text:
    LYNN SHERMAN v. JOHN SHERMAN
    (14552)
    Dupont, C. J., and Foti and Sehaller, Js.

      Argued February 28
    officially released June 25, 1996

      Richard G. Kent, with whom was Ellen A. Jawitz, for the appellant (defendant).

      Kenneth A. Graham, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).
   SCHALLER, J.

The defendant appeals from the judgment of the trial court dismissing his appeal from a family support magistrate’s order. The trial court dismissed the appeal because it determined that it lacked subject matter jurisdiction. The defendant first claims that the trial court improperly dismissed his appeal upon determining that the appeal form filed did not fulfill the requirements of General Statutes § 46b-231 (n) (2). The defendant’s alternative argument is that § 46b-231 (n) (2) is unconstitutional. We affirm the judgment of the trial court.

The record reveals the following facts. On October 27, 1994, at the conclusion of a contested support hearing at which the defendant appeared pro se, a family support magistrate ordered the defendant to pay child support in the amount of $183 per week. The magistrate also found an arrearage of $34,038 as of October 24, 1994. The magistrate ordered the defendant to make a lump sum payment of $1500 on the arrearage.

On November 7, 1994, the defendant filed an appeal form (JD-FM-111). The defendant did not file a separate petition with the appeal form. On December 15, 1994, the attorney general moved to dismiss the appeal on the ground that the trial court lacked subject matter jurisdiction. On January 11, 1995, the defendant, then represented by counsel, filed an objection to the motion to dismiss. On January 26, 1995, the attorney general filed its reply brief and the court heard oral argument on the motion to dismiss. On February 7,1995, the court issued an order dismissing the appeal for lack of subject matter jurisdiction.

We must first address whether this appeal is moot. The attorney general claims that because the defendant has paid the $1500 lump sum on the arrearage, this appeal is now moot. “ ‘Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. . . . Because this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted.’ ” Cole v. Planning & Zoning Commission, 40 Conn. App. 501, 505-506, 671 A.2d 844 (1996), quoting Bakerville Lumber & Construction Co. v. Planning & Zoning Commission, 38 Conn. App. 212, 213, 659 A.2d 758 (1995). Because the defendant’s appeal could have challenged more than the $1500 lump sum payment, namely the total amount of the arrearage, we conclude that the payment of the $1500 does not render this appeal moot.

I

The defendant claims that he complied with § 46b-231 (n) (2) by filing the appeal form within fourteen days of the family magistrate’s order. The right to appeal from a family magistrate order to the Superior Court is created by § 46b-231 (n). Section 46b-231 (n) (2) provides in pertinent part: “Proceedings for such appeal shall be instituted by filing a petition and payment of a fifty-five dollar filing fee in superior court for the judicial district in which the decision of the family magistrate was rendered not later than fourteen days after filing of the final decision . . . .” The defendant argues that the appeal form he filed is the functional equivalent of the petition required by the statute. We are not persuaded.

“A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975). Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985); Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). Vernon Village, Inc. v. Carothers, [217 Conn. 130, 142, 585 A.2d 76 (1991)]. . . . Raines v. Freedom of Information Commission, 221 Conn. 482, 489-90, 604 A.2d 819 (1992). Dismissal is required in such a situation because, if the appellant lacks standing to appeal the case, the court lacks jurisdiction to hear the appeal. Rose v. Freedom of Information Commission, 221 Conn. 217, 223, 602 A.2d 1019 (1992).” (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).

The defendant concedes that no petition was filed as required by the statute. The defendant’s contention that the appeal form is the functional equivalent of the petition and thus satisfies the statutory requirement is unavailing. The function of the petition is to make the court and opposing parties aware of the alleged error or defect from which the aggrieved party seeks redress. See Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978) (plaintiff must allege facts that if proven would constitute aggrievement as prerequisite to trial court’s jurisdiction over subject matter of appeal).

There is no place on the appeal form for the appellant to state the reasons for the appeal. In fact, the appeal form states in two places that it should be filed with a petition attached. Because the defendant failed to comply with the requirements of the statute, he lacked standing to appeal the order. Because the defendant lacked standing, the court lacked jurisdiction and properly dismissed the appeal. Basilicato v. Dept. of Public Utility Control, supra, 197 Conn. 320; Royce v. Freedom of Information Commission, supra, 177 Conn. 584.

II

The defendant next claims that § 46b-231 (n) (2) is unconstitutional. We decline to address his claims. “[A] party ‘cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality.’ ” D’Addario v. Planning & Zoning Commission, 25 Conn. App. 137, 141, 593 A.2d 511 (1991), quoting Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); see also Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 567, 409 A.2d 1020 (1979). The defendant in this action sought the benefits of an appeal pursuant to § 46b-231 (n) and, after failing to comply with the statutory provisions, sought to challenge the constitutionality of the statute. Any relief arising from unconstitutionality cannot be claimed in this action.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant claims that § 46b-231 (n) (2) is void for vagueness, violates the right of access to the courts as guaranteed by article first, § 10, of the Connecticut constitution and violates his right to due process.

       The attorney general was providing non-aid to families with dependent children support enforcement services pursuant to General Statutes § 46b-231 (t) (3) when the motion to dismiss was filed.

       The assistant attorney general raised this issue at oral argument.

         We do not know the basis on which the defendant would have challenged the family magistrate’s order because his appeal form did not set forth specific grounds. See part I of this opinion.

       The defendant relies on Chestnut Realty, Ine. v. Commission on Human Rights & Opportunities, supra, 201 Conn. 356, for the proposition 1hat the use of an improper form to commence an appeal is not a jurisdictional defect. We note, however, that our Supreme Court’s conclusion in Chestnut Realty, Inc., was limited to the situation in which the form’s use as a writ of summons, although the incorrect form under our rules of practice, fulfilled the statutory requirements. Id., 356-57. We further note that both Practice Book Form 103.1, the form used, and Practice Book Form 204.7, the correct form, were required to be accompanied by a complaint. See Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, 355. The requirement of an accompanying complaint was not at issue in Chestnut Realty, Inc. The case now before this court concerns the absence of a petition that should have accompanied the appeal form.

       See footnote 1.


source: Caselaw Access Project

author: DUPONT, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUCY CRUZ
    (15177)
    Dupont, C. J., and Spear and Hennessy, Js.
    Argued February 27
    officially released June 25, 1996

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were James E. Thomas, state’s attorney, and, on the brief, Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   DUPONT, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims that during the probable cause hearing the court, having been made aware of a possible conflict of interest involving her attorney, breached its duty to inquire about the possible conflict and to elicit a waiver from the defendant of her constitutional right to conflict free representation, due process and a fair trial, and that this alleged breach constituted a structural error in the proceedings that vitiated all subsequent proceedings.*

The jury reasonably could have found the following relevant facts. On September 3, 1993, Lucy Cruz shot and killed Gloria Rivera after a brief argument outside their apartment building. The two individuals had lived together as lovers for three years preceding the shooting, and Rivera had recently initiated a break-up of the relationship.

The state prosecuted the defendant on the theory that she intentionally killed Rivera, while the defense argued that the shooting was not intentional, but rather, the result of extreme emotional disturbance stemming from the break-up.

Several eyewitnesses, including Rosa Collado, testified to the shooting. Collado testified that the defendant appeared “fine” after the shooting. Another witness testified that before the shooting, the defendant looked “serious,” that he had never seen her look that way before, and that he tried to joke with her, but she did not respond. A third witness stated that the defendant looked angry. The defendant provided expert testimony in an attempt to establish that she suffered from extreme emotional disturbance at the time of the shooting, and the state rebutted with its own expert witness. Additional relevant facts are set forth in the discussion of the issues.

The defendant claims that her constitutional right of conflict free representation was violated during her probable cause hearing, which constituted a structural error that vitiated all subsequent proceedings. See Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).

The sixth amendment to the United States constitution, as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution both guarantee a defendant the right to effective assistance of counsel in a criminal proceeding. Powell v. Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 77 L. Ed. 2d 158 (1932); State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982). “Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981). This right applies not only to the trial itself, but to any critical stage of a criminal proceeding. Holloway v. Arkansas, 435 U.S. 475, 489, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978), citing White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961). “Moreover, one of the principal safeguards of this right is the rule announced by this court that ‘[a trial] court must explore the possibility of a conflict . . . when it knows or reasonably should know of a conflict ....’” State v. Martin, 201 Conn. 74, 79, 513 A.2d 116 (1986), quoting Festo v. Luckart, 191 Conn. 622, 629, 469 A.2d 1181 (1983). Because this right to conflict free representation applies to all critical stages of a criminal proceeding, the duty of a court to safeguard this right applies equally to all such stages, which, by virtue of General Statutes § 54-46a (a), include a hearing in probable cause.

