text:
    STATE OF CONNECTICUT v. ANTHONY MORASCINI
    (AC 20240)
    Landau, Pellegrino and Daly, Js.

      Argued December 12, 2000
    officially released April 17, 2001

      Robert G. Golger, special public defender, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, Peter Anthopolos, special deputy assistant state’s attorney, and Elizabeth C. Learning, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Anthony Morascini, appeals from the judgment of conviction, rendered after a jury trial, of public indecency in violation of General Statutes § 53a-186 (a) (2) and breach of the peace in violation of General Statutes § 53a-181 (a) (5). On appeal, the defendant claims that the court improperly (1) rendered judgment on an inconsistent verdict and (2) abused its discretion by allowing the state to cross-examine the defendant about specific facts concerning his prior convictions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 15, 1998, the victim, Lorraine Liswell, was operating her vehicle in the westbound lanes of Interstate 84 near Vernon. She noticed a large, gray vehicle approach from behind. Liswell recognized the vehicle as one that had operated in a bothersome, erratic manner in the same area several days earlier. On this day, the vehicle again was being operated erratically. The vehicle changed lanes and sped in such a way as to make Liswell nervous. She believed that the operator, who was later identified as the defendant, was trying to get her attention. Liswell looked over and saw that the defendant was steering the vehicle with his left hand, his penis was exposed and he was masturbating with his right hand. Liswell tried to avoid the defendant but he countered her evasive maneuvers. Liswell got off the interstate at her usual exit and pulled into a commuter lot where she called the police. The defendant had preceded Liswell off the exit and into the commuter lot. Police officers responded to the scene, questioned Liswell and the defendant, and then arrested the defendant.

The defendant was charged with public indecency and breach of the peace. A jury found the defendant guilty of both charges, and this appeal followed. Other facts will be discussed where relevant.

I

The defendant first claims that the court improperly rendered judgment on an inconsistent verdict. Specifically, the defendant claims that the mental states for the crimes of public indecency and breach of the peace are mutually exclusive, and, because both charges flow from the same act, the defendant cannot be convicted of both crimes. We disagree.

The following additional facts and procedural history are necessary for our resolution of the defendant’s claim. Both the public indecency and the breach of the peace charges stem from the defendant’s act of exposing his penis and masturbating in public. At the close of evidence, the defendant objected to the state’s request to allow the jury to consider both charges during its deliberation. The defendant argued that a conviction of public indecency required the jury to find that he acted intentionally, and a conviction of breach of the peace required the jury to find that he acted recklessly. Because the mental states for the crimes charged are mutually exclusive and because both charges concern the same act and the same victim, the defendant claimed that he could not be convicted of both crimes. The court concluded that the jury could properly consider and convict the defendant of both charges because, while both charges did concern the same act and the same victim, they concerned different results, and, therefore, the required mental states were not mutually exclusive.

Because the defendant’s claim involves a question of law, our review is plenary. See State v. Burnaka, 61 Conn. App. 45, 52, 762 A.2d 485 (2000). When reviewing a claim that a verdict is inconsistent as a matter of law, “we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. If that is the case, the verdicts are legally inconsistent and cannot withstand challenge.” (Internal quotation marks omitted.) State v. Harris, 54 Conn. App. 18, 23-24, 734 A.2d 1027, cert, denied, 250 Conn. 925, 738 A.2d 660 (1999). Put more simply, we determine if there is a rational theory by which the jury could have found the defendant guilty of both crimes. See State v. King, 216 Conn. 585, 594, 583 A.2d 896 (1990).

“It is not inconsistent ... to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results.” State v. Flynn, 14 Conn. App. 10, 27, 539 A.2d 1005, cert denied, 488 U.S. 891,109 S. Ct. 226,102 L. Ed. 2d 217 (1988). hxFlynn, the defendant was convicted of, inter alia, assault on a police officer, which requires intentional conduct, and reckless endangerment, which requires reckless conduct. Id., 12-13. The convictions resulted from an incident where the defendant, in a crowded bar, threw a beer bottle at several police officers. Id. On appeal, the defendant claimed that the verdict was inconsistent, as he could not have acted intentionally and recklessly with regard to the same factual circumstances. Id., 26. This court concluded that the verdict was not inconsistent because the mental states went to different results. Accordingly, the jury could have found that, by throwing the bottle at the police officers, the defendant acted intentionally with the conscious objective to prevent the officers from performing their duty, while at the same time, he acted recklessly with respect to the other patrons in the bar. Id., 27.

In the present case, we conclude that the verdict is not inconsistent because the jury could have found, given the facts and statutes at issue, that the defendant acted with two different mental states that related to different results. We look first to the language of the statutes and then to the facts. The public indecency statute provides in relevant part that “ [a] person is guilty of public indecency when he performs any of the following acts in a public place ... (2) a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person . . . .” (Emphasis added.) General Statutes § 53a-186 (a) (2). The jury reasonably could have found that the defendant intended to arouse or satisfy his sexual desire by masturbating as he operated his motor vehicle adjacent to Liswell’s vehicle on the highway. The breach of the peace statute provides in relevant part that “[a] person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (5) in a public place . . . makes an obscene gesture . . . .” (Emphasis added.) General Statutes § 53a-181 (a) (5). The information charged the defendant with acting recklessly. The jury reasonably could have found that the defendant acted recklessly when he masturbated next to Liswell’s motor vehicle and caused her inconvenience, annoyance or alarm. The verdict, therefore, is not inconsistent because the jury could have found that the defendant acted with two different mental states that related to two different results. The defendant could have intended to arouse himself and, at the same time, recklessly inconvenienced or annoyed the victim.

II

The defendant next claims that the court abused its discretion by allowing the state to cross-examine him about specific facts concerning prior convictions, thereby prejudicing him so as to warrant a new trial. We disagree.

The following additional facts are necessary for our resolution of this claim. The defendant testified in his own defense. On direct examination, he testified that, among other things, he had prior felony convictions. The state, on cross-examination, asked the defendant about two prior felony convictions that the defendant had for failure to appear. The defendant responded that he had received letters telling him to appear, and the state inquired further. Defense counsel then objected to the line of questioning on the ground that it was improper for the state to inquire as to the underlying facts of the defendant’s convictions. The court concluded, however, that the state was entitled to cross-examine the defendant regarding the bail commissioner’s letters because the defendant had opened the door when he offered his unsolicited testimony regarding the letters earlier in the cross-examination.

“[0]ur review of a trial court’s evidentiary ruling is limited. Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In considering whether the trial court abused its discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . .” (Citation omitted; internal quotation marks omitted.) State v. Coughlin, 61 Conn. App. 90,95-96, 762 A.2d 1 (2000), cert, denied, 255 Conn. 934, 767 A.2d 105 (2001). Even where evidence is improperly admitted, reversal is not warranted “if the reviewing court cannot conclude . . . that the jury’s perceptions of the other evidence presented in this case . . . were so affected by the improperly admitted testimony . . . that it is likely that the result of the trial would have been different in the absence of [that evidence].” (Internal quotation marks omitted.) State v. Markeveys, 56 Conn. App. 716, 719, 745 A.2d 212, cert, denied, 252 Conn. 953, 749 A.2d 1203 (2000).

