author: Foti, J. O’Connell, J.,

text:
    State of Connecticut v. Scott Cavell
    (10605)
    O’Connell, Foti and Heiman, Js.

      Argued November 8, 1993
    decision released May 10, 1994

      Richard Emanuel, assistant public defender, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John M. Massameno, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70. The defendant claims that the trial court improperly (1) allowed the state to present rebuttal evidence, and, alternatively, precluded the defense from presenting surrebuttal evidence, (2) excluded certain testimonial evidence, and (3) instructed the jury. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim lived with her husband and their four children in a house owned by her mother in Cheshire. On the evening of May 3, 1990, the victim became involved in an argument with her mother. Following the disagreement, she left the house with her children and began driving to her grandmother’s house. The police, who had been contacted by a family member, stopped her vehicle and arrested her for disorderly conduct and criminal mischief. The children were taken home and the victim was taken to the police station.

After being processed, the victim was unable to contact her husband and called a friend, who picked her up at the police station. The police had advised her against returning home until things had cooled off, so her friend dropped her off at a local bar about midnight. She again unsuccessfully attempted to contact her husband by telephone. She ordered a drink at the bar and began talking about her arrest to the defendant, whom she did not know. He introduced her to his girlfriend who had just arrived at the bar. The victim told the defendant that she was unable to locate her husband for a ride home and accepted the defendant’s offer of a ride. As the three left the bar, the victim realized that the defendant and his girlfriend were in separate cars. The defendant told his girlfriend that he was going to drive the victim home and would meet her at her house in about ten minutes.

As the defendant pulled out of the parking lot with the victim as a passenger in his car, he was stopped by the police and received a verbal warning because one of the car’s lights was inoperative. As the defendant drove, the victim gave him directions to her house, but he turned instead onto a gravel road leading to the Southington Sportsmen’s Club. The defendant parked the car in front of the dark clubhouse, walked around to the passenger door and asked the victim to get out. When she refused, he grabbed her by the hair, pulled her out of the car and dragged her across the parking lot to a pile of leaves. He overcame her resistance and put his penis in her mouth. She distracted him by saying someone was standing behind him, and when he jumped up to look, she ran to the car. The defendant followed her, grabbed her by the throat, hit her and threatened to kill her. He stated that if she resisted, he would sexually assault her with a beer bottle. He then had vaginal intercourse with her on the passenger side of the front seat. Thereafter, the defendant drove the victim home. As she exited the vehicle, she noted the license plate number and called the police.

I

The defendant’s first claim is bifurcated. He initially claims that the trial court improperly allowed the state to present forensic evidence in rebuttal that should have been presented as evidence only in the case-in-chief. Second, the defendant claims that if that evidence was properly admitted, the court improperly prevented him from presenting surrebuttal evidence.

At trial, the defendant testified that it was the victim who had asked him to take her someplace secluded and that she had consented to intercourse. He further testified that the sexual intercourse had taken place in a leafy area on the ground away from the car. He stated that on the ride back to her house, she had pulled leaves and debris out of her hair with her fingers because she did not have a comb or brush. During cross-examination, the defendant denied having had intercourse with the victim in the front seat of the car.

The defense case took eight days beginning May 15, and ending May 29, 1991. The defendant testified on May 20, 21, and 22. On the final day of defense testimony, the assistant state’s attorney announced that he had just handed defense counsel a one page forensic report that had been received the previous day from the state criminal forensic laboratory in Meriden. Although there had been evidence presented that hair and vegetative material had been found on the front seat of the automobile, no tests had been made on the stain on the cover of the front seat. The day following the defendant’s testimony, the state had the stain tested and offered the result of that forensic report as rebuttal evidence. The defendant objected, arguing that such evidence constituted an unfair surprise and would be highly prejudicial. The state argued that because consent was the defense to the allegations of sexual assault, the fact that sexual intercourse had occurred had not previously been disputed. It was not until the defendant denied the victim’s account that he had ejaculated in the front seat that the issues arose as to where the intercourse had occurred and the credibility of both parties.

The court inquired as to how the defense would have altered its posture in the case had it received the forensic report earlier or had the results been presented by the state in its case-in-chief. Defense counsel indicated that he could have had the seat tested independently and may have had the defendant testify with regard to sexual activity in the front seat at other times. The court overruled the defendant’s objection to allowing the rebuttal evidence and noted that had the results been negative, they would have had to have been disclosed to the defendant as exculpatory material, obviating the need for an independent test. The court also refused to rule on the defendant’s request for permission to put on surrebuttal evidence at that time, but indicated that it would await cross-examination of the witness presenting the rebuttal evidence and consider whatever the defendant wished to present as surrebuttal through an offer of proof.

The rebuttal evidence consisted primarily of the testimony of a criminologist at the state laboratory that the front seat stain tested positive for the presence of semen and that spermatozoa in the stain were consistent with the defendant’s blood type. On cross-examination, the witness indicated that there was no way to determine the age of the stain, that 36 percent of the population have the defendant’s blood type, and that no attempt had been made to determine whether the vehicle had prior owners or whether any sexual activity had taken place on that front seat prior to the assault. The witness also indicated that no instruction had been given, prior to May 23,1991, not to perform tests on the stain.

A

The defendant alleges that the court abused its discretion in permitting the state to introduce the rebuttal evidence. We do not agree.

“ ‘[Rjebuttal evidence is that which refutes the evidence presented by the defense, rather than that which merely bolsters the state’s case . . . State v. Williamson, 206 Conn. 685, 698, 539 A.2d 561 (1988); State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982); State v. Young, 29 Conn. App. 754, 763, 618 A.2d 65 (1992) , cert. denied, 225 Conn. 904, 621 A.2d 287 (1993) ; State v. Maxwell, 29 Conn. App. 704, 715, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, U.S. , 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993). “Rebuttal evidence is usually confined to testimony which is directed at refuting the evidence given by the defendant ... or is in general contradiction of the testimony given by the defendant .... The admission of rebuttal evidence is ordinarily within the sound discretion of the trial court. ...” (Citations omitted; internal quotation marks omitted.) State v. Canty, 223 Conn. 703, 715-16, 613 A.2d 1287 (1992); see also State v. Williamson, supra, 697-98. A trial court is vested with broad discretion in determining the relevance and admissibility of evidence. State v. Bunkley, 202 Conn. 629, 648-49, 522 A.2d 795 (1987). Further, every reasonable presumption will be given in favor of upholding the court’s ruling when ascertaining if the ruling amounted to an abuse of discretion. State v. Colon, 28 Conn. App. 231, 236, 611 A.2d 902, cert. denied, 223 Conn. 922, 614 A.2d 827 (1992).

The defendant principally argues that the evidence should have been presented in the state’s case-in-chief and not as “rebuttal.” We cannot conclude that merely because evidence is admissible during the case-in-chief it is inadmissible on rebuttal. The defendant acknowledges this, but argues that admission of this rebuttal evidence was improper in light of the relevant circumstances. Specifically, he cites “the introduction of other related forensic evidence in the case in chief, the questionable probative value of the evidence, the reason for the unavailability of the forensic evidence during the case in chief, and the very late disclosure of the results to the defense.” He claims that this clearly made the forensic evidence testimony admissible in the case-in-chief and not properly admissible as rebuttal evidence. We do not agree.

The state presented sufficient evidence in its casein-chief for a prima facie showing of a violation of the criminal statute. The rebuttal evidence was neither necessary for the state’s case-in-chief nor introduced to bolster that case. None of the evidence in rebuttal was probative of whether the act of sexual intercourse had occurred or whether there was a lack of consent to the sexual intercourse. Rather, it was probative of the place where the act occurred, which addressed the issue of the credibility of the victim and the defendant. It was not until the defendant refuted the victim’s testimony that intercourse had taken place in the car, together with other defense evidence tending to show that the victim’s injuries could have been caused on the ground, that the forensic evidence became relevant to refute that evidence. Under these circumstances, it was well within the discretion of the trial court to allow the evidence in rebuttal.

B

The second part of the defendant’s claim is that, if the trial court properly allowed the evidence as rebuttal, it improperly refused to allow the defense surrebuttal.

As discussed in part I A of this opinion, the admission or exclusion of rebuttal or surrebuttal evidence lies in the sound discretion of the trial court. See State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986); State v. Lisella, supra, 187 Conn. 337; State v. Nims, 180 Conn. 589, 599, 430 A.2d 1306 (1980); State v. Palozie, 165 Conn. 288, 299, 334 A.2d 468 (1973); State v. Leopold, 110 Conn. 55, 67, 147 A. 118 (1929).

