text:
    State of Connecticut v. John Cox, Jr.
    (2623)
    Dupont, C. J., Borden and Daly, Js.

      Argued February 5 —
    decision released May 20, 1986

      John R. Williams, for the appellant (defendant).

      Elpedio N. Vitale, deputy assistant state’s attorney, with whom were Julia DiCocco Dewey, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, and Patrick J. Clifford, assistant state's attorney, for the appellee (state).
   Dupont, C. J.

After a trial to a jury, the defendant was convicted of assault in the second degree, a violation of General Statutes § 53a-60 (a) (2). In his appeal, the defendant claims that the trial court erred (1) by allowing the state to refer to prior statements of prosecution witnesses in the presence of the jury, (2) by restricting the scope of the cross-examination of a state’s witness regarding her bias in favor of the victim of the defendant’s attack, (3) by refusing to permit the defendant’s presentation of reputation or opinion evidence in order to impeach the credibility of a state’s witness, and (4) by instructing the jury that evidence introduced by the state regarding the prior criminal activity of the victim could only be used to impeach his credibility as a witness.

The jury reasonably could have found certain relevant facts based upon the evidence presented. The defendant occasionally visited Bernice Cox, his estranged wife, at her apartment. On one of his sporadic visits, the defendant became angry when he discovered that another man was there. After the man left, the defendant and his wife argued over her relationship with the man. The defendant’s son, Jackie Cox, was present in the apartment in another room and could hear the defendant swearing at his mother in a loud voice. Jackie Cox then entered the room and he and the defendant began to argue. The defendant was in possession of a knife which was approximately six to seven inches long. Bernice Cox repeatedly asked him to put the knife away and leave the apartment. Jackie Cox then left the room and returned carrying what was described as a “stick” because he was concerned for his mother’s safety. The defendant, while being restrained by his wife, repeatedly threatened to kill his son. After pushing his wife out of his way, the defendant charged at his son and swung at him with the knife, cutting him in the face. At the same time, Jackie Cox swung at the defendant with the stick and both he and the defendant fell to the floor. While they were struggling on the floor, the defendant wounded his son again, this time cutting him on the chest. After being restrained by witnesses to the incident, the defendant left the apartment. It was later discovered that the defendant’s estranged wife, at some point during the struggle, had also received knife wounds. Both victims received medical treatment and the incident was reported to the police.

The defendant’s first claim of error is that the trial court erred by requiring the prior statements of the state’s witnesses to be referred to and turned over to defense counsel in the presence of the jury. Prior to trial, the defendant moved that the jury be excused at the conclusion of the direct testimony of each prosecution witness in order to allow the production, pursuant to Practice Book § 752, of prior statements by that witness. The trial court denied the motion, stating that it would decide whether there “will be a recess or not” depending upon the length of the statements and whether defense counsel had prior access to them. The trial court, therefore, although denying the motion in limine, deferred action on the substance of it until a state’s witness had testified.

During the trial, both Bernice Cox and Jackie Cox testified for the state. At the conclusion of their testimony on direct examination, defense counsel, in the presence of the jury, alluded to the existence of prior statements made by them. These references to statements in possession of the state occurred before the state referred to them. The court explained to the jury that the state was required to give the defense any statements which “they may have taken from any particular witness who testified on the stand,” and that there would be a recess so that defense counsel could read the statement. The court’s explanation was given as to the testimony of Jackie Cox. Obviously, it applied equally to the testimony of Bernice Cox.

Practice Book §§ 753 and 754, which govern the production and delivery of prior statements, do not directly address the issue of whether such statements should be produced in the absence of the jury or whether the existence of such statements may be mentioned in the presence of the jury.

“Our rules of practice governing the disclosure of statements in criminal proceedings substantially track the Jencks Act, 18 U.S.C. § 3500 et seq. That act is looked to by our courts in interpreting our rules governing the disclosure of statements. State v. Hinton, 196 Conn. 289, 300, 493 A.2d 837 (1985).” State v. Waterman, 7 Conn. App. 326, 347, 509 A.2d 518 (1986).

It has been stated that the production of such statements outside the presence of the jury serves the purpose of preventing the jury from observing defense counsel receive the statement, read it, and then not use it, thus creating the impression that the prior statement reinforced or was consistent with the testimony of the prosecution witness. See United States v. Frazier, 479 F.2d 983, 986 (2d Cir. 1973); Johnson v. United States, 347 F.2d 803, 806 (D.C. Cir. 1965). Both federal and state cases have, however, held that the actual procedure to be followed in disclosing prior statements of prosecution witnesses in the possession of the state should be left to the sound discretion of the trial court. United States v. Gardin, 382 F.2d 601, 605 (2d Cir. 1967); State v. Palmer, 196 Conn. 157, 164, 491 A.2d 1075 (1985).

In the Gardin case, the court formulated a procedural suggestion for the guidance of trial courts. “After the completion of the witness’ direct testimony and before cross-examination has been concluded, the defendant will state that he requests leave to make a motion in the absence of the jury; the trial judge will then excuse the jury, and, in its absence, the defendant will move for disclosure of Jencks Act material. Thereafter all steps through the delivery to the defendant of the statement or report, or the portions thereof, to which the defendant is found to be entitled, and including the allowance of a reasonable time to the defendant to examine the material, will take place while the jury is still absent. If, thereafter, the defendant decides to make use of any of the material for cross-examination of the witness, he will be permitted to do so only upon condition that he state preliminarily to the court and jury that he is about to question the witness on the basis of a written statement or report which the Government has made available to the defendant as required by law. This is to negative any inference that the Government had been covering something up and will precede compliance with the general rule of evidence for the protection of the witness which requires the laying of a proper foundation for the introduction of a past contradictory statement.” United States v. Gardin, supra, 605.

Although there is merit to the “prophylactic procedural suggestion” outlined in United States v. Gardin, supra; see State v. Palmer, supra; the facts of this case do not show that the defendant suffered actual harm as a result of the remarks of the state and the court which were made in the presence of the jury. The defendant has failed to demonstrate that he was deprived of his right to a fair trial. He effectively cross-examined the witnesses and had the opportunity to examine the statements outside the presence of the jury. There is no indication here that the state improperly attempted to capitalize on the procedure employed by calling to the jury’s attention any failure of the defendant to use any such statement in cross-examination. The mere possibility that a jury may draw an inference of a prior consistent statement does not, of itself, constitute reversible error. United States v. Gardin, supra; State v. Palmer, supra, 164.

The defendant’s second claim of error is that the trial court erred by limiting the cross-examination of Bernice Cox, the defendant’s estranged wife, regarding her bias in favor of the victim of the defendant’s assault. During her cross-examination, Bernice Cox stated that she was sympathetic toward her son because of the permanent scar on his face which resulted from his struggle with the defendant. Defense counsel’s attempts to probe the witness’ sympathy for her son based on his other problems, namely, his prior drug use, were objected to by the state. The trial court sustained the objection on the ground that such an inquiry was irrelevant to the issues of the credibility of the witness and the culpability of the defendant.