“It is well established that the trial court has discretion on the admissibility of prior convictions.” State v. Johnson, 29 Conn. App. 584, 588, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993). Where the defendant admits to prior convictions on direct examination, the customary impeachment inquiry on cross-examination is limited to “the name of the crime and the date of conviction . . . .” State v. Geyer, 194 Conn. 1, 8, 480 A.2d 489 (1984). The facts underlying the prior conviction are generally inadmissible; State v. Denby, 198 Conn. 23, 30, 501 A.2d 1206 (1985), cert, denied, 475 U.S. 1097, 106 S. Ct. 1497, 89 L. Ed. 2d 898 (1986); because they must be excluded where their prejudicial tendency outweighs their probative value. State v. Cummings, 46 Conn. App. 661, 674, 701 A.2d 663, cert, denied, 243 Conn. 940, 702 A.2d 645 (1997). As a general rule, however, if a party delves into a particular subject during examination, he is said to have “opened the door” for further examination regarding that subject. State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). “The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice.” (Internal quotation marks omitted.) Id., quoting United States v. Lum, 466 F. Sup. 328, 334 (D. Del. 1979).

Here, the defendant opened the door to cross-examination regarding the letters by mentioning them in his response to the state’s question about whether he was ordered to be in court on the days that he failed to appear. By opening the door, the defendant invited further examination regarding the letters. State v. Graham, supra, 200 Conn. 13. Furthermore, we do not agree that the cross-examination so prejudiced the defendant so as to warrant a new trial. The court instructed the jury regarding credibility in general and the effect, if any, that the convictions had on the defendant’s credibility. It is well established that in the absence of evidence to the contrary, a jury is presumed to follow the instructions given by the court. State v. Gray, 221 Conn. 713, 730, 607 A.2d 391, cert, denied, 506 U.S. 872, 113 S. Ct. 207,121 L. Ed. 2d 148 (1992); State v. Grenier, 55 Conn. App. 630, 645, 739 A.2d 751 (1999), cert, granted on other grounds, 252 Conn. 931, 746 A.2d 794 (2000); State v. McNair, 54 Conn. App. 807, 817, 738 A.2d 689, cert, denied, 251 Conn. 913, 739 A.2d 1249 (1999). The defendant did not provide any evidence that the jury did not follow the court’s instructions. Applying our standard of review, we conclude that the court did not abuse its discretion by allowing the state to question the defendant regarding specific facts concerning the defendant’s prior convictions.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-186 (a) provides in relevant part: “A person is guilty of public indecency when he performs any of the following acts in a public place ... (2) a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person . . . .”

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he ... (5) in a public place . . . makes an obscene gesture . . . .”

       We disagree with the defendant’s assertion that State v. Williams, 237 Conn. 748, 679 A.2d 920 (1996), is controlling because State v. King, supra, 216 Conn. 585, does not stand for the proposition that with respect to the same victim and the same act, specific intent and recklessness are always distinct and mutually exclusive mental states. See State v. Williams, supra, 756, citing State v. King, supra, 594. When reviewing a claim that a verdict is inconsistent as a matter of law, the test is whether there is a rational theory by which the jury could have found the defendant guilty of both crimes. See State v. King, supra, 594. A defendant rationally can be found guilty of crimes with different mental states where the mental states go to different results. State v. Flynn, supra, 14 Conn. App. 27.

       The state’s cross-examination went as follows:
      “[State’s Attorney]: Mr. Moraseini, you said you have a conviction, a felony conviction for possession of cocaine?
      “[Defendant]: Yes.
      “[State’s Attorney]: And you have two felony convictions for failure to appear, is that correct?
      “[Defendant]: That’s correct, yes.
      “[State’s Attorney]: And that’s failure to appear in court after ordered to appear in court by a judge?
      “[Defendant]: That’s correct. I was ordered to appear by a written letter.
      * ** *
      “[State’s Attorney]: A bail commissioner’s letter?
      “[Defendant]: Yes.
      “[State’s Attorney]: And that was after failing to appear on one particular date, you get a letter from the bail commissioner?
      “[Defendant]: Yes. I think so.
      “[State’s Attorney]: And then you failed to appear again, is that correct?
      “[Defense Counsel]: Your Honor, I’m going to object to this. This is going beyond what’s permitted.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TYSON HUNTER
    (AC 19570)
    Zarella, Pellegrino and Hennessy, Js.
    Argued December 7, 2000
    officially released April 17, 2001

      Alexander H. Schwartz, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Maureen M. Keegan, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Tyson Hunter, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant contends that the trial court improperly denied him his constitutional rights to confrontation and to present a defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of October 12, 1997, Clarence Lewis borrowed a gray Toyota Corolla from Ametreus “Cheryl” Hofler to run some errands. From that point on, the car was lent to several other people throughout the afternoon, night and early morning. It was driven around the streets of Waterbury and was never returned to Hofler. Meanwhile, a Ford Escort that was owned by the victim, Addies Grimsley, also was being driven around the streets of Waterbury and was occupied by several different people throughout that afternoon, night and early morning. Sometime after 8 p.m., the operator of the Ford initiated a chase between the two cars by speeding past the Toyota a couple of times. This confrontation ended without incident.

At approximately 11:30 p.m., a witness, Steven Dunbar, was walking his dog outside his Harris Circle home when he noticed Damian Ellis, one of the many passengers of the Toyota, carrying a black book bag. Dunbar testified that he believed that the book bag contained firearms and that Ellis had given the book bag to “some guys” in a gray Toyota. Dunbar also testified that “[the defendant] and them” were in the Toyota and that he had contacted the Waterbury police to warn them that “somebody was going to get hurt.”

Sometime around midnight, the occupants of the two cars once again approached each other in their vehicles. At this point, Jesus Alvarez was driving the Toyota, and the defendant occupied the front passenger seat. Jason Hawk was driving the Ford, Efrem Collins was the front seat passenger, and the victim was the backseat passenger. When the occupants of the Ford noticed that the Toyota was following them, Collins turned to look and recognized Alvarez as the driver of the Toyota. As Hawk sped up in an attempt to get away from the Toyota, the occupants of the Toyota fired shots at the Ford, shattering its rear window.

Hawk drove the Ford into the Harris Circle projects near Long Hill Road with the Toyota in pursuit. Hawk then jumped out of the moving car and ran into the woods, leaving both Collins and the victim behind. The Ford crashed into a guardrail and pinned the front passenger door shut. Collins remained safely in the car, but, as the victim exited the car, at least five more shots were fired at him. After the gunfire stopped and Alvarez drove the Toyota away, Collins exited the car through the rear window and ran away into the woods.

Officer David Rovinetti of the Waterbury police department was called to the scene and found the victim bleeding heavily next to the Ford. The victim had been shot several times and bled to death from a bullet that struck his upper thigh, cut his femoral artery and tore a large hole in an adjacent vein.

On Tuesday, October 14,1997, the police interviewed Alvarez, who provided them with a detailed written statement. He admitted to driving the Toyota and identified the defendant as a passenger in the Toyota. He claimed that after the Ford had come to a stop, the defendant fired more than ten shots and that he had heard the victim yell, “I’ve been hit.” Alvarez also selected the defendant from an eight person photographic array. Alvarez subsequently pleaded guilty to a charge of conspiring with the defendant to commit murder and, in November, 1998, he was sentenced to a ten year term of imprisonment.

At the defendant’s trial, the state called Alvarez to testify. When questioned, Alvarez could not recall the events that had transpired on October 12 and October 13,1997, but he acknowledged that he had initialed and signed his October 14, 1997 sworn written statement to the police. He testified, however, that he had never read it, had been under the influence of drugs when he had signed it and that the police had coerced him into signing it. He also testified that he was not involved in the murder and that he did not see the defendant on the day of the murder. At the conclusion of Alvarez’s direct testimony, the court admitted his written statement for substantive purposes under the Whelan doctrine.