The record is clear that when ruling to allow the rebuttal evidence by the state, the trial court made no ruling disallowing surrebuttal. When asked about allowing surrebuttal, the court stated: “There’s no ruling on that. I’ll see what the cross-examination develops and I’ll see what kind of an offer of proof you have as to what you’re talking about on surrebuttal. Those are very unusual circumstances and only if the court could be absolutely satisfied that you were somehow impaired and impeded from presenting a full and effective defense would the court then consider it and only if I thought some manner of bona fide surprise had resulted.

“But you understand that [the victim] testified about six, seven weeks ago and she testified at great length that the hair on her head was extracted during the dragging and during the interaction on the front seat of that car. She also testified that the intercourse occurred on the front seat of the car.

“Now to the extent that the automobile was there, and that the seats were available for examination by the defense at any time in the last six weeks, the defense could have requested that scientific testing be done by its own laboratories and that seat would have been made available so that they could have determined that [the victim’s] story was incorrect. Now once [the victim] testified that vaginal intercourse has occurred in the front seat, the defense could have taken advantage of the fact that no semen or spermatozoa or stains were to be found in the entire front seat area of the car, but they elected not to do so and they elected to rest upon the defendant’s testimony that any ejaculation occurred seventy-two feet away from the car. Once the defendant testified, he then opened himself to an attack on rebuttal by any physical or scientific or forensic evidence that could refute his testimony. The court finds absolutely no bad faith on the part of the state’s attorney’s office.”

The defendant cross-examined the state’s rebuttal witness and established that the stain could have been on the seat “forever,” even at the time the car was manufactured, that there was no way to determine the age of the stain, or whether it resulted from this or other sexual activity. Thereafter, the defendant’s counsel requested surrebuttal, but made no offer of proof, did not request permission to make an offer of proof, and did not identify any witnesses he proposed to call, including the defendant. The record indicates the following:

“[Defense Counsel]: In light of the rebuttal, specifically with regard to the portion of the front seat that was introduced .... What I meant, Your Honor, is that they had it [the seat] in their possession. It’s indicated ‘stains’ on the evidence sticker and, in fact, nothing is done with regard to the stains until . . . the very last day after we’ve rested our case, we’re given a supplemental forensic report indicating that, in fact, a test was done with regard to the stains and indicating there was some evidence of spermatozoa on the front seat. It was very damaging testimony as far as the defendant is concerned so I would ask the court to allow the defense to submit evidence in surrebuttal of that particular item; it would be limited to that, Your Honor.

“The Court: Your purpose would be to have a laboratory examine all items?

“[Defense Counsel]: If possible, Your Honor

“The Court: Have you contacted a laboratory?

“[Defense Counsel]: No, I have not.

“The Court: Clearly, it would be such a disruptive breach of the trial process, I’ll comment in a few minutes, but I thought the cross-examination clearly and carefully protected the defendant’s posture.”

Thereafter the court denied the defendant’s request for surrebuttal and commented as follows: “The point clearly is that once you rest, your case has been concluded and to suggest that there was a surprise on rebuttal while you had in your possession the supplemental forensic report as pertains to the spermatozoa stain on the front passenger seat of the car before you rested and then to argue that you were surprised on rebuttal simply is without merit and flawed. Let me make the following observation as I feel required to do so.

“First, at this juncture a request for a surrebuttal is an extraordinary measure rarely recognized in our state. Defense has presented no legal authority to warrant the exercise of such an extraordinary measure. Second, this case has extended over a period of two months. Part of the reason for that extension is a two week recess which was granted to the defense without preparation after the jury was selected. The court notes that the victim in this case was cross-examined for a period of nearly five days. The defense of consent was announced prior to taking testimony in this trial. The victim six weeks ago testified that vaginal intercourse occurred in the right front passenger seat of the defendant’s car and that the defendant ejaculated semen during the vaginal intercourse. This knowledge was made available to the defendant more than six weeks ago.

“Six weeks ago the defense was aware that the defendant would testify that the vaginal intercourse occurred seventy feet away from the car in the so-called leafy area. Now, our Practice Book allowed the defendant the right to scientifically examine the front passenger seat. In view of the victim’s testimony, such an examination should have been requested six weeks ago. No request has been made until this very moment or sometime yesterday.

“The examination of the front passenger seat by the state was as a consequence of the defendant’s testimony that the vaginal intercourse occurred in the leafy area and not the car. The state was always aware that the defense would be consent and was never alerted or aware that there would be a discrepancy in the testimony of the victim or the testimony of the defendant as to where the vaginal intercourse occurred.

“The state was unaware until the defendant testified on or about May 23, 1991, that the vaginal intercourse resulted in the leafy area. Thereafter, the state took prompt measures to examine the seat for evidence of sperm. The supplemental forensic report was turned over to defense counsel at the earliest possible date. In undertaking that scientific examination, the state assumed the calculated risk. Had the front passenger seat shown no traces of sperm, this evidence could have been treated as exculpatory and the defense surely would have used this state experiment to support the defendant’s version and attack the victim’s version of what transpired that evening. The cross-examination of [the state’s] rebuttal witness was effective and established that, one, the authorship of the sperm could not be specifically identified and, two, the evidence of sperm could have been there indefinitely, raising the implication that it was deposited there at an earlier time or at a time prior to May 4, 1990.

“Finally, surrebuttal is required only when there is a manifest act of injustice reaching constitutional proportions. Because the state exercised good faith, because the experiment could have fallen either way, and especially because the defense had substantial advance notice to early resolve this issue, the motion for surrebuttal is denied and exception for the record is noted.”

The trial court, taking into consideration the defendant’s cross-examination of the state’s rebuttal witness, in effect determined that the defendant had not been unduly surprised in that there was no bad faith on the part of the state’s attorney in failing to have the stain tested earlier. The defendant made no definite request, nor suggested a definite period for a continuance to accomplish what he intended in response to the rebuttal testimony. He had not looked into the possibility of an additional forensic test at that time, nor did he specifically request permission to submit surrebuttal evidence consisting of testimony relating to other sexual activity in the car. The record discloses no offer of proof, nor a request to present any specific rebuttal evidence.

Even if we were to assume that the defendant’s actions were sufficient and the evidence proffered was relevant and material to the defendant’s credibility, “the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . Our review is limited to whether the trial court’s ruling exceeded the latitude accorded its discretion in such matters. . . . Every reasonable presumption should be given in favor of the trial court’s ruling. ...” (Citations omitted; internal quotation marks omitted.) State v. Sierra, 213 Conn. 422, 434-35, 568 A.2d 448 (1990). We cannot conclude, after a review of the record, that the trial court abused its discretion by not allowing surrebuttal evidence.

II

The defendant next claims that the trial court improperly excluded the testimony of an expert witness because of an alleged violation of a sequestration order. The defendant argues that the trial court improperly-found a violation, or imposed an excessive sanction for that violation. We conclude that any error was harmless under the particular circumstances of this case.

The following facts are relevant to this claim. Prior to the presentation of evidence, neither the state nor the defense moved for an order of sequestration. The trial commenced after a specific inquiry by the court regarding a motion for sequestration of witnesses. Among the witnesses called by the state were Sultan Quarishi, the emergency room physician who examined the victim after the assault, and Officer Clifford Saucier of the Southington police department, who took the victim’s formal statement.

After the state had rested, the defense asked that the state be prohibited from having Saucier sit next to the state’s attorney at counsel table. The state’s attorney pointed out that there was no sequestration order in the case, that Saucier had functioned as an “adjunct assistant” in the office of the state’s attorney in the past, and that the assigned inspector was on vacation.

The trial court expressed reluctance to require the prosecution to proceed without an assistant and stated that, in the absence of a sequestration order, a cautionary instruction to the jury would be sufficient to remove the possibility that the presence of Saucier at counsel table would cause the jury to accord any greater weight to his earlier testimony. The defendant then requested an order of sequestration pursuant to Practice Book § 876, which the court granted. The state thereupon requested a mutual sequestration order. The court entered the following order which exceeded the state’s request: “[M]y sequestration order will apply to witnesses both for the state and for the defense. Also, as to those witnesses that testified previously and/or may testify in the future. The sequestration order, because it’s now affecting a witness who has already testified for the state will also apply for the defense. Those witnesses who have testified for the defense will not be allowed access into this courtroom while the case is on trial so that the application is made fairly to both sides. Then, of course, the order should include that no witness who has concluded testifying, and the attorneys will so advise them, not to communicate with any other witnesses as to what they were asked or what they answered.”

