text:
    JULIO GUTIERREZ v. COMMISSIONER OF CORRECTION
    (AC 18840)
    Lavery, Landau and Daly, Js.
    Argued December 7, 1999
    officially released January 4, 2000
   Per Curiam.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CHARLES T. BELLINO, SR. v. COMMISSIONER OF CORRECTION
    (AC 19360)
    Lavery, Mihalakos and Daly, Js.
    Submitted on briefs December 7, 1999
    officially released January 4, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JON A. BARAN
    (AC 19009)
    Lavery, Schaller and Daly, Js.
    Argued December 2, 1999
    officially released January 4, 2000
   Per Curiam.

The defendant, in appealing from his conviction of the misdemeanor of making an improper lane change in violation of General Statutes § 14-236 after a trial de novo by the trial court, claims that his constitutional rights were infringed because he was impeded in his effort to present his case and because various court officials acted in a manner prejudicial to him.

After a thorough review of the record, transcripts and briefs and after affording the appropriate scope of review to those claims which are properly before us, we conclude that the defendant’s assertions have no merit.

The judgment is affirmed.


text:
    ROBERT MESSENGER v. BARRY MESSENGER
    (AC 18797)
    Landau, Hennessy and Mihalakos, Js.
    Submitted on briefs December 15, 1999
    officially released January 4, 2000
   Per Curiam.

The judgment is affirmed.


text:
    MARIA COLON v. CHRISTOPHER MANNER
    (AC 18616)
    Lavery, Mihalakos and Daly, Js.
    Argued December 16, 1999
    officially released January 4, 2000
   Per Curiam.

The judgment is affirmed.


text:
    HERMA STRIBULA v. JOZEF KUBACKA ET AL.
    (AC 19306)
    O’Connell, C. J., and Foti and Healey, Js.
    Submitted on briefs December 15, 1999
    officially released January 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JEFFREY DAVIS v. COMMISSIONER OF CORRECTION
    (AC 18782)
    Landau, Hennessy and Mihalakos, Js.
    Submitted on briefs December 15, 1999
    officially released January 18, 2000
   Per Curiam.

The appeal is dismissed.


text:
    CHERYL A. ANDERSON v. ALLAN BRUCE HEMMINGS
    (AC 18867)
    Lavery, Schaller and Spear, Js.
    Submitted on briefs December 15, 1999
    officially released January 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MICHAEL E. ROBICHAUD, JR.
    (AC 18679)
    Lavery, Landau and Hennessy, Js.
    Argued December 14, 1999
    officially released January 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS E. MARRA, JR. v. COMMISSIONER OF CORRECTION
    (AC 19269)
    Lavery, Mihalakos and Stoughton, Js.
    Argued December 13, 1999
    officially released January 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JOYCE SENIOR v. DEPARTMENT OF SOCIAL SERVICES
    (AC 19153)
    Foti, Landau and Schaller, Js.
    Argued January 10
    officially released February 1, 2000
   Per Curiam.

The judgment is affirmed.


text:
    KAREN ECKERT ET AL. v. FORT RACHEL MARINE SERVICES, INC.
    (AC 18277)
    Schaller, Spear and Stoughton, Js.
    Argued January 11
    officially released February 1, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. THOM N. ASHBY
    (AC 19506)
    Foti, Zarella and Dupont, Js.
    Argued January 13
    officially released February 1, 2000
   Per Curiam.

The judgment is affirmed.


text:
    ROBERT BRIAN CRIM v. YALE UNIVERSITY ET AL.
    (AC 18877)
    O’Connell, C. J., and Lavery and Hennessy, Js.
    Argued January 13
    officially released February 1, 2000
   Per Curiam.

The judgment is affirmed.


text:
    RICHARD R. QUINT v. COMMISSIONER OF CORRECTION
    (AC 19735)
    Foti, Lavery and Schailer, Js.
    Argued January 21
    officially released February 15, 2000
   Per Curiam.

The appeal is dismissed.


text:
    ROBERT CARBONE v. LINDSAY THOMSON
    (AC 19166)
    Foti, Lavery and Schailer, Js.
    Argued January 21
    officially released February 15, 2000
   Per Curiam.

This case is controlled by Sage v. Hawley, 16 Conn. 106 (1844). Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988), is inapposite.

The judgment is affirmed.


text:
    KNUTSON MORTGAGE CORPORATION v. MIHALY J. SALATA ET AL.
    (AC 19732)
    Lavery, Schailer and Hennessy, Js.
    Submitted on briefs January 26
    officially released February 15, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STEPHEN BLACK ET AL. v. KELLY MOYE ET AL.
    (AC 19518)
    Lavery, Schaller and Hennessy, Js.
    Submitted on briefs January 26
    officially released February 15, 2000
   Per Curiam.

The judgment is affirmed.


text:
    BRISTOL BAPTIST CHURCH v. JASON LAFRANCOIS ET AL.
    (AC 19373)
    O’Connell, C. J., and Spear and Mihalakos, Js.
    Submitted on briefs January 26
    officially released February 15, 2000
   Per Curiam.

The judgment is affirmed.


text:
    FREDERICKA SCHRUMM v. ERIC SCHRUMM
    (AC 19688)
    O’Connell, C. J., and Spear and Mihalakos, Js.
    Submitted on briefs January 26
    officially released February 15, 2000
   Per Curiam.

The judgment is affirmed.


text:
    MICHAEL KUNDERT v. COMMISSIONER OF CORRECTION
    (AC 19644)
    Foti, Landau and Zarella, Js.
    Submitted on briefs January 26
    officially released February 15, 2000
   Per Curiam.

The appeal is dismissed.


text:
    BEN GYADU v. HARTFORD INSURANCE COMPANY ET AL.
    (AC 19626)
    Foti, Landau and Zarella, Js.
    Submitted on briefs January 26
    officially released February 15, 2000
   Per Curiam.

The judgment is affirmed.


text:
    BEN GYADU v. HARTFORD INSURANCE COMPANY
    (AC 18609)
    Foti, Landau and Zarella, Js.
    Submitted on briefs January 26
    officially released February 15, 2000
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM COTTER ET AL. v. ALLSTATE INSURANCE COMPANY
    (AC 18914)
    Schaller, Spear and Mihalakos, Js.
    Argued February 15
    officially released March 14, 2000
   Per Curiam.

The claims of the plaintiffs are controlled by Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 743 A.2d 156 (1998).

The judgment is affirmed.


text:
    CHERRY PRAWL v. ANDRE MORISSEAU ET AL.
    (AC 18976)
    Lavery, Hennessy and Daly, Js.
    Argued February 18
    officially released March 14, 2000
   Per Curiam.

The judgment is affirmed.


text:
    RONEY HARRIS v. UNITED TECHNOLOGIES CORPORATION/PRATT AND WHITNEY AIRCRAFT DIVISION ET AL.
    (AC 19399)
    Foti, Landau and Stoughton, Js.
    Argued February 16
    officially released March 14, 2000
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    ANN DIAZ v. HOUSING AUTHORITY OF THE CITY OF STAMFORD ET AL.
    (AC 19214)
    O’Connell, C. J., and Landau and Daly, Js.
    Argued February 17
    officially released March 14, 2000
   Per Curiam.

The decision of the workers’ compensa-

tion commissioner is affirmed.


text:
    IN RE ERNEST J. COCKAYNE’S APPEAL FROM PROBATE
    (AC 19184)
    Lavery, Landau and Spallone, Js.
    Argued February 25
    officially released March 14, 2000
   Per Curiam.

