author: FOTI, J.

text:
    CARISSA BONITO v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY
    (AC 20930)
    Foti, Flynn and Peters, Js.
    Argued May 9
    officially released July 24, 2001

      Jon D. Biller, for the appellant (plaintiff).

      Stuart G. Blackburn, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Carissa Bonito, appeals from the judgment of the trial court denying her motion for a declaratory judgment. The plaintiff sought a declaratory judgment concerning the interpretation of an insurance policy that she purchased from the defendant, Cambridge Mutual Fire Insurance Company. The plaintiff claims that the court improperly ignored the plain language of the policy and an endorsement to the policy. She also claims, in the alternative, that “at the very minimum the parties have set forth alternative plausible interpretations of the same policy language” and that the court improperly failed to accept her interpretation of the endorsement. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our analysis. In April, 1997, the plaintiff renewed her home insurance policy with the defendant. Section I of the policy delineated the defendant’s liability limits as follows: $95,000 for loss of the dwelling (coverage A); $9500 for loss of accessory structures (coverage B); $66,500 for loss of personal property (coverage C); and $19,000 for loss of use (coverage D). The plaintiff also purchased from the defendant supplemental insurance, known as a “Superior Home Guaranteed Repair or Replacement Cost Protection Endorsement” (endorsement). On February 17, 1998, fire destroyed the plaintiffs home.

The plaintiff and the defendant did not agree on the defendant’s liability for the plaintiffs losses. Specifically, the parties adopted different positions concerning the endorsement’s effect on the plaintiffs policy. In February, 1999, the plaintiff filed a complaint against the defendant that included claims for breach of contract and negligence, and a request for declaratory relief. In July, 1999, the plaintiff filed a motion for a declaratory judgment in which she requested that the court rule that the endorsement provides that “when coverage A for her building increases, coverages B, C and D relating to other structures, personal property and loss of use, respectively, are increased proportionally.” In other words, the plaintiff wanted the court to accept her interpretation of the policy, namely, that the endorsement not only permitted her to recover the full replacement cost in excess of her policy limit for the loss of her dwelling, but also that it permitted her to collect in excess of her policy limits under the other coverages set forth in her policy. She argues that the endorsement increased the Lability limits under coverages B, C and D because those coverages were based on a percentage of coverage A, and that the endorsement exceeded coverage A’s limit to the actual replacement cost of her dwelling.

The court denied the plaintiffs motion for a declaratory judgment. The court concluded that the policy’s plain language did not support the plaintiffs interpretation and that “[w]hen read in context and viewed in its entirety, the [endorsement] . . . indicates that the policy was intended to provide replacement cost insurance only for the plaintiffs dwelling (Coverage A).”

We first set forth our standard of review. “It is the function of the court to construe the provisions of the contract of insurance. Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). Our review of the trial court’s decision of this issue is de novo. Unlike certain other contracts . . . where . . . the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . construction of a contract of insurance presents a question of law for the court which this court reviews de novo. . . . Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991). Flint v. Universal Machine Co., 238 Conn. 637, 642-43, 679 A.2d 929 (1996).” (Internal quotation marks omitted.) Jack A. Halprin, Inc. v. Hermitage Ins. Co., 58 Conn. App. 598, 600, 753 A.2d 954 (2000).

Well established principles guide our interpretation of the policy. “The [interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy. . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy. . . . The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. ... A necessary predicate to this rale of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous. . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399, 757 A.2d 1074 (2000).

We now turn to the policy language at issue in the present case. As we set forth earlier in this opinion, the plaintiffs policy delineated liability limits, on the policy’s declaration page and elsewhere, in four separate categories or “coverages.” The endorsement amended the policy by permitting the plaintiff to receive the full repair or replacement cost of her dwelling in the event of loss, irrespective of the liability limit expressed for her dwelling under coverage A in her policy.

The plaintiff advances several arguments in support of her claim that the court improperly denied her motion for a declaratory judgment. First, she argues that the defendant’s use of the word “amounts” in the first sentence of the endorsement indicates that it increased her policy’s limits with respect to losses arising under coverages B, C and D, as well as the coverage increase concerning her dwelling under coverage A. Second, she points out that the endorsement states that the defendant may adjust the premiums and limits of liability for coverages A, B, C and D, and claims that this is proof that all coverages are affected once coverage A is redetermined under the terms of the endorsement. Third, she argues that the policy demonstrates “the stated intent of the insurance company to make coverages B, C and D percentages of coverage A.” It follows, she argues, that once the endorsement reestablished the liability limit of coverage A, that the other coverages should increase proportionally. Last, the plaintiff argues that neither the endorsement nor the policy specifically states that the increase in coverage A per the endorsement would not affect the liability limits under the other coverages. We conclude, as did the trial court, that the policy and the endorsement are not ambiguous, and that the endorsement affected the plaintiffs benefits in regard to her dwelling only.

Certain provisions within the policy limit liability to a percentage of the stated liability limits of coverage A; liability under other sections of the policy is not based on the liability limits of coverage A. The endorsement is unambiguous. Read in its entirety, the endorsement unequivocally indicates that it applies to the plaintiffs dwelling. Nothing in the endorsement implies that it affects any other provisions of the policy or confers any proportional increase in coverages B, C or D whatsoever. To the contrary, it indicates that all other provisions of the policy apply. Moreover, the endorsement specifically describes that provision of the policy that it amends; it did not in any way amend the policy’s coverage limits. The mention of coverages A, B, C and D in the conditional portion of the endorsement does not affect our analysis. Requiring the plaintiff to permit the defendant to adjust the premium and limits of liability under those coverages does not in any way imply that the endorsement increased her coverage with regard to anything but her dwelling.

The plaintiff argues that the endorsement does not unambiguously state that “once coverage A is established under the terms of the guaranteed replacement cost endorsement, the insured loses the expectation that her contents, additional living expenses and other structures coverage remain as a specific percentage of the increased coverage A limit.” The insurance policy did not need to so state because nothing in the endorsement purported to affect the policy’s liability limits.

Reading the policy and the endorsement as a whole and considering all relevant provisions; see Jack A. Halprin, Inc. v. Hermitage Ins. Co., supra, 58 Conn. App. 601; we conclude that all of the liability limits expressed on the policy’s declaration page remained in effect after the endorsement became effective. The endorsement did not reset or alter the policy limits or even the policy limit for coverage A. Rather, it provided additional coverage “which may exceed the limit of liability which applies to Coverage A ... .” The endorsement did not suggest that coverage A’s stated liability limit or the liability limits set forth for any other coverages were no longer valid. To accept the plaintiffs interpretation of the policy would render the liability limits meaningless and would require us to import into the endorsement language or a meaning that is not there. “When the plain meaning and intent of the language is clear, a clause . . . cannot be enlarged by construction. There is no room for construction where the terms of a writing are clear and unambiguous, and it is to be given effect according to its language.” (Internal quotation marks omitted.) Enfield Pizza Palace, Inc. v. Ins. Co. of Greater New York, 59 Conn. App. 69, 75-76, 755 A.2d 931 (2000).

The plaintiff emphasizes that the defendant’s use of the word “amounts” in the first sentence of the endorsement creates an ambiguity. She argues that it demonstrates that the endorsement affected more than just her dwelling coverage. We decline the plaintiffs invitation to take words and phrases out of context in an attempt to change their meaning. “ ‘[T]he individual clauses of a contract . . . cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part.’ Levine v. Advest, Inc., 244 Conn. 732, 753, 714 A.2d 649 (1998).” Enfield Pizza Palace, Inc. v. Ins. Co. of Greater New York, supra, 59 Conn. App. 76. Nothing in the endorsement created an ambiguity, and we will not “torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Internal quotation marks omitted.) Vitti v. Allstate Ins. Co., 245 Conn. 169, 177, 713 A.2d 1269 (1998).

The plaintiff further argues that we should examine certain other form replacement cost endorsements that, she argues, contain clearer language that the defendant could have used and that would have prevented this dispute as to the endorsement’s effect. She argues that we should consider those endorsements as evidence that the defendant’s endorsement did not alter the proportionality that existed between coverage A and coverages B, C and D. While the introduction of such extrinsic evidence is permissible when an ambiguity exists; see Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 255 Conn. 295, 306, 765 A.2d 891 (2001); we need interpret the terms of an unambiguous policy as they are written.