During the defendant’s case-in-chief, he called as a witness Michael Conroy. After testifying as to his credentials as a surgeon, Conroy testified that he had reviewed the victim’s medical records. The state asked for an offer of proof regarding Conroy’s anticipated testimony. During the offer of proof, Conroy testified that he visited the Southington Sportsmen’s Club, viewed a leafy area some distance from the parking area, reviewed the photographs of the victim, and reviewed the testimony of Quarishi.

Conroy was then asked whether, on the basis of these reviews, he could render an opinion as to whether the injuries sustained by the victim were consistent with her having had active sexual intercourse in the area viewed by him at the club. He responded that he could render an opinion that the injuries sustained by the victim were consistent with active sexual intercourse. He also stated that he did not think the injuries were consistent with the victim’s having been pulled head first, because that type of motion would have caused her shirt to stay down, keeping her back protected.

Following the voir dire, the assistant state’s attorney pointed out that Conroy had admitted to having reviewed the testimony of a prior witness in violation of the sequestration order. The state asked that, as a sanction, Conroy not be permitted to testify. The court granted the state’s request and determined that, because of the various days of court recess, defense counsel would have nine days in which to locate another medical expert. The trial court then recalled the jury and had the testimony of Conroy stricken. The jury was not told the reason for striking the testimony, only that Conroy could not testify.

On May 29, the defense called a surgeon, Jack Huse, as a witness. Huse testified that he had reviewed the victim’s medical records, photographs of the victim and that he had gone to the Sportsmen’s Club to examine the terrain in an area indicated by the defendant. He testified that the victim’s injuries were consistent with active sexual intercourse on the ground, stating: “You’re looking at activities which involved a variation in positioning of the body, and activities could have caused the body to come in contact with the terrain that we’ve recently seen, and then injuries that are certainly consistent with that terrain and the activities that have been described.”

Huse stated that, assuming the victim had a blood alcohol level of approximately 0.20 percent at the time of the sexual activity, her ability to perceive pain would have been diminished. He also expressed an opinion that the hair found in the defendant’s car could have come from the victim’s running her hands through her hair to remove debris, not from forceful pulling. Huse testified additionally that it is very difficult to drag someone by the hair from behind, and that it would have been difficult for the victim to have sustained the back injuries she suffered in this manner.

The defendant claims that the exclusion of Conroy’s testimony violated his right to present a defense under the federal and state constitutions. As we have said, “[e]ven were we to decide that the trial court’s remedy was excessive under these circumstances, the striking of [the witness’] testimony was harmless since its substance was presented by [another witness]. . . .We conclude, accordingly, that the remedy applied by the trial court for a violation of its sequestration order did not deprive the defendant of [his] constitutional rights.” State v. Crumble, 24 Conn. App. 57, 62, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991). Because we determine that if any error did occur, it was harmless, we need not determine whether the trial court improperly found a violation of its sequestration order, or whether the court imposed an excessive sanction by excluding Conroy’s testimony.

The defendant argues that, even if the voir dire testimony of Conroy was facially identical to the actual testimony of Huse before the jury, the comparison is not a true one. The defendant argues that expert witnesses are not fungible, that one witness may have more “presence” and greater credibility than another, and may be viewed by the trier of fact as more persuasive.

We agree that doctors are not fungible, but Conroy and Huse were very similar for the purposes of testifying for the defense. Both are surgeons and neither had any particular expertise in crime scene reconstruction. We have reviewed the record, including the defendant’s offer of proof as to the essence of Conroy’s testimony. The record supports the trial court’s determination that the testimony the defendant was seeking to introduce through Conroy was that the victim’s injuries were consistent with active sexual intercourse and were not necessarily the product of force. This testimony was introduced through the substituted testimony of Huse. Because the testimony of Huse was equivalent to that intended by Conroy, the exclusion of Conroy’s testimony, even if improper, was not harmful error.

We cannot speculate as to which witness, Conroy or Huse, may have been more credible to the jury. We cannot agree with the defendant that, merely because Conroy was his first choice, Conroy would necessarily have been better than his second choice, Huse. When an issue in a criminal case does not involve a constitutional violation, the burden is on the defendant to demonstrate the harmfulness of the error. State v. Johnson, 29 Conn. App. 394, 400, 615 A.2d 512 (1992), appeal dismissed, 227 Conn. 611, 630 A.2d 69 (1993). The defendant has not shown that the result would have been different had the trial court permitted Conroy to testify. The defendant has failed to demonstrate that the exclusion of Conroy’s testimony was harmful.

Ill

Finally, the defendant claims that the trial court improperly instructed the jury. The court instructed in pertinent part as follows: “Now in this case you heard testimony from [a] witness ... as concerns the defendant’s trait of nonviolence. In the criminal case the defendant has a right to submit before you evidence of a specific trait in order to create in your minds the belief that it was improbable that he committed the act or acts for which he is presently being tried. It is within your province to accept or reject this testimony. Evidence of a specific trait of nonviolence is not of itself sufficient to raise a reasonable doubt of guilt of the defendant. . . . Evidence of the witness’ personal opinion in order to raise a reasonable doubt of guilt must be believed by you. This trait evidence when considered with all the other evidence in the case may be sufficient to raise a reasonable doubt in your minds as to his guilt.”

At trial, the defendant agreed to the correctness of this instruction. He now claims that the trial court erroneously instructed that the defense evidence of nonviolence was not of itself sufficient to raise a reasonable doubt. He argues that while his claim was not preserved at trial, review is warranted as plain error. Practice Book § 4185. We do not agree.

Plain error review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990). The claimed error here is not so egregious or obvious as to merit such review.” (Internal quotation marks omitted.) State v. Sawyer, 32 Conn. App. 854, 857, 632 A.2d 372 (1993). Our review of the charge as a whole leads us to conclude that it was not likely that the jury was misled. The instructions read as a whole did not result in an “unreliable verdict or miscarriage of justice. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Harvey, 27 Conn. App. 171, 187, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). Plain error review is not warranted.

The judgment is affirmed.

In this opinion Heiman, J., concurred.

O’Connell, J.,

concurring in part and dissenting in part. I agree with parts I and III of the majority opinion, but I cannot concur with part II of the majority opinion on the sequestration issue.

This was not a typical sequestration situation in which the trial court, at the request of counsel, imposed a sequestration order at the commencement of trial. See General Statutes § 54-85a; Practice Book § 876. Here, immediately prior to the commencement of evidence, the court inquired whether either party intended to make a motion to sequester witnesses. The state and defense both declined to make such a motion and the trial started with no sequestration order in effect. Sultan Quarishi testified as the state’s medical expert witness and was cross-examined by defense counsel. On May 14,1991, the state completed its case-in-chief without a sequestration order in effect.

At the opening of court the following day, and before starting his evidence, the defendant objected to the fact that a Southington police detective, who had testified, was sitting beside the state’s attorney at counsel table. This resulted in the entry of a midtrial sequestration order.

The defendant called Michael Conroy to testify as a medical expert, to challenge the likelihood that the victim sustained her injuries in the manner she claimed. Conroy admitted that, in preparation for his testimony, he reviewed a transcript of Quarishi’s cross-examination. The court ruled that this transcript review constituted a violation of the sequestration order and barred Conroy from testifying. The court, however, gave the defendant time to find a medical expert to replace him. Aided in part by a long hiatus in the trial due to a weekend and a holiday, the defendant obtained Jack Huse, who testified in lieu of Conroy.

I

Violation?

We should first consider the threshold question of whether the sequestration order was violated. I commence my analysis by noting that when Quarishi testified, the sequestration order had not yet been entered. Conroy could have been present in the courtroom and listened to Quarishi’s testimony. Likewise, Conroy lawfully could have read the transcript of Quarishi’s testimony any time between May 8, 1991, when Quarishi testified and the morning of May 15, 1991, when the sequestration order was entered. Conroy, however, candidly admitted that it was on May 20, the evening before he testified, that he reviewed Quarishi’s cross-examination. There was no evidence to indicate that Conroy had been informed that his right to read the transcript had terminated on the morning of May 15. The state argues that Conroy’s review of Quarishi’s testimony on cross-examination was a direct violation of the sequestration order. I do not agree.

