author: DRANGINIS, J.

text:
    ELIZABETH BONAN v. GOLDRING HOME INSPECTIONS, INC.
    (AC 21210)
    Foti, Dranginis and Hennessy, Js.

      Argued November 30, 2001
    officially released April 2, 2002

      Marylouise S. Black, with whom, on the brief, were Robert M. Fleischer and Leslie L. Lane, for the appellant (plaintiff).

      David J. Robertson, for the appellee (defendant).
   Opinion

DRANGINIS, J.

In this case, the plaintiff, Elizabeth Bonan, appeals from the judgment rendered in her favor following a jury trial. On appeal, the plaintiff claims that she is entitled to a new trial because the trial court improperly (1) restricted her testimony on direct examination, (2) refused to charge the jury on her breach of contract claim or, in the alternative, blended her breach of contract claim with her negligence count in its instructions to the jury, (3) refused to charge the jury on the issue of the defendant’s guarantee as set forth in her breach of contract count and (4) instructed the jury regarding her claim that the defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On December 13, 1994, the plaintiff entered into a written contract to purchase a home in Norwalk for $750,000. Soon thereafter, the plaintiff received a mortgage commitment from National Westminster Bank for $350,000. Pursuant to the loan commitment, the plaintiff was required to provide to the bank, on or before the closing date, a satisfactory report regarding wood destroying insects prepared by a licensed pest control company.

To meet the loan commitments, the plaintiff, on January 4,1995, entered into an oral contract with the defendant, Goldring Home Inspections, Inc., for it to conduct a visual inspection of the subject property. The defendant did not detect any major problems, and provided the plaintiff with a written inspection report and a satisfactory insect report, both indicating the lack of any visible signs of insect infestation. The plaintiff paid $650 to the defendant for the home inspection. The plaintiff subsequently closed on the purchase of the property on January 10, 1995.

Toward the end of March, 1995, the plaintiff noticed insects swarming in her solarium, which were later discovered to be termites. The plaintiff entered into a contract with OCON, Inc., to remediate the termite infestation. The plaintiff paid $2968 to OCON for its termite work. To treat the termite damage, insulation material and asbestos also had to be removed from crawl space in the wall. The plaintiff also had to replace woodwork in the solarium. The plaintiff allegedly discovered other problems with the home that she claims the defendant should have identified during the home inspection.

The plaintiff then filed an action against the defendant, alleging breach of contract, negligence and CUTPA violations. Following a jury trial, a verdict was rendered in the plaintiffs favor on the negligence count only, and damages were awarded to her in the amount of $2968. This appeal followed. Additional facts will be set forth where pertinent to the issues raised.

I

We will first address the second issue raised by the plaintiff regarding the court’s refusal to instruct the jury on the breach of contract count, as our resolution of that claim affects our determination of the other issues raised in this appeal.

The plaintiff contends that the court improperly refused to charge the jury on her first count of breach of contract or, in the alternative, that it improperly blended her breach of contract claim with the second count of her complaint, a negligence claim. The plaintiff, therefore, requests a new trial as to her breach of contract and CUTPA claims. We are not persuaded.

The following additional facts are relevant to our resolution of the plaintiffs claim. As previously mentioned, the plaintiff filed a three count complaint against the defendant, alleging breach of contract, negligence and CUTPA violations. The plaintiff proceeded to trial on those three counts. At the conclusion of the evidence, the defendant sought a directed verdict on all three counts. Although the court did not rule on the motion explicitly, during discussions with the parties it expressed concern about whether the breach of contract count was legally viable and whether it should submit the issue to the jury.

In its charge to the jury, the court instructed the jury to disregard the breach of contract claim. The plaintiff now challenges the following portion of the jury charge, which encompasses the court’s instruction to reject the breach of contract count:

“Ladies and gentlemen, during the trial, and as I explained to counsel, the first count on breach of contract, I believe, that is—we can cover more clearly for your purposes in the second count, which is the negligent] performance of a contract. So, therefore, I don’t intend to deliver the first count to you. I don’t think it’s necessary for a resolution in this particular case, which then means you’re getting down to the second— and, as I said to you, the second count, of course, is founded in negligence. So, what we have to do is now switch over to the concept of you have a contract. Of course, you have a contract, an offer, acceptance and consideration. I don’t believe there’s any question that we did have what we call an oral contract in here.”

Although the plaintiff labels her claim as one involving an improper jury instruction, in essence, she claims that the court “sua sponte, and in derogation of the law,” rejected the breach of contract count, thereby warranting our plenary review of the matter. We find that the gravamen of the plaintiffs claim is whether the court properly determined, as a matter of law, that she was not entitled to submit the breach of contract count to the jury.

“It is well established that [a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. ... [A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible. . . . The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding. . . . Accordingly, the right to a jury instruction is limited to those theories for which there is any foundation in the evidence. . . . In determining whether any such foundation exists, [w]e must consider the evidence presented at trial in the light most favorable to supporting the [party’s] request to charge. . . . Additionally, [w]hen . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citations omitted; internal quotation marks omitted.) Henriques v. Magnavice, 59 Conn. App. 333, 336, 757 A.2d 627 (2000); see also Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 139, 757 A.2d 516 (2000).

We conclude that the court properly declined to instruct the jury on the breach of contract count because, in this case, the plaintiff was not entitled to an instruction on both the breach of contract and negligence counts.

In her first count for breach of contract as set forth in the complaint, the plaintiff alleged that the “[defendant defaulted in the performance of its Agreement with the plaintiff in that it failed to perform the inspection in a skillful, competent and workmanlike manner by failing to identify, in the report or otherwise, the existence of substantial and costly problems with the premises. ...” (Emphasis added.) The plaintiff alleged negligence in the second count of her complaint, stating that “[t]he [defendant, in violation and breach of its duty, failed to exercise a reasonable degree of care, skill and diligence when it performed the inspection of the premises in that it failed to identify and report numerous problems at the [p]remises, including but not limited to the problems described in [count one].” (Emphasis added.)

More significantly, however, in the breach of contract and negligence counts, the damages that the plaintiff claimed she suffered as a result of the defendant’s actions were identical to one another. In the first count, the plaintiff alleged that “[a]s a direct and proximate result of the Defendant’s default, the plaintiff has been forced to expend considerable sums to correct and repair the problems with the premises which the defendant failed to identify. As a further direct and proximate result of the defendant’s default, the plaintiff purchased the premises for a purchase price greater than she would have paid had the defendant discovered and reported the problems with the premises described . . . above.” (Emphasis added.) The damages that the plaintiff claimed in the negligence count reiterate verbatim those set forth in the breach of contract count, with the exception that she substituted the word negligence for default.

Although the plaintiff was entitled to allege those respective theories of liability, she was not entitled to recover twice for the same damages that arose out of the same transaction. See Jonap v. Silver, 1 Conn. App. 550, 561, 474 A.2d 800 (1984). Thus, submitting both the breach of contract and negligence charges to the jury in this case would have resulted in the jury improperly awarding duplicative damages to the plaintiff. See id., 562.

Jonap v. Silver, supra, 1 Conn. App. 550, is instructive. In Jonap, the plaintiff filed an action against the defendant for injurious falsehood and invasion of privacy. Following trial, the jury awarded damages in favor of the plaintiff for, inter alia, both invasion of privacy by appropriation and invasion of privacy by false light. Id., 553. On appeal, this court found that the jury improperly had awarded damages for both invasion of privacy by appropriation and invasion of privacy by false light because the award amounted to a duplication of damages. Id., 561. We concluded that the plaintiff was “not entitled to recover twice for the same elements of damage such as mental distress, harm to reputation, pecuniary loss or resulting unjust enrichment growing out of the same transaction, occurrence or event. . . . Put another way, the plaintiff cannot twice suffer damage to his reputation, mental distress or other harm from this one transaction. Thus, he should not twice recover damages.” (Citations omitted.) Id., 561-62.

Similarly, in this case, despite invoking separate theories of liability, the plaintiff cannot recover twice for expending “considerable sums to correct and repair the problems with the premises,” and for purchasing the premises for a price greater than she would have paid had the defendant discovered the problems with the home. Accordingly, it would have been improper for the court to submit both counts to the jury when the plaintiff sought to recover twice for the same damages.

The issue still remains, however, whether the court acted in accordance with law and adapted its charge to the issues litigated at trial when it rejected the breach of contract claim as opposed to the negligence count. We begin our analysis by noting that a party may be hable in negligence for the breach of a duty that arises out of a contractual relationship. Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 688, 508 A.2d 438 (1986). “Even though there may not be a breach of contract, liability may arise because of injury resulting from negligence occurring in the course of performance of the contract.” Johnson v. Flammia, 169 Conn. 491, 496, 363 A.2d 1048 (1975).

“Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so.” Dean v. Hershowitz, 119 Conn. 398, 407-408, 177 A. 262 (1935). “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). In her complaint, the plaintiff alleged that the defendant breached its contract in that it “failed to perform the inspection in a skillful, competent and workmanlike manner. . . Those very words implicate negligence principles in that the defendant had a duty to the plaintiff and allegedly failed to perform its duties under the proper standard of care.

Although, the duty that the defendant owed to the plaintiff arose from the contract between the parties, a thorough review of the complaint, record and transcripts reveals that the plaintiff was not seeking damages for breach of that duty per se, but rather for the defendant’s negligence in the performance of the contract. That is manifest from the fact that the plaintiff’s allegations of liability and damages in the breach of contract count are nearly identical to those contained in the negligence count. Moreover, the evidence presented at trial to establish the breach of contract and negligence claims was the same. In other words, the plaintiff here could not prove a breach of contract without simultaneously proving that the defendant was negligent.

“Just as [pjutting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender . . . putting a contract tag on a tort claim will not change its essential character.” (Citation omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001). In this case, it appears that the plaintiff attempted to give two different names to one claim of negligence. Accordingly, we conclude that under the circumstances of this case, the court properly rejected the plaintiffs breach of contract claim and instructed the jury solely on the negligence count.

To the extent that the plaintiff contends, in the alternative, that the court improperly blended the breach of contract count and negligence count in its instructions to the jury, we further conclude that her claim is without merit.

“Our standard of review concerning preserved claims of improper jury instruction is well settled. . . . A jury instruction must be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Therefore, [o]ur standard of review on this claim is whether it is reasonably probable that the jury was misled.” (Citations omitted; internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn. App. 622, 624-25, 760 A.2d 969 (2000).

The court, in commenting on the defendant’s motion for a directed verdict, stated: “I believe [the plaintiff] goes to the jury on count one and two, which will be blended together. I don’t make any real distinction in the charge between the breach of the contract or negligence performance. ... So those blend together.”

Although the court stated to the parties that it would blend the breach of contract and negligence counts in its instructions to the jury, a thorough review of the instructions reveals that the court did not intermingle the two counts and thus did not mislead the jury. The court adequately explained to the jury that the breach of contract claim was subsumed by the negligence count. The court then continued to instruct the jury, in great detail, on the elements of negligence. Moreover, the fact that the court continued to instruct the jury solely on negligence further bolsters our conclusion that the jury was not misled. “[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn. App. 574, 588, 785 A.2d 253 (2001). We conclude that the court’s instructions to the jury were proper and did not mislead the jury.

II

We now address the plaintiff’s first claim on appeal that the court improperly restricted her testimony on direct examination regarding what actions she would have taken had the defendant discovered the termite infestation and other problems with the premises during the home inspection. The plaintiff contends that as a result of the court’s limitation of her direct examination, she was precluded from proving her breach of contract claim and is thus entitled to a new trial.

Our conclusion in part I, that the court properly refused to charge the jury on the breach of contract claim, renders moot the plaintiffs evidentiary claim with respect to proving a breach of contract. See Churchill v. Skjerding, 31 Conn. App. 247, 253, 624 A.2d 900, cert. denied, 226 Conn. 914, 628 A.2d 986 (1993). In light of our conclusion, we need not consider whether the court improperly prevented the plaintiff from presenting evidence in support of her breach of contract claim. See id.

Ill

The plaintiff next claims that the court improperly refused to charge the jury on the issue of the defendant’s guarantee or disclaimer of warranty as set forth in her request to charge. The plaintiff contends that the court’s failure to instruct on that issue negatively impacted the jury’s award of damages. We are not persuaded.

The following additional facts are relevant to our disposition of the plaintiffs claim. After inspecting the subject premises, the defendant gave a booklet to the plaintiff entitled “Know the Home You Buy.” The booklet contained a guarantee of services and a clause voiding the guarantee if the home was treated by any other entity without the defendant’s approval. In her request to charge, the plaintiff asked the court to instruct the jury in pertinent part that the “warranty has no relevance to [her] contract and negligence claims,” and that it “may not consider the defendant’s disclaimer of warranties as a factor in determining whether or not the defendant is liable to the plaintiff for breach of contract or negligence.” The court did not instruct the jury about the guarantee, or warranty, to which the plaintiff excepted.

We reiterate our standard of review for claims of instructional impropriety in appeals not involving a constitutional question. “[T]he court must consider the whole charge and it must be determined ... if it is reasonably probable that the jury [was] misled .... In assessing the adequacy of a charge to the jury, we consider the charge in its entirety, and judge it by its total effect rather than by its individual component parts. . . . We consider whether the instructions are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. . . . The charge must give the jurors a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and must be suited to guide them in the determination of those issues.” (Citation omitted; internal quotation marks omitted.) Murray v. Taylor, 65 Conn. App. 300, 331, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

We conclude that it was not reasonably probable that the court misled the jury by failing to charge on the issue of the defendant’s guarantee. The plaintiff sought the aforementioned instruction to clarify to the jury that the guarantee had no bearing on its determination of whether the defendant was liable for breach of contract and negligence. The fact that the jury found that the defendant was negligent, and accordingly awarded damages to the plaintiff, demonstrates that the jury was not misled by the absence of an instruction regarding the guarantee.

Although the plaintiff now contends that the issue of the guarantee was “crucial to [her] causes of action,” she failed to invoke its significance during the trial. The plaintiff did not present evidence to demonstrate that the guarantee supported her claims of wrongdoing, nor did she proffer evidence to refute any limitations to her recovery that the guarantee may have imposed. Moreover, a thorough review of the transcripts reveals that the defendant did not allege during the trial that the guarantee in any way precluded the plaintiff from prevailing on either her breach of contract or negligence claims. Accordingly, any such instruction would have been irrelevant to the issues presented at trial. We therefore conclude that the court properly refused to instruct the jury on the defendant’s guarantee or disclaimer of warranty. Although the plaintiff now is dissatisfied with the jury’s award of damages, that award was not a result of, or a reflection of, an improper instruction.

IV

The plaintiff claims finally that the court improperly instructed the jury regarding her CUTPA count. The plaintiff contends that the court’s instruction on the CUTPA count was improper because it charged the jury on that claim “in a vacuum,” failed to refer “to testimony or exhibits essential to establish what, in law, could constitute an unfair trade practice as a question of fact” and “made no distinction as to the elements of proof required under the theories of contract or negligence.” We decline to review the plaintiffs claim.

The plaintiff has failed to preserve her claim for appellate review. Our rules of practice provide that we are not bound to consider claims of error relative to jury instruction unless they are distinctly raised at trial. See Practice Book § 16-20. In this case, the plaintiff excepted to the jury charge solely on the ground that the court had failed to properly instruct the jury that the defendant’s “invo[cation] [of] the guarantee against the plaintiff in order to avoid paying under contract or negligence theories” was an unfair trade practice. The plaintiff made no further objection to the charge. More significant to our analysis, however, is the fact that the trial court’s instruction on the CUTPA claim is substantially similar to the language set forth in the plaintiffs request to charge.

Practice Book § 16-20 provides in relevant part that “[a]n appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. . . .” “The purpose of the rale is to alert the court to claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 814, 614 A.2d 414 (1992).

In this case, the plaintiff failed to alert the court that she had any objection to the CUTPA charge other than with respect to the issue of the guarantee. The court closely followed the plaintiffs request to charge, and the plaintiff failed to except to the instructions on the grounds she now invokes on appeal. Accordingly, the plaintiff failed to preserve her claim properly, and we therefore decline to review it on appeal. See Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 524-26, 656 A.2d 1009 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff previously hired Total Home Inspection, Inc., to perform a full inspection of the subject property. Although Total Home Inspection, Inc., provided a favorable report about the premises, it did not fill out the necessary forms regarding wood destroying insects.