The judgment is affirmed.


text:
    REYNALDO RAMOS v. COMMISSIONER OF CORRECTION
    (AC 17363)
    Lavery, Landau and Spallone, Js.
    Argued February 25
    officially released March 14, 2000
   Per Curiam.

The judgment is affirmed.


text:
    DAVID G. HUNTER ET AL. v. ROGER JENNINGS
    (AC 18597)
    Foti, Laveiy and Schaller, Js.
    Argued February 28
    officially released March 14, 2000
   Per Curiam.

The judgment is affirmed.


author: FOTI, J.

text:
    NINTH RMA PARTNERS, L.P. v. BARRETT L. KRASS ET AL.
    (AC 18106)
    Foti, Spear and Vertefeuille, Js.
    Argued October 19, 1999
    officially released March 21, 2000

      Kerry M. Wisser, with whom, on the brief, was Nathan A. Schatz, for the appellants (defendants).

      Richard M. Levy, with whom, on the brief, was Douglas M. Evans, for the appellee (substitute plaintiff).
   Opinion

FOTI, J.

The defendants appeal from the judgment of the trial court awarding the plaintiff $231,568.62, plus $7500 in attorney’s fees. The defendants claim that the trial court improperly (1) concluded that the plaintiff had standing to maintain its action, (2) concluded that the substitute interest rate charged by the plaintiff and its predecessors was reasonable and (3) admitted evidence that did not satisfy the business record exception to the hearsay rule. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On April 24, 1990, the defendants executed a $150,000 promissory note payable to Landmark Bank (Landmark). On March 28, 1991, Landmark was declared insolvent, and the Federal Deposit Insurance Corporation (FDIC) was appointed as its receiver. On April 14,1994, the FDIC transferred the note to RMA Partners, L.P. (RMA); RMA then transferred the note to the plaintiff, Ninth RMA Partners, L.P.

On February 6, 1996, the plaintiff filed suit against the defendants to enforce payment of the note. During a December 16, 1996 hearing, the defendants conceded liability on the note. The court, accordingly, rendered summary judgment as to the defendants’ liability and set a hearing to resolve the issue of damages. On August 5, 1997, the court held a hearing in damages and on December 1, 1997, rendered judgment awarding damages and attorney’s fees to the plaintiff.

I

The defendants first claim that the court improperly ruled that the plaintiff had standing to enforce the note. Resolution of this issue requires the consideration of certain other facts.

On May 30, 1996, the defendants filed a special defense alleging that the plaintiff lacked standing to enforce the note. On December 16, 1996, however, the defendants conceded their liability to the plaintiff and stipulated to the entry of summary judgment as to liability. Although the defendants had conceded liability on the note at the December 16, 1996 summary judgment hearing, they later attempted to deny any liability at the August 5,1997 hearing in damages. At that hearing, the defendants contested liability by claiming that the plaintiff was not a proper holder of the note and, therefore, lacked the legal standing to enforce it. Specifically, the defendants attempted to raise doubts about the chain of title to the note.

While noting that the defendants had previously conceded liability for the note, the trial court entertained the defendants’ argument as to the issue of standing, noting that the issue of standing implicates subject matter jurisdiction and can be raised at any time. In its December 1, 1997 memorandum of decision, the court found that the plaintiff did, in fact, have standing to enforce the note and that the defendants were liable to the plaintiff.

The defendants now appeal, claiming that the trial court improperly found that the plaintiff had standing to enforce the note. The substitute plaintiff, however, claims that the defendants should never have been allowed to raise the issue of standing at the hearing in damages and should not be allowed to raise any issues concerning liability on appeal. Specifically, the substitute plaintiff argues that because the defendants stipulated to liability on the note, they should not have been allowed to contest that liability during the hearing in damages. Of particular note, the substitute plaintiff points to the fact that the defendants initially raised the issue of standing as a special defense, then abandoned that defense by conceding liability on the note and later reintroduced the issue of standing without giving any notice to the plaintiff. As a result, the plaintiff justifiably believed that liability was conclusively established by the summary judgment stipulation and had no notice or opportunity to present more evidence to prove that the plaintiff was a valid holder of the note. Accordingly, the substitute plaintiff argues that the defendants should be precluded from raising any issues relating to liability on appeal.

We agree with the substitute plaintiff that once the defendants conceded liability on the note, it was improper for them to attempt to raise the issue of liability at the hearing in damages and in this appeal. The defendants make much of the maxim that standing implicates the subject matter jurisdiction of the court and may be raised at any time. The defendants, however, fail to understand that there is a difference between challenging a party’s standing to maintain a cause of action and challenging the merits of the cause of action itself. “The question of standing does not involve an inquiry into the merits of the case. It merely requires the paity to make allegations of a colorable claim of injury to an interest which is arguably protected or regulated by the statute ... in question.” State v. Pierson, 208 Conn. 683, 687, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989).

When the defendants argued at the hearing in damages that the plaintiff was not a proper holder of the note, their argument went to the merits of the case, that is, to whether the plaintiff should prevail. Although they called their claim a lack of subject matter jurisdiction, we do not view it as such. We view it, instead, as a claim that goes to the heart of the issues that would have had to be resolved if the case had gone to trial. See State v. Seravalli, 189 Conn. 201, 206, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983) (mere characterization of issue as one of double jeopardy does not require court to grant interlocutory review); see also State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982) (putting constitutional tag on nonconstitutional claim will not change its essential character).

To prevail in an action to enforce a negotiable instrument, the plaintiff must be a holder of the instrument or a nonholder with the rights of a holder. See General Statutes § 42a-3-301; Donnelly v. Garvan, 111 Conn. 626, 629, 151 A. 168 (1930). This status is an element of an action on anote. See 12 Am. Jur. 2d, Bills and Notes § 650 (1997) (action brought on negotiable instrument, such as promissory note, must allege facts on which plaintiffs right to recover from defendant on instrument depends). The failure to plead this fact properly is challenged by a motion to strike. See Sheiman v. Lafayette Bank & Trust Co., 4 Conn. App. 39, 42, 492 A.2d 219 (1985). The failure to prove such element will result in a judgment for the defendants. See Barnes v. Upham, 93 Conn. 491, 495-96, 107 A. 300 (1919). In neither event is jurisdiction implicated.

The trial court, therefore, need not have addressed the defendants’ argument, which was, in essence, an effort to undo the stipulation by labeling as jurisdictional a challenge to the merits of the plaintiff’s right to recover. Although the issue decided was not a jurisdictional claim and need not have been considered by the court, we note that the court decided the issue correctly.

General Statutes § 42a-l-201 (20) provides in relevant part that a “ ‘[h] older’, with respect to a negotiable instrument, means the person in possession ... in the case of an instrument payable to an identified person, if the identified person is in possession. . . .’’When the FDIC took over as Landmark’s receiver, the defendants’ note was found in Landmark’s possession. Because the note was payable to Landmark and Landmark was in possession of the note, Landmark had clearly been the “holder” of the note at the time that the FDIC became Landmark’s receiver. As Landmark’s receiver, the FDIC succeeded to all lights, titles, powers and privileges of Landmark. 12 U.S.C. § 1821 (d) (1); see also Resolution Trust Corp. v. Juergens, 965 F.2d 149 (7th Cir. 1992). The FDIC, therefore, acquired all the rights of a holder. The FDIC then transferred the note to RMA, which acquired the rights of a holder to enforce the note; RMA then transferred the note to the plaintiff, which also succeeded to the rights of a holder and was entitled to enforce the note.

General Statutes § 42a-3-301 provides that a note may be enforced by a holder of the instrument or a nonholder in possession of the instruments who has the rights of a holder. Our review of the record shows that the plaintiff had acquired the rights of a holder and was therefore entitled to enforce the note. The trial court correctly determined that the plaintiff was entitled to bring this action against the defendants.