The right of an accused effectively to cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment. State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980); see also Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). Cross-examination regarding motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Milum, 197 Conn. 602, 609, 500 A.2d 559 (1985); State v. Privitera, 1 Conn. App. 709, 711-12, 476 A.2d 605 (1984). The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial court, but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. State v. Milum, supra, 609; State v. Gaynor, supra, 508; State v. Heinz, 3 Conn. App. 80, 85-86, 485 A.2d 1321 (1984). “Thus, a claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: whether the constitutional standard has been met, and, if so, whether the court nonetheless abused its discretion. State v. Gaynor, supra, 509-10.” State v. Heinz, supra, 86.

An examination of the record in this case indicates that the defendant has failed to satisfy either requirement. First, the cross-examination of Bernice Cox satisfied the requirements of the sixth amendment. Defense counsel was permitted to develop facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability and the bias of the witness, thus satisfying the constitutional standard. State v. Gaynor, supra, 509; State v. Heinz, supra, 86. The witness had already testified, without objection by the state, that she was sympathetic toward her son because of the scar on his face. The inquiries regarding her sympathy based upon his past drug use involved the introduction of evidence which was both cumulative and collateral; State v. Gaynor, supra, 509; and its exclusion did not unduly restrict the defendant’s right of cross-examination. The jury heard other testimony regarding the drug problem of Jackie Cox. Second, the defendant has failed to demonstrate that the restrictions imposed were clearly prejudicial, a requirement in establishing that the trial court abused its discretion. State v. Gaynor, supra, 510. The purpose of cross-examination as to bias is to test the credibility of the witness and the accuracy and reasonableness of his direct testimony. Id.; State v. Heinz, supra, 87. Here, the trial court’s ruling did not deny the defendant the opportunity to test the witness’ credibility or the accuracy of her testimony. We conclude that the defendant’s claim that the trial court unduly restricted his right of cross-examination is without merit.

The defendant’s third claim of error is that the trial court erred by excluding evidence relating to the reputation in the community as' to the truth and veracity of Jackie Cox, offered by the defendant to impeach his credibility. The trial court excluded the evidence on the ground that a proper foundation as to the source of the character witness’ knowledge was not demonstrated. With the jury excused, the witness stated that he knew Jackie Cox “from the streets” and from one occasion when Cox talked to him about selling some guns. The witness had no other contact with Jackie Cox. He also stated that he heard “from the streets” that Cox was “a user of drugs” and that “other junkies and whatever” had told him so.

Evidence relating to truth and veracity may be elicited either by inquiry into the witness’ knowledge of the subject’s general reputation in the community for those particular traits or by the opinion evidence of those who have been shown to have had an opportunity to form, and who have formed, an opinion as to the character of the subject with respect to the trait or traits in issue. See State v. Rodriguez, 180 Conn. 382, 393, 429 A.2d 919 (1980); State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976); State v. Gelinas, 160 Conn. 366, 368, 279 A.2d 552 (1971); State v. Blake, 157 Conn. 99, 104-105, 249 A.2d 232 (1968). “Whether a witness has had sufficient contact with a person to be qualified to testify as to a particular character trait is a matter peculiarly within the discretion of the trial court and ‘its ruling will be disturbed only in a clear case of abuse or of some error in law.’ State v. Rodriguez, [supra, 389]; Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973).” State v. George, 194 Conn. 361, 368-69, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). A review of the record clearly reveals the paucity of contacts between the witness and Jackie Cox. The defendant failed to demonstrate that the witness had sufficient knowledge of Cox’s general reputation in the community for truth and veracity or that he had an opportunity to form an opinion as to Cox’s character for the particular traits in question. We conclude that the trial court did not abuse its discretion in disallowing the evidence for lack of a sufficient foundation. State v. George, supra, 369.

The defendant’s final claim of error is that the trial court erred by instructing the jury that evidence introduced by the state concerning the prior convictions of Jackie Cox could only be used for impeachment purposes. He argues that the evidence, at the time of its introduction, was not limited to use in impeaching credibility, and, therefore, could be used for all purposes, including the defendant’s claim of self-defense and the witness’ propensity to violate the law.

On his direct examination, Jackie Cox testified, without objection by the defendant, that he had several criminal cases pending against him and a prior conviction for the sale of cocaine. In its charge to the jury, the trial court made reference to the felony convictions of both Cox and the defendant in instructing the jury that such convictions could only be used for impeachment purposes. The defendant argues that the conviction for the sale of cocaine, if used for all purposes, would have strengthened his claims that he acted in self-defense, and that Jackie Cox was “high” at the time of the incident. He further argues that the conviction, and the other pending criminal charges, had they not been limited to the impeachment of the credibility of Jackie Cox, would have reinforced his claim that Jackie Cox, rather than he, had broken the law. The defendant does not argue that the state could not have sought and obtained a limiting instruction to the jury as to the use of the testimony.

General Statutes § 52-145 (b) provides that conviction of a crime may be shown for the purpose of attacking the credibility of a witness. The section has been interpreted to apply solely to those convictions the punishment for which exceeds one year. See State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985); State v. Roman, 6 Conn. App. 189, 190-91, 504 A.2d 529 (1986). As a general rule, the trial court has discretion in determining whether a conviction should be admitted for purposes of impeachment and its decision may be reversed only if the court abuses that discretion. State v. Braswell, supra, 307; State v. Nardini, 187 Conn. 513, 521-22, 447 A.2d 396 (1982).

The question here, however, is not whether Jackie Cox’s credibility could be attacked by his prior conviction, but whether evidence of the conviction, not having been explicitly limited by the state for use in credibility impeachment, could be used for all purposes, without limitation. The state, in this case, obviously elicited the prior criminal involvement of Jackie Cox on direct examination, as a trial tactic in order to anticipate potentially damaging impeachment evidence on cross-examination. “Such tactical maneuvering is permissible within the trial court’s discretion.” Tait & LaPlante, Connecticut Evidence (1985 Sup.) § 7.18, p. 74.

Although the precise issue has not been addressed by Connecticut’s Appellate Courts, two Supreme Court cases provide guidance. If a defendant has introduced his prior convictions into evidence, without requesting a limiting instruction, the trial court’s failure to give a limiting instruction in its jury charge is not error sufficient to require reversal. State v. Johnson, 188 Conn. 515, 520-22, 450 A.2d 361 (1982). Implied in this holding is the proposition that, had the defendant in Johnson requested a limiting instruction, it would have been error for the court to fail to so instruct the jury. By analogy, had the state in this case sought an instruction limiting the evidence to credibility, it would have been error for the court to deny the request.

If evidence is introduced, without a request to use it for a limited purpose, and without objection, it becomes evidence for whatever it is worth, although the adverse party may later be entitled to an instruction to the jury regarding its limitation or its inherent infirmity. See Sears v. Curtis, 147 Conn. 311, 316-17, 160 A.2d 742 (1960).

