text:
    State of Connecticut v. Brett Kwaak
    (7150)
    Daly, Norcott and Foti, Js.
    Argued October 10, 1989
    decision released April 3, 1990

      John R. Gulash, Jr., with whom, on the brief, was Peter J. McGuinness, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerald D. Eisenman, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b (a), and operating a motor vehicle while under the influence of an intoxicating liquor in violation of General Statutes § 14-227a (a) (2). The defendant’s claims of error relate only to the charge of manslaughter in the second degree with a motor vehicle. The defendant claims that the trial court erred (1) in denying his motion for judgment of acquittal which alleged that there was insufficient evidence presented as to the element of causation, (2) in admitting an autopsy report into evidence, (3) in restricting his cross-examination of one of the state’s accident reconstruction witnesses, (4) in admitting the testimony of the second of the state’s accident reconstruction witnesses as it relates to the tendencies of intoxicated drivers, and (5) in improperly instructing the jury as to reasonable doubt. We find no reversible error.

The facts are as follows. On November 14, 1986, at approximately 6 p.m., the defendant met a female friend at a restaurant in Westport. He admitted to having consumed three beers there. He left at approximately 9:30 p.m. and headed for his home town of Huntington. He drove his Dodge pickup truck on Route 95 north and then exited onto Route 25 north. At approximately 10:47 p.m., the defendant was operating his pickup truck in the far right lane of that three lane highway in Bridgeport, when he encountered a Subaru stationwagon that was being driven by the victim at a considerably slower speed than the defendant was traveling. The defendant attempted to pass the Subaru but did not reduce his speed quickly enough and struck it in the rear, causing the gas tank to rupture and the car to catch on fire. The victim was in the car when it burst into flames and died as a result of the fire.

The police and firemen arrived within a few minutes after the accident. Sergeant John Ramik of the Connecticut state police was in charge of the scene and was assisted by Troopers Adrienne LaMorte and John Burturla and support personnel. The investigating officers at the scene detected a strong odor of alcohol on the defendant’s breath, noticed that his speech was slurred, his eyes were bloodshot, and that he was staggering. The defendant failed a field sobriety test. As a result, he was arrested for driving under the influence of alcohol or drugs in violation of General Statutes § 14-227a and transported to police headquarters in Westport. Two hours after the accident, the defendant voluntarily submitted to a breathalizer test. The first test was administered at 1:45 a.m. and measured his blood alcohol level at .150, and the second test, administered at 2:19 a.m., measured his blood alcohol level at .144. On the basis of these figures, Sanders Hawkins, chief toxicologist for the department of health services, testified at trial that the blood alcohol level at the time of the accident was approximately .186. At police headquarters, the defendant was also charged with manslaughter with a motor vehicle in violation of General Statutes § 53a-56b (a).

At trial, the state presented evidence that, on the night of the accident, the weather was dry and clear. The evidence also showed that the accident occurred on a straight, well illuminated section of Route 25 and that visibility was 1000 to 1500 feet at the time of the accident. The state offered the expert testimony of LaMorte and Burturla. Expert testimony showed that the defendant’s vehicle was traveling thirty-one miles per hour faster than the victim’s vehicle at the time of impact, but the expert was not able to determine how fast the defendant’s vehicle was traveling. In addition, there was expert testimony that the major damage was to the left rear of the Subaru and to the right front fender of the pickup truck and that there were no brake or skid marks at the scene of the accident. Furthermore, the state presented expert testimony that the defendant’s inability to judge the distance and speed of the Subaru was consistent with the conduct of intoxicated drivers and that this conduct caused the accident and subsequent death of the driver. The state also presented the testimony of the pathologist who performed the autopsy on the victim. The pathologist’s autopsy report was also permitted as an exhibit over the defendant’s objection.

At trial, the defendant never conceded that he was intoxicated. He presented a witness who happened to be on the same road a short time before the accident occurred. This witness testified that shortly before the accident, he saw a vehicle that closely resembled the victim’s vehicle on the right shoulder of Route 25 with the windows fogged and the lights dimmed. The defendant also presented expert evidence contradicting the state’s evidence on the issue of causation, that the accident most likely occurred as a result of the Subaru’s pulling out from the right shoulder and crossing in front of the path of the defendant’s pickup truck.

The jury convicted the defendant on both charges, and this appeal followed.

I

The defendant’s first claim is that the court erred in denying his motion for judgment of acquittal, which was based on the state’s failure to prove beyond a reasonable doubt that the defendant’s intoxication caused the death of the victim. We do not agree.

“ Tn determining whether the evidence is sufficient to sustain a verdict, we have said that “ ‘the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . . [T]he evidence presented at trial must be given a construction most favorable to sustaining the jury’s verdict.’ ”... “Each essential element of the crime charged must be established by proof beyond a reasonable doubt”; State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 558 (1981); and “ ‘although it is within the province of the jury to draw reasonable logical inferences from the facts proven, they may not resort to speculation and conjecture.’ ” (Citations omitted.) State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984).

In the present case, the defendant challenges only the element of causation. General Statutes § 53a-56b (a) provides that, “A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of an intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug. ” (Emphasis added.) No. 85-147 of the 1985 Public Acts modified the causation language of General Statutes (Rev. to 1975) §§ 53a-56b (a) and 53a-60d, the latter section being assault in the second degree with a motor vehicle. Previously, § 53a-56b (a) provided that “when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. ” (Emphasis added.) Nevertheless, a legislative history of this amendment reveals that the modification of “in consequence” to “as a consequence of” was not made to change any previously defined burden of proving causation. The purpose, rather, was to remove the language in §§ 53a-56b and 53a-60d that referred to a person’s being “intoxicated” and instead to insert the requirement that a person has to be “under the influence” in order to “get tougher on drunk drivers” and to avoid the result reached in an uncited court decision where an individual escaped liability-under the law because the court found that the individual was not “intoxicated” even though he may have been under the influence. See footnote 4, supra.

This is the first case to determine the causation requirement of § 53a-56b (a). The predecessor statutes of §§ 53a-56b and 53a-60d were General Statutes (Rev. to 1985) §§ 53a-57 and 53-17. These sections contained the same causation language, “in consequence,” as the original version of § 53a-56b. In State v. Alterio, 154 Conn. 23, 29-30, 220 A.2d 451 (1966), our Supreme Court interpreted the causation requirements of § 53-17, which provided that, “any person operating a motor vehicle upon the highways of this state who, inconsequence . . . of any gross or wilful misconduct or of gross negligence, causes any loss of life” (emphasis added), to mean that “[i]t was the state’s burden to prove that a proximate cause of the death was the unlawful acts of the [defendant] . . . .” While the unlawful act in § 53-17 was gross or wilful misconduct or gross negligence, the unlawful act in the present statute is driving under the influence of an intoxicating liquor or drug (intoxication). This court adopts these causation requirements set forth in Alterio and applies them to General Statutes § 53a-56b.

The court in Alterio then concluded that “ ‘[e]very person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes co-operated to produce that result.’ State v. Leopold, [110 Conn. 55, 61, 147 A. 118 (1930)].” State v. Alterio, supra, 30. Thus, contrary to the negligence cases relied upon by the defendant, the issue of contributory negligence does not exist in criminal cases that require the state to prove that the defendant proximately caused the death of another.-

In State v. Spates, 176 Conn. 227, 233-34, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979), our Supreme Court defined the criminal law concept of proximate cause as it applies to a manslaughter statute (General Statutes § 53a-55 [a] [3]): “ ‘Proximate cause’ in the criminal law does not necessarily mean the last act of cause, or the act in point of time nearest to death. The concept of proximate cause incorporates the notion that an accused may be charged with a criminal offense even though his acts were not the immediate cause of death. An act or omission to act is the proximate cause of death when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient, intervening cause, to the resulting death. It is the cause without which the death would not have occurred and the predominating cause, the substantial factor, from which death follows as a natural, direct and immediate consequence. See State v. Tomassi, 137 Conn. 113, 75 A.2d 67 [1950]; State v. Leopold, supra; 40 C.J.S., Homicide, § 11 (b), p. 854; see, generally, Cardozo, The Paradoxes of Legal Science, pp. 81 et seq.; Beale, ‘The Proximate Consequences of an Act,’ 33 Harv. L. Rev. 633.” (Emphasis added.) Applying the principle of State v. Alterio, supra, and the definition in State v. Spates, supra, to the present case, the causation element requires that the state prove beyond a reasonable doubt, first that the death of a person would not have occurred “but for” the defendant’s intoxication, and second, that the defendant’s intoxication substantially and materially contributed to the death of a person in a natural and continuous sequence, unbroken by an efficient, intervening cause. In order to determine that the state has not met its burden of proof on this element, the jury must find either that the defendant’s intoxication was not the actual “but for” cause of the victim’s death or that there was an “independent and efficient cause”; State v. Alterio, supra; or an, intervening and efficient cause. State v. Spates, supra.

Bearing this in mind, we now turn to the evidence presented in this case to determine whether the jury could have found that the defendant’s intoxication while operating the vehicle met the above described definition of proximate cause.

