text:
    STATE OF CONNECTICUT v. JASON BREE
    (AC 32646)
    Beach, Alvord and Borden, Js.

      Argued December 1, 2011
    officially released June 5, 2012

      Katherine C. Essington, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Kevin Lawlor, state’s attorney, and Charles Stango, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Jason Bree, appeals from the judgments of conviction, rendered after a jury trial, of three counts of robbery in the first degree in violation of General Statutes § 53a-134, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134, larceny in the second degree in violation of General Statutes § 53a-123, conspiracy to commit larceny in the second degree in violation of §§ 53a-48 and 53a-123, larceny in the sixth degree in violation of General Statutes § 53a-125b and unlawful possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant claims that the court erred in (1) granting the state’s motion for joinder, (2) initially denying his motion to suppress certain testimony and later denying his motion for a mistrial after the court struck the previously admitted testimony in question, and (3) failing to give the jury an instruction regarding the special considerations applicable to accomplice testimony. We affirm the judgments of the trial court.

The defendant was accused of having committed crimes under three separate informations. Under docket number CR-08-0138376 (Shelton case), the defendant was charged with robbery in the first degree, conspiracy to commit robbery in the first degree, larceny in the second degree and conspiracy to commit larceny in the second degree. With respect to the Shelton case, the jury reasonably could have found the following facts. On September 27, 2008, at approximately 6:30 a.m., Nalinjumar Patel was working at the Wooster Street Market, a convenience store in Shelton, when Gabriel Santiago entered the store, asked for loose cigarettes and inquired in what town the store was located. When Patel told Santiago that he was in Shelton and informed him that the store did not sell loose cigarettes, Santiago left. Soon thereafter, the defendant and William Torres entered the store. The defendant jumped behind the counter and took approximately ninety cartons of cigarettes while Torres pointed a gun at Patel, demanding his wallet. During the course of the robbery, a regular customer, Anthony Carroll, entered the store, and exclaimed: “What the hell is going on?” Carroll immediately left the store and telephoned the police. The defendant, Torres and Santiago drove away in a sky blue Infiniti.

Under docket number CR-08-0137989 (Ansonia case), the defendant was charged with illegal possession of a weapon in a motor vehicle and larceny in the sixth degree. With respect to the Ansonia case, the jury reasonably could have found the following facts. On October 22, 2008, at approximately 9 a.m., Ahmed Hadi was working at the Aden Mini-Mart, a convenience store in Ansonia, when the defendant entered the store and asked for four packs of Newport cigarettes. After Hadi put them on the counter, the defendant asked for a pack of Marlboro cigarettes. When Hadi bent down to get the Marlboro cigarettes, the defendant took the four packs of Newport cigarettes from the counter, ran out of the store and drove away in a dark colored sports utility vehicle with a New York license plate. Hadi telephoned the police. While in the middle of the telephone call, Hadi stopped a police officer who was driving by and informed him of what had occurred and gave him a description of the defendant and the defendant’s vehicle along with a partial license plate number. Shortly thereafter, another officer stopped a vehicle approximately one and one-half miles from the Aden Mini-Mart, which vehicle matched Hadi’s description. The defendant was driving the vehicle, which he had rented. Inside the vehicle were four packs of Newport cigarettes and a knife.

Under docket number CR-08-0087395 (Woodbridge case), the defendant was charged with two counts of robbery in the first degree. With respect to the Wood-bridge case, the jury reasonably could have found the following facts. On November 14, 2008, at approximately 7:30 p.m., while Vamsi Makdhal was working at the counter of a Lukoil convenience store in Wood-bridge and his cousin, Imran Sarfani, was completing paperwork in a back office, the defendant entered the store. The defendant placed a knife next to Makdhal’s stomach and said “give me the cash.” The defendant briefly held the knife at Makdhal’s neck as well. Makd-hal went over to the cash register and opened it, but was too frightened to give the defendant the cash, so the defendant took the cash himself. When the defendant asked for cartons of cigarettes, Makdhal informed him that the cartons were kept in the back office. The defendant took Makdhal to the back office. The defendant took a garbage bag from the office, emptied it and told Sarfani to put cartons of cigarettes in the bag. At some point, the defendant waved the knife at Sarfani. After Sarfani complied, the defendant ran out of the store. Makdhal ran out of the store and was able to see the model of the car that the defendant drove away in and a partial license plate number.

Following a jury trial, the defendant was convicted of all charges. The court sentenced him to fifteen years imprisonment with five years special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in granting the state’s motion for joinder. We are not persuaded.

The following additional facts are relevant. Prior to trial, the state filed a revised motion for joinder, dated April 14, 2010, seeking to join the three cases for trial. The defendant filed an objection. On April 30, 2010, argument was held on the motion. The state argued that joinder was appropriate under the Boscarino factors because the factual scenarios were easily distinguishable, the crimes were not brutal or shocking, the trial would last two to four days if the three cases were joined and some evidence was cross admissible. The defendant argued against joinder, reasoning that the three cases concerned factually similar but legally unconnected offenses, the evidence in the three cases was not cross admissible and joinder would result in prejudice to the defendant. In a memorandum of decision filed April 30, 2010, the court granted the state’s motion for joinder. The court noted that, although it could not be certain prior to trial whether the evidence in the three cases would be cross admissible, the charges involved discrete and distinguishable factual scenarios that could be presented in an orderly fashion and appropriate jury instructions would be given throughout trial. The court did not expressly mention any presumption of joinder, nor did it specifically allocate a burden of proof as to the issue of joinder.

During the presentation of its case, the state withdrew its motion regarding a jury instruction on cross admissibility and stated that it would argue the elements of each case separately during summation. Also, at that time, the defendant reasserted his motion for severance. The court denied the motion. The court noted that it would repeatedly instruct the jury to consider the three cases independently.

“[W]hether a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less advantageous to the defendant. . . . [W]e have identified several factors that a trial court should consider .... These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Ouellette, 110 Conn. App. 401, 406-407, 955 A.2d 582 (2008), aff'd, 295 Conn. 173, 989 A.2d 1048 (2010); see also State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987); General Statutes § 54-57; Practice Book § 41-19.