Likewise, the plaintiff argues that the court improperly failed to interpret the policy in her favor. Where an ambiguity in a policy’s terms is present, courts “often apply the contra proferentem rule and interpret a policy against the insurer.” (Internal quotation marks omitted.) Id. This rale does not apply, as here, where no ambiguity exists.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-29 (a) provides: “The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.” See also Practice Book § 17-54 (implementing provisions of § 52-29).

       The replacement cost endorsement is as follows: “SUPERIOR HOME GUARANTEED REPAIR OR REPLACEMENT COST PROTECTION ENDORSEMENT (For One and Two Family Dwellings Built Since 1925). For the premium charged, we agree to amend the present coverage amounts shown on the Declarations page in accordance with the provisions which follow: IF YOU HAVE: (1) When this Endorsement is issued agreed to insure your Dwelling under Coverage A to 100 [percent] of full replacement cost using an appraisal method acceptable to us; and (2) Allowed us at each anniversary date of this policy to adjust the premium and limits of liability for Coverages A, B, C and D and to adjust for inflation so that the limit for Coverage A equals the full replacement cost of the dwelling; and (3) Informed us, within 30 days of completion, of changes made to the dwelling during the policy tern which increased the replacement cost of the dwelling 5 [percent] or more; and if you have purchased additional insurance for your Coverage A equal to the amount of such cost and informed us as soon as you made this change to your dwelling; and (4) Elected to repair or replace the damaged building. WE WILL AMEND THE POLICY TO DELETE PARAGRAPH b. OF ‘3. LOSS SETTLEMENT’ UNDER ‘SECTION 1 — CONDITIONS’ AND REPLACE IT WITH THE FOLLOWING: b. Buildings under Coverage A at replacement cost without deduction for depreciation, subject to the following: (1) We will pay the cost or replace without deduction for depreciation, but not exceeding the smallest of the following amounts. We agree that this amount may exceed the limit of liability which applies to Coverage A: (a) The cost to replace the damaged part of the building with the same materials and for the same use. (b) The amount you had to spend to repair or replace the damaged building. (2) When the cost to repair or replace the damage is more than $2500 or more than 5 [percent] of the amount of insurance on the building, whichever is less, we will pay no more than the actual cash value of the damage until actual repair or replacement is completed. You may disregard this replacement cost provision and make claim for loss or damage on an actual cash value basis. Then you can make claim within 180 days after loss for any additional liability brought about by this provision. This policy does not apply to land, including land on which the building or structures are located. All other provisions of this policy apply.”


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSEPH JAMES
    (AC 19910)
    Dranginis, Flynn and O’Connell, Js.
    Argued April 2
    officially released July 24, 2001

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Victor Carlucci, Jr., assistant state’s attorney, for the appellant (state).

      Nicholas P. Cardwell, with whom, on the brief, was Matthew J. Costello, for the appellee (defendant).
   Opinion

O’CONNELL, J.

The genesis of this case was the prosecution of the defendant on five drug charges. The trial court granted the defendant’s motion to suppress his voluntary statement and evidence of a shipping receipt, which decision led to a dismissal of the charges. Pursuant to General Statutes § 54-96, the state requested permission to appeal, which the court denied. The state now appeals from that denial, as well as from the granting of the motion to suppress. We dismiss the appeal.

The following facts and procedural history are relevant to our disposition of this appeal. Federal Express informed West Hartford police that, using drug-sniffing dogs, they had detected marijuana in two boxes addressed to the Har-Conn Chrome Company in West Hartford. West Hartford police opened the boxes at the Federal Express office, in the presence of the manager, and found a blue igloo cooler in each box. Further inspection and testing confirmed that the coolers contained approximately forty pounds of marijuana. The police removed most of the marijuana from one of the boxes, replaced it with sand and weights and resealed the box.

Officer Paul Melanson, posing as a Federal Express driver and wearing an undercover wire monitored by a surveillance unit, went to the office of the Har-Conn Chrome Company with the box containing the substituted contents. At the receiving area, he was met by a clerk, John Chen, who signed for the delivery. Melanson remained in the area and observed Chen open the box, look into it and remark to a person standing nearby that the package was “Joe’s.” He then observed Chen go to the public address system and page “Joe.” In an effort to remain inconspicuous, Melanson walked out of the building and then back in through another door to the receiving area. When he reentered, the box was gone. Attempting to follow the box to its ultimate recipient, Melanson approached Chen and told him that he had signed in the wrong place and that he needed to scan the package again.

At that point, the defendant entered the receiving area, and Chen pointed to him and indicated that the box was the defendant’s. The defendant complained to Melanson that there should have been two boxes delivered to him, and Melanson replied that he had only one box to deliver. The defendant left the building and walked down the driveway. Melanson, using the surveillance wire, informed the surveillance team that the person walking down the driveway was the man who had received the box. The surveillance team, positioned outside the building, approached the defendant, ordered him to the ground at gunpoint, handcuffed him and patted him down. During the search of the defendant, the officers found a Federal Express shipping receipt in his possession.

The officers obtained consent to search the building from the company vice president and located the package under a work booth in the factory area. No evidence was introduced to connect the defendant with that area. Melanson never saw the defendant in possession of the box, but he asked Chen who had taken the box from the receiving area, and Chen responded that it was “Joe.” The defendant was taken to the West Hartford police department where he gave a voluntary statement inculpating himself.

The court granted the defendant’s motion to suppress evidence of the shipping receipt and his written statement, and subsequently dismissed all counts. This was followed by the state’s motion for permission to appeal, which was denied. The state argues that the court abused its discretion in denying its request for permission to appeal. We are not persuaded.

The state contends that the court’s denial of permission to appeal constitutes an abuse of discretion if the state demonstrates that another court could resolve the issue in a different manner. Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). We do not agree. The state’s reliance on Seebeck v. State, 246 Conn. 514, 534, 717 A.2d 1161 (1998), and Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994), to support this position is misplaced. Neither case involves § 54-96, which is the statute at issue here. Seebeck implicates General Statutes § 54-95 (a) and concerned the review of a denial of a request for certification to appeal from the denial of a petition for a new trial, and Simms concerns General Statutes § 52-470 (b) and involved the review of a denial of a petition for certification to appeal from the dismissal of a habeas corpus petition. Both statutes are designed to provide a defendant with a statutory right to appeal, while § 54-96 concerns the stale’s right to appeal. The state has not cited, nor are we aware of, any cases that apply the test set forth in Lozada to cases involving § 54-96. In fact, in reviewing an appeal under § 54-96, our Supreme Court has held the exact opposite of the state’s position by stating that “the question of determining whether a trial court has abused its discretion does not depend upon whether a reviewing court would have reached the same conclusion.” State v. S & R Sanitation Services, Inc., 202 Conn. 300, 311-12, 521 A.2d 1017 (1987).

It is well settled that “[t]he right to an appeal is not a constitutional one. . . . The right of the state to appeal in criminal cases is granted only by statute.” (Citation omitted; internal quotation marks omitted.) State v. McMillan, 51 Conn. App. 676, 679-80, 725 A.2d 342, cert. denied, 248 Conn. 911, 732 A.2d 179 (1999). Section 54-96 provides limited authority for appeal by the state. “In cases arising under § 54-96, we have inquired, on appeal, whether the record demonstrates that the denial of permission to the state to appeal constituted a clear and extreme abuse of discretion or resulted in an apparent injustice.” Simms v. Warden, supra, 230 Conn. 615. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling . . . [and] [Reversal is required only where an abuse of discretion is manifest or where injustice appeal's to have been done.” (Internal quotation marks omitted.) Walker v. Commissioner of Correction, 223 Conn. 411, 414, 611 A.2d 413 (1992), overruled in part on other grounds, Simms v. Warden, 229 Conn. 178, 185-86 n.12, 640 A.2d 601 (1994).

“The court’s granting or denial of the state’s motion to appeal constitutes a ‘judicial determination’ within the court’s discretion. . . . Ordinarily this court will not review rulings made in the exercise of a court’s discretion. ... In those cases of manifest abuse, however, where injustice appears to have been done, this court will grant review to determine whether the court’s exercise is ‘so unreasonable as to constitute an abuse of discretion.’ . . . Section 54-96 does not, therefore, preclude an appeal by the state seeking review of the court’s denial of permission to appeal in those unusual cases in which . . . the court’s denial was so arbitrary as to constitute an extreme abuse of discretion rendering the denial ineffective.” (Citations omitted.) State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977). The issue before us, therefore, is whether such a clear, arbitrary and extreme abuse of discretion is evident so that it is apparent that an injustice has been done.