Under the circumstances of this case, the introduction of the prior conviction of a state’s witness by the state on his direct examination, without a request by the state, at the time, to limit the evidence to use in impeaching his credibility and without objection by the defendant, entitled the state to a limiting instruction in the court’s charge to the jury. Since the state was entitled to the limiting instruction, it was not error for the court to give the instruction even when the state did not request it.

There is no error.

In this opinion the other judges concurred.

       Conflicting evidence was presented regarding the exact nature of the stick. Its description ranged from the size of a small club to one three feet in length.

       The defendant was also charged with assault in the second degree involving his estranged wife, and was found not guilty.

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       Practice Book § 753 provides in pertinent part: “If the entire contents of a statement requested under Sec. 752 relate to the subject matter of the testimony of the witness, the judicial authority shall order the statement to be delivered directly to the defendant or his counsel for his examination and use.”
      Practice Book § 754 provides: “Whenever any statement is delivered to a defendant pursuant to Sec. 751, the judicial authority in his discretion, upon application of the defendant, may recess the proceedings for such time as he may determine to be reasonably required for the examination of such statement by the defendant and his preparation for its use in the trial.”

       The trial court’s charge to the jury on this issue is as follows: “You should consider a witness’s interest or lack of interest of whatever sort in the outcome of the trial, his or her ability to observe facts correctly and to remember and relate them truly and accurately. You should test the evidence any witness has given you by your own knowledge of human nature and of the motives which influence and control human action. We have a statute that in this State reads as follows: 'No person shall be disqualified as a witness in any action by reason of his conviction of a crime, but such conviction may be shown for the purpose of affecting his credibility. Credibility as used here means believability. It has been shown that the accused and the witness Jackie Cox have been convicted of a felony in this State. The conviction of another crime by a witness or the accused has been allowed into evidence for the sole purpose of affecting their credibility. You are not to disregard the evidence of the accused or of the witness merely because he was convicted of another crime. You may weigh his testimony and consider it along with the other evidence in this case. It may take into consideration the conviction of the accused or of the witness as bearing upon his credibility, but you should determine that credibility upon the same considerations as those given to any other witness.”

       A conviction for the sale of cocaine is not necessarily related to the use of cocaine or related to violence.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Salvatore J. Perruccio v. Wallace Arseneault et al.
    (3126)
    Dupont, C. J., Borden and Bieluch, Js.

      Argued January 7 —
    decision released May 20, 1986

      William Howard, for the appellant (plaintiff).

      John M. Creane, with whom, on the brief, was Konstant W. Morell, for the appellees (defendants).
   Dupont, C. J.

This is an appeal from a judgment rendered for the defendants in accordance with a verdict directed at the close of the plaintiff’s case. The plaintiff sued the defendants for allegedly libelous statements made by the named defendant, Wallace Arseneault, concerning the plaintiff’s management of a labor union. The parties concede that the plaintiff is a public figure as defined in Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), and, therefore, that the plaintiff cannot recover for defamatory falsehoods, absent clear and convincing evidence that the statements were made with actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). The trial court granted the defendants’ motion for a directed verdict, stating that the plaintiff failed to show that the statements were false and made with actual malice. On appeal, the plaintiff contends that the trial court erred in directing a verdict for the defendants and by excluding certain evidence relevant to show that the statements were false, were made with actual malice and injured the plaintiff's reputation. We find no error.

The plaintiff was the president of the Connecticut Employees Union Independent (CEUI). CEUI represented the maintenance workers employed by the state of Connecticut at the University of Connecticut at Storrs (UConn). The defendant, Arseneault, was a maintenance worker at UConn and a member of the CEUI, holding various offices in the union, including that of vice president. In November, 1979, Arseneault resigned as vice president of CEUI to campaign for another union bargaining representative. The co-defendant, District 1199, National Union of Hospital and Health Care Employees (1199), sought to take over representation of the maintenance workers at UConn and engaged the services of Arseneault as a field organizer for that campaign.

The campaign began during the last week of November, 1979, and was the subject of several newspaper articles. Arseneault made statements which were quoted in these articles. The first count of the plaintiffs complaint alleges that Arseneault made a public statement in the Middletown Press charging the plaintiff with “dictator leadership” of the union and failure to follow the by-laws of the union’s constitution. Arseneault also accused the plaintiff of circulating “slanderous” fliers, maintaining a private checking account with union funds and using union funds without “having authority and/or approval of the executive board to spend funds of the union.” The second count of the complaint alleges that Arseneault, by statements printed in the Hartford Courant, accused the plaintiff of making out checks “when he sees fit” even though “the by-laws say anything up to $1,000 requires the executive board’s approval and anything more than $1,000 [requires] the members’ approval.” The third count of the complaint alleges that Arseneault accused the plaintiff, through statements in the Willimantic Chronicle, of being “a dictator who spends [union] money as he sees fit,” and “[a]ny big decision— [Perruccio] makes it — its a dictatorship union. He signs checks with the Treasurer and they spend the money as they see fit. If anybody’s going to jail, its not going to be me, because I don’t want any part of it.” The fourth count alleges that Arseneault libeled the plaintiff in a letter to the maintenance workers at UConn by stating “Sal Perruccio does not tell the whole truth to our Union’s members.” The fifth count alleges that Arseneault, in an article in the Willimantic Chronicle, accused the plaintiff of mishandling union funds.

In its direction to the jury to render a verdict for the defendants, the trial court assumed that Arseneault’s statements were factual, rather than statements of opinion. The court, however, found that the plaintiff failed to establish that the statements were false and failed to produce clear and convincing evidence that Arseneault made the allegedly defamatory statements with actual malice. Judgment was rendered on the verdict for the defendants. The plaintiff moved to set aside the verdict and for a new trial. This motion was denied without articulation and the plaintiff appealed.

The plaintiff claims that the trial court erred in directing a verdict because the jury could reasonably have found that the published statements were false, made with actual malice and caused actual damage. The plaintiff also claims that the trial court erred by excluding certain evidence relevant to these same issues.

In cases where actual malice must be shown, the burden of proving the falsity of the defendant’s statements is on the plaintiff. See Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 490, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975); Time, Inc. v. Pape, 401 U.S. 279, 290-91, 91 S. Ct. 633, 28 L. Ed. 2d 45 (1971) (relying on New York Times Co. v. Sullivan, supra); Wilson v. ScrippsHoward Broadcasting Co., 642 F.2d 371, 374-76 (6th Cir. 1981); Meiners v. Moriarity, 563 F.2d 343, 351 (7th Cir. 1977); Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112 n.6, 448 A.2d 1317 (1982). A directed verdict can be upheld only if the jury could not reasonably and legally have reached any other conclusion. Bleich v. Ortiz, 196 Conn. 498, 500-501, 493 A.2d 236 (1985); Pinto v. Spigner, 163 Conn. 191, 192-93, 302 A.2d 266 (1972). “ ‘In reviewing the trial court’s decision directing a verdict [for the defendant] and denying a subsequent motion to set it aside, this court considers all the evidence, including reasonable inferences, in the light most favorable to the plaintiff. Pinto v. Spigner, supra; Leary v. Johnson, 159 Conn. 101, 104, 267 A.2d 658 (1970).’ Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979) . . . .” (Brackets in original.) Bleich v. Ortiz, supra, 501.