The evidence of causation presented in the light most favorable to sustaining the verdict is the following. Burturla testified that the defendant’s pickup truck collided with the victim’s automobile in the center of the right lane, rotating the vehicles, causing the Subaru to make contact with a guardrail and then to explode with the resulting fire. There was no evidence of evasive action by the defendant and LaMorte testified that at impact the defendant’s vehicle was traveling thirty-one miles per hour faster than the victim’s vehicle. Expert testimony also showed that intoxicated drivers tend to drive too closely and not to perceive the speed of a vehicle, that this conduct was consistent with the defendant’s operation of the vehicle and that this conduct was how the accident occurred. In addition, the state established that a person died and that the cause of death was asphyxiation that resulted from the car fire. The jury, acting within its province, evidently rejected the testimony of the defendant’s accident reconstruction witness, who testified that the accident resulted from the victim’s car’s having just entered from the shoulder of the highway.

The jury could have reasonably concluded that the defendant’s intoxication was both the actual cause and a proximate cause of the victim’s death.

II

The defendant’s second claim is that the court erred in admitting into evidence the autopsy report of David Stiff, a pathologist at St. Vincent’s Medical Center, who performed an autopsy on the victim on November 15, 1986.

The defendant objected to the admission of the report at trial, claiming that it was a prior consistent statement of an unimpeached witness, was irrelevant, and was unduly prejudicial. On appeal, the state argues that the report was relevant, was not unduly prejudicial, and that it was properly admitted as a business record. General Statutes §§ 52-180, 19a-411. Alternatively, the state argues that if the report was not properly admitted, the court committed harmless error in this evidentiary ruling. We will first examine the issue of relevancy and then turn to its admissibility as a business record.

“At the outset, we note that trial courts have broad discretion in determining the relevancy of evidence. . . . Rulings on such matters will be disturbed on appeal only upon a showing of a clear abuse of discretion. . . . We have consistently held that ‘evidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.’ ” (Citations omitted.) State v. Fritz, 204 Conn. 156, 167-68, 527 A.2d 1157 (1987).

The report showed that the victim was a human being who was identified through the use of dental records. The report also showed that the victim died as a result of the fire that occurred right after the collision. Because this report corroborated the testimony of Stiff relating to both the identity of the victim and the cause of death, the trial court did not abuse its discretion in determining that this evidence was relevant.

The defendant also argues that even if this report is relevant, it should have been excluded because its probative value did not outweigh its prejudicial effect. We do not agree. “Mindful of the inherent difficulties of balancing probative value against prejudicial effect, we have repeatedly entrusted resolution of this determination [on the admissibility of evidence] to the sound discretion of the trial court judge.” State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). “Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion. State v. Falcon, 196 Conn. 557, 566, 494 A.2d 1190 (1985).” State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986). The record reveals that the report was a record of the pathologist’s findings. The record also reveals that the court stated that it had previously kept out two photographs because they could have roused prejudice, but that, upon the court’s review of the report, the report would not have such an effect. We cannot say that the court abused its discretion in determining that the probative value outweighed any prejudicial effect.

The defendant, relying on State v. Harris, 10 Conn. App. 217, 236-38, 522 A.2d 323 (1987), finally argues that the report should have been excluded because it was a prior consistent statement of a witness who was not impeached. The state counters that this report was properly admitted under the business records exception to the hearsay rule; General Statutes §§ 52-180, 19a-411; and that the defendant’s reliance on State v. Harris, supra, is misplaced.

General Statutes § 19a-411 requires the making of an autopsy report under certain circumstances, but does not provide that this report be admitted into evidence without any preliminary testimony. Cf. General Statutes § 4-104 (permits hospital records, if not otherwise inadmissible, to be admitted into evidence without any preliminary testimony, “if there is attached thereto the certification in affidavit form of the person in charge of the record room of the hospital . . . indicating that such record or copy is the original record or a copy thereof, made in the regular course of the business of the hospital, and that it was the regular course of such business to make such record at the time of the transactions, occurrences or events recorded therein or within a reasonable time thereafter”). Because no such exception applies in this case, the state still had to comply with the requirements of General Statutes § 52-180 in order to properly admit this report as a business record.

“For a writing to be admissible under the statute [§ 52-180], it is required to meet three qualifications: (1) It must be made in the regular course of business. (2) It must be the regular course of business to make it. (3) It must be made at or near the time of the act, transaction or event. Szela v. Johnson Motor Lines, Inc., 145 Conn. 714, 723 [146 A.2d 910 (1958)]; Holden & Daly, Conn. Evidence § 89.” State v. Greenman, 6 Conn. Cir. Ct. 160, 164, 268 A.2d 808 (1969). In other words, the trial judge must find “that [the writing] was made in the regular course of any business and that it was the regular course of such business to make such a writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. It has been held that compliance with these qualifications is a prerequisite to admissibility. Orzechowski v. Higgins, 146 Conn. 463, 465 [, 152 A.2d 510 (1959)].” State v. Winslow, 2 Conn. Cir. Ct. 264, 268, 197 A.2d 778 (1963).

In this case, the state failed to lay the proper foundation and the court failed to find that the report was made in the regular course of practice of the pathologist and that it was the regular procedure for reports to be made at the time of an official autopsy. Cf. State v. Damon, 214 Conn. 146, 156-57, 570 A.2d 700 (1990); Knox v. Metropolitan Life Ins. Co., 19 Conn. Sup. 274, 278, 111 A.2d 567 (1954).

Our inquiry does not end with-this conclusion that the admission of the autopsy report was erroneous. “It is a ‘fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.’ Casalo v. Claro, 147 Conn. 625, 630, [165 A.2d 153 (1960)] and cases cited.” State v. Greenman, supra, 165. We now consider whether the admission of the report was so prejudicial to the rights of the defendant as to deprive him of a fair trial. See State v. Magnano, 204 Conn. 259, 285, 528 A.2d 760 (1987). “[T]he question is ‘whether the claimed erroneous action of the court would have been likely to affect the result.’ State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1985).” Id. We conclude that it is not likely that the erroneous admission of the report affected the result in this case.

As previously indicated, the report merely corroborated properly admissible evidence concerning the identity of the victim and the cause of death. State v. Greenman, supra, 164; see also State v. Magnano, supra, 285-86. Further, because the jury was specifically instructed that they “should not be swayed or influenced by any sympathy or prejudice for or against any of the parties”; see State v. Rodriquez, 210 Conn. 315, 333, 554 A.2d 1080 (1989) (the jury is presumed to have followed the instructions of the court); see also Knox v. Metropolitan Life Ins. Co., supra, 279; it cannot be said that the viewing of this report by the jury was unduly prejudicial. We are not persuaded by the defendant’s claim to the contrary. Accordingly, the admission of this report was not harmful, and there is no reversible error on this issue.

Ill

The defendant’s third claim is that the court violated his state and federal right to confrontation protected by the sixth and fourteenth amendments to the constitution of the United States and article first, § 8, of the Connecticut constitution when it limited his cross-examination of LaMorte. Specifically, the defendant asserts that he was denied an opportunity to inquire about the condition of the Subaru’s speedometer, headlights and brakes, the manner in which different road surfaces are factored into speed formulas and driver reaction time.

At trial, LaMorte testified as an accident reconstruction expert. Her duties at the scene of the accident were to take measurements of the physical evidence found at the scene and to draw a detailed sketch map. She made certain findings and drew various conclusions regarding the paths of the vehicles and the point of contact between the vehicles. She testified that there was no physical evidence of brake marks. She also determined that the defendant was traveling thirty-one miles per hour faster than the victim at the time of the collision, but noted that, because she had used the wrong formula, she could not give her opinion as to the actual speed of the vehicles.

“The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge. This discretion comes into play, however, only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.

. . . The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness.” (Citations omitted.) State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985); see State v. Johnson, 20 Conn. App. 808, 809, 567 A.2d 850 (1990); State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1984). In order to determine whether that cross-examination was unduly restricted, we must examine the entire cross-examination. State v. Asherman, supra, 721.

A review of the defendant’s cross-examination of this witness reveals that the defendant was given every opportunity to question her about her reliability in determining the speed differential of the vehicles at impact, to expose to the jury the fact that she was not able to determine the actual speed of the two vehicles and to explore her qualifications as an expert on accident reconstruction, as well as her role in this accident. State v. Fenn, 16 Conn. App. 318, 325, 547 A.2d 576, cert. denied, 209 Conn. 822, 551 A.2d 757 (1988), cert. denied, 488 U.S. 1031, 109 S. Ct. 841, 102 L. Ed. 2d 973 (1989); see also State v. Vitale, supra, 403. On the issue of the condition of the Subaru’s speedometer, headlights and brakes, the witness admitted under cross-examination that she had not examined the vehicles at the scene of the accident, and, specifically, that she did not examine the brakes of the defendant’s vehicle. On the issue of the manner in which the road surfaces are factored into speed formulas, the defendant was permitted to ask numerous other questions relating to the road surface and the court noted that LaMorte had previously admitted, under both direct and cross-examination, that she was unable to determine the speed of the vehicles. The court denied the inquiry into driver reaction time because it was beyond the scope of direct examination.