On cross-examination, the defendant questioned Alvarez about his whereabouts on the night in question and his written statement. Alvarez testified that he was not involved in the car chases or the shootings and described to the jury, in detail, where he was on the night of the victim’s murder. Alvarez claimed that he was with friends on Laurel Street until approximately midnight, when he was driven to a convenience store. He also testified that his attorney had obtained a copy of a video surveillance tape from the convenience store that showed that he was there around midnight.

During the defendant’s case-in-chief, the defendant expressed an intention to call several people to testify as alibi witnesses for Alvarez. The state requested an offer of proof, and the defendant replied that the alibi witnesses and the tape would corroborate Alvarez’s testimony. The court, however, did not allow any of the defendant’s alibi witnesses to testify and did not allow the introduction of the convenience store video surveillance tape into evidence.

On appeal, the defendant first claims that the court improperly denied him his constitutional right to confrontation. Specifically, he claims that the court improperly prevented him from fully and fairly exercising his constitutional right to confront and to cross-examine the state’s key witness, Alvarez. We disagree.

“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 is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... 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. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Cramer, 57 Conn. App. 452, 454, 749 A.2d 60, cert, denied, 253 Conn. 924, 754 A.2d 797 (2000), quoting State v. Orhan, 52 Conn. App. 231, 237, 726 A.2d 629 (1999).

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him.” (Internal quotation marks omitted.) State v. Price, 61 Conn. App. 417, 428, 767 A.2d 107, cert, denied, 255 Conn. 947, 769 A.2d 64 (2001). “The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . . [T]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 60 Conn. App. 866, 869-70, 761 A.2d 789 (2000), cert, denied, 255 Conn. 942, 769 A.2d 59 (2001); see also State v. Newton, 59 Conn. App. 507, 520, 757 A. 2d 1140, cert, denied, 254 Conn. 936, 761 A.2d 764 (2000).

In this case, the court did not infringe on the defendant’s constitutional right to confrontation. Alvarez was the state’s key witness and he recanted the entire written statement that he had given to the Waterbury police on October 14, 1997. During direct examination, the state questioned Alvarez about his statement. He testified that he did not read the statement before he signed it, he was under the influence of drugs, the police coerced him to sign it and he was not with the defendant on the night the victim was killed. The defendant cross-examined Alvarez immediately after the state concluded its direct examination. On cross-examination, the defendant inquired about Alvarez’s whereabouts on the afternoon and evening of October 12 and the morning of October 13, 1997. The defendant questioned the witness in detail, and the witness stated his alibi to the jury. His answers were clear and specific.

The defendant had an opportunity to cross-examine fully and fairly the witness and did so. He specifically inquired about the witness’ whereabouts on the night in question, and the witness was allowed to answer freely. We, therefore, conclude that the court did not abuse its discretion because it did not deny or unduly restrict the defendant’s constitutional right to cross-examine the witness.

The defendant next claims that the court improperly denied him his constitutional right to present his defense by excluding the exhibit and witnesses that he offered to support an alibi for the state’s key witness, Alvarez. Specifically, the defendant argues that the court improperly excluded the convenience store video surveillance tape and the testimony of Alvarez’s alibi witnesses. We disagree.

We reiterate our standard of review regarding challenges to a court’s evidentiary rulings. Evidentiary rulings will be overturned on appeal only when there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Cramer, supra, 57 Conn. App. 454.

The defendant argues that the excluded evidence was relevant for the jury to assess the reliability of the state’s key witness. Admissible evidence must be logically and legally relevant. State v. Joly, 219 Conn. 234, 260-61, 593 A.2d 96 (1991). “It is not logical relevance alone, however, that secures the admission of evidence. Logically relevant evidence must also be legally relevant . . . that is, not subject to exclusion for any one of the following prejudicial effects: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it. [C.] McCormick, Evidence (2d Ed.) § 185, pp. 439-40.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Joly, supra, 260-61.

In this case, the court ruled that the alibi witnesses for Alvarez and the convenience store video surveillance tape were not relevant. When the defendant tried to introduce his first witness to corroborate Alvarez’s testimony, the court explained that “[i]t’s not relevant to the case .... [W]e have to conclude cases when we start them. I don’t think we can keep going off and branching off and get everybody else to come in and say yes they saw her with another witness. . . . [Alvarez] has testified, the jury can believe [him] or not believe [him].” The court then ruled that the proposed testimony of Alvarez’s alibi witness was “beyond the scope of this particular trial. It starts another trial within a trial.” The defendant next informed the court that he wanted to introduce other alibi witnesses to testify for Alvarez and to introduce the convenience store video surveillance tape to corroborate Alvarez’s testimony. The court also denied that request.

The court did not abuse its discretion by not allowing this evidence because it was not legally relevant. The admission of this evidence would have created a side issue that would have unduly distracted the jury from the main issue. By allowing the admission of this evidence and the examination of the alibi witnesses proposed by the defendant, the court would have opened the door to several trials within a trial. We, therefore, conclude that the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Throughout the afternoon and evening of October 12,1997, and the early morning of October 13, 1997, the following people were in the gray Toyota Corolla at one point or another: Clarence Lewis; Shawayne Hunter; Stacy Germaine Lott; Robert Tremaine Kelly; Kyle Brewer; Terrence Stevens; Leroy “Bub” Addison; Jerome “Pete” Wilson; Damian “Dame” Ellis; Jesus Alvarez; and the defendant.

       Throughout the afternoon and evening of October 12,1997, and the early morning of October 13, 1997, the following people were in the Ford Escort at one point or another: Efrem “Duke” Collins, Jr.; Seion Hernandez; Garland Hunter; MalaM Jordan; Eric Macintosh; James Butler; Jason Hawk; and Addies Grimsley.

       See footnote 1.

       On October 14,1997, Collins identified Alvarez as the driver of the Toyota from an eight person photographic array.

       See State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert, denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). A prior inconsistent statement may be used at trial for substantive as well as impeachment purposes where the statement is signed by a declarant, who has personal knowledge of the facts stated therein, and who testifies at trial and is subject to cross-examination. Id., 753.

       This tape was never marked for identification at the defendant’s trial and, therefore, is not part of the record on this appeal.

       The defendant had four alibi witnesses prepared to testily and corroborate Alvarez’s trial testimony. They were Karen White, Shakeya Davis, Aerial Rivera and either White’s mother or daughter.

       See footnote 6.


author: FOTI, J.

text:
    MICHAEL GILLUM, ADMINISTRATOR (ESTATE OF HARUNA GILLUM), ET AL. v. YALE UNIVERSITY ET AL.
    (AC 19546)
    Foti, Dranginis and Hennessy, Js.

      Argued January 23
    officially released April 17, 2001

      William F. Gallagher, with whom, on the brief, were Cynthia C. Bott and Terence S. Hawkins, for the appellants (plaintiffs).

      Jeffrey R. Bobbin, with whom was Stewart E. Newman, for the appellee (named defendant).

      Daniel P. ScapeUati, with whom were Richard C. Tynan and, on the brief, Kevin E. Majewski, for the appellee (defendant James L. Scott, Jr.).
   Opinion

FOTI, J.

The plaintiffs, administrators of the estates of the decedents, Haruna Gillum and Angelina Bryant, appeal from the judgment of the trial court rendered after it granted summary judgment in favor of the defendants, James L. Scott, Jr., a psychiatrist, and Yale University (Yale). The issue presented in this appeal is whether the court properly determined that the plaintiffs could not bring this action under the accidental failure of suit statute, General Statutes § 52-592. The detailed procedural history and facts that follow are necessary to our consideration of the issue presented in this appeal. We affirm the judgment of the trial court.

