author: FOTI, J.

text:
    LORI STINGONE v. ELEPHANT’S TRUNK FLEA MARKET ET AL.
    (AC 18204)
    O’Connell, C. J., and Foti and Lavery, Js.

      Argued March 15
    officially released June 15, 1999

      Hugh F. Keefe, with whom, on the brief, was Eric P. Smith, for the appellant (plaintiff).

      Joseph B. Myers, Jr., with whom, on the brief, was Paul Erickson, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiff, Lori Stingone, appeals from the judgment of the trial court rendered following the granting of a motion for summary judgment filed by the defendants, Elephant’s Trunk Flea Market and Ide-ational Hybrid Corporation. On appeal, the plaintiff claims that the trial court improperly granted the defendants’ motion for summary judgment after it determined that the plaintiffs action was time barred by the applicable statute of limitations. We agree and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On September 11, 1994, the plaintiff was injured when she allegedly slipped and fell on the defendants’ property, a flea market in New Milford. On September 11, 1996, two years after the accident, the plaintiff delivered a writ of summons and complaint to the sheriff for the purpose of effectuating service on the defendants. On September 12, 1996, the defendant Ideational Hybrid Corporation was served with process. On September 15, 1996, the defendant Elephant’s Trunk Flea Market was served with process.

On September 27, 1996, the writ of summons and complaint, along with affidavits and an entry fee, were filed with the clerk of the Superior Court at Bantam. On that same date, however, the clerk at Bantam rejected the documents, returning them to the plaintiffs counsel. The clerk indicated that the documents were being returned because they had been filed in the wrong court and because the complaint was not signed. Upon receiving the documents from the Bantam clerk, the plaintiffs counsel signed the complaint and returned it, along with the writ of summons and affidavits, to the clerk of the Superior Court in the judicial district of Litchfield, the appropriate court for the plaintiffs cause of action.

On October 16, 1996, the clerk at Litchfield rejected those documents because, although they were now filed in the correct court, the writ of summons and complaint still indicated that the action was returnable to Bantam. In addition, the plaintiffs counsel failed to resubmit the $150 entry fee, which had been retained by the clerk in Bantam.

Thereafter, on November 15,1996, the plaintiff served upon the defendants a new writ of summons, a motion to amend the complaint and an amended complaint, changing the court location stated in the caption of the complaint and on the writ from Bantam to Litchfield. On December 2, 1996, the plaintiff then attempted to return that process, along with the original summons and complaint, to the clerk of the Superior Court in Litchfield. Those documents were again rejected by the clerk because the plaintiff failed to indicate a return date on the writ of summons.

Finally, in February, 1997, the defendants were served a third time with a new writ of summons, a second amended complaint and a motion to amend process, which sought to amend the return date to March 18, 1997. Thereafter, on February 10, 1997, that process was returned by the plaintiff and accepted by the clerk in Litchfield. On June 2, 1997, the defendants filed their answer and a special defense to the plaintiffs action. The action was then claimed to the jury and trial lists.

On October 17, 1997, the defendants filed a motion for summary judgment, claiming that the plaintiffs action was time barred by the applicable statute of limitations. On February 23,1998, the trial court granted the defendants’ motion and rendered summary judgment in their favor. In so doing, the trial court noted that “[i]n this case, it is undisputed that the alleged wrongful conduct occurred on September 11,1994. The parties also agree that the applicable statute of limitations is two years, provided by General Statutes § 52-584. Furthermore, the parties agree that service of process was originally made within the time allowed by General Statutes § 52-593a (a). The issue in dispute is when this action was filed. . . .

“[T]his court takes notice of the fact that the court’s file does not include a complaint that was filed on October 22, 1996, [the original return date] but rather February 10, 1997. Therefore, it is an established fact that the plaintiffs complaint was filed with this court on February 10, 1997. As such, the complaint was filed more than two years after the date of the alleged wrongful conduct. Accordingly, there is no genuine issue of material fact in dispute and the defendants’ motion for summary judgment is granted.”

In this case, the plaintiff asserts that the trial court improperly determined that the plaintiffs action was time barred. Specifically, the plaintiff argues that the trial court improperly determined when her action was “commenced” for statute of limitations purposes. We agree.

“The standard of review for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Levine v. Advest, Inc., 244 Conn. 732, 743, 714 A.2d 649 (1998); Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998); see Practice Book § 17-49. “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).

It has long been the law in this state that an action is deemed to be commenced on the date service is made on the defendant. Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996). An exception to this rule, however, may be found in General Statutes § 52-593a (a), which provides that “a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to an officer authorized to serve the process or is personally delivered to the office of any sheriff within the time limited by law, and the process is served, as provided by law, within fifteen days of the delivery.”

We conclude, therefore, that the trial court’s reliance on the date the plaintiffs cause of action was “filed,” or returned to the Superior Court, was improper. In Rana v. Ritacco, supra, 236 Conn. 337, our Supreme Court declared “that an action is brought once the [writ of] summons and complaint have been served upon a defendant.” In so doing, it explicitly reversed this court’s earlier conclusion that an action is not considered brought until the defendant has been served with process, and such process has been returned to court. Here, the trial court’s reliance on the February 10,1997 return date as the controlling date for statute of limitations purposes is in direct contradiction to the established rule announced in Rana v. Ritacco, supra, 337.

In this case, the plaintiff delivered her writ of summons and complaint to the sheriff for service on September 11, 1996, two years to the day following the alleged accident. Thereafter, on September 12 and 15, 1996, respectively, the defendants, Ideational Hybrid Corporation and Elephant’s Trunk Flea Market, were served with process. Accordingly, we find that since the plaintiff delivered her process to the sheriff within the two year time period provided by § 52-584, and since the defendants were served “within fifteen days of [that] delivery,” the plaintiffs cause of action was not time-barred. See General Statutes § 52-593a.

That does not, however, end our analysis in this case. We note that because the clerks in both Bantam and Litchfield rejected the plaintiffs initial attempts to return process, there is, in fact, no pending complaint in the trial court file that was served on the defendants within the applicable statute of limitations. As the trial court found, “[a]n October 16, 1996 complaint does not appear in the court’s file.” The only complaint that appears in the trial court file is that which was served on the defendants in February, 1997, some five months after the statute of limitations had run.

As stated previously, following the plaintiffs first attempt to return process on September 27, 1996, the clerk at Bantam rejected the documents because Bantam was the wrong court and because the complaint was not signed. Upon receiving the documents from the clerk, the plaintiffs counsel signed the complaint and returned it to Litchfield. On October 16,1996, however, the clerk at Litchfield rejected those documents because the writ of summons and complaint still indicated that the action was returnable to Bantam and because the plaintiffs counsel failed to enclose the $150 entry fee. We find that the clerk at Litchfield had no authority to reject the process returned there on October 16, 1996.