       The defendant asserts that we should not review the breach of contract claim on the grounds that it is inadequately briefed and unpreserved. Specifically, the defendant contends that the claim is unpreserved because the plaintiff failed to take an exception to the charge. We disagree. The plaintiff adequately briefed her claim in compliance with our rules of practice. Moreover, the plaintiff timely filed a written request to charge, thereby preserving her challenge to the jury instructions. See Murray v. Taylor, 65 Conn. App. 300, 328, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

       The following are examples of colloquy between the parties and the court indicating the court’s determination that the plaintiff was not entitled to submit the breach of contract claim to the jury. After the defendant presented its arguments in support of its motion for a directed verdict, the court responded: “I’ll take it on the paper. ... I believe she [the plaintiff] goes to the jury on count one and two, which will be blended together. I don’t make any real distinction in the charge between the breach of the contract or negligent] performance. In other words, they’re going to have to determine—I believe, they’ll be charged that there was a contract, absent the scope or the duty of the defendant must be determined by the evidence and then—once you determine what his precise duties were, did he not perform the duty at all, which would be breach of contract, or he was negligent performing in that standard of the contract, which would be causation as far as I’m concerned. So, those blend together.”
      Again, as demonstrated by the following colloquy, during the conversation about the defendant’s motion for a directed verdict, the court questioned whether it was appropriate to charge the jury on both the breach of contract and negligence counts:
      “Trial Court: What do you say on count one?
      “[Plaintiffs Counsel]: On count one, Your Honor, count one is a breach of contract action. I think the case law establishes that?
      “Trial Court: Where? A breach in what then? I mean, let’s put it this way. What—do you want count one or do you want count two?
      “[Plaintiffs Counsel]: Your Honor, I believe, I believe I’m entitled to both counts.
      “Trial Court: Then you’re going to require an interrogatory to the jury as to whether they’re making a finding of count one or count two if we get to CUTPA. Because I don’t see how else I can handle it.
      “[Plaintiffs Counsel]: If that’s what’s required.”

       The plaintiff also seeks our review of her claim under the general standard for challenged jury instructions, i.e., whether it was reasonably probable that the jury was misled.

       In her negligence count, the plaintiff claimed that “[a]s a direct and proximate result of the Defendant’s 'negligence, the Plaintiff has been forced to expend considerable sums to correct and repair the problems with the premises which the defendant failed to identify. ... As a further direct and proximate result of the Defendant’s negligence, the plaintiff purchased the Premises for a price greater than she would have paid had the defendant discovered and reported the Problems with the Premises described . . . [previously]." (Emphasis added.)

         The court also recognized that although the defendant’s duty to the plaintiff arose from their contract, the plaintiff, in reality, sought to recover damages resulting from the defendant’s negligence.

       Our holding here is limited to the facts of this case, and should not be interpreted to stand for the proposition that a plaintiff cannot bring an action for both breach of contract and negligence on the basis of negligent performance of that contract. To the contrary, the negligent performance of a contract may give rise to an action and recovery in both tort and breach of contract. See 57A Am. Jur. 2d Negligence §§ 119 through 25 (1989). To sustain an action in both tort and contract, however, on the basis of negligent performance of a contract, the plaintiff must allege facts and damages sufficient to maintain those causes of actions separately. See Youngset, Inc. v. Five City Plaza, Inc., 156 Conn. 22, 25, 237 A.2d 366 (1968).

       We further note that, the court submitted interrogatories to the jury relating solely to the negligence and CUTPA counts.

       In support of her claim, the plaintiff refers to the following colloquy:
      “[Plaintiffs Counsel]: Now, do you know what you would have done had the inspection revealed termites?
      “[Plaintiff]: Yes.
      “[Plaintiffs Counsel]: What would you have done?
      “[Defendant’s Counsel]: “I’m going to object. That’s a hypothetical question.
      “The Court: Sustained as to what she would have done.”

       The defendant argues that we should decline to review the plaintiffs claim because she failed to preserve it adequately for appellate review. We disagree and find that the claim is before this court adequately.

       In fact, prior to the jury charge, the defendant withdrew all of its special defenses regarding the guarantee and limitation of liability.

       The court’s instruction on the CUTPA count stated in part: “And what I’m going to do is now submit the last count to you for your deliberations and then ask you to answer two interrogatories. It’s dealing with what we call the CUTPA, unfair trade practices act, and there’s a statute in the state of Connecticut—I’ve got the forms—[General Statutes §] 42-110b, I believe, which provides that no person—and, of course, the defendant would be a person. It’s a corporate person, but it’s a person—shall engage in any unfair methods of competition, unfair or deceptive acts or practice in the conduct of any [trade] or commerce—of course, he isn’t trade and commerce.
      “They have adopted a rule for you to consider. And there’s basically three prongs, as we say, whether the practice, without necessarily having being previously considered unlawful, offended public policy as [it has] been established by statute, common law or otherwise.

        “The second would be whether it was immoral, unethical and oppressive or unscrupulous, and the third was whether it caused substantial injury to the consumers. Those would be the three concepts that you would have to consider as it relates to your finding in this particular case under the third count.
      “Ladies and gentlemen, what it is you have to consider that—mix all the evidence and those three prongs, come to the conclusion that which you found the defendant guilty of is a conduct—and unfair conduct in the trade or business of what he was involved in. And you can do that by continuing your deliberations on that.
      “Then you’re going to have two questions you have to answer. One is, did defendant, Goldring Home Inspections, Inc., through its servants or agent, engage in unfair or deceptive acts or trade practices in dealing with the plaintiff?
      “If you answer no, then there is a—you don’t have to answer the second one necessarily, but I’d rather ask you—even though it says if the answer’s yes.
      “Number two. If the answer to interrogatory number one is yes, would the acts of the defendant, Goldring Home Inspections, Inc.—were they intentional or reckless disregard of the plaintiffs, Elizabeth Bonan’s, rights? Yes or no. I would amend that and ask you to answer both. So, I want either a check on yes—both yeses or both no, or any combination.”

       The plaintiffs request to charge on the CUTPA count stated as follows:
      “The plaintiff has also asserted a claim against the Defendant under the Connecticut Unfair Trade Practices Act C.G.S. § 42-110a et seq. (CUTPA). Section 42-110a of the Connecticut General Statutes and [§] 42-110b says this: ‘Unfair trade practices prohibited. Legislative intent. A, no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,’; and B says that we should be guided by the Federal Trade [Commission] and federal courts on their interpretation of this law, as there is a similar law in the federal jurisdiction. So, I now come to what federal law says on the subject. And I quote from A-G Foods, Inc. v. Pepperidge Farm, Inc., [216 Conn. 200, 215, 579 A.2d 69 (1990)]. The Federal Trade Commission has stated: ‘[WJhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness . . . .’ Those are a lot of words, so let’s see what those words mean. . . .
      “The first requirement of the statute is, did the act or practices of the Defendant offend public policy as established by statute, common law or otherwise? In other words, does this act or acts on their part fall within some established concept of unfairness? The second part of the law is this: Whether or not the act or practices were immoral, unethical, oppressive or unscrupulous and the third part of the law, quoting from the Federal Trade [Commission’s] rules: Whether such act or practices cause substantial injury to consumers. Therefore, you must first ask yourselves whether the Defendant, through its servants or agents, engaged in unfair or deceptive acts or trade practices in dealing with the Plaintiff. If your answer to that question is yes, you must then decide whether the acts of the Defendant were intentional or with reckless disregard of the Plaintiffs rights. Intentional means by design or intent. Reckless means heedless disregard of the rights of others, something more serious than negligence or mere carelessness.”

       To the extent that the plaintiff also challenges the interrogatories submitted to the jury regarding the CUTPA count, we also decline to review that claim. The plaintiff failed to raise any objection to the form of the interrogatories or to the court’s instructions to the jury to answer the interrogatories concerning CUTPA. Moreover, the interrogatories covering the CUTPA count followed verbatim the jury verdict form with interrogatories that the plaintiff had submitted to the court. Therefore, the plaintiff failed to preserve her claim as to the interrogatories. See New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 96-98, 709 A.2d 14 (1998).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL CONSTANTOPOLOUS
    (AC 20815)
    Schaller, Bishop and Stoughton, Js.
    Argued January 16
    officially released April 2, 2002

      Michael Constantopolous, pro se, the appellant (defendant).

      Gerard P. Eisenman, senior assistant state’s attorney, with whom, on the brief, was Jonathan Benedict, state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The pro se defendant, Michael Constantopolous, appeals from the order of the trial court denying his motion to correct an illegal sentence. The defendant claims that (1) his sentence was illegal and (2) his sentence was imposed in an illegal manner because the court improperly advised him during his plea canvass that he would be eligible for parole. We affirm the judgment of the trial court.