Cases involving conflicts of interest usually arise in the context of representation of multiple codefendants by one attorney where “the attorney adduces evidence or advances arguments on behalf of one defendant that are damaging to the interests of the other defendant.” Phillips v. Warden, 220 Conn. 112, 135-36, 595 A.2d 1356 (1991). A conflict of interest also arises if trial counsel simultaneously represents the defendant and another individual associated with the incident and that representation inhibits counsel’s ability to represent the defendant. State v. Martin, supra, 201 Conn. 80-81. The defendant here, however, urges us to conclude that the potential for conflict of interest exists if a state’s witness was represented previously in an unrelated matter by the defendant’s attorney and that such potential conflict requires the court’s inquiry and a waiver from the defendant of her constitutional right to conflict free representation.

At the probable cause hearing, the defendant’s attorney informed the court that he had represented one of the state’s witnesses on a prior occasion. Further discussion ensued and revealed that the prior representation involved a criminal narcotics charge, more than five years prior to the killing in this case. The defendant’s attorney indicated that the representation had no relevancy to the present case. “While Holloway v. Arkansas, supra, [435 U.S. 486], emphasized that it was not ‘transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict,’ the trial court ‘must be able, and be freely permitted, to rely upon counsel’s representation that the possibility of such a conflict does or does not exist.’ Kaplan v. United States, 375 F.2d 895, 897 (9th Cir.), cert. denied, 389 U.S. 839, 88 S. Ct. 67, 19 L. Ed. 2d. 103 (1967); Willis v. United States, 614 F.2d 1200, 1206 (9th Cir. 1980). The reliance in such an instance is upon ‘the solemn representation of a fact made by [the] attorney as an officer of the court.’ Kaplan v. United States, supra [897].” State v. Martin, supra, 201 Conn. 82. The defendant’s attorney represented to the court that this prior representation had no relevancy to the trial, that he had not seen or spoken to the witness since the prior representation, and that he was not going to ask any collateral questions regarding this prior conviction. Although the defendant was reluctant to place this conviction into evidence, he was assured that the conviction would be introduced and that, therefore, the jury would be aware of it in its assessment of the witness’ credibility. Defense counsel gave no indication to the court that a conflict prevented him from offering a viable defense or prevented a line of inquiry of the witness or prevented a full cross-examination of the witness. Cf. id., 77 n.3.

The defendant argues that, on the basis of these facts, the court should have elicited a knowing and intelligent waiver from the defendant of her constitutional right to conflict free representation before proceeding. The scope of a court’s inquiry, or the necessity for such inquiry, however, depends on the circumstances, and a court need not necessarily elicit a waiver. Id., 82. The defendant relies on Martin, as a factual illustration of a conflict of interest. Its facts, however, are distinguishable from those of the present case because the attorney in that case made a motion for a mistrial and represented to the court that a conflict of interest did exist because he was currently representing an individual whose name was mentioned by a witness at trial. Id., 77 n.3. The trial court not only refused to conduct an inquiry into the possible conflict, but did not even permit counsel ample opportunity to state for the record the basis of his asserted conflict of interest. Id. In the present case, the court and counsel discussed the issue, counsel was not currently representing the witness, the representation was five years earlier, and counsel did not believe his past representation of the witness would conflict with his present representation of the defendant.

The defendant also cites People v. Pinkins, 272 Cal. Rptr. 100 (Cal. App. 1990) (not officially published by order of the Californita Supreme Court, November 20, 1990), to support her view that a conflict potentially existed. In that case, the court found that a possible conflict of interest resulted where defense counsel, in a prior unrelated case, had represented a state’s witness, who was also the victim of the crime alleged. The court stated that “[t]he fact that the offenses of the former client who is now a witness are unrelated and concluded at the time of trial does not negate the possibility of a conflict of interest.” Id., 107. Pinkins, however, is not persuasive because the court made no attempt to analyze the quoted statement in view of the facts. No additional facts are given, such as when the representation of the witness occurred or if there was any contact between counsel and the witness during the interval between representation of the witness and the trial of the defendant or if any representations of counsel had been made to the court. The witness in Pinkins was a victim of the crime of which the defendant was accused and, therefore, occupied a crucial status in the outcome of the defendant’s trial, unlike the witness in the present case who was one of several witnesses testifying as to the emotional condition of the defendant at the time of the crime, and whose testimony was cumulative.

On the facts of this case, neither an actual nor potential conflict of interest existed, and it was therefore unnecessary for the court to inquire further or to obtain a waiver from the defendant. The defendant was not deprived of her constitutional rights to conflict free representation, due process and a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-46a (a) provides: “No person charged by the state, who has not been indicted by a grand jury prior to May 26,1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.”

       The case, originally on the Supreme Court’s docket, was subsequently transferred to this court by the Supreme Court. See Practice Book § 4023. A second claim on appeal urged the Supreme Court to overrule its decision in State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991). Because we may not disturb the Ortiz holding, we do not address this claim. Martin v. Plainville, 40 Conn. App. 179, 182, 669 A.2d 1241 (1996). Both tire state and the defendant agree that we should not rule on the claim.

       The sixth amendment of the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . ... ”

       The following discussion took place involving the court, Attorney William Gerace, the defendant’s trial counsel, and Attorney Warren Maxwell, the assistant state’s attorney.
      “Mr. Gerace: Your Honor, before this witness testifies, I did represent this lady on a narcotics case. I don’t know when. I don’t — I just recognize her. And there is some impeachment. There’s a felony conviction for narcotics.
      “Mr. Maxwell: Possession. That’s correct, Judge.
      “Mr. Gerace: And I don’t know how the court would like to handle that.
      “Mr. Maxwell: I don’t see any problem.
      “Mr. Gerace: Would the court indulge counsel by asking her the impeachment question, so that I don’t have to do it?
      “Mr. Maxwell: Well, I’ll ask her.
      “Mr. Gerace: Okay. Fine. . . .
      “Mr. Gerace: Judge, before 1 he questioning, I just would like to make another matter a part of the record. I did see the name, Rosa Collado, on the police reports. I — it didn’t jive — jog my memory, Your Honor. I just saw the lady in the foyer. She said hello to me. I didn’t know she was in fact this witness. And then, when Mr. Maxwell just showed me the conviction, I just now realized that, this is the same person that I’ve represented. So, it’s a surprise to me that she is that same person. That’s what I’m trying to say. . . .
      “The Court: Well, I understand Mr. Gerace is going to want to be able to cross-examine her?
      “Mr. Gerace: No. I don’t think so, Judge.
      “The Court: Oh.
      “Mr. Gerace: I may, but only — only—I didn’t want to ask her the impeachment question because I was counsel.
      “The Court: Right.
      “Mr. Gerace: But, as to general cross-examination, I don’t think there’s a problem. I know I haven’t seen her since then. . . .
      “Mr. Gerace: Okay. I just — I just represented to the court, I haven’t seen, or spoken to her, since.
      “The Court: Well—
      “Mr. Gerace: And if the state’s not uncomfortable with me cross-examining her, that’s fine.
      “The Court: I think [the witness] should be asked one further question, that you will be cross-examining her.
      “Mr. Gerace: Okay. Fine.
      “The Court: And that, is she willing to have you cross-examine her with the knowledge of what she had indicated to you previously.
      “Mr. Gerace: I don’t think that’s going to be relevant, Judge.
      “The Court: It won’t be?
      “Mr. Gerace: Now that the conviction is in, I’m not going to ask any collateral—

        “The Court: In other words, this is as far as the impeachment will go?
      “Mr. Gerace: That’s fine. Yes.”

       Any claim that counsel’s zealousness in cross-examination of the witness was diluted because of his prior representation is not reviewable in this direct appeal.