First, the October 16, 1996 process was returned to the Superior Court at least six days prior to the October 22, 1996 return date. In addition, although the writ of summons and complaint still mistakenly indicated that the action was returnable to Bantam, that mistake could have been corrected. Both the General Statutes and the rules of practice allow the plaintiff, as a matter of right, to amend “any defect, mistake or informality” in the pleadings within thirty days of the return date. (Emphasis added.) General Statutes § 52-128; Practice Book § 10-59. Finally, while the plaintiff failed to resubmit the $150 entry fee, we do not feel that the plaintiff should be penalized for the Bantam clerk’s failure to return the original entry fee to the plaintiff or to otherwise indicate that she would be required to tender an additional entry fee upon resubmission of the process.

We find, therefore, that the plaintiffs action was served on the defendants within the applicable time period of § 52-584 and is not time barred. Additionally, we conclude that the clerk in Litchfield had no authority to reject the process that was returned there by the plaintiff on October 16, 1996. The clerk’s office does not have the authority to reject and return writs of summons and complaints returned to the Superior Court with the proper fee when any defects can be amended by right or corrected by motion pursuant to the General Statutes or the rules of practice.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The plaintiffs cause of action, sounding in negligence, is governed by General Statutes § 52-584, which provides in relevant part: “No action to recover damages for ii\jury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . .

       The plaintiffs writ of summons and complaint both indicated that the plaintiffs cause of action was returnable to Bantam. Under General Statutes § 52-45a, a writ in a civil action “may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.” (Emphasis added.) Bantam is not a judicial district. See General Statutes § 51-344.

       The motion to amend process was never adjudicated by the trial court.

       We note that an examination of the original complaint and the second amended complaint discloses that, except for the caption, they are indistinguishable.

       We acknowledge that under Practice Book § 7-6, “fn]o document in any case shall be filed by the clerk unless it has been signed by counsel or a pro se party and contains the title of the case to which it belongs, the docket number assigned to it by the clerk and the nature of the document.....” Accordingly, it was not improper for the clerk at Bantam to reject the plaintiffs process based on her attorney’s failure to sign the complaint See also Shokite v. Peres, 19 Conn. App. 203, 206, 561 A.2d 461 (1989) (Practice Book § 399, now § 7-6, imposes obligation on clerk to reject pleadings not signed by counsel).

       Pursuant to General Statutes § 52-46a, “[pjrocess in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.” Here, since the process was returned to the clerk in Litchfield on October 16, 1996, it was returned in a timely manner and complied with § 52-46a.
      Additionally, we must note, however, that the process received by the Litchfield clerk was not date stamped as received. Nevertheless, neither party disputes that that process was, in fact, received by the Litchfield clerk by October 16, 1996. Further, the return of papers sheet that was sent to the plaintiff, along with the rejected process, indicates that the process was rejected on October 16, 1996. Therefore, even though the clerk failed to date stamp the process as received by October 16, 1996, it must have been received, at the latest, by that date.

       To the extent that this original process incorrectly indicates that the plaintiffs cause of action is returnable to Bantam, such a defect is, even at this late date, correctable. Under General Statutes § 52-128, “[t]he plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition, and insert new counts in the complaint or declaration, which might have been originally inserted therein, without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court-, but, after any such amendment, the defendant shall have a reasonable time to answer the same.” (Emphasis added.)

       We note that although we employ the long-standing rule that an action is deemed commenced for statute of limitations purposes on the date the defendant is served with process, and not when that process is returned to the court, the failure of the plaintiff to return properly that process to the clerk of the court is not without consequence. For example, “the requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989). ‘[0]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period.’ Rana v. Ritacco, [supra, 236 Conn. 339].” Coppola v. Coppola, 243 Conn. 657, 661-62,707 A.2d 281 (1998). So, although an action may be commenced through the service of process for statute of limitations purposes, the action is subject to dismissal if the plaintiff fails to return that service in a timely manner.


source: Caselaw Access Project

author: FOTI, J. HENNESSY, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL C. STORY
    (AC 17763)
    Foti, Landau and Hennessy, Js.

      Argued December 14, 1998
    officially released June 15, 1999

      M. Donald Cardwell, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Michael C. Story, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly denied his motion to suppress evidence when it concluded that (1) his detention by police following a traffic stop was not unjustifiably prolonged and (2) he had voluntarily consented to a search of his vehicle. We affirm the judgment of the trial court.

The trial court found the following facts from the evidence adduced at the suppression hearing. On April 13, 1994, Trooper James Keeney of the Connecticut state police was conducting stationary radar surveillance on Interstate 84 westbound in East Hartford. He clocked the defendant’s vehicle traveling eighty-two miles per hour in a posted fifty-five mile per hour zone. Keeney stopped the vehicle without incident and, prior to approaching, called headquarters by radio and verified that the vehicle was not stolen or otherwise wanted by the police.

Keeney then approached the vehicle, briefly interviewed the occupants and obtained identification from each party. The vehicle was occupied by the defendant, who was driving, and a companion, Charles Harris. Both the defendant and Harris are physically imposing, each standing well over six feet and weighing about 300 pounds. Keeney then returned to his cruiser to write a citation for the defendant’s speeding infraction. He again radioed headquarters requesting information about the defendant and Harris, specifically whether there were any outstanding warrants for their arrest. He received a negative response.

Trooper Marlon Drummond overheard Keeney’s radio transmissions and drove to the scene to provide assistance. When he arrived, Keeney was still in his cruiser writing the citation. Keeney then went to the driver’s side of the defendant’s vehicle and presented him with the citation. Drummond proceeded to the passenger side. Prior to approaching, Keeney resolved to ask the defendant for permission to search the vehicle. He did not believe that he had probable cause to justify a search or even an articulable suspicion of wrongdoing. He was merely proceeding on a hunch that he might find contraband in the vehicle. Keeney felt that there were two other factors essential to that decision. It was the middle of the night when traffic was slow, so he had time to linger over the stop, and he had a backup present.

Keeney gave the defendant the citation and asked him to step out of the vehicle. The defendant complied. The officers were armed and in uniform, but their guns were holstered. Keeney then asked the defendant if there were any illegal substances in the car and the defendant replied that there were not. Keeney asked the defendant if he could search the vehicle and the defendant replied, “Go ahead—no problem.” Drum-mond overheard Keeney’s request as well as the defendant’s reply. At that time, the defendant was not in custody and would have been free to leave if he had refused permission. Drummond then escorted Harris to the front of the vehicle and kept him occupied during the search that ensued.

