author: O’CONNELL, C. J. DOWNEY, J.,

text:
    STATE OF CONNECTICUT v. TEVFIK SIVRI
    (AC 16346)
    O’Connell, C. J., and Lavery and Downey, Js.

      Argued March 5
    officially released September 9, 1997

      Pamela S. Nagy, special assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan C. Benedict, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from his conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a. Our Supreme Court reversed a previous murder conviction and remanded the case for a new trial. State v. Sivri, 231 Conn. 115, 646 A.2d 169 (1994) (Sivri I).

The defendant claims that the trial court improperly (1) admitted evidence of the victim’s family life, (2) admitted evidence of handguns and ammunition found in the defendant’s brother’s room, (3) concluded there was sufficient evidence of intent to kill, (4) commented to the jury in its lesser included offense instruction, and (5) took no action concerning an improper closing argument by the state’s attorney. We affirm the trial court’s judgment.

Sivri I, supra, 231 Conn. 117-24, details the facts that the jury reasonably could have found from the evidence adduced at the defendant’s first trial. We will not repeat all of the facts here; instead, we present the following summary. The victim, Carla Almeida, worked for a business known as Andre’s Massage, which furnished employees to perform house call massage services at homes and hotels. On April 18, 1988, the victim went to the defendant’s home in the course of her employment and was never seen again. On the basis of the circumstantial evidence detailed in Sivri I, the jury convicted the defendant of murder. Sivri I was reversed because of the trial court’s failure to instruct the jury on lesser included offenses of homicide. Id., 140.

The jury in the present case could reasonably have found all the same facts relied on in Sivri I plus the following facts. On July 28, 1992, John Stoffan discovered a skull and portions of small bones on his thirty-seven acre property located along the Monroe Turnpike. Detective Rudy D’Ambrosio, along with other Monroe police officers, responded to Stoffan’s call and found fifteen pieces of skeletal remains on the ground under pine branches. The remains were those of a female of European origin between twenty and thirty years of age who had been dead more than one year but less than five years. A hole over the eye socket resulted from an object entering the skull and a hole in the back of the skull was caused by an object leaving the skull. These two holes are consistent with a gunshot that entered the front of the skull and exited the rear. The wound was fatal, causing the victim to die instantly or within a few minutes. Four points of comparison of the skull’s lower jaw matched the victim’s 1985 dental records.

In addition, during the search of the defendant’s home three days after the disappearance of the victim, Officer Joseph Quartiero seized the following items from the bedroom of the defendant’s brother, Revfik Sivri: (1) a loaded 6 Sauer nine millimeter pistol; (2) a loaded snub-nose .38 caliber revolver; (3) .45 caliber ammunition; (4) other calibers of ammunition in a desk drawer; (5) the frame and parts of an AMT back-up; and (6) the frame of a Colt .45 caliber automatic pistol. Additional facts are included in the analyses of individual issues.

I

The defendant claims that the trial court improperly denied his motion in limine to exclude evidence of the victim’s relationship with her young son, her parents and her boyfriend. He argues that this evidence was irrelevant to the issue of guilt and was introduced solely to personalize the victim to the jury and, thus, was an improper plea for sympathy.

The defendant contends that the evidentiary basis for admitting this evidence at the first trial no longer existed. At the earlier trial, the evidence was introduced in an effort to show that because of her family ties the victim was unlikely to have just wandered off. Because the victim’s body had been discovered before the commencement of the second trial, the defendant claims that evidence of her family ties was no longer relevant.

The state claims that the purpose of the evidence was to show not only that the victim was dead, but that she was murdered on April 18, 1988, at the defendant’s residence in Trumbull. Because the victim’s remains were found in another town four years after her disappearance, the state still had the burden of proving where and when she died. Accordingly, evidence that she was not the type of person who would leave her family and wander off was still relevant.

Admissible evidence need not be conclusive as to the fact that the offerer is seeking to prove. All that is required is that the proffered evidence tends to support a relevant fact. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). Evidence of the victim’s family life together with other circumstantial evidence reasonably could be found by the jury to support the state’s claim that the victim died on April 18, 1988, at the defendant’s home.

The trial court has broad discretion in ruling on relevancy issues. State v. Santiago, 224 Conn. 325, 326, 618 A.2d 32 (1992). We will not disturb a trial court’s discretionary ruling unless a clear abuse of discretion is shown. State v. Bember, 183 Conn. 394, 408, 439 A.2d 387 (1981). We are not persuaded that the denial of the defendant’s motion in limine was an abuse of the trial court’s discretion.

The defendant also argues that, even if the family ties evidence was relevant, it should have been excluded because its prejudicial effect outweighed its probative value. State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). “Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” Id., 703. The evidence at issue was not extraneous but, as we have held, was relevant and tended to prove an issue at trial. Applying this standard, we determine that the court’s ruling was proper.

Furthermore, the trial court gave an appropriate cautionary jury instruction. Unless there is a clear indication to the contrary, a jury is presumed to follow the court’s instructions. State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). Additionally, when a claimed error does not involve a constitutional issue, the burden is on the defendant to demonstrate that it is more probable than not that improper action of the court affected the result. State v. Willis, 221 Conn. 518, 525, 605 A.2d 1359 (1992). The defendant has not sustained this burden.

II

The defendant next complains that the trial court abused its discretion by admitting evidence that several large caliber handguns and ammunition were found in his home. The trial court allowed Quartiero to testify concerning his participation in a search of the defendant’s home and his finding guns and ammunition in the bedroom of the defendant’s brother. In addition, the trial court permitted the admission into evidence of photographs of the guns.

The defendant argues that the admission of this evidence was improper because it allowed evidence and testimony concerning seized articles that tended to indicate criminal propensity when those articles were not connected to the commission of the crime charged. State v. Mozell, 36 Conn. App. 672, 677, 652 A.2d 1060 (1995). The defendant argues further that the admission of such evidence is analogous to “other crimes” evidence and would lead the jury to view the defendant and perhaps his family as violent and prone to criminal activities. The defendant contends that the trial court allowed the jury to guess, surmise and speculate that the guns in the defendant’s brother’s room were those used in the victim’s homicide. He claims that the sheer proximity of the guns to the defendant created the unjustified conclusion that the defendant, having the means to commit the crime, must have done so.

The defendant relies on State v. Ferraro, 160 Conn. 42, 46, 273 A.2d 694 (1970), which held that evidence of the discovery of pistols, ammunition and a ski mask in the defendants’ apartment permitted speculation that the defendants used those items to attack the victims. The court in Ferraro simply found that there was an insufficient connection between the paraphernalia found in the apartment and that used in perpetrating the crime. Id.

The state argues in the present case that there was a sufficient nexus between the guns, the defendant and the crime. The purpose of this evidence was to show that the defendant had the means to commit the murder. “Evidence indicating that an accused possessed an article with which the particular crime charged may have been accomplished is generally relevant to show that the accused had the means to commit the crime.” State v. Villafane, 171 Conn. 644, 675, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). The state does not have to connect a weapon directly to the defendant and the crime. It is necessary only that the weapon be suitable for the commission of the offense. People v. Free, 112 Ill. App. 3d 449, 461, 445 N.E.2d 529, cert. denied, 464 U.S. 865, 104 S. Ct. 514, 78 L. Ed. 2d 701 (1983).

In State v. Villafane, supra, 171 Conn. 675-76, the Supreme Court found that evidence of the defendant’s possession of a handgun one day after the shooting permitted the jury to infer that the defendant possessed the gun the day earlier. Here, the search of the defendant’s home only three days after the disappearance of the victim revealed several guns and ammunition. We are satisfied that the discovery of the evidence was sufficiently close in time to the disappearance of the victim to comport with Villafane.

“Evidence is not inadmissible because it is not conclusive; it is admissible if it has a tendency to support a fact relevant to the issues if only in a slight degree.” State v. Miller, supra, 202 Conn. 482. In Miller, the assailant used handcuffs during the assault, and testimony was admitted that the handcuffs had been supplied to a federal correctional institution where the defendant, who was a federal prison guard, may have had access to them. Here, the state demonstrated that the victim lost a large quantity of blood in the defendant’s family room. Further, the holes in the victim’s skull indicate that she was killed with a large caliber handgun. We conclude, therefore, that there was a sufficient connection between the murder charge and the proffered exhibits.

The defendant claims that the admission of the evidence regarding the guns and ammunition was unduly prejudicial. Whether this evidence was prejudicial was a matter for the trial court’s discretion. See our discussion of prejudicial evidence in part I of this opinion. We may not reverse a conviction because of the erroneous admission of evidence unless the defendant demonstrates that the abuse of discretion was manifest or where an injustice appears to have been done. State v. Willis, supra, 221 Conn. 522. The defendant has not demonstrated an abuse of discretion or that the admission of the contested evidence caused injustice.