In State v. Payne, 303 Conn. 538, 543-44, 34 A.3d 370 (2012), the Supreme Court abolished the previous blanket presumption in favor of joinder. See, e.g., State v. Davis, 286 Conn. 17, 942 A.2d 373 (2008). In Payne, our Supreme Court allocated the burden of persuasion differently in the trial context than in the appellate context. It stated that “[w]hen charges are set forth in separate informations, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19. The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence in the case is cross admissible or that the defendant will not be unfairly prejudiced pursuant to the Boscarino factors.” State v. Payne, supra, 549-50. Accordingly, the state bears the burden of persuasion in the trial court.

The court specifically retained, however, the traditional allocation of the burden of persuasion for the purpose of appeal: “Despite our reallocation of the burden when the trial court is faced with the question of joinder of cases for trial, the defendant’s burden of proving error on appeal when we review the trial court’s order of joinder remains the same. See State v. Ellis, 270 Conn. 337, 376, 852 A.2d 676 (2004) (‘[i]t is the defendant’s burden on appeal to show that joinder was improper by proving substantial prejudice that could not be cured by the trial court’s instructions to the jury’ . . .).” (Emphasis omitted.) State v. Payne, supra, 303 Conn. 550 n.11.

We consider, therefore, the joinder issue in light of Payne. First, the defendant’s three cases involved discrete, factually distinguishable scenarios. Although all three cases involved cigarettes taken from convenience stores, the three cases were not so similar so as to substantially prejudice the defendant. See State v. Fauci, 87 Conn. App. 150, 159, 865 A.2d 1191 (2005) (no abuse of discretion in joinder of three informations arising out of three robberies of three different fast food restaurants where, in each incident, rocks were thrown through glass doors of restaurants, but where each robbery took place on different date, at different location, with different victims), aff'd, 282 Conn. 23, 917 A.2d 978 (2007); State v. Bell, 93 Conn. App. 650, 656, 891 A.2d 9 (not abuse of discretion to join two cases that both involved crimes at Friendly’s restaurants where sole employee put into walk-in refrigerator, but which took place on different days in different towns with different victims), cert. denied, 277 Conn. 933, 896 A.2d 101 (2006).

In the present case, the robberies occurred on different days and at different locations. In the Shelton robbery, which occurred in September, 2008, the defendant jumped behind the counter and took boxes of cigarettes while an accomplice pointed a gun at Patel, demanding his wallet. In the Ansonia robbery, which occurred in October, 2008, the defendant had no accomplices. After asking for four packs of Newport cigarettes, the defendant absconded with them when Hadi bent down to get an additional item that the defendant had requested. In the Woodbridge robbery, which occurred in November, 2008, the defendant threatened Makdhal with a knife and demanded cash from the cash register and also threatened Sarfani with a knife demanding that he fill a garbage bag with cartons of cigarettes.

Second, although the Woodbridge and Shelton cases involved, respectively, a coconspirator threatening the use of a gun and the defendant threatening the use of a knife, these two cases were not necessarily so “brutal and shocking” so as to compromise the jury’s ability to consider fairly the charges against the defendant in the Ansonia case, which did not involve the use of a weapon. See, e.g., State v. Cassidy, 236 Conn. 112, 134, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), overruled in part on other grounds by State v. Alexander, 254 Conn. 290, 296, 755 A.2d 868 (2000).

Third, the trial was not particularly lengthy or complex. The joinder of the three cases did not result in a trial that was unreasonably long; the presentation of the state’s evidence occurred in less than three days, and the defendant presented his evidence in less than one day. See State v. Swain, 101 Conn. App. 253, 263-64, 921 A. 2d 712, cert. denied, 283 Conn. 909, 928 A. 2d 539 (2007), and cases cited therein. Additionally, the state presented its evidence on each of the three cases discretely, thereby mitigating any risk of juror confusion. See State v. Cassidy, supra, 236 Conn. 134-35.

Finally, the court’s instructions to the jury prior to trial and in the final charge that the jury was to consider each of the cases separately, further minimized any risk of prejudice that might have been caused by the joinder of the three cases. See State v. Payne, supra, 303 Conn. 554. We conclude that the defendant has not demonstrated that the court’s ruling caused him substantial or unfair prejudice, despite the possibility that the court inadvertently misallocated the burden of persuasion. Accordingly, we conclude that the court’s ruling on the state’s motion for joinder was not an abuse of discretion.

II

The defendant next claims that the court erred in (1) initially denying his motion to suppress the identification testimony of the defendant’s probation officer, Trida Kolich, and (2) later denying his motion for a mistrial after the court struck Kolich’s identification testimony that previously had been admitted. We disagree.

Prior to trial, the defendant filed a motion to suppress “any in court or out of court identification of [him] as a result of a show-up or line-up, or photographic array conducted by any law enforcement agency or any other show-up because it was conducted or occurred under circumstances which were impermissibly suggestive . . . .” Following a hearing on that motion, at which the defendant presented testimony from Kolich, the court denied the defendant’s motion to suppress. At trial, Kolich was initially called as a witness regarding the Ansonia case. She testified about certain incidents of which the defendant had informed her with respect to the Ansonia case. There is no issue presented on this appeal regarding her testimony about the Ansonia case.

Kolich was called again as a witness regarding the Woodbridge case. She testified that officers from the Woodbridge police department showed her high resolution frame-by-frame images taken from surveillance video footage of the Woodbridge robbery. She testified that the officers told her that the defendant was a suspect and asked her whether the person in the image was the defendant. She stated that she informed the officers that the person in the video bore a strong resemblance to the defendant based on clothing, facial hair and stance. She further stated that she offered to bet money on the fact that the person in the images was the defendant. At this point, the defendant objected and asked that Kolich’s testimony in the Woodbridge case be stricken.