The defendant unlocked the trunk of the car with a key at Keeney’s request. A search of the trunk revealed a bag which contained a substance that the defendant admitted was cocaine. He also stated that there were more drugs in the console between the front seats of the car. Keeney immediately informed the defendant that he was under arrest and handcuffed him. Keeney then ordered Drummond to arrest Harris, which he did. Keeney then searched the vehicle and discovered the additional cocaine in the vehicle’s console.

I

The defendant first argues that the warrantless search of his vehicle was unreasonable under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut because he did not voluntarily consent to the search. This claim is based, specifically, on the defendant’s assertion that he was detained for an unreasonably long period of time and because he was not told that he was free to leave after the citation was issued. We do not agree.

A warrantless search is not unreasonable under the fourth amendment to the United States constitution when a person with authority to do so has freely consented. State v. Martinez, 49 Conn. App. 738, 743, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1168 (1998). “The question of whether a defendant has given voluntary consent to . . . search ... is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the . . . search.” State v. Vargas, 34 Conn. App. 492, 496, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994). “The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom.” State v. Ortiz, 17 Conn. App. 102, 103-104, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988).

In this case, the trial court made specific findings regarding the defendant’s consent to search. In its memorandum of decision, the trial court found that the defendant stepped out of the car when asked and said, “Go ahead—no problem,” when asked by Keeney if he could search the vehicle. At that time, the defendant was not in custody and would have been free to leave if he had refused permission. The colloquy between the defendant and Keeney was overheard by Drummond.

While the defendant concedes that the initial stop of his vehicle was lawful, and that his initial detention was proper, he argues that once the citation was issued, the detention became improper. He argues that the police unjustifiably prolonged his seizure after they issued the traffic citation. The trial court found, however, that the defendant was not in custody, was free to leave, voluntarily exited the vehicle and then gave his consent to search. The trial court found the testimony of Keeney and Drummond to be credible and that, by contrast, “the defendant’s testimony lacked plausibility and consistency in certain key respects.” We do not retry the case or evaluate the credibility of witnesses but, rather, defer to the trial court’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. State v. Martinez, supra, 49 Conn. App. 745.

The issue in this case is not one initially of seizure; the defendant was “seized” the moment his vehicle was stopped. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). The issue raised by the dissent is one of a subsequent seizure after the citation was issued. Was the defendant “seized” when he was asked to step out of the car, and therefore in custody? The question is not whether he first gave his consent to search, and then was asked to step out of the vehicle. Rather, the question is whether, at the time he was asked to exit his vehicle, he was free to leave.

What starts out as a consensual encounter becomes a seizure if, on the basis of a show of authority by the police, a reasonable person in the defendant’s position would have believed that he was not free to leave. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). Whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave presents a mixed question of law and fact qualifying for independent review. State v. James, 237 Conn. 390, 405-406, 678 A.2d 1338 (1996). Whether a restraint on freedom of movement existed is “factual and will not be overturned unless it is clearly erroneous.” State v. Walton, 41 Conn. App. 831, 836, 678 A.2d 986 (1996).

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

The trial court’s factual findings are not clearly erroneous, nor does the defendant claim that they are as relative to his being free to leave at any time or his voluntarily exiting his car. The defendant neither contests the legality of the stop, nor contends that his will was overborne. He argues only that he never consented to the search. “Whether there was valid consent to a search is a factual question that will not be lightly overturned on appeal.” State v. Zarick, 227 Conn. 207, 226, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). The trial court’s factual findings clearly lead to the conclusion that the defendant’s will was not overborne, and that the consent, both in exiting of the vehicle and to the search, was his unconstrained choice.

The dissent would have us, as an appellate court, preclude the trial court, once the reason for the initial stop has been completed, from determining whether the police overreached, by their request to exit the vehicle, into constitutional voluntariness. See State v. Northrop, 213 Conn. 405, 419, 568 A.2d 439 (1990). We conclude, however, that the trial court properly applied the legal standard to the facts and concluded that the defendant voluntarily exited the vehicle and voluntarily consented to the search. He was free to leave at any time and was not in custody. Accordingly, we conclude that the defendant’s consent to search was not obtained in violation of the fourth amendment.

II

The defendant next argues that the search of his vehicle was unreasonable because he did not voluntarily consent to the search. Specifically, he argues that his will was overborne by the officers. We do not agree.

In making our inquiry, “[t]he ultimate question ‘is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.’ State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986).” State v. MacNeil, 28 Conn. App. 508, 514, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). Here, there is no evidence that the officers employed a coercive or deceptive procedure to obtain the defendant’s consent, nor is there any evidence that the defendant did not feel free to leave after the summons had been issued; he was neither threatened nor was he blocked from leaving.

On the basis of these facts, the trial court’s finding that, under the totality of the circumstances, the defendant voluntarily consented to a search of his vehicle, was not clearly erroneous. It, therefore, properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion LANDAU, J., concurred.

HENNESSY, J.,

dissenting. I respectfully dissent from the majority opinion because I believe that the majority did not fully address the defendant’s first claim. The defendant claims that he was unlawfully seized in violation of the fourth amendment to the United States constitution because he was detained after the purpose of the stop was effectuated without further justification. I believe that the majority improperly defers to the trial court’s finding that “[a]t the time Trooper [James] Keeney asked for permission to search the car, the defendant was not in custody and would have been free to leave if he had refused permission” and, as a result, improperly focuses on the voluntariness of the defendant’s consent to search rather than on the unlawfulness of the defendant’s seizure.

The defendant does not dispute that the trooper had probable cause to stop him and to detain him for speeding. The defendant argues that the trooper unjustifiably prolonged the detention after the trooper returned his identification and gave him the traffic citation. He further argues that it was during this unlawful detention that the trooper asked for consent to search the vehicle and, therefore, any evidence seized during the search was the result of that unlawful detention. I agree with the defendant.

While the trial court found that “the defendant was not in custody and would have been free to leave if he had refused permission,” the trial court found historical facts that do not support that finding. Specifically, the trial court also found that “[after giving the ticket to the defendant, Trooper Keeney asked him to step out of the vehicle. The defendant complied. At that time, both troopers were armed and in uniform, but their guns were holstered. Trooper Keeney then asked the defendant if there were any illegal substances in the vehicle. The defendant replied that there were not. Keeney asked if he could search it. The defendant replied, ‘Go ahead—no problem.’ ” (Emphasis added.) The trial court further found that the trooper “did not believe that he had probable cause to justify a search, nor did he even have an articulable suspicion of wrongdoing. Rather, he had a ‘hunch’ that he might find contraband in the vehicle.” The court also indicated that Keeney articulated two other factors for his decision to detain the defendant further: “[I]t was the middle of the night, when traffic was slow, and he had time to linger over this case, and he had a backup present in Trooper [Marlon] Drummond.”