During the plaintiff’s presentation of his case, he admitted to irregular practices regarding the disbursement of union funds. Specifically, he admitted that not all expenditures were approved by the executive board as required by the union by-laws. While this practice may have been an accepted procedural deviation from the union’s by-laws, the fact that such deviations existed demonstrates that Arseneault’s statements concerning Perruccio’s failure to comply with the union’s by-laws, mishandling of union funds, “making checks when he sees fit” and using funds without “authority and/or approval of the executive board” were technically and substantially true. For a publication to be libelous in any sense, it must be false. Hogan v. New York Times Co., 313 F.2d 354, 355 n.1 (2d Cir. 1963). These statements, therefore, were protected as free speech.

The plaintiff also alleged that Arseneault’s accusations of “dictator leadership” were libelous. Such a statement should not be viewed in isolation but must be considered within the context in which it was made. Arseneault was a union member criticizing the union leadership. He was also a field representative for a competing union seeking to represent the UConn maintenance workers. While defamatory statements made during labor controversies are not immunized from civil liability; see Letter Carriers v. Austin, 418 U.S. 264, 279, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974); such statements must be gauged by “ ‘the conventional give-and-take in our economic and political controversies’ ” to • determine whether they are statements of fact or opinion. Gregory v. McDonnell Douglas Corporation, 17 Cal. 3d 596, 602, 552 P.2d 425, 131 Cal. Rptr. 641 (1976), quoting Cafeteria Union v. Angelos, 320 U.S. 293, 64 S. Ct. 126, 88 L. Ed. 58 (1943). We also note that this allegation may properly be characterized as opinion because it is not objectively capable of being proven true or false. See Buckley v. Littell, 539 F.2d 882, 894 (2d Cir. 1976), cert. denied, 429 U.S. 1062, 97 S. Ct. 785, 50 L. Ed. 2d 777 (1977) (allegation that plaintiff was a “fascist” not defamatory in its context). Given the context in which the statement was made, a reasonable reader would not take such a statement literally. We hold that within the context of this union representation contest, Arseneault’s statement that the plaintiff is a “dictator,” without more, is a statement of opinion insufficient to sustain an action for libel. We also find that the statement, “Sal Perruccio does not tell the whole truth to our Union’s members” (emphasis added), to the extent that it is objectively capable of being proven false, has not been so proven. The plaintiff also failed to present evidence to demonstrate the falsity of Arseneault’s allegations concerning the distribution of slanderous fliers or the maintenance of a private checking account with union funds. The jury, therefore, could not have reasonably found that these statements were libelous.

In directing the verdict for the defendants, the trial court also found that the plaintiff had failed to establish by clear and convincing evidence that the allegedly libelous statements were made with actual malice as required by New York Times Co. v. Sullivan, supra. Actual malice is present when a statement is made with knowledge that the statement was false or when it is made with reckless disregard as to whether it was false or not. New York Times Co. v. Sullivan, supra, 279-80. Even if we assume arguendo that the plaintiff had sustained his burden of proof with respect to the falsity of the statements, construing all the facts and logical inferences therefrom in the plaintiffs favor, the jury could not have reasonably found that the plaintiff had presented clear and convincing evidence to prove that Arseneault had made the statements with reckless disregard as to whether they were true or false. The evidence presented was insufficient to prove the plaintiffs prima facie case of actual malice.

The plaintiff claims that he was prevented from establishing his prima facie case by the trial court’s erroneous exclusion of evidence relevant to the issues of falsity, actual malice and injury to reputation. He claims that the trial court excluded evidence that Arseneault was present and voted at a January 28, 1976, meeting of the CEUI executive board. The trial court excluded this evidence as irrelevant. The plaintiff claimed that this evidence was relevant to prove the falsity of Arseneault’s statements by showing that he was aware of certain actions taken by the board which he later alleged were improper. “Relevant evidence must be logically probative and sufficiently significant to aid the trier in the determination of a fact in issue.” Turgeon v. Turgeon, 190 Conn. 269, 273, 460 A.2d 1260 (1983). The trial court is given wide discretion to determine the relevancy of offered evidence. State v. DeForge, 194 Conn. 392, 396, 480 A.2d 547 (1984). A determination by the trial court that certain evidence is irrelevant will not be disturbed unless such a determination constitutes an abuse of discretion. Vazzano v. Slater, 6 Conn. App. 1, 6, 502 A.2d 440 (1986). The evidence excluded here would not show that Arseneault’s allegations were untrue. At best, it would have shown that Arseneault was aware of allegedly improper activity as early as January, 1976. The trial court did not abuse its discretion in excluding such evidence as irrelevant.

The plaintiff also claims that the trial court erred in excluding circumstantial evidence tending to show actual malice on behalf of Arseneault. The plaintiff attempted to prove that Arseneault’s statements were part of a “concerted plan” directed at the plaintiff with the intent to do him harm. The plaintiff sought to introduce evidence of a conversation in September, 1977, between the plaintiff and the president of 1199. The defendants’ counsel objected to the question as irrelevant and the objection was sustained. The plaintiff’s counsel, however, made no offer of proof to demonstrate the relevancy of the question. We are therefore unable to review this claim. There is no indication of plain error. See Practice Book § 3060D. This same reasoning applies to the plaintiff’s claim of error regarding the trial court’s exclusion of certain testimony of Susan Chappa, another witness.

The plaintiff also claims that the trial court erred in excluding evidence to demonstrate a personal conflict between him and the defendants which led to Arseneault’s defamatory statements. The trial court sustained the objection of the defendants’ counsel to the testimony of Henry M. Bouley, Sr., regarding a dispute between him and Arseneault which was offered to show ill will between Arseneault and the plaintiff. The plaintiff also offered the testimony of Salvatore Shilone to prove that 1199 had attempted to recruit Shilone’s services in its campaign to take over representation of the UConn maintenance workers. This evidence was held inadmissible on the ground of irrelevancy. The plaintiff, with his offer of such evidence, was attempting to prove the defendants’ “ill will” or common law malice against the plaintiff as evidence that they acted with actual malice under New York Times Co. v. Sullivan, supra. The plaintiff contends that this ill will was relevant and admissible evidence to show that Arseneault’s state of mind was highly conducive to the reckless disregard of falsity. Although ill will or common law malice is relevant evidence of actual malice because it provides a motive for knowing or reckless falsehood, such evidence alone cannot support a finding of actual malice. Beckley Newspapers v. Hanks, 389 U.S. 81, 82, 88 S. Ct. 197, 19 L. Ed. 2d 248 (1967) (per curiam). Therefore, if any error was committed by excluding such evidence, it was harmless.

An independent appellate review of the record in this case fails to show, by clear and convincing evidence, that the defendants falsely defamed the plaintiff with statements made with actual malice. See Herbert v. Lando, 781 F.2d 298, 308 (2d Cir. 1986); Goodrich v. Waterbury Republican-American, Inc., supra, 108 n.1.