Under the circumstances of this case, we cannot conclude that the defendant was denied his sixth amendment right to confrontation. See State v. Vitale, supra. This examination provided the defendant with an opportunity to “expose before the jury any facts upon which the jury could determine the [witness’] credibility sufficient to satisfy the confrontation clause of the sixth amendment.” State v. Fenn, supra, 326.

“ ‘ “Once it is established that the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will apply ‘[e]very reasonable presumption . . . in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.’ State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).” State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985). “ ‘ “To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.” . . .’ ” ’ ” (Citations omitted.) State v. Fenn, supra.

The defendant argues that he was prejudiced by these restrictions because he was prevented from demonstrating that this expert failed to follow her training and experience in performing her investigation. He further asserts that causation was a pivotal issue and that LaMorte was one of only two witnesses on this issue. We are not persuaded. For the reasons previously set forth, the jurors had adequate information from which they could assess the reliability of the witness’ testimony. State v. Maisonet, 16 Conn. App. 89, 96, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989). Accordingly, the trial court did not abuse its discretion in restricting the cross-examination of this witness.

IY

The defendant next contends that the trial court erred in admitting certain expert opinion testimony of the state’s primary accident reconstruction witness, Burturla. The defendant asserts that this witness was not competent to give an expert opinion on the causation element as it pertains to the tendencies of intoxicated drivers and how this accident occurred, and thus should not have been permitted to state his opinion on these ultimate facts. We do not agree.

“Whether a witness is qualified to testify as an expert with respect to a certain matter is a decision to be made by the trial court. . . . That decision will not be disturbed on appeal unless there has been an abuse of discretion or there was a clear error involving a misconception of the law. . . . Once the trial court has determined that the witness has reasonable qualifications to testify as an expert on the question presented, the objection goes to the weight rather than the admissibility of the testimony.” (Citations omitted.) State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, U.S. , 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

“ ‘ “Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” ’ ” State v. Kennedy, 20 Conn. App. 354, 366, 567 A.2d 841 (1989), cert. denied, 214 Conn. 805, 573 A.2d 317 (1990); State v. Lamme, 19 Conn. App. 594, 603, 563 A.2d 1372 (1989). “ ‘Expertise may come from practical experience or study alone.’ Bryan v. Branford, 50 Conn. 246, 248 (1882).” State v. Kennedy, supra.

The defendant argues that this witness was not competent to give his expert opinion regarding the tendencies of intoxicated drivers, that such “expert” opinion did not aid the jury, and that this witness did not provide a sufficient factual basis for his opinion regarding the cause of the accident.

We first address the argument that this witness was not reasonably qualified to render an expert opinion as to the tendencies of intoxicated drivers. At trial, Burturla testified that the cause of the collision was consistent with other accidents involving intoxicated drivers. He indicated that intoxicated drivers often fail to perceive hazards, follow vehicles too closely, and tend to exaggerate their physical movements.

Burturla has been a member of the Connecticut state police for five years and was previously a member of the Trumbull police department for four years. He has a bachelor’s degree in criminal justice and, when he testified, was one course short of earning his master’s degree in forensic science. In addition, Burturla attended a course at the Northwestern University Traffic Institute on driving while intoxicated. Included in this course was training on the characteristics and mannerisms of intoxicated drivers. Burturla also attended a course at the Northwestern University Traffic Institute on accident investigation where the focus was on at-scene investigation, technical investigation and accident reconstruction. In terms of practical experience, Burturla has investigated over 1000 traffic accidents, many of which involved intoxicated drivers. This witness has sufficient education and practical experience regarding the tendencies of intoxicated drivers to render a competent opinion as to those tendencies.

We next turn to the argument that this witness’ testimony regarding the tendencies of intoxicated drivers was not helpful to the jury in considering the issue of causation. This evidence was indeed helpful in demonstrating a proximate, legal connection between the defendant’s intoxication and his striking of the victim’s vehicle, which set in motion the contact between the vehicles, the victim’s vehicle striking the guardrail, the resulting gas tank explosion, the car fire, and the death of the victim. It cannot be assumed that information relating to the mannerisms and tendencies of intoxicated drivers is within the common knowledge of the average juror. State v. Holeman, 18 Conn. App. 175, 179, 556 A.2d 1052 (1989); see also State v. Grayton, 163 Conn. 104, 111, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972).

The defendant also argues that the witness did not provide a sufficient factual basis for his opinion as to how this accident occurred. Specifically, the defendant argues that, because the witness could not say how fast either car was going, where the impact took place, or how the defendant’s car overtook the victim’s vehicle, his opinion was without substantial value. The defendant also argues that because the witness indicated during cross-examination that it was possible that the accident had occurred as a result of the victim’s vehicle’s crossing in front of the defendant’s from the right shoulder of the highway immediately prior to the accident, he could not, with sufficient certainty, render his opinion as to the cause of the accident. We do not agree.

“ ‘ “In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for his opinion.” ’ ” State v. John, supra. “Where the factual basis of an expert is challenged . . . ‘“the question before the court is whether the uncertainties in the essential facts and on which the opinion is predicated are such as to make an opinion based on them without substantial value.” ’ ” Id.

We note at the outset that the defendant challenges only the factual basis for Burturla’s expert opinion on how this accident occurred and not his qualifications to render an expert opinion. We conclude that the defendant’s assertions that the witness was uncertain as to how fast the vehicles were traveling, where the impact took place, and how the defendant overtook the victim’s vehicle were not uncertainties in essential facts and were not facts on which the witness’ opinion was predicated. We also conclude that, despite the witness’ statement on cross-examination that it was possible that the victim was crossing in front of the defendant’s vehicle from the right shoulder of the highway immediately before the impact, the witness testified with sufficient certainty that this fact did not occur.

Burturla testified that he responded to the accident scene approximately one hour after the accident. Upon his arrival, he observed the condition of the highway, the condition and final resting place of the vehicles, the vehicular debris and glass on the highway, and the tire marks left on the road. After observing the scene of the accident, examining the photographs taken at the scene, and examining reports made by other officers who had responded to the accident, Burturla gave the following opinion: The right front side of the defendant’s truck made contact with the left rearend of the victim’s Subaru causing the vehicles to rotate together. The point of initial contact between the two vehicles was the center of the right lane. The victim’s Subaru made contact with a guardrail on the right side of the road. Almost immediately after this collision, the Subaru caught fire. Burturla also testified that there was no evidence that was inconsistent with his opinion.

Before he reconstructed this accident, Burturla stated that the factual bases for his opinion were his personal observations, photographs taken at the scene of the accident, the condition and final resting place of the vehicles and the placement of the vehicular debris, glass and tire marks found on the highway. Thus, the speed of the vehicles at the time of impact, the exact location where the impact took place and the precise statement of how the defendant’s vehicle had overtaken the victim’s vehicle were not facts essential to determining how this accident occurred and were not facts upon which the witness predicated his opinion. Instead, these facts went to the weight of Burturla’s opinion and not to its admissibility. See State v. John, supra, 678.

Moreover, Burturla’s statement on cross-examination that it was possible that the victim’s vehicle may have entered from the shoulder of the road did not render his opinion without substantial value. First, it should be noted that the witness also testified that if the victim had just entered the highway before the collision, the vehicles would have collided at different angles. Second, the witness testified that there was no evidence inconsistent with his opinion that the accident was initiated when the front of the truck made contact with the left rearend of the Subaru in the middle of the right lane. In sum, Burturla’s opinion that the accident was initiated when the defendant’s truck made contact with the victim’s vehicle in the center of the right lane, and not when the victim’s vehicle had crossed in front of the defendant’s truck from the shoulder of the highway was made with sufficient certainty and was factually supported. Burturla was not required to state with absolute certainty that there were no other possible causes to the accident. See State v. John, supra, 677.

Burturla had the benefit of his own observation of the physical evidence at the scene, photographs and reports to enable him to form an opinion that the Subaru was not entering the right lane from the shoulder of the road before the impact but was, in fact, in the center of the right lane. Because this witness’ opinion as to how the accident was initiated was given with sufficient certainty and was factually supported, we conclude that the trial court did not abuse its discretion in admitting the expert opinion of this witness as to how the accident had occurred.

Accordingly, the trial court did not abuse its discretion in permitting the expert testimony of this witness on the issue of causation.

V

The defendant’s fifth claim is that the trial court’s instructions to the jury on the requirement of reasonable doubt impermissibly lowered the burden of proof required for conviction, in violation of his due process rights.

The defendant cites as erroneous the following language from the jury charge: “In this case, the evidence must exclude all other reasonable probabilities as to the cause of the vehicular accident other than the alleged intoxication of the defendant.” (Emphasis added.) He argues that the court impermissibly lowered the burden of proof on the element of causation when it instructed the jury that “the evidence must exclude all other reasonable probabilities, rather than ‘possibilities.’ ” The defendant argues that, because of this error, the charge as a whole was confusing to the jury. We do not agree.