In February, 1989, the defendant was involved in a dispute that resulted in the shooting deaths of two victims. The defendant was arrested, charged by the state with two counts of murder in violation of General Statutes § 53a-54a and tried before a jury. At trial, shortly before the conclusion of the evidence, the defendant entered pleas of guilty to a substitute information charging him with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). Thereafter, the court sentenced the defendant to concurrent terms of thirty-five years on the murder charge, twenty years on the manslaughter charge and five years on the charge of carrying a pistol without a permit, for a total effective sentence of thirty-five years.

More than eight years later, the defendant filed a motion to correct an illegal sentence. The defendant claimed, inter alia, that his sentence was illegal because the court improperly led him to believe that if he entered the pleas he would be eligible for parole. The defendant based his claim on the following statement by the sentencing court: “As you are charged with capital felony given to natural lives you would have no benefit of parole. That is not in the cards at this time.” (Emphasis added.) The defendant argued that that his sentence was ambiguous and contradictory because he was ineligible for parole on the murder conviction, but was eligible for parole on the conviction of manslaughter and carrying a pistol without a permit. After a hearing and the submission of briefs by both parties, the trial court concluded that the defendant’s sentence was consistent with the relevant statutory provisions and denied the motion in a written memorandum of decision. This appeal followed.

The defendant first claims that, because his sentence was illegal, the court improperly denied his motion to correct the illegal sentence. We disagree.

The defendant’s claim involves a question oflaw. Our review is, therefore, plenary. State v. Wall, 40 Conn. App. 643, 654, 673 A.2d 530, cert. denied, 237 Conn. 924, 677 A.2d 950 (1996).

Practice Book § 43-22 provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” Accordingly, “[b]oth the trial court and this court, on appeal, have the power, at any time, to correct a sentence that is illegal.” (Internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 804, 781 A.2d 285 (2001).

“An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001); State v. McNellis, 15 Conn. App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988), citing 8A J. Moore, Federal Practice, para. 35.03[2], pp. 35-35 through 35-36. The remedies available for correcting an illegal sentence include reconstructing the sentence to conform to its original intent or to the plea agreement, eliminating a sentence previously imposed for a vacated conviction or resentencing a defendant if it is determined that the original sentence was illegal. Cobham v. Commissioner of Correction, supra, 39.

In the present case, the defendant’s claim that the court improperly led him to believe that he would be eligible for parole, even if accurate, does not result in an illegal sentence. The sentence did not exceed the relevant statutory maximum limits or violate the defendant’s right against double jeopardy, and the defendant does not claim on appeal that the sentence was ambiguous or internally contradictory. Furthermore, the defendant cites no case law, and we are aware of none, supporting the proposition that a defendant’s failure, at the time of the plea, to comprehend fully the terms of his sentence renders the sentence illegal. Accordingly, we conclude that the court properly denied the defendant’s motion to correct.

The defendant also claims that the court improperly denied his motion to correct because his sentence was imposed in an illegal manner. We decline to review this claim.

In his motion, the defendant did not claim that his sentence was imposed in an illegal manner. When a claim is raised for the first time on appeal, our review of the claim is limited to review under either the plain error doctrine or State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). State v. Rodriguez, 68 Conn. App. 303, 308, 791 A.2d 621 (2002). The defendant did not request review of his claim under either of those doctrines. “As this court has previously noted, it is not appropriate to engage in a level of review that is not requested.” (Internal quotation marks omitted.) Id. Accordingly, we decline to review the defendant’s claim.

The judgment is affirmed.

       We note that the defendant did not appeal from the judgment of conviction.

       In response to the defendant’s subsequent motion for articulation, the court issued a memorandum of decision dated December 13, 2000, further explaining the factual and legal basis for denying the motion. The court determined that the fact that the defendant “inferred from the court’s comments that he would be eligible for parole does not in any way invalidate the defendant’s plea or sentence.”

       Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but imposed in a way that violates the defendant’s rights, such as the right to be addressed personally at sentencing and to speak in mitigation of punishment, the right to be sentenced by a judge relying on accurate information or considerations solely in the record, or the right that the government keep its plea agreement promises. State v. McNellis, supra, 15 Conn. App. 444.

       Under State v. Golding, supra, 213 Conn. 239-40, a defendant may prevail on a constitutional claim unpreserved at trial if the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. ARIEL FALCON
    (AC 20475)
    Lavery, C. J., and Schaller and Peters, Js.
    Argued November 27, 2001
    officially released April 2, 2002

      Matthew J. Collins, for the appellant (defendant).

      Melissa L. Streeto, special deputy assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Kevin D. Lawlor, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Ariel Falcon, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. The dispositive issue on appeal is whether the trial court committed plain error when it presided over this case after having participated actively in pretrial plea negotiations. We reverse the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. In October, 1997, the defendant was charged with criminal possession of a pistol or revolver pursuant to § 53a-217c. In December, 1997, the state’s attorney and defense counsel met with the trial judge, Grogins, J., for a judicial pretrial conference. The state’s attorney made an offer to defense counsel for a sentence of five years imprisonment, execution suspended after three years served and five years probation with a presentence investigation and a right to argue for a lesser sentence. The court suggested that the state’s offer include a cap of thirty-six months on the time to be served and a right reserved by the defendant to argue for a lesser sentence. The state’s attorney accepted the court’s suggestion. The defendant, however, rejected the plea agreement. Nearly two years later, in October, 1999, Judge Grogins presided over the trial where a jury found the defendant guilty. In December, 1999, the court sentenced the defendant to five years imprisonment, execution suspended after forty months, which was more than the thirty-six month cap offered to the defendant during plea negotiations in December, 1997. At no time did the defendant move to disqualify the trial court or call to the court’s attention its earlier involvement in the case. There is no indication in the record that the trial court itself was aware of its earlier involvement at the plea negotiating stage.

The defendant claims that because the court improperly failed to recuse itself from presiding at the trial and sentencing after having earlier participated in pretrial plea negotiations, he was deprived of his constitutional right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.

The defendant failed to preserve this claim and requested our review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). To avoid deciding the constitutional claim raised by the defendant, we determined that a nonconstitutional ground existed with regard to whether it was plain error for the trial court to preside over this case after having participated actively in plea negotiations. We conduct a plain error review rather than Golding review because “[t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case.” (Internal quotation marks omitted.) State v. Washington, 39 Conn. App. 175, 176-77 n.3, 664 A.2d 1153 (1995).

The state argues that we should not review the defendant’s claim because the defendant failed to preserve his claim by filing a motion for disqualification or requesting plain error review. While the state is correct in asserting that we generally do not review claims that have not been adequately preserved for appeal, “our sua sponte invocation of plain error review is warranted when the following requirements are satisfied: (1) we discuss the rule and articulate why it is appropriate; and (2) we give the parties an opportunity to brief the issue.” Id., 179.

After oral argument, this court sua sponte raised the issue of whether, under the circumstances of this case, it was plain error for the trial judge to preside over this case after having actively participated in pretrial plea negotiations. The parties filed supplemental briefs, as directed by this court, addressing the issue.

“It is well established that plain error review is exercised in only the most limited of circumstances. Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Emphasis in original; internal quotation marks omitted.) Id. We conclude that plain error review is warranted because the impropriety of a court presiding over the trial and sentencing after having actively participated in pretrial plea negotiations is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.

“Our Supreme Court has stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures or to follow a procedural rule constitutes plain error. State v. Johnson, 214 Conn. 161, 171 n.10, 571 A.2d 79 (1990); State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981). State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881 (1994), aff'd, 233 Conn. 527, 660 A.2d 738 (1995).” (Internal quotation marks omitted.) State v. Tinsley, 59 Conn. App. 4, 18, 755 A.2d 368, cert. denied, 254 Conn. 938, 761 A.2d 765 (2000). “Canon 3C (1) of the Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge’s impartiality on the basis of all the circumstances. . . . Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 460-61, 680 A.2d 147 (1996).

Although pretrial plea negotiations play a critical role in the criminal justice system and the disposition of charges after plea discussions is highly desirable, judicial participation in pretrial plea negotiations frequently has been criticized. State v. Revelo, 256 Conn. 494, 505-506, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001); see also State v. Washington, supra, 39 Conn. App. 180-81. In fact, “many jurisdictions bar judges from active participation in plea negotiations.” State v. Revelo, supra, 506 & n.22, citing Fed. R. Crim. P. 11 (e) (1); Colo. Rev. Stat. § 16-7-302 (1) (2000); Wash. Rev. Code Ann. § 9.94A.080.