After hearing argument on the issue outside of the presence of the jury, the court granted the defendant’s motion to strike the entirety of Kolich’s testimony in the Woodbridge case. Once the jury returned, the court informed the jury that Kolich’s testimony in the Wood-bridge case had been stricken in its entirety and that the jury should disregard it. After the jury was dismissed for the day, the defendant moved for a mistrial on the basis that the jury heard Kolich’s testimony in the Woodbridge case and could not reasonably be expected to disregard it entirely. The court denied the motion. In its final instructions to the jury, the court repeated that Kolich’s testimony in the Woodbridge case had been stricken and that the jury was not to consider it and was to treat it as if it did not exist.

The defendant first argues that the court abused its discretion in denying his motion to suppress Kolich’s identification testimony in the Woodbridge case. We need not address this argument. The court subsequently ruled that the testimony was inadmissible and struck the testimony at issue. This action renders moot the defendant’s claim regarding the denial of his motion to suppress because a successful resolution of this issue would not benefit the defendant if the subsequent instructions to disregard the testimony were effective. See State v. McElveen, 117 Conn. App. 486, 489-90, 979 A.2d 604 (2009) (“it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow” [internal quotation marks omitted]), appeal dismissed, 302 Conn. 532, 29 A.3d 897 (2011).

The defendant argues, however, that the court abused its discretion in denying his motion for a mistrial. The defendant states that there was minimal evidence concerning the identity of the robber in the Woodbridge case and that Kolich’s testimony identifying the defendant as the robber was so prejudicial that the jury likely was unable to follow the court’s curative instructions to disregard it. We are not persuaded.

“The standard for review of an action upon a motion for a mistrial is well established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Ortiz, 280 Conn. 686, 702, 911 A.2d 1055 (2006).

The principal issue in the Woodbridge case was whether the defendant committed the robbery. Although Kolich’s stricken testimony addressed that issue, there was other evidence from which the jury reasonably could have found that the defendant had committed the robbery.

There was evidence that the make and model of the car used in the robbery matched one rented to the defendant and that the license plate numbers were also consistent. Makdhal testified that, after the robber left, Makdhal ran outside and was able to see the license plate number of the robber’s car, with the exception of the last letter. Sarfani testified that he noticed that the car used by the robber was a black Chrysler 300. Robert Crowther, a Woodbridge police detective, testified that while he was en route to the crime scene he asked a dispatcher to “run the alphabet” to find if any missing letter would form a complete license plate number that belonged to a black Chrysler. He stated that a match was found and that the car belonged to a rental car company in Milford, which car at that time had been rented to the defendant.

Additionally, Crowther testified that, during an interview with the defendant, the defendant stated that he had rented the car in question but that he had loaned it to Torres in exchange for crack cocaine. Crowther stated that the defendant also told him that, on the day in question, he was “getting high” and that Torres did not return the car, but, rather, the defendant found the car later that night in Bridgeport with the keys inside. There also was evidence that the defendant knew of specific details of the robbery that had not been told to him by the police. Crowther testified that when he questioned the defendant about the robbery, the defendant’s demeanor changed from calm to nervous, and he said, “I don’t know anything about putting no knife to anybody’s neck.” Crowther stated that, although he told the defendant that there was an ongoing investigation in Woodbridge, police officers did not tell the defendant, or the defendant’s mother with whom the police had conversed -with earlier, that a knife had been used in the commission of the robbery.

The court’s curative instructions obviated prejudice that may have resulted from Kolich’s testimony identifying the defendant as the robber. “It is well settled that the jury is presumed to follow the court’s curative instructions in the absence of some indication to the contrary. . . . Thus, [a] jury is normally presumed to disregard inadmissible evidence brought to its attention unless there is an overwhelming probability that the jury will not follow the trial court’s instructions and a strong likelihood that the inadmissible evidence was devastating to the defendant.” (Citation omitted; internal quotation marks omitted.) State v. Luther, 114 Conn. App. 799, 807, 971 A.2d 781, cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009). The defendant has not met his burden of showing that the stricken testimony was so prejudicial, notwithstanding the court’s curative instructions, that the jury reasonably cannot be presumed to have disregarded it. Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a mistrial.

Ill

The defendant finally claims that the court erred in failing to give an instruction regarding the special considerations applicable to accomplice testimony, with respect to the testimony of the state’s witness, Santiago. We agree but conclude that the error was harmless.

On direct examination, Santiago testified regarding the Shelton case as follows. On September 27, 2008, he sold crack cocaine to Torres and the defendant. After the three men had smoked crack cocaine, they entered the defendant’s vehicle and traveled to Bridgeport. Santiago obtained heroin and, after using it, “got high” and fell asleep in the car. When Santiago awoke, the car was parked at a convenience store. Santiago entered the store and asked for loose cigarettes. After being informed that the store did not sell loose cigarettes, Santiago left the store, returned to the car and fell asleep. He awoke when Torres and the defendant returned to the car, passed a gun between them and threw boxes of cigarettes on top of him.

On cross-examination, Santiago testified that he initially lied to the police by telling them he had been working on the day in question. Santiago further admitted that he had declined to select the defendant from a photographic array because he had not wanted to identify him. He also stated that he later told the police that he did not know the names of the two individuals he was with and that he had never been to Shelton before, but did so only because he had no recollection, at that point, of the day in question.

The defendant filed a request to charge entitled “accomplice testimony,” regarding the testimony of Santiago. The court did not give this instruction to the jury. The court gave the jury general instructions regarding witness credibility and referred briefly to Santiago. The court did not specifically tell the jury that an accomplice may have a motive to testify in a way that he perceives to be favorable to the state in the hope that he may receive favorable treatment in his own case.

“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. ... An exception to this rule, however, involves the credibility of accomplice witnesses. . . . [When] it is warranted by the evidence, it is the court’s duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if [he or she] assisted or aided or abetted in the commission, of the offense with which the defendant is charged. . . . [I]n order for one to be an accomplice there must be mutuality of intent and community of unlawful purpose. . . .
“With respect to the credibility of accomplices, we have observed that the inherent unreliability of accomplice testimony ordinarily requires a particular caution to the jury [because] . . . [t]he conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he testifies. When those conditions exist, it is the duty of the [court] to specially caution the jury. . . . Moreover, because an instructional error relating to general principles of witness credibility is not constitutional in nature . . . the defendant bears the burden of establishing that the error deprived him of his due process right to a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 823-24, 981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010).