“A jury instruction is to be examined in its entirety and its correctness tested by whether the charge as a whole presents the case to the jury so that no injustice will be done. ‘ “ ‘A charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.’ ” ’ ” State v. Butler, 207 Conn. 619, 633, 543 A.2d 270 (1988). “ ‘ “An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable probability that the jury was misled.” ’ ” State v. Delosantos, 13 Conn. App. 386, 391, 536 A.2d 609 (1988).

The court began its charge to the jury with a definition of reasonable doubt that the defendant, in his brief, concedes was proper. The court also began its instruction on the element of causation by instructing the jury that “[t]he third element the state must prove beyond a reasonable doubt is that the defendant caused the death of Pamela Simmons as a consequence of his intoxication.” (Emphasis added.) Then, following the allegedly erroneous use of the word “probabilities,” the court reviewed the evidence that was presented on the issue of causation and instructed the jury that “[wjhen as here there is some evidence from which you might conclude that the vehicular accident was caused by some factors, other than the defendant’s intoxication, the state must prove to you beyond a reasonable doubt that none of these factors could have caused the accident. ” (Emphasis added.) Furthermore, the trial court concluded its instruction on the charge of second degree manslaughter with a motor vehicle by stating to the jurors that “[i]f the state has proved all of three elements of the crime beyond a reasonable doubt you shall bring in a verdict of guilty on the first count. If the state has failed to prove all of the elements beyond a reasonable doubt you shall bring in a verdict of not guilty on the first count.” (Emphasis added.)

Examining the charge as a whole, we conclude that it is not reasonably possible that the jury was misled. The trial court’s use of the word “probabilities” was, at most, “an inadvertent slip of the tongue.” State v. Delosantos, supra. Any error in the trial court’s charge was harmless.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-56b provides: “manslaughter in the second DEGREE WITH A MOTOR VEHICLE: CLASS C FELONY, (a) A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.
      “(b) Manslaughter in the second degree with a motor vehicle is a class C felony and the court shall suspend the motor vehicle operator’s license or nonresident operating privilege of any person found guilty under this section for one year.”

       The defendant was,also charged with operating an unregistered vehicle and failure to wear a seat belt. The amended information, however, only charged the defendant with manslaughter in the second degree with a motor vehicle and driving under the influence of an intoxicating liquor or drug.

       The finding that the defendant was “intoxicated” while the statute requires proof that he was “under the influence” is not an issue in this appeal because the defendant has made no claim as to the sufficiency of evidence of this element.

       In fact, the original causation language in Public Acts 1985, No. 85-147, in lieu of “in consequent” stated “was a substantial factor in causing such death.” House Amendment “A” replaced this proposal to “as a consequence.” Representative William A. Wollenberg proposed the amendment to this public act and Representative Robert M. Frankel (121st District), speaking in support of this amendment, stated: “Yes, Mr. Speaker, I’d like to attempt to try to assist the chamber in understanding the reason for the amendment. The file copy was designed to correct a problem that arose from a court decision. It was an attempt to use the right definition for under the influence, because in that court case, someone escaped from being found guilty because the statute that is on the books today, talks about intoxication, instead of about the words, ‘under the influence,’ and that is what the file copy tried to do, to put the words, ‘under the influence’ in, and take the word ‘intoxication’ out, because the courts interpreted them differently, and the file copy would indeed make the law more tough on drivers, but I believe inadvertently [the legislative commissioner’s office] threw in some new language that the committee didn’t consider, and they threw in the words, ‘substantial,’ and we have no definition for substantial.
      “Is it 20%, is it 50%, is it 60%? It’s something more than a little, but is it 70 or 80. We don’t know, and I don’t think it was appropriate to put it there. The existing law says, ‘in consequence of,’ and that is what Rep. Wollenberg’s amendment would do, would use that same language. But it would still leave the file copy intact to toughen up our drunk driving laws to do what was intended by the committee, and to correct the problem that that court decision brought about.
      “And so I would urge the membership to support the amendment, which I think will make the file copy to do what the committee intended, toughen up our laws, but not interject and introduce something brand new called ‘substantial’ as opposed to ‘in consequence.’ It’s technical, it’s legal, but I think if we put this new language in, that inadvertently slipped into the file copy, we’re going to have an enormous problem in interpreting what is something even beyond civil law, below civil law, in terms of its consequence.” 28 H.R. Proc., Pt. 9, 1985 Sess., pp. 3129-3131.
      House Amendment “A” was adopted and ruled technical. Id., 3132.

       See Connecticut General Assembly, Office of Legislative Research, Summary of 1985 Public Acts, p. 156.

       Although the word “intoxication” appears throughout this opinion, the word is meant to be defined as “under the influence of an intoxicating liquor or drug.”

       The state incorrectly cited to General Statutes § 4-104 when it argued that the report was admissible. That section applies to hospital records that are to be subpoenaed and admitted into evidence; it does not apply to autopsy reports. Furthermore, even if § 4-104 had applied, the report would not have been admissible because there was no “certification in affidavit form of the person in charge of the record room of the hospital or his authorized assistant indicating that such record or copy is . . . made in the regular course of the business of the hospital, and that it was the regular course of such business to make such record . . . .” General Statutes § 4-104.

       In Ms brief, the defendant asked for review of this claim of error based on State v. Evans, 165 Conn. 61, 70, 327 A.2d 526 (1973); see also State
        v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989). Evans review is not necessary because the defendant took exceptions to the court’s ruling sustaining the objections by the state regarding the limit of his cross-examination. Cf. State v. Rawls, 198 Conn. 111, 113-15, 502 A.2d 374 (1985).
      We also note that the defendant has failed to provide any analysis to distinguish or to amplify his state right to confrontation. We decline to undertake such an analysis. State v. McNellis, 15 Conn. App. 416, 420 n.2, 546 A.2d 292, cert. denied, 209 Conn. 807, 548 A.2d 441 (1988).

       The defendant requested review of this claim under State v. Evans, 165 Conn. 61, 327 A.2d 526 (1973); see also State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); because he did not object to or take exception to the charge at issue. We need not undertake Evans review because this claim was properly preserved in view of the fact that the alleged error was on the defendant’s written request to charge. See Practice Book § 315.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Virgil Wilson-Bey, Sr.
    (7413)
    Borden, Spallone and Lavery, Js.
    Argued December 14, 1989
    decision released April 3, 1990

      Mark S. Baldwin, special public defender, with whom, on the brief, were William H. Narwold, and David D. Legere, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Kevin M. Kennedy, law student intern, for the appellee (state).
   Spallone, J.

A jury convicted the defendant of the crimes of violation of the state dependency producing drug law; General Statutes § 21a-277 (a); and possession of drug paraphernalia in a drug factory situation. General Statutes § 21-277 (c). On appeal, the defendant claims that the trial court erred (1) in allowing into evidence items seized from the defendant’s apartment in violation of his rights under the fourth and fourteenth amendments to the federal constitution and under article first, § 7, of the state constitution, (2) in admitting out-of-state laboratory reports without requiring the state to present testimony to indicate whether they were business records under General Statutes § 52-180, (3) in admitting the results of tests performed by an out-of-state laboratory in violation of his right to confront witnesses against him under the sixth and fourteenth amendments to the federal constitution and under article first, § 8, of the state constitution, (4) in failing to require the state to prove beyond a reasonable doubt that he was guilty of possession with intent to distribute cocaine in violation of § 21a-277 (a), (5) in failing to comply with General Statutes § 54-84 (b) concerning his failure to testify, and (6) in refusing to give the jury a cautionary instruction concerning the prosecutor’s inflammatory remarks.

The evidence adduced at trial reasonably supports the facts as follows. Carolyn Hamrick and the defendant lived in an apartment in the city of Bridgeport with their son, Virgil Jr., and Hamrick’s daughter. The apartment consisted of a living room, kitchen, bathroom and two bedrooms. On June 2, at about 6 a.m., the defendant and Frank Braswell, a neighbor, arrived at the apartment and smoked crack with a glass pipe and a propane torch. Braswell took the torch with him when he left. The defendant went to bed after informing Hamrick that she should expect John Lee to arrive at the apartment, and that she should give Lee $100 in return for vials of crack. Lee arrived at about 8 a.m. and the exchange transpired.

Hamrick then went to Braswell’s apartment to get the propane torch and returned to her own apartment with Jennifer Braswell, where the two of them smoked crack. Just after 10 a.m., Hamrick left Virgil, Jr., watching television in the living room while she went to a convenience store across the street to buy milk. She left the lit propane torch on the washing machine in the kitchen. The apartment caught fire while she was out. The Bridgeport fire department arrived shortly thereafter and gained control of the blaze within twenty minutes. Firefighters rescued the defendant and Virgil, Jr., from the apartment, but Virgil, Jr., died after reaching the hospital.

