text:
    LEONARD S. CAMPBELL v. TOWN OF PLYMOUTH
    (AC 22185)
    Foti, Mihalakos and Dranginis, Js.

      Argued September 24
    officially released December 10, 2002

      Philip M. Block, for the appellant (plaintiff).

      Diana Garfield, for the appellee (defendant).
   Opinion

FOTI, J.

This appeal arises from an action in three counts brought by the plaintiff, Leonard S. Campbell, against the defendant, his former employer, the town of Plymouth. The plaintiff appeals from the judgment of the trial court, claiming that the court improperly (1) granted the defendant’s motion to strike counts two and three of the complaint, which alleged, respectively, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress, (2) granted the defendant’s motion for summary judgment as to count one, which alleged wrongful discharge under General Statutes § 31-51m, and (3) denied the plaintiffs motion to reargue. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. The defendant hired the plaintiff as its town planner on November 14, 1988. The personnel rules for the classified service employees of the town of Plymouth (personnel rules) governed the terms and conditions of the plaintiffs employment. In 1994, due largely to budget cuts, the town reduced the position of town planner from full-time to part-time. The plaintiff continued part-time in his capacity as town planner, and the defendant also hired him as its part-time zoning enforcement officer.

On April 7, 1997, the defendant discharged the plaintiff from his employment. The reason for the discharge is disputed. The defendant claims that it discharged the plaintiff because of insubordination and followed all corrective action procedures set forth in the personnel rules. The plaintiff, however, claims that the defendant discharged him because he refused to submit erroneous and fraudulent information in a report to the department of economic and community development, which had provided a development grant to the defendant.

After his discharge, the plaintiff filed for unemployment compensation benefits through the unemployment compensation commission. The defendant opposed payment of such benefits. According to the plaintiff, he pursued benefits through the commission until December 1, 1999, and appealed to the Superior Court from the denial of benefits on December 30,1999. The plaintiff then commenced this action on March 21, 2000.

The plaintiffs complaint consisted of three counts, statutory wrongful discharge under § 31-51m, Connecticut’s “whistle-blower” protection statute, a common-law wrongful discharge claim based on the breach of an implied covenant of good faith and fair dealing, and intentional infliction of emotional distress. The defendant filed a motion to strike counts two and three on May 12,2000. The court, Graham, J., granted the motion as to both counts on July 17, 2000, leaving only the statutory wrongful discharge claim unresolved. The plaintiff did not file new or amended pleadings as permitted by Practice Book § 10-44, nor did the court render judgment on the two stricken counts.

The defendant subsequently answered the complaint and asserted as an affirmative defense that the applicable statute of limitations barred the statutory claim. On February 5, 2001, the defendant filed a motion for summary judgment as to the one remaining count. The court, Shortall, J., granted that motion on June 8, 2001, finding that the action was time barred. The plaintiff filed a motion to reargue on June 25, 2001, which the court denied. The plaintiff appealed on July 26, 2001.

I

The plaintiff first claims that the court improperly granted the defendant’s motion to strike counts two and three of the complaint, which alleged, respectively, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Before discussing the merits of the plaintiffs arguments, however, we first set forth our standard of review.

A motion to strike tests the legal sufficiency of the pleadings “to state a claim upon which relief can be granted . . . .” Practice Book § 10-39 (a) (1). Because a determination of legal sufficiency is not a question of fact but one of law, our review of claims concerning a motion to strike is plenary. Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997). “In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Craig v. Driscoll, 64 Conn. App. 699, 703, 781 A.2d 440, cert. granted on other grounds, 258 Conn. 931, 785 A.2d 228 (2001).

A

Count two of the complaint alleged that the defendant breached its covenant of good faith and fair dealing by discharging the plaintiff. The plaintiff argues (1) that the court improperly decided that § 31-51m* * was the plaintiffs exclusive remedy, (2) that by doing so, the court deprived the plaintiff of his right to plead in the alternative, as specifically provided for in Practice Book § 10-25, and (3) that the court improperly presumed facts not in evidence. We disagree.

The court correctly decided on the basis of the Supreme Court’s decision in Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 157-58, 745 A.2d 178 (2000), that § 31-51m provides the exclusive remedy for wrongful discharge for ‘‘whistle-blowing” and that the availability of that statutory remedy precluded the plaintiff from pleading any alternative, common-law cause of action.

Generally, Connecticut follows the rule that employment is at-will and terminable by either the employee or the employer with impunity. Fisher v. Jackson, 142 Conn. 734, 736, 118 A.2d 316 (1955). We have recognized an exception to that rule, however, where an “employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” (Emphasis in original.) Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980) (creating public policy exception to doctrine of at-will employment). In such cases, the plaintiff may have a common-law cause of action against the employer. In Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 501 A.2d 1223 (1985), however, this court further narrowed that cause of action by holding that our public policy exception to the at-will doctrine is available only in cases in which there are no other available remedies and “ ‘permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.’ ” Id., 648, quoting Wehr v. Burroughs Corp., 438 F. Sup. 1052, 1054 (E.D. Pa. 1977).

In Burnham v. Karl & Gelb, P.C., supra, 252 Conn. 159-62, our Supreme Court explicitly affirmed our decision in Atkins and further held that because § 31-51m (c) provides a statutory cause of action for employees who are terminated for “whistle-blowing,” the public policy exception does not apply. Section 31-51m, therefore, provides the exclusive remedy for such employees and precludes any common-law actions in either tort or contract. Id., 158.

In his determined attempt to avoid the obvious application of the Burnham holding to this case, the plaintiff mistakenly relies in great part on Wolverine Fire Protection Co. v. Tougher Industries, Inc., Superior Court, judicial district of Hartford, Docket No. 805554 (June 20, 2001) (29 Conn. L. Rptr. 731), in which the Superior Court, Hon. Robert J. Hale, judge trial referee, held that General Statutes § 49-42 was not an exclusive remedy. In that case, the court reasoned that the statute itself did not have an exclusivity provision and there was no appellate case law expressly addressing the issue. Id., 732. Although it is axiomatic that a Superior Court decision is not binding precedent for this court, we nonetheless find that its reasoning is inapplicable here.

First, although admittedly § 31-51m also contains no exclusivity language, Burnham, as previously stated, does provide adequate precedent from this state’s highest court that § 31-51m is an exclusive remedy. More importantly, the Wolverine Fire Protection Co. court itself correctly distinguished its decision from those decisions of other Superior Courts that “deal with a statutory remedy and the breach of the implied covenant of good faith and fair dealing in the context of employment law.” Id. One such case, Rothberg v. United Illuminating Co., Superior Court, judicial district of New Haven, Docket No. 391576 (February 5, 1997) (18 Conn. L. Rptr. 690), specifically holds that because § 31-51m provides a statutory remedy, an action brought on the basis of an alleged breach of the implied covenant of good faith and fair dealing is precluded. We find that the present case is like Rothberg and agree with that court’s decision. Given the allegations before us and pursuant to Burnham, § 31-51m (c) provides the plaintiffs exclusive remedy for wrongful discharge.

The plaintiff also is incorrect in asserting that he was “wrongfully deprived of his right to plead in the alternative.” Connecticut does allow plaintiffs to plead inconsistent yet otherwise valid causes of actions together in the same complaint, thereby allowing plaintiffs to pursue alternative remedies or theories of relief. See Practice Book § 10-25; Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985); Veits v. Hartford, 134 Conn. 428, 433-34, 58 A.2d 389 (1948).