“The trial court’s findings of historical fact regarding the defendant’s encounter with police . . . will not be overturned unless they are clearly erroneous. On the ultimate question of whether a seizure occurred, however, we conduct a scrupulous, independent review of the record to ensure that the trial court’s determination was supported by substantial evidence.” State v. James, 237 Conn. 390, 405-406, 678 A.2d 1338 (1996); see also State v. Damon, 214 Conn. 146, 154, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990). After a scrupulous examination of the record, I conclude that the trial court’s finding that the defendant was “not in custody and would have been free to leave if he had refused permission” is not supported by substantial evidence. The testimony indicates that the historical facts found by the trial court, as previously indicated, are not clearly erroneous and, therefore, I rely on the chronology of Keeney’s actions as found by the trial court.

Because the trooper’s justification to stop the defendant arose from his probable cause to believe that the defendant was speeding, I believe that the justification for the traffic stop ended when the trooper returned the paperwork to the defendant and issued the defendant a citation. See Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (“investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop”); see also Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (officer’s action must be “reasonably related in scope to the circumstances which justified the interference in the first place”); United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (same). Because the trial court found, and the evidence supports, that Keeney did not have probable cause or a reasonable and articulable suspicion of any further criminal activity, for the prolonged detention of the defendant to be lawful, the detention must have been consensual.

Under the fourth amendment to the United States constitution, the test in distinguishing a seizure from a consensual encounter is 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); or “feel free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2832, 115 L. Ed. 2d 389 (1991). A seizure occurs only if there is a show of “physical force . . . or . . . submission to the assertion of authority.” California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).

The following facts support the finding that the defendant was unlawfully seized. After Keeney returned the defendant’s identification and issued him a traffic citation, Keeney, with the backup of Drummond, asked the defendant to step out of the vehicle. In addition to requesting verbally that the defendant step out of the vehicle, Keeney leaned on the glass of the open window and signaled with his hands for the defendant to step out of the car. It was late at night and both troopers were carrying weapons. The defendant testified that he did not believe that he had any choice but to step out of the vehicle. Keeney then asked the defendant if he had contraband in the vehicle. The defendant answered, “No.” Keeney persisted and asked if he could search the vehicle. The defendant consented. I conclude, on the basis of the facts in this case, that a reasonable person would not feel free to decline the trooper’s requests or otherwise terminate the encounter and that the defendant submitted to Keeney’s assertion of authority.

Because I conclude that the defendant was unlawfully seized in violation of the fourth amendment to the United States constitution, the next issue is whether the consent to search was obtained as a result of the unlawful seizure. “It is well settled that [i]f the police obtain physical evidence ... as the result of the seizure of a person ... in violation of the . . . [fourth amendment to the United States constitution] the fruit of the poisonous tree doctrine requires that the evidence be suppressed as the product of the unlawful seizure.” (Internal quotation marks omitted.) State v. James, supra, 237 Conn. 404. “Evidence is not to be excluded, however, if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint.” (Internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 662, 697 A.2d 1122 (1997) (Katz, J, dissenting). “When evidence is obtained as a direct result of an unconstitutional search or seizure, it is subject to exclusion if it is tainted by the prior illegality, which determination depends on whether the challenged evidence was come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint. . . Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).” (Emphasis in original; internal quotation marks omitted.) States. Colvin, supra, 662 (Katz, J., dissenting).

In this case, the defendant was unlawfully detained when he was asked to step out of the car. He was questioned about whether there was contraband in the car and, after he stated, “No,” he was asked if his car could be searched. The defendant consented and contraband was found in the car. Keeney testified that he had nothing more than a hunch that something was wrong and wanted to take a chance and search the car. While the contraband was found after consent was given by the defendant, I would conclude that the seizure of the physical evidence was not so attenuated from the unlawful seizure of the defendant to dissipate the taint. It is well settled law “that a consent obtained during an illegal detention is ordinarily ineffective to justify an otherwise invalid search.” Ohio v. Robinette, 519 U.S. 33, 51, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) (Stevens, J., dissenting), citing Florida v. Royer, supra, 460 U.S. 491 (plurality opinion).

I conclude that the defendant was unlawfully seized and, because the defendant’s consent to search was the result of that unlawful seizure, the consent was not effective to justify the search of the vehicle. See Ohio v. Robinette, supra, 519 U.S. 51. Accordingly, I would reverse the decision of the trial court denying the defendant’s motion to suppress the evidence.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of noryurisdictional defects in the criminal prosecution.”

       The defendant invokes both the United States constitution and the Connecticut constitution in support of the claims in his brief. At oral argument, however, he conceded that he did not adequately brief his claims under our state constitution. We, therefore, decline to review them and address only his federal constitutional claims. See State v. Joyce, 243 Conn. 282, 288 n.6, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

         During oral argument, the defendant requested that we set forth a “bright-line” rule requiring all persons stopped for motor vehicle traffic violations to be informed that they need not give consent to search, and that they are free to go before a consent to search may be deemed voluntary. The defendant concedes that he did not brief this claim and raised it for the first time at oral argument. We, therefore, decline to review this claim.

       “The fourth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment in Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), provides in pertinent part: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....’” State v. Cofield, 220 Conn. 38, 46 n.7, 595 A.2d 1349 (1991).

       The defendant also claims a violation under article first, § 7, of the Connecticut constitution. As indicated in the majority opinion, the defendant conceded at oral argument that he did not adequately brief the state constitutional claim and, therefore, this court is not bound to consider the state constitutional claim. See State v. Blocker, 46 Conn. App. 734, 738 n.7, 700 A.2d 1186, cert. denied, 243 Conn. 946, 704 A.2d 799 (1997).

       The stopping of a motor vehicle and the detention of its occupants is a seizure within the meaning of the fourth and fourteenth amendments. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).

       I note that there was some inconsistency with both the defendant’s and Keeney’s testimony with regard to the chronology of Keeney’s actions. At some point during their testimony, however, they both stated that Keeney ordered the defendant out of the vehicle before questioning him about the contraband and asking to search the vehicle. “The trial court’s findings axe binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) McNeil v. Riccio, 45 Conn. App. 466, 472, 696 A.2d 1050 (1997). After a review of the complete record, I conclude that there is evidence to support the trial court’s determination of the chronology of the events.

       Under Terry v. Ohio, supra, 392 U.S. 21, the United States Supreme Court held that the police may detain an individual for investigative purposes if there is a reasonable and articulable suspicion that the individual is engaged or about to engage in criminal activity. The Terry court further held that “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id.
      In this case, the trial court found and Keeney admitted that he did not have probable cause or reasonable suspicion to detain the defendant further. Keeney testified that he “didn’t have probable cause, but it was a chance” and that he had a “hunch” that something was wrong. He further testified that “because [he] had backup, [he] knew it would be safe, and [he] said that this would be a good opportunity to take a chance . . . [t]o see if he’d let me search the vehicle to see if he had any contraband or anything in the vehicle.” This court has consistently held that “[t]he police officer’s decision to do so must be based on more than hunch or speculation.” State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991); see also State v. DaEria, 51 Conn. App. 149, 155, 721 A.2d 539 (1998); State v. Maia, 45 Conn. App. 679, 683, 697 A.2d 707, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997).