Assistant Chief Encole Spinelli of the Bridgeport fire department was the officer in charge of the detail fighting the fire. Once the fire was extinguished, Spinelli examined the apartment. He found that the living room was thoroughly gutted. There was heat and flame damage in portions of the kitchen, and there was severe smoke damage throughout the apartment. Because the living room had apparently ignited very quickly, Spinelli suspected the presence of an accelerant and he called the arson squad. An arson investigator arrived minutes later.

The arson investigator, Spinelli and other firefighters conducted an “overhaul” of the apartment. The overhaul process, as explained by Spinelli, constitutes a search of the entire premises for smoldering cinders or other hazards. The purpose is to leave the premises in as safe a condition as possible. Firefighters also investigate the cause of the fire while conducting an overhaul.

The overhaul of the defendant’s apartment revealed evidence of illegal drug activity. There were empty crack vials in a film container located on a dresser top in a rear bedroom. The metal surfaces of the kitchen refrigerator were warped by heat, prompting an inspection of the appliance, and inside the investigators found a plastic bag of white powder later determined to be cocaine. From the living room floor, the investigators seized a wallet containing $187 and the crack vials that had been delivered to the defendant by Lee.

There was further evidence that the defendant was involved in the use and sale of illegal drugs. The day before the fire, the defendant telephoned Hamrick and told her that he was selling cocaine at Jackson’s poolroom. Also, about one week earlier, Hamrick’s daughter had seen the defendant selling crack, and Hamrick’s sister had seen the defendant smoking crack while she was visiting the apartment two weeks before.

The defendant first claims that the trial court erred by admitting into evidence items that were unlawfully seized from his apartment. The defendant maintains that the warrantless search of his apartment after the fire was excessive in scope and should have been restricted to the living room area of the apartment because the fire was confined to that area, because the cause of the fire was apparent, and because there was no need to search the remainder of the apartment to determine the cause of the blaze. We disagree.

It is well established that a burning building is an exigent circumstance that justifies warrantless entry by firefighters. Michigan v. Clifford, 464 U.S. 287, 299-300, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984); Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). Fire officials may remain at the scene without a warrant until all of their duties are completed. Among their duties, aside from dousing the blaze, are to conduct an overhaul; Steigler v. Anderson, 496 F.2d 793, 795 (3d Cir. 1974); United States v. Johnson, 524 F. Sup. 199, 204 (D. Del. 1981), rev’d in part, 690 F. 2d 60 (3d Cir. 1982), cert. denied, 459 U.S. 1214, 103 S. Ct. 1212, 75 L. Ed. 2d 450 (1983); and to investigate the cause of the fire. Michigan v. Tyler, supra.

The warrantless fire investigation that occurred in this case is closely analogous to that approved in United States v. Johnson, supra. In that case, there was a fire in the second floor front bedroom of a house. After overhaul procedures revealed controlled substances in the rear bedroom of the second floor, a federal drug enforcement officer was summoned. He finally arrived two and one-half hours after the fire had been extinguished. The fire investigator suspected that either arson or faulty wiring was the cause of the fire. While inspecting the wiring in the basement, the fire investigator noticed certain equipment, which the drug enforcement officer later identified as drug manufacturing equipment.

The defendant relies on the United States Supreme Court case of Michigan v. Clifford, supra, in which a fire investigation was held to be an unreasonable search. That case is distinguishable because there the investigation of the cause of the fire occurred when investigators returned to the scene six and one-half hours after the fire was suppressed. The fact that insurance agents had bégun to board up the premises was a clear indication that the exigent circumstances had passed. In the present case, the overhaul was conducted immediately after the fire was extinguished while firefighters were still on the scene performing their duties.

We reject the defendant’s argument that because the fire investigators in this case found the propane torch and the majority of fire damage in the living room they should not have entered the remainder of the apartment. Fire officials must search for possible victims, ventilate the entire premises, and check for smoldering embers or other hazards. Steigler v. Anderson, supra; United States v. Johnson, supra.

In the present case, all items were seized during the overhaul procedure, and all of the items were in plain view of the investigators. The bag of white powder in the refrigerator was not initially in plain view, but the investigators had a legitimate reason to inspect that appliance because it had sustained intense heat damage during the fire. Once the investigators were legitimately inspecting the refrigerator, the evidence they found therein was in plain view. See Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968).

In his second and third claims of error, the defendant asserts that the trial court illegally admitted into evidence as business records certain test results from an out-of-state laboratory. Neither claim is persuasive.

When the defendant was treated for smoke inhalation and bums at Bridgeport Hospital, blood and urine tests were performed. The attending physician testified at trial that it is routine to check the bodily fluids of smoke inhalation victims for carbon monoxide deposits. He also stated that when a patient is agitated or semiconscious, the normal medical procedure is to perform a toxic screen of the bodily fluids in order to discover whether traces of drugs or alcohol are present, and thereby determine the medical reason for the patient’s agitation or semiconsciousness. In the present case, the defendant appeared agitated, and the toxic screen of his bodily fluids revealed the presence of cocaine and coke metabolites. The results of the toxic screen were incorporated in the defendant’s medical chart at the Bridgeport Hospital, and this chart was later admitted into evidence at trial.

Because the defendant’s medical chart met the requirements of General Statutes § 52-180, it was admissible as evidence despite the fact that it contained hearsay statements. In the present case, the toxic screen was performed by a Pennsylvania laboratory, which later transmitted the results to the Bridgeport Hospital. There is nó requirement that records be prepared by the organization itself to be admissible as the organization’s business records. Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 475, 531 A.2d 177 (1987); see State v. Damon, 214 Conn. 146, 156-57, 570 A.2d 700 (1990). Where an entry in a hospital record is pertinent to the care or treatment of a patient, it is admissible. D’Amato v. Johnston, 140 Conn. 54, 61, 97 A.2d 893 (1953).

Nor did the admission of this hearsay evidence violate the defendant’s right to confrontation of adverse witnesses. Though the defendant was not afforded an opportunity to cross-examine the chemists at the Pennsylvania toxicology laboratory, his right to confrontation was not violated because there were indicia of reliability that minimized the possibility of harm in placing the evidence before the jury in that the results of the toxic screen of his bodily fluids were the product of a standard testing procedure. Reardon v. Manson, 806 F.2d 39, 43 (2d Cir. 1986).

The trial court properly admitted the test results as hospital business records notwithstanding the fact that the tests were conducted in an out-of-state laboratory.

Although the defendant in his fourth claim of error argues that the evidence was insufficient to prove him guilty of possession with the intent to sell cocaine, our review of the record and transcripts indicate ample evidence to support the jury’s verdict. See State v. Ruth, 16 Conn. App. 148, 153-55, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989); State v. Williams, 16 Conn. App. 75, 78, 546 A.2d 943 (1988); State v. Marsala, 15 Conn. App. 519, 527, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988). The defendant’s fourth claim of error lacks merit.

Next, the defendant claims that, because the trial court did not charge the jury in the exact language of General Statutes § 54-84 (b), it is automatically reversible error. The defendant submitted to the court a request to charge the jury. As part of that request, the defendant asked for the following charge: “I admonish you to draw no inferences whatsoever from this event [defendant’s failure to testify].” The trial court charged as requested. We have held that failure to charge in the exact language of the statute is error, but such judicial nonconformance does not automatically warrant a reversal and a new trial. State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988). The court’s charge, although erroneous, was given as requested by the defendant. An erroneous charge, induced by the defendant’s request, does not entitle him to a new trial. State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973).

In his last claim, the defendant contends that the trial court erroneously denied his motion for a mistrial. In this motion, the defendant claimed that certain of the prosecutor’s comments during final argument were improper and rendered the trial as a whole unfair. State v. Evans, 10 Conn. App. 605, 609, 524 A.2d 1165 (1987). The prosecutor stated that the defendant and Hamrick, “were peddling this crack, this death.” The prosecutor also stated: “There was death all over the apartment,” and “the state would call it peddling death.” The defendant’s motion was also based on the fact that the court did not give an immediate curative charge to the jury. State v. Benton, 161 Conn. 404, 413, 288 A.2d 411 (1971).

Although the trial court did not give an immediate curative instruction, it did caution the jurors in its charge that their determination must not be based upon emotion, that they were limited to the evidence and no other source, that it was their recollection of the evidence that was controlling and not what counsel had argued to them, that the jury had to find the case proven by the evidence and they could not go outside the evidence, and that the evidence had to establish the existence of every element beyond a reasonable doubt. Jurors are presumed to follow the instruction given by the judge. State v. Smith, 212 Conn. 593, 599, 563 A.2d 671 (1989).

Moreover, the defendant has failed to show prejudice. “When the verdict in a criminal case is challenged on the basis of allegedly prejudicial remarks made by the prosecutor, the defendant bears the burden of proving such prejudice within the context of the trial as a whole. ‘The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.’ ” State v. Evans, supra, 608, quoting State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984).