III

The defendant’s third claim is that the evidence was insufficient to prove beyond a reasonable doubt that he possessed the specific intent to cause the death of the victim. The identical issue was considered by the Supreme Court in Sivri I, supra, 231 Conn. 126-37. On less evidence than was presented in the case now before us, the Supreme Court held that “[although the evidence certainly did not mandate an inference of an intent to kill, we conclude that [all of the permissible inferences] taken together . . . [reasonably support] the inference of an intent to kill that the jury drew.” Id., 130. Two justices dissented from that holding, and the defendant asks us to adopt the dissenting view. This would require us to overrule the majority, which we are powerless to do. This court will not reexamine or reevaluate Supreme Court precedent. State v. Wilson, 17 Conn. App. 97, 98 n.1, 550 A.2d 21 (1988).

Because we are bound by the majority decision in Sivri I, independent analysis by this court on the intent issue would be a futile endeavor.

IV

In his fourth claim, the defendant argues that, during the trial court’s instruction on lesser included offenses, it improperly informed the jury that it was obligated under the law to give the lesser included offense instructions. The defendant also complains that the trial court instructed the jury six times that it could not consider the lesser included offenses unless it first found the defendant not guilty of murder. The defendant further claims that the judge revealed his opinion that the state sustained its burden of proving murder when he stated “[bjecause the killing of one human being by another is so abhorrent to us we invariably, when faced with the facts indicating such a killing, begin to wonder why it was done. What led one person to snuff out another’s life.” The defendant argues that the multiple instruction on the consideration of the lesser included offense, together with this comment, deprived the defendant of a fair trial.

The defendant did not object to the trial court’s instructions and seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), claiming that the jury instructions infringed on his due process right to a fair trial before an impartial judge and jury. The defendant also seeks plain error review of this claim pursuant to Practice Book § 4061 (formerly § 4185), contending that the instructions affected “the fairness and integrity of and public confidence in the judicial proceedings.” State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992).

As to the trial court’s comments that it was obligated under the law to instruct the jury on the lesser included offenses, we conclude that this instruction was a correct statement of law, and was adapted to the facts and gave the jury a clear understanding of what it had to decide. State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992).

The state argues, and we agree, that when the trial court instructed the jury that it must first find the defendant guilty or not guilty of murder, before considering any lesser offenses, it correctly stated the law as set forth in State v. Sawyer, 227 Conn. 566, 579, 630 A.2d 1064 (1993). In Sawyer, our Supreme Court concluded that “to ensure that the charged offense has been determined by unanimous agreement, the court must direct the jury to reach a unanimous decision on the issue of guilt or innocence of the charged offense before going on to consider the lesser included offenses.” Id., 579. The trial court also informed the jurors that because they were given instructions on lesser offenses, this should not be interpreted by them to indicate how the trial court viewed the evidence.

A jury instruction is constitutionally adequate if it provides the jury with a clear understanding of the elements of the crime charged, and affords it proper guidance for its determination of whether those elements are present. State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). The state argues that the evidence was sufficient to sustain the verdict and the defendant is not challenging the instructions on the charge of murder, of which the juiy found him guilty. Therefore, the state maintains that the defendant has failed to demonstrate any constitutional violation that warrants further review. Moreover, unless there is a clear indication to the contrary, a jury is presumed to follow the court’s instructions. State v. Negron, supra, 221 Conn. 331. Accordingly, we conclude that the trial court’s instructions were constitutionally proper and do not merit Golding review.

As to the trial judge’s comment about “snuffing out” a life, the defendant points out that a trial judge has a responsibility to conduct the trial fairly and impartially, and he “should be cautious and circumspect in his language and conduct.” State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985). A trial judge “must refrain from making remarks which are indicative of favor or condemnation or which disparage a defendant before the jury.” Id., 12. The defendant contends that the judge’s comments indicated his own personal opinion about the defendant and “ ‘practically told the jury how to decide disputed issues of fact and thus exceeded its power to comment on the evidence.’ ” Enlund v. Buske, 160 Conn. 327, 332, 278 A.2d 815 (1971). He also contends that the trial court failed to instruct the jury in a neutral and detached manner.

After reviewing the record, we conclude that the trial court’s comment about what leads a person to “snuff out” another person’s life did not deprive the defendant of a fair trial. The transcript reveals that, in context, the comment was appropriate because the trial court was instructing the jury that motive was not an element of the crime of murder. Essentially, the trial court was explaining that it was understandable that the jurors may wonder why the defendant did what he did, but that motive was not a necessary factor in their- deliberations. This instruction was legally correct and did not indicate condemnation or disparagement of the defendant. State v. Avila, supra, 223 Conn. 602.

We turn now to the defendant’s plain error claim. Where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review is available only if it constitutes plain error. Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986). To prevail under the plain error doctrine, the defendant must demonstrate that the “claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest justice.” State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). This doctrine is not even implicated and review of the claimed error is not undertaken “unless ‘the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” Id., quoting State v. Boles, supra, 223 Conn. 551. Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimensions unless he demonstrates that it “likely affected the result of his trial.” State v. Day, supra, 850. The defendant has not demonstrated that the claimed error has affected the result of his trial.

Because the jury was properly instructed, we conclude that the defendant has not demonstrated manifest injustice. “Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review.” State v. Wright, 207 Conn. 276, 288, 542 A.2d 299 (1988).

V

Finally, the defendant claims that the remarks made by the prosecutor during the closing argument deprived him of a fair trial because, during its closing argument, the state improperly (1) suggested that the defendant had a duty to present evidence, (2) referred to facts not in evidence, and (3) appealed to the jurors’ emotions. The defendant concedes that he did not object to the state’s closing argument, but seeks review of this claim under State v. Golding, supra, 213 Conn. 239.

“[P]rosecutorial misconduct of constitutional proportions may arise during the course of closing argument . . . .” State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990). “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). The issue is whether the prosecutor’s conduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). “We must, therefore, determine whether the remarks of the prosecutor, in light of all the circumstances, including the trial court’s charge, were so egregious and so damaging to the defendant that they deprived him of a fair trial.” State v. Richardson, 214 Conn. 752, 761, 574 A.2d 182 (1990).

A

The defendant first claims that the state improperly shifted the burden of proof by stating in the closing argument that “I really am not yet, to be honest with you, clear on how the defense claims that manslaughter fits under the facts of this case.” During the state’s rebuttal, the prosecutor again discussed the issue of manslaughter and the defendant’s claim that he did not intend to kill the victim, arguing that “[o]n what evidence the defense bases this I don’t know. I have yet to see it.” The defendant likens these statements to those in State v. Williams, 41 Conn. App. 180, 186-87, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996), in which a prosecutor attacked the defendant’s alibi, stating that the defendant was really stretching because he had nothing else to go with, and that he failed to present evidence to show that he was elsewhere. “Once an alibi defense is raised in Connecticut, the state bears the burden of disproving it.” Id., 186. The issue here, however, does not involve an alibi; it involves the issue of whether the defendant intended to kill the victim. Williams, therefore, is inapposite.

We have already determined that the state presented sufficient evidence for the jury reasonably to conclude that the defendant intended to kill the victim. In his closing argument, the defendant sought to discount this evidence and argued that the state did not meet its burden on the element of intent to kill, and argued instead that the jury should consider manslaughter. The state, in rebuttal, addressed this contention, arguing that it did not fit into the evidence that the state had presented. Having examined this claim in context, we conclude that the state properly argued that the evidence demonstrated that the defendant intended to kill the victim, despite the interpretations of the facts that the defendant might argue.

B

Second, the defendant claims that the prosecutor improperly commented on facts not in evidence. Specifically, the defendant argues that instead of offering evidence as to what kinds of guns constituted large caliber weapons, the prosecutor provided his own expertise during closing argument that several of the defendant’s brother Revfik Sivri’s guns were large caliber weapons and, therefore, could be the murder weapon.

The defendant claims that the prosecutor improperly referred to the guns found in the house as “large caliber” without presenting expert testimony classifying the guns seized as large caliber. There was no evidence that the wound inflicted on the victim in the defendant’s home was from a large or small caliber gun, only that the victim suffered a considerable wound that caused a substantial loss of blood. We conclude that the prosecutor’s reference to the large caliber guns was of no consequence and did not prejudice the defendant or deprive him of a fair trial.

In addition, the defendant claims that the prosecutor improperly described the defendant’s family as a “close-knit family” that would help out other family members in need, and, further, suggested the various actions of the family members to assist the defendant. These suggestions, the defendant claims, are that the defendant and his brother Adnan Sivri disposed of the victim’s car, that the defendant’s brother Revfik Sivri drove the defendant to Canada and that the Sivri family cleaned up the family room and shampooed the rug.

