author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. TROY HICKS
    (AC 17594)
    Hennessy, Sullivan and Spallone, Js.

      Argued March 22
    officially released May 25, 1999

      John T. Walkley, special public defender, for the appellant (defendant).

      John A. East III, 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

SPALLONE, J.

This is an appeal by the defendant, Troy Hicks, from the judgments rendered following the trial court’s denial of his motions to suppress tangible evidence. On appeal, the defendant claims that the trial court improperly denied his motions to suppress tangible evidence by ruling that the police seized the evidence pursuant to lawful inventory searches of the defendant’s motor vehicles. We are not persuaded and affirm the judgments of the trial court.

The defendant was charged in two informations as follows: In one case, the defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) and conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 2 la-278 (b) and 53a-48 (a).

In the second case, the defendant was charged with two counts of forgery in the second degree in violation of General Statutes § 53a-139 (a) (3) and one count of interfering with a peace officer in violation of General Statutes § 53a-167a. On May 9, 1997, the state filed a motion to consolidate the two cases for trial, which was granted by the trial court on May 29, 1997.

On June 10, 1997, the defendant filed a motion in each case to suppress the tangible evidence seized by the state. After a hearing, the trial court denied the defendant’s motions to suppress. On June 25, 1997, the defendant entered pleas of nolo contendere to the charges of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) and forgeiy in the second degree in violation of § 53a-139 (a) (3).

The following facts are relevant to this appeal. On November 4, 1994, Detective Timothy Shaw and Officers Frederick Jainchill and Richard Gutska of the Hartford police department were in a marked police cruiser proceeding southbound on Garden Street in an area of Hartford known to be high in the incidence of crime, including drug dealing. The officers observed the defendant step out of a blue Mazda van parked along the curb on Garden Street. The defendant appeared to lock the van as he exited, holding keys in one hand and a yellow object in the other. The defendant, known to the police as a drug dealer, was believed to be in possession of heroin packaged in yellow wrappers. Shaw knew that in this area heroin was usually packaged in yellow or white wrappers.

Believing that the defendant was engaging in criminal activity, the police followed him to the comer of Garden and Bedford Streets. Gutska and Jainchill left the cruiser to observe the defendant who, upon seeing them, fled on foot. As the defendant approached Albany Avenue, the officers saw him discard the yellow object he was carrying. When the object hit the ground, several smaller yellow packets spilled from it. The pursuing officers retrieved eight packets, which were later found to contain heroin.

Hicks continued ranning in the direction of Shaw, who was alerted by the officers that the defendant was headed toward him. Shaw saw the defendant cross Albany Avenue, heading toward Garden Street. While pursuing the defendant, Shaw saw him discard what later proved to be keys to the van from which the defendant had fled. Shaw unlocked the van with the keys that the defendant had discarded. Because the van was to be towed, Shaw entered the van in order to secure the van’s registration and to conduct an inventory search. The passenger compartment of the van was searched to determine the presence of any valuable items that might be the subject of a subsequent claim of lost or stolen property. Upon entering the van, Shaw discovered two plastic bags between the front bucket seats containing smaller yellow bags, which later were found to contain heroin.

On June 19, 1995, at approximately 9 p.m., Shaw and Gutska were transporting a prisoner in their cruiser. As they approached the intersection of Collins and Garden Streets, they were almost hit by a Honda Prelude, which ran a red light across the path of the cruiser. The police stopped the vehicle for the red light violation. As Shaw approached the vehicle on foot, he recognized the defendant as the driver of the van from the November 4, 1994 incident. Upon seeing Shaw, the defendant performed a U-tum and sped away, almost colliding with another vehicle. The police officers gave chase but discontinued their pursuit when they felt it was unsafe to continue. Shaw reported the information about the car and informed the dispatcher that they were ending the search. Within a few seconds, an officer in a different patrol car reported seeing the defendant’s vehicle in the area and reported that the driver had parked the car on Sigourney Street near Albany Avenue and had fled on foot toward Edgewood Street.

Upon arriving at the scene, Shaw and Gutska recognized the Honda Prelude as the vehicle that the defendant had been driving. The driver’s window was open and the car was unlocked. The officers initiated procedures to have the Honda towed. Shaw entered the Honda to obtain its paperwork and to look for valuables prior to towing. Upon entry, Shaw noticed a portable car phone and a wallet on the floor of the front passenger seat. The wallet contained a driver’s license in the name of Anthony Johnson but the defendant’s picture was embossed on the license. The wallet also contained credit cards in Johnson’s name, as was the motor vehicle registration found in the glove compartment.

We agree with the trial court and hold that the items found in the van and the Honda Prelude were seized pursuant to a valid inventory search. The United States Supreme Court has stamped its imprimatur on routine inventoiy searches. South Dakota v. Opperman, 428 U.S. 364, 367-76, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). Where an inventoiy search has been performed, the question is not whether the search was authorized by state law, but whether the search was reasonable under the fourth amendment. Id., 372. In determining the reasonableness of a routine inventory search, “a court is required to weigh ‘the governmental and societal interests advanced to justify such intrusions against the constitutionally protected interest of the individual citizen in the privacy of his effects.’ ” State v. Murphy, 6 Conn. App. 394, 397, 505 A.2d 1251 (1986), quoting South Dakota v. Opperman, supra, 378 (Powell, J., concurring). “Whether a search is reasonable is to be determined on a case by case basis, depending upon the particular fact situation.” State v. Murphy, supra, 400. There are three governmental interests that support inventory searches: “(1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property; and (3) protection of the owner’s property while it remains in police custody. South Dakota v. Opperman, supra, 369.” State v. Murphy, supra, 397-98.

We hold that the warrantless searches of the two vehicles were lawful under Opperman and Murphy. The trial court’s denial of the defendant’s motions to suppress the items seized was lawful, rational and in accordance with applicable law.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 53a-139 (a) provides in relevant part: “A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed ... (3) a written instrument officially issued or created by a public office, public servant or governmental instrumentality . . . .”


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. VANCE JOHNSON
    (AC 18431)
    Poti, Landau and Spallone, Js.
    Argued March 29
    officially released May 25, 1999

      Robert G. Golger, special public defender, for the appellant (defendant).

      Ellen A. Jawitz, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Vance Johnson, appeals from the judgment of conviction, rendered after a jury trial, of the crime of murder in violation of General Statutes § 53a-54a. The defendant appeals from his conviction of murder alleging insufficient evidence to support the trial court’s instruction on combat by agreement and also complains that the court improperly marshaled the evidence that the defendant and the victim agreed to engage in combat. We affirm the judgment of the trial court.

The defendant was charged with murder in violation of § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217. On December 9,1996, the defendant pleaded guilty to criminal possession of a firearm and was sentenced to five years in the custody of the commissioner of correction.

After a trial to a jury, the defendant was found guilty of murder and, on March 14, 1997, was sentenced to sixty years to run concurrently with the weapons count, for an effective sentence of sixty years imprisonment.

On the basis of the evidence adduced at trial, the jury reasonably could have found the facts as follows. The defendant and the victim, Christopher Gills, had been friends for years, but they became estranged about two months before the shooting. On June 28, 1994, the night before the shooting, the defendant went to the victim’s mother’s house searching for him. In a discussion with Kevin Walker, a friend of the victim, the defendant, who had a gun, told Walker that he was going to shoot the victim when he found him.