When asked why it had denied permission to appeal, the court replied that there had been a full evidentiary hearing on the suppression motion, at which the state offered witnesses and argument followed by motions for articulation and reargument. The court’s function was to find facts and to apply the law to those facts, a function that the court properly performed. We cannot overturn the court’s fact-finding if there is a sufficient basis in the evidence. See American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 717, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001). The record discloses that there was a sufficient basis in the evidence to support the court’s finding on the suppression motion. Accordingly, when a trial court has made a ruling based on the evidence, the denial of permission to appeal is within its discretion. The record here does not disclose such clear, arbitrary and extreme abuse of discretion that we can conclude that an injustice appears to have been done.

The trial court did not abuse its discretion in denying the state’s motion for permission to appeal under § 54-96. Because that permission is crucial under the statute for an appeal to be viable and, a fortiori, for our subject matter jurisdiction, we have no such jurisdiction under the circumstances of this case. This requires that we dismiss the appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendant was charged with (1) criminal attempt to possess four ounces or more of marijuana in violation of General Statutes §§ 53a-49 (a) (2) and 21a-279 (b), (2) possession of four ounces or more of marijuana in violation of General Statutes § 2 la-279 (b), (3) conspiracy to transport with intent to sell one kilogram or more of marijuana in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b), (4) criminal attempt to possess with intent to sell one kilogram or more of marijuana in violation of § 53a-49 (a) (2) and 21a-278 (b), and (5) possession with intent to sell one kilogram or more of marijuana in violation of § 21a-278 (b).

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       Chen identified the package as belonging to “Joe” by an American flag that he saw upon opening the box. There is no evidence that Chen opened the igloo cooler.

       See footnote 3.


text:
    ALEX VISOKY ET AL. v. LEANDRE G. LAVOIE
    (AC 20679)
    Schaller, Spear and O’Connell, Js.
    Argued March 19
    officially released July 24, 2001

      William J. Melley III, with whom, on the brief, were Deirdre J. Lewis and Kerry A. Rousseau, for the appellant (defendant).

      Harvey L. Backmender, for the appellees (named plaintiff).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of the trial court rendered after it set aside the jury’s verdict in his favor and ordered a new trial. The defendant claims that the court improperly (1) substituted its own opinion for that of the jury and (2) considered postverdict ex parte jury comments. We reverse the judgment of the trial court and direct that the court on remand reinstate the jury verdict in favor of the defendant.

The jury reasonably could have found the following facts. The defendant was operating a minivan at a slow rate of speed on Marshall Phelps Road in Windsor, which is a two-way, two-lane road. The defendant’s vehicle was positioned mostly in the right travel lane and partially on the right shoulder. As the named plaintiffs vehicle, a taxicab, overtook the defendant’s minivan, it turned to the left in an attempt to pass the minivan. At that point, the defendant began to turn his vehicle to the left, intending to enter a driveway on the left side of the road. The defendant’s vehicle collided with the right rear quarter panel of the named plaintiffs vehicle. The plaintiffs thereafter brought this action against the defendant, claiming bodily injuries and damage to the taxicab.

Following the conclusion of the evidence, the court instructed the jury on the law, including an indisputably correct instruction on the law of comparative negligence. Neither party took exception to the charge nor submitted interrogatories to the jury. The jury did not report any confusion or seek clarification from the court on any portion of the instruction. On July 6, 1999, after a period of deliberation, the jury returned a verdict for the defendant. The court ordered the verdict accepted and recorded, thanked the members of the jury for their service and discharged them. The jury left the courtroom, and shortly thereafter court adjourned.

A short time later, the trial judge entered the jury room to again thank the jurors for their service and heard comments that led her to believe that some of the jurors had misinterpreted her comparative negligence instruction. Thereafter, counsel for the parties spoke with two members of the jury and reported the same discovery to the trial judge in chambers. On July 14, 1999, the plaintiffs filed a motion to set aside the verdict on the basis of the jury’s failure to follow correctly the court’s instructions and because the verdict was contrary to the evidence. During a hearing held on the motion on October 15, 1999, the court recounted its conversation with the jury. That was the first reference in the record to the court’s conversation with the jury. On March 29, 2000, the court granted the plaintiffs’ motion and ordered a new trial.

In its memorandum of decision, the court found that although the jury reasonably and legally could have found the plaintiffs to be comparatively negligent, on the basis of the weight of the evidence that negligence could not have reasonably or legally exceeded 50 peicent. The court further stated that its conclusion was buttressed by the postverdict discussions with the jurors by the court and counsel for both parties.

“We review the trial court’s action in granting or denying a motion to set aside a verdict by an abuse of discretion standard. ... A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied.” (Citation omitted; internal quotation marks omitted.) Card v. State, 57 Conn. App. 134, 138, 747 A.2d 32 (2000). “A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. . . . This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury. ... In reviewing a trial court’s decision to set aside a jury verdict, we must consider the evidence in the light most favorable to the party who succeeded before the jury. . . . While an appellate court must give great weight to a trial court’s decision to set aside a verdict, an appellate court must carefully review the jury’s determinations and evidence, given the constitutional right of litigants to have the issues decided by a jury. . . . An appellate court, therefore, in reviewing whether a trial court abused its legal discretion, must review the entire record and [all] the evidence.” (Citations omitted; internal quotation marks omitted.) PAR Painting, Inc. v. Greenhome & O’Mara, Inc., 61 Conn. App. 317, 322-23, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001). “Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached. . . . [I]f there is a reasonable basis in the evidence for the jury’s verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will.” (Citations omitted; internal quotation marks omitted.) Wickers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000).

In nearly all motor vehicle accident cases, the jury must resolve many factual questions such as the speed of the vehicles, the positioning of the vehicles on the road, the conduct of the operators, the credibility of the parties and witnesses, damage to the vehicles, the extent of injuries to the parties, etc. It is well established that “[i]t is the privilege of the jury to believe or disbelieve any evidence and to attribute to any evidence whatever weight it feels is merited.” Preisner v. Illman, 1 Conn. App. 264, 267, 470 A.2d 1237 (1984). In this case, the jury returned a verdict showing that it chose to believe the evidence supporting a defendant’s verdict, and the court should not have intruded on that choice by the jury. See Opotzner v. Bass, 63 Conn. App. 555, 570, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001).

The court, in its memorandum of decision, stated that it found “that while the jury reasonably and legally could have found the plaintiffs to be contributorily negligent, that negligence could not have reasonably or legally exceeded 50 percent.” If the evidence is such that fair minded persons, acting fairly and honestly, might intelligently and reasonably have arrived at the jury’s verdict, despite room for a reasonable difference among them, then the jury’s verdict must stand regardless of the opinion of the court. Issues of negligence and contributory negligence ordinarily are ones of fact and should be reserved for the jury. In this case, there was credible evidence from which the jury reasonably could have found for the defendant. See Trzcinski v. Richey, 190 Conn. 285, 297, 460 A.2d 1269 (1983).

The evidence here was close, and a fair minded, reasonable, honest juror reasonably could have found greater fault on the part of the plaintiffs. When the court substituted its own opinion for that of the jury, it violated the defendant’s constitutional right to have issues of fact decided by a jury. See PAR Painting, Inc. v. Greenhome & O’Mara, Inc., supra, 61 Conn. App. 323.

In addition, the court used the postverdict conversations with the jurors to buttress its decision to set aside the verdict. Those conversations occurred off the record, and the court did not recall the jurors to conduct a hearing on the record. Because there is no record of the jurors’ comments for us to review, we cannot consider them in reviewing the court’s decision to set aside the verdict and order a new trial.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant on the verdict.

In this opinion the other judges concurred.

       The other plaintiff in this action is Edie’s Cab, Inc., the owner of the named plaintiffs vehicle.


text:
    HELEN L. WHITE v. IRVING BYELAS IRREVOCABLE TRUST ET AL.
    (AC 19760)
    Schaller, Pellegrino and O’Connell, Js.