The plaintiffs had alleged that during the fall of 1988 and into the winter of 1989, Gillum, a Yale graduate student, received inadequate psychiatric care and evaluation from the defendants. They further alleged that this malpractice caused Gillum to kill himself and Bryant, with whom he had a personal relationship.

The plaintiffs filed their complaint in the original action (Gillum I) in April, 1991. In June, 1991, Yale filed a request to revise the plaintiffs’ complaint. The plaintiffs failed either to object to the request or to file a revised complaint. The court first dismissed the action under its dormancy dismissal program, pursuant to Practice Book § 251, in December, 1992. The plaintiffs waited more than four months, until April, 1993, before filing a motion to open the judgment of dismissal. The court granted the plaintiffs’ motion to open in April, 1993. The plaintiffs did not file a revised complaint at that time. The court again scheduled the action for dormancy dismissal in December, 1993. The court granted the plaintiffs’ motion to exempt the matter from the dormancy calendar. The plaintiffs ultimately filed a revised complaint in February, 1994.

The second dismissal was the result of the plaintiffs’ failure to comply with discovery requests. Yale seived the plaintiffs with interrogatories and requests for production in September, 1991. In February, 1992, Yale filed a motion for a nonsuit based on the plaintiffs’ failure to respond to those requests. In August, 1992, after Yale reclaimed its motion for a nonsuit, the court issued an order of compliance, ordering the plaintiffs to comply within two weeks with Yale’s requests. On August 31,1992, the court granted the plaintiffs’ request for an extension of time to answer the interrogatories. In May, 1993, Yale filed a motion to dismiss for the plaintiffs’ failure to comply with the September, 1991 interrogatory and production requests. At a subsequent short calendar hearing on that motion, the plaintiffs’ counsel represented that the plaintiffs would comply with the requests by June 4, 1993. On June 9,1993, Yale filed a second motion to dismiss for failure to comply with the court’s August, 1992 order of compliance.

On June 28,1993, the plaintiffs’ counsel filed an objection to that motion and represented, inter alia, that he had faced “significant difficulties in maintaining communications with the parties.” After the plaintiffs’ counsel failed to appear at the court’s June 29, 1993 short calendar hearing on the motion to dismiss, the court granted Yale’s motion. The plaintiffs finally submitted verified answers to Yale’s September, 1991 interrogatories on January 7,1994. On February 16,1994, the plaintiffs filed a motion to reopen, which was granted on March 7, 1994.

The third, and ultimately final, dismissal of Gillum I arose out of the plaintiffs’ counsel's failure to attend a mandatory pretrial conference before the court. During a June 19, 1996 status conference, the plaintiffs’ counsel and Yale’s counsel scheduled a pretrial conference for January 14,1997. On January 14,1997, counsel for both Yale and Scott appeared at the pretrial conference, but the plaintiffs’ counsel failed to appear. The court rendered a judgment of dismissal, pursuant to Practice Book § 251, now § 14-3, in favor of the defendants.

According to the plaintiffs’ counsel, he learned about the missed pretrial conference during a coincidental meeting with one of the defendant’s attorneys some time later that month. He remembers having expressed “dismay and surprise” after realizing that he had failed to attend the conference. The plaintiffs’ counsel did not take steps to remedy his failure to attend for nearly three months. On April 18, 1997, the plaintiffs’ counsel filed a motion to open the judgment of dismissal. On May 2, 1997, Yale filed a timely objection to the plaintiffs’ motion. On June 6, 1997, Scott filed a motion for judgment.

On June 24, 1997, the court granted Scott’s motion for judgment. On September 15, 1997, the court denied the plaintiffs’ motion to reopen the judgment and sustained Yale’s objection to that motion. On November 26, 1997, the court denied another motion to reopen that was filed by the plaintiffs on October 23, 1997. The plaintiffs did not appeal from the court’s decision.

Instead, the plaintiffs commenced the present action (Gillum II) in January, 1998. The plaintiffs alleged in their complaint that Gillum I “was dismissed before trial on the merits owing to a matter of form within the meaning of Connecticut General Statutes Section 52-592.” On March 9, 1998, Scott filed a motion to dismiss the action. Yale filed a request to revise, seeking, inter alia, the basis for the plaintiffs’ allegation that § 52-592 applied to the dispute. The court sustained the plaintiffs’ objection to Yale’s request to revise. The court scheduled a short calendar hearing on Scott’s motion to dismiss in May, 1998. The court noted that under Ruddock v. Burrowes, 243 Conn. 569, 706 A.2d 967 (1998), it was required to conduct an evidentiary hearing to determine if § 52-592 permitted the plaintiffs to bring the present action. After conferring with counsel, the court scheduled an evidentiary hearing for July, 1998. The plaintiffs subsequently filed three separate motions for continuanee. The court granted a “final” continuance and scheduled the evidentiary hearing for November 23, 1998.

At the evidentiary hearing, the court first addressed the procedural posture of the dispute before it. The court noted that counsel for all parties had agreed to submit the dispute to the court on the basis of documentary, rather than testimonial, evidence. The court noted that based on the evidence before it, it would be required to draw “essentially a legal conclusion” as to whether the statute permitted Gillum II to proceed. After an on-the-record discussion with the court, all counsel agreed that Scott’s motion should be treated as a motion for summary judgment. The court permitted Yale to file its motion for summary judgment after the hearing. The court heard oral argument on the motions before it on December 21,1998. On December 23,1998, the court granted the defendants’ motions for summary judgment. The court subsequently denied the plaintiffs’ motion to reargue. This appeal followed.

“The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the fight most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citation omitted; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000). “Where the trial court is presented with undisputed facts, as it was here, our review of its conclusions is plenary, as ‘we must determine whether the court’s conclusions are legally and logically correct . . . .’ ” (Citations omitted.) Raynor v. Hickock Realty Corp., 61 Conn. App. 234, 237, 763 A.2d 54 (2000).

General Statutes § 52-592, the accidental failure of suit statute, allows a plaintiff to commence a new action for the same cause, within one year, if a prior action failed “to be tried on its merits ... for any matter of form . . . .” The statute is considered a “saving statute” because it permits plaintiffs to commence those causes of action to which it applies after the tolling of the applicable statute of limitation. Our Supreme Court, in Ruddock v. Burrowes, supra, 243 Conn. 569, had occasion to consider whether a disciplinary dismissal properly may be characterized as a dismissal “for any matter of form” for purposes of obtaining relief pursuant to § 52-592. The court concluded that whether the dismissal of a prior proceeding permitted a plaintiff recourse to the statute “depends upon the nature and the extent of the conduct that led to the disciplinary dismissal.” Id., 570.

The trial court, pursuant to Practice Book § 251, now § 14-3, dismissed the original action in Ruddock after the plaintiffs had failed to attend a scheduled pretrial conference before the court. Ruddock v. Burrowes, supra, 243 Conn. 570-71. The plaintiffs in that case had filed a motion for reconsideration that represented that a car accident had delayed the plaintiffs’ counsel and that he had made efforts to communicate the cause of his delay to court personnel. Id., 571. The court reaffirmed its judgment of dismissal. Id.

The Ruddock plaintiffs commenced a new action under § 52-592, alleging the same cause of action. Id. The defendants filed a motion for summary judgment on the ground that § 52-592 did not apply to actions terminated by a disciplinary dismissal. Id., 572. The trial court granted the defendants’ motion, as a matter of law, concluding that the nature of the disciplinary dismissal precluded application of the statute, regardless of the proffered reasons for the cause of the dismissal. Id. We affirmed the trial court’s judgment, and the Supreme Court reversed our judgment and remanded the matter for further proceedings. Id., 573.

