author: PER CURIAM.

text:
    KEVIN P. CLOUKEY v. ROBERT C. LEUBA, CHIEF COURT ADMINISTRATOR, ET AL.
    (AC 21341)
    Laveiy, C. J., and Schaller and Peters, Js.
    Argued October 23
    officially released December 4, 2001

      George C. Springer, Jr., for the appellant (plaintiff).

      Gregory T. D'Auria, assistant attorney general, with whom were Karla A. Turekian, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Eliot D. Prescott, assistant attorney general, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Kevin P. Cloukey, appeals from the judgment of the trial court granting the defendants’ motion for summary judgment in this action for a writ of mandamus. The plaintiff argues that the court improperly granted the defendants’ motion because disclosure of the transcripts of his criminal trial is barred by General Statutes § 54-142a. We affirm the judgment of the trial court.

The plaintiff was arrested pursuant to a warrant dated October 21, 1994. On March 22, 2000, a jury acquitted the plaintiff of all charges included in the state’s information. The court reporter subsequently received a request from the public for the transcripts of the plaintiffs trial. The plaintiff thereafter sought a writ of mandamus to enjoin the defendants from disclosing any and all court records, including trial transcripts, to the general public, and to further order that the defendants be directed to erase and destroy said court records, including transcripts, as required by § 54-142a. The plaintiff and the defendants filed motions for summary judgment. Following oral argument, the court granted the defendants’ motion and denied the plaintiffs motion. The court further denied the plaintiffs application for a writ of mandamus.

At issue before the court was the application of Public Acts 1996, No. 96-63, which amended § 54-142a by excluding transcripts from the definition of “court records” subject to erasure. The court considered whether the plaintiff, who had been acquitted of the charges brought against him, is subject to the amended version of § 54-142a, whereby his trial transcripts would not be subject to erasure, or whether he is subject to the pre-1996 version of § 54-142a, whereby his trial transcripts would be subject to erasure. The court concluded that the application of the amended version of § 54-142a to cases pending at the time of the 1996 amendment was a proper prospective application of the statute. The court further concluded that the plaintiff was found not guilty on March 22, 2000, and that his right to erasure, therefore, did not vest until the year 2000, when the amended version of § 54-142a was in effect. The plaintiff appeals from that decision.

Our examination of the record and briefs has persuaded us that the judgment of the court should be affirmed. The issue was resolved properly in the court’s thoughtful and comprehensive memorandum of decision. See Cloukey v. Leuba, 47 Conn. Sup. 263, 788 A.2d 1275 (2000). Because that decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on the issue. It would serve no useful purpose for us to repeat the discussion contained in the court’s decision. See East v. Labbe, 54 Conn. App. 479, 480-81, 735 A.2d 370 (1999), aff'd, 252 Conn. 359, 746 A.2d 751 (2000).

The judgment is affirmed.

       The defendants are Robert C. Leuba, chief court administrator for the state of Connecticut; Robin C. Smith, a clerk of the judicial district of Hartford; Harold J. Moan, official reporter for the judicial district of Hartford; and Judy Moquin, a court reporter for the judicial district of Hartford.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    HELEN BORETTI ET AL. v. THE PANACEA COMPANY ET AL.
    (AC 19482)
    Mihalakos, Dranginis and Daly, Js.

      Argued September 27
    officially released December 4, 2001

      Norman J. Voog, with whom, on the brief, was Christopher J. Molyneaux, for the appellant (named plaintiff).

      Edward V. Walsh, with whom, on the brief, were Thomas M. Murtha and John C. Turner, Jr., for the appellees (defendants).
   Opinion

DRANGINIS, J.

In this personal injury action, the plaintiff Helen Boretti appeals from the judgment in favor of the defendants following a jury trial. On appeal, the plaintiff claims that (1) the trial court improperly restricted her from questioning witnesses about the general condition of the defendants’ property, (2) the trial court improperly refused to charge the jury on the doctrine of res ipsa loquitur, (3) this court should abandon the specific defect rule used in determining whether there is a breach of a duty owed to business invitees and (4) the trial court improperly denied her motion to set aside the verdict. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. On January 4, 1990, the plaintiff and her minor daughter drove to the defendants’ office building to pay a medical bill and parked in the lot provided by the defendants. While exiting her motor vehicle, the plaintiff slipped and fell onto the ground of the parking lot. The plaintiff alleged that she stumbled onto the ground because of the icy conditions surrounding the area where she had parked her motor vehicle. As a result of her fall, the plaintiff alleged that she suffered injuries to her left arm.