The plaintiff also claims that the trial court erred in excluding evidence to demonstrate that the plaintiff’s reputation was damaged as a result of Arseneault’s statements. Since the plaintiff failed to prove that such statements were false or made with actual malice, claims of error relating to the plaintiff’s injured reputation are moot and need not be addressed.

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Connecticut Limousine Service, Inc. v. Nancy Powers et al.
    (4288)
    Borden, Daly and Bieluch, Js.
    Argued March 19 —
    decision released May 20, 1986

      John T. Grillo, with whom, on the brief, was Albert R. Annunziata, for the appellant (named defendant).

      Michael Brodinsky, for the appellee (plaintiff).
   Daly, J.

This appeal arises from an action by the plaintiff to recover from the named defendant sums due for tickets purchased for the use of the plaintiff’s limousine service. The named defendant pleaded, by way of special defense, that the agreement to sell limousine tickets was between the plaintiff and Nancy Powers Associates, Inc., and, therefore, that the defendant Powers was not individually liable. The trial referee determined that an implied contract existed between the plaintiff and Powers individually and, as a result, awarded the plaintiff damages.

On appeal, the named defendant has raised the following claims: (1) whether the referee erred in admitting into evidence a credit application purportedly sent to the named defendant and returned by mail to the plaintiff, on the ground that it did not fall within either the business record or the “reply doctrine” hearsay exception; and (2) whether a contract existed only between the plaintiff and Nancy Powers Associates, Inc., thereby excluding Nancy Powers from personal liability on the debt.

The following facts were found by the trial referee. In June, 1980, Nancy Powers Associates, Inc., purchased Yale Co-op Travel Agency and the Leona Travel Agency. For more than a year thereafter, these agencies ordered, received and paid the plaintiff for tickets that the named defendant in turn sold to customers for their transportation to and from airports. The plaintiff has many such agreements with travel agencies throughout the state for the purpose of providing customers with airport connecting travel.

Powers ran both agencies exclusively from July, 1971, and was entirely in control of Yale Travel from June, 1980. She made travel arrangements, deposits, signed checks and generally managed Yale Travel. The plaintiff did not learn of the change of ownership in Yale Travel until July, 1981, at which point, a new credit application was mailed for up-dating to Yale Travel and was received back in the mail, listing the owners as Arthur Barbieri and Nancy Powers, his daughter. The application listed “Leona Travel Agency & Yale Co-op Travel Agency” as the business names and further indicated that the business was a partnership. Although the named defendant was billed for tickets sold from August to December, 1981, totalling approximately $7000, no payments were remitted for these tickets despite the fact that previous payments had been made from June, 1980, to July, 1981.

At no time did Powers or Barbieri disclose to the plaintiff or to the plaintiffs employees that a corporation existed known as Nancy Powers Associates, Inc. The referee further found that no public knowledge of the existence of the corporation such as advertising, phone listing, stationery or billheads was adduced at trial to show that actual or constructive notice of the corporation was given to potential creditors such as the plaintiff. In August, 1981, Leona Travel ceased to exist as a viable entity. Finally, it was found that the entire course of dealings between the plaintiff and Nancy Powers Associates, Inc. was carried on through Powers herself, apparently doing business as “Yale Co-op Travel Agency.”

The named defendant claims that the unsigned credit application was a hearsay document that did not fall within the business records exception or under the reply doctrine. “In testing the inferences that the trier is justified in drawing from the proven facts, a party is entitled to have his evidence considered in the most favorable view which it could reasonably bear.” Monroe v. Crandall, 3 Conn. App. 214, 219, 486 A.2d 657 (1985). In order for a document to fall within the business records exception to the hearsay rule, the record must be shown to have been made “in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.” General Statutes § 52-180 (a). In this case, insufficient evidence was presented to establish that the credit application conformed to the requirements of § 52-180 (a) and, therefore, it should not have been admitted into evidence under the business records exception.

To determine the admissibility of a reply letter, the contents must be shown to contain information that only the purported author is likely to know and expressed in a way peculiar to that author. Whalen v. Gleeson, 81 Conn. 638, 642-43, 71 A. 908 (1909); McCormick, Evidence (2d Ed.) § 225, pp. 552-53. Here, the credit application was not specifically addressed to Powers or Barbieri, nor was it returned to the plaintiff with either of their signatures. Garland v. Gaines, 73 Conn. 662, 665, 49 A. 19 (1901). The trial court’s admission of the credit application under the reply doctrine was, therefore, erroneous.

“Although the ruling was erroneous, the defendant is not entitled to relief unless the error is also harmful.” McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 40, 440 A.2d 801 (1981). We find the error with regard to the admission of the credit application harmless as other evidence presented sufficiently supported the court’s judgment.

While the defendant Powers does not deny the existence of an agreement with the plaintiff, she claims that the contract was with Nancy Powers Associates, Inc., and that she was merely an agent of the corporation. The referee found that Powers did not reveal to the plaintiff that she was dealing with it as an officer of the corporation, Nancy Powers Associates, Inc. It was further found that Powers continued to hold herself out to the public and to the plaintiff as the main principal at Yale Travel. “The law is settled that where an agent contracts in his own name, without disclosing his representative capacity, the agent is personally liable on the contract.” Murphy v. Dell Corporation, 184 Conn. 581, 582, 440 A.2d 223 (1981); Diamond Match Co. v. Crute, 145 Conn. 277, 279, 141 A.2d 247 (1958). “To avoid personal liability, it is the duty of an agent to disclose both the fact that he is acting in a representative capacity and the identity of his principal, since the party with whom he deals is not required to discover or make inquiries to discover these facts.” (Citations omitted.) New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 683, 474 A.2d 810 (1984). Neither Powers nor Barbieri informed the plaintiff that a corporation existed nor did they hold themselves out publicly as a corporation.

The defendant further raises the argument that payments to the plaintiff covering a period of more than a year were made by checks from the corporation. Payments by corporate checks were not considered sufficient notice to the plaintiff that travel tickets were purchased on behalf of the corporation and are insufficient to exempt the defendant from personal liability. Diamond Match Co. v. Crute, supra, 278-79; Antinozzi Associates v. Arch Fracker Plumbing & Heating Contractor, Inc., 39 Conn. Sup. 375, 379, 465 A.2d 333 (1983). In this case, not only were corporate checks used but also the defendant “made no attempt to have the plaintiff charge or bill the corporation instead of [herself] . . . [and] made no protest until after financial difficulties arose . . . .” Diamond Match Co. v. Crute, supra.

Whether there was nondisclosure to the plaintiff that Nancy Powers Associates, Inc., was the principal, so that the plaintiff might hold Powers personally liable on the contract, is a question of fact for the trial court. Murphy v. Dell Corporation, supra, 582; see also Botticello v. Stefanovicz, 177 Conn. 22, 26, 411 A.2d 16 (1979). The referee decided this question of fact in favor of the plaintiff. While the function of the trial court consists of weighing evidence and judging the credibility of the witnesses, that is not the function of this court. Murphy v. Dell Corporation, supra, 583. “A reviewing court’s role is to decide whether the decision of the trial court is clearly erroneous in view of the evidence and pleadings in their entirety. The trial court’s decision was not clearly erroneous.” Wykowski v. Presti, 7 Conn. App. 188, 190, 508 A.2d 444 (1986); New England Whalers Hockey Club v. Nair, supra, 683-84.