The prosecutor recounted the evidence that Adnan Sivri would not allow the police to enter the family home and when the police asked the defendant’s mother if they could enter the house, she clutched her chest and fell to the ground. The prosecutor then reminded the jury that Adnan Sivri refused medical assistance for his mother that was offered by the Trumbull police. The prosecutor pointed out to the jury that the evidence demonstrated that Adnan Sivri left work at 5 p.m. and, because it would take two people to dispose of the victim’s van, was available to help the defendant dispose of the victim’s van. The prosecutor then mentioned the defendant’s flight to Turkey through Canada and the role, again inferentially, that Revfik Sivri had in that action.

We conclude that the prosecutor properly tied the evidence together in his closing argument and addressed the defendant’s argument that the evidence clearly demonstrated that the defendant was not alone when the victim was shot. We are not persuaded that the prosecutor did anything more than argue permissible inferences from the evidence. Accordingly, the trial court did not improperly fail to correct or to cure the alleged prosecutorial misconduct.

C

Third, the defendant claims that the prosecutor unfairly appealed to the jurors’ emotions and diverted their attention with extraneous matters. Specifically, the defendant claims that throughout the closing argument, the prosecutor made comments intended to incite the jurors’ passions, characterized the defendant’s family as close-knit and reminded the jury that there was “a veritable arsenal up in one of the bedrooms” of the defendant’s house. The prosecutor noted that murder victims are “rendered permanently mute by the very conduct of the defendant that puts us all here in this room in the first place.” The prosecutor reminded the jury of the victim’s caring family. Finally, the prosecutor ended his argument by saying that the evidence did not support a manslaughter conviction, and, “[i]f you care to give this plea more than a moment’s thought, think first of the mercy he showed [the victim] when he fired that bullet through that young mother’s skull. Ladies and gentlemen, plain and simple, that’s as vicious as it gets.”

“A prosecutor may not appeal to the emotions, passions and prejudices of the jurors.” State v. Williams, supra, 204 Conn. 545. We have stated that such appeals should be avoided because they “have the effect of diverting the jury’s attention from their duty to decide the case on the evidence.” (Internal quotation marks omitted.) Id. “An appeal to emotions may arise directly, or indirectly from the use of personal and degrading epithets to describe the defendant. . . . Although a state’s attorney may argue that the evidence proves the defendant guilty, he may not stigmatize the defendant by the use of epithets which characterize him as guilty before an adjudication of guilt.” Id., 545-46. In Williams, however, the prosecutor repeatedly referred to the defendant as a coward, child beater, baby beater, and infant thrasher, and an evil man. The court in Williams concluded that it was “reasonably possible that this continuous use of invective would have the improper effect of appealing to the emotions and prejudices of the jury.” Id., 547.

In the present case, however, the prosecutor’s closing argument did not include any epithets. The prosecutor’s pleas and characterization of the defendant’s conduct as vicious was not unreasonable because the prosecutor presumed that the jury believed the evidence that the defendant shot the victim once when she was in his home and again while she lay in the trunk of his car. The prosecutor permissibly argued that the evidence that the state presented did not support a manslaughter conviction, and attempted to persuade the jury that if it agreed with the state’s interpretation of the evidence, it should return a murder conviction, not a manslaughter conviction.

“An unpreserved prosecutorial misconduct claim is not reviewable if the claimed misconduct consisted of isolated and brief episodes [that] did not reveal a pattern of conduct repeated throughout the trial or conduct that was not blatantly egregious.” State v. Henry, 27 Conn. App. 520, 529, 608 A.2d 696 (1992). “In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the juiy in final argument.” State v. Hansen, 39 Conn. App. 384, 395, 666 A.2d 441, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). We conclude that, in the context of the entire trial, the prosecutor’s comments did not deprive the defendant of a fair trial. State v. Richardson, supra, 214 Conn. 759-60.

The judgment is affirmed.

In this opinion LAVERY, J., concurred.

DOWNEY, J.,

concurring. I write separately to indicate my belief that State v. Sivri, 231 Conn. 115, 646 A.2d 169 (1994), does not preclude this court from reviewing the defendant’s claim of insufficiency of evidence. Because I believe, however, there was sufficient evidence admitted in the defendant’s second trial to support the jury’s verdict, I agree with and join the majority opinion.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), the Supreme Court transferred the appeal to this court.

       The trial court’s cautionary jury instruction was as follows: “I instruct you that the evidence of [the victim’s] relationships may only be considered by you in resolving the question of whether she was killed or whether she simply became a missing person on the day in question. You may, under no circumstances, let sympathy or emotion cloud your judgment as fair and impartial fact finders.”

       See Miller v. Commissioner of Correction, 242 Conn. 745, 753, 700 A.2d 1108 (1997).

       The defendant’s argument was viable while this appeal was pending before the Supreme Court because that court could have reconsidered the issue of intent. That viability evaporated, however, when the appeal was transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

         State v. Golding, supra, 213 Conn. 239-40, held that a party can prevail on a claim not adequately presented at trial only if all of the following condiüons 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.”

       The defendant also mentions that the prosecutor improperly suggested that the defendant had a duty to testify, but he does not develop this claim. We note that the prosecutor did not comment directly on the defendant’s duly to present any evidence.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    CHONG PARK v. KYE JA CHOI ET AL.
    (AC 16458)
    O’Connell, C. J., and Landau and Hennessy, Js.
    Argued June 3
    officially released September 9, 1997

      James D. Moran, Jr., with whom was Maureen E. Driscoll, for the appellants (named defendant et al.).

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

O’CONNELL, C. J.

The named defendant, Kye Ja Choi (employer), and the defendant insurance carrier, the New York state insurance fund (fund), appeal from a decision rendered against them by the compensation review board (review board) in a dispute arising out of a workers’ compensation claim. The issue is whether the review board improperly concluded that the fund provided coverage for the plaintiff employee’s compen-sable injury in Connecticut.

An examination of the review board’s record discloses the following pertinent facts. On June 3, 1994, the plaintiff sustained a compensable injury to his eye while removing asbestos from a job site in Hartford. At the time of the injury, the plaintiff was employed by a New York employer insured by the fund for workers’ compensation. The policy issued by the fund expressly limited coverage to operations in the state of New York, except as expanded by endorsement. There was not, however, an extraterritorial endorsement attached to the policy, nor any testimony or documentary evidence offered to the commissioner to suggest that coverage extended beyond the borders of New York.

The commissioner found that the plaintiff was entitled to Connecticut benefits and ordered the employer and the fund to pay the workers’ compensation award within ten days. Additionally, the commissioner stated that if the employer and the fund failed to pay within the time frame given, the defendant second injury fund of Connecticut (second injury fund) would be required to pay the award pursuant to General Statutes § 31-355 The employer and the fund appealed to the review board, which relied on General Statutes § 31-343 and affirmed the commissioner’s findings. We now reverse the review board’s decision.

First, it is essential to clarify that the issue here is not whether the plaintiff has a right to file for workers’ compensation benefits in Connecticut, but whether the review board incorrectly concluded that the fund was required to pay the Connecticut benefits once they were awarded to the plaintiff. The second injury fund has erroneously confused the two issues.

The second injury fund mistakenly relies on Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 588 A.2d 194 (1991), and thus argues that the review board’s decision was correct. Cleveland, as applied to this case, stands for the proposition that the plaintiff has a right to file for Connecticut benefits. Specifically, the Cleveland court stated: “Thus, in addition to providing workers’ compensation benefits to those employed pursuant to contracts executed within Connecticut, if an employee had been injured in Connecticut during the course of his employment but the employment contract had been executed in another state that did not give extraterritorial effect to its own workers’ compensation act, the contract was interpreted as having implicitly incorporated Connecticut’s Workers’ Compensation Act [General Statutes § 31-275 et seq.] within its terms unless the act had been explicitly rejected by one of the parties.” Id., 189. Thus, although Cleveland gives an employee a right to Connecticut benefits, it does not address the question of who remains liable for such payments. There is no dispute here that the review board has jurisdiction over the plaintiffs claim and that he was entitled to apply for Connecticut benefits.

In the present case, however, the review board’s reliance on § 31-343 to conclude that the fund is responsible for the payment of the award is misplaced because that statute assumes that the policy issued to the employer provides coverage in Connecticut pursuant to General Statutes § 31-340 before § 31-343 can be implicated. The fund policy clearly limited its coverage to job-related injuries occurring in New York. Moreover, neither party offered any evidence to suggest that the policy covered job-related injuries in Connecticut. For that reason, a § 31-343 analysis is never reached.