The Supreme Court stated that although it is required to construe the statute broadly, given its remedial nature, it should not construe it so broadly as to hamper a trial court’s ability to manage its docket by dismissing cases for appropriate transgressions. Id., 575. The court concluded that it is appropriate to weigh the egregiousness of the conduct that caused the disciplinary dismissal when determining whether to apply the statute to a particular action. The court noted that “[w]hether the statute applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was ‘a matter of form’ in the sense that the plaintiffs noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.” Id., 576-77. The court provided additional guidance by explaining that failing to appear at scheduled hearings might constitute egregious conduct if a party exhibits a pattern of behavior that interferes with proper judicial management of cases. Given that discussion, it is appropriate to consider each case along a continuum; at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions.

Mindful of those considerations, we analyze the dismissal in the present case. The record supports the court’s conclusion that Gillum I was beset by “lackadaisical behavior by the plaintiffs at every turn.” The court aptly characterized Gillum I as “the poster child for dilatory behavior dismissals.” In addition to the fact that the plaintiffs’ conduct occasioned three dismissals, which hampered the movement of the case toward a resolution, the plaintiffs further hindered the progress of the case by continually running deadlines to their limits before filing motions to reopen or complying with court orders. Even after the third dismissal, the plaintiffs’ counsel failed to communicate promptly to the court an explanation for his conduct. Additionally, the plaintiffs’ counsel permitted months to elapse before attempting to reopen the case. That pattern of conduct, evidenced by the court file, far surpasses mistake, inadvertence or excusable neglect. See Skibeck v. Avon, 24 Conn. App. 239, 587 A.2d 166 (pattern of repeated dismissals evidence of egregious pattern of behavior that was never meant to be saved by provisions of § 52-592), cert, denied, 219 Conn. 912, 593 A.2d 138 (1991).

The plaintiffs argue that the court improperly resolved questions of fact when reaching its conclusion. We are not persuaded. The Supreme Court in Ruddock explained that a court, during its factual inquiry into the nature of the dismissal, should consider any “claimed justification” for a party’s failure to comply with court orders. Ruddock v. Burrowes, supra, 243 Conn. 578. The court in Ruddock remanded that case for farther factual determinations because the resolution required a factual determination, given the circumstances of that case. The plaintiffs in Ruddock had filed an affidavit that again raised “the factual issue of mistake, inadvertence or excusable neglect” that they raised in their earlier motion for reconsideration. Id., 572. The present case is distinguishable because although the plaintiffs’ counsel proffered an explanation as to why he missed the scheduled pretrial conference, the court did not base its decision on the circumstances of that one dismissal or the merit of counsel’s proffered explanation, but on the plaintiffs’ pattern of conduct throughout the duration of Gillum I.

Even if the court had based its decision solely on the third dismissal in Gillum I, the fact that the plaintiffs’ counsel offered an explanation as to why he missed that conference did not raise a factual issue that precluded summary judgment in the defendants’ favor. The plaintiffs’ counsel offered the court a justification for his conduct during the evidentiary hearing in the present case, Gillum II, not immediately following the missed pretrial or in the motion to reopen the dismissal. The Supreme Court in Ruddock noted that one incident of unjustifiable misconduct, such as missing a conference and failing to offer the court a credible excuse for such behavior, could suffice to preclude application of the statute. Ruddock v. Burrowes, supra, 243 Conn. 576 n.12.

The time line in and the substance of the court file from Gillum I speak for themselves. The explanations of counsel’s conduct, set forth in his deposition transcript, did not preclude summary judgment in favor of the defendants. Even when accepting his testimony as true, as the court is required to do when ruling on a summary judgment motion, that did not remedy or excuse the years of what the plaintiffs’ counsel himself characterized as “a pattern of lackadaisicalness.” In fact, the defendants did not challenge any of the plaintiffs’ evidence before the court. They did not need to. The egregious misconduct of the plaintiffs’ counsel is evidenced by the undisputed pattern of dilatory conduct that justified the dismissals and the lack of any diligent steps to further prosecute the action that the plaintiffs had commenced. The plaintiffs argue that a jury should have been entitled to resolve the issue of whether the conduct should be considered to be a “matter of form” for purposes of the statute. That determination, however, is a legal issue that the court properly resolved. The defendants presented evidence in support of their motion for summary judgment. The plaintiffs failed to demonstrate the existence of an issue of fact. As in Skibeck, a case involving facts very similar to those in the case before us, “the parties do not dispute the procedural facts that have brought this case before us. Thus, we need review only whether the [defendants were] entitled to judgment in [their] favor as a matter of law.” Skibeck v. Avon, supra, 24 Conn. App. 242. Interestingly, despite Skibeck’s direct application to the facts presented in this case, the plaintiffs failed to cite to Skibeck in either of their briefs to this court. Given the legal issue before it, and based on the uncontradicted factual record of Gillum I, the trial court in this case logically concluded, as a matter of law, that the court in Gillum I did not dismiss that case as a “matter of form.”

The plaintiffs also assert that the court improperly failed to consider the remedial nature of the statute in reaching its conclusion. As should be abundantly clear from our discussion, the remedial nature of the statute does not require that all dismissals be considered to be a “matter of form. ” As our Supreme Court noted, despite its remedial nature, § 52-592 (a) should not “be read so broadly or interpreted so expansively that the plain language of the statute, or this court’s relatively recent construction of that language, should be ignored.” Peabody N.E., Inc. v. Dept, of Transportation, 250 Conn. 105, 126, 735 A.2d 782 (1999).

As Ruddock clarifies, § 52-592 (a) does not guarantee that all cases will receive adjudication on their merits. Construction of the statute should not be so liberal as to render a statute of limitations for bringing a cause of action “virtually meaningless.” Skibeck v. Avon, supra, 24 Conn. App. 243. Practice Book § 14-3 reflects the judicial branch’s interest in having counsel prosecute actions with reasonable diligence. Judges, faced with case flow management concerns, must “enforce the pace of litigation coming before the court, rather than allowing the parties to do so.” (Internal quotation marks omitted.) Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33, 474 A.2d 787 (1984). This case directly implicates the axiom that “[o]ur judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system.” (Internal quotation marks omitted.) Id., 32-33; see also Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341,366,579A.2d 1054 (1990) (Callahan, J., dissenting); Jaconski v. AMF, Inc., 208 Conn. 230, 232-33, 543 A.2d 728 (1988).

Where, as here, the hallmark of counsel’s representation is a pattern of repeated delay, occasioning the utilization of judicial resources to enforce proper prosecution of cases brought before the court and necessitating several dismissals, our strong policy favoring a trial on the merits loses its applicability. The underlying factual dispute in this case involves events occurring in early 1989. Nearly nine years later, the plaintiffs still had not managed to prosecute their action. The court saved Gillum I from dismissals twice. As we noted in Skibeck, “[t]o allow this action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process.” Skibeck v. Avon, supra, 24 Conn. App. 243.

The court properly concluded, as a matter of law, that the plaintiffs could not state a cause of action under § 52-592.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Michael Gillum, administrator of the estate of Haruna Gillum, and Judith A. Vaughan-Johnson, administrator of the estate of Angelina Bryant.

       Practice Book § 251, now § 14-3 (a), provides in relevant part: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196 [now § 11-1], or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. ...”