Our review of the remarks in light of the entire charge, the evidence and the verdicts indicates that the defendant has failed to show that he was prejudiced by the prosecutor’s remarks. All but one of the comments of the prosecutor referred to the manslaughter count of which the defendant was acquitted. As to the drug counts on which the defendant was convicted, the record indicates that the evidence as to these counts was more than ample to sustain the verdict of guilty. Under the facts and circumstances of this case, we cannot say that the defendant has shown that his trial was unfair and in violation of due process.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-84 (b) provides: “Unless the accused requests otherwise, the courts shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.” Note that in this case the defendant did in fact “request otherwise.”

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”


author: Lavery, J.

text:
    Richard Sherbo v. John R. Manson, Commissioner of Correction
    (7611)
    Daly, Foti and Lavery, Js.
    Argued November 3, 1989
    decision released April 3, 1990

      KentDrager, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (petitioner).

      RitaM. Shair, deputy assistant state’s attorney, with whom were Donald A. Browne, state’s attorney, and, on the brief, Richard F. Jacobson, assistant state’s attorney, and Marcia Kahn, law student intern, for the appellee (respondent).
   Lavery, J.

The petitioner appeals from the judgment denying his petition for a writ of habeas corpus. He claims that the habeas court erred in failing to conclude that his pleas were not knowing, intelligent, and voluntary (1) because of a misunderstanding by the trial court, the prosecutor and his defense counsel concerning the procedure whereby convicted sex offenders are committed to Whiting Forensic Institute (Whiting), and (2) because he was under the influence of medication at the time of the pleas. We find no error.

The following facts are relevant. On March 31,1981, the petitioner was arrested and charged with various sex offenses, kidnapping in the first degree and robbery in the first degree. His maximum exposure for the eight felonies was 120 years to life.

On April 13,1982, the petitioner pleaded guilty, pursuant to a plea agreement, to five counts of first degree sexual assault, two counts of first degree kidnapping, and one count of first degree robbery. Before accepting the petitioner’s guilty pleas, the trial court questioned him closely, as required by Practice Book § 711. During the plea canvass, the court made a commitment to recommend to the commissioner of correction that the petitioner be housed, “for whatever period of time he thought was reasonable, at the Whiting Forensic Institute.”

The trial court later sentenced the petitioner to thirty-years incarceration. At the petitioner’s sentencing hearing, the court made its promised recommendation to the commissioner of correction, but denied the petitioner’s motion for an examination by the Whiting staff to determine his eligibility for treatment at Whiting.

Since his sentencing, the petitioner has been confined in the state prison at Somers. He has not spent any time at Whiting Forensic Institute.

I

Before addressing the merits of the petitioner’s claims, we must consider the respondent’s contention that this court should dismiss the present petition under either the “successive petitions” or “abuse of writ” doctrines. The following procedural background is in order.

In January, 1983, the petitioner filed four pro se habeas petitions. The first petition alleged ineffective assistance of counsel; the second, breach of plea agreement; the third, failure to inform of maximum sentence. The fourth alleged that the pleas were invalid due to the petitioner’s mental condition. On January 24, 1984, the habeas court denied the first two petitions, and the court denied the petitioner’s request for certification to appeal. The third petition was withdrawn, and the fourth is the petition presently before this court.

Because the four petitions were filed contemporaneously, the fourth cannot be considered, in the simplest sense, “successive” to the others. Our review of the case file, however, reveals that the fourth was amended on February 7,1986, two years after the first and second petitions were decided. The grounds for relief stated in the amended petition are broader and better articulated than in the original petition. We must determine, therefore, whether the fourth petition, as amended, constitutes a successive petition or an abuse of writ so as to require the dismissal of the appeal.

“Decisions concerning abuse of the writ are addressed to the sound discretion of the trial court. ‘Theirs is the major responsibility for the just and sound administration of . . . collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.’ Sanders v. United States, 373 U.S. 1, 18, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963).” Iasiello v. Manson, 12 Conn. App. 268, 271, 530 A.2d 1075, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). We note that the habeas court decided the present petition on the merits, and in its memorandum of decision referred to its prior decision on the other two petitions. Thus, the habeas court implicitly rejected the state’s successive petition theory. After reviewing the record, we conclude that the habeas court did not abuse its discretion in deciding the petition on the merits. Moreover, our conclusion is reinforced by the consideration that, to this point, none of the petitioner’s claims has received appellate review. We therefore turn to the merits of the petition.

II

Four grounds for relief are presented in the petition, all of which are variations on a theme, namely, that the petitioner’s pleas were not knowing, intelligent or voluntary. Three of the grounds are derived from the same set of facts, which we now relate.

At the petitioner’s plea canvass, the following colloquy took place:

“Mr. Lyons [state’s attorney]: May I add one other thing? May it be indicated that this is an agreed sentence?
“The Court: Okay. Thank you. Is that true, Mr. Lickson?
“Mr. Lickson [defense counsel]: I was going to interject that Your Honor has indicated in our discussions that the court would recommend, at the time of sentencing, that the sentence be carried out at the Whiting Forensic Center in Middletown.
“The Court: You understand that the commissioner of correction, by statute, is in charge of housing of persons who are incarcerated.
“Mr. Sherbo: Yes.
“The Court: The court can, however, recommend to the commissioner, and the commissioner will do as he sees fit. But I have told your attorney, and the record should indicate that your attorney, Mr. Lyons . . . and myself, have had extensive discussions about these cases, and during those discussions, I have indicated to them that if I were, in fact, to accept the recommendation of the state, as joined in by your attorney, I would recommend and suggest to the commissioner that he house you, for whatever period of time he thought was reasonable, at the Whiting Forensic Institute. Is that correct?
“Mr. Sherbo: Yes.
“The Court: Do you have any questions for me so far?
“Mr. Sherbo: No.”

At his sentencing, the petitioner, pursuant to General Statutes § 17-244, moved the court to order the Whiting staff to examine the petitioner in order to determine whether he would be a suitable candidate for treatment there. The court, in an exercise of its discretion and after determining that the petitioner was not mentally ill or dangerous to himself or others; see General Statutes § 17-244; denied the motion. The petitioner excepted. The court then sentenced the petitioner to thirty years to life. The following colloquy then occurred:

“Mr. Lickson [defense counsel]: Were you going to make a recommendation?
“The Court: Yes. I think these offenses were, obviously, committed by an individual who needs intensive rehabilitation prior to his being released from those offenses and I would urge the commissioner of correction make a serious effort to house this individual in an area or location where he can be given intensive rehabilitation as it, obviously, will be needed prior to any release.”

The three grounds discussed in this section are closely related. They are (1) that the petitioner was not aware of the actual value of the commitments made to him by the prosecutor and the trial court, (2) that he was misled by misrepresentations concerning the Whiting Institute commitment procedure, and (3) that he did not properly understand the applicable law because it was stated to him incorrectly.

A guilty plea, which is itself tantamount to conviction, may be accepted by the court only when it is made knowingly, intelligently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). A guilty plea otherwise obtained is in violation of due process and voidable. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983); State v. Hackett, 16 Conn. App. 601, 602, 548 A.2d 16 (1988). To make a valid guilty plea, a defendant must have a full understanding of what his plea means; Boykin v. Alabama, supra; and be fully aware of the direct consequences, including the actual value of any commitments made to him by the court, the prosecutor, or his own counsel. Brady v. United States, 397 U.S. 742, 748 n.6, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).

The petitioner claims that, unbeknownst to him, the trial court’s commitment to recommend to the commissioner of correction that he should serve his sentence at Whiting was virtually worthless. As the defendant notes, under the proper procedure by which a trial court may commit a convicted person to Whiting, as provided by General Statutes § 17-244, the trial court makes no recommendation to the commissioner concerning Whiting because the commissioner of correction is not involved in the decision. The defendant’s reliance on that worthless promise in pleading guilty, he argues, rendered those pleas unknowing and involuntary. Brady v. United States, supra.

A defendant must be aware of the actual value of any commitments made to him by the court, prosecutor or his own counsel; id., 78; because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty. This is not to say, however, that promises made by the court or the prosecutor must in every instance accurately reflect the applicable law. If any legal flaw in a promise does not mask the actual value of the promise, the legal flaw is harmless. For instance, a promise that is legally inaccurate, and thus unenforceable, will not present a ground for habeas relief if it was manifest and obvious at the time of the plea canvass that the promise was of little value in any event. Thus, the critical question is whether the value of the court’s promise, as reasonably perceived at the plea canvass, significantly exceeded the actual value of the promise.

The parties hotly contest the actual value of the court’s promise to recommend to the commissioner of correction that he house the petitioner, “for whatever period of time he thought was reasonable,” at Whiting. We need not decide this issue. Even if we assume, without deciding, that the actual value of the court’s promise was severely limited, the petitioner’s claim still fails because the record clearly reveals that the value of the court’s promise, on its face, was also severely limited. At the plea canvass, the court plainly stated that it did not have the authority to sentence the petitioner to serve all or part of his term in Whiting. We agree with the habeas court’s conclusion that the trial court’s statements were not words of guarantee. That the petitioner mistook the court’s promise to recommend that he be housed at Whiting for a guarantee is not, under these circumstances, a ground for habeas relief. Brady v. United States, supra, 756-57.