About noon on June 29, 1994, the defendant was at a car wash on Homestead Avenue, near the comer of Woodland Street in Hartford. Seeing the victim driving by, the defendant flagged him down. The victim, who was with Damion Bullock, pulled the car over, exited and began talking to the defendant. Bullock remained in the passenger seat of the car. At that point, the defendant displayed a gun that he had wrapped in a shirt. The victim went back to his car, reached under the seat and brought out a gun.

The victim laid the gun on the roof of his car and put his hand over the gun. The defendant reached back to get the clip for his gun from another man who was standing nearby. When the defendant removed the shirt that was covering the gun, Bullock exited the car and fled.

The defendant and the victim continued to argue as they moved into the street. The victim began to walk backward, with his palms facing forward and his elbows back. At that moment, there was nothing in the victim’s hands. The defendant fired three shots and the victim fell to the ground. The defendant walked over to where the victim lay, then returned to his car and drove away. The victim sustained two gunshot wounds to his abdomen, which resulted in his death from loss of blood.

A few hours after the shooting, Kevin Walker, Eddie Walker and other friends of the victim were standing in front of 328 Cornwall Street. The defendant drove up in a car, displayed a gun, and said, “Somebody out there don’t like what I did to your boy.” The defendant continued down the street, turned the car around, and fired a number of shots as he drove by the group.

At trial, the defendant admitted that he shot the victim, claiming that he did so in self-defense. The defendant testified that while standing in front of the car wash, gun in hand, he saw the victim drive by. He wanted to speak to the victim about a stolen cellular telephone sold by the victim, which was no longer working. He waved the victim over and they began to talk. The defendant took the shirt off the gun because he wanted to show it to the victim, who sold guns as well as telephones. The defendant stated to the victim that he wanted to exchange the telephone and the victim became angry. They walked to the victim’s car where the victim opened the driver’s door and leaned in.

The defendant testified that at that point the victim leaned on the roof of the car and pointed a gun at him. The defendant’s companion came over and handed him a clip, which the defendant inserted into his gun. The victim then walked into the middle of the street and asked the defendant if he wanted “trouble.” The defendant, carrying his loaded weapon, joined the victim in the street. The defendant stated that he attempted to talk to the victim, but the victim began to put a bullet in the chamber of his gun. Although the victim was unsuccessful in chambering the bullet, the defendant fired three shots at the victim from a distance of twelve to fifteen feet.

The defendant also testified that he fled to Middle-town where he used an alias and a forged identity card. Before being arrested, the defendant called the police and attempted to implicate someone else in the shooting. After his arrest, the defendant told the police that he was at his grandmother’s house at the time of the shooting.

I

The defendant’s first claim is that there was insufficient evidence to support the trial court’s instruction of the combat by agreement exception to self-defense. We disagree.

After instructing the jury on self-defense, the duty to retreat and the initial aggressor exception to self-defense, the trial court instructed the jury on combat by agreement as follows: “Another exception to justification is the combat by agreement situation. And as you will recall [General Statutes] § 53a-19 provides that a person is not justified in using physical force when the physical force involved was the product of a combat by agreement not specifically authorized by law. Under this section, it’s not necessary that there be a formal agreement but such an agreement may be inferred from the conduct of the parties. To infer such an agreement you must look at all the circumstances leading up to and preceding the shooting as well as all of the circumstances surrounding this shocking itself based on the entire evidence presented and your own credibility assessments. Bearing in mind, of course, that the state has the burden of disproving self-defense beyond a reasonable doubt. The combat by agreement then is an exception to the justification defense. And it does not require a formal agreement and it presents a question whether from . . . the credible evidence whether or not an agreement can be inferred. And you can consider the circumstances that—in that regard—that preceded the shooting. . . .”

The defendant took exception to that charge on the ground that, inter alia, there was insufficient evidence of an agreement to engage in combat. The following day, the trial court explained, on the record, that pursuant to State v. Silveira, 198 Conn. 454, 471, 503 A.2d 599 (1986), there need not be a formal or express agreement, noting that an agreement may be inferred from the facts and circumstances. The defendant again took exception to the instruction.

The trial court “should not submit to the jury any issue that is foreign to the facts in evidence or for which no evidence was offered.” State v. Shaw, 24 Conn. App. 493, 498, 589 A.2d 880 (1991). In reviewing a claim that there was insufficient evidence to support an instruction, the reviewing court must consider the evidence in the light most favorable to upholding the instruction. State v. Small, 242 Conn. 93, 102, 700 A.2d 617 (1997). The question on appeal is whether, viewing the evidence in this light, it was sufficient to support a reasonable inference that the physical force employed by the defendant was the product of an agreement not authorized by law. See State v. Silveira, supra, 198 Conn. 471.

Although there is no formal agreement in this matter, there was ample evidence that the defendant and the victim agreed either expressly or tacitly to engage in combat. Specifically, the evidence showed, viewed in the light most favorable to sustaining the instruction, that the defendant went looking for the victim; the defendant saw the victim driving a car and flagged him down; the victim exited his car and began talking to the defendant; the defendant complained about a cellular telephone, causing the victim to become angry; the two men began to argue, the defendant displayed his gun, which was wrapped in a shirt; the victim went to his car and took a gun from it; the victim placed his gun on the roof of the car and put his hand over it; the defendant unwrapped his gun and his companion handed him a clip of ammunition; the defendant put the clip in his gun; the victim walked into the middle of the street and asked the defendant if he wanted “trouble”; the defendant joined the victim in the middle of the street; the victim unsuccessfully tried to chamber a bullet in his gun; the defendant then fired three shots at the victim from a distance of twelve to fifteen feet.

The trial court had ample evidence before it to charge that the victim and the defendant agreed to engage in combat by agreement. The two men argued, displayed their weapons, walked to the middle of the street armed and angry and confronted each other. The defendant fired three shots that killed the victim. The trial court properly instructed the jury on the combat by agreement exception to self-defense.

II

The defendant also contends that the trial court unfairly marshaled the evidence that the defendant and the victim had agreed to engage in combat. We are not persuaded.

The defendant challenges the following portion of the trial court’s instruction, which was delivered immediately after the court’s charge on the law regarding combat by agreement. “[I]n this case, if you believe the witness, I guess it was Kevin Walker, regarding what transpired at the Palm Street Market that morning, if you accept . . . the evidence as to what occurred the night before, if you find that evidence credible, if you consider the statements of the defendant as those witnesses testified to them as being made the night before and in front of the Palm Street Market with the display of a gun the, as I recall, the witness regarding the Palm Street Market testified that the defendant had said, displaying the gun, that he was going to shoot Christopher Gill or Bump. And then a few hours later Christopher Gill is flagged down by the car wash on Homestead Avenue, he stops and there both the defendant and the victim are out of the car. There’s an argument . . . there is evidence that at some point the victim went back to the car, retrieved a gun, then came back in the direction of the defendant as I recall the testimony and at the same time the—or about the same time the defendant is unwrapping his firearm and the other gentleman with him, Dice, whatever, hands him the clip and then there’s a shooting.

“Now that is the evidence. Whether any or all or part of that is credible that’s something you ladies and gentlemen will have to determine whether or not from that evidence and all the other evidence and circumstances in the case there can be inferred a,n agreement. It doesn’t have to be a formal, whether or not there can be inferred an agreement to engage in combat, in this case involving firearms.” (Emphasis added.)

“The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . .” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 169, 665 A.2d 63 (1995). Accordingly, a charge “must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” (Internal quotation marks omitted.) Id. State v. Marra, 222 Conn. 506, 538, 610 A.2d 1113 (1992).