II

The next issue raised by the defendants concerns the interest rate that the court used to calculate the amount owed on the note. Originally, the interest rate on the note was equal to the prime rate of Landmark, plus two percentage points. When Landmark became insolvent, however, its internal prime rate index ceased to exist. Thus, the plaintiff and its predecessors on the note necessarily implemented a substitute interest rate. The defendants now claim that the court improperly determined that that substitute interest rate was reasonable.

It is well established that “[w]hen a variable interest rate is based on the rate of a failed institution, the trial court must determine whether the substitute rate is reasonable by examining the documents and testimony offered by the plaintiff.” Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 578, 662 A.2d 157 (1995). In determining reasonableness, the court need not determine the exact methodology used by the failed bank in calculating its internal interest rate; such a determination would be impossible in many circumstances. Rather, the court must determine whether the substitute rate was reasonable based on all the circumstances of the particular case.

In the present case, the court determined that the substitute rate assessed by the plaintiff and its predecessors was reasonable. In doing so, the court examined the actual rates used by Landmark prior to its failure and the substitute rates set by the FDIC. The court then compared those rates to the federal prime rate set by the Federal Reserve. After considering all the relevant evidence, the court properly determined that the substitute rate was fair and reasonable, and we find no error in the court’s determination that the substitute rate was reasonable.

Ill

The defendants next claim that the trial court improperly admitted two exhibits into evidence under the business record exception to the hearsay rule. Specifically, the defendant claims that the court improperly admitted exhibit two, the commercial loan trial balance of Landmark, and exhibit six, a printout of information from the FDIC’s computer system showing general account information on the defendants’ loan. For the following reasons, we find that the court did not act improperly in admitting either of the two exhibits.

A

Exhibit two is a computer printout containing information on the defendants’ loan that had been stored in Landmark’s computer system. When Landmark failed and the FDIC was appointed as its receiver, Landmark’s computers were used to print the document to provide the FDIC with a hard copy of the loan data stored on Landmark’s computers. Over the defendants’ objection, the court admitted exhibit two into the record under the business record exception to the hearsay rale. On appeal, the defendants claim that exhibit two does not satisfy the business record exception and that it was not properly authenticated. We disagree with the defendants.

“To admit evidence under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was in the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter.” (Internal quotation marks omitted.) River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 793-94, 595 A.2d 839 (1991). To qualify a document as a business record, the party offering the evidence must present a witness who testifies that these three requirements have been met. State v. Tillman, 220 Conn. 487, 506, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). Section 52-180 is to be liberally construed, and our review is limited to determining whether the trial court abused its discretion in admitting the challenged evidence. River Dock & Pile, Inc. v. O & G Industries, Inc., supra, 795.

The defendants claim that exhibit two does not fall within the scope of § 52-180 because the computer printout was produced upon the failure of Landmark. The defendants note that because it is not the “normal course of business” for banks to fail, the printout fails according to the first two requirements of § 52-180. In making this argument, however, the defendants fail to recognize that it is the computer information itself, and not the printout, that must qualify as a business record. The plaintiff presented evidence that it was within the normal course of business for Landmark to compile data on its outstanding loans; this information was processed and stored in Landmark’s computer system. While the printout itself may have been generated upon the failing of Landmark, the printout was merely a tangible manifestation of information stored on the computer system. The actual records themselves, which were stored in the computer system, were clearly created within the regular course of Landmark’s business and satisfy the requirements of § 52-180.

The second issue the defendants raise with respect to exhibit two is that the exhibit was not properly authenticated. We find no merit in the defendants’ claim. At the hearing in damages, the plaintiff presented testimony from two witnesses who were intimately familiar with Landmark’s procedures regarding commercial loans. In fact, one of the witnesses was actually present when the document was created. We find that there was sufficient evidence for the trial court to have determined that exhibit two was a properly authenticated business record of Landmark; the court’s admission of this evidence was not improper.

B

Finally, the defendants claim that the court improperly admitted exhibit six, which is a printout of information from the FDIC’s computer system showing general account information on the defendants’ loan from 1991 through 1994, the period during which the FDIC held the note. The defendants claim that exhibit six does not satisfy the requirements of the business record exception because it was not made in the normal course of business and was generated only in anticipation of litigation. To support their claim, the defendants point to the fact that although the FDIC held the note between 1991 and 1994, the printout was not created until 1997, and only at the request of the plaintiff.

Once again, the defendants confuse the distinction between computer records and the physical printout of such records. It is undisputed that the FDIC generated the actual printout long after it was a holder of the note. Thus, the printout itself was not created within the FDIC’s normal course of business. Nevertheless, the exhibit was properly admitted as a business record because it reflected information compiled by the FDIC during the time it held the note. As holder of the note between 1991 and 1994, it was clearly within the ordinary course of the FDIC’s business to compile data on the outstanding balance of the defendants’ note. The printout admitted as exhibit six was merely a hard copy of data that had already been compiled by the FDIC in the ordinary course of its business. The fact that the information was printed in hard copy only after the FDIC had transferred the note does not change the fact that the actual information reflected in that printout was created by the FDIC in the normal course of business while it held the note.

Similarly, the fact that the printout was created by the FDIC for purposes of litigation does not prevent the document from being admitted as a business record. We, of course, agree with the defendants that documents prepared for purposes of litigation lack the presumption of trustworthiness that justifies the business record exception. See, e.g., Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 710, 638 A.2d 44 (1994). The actual data reflected by exhibit six, however, was not compiled for the purposes of litigation. Rather,- it was produced during the normal course of the FDIC’s business. The printout admitted as exhibit six was merely the physical representation of data that already existed on the FDIC’s computer system. There was sufficient evidence presented to show that that information was created in the normal course of the FDIC’s business, and the exhibit was properly admitted by the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this case are Barrett L. Krass, James Heneghan, James Sutton and Seventeen West Main Street Associates.

       The defendants Barrett L. Krass, James Heneghan and James Sutton executed the note on April 24, 1990, and, on that same day, the defendant Seventeen West Main Street Associates guaranteed the repayment of all sums due under the note.

       The note, by its terms, matured on April 24, 1991. The defendants failed to make payments and, therefore, were in default on the note.

       When the defendant attempted to raise the issue of liability at the August 5, 1997 hearing in damages, the trial court noted: “If we can back up a bit, counsel. . . . Liability, the legal right to collect and the legal responsibility to make payment, has in fact been determined by the court .... And liability means that the maker of the note is liable to [the plaintiff] . . . .”

       “ ‘Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.’ ” Monroe v. Horwitch, 215 Conn. 469, 472-73, 576 A.2d 1280 (1990); see Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

       The defendants argue that Landmark was never actually a “holder” and, therefore, had no standing to enforce the note. The defendants’ argument rests on the fact that, when the note was found in Landmark’s possession, the note had been endorsed to the Federal Reserve Bank of Boston; the endorsement to the Federal Reserve Bank was subsequently canceled. The defendants should have presented this “chain of title” argument at trial, and it was properly deemed waived by the defendants’ concession of liability. As we discussed previously, the plaintiff satisfied the bare requirements of standing by being in possession of the note where the note was made payable to the plaintiff.