The plaintiff commenced an action against the defendants, claiming negligence and failure to exercise due care in maintaining the parking lot. The defendants denied the plaintiffs allegations in their answer and asserted contributory negligence as a special defense. Following a jury trial, the jury returned a verdict in favor of the defendants. The plaintiff filed a motion to set aside the verdict, which the trial court denied. This appeal followed.

I

The plaintiff first claims that the trial court improperly restricted her right to conduct a direct examination of a witness, her minor daughter. Specifically, the plaintiff contends that the court improperly precluded her from eliciting testimony from her daughter regarding the general condition of the parking lot when (1) the defendants testified about the lot’s general maintenance and (2) such testimony could be used to impeach and challenge the credibility of the defendants. We are not persuaded.

In addition to her minor daughter, the plaintiff called as witnesses the defendants Donald T. Evans and Evelyne Thomas. She questioned both about the general maintenance of the parking lot. The plaintiff elicted testimony from her daughter regarding the incident and the specific condition of the parking lot in the area where the motor vehicle was parked. The plaintiff also attempted to ask her daughter about the general condition of the parking lot. The defendants objected to the line of questioning related to the general condition of the parking lot on the ground of relevance. The trial court sustained the defendants’ objection on the ground of relevance, stating that “the issue is what was the condition of the area immediately around the automobile.”

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. ... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 35, p. 159.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [party raising the challenge] of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . .

“Evidence is admissible only if it is relevant. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. ... It is well settled that questions of relevance are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Pickel v. Automated Waste Disposal, Inc., 65 Conn. App. 176, 184, 782 A.2d 231 (2001); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 67b.

After a review of the record and transcripts in this case, we conclude that the trial court did not abuse its discretion in its rulings with regard to the scope of the plaintiffs direct examination of her daughter. In this premises defect case, for the plaintiff to recover for breach of a duty owed to her as a business invitee, the plaintiff had to allege and prove that the defendants had either actual or constructive knowledge of the “specific defective condition which caused the injury and not merely of conditions naturally productive of that defect .... On the question of notice the trier’s consideration must be confined to the defendant’s knowledge and realization of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises.” (Citations omitted.) Kirby v. Zlotnich, 160 Conn. 341, 344-45, 278 A.2d 822 (1971); see Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966); Fuller v. First National Supermarkets, Inc., 38 Conn. App. 299, 301, 661 A.2d 110 (1995); LaFaive v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

Given that the plaintiff, as a business invitee, was required to prove that the defendants had notice of the specific condition of the parking lot that caused her to fall, testimony regarding the general condition of the parking lot was irrelevant in this case. Therefore, we cannot conclude that the court abused its discretion in restricting the plaintiff from questioning her daughter about the general condition of the parking lot.

II

The plaintiff next claims that the court improperly denied her request to charge the jury on the doctrine of res ipsa loquitur. We disagree.

It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . . The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding. . . . Accordingly, the right to a jury instruction is limited to those theories for which there is any foundation in the evidence.” (Citations omitted; internal quotation marks omitted.) Henriques v. Magnavice, 59 Conn. App. 333, 336, 757 A.2d 627 (2000).

“Whether the doctrine of res ipsa loquitur applies in a particular case is a question of law over which our review is plenary. ... In this regard, we note that a trial court should instruct the jury in accordance with a party’s request to charge if the proposed instructions are reasonably supported by the evidence. . . . We therefore review the evidence presented at trial in the light most favorable to supporting the plaintiffs proposed charge.” (Citations omitted; internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 139, 757 A.2d 516 (2000).