There is no error.

In this opinion the other judges concurred.

       Arthur Barbieri was a defendant in this case, but judgment was rendered in his behalf and he is no longer involved in this appeal.


author: Borden, J.

text:
    State of Connecticut v. Meyer Liebowitz
    (2740) (2741)
    Borden, Daly and Bieluch, Js.
    Submitted on briefs February 7 —
    decision released May 20, 1986

      John R. Williams, Sue L. Wise and Barbara Goren filed a brief for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, Arnold Markle, state’s attorney, and Patrick J. Clifford, assistant state’s attorney, filed a brief for the appellee (state).
   Borden, J.

The defendant appeals from a judgment of conviction, following a jury trial, of illegal distribution of cocaine in violation of General Statutes (Rev. to 1979) § 19-480 (a), and illegal possession of cocaine in violation of General Statutes (Rev. to 1979) § 19-481 (a). The issues raised on appeal may be categorized as follows: (1) whether General Statutes (Rev. to 1979) § 19-481 (a) is void for vagueness and thus unconstitutional; (2) whether the trial court erred in its instructions to the jury; and (3) whether the trial court erred by denying in part the defendant’s motions for a bill of particulars. The latter issue is the only claim which is not raised under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We find no error.

We first address whether the defendant’s Evans claims qualify for review. In this regard, the determinative issue is whether “the record adequately supports a claim that [the defendant] has clearly been deprived of a fundamental constitutional right and a fair trial.” Id., 70. For this purpose it is necessary to set forth the pertinent aspects of the record upon which each of the defendant’s Evans claims is based.

I

Vagueness of General Statutes § 19-481 (a)

The defendant, a licensed physician, claims that General Statutes (Rev. to 1979) § 19-481 (a), which prohibits illegal possession of cocaine by any person “except as authorized in this chapter,” is unconstitutionally vague. In essence, the defendant challenges, for the first time on appeal, the constitutionality of the statutory authorization clause. Although the state concedes that this claim sufficiently implicates a fundamental constitutional right and, therefore, qualifies for review under Evans, we decline to review this claim. See State v. Cosby, 6 Conn. App. 164, 166, 504 A.2d 1071 (1986) (state’s concession of reviewability under Evans is not binding upon this court).

There is no question that a vagueness challenge raises an issue of fundamental constitutional dimension. See State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). For purposes of an Evans review, however, it is also necessary that the record “adequately supports [the] claim that [this defendant] has clearly been deprived of [that] fundamental constitutional right . . . .” (Emphasis added.) State v. Evans, supra.

The record indicates that the defendant maintained his professional offices in West Haven in a building where he also maintained a basement apartment. On January 24, 1980, a team of police officers affiliated with the statewide narcotics task force, and three drug control agents from the state department of consumer protection, executed at these premises arrest and search warrants, which had been obtained as a result of a prior investigation of the defendant during which he gave cocaine to an undercover police officer. Pursuant to the arrest warrant, the officers first arrested the defendant for illegal distribution of cocaine. Pursuant to that arrest and to the search warrant, the officers then searched the defendant, his offices and the basement apartment. In the defendant’s pants pocket they found a glass vial containing a white powder. In his wallet they found a folded piece of “pyramid” paper, which is commonly used by street vendors to package drugs and which contained a small quantity of white powder. In the defendant’s desk drawer they also found a plastic bag containing a white powder residue. The powder and the residue contained cocaine. The search of the defendant’s basement apartment also yielded other drug paraphernalia. As a result of these searches, the defendant was also arrested for illegal possession of cocaine in violation of General Statutes (Rev. to 1979) § 19-481 (a).

The record also indicates that at trial, in defense to the charge of illegal possession of cocaine, the defendant testified that one of his medical patients had found the vial in his daughter’s apartment, and gave it to the defendant to be tested for what the patient suspected to be a narcotic substance. The defendant claimed, however, that he had no specific knowledge of the nature of the vial’s contents. With regard to the cocaine found in his wallet and desk, the defendant’s testimony essentially was that he was in possession of the cocaine as an incident to his medical practice. On cross-examination, however, he acknowledged that since 1973 he had not obtained any cocaine by the means legally required of a physician for use in his medical practice. That legally authorized means of obtaining cocaine consists of filling out the requisite order forms and submitting them, with appropriate copies, to the proper regulatory agencies. The defendant claimed that this process was too time consuming. Instead, he testified that he obtained possession of the cocaine from his patients for whom he had originally prescribed its use.

In contrast to the defenses raised at trial, the defendant now claims that General Statutes (Rev. to 1979) § 19-460 (a) (now § 21a-252 [a]), which authorizes “[a] physician, in good faith and in the course of his medical practice only, [to] prescribe, administer and dispense [cocaine],” is ambiguous and thus unconstitutionally vague. In this regard, he claims that, because General Statutes (Rev. to 1979) § 19-481 (a) necessarily refers to § 19-460 as a basis upon which possession of cocaine may be authorized, § 19-481 (a) is unconstitutionally vague to the extent that § 19-460 is found to be vague. He specifically claims that the standard of conduct to which he is held under General Statutes (Rev. to 1979) § 19-460 is ambiguous because it can be construed as a subjective, “good faith” standard, an objective “medical practice” standard, or as some combination of the two. This record, however, does not provide an adequate basis upon which to review this claim.

The record does not indicate that the defendant ever made any explicit reference to any standard set forth in General Statutes (Rev. to 1979) § 19-460 as the applicable statutory basis for his defense to the charge of illegal possession of cocaine under General Statutes (Rev. to 1979) § 19-481 (a). See State v. Thompson, 197 Conn. 67, 76-77 n.6, 495 A.2d 1054 (1985) (no Evans review of vagueness challenge where record revealed defendant failed to raise issue in trial court regarding questionable statutory standard). Nevertheless, the defendant now argues that the record of his testimony with respect to his alleged authorized possession of the cocaine in his wallet and desk drawer, when viewed apart from the balance of the record as a whole, suffices for Evans purposes to support our review of the vagueness claim. We will not, however, completely disregard those aspects of the record which clearly provide an adequate and independent factual basis for the defendant’s conviction of illegal possession of cocaine, in violation of General Statutes (Rev. to 1979) § 19-481 (a), merely because other aspects of the record arguably support an Evans review of a previously unchallenged portion of that statute. Cf. State v. Jacobowitz, 194 Conn. 408, 415, 480 A.2d 557 (1984) (evidence viewed in light most favorable to sustaining jury verdict).