       The defendant cites cases from other jurisdictions to support a finding of conflict of interest, but the facts of those cases are also distinguishable. In re Darr, 143 Cal. App. 3d 500, 514, 191 Cal. Rptr. 882 (1983) (trial court failed to make inquiry after receiving information counsel was simultaneously representing defendant and state’s witness); State v. Carmouche, 508 So. 2d 792, 795 (La. 1987) (concurrent representation of defendant and state’s witness w'ho was to provide inculpatory statements made by defendant to witness while they shared jail cell, where witness had unconcluded plea bargain with state for charges in unrelated case); Gee v. State, 93 Md. App. 240, 242-43, 611 A.2d 1081 (1992) (joint representation of codefendants where counsel admitted conflict result of plea bargain arrangement made for one defendant that would implicate other defendant); People v. Krausz, 84 N.Y.2d 953, 954, 644 N.E.2d 1377, 620 N.Y.S.2d 821 (1994) (concurrent representation of defendant, charged with sexual abuse, and witness, who was one victim’s father, where attorney was representing witness in unrelated civil case and stated that conflict of interest existed and, as result of conflict, entered into agreement with state to not call victim’s father as witness); In Interest of Saladin, 359 Pa. Super. 326, 332-33, 518 A.2d 1258 (1986) (concurrent representation of defendant, charged with robbery, and victim of alleged robbery, where defense counsel admitted that conflict existed and refused to cross-examine victim because his personal knowledge of victim resulted from his representation of victim).


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. JOHN L. MOALES
    (14456)
    Foti, Heiman and Schaller, Js.
    Argued February 29
    officially released June 25, 1996

      H. Jeffrey Beck, for the appellant (defendant).

      Denise B. Smoker, deputy assistant state’s attorney, with whom were Donald A. Browne, state’s attorney, and, on the brief, Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), robbery in the second degree in violation of General Statutes § 53a-135 (a) (1), larceny in the second degree in violation of General Statutes § 53a-123 (a) (1), larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The defendant claims that the trial court (1) improperly refused to allow a defense witness to testify about prior inconsistent statements made by the state’s primary witnesses and (2) violated the defendant’s constitutional right not to have uncharged offenses presented to the jury. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 11,1994, the defendant and Jose Baez smoked crack cocaine at a “crack house” on Stratford Avenue in Bridgeport. On the morning of January 12, 1994, the defendant and Baez left the house and entered a Ford Bronco. The defendant started the Bronco with a screwdriver, and the two men rode to a house at 88 Dean Place. After the defendant parked the vehicle, both men entered the house. Cynthia Lucero was inside the house. The defendant charged toward Lucero, punched her and pushed her to the floor. He pulled the hood of Lucero’s sweatshirt over her head, held a hard object against her head, and told her that he would kill her if she moved. The defendant asked Lucero if she had any money or gold, and Lucero responded that she did not have any gold and that her money was in her wallet located on the porch of the house. The defendant found the wallet and took $50 from it. He then went upstairs and took a cigar box filled with change, a broach and a watch. The defendant told Baez to watch Lucero, to check her for gold, and to kick her in the head if she moved. Baez took two bracelets and some change from Lucero, and then he saw Lucero’s neighbor outside writing down the license plate number of the Bronco. The defendant and Baez left the premises and fled in the Bronco.

The defendant and Baez drove to another house and smoked crack. They left the house and drove around until the Bronco ran out of gas. They walked to a gas station, filled an empty soft drink bottle with $1 worth of gas and returned to the Bronco to fuel the tank. While Baez went to get something to eat, the defendant went to a pawn shop on East Main Street owned by Juan Rivera and sold the bracelets and change to Rivera. The defendant and Baez then smoked crack and spent the night in the Bronco. The police saw the two men sleeping in the Bronco, determined that the vehicle had been stolen, and arrested the defendant and Baez.

On January 14, 1994, the police visited Rivera at his pawn shop. Pursuant to a search and seizure warrant, Rivera turned over to the police the bracelets and change that the defendant and Baez had taken from Lucero. Rivera told the police that the defendant had sold the items to him.

I

The defendant claims that the trial court improperly refused to allow a defense witness to testify about prior inconsistent statements made by the state’s primary witnesses. The defendant asserts that the trial court’s refusal was an abuse of discretion and a violation of the defendant’s constitutional right to present a defense. We do not agree.

The following additional information is necessary to a resolution of this issue. At trial, the state called as witnesses Baez and Rivera, both of whom were extensively cross-examined by the defendant. Following the state’s case-in-chief, the defendant called Richard Fox as a witness. Fox, a criminal investigator employed by the defendant, was prepared to testify about statements that Baez and Rivera had made to Fox in the fall of 1994. According to the defendant, these prior statements were inconsistent with statements made by Baez and Rivera at trial and were admissible to impeach them. The defendant also asserted that if Fox was not allowed to testify about the prior statements, the defendant’s right to present a defense would be jeopardized.

In the absence of the jury, the defendant made a lengthy offer of proof regarding the claimed prior inconsistent statements. First, the defendant questioned Fox about statements that Baez had made to Fox on November 15, 1994. The defendant asserted that Fox’s testimony would establish that Baez’ statements to Fox on November 15, 1994, were inconsistent with Baez’ trial testimony. The prior inconsistent statements that Baez allegedly had made to Fox were about the details of the activities of Baez and the defendant from January 11 to January 13,1994. Next, the defendant questioned Fox about statements that Rivera had made to Fox on September 27, 1994. The defendant claimed that Fox’s testimony would establish that Rivera’s statements to Fox on September 27, 1994, were inconsistent with Rivera’s trial testimony. The prior inconsistent statements that Rivera allegedly had made to Fox related to whether Rivera remembered that the police visited the pawn shop and seized the bracelets and change sold to him by the defendant. The trial court ruled that Fox would not be permitted to testify about the claimed inconsistent statements made by the witnesses to Fox because the statements were not substantial and did not relate to material matters.

A

We first examine the defendant’s claim that the trial court abused its discretion in refusing to permit Fox’s testimony. “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. State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 [1964], cert. denied sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 [1965]; State v. Walters, [145 Conn. 60, 66, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S. Ct. 70, 3 L. Ed. 2d 45 (1958)]; Holden & Daly, Connecticut Evidence § 125 (d). 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. See McCormick, Evidence (2d Ed.) § 34.” 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).

“Where a party seeks to impeach a witness by using extrinsic evidence, certain standards must be met. The inconsistent statement must be relevant and of such a kind as would affect the witness’ credibility, and, generally, a foundation for introducing the statement should be laid at the time of cross-examination of the witness.” Id.; see also State v. Saia, supra, 172 Conn. 45-46. “[T]he inconsistency must be substantial and relate to a material matter.” (Emphasis in original.) 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. . . . That discretion will not be disturbed unless it has been abused.” (Citations omitted.) State v. Richardson, supra, 764.

We conclude that the trial court did not abuse its discretion in not permitting Fox to testify about the prior inconsistent statements made by Baez and Rivera. Baez’ supposed prior inconsistent statements to Fox were about trivial discrepancies relating to facts that were immaterial to the jury’s resolution of the case. The statements that Rivera allegedly had made to Fox regarding Rivera’s memory of the police having visited his pawn shop and seizing Lucero’s belongings may have been inconsistent with his trial testimony, but Rivera’s memory of the police investigation was not relevant to the issue of whether the defendant committed the crimes with which he stood charged. It was the evidence of the results of the police investigation, not Rivera’s memory of the investigation, that was relevant to the jury’s findings. Thus, the trial court properly exercised its broad discretion in ruling that Fox’s testimony would not be admissible because it would not reveal inconsistent statements that were substantial and that related to material matters.

B

We next address the defendant’s claim that the trial court violated his constitutional right to present a defense by refusing to permit Fox to testily about the prior inconsistent statements made by Baez and Rivera. This claim is without merit.

Although the defendant raises a constitutional claim, we conclude that in doing so, he is merely masking an evidentiary claim with a constitutional veil. Prior to his attempt to introduce Fox’s testimony, the defendant had an adequate opportunity fully to cross-examine Baez and Rivera regarding any prior inconsistent statements that they may have made to Fox. The purpose of the defendant’s attempt to introduce Fox’s testimony was further to impeach the credibility of Baez and Rivera. As we have concluded, however, the trial court applied the proper evidentiary standard and exercised its sound discretion in refusing to allow Fox’s testimony regarding the statements. Under these circumstances, that refusal did not implicate the defendant’s constitutional right to present a defense. Cf. State v. Torres, 210 Conn. 631, 642-43, 566 A.2d 1013 (1989) (improper exclusion of prior inconsistent statements proffered by defendant was error that “escalated to constitutional proportions” because trial court’s ruling was not “evenhanded”). “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. In this instance, the defendant has put a constitutional tag on a nonconstitutional claim. State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). “[I]n the exercise of his sixth amendment right to compulsory process the accused, as required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” (Internal quotation marks omitted.) State v. Stange, 212 Conn. 612, 625, 563 A.2d 681 (1989).

