred. United Oil Co. v. Urban Redevelopment Commission, supra. The plaintiffs mere reliance on assertions of fact, which were not admitted by the defendant, was thus insufficient to establish the existence of a genuine issue of material fact. Paine Webber Jackson & Curtis v. Winters, supra.

The court therefore properly found that the plaintiff failed to sustain her burden of showing the existence of a genuine issue of material fact so as to preclude the granting of summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-149 provides: “damages for injuries by means of defective roads AND bridges. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1,1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    In re Shana M.

    (9715)
    O’Connell, Foti and Heiman, Js.
    Argued November 4, 1991
    decision released January 21, 1992

      Philip W. Ball, for the appellant (respondent mother).

      Ann-Marie DeGraffenreidt, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Lynn Jenkins, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   O’Connell, J.

The respondent mother appeals from the judgment terminating her parental rights to her daughter Shana, pursuant to General Statutes (Rev. to 1987) § 17-43a (now General Statutes § 17a-112). This action was brought by the commissioner of children and youth services by way of a petition to terminate the parental rights of Patricia M. and Carl M. with respect to their daughter Shana. The trial court found by clear and convincing evidence that there was no ongoing parent-child relationship between the respondent and Shana and that it was not in Shana’s best interest to allow further time for such a relationship to develop. Furthermore, it found that termination of the respondent’s rights was in Shana’s best interest. The respondent appealed.

The respondent raises two claims on appeal. First, she contends that the trial court engaged in improper ex parte contact with the assistant attorney general representing the petitioner. Second, she argues that the trial court should have found that Shana’s foster parents and the department of children and youth services (DCYS) prevented her from maintaining a meaningful relationship with Shana. We affirm the judgment of the trial court.

The respondent’s first claim concerns an alleged ex parte contact with the petitioner’s counsel by the trial judge. The respondent argues that the delivery of a copy of an English House of Lords decision to the petitioner’s counsel prior to the hearing was improper. The record discloses that the trial judge’s independent research discovered the 1988 English case that he felt touched on many of the issues involved in the present case. Recognizing that most Connecticut attorneys may have limited access to English case law, the trial judge made a copy of the decision for each counsel. At the opening of court the next day, he handed one copy to the respondent’s attorney and one copy to the attorney for the minor child and remarked that he had given a copy to the petitioner’s attorney earlier that morning. From this scenario, the respondent’s attorney asks us to conclude that the judge must have had an improper ex parte meeting with petitioner’s counsel.

The petitioner argues that we should not review this claim because it was not raised at trial, but rather was brought up for the first time in the respondent’s brief. Despite the merit of this argument, we elect to review the claim under the plain error doctrine because it implicates the ethical conduct of the trial court and reflects on the entire process of justice. Practice Book § 4185; In re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 587 (1990). It is firmly established that “any ex parte communication concerning a pending proceeding between a lawyer and a judge is prohibited by both the rules of professional conduct and the code of judicial conduct. Connecticut Rules of Professional Conduct, Rule 3.5; Connecticut Code of Judicial Conduct, Cannon 3.A. (4).” State v. John, 210 Conn. 652, 672, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

Impartiality on the part of a judge is a fundamental tenet of our system of jurisprudence. Furthermore, not only is actual impartiality required but also the appearance of impartiality. Bonelli v. Bonelli, 18 Conn. App. 207, 211, 557 A.2d 559 (1989), rev’d, 214 Conn. 14, 570 A.2d 189 (1990). “[JJustice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954). The trial judge must be ever vigilant to consider his conduct from the viewpoint not only of an unbiased observer, but also of the biased litigant who is desperately searching to find a flaw in the judge’s conduct. To paraphrase the Scottish poet Robert Burns, Oh, what a power to give us, to see ourselves as others see us.

To find bias and misconduct on the part of the trial judge in the present case, however, requires a stretch of our legal imagination beyond the elasticity contained therein. Our examination of the record discloses a hard working trial judge who commendably wanted to share the fruits of his research with the attorneys before him. Although it would have been a better procedure for the trial judge to have delivered copies of the English decision to all counsel simultaneously, this slight departure from preferred procedure does not, in this case, warrant the drastic remedy of reversal.

The respondent’s second claim is that the trial court improperly failed to find that unreasonable conduct by DCYS and Shana’s foster parents prevented her from maintaining a meaningful relationship with Shana. The respondent challenges the factual basis for the trial court’s decision. We cannot retry the facts. In re Noel M., 23 Conn. App. 410, 418, 580 A.2d 996 (1990). “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . The trial court, following the mandates of General Statutes [Rev. to 1987] § 17-43a, properly determined, on the basis of clear and convincing evidence, that no ongoing parent-child relationship existed.” (Citation omitted.) In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court terminated the parental rights of Carl M. on the ground that he had abandoned Shana. General Statutes (Rev. to 1987) § 17-43a (b) (1). Carl M. has not appealed. In this opinion, the term respondent refers to Patricia M. only.

        In re K.D., 1 App. Cas. 806 (H.L. 1988).

       The remarks of the trial judge were as follows: “I should just state, for the record, Attorney Bakul'ski knows this, as of this morning, and the other two attorneys do not. For what it’s worth, I was in the state library on a—last week, doing some research on a number of cases, and I found a—an English case from 1988, it’s quite a recent case, by the House of Lords, which is the English equivalent of our Supreme Court, that touched on a lot of concerns raised in the trial. Not that it’s, by any means, on all fours, and not that it’s not distinguishable, and not that our system’s laws are not somewhat different from the English . . . [and] not that I thought counsel should be aware of it. Attorney Bakulski, I gave a copy this morning, if I could, Mrs. Lamb, I just made copies for all counsel, knowing that sometimes your English law libraries tend to get a little bit out of date when you’re in private practice. And you can read them, that’s nothing I expect you to be prepared on today, by any means, but, you might want to read it, at your convenience.”

       The actual text of Robert Bums’ verse from To a, Louse is:
      “O, wad some power the giftie gie us
      To see oursels as ithers see us!
      It wad frae many a blunder free us
      And foolish notion.”


author: Landau, J.

text:
    Reginald Hayes v. The Travelers Indemnity Company of America
    (9877)
    Dupont, C. J., Foti and Landau, Js.
    Argued September 24, 1991
    decision released January 21, 1992

      KathleenS. Mass, with whom, on the brief, was Vincent R. Falcone, for the appellant (plaintiff).

      Daphne R. Vayos, with whom, on the brief, was Terence A. Zemetis, for the appellee (defendant).
   Landau, J.

The plaintiff, Reginald Hayes, appeals from the trial court’s judgment denying his request for an order directing the defendant, The Travelers Indemnity Company of America, to proceed with a second arbitration pursuant to an uninsured motorist provision contained in the insurance policy issued to him by the defendant. We reverse the judgment of the trial court.

The parties have stipulated to the following facts. The defendant issued the plaintiff an insurance policy containing an uninsured motorist provision. While the policy was in effect, the plaintiff was involved in an automobile accident with an uninsured motorist and made a claim against the defendant under that provision. The matter proceeded to arbitration between September 13 and November 8,1989, concerning whether the defendant was legally responsible for any damage suffered by the plaintiff and, if so, for what amount. On November 8, 1989, a finding and award was written and signed by the chief arbitrator and mailed to the second arbitrator who also signed the award and forwarded it to the third arbitrator. The third arbitrator neither received nor signed the award.