The state suggests that an accomplice instruction may not have been appropriate because, during his testimony, Santiago maintained his innocence in the Shelton robbery. Our review of the evidence, viewed in the light most favorable to support the defendant’s request to charge; State v. Stevenson, 53 Conn. App. 551, 576, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999); reveals that, although Santiago did not confess to being an accomplice in the Shelton robbery, an accomplice instruction was nevertheless warranted under the facts of this case.

At the defendant’s trial, Santiago admitted to riding with the defendant and Torres to Shelton and entering the convenience store first and asking for loose cigarettes. Patel testified that after Santiago left the store, two masked men — the defendant and Torres — entered the store and stole cigarettes. Benjamin Trabka, a Shelton police detective who had been called to the scene of the robbery on the day in question, testified that he believed that Santiago was involved in the robbery and that Santiago had “scoped out” the store. The conspiracy to commit robbery count of the long form information in the Shelton case named Santiago as a coconspirator. The state, in its closing argument, suggested that the defendant had conspired with Santiago regarding the Shelton robbery.

Additionally, Santiago’s credibility may well have been called into question because he was criminally charged with respect to the Shelton robbery. His case had not yet been disposed of, and, therefore, he may have been hoping for favorable treatment in the disposition of his own case. His testimony may have been colored by that fact. Under the circumstances, Santiago’s not having admitted commission of a crime did not, by itself, nullify the substantial evidence tending to show that he aided or abetted the commission of the Shelton robbery and shared a “mutuality of intent and community of unlawful purpose.” (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 227, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). The court erred in failing to give an accomplice instruction.

Having concluded that the failure to give the instruction was error, we now turn to whether the defendant has proven harmfulness. “Several factors guide our determination of whether the trial court’s failure to give the requested instruction was harmful. These considerations include: (1) the extent to which [the witness’] apparent motive for falsifying his testimony was brought to the attention of the jury, by cross-examination or otherwise; (2) the nature of the court’s instructions on witness credibility; (3) whether [the witness’] testimony was corroborated by substantial independent evidence; and (4) the relative importance of [the witness’] testimony to the state’s case.” State v. Patterson, 276 Conn. 452, 472, 886 A.2d 777 (2005).

With respect to the first factor, Santiago testified on cross-examination that he was charged as a participant in the Shelton robbery but that his case had not been disposed of. He stated that he was innocent of the charges brought against him in the Shelton robbery. He admitted to having “a whole lot” of felony convictions. He also testified that he initially had lied to the police regarding his involvement in the Shelton robbery. Although Santiago testified that he did not expect favorable treatment from the state, his credibility was questioned during the defendant’s closing argument. During closing argument, the defendant focused on Santiago’s lack of credibility and noted that he was an “admitted liar” regarding the Shelton case. Santiago’s credibility was attacked, and his motives for testifying falsely were brought to the attention of the jury.

With respect to the second factor, the court gave the jury general instructions to consider any bias or prejudice that a witness may have in judging that witness’ credibility. The court mentioned Santiago by name and stated that evidence of his previous felony convictions was admitted only for the purpose of evaluating his credibility. In its instructions to the jury on credibility, the court stated: “Your job, credibility of witnesses. In deciding what the facts are, you must consider, again, all the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none, or any part of any witness’ testimony. That is up to . . . you. In making that decision, you may take into account a number of factors, including the following. . . . [D]id the witness have an interest in the outcome of this case, or any bias or prejudice concerning any party or any matter involved in this case?”

With respect to the third factor, Santiago’s testimony was corroborated by substantial independent evidence. A videotape from the store’s surveillance camera was entered into evidence, along with various still photographs from the videotape footage, which included, inter alia, photographs of the defendant behind the counter and jumping over the counter. In the photographs, the defendant was wearing a baseball hat and a covering over his nose and face. The quality and thus the persuasive value of the surveillance video and photographs left much to be desired, but the weight to be given to them was for the jury to determine.

The videotape notwithstanding, there was significant additional evidence presented to the jury. There was testimony that the men who robbed the convenience store left in a sky blue Infiniti. Trabka testified that he viewed the surveillance footage and saw that the car used in the robbery was “a unique car ... a sky blue Infiniti G32.” Patel testified that the men left in a blue car, and Carroll noted that when he walked into the store, a man was sitting in a blue car that was parked next to the store. There was evidence that a sky blue Infiniti was registered to the defendant.

There was corroborating evidence that placed Santiago at the scene of the robbery. Although the photographs from the surveillance footage depict the defendant with his face mostly covered, the photographs of Santiago show his face and are quite clear. Trabka stated that following the robbery a clear still photograph taken by the surveillance camera of the man who initially entered the store was placed in various newspapers. The person in the photograph was identified as Santiago by a person who telephoned the Shelton police department.

Trabka’s testimony corroborated Santiago’s testimony that Torres and the defendant were involved in the Shelton robbery. Trabka testified that after interviewing Santiago about the robbery, he was aware of Torres’ street name. Trabka testified that during the course of the investigation, he learned more about the defendant’s connection to the robbery. Trabka’s testimony linked the defendant to Torres, Santiago and the blue Infiniti. The defendant’s cell phone number and license plate number were in the “contact” section of Santiago’s cell phone. The license plate number corresponded to a blue Infiniti registered to the defendant.