The defendant’s constitutional claim is without merit.

II

The defendant also claims that the trial court violated his constitutional right not to have uncharged offenses presented to the jury. We do not agree.

The following additional information is necessary to a resolution of this claim. The state charged the defendant with burglary in the first degree by an amended substitute information. In count one of the information, the state alleged that “[the defendant] did enter a building, the property of one Cynthia Lucero, with intent to commit a crime therein, and in the course of committing the offense, [the defendant] intentionally inflicted bodily injury upon Cynthia Lucero, in violation of General Statutes § 53a-101 (a) (2).” (Emphasis added.) In its jury instructions, the trial court charged with respect to both the entering and remaining aspects of § 53a-101 (a). The defendant objected to the instructions on the ground that he was not charged with remaining unlawfully in Lucero’s house. The trial court declined to give a corrective instruction.

The defendant asserts that because the state charged him under the entering clause of the burglary statute and not the remaining clause, the trial court’s instruction enlarged the charged offense and thereby permitted the jury to convict him on the basis of an uncharged portion of the statute in violation of his rights under article first, § 8, of the Connecticut constitution and the sixth amendment to the United States constitution. We are unpersuaded.

“It is well established that ‘[wjhere, as here, the trial court’s charge . . . included both the “enters unlawfully” and the “remains unlawfully” statutory language, each of which may be an element of the crime of burglary; and where the information restricted the offense to “entering unlawfully” and no amendment was requested . . . the trial court erred in instructing the jury on the “remains unlawfully” disjunctive element of burglary.’ . . . State v. Belton, 190 Conn. 496, 502, 461 A.2d 973 (1983). ‘To prevail, however, the defendant must demonstrate that the court’s instruction resulted in unfair surprise or somehow prejudiced the preparation of his defense. State v. Franko, [199 Conn. 481, 490, 508 A.2d 22 (1986)].’ State v. Peterson, 13 Conn. App. 76, 84, 534 A.2d 1237 (1987).” State v. Mankus, 16 Conn. App. 184, 187, 547 A.2d 84, cert. denied, 210 Conn. 801, 553 A.2d 616 (1988). Ultimately, we must determine whether it is reasonably possible that the jury was misled. State v. Belton, supra, 502.

The defendant has failed to demonstrate how the trial court’s instructions either caused him unfair surprise or prejudiced the preparation of his defense. He essentially asserts that the trial court’s instructions could have led the jury to consider the uncharged offense in determining that he was guilty of burglary in the first degree. He does not specifically indicate whether he was unfairly surprised or whether he was prejudiced in the preparation of his defense.

We conclude that the defendant was not unfairly surprised by the trial court’s instructions and that the preparation of his defense was not prejudiced by the instructions. Much of the evidence introduced at trial established that the defendant did not have Lucero’s permission either to enter or to remain in the house. This evidence was introduced without objection from the defendant. Thus, the defendant could not have been unfairly surprised by the trial court’s instruction. See State v. Franko, 199 Conn. 481, 490-91, 508 A.2d 22 (1986). Moreover, the defendant’s only defense at trial was one of mistaken identity. By claiming that he was not the person who had committed the crimes charged, the defendant put forth a defense that, if believed by the jury, would have led to an acquittal of both entering and remaining unlawfully in the house. See State v. Mankus, supra, 16 Conn. App. 190. “Under these circumstances, where the defendant’s defense encompassed both the charged and uncharged theories of liability, and, if believed by the jury, could lead to an acquittal under either theory, his constitutional rights have not been adversely implicated by the trial court’s instruction.” (Internal quotation marks omitted.) Id., 190. Thus, the defendant was not prejudiced in the preparation of his defense. It is not reasonably possible that the jury was misled.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant claimed that Fox’s proffered testimony would reveal prior inconsistent statements made by Baez regarding whether: (1) the crack house was on Stratford Avenue or Boston Avenue, (2) the Bronco was stolen a few days or one week before the incident in question, (3) Baez or the defendant knocked on the door of the Lucero house, (4) Baez said anything to Lucero, (5) Baez looked through Lucero’s purse, (6) Baez put Lucero’s bracelets in his pocket or put them on a table in the house after taking them from Lucero, (7) Baez ran or quickly walked from the Lucero house, (8) Baez tried to leave the Lucero house without the defendant, (9) Baez said good-bye to Lucero, (10) Baez and the defendant went to Father Panik Village to get some crack after leaving Lucero’s house, and (11) the Bronco ran out of gas once or twice.

       During the offer of proof, the defendant also claimed that Fox’s testimony would establish that Rivera told Fox that he (1) had no record of a January, 1994 transaction with the defendant and could not remember the transaction and (2) did not know the defendant. These statements made by Rivera to Fox, according to the defendant, were inconsistent with Rivera’s testimony at trial.
      The trial court did not allow Fox to testify about the first statement. During his offer of proof, the defendant conceded that according to Rivera’s testimony, the reason Rivera told Fox that he had no record of a transaction with the defendant was because Rivera, during Fox’s visit to the pawn shop, had examined only some of the records and could not find a record of the transaction. Furthermore, Rivera testified that he found the record of the defendant’s transaction after speaking with Fox and consequently remembered the transaction. Thus, Fox’s testimony would not have revealed an inconsistent statement made by Rivera regarding whether he had a record of the defendant’s transaction or was able to remember the transaction. “It is axiomatic that for a statement to be admissible as a prior inconsistent statement it must be inconsistent with the testimony of the party at trial.” Drew v. K-Mart Corp., 37 Conn. App. 239, 249, 655 A.2d 806 (1995).
      The trial court allowed Fox to testify about Rivera’s statement that he did not know the defendant. The trial court allowed the testimony because on direct examination, Rivera indicated that he did know the defendant. Thus, Rivera’s inconsistent statements regarding whether he knew the defendant were disclosed to the jury.

       We note that “[i]n this state, we have no inflexible rule regarding the necessity of calling the attention of a witness on cross-examination to his alleged prior inconsistent statements before either questioning him on the subject or introducing extrinsic evidence tending to impeach him. From early times, it has consistently been held that it rests within the judicial discretion of the trial court whether to admit the impeaching statements where no foundation has been laid.” State v. Saia, supra, 172 Conn. 46.

       See footnote 1.

       General Statutes § 53a-101 (a) provides in pertinent part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       We note that our Supreme Court’s decision in State v. Belton, supra, 190 Conn. 500-504, involving a similar claim but reaching a contrary result, is distinguishable as to its facts and as to the ultimate effect on the verdict of the trial court’s improper charge, and, therefore, that case is not controlling here. See State v. Mankus, supra, 16 Conn. App. 191-92.


author: O’CONNELL, J.

text:
    B AND D ASSOCIATES ET AL. v. BOARD OF EXAMINERS FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS
    (14804)
    O’Connell, Lavery and Hennessy, Js.
    Argued March 29 and May 6
    officially released June 25, 1996

      Richard E. Blodgett, Jr., pro se, and William H. Douglass, pro se, the appellants (plaintiffs).

      Neil G. Fishman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   O’CONNELL, J.

The plaintiffs appeal from the trial court judgment dismissing their petition for a declaratory judgment. The plaintiffs claim that the trial court improperly (1) held that they had failed to exhaust their administrative remedies and (2) denied their postjudgment motions. We do not rule on these claims and, instead, as a result of events that occurred while the appeal was pending, dismiss the appeal as moot.

The factual and procedural history necessary to our disposition of this appeal is as follows. The plaintiffs are B & D Associates, a partnership, and Richard E. Blodgett, Jr., and William H. Douglas, its general partners. The defendant is the board of examiners for professional engineers and land surveyors (board).

The department of consumer protection received a complaint from the Connecticut Association of Land Surveyors that the plaintiffs were engaging in unlicensed land surveying. The complaint was referred to the board, which brought an administrative action against the plaintiffs to obtain an order that they discontinue land surveying. Before a hearing was held on that complaint, the plaintiffs requested that the board issue a declaratory ruling on the applicability of the land surveying licensing statute; General Statutes § 20-302; to their activities. On September 29, 1994, the board notified the plaintiffs that it had declined to issue a declaratory ruling because it preferred to consider the statute’s applicability at the administrative hearing on the complaint.