       On that same date, the plaintiffs submitted unverified responses to Yale’s first set of interrogatories and production requests.

       The court took judicial notice of the court file for Gillum I. The court also received the deposition testimony of the plaintiffs’ counsel. In addition to other exhibits, the plaintiffs’ counsel submitted a computerized calendar sheet reflecting the appointments of the plaintiffs’ counsel on the date he missed the pretrial to demonstrate that the pretrial was not included on his calendar. The parties also stipulated to relevant facts. The plaintiffs’ counsel did not offer any testimonial evidence in addition to his deposition transcript. The defendants did not challenge the plaintiffs evidence.

       General Statutes § 52-592 (a) provides in relevant part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       “A trial court, for example, might find an attorney’s misconduct to be egregious if the attorney represented that his nonappearance was caused by difficulties with his car without disclosing that he had ready access to alternative transportation. A trial court might make a similar finding if, in one case, the attorney repeatedly, and without credible excuse, delayed scheduled court proceedings. Nonappearances that interfere with proper judicial management of cases, and cause serious inconvenience to the court and to opposing parties, are categorically different from a mere failure to respond to a notice of dormancy pursuant to Practice Book § 251 ... or a single failure to appear, in a timely fashion, after a luncheon recess.” (Citation omitted.) Ruddock v. Burrowes, supra, 243 Conn. 576 n.12.

         The plaintiffs claim in their brief that the court improperly relied on the plaintiffs’ conduct in the present case, Gillum II, in reaching its decision. While the court did refer to a similar pattern of delay by the plaintiffs in Gillum II, we conclude that the court clearly predicated its decision on the plaintiffs’ conduct in Gillum I. We affirm the court’s judgment solely on the basis of its conclusions of law, which it based on the undisputed procedural history of Gillum I.


author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. WILMANN JEUDIS
    (AC 20621)
    Schaller, Flynn and O’Connell, Js.

      Argued February 23
    officially released April 17, 2001

      James M. Fox, for the appellant (defendant).

      John P. Gravalec-Pannone, senior assistant state’s attorney, with whom were Paul J. Narducci, assistant state’s attorney, and, on the brief, Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21. On appeal, the defendant claims that (1) the trial court improperly denied his motion for a new trial and (2) the state’s attorney engaged in prosecutorial misconduct. We affirm the judgment of the trial court.

I

The following facts and procedural background are necessary for a resolution of the defendant’s first claim. On December 16,1997, the jury returned a guilty verdict on all counts. On December 22, 1997, new counsel filed an appearance, together with a motion for a new trial, in which he claimed that (1) “[t]he defendant’s lack of comprehension of the proceeding denied him a fair trial,” (2) “[t]he defendant was not provided with adequate translation services throughout the pretrial and trial proceedings” and (3) “[t]he defendant was not provided with an adequate individual interpreter when he met with counsel.” The court denied the motion, and this appeal followed.

We begin our analysis by noting that “[t]here is persuasive authority that, under appropriate circumstances, a defendant’s right to confrontation, his right to counsel and his right to be present at trial may be violated if he is not provided with a separate interpreter, who performs the functions of translating for him, into his language, the testimony of English speaking witnesses and interpreting between him and his English speaking counsel during the testimony of all witnesses, both English and non-English speaking. ... A critical factual undeipinning of these constitutional requirements, however, as disclosed by those authorities, is that the defendant has so limited an understanding or ability to speak English that his ability to comprehend the proceedings and to communicate with his counsel is significantly impaired. Thus, the basic constitutional inquiry is whether any inadequacy in the interpretation made the trial fundamentally unfair . . . and the failure to provide continuous, word-for-word translation will require a new trial only upon such a showing of fundamental unfairness.” (Citations omitted; internal quotation marks omitted.) State v. Munoz, 233 Conn. 106,133-34,659 A.2d 683 (1995); Rodriguez v. Commissioner of Correction, 57 Conn. App. 550, 553-54, 749 A.2d 657 (2000).

The constitutional standard is whether the defendant can understand the witnesses, communicate and otherwise comprehend the proceedings. See State v. Munoz, supra, 233 Conn. 132-34. In the present case, there is ample evidence to establish that the defendant understood English and the court proceedings. The court found it significant that at no time prior to the filing of his motion for a new trial did the defendant indicate that he had a problem with the interpreter’s ability or interpreting skills.

Only after the court conducted a thirteen day evidentiary hearing, at which twenty-five witnesses testified, did the court render its decision denying the motion for a new trial. The state presented the testimony of nine police officers, two of the defendant’s supervisors at work, two court interpreters, a bail commissioner, the defendant’s English as a second language teacher and the defendant’s trial counsel, all of whom addressed the defendant’s ability to understand English. Each of these witnesses testified concerning the details of their contact with the defendant and stated that the defendant could speak and comprehend the English language.

Additionally, in its oral decision, the court stated: “The court has its own observations. During the trial . . . the defendant sat with his counsel and his interpreter. He sat next to his counsel and the interpreter was on the other side. In other words, he sat in the middle between his lawyer and the interpreter. The court observed the defendant talking with his lawyer throughout the trial and ignoring, or what had seemed to be — and not using the services of the interpreter while he communicated with his lawyer . . . .”

Except for the defendant’s self-serving declaration, there was no evidence concerning the need for an interpreter when the defendant met with counsel. The court was entitled to believe counsel’s testimony that he and the defendant had spoken several dozen times between the arraignment and trial and that all of those sessions involved discussions of substantive matters and were conducted in English. The record, therefore, does not support the defendant’s claim that he was deprived of his right to a fair trial because of the lack of a proper interpreter when he met with his counsel.

We do not mean to imply that the defendant was left adrift in a sea of English with no assistance. He was furnished with an interpreter at trial. At the posttrial motion hearing, however, the defendant claimed that the interpreter was of little assistance because he and the interpreter spoke different Haitian Creole dialects. He contended that the interpreter spoke a dialect known in northern Haiti and that he spoke a dialect known in southern Haiti. The defendant attempted to support this contention through the testimony of a linguistic expert. The court discredited this claim because, despite the expert’s testimony, there was no evidence that there were any words or phrases that had different, meanings in the northern and southern sections of Haiti. The court concluded that there was no evidence that dialect played a part in this issue. This is a factual finding that this court cannot overturn unless it is clearly erroneous. Johnson v. de Toledo, 61 Conn. App. 156,160, 763 A.2d 28 (2000), cert, granted on other grounds, 255 Conn. 938, 767 A.2d 1212 (2001).

In view of all the evidence, we are not persuaded that the defendant sustained his burden of demonstrating that the trial was fundamentally unfair. See State v. Munoz, supra, 233 Conn. 106.

II

The defendant next claims that the state’s attorney engaged in prosecutorial misconduct during closing argument when he (1) vouched for the credibility of the testifying police officers, (2) inflamed the passions of the jury, (3) mischaracterized the expert’s testimony and (4) offered his personal opinion. We do not agree.

Because the defendant failed to raise these issues at trial, he is entitled to a review of their merits only if he properly invokes the rule of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under the Golding doctrine, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Williams, 60 Conn. App. 575, 578-79, 760 A.2d 948, cert, denied, 255 Conn. 922, 763 A.2d 1043 (2000); State v. Peterson, 51 Conn. App. 645, 654, 725 A.2d 333, cert, denied, 248 Conn. 905, 731 A.2d 310 (1999).