In Connecticut, however, “[i]t is a common practice ... for the presiding criminal judge to conduct plea negotiations with the parties. If plea discussions ultimately do not result in a plea agreement, the trial of the case is assigned to a second judge who was not involved in the plea discussions and who is unaware of the terms of any plea bargain offered to the defendant. The judge responsible for trying the case also is responsible for sentencing the defendant in the event the defendant is convicted after trial.” State v. Revelo, supra, 256 Conn. 508 n.25. “[A]s long as the defendant is free to reject the plea offer [made after negotiations conducted by one judge] and go to trial before a [second] judge who was not involved in or aware of those negotiations, [the defendant] is not subject to any undue pressure to agree to the plea agreement, and the impartiality of the judge who will sentence him in the event of conviction after trial is not compromised.” (Internal quotation marks omitted.) Id., 507-508, quoting Safford v. Warden, 223 Conn. 180, 194 n. 16, 612 A.2d 1161 (1992).

We conclude that the court committed plain error when it presided over the defendant’s trial and sentencing after having participated actively in pretrial plea negotiations. The record discloses that the court negotiated actively with the defendant and state’s attorney to reach an acceptable plea bargain when the court suggested, and the state agreed, that the state’s offer include a cap and a right to argue for a lesser sentence. Although the record does not reflect that any of the participants in the trial, including the court itself, were aware of the previous involvement some two years earlier, actual prejudice is not required. See, e.g., State v. Webb, supra, 238 Conn. 460-61; see also State v. Washington, supra, 39 Conn. App. 182. We conclude that the existence of impartiality might reasonably be questioned and the fairness and integrity of and public confidence in the judicial proceeding affected when a court presides over the trial and sentencing after participating actively in plea negotiations. In such a situation, as is the case here, the appearance of a fair trial has been lost and a new trial is warranted. See, e.g., State v. Washington, supra, 182.

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

In this opinion the other judges concurred.

       The defendant raised two additional claims, which we do not reach in view of our resolution. The defendant claimed that the trial court improperly (1) instructed the jury on operability and barrel length of the firearm and (2) marshaled the evidence.

       The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .”
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”
      Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”


author: Per Curiam.

text:
    IN RE MATHEW D.

    (AC 22006)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Argued January 7
    officially released February 12, 2002

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    CHARLES J. MOZZOCHI v. JAMES HALLAS ET AL.
    (AC 21724)
    Foti, Mihalakos and Flynn, Js.
    Argued January 7
    officially released February 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ALONZO JACKSON
    (AC 21968)
    Foti, Mihalakos and Flynn, Js.
    Argued January 7
    officially released February 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    ANTONIO LINVAL-CASSIUS v. COMMISSIONER OF CORRECTION
    (AC 21739)
    Lavery, C. J., and Bishop and Hennessy, Js.
    Argued January 8
    officially released February 12, 2002
   Per Curiam.

We affirm the judgment on the basis of General Statutes § 18-98d, Rivera v. Commissioner of Correction, 254 Conn. 214, 756 A.2d 1264 (2000), and Payton v. Albert, 209 Conn. 23, 547 A.2d 1 (1988).

The judgment is affirmed.


text:
    JANE DOE ONE ET AL. v. SHANNON OLIVER ET AL.
    (AC 21269)
    Mihalakos, Bishop and Dupont, Js.
    Argued January 14
    officially released February 12, 2002
   Per Curiam.

The judgment is affirmed.


text:
    DOUGLAS BETHEA v. COMMISSIONER OF CORRECTION
    (AC 21891)
    Schaller, Flynn and Hennessy, Js.
    Submitted on briefs January 11
    officially released February 12, 2002
   Per Curiam.

The appeal is dismissed.


text:
    ANDRE EVANS v. COMMISSIONER OF CORRECTION
    (AC 22034)
    Foti, Dranginis and Dupont, Js.
    Submitted on briefs January 11
    officially released February 12, 2002
   Per Curiam.

The habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    MARVIN JONES v. COMMISSIONER OF CORRECTION
    (AC 21883)
    Foti, Dranginis and Dupont, Js.
    Submitted on briefs January 11
    officially released February 12, 2002
   Per Curiam.

The habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    DAVID L. JOYCE v. COMMISSIONER OF CORRECTION
    (AC 21817)
    Foti, Dranginis and Dupont, Js.
    Submitted on briefs January 11
    officially released February 12, 2002
   Per Curiam.

The habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    CHRISTOPHER SHUCKRA v. COMMISSIONER OF CORRECTION
    (AC 21583)
    Lavery, C. J., and Mihalakos and Bishop, Js.
    Submitted on briefs January 11
    officially released February 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    DONOVAN DAVIS v. COMMISSIONER OF CORRECTION
    (AC 21560)
    Lavery, C. J., and Mihalakos and Bishop, Js.
    Submitted on briefs January 11
    officially released February 19, 2002
   Per Curiam.

The appeal is dismissed.


text:
    STEPHEN FREEMAN v. UNITED TECHNOLOGIES CORPORATION, SIKORSKY AIRCRAFT DIVISION, ET AL.
    (AC 21916)
    Lavery, C. J., and Mihalakos and Bishop, Js.
    Submitted on briefs January 11
    officially released February 19, 2002
   Per Curiam.

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


text:
    SALLY ERDMAN JONES v. MICHAEL J. JONES
    (AC 20671)
    Foti, Flynn and Daly, Js.
    Argued January 16
    officially released February 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    MARY ANN MCKEON v. EUGENE ZUROLO
    (AC 21198)
    Schaller, Bishop and Soughton, Js.
    Argued January 16
    officially released February 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. PABLO ANDRADES
    (AC 21855)
    Foti, Schaller and Flynn, Js.
    Argued January 17
    officially released February 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. TARAGUS BURNEY
    (AC 21121)
    Schaller, Mihalakos and Dupont, Js.
    Argued January 22
    officially released February 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RAUL LARRACUENTE
    (AC 20015)
    Schaller, Mihalakos and Dupont, Js.
    Argued January 22
    officially released February 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    ALEXANDER S. LANGER v. NATHAN’S PAWN SHOP ET AL.
    (AC 21942)
    Schaller, Flynn and Hennessy, Js.
    Submitted on briefs January 11
    officially released February 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    IN RE ERICA R.

    (AC 21961)
    Lavery, C. J., and Schaller and Stoughton, Js.
    Argued February 14
    officially released March 19, 2002

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    SUZANNE M. SEARLES v. BOARD OF EDUCATION OF THE TOWN OF WEST HARTFORD
    (AC 22028)
    Schaller, Flynn and Bishop, Js.
    Argued February 13
    officially released March 19, 2002
   Per Curiam.

The decision of the compensation com-

missioner is affirmed.


text:
    COUGHLIN REALTY, LLC v. PETER NOVICELLI
    (AC 21014)
    Spear, Mihalakos and Shea, Js.
    Argued February 14
    officially released March 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    FITZROY JACKSON v. COMMISSIONER OF CORRECTION
    (AC 21581)
    Schaller, Dranginis and Daly, Js.
    Argued February 19
    officially released March 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    JO ANNE BAUER v. THOMAS J. VELTRE
    (AC 21502)
    Foti, Mihalakos and Peters, Js.
    Argued February 19
    officially released March 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. STANLEY ARRINGTON
    (AC 21790)
    Lavery, C. J., and Mihalakos and Daly, Js.
    Submitted on briefs February 21
    officially released March 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. GENA MARIE HARTZELL
    (AC 21506)
    Dranginis, Bishop and Dupont, Js.
    Argued February 21
    officially released March 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    JENNIFER A. RENARD ET AL. v. JOHN M. DILLMAN ET AL.
    (AC 20779)
    Dranginis, Bishop and Dupont, Js.
    Argued February 21
    officially released March 19, 2002
   Per Curiam.

The judgment is affirmed.


text:
    MARION ANTHONY RICE v. COMMISSIONER OF CORRECTION
    (AC 21247)
    Lavery, C. J., and Foti and Bishop, Js.
    Submitted on briefs February 28
    officially released April 2, 2002
   Per Curiam.

The trial court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    MICHAEL STARR v. COMMISSIONER OF CORRECTION
    (AC 21655)
    Lavery, C. J., and Foti and Bishop, Js.
    Submitted on briefs February 28
    officially released April 2, 2002
   Per Curiam.

The trial court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    JERMAINE FILYAW v. COMMISSIONER OF CORRECTION
    (AC 22001)
    Lavery, C. J., and Foti and Bishop, Js.
    Submitted on briefs February 28
    officially released April 2, 2002
   Per Curiam.