On November 12,1989, the chief arbitrator sent the plaintiff a bill for services, which contained the following postscript: “Skip: I do not want to be paid on this file since we were unable to render an award on behalf of your client. Paul.” Neither party received a copy of the award until April 23,1990, over five months after the hearing had been concluded.

At a later hearing on the plaintiffs application for an order directing the defendant to proceed with arbitration, the trial court concluded that the bill for services that was sent to the plaintiff on November 12, 1990, constituted sufficient notice of the award as required by General Statutes § 52-416. The court, therefore, denied the plaintiffs request for an order directing the defendant to proceed with a second arbitration.

The plaintiff claims that the trial court improperly found that he had been given notice of the arbitrators’ award so as to comply with § 52-416. We agree with the plaintiff.

I

Initially, we must decide whether § 52-416 requires that notice of an arbitration award be given to the parties within the same statutory time frame as that in which the award must be rendered. “A primary rule of statutory construction is that if the language of the statute is clear, it is presumed that the words express the intent of the legislature. . . . The court must interpret the statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . . ‘Each word used by the legislature should be given effect and, as far as possible, the entire enactment is to be harmonized.’ ” (Citations omitted.) Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987).

Applying these principles to the statutory language of § 52-416, we conclude that the time limit for the rendering of an award is equally applicable to the notification of the same. Section 52-416 (a) outlines the time frame within which the arbitrator or arbitrators must render an award. Specifically, § 52-416 (a) provides in pertinent part that “the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed .... An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.” Subsection (b) of § 52-416 defines what constitutes an award as referred to in subsection (a) and also states that written notice of the award shall be given to each party. Because the statute must be read as a whole, in such a manner so as not to render either section meaningless, the thirty day time limit for the rendering of an award is equally applicable to the notice of that award. We hold, therefore, that not only must the award be rendered within the thirty day time limit, but that notification of the award must also be given within the same thirty day time limit. The parties in this case were notified of the award on April 23, 1990, a date much beyond that provided in the statute. Therefore, unless the bill that was sent to the plaintiff on November 12, 1989, can be considered as the award itself, there was no award that had any legal effect.

II

We next turn to the issue of whether the bill for services sent to the plaintiff on November 12, 1989, constitutes notice of the award so as to conform with the requirements of § 52-416. We conclude that it does not.

Although § 52-416 contains no specific requirements regarding the form or content of the notice that must be given, public policy dictates that notification of the award must “be sufficiently clear and definite by its own terms”; Wolf v. Gould, 10 Conn. App. 292, 301, 522 A.2d 1240 (1987); and the award must be “final as to the matters submitted so that the rights and obligations of the parties may be definitely fixed.” Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 617, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S. Ct. 449, 450, 99 L. Ed. 2d 748 (1955). Moreover, the award must be certain in the sense that there are no reasonable questions as to its meaning. Id., 616.

The bill for services forwarded to the plaintiff on November 12,1989, fails to meet these requirements. The purpose of the bill for services was not to provide the required notification of the award, but rather to provide written forgiveness of the debt owed by the plaintiff. The rights and obligations of the parties were not fixed by the bill, nor can a clear and express understanding of the significance of the document be gleaned from the single statement that the arbitrators were “unable to render an award on behalf of your client.” The information conveyed by the bill falls far short of the specificity required to enable the parties either to seek to have the award confirmed or vacated or to decide otherwise whether to commence the appeal process.

Both the plaintiff and the defendant were notified of the award on April 23, 1990, at a hearing on the plaintiffs motion for an application for an order to proceed with arbitration. The hearing took place more than five months after “the date the hearing or hearings [were] completed.” General Statutes § 52-416. There is no indication that the parties waived the thirty day notification period. Because the bill for services did not constitute notice as contemplated by § 52-416, we find that the plaintiff was not notified of the arbitration award within the time allotted by statute.

The judgment is reversed and the case is remanded with direction to render judgment granting the plaintiffs application for an order to proceed with arbitration.

In this opinion the other judges concurred.

       The Connecticut arbitration statute, General Statutes § 52-414 (a), requires the signatures of only a majority of the arbitrators to render an effective award.

       “[General Statutes] Sec. 52-416. time within which award shall be rendered, notice, (a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made or by an extension or ratification in writing.
      “(b) The award shall be in writing and signed by the arbitrator or arbitrators, or by a majority of them, or by the umpire. Written notice of the award shall be given to each party.”


author: Per Curiam.

text:
    State of Connecticut v. Michael J. Marsala
    (6088)
    Dupont, C. J., O’Connell and Foti, Js.
    Decided December 18
    decision released December 20, 1991

      Richard Emanuel, assistant public defender, with whom, was G. Douglas Nash, public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Per Curiam.

The defendant was convicted of two violations of the dependency producing drug law, General Statutes § 21a-278 (b). In State v. Marsala, 15 Conn. App. 519, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988) (Marsala I), the defendant claimed that the trial court erred, first, in denying his motion to suppress evidence seized from his person, and, second, in denying his motions for a judgment of acquittal on the ground that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We remanded this case to the trial court to resolve certain factual matters so that we could determine whether the admission of items seized from the defendant’s person was justified under a good faith exception to the exclusionary rule. Id., 526. We also assumed arguendo that the items, which consisted of two $20 bills and two packets of cocaine, were properly admitted and concluded that the evidence was sufficient to establish guilt beyond a reasonable doubt. Id., 528.

After the trial court made the factual determinations required by Marsala I, we again considered the matter and held that the trial court did not err in finding, on remand, that the evidence seized from the defendant’s person was admissible pursuant to a good faith exception to the exclusionary rule. State v. Marsala, 19 Conn. App. 478, 483, 563 A.2d 730 (1989). The Supreme Court, on review, held “that a ‘good faith’ exception to the exclusionary rule is incompatible with the constitution of Connecticut, article first, § 7, and, therefore, that the decision of the Appellate Court, applying such an exception, must be reversed.” (Footnote omitted.) State v. Marsala, 216 Conn. 150, 151, 579 A.2d 58 (1990). The Supreme Court remanded the case to this court with the following rescript: “The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings consistent with this opinion.” Id., 172.

The rescript of the Supreme Court presents us with two possible courses of action. One is for us to address the defendant’s claim as to the sufficiency of the evidence and to look at the remaining evidence to determine, on the basis of the record, whether the defendant’s conviction should be vacated. The other is for us to remand the case to the trial court for a new trial.

Having considered both possibilities, we conclude that the latter is the correct course. See State v. Mooney, 218 Conn. 85, 588 A.2d 145 (1991). The denial of the defendant’s motion to suppress the evidence seized from his person undoubtedly played a part in shaping the state’s presentation of its case. Had the motion been granted, the state might have introduced evidence other than that which it introduced in the defendant’s trial. We do not know how the state would have proceeded had the evidence seized from the defendant’s person been excluded.

The judgment is reversed and the case is remanded for a new trial.


text:
    H. G. Bass Associates, Inc. v. Ethan Allen, Inc.
    (10024)
    O’Connell, Landau and Heiman, Js.
    Argued October 3, 1991
    decision released January 21, 1992

      Steven M. Olivo, for the appellant (defendant).

      Mark E. Blakeman, for the appellee (plaintiff).
   Landau, J.