First, it is my opinion that this unusual fact pattern suggests very strongly that no violation took place. If Conroy had read the transcript prior to May 15, there clearly would not have been a violation. The record does not disclose whether the transcript was delivered to Conroy before or after the order entered and I presume that defense counsel, as an officer of the court, did not flaunt the order and deliver the transcript to Conroy after the order was in effect. See State v. Falby, 187 Conn. 6, 26-27, 444 A.2d 213 (1982). Accordingly, since Conroy had a transcript lawfully in his possession, I would not find a violation merely because Conroy’s schedule called for him to read it the night of May 20, rather than at an earlier time.

Second, the midtrial sequestration order was ambiguous as to whether it applied retroactively to witnesses who had already testified. If the “enforcement [of sequestration orders] is to work justice and not injustice, care must be taken by the trial courts and by counsel to insure that those orders are plainly announced and that their effect is made clear to all witnesses.” (Emphasis added.) Jury v. Commonwealth, 10 Va. App. 718, 722, 395 S.E.2d 213 (1990). There is no evidence that Conroy was aware of the order when he read the transcript. Furthermore, I would give the defendant the benefit of the order’s ambiguity.

Third, “[t]he primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others. State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1962). ... An inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted.” (Internal quotation marks omitted.) State v. Crumble, 24 Conn. App. 57, 61, 585 A.2d 1245, cert. denied, 218 Conn. 902, 580 A.2d 1077 (1991).

In the present case, the state does not claim that the alleged violation was committed so that Conroy could shape his testimony falsely to corroborate Quarishi’s testimony. In fact, the contrary is true. In an offer of proof, Conroy testified that he gleaned nothing of substance from Quarishi’s testimony because it dealt with matters not directly related to his opinion.

In my opinion, the peculiar temporal circumstances of this case do not support a finding that the sequestration order was violated.

II

Harmless Error

The majority does not determine whether a violation occurred but proceeds directly into a harmless error analysis. Even if there had been a violation, I cannot agree that the defendant suffered no harm solely because he was able to substitute Huse for Conroy. That Huse gave the substance of what would have been Conroy’s testimony does not necessarily lead to the conclusion that the defendant suffered no harm. Medical experts are not fungible.

The rule that we will not consider a challenge to the exclusion of evidence if the evidence in question has otherwise entered the case; State v. Suckley, 26 Conn. App. 65, 73, 597 A.2d 1285, cert. denied, 224 Conn. 901, 600 A.2d 1028 (1991); is inapposite here. There is a tremendous difference between application of the rule to factual witnesses and to expert witnesses. Parties must accept the factual witnesses that the case deals them. The selection of an expert witness, however, is an important skill in the art of lawyering. It is often difficult to locate the precise expert who, in an attorney’s professional opinion, possesses the qualifications, persuasive presence and credibility required in a particular case.

It is axiomatic that in judging credibility, the jury has a right to observe the appearance and demeanor of witnesses. Edens v. Kole Construction Co., 188 Conn. 489, 494-95, 450 A.2d 1161 (1982). That rule applies to expert witnesses. 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 3.12. The state compares Conroy with Huse and concludes that one was as good as the other; hence, the defendant has not suffered even if the court had wrongly excluded Conroy. The trial court, however, had an insufficient basis on which to make that judgment. It was limited to comparing Conroy’s offer of proof with Huse’s testimony at trial. Such a comparison is not realistic because it does not account for the manner in which Conroy would have presented his opinion, an important element in establishing his credibility and ultimate effectiveness. I do not believe that two experts stand on equal footing before a jury merely because they share the same opinion. The defendant had the right to choose the expert whom he wanted without interference from the state or the court. It was improper to make the defendant use his second choice.

Ill

Sanction

Even if it is assumed for the sake of argument that a technical violation had occurred, the preclusion of an important defense witness was an excessive sanction. More than a century ago, the United States Supreme Court held that a defense witness’ violation of a sequestration order, without more, did not warrant his exclusion. Holder v. United States, 150 U.S. 91, 92, 14 S. Ct. 10, 37 L. Ed. 2d 1010 (1893). “Under the overwhelming weight of authority, it is an abuse of discretion to preclude a criminal defense witness’s testimony for violation of a sequestration order unless special circumstances exist that would warrant the preclusion.” State v. Burke, 522 A.2d 725, 729 (R.I. 1987). “Absent a showing of fault on the part of the party or counsel who called a witness ... a trial court should not deprive a criminal defendant of a witness’ testimony solely because he violated a sequestration order.” Commonwealth v. Scott, 496 Pa. 78, 82, 436 A.2d 161 (1981).

A similar exclusion question confronted the court in State v. Boucino, 199 Conn. 207, 214, 506 A.2d 125 (1986), wherein the defendant had not complied with the rules of practice pertaining to disclosure of an alibi defense. The Boucino court held that not every noncompliance with the rules justifies exclusion of the defendant’s witnesses. “The trial court must weigh the need for exclusion against the defendant’s right to present a defense. . . . The decision is within the sound discretion of the trial court and will turn on the facts of the particular case. Factors which the trial court must consider include: whether the disclosure violation was technical or substantial . . . the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence . . . .” (Citations omitted; internal quotation marks omitted.) Id.

The application of the Boucino test to the present case demonstrates that preclusion of Conroy’s testimony was an excessive sanction and unconstitutionally deprived the defendant of the right to present a defense. “The right to offer the testimony of witnesses ... is in plain terms the right to present a defense .... [The defendant] has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); see note, “The Preclusion Sanction— A Violation of the Constitutional Right to Present a Defense,” 81 Yale L.J. 1342, 1361 (1972).

I recognize, however, that exclusion of a defense witness’ testimony based on a sequestration order violation is not a per se constitutional violation. State v. Boucino, supra, 199 Conn. 213. “Whether a trial court’s restriction of a defense witness’ testimony in a criminal trial deprives a defendant of his due process rights is a question that must be answered on a case-by-case basis.” State v. Arbour, 29 Conn. App. 744, 749, 618 A.2d 60 (1992) (discussing the exclusion of alibi witnesses). As previously stated, Conroy was to testify as an expert to challenge the claim that the victim sustained her injuries in the manner she claimed. As such, Conroy’s testimony was an integral part of the defense. Requiring the defendant to locate, in the middle of the trial, another expert to testify on an issue of such importance was patently unfair. This midtrial preclusion of Conroy’s testimony was a draconian penalty that impaired the defendant’s ability to present a proper defense.

“If the error is of constitutional magnitude, then the burden is on the state to prove that this error was harmless beyond a reasonable doubt.” State v. Flanders, 214 Conn. 493, 500, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990). In light of the importance to the defendant of Conroy’s testimony, I do not believe the state has met its burden of showing the harmlessness of the error. I believe that requiring the defendant to find another expert unconstitutionally infringed on his right to present a defense.

This is particularly true in light of the numerous lesser sanctions that were available. The defendant suggests that the court could have “(1) instructed the jury that Dr. Quarishi did not have access to Dr. Conroy’s testimony but Dr. Conroy had access to Dr. Quarishi’s . . . (2) permitted cross-examination as to the extent to which Dr. Conroy was aided or influenced by the transcript . . . and (3) ordered that a transcript of Conroy’s testimony be provided to any expert witness testifying for the state in rebuttal.” I agree that any of these available alternatives was preferable to preclusion of the defendant’s witness.

The majority concludes that because the defendant was able to locate another expert, any error in precluding Conroy’s testimony did not rise to the level of a constitutional violation. Even if it is assumed that under the circumstances of this case the preclusion of Conroy’s testimony did not rise to the level of a constitutional violation, I believe, as discussed in part II, that the defendant has met his burden of proving the harmfulness of the trial court’s sanction. The defendant should have been able to utilize the expert of his choice, especially in light of the less drastic alternatives available and the absence of any evidence of the defendant’s culpability in causing the alleged violation.

IV

Conclusion

I am not persuaded that the sequestration order was violated, but even if it was, the preclusion of the defendant’s witness was an excessive sanction infringing on the defendant’s right to present a defense. Moreover, I believe the defendant demonstrated the harmfulness of the trial court’s error in imposing such a sanction.

I respectfully dissent from the majority on this issue and would reverse the decision and remand the case for a new trial.