      Argued November 28, 2000
    officially released July 31, 2001

      Suzannah K. Nigro, with whom, on the brief, was Dion W. Moore, for the appellant (defendant The Stop & Shop Supermarket Company).

      Lawrence F. Reilly, for the appellee (plaintiff).
   O’CONNELL, J.

The defendant The Stop & Shop Supermarket Company (Stop & Shop) appeals from the judgment rendered in favor of the plaintiff following a jury trial. The defendant claims that the court improperly refused to reduce the verdict by the amounts received by the plaintiff in settlement with other parties whose liability was apportioned by the jury. We affirm the judgment of the trial court.

This is a negligence action arising from injuries sustained by the plaintiff when she fell on snow and ice in the parking lot of the defendant’s Westport store. Stop & Shop leased the store and adjacent sidewalk from the defendant Byelas. The lease between Stop & Shop and Byelas allowed Stop & Shop to use an adjoining parking lot on Byelas’ property for its customers. Byelas hired T. Palmer Landscaping Company (Palmer) to plow snow from the parking lot.

Snow had fallen two days prior to the plaintiffs fall, and Palmer had plowed the parking lot. The plaintiff thereafter brought this action against Stop & Shop and Byelas, who subsequently impleaded Palmer for indemnification and apportionment. Prior to trial, the plaintiff settled with Byelas and Palmer for $15,000 and $7500, respectively, and released them from liability and withdrew the action as to Byelas, who in turn withdrew their third party complaint. The case then went to trial against Stop & Shop alone. Stop & Shop filed notice of its intent to claim apportionment against the settled and released parties, Byelas and Palmer.

The jury was instructed, pursuant to General Statutes § 52-572h, that it could apportion liability among the plaintiff, Stop & Shop and the released parties. The jury returned a plaintiffs verdict of $37,226.96 and apportioned Lability as follows: Stop & Shop, 30 percent; Palmer, 22.5 percent; Byelas, 7.5 percent; the plaintiff, 40 percent.

After a reduction of 40 percent from the $37,226.96 verdict, the plaintiff was entitled to receive $22,336.18 from the defendants. The plaintiff, however, already had received $22,500 from the pretrial settlements with Byelas and Palmer. Stop & Shop thereafter filed a motion to reduce the verdict against it to $1. The court denied the motion and Stop & Shop appealed, raising as its sole issue that the court improperly failed to recognize that when the amount of settlement proceeds exceeds the amount of a verdict attributable to settled and released parties who have been named as apportionment defendants, the court must reduce the remaining verdict by that excess. Stop & Shop contends that the plaintiff will receive a double recovery if the verdict is not reduced. General Statutes § 52-216a is the statutory authority for reduction of verdicts by a judge. In Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 591, 627 A.2d 443 (1993), we held that § 52-216a did not require the automatic subtraction of settlement amounts from jury verdicts. “[T]he test to be applied is whether the verdict so shocks the conscience as to compel a reviewing court’s conclusion that it was due to partiality, prejudice or mistake. . . . The verdict must fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” (Citation omitted; internal quotation marks omitted.) Id.

Stop & Shop does not challenge the court’s determination under the reasoning of Mauro that the amount of the verdict in this matter, when added to the amount of the preverdict settlements, does not shock the conscience. Rather, Stop & Shop contends that the common-law principles that (1) a plaintiff should not be compensated by an amount more than that which makes the plaintiff whole, and (2) the jury’s determination of fair and just compensation puts a cap on what the plaintiff can receive, should control. It argues that under those principles, the maximum sum that the plaintiff here could properly receive would be $22,336.18. We are not persuaded. The common-law rules relied on by the defendant apply to verdicts and not to pretrial settlements. No case has been brought to our attention that limits the amount that a plaintiff may agree to receive by way of settlement.

The history of tort reform in Connecticut supports our conclusion. Under the common-law rule of joint and several liability, an injured person was entitled to recover the entire amount of an award of damages from any defendant whose conduct proximately caused her injuries. Nash v. Yap, 247 Conn. 638, 644-45, 726 A.2d 92 (1999). Under the theory that the law will not aid a wrongdoer, there was no contribution between joint tortfeasors. D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 175, p. 528; A. Materese, “The No Contribution Doctrine,” 31 Conn. Bar J. 366 (1957). “In 1986, by enacting [Public Acts 1986, No. 86-338 (P.A. 86-338), known as Tort Reform I], the General Assembly replaced the common-law rule of joint and several liability with a system of apportioned liability that holds each defendant liable for only his or her proportionate share of damages.” Nash v. Yap, supra, 645. Under Tort Reform I, money received from any collateral source could be deducted from a plaintiffs verdict. At that time, a “collateral source” was defined as “any payments made to the claimant, or on his behalf, (1) by any person as compensation for personal injury or wrongful death attributable to the incident giving rise to the cause of action . . . .” P.A. 86-338, § 5 (a). Only one year later, however, the General Assembly in Public Acts 1987, No. 87-227 (P.A. 87-227), known as Tort Reform II, amended Tort Reform I in response to criticism concerning some provisions of the earlier legislation. Nash v. Yap, supra, 639-40. “Tort Reform II redefined collateral sources by deleting the section quoted above and explicitly excludjed] settlement amounts as allowable deductions from damages awards.” Id., 649 n.15.

“Both Tort Reform I and Tort Reform II direct a trial court to reduce an injured party’s award for damages by the payments received from ‘collateral sources.’ See Fleming v. Garnett, 231 Conn. 77, 82, 92-93, 646 A.2d 1308 (1994). In principle, such reductions reflect the understanding that the entitlement of an injured party to be made whole does not include an entitlement to a double recovery for the same loss. Representing differing points of view about what makes an injured party whole, the two acts contain different definitions of ‘collateral sources.’ Under Tort Reform I, but not under Tort Reform II, settlements are treated as deductible collateral sources.” Nash v. Yap, supra, 247 Conn. 648-49.

Accordingly, the defendant might have prevailed during the brief time when Tort Reform I was the rule. It cannot prevail, however, under Tort Reform II as it now exists. The defendant does not argue that it is entitled to prevail under Tort Reform II. Its contention is that at the present time, there are no statutes that govern how preverdict settlements should be handled in evaluating damages. We do not agree.

Stop & Shop claims that this is a case of first impression and urges us to adopt the reduction of verdict rule for which it argues in this appeal. Our examination of the case law discloses that since § 52-216a was enacted in 1976, that statute has been the sole guide for courts in deciding whether a jury’s verdict should be reduced. We are furnished with no reason to bring a new rule into an area that is working well under the statute.

The judgment is affirmed.

In this opinion the other judges concurred.

       After the plaintiff withdrew the action as against the named defendant et al., the remaining defendants were The Stop & Shop Supermarket Company, The Stop & Shop Companies, Inc., Stop & Shop Holdings, Inc., and The Stop & Shop Supermarket Holdings Company. Only The Stop & Shop Supermarket Company has appealed. We therefore refer in this opinion to The Stop & Shop Supermarket Company as the defendant.

       The defendant Byelas is the Irving Byelas Irrevocable Trust, Leslie Byelas and Ruth Byelas. For simplicity, we refer in this opinion to those defendants collectively as Byelas.

       General Statutes § 52-216a provides in relevant part,: “If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. . .

       For a general discussion on the effect of tort reform, see G. Royster, Jr., “Joint and Several Liability and Collateral Sources Under the 1987 Tort Reform Act,” 62 Conn. Bar J. 257 (1988).

       Public Act. 86-338 was codified in General Statutes §§ 13a-149, 30-102, 52-102, 52-184c, 52-190a, 52-225a, 52-225b, 52-225c, 52-225d, 52-226a, 52-251c, 52-557m, 52-557n, 52-568 and 52-572h. Nash v. Yap, supra, 247 Conn. 639 n. 1.

       Public Act 87-227 was codified as General Statutes §§ 30-102, 52-102, 52-184c, 52-190a, 52-251c, 52-225a, 52-225b, 52-225c, 52-225d, 52-557m and 52-572h. Nash v. Yap, supra, 247 Conn. 640 n.2.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. RAYSEAN WILLIAMS
    (AC 19362)
    Mihalakos, Zarella and Dupont, Js.