“The doctrine of res ipsa loquitur, literally the thing speaks for itself, permits a jury to infer negligence when no direct evidence of negligence has been introduced. . . . It is a convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred.” (Citation omitted; internal quotation marks omitted.) Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 441-42, 538 A.2d 690 (1988). “The doctrine of res ipsa loquitur applies only when two prerequisites are satisfied. First, the situation, condition or apparatus causing the injury must be such that in the ordinary course of events no injury would have occurred unless someone had been negligent. Second, at the time of the injury, both inspection and operation must have been in the control of the party charged with neglect.” (Internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C., supra, 254 Conn. 140.

Viewing the evidence in the light most favorable to supporting the plaintiffs charge, we conclude that the plaintiffs injury could have occurred in the absence of negligence. In this case, the plaintiff could have fallen while exiting her motor vehicle for a variety of reasons, without any negligence on the part of the defendants. As the plaintiff fails to meet one of the necessary prerequisites to warrant the application of the doctrine of res ipsa loquitur, we conclude that the court properly refused to charge the jury on this issue.

Ill

The plaintiff further contends that this court should abandon the specific defect rule; see part I of this opinion; and its principles as enunciated by our Supreme Court in Cruz v. Drezek, 175 Conn. 230, 234-35, 397 A.2d 1335 (1978).

“As an intermediate appellate court, ‘[i]t is not . . . within our province to overrule or discard the decisions of our Supreme Court.’ ” Hammond v. Commissioner of Correction, 54 Conn. App. 11, 13 n.1, 734 A.2d 571, cert. granted on other grounds, 251 Conn. 919, 742 A.2d 358 (1999); see Hanes v. Board of Education, 65 Conn. App. 224, 230 n.6, 783 A.2d 1 (2001). “It is axiomatic that we are bound by our Supreme Court precedent.” State v. Otero, 49 Conn. App. 459, 468 n.9, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998). Accordingly, we decline to review this claim.

IV

The plaintiffs final claim is that the trial court improperly denied her motion to set aside the verdict. We decline to review this claim.

Pursuant to Practice Book § 60-5, it is the responsibility of the appellant to provide an adequate record for appellate review. “Indeed, several rules of practice aim to facilitate the process by which an appealing party ensures the adequacy of the record. See Practice Book § 4051 [now § 66-5] (Rectification of Appeal, Articulation), § 4053 [now § 66-6] (Motion for Review — In General), § 4054 [now § 66-7] (Motion for Review — Review of Motion for Rectification of Appeal or Articulation). These rules foster the basic policy that an appellate tribunal cannot render a decision without first fully understanding the disposition being appealed.” (Internal quotation marks omitted.) Gladstone, Schwartz, Baroff & Blum v. Hovhannissian, 53 Conn. App. 122, 127, 728 A.2d 1140 (1999).

In this case, the court denied the plaintiffs motion to set aside the verdict without comment, and the plaintiff failed to complete the record by way of a motion for articulation. Because of the inadequate record before us, we cannot ascertain the court’s reasons for denying the plaintiffs motion and, therefore, decline to review this claim. See Bradley v. Randall, 63 Conn. App. 92, 96, 772 A.2d 722 (2001).

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial corut granted the defendants’ motion for summary judgment as to counts two and four of the complaint, which were brought by the plaintiff Christine Boretti, the daughter of the plaintiff Helen Boretti. Christine Boretti has not appealed from that judgment and is not involved in this appeal. We refer in this opinion to Helen Boretti as the plaintiff.

       The defendants in this case are The Panacea Company, the owner of the premises at issue here, and its tenants, Douglas W. Thomas, Evelyne Thomas and Donald T. Evans. It appears from the record that the named defendant is the real estate holding company for the subject premises and that the other defendants are the actual owners.

       The plaintiff also contends that the court’s ruling unduly restricted her right to examine other witnesses, but fails to specify and to name those witnesses, and moreover does not provide any references to the transcript. Accordingly, we review this claim only as it relates to the direct examination of the plaintiffs daughter.

       The plaintiff additionally suggests that the court improperly precluded her from questioning her daughter about the general condition of the parking lot when the defendants opened the door to this issue by testifying first about the lot’s general condition. After thoroughly reviewing the record and transcripts, we cannot find one instance where the defendants testified about the general condition of the parking lot on the date of the incident, nor does the plaintiff provide any such references in her brief. We, therefore, decline to address this particular aspect of the plaintiffs claim.