In this action, however, we are not faced with choosing between valid yet conflicting theories of recovery. As previously explained, the law is clear. A common-law approach to a claim of wrongful discharge is barred as long as a remedy has been made available to address the particular public policy concerns. The question is not whether the statutory cause of action remains viable as to a particular plaintiff. The fact that a remedy later becomes unavailable due the running of a limitation period does not mean that there was no remedy available and therefore a common-law cause of action arises.

In the present case, the plaintiff raises the public policy disfavoring discharge of employees who are “whistle-blowers.” That concern is addressed in § 31-51m, which creates a cause of action to protect such employees. Because the legislature has made a remedy available under that statute, the courts do not need to recognize a common-law exception to the at-will employment doctrine. The court, therefore, did not prevent the plaintiff from pleading in the alternative, but simply did not allow him to plead an invalid alternative.

Finally, we find no merit in the plaintiffs somewhat tortured argument that the court must have presumed facts not in evidence in reaching its decision to strike count two. The plaintiff argues that the defendant’s motion to strike and the plaintiffs opposition to that motion did not contain enough facts to support the court’s determination that § 31-51m provided an adequate statutory remedy. Remarkably, the plaintiff appears to have forgotten that the court also had before it the allegations in the plaintiffs own complaint.

In ruling on a motion to strike, the court must “assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court should] read the allegations broadly, rather than narrowly.” Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). The plaintiffs complaint alleged sufficient facts from which the court could construe the nature of the causes of action pleaded and whether they were legally sufficient. The court correctly decided that count two was precluded by count one and, therefore, failed to state a claim on which relief could be granted.

B

Count three of the complaint alleged intentional infliction of emotional distress. The plaintiff claims that in granting the motion to strike that count, the court improperly decided that the defendant’s conduct as alleged in the complaint, even if taken as true, was not “extreme and outrageous” within the meaning of such a cause of action. See Petyan v. Ellis, 200 Conn. 243, 253-54, 510 A.2d 1337 (1986). We disagree.

To state a legally sufficient claim of intentional infliction of emotional distress, the plaintiff must establish four elements: “(1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Id., 253.

The court found that the plaintiffs claim was legally insufficient as to prong two of the test because the alleged behavior was not “extreme and outrageous.” In determining what conduct is extreme and outrageous “[t]he rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” (Emphasis in original; internal quotation marks omitted.) Id., 254 n.5, quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 12, p. 60. “It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.” (Internal quotation marks omitted.) Mellaly v. Eastman Kodak Co., 42 Conn. Sup. 17, 19 n.1, 597 A.2d 846 (1991), quoting 1 Restatement (Second), Torts § 46, comment (h), p. 77 (1965). Only if reasonable people could differ should the question be left for the jury. Mellaly v. Eastman Kodak Co., supra, 19 n.1.

The plaintiff alleges that the defendant, through its agents, made “repeated demands and inquiries into [his] personal beliefs and attitudes,” and harassed him to change his mind, presumably regarding the signing of the alleged false grant documents. The plaintiff claims that due to that conduct, he became “upset, distressed and aggravated.”

Those allegations, which we must take as true, do not amount to conduct that is beyond the bounds of socially tolerable behavior. “The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior.” (Internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 89. “Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Internal quotation marks omitted.) Dollard v. Board of Education, 63 Conn. App. 550, 554, 777 A.2d 714 (2001). Other courts have rejected claims of emotional distress in wrongful discharge actions in which the defendant’s alleged conduct was more specific and egregious. See, e.g., Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000) (plaintiff subjected to condescending comments in front of colleagues, two psychiatric examinations, police escort from workplace, suspension, forced resignation). In cases in which plaintiffs have pleaded emotional distress and avoided a motion to strike, there often has been some element of public ridicule. See Knight v. Southeastern Council On Alcoholism, Superior Court, judicial district of New London, Docket No. 557182 (September 21, 2001) (reviewing recent Connecticut decisions construing extreme, outrageous conduct).

Considering all allegations in the complaint in a manner favoring the plaintiff, we do not find any public ridicule or other comparable actions that, if explained to “an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). The court, therefore, properly struck the plaintiffs third count, which alleged intentional infliction of emotional distress.

After reviewing the briefs and record, and keeping in mind our standard of review, we hold that the court properly granted the defendant’s motion to strike counts two and three of the complaint.

II

The plaintiffs second claim is that the court improperly granted the defendant’s motion for summary judgment as to the first count of the complaint, which sought damages for wrongful discharge under § 31-51m (c), because genuine issues of material fact exist as to whether (1) the plaintiffs claim for unemployment compensation was the type of administrative remedy contemplated under § 31-51m (c), (2) the defendant fraudulently concealed the plaintiffs cause of action and (3) the plaintiff changed his position in reliance on the defendant’s action, thereby estopping the defendant’s statute of limitations defense.

We first set out our standard of review of a challenge to a court’s decision to grant a motion for summary judgment. “On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

“Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“A material fact is a fact that will make a difference in the outcome of the case. . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . . .” (Citations omitted; internal quotation marks omitted.) Yancey v. Connecticut Life & Casualty Ins. Co., 68 Conn. App. 556, 558-59, 791 A.2d 719 (2002).

A

The plaintiff first argues that genuine issues of material fact exist as to whether his claim for unemployment compensation was the type of administrative remedy contemplated under § 31-51m (c). Section 31-51m (c) provides in relevant part: “Any employee who is discharged ... by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later ....'" The plaintiff was discharged on April 7, 1997, but commenced this action on March 21, 2000, almost three years later. The plaintiffs claim, therefore, clearly is barred by the statute's ninety day limitation period unless the plaintiff can show that he was exhausting some available administrative remedy that tolled the relevant limitation period.

The plaintiff argues that although he brought his action almost three years after the alleged wrongful discharge, his claim is not barred by the ninety day limitation period because he sought unemployment benefits, which the plaintiff asserts is an administrative remedy within the meaning of the statute. According to the plaintiffs argument, because the ninety day period should begin to run only after the date of the final determination of those benefits, the plaintiffs cause of action under § 31-51m is not barred.

As the court correctly pointed out in its memorandum of decision, the plaintiff provided no legal authority that “a claim for unemployment benefits is an administrative remedy pursuant to § 31-51m (c).” We likewise are unable to find authority for such a proposition.

Administrative adjudications can provide an opportunity for successful resolution of disputes without the time and costs associated with litigation. They also serve to reduce the burden on judicial resources. It therefore makes sense to toll a statute of limitation to allow parties to attempt to resolve their disputes first by administrative means. A valid administrative remedy, however, must provide for “meaningful relief,” otherwise litigation is merely postponed. Under § 31-51m (c), the remedy provided for a violation of the statute is “reinstatement of his previous job, payment of back wages and reestablishment of employee benefits,” as well as the possibility of court costs and reasonable attorney’s fees.

Unemployment compensation does not provide meaningful relief from a claim of wrongful discharge for “whistle-blowing” because it provides only partial wage compensation during periods of unemployment. The unemployment compensation commission cannot provide reinstatement or continuation of employee benefits. The plaintiffs assertion that reinstatement was available under General Statutes § 31-226ais misplaced because that section of the unemployment compensation statutes applies only to cases in which the employee is discharged for filing an unemployment claim. That is not at issue in this case. The plaintiff has failed to meet his burden to show that there is a disputed issue of material fact as to whether seeking unemployment benefits is a proper administrative remedy under the statute and, consequently, his claim is barred by the ninety day limitation period contained in § 31-51m (c).

B

The plaintiff also argues that the defendant’s statute of limitations defense should fail because the defendant fraudulently concealed the real reason it terminated his employment and because he therefore was unaware of the existence of his cause of action. He argues that General Statutes § 52-595* *** tolled the relevant statute of limitations. Under our case law, to prove fraudulent concealment, a plaintiff must show, by clear and convincing evidence, that the defendant (1) had actual awareness of the facts necessary to establish the plaintiffs cause of action, (2) intentionally concealed those facts from the plaintiff and (3) concealed the facts for the purpose of delaying the plaintiffs filing of a complaint on his cause of action. Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995).