The defendant, Ethan Allen, Inc., appeals from the judgment of the trial court awarding the plaintiff, H. G. Bass Associates, Inc., $49,260.67 in a foreclosure action. The defendant asserts that the trial court improperly (1) rendered judgment in favor of the plaintiff in violation of General Statutes § 49-39, (2) found in favor of the plaintiff when the evidence demonstrated that the plaintiff was in breach of contract, (3) awarded interest on its judgment, (4) awarded attorney’s fees although such fees were not requested, (5) awarded attorney’s fees that were excessive, and (6) rendered judgment in violation of General Statutes § 51-183b. We agree with the defendant’s first claim. Because it is dispositive of this appeal, we need not address the remaining claims.

The following facts were not disputed at trial. On May 7, 1984, the defendant contracted with Shannon Construction, Inc. (Shannon), to construct an addition to one of the defendant’s warehouses located in Newtown. On August 1, 1984, Shannon subcontracted with the plaintiff to provide and install a wall panel system in that warehouse. The plaintiff commenced performance in May, 1985, and continued work on the warehouse until August of the same year, when Shannon denied its request for payment of $29,000 for work performed to date.

On September 19, 1985, the plaintiff filed a certificate of mechanic’s lien with the town clerk of Newtown to secure the moneys due for the work performed pursuant to its subcontract with Shannon. The plaintiff instituted an action (Docket No. CV 86 0290497 S) against the defendant on September 18, 1986, to foreclose the September 19,1985 mechanic’s lien, and, on September 26, 1986, recorded a notice of lis pendens citing this action. A second action (Docket No. CV 86 0290524 S) was also commenced on September 18, 1986, through other counsel, to foreclose the same lien. The notice of lis pendens for this second action was recorded on September 18, 1986. On February 24, 1987, the second action was withdrawn and the lis pen-dens that had been recorded on September 18, 1986, was discharged.

In August, 1990, the plaintiff and the defendant proceeded to trial. Judgment was rendered for the plaintiff against the defendant in the amount of $49,260.67. No judgment of foreclosure on the mechanic’s lien was rendered.

The defendant argues that General Statutes § 49-39 requires that the action to foreclose a mechanic’s lien be commenced and the notice of lis pendens citing that action be recorded within one year of the date of the perfection of the mechanic’s lien. The defendant further claims that the mechanic’s lien ceased to exist one year from the date of its perfection because the plaintiff failed to file a notice of lis pendens citing that action within the one year statutory time limit. Relying on Meyer, Kasindorf & Mancino v. Lafayette Bank & Trust Co., 34 Conn. Sup. 84, 377 A.2d 861 (1977), the plaintiff argues that because the defendant had actual notice of the mechanic’s lien and the lawsuit commenced thereon, the actual notice may take the place of the constructive notice conferred by the filing of the notice of lis pendens. We agree with the defendant.

In Connecticut, a mechanic’s lien is a creature of statute and establishes a right of action where none existed at common law. Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., 99 Conn. 396, 403, 122 A. 102 (1923). It is the general rule that where a statute creates a right of action that did not exist at common law and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right; it is a limitation of the liability itself as created, and not of the remedy alone. Diamond National Corporation v. Dwelle, 164 Conn 540, 543, 325 A.2d 259 (1973). As the Diamond court noted, because General Statutes § 49-39 sets the time within which the action must be commenced, it conforms with the general rule and is thus a limitation on the right. “The lien [under the forerunner of § 49-39] is a creature of the statute, and the General Assembly, which created the right, may set a limit to the term of its existence. . . . The plain intent of this statute is to clear the title to the premises unless an action of foreclosure is brought within the time limited for the continuance of the lien. The phrase ‘no mechanic’s lien shall continue in force’ is conclusive. . . . The lien of this defendant and the liens of others who failed to commence any action of foreclosure within the time limited by the statute, are no longer in force; as liens they have ceased to exist.” Persky v. Puglisi, 101 Conn. 658, 666, 127 A. 351 (1925). Thus, § 49-39 is not merely a limitation of the remedy, but is a limitation of the cause of action itself.

General Statutes § 49-39 provides in relevant part: “A mechanic’s lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it . . . and records a notice of lis pendens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded .... Each such lien, after the expiration of the one-year period . . . without action commenced and notice thereof filed as aforesaid, shall be invalid and discharged as a matter of law.” (Emphasis added.) In order for a party to foreclose a mechanic’s lien it must comply with the requirements of § 49-39. Compliance with § 49-39 mandates that the party seeking to foreclose the lien must, within one year from the date the lien is recorded, (1) commence an action to foreclose the lien, and (2) record a notice of lis pendens.

Here, the mechanic’s lien was perfected through recordation on September 19,1985. The plaintiff commenced the surviving action on September 18, 1986, and recorded the notice of lis pendens citing it on September 26,1986. There is no dispute that the plaintiff satisfied the first of the two requirements by commencing an action on September 18,1986, a date within one year of the recording of the mechanic’s lien. Although the plaintiff has met the first of these two requirements, he has failed to meet the second. The notice of lis pen-dens was not filed within that one year time period. The notice of lis pendens filed with the second action to foreclose the mechanic’s lien, although filed within the one year time period, is ineffective because the defendant’s withdrawal of the underlying action on February 24, 1987, released the lis pendens.

“The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional. Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is ‘strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.’ ” Housing Authority of East Hartford v. Hird, 13 Conn. App. 150, 157, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988), quoting Lusas v. St. Patrick’s Roman Catholic Church Corporation, 123 Conn. 166, 170, 193 A.2d 204 (1937). The plaintiff’s withdrawal of the action in February, 1987, effectively erased the court slate clean as though the action had never been commenced, thereby eliminating the corresponding lis pendens.

The plaintiff’s reliance on Meyer, Kasindorf & Mancino v. Lafayette Bank & Trust Co., supra, is misplaced because the Meyer court relied on a California statute not on Connecticut law. See Patten-Blinn Lumber Co. v. Francis, 166 Cal. App. 2d 196, 333 P.2d 255 (1958). The Meyer court, however, overlooked one critical difference between Connecticut’s mechanic’s lien statute and that of California. Unlike the Connecticut statute, the mechanic’s lien statute in California states no time limit within which the party seeking to foreclose the lien must record the notice of lis pendens. This distinction renders the case law relied on in Meyer and the ultimate conclusion in that case inapposite. The primary purpose of a lis pendens in the California statute was to give constructive notice of the pending action. Patten-Blinn Lumber Co. v. Francis, supra, 199-200. Because the purpose of the lis pendens recordation requirement in Connecticut’s mechanic’s lien statute is not only to give constructive notice of the pending action but also to set a time limit for the foreclosure of a mechanic’s lien, we are not persuaded by Meyer.

The notice of lis pendens in the present action was not properly recorded as required by General Statutes § 49-39. The notice of lis pendens recorded in a different case does not satisfy the statutory requirement. Accordingly, the mechanic’s lien filed by the plaintiff became “invalid and [was] discharged as a matter of law”; General Statutes § 49-39; on September 19,1986, one year after the lien had been perfected. Because the mechanic’s lien was invalid and is discharged as a matter of law, any award that was predicated on its validity is similarly invalidated. We conclude, therefore, that the trial court was without jurisdiction to render judgment for the plaintiff.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiff’s complaint.

In this opinion the other judges concurred.