       We note that the defendants correctly point out that the plaintiff failed to comply with Practice Book § 67-4 (d) (3) in raising this claim. Practice Book § 674 (d) (3) provides: “When error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.” In her brief, the plaintiff merely reproduces numerous excerpts from the transcript, some portions even containing favorable evidentiary rulings. The plaintiff does not specifically refer to nor state which evidentiary ruling is the subject of her challenge. Generally, this court will not review claims that are improperly briefed. Although we do not condone this failure to adhere to the rules of practice, in this case, however, the subject questions and rulings are sufficiently delineated for us to review the plaintiffs claim. See Wilkes v. Wilkes, 55 Conn. App. 313, 323 n.9, 738 A.2d 758 (1999).

       The plaintiff contends for the first time on appeal that she questioned her daughter about the general maintenance of the parking lot to impeach the credibility of Evans and Thomas. The plaintiff failed to raise this argument before the trial court, and we will, therefore, not address it here. See Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

       In Cruz, our Supreme Court reiterated the holdings of prior decisions regarding business invitees and their burden to prove that a defendant had notice of the specific defect that caused the injury. The plaintiff refers to this burden of proof as the “specific defect rule.” The court in Cruz held: “We have repeatedly stated that the notice, whether actual or constructive, must be notice of the very defect which occasioned the ir\jury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. . . . On the question of notice, the trier’s consideration must be confined to the defendants’ knowledge of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises. . . . Circumstantial evidence is, of course, also available on the question of notice or knowledge of the specific defects (Citations omitted; internal quotation marks omitted.) Cruz v. Drezek, supra, 175 Conn. 235.

       As an additional ground for declining to address this issue, we note that the plaintiff failed to raise this claim before the trial court.

       In support of her motion to set aside the verdict, the plaintiff claimed that the trial court improperly precluded her from arguing in final argument that, pursuant to Public Acts 1998, No. 98-50, now codified at General Statutes § 52-216c, the jury should draw an adverse inference from the failure of the defendants to call witnesses to testify about the maintenance of the property.


text:
    JOHN KEARNEY v. COMMISSIONER OF CORRECTION
    (AC 20878)
    Dranginis, Flynn and O’Connell, Js.
    Submitted on briefs November 1
    officially released December 4, 2001

      William A. Snider, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Melissa L. Streeto, special deputy assistant state’s attorney, and Jo Anne Sulik, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly determined that he was not deprived of the effective assistance of counsel. We affirm the judgment of the habeas court.

The petitioner pleaded guilty under the Alford doctrine to murder in violation of General Statutes § 53a-54a. The court sentenced the petitioner in accordance with the plea agreement to a term of forty-two years in the custody of the commissioner of correction, execution suspended after thirty years and five years probation. The habeas court dismissed the petitioner’s second amended petition for a writ of habeas corpus. The court thereafter granted the petition for certification to appeal, and this appeal followed.

The petitioner claims that trial counsel’s failure to conduct an adequate investigation into potential mental defect defenses, to understand the elements of an extreme emotional disturbance defense and to explain potential defenses such as extreme emotional disturbance and intoxication during his discussions with the petitioner regarding his plea caused his representation to be ineffective and prejudiced the petitioner.

“Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 737-38, 779 A.2d 156 (2001).

“[T]o prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Furthermore, the petitioner must establish not only that his counsel's performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Id., 738.

In its memorandum of decision, the habeas court stated: “The court is persuaded that trial counsel did discuss [the defense of extreme emotional disturbance] with the petitioner and did give petitioner his opinion that in the circumstances of petitioner’s case, it was not a viable defense. . . . The court finds that the petitioner has failed to establish, by a fair preponderance of the evidence, any of his claims that trial counsel rendered ineffective assistance in the course of his representation of the petitioner [and has] failed to establish a reasonable likelihood that . . . but for the deficient performance of trial counsel it was reasonably likely that the outcome would have been more favorable to the petitioner.”

On the basis of our review of the record, we conclude that the habeas court properly determined that the petitioner failed to satisfy his burden of establishing that he was denied the effective assistance of counsel.