In State v. Patterson, supra, 276 Conn. 473, the Supreme Court held that the court’s failure to give a special credibility instruction relating to a jailhouse informant was harmful. Although Patterson involves the failure to give a jailhouse informant instruction, as opposed to an accomplice instruction, the considerations regarding harmlessness are applicable. See State v. Santiago, 103 Conn. App. 406, 412, 931 A.2d 298, cert. denied, 284 Conn. 937, 937 A.2d 695 (2007). The court in Patterson focused on the third and fourth factors, which the court noted, “militate[d] strongly” in favor of harmful error because the informant’s testimony was the only evidence adduced by the state that directly implicated the defendant. State v. Patterson, supra, 473. The court concluded that “because [the informant’s] testimony was so critical to the state’s case, and because the other evidence on which the state relied was so weak, we cannot say that the trial court’s failure to charge the jury specially regarding [the informant’s] credibility was harmless.” Id.

In the present case, an analysis of the four Patterson factors suggests that the defendant has not shown harmful error. The first and second factors strongly militate toward harmlessness. Testimony regarding Santiago’s pending case was before the jury, and the defendant argued that Santiago was not truthful in his testimony and urged the jury to listen carefully to the court’s instructions on credibility. The court did instruct the jury that a witness’ interests in the outcome of the case may affect his credibility. The court also instructed that a witness’ felony convictions may be taken into consideration when assessing credibility. The jury was well aware, then, of Santiago’s status as a less than pristine witness. The third factor weighs slightly toward harmlessness. As recited previously, there was substantial evidence corroborating Santiago’s testimony and supporting the defendant’s conviction. The fourth factor clearly favors harmfulness; Santiago’s testimony was central to the state’s case as to the Shelton robbery. As a whole, however, we hold that in light of the jury’s being aware of the infirmities in Santiago’s position and the court’s generally correct instructions, together with substantial corroborating evidence, the instructional error has not been shown to be harmful.

The central question is not whether the introduction of Santiago’s testimony was harmless. Rather the question is whether the defendant has shown that the court’s failure to instruct the jury specifically on the hazards of accomplice testimony was harmful. In the circumstances of this case, after consideration of the Patterson factors, we conclude that the error was harmless.

The judgments are affirmed.

In this opinion the other judges concurred.

        State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987).

       Following oral argument in this case, our Supreme Court issued its decision in State v. Payne, supra, 303 Conn. 538. Pursuant to Practice Book § 67-10, the defendant suggested that Payne was relevant to the issue of joinder. We sua sponte ordered the parties to file supplemental briefs addressing the following issues: “(1) is the Payne decision applicable to this case; (2) if so, did the trial court rule improperly on the issue of joinder in light of the decision in Payne and (3) if so, is any error harmless?” In his supplemental brief, the defendant argued that Payne applies and, therefore, it was the state’s burden to prove before the trial court that the defendant was not unduly prejudiced by the joinder in light of the Boscarino factors and that the state did not do so. In its brief, the state argued that, regardless of whether Payne applies, it should have no impact on our decision because on appeal the defendant cannot show that the trial court abused its discretion in joining the cases for trial or that any error was harmful.
      Although our Supreme Court stated that the ruling in Payne would not apply retroactively in habeas proceedings; State v. Payne, supra, 303 Conn. 550 n.10, it did not so limit the applicability of Payne with respect to direct appeals. Accordingly, Payne is presumed to apply retroactively to this case. See Marone v. Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (under general rule, judgments that are not by their terms limited to prospective application presumed to apply retroactively to pending cases). In its memorandum of decision on the state’s motion for joinder, the trial court did not expressly rely on a presumption of joinder, and neither party argues that it did. Rather, the trial court stated that joinder was appropriate on the basis of the first Boscarino factor. Although the trial court did not have the benefit of Payne and did not expressly state that it found the Boscarino factors in favor of joinder by a preponderance of the evidence, the court did expressly find that the cases could be presented in a way that was not confusing and that instructions would be given to the jury. The court noted that there was no suggestion by the defendant that the second and third factors were “applicable.”

       The defendant also argues that judicial economy was not served because the state presented witnesses seriatim and little evidence was cross admissible. After having considered the three Boscarino factors, we conclude that the court did not abuse its discretion in granting the state’s motion for joinder.

       In her capacity as his probation officer, Kolich apparently knew the defendant well by sight.

       The language about Kolich’s being willing to bet that the person in the surveillance video was the defendant, apparently, was a deciding factor in the court’s decision to strike the testimony.

       The defendant did not specify whether the mistrial pertained to the Woodbridge case only, in which case Kolich’s testimony was stricken, or as to all three cases.

       The defendant’s request to charge stated: “In weighing the testimony of an accomplice who is a self-confessed criminal, you should consider that fact. It may be that you would not believe a person who has committed a crime as readily as you would believe aperson of good character. In weighing the testimony of an accomplice who has not yet been sentenced or whose case has not yet been disposed of or who has not been charged with offenses in which the state has evidence, you should keep in mind that he may in his own mind be looking for some favorable treatment in the sentence or disposition of his own case or hoping not to be arrested. Therefore, he may have such an interest in the outcome of this case that his testimony may have been colored by that fact. Therefore, you must look with particular care at the testimony of an accomplice and scrutinize it very carefully before you accept it.
      “There are many offenses that are of such a character that the only persons capable of giving useful testimony are those who are themselves implicated in the crime. It is for you to decide what credibility you will give to a witness who has admitted his involvement and criminal wrongdoing whether you will believe or disbelieve the testimony of a person who by his own admission has committed or contributed to the crime charged by the state here. Like all other questions of credibility, this is a question you must decide based on all the evidence presented to you.”
      At the charging conference, the defendant altered his request to charge and asked for the charge to be given without any reference to Santiago being a “self-confessed criminal.”

       After instructing the jury generally on credibility, the court stated: “Santiago testified in this matter. A person is an accomplice when that person is a witness in a criminal action who, according to the evidence, may reasonably be considered to have participated in the offense charged. There are many offenses of such character that only persons capable of [giving] useful testimony are those who are themselves implicated in the crime. It is for you to decide the credibility of that witness in [accordance] with the factors I have just relayed to you.
      “These are some of the factors you may choose to consider, among others. There is also — you may consider in terms of evaluating the credibility of any witness, there has been evidence that . . . Santiago [was] previously convicted of felony charges. . . . Santiago also, I believe, had some — a larceny charge as well, which may not have been a felony. And these were offered for one purpose, admissible on the question of the credibility of those witnesses; that is, the weight you may give that witness’ testimony. The witness’ criminal record bears only on your determination in evaluating that person’s credibility- It is your duty, again, to determine whether this witness or those witnesses are to be believed wholly or in part or not at all. You may consider the witness’ prior convictions in weighing the credibility of this witness and give such weight to those facts that you decide are fair and reasonable in determining the credibility of that witness.”