       The award was allocated as follows:
      Damages: $29,000.00
      Interest: $ 8,700.00
      Attorney’s Fees: $11,281.00
      Costs:_$ 279.67
      Total $49,260.67

       The plaintiff’s complaint framed this cause of action as a foreclosure action.

       The work the plaintiff contracted to perform was subsequently completed by Leander-Anderson Company, the plaintiff’s subcontractor. Leander-Anderson was paid in full for its work.

       The defendant later impleaded Shannon, seeking indemnification pursuant to an indemnification agreement entered into on February 29, 1988.

       Judgment was also rendered in favor of the defendant for the same amount on its third party complaint against Shannon.

       Cf. Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 597 A.2d 1289 (1991). In Essex Savings Bank, this court dismissed the appeal for lack of a final judgment because the trial court had yet to determine the amount of the debt, the attorney’s fees or even whether the foreclosure should be strict or by sale. Here, unlike in Essex Savings Bank, the trial court clearly ordered a remedy.

       The plaintiff properly withdrew this action pursuant to General Statutes § 52-80 which provides in relevant part: “The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof.” See also Marrinan v. Hamer, 5 Conn. App. 101, 103, 497 A.2d 67 (1985).

        Meyer recognized that the Connecticut Supreme Court had not yet decided the significance of the lis pendens requirement of General Statutes § 49-39.

       The California mechanic’s lien statute relied on in Patten-Blinn Lumber Co. v. Francis, 166 Cal. App. 2d 196, 333 P.2d 255 (1958), provided in relevant part: “(a) No lien provided for in this chapter binds any property for a longer period than 90 days after the same has been filed except as hereinafter provided, unless within that time, proceedings to enforce the same be commenced in a proper court and a notice of pendency of such proceedings be filed as provided in section 409. " (Emphasis added.) Cal. Code Civ. Proc. § 1198.1 (a).
      Section 409 of the California Code of Civil Procedure provides that “from the time of filing such notice for record only, shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action . . . .”


text:
    State of Connecticut v. Michael Johnson
    (9882)
    Daly, Foti and Landau, Js.
    Argued November 7, 1991
    decision released January 21, 1992

      Linda P. Stambovsky, with whom, on the brief, was Patricia Buck Wolf for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Turcotte, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, Michael Johnson, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). On appeal, the defendant raises the following claims: (1) the trial court improperly denied his motion for judgment of acquittal because the evidence presented at trial was insufficient to allow the jury to find the defendant guilty of sexual assault in the first degree and assault in the first degree beyond a reasonable doubt; and (2) his right to due process was violated by the failure of the state health services’ laboratory to preserve potentially useful evidence. We disagree.

The jury could reasonably have found the following facts. The defendant was the boyfriend of the victim’s cousin and he and the victim had known one another for approximately four years. On the March 23, 1990, the victim had misplaced the key to her apartment. In order to gain entry to the apartment, neighbors helped her break down the door. The defendant arrived shortly thereafter. At his suggestion, the door was then nailed shut. The only remaining access to the apartment was through the rear door. The defendant then sexually assaulted the victim at knifepoint. During the course of the attack both of the victim’s hands were severely cut with the knife.

After helping the victim wash the blood from her hands, the defendant left the apartment. He returned shortly thereafter to retrieve his knife. The victim, although fearful, admitted the defendant because he blocked her only means of escape from the apartment. He retrieved his knife and left. The victim waited fifteen minutes and then wrapped her hands in a towel and went to her sister’s nearby apartment to call the police. The victim was taken to Yale-New Haven Hospital, where she underwent surgery on her hands and a gynecological examination. The samples obtained during the exam were taken to the state laboratory for testing.

Connecticut courts have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. Whether we review the findings of the trial court or the verdict of a jury, our underlying task is the same. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. State v. Owens, 25 Conn. App. 181, 192, 594 A.2d 991 (1991). We then decide whether, on the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Javrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991), and cases cited therein.

It is for the jury to determine the credibility and the effect to be given the testimony. State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979). Moreover, it is the jury’s right to consider evidence, draw logical deductions and make reasonable inferences from the facts proven. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976); State v. Ruth, 16 Conn. App. 148, 154, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989). A reviewing court cannot retry the case or pass on the credibility of a witness. State v. Myers, 193 Conn. 457, 473, 479 A.2d 199 (1984); State v. Robinson, 14 Conn. App. 40, 41, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988). This court does “not sit as a [seventh] juror, and [does] not ask whether [it] believe[s] the evidence established guilt beyond a reasonable doubt, but rather, whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) State v. Lynch, 21 Conn. App. 386, 400, 574 A.2d 230, cert. denied, 216 Conn. 806, 508 A.2d 63 (1990).

In order for the defendant to be convicted of sexual assault in the first degree, the state must prove beyond a reasonable doubt that the defendant (1) compelled the victim to engage in sexual intercourse (2) by use of force or threat of force. See General Statutes § 53a-70 (a) (1). For the defendant to be convicted of assault in the first degree, the state must prove beyond a reasonable doubt that (1) with the intent to cause serious physical injury (2) to another person (3) he caused such injury to that person (4) by means of a dangerous instrument. See General Statutes § 53a-59 (a) (1); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982).

Given the victim’s testimony and the medical testimony at trial, the jury could reasonably have found that the defendant intentionally stabbed the victim in the hands with a knife thereby causing serious physical injury by means of a dangerous instrument. The jury also could have found that the defendant sexually assaulted the victim through force or threat of force. Thus, there was sufficient evidence adduced to substantiate a guilty verdict of both sexual assault in the first degree and assault in the first degree.

The defendant next claims that the failure of the state laboratory to preserve potentially useful evidence violated his constitutional right to due process, even absent a showing of bad faith. Specifically, the defendant claims that the failure to preserve a sample of the smear taken from the victim during her physical examination precluded him from conducting a DNA comparison necessary to exculpate himself.

Prior to trial, the defendant filed a motion for discovery and inspection requesting, inter alia, “[c]opies of any and all results or reports of scientific tests, experiments or comparisons made in connection with this matter which are within the possession, custody or control of any governmental agency and which are intended for use by the prosecuting authority as evidence at the Defendant’s trial or which are material to the preparation of the defense.” The state provided the defendant with a final copy of the state laboratory report of the results of the tests that were conducted on the evidence provided by the victim, pursuant to that request. Six months later, the defendant filed a motion to obtain nontestimonial evidence in order to conduct a DNA test comparing his blood and bodily fluids to those recovered from the victim. During a hearing on this motion, the state’s attorney indicated that it was his understanding that, in performing the tests already conducted the samples were necessarily destroyed in the process, but that he was unsure whether there were any untested samples remaining. The trial court deferred its ruling on the motion in order to allow the defendant to investigate whether there were any remaining samples. Two days later, the defendant withdrew his motion without offering a supporting reason for the record.

The defendant’s claim that it was a violation of due process to destroy the samples was never raised at trial. Thus, this claim was not properly preserved for appellate review. Defense counsel was silent as to the reasons for the withdrawal of his motion. “When the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial . . . is seriously undercut. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Safford, 22 Conn. App. 531, 539, 578 A.2d 152 (1990); State v. Chapman, 16 Conn. App. 38, 48, 546 A.2d 929 (1988); State v. Huff, 10 Conn. App. 330, 338, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Appellate review of the claim without the defendant’s ever having brought it to the attention of the trial court would be tantamount to an ambuscade of the trial court. See State v. Safford, supra.