       The defendant was found not guilty of one count of kidnapping in violation of General Statutes § 53a-92 (a) (2) (A), and one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), which specifically charged sexual assault by compelling fellatio.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       The defendant acknowledges that the parties and the trial court did not address the question of relevancy, but implies that the evidence may not have been relevant unless the state could show that the semen stain was made by the defendant at the time of the alleged sexual assault. Relevant evidence is evidence that advances the inquiry to some degree, and is material and probative. State v. Young, supra, 29 Conn. App. 763. “We have also held that evidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . .” (Citations omitted; internal quotation marks omitted.) State v. Sauris, 227 Conn. 389, 406, 631 A.2d 238 (1993). The evidence was both admissible and relevant.

       Having so concluded based on evidentiary grounds, we therefore find it unnecessary to determine whether the defendant’s claim involves a state or federal constitutional right and whether he has the burden to demonstrate harmfulness. State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988); State v. Bryant, 202 Conn. 676, 692 n.15, 523 A.2d 451 (1987).

       Previously, during argument regarding the defendant’s objection to the state’s offer of rebuttal evidence, the defense counsel had stated: “And I would submit, Your Honor, we’re not talking about the defendant running the risk of perjury, Your Honor. What we’re talking about is the defendant telling his story which is incomplete if the state intends to go into this area. That version of the story that is incomplete is with regard to other sexual activity in that front seat, that the defendant could have very well testified to if we were aware that there was such material, such as this forensic report that the state wishes to rely on ... . It’s a question of the whole truth coming out, and that has to do with other activities other than May 4, 1990, in the front seat of that car.”

       We note that the proper standard for the admission of surrebuttal evidence is not this rigorous. Since we conclude, however, that the court acted within its discretion, we find the application of a higher standard to be harmless.

       Although an offer of proof may not always be necessary, a reviewing court may be unable to determine the propriety or effect of the exclusion unless the substance of the proffered evidence is disclosed in the record. In that event, counsel should make an offer of proof, in the absence of the jury, stating the purpose of the offer and disclosing the content and purport of the expected testimony. State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986); State v. James L., 26 Conn. App. 81, 84-85, 598 A.2d 663 (1991); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.5.5 (b). “In the absence of an appropriate offer of proof, this court cannot speculate as to what line of questioning defense counsel intended to follow. A claim on appeal cannot be based on an assumption that the trial court acted improperly. . . . Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly.” (Citation omitted.) State v. James L., supra, 85-86.

       Under General Statutes § 54-85a and Practice Book § 876, any party in a criminal matter is entitled upon motion to have witnesses sequestered. A sequestration order generally prohibits a sequestered witness from being present in court when not testifying.

       The defendant has not provided an independent analysis of our state criminal constitutional provisions; therefore, we decline to review that claim. State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991).

       The defendant indicates that there was some confusion as to what the court actually instructed and what was read aloud from the court’s notes during counsels’ exceptions to the charge. Regardless, the transcript shows that the charge to which defense counsel ultimately agreed was the one given to the jury.

       General Statutes § 54-85a provides: “In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.”

       Practice Book § 876 provides: “The judicial authority upon motion of the prosecuting authority or of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which he is not testifying.”

       The court’s order went beyond the simple sequestration order requested by the parties and provided as follows: “Well, my sequestration order will apply to witnesses both for the state and for the defense. Also as to those witnesses that testified previously and/or may testify in the future. The sequestration order, because it’s not affecting a witness who has already testified for the state will apply for the defense. Those witnesses [who] have testified for the defense will not be allowed access into this courtroom while the case is on trial so that the application is made fairly to both sides. Then, of course, the order should include that no witnesses who have concluded testifying and the attorneys will so advise them not to communicate with any other witnesses as to what they were asked or what they answered.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Thorn Americas, Inc. v. Michelle Torres
    (13102)
    Dupont, C. J., Lavery, IIeiman, Schaller and Spear, Js.
    Considered April 20
    decision released April 25, 1994

      David A. Reif and Jennifer L. Schancupp, in support of the motion.

      Joanne S. Faulkner, in opposition to the motion.
   Per Curiam.

The defendant appealed from the granting of a prejudgment remedy under General Statutes § 52-2781. The plaintiff filed a motion to dismiss in which the dispositive issue is whether the subsequent dismissal of the prejudgment remedy by the trial court rendered the appeal moot. The defendant opposes the motion to dismiss. We conclude that the appeal is moot and must, therefore, be dismissed.

The facts underlying the plaintiff’s cause of action are as follows. In April, 1993, the plaintiff, Thorn Americas, Inc., doing business as Rent-A-Center, and the defendant entered into an agreement pursuant to which the defendant leased a forty inch projection television set (property) from the plaintiff. The agreement provided that legal title to the property remained with the plaintiff and that upon termination of the agreement, the defendant would return the property to the plaintiff.

Upon termination of the agreement, the defendant failed to return the property. The plaintiff filed an application for a prejudgment remedy seeking to replevy the property pursuant to General Statutes § 52-278c. A hearing was held, the trial court determined that probable cause existed and it issued the prejudgment remedy. The defendant appealed from the order granting the prejudgment remedy.

After the appeal was filed, the defendant filed a motion to dismiss the prejudgment remedy in the trial court pursuant to General Statutes § 52-278j (a) on the ground that the writ, summons and complaint were not properly served and returned to court within thirty days of issuance. That motion was granted. The plaintiff then moved to dismiss this appeal as moot because the prejudgment remedy, the subject of the appeal, had been dismissed.

“Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. . . . The standards governing mootness are well established. Because this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted.” (Citation omitted; internal quotation marks omitted.) Madigan v. Madigan, 33 Conn. App. 229, 231, 635 A.2d 303 (1993), quoting Papagorgiou v. Anastopoulous, 29 Conn. App. 142, 146, 613 A.2d 853, cert. denied, 224 Conn. 919, 920, 618 A.2d 527 (1992). “Action of the parties themselves may render an appeal moot. Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134, 566 A.2d 703 (1989).” Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc., 33 Conn. App. 1, 6, 632 A.2d 713 (1993).

The only practical relief we could afford the defendant if the defendant were to prevail on appeal would be to reverse the order granting the plaintiffs application for a prejudgment remedy. Because the trial court has already dismissed the prejudgment remedy, there no longer is an order that we can review. Therefore, the appeal has been rendered moot.

The defendant argues that the appeal is not moot because the plaintiff is relying on the trial court’s probable cause finding to support an application for a second prejudgment remedy. The defendant claims that our failure to review the finding that probable cause existed is a prejudicial collateral consequence that will result if we dismiss this appeal as moot.

Where the matter being appealed creates collateral consequences prejudicial to the interests of the appellant, we may retain jurisdiction despite developments during the pendency of the appeal that would otherwise render it moot. Housing Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993). For example, an appeal taken from the denial of a motion to open a stipulated judgment in a summary process action was not moot despite the fact that the appellant had voluntarily vacated the premises because the judgment could have had a prospective negative impact on the appellant’s eligibility for low income subsidized housing in the future. Id., 765. Nor did the fact that the appellant had completed a sentence for a criminal offense render the appeal from the judgment revoking the appellant’s probation moot, in light of the potential impact on the appellant’s ability to obtain probation in the future and to enjoy a good reputation in the community. State v. Smith, 207 Conn. 152, 160-62, 540 A.2d 679 (1988) (appeal dismissed as moot only after determination that there were no collateral consequences).

The plaintiff cannot obtain a second prejudgment remedy based on a complaint alleging the same cause of action underlying the original prejudgment remedy because that remedy was dismissed under General Statutes § 52-278j. See General Statutes § 52-278d (a). Therefore, the defendant’s argument regarding collateral consequences is without merit.

The appeal is dismissed as moot.

       General Statutes § 52-278j (a) provides: “If an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court shall dismiss the prejudgm,ent remedy. ” (Emphasis added.)

       General Statutes § 52-278d (a) provides in relevant part: “If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.”


author: Schaller, J.

text:
    Robert Romanski v. Town of West Hartford
    (12100)
    Landau, Schaller and Cretella, Js.
    Argued October 25, 1993
    decision released May 10, 1994

      Marjorie Wilder, corporation counsel, for the appellant (defendant).

      Thomas A. Weaver, for the appellee (plaintiff).
   Schaller, J.

The defendant town of West Hartford appeals from a decision of the compensation review board (review board) of the workers’ compensation commission upholding an award of special benefits to the claimant, Robert Romanski, under General Statutes (Rev. to 1989) § 31-308 (d). The principal issue in this case is whether the plaintiff, a retired firefighter diagnosed with treatable hypertension, but no manifest heart disease, is eligible for special benefits provided by § 31-308 (d) in the absence of any evidence of impairment of his earning capacity or disabling effects of his hypertension.