In this regard, we note that the defendant did not raise his statutory authorization as a defense to illegal possession of the cocaine in the vial. Instead, he denied specific knowledge of the vial’s contents. Because the jury could reasonably have convicted the defendant of illegal possession of the vial of cocaine under General Statutes (Rev. to 1979) § 19-481 (a), without any reference to or reliance upon the statutory authorization clause which is challenged for the first time on appeal, we conclude that the record does not adequately support our review of the present claim.

II

Jury Instruction

The defendant has raised three claims of instructional error under State v. Evans, supra. The first claim, which pertains to the trial court’s alleged failure to instruct the jury regarding the intent which must accompany unauthorized possession of cocaine, explicitly assumes that this court has reviewed the vagueness issue. Because the vagueness issue is not properly reviewable, this claim of instructional error also fails to command review.

The defendant also claims that the trial court erred by failing properly to instruct the jury regarding the statutory authorization to possess and to distribute cocaine, pursuant to General Statutes (Rev. to 1979) §§ 19-480 (a) and 19-481 (a) respectively. In particular, he claims that because the authorization exception is an essential element of these offenses, he was denied due process of law by the trial court’s misstatement of the law in its charge regarding this element. Cf. State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984) (erroneous instruction regarding essential element of charged offense violative of due process). This argument is without merit.

General Statutes § 21a-269, formerly § 19-474, provides, in pertinent part, that “[i]n any complaint, information or indictment . . . brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, proviso or exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.” This statute has been construed to mean that a statutory exception, such as the exception involved in the present case, is not an essential element of the offense unless and until the defendant has introduced “substantial evidence” of the applicability of the exception to him. State v. Januszewski, 182 Conn. 142, 164-65, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), quoting State v. Brown, 163 Conn. 52, 66-67, 301 A.2d 547 (1972). Once he has done so, “the burden then devolves upon the state to prove the nonapplicability of the exception, as with all other essential elements in the case, beyond a reasonable doubt.” (Emphasis added.) State v. Januszewski, supra. Therefore, before these claims of error in the trial court’s instructions regarding the essential element of authorization to possess or to distribute cocaine may be reviewed under Evans, it is necessary that the record adequately support the claim; State v. Evans, supra; that substantial evidence was introduced by the defendant which indicated the applicability of the exception to his case. State v. Januszewski, supra.

With regard to the charge of illegal distribution of cocaine, the defendant merely denied the allegations upon which the information was based. The only evidence presented by the defense which could be construed as raising an issue regarding authorization to distribute was the evidence of the defendant’s status as a physician. This evidence alone, however, does not rise to the level of substantial evidence which is necessary to establish that the statutory exception is an essential element of this offense. Id. See United States v. Moore, 423 U.S. 122, 131-33, 96 S. Ct. 335, 46 L. Ed. 2d 333 (1975) (status alone does not exempt physician from federal prosecution for illegal distribution of narcotics). Thus, because of these inadequacies in the record, we decline to review the claimed error in the trial court’s instructions regarding the authorization clause in General Statutes § 19-480 (a). See State v. Evans, supra, 71; see also State v. Brown, 163 Conn. 52, 67, 301 A.2d 547 (1972) (no error to omit a charge on statutory license exemption where evidence silent on issue).

The record with regard to the trial court’s instructions on the defendant’s authorization to possess cocaine presents a slightly different issue from the standpoint of an Evans review than it does with regard to those issues which have thus far been discussed. On the one hand, the record reveals that the defendant testified that he obtained possession of the cocaine in his wallet and desk drawer from his patients. Thus, in contrast to the defense of denial to the charge of illegal distribution, the defendant did raise the defense of authorization to the charge of illegal possession of cocaine. Nevertheless, our review of this record raises some doubt regarding whether this evidence, namely, the defendant’s testimony alone, rises to the level of “substantial evidence” which would entitle the defendant to an instruction that the state must prove beyond a reasonable doubt that his possession was not authorized. See General Statutes § 21a-269, supra; State v. Januszewski, supra. In addition, while the record indicates that the defendant did file a request to charge regarding authorization to possess cocaine and that he excepted to a portion of the charge as given, the request and the exception were based on grounds which were different from the grounds now raised on appeal. See State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980).

On the other hand, our review of the record also reveals that the trial court apparently concluded that the defendant had introduced sufficient evidence of authorization to possess the cocaine in his wallet and desk drawer, since the court did, in fact, instruct the jury that lack of authorization was an essential element of the offense which the state must prove beyond a reasonable doubt. In addition, the state has not preserved, in its preliminary statement of the issues, a claim that this conclusion of the trial court constitutes an adverse ruling which should be reviewed on appeal as an alternate ground upon which the trial court’s decision may be affirmed. See Practice Book § 3012 (a). Therefore, under these circumstances, we will adopt the conclusion of the trial court that sufficient evidence was presented to shift the burden to the state to prove that the defendant was not authorized to possess the cocaine in his wallet and desk drawer, and we will review the defendant’s claim of error. See Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984) (appellate court decides issues based on theory upon which those issues tried and decided). Our review, however, will be restricted to the specific facts of this case. State v. Burke, supra, 332 n.3.

“ ‘In cases involving claimed error in the judge’s charge to the jury, the ultimate issue is whether it was reasonably possible that the jury was misled’; State v. Lopez, [5 Conn. App. 599, 603, 502 A.2d 418 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146 (1986)]; ‘into misunderstanding an issue that has fundamental constitutional significance.’ State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985).” State v. Grant, 6 Conn. App. 24, 27, 502 A.2d 945 (1986).

The defendant claims specifically that the trial court erred in charging the jury on the provisions of chapter 359 of the General Statutes, which authorize possession of cocaine by a physician. This claim may be broken down into three component parts: (1) that the trial court erred by merely reading or paraphrasing numerous statutory provisions without further explaining the standard, under General Statutes (Rev. to 1979) § 19-460, by which the defendant’s conduct was to be assessed; (2) that the trial court erred by failing to include General Statutes (Rev. to 1979) §§ 19-464 and 19-465 in its instructions; and (3) that the trial court’s inclusion of various subsections of General Statutes (Rev. to 1979) § 19-461 rendered these instructions misleading. We disagree.

The defendant first claims that he was entitled to an instruction, pursuant to General Statutes (Rev. to 1979) § 19-460, that if he believed in good faith that the possession of cocaine in his wallet and desk drawer was authorized, then he was to be acquitted of illegal possession. This claim is without merit.

The standard in General Statutes (Rev. to 1979) § 19-460, which pertains to this defendant, is that his possession is authorized if it is “in good faith and in the course of his professional practice only.” (Emphasis added.) See General Statutes (Rev. to 1979) § 19-460. This language is clear and unambiguous. It is not reasonably possible that the jury was misled when the trial court read the statutory language without explaining its meaning further. State v. Lopez, supra, 605. The defendant’s claim on appeal is erroneously based on a self-serving reading of merely a portion of this statutory language.

The defendant’s claim that the trial court erred by failing to include General Statutes (Rev. to 1979) § 19-464 in its instructions is equally devoid of merit. That statute pertains to the container in which a prescribed controlled substance may be stored by a person who receives the prescription from an authorized person, such as a physician. It has no applicability whatsoever to this defendant’s case.