“To determine whether the court’s instructions were improper, we review the entire charge to determine if, ‘taken as a whole, the charge adequately guided the jury to a correct verdict.’ ” State v. Figueroa, supra, 235 Conn. 170. “The pertinent test is whether the charge, read in its entirety, 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.” (Internal quotation marks omitted.) Id.; see also State v. Pollitt, 205 Conn. 132, 155-56, 531 A.2d 125 (1987).

The trial court referred to the facts to instruct the jurors on the proper application of the facts that they found proven to the law in the case. Read in its entirety, the court’s charge was explanatory and not directive. The court’s repeated admonishments to the jury “if you accept the evidence,” “if you believe the witness” and “if you find the evidence credible” establish that the court carefully separated its function, as instructor in the law, from the function of the jury, the fact finder.

Further, the trial court in its instructions expressly stated to the jury: “If the court has expressed or intimated any opinion as to the facts, you are not bound by that opinion.” The trial court properly commented on the evidence in illustrating the proper application of the law. The court instructed the jurors that they were the ultimate judges of the facts and they were to rely on their own recollections of the facts where they differed from the court’s recollection. See State v. Caballero, 49 Conn. App. 486, 494, 714 A.2d 1254, cert. denied, 247 Conn. 924, 719 A.2d 1170 (1998). Nothing in the record supports the defendant’s assertion that the trial court’s charge was unfair and that it favored the state over the defendant.

In sum, the trial court’s instructions to the jury on combat by agreement was proper, and the trial court did not improperly marshal the evidence that the defendant and the victim agreed to engage in combat. The trial court clearly charged fairly, accurately and in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a 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 . . . .”


author: LAVERY, J.

text:
    TOSHIBA AMERICA MEDICAL SYSTEMS, INC. v. MOBILE MEDICAL SYSTEMS, INC., ET AL.
    (AC 17755)
    O'Connell, C. J., and Lavery and Hennessy, Js.

      Argued January 12
    officially released May 25, 1999

      Christopher M. Royston, for the appellant (defendant Paul Petonito).

      Andrew P. Nemiroff, with whom, on the brief, was Andrew K. Solow, legal intern, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendant Paul Petonito appeals, following a trial to the court, from the judgment in favor of the plaintiff, Toshiba America Medical Systems, Inc., on its breach of contract claims. On appeal the defendant claims that the trial court improperly (1) pierced the corporate veil and imposed liability on the sole shareholder despite finding that the defendants’ breaches of contracts did not rise to the level of deceptive, unethical or immoral acts, (2) imposed liability on the sole individual shareholder on the basis of payments made by Mobile Medical Systems, Inc. (Mobile), to another corporation that is not a party to the lawsuit and (3) imposed liability for corporate obligations on the sole individual shareholder where (a) the plaintiff knew it was dealing with Mobile, (b) the contracts were between the plaintiff and Mobile, (c) the plaintiff did not allege that it was fraudulently induced to enter into contracts with Mobile and (d) the individual defendant had no obligations to the plaintiff at the time that Mobile was formed. We affirm the judgment of the trial court.

The plaintiffs amended complaint alleges four counts of breach of contract by the defendants, Mobile and Petonito, and that Petonito is personally hable for the debts of the corporation. The fifth count alleges that the defendants wrongfully took the plaintiffs property and seeks treble damages pursuant to General Statutes § 52-564. In the sixth count, the plaintiff alleges that the defendants violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

The trial court found the following facts. The plaintiff is in the business of distributing and selling nuclear diagnostic imaging equipment. Petonito owned 100 percent of the stock in Mobile, which was originally capitalized with $100. Petonito did not pay for his stock. In 1992, Petonito caused Mobile to be incorporated because he wanted physicians to know that Mobile was a medically oriented company. Mobile operated its corporation from the same premises as another corporation owned by Petonito, A-K Machine Company (AK Machine), which sold medical vans. Mobile had no lease arrangement for the rental of the premises. Mobile had no corporate assets beyond an automobile used solely by Petonito. Following its incorporation, Mobile held no corporate meetings, did not file any tax returns or annual reports with the secretary of the state as to its corporate existence. Although he was subpoenaed to produce Mobile’s corporate records at trial, Petonito failed to do so. Mobile had no employees. Patricia Ivar-one, an employee of A-K Machine, wrote checks from the Mobile corporate account at the direction of Peto-nito but did not receive compensation from Mobile.

Mobile was engaged in the manufacture and sale of mobile diagnostic systems and entered into four contracts with the plaintiff to purchase nuclear diagnostic imaging equipment to be installed in its mobile diagnostic systems. Although it received the contracted goods from the plaintiff, Mobile failed to make full payment and was indebted to the plaintiff in excess of $424,000. Petonito received payments in excess of $900,000 from third party leasing companies for medical systems manufactured by Mobile that contained the equipment it purchased from the plaintiff. Petonito controlled the transfer of $1,184,910.19 from Mobile to A-K Machine, describing it as compensation for research and development. There were no records of loans from Mobile to A-K Machine.

The trial court also found that Petonito drew down at least $87,123.58 of Mobile’s funds without explanation. Petonito paid his personal income tax to the Internal Revenue Service with funds from Mobile. Using Mobile funds, Petonito paid $44,375 in cash gifts to one of the plaintiffs employees, who was responsible for arranging credit to Petonito for Mobile. Petonito also permitted his son, who was not an officer, director or employee, to authorize payments from Mobile funds.

The trial court concluded from the intermingling of funds and monetary exchanges between Mobile and Petonito that Mobile was the alter ego of Petonito. Mobile was a shell that permitted Petonito to make unsupported 'withdrawals and payments to another corporation of which he was the sole stockholder. There was a unity of ownership between Mobile and Petonito and the corporation ceased to have any effect because, although it was incorporated, it never functioned. Mobile’s separate identity was, in fact, a fiction to defeat individual liability. Mobile was so controlled and dominated by Petonito, and lacked a legitimate corporate purpose, that justice required imposing liability on the real actor, Petonito. The trial court rendered judgment and awarded damages in favor of the plaintiff on the first four counts of its amended complaint.

The trial court found that the plaintiff failed to prove the wrongful taking of any property pursuant to § 52-564. It also found that the breaches of contracts by nonpayment for goods received did not rise to the level of deceptive, unethical or immoral acts on the part of the defendants in violation of CUTPA. The trial court, accordingly, rendered judgment for the defendants on the fifth and sixth counts of the amended complaint. This appeal followed.

I

Petonito’s first claim is that the trial court improperly pierced Mobile’s corporate veil and imposed liability on him as the sole shareholder despite finding that the defendants’ breaches of contracts did not rise to the level of deceptive, unethical or immoral acts. We do not agree.

“In making our determination whether the trial court’s conclusions were legally and logically correct, were based upon factual findings that were supported by the evidence and were not clearly erroneous; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); we do not retry the facts. Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984). We are, however, not unmindful that the corporate shield should not be lightly disregarded to hold a stockholder liable, even when, as in the present case, there is but one stockholder. ‘To do so would be to act in opposition to the public policy of this state as expressed in legislation concerning the formulation and regulation of corporations.’ Saphir v. Neustadt, [177 Conn. 191, 212, 413 A.2d 843 (1979)].” Falcone v. Night Watchman, Inc., 11 Conn. App. 218, 221-22, 526 A.2d 550 (1987).