The judgment is affirmed.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” (Internal quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772 A.2d 690 (2001).


author: DALY, J.

text:
    STATE OF CONNECTICUT v. VANCE SOLMAN
    (AC 19411)
    Landau, Pellegrino and Daly, Js.
    Argued September 12
    officially released December 11, 2001

      William B. Westcott, for the appellant (defendant).

      Elpedio N. Vitale, senior assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Vance Solman, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), burglary in the first degree in violation of General Statutes § 53a-101 (a) (l), risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 and criminal possession of a firearm in violation of General Statutes (Rev. to 1997) § 53a-217.

The defendant claims that the trial court (1) improperly failed to instruct the jury sua sponte on the inherent unreliability of jailhouse informer testimony and (2) improperly instructed the jury on proof beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In September, 1997, the victim and his wife were employed at a McDonald’s restaurant in Branford and became acquainted with the defendant, who was employed at a nearby Mobil gas station. The defendant’s nephew also was employed at the Mobil station and became friendly with the victim’s wife. That friendship eventually progressed to the point where the victim felt that it was necessary to intervene and, accordingly, he told the defendant’s nephew to leave his wife alone. The victim’s brother-in-law also confronted the nephew and recommended a curtailment of the relationship.

Shortly after midnight, on September 24, 1997, as he lay in bed with his wife and child, the victim heard a loud banging at the back door of their apartment. The victim walked to the kitchen to investigate the disturbance when the defendant burst through the door and shot the victim several times before fleeing. Ten .22 caliber shell casings were found at the scene along with a live round. The defendant was apprehended thereafter, and the police discovered a live .22 caliber round at his residence during a search of the premises.

While awaiting trial, the defendant was incarcerated at the Cheshire Correctional Institution, where he became friendly with a fellow inmate, Robert Horrocks. He admitted to Horrocks that he had shot the victim and solicited Horrocks, if released on bond, to kill the victim and his spouse. He wrote out the names of the targets, their descriptions and the address of the victim’s mother-in-law.

I

The defendant first argues that the court improperly failed to instruct the jury, sua sponte, on the allegedly inherent unreliability of jailhouse informer testimony in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. The defendant concedes that he did not request a special instruction regarding jailhouse informer testimony and did not object to the court’s failure to give such an instruction sua sponte. See Practice Book §§ 42-16 and 60-5. The defendant requests, however, that this court review the claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or, alternatively, under the plain error doctrine. See Practice Book § 60-5.

A

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. “The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim.” (Internal quotation marks omitted.) State v. Andresen, 256 Conn. 313, 325, 773 A.2d 328 (2001). “The appellate tribunal is free ... to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 240.

The defendant’s claim fails to satisfy the second prong of Golding in that it fails to raise a constitutional claim. “Just as every claim of evidentiary error by the trial court is not truly constitutional in nature . . . every claim of instructional error is not truly constitutional in nature. We have recognized, for example, that claimed instructional errors regarding the elements of an offense . . . and claimed instructional errors regarding the burden of proof or the presumption of innocence . . . are constitutional in nature, so as to satisfy the second Golding requirement. We have also recognized, however, that claimed instructional errors regarding general principles of credibility of witnesses are not considered constitutional in nature.” (Citations omitted.) State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993).

Because the defendant has not met the second prong of Golding, we will not review his claim that the court should have instructed the jury sua sponte on the alleged unreliability of jailhouse informer testimony.

B

The defendant also seeks review, under the plain error doctrine, of the court’s failure to provide a special credibility instruction. “It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992). A defendant “cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . Moreover, because the claim raised here is nonconstitutional, the defendant must demonstrate that the trial court’s improper action likely affected the result of his trial.” (Internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 280, 780 A.2d 53 (2001).

“Generally, a defendant is not entitled to an instruction singling out any of the state’s witnesses and highlighting his or her possible motive for testifying falsely.” State v. Ortiz, 252 Conn. 533, 561, 747 A.2d 487 (2000). As our Supreme Court has stated, “[t]o require the court to single out witnesses upon request for comment upon their interest in the outcome of the case as a motive to falsify their testimony would not only constitute regression in the progress achieved in permitting the jury to identify and weigh such motives for themselves, but would also, in many circumstances, frustrate the efforts of the trial judge to deliver evenly balanced instructions to the jury to consider the interest in the outcome of all the witnesses, testifying for both sides.” State v. Cooper, 182 Conn. 207, 217-18, 438 A.2d 418 (1980).