In analyzing this claim, we do not focus solely on the prosecutor’s conduct. “The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . [T]o determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant.” (Citations omitted; internal quotation marks omitted.) State v. Rivera, 61 Conn. App. 763, 769, 765 A.2d 1240, cert, denied, 256 Conn. 901, 772 A.2d 599 (2001). “In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, [our Supreme Court] in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Mills, 57 Conn. App. 202, 205-206, 748 A.2d 318, cert, denied, 253 Conn. 914, 915, 754 A.2d 163 (2000).

We review the defendant’s claims because the record is adequate for review and the allegation of prosecutorial misconduct in violation of a fundamental right is of constitutional magnitude. See State v. Rivera, supra, 61 Conn. App. 775. The record does not support the defendant’s claim that he clearly was deprived of a fair trial, and, therefore, the claim fails under the third prong of Golding.

A

The defendant first claims that during closing argument, the state’s attorney improperly vouched for the police officers who had testified by stating: “Now, the police witnesses, Detective Wakerman — again, the police witnesses in this case are people who have done this over and over again. There were no rookies in this case. This wasn’t their first case out of the box. They have done this a number of — a number of times. Again, use your common sense.”

It is well settled that “[a] prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses .... The prosecutor may, however, argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Rivera, supra, 61 Conn. App. 775. It is not improper for a prosecutor to comment on the credibility of a witness as long as he neither personally guarantees the witness’ credibility nor implies that he has knowledge of the witness’ credibility outside the record. State v. Hicks, 56 Conn. App. 384, 392, 743 A.2d 640 (2000).

Here, the state’s attorney did not vouch for the credibility of the witnesses. He merely addressed the witnesses’ qualifications and the inferences the jury could draw therefrom.

B

The defendant next claims that the state’s attorney improperly inflamed the passions of the jury when he stated: “And one other thing, I would like to submit for you to recall about [the victim’s] testimony, I saw it and I would submit [that] you ladies and gentlemen saw it, do you recall the look in her eyes when I asked her to identify who [the defendant] was? You saw the look in her eyes. The state would submit this is the look of fear, the look of terror when she had to look at this defendant and point to him and say, ‘He’s the one that did this to me.’ ”

None of these comments were improper because the state’s attorney was commenting on the demeanor of a witness whom the jury saw testify. The comments were in reference to evidence that was presented to the jury and the reasonable inferences that the jury could draw from it.

C

The defendant also claims that the state’s attorney mischaracterized the testimony of two expert witnesses when he stated: “And, again, I’m going to jump ahead for a minute but [Rose] Niedzwicki and [Kimberly] Herwerth, who have dealt with almost 2000 victims between them where people have complained about being the victims of sexual assault, say if it walks like a duck and talks like a duck, its got to be a duck because they say those are the exact things in general — that children in general who complain about this talk about.”

The state’s attorney’s comments were directed toward the qualifications of two expert witnesses who testified as to the conduct of sexual assault victims. The testimony of the experts concerned the conduct of sexual assault victims in general and was not an opinion on the credibility of the victim in this case. On the basis of our review of the record, we conclude that these comments by the state were not improper.

D

Finally, the defendant claims that the state’s attorney improperly offered his personal opinion by stating the ultimate factual question as a predetermined fact. The defendant’s claim arises from the comment of the state’s attorney that the defendant sexually assaulted the victim. Viewed in the context of the state’s entire argument, it is evident that the state first sought to establish the evidentiary foundation that could lead the jury to that conclusion. The prosecutor then highlighted the evidence presented and what reasonable conclusions could be made by the jury. We conclude that the state’s attorney’s remarks were not improper.

We conclude that the defendant has failed to establish that a constitutional violation clearly exists that deprived him of a fair trial, and, therefore, he has failed to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       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 or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”

       Pursuant to Practice Book § 64-1, the court’s oral decision was transcribed and signed by the judge.

       It is interesting to note that the defendant’s expert, a linguistic professor from the University of Massachusetts, testified that the defendant was not “competent” in the Creole language. He was, however, “proficient” in it.


text:
    STATE OF CONNECTICUT v. ANTHONY J. TUDISCA, JR.
    (AC 19691)
    Lavery, C. J., and Spear and O’Connell, Js.
    Argued February 21
    officially released April 17, 2001

      Toni M. Smith-Rosario, assistant state’s attorney, with whom were Sarah E. Steere, assistant state’s attorney, and, on the brief, Kevin T. Kane, state’s attorney, for the appellant (state).

      Gilbert Shasha, for the appellee (defendant).
   Opinion

O’CONNELL, J.

The state, with permission of the trial court, appeals from the judgment of dismissal of a charge against the defendant of operating a motor vehicle while his operator’s license was under suspension in violation of General Statutes § 14-215 (c). The state claims that the trial court improperly held that notice by bulk certified mail did not provide an adequate basis to support a charge of a violation of § 14-215 (c). We reverse the judgment of the trial court.

The facts necessary for a disposition of this appeal, taken from the parties’ oral stipulation, are as follows. The defendant’s motor vehicle operator’s license was suspended by the commissioner of motor vehicles (commissioner) from February 21, 1998, through August 21,1998. The commissioner sent notice of such suspension by bulk certified mail to the defendant and his attorney on February 19, 1998. During the period of suspension, the defendant was stopped by Groton police while operating a motor vehicle on a public highway in that town and charged with operating a motor vehicle while his license was under suspension.

The defendant argues that, although notice of the commissioner’s decision could be sent by bulk certified mail, such a mailing would not constitute statutory notice to the operator that his license had been suspended and, therefore, he could not be convicted of violating § 14-215 (c). We are not persuaded.

This appeal requires an understanding of the terms “bulk certified mail” and “certified mail.” When “a letter is sent by certified mail, a record exists of both the mailing of the letter by the sender and its receipt by the recipient, who must sign for the letter. ... If a letter is sent by bulk mail certified a record exists of only the fact that it was mailed by the sender and not of its receipt by the recipient, since the recipient’s signature is not required.” (Citation omitted; internal quotation marks omitted.) Yanni v. DelPonte, 31 Conn. App. 350, 356, 624 A.2d 1175 (1993) (Lavery, J., concurring).

Prior to its amendment by the legislature in 1993, General Statutes § 14-227b (g) required that the commissioner send notice of his decision by certified mail. The 1993 amendment inserted the word “bulk” before the expression “certified mail” where it first appears in § 14-227b (g).

The notice requirement now appeal’s in subsection (h) of § 14-227b, which provides in relevant part that “[t]he commissioner shall render a decision at the conclusion of such hearing or send a notice of the decision by bulk certified mail to such person .... The notice of such decision sent by certified mail . . . shall be sufficient notice to such person that such person’s operator’s license . . . is . . . suspended . . . .”

A plain reading of the statute shows that the notice of “such decision” refers back to the notice that the prior sentence mandated be sent by bulk certified mail. If the notice is not sufficient to inform the operator that his license has been suspended, then Public Acts 1993, No. 93-371, § 1, which inserted the word “bulk” before the expression “certified mail,” was auseless act, and the inserted word is meaningless. That construction would violate the principle that “[statutes should not be construed so that words, phrases or clauses are rendered meaningless.” Wilson v. Warden, 34 Conn. App. 503, 509, 642 A.2d 724, cert, denied, 230 Conn. 908, 644 A.2d 922 (1994). Moreover, it would produce a bizarre result if we interpreted the statute to require the commissioner to send notice of his decision by bulk mail, but then to say that if the commissioner wants his decision to have any effect on the operator that he must also send a second notice by individual certified mail. “[T]here is a presumption that the legislature intends to accomplish a reasonable and rational result rather than a difficult and possibly bizarre one.” (Internal quotation marks omitted.) State v. Burns, 236 Conn. 18, 27, 670 A.2d 851 (1996).