       We additionally note that General Statutes § 42a-3-308 (b) provides in relevant part that “[i]f the validity of signatures is admitted . . . a plaintiff producing the instrument is entitled to payment . . . unless the defendant proves a defense . . . .” At the summary judgment hearing, the defendants admitted to signing the note. By stipulating to summary judgment, the defendants also waived the opportunity to establish a defense against the plaintiffs. The defendants may not later, under the guise of standing, attempt to litigate an issue that was properly concluded at the summary judgment stage.


author: MIHALAKOS, J.

text:
    MECHELLE MEDCALF v. WASHINGTON HEIGHTS CONDOMINIUM ASSOCIATION, INC., ET AL.
    (AC 18185)
    Foti, Hennessy and Mihalakos, Js.

      Argued December 1, 1999
    officially released March 21, 2000

      David J. Scully, for the appellants (defendants).

      J. Michael Cantore, Jr., with whom was Tad J. Bis-tor, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendants, Washington Heights Condominium Association, Inc., and Professional Property Management Company, Inc., appeal from the judgment rendered in favor of the plaintiff, Mechelle Medcalf, after a jury trial. The jury awarded to the plaintiff $4778.44 in economic damages and $110,000 in noneconomic damages. On appeal, the defendants claim that the trial court improperly (1) refused to direct or set aside the verdict and render judgment for the defendants as a matter of law, (2) admitted into evidence certain crime statistics and denied the defendants’ request to examine the crime statistics witness, (3) denied the defendants’ motion in arrest of judgment, (4) charged the jury on the issues of cause and the difference between proximate cause and inconsequential cause, (5) charged the jury on permanent injuries and future damages, and (6) admitted into evidence undisclosed medical records and bills. We agree with the defendants’ first claim and reverse the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. On June 20, 1990, the plaintiff and a friend, Deborah Michelson, arrived at 1633 Washington Boulevard in Stamford at approximately 9 p.m. to visit a friend, Tracy Skiades. The defendant Washington Heights Condominium Association, Inc., is a Connecticut coiporation comprised of the unit owners of the premises. The defendant Professional Property Management Company, Inc., is the managing agent in control of the operation, management and repair of the premises.

The plaintiff parked her car in the street level parking lot and walked to the lobby doors. The lighting in the parking lot was dim. She picked up the intercom outside the lobby and called Skiades. The intercom was answered by Skiades’ brother-in-law, who told Skiades that the plaintiff was downstairs. Skiades then attempted to let the plaintiff into the lobby by using the electronic buzzer system. The system failed to work, and Skiades told the plaintiff that she would come down and let her in. Before Skiades could admit her, the plaintiff was attacked by a man, later identified as Kenneth Strickler. She suffered injuries as a result of the attack.

The jury, in response to interrogatories presented to it, returned a verdict for the plaintiff on only the following count of the complaint: “[failure to] maintain the building telephone security intercom communication system in working order so as to allow the plaintiff, and other persons entering the building, to contact others within the building; and for those persons within the building to electronically open the front lobby doors.”

The defendants claim that the court improperly denied their motion for a directed verdict. We agree.

Our review of a trial court’s refusal to direct a verdict takes place within veiy defined parameters. The evidence must be considered, along with reasonable inferences, in the light most favorable to the parties who were successful at trial with weight given to the judgments of the judge and jury. John T. Brady & Co. v. Stamford, 220 Conn. 432, 440-41, 599 A.2d 370 (1991). “The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” Id., 441. A trial court may set aside or direct a verdict on a finding that “the verdict is manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied. Maroun v. Tarro, 35 Conn. App. 391, [396], 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994).” Foley v. Huntington Co., 42 Conn. App. 712, 724-25, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). “While we do not attempt to substitute our judgment for that of the trial judge, we must determine whether the jury award was such that the trial judge could have properly substituted his judgment for that of the jury.” Jerz v. Humphrey, 160 Conn. 219, 225, 276 A.2d 884 (1971). To determine whether the trial court abused its legal discretion, this court must consider the entire record and all of the evidence. Foley v. Huntington Co., supra, 726.

The dispositive issue in this appeal is whether there is a causal connection between the assault and the failure of the security system. We conclude that the jury could not reasonably have found that, the failure to maintain the intercom security system was the proximate cause of the assault.

The elements in a negligence cause of action are duty, breach of that duty, causation and damages. Doe v. Manheimer, 212 Conn. 748, 755, 563 A.2d 699 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). To prevail on anegligence claim, aplaintiff must establish that the defendant’s conduct was the legal cause of the injuries. See Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987); Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 41, p. 263. “The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct.” (Internal quotation marks omitted.) Doe v. Manheimer, supra, 757.

The second component is proximate cause. “Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff.” W. Prosser & W. Keeton, supra, § 41, p. 263. “The Connecticut Supreme Court has defined proximate cause as [a]n actual cause that is a substantial factor in the resulting harm .... The substantial factor test reflects the inquiry fundamental to all proximate cause questions, that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” (Citations omitted; internal quotation marks omitted.) Suarez v. Sordo, 43 Conn. App. 756, 762, 685 A.2d 1144 (1996), cert. denied, 240 Conn. 906, 688 A.2d 334 (1997). Proximate cause is a question of fact to be decided by the trier of fact, but it becomes a question of law when the mind of a fair and reasonable person could reach only one conclusion. Doe v. Manheimer, supra, 212 Conn. 767. “Lines must be drawn determining how far down the causal continuum individuals will be held liable for the consequences of their actions. . . . This line is labeled proximate cause.” (Citations omitted; internal quotation marks omitted.) Suarez v. Sordo, supra, 769. In issues involving proximate cause analysis, this court has held that “an intervening intentional or criminal act relieves a negligent defendant of liability, except where the harm caused by the intervening act is within the scope of risk created by the defendant’s conduct or where the intervening act is reasonably foreseeable. ... As a general rule, the act of a third person in committing an intentional act or crime is a superseding cause of harm to another resulting therefrom. . . . In such a case, the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him.” (Citations omitted; internal quotation marks omitted.) Id., 762-63; see also 2 Restatement (Second), Torts § 442B, comment (c) (1965). Recovery is barred in a negligence action where there is a lack of causal connection between the defendant’s wrongful conduct and a plaintiffs injury. Cardona v. Valentin, 160 Conn. 18, 24, 273 A.2d 697 (1970).

In Doe v. Manheimer, supra, 212 Conn. 762, our Supreme Court was not persuaded that the owner of a property should reasonably foresee that an overgrowth of vegetation would provide an inducement for the commission of a violent crime by a stranger. The court held that the overgrown vegetation was an incidental factor and not a substantial factor that would establish proximate cause. Id.

Suarez follows the proximate cause analysis in Doe. In Suarez, the court held that the defendant’s negligence in providing locks and knobs on an apartment door did not create a risk of the type of harm suffered by the plaintiff and, thus, was not the proximate cause of the injuries suffered by the plaintiff. Suarez v. Sordo, supra, 43 Conn. App. 770.

In the present case, the plaintiff offered no evidence that the malfunctioning intercom system was designed to provide security to a person outside the building. The defendants’ failure to maintain the intercom system was inconsequential and was not the proximate cause of the assault. The injury may likely have occurred without any negligence with respect to the intercom system.

The defendants could not have reasonably foreseen that a malfunctioning intercom system might provide a substantial incentive or inducement for the commission of a violent criminal assault on their property by one stranger upon another. See Doe v. Manheimer, supra, 212 Conn. 762.

We rule that, as a matter of law, the jury could not reasonably have found that the assault on the plaintiff and the resultant injury were within the foreseeable scope of risk created by the defendants’ failure to maintain the intercom system. Therefore, the plaintiff failed to establish the necessary causal relationship.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       Because we agree with the defendants’ first claim, we find it unnecessary to address the remaining claims.