The jury had before it sufficient evidence with which reasonably to judge the credibility of Horrocks’ testimony. The court’s charge on the credibility of witnesses encompasses seven pages of transcript. The court informed the jurors that it was their role to determine the facts, to determine which witnesses to believe and to consider what motive a witness might have in testifying. The charge to the jury also included a specific instruction that the jury could consider Horrocks’ prior convictions in weighing his credibility.

During cross-examination, Horrocks admitted that he was testifying because he hoped to gain something by doing so. He also indicated that he “really wanted” a sentence modification. Notwithstanding Horrocks’ testimony that the prosecution had made no promises with respect to whether the sentence modification would be granted and the omission of the fact that the prosecution already had provided the necessary approval for such a modification to be considered, the jury was on notice as to Horrocks’ incentive to testify in support of the prosecution’s case. There is nothing about Horrocks’ testimony that would tend to produce an improper belief in its inherent credibility.

Moreover, the defendant has failed to demonstrate that the claimed error affected the outcome of his trial. The prosecution presented several witnesses whose testimony implicated the defendant in the crimes for which he was convicted, including the eyewitness testimony of the victim’s wife. The prosecution also offered substantial circumstantial evidence of the defendant’s involvement in the incident. Even if the jury had rejected Horrocks’ testimony, it had before it enough evidence to support a guilty verdict.

We conclude, therefore, that the omission of an informer instruction in the court’s charge does not present a truly extraordinary situation warranting plain error review.

II

The defendant next claims that the court’s instruction to the jury as to reasonable doubt improperly undermined the presumption of innocence and diluted the burden of proof that the state must meet to obtain a guilty verdict. We disagree.

The defendant’s claim is based on the following sentences in the court’s instructions: “However, if you can in reason reconcile all the facts proven within a reasonable theory consistent with the innocence of the accused, then you cannot find him guilty. On the other hand, if you find that the proven facts do establish the guilt of the accused beyond a reasonable doubt, then the proper verdict will be guilty.”

The defendant concedes that his claim was not preserved properly for appeal and now seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. “At the outset, we note that under . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. . . . [I]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . Furthermore, [a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Delgado, 50 Conn. App. 159, 171, 718 A.2d 437 (1998).

The defendant’s claim fails to satisfy the third prong of Golding in that it fails to establish that a constitutional violation clearly existed and clearly deprived him of a fair trial. See State v. Golding, supra, 213 Conn. 239-40. Our appellate courts have, on numerous occasions, affirmed the constitutionality of language instructing a jury on the reasonable doubt standard identical to that complained of by the defendant. See, e.g., State v. Small, 242 Conn. 93, 114-15, 114 n.17, 700 A.2d 617 (1997); State v. Dawkins, 42 Conn. App. 810, 821, 681 A.2d 989, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996); State v. Lopez, 37 Conn. App. 509, 513-15, 657 A.2d 647, cert. denied, 234 Conn. 902, 660 A.2d 858 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured . . . shall be guilty of a class C felony.”

       General Statutes (Rev. to 1997) § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when he possesses a firearm . . . and (1) has been convicted of a . . . felony . . . .”

       Practice Book § 42-16 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

       Practice Book § 60-5 provides in relevant part: “[T]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”


author: MIHALAKOS, J.

text:
    JOAN SANDOW ET AL. v. MARY ANN ECKSTEIN ET AL.
    (AC 21153)
    Schaller, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12
    officially released December 11, 2001

      Brenden P. Leydon filed a brief for the appellants (plaintiffs).

      Constance L. Epstein filed a brief for the appellees (defendants).
   Opinion

MIHALAKOS, J.

The plaintiffs, Joan Sandow and William Sandow, appeal from the judgment rendered in favor of the defendants, Maiy Ann Eckstein and Production Typographers, Inc., following a jury trial. On appeal, the plaintiffs claim that the trial court improperly charged the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 7:30 p.m. on Friday, February 3, 1995, the named plaintiff was traveling northbound on Woodbine Road in Stamford. Woodbine Road is a narrow, winding, unlit road without sidewalks or shoulders. The named plaintiff stopped her vehicle on the east side of Woodbine Road, exited the vehicle and crossed to the other side of the road to place some flyers in a mailbox. At the time, she was wearing dark colored clothing, a black raincoat and a navy blue pantsuit. After placing the flyers in the mailbox, she turned and saw headlights close to her. She was struck in the abdomen by a passing motor vehicle and fell to the ground.