       I note that officers “do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions [or] by putting questions to him if the person is willing to listen . . . Florida v. Royer, supra, 460 U.S. 497.

       The defendant further testified that “[h]e asked me to step out [of] the car so, obviously, I had no standing and the guy had a gun, a badge, it was late at night, I’m black, the guy in the car with me, he’s black. We both weigh over three or four hundred pounds. He’s intimidated by us and, quite naturally, we’re intimidated by him.”


author: SPEAR, J. FOTI, J.,

text:
    STATE OF CONNECTICUT v. LANCE WARGO
    (AC 18126)
    Foti, Lavery and Spear, Js.

      Argued December 16, 1998
    officially released June 15, 1999

      F. Mac Buckley, with whom was Moira L. Buckley, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan K. Alexander, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Lance Wargo, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a, two counts of arson in the first degree in violation of General Statutes § 53a-lll (a) (l), one count of tampering with evidence in violation of General Statutes § 53a-155 (a) (l) and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. He claims that the trial court improperly (1) permitted a witness to testify about statements reflecting the victim’s state of mind, (2) admitted the hearsay statements of the defendant’s children under the excited utterance exception, (3) allowed expert testimony regarding causes of death, (4) allowed a witness to testify to prior bad acts by the defendant, (5) denied his posttrial motion for a mistrial, which was based on statements made by the prosecutor during closing argument, (6) refused to charge the jury that the state must prove that the victim’s death was caused by criminal means and (7) denied his motion for judgment of acquittal, which was based on a claim of insufficient evidence to convict. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On November 19, 1994, at approximately 3:19 a.m., Ronald McClain and Sheila McClain, neighbors who lived across the street from the defendant, awoke to screams from the defendant’s children. Ronald McClain observed an orange glow coming from the left side of the Wargos’ house. He also observed the defendant’s two children on the roof of the front porch, a ladder against the front porch and the defendant standing at the bottom of the ladder. McClain called 911 and went downstairs to let the Wargos into his home. The children were screaming that their house was on fire and that they could not find their mother. The defendant stated that his wife was in the house, that he could not get her out and that he did not know if she had come home. The children remained at the McClain home while the defendant and Ronald McClain returned to the burning house. The defendant again stated that he did not know if his wife had come home that evening.

The firefighters arrived a few minutes later and found the defendant outside the house, confused and attempting to put water on the fire with a garden hose. The defendant told the firefighters that he did not know his wife’s whereabouts. Later, the defendant, while he pointed to the den, told fireman Frederick Telke, “Yes, she’s in here, she’s in here.” When asked if he was sure, the defendant walked to the driveway and pointed to his wife’s car.

Firefighters entered the home and approached the den, where the fire was concentrated, but were unable to remain due to the high temperatures, heavy smoke and unstable floor. The body of the victim, Wendy Wargo, the defendant’s wife, was later found in this area. Firefighters also entered the second floor of the house and found only smoke damage. They did not hear any smoke detector alarms.

Several hours later, Officer Gerald Allain of the Plymouth police department questioned the defendant. The defendant stated that the victim smoked cigarettes and that he recalled the smoke alarms going off. He stated that the thick smoke forced him to his knees as he took the children to the porch roof.

On November 19, 1994, the defendant gave a signed, written statement to the police. He indicated that the victim slept on the couch because their marriage was “on the rocks.” That same day, the defendant told the victim’s uncle, James Castiola, that he knew what had happened. He stated that the victim had come home, and had lain down on the couch, which was covered by approximately fifty videotapes. While on the couch, the victim had lit a cigarette and had fallen asleep. The defendant told Castiola that the fire had been accelerated by the videotapes, which cannot be put out when they catch fire.

State Trooper Kevin McGurk was assigned to determine the cause and origin of the fire. He examined the Wargo home the following morning and determined that the fire originated in the den. McGurk discovered a pour pattern leading up to the area of origin, which indicated that an accelerant had been used. On the basis of his observations, McGurk concluded that the fire had been intentionally set. Other officers executed a search warrant on the Wargo home and retrieved an empty bottle of bleach from the basement and a can of acetone from the storage shed. Joseph Cristino, a forensic analysis engineer, examined the two smoke detectors retrieved from the Wargo home. The battery had been disconnected from the first floor smoke detector, but the second floor smoke detector was operational at the time of the fire.

A notebook also was seized from the defendant’s bedroom dresser. The parties stipulated that the notes contained therein were written in the defendant’s handwriting. The defendant was a member of the fire brigade at work and had received training in chemical fires and hazardous materials. The defendant was familiar with spontaneous combustion caused by the combination of alkalies and acids. The defendant admitted writing various phrases in the notebook, such as “lock box in shed,” “tool box,” “acetone,” “alcohol clorox,” “aim foil,” “dry run,” “rope kds drs,” “straps,” “pillow,” “oil in can,” “rid of stuff,” “glvs,” “hat,” “shirt,” “cigs,” and “ldr.” The defendant stated that these abbreviations could have been a camping list, but that he did not know why he wrote these abbreviations.

Additional facts will be discussed in the context of the defendant’s specific claims.

I

The defendant first claims that the trial court improperly allowed, over objection, a witness to testify as to statements made by the victim reflecting her state of mind. We disagree.

Certain additional facts are necessary to our resolution of this claim. Over the defendant’s objection, Irene Ellis, a friend of the victim, testified regarding statements the victim made after a prior domestic dispute. The state offered this testimony to rebut the defendant’s claim of marital reconciliation and to establish the victim’s state of mind. The trial court instructed the jury that this testimony could be considered only with respect to the state of mind of the victim regarding the subject of reconciliation. Ellis testified that the victim was proceeding with a divorce and was not going to reconcile with the defendant. She also testified that the victim’s biggest fear stemmed from the fact that, if one of the victim’s children had not awoken one night during a domestic altercation, she would have been killed.

The defendant claims that this testimony was not relevant and was more prejudicial than probative. In addition, he claims that the admission of this testimony violated his right to confront witnesses against him as guaranteed by the United States and Connecticut constitutions.

“[Rjobing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender. State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).” (Citations omitted; internal quotation marks omitted.) State v. Jones, 46 Conn. App. 640, 646, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997).