The plaintiffs then brought the matter to the Superior Court in an action for a declaratory judgment. The trial court concluded that the board’s response was a proper resolution of the plaintiffs’ request and that, until the board acted at the time of the hearing, the plaintiffs had not exhausted their administrative remedies. Because the board had not yet held its hearing, the trial court dismissed the plaintiffs’ declaratory judgment action.

The plaintiffs appealed the dismissal to this court. At the appellate hearing, we learned that while the appeal was pending, the board had held its administrative hearing and issued findings of facts and conclusions of law. We continued the matter and gave the parties an opportunity to brief the issue of whether the board’s decision on the underlying complaint rendered this appeal moot.

Following a resumed appellate hearing and after an examination of the board’s findings of fact and conclusions of law, it became clear that the plaintiffs have an answer as to whether, in the board’s opinion, their conduct violated § 20-302. The board detailed the acts that it found that the defendant had performed and concluded that the plaintiffs had practiced land surveying in violation of § 20-302. Whether we agree with the board’s conclusions of law is not before us because this is not an administrative appeal from the defendant’s decision pursuant to General Statutes § 4-183.

“ ‘It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In the absence of an actual and existing controversy for us to adjudicate . . . the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal.’ . . . Delevieleuse v. Manson, 184 Conn. 434, 436, 439 A.2d 1055 (1981).” Goodson v. State, 228 Conn. 106, 114-15, 635 A.2d 285 (1993), on appeal after remand, 232 Conn. 175, 653 A.2d 177 (1995).

Courts are established to decide actual controversies and an appellate court has no jurisdiction to adjudicate cases that are not justiciable. State v. Nardini, 187 Conn. 109, 111, 445 A.2d 304 (1982). An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. “ ‘When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.’ ” (Internal quotation marks omitted.) Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995), quoting In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994). The plaintiffs requested that the board rule on the applicability of § 20-302 to their conduct. Because the board has ruled that the plaintiffs conduct constituted land surveying in violation of § 20-302, there is no practical relief that we can afford the plaintiff.

The appeal is dismissed as moot.

In this opinion the other judges concurred.

       General Statutes § 20-300 provides in relevant part: “There shall be in the department of consumer protection a State Board of Examiners for Professional Engineers and Land Surveyors . . . .”
      General Statutes § 21a-6 provides in relevant part: “The following boards shall be within the department of consumer protection .... (8) The State Board of Examiners for Professional Engineers and Land Surveyors established under chapter 391 . . . .”

       General Statutes § 20-302 provides in pertinent part: “No person shall practice or offer to practice the profession of engineering in any of its branches, including land surveying . . . unless he has been licensed or exempted under the provisions of this chapter. ...”

       The trial court found as follows: “[F]ar from deciding not to issue a declaratory ruling under General Statutes § 4-176 (e) (5), the board’s action really constituted a proper election under General Statutes § 4-176 (e) (2). In particular the board ordered that [the plaintiffs’] complaint for declaratory relief be heard and decided when it holds the administrative hearing on the complaint.”

       We also ordered briefing on an issue of appellate procedure. Our disposition of this appeal as moot makes it unnecessary to discuss the procedural issue.


text:
    STATE OF CONNECTICUT v. RONALD WALTON
    (12608)
    O’Connell, Spear and Hennessy, Js.
    Argued February 20
    officially released June 25, 1996

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly (1) denied his motion to suppress two statements, (2) excluded evidence of the victim’s use of cocaine, (3) dismissed a regular juror after deliberations had begun, and (4) substituted an alternate juror for a regular juror after deliberations had begun. We reverse the judgment of conviction and remand for a new trial.

The jury could reasonably have found the following facts. On the evening of December 30, 1991, Melvin, Evelyn, and Tony Kardulis drove to a convenience store on the comer of Farmington Avenue and Marshall Street in Hartford to purchase laundry detergent. Evelyn waited in the car while Melvin went into the store. After returning a video at a nearby store, Tony joined Melvin in the store.

A group of five men, including the defendant and Tarik Hightower, approached Melvin and Tony in the convenience store. The group then left and waited outside for Melvin and Tony. Outside, Hightower grabbed Melvin and forced him down on the pavement. Tony attempted to protect Melvin by kicking Hightower. The defendant, who up until this point had not been involved in the fight, pulled out a gun and fired at both Melvin and Tony. Tony attempted to disarm the defendant, who continued shooting. When he was out of bullets, the defendant fled and tossed the gun into a nearby dumpster. Melvin and Tony were taken by ambulance to a hospital where Melvin died from three gunshot wounds to his chest and neck. Additional facts are included in the analysis of individual claims.

I

The defendant first raises a two part challenge to the trial court’s denial of his motion to suppress two incriminating statements that he gave without the benefit of Miranda warnings. We conclude that the trial court properly denied the defendant’s motion.

At the suppression hearing, the trial court found the following facts. On the morning following the shooting, the sixteen year old defendant, with his mother, sister, and grandfather, appeared at the Hartford police station at 9 a.m. The defendant’s mother told the desk sergeant that she wanted to turn her son in for being “involved” in the previous evening’s shooting. The desk sergeant escorted the defendant and his family to the second floor crimes against persons unit. The defendant was told to wait in an interview room, and his family was seated at a conference table about twenty-five feet away. The door to the interview room was left open, and, although there were officers on duty in the unit, the room itself was unguarded.

The desk sergeant telephoned Detective James Rovella, an investigator assigned to the shooting, stating that “a party • • • who had knowledge of’ the shooting had come to the station. Upon arriving from his home forty-five minutes later, Rovella spoke with the defendant’s family, and ascertained that the defendant was then wearing the same clothes that he had worn the previous evening. At no time did the family tell Rovella that the defendant was the shooter.

Rovella went to the interview room, shut the door and introduced himself. At that time, Rovella saw that the defendant’s clothing and physical characteristics matched the description of the shooter that he had been given at the scene. Rovella did not apprise the defendant of his Miranda rights and asked the defendant what had happened on the previous night. In response to this single question, the defendant answered that an argument between two men escalated into a physical confrontation, and that he fired his gun to protect a friend from one of the men who was brandishing a knife.

Approximately five minutes after Rovella had entered the interview room, a woman introducing herself as the defendant’s attorney knocked on the door. Rovella immediately ceased questioning the defendant and left the interview room. The defendant and his attorney spoke privately.

On the basis of his oral confession to the shooting, the defendant was arrested and transferred to Officer Thomas Kieselback for booking. During fingerprinting, the defendant became upset and began to cry. Kiesel-back asked the defendant “if he was all right.” The defendant responded to this question by again confessing to the shooting.

A

In the first part of this claim, the defendant argues that the trial court improperly denied his motion to suppress the incriminating statement made to Rovella.

Two conditions must be satisfied to trigger the advisement of rights constitutionally required by Miranda: (1) the suspect must be in the custody of law enforcement officials; and (2) the suspect must be subjected to interrogation. State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985).

Our review of a trial court’s finding of whether a person was in custody has previously been limited to a determination of whether that finding is clearly erroneous. State v. Ross, 230 Conn. 183, 204, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990). The United States Supreme Court, however, has recently held that a federal habeas court’s review of a state trial court’s determination of custody for Miranda purposes is a mixed question of law and fact. Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995). “Two discrete inquiries are essential to the determination [of custody]: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Id., 112. The first inquiry, “ ‘whether there [was] a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest’ ”; Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994), quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983) (per curiam); State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989); is factual and will not be overturned unless it is clearly erroneous. See State v. Ross, supra, 204. The second inquiry, whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave”; United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); requires an “application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a ‘mixed question of law and fact’ qualifying for independent review.” Thompson v. Keohane, supra, 465. Because Thompson held that independent review of a trial court’s determination of whether the defendant was in custody “insure [s] protection of the [fifth amendment] right against self-incrimination”; id., 467; we must apply this standard in our review of the defendant’s claim.

In applying this standard for the first time in this state, we begin by addressing whether the trial court’s finding that the police did not restrain the defendant’s freedom of movement to the degree associated with a formal arrest is clearly erroneous. The defendant was not a suspect in the shooting when he appeared unexpectedly at the Hartford police station. The defendant was not specifically told that he could leave at any time, but was also not told he had to remain at the station. The defendant was not searched, handcuffed, or physically restrained. The defendant’s family was within sight of the unguarded interrogation room. The door to the interrogation room remained open for forty-five minutes until Rovella arrived. On the basis of these facts, we conclude that the trial court’s finding that the defendant did not suffer a restraint on his freedom of movement to the degree associated with a formal arrest is not clearly erroneous.