The trial court determined that the facts of this case warranted its piercing Mobile’s corporate veil and holding Petonito individually liable for breach of contract. The trial court found sufficient evidence to pierce the corporate veil under both the instrumentality rule; see Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 553, 447 A.2d 406 (1982); and the identity rule. See id., 554. We address each rule separately.

“The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” (Emphasis in original; internal quotation marks omitted.) Id., 553.

The trial court found that Petonito received payments in excess of $900,000 from third party leasing companies for medical systems manufactured by Mobile that contained the equipment it purchased from the plaintiff. Petonito transferred more than $1,100,000 from Mobile to A-K Machine. After its incorporation, Mobile held no corporate meetings to approve such transactions and did not file any tax returns or other documentary proof with the secretary of the state as to its coiporate existence. Mobile had no employees. The trial court reasonably could have concluded that Petonito transferred funds from Mobile to A-K Machine to avoid paying the plaintiff the balance due it pursuant to the contracts Mobile entered into, and that the failure to pay breached the contracts and was the proximate cause of the plaintiff’s injury.

“The identity rule has been stated as follows: If the plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.” (Internal quotation marks omitted.) Id., 554. “There must be such domination of finances, policies and practices that the controlled corporation has, so to speak, no separate mind, will or existence of its own and is but a business conduit for its principal. ” (Internal quotation marks omitted.) Id., 556.

The trial court also found that Mobile operated from the premises of A-K Machine, had no employees and had no equipment or property other than an automobile for Petonito’s use. Petonito used Mobile funds to pay his personal income tax to the Internal Revenue Service and permitted his son to write checks on Mobile’s account. Clearly, Petonito was the alter ego of Mobile. Mobile existed as a shell that permitted Petonito to make unsupported withdrawals and payments to AK Machine, a corporation of which he was also the sole shareholder.

Petonito argues that the trial court improperly pierced the corporate veil because it did not find that the defendants’ breaches of contracts rose to the level of deceptive, unethical or immoral acts. Petonito’s argument takes the trial court’s conclusion out of context. The trial court concluded that the defendants’ breach of the four contracts in question did not rise to the level of a CUTPA violation with respect to the sixth count of the amended complaint. The instrumentality rule merely requires the trial court to find that the defendants committed an unjust act in contravention of the plaintiffs legal rights. Here, Mobile entered into four contracts with the plaintiff to purchase certain equipment. Mobile never paid for the equipment because Petonito diverted the moneys received to A-K Machine in violation of the plaintiffs right to be paid under the contracts.

“When the statutory privilege of doing business in the corporate form is employed as a cloak for the evasion of obligations, as a mask behind which to do injustice, or invoked to subvert equity, the separate personality of the corporation will be disregarded.” (Internal quotation marks omitted.) United Electrical Contractors, Inc. v. Progress Builders, Inc., 26 Conn. App. 749, 755, 603 A.2d 1190 (1992). We, therefore, conclude that the trial court did not improperly pierce Mobile’s corporate veil and impose liability on Petonito.

II

Petonito’s second claim is that the trial court improperly imposed liability on him as the sole shareholder on the basis of the payments made by Mobile to A-K Machine, a corporation that is not a party to this lawsuit. We are not persuaded.

In support of his claim, Petonito relies on Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 187 Conn. 544, and quotes the following language therefrom. “The identity rule primarily applies to prevent injustice in the situation where two corporate entities are, in reality, controlled as one enterprise because of the existence of common owners, officers, directors or shareholders and because of the lack of observance of corporate formalities between the two entities.” Id., 560. We do not disagree with this statement of the law with respect to the identity rule and hold that it applies to the situation before us where the facts demonstrate that Petonito was the common owner and officer of both Mobile and A-K Mobile and there was a failure to observe corporate formalities between the two entities.

We do not find, however, that the facts of the case before us are in any way similar to the facts of Angelo Tomasso, Inc. See id., 546-52 (officers of defendant corporation were sued on corporate line of credit they personally guaranteed and brought third party indemnification action against individual who appointed them to serve as officers of corporation but who, in fact, controlled corporation). We further disagree with Peto-nito that Angelo Tomasso, Inc., holds that A-K Mobile had to be a party to the present litigation in order to pierce Mobile’s corporate veil to impose liability on Petonito.

Ill

Petonito’s final claim is that the trial court improperly imposed liability on him because the plaintiff knew it was dealing with Mobile, the contracts were between the plaintiff and Mobile, the plaintiff did not allege it was fraudulently induced to enter into contracts with Mobile, and Petonito owed no obligations to the plaintiff at the time Mobile was formed. Petonito cites no law to support any of these claims although he cited numerous cases from this jurisdiction that concern piercing the corporate veil. The facts of those cases cited by Petonito in which liability was not imposed are all easily distinguishable from the facts of the case before us. See Campisano v. Nardi, 212 Conn. 282, 291, 562 A.2d 1 (1989) (state dissolved corporation by forfeiture but sole shareholder continued to do business during winding up); Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 187 Conn. 544. Petonito would also have us distinguish the facts of this case from a case in which the corporate veil was pierced and liability imposed on an individual. See, e.g., Zaist v. Olson, 154 Conn. 563, 227 A.2d 552 (1967). On the basis of our analysis of the law and facts, we conclude that Zaist is on point with the facts before us.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Mobile Medical Systems, Inc., was defaulted for failing to plead and is not a party to this appeal. We refer in this opinion to Petonito as the defendant.

       The judgment was subsequently opened so that the plaintiff could present evidence of the defendants’ having agreed to pay interest as a late penalty and attorney’s fees pursuant to contract. The trial court rendered judgment awarding the plaintiff damages, interest and attorney’s fees.

       It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when apractice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]. . . .
      “All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.” (Citations omitted; internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992).

       “[T]he plaintiffs rendered services, supplied materials and furnished equipment to The East Haven Homes, Inc., for work on properties owned or leased by Martin Olson and Martin Olson, Inc., or by corporations subsequently merged into the latter; that the services, material and equipment were furnished at the instance and request of Martin Olson, who was an officer and director and the person in general charge of the affairs of The East Haven Homes, Inc.; that this corporation acted as the agent or instrumentality of Martin Olson and of Martin Olson, Inc., of which Martin Olson was also an officer and director and the person in general charge; that the services rendered and the material and equipment furnished inured to the benefit of Martin Olson and Martin Olson, Inc. . . .” Zaist v. Olson, supra, 154 Conn. 565.


author: PER CURIAM.

text:
    ROBERT COOPER v. COMMISSIONER OF CORRECTION
    (AC 17549)
    O’Connell, C. J., and Landau and Hennessy, Js.
    Argued March 18
    officially released May 25, 1999

      James A. Shanley, Jr., special public defender, for the appellant (petitioner).

      RitaM. Shair, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John J. Dropick, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Robert Cooper, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a. The Supreme Court affirmed his conviction in State v. Cooper, 227 Conn. 417, 630 A.2d 1043 (1993). The petitioner thereafter filed a petition for a writ of habeas corpus, which the habeas court dismissed after a hearing. He then filed a request for certification to appeal to this court, which the habeas court also denied. This appeal followed.

On appeal, the petitioner claims that the habeas court improperly (1) denied his petition for certification to this court and (2) dismissed his claim of ineffective assistance of counsel. In his petition, he claimed that his trial counsel was ineffective in that he failed to conduct an adequate pretrial investigation and failed to present witness testimony in support of his defense.