On the basis of our review of the record, however, we agree with the court that the plaintiff has failed to provide any evidence, other than his allegations, to support the claim that the defendant intended to conceal its actual reason for terminating his employment. A mere assertion of fact in the affidavit of the party opposing summary judgment is not enough to establish the existence of a material fact that, by itself, defeats a claim for summary judgment. Emmerson v. Super 8 Motel-Stamford, 59 Conn. App. 462, 466-67, 757 A.2d 651 (2000). The plaintiff has not raised a genuine issue of material fact that his failure to meet the statutory time limit for filing a claim was due to the defendant’s alleged fraudulent concealment, and the defendant therefore is entitled to judgment as a matter of law.

c

The plaintiff also claims that the defendant should be estopped from asserting the statute of limitations defense. That claim also fails because, as with the fraudulent concealment argument, the plaintiff has failed to present the necessary factual predicate.

“There are two essential elements to an estoppel— the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. . . . Further, [i]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge. . . . [T]here must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as amounts to constructive fraud, by which another has been misled to his injury.” (Citations omitted; internal quotation marks omitted.) Green v. Connecticut Disposal Service, Inc., 62 Conn. App. 83, 91-92, 771 A.2d 137, cert. denied, 256 Conn. 912, 772 A.2d 1124 (2001).

The plaintiff presents no evidence showing that he was prejudiced by a deceptive act of the defendant that kept him from filing his action within the limitation period. The plaintiffs only alleged claim of deception is that the defendant lied when it stated that the true reason for his discharge was due to insubordination when it really was due to his failure to produce false documents.

As the court stated in its memorandum of decision, however, “while [the plaintiff] may not have had sufficient ‘proof at the time of his discharge to establish his claim ... he had enough information to believe and did believe that his discharge was for a retaliatory purpose. Therefore, he had reason to believe that he had suffered ‘actionable harm,’ yet he delayed bringing suit until almost three years later.” Because the plaintiff has failed to show the existence of any issues of material fact regarding the defendant’s statute of limitations defense, the defendant is entitled to judgment as a matter of law, and we conclude that the court properly granted the defendant’s motion for summary judgment as to count one of the complaint.

Ill

Finally, the plaintiff claims that the court improperly denied his motion to reargue because he believes that conflicting rulings improperly denied him a remedy. We disagree.

“We review claims that the court improperly denied a motion for reargument under the abuse of discretion standard. . . . When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Cadle Co. v. Gabel, 69 Conn. App. 279, 299, 794 A.2d 1029 (2002). We will find that such an abuse of discretion exists when the court’s decision creates a miscarriage of justice. See Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 786, 653 A.2d 122 (1995).

Because we have concluded that the court properly granted the defendant’s motion to strike and motion for summary judgment, we further conclude that the court’s decision denying the plaintiffs motion to rear-gue did not cause a miscarriage of justice, was sufficiently supported by the evidence and was not, therefore, in abuse of that court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Generally, the denial of a motion to strike does not constitute a final judgment because it neither terminates a separate and distinct proceeding nor concludes the rights of the parties so that further proceedings could not affect them.” White v. White, 42 Conn. App. 747, 749, 680 A.2d 1368 (1996); see also Costecski v. Skarulis, 103 Conn. 762, 762-63, 131 A. 398 (1925) (holding no final judgment when case remains pending in trial court “to be thereafter heard upon its merits, upon the pleadings in the court below, or upon such amended pleadings as might legally be filed”). Our Supreme Court, however, has held that we do have jurisdiction to review a ruling on a motion to strike when it is before us as part of an appeal from a valid final judgment. See Breen v. Phelps, 186 Conn. 86, 88-91, 439 A.2d 1066 (1982). Because the present request to review a motion to strike is coupled with an appeal from the court’s rendering of a summary judgment, we have jurisdiction to reach all of the plaintiffs claims. Id.

       The court noted in its memorandum of decision: “The plaintiffs references to ‘December 1,1999’ and ‘December 30,1999’ correspond to nothing in the record of the unemployment compensation proceedings made available to the court. As far as the record herein is concerned, the final decision of the employment security board of review adverse to the plaintiff appears to have been made on May 28, 1999, sustaining the defendant’s appeal from a decision of an appeals referee granting the plaintiff unemployment compensation. . . . Obviously, an action commenced in March, 2000, would be barred by the ninety day statute [General Statutes § 31-51m (c)].”

       In its ruling on the motion to strike, the court specified separate grounds for granting the motion as to counts two and three. The court dismissed count three, which alleged intentional infliction of emotional distress, because the alleged conduct was not extreme and outrageous within the meaning of such a cause of action. The court cited Petyan v. Ellis, 200 Conn. 243, 253-54, 510 A.2d 1337 (1986). The plaintiff does not address the court’s reasoning as to count three in his brief. He discusses counts two and three together as if the court’s rationale for striking both counts was the same. Only in his reply to the defendant’s brief and at oral argument did the plaintiff attempt to address the issue of intentional infliction of emotional distress. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593 n.26, 657 A.2d 212 (1995). Although it certainly is within our discretion to decline to review that claim because the plaintiff has raised the dismissal of count three in his appeal and at oral argument, and the defendant has fully briefed the issue despite the plaintiffs failure to do so adequately, we will reach the merits of the claim.

       General Statutes § 31-51m provides in relevant part: “(b) No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action. No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer. The provisions of this subsection shall not be applicable when the employee knows that such report is false.
      “(c) Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages a.nd reestablishment of employee benefits to which he would have otherwise been entitled if such violation ha.d not occurred. An employee’s recovery from any such action shall be limited to such items, provided the court may allow to the prevailing party his costs, together with reasonable attorney’s fees to be taxed by the court. Any employee found to have knowingly made a false report shall be subject to disciplinary action by his employer up to and including dismissal.”

       Practice Book § 10-25 provides: “Alternative Relief
      “The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action.”

       That statute created a cause of action for enforcing payment of certain types of bonds.

       See footnote 2.

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”

       We note that even if we were to credit fully the plaintiffs assertions that the defendant fraudulently concealed his cause of action, the plaintiffs action still would be time barred. The plaintiff claims he did not learn of his cause of action until the unemployment compensation hearings. The only remedy under General Statutes § 52-595 is a tolling of the relevant statute of limitations until the “time when the person entitled to sue thereon first discovers its existence.” The plaintiff nevertheless filed his action more than ninety days after the hearings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PAUL CATALANO v. FRANK L. FALCO ET AL.
    (AC 22586)
    Schaller, Bishop and Flynn, Js.
    Submitted on briefs October 31
    officially released December 10, 2002

      Douglas A. Casale and Larry R. Levine filed a brief for the appellant (named defendant).

      Jeffrey L. Ment and Andrew Crumbie, legal intern, filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this personal injury action, the defendant Frank L. Falco appeals from the judgment in favor of the plaintiff, Paul Catalano, following a jury trial. On appeal, the defendant claims that the court improperly (1) allowed the expert testimony of the plaintiff’s witness regarding the possibility that the plaintiffs condition might require surgery at some future date and (2) denied his motion for a continuance of the trial date. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of the defendant’s appeal. This action arose out of automobile collision that occurred on or about May 5, 1998. As a result of that accident, the plaintiff sustained injuries that prompted him to seek medical attention from several medical specialists, including Gerald J. Becker, an orthopedic surgeon.