       “Our standard of review for motions to direct a verdict, motions to set aside a verdict and motions for judgment notwithstanding the verdict are the same. See Foley v. Huntington Co., 42 Conn. App. 712, 724, 682 A.2d 1026 [cert. denied, 239 Conn. 931, 683 A.2d 397] (1996) . . . .” (Citations omitted.) Suarez v. Sordo, 43 Conn. App. 756, 759, 685 A.2d 1144 (1996), cert. denied, 240 Conn. 906, 688 A.2d 334 (1997).

       We decline to address the issue of duty, but rather decide the issue on the matter of proximate cause.


author: VERTEFEUILLE, J.

text:
    STATE OF CONNECTICUT v. WILLIAM TAFT
    (AC 18629)
    Landau, Spear and VertefeuiUe, Js.
    Argued October 21, 1999
    officially released March 21, 2000

      Richard E. Condon, Jr., deputy assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

VERTEFEUILLE, J.

The defendant, William Taft, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a mistrial, and (2) instructed the jury on reasonable doubt and identification. We reject the defendant’s claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 19, 1994, Ernest Herold drove to the Dunbar Cafe in New Haven with two friends. Herold parked his car behind the bar and proceeded to the front of the bar, where he began talking with the owner of the bar, Robert Williams. Herold then observed a tan Lincoln being parked in front of the bar. Three men exited the vehicle, walked to the bar entrance and began talking with Williams. The three men were Andre Provite, who is the defendant’s cousin, Phil Young and the defendant.

The three men entered the bar, and Herold followed shortly thereafter. Herold ordered a beer and watched the defendant, Williams and another man playing poker. After the card game, Herold heard the defendant ask Williams for money, which Williams refused. Herold then approached the bar, and the defendant turned toward him and asked Williams whether Herold was his nephew or bodyguard or had some other relation to him. Herold then left the bar. He walked to a nearby after-hours club, entered it briefly and decided to leave. Herold then headed toward his car to go home.

As he approached the Dunbar Cafe, Herold saw the defendant, Provite, Young and two other men standing together near the entrance to the bar. As Herold passed by the group, he heard the defendant say to one of the men: “What the fuck is this? Who the fuck is this guy?” Herold responded: “Why you keep asking who I am? Who are you to keep asking who I am? What is your problem?” The defendant then told Herold, “I will show you,” and pulled out a chrome-colored pistol, which he pointed at Herold. Herold then turned to run, heard a gunshot and fell to the ground with a head wound. The bullet penetrated the back of his head, shattered his jaw and exited near his left cheek. Herold was then rushed to a hospital.

The defendant fled the scene with Provite and Young and, subsequently, fled the state. He was apprehended in July, 1995, in Kansas City, Missouri, and was brought back to Connecticut to face criminal charges pertaining to these events.

I

The defendant claims that the court improperly denied his motion for a mistrial. We disagree.

“A mistrial is appropriate only where it is apparent to the court that as a result of some occurrence during the trial a party has been deprived of an opportunity for a fair trial. . . . The trial court . . . has great latitude in ruling on a motion for a mistrial. . . . The question on appeal is . . . whether the trial court, in refusing to grant a new trial, so far exceeded or abused its discretion so as to warrant granting a new trial. . . . In reviewing motions for mistrial, our Supreme Court has determined that [i]f curative action can obviate the prejudice, the drastic remedy of mistrial should be avoided.” (Citations omitted; internal quotation marks omitted.) State v. Melillo, 17 Conn. App. 114, 119, 550 A.2d 319 (1988).

A

The defendant first claims that the court improperly allowed the state to impeach him on the basis of his postarrest custodial silence. The following additional facts are necessary for a resolution of this issue.

At trial, Provite testified that although he was at the Dunbar Cafe, he was in his car at the time of the shooting and did not witness it. Provite testified that moments after he heard a shot being fired, he saw the defendant, who was not carrying a gun, approach his car.

Provite’s testimony was impeached with a taped statement that he gave police the day after the shooting. In Provite’s taped statement, he said that the defendant shot Herold, that he saw Herold fall to the ground with the defendant standing over him with a gun, and that he drove the defendant from the scene because he was afraid that otherwise the defendant would shoot him.

The defendant testified that an unidentified person bought drugs from Herold and then stood behind him and shot him in the head. Further, the defendant testified that he fled the scene with his cousin because he was so disturbed by the shooting.

On cross-examination, the prosecutor attempted to discredit the defendant’s testimony by asking numerous questions about why the defendant did not contact Provite, his cousin, subsequent to his arrest. The prosecutor questioned the defendant’s failure to ask his cousin to confirm for the police his version of the events on the night of the shooting. Both the defendant and Provite testified that they had not spoken after the arrest.

During redirect examination, defense counsel established that she had specifically instructed the defendant not to talk to Provite or any other witnesses. The state then advised the court that it intended to put on evidence concerning the amount of time that had passed between the defendant’s arrest and when he began being represented by defense counsel. Defense counsel objected to this evidence.

The prosecutor, however, elicited during recross-examination that defense counsel did not represent the defendant and therefore did not instruct him to be silent until approximately two months after his arrest. The defendant subsequently moved for a mistrial, claiming that the state’s questions concerning his postarrest silence were improper.

The court determined that a mistrial was not necessary and gave the jury a curative instruction to remedy any possible prejudice. The court reasoned that the prosecutor’s line of questioning was proper because it was relevant to the credibility of the defendant and Provite, and had nothing to do with the defendant’s constitutional right to remain silent. We agree.

The curative instruction cautioned the jury that the evidence concerning the defendant’s failure to call Provite could be considered only with respect to the credibility of Provite and the defendant. The court further cautioned the jury that if it found that the defendant did not contact Provite because of the advice of his counsel, it should not draw any unfavorable inferences from this fact.

The defendant relies on State v. Ferrone, 97 Conn. 258, 116 A. 336 (1922), to support his claim that the prosecutor’s questions on the defendant’s silence were improper. In Ferrone, our Supreme Court held that “when the accused is in custody, our law accords [the accused] the right to reply to question or statement, or to remain silent. [The accused’s] silence under such circumstances cannot be laid in evidence against him.” (Emphasis added.) Id., 266. The defendant’s silence in the present case did not occur while he was in custody or while being questioned by the police. Therefore, the rule in Ferrone does not apply.

The defendant also relies on State v. Bates, 140 Conn. 326, 99 A.2d 133 (1953). In Bates, the Supreme Court applied Ferrone and held that although the defendant was not physically in custody because he had been released on bail, he was in constructive custody, and his silence in the face of an accusation concerning his guilt was inadmissible. Id., 330. In the present case, however, the evidence concerning the defendant’s failure to contact his cousin was not admitted to prove guilt. The court instructed the jury immediately after the defendant testified, and the court stated that the evidence was to be used only for credibility purposes.

We conclude that the court properly limited to the issue of credibility the admission of the state’s questioning concerning the defendant’s silence. The court, therefore, properly denied the motion for a mistrial.

B

The defendant next claims that the court improperly denied his motion for a mistrial because it allowed the state to impeach him for remaining silent without determining outside the jury’s presence whether his silence was due to the advice of counsel. The defendant relies on State v. Bryant, 202 Conn. 676, 523 A.2d 451 (1987), in support of his claim. Our Supreme Court in Bryant, however, established guidelines for the cross-examination of alibi witnesses, not defendants, in criminal trials.