The Connecticut courts cannot attempt to rewrite a New York insurance policy that clearly excludes extraterritorial coverage. The practical effect of such an attempt would be to reach over the state line and improperly assert jurisdiction over the fund. The court would be met at the state line by Alvarez v. Frederick Snare Corp., 50 App. Div. 2d 643, 374 N.Y.S.2d 438 (1975). The Alvarez court found that a policy issued by the fund that limited coverage to New York operations was valid. In that case, the court held that had the employer wanted to obtain out-of-state coverage or international coverage, a specific endorsement was required. Id., 644.

Thus, the New York courts recognize the express limiting language of fund policies that do not carry extraterritorial coverage. We cannot now hold that law to be superfluous, since the practical effect would be to render out-of-state insurance carriers vulnerable to claims filed against them in all fifty states, even when such coverage was not contemplated, paid for or intended.

The judgment is reversed and the case is remanded to the compensation review board for further proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.

       rrhe fund is a quasi-state agency that operates as a private insurer. Badarie v. Charles B. Gols, Inc., 25 App. Div. 2d 79, 80, 267 N.Y.S.2d 447 (1966) (“[w]e see no reason to put the [f]und under a different standard of risk than that expected of other carriers”).

       General Statutes § 31-355 (b) provides in pertinent part: “When an award of compensation has been made under the provisions of this chapter against an employer who fails or is unable to pay medical and surgical aid or hospital and nursing service required under this chapter or any type of compensation for disability, or both . . . and whose insurer fails or is unable to pay the compensation, such compensation shall be paid from the Second Injury Fund. . . .”

       General Statutes § 31-343 provides: “As between any such injured employee or his dependent and the insurer, every such contract of insurance shall be conclusively presumed to cover the entire liability of the insured, and no question as to breach of warranty, coverage or misrepresentation by the insured shall be raised by the insurer in any proceeding before the compensation commissioner or on appeal therefrom.”

       The commissioner also issued a penalty against the employer for failure to cany workers’ compensation insurance in Connecticut. The review board reversed this award on the ground that it conflicts with the statutorily mandated presumption of coverage. The review board stated that such a penalty is premature and “should not be issued until and unless another tribunal has interpreted the insurance policy issued by the [f]und to exclude coverage of the [plaintiffs] Connecticut injury.” Since this finding is irrelevant to this court's decision, it will not be addressed here.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. JOSHUA C. SMITH
    (AC 16374)
    Landau, SchaUer and Spear, Js.
    Argued March 19
    officially released September 9, 1997

      Richard T. Meehan, Jr., with whom, on the brief, was Richard T. Meehan, Sr., for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and James Bemardi, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). The defendant claims that the trial court improperly (1) failed to prohibit, sua sponte, the parties from employing “hypothetical” questions during voir dire, (2) concluded that the evidence presented at trial was sufficient to prove the defendant’s guilt beyond a reasonable doubt, and (3) allowed one of the state’s witnesses to testily that he believed that an attempt to stab him was based on his status as an eyewitness to the shooting in this case. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 11, 1994, the victim, Devon Laidley, and his girlfriend, Tonia McKoy, were at a house at 167 South Main Street in the city of Norwalk. The defendant arrived at the residence, stood on the front porch and engaged in a conversation with a friend, Willis Heron. Subsequently, the victim emerged from the residence and walked down the driveway toward a gate near the front sidewalk. Suddenly, the defendant jumped off the porch, pulled out a gun and fired at the victim, who was standing at the gate. When the shots were fired, the victim tried to run away from the defendant. The defendant, still firing his gun, pursued the victim. When the victim stumbled and fell to the ground, the defendant approached him and fired the gun at him two or three more times at close range. In total, the defendant fired approximately nine to twelve shots at the victim. The victim later died, and an autopsy revealed that he was hit by eight bullets, one of which pierced his heart. Both Heron and McKoy witnessed the killing. Additional facts will be discussed throughout this opinion where relevant.

I

During voir dire, both the state and the defendant posed questions to the venirepersons regarding their objectivity in assessing the credibility of prosecution witnesses who were testifying in exchange for the state’s agreement to nolle certain drug charges against them. The defendant first claims that the trial court improperly failed to prohibit, on its own motion, the parties from asking those questions during voir dire. Specifically, the defendant claims that the trial court had a duty to prohibit both parties from posing those allegedly improper “hypothetical” questions during voir dire. We disagree.

The defendant failed to raise this claim at trial and now seeks review under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We agree with the defendant that the record is adequate for review, and that the allegedly improper voir dire questions implicate the constitutional right to an impartial jury and to a fair trial, thereby satisfying the first two prongs of State v. Golding, supra, 239. Therefore, we will examine the defendant’s claim to determine whether the alleged violation clearly exists and clearly deprived him of a fair trial in violation of the third Golding prong.

We start with the principle that the right to question prospective jurors in a criminal proceeding is a fundamental right that contributes to a fair trial. “The right to question each juror individually by counsel shall be inviolate.” Conn. Const., art. I, § 19, as amended by art. IV of the amendments. The legislature has also recognized the importance of questioning jurors by enacting General Statutes § 54-82f, which provides in relevant part: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. . . .” See also Practice Book § 848.

We also recognize that the trial court has been granted broad discretion to ensure the fairness of the voir dire process. “ ‘The extent to which parties should be allowed to go in examining jurors as to their qualifications is a matter largely resting in the sound discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused, and where harmful prejudice appears to have been caused thereby.’ ” State v. Sheets, 40 Conn. App. 328, 331, 671 A.2d 366, cert. denied, 237 Conn. 903, 674 A.2d 1334 (1996). In the exercise of this discretion, “the court should grant such latitude as is reasonably necessary to accomplish the two-fold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges.” State v. Scuilla, 26 Conn. App. 165, 173, 599 A.2d 741 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1362 (1992).

Whenever there is a likelihood that prejudice may exist in a prospective juror that will affect the outcome of the case, the party affected thereby should be afforded sufficient latitude to uncover such prejudice. State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985). That latitude is limited by the impropriety of questioning prospective jurors regarding their predisposition to decide issues with respect to evidence that may be offered at trial or with the intent to condition them to prejudge issues that will affect the outcome of the trial. State v. Clark, 164 Conn. 224, 226, 319 A.2d 398 (1973). While certain hypothetical questions posed to prospective jurors during voir dire are improper; see State v. Anthony, 172 Conn. 172, 175-76, 374 A.2d 156 (1976) (eliciting from prospective juror in advance what decision would be under particular set of facts not permitted); hypothetical questions are proper when attempting to assess a prospective juror’s capacity to judge credibility. State v. Pollitt, 205 Conn. 61, 75, 530 A.2d 155 (1987) (questions regarding witness credibility proper to determine whether prejudice existed in prospective jurors).

In this case, the hypothetical questions posed to prospective jurors related solely to their ability to judge the credibility of witnesses. Both the state and the defendant questioned prospective jurors regarding their ability to judge objectively the credibility of a witness’ testimony when that witness was testifying pursuant to a cooperation agreement with the state. These questions were designed to uncover prospective jurors’ potential prejudice with respect to the veracity of a witness who was testifying in exchange for the state’s promise not to prosecute that witness for certain drug charges. Indeed, several venirepersons who were questioned on this point stated that they generally disfavor such arrangements with prosecutors. As a result of this questioning, specific venirepersons testified that they might be less inclined to assess objectively the particular witness’ testimony given that witness’ motivation to testify.

The questions at issue in this case went directly to the prospective jurors’ ability to assess the credibility of witnesses who would be called at trial. The questions were not attempts to elicit opinions from prospective jurors regarding how they would rule on a certain stated set of facts, or to condition them to prejudge pivotal issues that would affect the outcome of the trial. Because these questions were proper, and the trial court was justified in allowing counsel to probe prospective jurors on their ability to assess witness credibility through the use of hypothetical questions, the defendant’s claim fails the third prong of Golding. See State v. Pollitt, supra, 205 Conn. 75 (questions permitted by court regarding witness credibility adequate alternative for uncovering prejudice in prospective jurors); State v. Fritz, 204 Conn. 156, 165-66, 527 A.2d 1157 (1987) (improper for court to exclude questions regarding prospective jurors’ predisposition to lend greater credibility to police officer serving as witness); State v. Dolphin, 203 Conn. 506, 516, 525 A.2d 509 (1987) (same); State v. Scuilla, supra, 26 Conn. App. 173-74 (court allowed counsel sufficient latitude to uncover possible prejudice regarding ability to assess witness credibility).

The defendant also urges us to review his claim under the plain error doctrine. Plain error review is utilized only in extraordinary circumstances and situations in which “the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). Since we have concluded that the hypothetical questions during voir dire were proper under the circumstances, plain error review is not warranted.

II

The defendant next claims that there was insufficient evidence to support his murder conviction. To support his claim, the defendant points to inconsistencies in the testimony of certain witnesses regarding the height of the gunman. He also cites the inability Of one witness to provide the gunman’s name to the police immediately after the incident, and another witness’ failure to come forward offering to testily until over one year later.