On May 3, 2001, the plaintiff filed his disclosure of expert witnesses. That disclosure indicated that Becker was expected to testify concerning his examination, diagnosis and treatment of the plaintiff. The substance of the facts about which Becker was expected to testify was in accordance with his treatment notes and evaluation and consultant reports. Those materials had previously been provided to the defendant’s counsel as part of the discovery process.

Juiy selection began on July 24, 2001, and concluded on July 27, 2001. The defendant claims to have learned for the first time on July 24, the first day of jury selection, that Becker’s testimony would address the possibility of future back surgery for the plaintiff. On July 26, 2001, the defendant filed a motion for a protective order and a motion in limine to preclude testimony or evidence from Becker regarding future medical treatment, the necessity of surgery and disability ratings assigned to the plaintiff. In those motions, the defendant argued that the disclosure of Becker did not comply with the requirements set forth in Practice Book § 13-4 and that his deposition should be barred and no testimony or evidence from him should be admitted at trial.

The plaintiff filed objections to both of the defendant’s motions. Following oral argument on the motions, the court found that the disclosure of Becker’s testimony had been adequate for the purpose of providing notice to the defendant. The court also declined to prevent the scheduled deposition of Becker, stating that any evidentiary matters raised during the deposition would be addressed later.

With the presentation of evidence scheduled to begin on August 1, 2001, the defendant, on July 30, 2001, filed a motion to continue the trial date for three months until November 1, 2001. The court denied that motion following oral argument. At the conclusion of the trial, the jury, after hearing all the evidence, returned a verdict for the plaintiff in the amount of $60,000.

I

The defendant first claims that the court improperly admitted into evidence the testimony of the plaintiffs expert witness, whom the defendant claims was not disclosed properly in accordance with Practice Book § 13-4 (4). We disagree.

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) Mojica v. Benjamin, 64 Conn. App. 359, 365, 780 A.2d 201 (2001).

“It is a fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) State v. Tinsley, 59 Conn. App. 4, 10, 755 A.2d 368, cert. denied, 254 Conn. 938, 761 A.2d 765 (2000). “We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Internal quotation marks omitted.) Ormsby v. Frankel, 54 Conn. App. 98, 108, 734 A.2d 575 (1999), aff'd, 255 Conn. 670, 768 A.2d 441 (2001). Moreover, “[i]t is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony.” (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn. App. 447, 466-67, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002).

The issue is whether the court abused its discretion by allowing testimony from the plaintiffs expert, Becker, over the defendant’s objection and claim that the testimony exceeded the scope of the plaintiffs disclosure. Practice Book § 13-4 (4) provides in relevant part that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party ... or (C) involved bad faith delay of disclosure by the disclosing party. . . .”

In the present case, the plaintiffs disclosure complied with the requirements of Practice Book § 13-4. The plaintiffs disclosure of Becker as an expert witness clearly indicated that he was expected to testify in accordance with his treatment notes and evaluation and consultation reports, which had previously had been provided to the defendant.

Becker’s evaluation report, dated April 29,1999, concludes with the following recommendation: “At the present time, I would recommend continued conservative treatment consisting of lumbar stabilization exercises and anti-inflammatories, such as Celebrex. If this fails to control pain and he remains significantly symptomatic, I would recommend a trial of a polypropylene TLSO. If this fails to adequately resolve symptoms, then he would need to consider the option of decompression and fusion at L4-5.” We agree with the court that the references to decompression and fusion clearly and unequivocally indicate the possibility of surgery. See Dept. of Social Services v. Saunders, 247 Conn. 686, 689, 724 A.2d 1093 (1999) (defendant’s decedent underwent surgical procedure known as cervical fusion); Marchetti v. Ramirez, 240 Conn. 49, 51, 688 A.2d 1325 (1997) (neurosurgeon performed cervical disc removal, fusion on plaintiff); Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., 24 Conn. App. 99, 101, 586 A.2d 614 (plaintiff underwent surgery for removal of two extended disc fragments, decompression of spine), cert. denied, 218 Conn. 903, 588 A.2d 1079 (1991). Accordingly, we conclude that the court did not abuse its discretion in admitting Becker’s testimony and evidence of the possibility of future surgery.

II

The defendant next claims that the court improperly denied his motion for a continuance. “Our review of the denial of a motion for a continuance by the trial couit is limited to the abuse of discretion standard.

. . . Accordingly, we will make every reasonable presumption in favor of the correctness of the court’s ruling and will reverse its judgment only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn. App. 750, 756, 785 A.2d 588 (2001).

Our review of the record reveals that the court did not abuse its discretion in denying the defendant’s motion for a continuance. As we concluded in part I, the defendant had notice that the testimony of the plaintiffs expert, Becker, likely would include testimony about the possibility of future surgery. The defendant received Becker’s report in November, 1999. That report explicitly referred to the possibility that surgery might be required. Further, during the plaintiffs deposition in December, 2000, the plaintiff testified that Becker had informed him that he would require an operation if his condition did not improve. In its memorandum of decision, the court noted that although responses during a deposition do not constitute disclosures pursuant to Practice Book § 13-4, it was considering the relevant statements “in the context of the defendant’s claim that he was a victim of trial by ambush.”

Despite the fact that the defendant received Becker’s report nineteen months prior to trial and had deposed the plaintiff seven months prior to trial, the defendant waited until the very eve of trial to request a continuance. Under the circumstances, we cannot conclude that the court abused its discretion in finding that the defendant had ample notice of the evidence to be introduced and denying the defendant’s request.

The judgment is affirmed.

       Roger C. Jones also was named as a defendant. Because Jones has not appealed, we refer in this opinion to Falco as the defendant.

       The plaintiff provided in relevant part the following disclosure, dated May 2,2001, to the defendant: “Gerald Becker, M.D., Orthopedic Associates of Hartford, 85 Seymour Street, Hartford, CT 06105.
      “Subject Matter of Testimony: Becker, an orthopedic surgeon, is expected to testify concerning his examination, diagnosis and treatment of [the plaintiff].
      “Substance of the Facts and Opinions to which the Expert is Expected to Testify: Becker is expected to testify substantially in accordance with his treatment notes and evaluation and consultation reports, all of which have been provided to defendant’s counsel.
      “Summary of the Grounds for Each Opinion: The grounds for Dr. Becker’s opinion are his examination and treatment of the plaintiff and his education and professional training, including but not limited to, his experience as an orthopedic surgeon.”

       Tile following colloquy took place:
      “Q: When you saw Dr. Becker back in April of 1999, did he speak with you about the possibility of surgery on your back?
      “A: He said that if I got worse, he would perform an operation. He said he preferred not to. He said we’d wait as long as we could, and that Dr. [Carrie M.] Hartney would help me for now, do what she says.”


author: WEST, J.

text:
    STATE OF CONNECTICUT v. X-SHANTI LUCKY
    (AC 22543)
    SchaUer, West and Peters, Js.
    Argued October 21
    officially released December 10, 2002

      Frank P. Cannatelli, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearinglon, state’s attorney, and Melanie L. Cradle, deputy assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, X-Shanti Lucky, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1) and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). On appeal, the defendant claims that the trial court abused its discretion by not permitting him to put into evidence (1) a court approved visitation agreement allowing him to see his child and (2) a tape-recorded conversation he had with the police. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. The incident that gave rise to the charges against the defendant occurred on July 13, 2000. The defendant went to the home of Jenel McClure, the mother of his then four year old son, intending to spend time with the child. When he arrived at the home, McClure and the child were in her motor vehicle, attempting to exit the driveway. The defendant used his vehicle to block the exit. McClure eventually drove over grass to leave for an appointment. The defendant followed in his vehicle, which he operated in such a way as to strike McClure’s vehicle in an effort to force it from the roadway. The defendant followed McClure’s vehicle from Hamden into New Haven. Eventually, McClure was compelled to bring her vehicle to a halt at or near a traffic control device at the intersection of Edgewood Avenue and Ella T. Grasso Boulevard in New Haven.