In Bryant, the court ruled that to lay a proper foundation for the impeachment of an alibi witness on the basis of his or her failure to come forward prior to trial to tell the police about a defendant’s alibi, it may be necessary to establish that the witness (1) was aware of the nature of the charges, (2) had reason to recognize that he or she possessed exculpatory information, (3) had a reasonable motive for acting to exonerate the defendant and (4) was familiar with the means to make such information available to the authorities. Id., 705. The court in Bryant reasoned that laying a proper foundation for an alibi witness’ silence may aid the trier of fact in determining whether the witness’ testimony is accurate or a recent fabrication. Id. Further, the court reasoned that “[c]ommon sense and human experience may indicate, in a given case, that there may be explanations for a witness’ pretrial silence that are entirely consistent with that witness’ posture at trial.” Id. Thus, the court in Bryant was concerned with a “witness [who] is cast in the posture of having been silent as to claimed exculpatory testimony and is not given a real opportunity to explain that silence . . . .” (Emphasis added.) Id., 704. The court’s holding in Bryant, however, is not applicable to the facts of this case. Bryant addressed the impeachment of alibi witnesses for failing to come forward before trial and tell the police about a defendant’s alibi. Bryant does not concern the impeachment of a defendant. In this case, the evidence concerning the defendant’s silence was elicited through the defendant’s own testimony, and the defendant gave an explanation for his failure to contact his cousin. We therefore conclude that the rule in Bryant does not apply to the facts of this case and that the defendant’s claim is without merit.

II

The defendant next claims that the court improperly charged the jury on the definition of reasonable doubt and on identification. We disagree with both arguments.

A

The defendant claims that the court improperly instructed the jury that reasonable doubt is not a “doubt suggested by the ingenuity of counsel” and that the court’s use of that language warrants a reversal of the judgment of conviction.

The standard of review for constitutional claims of improper jury instructions is well settled. “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . State v. Schiappa, 248 Conn. 132, 171, 728 A.2d 466 (1999); accord State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).” (Internal quotation marks omitted.) State v. Delvalle, 250 Conn. 466, 470, 736 A.2d 125 (1999).

Recently, in State v. Delvalle, supra, 250 Conn. 475, ora: Supreme Court rejected the claim that the use of “ingenuity of counsel” language was violative of a defendant’s constitutional right to counsel and to a fair trial or that it was plain error. The Delvalle court reasoned that the Supreme Court has repeatedly “upheld similar language on the ground that [it] did not, when properly considered in the broader context of the trial court’s instructions in their entirety, [dilute] the state’s burden of proof or otherwise misle[ad] the jury in any way. . . . State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); cf. State v. Edwards, 247 Conn. 318, 329-30, 721 A.2d 519 (1998); State v. Hines, 243 Conn. 796, 817-20, 709 A.2d 522 (1998).” (Internal quotation marks omitted.) State v. Delvalle, supra, 474.

Although the court in Delvalle rejected the constitutional challenge to the “ingenuity of counsel” instruction, the court stated that “[t]o avoid any possibility of juror confusion arising from the use of the phrase, we invoke our supervisory authority over the administration of justice to direct our trial courts to refrain from using the ‘ingenuity of counsel’ language in the future.” Id., 475-76. The court’s jury instruction in this case was given before the Delvalle court’s direction about the future use of the “ingenuity of counsel” language, and, when viewed in the context of the instructions as a whole, could not have misled the jury. See id., 474; State v. Young, 56 Conn. App. 831, 843, 746 A.2d 795 (2000).

B

The defendant next claims that the court improperly instructed the jury on the issue of identification in that it failed to include in its instructions his requested charge under United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972).

“Our standard of review on this [nonconstitutional] claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Citation omitted; internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 774, 720 A.2d 242 (1998).

“[W]e note that there is no constitutional right to an instruction on the fallibility of eyewitness identifications. . . . Although such an instruction may be given in an appropriate case ... it is not reversible error for a trial court to refuse to give a Telfaire instruction where the conviction of the defendant did not turn upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent. . . . The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 20 Conn. App. 271, 281-82, 566 A.2d 436 (1989), cert. denied, 213 Conn. 813, 569 A.2d 549 (1990).

The defendant filed a request to charge on the issue of identification, asking the court to instruct the jury concerning the dangers of misidentification in accordance with Telfaire. The defendant asked that in addition to the standard language given on identification, the jury be instructed to consider factors such as the witness’ opportunity to observe the perpetrator, taking into consideration time, distance and lighting, whether the witness knew the defendant prior to the offense, whether the witness was under the influence of drugs or was under stress at the time of the offense, whether the identification was solely the product of the witness’ own recollection, the witness’ credibility, and the length of time between the offense and the witness’ next opportunity to see the defendant.

“It is not error for a trial court to refuse to charge a jury in the exact words of a requested instruction, as long as the requested charge is given in substance.” (Internal quotation marks omitted.) State v. Collins, 38 Conn. App. 247, 254, 661 A.2d 612 (1995). Although the court’s instruction in this case did not mirror the defendant’s request to charge, it did cover the substantive points that he requested. In addition, the court gave general instructions on the credibility of witnesses that reiterated some of those same points.

Our review of the charge as a whole reveals that the court’s instructions were accurate and comprehensive, and furnished adequate guidance to the jury. See id., 255; State v. Hardison, 16 Conn. App. 142, 146-47, 546 A.2d 968 (1988). The court did not improperly fail to give the requested Telfaire instruction because the “salient principles of the court’s charge adequately covered the dangers of misidentification . . . .” (Internal quotation marks omitted.) State v. Collins, supra, 38 Conn. App. 255. We conclude that the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same . . . .”

       The defendant moved to strike this evidence at trial; however, he limits the issue on appeal specifically to whether the trial court improperly denied his motion for a mistrial.

       Defense counsel did not object to the line of questioning about the defendant’s failure to contact Provite until the prosecutor indicated to the court that during his rebuttal case, he intended to establish exactly when defense counsel started representing the defendant.

       The court’s curative instruction stated in relevant part: “Let me talk about all of the witnesses. You know and can recall all the different testimony. Now, you know that Mr. Provite testified and gave two versions of the event, and I have given you instructions on how to evaluate that testimony. You heard the defendant testify and, under one version of Mr. Provite’s and [the defendant’s] testimony, the thrust of that testimony is that this crime was committed by others, and [the prosecutor] on cross-examination asked [the defendant] why he didn’t call his cousin right away to help him, to exculpate him, to explain all this because there was, or there is, a version which you are entitled to accept—that is what jurors do—which has another man or group of men committing this crime. What I want to caution you about [is] that [this] evidence is offered only on the question of [the] credibility of [the defendant] and Mr. Provite, and [that the defendant] testified that his reason, a portion of his reason for not calling his cousin, was that his attorney had told him not to. A person acting on advice of counsel, if you choose to believe that reason for not calling, you should draw no unfavorable inference from the fact that [the defendant] did not make any [telephone] call after he had been advised not to speak to anyone by his lawyer. Draw no unfavorable inference from that. All right, do you understand that? Okay. It might be a minor point, but the message that I want to get to you is that whenever anybody exercises their constitutional right to remain silent, whenever anyone does not communicate with someone on the advice of counsel, that is not a negative factor at all in a trial.”

       The court’s instruction on the concept of reasonable doubt was as follows: “Reasonable doubt. The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture. Nor is it doubt suggested by the ingenuity of counsel or a juror not warranted by the evidence. It is such a doubt as in serious matters that concern you, you would heed. That is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.
      “Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”

       A charge under United States v. Telfaire, supra, 469 F.2d 558-59, instructs the jury to consider, in evaluating the identification testimony of a witness, the following factors: The adequacy of the witness’ opportunity and capacity to observe the perpetrator, the length of time to observe the peipelrator, the proximity of the witness to the perpetrator, whether the witness knew or saw the perpetrator prior to the incident, whether the identification was the product of the witness’ own recollection and the credibility of the witness.