       The state also argued that if the jury believed Santiago’s testimony that he did not participate in the robbery, the defendant could still be found guilty of conspiracy for conspiring with Torres.

       See footnote 8 of this opinion.

       At the very least, the videotape and photographs did not tend to clear the defendant.

       With respect to the first and second factors, the Patterson court concluded that the jury was aware that the state had promised the informant certain benefits in exchange for his cooperation, and the court did not specifically mention in its instructions the fact that the credibility of a witness must be considered in light of any benefits that the state has promised such witness in return for his or her cooperation, but it did give a general credibility instruction. State v. Patterson, supra, 276 Conn. 472.
      In the present case, the court did mention Santiago specifically in its instructions regarding credibility, and its instructions were otherwise complete. The third factor, substantial independent evidence, militates more toward harmlessness than harmfulness, unlike the resolution of Patterson.

       The circumstances of this case are similar to those in State v. Santiago, supra, 103 Conn. App. 414-17, in which the failure to instruct on accomplice testimony was held to be harmless.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    SCOTT WARNER v. DIANNA BROCHENDORFF
    (AC 31453)
    Lavine, Alvord and Schaller, Js.

      Argued March 13
    officially released June 5, 2012

      Lorinda S. Coon, with whom, on the brief, was Patrick J. Flaherty, for the appellant-cross appellee (plaintiff).

      William O. Riiska, for the appellee-cross appellant (defendant).
   Opinion

ALVORD, J.

The plaintiff, Scott Warner, brought the present action to foreclose a judgment lien on certain property in Salisbury owned by the defendant, Dianna Brochendorff. The trial court, after reducing the amount of the underlying judgment, rendered a judgment of foreclosure by sale (foreclosure judgment) in favor of the plaintiff. The plaintiff appeals from the foreclosure judgment, claiming that the court improperly permitted a collateral attack on the underlying judgment. The defendant cross appeals from the foreclosure judgment, claiming that the court improperly determined the amount of damages from the evidence submitted at trial. In particular, the defendant claims that the amount awarded by the court as attorney’s fees was excessive. We agree with the plaintiff and, accordingly, reverse the foreclosure judgment of the trial court.

The following facts and procedural history are relevant to these appeals. The plaintiff and the defendant are neighbors, owning adjoining properties on a wooded hillside in Salisbury. In 2003, the defendant made arrangements with Curtis Benson to cut down some trees on her property. Benson offered to sell the trees to a logging company and to share 60 percent of the proceeds with the defendant. Pursuant to that agreement, Benson cut trees for four days in November, 2003. The plaintiff subsequently claimed that Benson had cut trees from his property and that Benson had left behind substantial debris that needed to be removed. By letter dated January 8, 2005, the plaintiff notified the defendant that she had destroyed trees on his property and that he intended to take legal action.

The plaintiff filed a complaint in April, 2006 (underlying action), alleging that the defendant unlawfully entered upon his land. He alleged that she cut down, damaged or destroyed several trees on his property and that she left behind treetops and other debris from the logging operations. The defendant’s actions, he claimed, diminished the value of his property. The defendant filed apro se appearance in the underlying action, listing her address on the form as 11 East 67th Street, New York, New York. She was subsequently defaulted for her failure to plead. The plaintiff claimed the matter to the trial list, and the court held a hearing in damages on September 17, 2007.

The defendant did not appear at the hearing in damages. The plaintiff presented two witnesses, Stefen Bibro, a licensed arborist and landscaper, and the plaintiff. Bibro testified that the cost of replacing the destroyed trees and removing the logging debris from the plaintiffs property would be $50,000. The plaintiff testified as to the fair market value of his property. At the conclusion of their testimony, the plaintiffs counsel stated that the plaintiff was seeking an award of $50,000, which counsel represented to be the cost of restoring the property to its condition prior to the defendant’s trespass. The court, Pickard, J., then issued its ruling: “Based upon the testimony I have heard, I’m going to enter judgment in favor of the plaintiff in the amount of $50,000, plus taxable costs.”

The plaintiff filed a certificate of judgment lien in the Salisbury land records on September 24, 2007. On April 21, 2008, the plaintiff commenced the present action to foreclose the judgment lien on the defendant’s property. In her answer, the defendant admitted the allegations of the complaint, but she claimed that the judgment lien was not valid. She filed two special defenses, alleging that the judgment in the underlying action was obtained through fraud and was unenforceable because (1) misrepresentations were made to the trial court and (2) she lacked notice as to the underlying proceedings. One week before the trial was scheduled to commence, the plaintiff filed a motion to quash the subpoena duces tecum that had been served on the plaintiffs counsel and a motion in limine, which sought to preclude testimony that would attack collaterally the court’s measure of damages in the underlying action. The defendant filed responses to those motions on January 22, 2009.

A trial on the special defenses in the foreclosure action was held on January 22, 23 and 30, 2009. On the first day of trial, the court initially addressed the two motions filed by the plaintiff. With respect to the motion to quash, the plaintiffs counsel argued that any information sought by the defendant as to the measure of damages for cutting trees would be irrelevant to the foreclosure proceeding and to the claim of fraud in the defendant’s special defenses. After argument by the defendant’s counsel, the court overruled the defendant’s objection to the plaintiffs motion to quash the subpoena.

With respect to the motion in limine, the plaintiffs counsel stated that the defendant had disclosed two experts who planned to testify as to the proper measure of damages for cutting trees on the plaintiffs property. The plaintiffs counsel claimed that such testimony was not relevant to the defendant’s allegation of fraud in her special defenses. In response, the defendant’s counsel argued that the disparity between the damages awarded in the underlying action and the actual damages, as would be proved by her experts, was indicative of fraud. The court declined to rule on the motion in limine at that time, reserving decision until the time that the witnesses testified at trial.