Having reviewed the record and briefs and having heal'd from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice was done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s petition was predicated on a factual review of the petitioner’s claim and a determination that the petitioner had failed to rebut the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” (Internal quotation marks omitted.) Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The habeas court found that trial counsel had supplemented information received from the petitioner’s prior attorney by thoroughly investigating the case himself, had hired an investigator, had presented exculpatory evidence on the controverted issues relating to the dynamics of the altercation and had presented expert testimony to dispute the state’s argument that the petitioner had the requisite intent. The habeas court reasoned that “[t]he fact that his trial conduct and strategy were ultimately unsuccessful is not a proper gauge of his efforts.” Accordingly, the habeas court concluded that the petitioner had not proven that counsel’s performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Citations omitted; internal quotation marks omitted.) Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert. denied, 243 Conn. 957, 704 A.2d 806 (1997).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       The habeas court also considered the petitioner’s claims that trial counsel improperly failed to call an expert witness to establish that the bullet had ricocheted off another object before hitting the victim and failed to establish the lack of the requisite intent, to commit murder. The petitioner, however, has not raised those issues on appeal.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. JEFFREY L. DONAHUE
    (AC 18606)
    Landau, Schaller and Daly, -Js.
    Argued February 23
    officially released May 25, 1999

      Kevin C. Connors, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Marie S. Solak, state’s attorney, and Roger Caridad, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Jeffrey Donahue, appeals from the judgment of conviction, rendered after the defendant entered a written conditional plea of nolo contendere, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. The sole issue on appeal is whether the police officer had a reasonable and arti-culable suspicion to justify stopping the defendant’s vehicle. We affirm the judgment of the trial court.

The facts are undisputed. On December 10, 1997, Sergeant Todd Lynch of the Connecticut state police was on routine patrol on Club Road in Windham. As a shift supervisor, Lynch normally would not be on street patrol. This area, however, had experienced a dramatic increase in criminal activity in the previous four to six weeks, which he was attempting to counteract with his help on patrol. Specifically, Lynch was patrolling a cemetery next to a public housing project located on Club Road where drug dealing and prostitution often took place. Individuals would often park their vehicles at the commercial establishments along Club Road and then walk through the cemetery into the housing project to engage in these illegal activities.

As Lynch was leaving the cemetery at approximately 1:50 a.m., he noticed a vehicle operated by the defendant turn abruptly from Club Road into the vacant parking lot of the French Club, a private social club that had closed for the evening. The defendant had a passenger with him in the car. As the defendant parked his vehicle and kept the engine running in the dimly lit and deserted parking lot directly across from the entrance to the cemetery, Lynch drove his vehicle across the street toward the defendant’s vehicle. By the time Lynch actually entered the French Club parking lot, the defendant had positioned his vehicle so that it was facing the exit of the parking lot. Lynch then made a U-turn in the parking lot so that he could approach the defendant’s vehicle from behind and activated his red, yellow and blue flashers, but not his light bar. Before exiting his vehicle, Lynch radioed the defendant’s license plate number to the Colchester barracks to find out whether the defendant’s vehicle was stolen and if there were any outstanding warrants for its registered owner. Lynch learned that the vehicle was neither reported stolen, nor were there any outstanding warrants.

Upon receiving this information, Lynch exited his vehicle and approached the defendant’s vehicle to ask the defendant for his license and registration. The defendant rolled down his window when he saw Lynch at his driver’s side window. At that point, Lynch detected alcohol on the defendant’s breath and, after the defendant failed a field sobriety test, Lynch arrested him for operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a. The defendant subsequently failed a chemical blood alcohol test, which resulted in the suspension of his motor vehicle operator’s license. This appeal followed.

The defendant claims that the trial court improperly denied his motion to suppress evidence obtained after his initial detention because the police officer lacked a reasonable and articulable suspicion to stop his vehicle. We disagree.

“[T]he principles of fundamental fairness that are the hallmark of due process permit a brief investigatory detention, even in the absence of probable cause, if the police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990); see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In determining the constitutional validity of an investigatory stop, both the United States Supreme Court and our Supreme Court require a balancing of the nature of the intrusion upon personal security against the importance of the government interest inducing that intrusion. United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985); State v. Mitchell, 204 Conn. 187, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). Our Supreme Court has also recognized the pervasive societal interest in the apprehension and punishment of drunken drivers and has found that balancing the circumscribed nature of a Terry stop intrusion against the serious risks of criminal behavior, especially in the context of the risks associated with driving while under the influence of intoxicating liquor . . . [brief detention] does not violate due process. State v. Lamme, supra, [184],

“In justifying the intrusion, 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. Terry v. Ohio, supra, [392 U.S.] 21; State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991); State v. Whitfield, 26 Conn. App. 103, 110, 599 A.2d 21 (1991). In evaluating the validity of such a stop, courts consider whether, in light of the totality of the circumstances—the whole picture, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); State v. Mitchell, supra, [204 Conn.] 195. Review of atrial court’s determination of whether a reasonable and articulable suspicion exists involves a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct. State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. State v. Cofield, supra [44].” (Internal quotation marks omitted.) Fishbein v. Kozlowski, 48 Conn. App. 552, 555-57, 711 A.2d 733, cert. granted on other grounds, 247 Conn. 901, 719 A.2d 902 (1998).

At 1:50 a.m., Lynch observed the defendant’s vehicle pull abruptly into a dimly lit, deserted parking lot in an area known for a recent increase in illicit drug sales, prostitution, theft, vandalism and assaults. Moreover, Lynch testified that he was patrolling Club Road specifically because his subordinate police officers needed help to respond to this increase in crime. Moreover, individuals would often park their vehicles along Club Road and walk across the cemetery into the public housing project to engage in drug dealing and prostitution. The defendant’s actions, therefore, were particularly consistent with the type of suspicious activity that often preceded such crime in this area.

Under these circumstances, Lynch had an objective basis to suspect that the defendant may have been involved in the crimes previously described. The facts of this case support the determination that a reasonable and articulable suspicion existed to justify the stop of the defendant’s vehicle. We conclude that the trial court properly denied the defendant’s motion to suppress as to this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant entered this plea conditioned on his right to appeal the trial court’s ruling. See General Statutes § 54-94a; Practice Book § 61-6.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense . . . if he operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The cemetery is located across the street from the French Club and is also near a golf course, several liquor establishments and a car dealership along Club Road. Specific criminal activity giving rise to the heightened attention at these establishments consisted of damaged vehicles, theft of car parts from the car dealership, theft of golf carts and two-way radios from the golf course and assaults at the French Club.

       On April 14, 1998, the defendant filed a motion to suppress seeking, inter alia, the suppression of the chemical blood test because it was not administered by a properly certified person. At the May 14,1998 suppression hearing, the state and the defendant stipulated that the officer conducting the chemical blood test was not properly certified at the time the test was administered. The trial court granted the defendant’s motion as it pertained to the results of the chemical blood test.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. VAN DORSEY
    (AC 17343)
    Foti, Spear and Sullivan, Js.
    Argued January 11
    officially released May 25, 1999

      Melvin A. Simon, special public defender, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Van Dorsey, appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes § 53-21. He claims that the trial court improperly (1) denied his request for production of the victim’s therapy records, (2) precluded him from cross-examining the victim’s mother regarding prior criminal complaints against the defendant and (3) precluded him from cross-examining the victim’s mother regarding her employment. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. For approximately five days in September, 1992, the victim, a nine year old child, stayed at the home of the defendant’s mother with the defendant and his two sons. The defendant was the boyfriend of the victim’s mother and the father of the victim’s two half-brothers. During this time, the defendant, his two sons and the victim slept together in a downstairs bedroom. In January, 1993, the victim reported that during the earlier visit, the defendant pulled down her pants and her underwear. He then put her on top of his lap and rubbed his genitals against her until he ejaculated. In August, 1993, the victim further reported that on the same night in September, 1992, while in bed with her two half-brothers, the defendant had removed his underwear, taken off her clothes, forced her to perform fellatio on him and ejaculated on her legs.