The defendant claims that the compensation review board improperly (1) interpreted General Statutes § 31-308 (d) as not requiring evidence of economic loss, (2) required the defendant to assume the burden of proving that the plaintiff was not entitled to benefits because of its improper interpretation of § 31-308 (d), and (3) substituted its own judgment for the commissioner’s findings. We affirm the decision of the review board.

The following facts are relevant to this appeal. The plaintiff and the defendant entered a voluntary agreement, pursuant to General Statutes § 7-433c, which was approved by a commissioner of the workers’ compensation commission on March 2, 1989, stating that the plaintiff had a condition of ‘‘[hjypertension for the period of 07/01/88 to 07/11/88.” Subsequently, the plaintiff filed for benefits pursuant to § 31-308 (d) in which he alleged that, as a result of his hypertension, he sustained permanent loss of function of an organ of the body, specifically his heart and cardiovascular system.

On July 26 and October 16, 1990, formal hearings were held before a workers’ compensation commissioner acting for the first district. Edward A. Longo, a cardiologist, testified on behalf of the plaintiff that he initially examined the plaintiff in January, 1989, and determined that the plaintiff had sustained, as a result of his hypertension, a 35 percent impairment of the cardiovascular system. In May, 1990, Longo reevaluated the plaintiff and revised his assessment of impairment of the cardiovascular system to 15 percent.

Robert Livingston, an internist who was the plaintiff’s treating physician, testified for the defendant that although the plaintiff had some narrowing of the retinal arterioles in July, 1988, there was no impairment to an organ or body part. Livingston further asserted that he was not in a position nor was it his purpose to provide an impairment rating.

H. Robert Silverstein, a cardiologist, then testified on behalf of the defendant that he reviewed the plaintiffs medical records and determined that the plaintiff had suffered a 5 percent permanent impairment to the whole person, but had no disability that would prevent him from working. Finally, Stanley Roth, an internist, testified that he examined the plaintiff on September 21,1989, and determined that the plaintiff had a 5 percent impairment to the whole person.

The commissioner precluded the defendant from questioning the medical witnesses regarding any economic loss suffered as a result of the plaintiffs hypertension on the basis that the plaintiff was not obligated to prove “economic loss” in order to establish his claim. A nonappearing physician, Henry C. Rogers, whose specialty was not stated on the record, wrote in his medical report that the plaintiff was “totally and permanently disabled from engaging in any substantial gainful employment in the service of the municipality.”

The commissioner issued a finding and award in favor of the plaintiff. The commissioner found that the plaintiff had sustained a 5 percent permanent partial disability of the cardiovascular system for which he awarded the plaintiff thirty-nine weeks of benefits. On April 29, 1991, the defendant appealed to the review board claiming that the plaintiff had failed to produce evidence that his earnings or earning capacity had been impaired.

On January 13,1993, the review board rendered its decision affirming the finding and award. The board determined that §§ 31-308 (d) and 7-433c do not require that the plaintiff prove “economic loss” as a requisite to collecting benefits. Thereafter, the defendant appealed to this court.

I

Proof of Economic Loss

A

The defendant first claims that the review board improperly concluded that economic loss need not be proven in order to receive special benefits pursuant to § 31-308 (d). This issue specifically concerns whether the portion of the statute stating that the commissioner may award such compensation as he deems just, taking into account the “disabling effect of the loss of or loss of function of the organ involved” rises to a requirement of proof of loss of earning capacity in order to receive benefits.

We note at the outset that “[cjompensation under § 31-308 (d) for partial impairment of one’s heart is a special award of benefits. Felia v. Westport, 214 Conn. 181, 186, 571 A.2d 89 (1990). ‘In contrast to the specific benefits of § 31-308 (b), which relate weekly benefits to the impairment or loss of designated body parts . . .’; id.; ‘a special award is one that is not compensation for the loss [of] or loss of use of a body part, but is compensation for the inability to work as a result of the disability. See Bassett v. Stratford Lumber Co., 105 Conn. 297, 307, 135 A. 574 (1926) (Haines, J., concurring); J. Asselin, [Connecticut Workers’ Compensation Practice Manual (1985)] p. 119 (the author refers to these benefits as “continuing wage benefits”).’ Morgan v. East Haven, 208 Conn. 576, 584, 546 A.2d 243 (1988). Thus, although a special award derives from a more specific form of impairment, benefits under §§ 31-306 and 31-308 (d) compensate for the same loss, that is, the loss of wages as a result of one’s inability to work.” Ancona v. Norwalk, 217 Conn. 50, 55, 584 A.2d 454 (1991).

Although Ancona states that the purpose of § 31-308 (d) is to compensate for lost wages, it does not resolve the question of whether the statute requires a claimant to prove lost wages. “To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further. ... If, however, the statute is ambiguous, e.g., either opaque or susceptible to alternative conflicting interpretations, we will seek guidance from ‘extrinsic aids,’ e.g., the legislative history. . . .” (Citations omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

The language of the statute is neither plain nor unambiguous. Our legislature has not defined the phrase “disabling effect,” and its meaning in the context of the sentence stating that the commissioner may award such compensation as he deems just, “taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of junction of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body” (emphasis added) is not clearly discernible. We conclude, therefore, that a review of the legislative history is appropriate for an understanding of the phrase “disabling effect.”

At the outset, we will describe the statute as it stood at the time of the plaintiff’s claim. General Statutes (Rev. to 1989) § 31-308 set forth a compensation scheme for partial incapacity. Section 31-308 (b) provided a schedule for certain enumerated losses, describing the loss and the compensation that would be afforded. For example, § 31-308 (b) (6) provided that “for the complete and permanent loss of hearing in one ear, fifty-two weeks.” No proof of loss of earning capacity was required in order to obtain benefits pursuant to § 31-308 (b). Levanti v. Dow Chemical Co., 218 Conn. 9, 13-16, 587 A.2d 1023 (1991).

In addition, § 31-308 (d) provided for certain unscheduled losses, those not assigned a number of weeks for compensation, such as awards for scarring, disfigurement, and loss of organ or loss of function of organ. From 1939 to 1967, this portion of § 31-308 concerned awards for compensation for scarring and disfigurement only. The language of the statute changed at various times, but, in essence, the legislature moved to broaden the types of scars and disfiguring marks that rendered an individual eligible for benefits. See generally Rivera v. I. S. Spencer’s Sons, Inc., 154 Conn. 162, 165-66, 223 A.2d 808 (1966) (discussing evolution of statute concerning compensation for scars or disfiguring marks). Further, our Supreme Court in Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 90, 167 A.2d 458 (1961), held that “under our statute, an award for disfigurement may be made even though a claimant, as was the case here, is unable to prove that the disfigurement is likely to cause any loss of earnings or earning capacity.”

The 1967 amendment to the statute added a provision in the area of unscheduled losses that created the opportunity for compensation benefits for the loss of an organ or loss of function of an organ. That amendment stated that the commissioner may award compensation as he deems just for the loss of or loss of use of an organ taking into account “the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body . . . .” The pertinent legislative history addressing this portion of the statute reads as follows: “Lastly this section provides compensation for the first time for loss of organs of the body or loss of function in such organs. At the present time if a worker lost a kidney because of an on the job injury, he receives no compensation for such permanent loss, yet the removal of a kidney reduces his chance for survival by 50%. We recognize that each organ of the body is not equally important to the human body and for this reason we have given the commissioners broad discretion to determine values involved with the maximum of 780 weeks compensation.” 12 H.R. Proc., Pt. 9,1967 Sess., p. 4040, remarks of Representative Paul Pawlak, Sr.

In enacting the “loss of or loss of function of the organ” provision of the 1967 amendment, the legislature incorporated this provision into the existing section concerning unscheduled losses regarding scars and disfigurements. The history of the section regarding scars and disfigurement reflects that in order to recover an unscheduled loss, an employee need not prove loss of earning capacity. There is nothing in the legislative history concerning the loss of organ provision that suggests that the legislature intended to treat this unscheduled loss differently from the unscheduled loss attributable to scarring or disfigurement. In fact, the legislative history concerning the loss of organ provision suggests that the legislature intended to give the commissioner broad discretion in determining the percentage of permanent impairment to the organ. Such permanent impairment itself appears to encompass what the legislature intended to include under the umbrella of the term “disabling effect.”