Moreover, because the defendant does not seek review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or under the plain error rule of Practice Book § 4185, we decline to review this claim. See State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986); State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury also returned a verdict of guilty of one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70. The trial court granted the defendant’s motion for judgment of acquittal as to this count, concluding that this conviction merged with the conviction of sexual assault in the first degree.

       The victim was examined approximately ten hours after she was brought to the hospital. During the interim she underwent surgery to repair the damage done to her hands.

       There is no evidence to indicate whether there were any untested samples remaining.

       Even if this court felt compelled to address this claim pursuant to either of these alternative routes, or sua sponte, the defendant has provided us with no record to sustain such a review.


author: Foti, J.

text:
    State of Connecticut v. Frank X. Lo Sacco
    (9725)
    Dupont, C. J., Foti and Landau, Js.
    Argued September 24, 1991
    decision released January 28, 1992

      Frank X. Lo Sacco, pro se, the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Russell Zentner, deputy assistant state’s attorney, and, on the brief, John T. Redway, state’s attorney, for the appellee (state).
   Foti, J.

After a trial by jury, the defendant was convicted of assault in the third degree in violation of General Statutes § 53a-61. The defendant appeals his conviction, claiming that the trial court (1) improperly-allowed into evidence the fact that a jury had previously acquitted the victim of stabbing the defendant during the incident in question, (2) restricted the defendant’s cross-examination of a state’s witness in violation of his sixth amendment right of confrontation, (3) improperly restricted the defendant’s cross-examination of a state’s witness as to criminal charges pending against the witness, and (4) mistakenly allowed into evidence opinion testimony as to the ultimate issue of fact. We agree with the defendant’s first claim and reverse the judgment of the trial court.

The following facts are relevant to this appeal. At trial, the victim of the alleged assault, James Smith, testified as follows. On Friday, September 1,1989, he was living in the home of the defendant’s former girl friend and her son, who is also the defendant’s son. On Friday evening and early Saturday morning, Smith received several harassing phone calls from the defendant. On Saturday afternoon, the defendant drove to Smith’s residence and approached the front door. Smith opened the door and informed the defendant that the defendant’s former girl friend and her son were away for the weekend. Smith then closed and locked the front door. He was fearful of the defendant, especially because at that time he was in ill health and had sustained tremendous weight loss due to chemotherapy treatment. The defendant then pounded on the front door and shouted obscenities. At this time, Smith contemplated phoning the police, but decided against it. Instead, Smith attempted to leave the scene by car.

In the garage, Smith fumbled with his car keys in an effort to unlock his car. The defendant approached him and pinned him against the car, bruising his left leg. The defendant then threw Smith onto the hood of the car. Smith rolled off the hood and landed on the ground. Smith then pulled a pocketknife from his pocket because he was afraid of the defendant. As Smith backed toward the house, the defendant charged at him. The defendant raised his leg as if to kick Smith. Smith then stabbed the defendant in the chest just above the left nipple. The defendant began to bleed and fell backward onto the ground. As a result of his fall, the defendant’s glasses came off, and Smith retrieved them. Smith immediately went into the house and phoned the police, informing the dispatcher that he had just stabbed someone. When the police arrived, the defendant was gone, having driven himself to the hospital. As a result of the stabbing, Smith was arrested and charged with assault in the first degree. He stood trial before a jury and was acquitted of the charge.

At the defendant’s trial on the charge of assault in the third degree, the state introduced an audio tape, recorded at the hospital immediately after the stabbing, in which the defendant told the police that Smith had stabbed him without provocation.

Before the defendant’s trial, the defendant filed a motion in limine, seeking to preclude the state from introducing evidence of Smith’s acquittal. In granting the defendant’s unopposed motion, the trial court admonished both the state’s attorney and the defendant: “Just advise [the witnesses] before they start that if they . . . say anything about a prior proceeding, that’s as much as they can say. They cannot say the result of the prior proceeding. In other words . . . during the course of examination or cross-examination someone may be confronted with a transcript of the prior case, and what should be said in that case is, ‘in a prior proceeding, did you say—’Don’t identify the name of the case . . . and certainly don’t indicate what happened in the case . . . we’ll make sure that we’ll refer to it as ‘at a prior proceeding, did you say such and such.’ Don’t indicate the nature of the case, the name of the case, or what happened in the case .... That applies to both sides.”

On direct examination, the state’s attorney elicited the following testimony from Smith:

“Smith: And I went out and there was a young officer who had his vehicle parallel parked in the street. And he began to question me .... I told them that I was the one that had called the police .... And then Officer Clayton read me rights and put me in handcuffs.

“State: What did he do with you? Did he take you anywhere?

“Smith: He took me to the Middletown Police Department.

“State: What happened at the Middletown Police Department?

“Smith: We spent about an hour and a half to two hours while he transcribed a statement of what occurred .... And there was a sergeant that came in, and . . . told Officer Clayton how I was to be released and what my bond was to be.”

During cross-examination, the defendant, who represented himself, questioned Smith about the stabbing as follows:

“Defendant: Sir, you were arrested, I think you testified, on September 2, 1989, correct?

[Objection by the state]

“Defendant: Did you testify, Mr. Smith, that your rights were read to you, you were placed in handcuffs on September 2, 1989, by Officer Clayton, this morning? Didn’t you testify to that?

“Smith: Yes, sir I did.

“Defendant: And were you taken to the police station and arrested for stabbing me?

“Smith: Yes.

“Defendant: And you were arrested and charged with stabbing me right next to my left nipple?

[Sidebar taken]

“Defendant: You were arrested for stabbing me right next to my left nipple, isn’t that so?

“Smith: Yes, sir.”

On redirect examination of Smith, the state attempted to introduce evidence of Smith’s acquittal. The defendant objected, but the court overruled the objection, finding that the defendant had opened the door to the issue with his questions on cross-examination.

The court permitted Smith to testify on redirect as follows:

“State: Mr. Smith, there was testimony on cross-examination that you were arrested for assault; what happened with that arrest?

“Smith: It went to jury trial.

“State: And what happened at jury trial?

“Smith: I was acquitted.”

We find that the trial court improperly allowed Smith to testify to his acquittal in violation of the motion in limine. We do not find that the defendant opened the door with his cross-examination. Furthermore, this error requires a new trial because of the highly prejudicial nature of the evidence.

The purpose of a motion in limine is to “exclude irrelevant, inadmissible and prejudicial evidence from trial .. . State v. Bell, 188 Conn. 406, 414, 450 A.2d 356 (1982). A trial court should exclude evidence if it would create undue prejudice and threaten an injustice if admitted. Chouinard v. Marjani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990).

It is undisputed that the trial court properly granted the defendant’s motion in limine to exclude evidence of Smith’s acquittal because the evidence was highly prejudicial to the defendant’s case. The court’s order in regard to the motion in limine precluded either side from identifying the name of the prior proceeding, and from revealing the nature or the result of the case.

During Smith’s direct examination, Smith testified that when the police arrived after the stabbing, the police informed him of his rights, placed him in handcuffs, took him to the police station, took a statement from him, and released him on bond. On cross-examination, the defendant asked Smith if he had been arrested and charged with stabbing the defendant. Smith answered in the affirmative. The issue is whether the introduction of this evidence of the arrest violated the motion in limine and opened the door to Smith’s testimony on redirect that he had been tried and acquitted of the stabbing.