The court heard testimony from several witnesses, including the plaintiff and the defendant. The defendant acknowledged that she had filed a pro se appearance in the underlying action and that she had listed her address as 11 East 67th Street, New York, New York on the appearance form. She testified that she had lived at that address for a short time only, perhaps a total of thirty days, but that she did not realize the New York address would be used as her mailing address. She conceded that she did not notify the court of her change in address. The plaintiff and the court, accordingly, had mailed all pleadings and notices in the underlying action to the New York address.

The defendant stated at trial that she never received those pleadings and was unaware that the matter was proceeding to judgment. She testified that she assumed the matter had been withdrawn because she had heard nothing further from the plaintiff in connection with the underlying action. When asked when she first became aware that a judgment had been rendered against her in the underlying action, she responded that her attorney in another pending matter between the parties notified her of the judgment in April, 2008, when he learned of it at a court conference. It is undisputed that the defendant never appealed from the underlying judgment nor did she move to open the underlying judgment within four months from the date on which it was rendered.

Three witnesses testified at the foreclosure proceeding as to the proper measure of damages for the tree cutting operation in 2003. Mathias Kiefer, a licensed land surveyor and a licensed consulting forester, testified that the value of the trees cut on the plaintiffs property would be, at the most, $450 to $500. John Harney, a licensed real estate broker, testified that the plaintiffs property suffered no diminution in value as a result of the logging operations in 2003. He did note, however, that the logger had been “sloppy” and that debris needed to be removed from the property. Finally, Bibro, the licensed arborist and landscaper who had testified for the plaintiff as to the $50,000 replacement and removal costs at the hearing in damages in the underlying action, testified at the foreclosure proceeding in response to a subpoena served on him by the defendant. He stated that he “probably” would not have recommended that the plaintiff replace the trees that had been cut down on his property in 2003.

The parties filed posttrial briefs. On August 20, 2009, the court issued its memorandum of decision in which it found the debt owed by the defendant, “as adjusted,” to be $10,000. The court further found that the fair market value of the defendant’s property was $70,000, and it rendered a judgment of foreclosure by sale. The plaintiff filed a motion for articulation on September 8, 2009, requesting that the court provide its factual findings for each claim of law raised by the parties. The court filed its articulation on December 4,2009, in which it set forth the following findings and conclusions: (1) the defendant filed a pro se appearance in the underlying action with her address listed as 11 East 67th Street, New York, New York; (2) the defendant was defaulted for her failure to plead in the underlying action on June 21, 2006; (3) the defendant failed to update the appearance form with her current address, which had changed during the course of the proceedings; (4) judgment was rendered against the defendant in the underlying action on the basis of the default and the uncontested damage evidence submitted during the hearing in damages; (6) “[alternate economic values were never offered to the trial court [in the underlying action] and therefore the court was unintentionally misinformed and judgment entered with the stated inflated values”; (6) the defendant presented defenses to the foreclosure action “based on fraud, accident, mistake and/or surprise”; (7) “an unconscionable amount of money [was] awarded to the plaintiff by way of a default judgment”; (8) a foreclosure action is an equitable proceeding, and equitable principles would allow the court to make “a realistic evaluation of the damages to the plaintiffs property”; (9) credible evidence was submitted at the foreclosure trial that demonstrated that the damage to the plaintiff’s property was far less significant than the court found in the underlying action; (10) the defendant would forfeit her right of reasonable redemption through “ignorance, mistake or simple oversight” if the amount of the judgment in the underlying action was upheld; (11) “[mistakes, ignorance and misunderstandings [were] factors in this case”; (12) the more probative arid credible evidence presented at the foreclosure trial led the court to find that twenty trees were cut or damaged on the plaintiffs property and that the total value of those trees was $3000; and (13) the plaintiff was entitled to a reasonable attorney’s fee of $7000. (Emphasis added.) For those reasons, the court rendered judgment in favor of the plaintiff in the amount of $10,000, plus costs. This appeal and cross appeal followed.

The plaintiff claims that the trial court improperly allowed the defendant to collaterally attack the underlying judgment. He argues that the court, even in an equitable proceeding, should not have permitted the defendant to retry the facts that already had been determined in the underlying action. By admitting such evidence and reducing the amount of the award of damages in the underlying action, the plaintiff claims that the court improperly refused to enforce a valid, binding, prior judgment. The defendant responds, quoting Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980), that a court of equity in a foreclosure proceeding has the authority “to withhold foreclosure or to reduce the amount of the stated indebtedness” whenever an underlying judgment has been obtained through fraud, accident or mistake. She claims that a collateral attack on the underlying judgment was permissible in this case because the plaintiff misled the court in the underlying action as to the proper measure of damages for destroyed or damaged trees.

“While courts have an inherent power to open, correct and modify judgments . . . the duration of this power is restricted by statute and rule of practice. In order for a trial corut to open a civil judgment, a motion to open or set aside must be filed within four months of the date that judgment is rendered.” (Citation omitted.) Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). See General Statutes §§ 52-212 and 52-212a; Practice Book § 17-43. A trial court has jurisdiction to open a judgment more than four months after it has been rendered, under its common law authority, when the judgment resulted from fraud, duress, accident or mutual mistake. See Flater v. Grace, 291 Conn. 410, 424, 969 A.2d 157 (2009); Carabetta v. Carabetta, 133 Conn. App. 732, 735, 38 A.3d 163 (2012). Nevertheless, “[i]t is a well-established principle that courts of equity will not relieve against the operation of judgments rendered through the negligence or inattention of the party claiming to be aggrieved . . . .” (Internal quotation marks omitted.) Flater v. Grace, supra, 425.

In the present case, the defendant did not appeal from the underlying judgment, nor did she move to open the judgment.within four months. Instead, by way of her special defenses in this foreclosure action, she claimed that the underlying judgment was not enforceable because it had been obtained through fraud. Significantly, the defendant did not allege in her special defenses that the judgment had been obtained through accident or mistake.