At the time, the defendant Mary Ann Eckstein was operating a motor vehicle owned by the defendant Production Typographers, Inc., in a southbound direction on Woodbine Road. Eckstein was looking at the roadway and using the high beams to illuminate the way. She did not see the named plaintiff, and her vision may have been affected by the headlights of the named plaintiff’s vehicle. Eckstein had lowered the speed of her vehicle because she was not sure what to expect with regard to the vehicle parked on the roadway, e.g., whether someone would exit from the vehicle, step out from behind it or be changing a tire. Eckstein felt her vehicle strike something and stopped immediately. She exited her vehicle and found the named plaintiff in the roadway. There was no evidence as to what portion of the vehicle struck the named plaintiff.

The plaintiffs commenced the present action, claiming that the named plaintiff suffered personal injuries, damages resulting from medical expenses and loss of income, permanent injuries and loss of future income proximately caused by Eckstein’s negligence. In their answer, the defendants admitted that the vehicle came in contact with the named plaintiff but denied that Eckstein was careless or negligent in the operation of the vehicle. The defendants also alleged, as a special defense, that the named plaintiffs own negligence was the proximate cause of her alleged injuries.

The case was tried in August, 2000, and the parties focused on who was at fault for the accident. The plaintiffs submitted a request to charge, seeking to have the court instruct the jury that the operator of a motor vehicle is charged with notice of a pedestrian’s right to use the highway and, therefore, operators have a duty to anticipate the possible presence of pedestrians on the highway. The court did not instruct the jury in the language requested by the plaintiffs. The plaintiffs took an exception to the charge. The parties did not submit interrogatories to the jury, which rendered a general verdict in favor of the defendants. After the court rendered judgment on the verdict, the plaintiffs appealed.

We address first the standard of review applicable to claims of an improper jury instruction. “Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Marshall v. O’Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert. denied, 252 Conn. 918, 744 A.2d 438 (2000).

In their brief, the defendants argue that the general verdict rale requires us to affirm the trial court’s judgment, citing Schupp v. Grill, 27 Conn. App. 513, 607 A.2d 1155 (1992). “The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarche, 188 Conn. 201, 204, 449 A.2d 142 (1982); Collucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964).” (Internal quotation marks omitted.) Schupp v. Grill, supra, 515.

In opposition to the defendants’ argument concerning the general verdict rule, the plaintiffs cite Monterose v. Cross, 60 Conn. App. 655, 661, 760 A.2d 1013 (2000), for the proposition that where the court’s instruction is improper, there is no untainted route that the jury can take to reach its verdict and the general verdict rule does not apply. We agree with the defendants because Monterose is factually distinguishable. In Monterose, the court failed to instruct the jury on the standard of care required either of the defendant on a negligence theory or of the plaintiff on a theory of contributory negligence. The defect in that instruction therefore tainted both routes to the verdict. Here, the plaintiffs’ claim on appeal alleges a defect in the instruction that relates only to the theory of negligence, leaving the contributory negligence route untainted. Therefore, the general verdict rule applies. We will presume that the jury found every issue in favor of the prevailing party; see Schupp v. Grill, supra, 27 Conn. App. 520; and affirm the judgment on the basis of the jury’s finding of contributory negligence.

Furthermore, we have read the court’s entire charge in the present case. On the basis of our review of the charge, we conclude that the court properly instructed the jury as to Eckstein’s duty to the named plaintiff, a pedestrian on the roadway. The charge requested by the plaintiffs has not been adopted as the law of this jurisdiction. See id., 518-19, citing Cashetto v. Silliman & Godfrey Co., 126 Conn. 22, 25, 9 A.2d 286 (1939).

The judgment is affirmed.

In this opinion the other judges concurred.

       William Sandow, the named plaintiffs husband, alleged a loss of consortium claim, a derivative action.