The defendant’s claim regarding the trial court’s failure additionally to instruct the jury with regard to the provisions of General Statutes (Rev. to 1979) § 19-465 finds only minimal support in the record. General Statutes (Rev. to 1979) § 19-465, entitled “Exceptions concerning possession and control,” in pertinent part authorizes “temporary incidental possession by employees or agents of persons lawfully entitled to possession . . . .” (Emphasis added.) The defendant claims that this section pertains to him because he could have been considered to have possessed the cocaine as an agent of the patient or patients for whom it was originally prescribed by him. In response, the state argues that the defendant cannot legitimately be considered as an agent of his own patient within the meaning of this statute. In this regard, the state contends that if this defendant were deemed to be authorized to possess cocaine by this means, then the entire statutory and regulatory scheme would be frustrated. According to the state, those persons with the greatest access to controlled substances, namely, physicians, whose possession of such substances is closely regulated, would be able to divert illegal drugs into unauthorized channels by avoiding the regulatory scheme in the first instance. See United States v. Moore, supra, 135.

Even if we assume that the defendant’s rather farfetched defense was sufficiently raised at trial to warrant an instruction pursuant to General Statutes (Rev. to 1979) § 19-465, it is, nevertheless, clear that it was not reasonably possible that the jury was misled by the trial court’s failure to add this statutory provision to its charge. The trial court instructed the jury that, inter alia, the defendant was entitled to an acquittal if they found that he possessed the cocaine “in good faith and in the course of his professional practice only.” A reasonable jury hearing this instruction within the context of the entire charge; State v. Lopez, supra, 605; would naturally assume that the defendant’s possession of cocaine on behalf of a patient for whom it had been prescribed, was possession “in the course of his medical practice.” Whether the defendant possessed the cocaine “in the course of his medical practice only” was a matter of credibility of the defendant’s testimony. The trial court’s instructions as a whole adequately apprised the jury of the legal grounds upon which they might find the defendant’s conduct to be authorized. The defendant cannot be heard to complain regarding this instruction. “The jury did not believe him.” United States v. Moore, supra, 143.

Finally, there is no merit to the defendant’s alternative claim that the trial court included too many statutory provisions in its charge to the jury, and thereby confused the jury. The record indicates that the trial court did not merely recite verbatim every relevant statutory provision. To the contrary, the court read certain sections and paraphrased other sections in delivering its charge. It is not reasonably possible that the jury was misled thereby.

III

Motions for Bill of Particulars

The sole claim which was properly preserved for review on this appeal is the question of whether the trial court erred by denying in part the defendant’s pretrial motions for a bill of particulars. The defendant’s first motion for a bill of particulars requested that the state be required to specify: (1) all of the offenses with which the defendant was charged, and their statutory citations; (2) which specific conduct, in the language of the statute, the defendant was alleged to have committed; (3) the alleged acts which constituted the commission of the offenses; (4) the precise dates and time of the alleged commission of the offenses; and (5) the precise place where the offenses were committed. The trial court denied only the third request and granted the other four, limiting the fourth to the approximate time and the fifth to the approximate place. Thereafter, the state filed a bill of particulars which complied with the trial court’s order. The defendant subsequently moved for a second bill of particulars requesting the precise amount and by what means of conveyance the defendant allegedly distributed cocaine to the undercover officer. This motion was denied. On appeal, the defendant claims that the trial court’s rulings deprived him of the opportunity to prepare a defense strategy. We disagree.

“ ‘The function of the bill of particulars ... is to enable the defendant to obtain a more precise statement of the offense charged in the information in order to prepare a defense.’ ” State v. Frazier, 194 Conn. 233, 236, 478 A.2d 1013 (1984). The denial of a motion for a bill of particulars is within the trial court’s discretion and will only be overturned upon a clear showing of prejudice to the defendant. Id. The defendant has not made a clear showing of prejudice resulting from the trial court’s partial denial of his motions.

The record indicates that the defendant was adequately informed of the specific offenses for which he was charged in the specific language of the statutes. He was informed of the dates, time and places where the offenses allegedly occurred. He was provided also with the identity of the informant, and he was permitted to examine and independently test the cocaine that he allegedly gave to the undercover police officer. The defendant fails to state how he was prejudiced by the denial of information regarding the precise weight of the cocaine and the manner in which he allegedly gave it to the officer. The statutes under which the defendant was charged, namely General Statutes (Rev. to 1979) §§ 19-480 (a) and 19-481 (a), do not require proof of distribution or possession of any specific or minimal quantity of cocaine. Likewise, information regarding the specific manner of conveyance, while arguably relevant to illegal distribution of cocaine, was not an integral aspect of these offenses, the unavailability of which would deprive the defendant of an opportunity to prepare a defense. “In our view, it is unlikely that the defendant could not discern from these sources the nature of the offense and the conduct charged. Under such circumstances, we are unable to conclude that the trial court abused its discretion in denying the defendant a ‘mode and manner’ bill of particulars.” State v. Frazier, supra, 237.

There is no error.

In this opinion the other judges concurred.

       In 1983, General Statutes (Rev. to 1981) § 19-480 was transferred to General Statutes § 21a-277, and General Statutes (Rev. to 1979) § 19-481 was transferred to General Statutes § 21a-279.

       General Statutes (Rev. to 1979) § 19-481 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than three thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than five thousand dollars, or be both fined and imprisoned; and for any subsequent offense may be imprisoned not more than twenty-five years, or be fined not more than ten thousand dollars, or be both fined and imprisoned.” (Emphasis added.)

       The original information, which charged the defendant with illegal possession of cocaine, was based on the evidence of the drug paraphernalia in addition to the other evidence seized. It was amended at the end of the trial to exclude from the allegation of illegal possession any reference to the evidence of drug paraphernalia which was seized from the basement apartment.

       In some situations, it may be possible to assert a vagueness challenge to the facial validity of a statute; cf. State v. Pickering, 180 Conn. 54, 57-58 n.3, 61-62 n.4, 428 A.2d 322 (1980); “even though [the defendant’s] own conduct may clearly fall within the statute’s proscriptions.” Id., 57-58 n.3. The situation in the present case, however, involves a challenge to the validity of these statutes as applied to this defendant. Thus, the determination of whether the record adequately supports this claim for purposes of an Evans review necessarily involves a careful examination of the factual basis of the claim.

       It is noteworthy that the trial court did instruct the jury, essentially as requested by the defendant, that in order to convict the defendant of illegal possession of cocaine, the state was required to prove beyond a reasonable doubt that the defendant knowingly possessed cocaine. The claim, which the defendant now raises for the first time on appeal, pertains to refinements of those instructions which were allegedly required in order to remedy the alleged vagueness of the statute.

       General Statutes (Rev. to 1979) § 19-480 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance, other than marihuana, or a narcotic substance except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than three thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than five thousand dollars, or be both fined and imprisoned.” (Emphasis added.)

       The pertinent chapter of the General Statutes is now chapter 420b. See footnote 1, supra.