“When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. State v. Salz, supra [31]; State v. Rivera, supra [200-201].” State v. Reddick, 33 Conn. App. 311, 332, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).

“It is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. . . . It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Id., 332-33; State v. Ketchum, 45 Conn. App. 270, 280-81, 696 A.2d 987 (1997).

In this case, it was reasonable for the jury to conclude that the defendant was the gunman. Two witnesses at the scene of the murder testified at trial that they knew the defendant prior to the murder and positively identified him as the gunman. One of these witnesses, McKoy, testified that she saw the defendant shoot the victim. She also testified that she went to the police station the day after the murder and picked out the defendant’s photograph from police photographs. The other witness, Heron, was present on the porch during the shooting and testified that he witnessed the entire shooting incident and that the defendant was the gunman.

Inconsistencies in testimony and witness credibility are matters that are within the exclusive purview of the jury to resolve at trial. State v. Ketchum, supra, 45 Conn. App. 280-81; State v. Reddick, supra, 33 Conn. App. 332. Therefore, we find no merit to the defendant’s claim that the evidence was insufficient to support a guilty verdict.

III

Finally, the defendant claims that the trial court improperly allowed evidence with respect to his prior misconduct, which prejudiced the jury. Heron was allowed to testify that he believed that a third party was instructed by the defendant to stab him because he had witnessed the shooting. The defendant raised an objection, which was treated as a motion in limine, to the hearsay aspect of Heron’s proffered testimony— that he had heard rumors that the defendant was responsible for the attempted stabbing. The trial court granted, in part, the motion in limine precluding the witness from introducing the hearsay testimony. Defense counsel did not object to the introduction of testimony as to Heron’s belief as to the source of the attempted stabbing, but objected only to the hearsay component. The defendant now claims that it was improper for the trial court to allow such testimony with respect to the defendant’s prior misconduct, despite his failure to raise this specific objection at trial.

This is an evidentiary claim that was not preserved at trial. “We have consistently refused to consider evi-dentiary rulings not properly preserved. Where the issue raised for the first time on appeal is a matter of state evidentiary law, rather than of constitutional significance, this court will deny the defendant appellate review. State v. Forrest, 216 Conn. 139, 146, 578 A.2d 1066 (1990).” State v. Baldwin, 224 Conn. 347, 362, 618 A.2d 513 (1993). Therefore, we decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), the Supreme Court transferred the appeal to this court.

       “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.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 631-32 n.5, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997).

       A representative sample of some of the questions posed is as follows:
      “Q. Now, I’m going to be calling witnesses during the course of this case who are going to tell you what they saw. . . . Two of them . . . have drug cases pending for selling drugs themselves. . . . Now, do you think that simply because a person is a drug dealer and they take the stand and they tell you what it is that [he or she] saw, because they’re a drug dealer they must not be telling the truth just for that reason by itself?
      “A. I would prefer to evaluate the testimony on its own merits.
      “Q. Okay, now as I indicated, they have their own case pending unrelated. . . . And they have entered into what we call [a] cooperation agreement with the state of Connecticut, which basically says that in return for them testifying in this case truthfully, that they’re—they’re going to get benefits on their own case. I’m going to drop the charges against them for testifying in this particular case. Do you think, right, that simply because they have entered into that agreement, that when they talk to you and tell you what it is they saw, that they—that they must be lying and that you don’t even need to hear them out?
      ‘A. No I don’t think that.”
      An example of the defendant’s use of such questioning is as follows:
      “Q. [The assistant state’s attorney] may tell you now or he may not, that a couple of his witnesses have made deals that they are people who have pending cases, drug dealers, a drug dealer in particular who is going to testify. And you’ll hear that this person came forward long after this alleged case, long after the incident and said I saw it. He’s the guy who did it but what’s in this for me? I’m use—I’m paraphrasing this obviously. And that’s going to be one of his witnesses. How do you feel about that?
      “A. I think I would like to hear how this presentation is going to be made. I think it’s up to me to in fact detect the degree of credibility where this person, when he’s cross-examined, he’s provided information] back and forth. . .

       For example, the following exchange between the state and a venireperson occurred during voir dire:

        “Q. But the issue is not whether or not I should have entered into the agreement. The issue is despite the agreement or maybe on account of the agreement, are they telling you the truth about what it is that they know? ... Do you think you can stick to that issue? Like you wouldn’t say something like, hey, you know my common sense is telling me that those two people that are testifying with—with the agreements with the prosecutor, I think they’re telling the truth. But I hate these agreements so much, I don’t care if they’re telling the truth. I’m going to disregard it because I don’t care what they say. I shouldn’t—I don’t want to be a part of a case where the prosecutor entered into such an agreement. You understand what I mean?
      “A. I understand what you’re saying. ... I still feel that their testimony could be tainted though.”

       Since we have determined that the trial court was justified in allowing such questions, we do not reach the defendant’s claim that the trial court had an independent duty to disallow such questions on its own motion. In addition, the issue of whether defense counsel may waive objection to the use of such hypothetical questions through his participation in this practice need not be decided. See State v. Patterson, 230 Conn. 385, 393, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996).


text:
    TRAVIS FALLS v. LOEW’S THEATRES, INC.
    (AC 14943)
    O’Connell, C. X, and Schaller and Hennessy, Xs.
    Argued April 25
    officially released September 9, 1997

      Joel M. Fain, with whom, on the brief, was Mary J. Ambrogio, for the appellant (defendant).

      Paul J. Yamin, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Loew’s Theatres, Inc., appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Travis Falls, in this negligence action. The defendant claims that the trial court improperly (1) excluded evidence of a witness’ prior inconsistent statement, (2) permitted the plaintiffs expert to testify as to the possibility of future surgery, (3) refused to grant it a continuance, (4) interrupted its counsel during his opening statement and (5) failed to set aside the verdict as excessive. We agree with the defendant’s first claim and, because it is dispos-itive of the appeal, we reverse the judgment of the trial court and remand the case for a new trial.

The relevant facts are as follows. On May 17, 1991, the plaintiff and two friends, Steven Fasciano and Sean Sant, attended a movie at the defendant’s theatre in the town of Torrington. After the movie concluded, the plaintiff and his friends were leaving the theater through the lobby when they noticed some other teenage boys pointing at them and appearing to talk about them. At that point, the plaintiff, Fasciano and Sant wanted to use the telephone to call for a ride home. Before they were able to use the telephone, however, the ushers instructed the crowd in the lobby, including the plaintiff and his two friends, that they had to leave the theater. Once outside the theater, one of the teenage boys who had been pointing at the plaintiff, Fasciano and Sant approached Fasciano, began arguing with him, and punched him in the face. The plaintiff, who was standing next to Fasciano, was punched by the other boys and, when he went down on his knees to protect himself, was hit several more times in the back of his head and neck. After the fight broke up, the theater personnel escorted the plaintiff and Fasciano into the bathroom to allow them to clean their abrasions.

Subsequently, the plaintiff brought an action alleging that, as a result of the negligence and carelessness of the defendant, the plaintiff was assaulted and suffered injuries. The defendant denied the plaintiffs allegations. After a jury trial, a verdict was returned in favor of the plaintiff awarding damages of $104,676. The defendant subsequently moved to set aside the verdict and for a new trial. The motions were denied by the trial court and this appeal followed.

The defendant claims that the trial court improperly excluded evidence of a witness’ prior inconsistent statement. “It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court or in other proceedings which contradict those made upon direct examination. . . . This is based on the notion that talking one way on the stand, and another way previously, raises a doubt as to the truthfulness of both statements.” (Citations omitted.) State v. Saia, 172 Conn. 37, 45, 372 A.2d 144 (1976). “The impeaching statement may be oral ... or written.” (Citations omitted.) State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988). For the statement to be admissible, “[it] must be substantial and relate to a material matter.” State v. Richardson, 214 Conn. 752, 763, 574 A.2d 182 (1990); see also Drew v. K-Mart Corp., 37 Conn. App. 239, 249, 655 A.2d 806 (1995). “The trial court is vested with wide discretion as to what may be admitted as a prior inconsistent statement for impeachment purposes.” State v. Richardson, supra, 764.