      Argued November 30, 2000
    officially released July 31, 2001

      Jeremiah Donovan, with whom, on the brief, was Rita Christopher, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Terence Mariani, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

On November 18, 1998, the defendant, Raysean Williams, was charged in a six count substitute information with the following crimes: (1) count one, possession of a narcotic substance (cocaine) with the intent to sell in violation of General Statutes § 21a-278 (a); (2) count two, possession of a narcotic substance (cocaine) with the intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b); (3) count three, possession of a controlled substance (marijuana) with the intent to sell in violation of General Statutes § 21a-277 (b); (4) count four, possession of a controlled substance (marijuana) with the intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b); (5) count five, possession of four ounces or more of a cannabis-type substance (marijuana) in violation of General Statutes § 2 la-279 (b); and (6) count six, possession of four ounces or more of a cannabis-type substance (marijuana) within 1500 feet of a school in violation of General Statutes § 21a-279 (d). A jury trial ensued, and it resulted in a verdict of guilty on counts one and two, and not guilty on the remaining counts. The trial court rendered judgment in accordance with the jury verdict. After the defendant was sentenced, he appealed.

On appeal, the defendant claims that (1) his conviction was not supported by sufficient evidence, (2) the search warrant for his apartment was invalid, and the court, therefore, improperly admitted incriminating evidence that the police had seized pursuant to the warrant, (3) the court abused its discretion when it did not permit him to dismiss his court-appointed attorney and proceed pro se, (4) the court improperly permitted a police detective to testify from memory regarding the defendant’s driver’s license after concluding at a suppression hearing that the seizure of the driver’s license violated the defendant’s constitutional rights, and (5) the court abused its discretion when it denied his motion for a mistrial. We affirm the judgment of the trial court.

The record discloses the following facts. At approximately 11 a.m. on August 22, 1997, officers and detectives from the Waterbury police department (officers) traveled to the defendant’s second floor apartment at 10 Webb Street, Waterbury, to execute a search warrant. After knocking on the defendant’s door and receiving no response, the officers opened the door, which was unlocked, and entered the living room. Seeing no occupants there, they proceeded to the defendant’s bedroom, where they found the defendant and his girlfriend, Kristy Chevarella. The defendant and Chevarella were detained.

The officers searched the defendant’s apartment and found the following items: (1) one large plastic bag containing sixty-one small plastic bags, each of which contained a white, rock-like substance (cocaine, total of eight and one-half grams); (2) one “Mobile Comm beeper”; (3) one “ready beeper”; (4) one envelope containing $1700; (5) thirty live rounds of .357 caliber ammunition; (6) five live rounds of .38 caliber ammunition; (7) one plastic bag containing one razor blade and numerous unused plastic bags; (8) one Connecticut driver’s license that listed “Ray S. Williams” as the licensed operator; and (9) one Connecticut nondriver identification card that belonged to Chevarella.

The officers also searched the basement of the defendant’s apartment building. There, they found the following items: (1) one Ruger .357 caliber pistol containing one live round in its chamber and nine live rounds in its clip; (2) one Glock nine millimeter pistol containing one live round in its chamber and nine live rounds in its clip; (3) three clips of ammunition containing a total of seven live rounds of .45 caliber ammunition and fifteen live rounds of .357 caliber ammunition; (4) one box containing forty-eight live rounds of .38 caliber ammunition; (5) one brown paper bag that contained one razor blade and numerous unused plastic bags; and (6) one plastic bag containing 3.78 ounces of aplant-like substance (marijuana). The officers thereafter arrested the defendant.

I

The defendant first claims that his conviction was not supported by sufficient evidence and, therefore, the court improperly denied his motion for a judgment of acquittal. Specifically, the defendant argues that the evidence was insufficient to support a finding that he had exercised dominion and control over the cocaine seized from his apartment, and that he had the intent to exercise such dominion and control. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. Daryll Dublin, a Waterbury police officer, testified that he and his wife owned the two-family house in which the search was executed. Dublin testified that the house had two floors and a basement, and that each of the two floors was rented as an apartment. Dublin further testified as follows. On August 22, 1997, the date the search was executed, the defendant and Chevarella lived in the apartment on the second floor. The defendant also used the basement to house his pit bull, and he paid Dublin an additional $50 per month in rent for the privilege of keeping the dog there. On several occasions, Dublin observed that the defendant was keeping the pit bull caged in the basement, which could not be accessed from inside either of the apartments. An exterior door provided the only access to the basement.

Nicholas DeMatteis, a Waterbury police detective, testified that he assisted in searching the defendant’s apartment, and that while searching the bedroom he “found a plastic bag with a razor blade and numerous unused, small ziplock bags” in a nightstand. DeMatteis further testified that in the same nightstand he found a Connecticut driver’s license. He testified that the name on the license was “Ray Williams,” and that the license photograph was of the male that he and the other police officers had found in the bedroom while executing the search warrant. DeMatteis identified that male as the defendant.

Fred Spagnolo, another Waterbury police detective, testified that he assisted in searching the defendant’s apartment. Spagnolo testified that while searching the defendant’s bedroom, he discovered sixty-one plastic bags, each of which contained a white, rock-like substance. Spagnolo further testified that (1) “[r]azor blades are used to cut up the narcotics to package them for street sale,” (2) “[s]ometimes narcotics dealers will — will keep dogs for — again for protection against someone attempting to steal their drugs and their money,” and (3) “[c]ommonly . . . narcotics dealers do carry weapons to protect their drugs, their money and sometimes themselves from other narcotics dealers who would want to sell narcotics in their area.”

Timothy Kluntz, a Waterbury patrolman, testified that he assisted in searching the defendant’s apartment. Kluntz testified that while searching the dresser in the defendant’s bedroom, he found thirty live rounds of .357 caliber ammunition and five live rounds of .38 caliber ammunition.

Harold Setzer, another Waterbury patrolman, testified that he was in charge of searching the basement. Setzer testified that Dublin arrived and provided him ■with a key, which he used to access the basement. Setzer further testified as follows. While searching the basement, he found “small ziplock bags.” Bags of that type are called “apple bags,” and “[t]hey’re used to package crack cocaine for street sales.” In the basement, Setzer also found .38 caliber ammunition and a loaded .357 caliber Ruger handgun.

“In reviewing a sufficiency of the evidence claim, we apply a [two part] test. 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. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 224-25, 733 A.2d 156 (1999).

“In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where, as here, the cocaine was not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Citations omitted; internal quotation marks omitted.) Id., 225.

In the present case, it is undisputed that the defendant and Chevarella shared possession of the second floor apartment. Consequently, the jury could not have reasonably concluded that the defendant had constructively possessed the cocaine, namely, that he had known of the presence of the cocaine and had control over it, “unless there [were] other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) Id.

We conclude that there were other incriminating circumstances that tended to establish that the defendant had constructively possessed the cocaine. The defendant housed his pit bull in the basement, where the apple bags and the guns were found. Also, many unused, small ziplock bags (“apple bags”) were found in the defendant’s nightstand drawer, along with razor blades and his driver’s license. Bullets for the guns that were found in the basement were discovered in the defendant’s dresser drawer. Construing that evidence in the light most favorable to sustaining the verdict, the jury reasonably could have found that the defendant had placed the apple bags and the guns in the basement. Such a finding would tend to buttress an inference by the jury that the defendant knew of, and had control over, the identical or related items found in his bedroom, i.e., the apple bags, the razor blades, the bullets and the sixty-one apple bags of cocaine. Accordingly, we conclude that the evidence was adequate to support a finding that the defendant had constructively possessed the cocaine that was found in his apartment. Therefore, the court properly denied the defendant’s motion for a judgment of acquittal.

II

The defendant also claims that his rights under the fourth amendment to the United States constitution were violated when the search warrant for his apartment was executed, and the court improperly admitted at trial incriminating evidence that had been seized pursuant to the warrant. Specifically, the defendant claims that the warrant affidavit did not establish probable cause to search his apartment.

The following facts are relevant to our resolution of the defendant’s claim. The affidavit supporting the application for the search warrant states in relevant part: “That the affiants Lt. Michael Ricci and Det. Nicholas DeMatteis are both regular members of the Waterbury police department having 46 years of police training and experience. Aforementioned are presently assigned to the investigative divisions of the Waterbury police department and have conducted numerous investigations involving narcotics that have led to arrests and convictions.