       The court charged the jury in relevant part as follows: “In arriving at a determination as to the matter of identification, you should consider all the facts and circumstances that existed at the time of the observation of the perpetrator by each witness. In this regard, the reliability of each witness is of paramount importance, since identification testimony is an expression of belief orimpression by the witness. Its value depends upon the opportunity and ability of the witness to observe the offender at the time of the event and to make an accurate identification later. It is for you to decide how much weight to place upon such testimony. In appraising the identification of any witness, you should take into account whether the witness had adequate opportunity and ability to observe the perpetrator on the date in question. This will be affected by such considerations as the length of time available to make the observations, the distance between the witness and the perpetrator, the lighting conditions at the time of the offense, whether the witness had known or seen the person in the past and whether anything distracted the attention of the witness during 1he incident. You should also consider the witness’ physical and emotional condition at the time of the incident, and the witness’ powers of observation in general. In short, you must consider the totality of the circumstances affecting the identification.”

       As to the credibility or believability of witnesses, the court stated: “In deciding what the facts are, you must consider all of the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness’ testimony. In making that decision, you may take into account a number of factors, including the following. One, was the witness able to see or hear or know the things about which that witness testified? Two, how well was the witness able to recall and describe those things? Three, what was the witness’ manner while testifying? Four, did the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in this case? Five, how reasonable was the witness’ testimony considered in light, of all of the evidence in the case? Six, was the witness’ testimony contradicted by what that witness has said or done at another time, or by the testimony of other witnesses or by other evidence?
      “If you should think that that witness has deliberately testified falsely in some respect, you should carefully consider whether you should rely upon any of that witness’ testimony. In deciding whether or not to believe a witness, keep in mind that people sometimes forget things. You need to consider, therefore, whether a contradiction is an important lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or with only a small detail.”


text:
    STATE OF CONNECTICUT v. ROBERT HORROCKS
    (AC 17653)
    O’Connell, C. J., and Mihalakos and Daly, Js.
    Argued September 27, 1999
    officially released March 21, 2000

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Robert Horrocks, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), kidnapping in the second degree in violation of General Statutes § 53a-94 and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1).

The dispositive issue is whether the defendant’s rights to confrontation and to present a defense, and his rights under General Statutes § 54-86Í, were impermissibly impaired when the court excluded evidence of the victim’s alleged consensual sexual relations with the detective investigating her claim of rape. We reverse the judgment of the trial court and remand the case for a new trial.

The following facts are relevant to this appeal. The state presented evidence that the victim was a fifty-two year old woman residing in New Haven. The victim entered her apartment on the afternoon of October 4, 1995. She noticed that her curtains in her bedroom were askew and, upon returning to the kitchen, was attacked by the defendant, who was wearing a mask and was carrying a club. The defendant struck her hard on the head and kept beating her “like an animal.”* * After the attack, the defendant sexually assaulted the victim and thereafter tied her to a kitchen chair. The defendant then took the victim’s car keys and drove her car away. The victim was able to untie herself, and telephoned a battered women’s shelter and then the police. At that time, she did not report to the police that she had been assaulted, but only that her car had been stolen. After the police arrived at her home to investigate her complaint, the victim whispered to Thomas Benedetto, an officer with the New Haven police department, that she had been raped.

The defendant testified that he had consensual sex with the victim. He further testified that he initially had permission to take the victim’s car but that she later rescinded it. Additional facts will be discussed when necessary.

The defendant claims that his rights to confrontation and to present a defense, and his rights under § 54-86f were impermissibly impaired when the court excluded evidence of the victim’s consensual sexual relations with the detective investigating her claim of rape. We agree.

The following facts are relevant to this claim. Shortly after the claimed incident, Vincent Raucci, a detective with the New Haven police, interviewed the victim just before she was taken to a hospital for a physical examination. The victim had disclosed to the prosecutor that she had sex with Raucci a couple of weeks after the claimed sexual assault. This information was provided to the defense by the state when the state filed with the court a submission under seal seeking an in camera determination as to when the information had to be disclosed to the defendant or if it need not be disclosed pursuant to § 54-86f. In addition to the information provided by the state’s submission, the defense was told by the victim’s upstairs neighbor, Lisa Williams, that the victim had told her that she had “wild sex” with Raucci on the night of the alleged sexual assault. On April 22, 1997, an in camera proceeding was conducted in chambers.

During the trial, the defense wanted to cross-examine the victim concerning her relationship with Raucci and to ask her whether she had sex with him on the same night of the alleged assault. The defense argued that the examination was necessary to impeach the victim’s credibility as to when she started having sex with Raucci, and also that such behavior could dispute a claim of sexual assault that allegedly occurred a few hours earlier. The defense also argued that the exception contained in § 54-86f (4) was applicable. The court rejected this argument and did not permit the defense to cross-examine the victim on that basis.

The state contends that the cross-examination of the victim concerning her relationship with Raucci was not relevant and that its exclusion did not violate the defendant’s right to confrontation and a fair trial. The state also contends that this claim is not preserved for review. We disagree.

The defendant made an offer of proof to support the evidence to which the state objected. We conclude, therefore, that the defendant properly preserved the confrontation issue for appellate review. Equally unavailing are the state’s further claims that the defendant’s arguments were bereft of any assertion that his offer of proof went to bias.

“It is always relevant to the issue of bias that a witness may have a relationship to the prosecuting authorities in a criminal case. To preclude exploration of such a relationship unduly restricts the defendant’s right to cross-examination. . . . [T]he weight to be accorded such evidence was a matter for the jury.” State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992).

“The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 60, 612 A.2d 755 (1992); see also Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985).

“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986). Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the court, “[t]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause.” Id.; see also State v. Oehman, 212 Conn. 325, 330-31, 562 A.2d 493 (1989); State v. James, 211 Conn. 555, 573, 560 A.2d 426 (1989).

Our review of the record convinces us that the preclusion of any cross-examination of the victim concerning her relationship with Raucci improperly prohibited inquiry into a legitimate area of relevant concern.

We must next determine whether the court’s limitation of the defendant’s cross-examination of the victim was harmless beyond a reasonable doubt. There are several factors that the court considers in the determination of such an inquiry. The most important factor is an examination of the impact such evidence would have on the trier of fact and the result of the trial. See State v. Ortiz, 198 Conn. 220, 225, 502 A.2d 400 (1985). In this case, the nature of the excluded inquiry was central to whether the victim had consented to sexual relations and whether she had been sexually assaulted. These issues were at the core of the defendant’s defense and, if believed by the trier of fact, could have affected the result of the trial. The testimony, therefore, should not have been excluded from consideration by the trier of fact. “The confrontation clause of the sixth amendment requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the [witness].” Id., 224. Under this standard and on the basis of our review of the entire record, we conclude that limiting the cross-examination of the victim was not harmless beyond a reasonable doubt.

We next consider the defendant’s claim that his rights under § 54-86f were violated because, although the statute specifically bars inquiry into a victim’s sexual conduct, he should have been able to present such evidence to prove his defense of consent.

Presumptively, § 54-86f excludes evidence of the sexual conduct of a victim for sound policy reasons. When a defense of consent, however, is made, the court must balance the prejudicial effect of evidence of the victim’s sexual conduct against the right of the defendant to defend himself. Here, the defendant wanted to cross-examine the victim to prove his defense of consent. The proffered evidence of sexual activity should be admissible if it is introduced to support the defendant’s claim of consent.