In addition, we note that the interpretation of § 31-308 (d) by the review board “warrants respect as the considered judgment of the governmental agency vested with primary authority for enforcing our workers’compensation statutes. . . .” (Citations omitted; internal quotation marks omitted.) Levanti v. Dow Chemical Co., supra, 218 Conn. 15-16. The review board addressed the issue of whether a showing of economic loss is necessary to qualify for benefits under § 31-308 (d) in its decision in this case. The review board flatly rejected the notion' that § 31-308 (d) requires proof of loss of earning capacity. The review board stated that despite the defendant’s claim that § 31-308 (d) required proof of economic loss, “[w]e see nothing in Secs. 31-308 (d) or 7-433c which requires such a reading. The expressed language of [§ 31-308 (d)] together with its legislative history show that the legislature in [§ 31-308 (d)] intended to duplicate for unlisted parts of the body the same benefits available for the listed parts included in [§ 31-308 (b)].”

On the basis of the pertinent cases, the legislative history of § 31-308 (d), and the review board’s interpretation of § 31-308 (d), we conclude that loss of earning capacity need not be proven in order to obtain benefits for an unscheduled loss of or loss of function of an organ pursuant to § 31-308 (d).

B

As a result of our conclusion that proof of loss of earnings is not required in order to obtain benefits pursuant to § 31-308 (d) for loss of or loss of use of an organ, we need not address the defendant’s contention that the improper conclusion of the review board regarding proof of earning capacity precluded the defendant from questioning witnesses regarding earning capacity and shifted the burden of proof regarding loss of earning capacity to the defendant.

II

The Commissioner’s Findings and Conclusion

“As a preliminary matter, we note that when a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fair v. Peoples Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). ‘ “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979)].’ Id. ‘Our scope of review of the actions of the review [board] is similarly limited.’ DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69 (1990).” Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991).

In the present case, the commissioner made several findings in support of his conclusion in awarding the plaintiff benefits pursuant to § 31-308 (d). In his findings, the commissioner referred to Longo’s opinion that the plaintiff had suffered a 15 percent impairment of his cardiovascular system. In addition, the commissioner relied on Silverstein’s and Roth's opinions that the plaintiff had suffered a 5 percent impairment of the whole person. The findings were supported by evidence in the record. On the basis of the evidence presented, the commissioner concluded that the plaintiff suffered from a 5 percent permanent partial impairment of the cardiovascular system. We conclude that the commissioner had before him sufficient facts from which he could conclude that the plaintiff suffered a 5 percent permanent partial impairment to his cardiovascular system. The review board reiterated the findings of the commissioner and affirmed the award. We likewise affirm the award.

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

In this opinion the other judges concurred.

       In 1991, the compensation review division was renamed the compensation review board. Public Acts 1991, No. 91-339, §§ 18, 21 through 24, 32.

       General Statutes (Rev. to 1989) § 31-308 provides in pertinent part: “(d) In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner may award such compensation as he deems just ... for any permanent significant disfigurement of, or permanent significant scar on, any part of the body .... In addition to compensation for total or partial incapacity for a specific loss of a member or loss of use of the function of a member of the body or for disfigurement or scarring, the commissioner may award such compensation as he deems just for the loss or loss of use of the function of any organ or part of the body not otherwise provided for herein, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body, but in no case more than the sum equivalent to compensation for seven hundred and eighty weeks.”
      We note that § 31-308 has undergone extensive restructuring in recent years. General Statutes (Rev. to 1989) § 31-308 was the statute in effect at the time that the plaintiff made his claim for permanent partial loss of bodily function.

       General Statutes § 7-433c provides in pertinent part: “[I]n the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 . . . .”

       Although we are referring to the statute as § 31-308, the statute concerning partial impairment has appeared as different sections throughout its existence. We further note that prior to 1975, the statute that we are referring to as § 31-308 was not divided into subsections.


author: Spear, J.

text:
    State of Connecticut v. Tracey Bryan
    (13196)
    Lavery, Heiman and Spear, Js.
    Argued February 14
    decision released May 10, 1994

      Richard Cramer, with whom, on the brief, was Brian M. O’Connell, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, she claims that the trial court improperly (1) denied her request to charge the jury regarding the affirmative defense of extreme emotional disturbance, (2) admitted evidence of her prior conviction for creating a public disturbance, and (3) commented on a question posed by defense counsel to a witness on cross-examination. We reverse the judgment of conviction and remand the case for a new trial.

The jury reasonably could have found the following facts. The defendant, Tracey Bryan, and the victim, Gina Whitehead, were both romantically involved with Keith Dawes. Dawes and the victim were the parents of a child and had been involved for several years before Dawes met the defendant. Dawes and the victim lived together, but their relationship terminated and they separated for a time in 1989 and 1990. During that time, Dawes began dating the defendant, and the victim was aware of that relationship.

In June, 1989, during the time that the defendant and Dawes were dating, the defendant telephoned Dawes at his apartment at 2620 Main Street in Hartford, and the victim answered. The victim identified herself as the mother of Dawes’ child. The defendant was upset because she recognized the voice on the telephone as that of the woman who had made threatening phone calls to her at her workplace. Some time later the defendant went to Dawes’ apartment to discuss their relationship and to determine whether Dawes had resumed seeing the victim. At Dawes’ apartment, the defendant and the victim confronted each other in the front yard where they argued and exchanged profanities and threats. The defendant carried a spatula for protection, but did not try to harm the victim with it.

The defendant stopped seeing Dawes after this incident, but resumed seeing him in October, 1989. After their confrontation in June, 1989, the defendant continued to receive threatening phone calls from the victim at work. The defendant was often visibly upset after receiving these calls because she was afraid of the victim. On one occasion, the victim threw a rock at the defendant’s car. On another occasion, after the defendant had spent the night at Dawes’ apartment, the victim drove a car close to the apartment building in the early morning and yelled to the defendant to come outside. The victim also followed the defendant several times while the defendant was on her lunch hour in downtown Hartford. In August, 1990, the defendant stopped dating Dawes and they maintained a friendship. Dawes resumed dating the victim.

On November 23, 1990, in the late afternoon, the defendant went to visit Dawes at his request and parked her car in the driveway behind Dawes’ apartment. Dawes let her in and they went downstairs to his bedroom to watch television. Shortly thereafter, the victim arrived at the back door of the apartment. Dawes’ brother, Gerard Dawes, heard the victim knock but did not let her in because he knew that the defendant was visiting with his brother in the downstairs bedroom. Gerard summoned Dawes, who left his bedroom and went to answer the door. The victim, who had noticed the defendant’s car parked in the driveway, expressed her anger over the defendant’s presence in the apartment. Dawes tried to calm the victim and prevent her entry into the apartment in an effort to avoid trouble, because he knew that both women had explosive tempers. The victim told Dawes that she wanted the defendant to leave. She then forced her way past him and into the back hallway where she and Dawes argued loudly.

The defendant heard the commotion upstairs and became frightened when she recognized the victim’s voice. The defendant did not want the victim to find her in Dawes’ bedroom, so she ascended the stairs to the hallway occupied by Dawes and the victim. The victim and the defendant began to argue. Both women were very upset and began punching each other. Dawes attempted to intercede, but was unsuccessful. The victim threw her umbrella at the defendant and kicked her in the leg, causing the defendant to lose her balance and fall against the wall. The victim then pulled the defendant’s hair, ripping one of the braids from her head. During this altercation, the victim was stabbed in the back. No one saw the defendant stab the victim, and the defendant did not remember doing so. The defendant admitted having taken a steak knife from her pocketbook, having placed it in her hand, and having swung that hand at the victim.

After the victim exclaimed that she had been stabbed, Dawes forced the defendant out of the apartment and drove the victim to a hospital where she died as a result of a single stab wound. The defendant was convicted of murder and this appeal ensued.

I

The defendant first claims that the trial court improperly denied her request to charge the jury on the affirmative defense of extreme emotional disturbance. The defendant contends that sufficient evidence was adduced at trial to require a jury instruction on this affirmative defense. We agree.

“[A] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). . . .” (Citations omitted; internal quotation marks omitted.) State v. Belle, 215 Conn. 257, 273, 576 A.2d 139 (1990). “If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction.” State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); State v. Lewis, 220 Conn. 602, 618, 600 A.2d 1330 (1991); State v. Havican, 213 Conn. 593, 597, 569 A.2d 1089 (1990). Extreme emotional disturbance is a recognized legal defense to murder. General Statutes § 53a-54a (a).