With these principles in mind, we turn to the facts and circumstances relevant to the defendant’s claim. At trial, the plaintiff produced the testimony of his friend, Christian Hudak. Hudak testified on direct examination that on the night of the incident, the plaintiff had asked him if he wanted to go to the movies. Hudak declined but agreed to meet the plaintiff after the movie. Hudak stated that he walked from his house to the theater and stood outside waiting for the movie to conclude. He further stated that when he approached the plaintiff and Fasciano as they left the theater, they said that there was a problem with some other teenagers in the theater. Thereafter, Hudak saw the other teenagers approach and start a fight with Fasciano and the plaintiff. Hudak testified further that, after seeing Fasciano struck in the face and the plaintiff drop to the ground, “I ran, some time during the fight, I don’t remember when. I ran around the entrance door and I went in the first set of doors. There are two sets, and there was a group of people there, there was a security guard and employees of the movies. And I told them that there was a fight going on. And I said get somebody out there right away, because I didn’t personally want to jump into the fight . . . for my own safety. . . . They didn’t say anything to me. They all looked at me. They all heard what I said, and they didn’t say anything back. I guess I probably assumed that they would follow me. And I just ran back out. . . . The fight was still going on. And there was a security guard right down at another door down further in the parking lot. And I sort of waved him over. I said, you know, ‘Fight. There is a fight going on,’ and sort of waved him over. I am not really sure of what I did with my body, but I made him aware that there was a fight.”

On cross-examination, the defendant’s counsel presented Hudak with a two page statement. Hudak confirmed that the statement represented a summary of his account of the incident, which he had given to the plaintiff. The following colloquy then occurred: “[Defense Counsel]: Is there anything in that statement about an attempt that was made to get back into the theater after they had already come out and met you?

“[Hudak]: No, it doesn’t say that.

“ [Defense Counsel]: Is there anything in that two page document about attempts that you made to get the attention of ushers or security guards?

“[Hudak]: No, it doesn’t. He asked me to be brief and, you know, on the day that I did this, I didn’t want to take up much time.

“[Defense Counsel]: So that didn’t make it into those two pages?

“[Hudak]: Correct.”

Thereafter, the defendant’s counsel offered Hudak’s statement into evidence for impeachment purposes. The plaintiffs counsel objected. The following colloquy occurred: “The Court: There is nothing to impeach him in there.

“[Defense Counsel]: Oh, absolutely there is, Your Honor. There are a number of omissions that I just highlighted.

“The Court: He just explained that.

“ [Defense Counsel]: But I can still offer the document. He can explain it all he wants, but the fact that he left it out of this information that he dictated to [the plaintiff] who transcribed it is indeed an omission.

“[Plaintiffs Counsel]: Your Honor, I don’t understand the reasoning there.

“The Court: Objection sustained.”

On the basis of our review of Hudak’s in-court testimony and his prior statement, we conclude that the trial court improperly refused to admit Hudak’s statement for impeachment purposes. “Inconsistencies may be shown not only by contradictory statements but also by omissions, in other words, failures to state certain facts. Thus, if the prior statement fails to mention a material fact presently testified to that it should have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent. State v. Reed, [174 Conn. 287, 302-308, 386 A.2d 243 (1978)]. . . . Conversely, inconsistency is also shown by a prior statement’s containing a material fact that is omitted in testimony.” (Citations omitted.) C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.24.3, p. 208; see also State v. Whelan, 200 Conn. 743, 748 n.4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Here, Hudak’s testimony is inconsistent in both respects. First, his prior statement fails to mention that when the fight broke out he ran into the theater and reported the fight to the theater personnel and that they refused to come to the aid of his friends. Second, Hudak’s in-court testimony failed to include that he turned and began walking away from the plaintiff before the fight started as he indicated in his prior statement. Those inconsistencies are substantial and relate to a material issue in that they go to the core of the plaintiffs claim that the theater personnel refused the plaintiff and his friends entry to the theater and that the theater personnel knew there was a fight occurring on the premises but failed to take action to stop it. The fact that Hudak was able to explain why or how the statements differed does not mean that the prior statement should have been excluded. See State v. Walker, 214 Conn. 122, 130, 571 A.2d 686 (1990) (witness impeached by admission of prior inconsistent statement generally entitled to explain contradictory statement). The prior statement was proper impeachment evidence for the jury to consider.

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

In this opinion the other judges concurred.

       In light of our reversal of the judgment on the basis of the defendant’s first claim, we need not address the defendant’s remaining claims as we cannot determine that they are likely to occur upon retrial.

       The statement stated as follows: “Four years ago this May I witnessed an assault on [the plaintiff]. I went to Loew’s Cinema after a movie to meet [the plaintiff] and Steve Fasciano. When I arrived I saw an usher show people out. In the crowd was [the plaintiff] and Steve. When [the plaintiff] and Steve came out they were nervous. They told me some kids were hassling them. I said that they could come to my house until their rides came to be safe. They said the usher would not let them use the phone and said, ‘Movie’s over. Outside. No hanging out.’—they said their rides were picking them up there. We chatted for a couple of minutes and I started walking away. As I walked away, I heard yelling behind me. I turned around and saw people throwing fists. I noticed that it was [the plaintiff] and Steve on the receiving end. I ran over to try to stop it when Matt kicked [the plaintiff] in the head. I noticed that a friend was driving by who was older and larger. I waved him over and he broke it up. He pushed the kids off of [the plaintiff] and Steve and we waited for police.”


text:
    STATE OF CONNECTICUT v. RAY CHARLES WRIGHT
    (AC 15773)
    Foti, Landau and Schaller, Js.
    Argued March 21
    officially released September 9, 1997

      William J. Shea, special public defender, for the appellant (defendant).

      Michael E. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joseph C. Valdes, deputy assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) (3). On appeal, he claims that the trial court violated his equal protection rights under the state and federal constitutions when it sentenced him for larceny in the second degree for the taking of property from a person, an offense with a maximum sentence of ten years in prison, while a conviction for robbery in the third degree—taking property with the use or the threat of immediate use of physical force—has a maximum sentence of only five years in prison. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 19, 1995, the victim, Angel Rivera, was walking on Capitol Avenue in Hartford when he was approached by the defendant. When the defendant asked Rivera if he was a gang member, Rivera responded that he was not. The defendant then demanded that Rivera remove his coat and give it to him. Rivera complied and the defendant ran away with the coat. Thereafter, Rivera returned home and told his mother, Hilda Cordero, that the defendant had taken his coat. Cordero called the police and reported the incident.

The next day, Rivera and Cordero were on their way to the Greater Hartford Community Center when they observed the defendant on the comer of Albany Avenue in Hartford. The defendant was wearing the coat that he had taken from Rivera the previous day. Subsequently, Rivera and Cordero drove to the community center, telephoned the police and reported that they had seen the defendant wearing Rivera’s coat. Officer Dennis O’Connor of the Hartford police department, who responded to the call, went to the community center, interviewed Rivera and then proceeded to the comer of Albany Avenue where he saw the defendant. O’Connor placed the defendant in his cruiser and drove him back to the community center. Rivera then identified the defendant as the man who had taken his coat, and O’Connor seized the coat the defendant was wearing as evidence and placed him under arrest.

After a jury trial, the defendant was convicted of larceny in the second degree. Subsequently, the trial court sentenced the defendant to a term of imprisonment for eight years, imposition of which was suspended after five years, followed by probation for a period of five years. This appeal followed.

The defendant’s sole claim on appeal is that larceny in the second degree is a crime of a less serious nature than robbery in the third degree because larceny in the second degree does not involve the element of the use or the threat of immediate use of physical force, and that, because the penal statutes assign a greater penalty to larceny in the second degree, a class C felony, than they do to robbery in the third degree, a class D felony, they violate the equal protection clauses of the state and federal constitution. See State v. O'Neill, 200 Conn. 268, 285-89, 511 A.2d 321 (1986); State v. Jenkins, 198 Conn. 671, 676-80, 504 A.2d 1053 (1986).

“A party contesting a statute’s constitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt.” State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985); see also Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973). “The classification of crimes is for the legislature. ” State v. Rao, 171 Conn. 600, 603, 370 A.2d 1310 (1976). In examining the rationality of a legislative classification, we are bound to defer to the judgment of the legislature unless the classification is clearly irrational and unreasonable. State v. Simmat, 184 Conn. 222, 224-25, 439 A.2d 915 (1981).” State v. Dupree, supra, 665.

After our review of the statutes involved in this case, we determine that this is not a case of “legislative error that mistakenly assigns a lesser penalty to a greater crime”; State v. Jenkins, supra, 198 Conn. 677; nor is it a case where a more serious crime is linked with a less serious penalty. Id., 676. By classifying larceny in the second degree as a class C felony, the legislature has recognized its serious nature and has classified it accordingly. This recognition finds support in State v. Arena, 33 Conn. App. 468, 486, 636 A.2d 398 (1994), aff'd, 235 Conn. 67, 663 A.2d 972 (1995), where we stated that “ ‘[t]he stealing of property from the person has been from an early period under the English statutes treated as a much graver and more heinous offense than ordinary or common theft—partly by reason of the ease with which it could be perpetrated and the difficulty of guarding against it, and partly because of the greater liability of endangering the person or life of the victim.’ ” Accordingly, we conclude that the defendant has failed to demonstrate that the legislature’s classification of larceny in the second degree as a class C felony is irrational or unreasonable.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       General Statutes § 53a-123 (a) provides: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars, (2) the value of the property or service exceeds five thousand dollars, (3) the property, regardless of its nature or value, is taken from the person of another, or (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less.”