The defendant also stopped his vehicle, which he exited, and approached McClure’s vehicle. McClure had locked the doors of her vehicle, but was unable to close the windows before the defendant reached through an open window, unlocked the door and removed the child. McClure exited her vehicle in an effort to take the child away from the defendant. The defendant pushed McClure away and placed the child on the passenger seat of his vehicle. McClure was able to force her way, in part, onto the operator’s seat of the defendant’s vehicle before the defendant accelerated the vehicle onto the grass median. One of McClure’s legs was hanging outside the open door, and she clung to the steering wheel to keep from falling while the vehicle moved. The defendant then stopped his vehicle, struck McClure in the head and bit her cheek and hand.

A passerby directed a New Haven police officer to the scene of the altercation. The officer, Salvedor Rodriguez, observed McClure’s facial injuries. After speaking with both the defendant and McClure, Rodriguez arrested the defendant. McClure’s injuries were treated at the scene. Medical personnel described teeth marks on the woman’s cheek that were visible and that pierced the skin. The child was not physically injured.

The court sentenced the defendant to eight years in prison, suspended after three years, and three years of probation with special conditions. The defendant appealed.

The defendant’s appellate claims are evidentiary in nature. We set forth the standard of review for such claims. We review claims related to the court’s eviden-tiary rulings under an abuse of discretion standard. “We will disturb the court’s evidentiary rulings only upon a showing that the ruling resulted in substantial prejudice or injustice to the defendant.” (Internal quotation marks omitted.) State v. McHolland, 71 Conn. App. 99, 109, 800 A.2d 667 (2002). “Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel. ... In other words, [o]nce an objection has been made and the grounds stated, a party is normally limited on appeal to raising the same objection on the same basis as stated at trial.” (Internal quotation marks omitted.) Id.

I

The defendant’s first evidentiary claim is that the court abused its discretion by granting the state’s motion in limine to preclude him from putting the court approved visitation agreement into evidence. We disagree.

Prior to the start of evidence, the state filed a motion in limine seeking to preclude the defendant from placing the visitation agreement into evidence. The defendant opposed the motion, claiming that the visitation agreement was relevant to his right to see the child on the day in question. The court granted the motion without prejudice, reasoning that the evidence concerning the defendant’s right to visit with the child was not relevant to the charges against him and would confuse the issues before the jury.

On appeal, the defendant claims that the court abused its discretion because he should have been permitted to use the visitation agreement to impeach McClure’s credibility pursuant to § 6-5 of the Connecticut Code of Evidence. The state points out that, at trial, impeachment was not the basis of the defendant’s objection to the motion in limine and, therefore, the defendant’s claim is not reviewable. We agree that the defendant’s claim is not reviewable but will review it nonetheless because it is a matter of hornbook law.

Evidence is admissible only if it is relevant. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.” (Internal quotation marks omitted.) State v. Abernathy, 72 Conn. App. 831, 848, 806 A.2d 1139, cert. denied, 262 Conn. 924, 814 A.2d 379 (2002). We note that the court properly determined that the defendant’s right to visit with his child was not relevant to the charges of assault in the third degree and risk of injury to a child, which arose out of his conduct during and immediately after the motor vehicle chase. Furthermore, as to the defendant’s right to impeach McClure, “[t]he confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted [impeachment]. . . . Only relevant evidence may be elicited through [impeachment].” (Internal quotation marks omitted.) Id., 837. The court, therefore, did not abuse its discretion.

II

The defendant’s second evidentiary claim is that the court abused its discretion by not permitting him to put into evidence a tape-recorded conversation he had with the police. We are not persuaded.

The following facts are relevant to the defendant’s claim. Prior to going to McClure’s home to see the child, the defendant anticipated that there would be a problem. He therefore telephoned the Hamden police department, which recorded the conversation, to avoid any trouble seeing the child. The police, however, arrived at the home after McClure and the defendant had left in their respective vehicles. At trial, the defendant offered the tape recording to show bias and motive on the part of McClure. The court refused to put the tape recording into evidence, noting that the defendant could testify that he had called the police, and concluded that the recording would be cumulative. We agree.

On appeal, the defendant presented a different reason why the tape recording should have been admitted into evidence. He argues, essentially, that the recording would bolster his credibility by demonstrating his intent to abide by the law and conduct the visitation in a civil manner. The claim, therefore, is not reviewable because the claim on appeal relates to the defendant’s credibility, while his claim at trial related to McClure’s credibility. See State v. Deptula, 31 Conn. App. 140, 150, 623 A.2d 525 (1993), appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       At the time of oral argument before this court, the defendant withdrew his claims related to postconviction bail and release pending appeal.

       At trial, the defendant objected on the ground that the agreement was relevant to show that he had a right to visit with the child.


text:
    PEOPLE’S BANK v. KEVIN CURTIN ET AL.
    (AC 21907)
    Foti, Schaller and West, Js.
    Submitted on briefs September 16
    officially released December 10, 2002

      Robert J. McKay filed a brief for the appellant (defendant Maura A. Kearney).

      Gregory T. Lattanzi filed a brief for Cadle Company.
   Opinion

PER CURIAM.

The defendant Maura A. Kearney appeals from the judgment of the trial court denying her motion to open the judgment rendered against her in this action to collect on a debt. We affirm the judgment of the trial court.

The following facts underlie the defendant’s appeal. The plaintiff, People’s Bank, made two separate loans to Kevin Curtin in January, 1988, and January, 1990. At that time, Curtin and Kearney were married, although they separated in October, 1991. Curtin subsequently failed to make required payments in accordance with the loan agreements. In March, 1991, People’s Bank filed an action against Curtin as borrower and Kearney as guarantor, seeking repayment of the loans. Also in March, 1991, a pro se appearance signed “Maura A. Kearney” was filed with the court. A motion for a stipulated judgment, bearing the signatures of Curtin, Kear-ney and People’s Bank’s attorney, also was submitted to the court. The stipulation provided that judgment would enter in favor of People’s Bank against both defendants in the amount of $35,455.58, with taxable costs, and that the defendants would make a monthly payment to People’s Bank of at least $50 until the judgment was satisfied. In April, 1991, the court granted the motion for a stipulated judgment and rendered judgment accordingly.

In September, 1997, People’s Bank assigned its rights in the stipulated judgment to Cadle Company (Cadle). In early 2000, Cadle filed a wage execution against Kear-ney to satisfy the judgment. Kearney thereafter filed a motion to open the judgment and to stay the wage execution proceedings. She represented in her motion (1) that she had no notice of the action against her by People’s Bank, (2) that the court lacked personal jurisdiction over her because she did not reside at the address at which service in that action was made, (3) that the judgment was obtained by fraud because her signature was forged on her pro se appearance form and on the stipulated judgment without her knowledge or consent, and (4) that she had a good defense to the action, namely, that her signature was forged on the loan guarantee form without her knowledge or consent. Kearney attached to her motion an affidavit in support of those representations. Curtin later filed an affidavit, dated March 24, 2001, wherein he averred that he had forged Kearney’s signature without her consent or knowledge on the appearance form filed in her name and on the stipulated judgment.