This is not the first time that the Connecticut courts have considered this question. In Yanni v. DelPonte, supra, 31 Conn. App. 350, we held that the operator therein could not prevail on his claim that the commissioner’s mailing of the suspension notice by bulk certified mail rather than by certified mail invalidated the operator’s suspension. The plaintiff in this case argues that Yanni is not dispositive because it was an appeal from an administrative decision rather than a criminal prosecution, as is the case here.

Our Supreme Court’s decision in State v. Swain, 245 Conn. 442, 718 A.2d 1 (1998), destroyed any validity that the defendant’s argument might have had. Swain was a criminal prosecution involving a charge of operation of a motor vehicle while the operator’s license was under suspension in violation of § 14-215. In Swain, our Supreme Court rejected a claim that imposition of criminal sanctions mandated notice by certified mail so as to assure that the operator had actual knowledge of the suspension. Id., 462-63.

The defendant’s argument also ignores State v. Torma, 21 Conn. App. 496, 501, 574 A.2d 828 (1990), in which this court held that notice by bulk certified mail was sufficient. Torma was based on General Statutes § 14-111 (a), which establishes the powers of the commissioner. That statute expressly provides that notice of the commissioner’s decisions by bulk certified mail is sufficient. Section 14-111 (a) is also applicable to this case. The 1993 amendment of § 14-227b (g) brought that statute into line with § 14-111 (a).

The court’s oral decision recites that if the case went to the jury, it would instruct the jury to the effect that the state must show a mailing by certified mail. Such an instruction would be contrary to existing case law and the plain language of the statute. We conclude that the court improperly granted the defendant’s motion to dismiss.

The judgment of dismissal is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 14-215 (c) provides: “Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, and, in the absence of any mitigating circumstances as determined by the court, thirty consecutive days of the sentence imposed may not be suspended or reduced in any manner. The court shall specifically state in writing for the record the mitigating circumstances, or the absence thereof.”

       The relevant part of the substitute information charged the defendant as follows: “Anthony J. Tudisca, Jr., did operate a motor vehicle on Interstate 95 northbound, a public highway, and Route 117, a public road, during the period his operator’s license and right to operate a motor vehicle in this state was under suspension pursuant to Section C.G.S. § 14-227b (refusal to submit to a blood alcohol test) in violation of Section 14-215 (c) of the Connecticut General Statutes.”

       Subsection (g) of General Statutes (Rev. 1997) § 14-227b was redesignated as subsection (h) when the statute was amended effective January 1, 1999. See Public Acts 1998, No. 98-182, §§ 20, 22, We have referred to the subsection by its current designation, (h), throughout this opinion.
      The relevant portion of § 14-227b (h) provides: “The commissioner shall render a decision at the conclusion of such hearing or send a notice of the decision by bulk certified mail to such person not later than thirty days or, if a continuance is granted, not later than forty-five days from the date such person received notice of such person’s arrest by the police officer. The notice of such decision sent by certified mail to the address of such person as shown by (he records of the commissioner shall be sufficient notice to such person that such person’s operator’s license or nonresident operating privilege is reinstated or suspended, as the case may be. . . .”

       The relevant portion of General Statutes § 14-111 (a) provides: “No service of process shall be necessary in connection with any of the prescribed activities of the commissioner, but a notice forwarded by bulk certified mail to the address of the person registered as owner or operator of any motor vehicle as shown by the records of the commissioner shall be sufficient notice to such person that the certificate of registration or operator’s license is revoked or under suspension.”


author: DALY, J.

text:
    STATE OF CONNECTICUT v. IVAN DARIO ZAMORA
    (AC 19806)
    Landau, Spear and Daly, Js.
    Argued November 29, 2000
    officially released April 17, 2001

      James O. Ruane, with whom, on the brief, was James J. Ruane, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Margaret E. Kelley, senior assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Ivan Dario Zamora, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124. The defendant claims that the trial court improperly commented on the defendant’s plea of not guilty in its marshaling of the evidence. Specifically, the defendant argues that the court improperly marshaled the evidence and gave a prejudicial instruction to the jury by referring to a statement that the defendant had made on the night of his arrest. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 7, 1998, Cynthia Fazekas, an assistant security manager at the Lord & Taylor department store located in the Trumbull Shopping Park (mall), noticed the defendant acting in a suspicious manner. The defendant exited the mall carrying a white shopping bag that appeared to be heavy and exhibited the characteristics of a “booster” bag. Fazekas then observed the defendant walk to a red Ford van, open its side door and empty the bag’s contents therein. Subsequently, he and another man returned to the mall and met with a third man.

Fazekas and Francisco Rivera, a Macy’s department store detective, continued their surveillance of the defendant and the two other men and notified the Trumbull police department. Two Trumbull police officers and a police detective examined the contents of the vehicle through the van’s windows and set up surveillance. Approximately thirty minutes later, two of the men returned to the van, at which time the police arrested them and seized the white shopping bag. The two men could not speak English, could not produce any identification and could not produce any receipts for any of the merchandise and clothing in the van.

The defendant eventually exited the mall, and the officers stopped and apprehended him. The defendant denied that he had shoplifted and denied knowing the other two men. The officers then escorted him back to the van where Rivera and Fazekas identified the defendant as the third member of the shoplifting team.

Richard Miranda, a Spanish-speaking mall security officer, agreed to act as an interpreter for the other two men and accompanied the police and the suspects to police headquarters. While standing near the holding cells, Miranda heard the defendant state to the other two men in Spanish, “Shut up. We’re gonna get out of here all right.”

At trial, the defendant testified that this was a case of mistaken identity. He further denied knowing the two other suspects and making the previously mentioned statement. At the conclusion of the evidence, the court charged the jury in relevant part: “Now, any statements of the accused which [have] been admitted as evidence [are] to be considered by you in connection with all other evidence in the case made, as it was, out of this court. It is not like the sworn testimony offered here before you. It is to be considered by you as a declaration inconsistent with the accused[’s] plea of ‘not guilty.’ It may be, however, if you consider that it was made by the accused, evidence circumstantial in nature of the truth of the statement made in it. It is for you to determine what weight is to be given to it, and, in that connection, you should consider the circumstances under which it was made as [they] appear in the evidence before you.” The jury found the defendant guilty of larceny in the third degree. This appeal followed.

The defendant claims on appeal that the court, in its jury charge, improperly alluded to the statement that the defendant allegedly had made in the holding cell. The defendant did not properly preserve this claim because he failed to take any exception to the charge at trial. The defendant now argues, however, that he is entitled to appellate review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We disagree.

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. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id., 239-40.

The defendant’s claim fails to satisfy the second prong of Golding because the claim is not of constitutional magnitude involving the violation of a fundamental right. Specifically, the defendant’s claim involves a jury instruction that is not constitutional in nature. In State v. Marsala, 59 Conn. App. 135, 143, 755 A.2d 965, cert, denied, 254 Conn. 948, 762 A.2d 905 (2000), the trial court gave an almost identical jury instruction, and this court found that no injustice resulted. This court reviewed the claim in Marsala only because the defendant had preserved it at trial. Unlike in Marsala, the defendant in this case did not properly preserve the claim at trial and seeks review under Golding. We decline to review the claim because it involves a jury instruction that is not constitutional in nature, and, thus, the claim does not fulfill the second prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       A “booster” bag is a common tool of the shoplifting trade. It typically consists of a large, sturdy shopping bag that is lined with lead, aluminum foil or heavy layers of duct tape.