We now turn to the trial court’s evaluation of whether, given the circumstances surrounding the defendant’s interrogation, a reasonable person would have felt free to leave. Because this analysis called for the trial court to apply the controlling legal standard to the historical facts, we give it “independent review.” Id., 465. Although the defendant testified that he did not feel free to leave, the trial court concluded that a reasonable person placed in those same circumstances would have felt free to leave. Earlier in this analysis, we reviewed the circumstances surrounding the defendant’s appearance at the police station and his subsequent interrogation. We conclude that the trial court properly applied the legal standard to the facts and concluded that the defendant was not in custody when he confessed to Rovella.

B

In the second part of this claim, the defendant asserts that the trial court improperly denied his motion to suppress his inculpatory statement to Kieselback.

We have already stated the well established principle that, in addition to being in custody, a defendant is not entitled to Miranda warnings unless he is also interrogated. State v. Medina, 227 Conn. 456, 462, 636 A.2d 351 (1993); State v. Rosado, 218 Conn. 239, 252, 588 A.2d 1066 (1991). The defendant bears the initial burden of showing that he was subjected to interrogation. See State v. Medina, supra, 463. Interrogation includes not only those questions that are explicitly designed to elicit an incriminating response, but also extends to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a suspect. Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). The police, however, cannot be held accountable for the unforeseeable results of their words or actions. Id. Because Kieselback’s conduct during booking was neither explicitly designed nor reasonably likely to provoke an incriminating response from the defendant, Kieselback’s question and the defendant’s resulting confession did not constitute an interrogation. We therefore conclude that the trial court properly found that the defendant was not interrogated by Kiesel-back.

II

The defendant next complains that the trial court abused its discretion by precluding him from eliciting testimony that Melvin Kardulis, the victim, had ingested cocaine prior to his death. The defendant argues that this testimony was relevant to his self-defense claim and that its preclusion deprived him of his constitutional rights to present a defense, to due process, and to a fair trial.

In an offer of proof outside the presence of the jury, Edward McDonough, the state’s deputy chief medical examiner, testified that he performed an autopsy on Melvin Kardulis. As part of that autopsy, McDonough took a blood sample and a nasal swab from the body. A preliminary screening test revealed the presence of cocaine or its breakdown products. Because a positive result was obtained from the preliminary screening, a more sensitive confirmatory test, that picks up only the parent compound of cocaine, was conducted. This test came back negative.

McDonough testified that a positive preliminary screening and a negative confirmatory test indicated that: (1) “at some time” prior to Melvin’s death, cocaine was present in his blood, and (2) at the time of his death, cocaine breakdown products were present in his blood. On the basis of the length of time it takes for cocaine to break down, McDonough estimated that the victim had ingested cocaine “many hours” before his death. McDonough further testified that he knew of no circumstances under which the inactive cocaine breakdown products present in Melvin Kardulis’ blood at the time of his death would have any effect on his behavior.

“The trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court’s ruling on the admissibility of evidence in the absence of a clear abuse of discretion.” State v. Suaris, 227 Conn. 389, 407, 631 A.2d 238 (1993), citing State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). Relying on the offer of proof, the trial court (1) barred the defendant from eliciting testimony from McDonough that the preliminary screening tested positive for cocaine breakdown products, and (2) left open the possibility of the admission of the test results if they became relevant through another witness. We conclude that this ruling did not constitute an abuse of the trial court’s discretion.

Ill

The defendant next argues that the trial court improperly dismissed a regular juror without just cause after deliberations had begun.

After the trial court had instructed the jury and deliberations had begun, juror Helen Johnson privately told the court that she was too nervous to participate further in the deliberation process. After an inquiry of Johnson and a discussion with counsel, the court asked Johnson to continue, but suspended deliberations for the remainder of the day to allow Johnson to quiet her nervousness.

Before deliberations resumed the next morning, Johnson indicated that she “was not in the state of mind to be able to continue” and asked to be permanently excused. The court again inquired into Johnson’s condition and asked if a suspension of deliberations until the following Monday would permit her to resume. Johnson agreed to return on Monday and again attempt to deliberate.

On the following Monday, Johnson telephoned the court, indicating that she would not be returning to deliberate. The trial court nonetheless ordered her to appear. After Johnson arrived and again refused to continue deliberating because of her nervous condition, the trial court excused her.

A court may excuse a regular juror if that juror, for any reason, becomes unable to perform his or her duty. General Statutes § 54-82h (c). The power to excuse a juror under this section is expressly premised on a finding of cause. State v. Allen, 216 Conn. 367, 378, 579 A.2d 1066 (1990). “Whether in the circumstances ‘just cause’ exists to excuse a juror is a matter within the discretion of the . . . court.” United States v. Casa-mento, 887 F.2d 1141, 1187 (2d Cir. 1989).

The trial court conducted a thorough inquiry when Johnson first indicated that her nervous condition would preclude her from deliberating. The court twice suspended deliberations in an effort to allow Johnson to continue. Despite Johnson’s unwillingness to proceed, the trial court made continued attempts to retain her on the jury. Only after Johnson’s insistence that her nervous condition would not improve did the court finally excuse her. Ultimately, even defense counsel agreed that Johnson should be dismissed. We conclude that just cause existed to excuse Johnson and that the trial court did not abuse its discretion in dismissing her from the jury.

IV

The defendant next argues that, even if the trial court properly excused Johnson, it improperly substituted a dismissed alternate juror for her after deliberations had begun.

A

A defendant who is charged with an offense punishable by life imprisonment may not be tried by a jury of less than twelve without his consent. General Statutes § 54-82 (c); see also Practice Book § 841. The defendant, charged with murder, refused to consent to a jury of eleven after Johnson’s dismissal. In order to avoid a mistrial, the trial court substituted one of the alternate jurors in her place.

The defendant contends that the substitution of an alternate juror for a regular juror after deliberations had begun violates General Statutes § 54-82h (c). In support of this contention, the defendant relies on State v. Williams, 231 Conn. 235, 244, 645 A.2d 999 (1994). Williams, however, specifically declined to decide whether the substitution of an alternate juror for a regular juror after deliberations had begun violates § 54-82h (c) because the state conceded that such a substitution in that case violated the statute. Id., 242 n.10. The state in this case does not make the same concession and we, for the first time, must interpret the statute.

Section 54-82h (c) provides in part: “Alternate jurors shall attend at all times upon trial of the cause. ... If, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial shall then proceed as though such juror had been a member of the regular panel from the time when it was begun. A juror who has been selected to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time he shall be dismissed from further service on said case.”

The state argues that the plain language of the statute authorizes the trial court to substitute an alternate juror for a regular one “at any time,” and does not preclude it from doing so once deliberations have begun. The state also argues that the language “at which time he shall be dismissed from further service” does not impose a prohibition against such substitutions once deliberations have begun. We do not agree.

Section 54-82h (c) specifically authorizes the trial court to excuse a regular juror “at any time” and to replace him with an alternate who has attended the trial “at all times.” This section, however, also provides that alternates, who have not been selected to replace regular jurors at the time “the case is given to the regular panel for deliberation,” are to “be dismissed from further service on said case.”

In interpreting a statute, “we do not interpret some clauses in a manner that nullifies others, but rather read the statute as a whole and so as to reconcile all parts as far as possible. ...” (Citations omitted; internal quotation marks omitted.) West Haven v. Hartford Ins. Co., 221 Conn. 149, 157, 602 A.2d 988 (1992). Every word and phrase is presumed to have meaning, and we do not construe statutes so as to render certain words and phrases surplusage. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 16, 615 A.2d 1032 (1992).

If we construe the words “at all times” and “at any time” in this section to include the period following the submission of the case to the jury for deliberations, we are rendering the clause “at which time he shall be dismissed from further service on said case” meaningless. If, however, we consider the statute as a whole and interpret the words “at all times” and “at any time” to mean any time during which an undischarged alternate is still available for substitution because he has not been dismissed from further service on the case, then we have reconciled the statute’s separate parts and rendered a “reasonable overall interpretation.” Broadley v. Board of Education, 229 Conn. 1, 6, 639 A.2d 502 (1994). Accordingly, we conclude that a substitution of an alternate juror for a regular juror who has been excused once deliberations have begun violates § 54-82h.