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Caston guay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990) . . . State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). . . . State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).” (Internal quotation marks omitted.) State v. Smith, 49 Conn. App. 252, 257-58, 714 A.2d 1243, cert. denied, 247 Conn. 914, 722 A.2d 809 (1998).

The victim’s state of mind was relevant to the defendant’s motive to commit the crimes alleged. “We have stated that the presence or absence of motive ... is a circumstance to be weighed with other evidence for the jury to consider.” (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 790, 601 A.2d 521 (1992). “The role motive plays in any particular case necessarily varies with the strength of the other evidence in the case. The other evidence may be such as to justify a conviction without any motive being shown. It may be so weak that without a disclosed motive the guilt of the accused would be clouded by a reasonable doubt. . . . State v. Harris, 182 Conn. 220, 224, 438 A.2d 38 (1980).” (Internal quotation marks omitted.) State v. Smith, supra, 49 Conn. App. 259.

The victim’s state of mind was probative of the defendant’s motive to murder her. Evidence was presented that the victim filed for divorce several weeks prior to the fire. The defendant claimed that the victim had agreed to reconcile and not to proceed with the divorce. The victim’s statements regarding reconciliation were clearly relevant and probative. Any prejudicial effect was minimized by the trial court’s instructions to the jury limiting the puiposes for which the evidence could be considered. See State v. Cooper, 227 Conn. 417, 428, 630 A.2d 1043 (1993). We conclude that the trial court did not abuse its discretion in admitting evidence of the victim’s state of mind.

II

The defendant next claims that the trial court improperly allowed several witnesses to testify as to hearsay statements made by the defendant’s children under the excited utterance exception. We disagree.

Sheila McClain and Kimberly Fredericks, a friend of the McClains’ son, watched the Wargo children from approximately 3:30 a.m. until 7:30 a.m. on the morning of the fire. A neighbor of the Wargos, Lynn Monahan, brought her children to the McClains’ house to keep the Wargo children company. At approximately 5 a.m., while the house was still burning, Monahan’s son, James, and Fredericks heard the defendant’s son say that his mother was in the house and the defendant’s daughter say that her father had stepped on her mother while he was getting the children out of the house. McClain testified that approximately fifteen minutes after the defendant’s son arrived at her house, he said that his parents had been fighting. Fredericks testified that the defendant’s son indicated that his parents had been fighting that night.

Defense counsel objected to these statements as inadmissible hearsay. The trial court admitted these statements under the spontaneous utterance exception to the hearsay rule.

“In Perry v.Haritos, [100 Conn. 476, 124 A. 44 (1924)], our Supreme Court recognized the spontaneous utterance exception to the hearsay rule. This exception allows otherwise inadmissible statements into evidence to prove the truth of the matter asserted if it is proven that (1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. . . . The overarching consideration governing these requirements is whether the statements were made before reasoned reflection had taken place.” (Citations omitted; internal quotation marks omitted.) State v. Bowman, 46 Conn. App. 131, 140, 698 A.2d 908 (1997).

“As a preliminary matter, the trial judge must determine whether an utterance qualifies under this exception to the hearsay rule, and that decision will not be disturbed on appeal unless it constitutes an unreasonable exercise of discretion. . . . The requirement that a spontaneous utterance be made under such circumstances as to negative the opportunity for deliberation and fabrication by the declarant . . . does not preclude the admission of statements made after a startling occurrence as long as the statement is made under the stress of that occurrence. . . . While the short time between the incident and the statement is important, it is not dispositive. ... All material facts should be weighed by the trial judge when determining whether a statement qualifies as a spontaneous utterance.” (Citations omitted; internal quotation marks omitted.) State v. Guess, 44 Conn. App. 790, 803-804, 692 A.2d 849 (1997), aff'd, 244 Conn. 761, 715 A.2d 643 (1998).

In the present case, the challenged statements were made while the children were under the stress of watching their house burn while their mother’s condition was unknown. The declarations referred to the occurrence, namely the fight between the parents that evening and seeing the defendant step on their mother while escaping from the fire. The evidence supports the conclusion that the children observed their parents fighting and observed the defendant step on their mother. After viewing the record, we cannot say that the trial court abused its discretion in determining that the declarations were made under circumstances that negated the opportunity for deliberation and fabrication by the declarants. We conclude, therefore, that the trial court did not abuse its discretion in admitting the hearsay statements under the spontaneous utterance exception to the hearsay rule.

Ill

The defendant next claims that the trial court improperly allowed the medical examiner to testify about causes of death that produce markings only on the skin. We agree that this testimony was improperly admitted, but conclude that any error was harmless.

Malka Shah, a medical examiner for the state, examined the body of the victim. Shah concluded that the victim had died before the fire started because there was no soot or burning in the victim’s trachea, bronchi or lungs and the level of carbon monoxide in her blood was inconsistent with having been alive during the fire. Shah found no evidence of death by natural causes, although she stated that she could not determine the exact cause of death. Over objection, the trial court allowed Shah to testify that asphyxiation, drug overdose and electrocution are causes of death that may leave markings on the skin. The defense argues that this information was irrelevant and invited the jury to speculate as to the cause of death of the victim.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citations omitted; internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 353-54, 696 A.2d 944 (1997).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. State v. Blake, 69 Conn. 64, 76, 36 A. 1019 (1897). . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. State v. Kelly, 77 Conn. 266, 269, 58 A. 705 (1904). A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. State v. Briggs, [179 Conn. 328, 332, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980)] .... Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Kiser, 43 Conn. App. 339, 361-62, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997).

In the present case, Shah testified that the victim had died before the fire started and that the victim had not died of natural causes. She further testified that she could not determine the cause of death. The fact that, in forensic science, death by asphyxiation, drug overdose or electrocution may be determined by markings on the skin is irrelevant because Shah could not provide any connection between those causes of death and the actual cause of death of the victim. This testimony did not support a relevant fact even to a slightest degree and its admission was improper.

Our inquiry, however, is not complete. “Where evi-dentiary error is claimed, the defendant bears the burden of proving the harmfulness of the error before a new trial will be granted.” State v. Sauris, 227 Conn. 389, 413, 631 A.2d 238 (1993). The defendant must show that the error was harmful, i.e., that it is more probable than not that the improper ruling of the trial court affected the result. State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990). Despite the lack of relevance, it is unlikely that the testimony affected the result. Shah testified and the trial court reiterated in its charge to the jury that Shah could not determine the exact cause of death. We conclude, therefore, that the defendant has failed to sustain his burden of proving the harmfulness of the error.

IV

The defendant next claims that the trial court improperly allowed a witness to testify to prior misconduct by the defendant. We disagree.