The trial court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. DONNIE BURTON
    (AC 21561)
    Lavery, C. J., and Bishop and Hennessy, Js.
    Argued February 25
    officially released April 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. THEODORE BAPTISTE
    (AC 21798)
    Lavery, C. J., and Bishop and Hennessy, Js.
    Argued February 25
    officially released April 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    PETER A. BECKER v. BRIDGEPORT HARBOR MASTER
    (AC 22021)
    Mihalakos, Dranginis and Flynn, Js.
    Submitted on briefs February 28
    officially released April 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    RANDALL IVERS v. COMMISSIONER OF CORRECTION
    (AC 21672)
    Mihalakos, Dranginis and Flynn, Js.
    Submitted on briefs February 28
    officially released April 2, 2002
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. VIRGINIA JOAN CARNEMOLLA
    (AC 21874)
    Foti, Spear and Hennessy, Js.
    Argued February 27
    officially released April 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    LESLIE S. DIPROSPERO v. MICHAEL J. DIPROSPERO
    (AC 21659)
    SchaHer, Dranginis and Hennessy, Js.
    Submitted on briefs February 28
    officially released April 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    RICHARD A. HEIM v. DIME SAVINGS BANK OF NEW YORK ET AL.
    (AC 21863)
    Foti, Spear and Daly, Js.
    Argued February 27
    officially released April 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DEAN DANIELS
    (AC 21573)
    Mihalakos, Dranginis and Flynn, Js.
    Argued February 27
    officially released April 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. BARBARA LANGER
    (AC 21564)
    Mihalakos, Dranginis and Flynn, Js.
    Argued February 27
    officially released April 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    FOX RUN MALL ASSOCIATES, L.P. v. GEORGE V. LAWLER, SR., ET AL.
    (AC 21638)
    Dranginis, Bishop and Daly, Js.
    Argued February 22
    officially released April 2, 2002
   Per Curiam.

The judgment is affirmed.


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. ROY TROTTER
    (AC 20886)
    Laveiy, C. J., and Schaller and Flynn, Js.

      Argued October 22, 2001
    officially released April 9, 2002

      Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom was Robert Brennan, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Roy Trotter, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes (Rev. to 1997) § 29-35 (a).

On appeal, the defendant claims that contrary to the rule of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), the trial court improperly admitted into evidence (1) a statement that the victim had given on December 21, 1998, from his hospital bed, and (2) a statement that the victim had given on February 2,1999, indicating that he had selected a photograph of the defendant from an array and identified him as his assailant. Regarding the victim’s December 21, 1998, statement, the defendant claims, in the alternative, that the court improperly denied his motion to redact a section that he had asserted was highly prejudicial and of little probative value. Finally, the defendant claims that the state failed to prove beyond a reasonable doubt that he had been carrying a pistol that had a barrel less than twelve inches long and, therefore, he was improperly convicted of carrying a pistol without a permit. We affirm the judgment of the trial court.

On the basis of the evidence admitted during the defendant’s trial, the jury reasonably could have found the following facts. On December 17, 1998, at approximately 1 p.m., the defendant drove to the home of Natasha Easter, located at 62 Ridge Avenue, Bridgeport, hoping to find her boyfriend, the victim, Juan Figueroa, who owed him $200 for drugs. Upon arriving at Easter’s home, the defendant exited his vehicle, walked to the back door and knocked. After the defendant identified himself, Easter opened the door. The defendant asked for the victim, and Easter responded that he was at his home, which was located at 729 South Avenue, Bridgeport. The defendant did not believe her, and an argument ensued. Thereafter, the victim, who had been on the second floor of Easter’s home, came downstairs. The defendant asked the victim to follow him outside. The victim obliged and followed the defendant into the alleyway behind Easter’s home. After a brief discussion, the defendant drew a .45 caliber semiautomatic pistol and fired it five or six times at the victim, striking him in the chest, groin and buttocks. The defendant then placed the pistol back into his coat pocket, returned to his vehicle and fled the scene. Thereafter, an ambulance transported the victim to Bridgeport Hospital. Emergency surgery was performed on the victim, who later recovered from his wounds.

On March 14, 2000, the jury returned a verdict of guilty as to each of the three counts that were before it, and the court accepted the verdict. On April 27, 2000, the court sentenced the defendant to a total effective term of thirty years imprisonment, and this appeal followed. Additional facts and procedural history will be presented as necessary.

I

We first address the defendant’s claim that the state failed to prove beyond a reasonable doubt that he had been carrying a pistol without a permit in violation of § 29-35 (a) because, if he prevails on that claim, he is entitled to an acquittal on that charge. See State v. Murray, 254 Conn. 472, 478, 757A.2d 578 (2000). Specifically, the defendant claims that the evidence was insufficient to prove that he had been carrying a firearm that had a barrel less than twelve inches long and, therefore, the state failed to prove one of the elements of § 29-35 (a). The defendant concedes that this claim is unpreserved and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “ ‘Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that “any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding.” State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993).’ ” State v. Hicks, 56 Conn. App. 384, 386-87, 743 A.2d 640 (2000), quoting State v. Patterson, 35 Conn. App. 405, 411 n.7, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim. See State v. Hicks, supra, 387.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997).

Section 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. ...” The terms “pistol” and “revolver” are defined as “any firearm having a barrel less than twelve inches in length.” General Statutes § 29-27. Consequently, the defendant can properly be found guilty of violating § 29-35 (a) only if the state proves beyond a reasonable doubt that he was carrying a firearm that had a barrel that was less than twelve inches long. See State v. Perry, 48 Conn. App. 193, 196, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998). We recognize, however, that direct numerical evidence of barrel length is not required to obtain a proper conviction under § 29-35 (a). See State v. Williams, 231 Conn. 235, 251-52, 645 A.2d 999 (1994).

In the present case, the firearm that the defendant allegedly had used to shoot the victim was not offered at trial. Nonetheless, the court admitted into evidence testimony, as well as exhibits, concerning barrel length that had substantial probative value. Detective William Mayer of the Bridgeport police department testified that he had been dispatched to the scene of the shooting. Mayer testified that shortly after his arrival at the scene, he took custody of eight spent .45 caliber shell casings that had been recovered by fellow detectives. Additionally, Mayer testified that a “shell casing” is the “part of a bullet which stores gunpowder and ejects from a semiautomatic weapon when it’s fired.” The court admitted all eight shell casings into evidence.

Louis Cortello, another detective in the Bridgeport police department, testified that on the day following the shooting, he visited Bridgeport Hospital, where the victim was being treated, and recovered a .45 caliber spent bullet. The court admitted that spent bullet (state’s exhibit sixty-one) into evidence.

Marshall Robinson, a forensic ballistics expert, testified that he had examined the eight spent shell casings that had been recovered from the scene. Robinson testified that all eight were “.45 auto cartridge cases” and that he had concluded, on the basis of their breachface marks, that all had been fired from the same firearm. More importantly, Robinson testified that he had examined state’s exhibit sixty-one and concluded, on the basis of its rifling characteristics, that the barrel length of the firearm used to fire it could have been as long as eight inches but could not have been as long as twelve inches. Robinson’s testimony was uncontroverted.

Additionally, the court admitted, for substantive purposes, a statement under State v. Whelan, supra, 200 Conn. 753, that had been given by Easter on the day of the shooting. In that statement, Easter stated that she had observed the defendant leaving the scene and that she “saw [the defendant] holding the handle of a gun” as “[h]e was putting it back into his coat pocket after the shooting.” Finally, the victim, himself, testified that the gun that had been fired at him was about eight inches long.

When viewed in the light most favorable to sustaining the verdict, the foregoing evidence establishes that the defendant wielded a .45 caliber firearm that had a barrel length of approximately eight inches. From those factual findings, it is reasonable to infer that the defendant was carrying a firearm that had a barrel less than twelve inches long. Accordingly, the jury reasonably could have concluded that the cumulative force of the evidence established beyond a reasonable doubt that the firearm that the defendant had wielded had a barrel less than twelve inches long. Thus, the defendant cannot prevail on his claim.

II

Next, the defendant claims that the court violated the rule of State v. Whelan, supra, 200 Conn. 753, in admitting into evidence a statement that the victim had given to police on December 21,1998, from his hospital bed. The defendant challenges the court’s ruling on two grounds: (1) the victim lacked personal knowledge of the facts set forth in his statement and, therefore, it failed to satisfy one of the requirements for admission under Whelan; and (2) the statement was otherwise too unreliable to be admitted under Whelan because (a) the victim had used heroin on the day he was shot, thus impairing his perception of the shooting, and (b) when the victim gave the statement, his cognition had been severely impaired by medications and the pain from his wounds. Alternatively, the defendant claims that the court improperly denied his motion to redact a section of that statement, which he had asserted was highly prejudicial and of little probative value. Additionally, should we conclude that the defendant failed to preserve any of those claims, he requests that we reverse the judgment under the plain error doctrine. We reject the defendant’s claims.