B

Even though we have concluded that substituting an alternate juror for a regular one once deliberations have begun is a per se violation of § 54-82h (c), this violation does not necessarily implicate the defendant’s constitutional rights and a reversal of conviction is not automatic. Rather, the defendant bears the burden of proving that he was harmed by the substitution of the regular juror with an alternate. State v. Williams, supra, 231 Conn. 244. We conclude that the defendant has not sustained this burden.

After excusing the regular juror, the trial court asked the remaining eleven jurors if they felt they could recommence deliberations if an alternate juror was placed on the panel. Satisfied that the remaining jurors could begin deliberations anew, the court questioned each of the discharged alternates individually as to whether he or she had: (1) discussed the case since being discharged; (2) seen any publicity about the case; (3) formed any conclusions or opinions about the defendant’s guilt; or (4) knew of any reason why he or she could not participate fairly and impartially in the deliberations. Finding both alternates to be suitable replacements for the regular juror, the trial court, in accordance with § 54-82h (c), randomly chose one to serve on the panel. Once the alternate was impaneled, the trial court ordered the jury to begin deliberations anew.

The trial court in this case is to be commended for its attempts to prevent prejudice to the defendant and to protect the integrity of the trial in connection with the substitution of the alternate juror. Our examination of the record reflects that, when faced with the decision of declaring a mistrial or making the substitution, the trial court made significant efforts to minimize possible prejudice resulting from the substitution of the alternate juror. We thus conclude that the defendant has not sustained his burden of proving that he was harmed by the substitution of the alternate juror.

C

Despite our conclusion that the defendant was not harmed by the substitution, we must now address whether the substitution in the present case violated the defendant’s right to due process of law.

In its initial instructions to the regular panel and alternate jurors, the trial court improperly instructed on the reasonableness of the defendant’s degree of force used in self-defense. In so doing, the trial court replaced the proper subjective-objective standard with a purely objective one: “[Reasonable force is that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more.” The standard for determining the reasonableness of the degree of force used in self-defense in Connecticut is a subjective-objective one. State v. Carter, 232 Conn. 537, 545-46, 656 A. 2d 657 (1995). The jury must first evaluate the defendant’s “subjective belief as to the amount of force necessary . . . .” State v. Prioleau, 235 Conn. 274, 285, 664 A.2d 743 (1995). The jury must ultimately find, however, that the defendant’s subjective belief is objectively reasonable. State v. Hall, 213 Conn. 579, 586 n.7, 569 A.2d 534 (1990); State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984).

In response to the exceptions taken by counsel, the court recalled the jury and clearly instructed it that the appropriate standard by which to measure the reasonableness of the defendant’s force was a subjective-objective one. The alternate jurors, however, had been dismissed following the initial instructions and did not receive the corrected self-defense instruction. The trial court did not give the alternate juror the corrected instruction after impaneling him.

A defendant’s claim of an improper self-defense instruction is of constitutional dimension, and the standard of review to be applied to such a claim is whether it is reasonably possible that the jury was misled. State v. Prioleau, supra, 235 Conn. 284. The state contends that it is not possible that the jury was misled by the trial court’s failure to repeat the curative instruction to the alternate because the original instructions on self-defense, when taken as a whole, adequately guided the jury to a proper verdict. We do not agree.

In determining whether the jury was misled by an improper self-defense instruction, it is well established that the charge is not to be critically dissected, but is to be considered as a whole from the standpoint of its effect on the jury in guiding it to a proper verdict. State v. Ash, 231 Conn. 484, 493-94, 651 A.2d 247 (1994). Having considered the original instructions as a whole, we conclude that the improper self-defense instruction, if not corrected, would have misled the jury into evaluating the reasonableness of the defendant’s degree of force by a purely objective standard because the jury was not sufficiently apprised that the test for self-defense had both subjective and objective components.

The state points to numerous instances in the original instructions in which the court properly defined the word reasonable in conjunction with the defendant’s belief that he was faced with the imminent use of physical force. The state contends that the proper definition of the word reasonable in this phrase adequately apprised the jury that it was to evaluate the reasonableness of the defendant’s degree of force by the same standard. Reasonable belief and reasonable degree of force are distinct components within the self-defense statute, which are defined separately in the court’s instructions. The jury is presumed to follow these instructions. State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991). We therefore cannot conclude that the jury would have replaced the incorrect definition of reasonable as defined in conjuction with the defendant’s degree of force with the correct one as defined in conjunction with imminent harm.

Because the jury was originally instructed that the defendant’s reasonable belief of imminent danger is a subjective determination, and that the defendant’s reasonable amount of force used is an objective one, we conclude that the original instructions misled the jury in its evaluation of the defendant’s use of force. Without the benefit of the corrected instruction, it is reasonably possible that the alternate juror rejected the defendant’s self-defense claim solely on what an “average person of ordinary intelligence” would have believed. Therefore, because the regular jurors and the alternate juror received conflicting instructions on the reasonableness of the degree of force used in sell-defense, the defendant has demonstrated that it is reasonably possible that at least one juror was misled.

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

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant correctly states that Miranda warnings have been held to have independent significance under our state constitution. State v. Falby, 187 Conn. 6, 11 n.1, 444 A.2d 213 (1982). Because this statement is the extent of his state constitutional analysis, however, we decline to address the defendant’s claim under article first, § 8. See State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       Because the defendant has not separately analyzed his state constitutional claim under article first, § 8, we limit our analysis to the relevant federal constitutional claim. See State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       Practice Book § 841 provides: “The parties, after submission of the matter to the jury and prior to the verdict, may, by stipulation in writing and with the approval of the judicial authority, elect to have the verdict rendered by a number of jurors fewer than that prescribed by law. The judicial authority shall not permit such an election or stipulation unless the defendant, after being advised by the judicial authority of his right to a trial by a full jury, personally waives such right either in writing or in open court on the record.” (Emphasis added.)

       We recognize that our interpretation of this section will require trial courts to declare a mistrial if a juror must be excused during deliberations and the defendant does not consent to be tried by less than the number provided by law. We must interpret a statute, however, “without reference to whether we feel that it might be improved by adding to it or interpreting it differently. . . . It is our duty to apply the law, not to make it.” (Citation omitted.) Commissioner of Administrative Services v. Gerace, 40 Conn. App. 829, 833, 673 A.2d 1172 (1996).

       The trial court properly reinstructed as follows: “I want to emphasize and make clear [that] the danger against which the defendant used force is to be determined from his standpoint at the time of the incident, and under all the surrounding circumstances. You must view the situation from the defendant’s perspective — it’s a subjective test — in assessing the risk which the defendant perceived he was facing. And that, then, is to be judged objectively by — -judged ultimately against the acts of a reasonably prudent person, instead of what I said about a person of average ordinary — instead of a person of — average person of ordinary intelligence. It should be judged ultimately against that of a reasonably prudent person.” (Emphasis added.)


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. LINDA RICCIO
    (14545)
    Dupont, C. X, and Foti and Spear, Js.

      Argued March 22
    officially released June 25, 1996

      Judith F. Machuga, assistant public defender, for the appellant (defendant).

      Michele Lukban, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Christopher A. Parakilas, deputy assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant, Linda Riccio, appeals from the judgments of conviction, rendered after a jury trial, of breach of the peace in violation of General Statutes § 53a-181 (a) (1), (3) and (5), and nine counts of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3). The defendant claims that the trial court improperly admitted rebuttal testimony. In addition, the defendant claims that the evidence is insufficient to sustain the conviction for harassment in the second degree. We affirm the judgments of conviction.

The jury heard evidence from which the following facts reasonably could have been found. Sometime in 1991, the victim, Robert Baillargeon, who was renovating his house prior to occupying it, hired the defendant’s father, Giovanni Fabrizi, to install siding. At that time, the defendant was living with her husband and young daughter a few houses away from the victim’s house. During the renovation work, the defendant and the victim met and spoke briefly. After the victim moved into his house, the defendant began calling him on the telephone daily, asking him out on dates. Initially, the victim politely declined and informed the defendant that he was involved in a relationship with another person. The defendant thereafter informed the victim that her only interest was in having a sexual relationship with him. When the defendant’s demands became more persistent and she began yelling at the victim over the telephone and then hanging up on him, the victim’s refusals became less polite. The parties never dated or engaged in a physical relationship.