“That within the past 2 days the affiants received information from a known reliable and confidential informant who in the past has supplied information that has led to several arrests and convictions. Said [confidential informant] stated that while in the apartment of Rayshawn Williams a large amount of crack cocaine packaged for street sale was observed. [The confidential informant] stated that Mr. Williams lives on the second floor of 12 Webb Street Waterbury Conn.

“That a check with the records division of the Waterbury Police Department [shows] that a Rayshawn Williams has been arrested for poss. of 1/2 gram or more of cocaine in ]freebase]form and was convicted of said charge, court sentence was 3 yrs. [execution suspended after] 18 months 3 years probation. Mr. Williams was also convicted on assault weapons charges. Mr. Williams is also known as Ray Williams D.O.B. 02-25-72.

“That the affiants know from training and experience that drug traffickers keep on hand narcotic packaging materials, safes, scales, safety deposit box keys, strongboxes, cash and weapons.

“That based on the above mentioned facts the affiants feel that probable cause has been established to believe that Rayshawn ‘Ray’ Williams is using his apartment at 12 Webb Street Waterbury Conn, second floor to stash and sell narcotics from. The affiants respectfully request a search and seizure warrant for said apartment and for the person of Rayshawn ‘Ray’ Williams D.O.B. 02-25-72.” (Emphasis added.)

The defendant did not preserve his claim at trial and now requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Under Golding, a defendant can prevail on an unpreserved claim of constitutional error 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.’ Id. ‘The first two requirements involve a determination of whether the claim is reviewable; the second two requirements involve a determination of whether the defendant may prevail.’ State v. Woods, 250 Conn. 807, 815, 740 A.2d 371 (1999). This court, however, is free to dispose of a Golding claim by focusing on the condition that appears most relevant under the circumstances of the case. State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992).” State v. Eaton, 59 Conn. App. 252, 269, 755 A.2d 973, cert. denied, 254 Conn. 937, 761 A.2d 763 (2000). Our analysis focuses on the third prong of Golding.

In the present case, the search warrant affidavit was based, in large part, on information supplied to the police by a confidential informant. “We view the information in the affidavit in the light most favorable to upholding the magistrate’s determination of probable cause. ... In a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the [issuing judge’s] determination.” (Citation omitted; internal quotation marks omitted.) State v. Vincent, 229 Conn. 164, 172, 640 A.2d 94 (1994).

“An appropriate starting point is the two-pronged test derived from the United States Supreme Court’s decisions in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Aguilar-Spinelli test, as it is commonly known, provided a method for evaluating the existence of probable cause when an arrest or search warrant affidavit was based upon information supplied to the police by a confidential informant. Under the AguilarSpinelli test, the trial court was required to make two determinations: (1) whether the informant’s veracity or reliability was established; and (2) whether there was a basis for the informant’s knowledge regarding the information supplied.” State v. Velasco, 248 Conn. 183, 190, 728 A.2d 493 (1999). Our Supreme Court recently confirmed that evidence satisfying the requirements of the Aguilar-Spinelli test necessarily satisfies the requirements of probable cause. See id., 193.

In the present case, the affidavit stated that a “known reliable and confidential informant who in the past has supplied information that has led to several arrests and convictions” saw a “large amount of crack cocaine packaged for street sale” in the defendant’s second floor apartment, which was located at 12 Webb Street in Waterbury. It also stated that the defendant previously had been convicted of possessing cocaine. When viewed in the light most favorable to upholding the determination that probable cause existed for the search, the allegations (1) that the confidential informant’s tips had led to convictions in the past and (2) that the defendant previously had been convicted for possession of cocaine establish that the information was reliable, thereby satisfying the first prong of the Aguilar-Spinelli test. See United States v. Pressley, 978 F.2d 1026, 1027 (8th Cir. 1992) (“[i]t is well settled that the statements of a reliable informant can provide, by themselves, a sufficient basis for the issuance of a warrant”); State v. Ferguson, 185 Conn. 104, 115, 440 A.2d 841 (1981) (“factor which we have relied upon to determine the reliability of information provided by an informant is the reputation or past criminal behavior of the suspect”); State v. Velasco, 47 Conn. App. 424, 433, 707 A.2d 286 (1998) (information supplied by known informant whose tips had led to past convictions did not need to be corroborated to establish probable cause), aff'd, 248 Conn. 183, 728 A.2d 493 (1999); State v. Torres, 36 Conn. App. 488, 497, 651 A.2d 1327 (“[i]f an informant has a track record of providing reliable information, the issuing judge may credit the information given in a warrant application”), cert, denied, 232 Conn. 912, 654 A.2d 357 (1995).

Similarly, the officers’ allegation in the warrant affidavit that the confidential informant had seen cocaine in the defendant’s apartment, when viewed in the light most favorable to upholding the determination of probable cause, establishes that there was a basis of knowledge for the information, thereby satisfying the second prong of the Aguilar-Spinelli test. See State v. Torres, supra, 36 Conn. App. 497 (informant’s personal observation of events set forth in affidavit satisfies basis of knowledge requirement). Therefore, it appears that the affidavit underlying the search warrant for the defendant’s second floor apartment did establish probable cause. See State v. Velasco, supra, 248 Conn. 193.

Accordingly, we conclude that the defendant has failed to satisfy the third prong of Golding because he has not demonstrated that the alleged violation of his rights under the fourth amendment clearly exists. Consequently, the defendant cannot prevail on his unpreserved claim.

Ill

The defendant also claims that the court abused its discretion in declining to permit him to dismiss his court-appointed attorney and to proceed pro se. Additionally, the defendant claims that the court failed to inquire adequately into the basis for his request. We are not persuaded.

The following facts are relevant to our resolution of the defendant’s claim. The defendant expressed dissatisfaction with his attorney on two occasions: (1) on December 4,1998, during the hearing on the defendant’s motion to suppress; and (2) on December 7, 1998, the first day of evidence, before the jury was called into the courtroom and sworn in. On the first occasion, the defendant told the court that he was unhappy because his attorney had not called witnesses to testify that he had not been living in the second floor apartment when the police searched it. On the second occasion, which is of greater significance, the defendant expressed concern because his attorney had not yet argued that the guns that the police had found were not his. The following colloquy in relevant part occurred between the court, the defense counsel, the prosecutor and the defendant on December 7, 1998:

“[Defense Counsel:] Your Honor, I’d also like to be heard. My client is very concerned that I’m not capable of properly representing him. . . .

“The Defendant: That’s true, Your Honor, because right then and there the — the guns was registered to a — a person that — that lived in the house, but she didn’t — she didn’t say that. You know what I’m saying? How is it gonna be my gun when it’s — it’s registered. I gave her papers that it’s her guns. You know what I’m trying to say, Your Honor? How — How is it mine if it’s registered to somebody that lives in the house?

“The Court: Well, that’s — That’s a matter of fact for the jury to find. I — I know of no reason—

“The Defendant: Well, is she gonna bring this up in front of the jury, Your Honor?

“The Court: Well, I have no idea.

“The Defendant: So can I fire her, Your Honor? I mean, I — This is — this is — I don’t got no money for a lawyer. Give me a month to get the money for a lawyer that’s gonna come in here and do this thing. I mean represent me to the best and fullest.

“I feel that — I’m feeling hurt right now because she’s not representing me right. He — He—He—He investigated everything — the prosecutor did — investigated everything.

“Where’s my witnesses at? And where’s the person I live — the—the person that lives in the house, where’s they at? This is — This is — This is — This is ridiculous. Because I don’t got no money, I — I’m gonna go to jail for twenty years? This is — This is not right to me.

“[Assistant State’s Attorney:] Judge, I — I could put one thing on the record.

“The Court: Go ahead.

“[Assistant State’s Attorney:] This — This person who supposedly was the purchaser of the gun, our office made contact with that person. She said that the gun was stolen out of her house years ago and she has no idea how it ended up in the defendant’s basement. Just on that issue.

“The Defendant: Well, why didn’t she report it stolen, Your Honor?

“The Court: I — I really don’t know, but we have sixteen jurors upstairs that are ready to proceed. Your counsel, sir, has tried cases in front of me before. She’s a competent counsel. I see no exceptional circumstances here that would cause me to do anything except proceed with the case today.

* * *

“The Defendant: Can I say something, Your Honor? Can I say something? Can I defend myself?