       General Statutes § 53a-136 provides: “(a) A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133.
      “(b) Robbery in the third degree is a class D felony.”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       We note that this claim was raised for the first time on appeal. We review it, however, under the rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).


text:
    TERRANCE J. O’BRIEN ET AL. v. DEREK JOHN COBURN
    (AC 16663)
    O’Connell, C. J., and Schaller and Hennessy, Js.

      Argued May 29
    officially released September 9, 1997

      Michael F. Dowley, with whom, on the brief, was Margaret A. Waldron, for the appellant (defendant).

      Thomas F. Noonan, for the appellees (plaintiffs).
   Opinion

SCHALLER, J.

The defendant, Derek John Cobum, appeals from the judgment of the trial court in favor of the plaintiffs, Terrance J. O’Brien and Mary Ann O’Brien, in this action for an easement. The defendant claims that the trial court improperly (1) permitted the plaintiffs to amend their complaint, (2) denied his application for attorney’s fees, (3) denied the recusal motion that was made during the course of trial, (4) refused to reread testimony during his cross-examination of a witness, and (5) admitted hearsay testimony under General Statutes § 52-172, the dead man’s statute. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiffs and the defendant are the owners of adjoining parcels of real property in the town of Durham. Before the parcels were conveyed to the parties, they were owned by the common grantor, John W. Chapman. In 1968, Chapman conveyed the western parcel to the plaintiffs by warranty deed. The property conveyed to the plaintiffs consisted of approximately seventeen acres of land with a residence on the front part of the parcel, and a separate concrete shop and garage on the rear, which Chapman had used as a tool shop. The only access for motor vehicles to the tool shop building was by a driveway that was not located on the plaintiffs’ property. In addition, a telephone line and a Connecticut Light and Power Company utility line, which provided service to the shop and garage, existed on the defendant’s property. In 1972, Chapman conveyed the adjoining property to the defendant by warranty deed.

In the deeds conveying the respective properties to the plaintiffs and the defendant, no reference was made to an easement in favor of the plaintiffs concerning the right to use the driveway to gain access to the shop and garage. The plaintiffs have used the shop and garage building as an automobile repair shop. Over the years, the driveway was used by the plaintiffs to allow motor vehicles to gain access to the repair shop. The doorway to the shop and garage opens only onto the driveway, thereby necessitating the use of the driveway for the proper use of the building as an automobile repair shop.

In April, 1993, the defendant attempted to obstruct the plaintiffs’ access to and use of the driveway. In addition, the defendant contacted the Connecticut Light and Power Company and the Southern New England Telephone Company to request that all utility service to the shop and garage be discontinued because the utility lines were on the defendant’s property.

In July, 1993, the plaintiffs filed a complaint claiming an easement by prescription and seeking injunctive relief that would prevent the defendant from denying them physical access to the garage and that would prevent the defendant from discontinuing the utility service. The plaintiffs also sought money damages in their complaint. The defendant filed a counterclaim seeking injunctive relief to prevent the plaintiffs from accessing the driveway and for money damages.

The trial court, Gaffney, J., found the facts as proven were sufficient to create an easement by implication in favor of the plaintiffs. The trial court enjoined the defendant from interfering with the plaintiffs’ easement rights, and denied the defendant’s claims for relief. The defendant appealed to this court, claiming that the trial court improperly granted relief for a cause of action not pleaded in the plaintiffs’ complaint. We agreed with the defendant, and held that since the plaintiffs had pleaded only an easement by prescription, it was improper for the trial court to find an easement by implication and to grant relief on that basis. See O'Brien v. Coburn, 39 Conn. App. 143, 149, 664 A.2d 312 (1995). Accordingly, we reversed the judgment of the trial court and remanded the case for a new trial.

At the scheduling call prior to the second trial, the trial court, Higgins, J., scheduled the matter for trial and placed an order in the file that stated “no replead-ings.” The day before the start of the second trial, the plaintiffs moved to amend their complaint to include two new counts alleging (1) an easement as an appurtenance to their property, and (2) an easement by implication or necessity. The trial court granted the plaintiffs’ motion to amend their complaint and continued the trial for ninety days to allow the defendant to prepare for the new counts contained in the plaintiffs’ amended complaint. The trial court indicated at that time that he would consider allowing reasonable attorney’s fees to the defendant because of the delay associated with the allowance of the amended complaint.

After a two day trial to the court, the trial court issued a memorandum of decision and judgment with findings of fact and conclusions of law. The trial court rendered judgment in favor of the plaintiffs concluding that an easement by necessity existed in their favor. The trial court held that the plaintiffs were entitled to make reasonable use of the defendant’s driveway for ingress and egress to and from the shop and garage building at the rear of the plaintiffs’ property. The trial court enjoined the defendant from interfering with the plaintiffs’ easement rights and dismissed the defendant’s counterclaim. Finally, the trial court denied the defendant’s application for attorney’s fees, concluding that the defendant was not unreasonably surprised by the plaintiffs’ additional claims presented in their amended complaint because these claims had been argued at the first trial. This appeal followed.

I

The defendant first claims that the trial court improperly allowed the plaintiffs to amend their complaint at the beginning of trial when the court had previously ordered no repleadings.

Additional facts are necessary for the resolution of that claim. On January 3,1996, at the calendar call, this case was set for a trial date of March 27, 1996. Before that date was set, the following colloquy occurred between the trial court and the defendant’s counsel: “Defense Counsel: Number forty-three. I apologize for coming in after the call. Meg Waldron for the defendant, Cobum. This is back from the Appellate Court.

“The Court: Wonderful.

“Defense Counsel: So, it’s for a new trial, and there are pleadings that still need to be done, I’m told by the plaintiffs.

“The Court: How do pleadings get redone after its been on appeal?

“Defense Counsel: He’s going to amend his complaint.

“The Court: No; he—

“Defense Counsel: (Interposing) I’m just telling what you the plaintiffs—

“The Court: (Interposing) Who tried the case originally?

“Defense Counsel: Judge Gaffney

“The Court: Set it down for pretrial. Put an order in the file no repleadings. It went up on appeal. It’s going to be tried on the basis of the appellate decision.”

On March 26, 1996, the plaintiffs filed a request for leave to file an amended complaint. On March 27, 1996, the defendant’s counsel objected to the plaintiffs’ motion to amend their pleadings. In his objection, the defendant reminded the trial court of its January 3,1996 order of no repleadings. The court responded: “I am fully aware that I made that statement. ... I think, having reviewed the appellate decision, that I ought to allow the amendment. . . . Put [the case] on a ninety day tickler.”

We cannot conclude that the trial court improperly granted the plaintiffs’ motion for request to file an amended complaint. “A trial court has wide discretion in granting or denying amendments of pleadings and rarely will this court overturn the decision of the trial court.” S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 794, 631 A.2d 340 (1993); Kelley v. Bonney, 221 Conn. 549, 591, 606 A.2d 693 (1992). Upon review, “[a] trial judge has a unique vantage point that entitles his decision to great weight on appeal.” Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985); Simmons v. Southern Connecticut Gas Co., 7 Conn. App. 245, 251, 508 A.2d 785 (1986); Sansone v. Lettieri, 4 Conn. App. 466, 467, 495 A.2d 720 (1985). Here, although the trial court recognized that the amendment “should have been filed a long time ago,” it granted the defendant a ninety day continuance to allow him to prepare. We cannot say that the trial court exceeded its discretion in granting the plaintiffs’ motion to amend their complaint.

II

The defendant claims next that the trial court improperly denied his application for attorney’s fees associated with the allowance of the plaintiffs’ amended complaint. We disagree.

On March 27,1996, at the oral argument on the plaintiffs’ motion to amend, the trial court stated, “I will also allow [the defendant’s counsel] fees . . . if he presents to the court a request, a reasonable request for additional time that he must spend in order to prepare himself for trial on the pleadings, the new pleadings. [I]f you file a reasonable request for attorney’s fees, I’ll probably make an allowance for that.” On September 18, 1996, after the trial concluded, the defendant filed a motion for attorney’s fees seeking $3000 for the preparation and litigation of his case on the amended pleadings. The trial court denied this motion. On appeal, the defendant relies on the trial court’s statements that it would “probably” allow for attorney’s fees concerning the amended pleadings.