I

The defendant first claims that the trial court improperly denied his request for production of the victim’s therapy records. We disagree.

“Pursuant to our [Supreme Court’s] decisions in [State v. Bruno, 236 Conn. 514, 673 A.2d 1117 (1996)] and [State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984)], a defendant seeking access to privileged records that he believes contain information that would allow him to impeach a witness’ ability to comprehend, know or correctly relate the truth, must make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness.” (Internal quotation marks omitted.) State v. Castonguay, 218 Conn. 486, 505, 590 A.2d 901 (1991).

In the present case, the defendant claims that a letter from the victim’s therapist to the Bristol police department constituted a sufficient showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the victim’s testimony. The victim’s therapist wrote, in part, that the victim “has recently disclosed to me that she was molested by this man on two occasions and has provided me with specific information about these events. I am working with [the victim] on the importance of being truthful and clear with all professionals who are attempting to help her.” The defendant claims that this language clearly suggests inconsistencies in the reports of sexual assault made to the therapist and that the therapist believed that the victim’s ability to tell the truth was at issue. The defendant claims that the trial court should have conducted an in camera voir dire of the therapist’s records and should have granted the defendant an indefinite continuance in order to effectuate service on the therapist. These claims are without merit.

The defendant failed to provide a sufficient factual basis from which the trial court could conclude that there was a reasonable ground to believe that the victim’s records would reveal that at any pertinent time the mental unsoundness of the victim affected her ability to testify truthfully to a sufficient degree to warrant further inquiry. See State v. D’Ambrosio, 212 Conn. 50, 59, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990). He merely asserts that the victim’s truth telling ability was at issue. As such, the trial court properly denied the defendant’s request for production of the victim’s therapy records.

II

The defendant next claims that the trial court improperly refused to permit him to cross-examine the victim’s mother regarding bias. We are unpersuaded.

The defendant sought to cross-examine the victim’s mother regarding several complaints that she filed against the defendant where no arrests were made and no court action was taken. The trial court conducted an in camera review of those documents and determined that there was nothing relevant in any way to the present case. Accordingly, the trial court refused to turn over those documents to the defendant. The defendant claims that by refusing to turn over those documents, the trial court improperly precluded him from using them to cross-examine the victim’s mother.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . 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. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Thus, [t]he confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . . [Furthermore, the] trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . [Finally, the] proffering party bears the burden of establishing the relevance of the offered testimony.” (Citations omitted; internal quotation marks omitted.) State v. Andrews, 248 Conn. 1, 11-12, 726 A.2d 104 (1999). After a review of the record, briefs and exhibits, we conclude that the trial court did not abuse its discretion.

Ill

The defendant next claims that the trial court improperly precluded him from cross-examining the victim’s mother regarding her employment as an exotic dancer. On appeal, the defendant asserts that the victim could have learned about male anatomy from her mother’s workplace. This claim was not raised in the trial court and we therefore decline to review it. Practice Book § 60-5. We will, however, review the preclusion of cross-examination regarding employment as an exotic dancer.

The state made an oral motion in limine to preclude the defendant from questioning the victim’s mother about her employment as an exotic dancer. The defendant claimed this subject area was relevant to explain injury to the victim’s genitalia and to “de-bolster” the victim’s mother after the state characterized her as a college student. The trial court granted the state’s motion.

As we have noted, the proffering party bears the burden of establishing the relevance of the offered testimony. This the defendant failed to do. He simply speculated that the mother’s job as an exotic dancer must somehow be related to the damage to the victim’s hymen and that such a job necessarily adversely affects credibility. The trial court, therefore, did not abuse its discretion in precluding the defendant from cross-examining the victim’s mother about her employment as an exotic dancer.

The judgment is affirmed.

In this opinion the other judges concurred.

       During oral argument, the defendant agreed that the trial counsel, during trial, conceded that the letter itself was insufficient to meet the threshold under State v. Esposito, supra, 192 Conn. 166.


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. JEAN JACQUES
    (AC 17414)
    Landau, Schaller and Daly, Js.

      Argued February 23
    officially released June 1, 1999

      Avery S. Chapman, special public defender, for the appellant (defendant).

      Michael L. Regan, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Jean Jacques, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the trial court improperly (1) failed to suppress an inculpatory statement that he gave to the police, and (2) failed to grant his motion for acquittal on the basis that there was insufficient evidence to support either conviction. We affirm the judgment of the trial court.

After a hearing on the motion to suppress, the trial court reasonably could have found the following facts. On the evening of February 4, 1996, Nadia Joseph and her boyfriend Fresnel Eugene were at the apartment of Joseph’s brother on Franklin Street in Norwich. Also present were the defendant and a number of others, including two young Haitian males who had accompanied the defendant, one of whom was seen carrying what appeared to be a nine millimeter handgun. Sometime later that evening, Roland Conte, a friend of the defendant, approached Eugene and told him that the defendant was going to Eugene and Joseph’s apartment to spread voodoo powder. Eugene and Joseph were acquainted with the practices of voodoo, having witnessed those practices in Haiti and Brooklyn, New York. Fearing that the defendant’s exercise of voodoo powers would kill them, Joseph and Eugene left the apartment sometime between 8 and 8:30 p.m. Shortly thereafter, the defendant and his two Haitian friends also left the apartment.

Joseph and Eugene went to a store to purchase the ingredients for an antidote to the voodoo powder and proceeded to their apartment located within an apartment complex at 495 Laurel Hill Road, Norwich. Upon arriving at their apartment, Eugene and Joseph observed the defendant and his two friends enter another apartment in the same building. The defendant was wearing jeans and a hat. Joseph and Eugene entered their apartment, prepared the antidote and spread it outside their apartment. Thereafter, Joseph and Eugene left their apartment and proceeded toward their car. At that point, they were confronted by the defendant, and his two friends.

The defendant pulled out a gun and pointed it at Joseph and Eugene. As Eugene walked toward the defendant’s two friends, the defendant shot him in the back of his head and he collapsed. Joseph then fought with the defendant who hit her face and chest with his gun. As Joseph fell, she heard one of the defendant’s friends shout in Creole, “Shoot the girl so she won’t talk.” Joseph then felt what she believed was a bullet strike her. The next thing she remembers is hearing sirens and being aware of the presence of the police. En route to a hospital, Joseph regained consciousness but spoke unintelligibly to the police. At the hospital, her treating physician asked her who had shot her and she eventually said “Jean-Yves,” the defendant, who was her sister’s boyfriend.

On February 5, 1996, shortly after midnight, the Norwich police arrested the defendant and transported him to the police station. After the police advised him of his Miranda rights, the defendant made inculpatory statements to the police. Specifically, the defendant indicated to the police that he was present when the homicide occurred, but was not involved with the commission of the crime. Prior to the commencement of trial, the defendant moved to suppress his statements. The trial court denied the motion, finding that the defendant had not asserted a right to counsel and that the defendant had understood and waived his constitutional privilege against self-incrimination. At the conclusion of the trial, the jury found the defendant guilty on the charges of criminal attempt to commit murder and carrying a pistol without a permit. This appeal followed. Additional facts will be discussed where relevant to the issues in this appeal.