The following additional facts and procedural history are relevant to our resolution of the defendant’s claims. During the trial, the court held a Whelan hearing outside the presence of the jury to determine whether it should permit the state to introduce into evidence the victim’s December 21, 1998 statement as a prior inconsistent statement. At that hearing, the court heard the state’s offer of proof, which indicated the following. Four days after the shooting, on December 21, 1998, Dwayne McBride and Ricardo Vargas, detectives in the Bridgeport police department, interviewed the victim in Bridgeport Hospital. McBride asked the victim several questions concerning the shooting. Throughout the interview, the victim was crying and very scared, but coherent. He implicated the defendant in the shooting, explaining that he had owed the defendant $200 for drugs and that the defendant had shot him six times.

The interview was recorded, and from that recording, McBride had his secretary produce a transcript. McBride then listened to the tape and read the transcript to ensure its accuracy. On February 2, 1999, McBride met with the victim, who then reviewed and signed all eight transcript pages.

At trial, the victim testified that he could not recall the events of December 17, 1998. The state sought to introduce the victim’s allegedly inconsistent December 21, 1998 statement for substantive purposes pursuant to Whelan. At the conclusion of the state’s offer of proof, the defendant objected, arguing that the statement was inadmissible under Whelan because (1) the victim, i.e., the declarant, had been medicated and hospitalized at the time of the interview, (2) the transcript of the interview had been produced by a person who was not present during the interview, (3) the victim had not sworn that the answers he had given during the interview were truthful and (4) the victim had not signed the transcript until six weeks after the interview. The court, after considering those objections, admitted into evidence the recording and the transcript. In so doing, it stated that the defendant’s objections actually go to the weight, not the admissibility, of the December 21, 1998 statement.

A

The following legal principles govern our consideration of the defendant’s claim that the statement was improperly admitted under Whelan. Section 8-5 (1) of the Connecticut Code of Evidence incorporates the rule of State v. Whelan, supra, 200 Conn. 753, and implicitly incorporates the developments and clarifications of the Whelan rule that have occurred since Whelan was decided. See Conn. Code Evid. § 8-5 commentary. Section 8-5 provides in relevant part: “The following are not excluded by the hearsay rule, provided the declarant is available for cross-examination at trial: (1) Prior inconsistent statement. A prior inconsistent statement of a witness, provided (A) the statement is in writing, (B) the statement is signed by the witness, and (C) the witness has personal knowledge of the contents of the statement. . . .” Id., § 8-5. “[0]nce the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible.” State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 (2000). “The admissibility ... of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court. ... On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused.” (Citation omitted.) State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).

1

We turn first to the defendant’s claim that the victim lacked personal knowledge of the facts set forth in his statement. The record discloses that the defendant, during trial, did not object on that basis to the admission of the statement. “Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel.” State v. Christiano, 228 Conn. 456, 464, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994). 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.” State v. Adams, 225 Conn. 270, 287 n.12, 623 A.2d 42 (1993). Because the defendant, in his objection to the victim’s statement, did not argue that the victim lacked personal knowledge, that objection cannot serve as a conduit for our review of the defendant’s claim. See State v. Christiano, supra, 464; State v. Adams, supra, 287 n.12; see also State v. Newsome, supra, 238 Conn. 597 (denying review of defendant’s claim, raised for first time on appeal, that Whelan statement had not satisfied personal knowledge requirement).

We now consider the defendant’s alternative claim that the admission of the victim’s statement under Whelan constituted plain error because the victim did not have personal knowledge of the facts set forth therein.

“[T]he plain error doctrine, which is now codified at Practice Book § 60-5, provides in relevant part: ‘The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .’ This is not, however, a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” State v. Cobb, 251 Conn. 285, 343 n.34, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).

“Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Citations omitted; internal quotation marks omitted.) State v. Toccaline, 258 Conn. 542, 552-53, 783 A.2d 450 (2001).

We conclude that the admission of the victim’s statement under Whelan did not constitute an error so obvious that it affected the fairness and integrity of, and public confidence in, the judicial proceeding. Moreover, the defendant has failed to demonstrate that manifest injustice will result if we decline to reverse the judgment. Accordingly, we conclude that the admission of that statement was not plain error.

2

The defendant also contends that the statement was otherwise too unreliable to be admitted because (1) the victim had used heroin on the day he was shot, thus impairing his perception of the shooting, and (2) when the victim gave the statement, his cognition had been severely impaired by medications and the pain from his wounds.

We recognize that “a prior inconsistent statement that fulfills the Whelan requirements may have been made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of the witness.” State v. Mukhtaar, supra, 253 Conn. 306. “In such circumstances, the trial court must act as a gatekeeper to ensure that the statement does not go to the juiy for substantive purposes. We emphasize, however, that the linchpin of admissibility is reliability: the statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process. In the absence of such a showing by the party seeking to exclude a statement that meets the Whelan criteria, the statement is admissible as substantive evidence; like all other evidence, its credibility is grist for the cross-examination mill. Thus, because the requirements that [our Supreme Court] established in Whelan provide a significant assurance of reliability, it will be the highly unusual case in which a statement that meets the Whelan requirements nevertheless must be kept from the jury.” Id., 306-307. “The ultimate question for the trial court, therefore, [was] whether, notwithstanding the statement’s satisfaction of the Whelan requirements, the circumstances under which the statement was made nonetheless render it so unreliable that a jury should not be permitted to consider it for substantive purposes.” Id., 307 n.27.

In the present case, the defendant has failed to convince us that the victim’s statement was so untrustworthy that its admission into evidence subverted the fairness of the fact-finding process. Our review of the record discloses that the statement was not given under circumstances so unduly coercive or extreme that it, in effect, was not the victim’s. The factors advanced on appeal by the defendant go to the weight of the statement, not its admissibility, and were relevant and proper matters for cross-examination. Thus, the court did not abuse its discretion in concluding that the statement was not too unreliable to be admitted into evidence. Accordingly, we conclude that the courtproperly admitted the statement into evidence.

B

The defendant claims, in the alternative, that the court improperly denied his motion to redact a section of the victim’s statement. Specifically, he asserts that either (1) the challenged section was irrelevant or (2) the probative value of that section was outweighed by the danger of unfair prejudice. We agree with the latter assertion but conclude that the court’s impropriety was harmless.

The following additional facts are relevant to our resolution of the defendant’s claim. On December 21, 1998, shortly before concluding his interview of the victim, McBride asked him the following question and received the following answer.

[Detective McBride:] Juan [the victim], is there anything else that you want to add to this statement?

[Victim:] Yes, I hope that when you do catch [the defendant], you put him in jail for a long time, ’cuz they ain’t, they ain’t worth nothing. They just a bunch of lowlifes. They just be beating up defenseless people, you know, drug addicts and everything. That’s not right. You know? Hope they get their time in court.”

During the trial, the defendant requested that the court redact that question and answer from the victim’s statement. He argued that that section was irrelevant and highly prejudicial. The court denied the request, concluding that that section evidenced the victim’s fear of the defendant and, hence, served to explain why the victim’s in-court testimony was inconsistent with his prior statements to the police.

The legal principles that govern our consideration of the defendant’s claim are as follows. “All relevant evidence is admissible, except as otherwise provided by the constitution of the United States, the constitution of this state, the Code or the General Statutes. Evidence that is not relevant is inadmissible.” Conn. Code Evid. § 4-2. “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Id., § 4-3. “The task of striking this balance is relegated to the court’s discretion.” Id., § 4-3 commentary; see also State v. Booth, 250 Conn. 611, 645, 737 A.2d 404 (1999) (“ ‘[i]t is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence’ ”), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). “For exclusion . . . the prejudice must be unfair in the sense that it unduly arouse[s] the jury’s emotions of prejudice, hostility or sympathy . . . or tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence.” (Citation omitted; internal quotation marks omitted.) Conn. Code Evid. § 4-3 commentary.