“The Court: Pardon me?

“The Defendant: Can I defend myself? . . .

“The Court: Why would you want to do that?

“The Defendant: Because I know more facts about this case than anyone knows about it.

“The Court: You don’t know anything about the law.

“The Defendant: And I want the jury — yeah. That’s right. That’s true. But I know that this — this case is way bigger than they — they trying to tell me. This is not only about me. This is about the — the cop that they gonna try to bring in here that has a drug offense, was a drug user, his house, that he was probably messing with this woman that they never arrested in this house.

“It’s totally a mistake, Your Honor. And — and—and she’s not gonna bring this up. This is twenty years of my life probably I’m gonna get. You know what I’m trying to say? I’ll take the twenty years if you can prove — if—if the case is gonna be presented right, if my lawyer gonna defend me the—

“The Court: Well, we’re gonna find that out right now.

“The Defendant: — way she’s supposed to defend me.

“The Court: That — That’s enough. We’ll just let the jury come in and listen to the case and we’ll see what happens. Bring them in, please.” (Emphasis added.)

Thereafter, the defendant neither raised an objection concerning the adequacy of his representation nor indicated that he wanted to dismiss his attorney and represent himself.

“There is no doubt that a defendant has a right under both the state and the federal constitutions to represent himself at his criminal trial.” State v. Carter, 200 Conn. 607, 611, 513 A.2d 47 (1986); see Practice Book § 44-3. “The constitutional right of self-representation depends, however, upon its invocation by the defendant in a clear and unequivocal manner.” State v. Carter, supra, 612. “In the absence of a clear and unequivocal assertion of the right to self-representation, a trial court has no independent obligation to inquire into the defendant’s interest in representing himself, because the right of self-representation, unlike the right to counsel, is not a critical aspect of a fair trial, but instead affords protection to the defendant’s interest in personal autonomy.” Id., 613. “When a defendant’s assertion of the right to self-representation is not clear and unequivocal, recognition of the right becomes a matter entrusted to the exercise of discretion by the trial court.” Id., 613-14. “In the exercise of that discretion, the trial court must weigh into the balance its obligation to indulge in every reasonable presumption against waiver of the right to counsel.” (Internal quotation marks omitted.) Id., 614.

The previously discussed and italicized portion of the December 7, 1998 hearing transcript indicates that the defendant was aware of the right to self-representation, and was asking for permission to speak and to proceed pro se. The record also demonstrates that the defendant had expressed dissatisfaction with his attorney on two occasions. The defendant’s expressions of dissatisfaction are not determinative, however. See id., 611-14. First, the defendant cannot succeed in his claim that the court failed to inquire adequately into his interest in representing himself unless the court was required to make such an inquiry. A court is required to do so only when the defendant clearly and unequivocally asserts the right to self-representation. See id., 613. We have reviewed the record, and we conclude that the defendant never clearly and unequivocally asserted that right. See also Burton v. Collins, 937 F.2d 131, 133-34 (5th Cir. 1991) (defendant did not clearly, unequivocally assert right to self-representation when, in spontaneous response to trial court’s denial of request for new counsel, he asked, “May I represent myself?”). Consequently, the court was not required to inquire into the defendant’s interest in representing himself.

Second, under the circumstances, whether the defendant invoked his right to represent himself is “a matter entrusted to the exercise of discretion by the trial court.” State v. Carter, supra, 200 Conn. 614. The defendant’s acquiescence in the continuation of the trial with his court-appointed attorney demonstrates that the court did not abuse its discretion. See id., 614-15. Accordingly, we conclude that the court properly declined to permit the defendant to proceed pro se.

IV

The defendant also claims that the court improperly permitted a police detective to testify from memory about a driver’s license he had found while searching a nightstand in the defendant’s bedroom. The defendant argues that because the court had concluded at a suppression hearing that the seizure of the driver’s license violated the defendant’s rights under the fourth amendment, the court was required under the fourth amendment to exclude the detective’s testimony about the license. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. On July 23, 1998, the defendant filed a motion to suppress in which he argued, inter alia, that the state should not be permitted to introduce into evidence the driver’s license that the officers found in the defendant’s apartment. The defendant argued that the license should be suppressed because it did not match the description of any of the items listed in the search warrant.

On December 4, 1998, the court conducted a hearing on the defendant’s motion to suppress. It ruled that the state could not introduce the license into evidence because it was “not enumerated in the search warrant.” The court reserved ruling, however, on whether the police detective who seized the license could testify from memory about the license.

On December 7, 1998, the first day of evidence, the defendant urged the court to preclude DeMatteis, the police detective who found the driver’s license, from testifying about it from memory. The court denied the defendant’s request, stating: “I’ll allow him to testify as to what he saw regarding a license. He had a license and right to be where he was, and anything he saw he could obviously report.” Immediately thereafter, the state resumed its direct examination of DeMatteis and elicited the following testimony about the driver’s license:

“[Assistant State’s Attorney:] When we left off, I believe you were testifying about what you had found in the nightstand.

“[The Witness:] Correct.

“[Assistant State’s Attorney:] The beeper, the bags with the razor, and what else did you find in the nightstand?

“[The Witness:] Two forms of identification.

“[Assistant State’s Attorney:] And what where they?

“[The Witness:] One was a state of Connecticut ID in the name of Kristy Chevarella, and the second one was a driver — Connecticut driver’s license in the name of — I think it was Ray Williams.

“[Assistant State’s Attorney:] And did you have occasion to look at the picture that was on the driver’s license?

“[The Witness:] I did.

“[Assistant State’s Attorney:] And did you have occasion to see the people that were being detained in the apartment that day?

“[The Witness:] I did.

“[Assistant State’s Attorney:] And were those people one in the same?

“[The Witness:] Correct.

“[Assistant State’s Attorney:] And do you recognize that person in the courtroom?

“[The Witness:] Yes, I do.

“[Assistant State’s Attorney:] Could you identify him, please?

“[The Witness:] The gentleman sitting next to [the defense counsel].

“[Assistant State’s Attorney:] May the record reflect he’s identified the defendant, please?

“The Court: May so indicate.”

In this appeal, neither the defendant nor the state challenges the court’s findings and conclusions that were made during the suppression hearing. Therefore, we assume that they were proper. During the suppression hearing, however, the court, Damiani, J., reserved ruling on whether it would allow DeMatteis to testify from memory about the driver’s license. Thus, when the court, Gill, J., later allowed the testimony, it was making a ruling in connection with the defendant’s motion to suppress. Therefore, we will review the defendant’s claim as a challenge to a ruling made by the court in connection with a motion to suppress and not as a challenge to an evidentiary ruling.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Blackman, 246 Conn. 547, 553, 716 A.2d 101 (1998).

In the present case, the defendant essentially claims that when a law enforcement officer seizes an item in violation of a defendant’s fourth amendment rights, the fourth amendment requires a court to preclude that law enforcement officer from testifying from memory about the item at the defendant’s criminal trial. Our analysis reveals that, given the circumstances of the present case, the court’s decision allowing DeMatteis to testify about the driver’s license from memory only was proper.

“The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property. . . . The ‘plain-view’ doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. ... A seizure of the article, however, would obviously invade the owner’s possessory interest. ... If ‘plain view’ justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches.” (Citations omitted.) Horton v. California, 496 U.S. 128, 133-34, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

In the present case, the court concluded that DeMatteis’ seizure of the driver’s license violated the defendant’s fourth amendment rights. The court also concluded, however, that it would allow DeMatteis to testify from memory about the driver’s license because he had a “right to be where he was, and anything he saw he could obviously report.” Implicit in the court’s conclusion is that DeMatteis was operating within the parameters of the search warrant when he entered the defendant’s bedroom and searched the nightstand therein that contained the driver’s license. That assumption is proper, partially because the nightstand could have contained several of the items listed in the search warrant. See State v. Montgomery, 254 Conn. 694, 704, 759 A.2d 995 (2000) (“[w]hen police search for an item, they are entitled to search any container that logically could hold the item sought”). Thus, while the officers were executing the search pursuant to the warrant, the defendant did not have a privacy interest in the contents of the nightstand, although he may well have retained a possessory interest in them, including the driver’s license. See State v. Eady, 249 Conn. 431, 444, 733 A.2d 112 (“ ‘[t]he plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy’ ”), cert, denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

While DeMatteis was searching the nightstand, he was entitled to move the contents of its drawers in the course of searching for some of the items listed in the warrant. See State v. Ruscoe, 212 Conn. 223, 240-41, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144,107 L. Ed. 2d 1049 (1990). In so doing, DeMatteis also was entitled to conduct a cursory examination of the contents of the drawers to ascertain their identity. See State v. Montgomery, supra, 254 Conn. 707. Thus, DeMatteis was entitled to conduct a cursory examination of the driver’s license when it came into view during his search of the nightstand. Such an examination would not have constituted an independent search because it would not have resulted in an additional invasion of the defendant’s privacy interest. See Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct, 1149, 94 L. Ed. 2d 347 (1987).