The state contends that the defendant’s questioning on cross-examination opened the door to evidence inadmissible by the state on direct. The state maintains that because there was no mention of “arrest” or “charges” during direct examination, the jury was not aware that Smith had been arrested until the defendant brought it out on cross-examination. The state argues this point despite the fact that Smith had testified to being handcuffed, informed of his constitutional rights, transported to the police station, questioned and released on bond. Clearly, on these facts, a juror using common sense would draw the conclusion that Smith had been arrested for the stabbing. In reaching a decision, jurors are to use common sense and draw reasonable inferences from the evidence presented. State v. Montanez, 219 Conn. 16, 23, 592 A.2d 149 (1991). Thus, even though the defendant mentioned the word “arrest” for the first time on cross-examination, the defendant did not reveal anything that the jurors did not already know.

It is important to point out that after trial, in denying the defendant’s motion to set aside the judgment, the court told the defendant that he had “opened the door” to the challenged line of questioning by asking whether Smith had been arrested for assault in the first degree. The court then stated, “If you had asked . . . ‘were you arrested for stabbing me?’ I think that would have gotten by because the jury already knew that.” Our review of the record indicates that, in fact, the defendant never referred to “assault in the first degree” in his questioning. Rather, the defendant asked Smith only if he had been arrested and charged with “the stabbing.”

In allowing Smith to testify to his acquittal on redirect, the trial court inappropriately applied the doctrine of opening the door. The general rule is that a party who initiates discussion about a certain topic during the examination of a witness cannot later object to the opposing party’s questioning the witness on the same topic. State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); State v. Paulino, 26 Conn. App. 86, 90-91, 598 A.2d 666 (1991). “The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party.” State v. Graham, supra. The trial court has discretion to permit the admission of rebuttal evidence where the initiating party has used the evidence unfairly. Id. The court, however, should allow rebuttal evidence only to the extent necessary to eliminate any unfair prejudice resulting from the original evidence. Id., 14. “[I]n making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal.” Id.

We conclude that the trial court abused its discretion in allowing Smith to testify to his acquittal. Because the jury was already aware of Smith’s arrest, the defendant’s question, “Were you arrested and charged with stabbing me?” was not unfair and did not prejudice the state’s case in such a way that the state needed to clarify it. Conversely, the introduction of Smith’s acquittal greatly prejudiced the defendant’s case. A juror would likely reason that because another jury refused to hold Smith accountable for the stabbing, the defendant must have been the aggressor in the incident and Smith merely acted in self-defense.

The state maintains that even if the trial court improperly allowed Smith to testify to his acquittal on redirect, the error was harmless. The test for harmful error is whether it is more probable than not that the result of the trial would have been different without the introduction of the evidence. State v. Belle, 215 Conn. 257, 268, 576 A.2d 139 (1990). “ ‘Any improper evidence that may have a tendency to . . . influence the judgment, of the jury, cannot be considered as harmless.’ ” State v. Loughlin, 149 Conn. 21, 26, 175 A.2d 367 (1961); State v. Sierra, 213 Conn. 422, 437, 568 A.2d 448 (1990). Where the alleged error is not of constitutional magnitude, the burden rests with the defendant to establish the harm of the court’s error. State v. Sierra, supra, 436. We conclude that the defendant has met this burden.

From the testimony presented at trial, the jury was aware that there was an altercation between Smith and the defendant that resulted in Smith’s stabbing the defendant. The jury also knew that Smith was arrested for the stabbing. There was conflicting evidence presented at trial, however, as to who was the aggressor in the incident. Smith’s version clearly implicated the defendant as the aggressor. In the tape-recorded conversation between the defendant and the police immediately following the incident, the defendant said that Smith stabbed him without provocation. The jurors’ decision whether to convict the defendant, therefore, turned largely on their assessment of Smith’s credibility. Once the court allowed into evidence the fact that another jury had acquitted Smith, however, it is more probable than not that this jury reasoned that the defendant was the aggressor and that Smith stabbed him in self-defense. Evidence of Smith’s acquittal buttressed his credibility to such an extent that the jury was unlikely to doubt his version of the events. Thus, the evidence of Smith’s acquittal influenced the judgment of the jury and affected the outcome of the trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Neither the state nor the defendant asked for a limiting instruction regarding the purpose for which the jury should use the evidence of Smith’s acquittal.

       In its brief, the state contends: “The state’s direct simply presented Smith’s version of the altercation and its immediate aftermath, which included, incidentally and in neutral terms, the fact of his going to the police station in handcuffs, receiving the warnings of constitutional rights and giving a statement. There was no mention of ‘arrest’ or ‘charges.’ ”

       As a result of our conclusion, we find it unnecessary to address the defendant’s remaining claims.


author: Daly, J.

text:
    State of Connecticut v. Richard Salz
    (9553)
    Daly, Foti and Heiman, Js.
    Argued October 29, 1991
    decision released January 28, 1992

      Rosemarie Paine, certified legal intern, with whom were Todd D. Femow and Dennis Spector, certified legal intern, and, on the brief, Catherine Gallo, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, with whom was Michael Dearington, state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l). The defendant claims (1) that the trial court incorrectly instructed the jury as to the meaning of recklessness, the mental state necessary for a conviction under § 53a-56 (a) (1), and (2) that there was not sufficient evidence of the defendant’s awareness of and conscious disregard of a substantial and unjustifiable risk that death would result from his conduct to support his conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant, a licensed electrician with thirty-one years experience, was asked to rewire his neighbor’s kitchen. The neighbor agreed to pay the defendant $1200 for his services. The defendant was, among other things, to provide and install two baseboard heaters, one in the kitchen and the other in the basement. The defendant began the job in September of 1988, returning on three or four occasions over the next month to complete the job. On November 8, 1988, on his last visit, he installed the basement heater and connected it to the circuit breaker box and was paid $1000 for his services to date. The job was not yet completed and the neighbor expected the defendant to return to complete it. The defendant told his neighbor that both heaters he installed were operable.

The neighbor first used the basement heater for only one hour shortly before Christmas. On December 28, the basement heater was left on during the night. At about 1 a.m., the neighbor awoke and smelled smoke. He then discovered that there was a fire on the basement rug coming from the back of the heater installed by the defendant. Believing the fire was small, he initially went to the kitchen to get water to attempt to put out the fire himself. Upon his return, the basement was engulfed with flames. He then proceeded to the second floor to get his wife and two grandchildren out of the home. The neighbor, his wife and one of his grandchildren were all able to escape the fire, while one child remained in the home. Attempts to reenter the home were unsuccessful because the fire had spread to the second floor. Firefighters from the town of East Haven were unable to save the child. An autopsy revealed that the cause of the child’s death was carbon monoxide inhalation.

At trial, the state presented several witnesses who testified about the cause of the fire and the fire code’s requirements concerning electrical work. Frederick Brow, fire marshal of the town of East Haven, arrived at the scene of the fire at approximately 2 a.m. On the basis of his investigation, Brow concluded that the electric heater in the basement malfunctioned and caused the fire. Brow did not find any trace of an accelerant that would have caused a fire. He thus ruled out arson. There was also no evidence of cigarette smoking in the house or any type of damage indicating that the cause of the fire was a lit cigarette. Brow was unable to locate the remains of a lock nut on the cable connecting the heater to the circuit box. Upon learning that the defendant performed the electrical work, Brow tried to inspect the defendant’s warehouse which contained his electrical supplies but was denied entry by the defendant. The defendant admitted that the heaters he installed were from his warehouse.