Section 53a-54a (a) provides in pertinent part that “it shall be an affirmative defense [to the crime of murder] that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be . . . .” “Extreme emotional disturbance ‘is a mitigating circumstance which will reduce the crime of murder to manslaughter.’ State v. Asherman, 193 Conn. 695, 731, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).” State v. Raguseo, 225 Conn. 114, 122, 622 A.2d 519 (1993).

Before an instruction on extreme emotional disturbance is warranted, however, a defendant bears the initial burden of producing sufficient evidence of the defense to substantiate such a charge. See State v. Thomas, 205 Conn. 279, 282, 533 A.2d 553 (1987); State v. Asherman, supra, 193 Conn. 731-32; see also State v. Jacobowitz, 194 Conn. 408, 412, 480 A.2d 557 (1984). “JA]n extreme emotional disturbance is one where self-control and reason are overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or other similar emotions.” State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979). The defendant is not required to introduce expert testimony to establish that she was acting under extreme emotional disturbance when she stabbed the victim. Rather, she may simply offer her own testimony or the testimony of lay witnesses. See State v. Fair, 197 Conn. 106, 111, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986).

In reviewing a claim that the trial court failed to charge the jury as requested, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” (Internal quotation marks omitted.) State v. Lewis, supra, 220 Conn. 619. At trial, the defendant testified about the longstanding threatening behavior displayed by the victim toward the defendant and the effect the victim’s actions had on her. In particular, the defendant testified that one day in June, 1989, she went to Dawes’ apartment to discuss their relationship and she encountered the victim there. The defendant testified that the victim jumped off the front porch and came at the defendant, who was standing with a friend on the walkway. She also testified that she received numerous threatening phone calls from the victim at work, which were corroborated by the testimony of a coworker. The coworker testified that the defendant would become visibly upset and tremble after receiving these calls because she was afraid of the victim.

The defendant also testified about other contact she had had with the victim. The victim would stalk the defendant when she was on her lunch hour and when the defendant tried to elude the victim by entering a store, the victim would follow her inside or wait outside on the sidewalk. The defendant also testified that the victim threw a rock at her car on one occasion and came over to Dawes’ apartment early one morning and yelled at her to come outside.

Evidence was also produced by state’s witnesses to support the defendant’s affirmative defense of extreme emotional disturbance. Dawes and his sister, Darlene Dawes, testified to the victim’s explosive temper. Dawes also testified that the victim had threatened to beat up the defendant. Gerard testified that on November 23, 1990, he refused to answer the door to the apartment when the victim knocked because he did not want the victim and the defendant to fight. Dawes also testified that he attempted, without success, to prevent the victim’s entry into his apartment to prevent a confrontation between the two women.

The defendant testified that when she realized that the victim was in Dawes’ apartment, she became concerned for her well-being. Because she was afraid of the victim and did not want the victim to find her in Dawes’ bedroom, she went into the hallway. When the victim saw the defendant, she struggled to free herself from Dawes’ hold. Once free, she kicked the defendant while brandishing an umbrella. A fight ensued and the victim was stabbed.

“[A] defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible. ...” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Havican, supra, 213 Conn. 597. There was evidence of continuous threats by the victim and of numerous confrontational and potentially violent episodes between the victim and the defendant, which caused the defendant to fear the victim. Additionally, there was evidence that these occurrences caused the defendant to become very angry and upset. See State v. Elliott, supra, 177 Conn. 9. In order to raise the defense of extreme emotional disturbance, it is not necessary that “the homicidal act occur immediately after the cause or causes of the defendant’s extreme emotional disturbance; or that the defendant have lost all ability to reason.” Id., 7. Accordingly, we conclude that there was sufficient evidence to warrant a jury charge on the defense of extreme emotional disturbance.

II

The defendant next claims that the trial court improperly admitted into evidence her prior conviction for creating a public disturbance. We address this issue because it is likely to arise during the new trial.

Additional facts are necessary for a resolution of this issue. At trial, the defendant presented several character witnesses who testified that the defendant was a peaceful and truthful person. During cross-examination of one such witness, the state sought to introduce evidence of the defendant’s prior conviction for creating a public disturbance. In the absence of the jury, the state represented that on May 21,1988, the defendant had been arrested by the Hartford police for assault in the third degree. The police report alleged that the defendant had beaten and injured a thirteen year old girl. The defendant represented that the resulting conviction was based on an Alford plea for breach of the peace, for which she paid a fine but did not admit culpability. The trial court ruled that the state could use the prior conviction to test its effect on the opinion of the character witnesses but that it could not refer to the underlying circumstances unless the state could produce a witness to the incident or a sentencing transcript. The defendant objected to the use of the conviction in the absence of certification that there was a conviction. At the state’s suggestion, a recess was called so that the conviction might be documented by the court clerk’s office. Following the recess, the state reported to the court that the defendant’s arrest on May 21,1988, had resulted in a plea of guilty to creating a public disturbance for which a $50 fine had been imposed. The court ruled that the state could use the conviction to test the character witnesses as long as it produced a certified copy. The defendant objected on the grounds that use of her prior conviction was improper because creating a public disturbance was an infraction and not a criminal offense, that the state had failed to produce evidence of the facts underlying the conviction, and that evidence of the conviction was more prejudicial than probative. The court overruled the objections finding that the conviction constituted misconduct that involved violence and could, therefore, be used to rebut the testimony of the character witnesses that the defendant was a peaceful person. The court ruled that the conviction of an infraction, like a conviction of a criminal offense, is evidence of misconduct admissible to rebut the character trait of nonviolence that was placed in issue by the defendant.

The state was thus permitted to question the character witnesses as to whether they were aware that the defendant had been convicted of creating a public disturbance in 1988 and whether such knowledge would affect their opinions of the defendant. The trial court then instructed the jury that because the defendant had put her character traits of truthfulness and peacefulness in issue, the state was entitled to ask questions concerning those traits from the witnesses who had expressed their opinions of the defendant.

“When a defendant calls a character witness to testify to a particular trait, the defendant opens the door for the state to cross-examine the witness by reference to prior acts of misconduct relevant to that trait.” State v. McGraw, 204 Conn. 441, 446-47, 528 A.2d 821 (1987); State v. Turcio, 178 Conn. 116, 126-27, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). “The purpose of such cross-examination is not to contest the defendant’s own veracity but rather to test the basis of the opinion offered by the character witness”; State v. McGraw, supra, 447; and “ ‘to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy’. ...” (Citations omitted.) State v. Ostolaza, 20 Conn. App. 40, 46, 564 A.2d 324, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989). “The question should not be extended to the details of the acts.” (Emphasis added.) State v. Martin, 170 Conn. 161, 165, 365 A.2d 104 (1976).

In the present case, the state did not inquire about the factual details of the specific act, but asked the witnesses only if they were aware that the defendant had previously been convicted of creating a public disturbance and whether such knowledge would affect their opinions of the defendant. The defendant claims that the admission of “the infraction,” without a factual basis, constituted harmful error because it caused the jury “adversely [to] speculate as to the nature and degree of the unknown transgression.”

Our review of evidentiary rulings is limited. “We will not overturn a trial court’s evidentiary ruling unless there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990); State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992); State v. Bailey, 32 Conn. App. 773, 778, 631 A.2d 333 (1993). With respect to the trial court’s discretion, great weight is accorded the trial court’s decision and every reasonable presumption will be indulged in favor of its correctness. State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052 (1993).

We cannot say that the trial court abused its discretion in admitting evidence of the defendant’s prior conviction for creating a public disturbance. The defendant opened the door when she introduced evidence of her peaceful nature. Allowing the state to question the character witnesses concerning the basis of their testimony was a proper exercise of the trial court’s discretion.

Ill

The defendant’s final claim is that the trial court deprived her of her constitutional right to a fair trial before an impartial trier when, during its instructions to the jury, the court characterized certain questions posed by defense counsel as improper. Having concluded that the defendant is entitled to a new trial, we need not address this issue because it is unlikely to recur on remand. See, e.g., State v. Hart, 221 Conn. 595, 613, 605 A.2d 1366 (1992); State v. Williams, 202 Conn. 349, 365, 521 A.2d 150 (1987); State v. Little, 32 Conn. App. 842, 848, 632 A.2d 43 (1993).

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

In this opinion the other judges concurred.

       Pursuant to Practice Book § 4023, the Supreme Court transferred this appeal to this court.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).