       The plaintiffs alleged claims sounding in negligence and recklessness. The court directed a verdict in favor of the defendants on the count of recklessness. Consequently, only the negligence claim is at issue here.

       In its charge, the court instructed the jury in relevant part: “The following is the duty owed the plaintiff by the defendant. The measure of duty owed the plaintiff by the defendant was the exercise of reasonable care to operate her motor vehicle so as to avoid striking the plaintiff. I read to you earlier the ways in which the plaintiff has alleged that the defendant violated this duty. If you find that the defendant breached this duty of reasonable care, then the plaintiff may be entitled to recover from the defendant. If you find that the defendant did not breach this duty of care, then the plaintiff will not recover.
      “Specifically, the plaintiff has alleged that the defendant failed to maintain a reasonable and proper lookout. Under this duty, it is negligent not to see what is plainly visible when there is nothing to obscure the vision of the driver. The driver is required to look and exercise her sense of sight in such a careful and intelligent manner that will enable her to see things such as a person in the exercise of ordinary care and caution will see under the circumstances.
      “Now, it’s claimed here that the defendant failed to keep a proper lookout and control. It is, of course, incumbent upon every driver of a motor vehicle upon the highway to use her senses as to what is transpiring about her, what traffic she is likely to encounter, to keep her car under that degree of control which under the circumstances would make it reasonably possible for her to accommodate herself to conditions which reasonably might be anticipated to arise on a highway under the same conditions. She is not bound to anticipate such wholly unexpected occurrences as a reasonably prudent person would not anticipate under the same circumstances, but she is bound to anticipate those occurrences which a reasonably prudent person would have anticipated. The degree of lookout and control which Mary Ann Eckstein was required to exercise is to be judged by the traffic on that night, the weather conditions and all the surrounding circumstances which you have heard from the testimony and other evidence in this case.
      “The plaintiff further alleges that the defendant operated her vehicle at an unreasonable rate of speed under the existing circumstances. It is the law of our state that the operator of an automobile on a highway must operate her vehicle at a reasonable rate of speed having regard to the width, traffic and the use of the highway, the intersection of streets and the weather conditions.
      “The plaintiff further alleges that the defendant failed to apply her brakes properly. The operator of a motor vehicle has the obligation to reduce the speed of a vehicle or bring it to a stop to avoid a collision when it is reasonable to do so.
      “Section 14-300d of the Connecticut General Statutes provides that an operator of a vehicle should exercise due care to avoid colliding with a pedestrian and should give reasonable warning by sounding a horn or other noise [emitting] devise to avoid collision. You may consider all these factors in determining whether the defendant was negligent in the operation of her automobile on the night in question.
      “The plaintiff further alleges that the defendant’s conduct violated § 14-218a of the Connecticut General Statutes. Section 14-218a, traveling unreasonably fast, provides that no person shall operate a motor vehicle upon a highway at a rate of speed greater than is reasonable having regard to the width, traffic, use of the highway and weather conditions. If you find that the defendant violated this statute, you should find that the violation constituted negligence per se, that is, that the defendant was negligent as a matter of law.
      “Reasonable care. Reasonable care is defined as the care that would be used by aperson of ordinary prudence in the same situation as the defendant. The test is external, not subjective. Therefore, you do not look at how the defendant, in fact, behaved, but rather how an ordinarily prudent operator of a motor vehicle under the circumstances which such defendant found herself would behave.
      * ** *
      “Now, the plaintiff also had a duty of care. She had a duty to exercise reasonable care for her own safety, that is, the care that a reasonably prudent person would exercise under similar circumstances. A pedestrian has an equal right to be on the roadway; however, a pedestrian shall not suddenly leave a curb, sidewalk or any other place of safety adjacent to or upon a roadway and walk or run into the path of [a] vehicle so close to such pedestrian as to constitute an immediate hazard to such pedestrian, and a pedestrian is required to yield the right-of-way to vehicles on the roadway. In this case, the precise whereabouts of the plaintiff at the moment of collision is disputed, that is, whether she was on the side of the road, on the curb or on the road. It is for you [to] determine from the facts as you find them whether the plaintiff, Joan Sandow, breached any of the duties she had as I set forth for you.”