The state also called the assistant state building inspector, Lawrence Acquarulo, an electrical inspector, to testify as an expert witness. Acquarulo is responsible for inspecting all electrical installations to ensure that they comply with the national electrical code. He testified that Connecticut law requires compliance with the national code, a set of minimum electrical requirements. Acquarulo noted that the defendant had been issued an inspector’s license from the state of Connecticut and in the past had been the electrical inspector for the town of Wallingford. Acquarulo’s investigation of the fire scene revealed several violations of the code that could have resulted in the heater’s ignition.

Acquarulo stated that the defendant installed the basement heater beneath an electrical outlet. He felt that this location was in violation of the heater manufacturers’ instructions. Acquarulo further testified that the basement heater was clearly stamped as being a 120 volt unit, yet it was wired to a 240 volt circuit. According to his testimony, a 120 volt heater generally has two wires completing the circuit. One wire is connected to the electrical wire through a circuit breaker and the other wire is connected to a ground or neutral terminal in the junction box. In this case, both wires had been spliced to power producing lines on the circuit breakers instead of having just one wire connected through a circuit breaker. Thus, 240 volts were brought to the heater.

Acquarulo further testified that the BX cable used to connect the heater to the circuit breaker was not secured with a lock nut. A lock nut fastens the metal clamps connecting the metal sheath encircling the electrical wire to the heater. The installation of the lock nut creates a grounding condition known as bonding which could have prevented a fire when the overheating occurred. The circuit breaker operates to terminate the electrical current if an excessive amount of current is being transmitted to a heater. There was also testimony that the heater’s internal thermostat did not function properly. A working thermostat would have automatically turned the heater off once it began to overheat.

Other violations of the national code that Acquarulo noticed included the absence of a bar on the handle connecting the two circuit breakers. This bar enables both circuit breakers to trip whenever one breaker registers a fault. The installation of a bar is required if the wiring includes 240 volts. Another violation was the multiple splices of the wire through the circuit breaker panel. Acquarulo concluded his testimony by noting that many of these violations were uncommon and that he had never witnessed this many violations at one site.

Thomas Haynes also testified as an expert witness to the findings of his separate investigation of this fire. He agreed with Brow that the heater caused the fire and with Acquarulo concerning the many violations of the national electrical code by the defendant. He further testified about the thermal cutout discs in the heater. Thermal cutout discs are factory installed heat activated switches that trip and shut off power when an appliance overheats. According to Haynes’ investigation, because the heater was improperly wired, the thermal discs failed to operate properly. Haynes testified that the defendant’s failure to get a permit from the town building department also violated the state electrical code.

The defendant was the sole witness to testify for the defense. He first noted that he did the electrical work for his neighbor as a favor and that he received no profit from the job. He spoke of his extensive experience as an electrician, noting that he had installed and wired “tens of thousands of electrical baseboard heaters.” He maintained that he correctly wired the heater on a 120 volt circuit rather than on a 240 volt circuit. He was sure of this because he remembered testing the heater twice after his installation. It was his testimony that if he had incorrectly wired the heater to a 240 volt circuit, the heater would immediately become very hot and make a humming noise. Because this did not occur, he concluded that the heater was installed properly. The defendant also disputed the evidence about the absence of a lock nut, claiming that he had installed a lock nut on the heater. He also denied having made any of the splices that were observed by Aquarulo.

The defendant further asserted he had installed a “piggyback” circuit breaker to accommodate both heaters because the circuit panel was full. The circuit breaker box was admitted into evidence, however, and the piggyback breaker was not attached to it. The defendant claimed that someone must have tampered with his installation of the heater. The defendant acknowledged that the installed heaters were purchased at an auction at a substantial discount. He first testified that all the heaters he bought were new and in their original cartons. When evidence presented by the state indicated that the heaters had been previously used, he later admitted that not all the heaters were new. The defendant denied ever preventing Brow from inspecting his warehouse. The defendant claimed that he believed that homeowner was required to obtain the permit for the electrical work. He warned his neighbor that if the neighbor did not get a permit, the neighbor would be assuming full responsibility for the work.

I

The defendant first claims that the trial court incorrectly instructed the jury on the meaning of recklessness, as defined in General Statutes § 53a-3 (13), in its instructions to the jury. The defendant contends that instead of defining recklessness, the court gave the statutory meaning of criminal negligence, thus relieving the state from having to prove that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk of death beyond a reasonable doubt as required by General Statutes § 53a-56. The concept of criminal negligence involves an actor’s “fail[ure] to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” General Statutes § 53a-3 (14). The defendant contends that the trial court’s instructions allowed the jury to convict him of criminally negligent homicide, a lesser degree of homicide defined in General Statutes § 53a-58, rather than the charged crime of manslaughter in the second degree. At trial, the defendant neither objected to or took exception to the court’s instructions on recklessness.

This claim is raised for the first time on appeal and the defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). “State v. Golding, supra, establishes that a defendant cannot prevail on an unpreserved constitutional claim unless all four conditions are met, any one of which may be considered first.” State v. Shaw, 24 Conn. App. 493, 497, 589 A.2d 880 (1991). According to the third prong of Golding, the defendant can prevail only if the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 240. The defendant has failed to establish that the court’s instructions amounted to a constitutional violation that deprived him of a fair trial.

The trial court’s instructions should give the jury “a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.” State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974). In its original charge, the court emphasized the definition of recklessness by reading the statutory definition twice to the jury. This stressed the importance of finding that the defendant was actually aware of and then consciously chose to disregard a substantial and unjustifiable risk. By stressing “He is aware of and consciously disregards ...” the court correctly distinguished the difference between recklessness and the different mental state required for criminal negligence. The court repeated the statutory definition a third time when the jury asked for clarification of the meaning of recklessness. It is proper for the court when instructing the jury to read the statutory provision that is involved in the case. State v. Criscuolo, 159 Conn. 175, 177, 268 A.2d 374 (1970). The language of § 53a-3 (13), requiring for a “reckless” act that the defendant consciously realize a substantial and unjustifiable risk, was capable of being understood by the average juror so that the reading of the exact language did not mislead the jury and therefore was proper. State v. Criscuolo, supra.

General Statutes § 53a-3 (13) also incorporates an objective element by defining a “substantial and unjustifiable risk” to “be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” General Statutes § 53a-3 (13); see State v. Ghiloni, 35 Conn. Sup. 570, 573, 398 A.2d 1204 (1978). The trial court’s original charge and subsequent instructions fairly explained the objective aspect of § 53a-3 (13). The defendant focuses on the part of the charge dealing with the objective element of § 53a-3 (13) to substantiate his claim that the court instructed that the defendant could be convicted if he was only criminally negligent by failing to perceive the risk of a fire through his improper wiring. General Statutes § 53a-3 (13) required the court to define and explain the objective standard of care of a reasonable person. The court specifically applied that standard by instructing the jury to compare the defendant’s actions with what a “reasonably prudent person acting as an electrician” would have done in order to determine if the defendant’s conduct constituted a gross deviation in this case.