I

The defendant first claims that the trial court improperly failed to suppress an inculpatory oral statement made by him during a custodial interrogation; that is, his statement was made when he was in police custody and it was in response to questioning that was reasonably likely to elicit an incriminating response. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Specifically, the defendant claims that because of a language barrier, he received inadequate constitutional warnings from the police officers, as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). As such, he claims that the state failed to prove by a preponderance of the evidence that he validly waived his right to silence and his right to counsel in violation of the fifth, sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the constitution of Connecticut. We are not persuaded.

Our standard of review is well established. “On appeal, in order to determine whether the defendant’s constitutional rights have been infringed, we review the record in its entirety and are not limited to the evidence before the trial court at the time the ruling admitting the statements was made.” State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986).

The following additional facts are necessary for our resolution of this claim. The defendant, who was twenty-three years old at the time of his arrest, was bom in Haiti where he graduated from high school. He had been in the United States for six years. For the year preceding his arrest, the defendant owned a clothing store in Norwich and was a salesperson there. His customers were predominately English speaking and his limited fluency in English did not interfere with his work.

On the evening of February 4, 1996, around 10 p.m., the police located the defendant at his apartment within the complex where the shooting had occurred. When the police inquired as to whether the defendant had a gun, the defendant replied in English, “No.” The police told the defendant to get dressed and then escorted him from the apartment. Once they were outside, the police handcuffed the defendant, placed him in a police vehicle and transported him to the police station where he was booked. Because the defendant appeared to follow all of the instructions, which the police officers gave in English, the police did not note any language difficulty at that time.

Shortly after arriving at the station, Detective James Daigle performed gunshot residue tests on the defendant’s hands, which took about ten minutes. During this time, Daigle questioned and instructed the defendant in English and the defendant responsed appropriately. There was no communication problem during this conversation. Thereafter, Daigle advised the defendant in English of his Miranda rights. The defendant acknowledged the advisement of rights by signing a standard notice of rights form. At this point, the defendant was no longer handcuffed.

Thereafter, the investigator, Joseph Russo, decided it would be prudent to get an interpreter to avoid any language consideration in the future and to ensure that there would be no misunderstanding. Russo requested that state trooper Richard Alexandre act as interpreter. Alexandre, who is of Haitian descent, has spoken Haitian Creole for approximately thirty years. While waiting for Alexandre to arrive, Russo processed the defendant and questioned him about his medical and personal history. Russo asked the questions in English and the defendant responded in English. The defendant did not appear to be confused or uncooperative and denied using alcohol, drugs or tranquilizers. The defendant testified at the suppression hearing that when Russo inquired as to his family history, the conversation did not take long because he “could understand what [Russo was] saying.”

Prior to Alexandre’s arrival, the defendant was not questioned regarding his activities the previous day. Before 4 a.m., Russo questioned the defendant with the assistance of Alexandre. Alexandre reread each Miranda right to the defendant in English from a standard notice of rights form and then translated it into Haitian Creole. The defendant signed the form after each advisement and thereafter signed the waiver. During the interview, which lasted until about 11 a.m., the defendant was allowed three breaks. The officers provided the defendant with food and beverage, and allowed the defendant the use of the bathroom. The defendant was alert, promptly answered the questions and did not appear to be under the influence of drugs or alcohol. The defendant neither requested that the questioning cease nor did he request an attorney.

“In order to show that the defendant waived his privilege against self-incrimination, the state must prove by a preponderance of the evidence that he knowingly and intelligently waived his constitutional right to remain silent. . . . The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. . . . [T]he question of waiver must be determined on the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. . . . The issue of waiver is factual, but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. . . .

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings ... his level of intelligence, including his IQ . . . his age . . . his level of education ... his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication ... his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Citations omitted; internal quotation marks omitted.) State v. Toste, supra, 198 Conn. 579-81.

Reviewing the record in this case in light of those factors, we find that the state has met its burden of showing that the defendant had the capacity to understand the meaning of his constitutional rights. The defendant is an adult who graduated from high school in Haiti and had been in the United States for six years. The defendant testified that he could read some English and that he owned and operated a retail clothing store in Norwich. The defendant had no apparent difficulty communicating with the officers, indicating on multiple occasions that he understood his rights. There was also no evidence that the defendant’s emotional state impaired his ability to understand his rights.

The defendant, therefore, was fully aware that he had the right not to answer questions and that, if he chose to answer questions, he had the right to stop answering them at any time and to have an attorney present during the questioning. Testimony as to whether the defendant requested an attorney was conflicting. The defendant’s testimony at the hearing that he requested an attorney, although discredited by the trial court, suggests, to some degree, that he was familiar with his rights. See State v. Whitaker, 215 Conn. 739, 755, 578 A.2d 1031 (1990). Furthermore, there was no evidence that the defendant was intoxicated when he made the incriminating statements; in fact, testimony revealed that he was alert and did not appear to be under the influence of drugs or alcohol.

The state must also prove by a fair preponderance of the evidence that the defendant’s waiver of his rights was voluntary. State v. DaEria, 51 Conn. App. 149, 169, 721 A.2d 539 (1998). “A statement is voluntary if it is the product of an essentially free and unconstrained choice by its maker . . . [i]f it is, if he has willed to [make a statement], it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his [statement] offends due process.” (Citation omitted; internal quotation marks omitted.) State v. Huckaby, 47 Conn. App. 523, 529, 706 A.2d 16 (1998). Our review of the record in this case reveals no evidence from which the trial court could infer that the police used threats or any other coercive tactic to elicit the waiver of the inculpatory statement. Therefore, we conclude that the defendant’s waiver was voluntary. See State v. DaEria, supra, 169 (police overreaching crucial element in inquiry into constitutional voluntariness).

Although there was substantial evidence before the trial court to support the finding that the defendant understood his Miranda rights and that he waived those rights, “[w]aiver is not conclusively established by demonstrating that Miranda warnings were given and understood. ... In the absence of an express waiver, the state bears the heavy burden of demonstrating, as a matter of fact, that waiver can be clearly inferred from the actions and words of the person interrogated.” (Citations omitted; internal quotation marks omitted.) State v. Toste, supra, 198 Conn. 582.

A review of the record in this case reveals that there was substantial evidence that the defendant, “through his actions and words waived his right to remain silent.” Id., 583. The police officers read each right to the defendant from a standard notice of rights form, which the defendant signed, thereby acknowledging that he understood his rights. Having been fully apprised of his rights, the defendant answered questions and made inculpatory statements. His responses were inconsistent but detailed. The lack of hesitancy to speak at that time presents some indicia that the defendant desired to speak and to waive his rights. See id. The evidence established that he was not coerced into responding; the officers made no promises or threats. Testimony revealed that the defendant was not handcuffed at the time of the interview, nor was he under the influence of any drug or emotional strain. “[T]he [Miranda] warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an act of free will.” (Internal quotation marks omitted.) Ahmad v. Redman, 782 F.2d 409, 413 (3d Cir.), cert. denied, 479 U.S. 831, 107 S. Ct. 119, 93 L. Ed. 2d 66 (1986). The defendant “never expressed any desire to remain silent or that the officers stop asking him questions.” State v. Aversa, 197 Conn. 685, 696, 501 A.2d 370 (1985). “Under these circumstances, the defendant’s expressed willingness to speak constituted an explicit affirmative act evidencing waiver . . . .” (Internal quotation marks omitted.) State v. Toste, supra, 198 Conn. 583. Accordingly, we conclude that the trial court properly admitted the defendant’s inculpatory statements.