If we assume arguendo that the section at issue was relevant, we must consider whether its probative value was outweighed by the danger of unfair prejudice to the defendant. In that section of the statement, the victim indicated that the defendant and his associates routinely had beaten defenseless people, including drug addicts. He also indicated that the defendant and his associates were worthless and “lowlifes,” and that the defendant deserved a lengthy jail sentence. Considering that that section contained only the victim’s negative opinion of the defendant and the victim’s assertion that the defendant generally participated in beatings, its probative force was insignificant given the specificity of the charges that the state had brought against the defendant. In addition to the danger of arousing in the jury feelings of hostility toward the defendant, that section tended to prove that the defendant had committed crimes beyond those at issue at his trial. On balance, its probative value certainly was minimal and clearly was outweighed by the danger of unfair prejudice to the defendant. We conclude that the court abused its discretion in denying the defendant’s motion to redact that section.

Nonetheless, “[ujnder the current and long-standing state of the law in Connecticut, the burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant. The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Booth, supra, 250 Conn. 638. In the present case, the court admitted into evidence Easter’s Whelan statement and Robinson’s expert testimony interpreting the evidence that the police had recovered from the scene, as well as both of the victim’s Whelan statements. In her statement, Easter stated that the defendant had visited her home, found the victim there and walked with the victim out of her home to the alleyway behind it. Moments later, Easter heard gunshots and observed the defendant placing a handgun into his coat pocket as he was leaving the scene. Additionally, the victim, in both of his Whelan statements, clearly implicated the defendant as the shooter. Easter’s testimony and the victim’s testimony, in conjunction with Robinson’s compelling expert testimony, leads us to conclude that the defendant has failed to satisfy his burden of proving that it was more probable than not that the court’s impropriety affected the result. Therefore, we reject the defendant’s claim.

Ill

Finally, the defendant claims that the court violated the rule of State v. Whelan, supra, 200 Conn. 753, in admitting into evidence a statement that the victim had given on February 2,1999, indicating that he had identified the defendant as the shooter and selected a photograph of him from an array. Specifically, the defendant asserts that the court abused its discretion in finding that the victim’s testimony was inconsistent with his February 2, 1999 statement and, therefore, improperly admitted that statement under Whelan. We reject the defendant’s claim.

The following additional facts and procedural history are relevant. During the trial, the state called the victim as its first witness. The following colloquy occurred during the state’s direct examination of him:

“[Prosecutor:] I’d like to go back to December 17th between 12:30 and 1:00 in 1998. Do you recall that day?
“[Victim:] No, I don’t.
“[Prosecutor:] You don’t recall it?
“[Victim:] No.
“[Prosecutor:] Do you recall getting shot that day?
“[Victim:] I don’t remember that day at all.
“[Prosecutor:] You don’t remember anything that day?
“[Victim:] No, I don’t.
“[Prosecutor:] On February 2, do you recall giving another statement to Detective McBride? I’m gonna show you this statement here identifying the person who shot you.
“[Victim:] Yes.
“[Prosecutor:] Okay. You do recall identifying the person that shot you on [February] 2nd?
“[Victim:] From what I was told, yes.
“[Prosecutor:] No, no, I’m asking you.
“[Victim:] Yes.
“[Prosecutor:] And did you, in fact, identify to the police who it was that shot you?
“[Victim:] Yes.
“[Prosecutor:] And who was that?
“[Victim:] Nez [the defendant’s street name].”

During the state’s redirect examination of the victim, the following colloquy occurred:

“[Prosecutor:] And on the second of February, then, when you identified the defendant as the shooter under oath again, was that a he also?
“[Victim:] Yes, it was.”

Thereafter, the court held a Whelan hearing outside the presence of the jury to determine whether it should permit the state to introduce into evidence the victim’s February 2, 1999 statement. At that hearing, the court heard the state’s offer of proof, which was as follows. On February 2, 1999, the victim visited McBride at the Bridgeport police department. During the visit, the victim implicated the defendant, selected a photograph of him from an array of eight photographs, and McBride interviewed him regarding his selection. That interview was transcribed, and the victim reviewed the transcript and signed all three of its pages.

At the conclusion of the offer of proof, the state requested that the court admit the transcript (the statement). The defendant objected, arguing that the statement was consistent with the victim’s testimony and, thus, was not admissible pursuant to the Whelan rule. The court admitted the statement into evidence. In so doing, it found that there were “substantive inconsistencies” between the victim’s statement and his testimony.

As indicated previously in this opinion, § 8-5 (1) of the Connecticut Code of Evidence incorporates the rule of State v. Whelan, supra, 200 Conn. 753, and implicitly incorporates the developments and clarifications of the Whelan rule that have occurred since Whelan was decided. Conn. Code Evid. § 8-5 commentary.

“Inconsistencies may be shown not only by contradictory statements but also by omissions. In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined. . . . Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement . . . and the same principle governs the case of the forgetful witness. ... A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position and they may also be found in denial of recollection. . . . The trial court has considerable discretion to determine whether evasive answers are inconsistent with prior statements.” (Citations omitted; internal quotation marks omitted.) State v. Whelan, supra, 200 Conn. 748-49 n.4.

In the present case, the defendant, on direct examination by the state, testified that he did not remember anything that had happened on December 17, 1998, the day he was shot, hi response to further questioning on direct examination by the state, he testified, however, that he had met with McBride on February 2, 1999, and told him that the defendant had been the shooter. Nevertheless, the victim, while testifying on redirect examination by the state, recanted the statement he had given in the presence of McBride during their meeting on February 2, 1999. That statement disclosed that the victim had been able to recall some of the events concerning the shooting, including the identity of the shooter. See footnote 9. During the trial, the victim never testified that he actually remembered that the defendant had been the shooter. Because inconsistencies may be found in changes in position and in the denial of recollection; id.; we conclude that the court did not abuse its discretion in finding that the victim’s testimony was inconsistent with his February 9, 1999 statement. Accordingly, we reject the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to the parties’ stipulation, the court found that the defendant had violated General Statutes § 53-202k.

       In Golding, our Supreme Court held that: “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       General Statutes § 29-27 provides: “The term ‘pistol’ and the term ‘revolver’, as used in sections 29-28 to 29-38, inclusive, mean any firearm having a barrel less than twelve inches in length.”

       Robinson testified that “breachface marks” are “marks that are put on the back of the cartridge case at the time that it’s fired” and that such marks “are individual only to the gun in which the cartridge cases were fired.”

       Robinson testified as follows: “As the bullet passes down the barrel of the firearm, it receives a negative impression of the rifling that’s inside the gun barrel. . . . Rifling is in a gun barrel to impart a spin on the bullet to keep it stable in flight.”

       “The purpose of requiring trial counsel to object properly is not merely formal: it serves to alert the trial court to purported error while there is time to correct it without ordering a retrial.” State v. Christiano, supra, 228 Conn. 464.

       We assume arguendo that the defendant properly preserved that aspect of his claim.

       Additionally, the defendant, in his brief, cursorily claims that the victim’s February 2, 1999 statement was inadmissible under Whelan because the victim’s “identification of him was inherently unreliable for the same reasons that the December 21, 1998 statement was as discussed above.” In part II A 2, we conclude that the court did not abuse its discretion in concluding that the December 21,1998 statement was not too unreliable to be admitted into evidence. For that reason, the defendant’s identical claim concerning the February 2, 1999 statement no longer is viable.

       The transcript of McBride’s February 2, 1999 interview in relevant part was as follows:
      “[Q:] What is your education level?
      “[A:] Ninth grade. . . .
      “[Q:] What do you have to tell me?
      “[A:] I’m here to look at a picture.
      “[Q:] Do you remember the date [on] which you were shot?
      “[A:] Yes, the 17th of December.
      “[Q:] Do you remember who you were with right before being shot?
      “[A:] Yes, I left out the door of my house with the one who shot me, Nez [the defendant’s street name].
      “[Q:] Do you know Nez’s real name?
      “[A:] No, I don’t.
      “[Q:] Can you describe Nez?
      “[A:] A little shorter than me, skinny, bulging eyes and big teeth, black guy.
      “[Q:] I’m going to show you a photo array consisting of eight males; tell me if you recognize any of them?
      “[A:] Yes, number seven.
      “[Q:] Who’s number seven?
      “[A:] Nez, the guy that shot me.
      “[Q:] Are you certain this is the person you know as Nez?
      “[A:] Yes.
      “[Q:] Could you circle, date and initial the picture you have selected?
      “[A:] Yes. Photo is that of [the defendant] 07/15/81, provided by the Waterbury P.D. and issued P.D.# 199800745)
      “[Q:] Do you have anything else to add to this statement?
      “[A:] No.
      “[Q:] After reading this statement and finding it to be as you have stated, will you sign it?
      “[A:] Yes.”