In order to prevail in a habeas corpus challenge, “the petitioner ‘must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417, reh. denied, 369 U.S. 808, 82 S. Ct. 640, 7 L. Ed. 2d 556 (1962).’ D’Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984).” Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). The petitioner has failed to make such a showing in this instance, and this claim has no merit.

The petitioner’s next two claims, namely, that he was misled by misrepresentations concerning the Whiting commitment procedure and that he did not understand the applicable law because it was stated to him incorrectly, are so closely related that we address them together. The key assumption underlying both claims is that the petitioner had a right to be informed, at his plea canvass, as to the proper procedure by which the trial court may commit sex offenders to confinement and treatment at Whiting. It is open to question, however, whether the law affords the petitioner such a right.

Before he can make a valid guilty plea, a defendant must be fully aware of the direct consequences of his plea. Brady v. United States, supra, 748. To ensure compliance with this constitutional mandate, Practice Book § 711 requires the trial court to advise the defendant of (1) the mandatory minimum and maximum possible sentences, (2) the maximum possible consecutive sentence, (3) the possibility of additional punishment imposed because of previous convictions, and (4) the fact that the particular offense does not permit a sentence to be suspended.

In Connecticut, as elsewhere, “the scope of ‘direct consequences’ is very narrow; J. Bond, Plea Bargaining and the Guilty Plea (2d Ed.) § 3.38”; State v. Gilnite, 202 Conn. 369, 383 n.17, 521 A.2d 547 (1987); and is limited to those consequences enumerated in Practice Book § 711. State v. Gilnite, supra. Except for those inquiries mandated by the constitution and court rule, the court is not obliged to assume the role of the defendant’s counselor; id., citing State v. Eason, 192 Conn. 37, 45, 470 A.2d 688 (1984); or to advise the defendant of every possible consequence of his guilty plea. State v. Gilnite, supra; see also, State v. Risk, 17 Conn. App. 447, 456, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, U.S. , 110 S. Ct. 72, 107 L. Ed. 2d 38 (1989). In light of these considerations, the possibility that the petitioner would be committed to Whiting unmistakably appears to be a collateral consequence of his pleas. The petitioner was not entitled, therefore, to be advised by the trial court as to the existence of, or the possible result of, this procedure.

Our analysis cannot end here because the petitioner does not allege merely that the trial court failed to advise him of the existence of the Whiting commitment procedure. Rather, he claims that the trial court, his trial defense counsel, and the prosecutor misrepresented the nature of the Whiting commitment procedure and thus rendered his guilty pleas invalid. We disagree.

A guilty plea induced by misrepresentations, including unfulfilled or unfulfillable promises, is constitutionally unsound; Brady v. United States, supra, 755; because such misrepresentations interfere with the defendant’s ability to weigh realistically the state’s case and the likelihood of securing leniency through a plea bargain. Here, however, the petitioner has failed to show that the misinformation he received concerning incarceration at Whiting amounted to misrepresentations on the part of the trial court. The record reveals that no promises were made to the petitioner that he would serve his sentence at Whiting, and the trial court pointedly informed him that it was not within the court’s discretion to sentence him to incarceration at Whiting. As discussed above, we are not convinced that the trial court’s inaccurate portrayal of the Whiting procedure made it any more or less likely that the petitioner would plead guilty than would have been the case with an accurate portrayal of that procedure.

We reject the petitioner’s argument that the mere fact that he was misinformed as to the Whiting procedure vitiated his guilty pleas. The petitioner, facing a maximum exposure of 120 years to life, chose to plead guilty in return for an effective sentence of thirty years. Given the available alternatives, he made a wise choice. Under the facts of this case, the trial court’s misinformation concerning a collateral consequence of the petitioner’s guilty pleas does not constitute a violation of due process or a miscarriage of justice. See Brown v. Perini, 718 F.2d 784, 788-89 (6th Cir. 1988).

Ill

The petitioner’s last claim is that his pleas were not knowing, intelligent and voluntary because, at the time of his pleas, he was under the influence of prescription medication. This claim is meritless.

The habeas court found that for some time prior to his pleas, the petitioner had received 150 mg. of Mellaril and 100 mg. of Asendin daily. That court also noted that both psychiatrists who testified at trial agreed that the petitioner’s dosage of Asendin was too low to have any effect on his ability to understand the plea canvass proceedings, and that his dosage of Mellaril probably improved his judgment by reducing impulsiveness and allowing him to listen more receptively and to reason better. Cf. United States v. Buckley, 847 F.2d 991, 1000 (1st Cir. 1988), cert. denied, 488 U.S. 1015, 109 S. Ct. 808, 102 L. Ed. 2d 798 (1989) (use of lithium by manic-depressive defendant actually made him more rational and better able to plead). Further, the petitioner testified at his plea canvass that he, himself, noticed no effects of the medication.

The petitioner has failed to show that the administration of these medications clouded his judgment so as to cause a miscarriage of justice. See id., 1000; Bowers v. Warden, supra, 441; see also State v. Morant, 20 Conn. App. 630, 633, 569 A.2d 1140 (1990).

There is no error.

In this opinion the other judges concurred.

       Superior Court for the judicial district of Hartford-New Britain at Hartford, docket number 279364, dated January 4, 1983.

       Superior Court for the judicial district of Hartford-New Britain at Hartford, docket number 279606, dated January 8, 1983.

       Superior Court for the judicial district of Hartford-New Britain at Hartford, docket number 279607, dated January 8, 1983.

       Superior Court for the judicial district of Hartford-New Britain at Hartford, docket number 279608, dated January 8, 1983.

       General Statutes §§ 17-244 and 17-245 govern the trial court’s sentencing of convicted sex offenders, inter alia, to confinement and treatment at Whiting Forensic Institute. The procedure outlined in §§ 17-244 and 17-245 differs significantly from the process that the parties appear from the transcript to have envisioned at the plea canvass. Indeed, the central mystery of this case is why the parties and the trial court apparently overlooked these statutes at the plea canvass, yet properly applied them at the petitioner’s sentencing hearing.
      General Statutes § 17-244 provides in pertinent part: “(a) Except as provided in section 17-255 any court prior to sentencing a person convicted of ... a sex offense involving (1) physical force or violence . . . may if it appears to the court that such person is mentally ill and dangerous to himself or others . . . upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction. . . .
      “(b) The request for such examination may be made by the state’s attorney or assistant state’s attorney who prosecuted the defendant for an offense specified in this section, or by the defendant or his attorney in his behalf. . . .
      “(c) Upon completion of the physical and psychiatric examination of the defendant, but not later than sixty days after admission to the diagnostic unit, a written report of the results thereof shall be filed in quadruplicate with the clerk of the court before which he was convicted . . . [and submitted] to the state’s attorney, to counsel for the defendant and to the office of adult probation.”
      General Statutes § 17-245 provides in pertinent part: “(a) If the report recommends that the defendant be sentenced in accordance with the conviction, placed on probation by the court or placed on probation by the court with the requirement, as a condition of such probation, that he receive outpatient psychiatric treatment, the defendant shall be returned directly to the court for disposition. . . .
      “(b) If the report recommends confinement at the institute for custody, care and treatment, the court shall set the matter for a hearing .... The defendant may waive the court hearing.
      “(c) If at such hearing the court finds the defendant is not in need of custody, care and treatment at the institute, it shall sentence him in accordance with the conviction or place him on probation. ... If the court finds such person to be mentally ill and dangerous to himself or others and to require custody, care and treatment at the institute, it shall sentence him in accordance with the conviction and order confinement in the institute for custody, care and treatment provided no court may order such confinement if the report does not recommend confinement at the institute. The defendant shall not be subject to custody, care and treatment under this part beyond the maximum period specified in the sentence.”

       Although we accept the petitioner’s contention, for argument’s sake, we note that the commissioner of correction, pursuant to §§ 17-194c through 17-194e and 17-194g, has broad authority to seek to transfer mentally ill inmates from penal institutions to hospitals in order to provide treatment for those found to be in need of it after sentencing. See State v. Gates, 198 Conn. 397, 405, 503 A.2d 163 (1986). Thus, the trial court’s recommendation that the commissioner provide the petitioner “intensive rehabilitation prior to [releasing him]” was not worthless.

       Viewing the issue in terms beyond the bright line test of State v. Gilnite, 202 Conn. 369, 383 n.17, 521 A.2d 547 (1987), we note that the commitment procedure set out in General Statutes §§ 17-244 and 17-245 is a complex, multistage process involving the exercise of discretion by the trial court and the Whiting medical staff at numerous stages of the process. Even if the trial court, in the exercise of its discretion, agrees to initiate the § 17-244 procedure it is by no means guaranteed that the convicted offender will ultimately spend any time at Whiting. See State v. Gates, 198 Conn. 397, 503 A.2d 163 (1986). Prisoners are not entitled to be confined at Whiting; their placement there is at the discretion of the courts, the director of the Whiting Institute, and the commissioner of correction. See id.
      “ ‘The distinction between “direct” and “collateral” consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.’ Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S. Ct. 362, 38 L. Ed. 2d 21 (1973)”; George v. Black, 732 F.2d 108, 110 (8th Cir. 1984); United States v. Lambros, 544 F.2d 962, 966 (8th Cir. 1976), cert. denied, 430 U.S. 930, 97 S. Ct. 1550, 51 L. Ed. 2d 774 (1977). From the vantage point of the plea canvass, the result of a contemplated § 17-244 procedure cannot be considered definite or largely automatic. Thus, under either the Gilnite or Cuthrell test, the Whiting commitment procedure must be viewed as a collateral consequence of the petitioner’s guilty plea.