In State v. Bunkley, 202 Conn. 629, 654-55, 522 A.2d 795 (1987), the defendant claimed that the trial court incorrectly explained the meaning of recklessness. Our Supreme Court upheld the defendant’s conviction even though the trial court had omitted the subjective element of § 53a-3 (13), concerning the defendant’s actual awareness of and conscious disregard of a risk, while summarizing the definition of recklessness. State v. Bunkley, supra, 655. In Bunkley, the trial court twice gave the jury the correct definition of recklessness, which included the element of awareness of and conscious disregard of the risk. The jury then asked for further clarification and the trial court responded by reading the full statutory definition of recklessness. Id., 655-56. Our Supreme Court concluded that the three correct definitions of the meaning of recklessness properly informed the jury of the necessary elements for determining the defendant’s mental state. Id., 656.

In the present case, the trial court stressed the subjective element of § 53a-3 (13) by reading it twice to the jury in its original charge. In response to the jury’s question, the court read the complete statutory definition of recklessness. Thus, the jury was properly instructed that in order to convict the defendant it had to find that he was aware of and consciously disregarded a risk. There was no omission of the subjective element of recklessness in any of the court’s instructions to the jury.

The defendant also attacks that portion of the charge in which the trial court instructed the jury that a charge of recklessness does not require the state to prove the defendant’s intent. This is a correct statement of law that the defendant concedes in a footnote to his brief. “Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result.” State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986). Therefore, the court’s statement that proof of intent is unnecessary was also a correct statement of law that did not mislead the jury.

A criminal defendant is entitled to “jury instructions that are accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.” State v. Butler, 207 Conn. 619, 636-37, 543 A.2d 270 (1988). Unless there is evidence to the contrary, the jury is presumed to follow the court’s instructions. State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987); State v. Jupin, 26 Conn. App. 331, 350, 602 A.2d 12 (1992). The trial court satisfied its duty to give proper jury instructions in this case. As to the elements of the offense charged, the defendant has failed to establish the existence of a constitutional violation that deprived him of a fair trial.

The defendant has also failed to provide any proof that the trial court’s instructions constituted plain error. Because of our conclusion that the instructions on recklessness were proper, the defendant’s claim does not constitute plain error.

II

The defendant next argues there was insufficient evidence from which the jury could conclude that he was actually aware of and consciously disregarded a substantial and unjustifiable risk that a death would result from his improper electrical work. He further argues that the evidence offered by the state failed to preclude the reasonable hypothesis that the defendant’s actions constituted only negligence and not recklessness thus entitling him to a judgment of acquittal on the charge of manslaughter in the second degree pursuant to § 53a-56 (a) (1).

“The two-part test for appellate analysis of a claim of evidentiary insufficiency is well established. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” State v. Montanez, 219 Conn. 16, 19, 592 A.2d 149 (1991). It should also be noted that “[i]n this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Allen, 216 Conn. 367, 381, 579 A.2d 1066 (1990).

We begin our analysis by agreeing with the defendant that to establish a charge of recklessness the state is required to prove that he subjectively realized and consciously decided to ignore a substantial risk that death by fire could occur from his improper wiring of the house. Because of the inherent difficulties of proving the subjective element of recklessness by direct evidence, courts have recognized that “ ‘[t]he state of mind amounting to recklessness may be inferred from conduct.’ ” State v. Bunkley, supra, 645, quoting Mooney v. Wabrek, 129 Conn. 302, 308, 27 A.2d 631 (1942). Therefore, the “subjective realization of a risk may be inferred from a person’s words and conduct when viewed in light of the surrounding circumstances.” State v. Ghiloni, supra, 573; W. LaFave & A. Scott, Criminal Law (2d Ed.) § 30. “ 'Recklessness’ in causing a result exists when one is aware that his conduct might cause the result, though it is not substantially certain to happen.” 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.7, p. 336.

The defendant admits that there was sufficient evidence establishing his miswiring of the heater as the legal cause of the victim’s death. The defendant was an experienced electrician and former electrical inspector who had installed similar heaters on many occasions. This case does not involve an inexperienced electrician or a lay person unfamiliar with the risk of fire from improperly wiring a heater. The evidence revealed that the main purpose of the national electrical code is to prevent fires. The defendant testified that, as an experienced electrician and former inspector, he attended seminars that updated information concerning the state’s electrical code requirements. Thus, the defendant knew that compliance with the electrical code was necessary in order to prevent the possibility of a fire. Despite knowledge of the electrical code, the defendant still chose to install a basement heater lacking many basic safety features.

The defendant also installed the heater beneath an electrical outlet thereby increasing the likelihood of a fire. The evidence also revealed that the heater lacked a lock nut and a properly functioning internal thermostat which further increased the likelihood that overheating would result in a fire. Despite the defendant’s claim that he installed a lock nut, the jury was free to disbelieve him. When reviewing “evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985). We emphasize that this proposition applies only to inferences drawn from the evidence by the jury and not to whether a conclusion of innocence could be reasonably drawn from the evidence. Id., 618. This course of behavior by an experienced electrician allowed the jury to conclude that the defendant was aware that his behavior might cause a fire that could result in the death of a person in the house.

The defendant, relying on State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990), argues that the state failed to disprove the reasonable hypothesis that the defendant’s actions constituted only negligence and not recklessness. According to the defendant, because the evidence indicated that the defendant possessed the lesser mental state associated with criminal negligence, there existed a reasonable hypothesis consistent with innocence that entitled him to a judgment of acquittal on the charge of reckless manslaughter. “A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984). Thus, “[pjroof of guilt must exclude every reasonable supposition of innocence. It need not exclude every possible supposition of innocence.” State v. Englehart, 158 Conn. 117, 121, 256 A.2d 231 (1969); State v. Turner, 24 Conn. App. 264, 270-71, 587 A.2d 1050, cert. denied 218 Conn. 910, 591 A.2d 812 (1991).

The jury was free to examine the defendant’s “whole course of conduct” in determining whether the defendant recklessly caused the death of the victim. State v. Knighton, 7 Conn. App. 223, 237, 508 A.2d 772 (1986). The defendant argues that there was no direct evidence establishing why he consciously disregarded a substantial risk of death. He contends that the miswiring of the 120 volt heater to a 240 volt circuit is at most negligent conduct but does not rise to the level of criminal recklessness.

The testimony of the state’s witnesses as to the number and degree of violations of the electrical code established proof of a reckless disregard of a substantial risk of fire by the defendant. Acquarulo stated that he had never encountered that many violations of the electrical code at one site in all of his experience as an electrical inspector. Our review of all the evidence leads us to conclude that there was sufficient evidence proving that the defendant recklessly caused the death of the victim. The conclusion that the defendant’s conduct constituted only criminal negligence is not reasonably supported by the evidence in this case. It is only a “possible supposition” similar to the defendant’s claim that another person must have tampered with his work. Thus, the defendant was not entitled to a judgment of acquittal based on the reasoning of State v. Carpenter, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-56 provides in pertinent part: “(a) A person is guilty of manslaughter in the second degree when (1) he recklessly causes the death of another person . . . .”

       General Statutes § 53a-3 (13) provides: “A person acts ‘recklessly’ . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

       A defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       We note that we examined this claim even though the defendant requested both Emns-Golding and plain error review in a footnote. In the past, this court has refused to consider improperly briefed claims and arguments presented in footnotes. See State v. Reddick, 15 Conn. App. 342, 343, 545 A.2d 1109, cert denied, 209 Conn. 819, 551 A.2d 758 (1988). All parties are advised not to continue this practice of using footnotes to circumvent the page limitations for briefs.