Over objection, Todd Burkhardt testified that, at a Christmas party in December, 1993, the defendant had expressed a dislike of the victim’s smoking habit and had left the party without her. He further testified that later that evening the defendant had nailed a two-by-four board to the front door to prevent the victim from entering the house. The state offered this evidence to show that there was a deteriorating relationship. The trial court admitted this testimony, concluding that it was relevant to the defendant’s motive and to show the deteriorating marital relationship. The defendant claimed that the evidence was too remote in time to be probative and that it was irrelevant to any issue before the jury.

“The law in Connecticut on the admissibility of prior misconduct evidence is clear. Evidence of prior misconduct, because of its prejudicial nature, is inadmissible to show that the defendant is guilty of a subsequent crime. . . . Evidence of other misconduct, however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity .... Such evidence, however, to be admissible must also be relevant and material. . . . Uncharged misconduct evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions, and its probative value must outweigh its prejudicial effect. . . . Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . Therefore, every reasonable presumption should be given to uphold the trial court’s decision.” (Citations omitted; internal quotation marks omitted.) State v. Middlebrook, 51 Conn. App. 711, 715-16, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999).

“Relevant evidence, although prejudicial in nature, ‘is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused.’ State v. Ramsundar, 204 Conn. 4, 15, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).” State v. Mozell, 40 Conn. App. 47, 51, 668 A.2d 1340, cert. denied, 236 Conn. 910, 671 A.2d 824 (1996). “Some degree of prejudice inevitably accompanies the admission of evidence of a defendant’s other misconduct. See State v. Nardini, 187 Conn. 513, 523, 447 A.2d 396 (1982).” State v. Faria, 47 Conn. App. 159, 175, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998).

“ ‘The primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.’ ” State v. Madore, 45 Conn. App. 512, 519, 696 A.2d 1293 (1997). As previously stated, evidence of marital discord was relevant to the defendant’s motive. While this evidence is prejudicial to the defendant, the defendant has failed to convince us that any accompanying prejudice outweighed the probative value. Exercising every reasonable presumption in favor of sustaining the trial court’s decision, we cannot say that abuse of discretion is manifest or that injustice appears to have been done.

V

The defendant next claims that the trial court improperly denied his posttrial motion for mistrial, which he based on allegedly improper statements made by the prosecutor during closing argument. We disagree.

Certain additional facts are necessary to our resolution of this claim. In her closing and rebuttal arguments to the jury, the prosecutor argued that the defendant roped the doors to the children’s rooms closed, killed the victim upstairs, led his children to the porch roof, carried the victim’s body downstairs to the couch, started the fire using chemicals as an accelerant, and then went back upstairs to take his children off the roof. The defendant claims that these statements constituted prosecutorial misconduct because these statements were not supported by the evidence.

“ [P]rosecutorial misconduct of constitutional proportions may arise during the course of closing argument .... State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990). [T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). We must, therefore, determine whether the remarks of the prosecutor, in light of all the circumstances, including the trial court’s charge, were so egregious and so damaging to the defendant that they deprived him of a fair trial. State v. Richardson, 214 Conn. 752, 761, 574 A.2d 182 (1990).” (Internal quotation marks omitted.) State v. Sivri, 46 Conn. App. 578, 590-91, 700 A.2d 96, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).

“A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts which have not been proven amount to unsworn testimony that is not the subject of proper closing argument.” (Internal quotation marks omitted.) State v. Alexander, 50 Conn. App. 242, 257, 718 A.2d 66, cert. granted on other grounds, 247 Conn. 927, 719 A.2d 1169 (1998). “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” (Internal quotation marks omitted.) State v. Lyons, 43 Conn. App. 704, 713, 686 A.2d 128 (1996), cert. denied, 240 Conn. 906, 688 A.2d 335 (1997).

We are not persuaded that the prosecutor did anything more than argue permissible inferences from the evidence. The evidence supported the inference that the defendant killed the victim upstairs and carried her body downstairs to the couch. James Monahan and Fredericks testified that they heard the defendant’s daughter say that her father had stepped on her mother while he was getting the children out of the house. It is undisputed that (1) the children were on the second floor of the house and did not exit from the ground floor and (2) the victim was found on a couch on the first floor. Shah testified that the victim had died before the fire. From that evidence, it could reasonably be inferred that the defendant killed the victim upstairs and carried her body to the downstairs couch prior to setting the fire.

The evidence supported the inference that the defendant started the fire and used a chemical accelerant. McGurk discovered a pour pattern leading up to the area of origin for the fire, which indicated that an accel-erant had been used. On the basis of his observations, McGurk concluded that the fire had been intentionally set. Other officers found an empty bottle of bleach in the basement and a can of acetone in the storage shed. The defendant was a member of the fire brigade at work and had received training in chemical fires and hazardous materials. The defendant was familiar with spontaneous combustion caused by the combination of alkalies and acids. The defendant admitted writing various phrases in the notebook, such as “acetone,” “alcohol clorox” and “aim foil.”

Furthermore, the evidence supported the inference that the defendant tied the children’s door shut. In the notebook found in the defendant’s dresser, the defendant wrote “rope kds drs.” Viewed in light of all the evidence, the prosecutor’s argument was not improper.

VI

The defendant next claims that the trial court improperly refused to charge the jury that the state must prove that the victim’s death was caused by criminal means. We disagree.

“ ‘It is axiomatic that the state, in a criminal case, has the burden of proving every essential element of the crime charged beyond a reasonable doubt. State v. DeCoster, 147 Conn. 502, 504, 162 A.2d 704 [1960]; State v. Newman, 127 Conn. 398, 400, 17 A.2d 774 [1940]. State v. Jackson, 176 Conn. 257, 258, 407 A.2d 948 (1978).” State v. Morin, 180 Conn. 599, 609, 430 A.2d 1297 (1980). “The elements of intentional murder . . . under General Statutes § 53a-54a are (1) intent, (2) causation and (3) death by killing as opposed to death by accident or suicide.” (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 74, 621 A. 2d 728 (1993).

“Causation is an essential element of the crime of murder. See General Statutes § 53a-54a. In order for legal causation to exist in a criminal prosecution, the state must prove beyond a reasonable doubt that the defendant was both the cause in fact, or actual cause, as well as the proximate cause of the victim’s injuries. ... In order that conduct be the actual cause of a particular result it is almost always sufficient that the result would not have happened in the absence of the conduct; or, putting it another way, that but for the antecedent conduct the result would not have occurred. ... On the other hand, proximate cause requires that the forbidden result which actually occurs must be enough similar to, and occur in a manner enough similar to, the result or manner which the defendant intended (in the case of crimes of intention) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Guess, supra, 44 Conn. App. 797-98. Proof that the victim’s death was caused by criminal means is simply not an element of the crime of murder. Therefore, the trial court properly declined the defendant’s request to charge.

VII

The defendant’s final claim is that the evidence was insufficient to support his conviction of murder, arson, tampering with evidence and risk of injury to a child. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. 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. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted,» proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) Id., 489-90.