II

The defendant also asserts that the evidence presented at his trial was insufficient to support his conviction of criminal attempt to commit murder in violation of §§ 53a-49 (a) (2) and 53a-54a, and carrying a pistol without a permit in violation of § 29-35 (a). We are not persuaded.

The following additional facts are necessary for the resolution of this claim. On the evening of February 4, 1996, various residents of the apartment complex observed what appeared to be a black male wearing a loose fitting hat in the parking lot area striking something with a small object he held. Three or four additional persons were observed in the immediate area. The individuals were arguing and swearing in French. One of these persons was a woman who was observed pushing Joseph to the ground. Shortly after 9 p.m., the residents heard gunshots emanating from the direction of the parking lot. Officer James Veiga responded to the scene at approximately 9:12 p.m. and observed Eugene lying on the ground, his head in a pool of blood, exhibiting no signs of life. Near him was Joseph, who was nonresponsive but breathing. Gunpowder in the area of the injury on the right side of her head indicated that Joseph had been shot.

After the police arrested and booked the defendant, they brought him into an interview room where an investigator noticed a blood-like substance on the defendant’s blue jeans. The police seized the jeans as evidence. Thereafter, the defendant executed a written waiver of his Miranda rights. The defendant then gave inconsistent responses to questions about his activities on February 4, 1996, and about the blood on his jeans. The defendant first indicated that he had left Joseph’s brother’s apartment only once, but had not left the Franklin Street area. Later, however, the defendant admitted having been at the apartment complex where the shooting had occurred with three Jamaicans and one Haitian from New York, along with Joseph and Eugene, to consummate a drug transaction. He claimed that a dispute ensued at the victim’s apartment and one of the New York drug dealers shot Eugene and another assaulted Joseph. The defendant indicated that during the attack he remained in the car. Once the attack was over, the defendant claimed that he exited the car and ran over to Joseph. The defendant, after lifting Joseph’s head and seeing her eyes roll back, ran away.

When the police questioned the defendant about the blood on his jeans, the defendant again gave inconsistent answers. The defendant first stated that he was unaware of how the blood got there. His second response, however, was that a cut on his right leg or ankle had caused the stain. The defendant’s third response was that his girlfriend was menstruating. The defendant’s final account was that the blood got on his pants when he lifted Joseph’s head.

The police seized a number of evidentiary items at the homicide scene, including a nine millimeter magazine with six live rounds, a gunsight covered with a blood-like substance, a spring-like object and live nine millimeter rounds. All were from an AA Arms Model AP970 automatic pistol which, from all outward appearances, was almost exactly that of a TEC-9. Approximately one month before the shooting, the defendant was seen with a gun that appeared to be a TEC-9.

Deborah Messina, a state criminalist, testified about the blood evidence found on the gunsight and on the defendant’s jeans. The blood on the gunsight was human blood consistent with type O, which was Joseph’s type. The blood on the defendant’s pants was human, but Messina was unable to type it because the amount was too small. The bloodstain pattern was made up of twenty-four high velocity blood spatters on the lower right front of the jeans, consistent with a gunshot. Blood spattering from an entrance wound, also referred to as back spatter, sprays backward toward the weapon and the individual. Blood spatter will travel approximately three to four feet from an entrance wound.

The standards by which we review claims of insufficient evidence are well established. “When reviewing a sufficiency of the evidence claim, our courts apply a two-prong 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. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . .

“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. . . . Furthermore, [t]his court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .

“It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Sanchez, 50 Conn. App. 145, 149-51, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

Initially, the defendant claims that there was insufficient evidence to prove him guilty of attempt to commit murder in violation of §§ 53a-49 (a) (2) and 53a-54a. We disagree.

“Under ... § 53a-49 (a) (2), [a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. . . . Furthermore, the actor’s intent can be inferred from his or her verbal or physical conduct and the surrounding circumstances. . . . [T]he attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption ... or for other extrinsic cause.” (Citations omitted; internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 774-75, 601 A.2d 521 (1992).

Our review of the evidence reveals that the jury reasonably could have found that the defendant intended to kill Joseph and that his actions constituted a substantial step toward achieving that end. Joseph testified that the defendant beat her on her face and chest with his gun and then shot her in the head. Joseph’s head wound contained gunpowder residue that indicated the weapon was discharged from less than three feet. Moreover, Joseph’s blood was found on the gunsight and on the defendant’s pants. “ [0]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996). This is such a case. Moreover, the jury was free to infer an intent to kill from the defendant’s failure to assist Joseph after the shooting. See id. Accordingly, we conclude that there was ample evidence in the record whereby the jury reasonably could have found that the defendant intended to kill Joseph.

The defendant next claims that there was insufficient evidence to support his conviction of carrying a pistol without a permit in violation of § 29-35 (a). Again, we disagree.

Although the weapon used by the defendant was never recovered, pieces of a weapon were recovered. The parts recovered were from the gun that appeared to be the same as a gun that the defendant was observed to have had about a month prior to the homicide. Photographs of a similar weapon entered into evidence indicated that the barrel length was less than twelve inches. Moreover, testimony revealed that the state of Connecticut never issued the defendant a pistol permit. We conclude, therefore, that there was ample evidence in the record from which the juiy reasonably could have concluded that the defendant violated § 29-35 (a).

Finally, in a brief bereft of facts or legal citations, the defendant appears to argue that because the jury acquitted him on the charge of murder as to Eugene, the jury’s verdicts are inconsistent and this court should, therefore, invalidate the jury’s guilty verdicts on both counts. The offenses charged contain different elements and, of more importance, involve different victims. A conviction on the charge of attempted murder of Joseph is not inconsistent with an acquittal on the charge of murder of Eugene. See State v. Milner, 46 Conn. App. 118, 122-23, 699 A.2d 1022 (1997). It is axiomatic that a jury verdict may not be overturned on the ground that a conviction on one count is factually inconsistent with an acquittal on another count. This principle of judicial review, that “ [consistency in the verdict is not necessary,” was first ruled on in Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932). Our Supreme Court has ruled in accordance with Dunn. See, e.g., State v. Martin, 189 Conn. 1, 6, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983). Because the offenses contain different elements, in addition to different victims, we conclude that the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant is also known as Jean-Yves Jean-Jacques.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-54aprovides in relevant part: “(a)Apersonisguilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 29-35 provides in relevant part: “(a) 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 issued as provided in section 29-28. ...”

         The ingredients for the antidote were vinegar, lemon, water and strawberries.

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

       The defendant’s statements to the police are more fully discussed in part II of this opinion.

       The defendant was charged with the murder of Eugene in violation of § 53a-54a, but was acquitted at trial.

       “Because the defendant did not advance a separate state constitutional argument, we will limit our analysis to federal constitutional grounds.” State v. Guess, 39 Conn. App. 224, 231, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995).

       Daigle was familiar with the defendant, having conversed in English with him on previous occasions when he conducted drug investigations in the Franklin Street area.

       Russo was unable to secure a court appointed interpreter. Furthermore, Russo contacted the United States Immigration and Naturalization Service and was informed that an interpreter would have to be provided from its New York office, which Russo concluded would not be appropriate.

       The trial court found Alexandre to be fluent in Haitian Creole.

       Because we conclude that the trial court's finding that the defendant validly waived his Miranda rights was not clearly erroneous, we need not separately address the defendant’s claim that he was denied his right to counsel.