After conducting a two day hearing, the court denied Kearney’s motion to open the judgment. With regard to Kearney’s claim that Curtin had forged her signature on the loan guarantee form, appearance form and motion for a stipulated judgment, Cadle and Kearney both presented evidence that included the testimony of their respective handwriting experts. Kearney’s handwriting expert testified that it was highly probable that the three documents were not signed by Kearney. Cadle’s expert, on the other hand, testified that it was highly probable that the signatures were authentic. The court found that Kearney had failed to prove fraud by clear and convincing evidence. In addition, the court found that Kearney was guilty of laches or unreasonable delay in seeking to open the judgment.

“Our standard of review of the court’s denial of a motion to open is well settled. We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citation omitted; internal quotation marks omitted.) Brehm v. Brehm, 65 Conn. App. 698, 704-705, 783 A.2d 1068 (2001).

Furthermore, insofar as the court’s decision results from its factual determinations, we will not disturb the court’s findings absent a showing that they are clearly erroneous. “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 70, 699 A.2d 101 (1997). It is axiomatic that we defer to

       The named defendant, Kevin Curtin, is not a party to the present appeal.


author: HENNESSY, J.

text:
    RICHARD D. TULISANO ET AL. v. PHILIP SCHONBERGER
    (AC 21126)
    Mihalakos, Dranginis and Hennessy, Js.
    Argued September 25
    officially released December 17, 2002

      Michael J. Melly, for the appellant (plaintiff Robert Tulisano).

      Eliot B. Gersten, with whom, on the brief, was John P. Clifford, Jr., for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff Robert Tulisano appeals from the judgment of the trial court rendered in favor of the defendant, Philip Schonberger, on his breach of contract claim. The plaintiff raises three claims on appeal. He contends that the court improperly found that (1) the evidence supported judgment for the defendant, (2) the plaintiff failed to provide to the defendant within a reasonable time a certain survey called for by the contract and (3) the plaintiff was not entitled to recover damages in the amount of $400,000. We affirm the judgment of the trial court.

The court found the following facts. On May 17,1996, the defendant, as president of Albermarle Equities, Inc., contracted to purchase real property from the plaintiff and Richard Tulisano. The defendant deposited $40,000 with his attorney, Kevin G. Dubay, who placed it in an interest bearing account. The deposit was to be applied to the total purchase price of $400,000 at the time of the closing, July 17, 1996.

The contract contained various contingencies allowing for the termination of the contract. Specifically, the defendant could terminate the contract if he received a report from a licensed or recognized building inspector stating that the building was unsound structurally or that the mechanical, plumbing or electrical systems did not function properly. In addition, the plaintiff would be required to provide a recent survey and an estoppel certificate. The contract stipulated June 17,1996, as the deadline for the defendant to terminate the contract.

The defendant hired John Wilcox, a licensed architect, to inspect and to evaluate the property to determine its condition and viability for use as a restaurant. Wilcox submitted his written report, finding that the basement contained two to three feet of water, the building lacked power and, due to the lack of power, he was unable to test the electrical, plumbing, heating and air conditioning systems. He also found some interior construction work completed without the necessary permits from the town, evidence of water damage and insufficient parking spaces. The Wilcox report recommended that significant consideration should be given to demolishing the existing structure.

On June 19, 1996, the defendant sent a termination letter and a copy of the Wilcox report to the plaintiff. On June 21, 1996, Dubay received a letter faxed from the plaintiffs attorney, objecting to the termination. On July 16, 1996, one day before the scheduled closing, Dubay wrote to the plaintiffs attorney, confirming the reasons for termination contained in the June 19, 1996 letter. The letter also addressed the absence of the required survey and estoppel certificate. The plaintiff never provided the required survey or estoppel certificate to the defendant. The plaintiff also failed to inform the defendant that he had restored the power or repaired the building systems. The plaintiff thereafter initiated an action for breach of contract on December 13, 1996.

The court found that the June 19, 1996 letter terminated the relationship of the parties and entitled the defendant to the return of the $40,000 deposit. The court concluded that time was not of the essence because the parties never agreed in the contract to make it so. The court rendered judgment in favor of the defendant and ordered Dubay to return the $40,000 deposit to the defendant. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly found that the evidence supported judgment for the defendant. Specifically, the plaintiff argues that the court improperly found that (1) the defendant had exercised his termination right in the time allowed by the contract, (2) the defendant was justified in terminating the contract because Wilcox was not a recognized or licensed building inspector and (3) the reasons contained in the Wilcox report were sufficient to cancel the contract. We disagree.

Initially, we set forth the applicable standard of review. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Barzetti v. Marucci, 66 Conn. App. 802, 807, 786 A.2d 432 (2001); see also Practice Book § 60-5. This court frequently has defined the clearly erroneous standard. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . While conducting our review, we properly afford the court’s findings a great deal of deference because it is in the unique [position] to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us.” (Citation omitted; internal quotation marks omitted.) Hunter’s Ambulance Service, Inc. v. Shernow, 70 Conn. App. 96, 104, 798 A.2d 991 (2002). We now address each of the plaintiffs arguments in turn.

A

The plaintiff argues that the court improperly found that the defendant had exercised his termination rights in the time allowed by the contract. “In real estate contracts, ‘the fact that a specific time is fixed for payment or for conveyance does not make “time of the essence” — at least, it does not make performance at the specified time of the essence.’ . . . 3A Corbin, Contracts § 716, p. 365 (1960).” (Emphasis in original.) Kakalik v. Bernardo, 184 Conn. 386, 392, 439 A.2d 1016 (1981). When the parties to a real estate contract want to fix a specific date for performance, we generally have required them to express specifically in the contract that time is of the essence; otherwise, performance within a reasonable time will satisfy the contract. See Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 58 Conn. App. 441, 446, 755 A.2d 249 (2000). “Where the agreement does not specifically state that time is of the essence, it is presumed not to be unless the parties have expressed a contrary intent.” Mihalyak v. Mihalyak, 11 Conn. App. 610, 616, 529 A.2d 213 (1987).

In the present case, ample evidence existed to support the court’s finding that the parties to the contract for the purchase of the real estate did not intend to make time of the essence. Specifically, the parties did not include the phrase “time is of the essence” in the contract. The termination subparagraphs contain varying time periods. One subparagraph of the contract contained a thirty day time period for the defendant to exercise his termination rights. The remaining termination subparagraphs, however, contain varying time periods, including some without time restrictions.

The court also found that the parties orally, and then in a subsequent writing, agreed to extend the thirty day time restriction of the contract. The plaintiff disputes the validity of that extension. Regardless of whether the extension was valid, we conclude that the court’s finding that time was not of the essence to the contract was not clearly erroneous.

B

The plaintiff next argues that the court improperly found that the defendant was justified in terminating the contract because Wilcox was not a licensed or recognized building inspector. The court found that Wilcox, a licensed architect, satisfied the recognized building inspector requirement of the contract. Wilcox testified at trial that architects provide the service of investigating buildings. He stated that he practiced as a licensed architect for twenty years, and had previous experience inspecting buildings for the purpose of repair, remodeling and preliminary analysis, all of which qualified him to perform building inspections. He further testified that building inspections were “absolutely essential” to his job. Finally, he stated that he did not know of any restriction imposed by the state on his ability to inspect buildings. The General Assembly has determined that an architect provides evaluations of structural designs. In 1996, no statute specifically identified a “recognized building inspector” with the ability to conduct a building inspection as described in the contract between the parties.

The court relied on Wilcox’s testimony and report to determine his status as a recognized building inspector. Accordingly, we conclude that the finding by the court that Wilcox was a recognized building inspector was supported by evidence in the record and was not, therefore, clearly erroneous.