A

The defendant correctly asserts that the state was required to prove that the victim’s death was by killing, as opposed to accident or suicide. See State v. Rasmussen, supra, 225 Conn. 74. He claims that, because the medical examiner was unable to determine the cause of death, the state presented insufficient evidence that he caused the victim’s death. We are unpersuaded.

As stated in part VI of this opinion, proof of death by criminal means or proof of the exact cause of death is not required. In the present case, the medical examiner concluded that the victim died prior to the fire. She testified that the victim had not died of natural causes, but that she could not determine the exact cause of death. The defendant argues that “there is no evidence on the body of [the victim] or otherwise, that the defendant caused her death at all or by a particular means.”

The defendant’s daughter testified that the defendant stepped on the body of the victim, on the second floor of the house, while attempting to escape from the fire. The body of the victim was later found by firefighters on a couch on the first floor of the house. McGurk determined, on the basis of the presence of a pour pattern, that the fire had been set using an accelerant. The defendant had received hazardous material training and was familiar with the reaction caused by combining acid and acetone. The police seized bleach and acetone from the home of the defendant. On the basis of the severely burned condition of the victim, the medical examiner was unable to determine the exact cause of death. While the exact cause of death may not be known, due to the defendant’s own actions, the evidence was sufficient for the jury to find beyond a reasonable doubt that the defendant caused the death of the victim.

The defendant also claims that the evidence was insufficient to prove that he caused the death of the victim with the intent to do so. This claim is equally without merit.

Several weeks prior to the fire, the victim filed for divorce from the defendant. Shortly after the defendant was served with divorce papers, he had a telephone conversation with a friend, Christina Fuggetta. The defendant told Fuggetta that he was upset because he wanted to go to marital counseling with the victim. He was also concerned about child custody issues and said that he would rather see the victim dead than have her raise the children.

On the basis of the defendant’s actions at the time of the fire, the children’s statements regarding their mother, the presence of an accelerant pour pattern surrounding the couch where the victim was found, the notes found in the defendant’s dresser and his conversation with Fuggetta, the jury reasonably could have found beyond a reasonable doubt that the defendant intended to cause the death of the victim and did in fact cause her death.

B

The defendant next claims that the evidence was insufficient to support his conviction of two counts of arson in the first degree in violation of § 53a-lll (a) (1), one count of tampering with evidence in violation of § 53a-155 (a) (1) and two counts of risk of injury to a child in violation of § 53-21.

First, the defendant claims that if the trial court had properly excluded the statements of the victim given by Ellis, of the Wargo children and of Shah the evidence would be insufficient to support the conviction. We have already addressed the propriety of the trial court’s actions and need not address them further.

Next, the defendant claims that if the conviction for murder is insufficient, the convictions of arson, tampering with evidence and risk of injury to a child must also be vacated. Because we conclude that the evidence was sufficient to support the defendant’s conviction of murder, we need not address this claim.

The judgment is affirmed.

In this opinion LAVERY, J., concurred.

FOTI, J.,

concurring. I agree with the result reached by, and with most of the reasoning of, the majority opinion. I part company with the majority, however, on the conclusion reached in part III that the evidence offered by the associate medical examiner, Malka Shah, was improperly admitted as relevant, yet harmless. In my view, it is unnecessary to examine whether the introduction of that evidence was harmless because I am not persuaded that the admitted evidence was, in fact, irrelevant. I decline, therefore, to join that part of the majority opinion.

The evidence presented by the state, through the testimony of Shah, an expert, was her opinion that the victim had died prior to the start of the fire and that she did not die of natural causes. This evidence was crucial to the state’s case on the charge of murder. Shah was able to explain, with reasonable medical certainty, that it was her opinion that the victim had died prior to the start of the fire because there was no soot or burning in the victim’s trachea, bronchi, lungs, or on her tongue, and because the level of carbon monoxide in the victim’s blood was inconsistent with her having been alive during the fire. Although Shah could not give a specific cause of death, she gave her opinion, based on reasonable medical certainty, that the victim did not die of natural causes. This seemingly contradictory position was explained by the evidence that the majority concludes is irrelevant.

“ ‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.’ ” State v. Carmon, 47 Conn. App. 813, 818, 709 A.2d 7, cert. denied, 244 Conn. 918, 714 A.2d 7 (1998). “Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Kiser, 43 Conn. App. 339, 362, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997). “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 195, 700 A.2d 38 (1997).

“In determining the admissibility of evidence, [t]he trial court has broad discretion to determine both the relevancy and remoteness of evidence. Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the Correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Coleman, 35 Conn. App. 279, 285, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994).

Over objection, Shah was permitted to testify that in forensic pathology, there are certain traumatic causes of death, such as asphyxiation, drug overdose and electrocution, that leave evidence of an injury on the skin. Shah went on to explain, however, that given her inability to examine thoroughly the victim’s body externally, because it was “severely burned,” she could not reach a final conclusion as to the actual cause of the victim’s death.

In my view, this testimony was properly admitted by the trial court to reveal the examinations that could have been performed, but were not, and to explain why they were not. This evidence established the significance of the burned condition of the body and helped explain, in context, how and why that condition hampered Shah’s ability to determine the exact cause of death. The evidence, therefore, was relevant to explain how Shah arrived at her conclusion that the victim did not die of natural causes and, yet, was unable to give a specific cause of death. In this regard, the testimony did not inject speculation into the jury’s deliberations by having it guess as to a cause of death.

“It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). Inferences may be drawn from circumstantial evidence, and it is the jury’s function to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. State v. Crafts, 226 Conn. 237, 246-47, 627 A.2d 877 (1993).

I conclude, therefore, that the evidence was properly admitted because it was relevant and not unduly prejudicial.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       General Statutes § 53a-lll (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . .

       General Statutes § 53a-155 (a) provides in relevant part: “A person is guilty of tampering with or fabricating physical evidence if, believing that an official proceeding is pending, or about to be instituted, he: (1) Alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding . . . .”

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       “[Assistant State’s Attorney]: And in that phone conversation, did you bring up the topic of divorce?
      “[Ellis]: Yes.
      “[Assistant State’s Attorney]: And did she indicate to you whether or not [she] and [the defendant] were going to be reconciled?
      “[Ellis]: She said absolutely not. That they were not going to reconcile; she was going ahead with the divorce and that was her final decision.
      “[Assistant State’s Attorney]: And did she indicate to you anything regarding her concerns or fears of the defendant? . . .
      “[Ellis]: Her biggest fear was that if it hadn’t been for [their daughter’s] waking up the night things got out of hand, as [the defendant] stated to me prior, that she felt if [their daughter] hadn’t woken up that night that she would have been dead then.”