On the evening of May 16, 1993, the victim, who owned an Enfield deck hockey rink, and was a member of a team, drove to the rink with his fiancee. As the couple were en route to the rink, the defendant passed them in her car, made an obscene gesture and quickly drove away. Approximately five minutes later, the victim and his fiancee were walking in the parking lot of the rink toward a teammate of the victim who had also just arrived. As they approached him, the defendant drove her car quickly into the parking lot, stopped near the couple, and shouted at them, “I’m going to kill you, you’re a fucking whore and you’re an asshole.”

When the victim arid his fiancee drove home after the game, the defendant drove her car behind the victim’s vehicle and flashed her high-beams on and off. As the victim prepared to make a left turn, the defendant’s car passed his on the right and quickly pulled in front of the victim’s car, forcing him to brake and turn. It appeared to the victim that the defendant was trying to force his car off the road or into the oncoming traffic. The defendant then sped off.

The victim and his fiancee immediately drove to the Enfield police station and filed a complaint against the defendant. Later that evening, the defendant went to the police station and admitted that she had threatened the victim in the parking lot of the hockey rink. On June 21,1993, the defendant was arrested on this complaint.

In the spring of 1994, the victim began receiving prank telephone calls on a regular basis at the hockey rink. These calls consisted of heavy breathing, laughing or silence. The victim lodged a complaint with the police because the calls were disrupting his business. Thereafter, a tap was placed on the telephone line from April 19 through May 4,1994. Nine prank calls were received at the rink during the month of April, all originating from the defendant’s father’s house. During this period, the defendant resided at that address and had access to the telephone from which the calls originated. At no time was her voice specifically recognized from any of the nine calls. Other adults lived at the address where the calls originated.

I

The defendant claims that the evidence is insufficient to convict her of the nine counts of harassment in the second degree because the state failed to prove identification, an essential element of the crime, beyond a reasonable doubt.

“We begin our analysis by restating the principles that guide and define the scope of our review. When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 118, 665 A.2d 95 (1995).

The issue of identification is a question of fact to be resolved by the jury. State v. Rivera, 32 Conn. App. 193, 202, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). Proof of the identification of the perpetrator of a crime may be shown by circumstantial rather than direct evidence. State v. Sparks, 39 Conn. App. 502, 515, 664 A.2d 1185 (1995). The probative force of the evidence is not diminished because it consists, in whole or in part, of evidence that is circumstantial. State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990).

In assessing the credibility of the witnesses, the juiy had sufficient evidence, albeit circumstantial, to identify the defendant as the person who placed the harassing telephone calls to the victim from her father’s telephone. The jury had before it the background of the bizarre, threatening and volatile association between the defendant and the victim. The jury, as the sole judge of the credibility of the witnesses, heard the testimony of the victim, his fiancee and the defendant’s father. The defendant’s father testified that he did not make the harassing calls and that he had no reason to call the victim during that period of time when the calls were placed. The evidence tended to show that no adult in the Fabrizi household, other than the defendant, had a reason or a motive, real or imagined, to make those calls. The victim and his fiancee testified to numerous incidents of harassment by the defendant during the previous two to three years, including numerous telephone calls to the victim after he continuously refused her advances. On the basis of this evidence, the jury could reasonably and logically have concluded as it did.

Our review of the defendant’s testimony discloses a witness, thirty-two years old, living with her father, blaming her father for the calls, comparing the victim and her father as controlling and hateful, and implying that this was a plot by her father to have her institutionalized. Her testimony was contradictory on many occasions and the jury was well within its rights to discredit some or all of her testimony. As this court has stated, “[i]n considering the evidence . . . juries are not required to leave common sense at the courtroom door . . . nor ... to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Sparks, supra, 39 Conn. App. 517; State v. Patterson, 35 Conn. App. 405, 414, 646 A.2d 258 (1994).

Having carefully reviewed the record, we conclude that the evidence was sufficient to support the defendant’s conviction of harassment in the second degree. The defendant’s identification was established through circumstantial evidence sufficient to allow the jury to find beyond a reasonable doubt that she was the perpetrator of the crime.

II

The defendant claims that the trial court improperly allowed rebuttal testimony. The following facts are necessary for the resolution of this claim. During the state’s cross-examination of the defendant the following colloquy transpired:

“Q. Didn’t you make harassing phone calls to [the victim] in February of 1993 and March of 1993?

“A. No, I didn’t.

“Q. Isn’t it true that you were the one in both February of 1993 and March of 1993 that made the harassing phone calls to him?

“A. No, because I never made them.

“Q. Isn’t it true that you were asked in February of 1993 and March of 1993 to stop making harassing phone calls?”

The trial court sustained the defendant’s objection to this line of questioning based on remoteness and prejudice. In response to defense counsel’s request that the defendant’s answers to the first two questions be stricken, the trial court ordered the second stricken, but allowed the first to remain as part of the record. The prosecutor then withdrew the last question to which the objection had been sustained.

Following the defendant’s testimony, the prosecutor sought to introduce the testimony of Officer Thomas Smith of the Enfield police department as rebuttal testimony. The prosecutor intended to impeach the defendant’s credibility by contradicting her cross-examination testimony that she had not been warned to stop making harassing telephone calls to the victim in February and March of 1993. The defendant objected on the ground that this was beyond the scope of direct examination, irrelevant and highly prejudicial. The trial court recalled, inaccurately, that when the defendant was questioned on cross-examination as to whether she had been “warned in February or March of 1993 not to make harassing phone calls to the [victim],” the defendant had testified that she had never made the calls. The trial court then ruled that this testimony implicated the defendant’s veracity and allowed the prosecutor to ask two limited questions of Smith. The first question established that Smith was an Enfield police officer in February and March of 1993, and the second query elicited testimony from Smith that he had warned the defendant at that time to stop making harassing telephone calls to the victim.

It is clear that the trial court allowed this testimony as rebuttal evidence. “[R]ebuttal evidence is that which refutes evidence presented by the defense, rather than that which merely bolsters the state’s case .... [It] is usually confined to testimony which is directed at refuting the evidence given by the defendant ... or is in general contradiction of the testimony given by the defendant .... The admission of rebuttal evidence is ordinarily within the sound discretion of the trial court. . . . Further, every reasonable presumption will be given in favor of upholding the court’s ruling when ascertaining if the ruling amounted to an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Cavell, 34 Conn. App. 276, 281-82, 641 A.2d 426 (1994), aff'd, 235 Conn. 711, 670 A.2d 261 (1996).

Although the defendant did testify that she had not made harassing telephone calls to the victim in February or March of 1993, she never answered, nor was asked, since the question was withdrawn after the objection to it was sustained, whether she had ever been warned to stop making those calls. We agree that the rebuttal testimony did not properly contradict the defendant’s cross-examination testimony, and that the trial court improperly admitted it.

The determination that the trial court acted improperly does not necessarily require reversal of the judgment. State v. Silveira, 198 Conn. 454, 475-76, 503 A.2d 599 (1986). Because the improperly admitted evidence does not amount to a constitutional violation, it is the defendant’s burden to show that the error was harmful. State v. Cavell, 235 Conn. 711, 721, 670 A.2d 261 (1996). The defendant’s burden is to demonstrate that it is more probable than not that the result of this trial would have been different had this evidence not been admitted. The question is “whether the claimed error would have been likely to affect the result.” State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).

Given the totality of the evidence, the jury was able to assess the defendant’s credibility concerning the improper rebuttal testimony. Smith’s testimony was limited, consisting of an answer to only one question that had relevance. The defendant has failed to show that the testimony had a tendency to excite passions, awaken sympathy or influence the judgment of the jury. In short, the defendant has not met her burden to show that the error was harmful.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-181 (a) provides in pertinent part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or . . . (3) threatens to commit any crime against another person or his property; or . . . (5) in a public place, uses abusive or obscene language or makes an obscene gesture . . . . ”

       General Statutes § 53a-183 (a) provides in pertinent part: “A person is guilty of harassment in the second degree when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

       The testimony was that the defendant “flipped us the bird.:

       In point of fact, there was no such cross-examination testimony by the defendant regarding warnings because, as described above, the defendant did not respond to the question of whether she had ever been warned by the police not to make harassing telephone calls to the victim in February and March of 1993. The objection to the question was sustained and the question was withdrawn. No one sought to correct this inaccurate recollection of the trial court, nor was the transcript of the pertinent cross-examination read back.