C

The plaintiff next argues that the court improperly found that the reasons contained in the Wilcox report were sufficient to cancel the contract. The court found that the June 19,1996 letter terminated the relationship between the parties. The defendant sent that letter to the plaintiff and referenced the attached Wilcox report. The letter provided further reasons for termination, including the absence of a kitchen, the necessity to rebuild the structure to meet local requirements and the need for sufficient site work beyond those reasons contained in the Wilcox report. Relevant to this appeal, the Wilcox report cited the presence of water in the basement, the absence of electrical power, the inability to evaluate the mechanical and electrical systems, and the condition of the plumbing systems.

The contract was contingent on the defendant’s receiving a report that stated that the mechanical, electrical and plumbing systems were operational and in good repair. The contract allowed for the plaintiff to repair those defects at his expense. The defendant received the Wilcox report indicating the deficient building conditions. He then notified the plaintiff, in the letter of June 19, 1996, of those conditions and the decision to exercise his termination right. After receipt of the notification, the plaintiff failed to repair the deficient systems and conditions at his expense or to notify the defendant that he had restored power to the building so that the systems could be evaluated.

Accordingly, we conclude that the court’s finding that the defendant properly exercised his right to terminate the contract by letter dated June 19, 1996, was not clearly erroneous.

II

The plaintiff next claims that the court improperly found that he had failed to provide the survey to the defendant within a reasonable time. He argues that the defendant committed an anticipatory breach and therefore discharged the plaintiff from his obligation to provide the survey. We disagree.

In part I C, we determined that the court’s finding that the defendant properly exercised his right, via the June 16, 1996 letter, to terminate the contract was not clearly erroneous. The termination was based on the fact that the defendant did not receive a report indicating that the mechanical, electrical and plumbing systems were operational and in good repair. The plaintiff, after receiving the June 16,1996 letter, failed to engage in any effort to repair the deficient conditions. The defendant, therefore, did not commit an anticipatory breach, but rather validly exercised his option to terminate the contract.

We also note that the court did not base its decision on the plaintiffs failure to provide the defendant with a survey. The defendant sent the plaintiff a letter on July 16, 1996, noting the plaintiffs failure to provide a survey. The court found that this notice was given within a reasonable time. We conclude, however, that the court’s determination that the failure by the plaintiff to provide the survey was extraneous to the court’s resolution of the case in that the June 16, 1996 letter served as a valid termination of the contract. It is, therefore, unnecessary for us to decide whether the court’s determination that the plaintiff failed to provide the survey within a reasonable time was improper because the defendant validly terminated the contract.

HI

The plaintiffs final claim is that he is entitled to damages for the full amount of the contract, $400,000. In light of our decision in parts I and II upholding the findings of the court in favor of the defendant, we need not address that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named plaintiff, Richard D. Tulisano, withdrew from this appeal on November 14, 2000. We refer in this opinion to Robert Tulisano as the plaintiff.

       The complaint contained two additional counts not relevant to this appeal.

       The defendant wanted to establish a family restaurant on this property at 134 Berlin Road, Cromwell.

       The contract contained other termination contingencies not relevant to this appeal.

       The court found that on June 17, 1996, the parties orally extended the contract. On June 18, 1996, through their attorneys, the parties extended the time for completion of the contract in writing from June 17, 1996, to June 19, 1996.

       The plaintiff confirmed these conditions and attended the inspection with Wilcox.

       The defendant sent the letter referencing the Wilcox report via facsimile and also mailed a copy to the plaintiff.

       For example, the contract required the plaintiff to provide the survey within twenty days from the execution of the contract. The contract also permitted the defendant to give written termination due to pest infestation within seven days of receiving a report of said infestation. Finally, the subparagraph requiring the property to be in compliance with all applicable laws did not contain a time restriction.

       The court found that Wilcox was not a licensed building inspector and instead focused its inquiry as to whether Wilcox was a recognized building inspector. The plaintiffs brief focuses solely on the license requirement and does not address whether Wilcox was a recognized building inspector.

       General Statutes § 20-288 (3) provides in relevant part: “ ‘The practice of architecture’ or ‘practice architecture’ means rendering or offering to render service by consultation, investigation, evaluations, preliminary studies, plans, specifications and coordination of structural factors concerning the aesthetic or structural design and contract administration of building construction or any other service in connection with the designing or contract administration of building construction . . .


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. HECTOR RIOS
    (AC 20982)
    Lavery, C. J., and Schaller and Bishop, Js.
    Argued September 23
    officially released December 17, 2002

      Michael L. Moscowitz, special public defender, with whom, on the brief, was Patricia A. King, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Hector Rios, appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2), one count of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2), and three counts of assault in the first degree in violation of General Statutes §§ 53a-8* ** and 53a-59 (a) (5). On appeal, the defendant claims that the trial court improperly (1) restricted the scope of questioning during the voir dire of the potential jurors and (2) denied defense counsel’s request to refer to a photograph that was not admitted into evidence dining closing arguments. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On January 3, 1997, Diare Jones was on the front porch of his grandmother’s residence at 160 West Street in New Haven. His uncles, James Boyd and Harold Boyd also were present on the porch. Two Hispanic males emerged from a nearby alleyway and approached the porch. One of the men, the defendant, came closer and asked if the men on the porch had an illegal drug known as “illy” available for purchase. James Boyd responded that he did not have any “illy,” but he did have some marijuana that he was willing to sell. The defendant gave James Boyd twenty dollars in exchange for a bag containing marijuana. When James Boyd turned around to enter the house to get change, the defendant pulled out a gun and ordered him to hand over all of his money. The defendant then fired the gun at James Boyd, hitting him three times. The defendant then proceeded to shoot at Jones, hitting him twice in the back and once in the right leg. Finally, the defendant shot Harold Boyd in the leg and left the scene. Thereafter, medical personnel transported all three victims to a hospital for treatment.

Shortly after arriving at the hospital, a police detective asked the victims to look at some photographs to see if they could identify the shooter. All three victims were unable to make an identification. On January 10, 1997, while still in the hospital, Jones identified the defendant as the shooter after he was shown an array of photographs. James Boyd, after being released from the hospital, was able to identify the defendant as the shooter after being shown an array of photographs. On January 20, 1997, a police detective went to Harold Boyd’s residence to take a statement and show him a series of photographs. Harold Boyd, however, could not make a positive identification.

The police subsequently arrested the defendant. After a trial, the jury found the defendant guilty of all counts, and the court sentenced him to an effective prison term of thirty six years. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly restricted the scope of questioning during the voir dire of the potential jurors. Specifically, he argues that he was unable to probe the prospective jurors’ prejudices adequately regarding photographic identification. We disagree.

Both the federal and our state constitution guarantee the defendant the right to a public trial by an impartial jury. State v. Patterson, 230 Conn. 385, 391, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996). An adequate voir dire serves as a means to ensure that right. Id.; see also Morgan v. Illinois, 504 U.S. 719, 727-29, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992); State v. Hodge, 248 Conn. 207, 216, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). The court is entrusted with the primary responsibility of securing that right. State v. Day, 233 Conn. 813, 843, 661 A.2d 539 (1995).

“We start with the principle that the right to question prospective jurors in a criminal proceeding is a fundamental right that contributes to a fair trial. ‘The right to question each juror individually by counsel shall be inviolate.’ Conn. Const., art. I, § 19, as amended by art. IV of the amendments. The legislature has also recognized the importance of questioning jurors by enacting General Statutes § 54-82f, which provides in relevant part: ‘In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or [as] to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. . . .’” State v. Smith, 46 Conn. App. 600, 603, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997); see also Practice Book § 42-12.