“[Our Supreme Court] has previously enumerated situations in which the potential prejudicial effect of relevant evidence would counsel its exclusion. Evidence should be excluded as unduly prejudicial: (1) where it may unnecessarily arouse the jury’s emotions, hostility or sympathy; (2) where it may create distracting side issues; (3) where the evidence and counterproof will consume an inordinate amount of time; and (4) where one party is unfairly surprised and unprepared to meet it. State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). The proffered testimony does not pose any of these dangers.” State v. Rinaldi, 220 Conn. 345, 356, 599 A.2d 1 (1991).

Similarly, the proffered testimony in this case did not pose any of the dangers listed. It was, in fact, relevant to the substantive issue of consent raised by the defendant and would not have impugned the victim’s character by introducing lurid details. Finally, the court could have given a charge to the jury to the effect that the evidence adduced from the victim’s testimony was not to be considered as an indication of immoral conduct on her part, but rather for the sole purpose of determining her credibility by considering alleged inconsistent behavior following a traumatic sexual assault.

Because the exclusion of the testimony was likely to have affected the juiy’s verdict, we agree that the defendant’s rights to confrontation and to present a defense, and his rights pursuant to § 54-86f, were impermissibly impaired when the court excluded evidence of the victim’s consensual sexual relations with the detective investigating her claim of rape. We, therefore, reverse the judgment.

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

In this opinion the other judges concurred.

       General Statutes § 54-86f, also known as the rape shield statute, provides in relevant part: “In any prosecution for sexual assault under [section] 53a-70 ... no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. . . .”

       The defendant raises two additional claims on appeal, namely, that the court improperly (1) refused to give a missing witness charge to the jury in accordance with Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), in connection with the state’s failure to call Detective Vincent Eaucci of the New Haven police department as a witness and (2) instructed the jury as to reasonable doubt. In regard to the first claim, our Supreme Court has abandoned the Secondino, or missing witness, rule in criminal cases and, thus, this claim has no merit. See State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). As to the second claim, we decline to address it because this issue was not adequately briefed by the defendant, and because we reverse the judgment and remand this case for a new trial. See Carano v. Moomey, 51 Conn. App. 382, 387, 721 A.2d 1240 (1998).

       The victim testified that she had seen the defendant on an earlier occasion in the backyard of her home.

       The discussion in chambers in relevant part was as follows:
      “The Court: All right. We’re conducting an in camera proceeding in this matter with only counsel and the court reporter and the court present in the room, and the factual situation that we’re in at this point [is] that despite the court issuing the capias to have Lisa Williams brought to court, the sheriff has reported that when he went to her residence, he was unable to locate her and, therefore, she is not here at the courthouse for [defense counsel] 1o be able to make an offer of proof through her testimony.
      “And after discussing [the matter] with both counsel, the court and counsel have decided to proceed with an offer of proof by [defense counsel] setting forth what he in good faith believes Lisa Williams would say if she came here and were testifying by way of an offer of proof. [The prosecutor] has certain factual assertions he wishes to make with reference to Lisa Williams and her credibility. Go ahead, Mr. Carlow.
      “[Defense Attorney Brian Carlow]: On April 5th of 1997, my investigator, Donna Harris, and Thomas Nichol, who’s assisting me in this case, spoke with lisa Williams. At that time, Lisa Williams indicated to them that the morning after this incident, sometime between, I believe, 11 and 12 o’clock, the complainant in this case went up to the second floor apartment where Lisa Williams was and where she lives, and indicated to her, indicated to Lisa Williams, that the previous night, being the night of October 4th, October 5th, the complainant had engaged in, as she put it, quote, ‘wild sex,’ end quote, with Detective Vinnie Raucci of the New Haven police department.
      “Vinnie Raucci was, at that time, the lead detective in this case, having taken statements from both Miss Williams and [the victim]. Miss Williams also indicated that she had seen Detective Raucci’s gray, unmarked police car, or at least what she believed was a gray, unmarked police car, in the parking lot behind State Street when she went to bed that night and [that] it was there in the morning. She indicated that [the victim], in addition to indicating that she had sexual relations with Detective Raucci, apologized to her for any noise she might have made, and Lisa Williams further indicated that [the victim] appeared neither upset [nor] crying [and that] she didn’t appear in any way other than how she would normally see her. On April—
      “The Court: Excuse me, Mr. Carlow, when was it that Lisa Williams told your investigator that?
      “[Defense Counsel]: April 5th.
      “The Court: This year?
      “[Defense Counsel]: Of ’97.
      “The Court: Go ahead.
      “[Defense Counsel]: On April 20th of 1997, which is this past Sunday, I went to Lisa Williams’ house and spoke with her for probably about forty minutes. During that time, she told me precisely what she had told Donna Harris and attorney Nichol back on April 5th, that is that at about 12 o’clock the complainant came up to her apartment, indicated to her that she had wild sex, or maybe she didn’t use the word wild. I think she said she had sex with Detective Vinnie Raucci the night before, that she did not appear upset, distraught, was not crying [and that the victim] apologized to her for any disturbance there might have been.
      “My understanding is, although obviously [I was] not a party to this, is that the state interviewed Lisa Williams on Thursday or Friday of last week, which would have been, I guess, the 17th or the 18th of April of 1997, and [that she] indicated [to the state] similar events that she conveyed to us. I would also note when I spoke with her on Sunday, the 20th, she also indicated that she had seen this gray, what she believed to be an unmarked police car, behind the house for the entire evening, or that she saw it when she went to bed and it was there in the morning, assuming it was there for the entire evening.
      “With respect to the content of what she told the state, obviously I wasn’t privy to that, but my understanding is that there maybe some aspect concerning the car that might not be exactly the same. But in terms of principally, that the complainant had told Lisa Williams on October 5th that she had sex the night before with Detective Raucci, that was conveyed to the state.
      “This is all in the context of ... I believe the date of the motion was the 14th of April—
      “The Court: Wait a minute. Before you get into argument—
      “[Defense Counsel]: No, no, this is a factual predicate as well.
      “The Court: I’m sorry. Go ahead.
      "[Defense Counsel]: That on the motion that the state submitted to the court under seal in April, I think it’s the 14th of ’97, contained within that motion, which is part of the record, there is an indication by the state that the complainant in this case acknowledged or told the state that she indeed had sexual relations, albeit consensual, with Detective Raucci.
      'T think the quote was, a couple oí weeks after the incident, and that there was one subsequent incident of consensual sex between the two of them. So that’s the complainant’s report to the state, which was after filing an in camera motion to the court, which was disclosed to me.
      “My intention is, if allowed to confront the complainant, who is under subpoena—she was subpoenaed for yesterday [and] is under subpoena and available today—to confront her with questions concerning, first, sexual activity with Detective Raucci on the night, of October 4th, morning of October 5th. Second, with respect to consensual sexual activity she had with Detective Raucci when she indicated to the state that she indeed had that, which I guess would be a couple of weeks after the incident and then sometime shortly thereafter.
      “So, this offer of proof is in an effort to comply with the rape shield statute, [General Statutes §] 54-86f, and specifically with respect to [subdivision] (4).”
      After hearing the offer or proof by defense counsel, the court stated: “The rape shield law, § 54-86f, and the cases interpreting it, make it clear that . . . that evidence of this type is not admissible unless the probative value of the evidence outweighs its prejudicial effect on the victim. The court is of the opinion that the probative value of the evidence [defense counsel] wishes to attempt to offer is slight and the prejudicial effect on the victim is great, and in the opinion of the court, the prejudicial effect on the victim clearly outweighs the probative value of the evidence and, therefore, the court denies the motion by the defense to admit this evidence.”

       See footnote 1.