Practice Book § 176 (c) provides: “If the amendment occasions delay in the trial or inconvenience to the other party, the court may award costs in its discretion in his [or her] favor.” “Because the trial court is in a more advantageous position to evaluate the services of counsel than a reviewing court, [t]he amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion. Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1982).” (Internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 77-78, 689 A.2d 1097 (1997). “In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court’s decision.” (Internal quotation marks omitted.) Oakley v. Commission on Human Rights & Opportunities, 38 Conn. App. 506, 512-13, 662 A.2d 137 (1995), aff'd, 237 Conn. 28, 675 A.2d 851 (1996), quoting Stanford v. Kovacs, 36 Conn. App. 270, 276, 650 A.2d 626 (1994). Here, the mere fact that the trial court stated at the pretrial hearing that he would probably allow attorney’s fees not bind the trial court. The court must still consider at the conclusion of trial whether the defendant has provided an adequate basis for awarding fees. The trial court stated in its memorandum of decision, that “[t]he claim raised by the plaintiffs in their amended complaint, easement of necessity, had been argued at the first trial and assertion of such claim was foreseeable by the defendant on remand. The court concludes, therefore, that there exists no reasonable basis to allow attorney’s fees because of said amendment to the complaint.” We cannot say, therefore, that the trial court exceeded its discretion in refusing to grant the defendant’s motion for attorney’s fees.

Ill

The defendant claims next that the trial court improperly refused to recuse itself. We disagree.

On September 7,1993, the plaintiffs and the defendant litigated their original applications for temporary injunction before Judge Higgins, who presided at trial. At the hearing, Judge Higgins indicated to the parties that he would view the property in question in the absence of counsel. There was no objection. On September 18, 1996, the second day of the second trial, defendant’s counsel, in the course of his cross-examination of a witness, stated, “I’m going to move to disqualify Your Honor as judge in this case. . . . Your Honor earlier heard our temporary injunction in this case, which was a full day’s testimony. My understanding is that Your Honor made a personal inspection of the property. I don’t think it’s proper to hear the temporary injunction hearing and all this.” The trial court denied the defendant’s request for recusal and the trial proceeded.

Practice Book § 997 provides: “A motion to disqualify a judicial authority shah be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the case is called for trial or hearing, unless good cause is shown for failure to file within such time.” (Emphasis added.) In this case, the defendant did not comply with the provisions of § 997, but simply made an oral request after the trial had begun that the judge disqualify himself. Moreover, the defendant cannot make a showing of good cause as to the failure to comply with § 997 because the reason that the defendant offered for disqualification, namely that the trial court judge had presided over an earlier temporary injunction hearing and that he viewed the property in question in the absence of counsel, were known to the defendant’s counsel well in advance of the second trial. This noncompliance, in the absence of any showing of good cause on part of the defendant, is fatal to the defendant’s claim on appeal. See State v. Teel, 42 Conn. App. 500, 506-507, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996) (failure to comply with Practice Book § 997 deems record inadequate for review under first prong of Evans-Golding test); States. Weber, 6 Conn. App. 407, 412-13, 505 A.2d 1266 (1986) (stating that compliance with Practice Book § 997 mandatory).

IV

The defendant claims next that the trial court improperly prohibited him from questioning one of the plaintiffs on cross-examination regarding a subject concerning which she had testified on direct examination. We disagree.

During the trial, as the defendant’s counsel was cross-examining one of the plaintiffs, Mary Ann O’Brien, about her reasons for buying the property in question, the following colloquy occurred: “Defense Counsel: I thought your testimony to me just now was that was never an option to you because you needed to have the water.

“Ms. O’Brien: I don’t remember at this point in time. I remember that we chose the option to purchase the property; one was the house with nothing but the land, one was the house, the lot, the building, and one was the complete package. We chose the latter because that was what we wanted. I cannot tell you that the water was a[n] issue at that point.

“Defense Counsel: Your Honor, could I have the testimony read back.

“The Court: No. Ask the next question.

“Defense Counsel: I think it’s critical to this case.

“The Court: Ask your next question.

“Defense Counsel: But can I indicate to the court why I believe it’s important?

“The Court: I don’t want the testimony read back . . . because I recall the testimony.

“Defense Counsel: I’m going to try one more time, Your Honor. I think it’s important.

“The Court: Ask your next question. . . .”

The defendant claims that because the trial court would not order that the witness’ testimony be read back, the court prevented him from pursuing an issue through cross-examination. This claim has no merit. “The rereading of testimony lies within the broad discretion of the trial court.” State v. Hickey, 23 Conn. App. 712, 718, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991), citing State v. Rodriguez, 10 Conn. App. 357, 360, 552 A.2d 1250 (1987). Here, the trial court did not preclude the defendant’s counsel from cross-examining Mary Ann O’Brien about any topics concerning which she testified on direct examination. Rather, the court simply informed counsel that it recalled the witness’ testimony and that it did not need to have it read back. We conclude, therefore, that the trial court did not abuse its discretion by declining to order that the witness’ direct testimony be read back.

V

The defendant’s claim is that the trial court improperly admitted hearsay evidence by allowing the testimony of alleged oral declarations of John W. Chapman, a deceased party, pursuant to § 52-172.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993), appeal withdrawn January 7, 1994.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996).

At trial, Terrance O’Brien, one of the plaintiffs, was asked on direct examination about statements that Chapman had made to him regarding a right-of-way on the property in question. The following colloquy occurred: “Plaintiffs’ Counsel: You asked Mr. Chapman and the real estate agent while you were on the property?

“Mr. O’Brien: Yes

“Plaintiffs’ Counsel: What was the response?

“Defendant’s Counsel: Objection, Your Honor, hearsay. Can I ask that be stricken from the record?

“The Court: Overruled.

“Plaintiffs’ Counsel: What did Mr. Chapman say? Just okay, or did he elaborate?

“Mr. O’Brien: I asked him. I said, T have a right-of-way, and it will be in the deed.’ I was told yes.

“Defendant’s Counsel: Objection, Your Honor. Grounds of hearsay, the statement of Mr. Chapman. It’s clearly hearsay.

“Plaintiffs’ Counsel: I believe that comes under the dead man statute, Your Honor.

“The Court: Is Mr. Chapman deceased?

“Plaintiffs’ Counsel: Yes

“The Court: You agree to that?

“Defendant’s Counsel: He is deceased. I stipulate to that. He’s not a party to this action.

“The Court: Okay. Overruled.

“Plaintiffs’ Counsel: You can respond to the question.

“Mr. O’Brien: He told me it would be included, yes.”

The defendant claims that the trial court improperly admitted Chapman’s hearsay declarations. Moreover, the defendant claims that he was prejudiced by the admission of these statements because the trial court relied on them in rendering judgment for the plaintiffs.

“It is an elementary premise of evidentiary law that a statement made out-of-court that is offered to establish the truth of the facts contained in the statement is hearsay.” (Internal quotation marks omitted.) Anne-charico v. Patterson, 44 Conn. App. 271, 275, 688 A.2d 1341 (1997). Section 52-172, however, admits statements of deceased persons in evidence as an exception to the hearsay rule. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.8.1, pp. 355-56.

Section 52-172 provides in relevant part: “In actions by or against the representatives of deceased persons . . . the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence. . . .” For § 52-172 to apply, however, the action must be by or against a representative of the deceased person. The term “representatives of deceased persons” has long been interpreted by our Supreme Court to include persons who take some portion of the deceased’s estate, either as a devisee or heir, as well as a personal representative such as an executor or an administrator. Bowne v. Ide, 109 Conn. 307, 311, 147 A. 4 (1929); Pixley v. Eddy, 56 Conn. 336, 340, 15 A. 759 (1888); Lockwood v. Lockwood, 56 Conn. 106, 110, 14 A. 293 (1887). Here, the plaintiffs are not representatives of Chapman, and, therefore, the trial court improperly admitted Chapman’s hearsay statements.

Despite that conclusion, however, we must also inquire whether their admission prejudiced the defendant. The defendant claims that he was prejudiced because Chapman’s statements established the intention of the parties, a crucial element in a claim of an easement by implication. He also claims that the trial court specifically relied on this testimony in ruling for the plaintiffs. Notwithstanding the fact that the trial court did discuss the intention of the parties in its memorandum of decision, its final conclusion was “that the plaintiffs have acquired an easement by necessity.” In an easement by necessity, intent is presumed; see Collins v. Prentice, 15 Conn. 39, 43 (1842) (setting forth law respecting easements by necessity); and, in this case, the two elements required for an easement by necessity, common owner and a showing of a reasonable necessity, were present. Therefore, the trial court’s findings regarding Chapman’s statement to O’Brien and the intention of the parties were irrelevant. The defendant, therefore, was not prejudiced by their admission. Accordingly, we conclude that the admission of Chapman’s hearsay statements, although improper, did not prejudice the defendant or affect the outcome of the trial.

The judgment is affirmed.

In this opinion the other judges concurred.