At trial, when DeMatteis was questioned about the driver’s license, he testified only that the operator’s name was Ray Williams and that the license photograph resembled the defendant, who was one of two people found in the apartment. Thus, a central issue is whether, under the circumstances, DeMatteis, after conducting a lawful, cursory examination of the driver’s license, could remember the operator’s name and whether the license photograph resembled either of the people found in the apartment. That is a factual issue that was implicitly resolved against the defendant at the suppression hearing and at trial. See State v. Ruscoe, supra, 212 Conn. 241 (“[t]he defendant’s further assertion that ‘it was simply not reasonable for [the police detective] to have believed that the silver items might be located in a hollowed out appliance’ is nothing more than a factual issue that was implicitly resolved against the defendant at the suppression hearing”). That factual finding is not clearly erroneous. Accordingly, we conclude that the defendant’s rights under the fourth amendment were not violated when the court allowed DeMatteis to testify from memory about the driver’s license, and his testimony did not convey knowledge that could not have been obtained through a lawful, cursory examination of the license.

V

The defendant finally claims that the court abused its discretion when it denied his motion for a mistrial. We disagree.

The following facts are relevant to our resolution of the defendant’s claim. After the state completed its case-in-chief, the defendant called his mother, Forrestine Woods, as a witness. During direct examination, Woods described the living arrangements in the two-family house on Webb Street. She testified that she lived there with the defendant, two grandchildren and the defendant’s girlfriend. During cross-examination, Woods testified that she, the defendant, the two grandchildren and the defendant’s girlfriend all moved into the two-family house in 1996. The following cross-examination ensued:

“[Assistant State’s Attorney:] So, it’s your testimony that on May the first of 1996, [the defendant] came to live in that apartment?

“[The Witness:] Right.

“[Assistant State’s Attorney:] Isn’t it a fact that he wasn’t around for quite some time then?

“[The Witness:] He was around then.

“[Assistant State’s Attorney:] One moment, Judge.

. . . And [the defendant] lived in that apartment continually from May the first, 1996, until he was arrested in August of 1997?

“[The Witness:] That’s right.

“[Assistant State’s Attorney:] Do you recall him going to jail back in October of 1996?

“[Defense Counsel:] Objection.

“The Court: Sustained. Please ignore that, ladies and gentlemen. Discontinue this line of questioning, sir.

“[Assistant State’s Attorney:] It goes to the credibility of the witness, Judge.

“The Court: Disregard that statement by counsel, please. It was inappropriate.”

The next day, the defendant made an oral motion for a mistrial, arguing that the state’s question concerning jail was “too prejudicial.” The court denied the motion.

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is in a better position than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 350-51, 696 A.2d 944 (1997); see Practice Book § 42-43.

In the present case, the court’s curative instruction to the jury, which was given immediately after the state asked the objectionable question, sufficiently diminished any risk of prejudice to the defendant. Cf. State v. Traficonda, 223 Conn. 273, 283, 612 A.2d 45 (1992) (upholding denial of motion for mistrial where trial court, inter alia, “promptly struck the witness’ response, immediately admonished the jurors to ‘erase it from your minds’ and told them not to consider the statement in their deliberations”). Thus, we are not persuaded that the defendant was denied a fair trial. Accordingly, we conclude that the court did not abuse its discretion when it denied the defendant’s motion for a mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant makes no argument that the evidence was insufficient to support that portion of count two that requires an intent to sell within 1500 feet of a school.

       That substance later was determined to be cocaine.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

        Although the defendant also refers in his principal brief to a violation of his rights under article first, § 7, of the constitution of Connecticut, he has failed to provide an independent analysis of the state constitutional issues. See State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992) (setting forth appropriate factors to be addressed when raising state constitutional claim). Consequently, we conclude that the defendant has abandoned this state constitutional claim. See State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

       The address of the first floor apartment in the defendant’s apartment building is 12 Webb Street, and the address of the second floor apartment, in which the defendant lived, is 10 Webb Street. Twelve was the only number, however, on the outside of the defendant’s apartment building.

       We note that although the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 236-38,103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), abandoned the Aguilar-Spinelli test, but not its underlying concerns, and adopted instead a totality of the circumstances approach, which our Supreme Court thereafter adopted in State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991) (en banc), the quantum of evidence that is necessary to establish probable cause remains consistent regardless of whether a court applies the Aguilar-Spinelli test or the totality of the circumstances approach. State v. Velasco, supra, 248 Conn. 192-93. Therefore, evidence that satisfies the Aguilar-Spinelli test “necessarily satisfies the requirements of probable cause under the more inclusive totality of circumstances approach.” Id., 193.

       During the suppression hearing, the following colloquy in relevant part occurred between the court and the defendant:
      “The Court: Raysean Williams, a motion to suppress. Court is back in session. Okay. . . . [F]irst, Mr. Williams, [the defense counsel] says you’re not happy with her.
      “The Defendant: That’s true, Your Honor.
      “The Court: Why?
      “The Defendant: Because she never call no witnesses ornever subpoenaed a witness and a lot of stuff like the address, people that live at this address.
      “The Court: We’re going to deal with that now. The thing is, I assume at the trial she’s going to call your mother and girlfriend to testify as to where you were. She says that you were living on the first floor and not the second floor, and that’s the issue as far as that’s concerned.”

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
      The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”

       Practice Book § 44-3 provides: “A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       As previously indicated, the defendant asked the court: “Can I say something, Your Honor? Can I say something? Can I defend myself? . . . Can I defend myself?” When considered contextually, the defendant’s use of the verb “can” urges us to conclude that he was not asking if the courts had recognized a right to self-representation, but was asking for permission to speak, to dismiss his attorney and to proceed pro se. See Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999) (“use of can to ask or grant permission has been common since the 19th century and is well established, although some commentators feel may is more appropriate in formal contexts” [emphasis in original]).

       The record further demonstrates that the defendant’s dissatisfaction on both occasions was encouraged by his “misconception of the normal sequence of the presentation of evidence by the state and the defendant.” State v. Carter, supra, 200 Conn. 614. It would have been premature for defense counsel either (1) to call the witnesses during the suppression hearing as the defendant had wanted or (2) to raise the argument about the guns before the evidentiary phase of the trial began, because, as the court intimated, the evidence and arguments in both instances concerned factual issues that were for the jury to decide.

       In this context, “assert” means “to state or declare positively and often forcefully or aggressively.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999).

       See footnote 3.

       Practice Book § 41-12 provides: “Upon motion, the judicial authority shall suppress potential testimony or other evidence if it finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.”

       The search warrant authorized the seizure of “[c]ocaine derivative ‘crack,’ monies, guns, narcotics records-ledgers, drug paraphernalia, safes and strong boxes, powder cocaine.”

       In so doing, the court, Damiani, J., stated: “I’m just ruling that the physical documents can’t go into evidence. Judge Gill will rule as to whether or not [the police officer who seized the license] can testify from memory. In my opinion, [he] can. I will let Judge Gill give the final ruling.”

      "The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.” Illinois v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983).
      “An example of the applicability of the ‘plain-view’ doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character.” (Internal quotation marks omitted.) Harton v. California, 496 U.S. 128, 135, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). “[OJbjects not named in the warrant, but found within an officer’s plain view, may be seized if the . . . officers had a reasonable basis for believing that the seized evidence was reasonably related to the offense which formed the basis for the search warrant. . . . This doctrine is based upon the premise that the police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized.” (Citations omitted; internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 347, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).

       See footnote 14.

       Practice Book § 42-43 provides in relevant part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. ...”