The court, in its articulation issued December 4,2009, did not find that the plaintiff had obtained the underlying judgment through fraud, as alleged in the special defenses. Instead, the court concluded that the court in the underlying action had been “unintentionally misinformed” and that “[mistakes, ignorance and misunderstandings” were factors leading to the award of damages in the underlying action. The court, however, was constrained to decide the matter as the issues had been pled by the parties.

“Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried .... For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings.” (Citations omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 528, 955 A.2d 667 (2008). "[A]ny judgment should conform to the pleadings, the issues and the prayers for relief. ” (Emphasis added; internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). “The [trial] court is not permitted to decide issues outside of those raised in the pleadings.” (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn. App. 801, 804 n.1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005). “Facts found but not averred cannot be made the basis for a recovery.” (Internal quotation marks omitted.) Moulton Bros., Inc. v. Lemieux, 74 Conn. App. 357, 361, 812 A.2d 129 (2002). Accordingly, the court should not have concluded that the underlying judgment could be attacked collaterally on the ground of accident or mistake.

Contrary to the defendant’s argument, an equitable proceeding does not provide a trial court with unfettered discretion. The court cannot ignore the issues as framed in the pleadings. The court cannot disregard case law. It is well established that equitable relief from the operation of a prior judgment is not available to a party whose fault has contributed to the problem of which that party now complains. “Equity will not, save in rare and extreme cases, relieve against a judgment rendered as the result of a mistake on the part of a party or his [or her] counsel, unless the mistake is unmixed with negligence, or . . . unconnected with any negligence or inattention on the part of the judgment debtor . . . (Internal quotation marks omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).

Finally, we note that the defendant is not challenging the jurisdiction of the court that rendered the underlying judgment, but, rather, she is claiming the award was excessive because the court employed an improper measure of damages for damaged trees and debris removal. Her collateral attack focuses on the amount of damages, and the method employed by the court to determine those damages, in the underlying action. Our Supreme Court disapproves of such collateral attacks. “We have strongly disfavored collateral attacks upon judgments because such belated litigation undermines the important principle of finality. . . . The law aims to invest judicial transactions with the utmost permanency consistent with justice. . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown. . . . Therefore, in order to succeed in a collateral attack, the party seeking to avoid a judgment must show that it is not merely voidable but void.” (Citations omitted; emphasis added; internal quotation marks omitted.) Meinket v. Levinson, 193 Conn. 110, 113, 474 A.2d 454 (1984). The defendant’s claim that the court did not employ the proper measure of damages, thereby awarding the plaintiff excessive damages, is not even arguably jurisdictional. Accordingly, any error of the court in the underlying action, if there was one, was not the type of error that properly could be challenged in a collateral attack on the underlying judgment.

The foreclosure judgment is reversed and the case is remanded with direction to render judgment of foreclosure in favor of the plaintiff in accordance with the amount of the underlying judgment.

In this opinion the other judges concurred.

       Because we have determined that the trial court improperly permitted a collateral attack on the underlying judgment, we do not reach the issue presented by the defendant in her cross appeal.

       “The entry of a default constitutes an admission by the defendant of the facts alleged in the complaint. ... All that remains following such an entry is for the plaintiff to prove the amount of damages to which it is entitled.” (Citation omitted; internal quotation marks omitted.) Peterson v. Woldeyohannes, 111 Conn. App. 784, 790, 961 A.2d 476 (2008).

       In the special defenses filed on September 3,2008, the defendant alleged:
      “FIRST SPECIAL DEFENSE. The judgment in the underlying action that plaintiff now seeks to foreclose was obtained through fraud and is unenforceable in that (1) plaintiff made statements of fact to the court regarding the location and value of the trees and the measure of damages that were false; (2) the statements [were] untrue and known to be so by the plaintiff; (3) the statements were made with the intent of inducing reliance thereon; and (4) the court relied on the statements.
      “SECOND SPECIAL DEFENSE. The judgment in the underlying action that plaintiff now seeks to foreclose was obtained through fraud and is unenforceable in that defendant lacked notice relating to the underlying proceedings and the judgment.”

       Additionally, the plaintiffs counsel claimed that the subpoenaed information was either protected by the attorney-client privilege or constituted attorney work product.

       During the trial, the plaintiff objected when the defendant attempted to elicit testimony as to the number of trees cut on the plaintiffs property and the proper measure of damages for the cut trees. The plaintiff objected on the ground that the defendant was collaterally attacking the judgment in the underlying action. The court allowed the testimony.

       As previously noted, the defendant alleged only fraud in her special defenses. See footnote 3 of this opinion.

       “A collateral attack is an attack upon a judgment, decree or order offered in an action or proceeding other than that in which it was obtained, in support of the contentions of an adversary in the action or proceeding . . . .” (Emphasis omitted.) Gennarini Construction Co. v. Messina Painting & Decorating Co., 15 Conn. App. 504, 511, 545 A.2d 579 (1988).

       The cases cited by the defendant in support of her position are mortgage foreclosure actions, in which the court was required to determine the amount of the debt in that proceeding. Here, the debt had been established by a judgment in a prior proceeding and subsequently was attacked collaterally in the foreclosure proceeding. The factual situations in the cited cases are not apposite to the present case.

       “The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false-, (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment.” (Emphasis added; internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn. App. 719, 730, 916 A.2d 834 (2007).

       The defendant had notice of the underlying action, as evidenced by the filing of her pro se appearance. On the form, however, she listed a New York address at which she did not receive mail. Moreover, she did not notify the court when she changed addresses. She had the opportunity to defend herself in the underlying proceeding, but she failed to avail herself of that opportunity. She was defaulted for her failure to plead. Proper procedures were followed, and the court rendered an award of damages “[b]ased upon the testimony” the court heard at the hearing in damages. The defendant did not appeal from that judgment nor did she move to open the judgment within four months. The court in the present action did not find that fraud had been used in obtaining the underlying judgment.