“The extent to which parties should be allowed to go in examining jurors as to their qualifications is a matter largely resting in the sound discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused, and where harmful prejudice appears to have been caused thereby.” (Internal quotation marks omitted.) State v. Henry, 49 Conn. App. 41, 45, 713 A.2d 873, cert. denied, 247 Conn. 903, 720 A.2d 515 (1998). “In the exercise of this discretion, the court should grant such latitude as is reasonably necessary to accomplish the two-fold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges.” (Internal quotation marks omitted.) State v. Smith, supra, 46 Conn. App. 604.

Finally, we note that “[d]espite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. . . . In neither instance can an appellate court easily second-guess the conclusions of the decisionmaker who heard and observed the witnesses.” (Citations omitted; emphasis in original.) Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981); see also State v. Patterson, 31 Conn. App. 278, 288, 624 A.2d 1146, rev'd on other grounds, 230 Conn. 385, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996).

With those principles in mind, we now address the defendant’s claim. Voir dire commenced on November 23, 1999. After the first member of the venire quickly was excused for cause, examination of the second member commenced. The following colloquy ensued:

“[Defense Counsel]: Have you ever heard about identification testimony, testimony based on photographs? Have you ever seen that on TV?

“[Venireperson]: Yeah. They had the lineup, and you go through the lineup, and the person picks out who—

“[Defense Counsel]: When you hear that, could you tell me anything that comes to your mind about that type of testimony?”

At that point, the state’s attorney objected and the venireperson was temporarily removed from the courtroom. The court, after hearing argument from both counsel, sustained the objection, noting that the question was improper for voir dire because it touched on the facts of the case. The venireperson returned to the courtroom, and defense counsel was permitted to ask whether he believed if witnesses always tell the truth, whether a witness could make a mistake and whether a confident witness automatically is correct. Both counsel accepted the individual as a member of the jury.

For the remainder of the questioning done on November 23, 1999, defense counsel asked the members of the venire questions regarding their perceptions and beliefs as to whether witnesses always tell the truth, whether mistakes can be made by witnesses with respect to identification and whether a confident witness automatically is correct. The prosecutor often questioned venirepersons as to whether they had any preconceived notions that a witness automatically would he or make a mistake.

On November 24, 1999, prior to the start of voir dire, defense counsel requested that the court rule on the propriety of the following question: “Do you think it’s possible for someone to observe an event and identify someone as being involved, and it turns out they are mistaken?” The court sustained the state’s objection on the ground that the question touched on the facts of the case. The court permitted counsel to ask whether the venireperson believed that the witness, even a confident one, could be wrong. During the next two days of voir dire, defense counsel and the prosecutor questioned venirepersons regarding their beliefs on the accuracy of a witness to make a positive identification and the possibility that the witness could make an error.

Our Supreme Court repeatedly has warned counsel and the trial courts about engaging in voir dire questioning that touches on the facts of the case. “We have noted with concern increasing abuse of the voir dire process .... It appears that all too frequently counsel have engaged in wideranging interrogation of veniremen in a not too subtle attempt to influence the ultimate decision of a venireman if he should be selected for service or to ascertain the attitude of the venireman on an assumed state of facts.” (Internal quotation marks omitted.) Bleau v. Ward, 221 Conn. 331, 339-40, 603 A.2d 1147 (1992). Moreover, “[questions addressed to prospective jurors involving assumptions or hypotheses concerning the evidence which may be offered at trial . . . should be discouraged.” (Internal quotation marks omitted.) State v. Van Valkenburg, 160 Conn. 171, 173, 276 A.2d 888 (1970).

In State v. Pollitt, 205 Conn. 61, 74, 530 A.2d 155 (1987), our Supreme Court held that the trial court did not abuse its discretion when it precluded defense counsel from asking prospective jurors whether there was such a thing as a mistaken identification. In that case, the trial court permitted counsel to inquire: “Would you automatically believe every witness who testified? [Do you] think . . . that a person who takes an oath can be honestly mistaken about what they’re testifying about?” (Internal quotation marks omitted.) Id. The Supreme Court held that the court properly attempted to strike a balance between a party’s right to ask questions regarding credibility while avoiding issues of fact or law that may have arisen during the trial. Id., 75.

In the present case, the identification of the defendant as the shooter of Jones, Harold Boyd and James Boyd served as a crucial factual determination reserved for the jury. The court permitted defense counsel, during voir dire, to ask prospective jurors questions regarding their thoughts on the ability of a witness to make an accurate identification and whether a witness, even an extremely confident one, could make a mistaken identification. Those questions, similar to those allowed in Pollitt, served to aid the court and counsel in determining whether a particular venireperson was qualified to sit as a juror. Furthermore, those questions assisted counsel in determining whether to use their peremptory challenges. We conclude that the court properly attempted to strike a balance between allowing questions regarding witness identification and avoiding questions that touched on the facts of the case. It was, therefore, not an abuse of discretion by the court to restrict the scope of questioning during voir dire of the potential jurors.

II

The defendant also claims that the court improperly denied defense counsel’s request to refer during closing argument to a drawing that had not been admitted into evidence. We disagree.

The drawing in question simultaneously depicted the image of a young woman and an old woman. Depending on the angle from which the viewer looks at the drawing, the image of either the old woman or the young woman may be perceived. Only after further viewing, or a shift in the angle from which the drawing is viewed, will the second image emerge. The defendant wanted to use the drawing to demonstrate the ease of misidenti-fication.

As an initial matter, we set forth the applicable standard of review. “In general, the scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations.” (Citations omitted; internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 59, 612 A.2d 755 (1992).

Our Supreme Court frequently has stressed the importance of restricting comments made during closing arguments to matters related to the evidence before the jury. “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts notin evidence, or to present matters which the jury have no right to consider.” (Emphasis added; internal quotation marks omitted.) State v. Pouncey, 241 Conn. 802, 811, 699 A.2d 901 (1997).

The drawing that defense counsel wanted to refer to during his closing argument never was introduced into evidence. Moreover, the defendant was able to make a similar argument to the jury regarding the potential for misidentification using a photograph of the crime scene that had been admitted into evidence. We con-elude, therefore, that the court did not abuse its discretion when it denied the defendant’s request.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is aimed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . .”

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

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

       Jones testified that he understood “illy” to be a combination of marijuana and embalming fluid. It also has been described as mint leaves soaked in embalming fluid; State v. Spyke, 68 Conn. App. 97, 102 n.4, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002); or a mixture of phencyclidine (PCP), wood alcohol, methanol and formaldehyde. State v. Billie, 47 Conn. App. 678, 680 n.2, 707 A.2d 324 (1998), aff'd, 250 Conn. 172, 738 A.2d 586 (1999).

       During the trial, Jones and James Boyd identified the defendant as the individual who had shot them.

       Defense counsel also was permitted to ask whether the prospective juror would give more credibility to the testimony of a police officer than that of a citizen. See, e.g., State v. Dolphin, 203 Conn. 506, 513, 525 A.2d 509 (1987); State v. Hill, 196 Conn. 667, 672, 495 A.2d 699 (1985).

       The defendant could not have had the drawing admitted into evidence through an expert witness because expert testimony regarding misidentification generally is disfavored and excluded. See State v. Kemp, 199 Conn. 473, 476-79, 507 A.2d 1387 (1986).

       Defense counsel showed the jury a photograph of the crime scene in which a pole appeared to be in front of the house where the shootings occurred. He then showed a photograph of the same location in which the pole was not present. He concluded by stating: “That’s what we talk about when we talk about misidentification. This picture is to illustrate how one may focus and process information as it relates to identification. You want to make sure, beyond a reasonable doubt, that the victims in this case are not identifying [the defendant] simply because certain characteristics resemble the physical appearance of the stranger who shot them.”