       This conclusion is dispositive of the defendant’s claim that his plea was invalid because he did not understand the applicable law correctly. Although a defendant must understand the law in relation to the facts of the case before he can make a valid guilty plea; McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); this requirement extends only to the defendant’s understanding of the nature of the charge; see id.; see also Henderson v. Morgan, 426 U.S. 637, 96 U.S. 2253, 49 L. Ed. 2d 108 (1976); and his understanding that at trial the state would have to prove all the elements of the charge beyond a reasonable doubt. See W LaFave and J. Israel, Criminal Procedure (1985) § 20.4 (c). Thus, the trial court was not required to advise the defendant of the law pertaining to the collateral aspects of his sentencing.

       The following colloquy took place at the plea canvass:
      “The Court: Are you under the influence of drugs or alcohol today in any way that would affect your ability to plead guilty?
      “Mr. Sherbo: No.”


author: Daly, J.

text:
    Jay Zaleski v. Joseph D. Zaleski
    (7250)
    Borden, Daly and Norcott, Js.
    Argued November 7, 1989
    decision released April 3, 1990

      Charles G. Karanian, for the appellant (defendant).

      Mark H. Dean, for the appellee (plaintiff).
   Daly, J.

The defendant appeals from the judgment for the plaintiff on the plaintiff’s complaint following the entry of default, and from the judgment dismissing his counterclaim, for the defendant’s failure to comply with the discovery provisions of Practice Book § 231. The plaintiff on appeal requests that this court impose sanctions and order the defendant to pay costs and attorney’s fees for the appeal, claiming that it is frivolous. See Practice Book § 4184. We find no error on the appeal and deny the plaintiff’s request for sanctions.

On December 17, 1987, the plaintiff son instituted this action against the defendant father requesting injunctive relief and damages for the misappropriation of the plaintiff’s trade name, interference with his roofing business, and unfair methods of competition and deceptive trade practices in violation of General Statutes § 42-110b, which is part of the Connecticut Unfair Trade Practices Act (CUTPA). The defendant counterclaimed that the plaintiff had breached a partnership agreement. The plaintiff’s complaint alleged the following: The plaintiff has a roofing business at 641 Farmington Avenue, Hartford. The defendant has a roofing business at 510 Burritt Street, New Britain. The plaintiff, pursuant to General Statutes § 35-1, filed trade name certificates in the New Britain and Hartford town clerks’ offices, indicating that he was doing business as Ales Roofing Co., Ales Roofing & Caulking and A. Ales Company, all at the Hartford address, The defendant had not filed any trade name certificates but had been utilizing such names as Ales Roofing, A. Ales Co. and Ales Roofing Co. The defendant induced the Southern New England Telephone Company to substitute his business telephone number and address in the plaintiff’s “Ales Roofing Co.” advertisement in the 1987-88 Hartford telephone directory Yellow Pages. The defendant also placed an advertisement for “Ales Roofing” in the Yellow Pages of the 1987-88 Bristol and New Britain telephone directories that was similar to the plaintiffs. The plaintiff wanted to advertise his roofing business in the then upcoming 1988-89 Hartford telephone directory Yellow Pages without confusing the public as to which business was being contacted. The plaintiff also alleged that certain conduct committed by the defendant was in violation of CUTPA.

On December 22,1987, the parties appeared before the trial court, Shaughnessy, J., and agreed that the defendant would not file an advertisement in the 1988-89 Hartford telephone directory Yellow Pages using the name “Ales.” In accordance with this agreement, the court issued a temporary injunction. The matter also was placed on the expedited trial list.

In February, 1988, the plaintiff filed interrogatories and requests for production. When the defendant did not comply within thirty days, the plaintiff filed a motion for sanctions on March 16. The defendant attempted to comply with the discovery on March 27. On March 28, however, the court, Allen, J., ordered the defendant to supply a birth certificate and Internal Revenue Service tax returns for the years 1983 through 1987, answer interrogatory number eleven and answer the complaint within two weeks or default would enter. The plaintiff filed a second motion for sanctions for failure to comply with the March 28 discovery order, and for failure to respond fairly to his interrogatories and requests for production. On April 19, the court, Hammer, J., determined that sanctions were warranted. Judge Hammer ordered the entry of default against the defendant on the plaintiffs complaint, and dismissed the defendant’s counterclaim. He also expanded the temporary injunction, prohibiting the defendant from placing advertisements with the name “Ales” in the then upcoming Yellow Pages of the Bristol and New Britain telephone directories.

The defendant never moved to open the default before judgment; Practice Book § 376; and the only remaining issue was damages. On July 8, after a hearing in damages, the court, Hammer, J., rendered judgment for the plaintiff, issuing a permanent injunction that prevented the defendant from using the word “Ales” to symbolize, promote, or advertise any business in the state or from using “Eastern Renovating” or “A. W. Campbell” as names for his business unless he certified them as fictitious trade names before August 8, 1988, and awarding the plaintiff damages and attorney’s fees.

In his appeal, the defendant claims that the trial court abused its discretion in ordering the entry of default and the dismissal of his counterclaim for failure to respond to the plaintiff’s discovery requests. We do not agree.

The defendant’s claim is that the trial court erred in entering the default and dismissing his counterclaim. The record reveals, however, that the court followed the appropriate rule of practice, namely, Practice Book § 231. “This section provides in pertinent part that ‘[i]f any party has failed to answer interrogatories or to answer them fairly ... or has failed to respond to requests for production . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following: (a) [t]he entry of a nonsuit or default against the party failing to comply . . . .’ Elliss v. Ronning, 11 Conn App. 662, 663, 528 A.2d 1174 (1987); and “(e) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.” Practice Book § 231.

The court’s decision on the ordering of such sanctions of the entry of default and dismissal of the defendant’s counterclaim rests within the sound discretion of the court. Rullo v. General Motors Corporation, 208 Conn. 74, 78, 543 A.2d 279 (1988); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 107, 476 A.2d 1074 (1984) . “In reviewing a claim that this discretion has been abused ‘ “ ‘the unquestioned rule is that “great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” . . .’ ” ’ ” (Citations omitted.) Rullo v. General Motors Corporation, supra, 78. “ ‘[T]he ultimate issue is whether the court could reasonably conclude as it did. E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 (1959).’ Timm v. Timm, 195 Conn. 202, 207, 487 A.2d 191 (1985) .” Rullo v. General Motors Corporation, supra, 79. On the basis of our review of the record, we conclude that the trial court did not abuse its discretion in imposing these two sanctions upon the defendant.

The record reveals that these sanctions were ordered on the basis of the defendant’s failure to comply fairly with the plaintiffs discovery requests and the March 28 discovery order. At the April 19 argument, Judge Hammer indicated that there were a number of serious deficiencies in the defendant’s pleadings. For example, when Judge Hammer imposed these sanctions, he questioned the defendant about his response to interrogatory number eleven. This interrogatory asked whether the defendant had ever been convicted of a crime. The defendant’s response was “not applicable.” In her March 28 order, Judge Allen had directed the defendant to answer this interrogatory, but no further answer was given in the two weeks he had to comply. When Judge Hammer asked the defendant in court, however, the defendant stated that he had in fact been convicted of forgery. On the basis of these and other inconsistencies found by the trial court, the trial court did not abuse its discretion in ordering sanctions.

Finally, we consider the plaintiff’s renewed motion for sanctions for a frivolous appeal, and his request for attorney’s fees and costs in defending the appeal.

“The presentation to the court ... of a frivolous appeal or frivolous issues and defenses on appeal . . . will subject an offender, at the discretion of the court, to appropriate discipline, including the imposition of a fine pursuant to Gen. Stat. Sec. 51-84, and costs and payment of expenses including attorney’s fees to the opposing party.” Practice Book § 4184. “The definition of a frivolous appeal is set forth in the comment to Rule 3.1 [of the Rules of Professional Conduct], wherein it is stated that ‘[t]he action is frivolous . . . if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument ... for an extension, modification or reversal of existing law.’ We hereby adopt this test, and further hold that the burden of proof lies on the moving party to establish the frivolity of the appeal.” Texaco, Inc. v. Golart, 206 Conn. 454, 463-64, 538 A.2d 1017 (1988).

On the present record, we find that the plaintiff has not met his burden of proof. As to the first prong, he has not established facts tending to show that the defendant brought this appeal for the purpose of harassing or maliciously injuring the plaintiff. See id., 464. As to the second prong, we cannot say that the defendant’s pursuit of the appeal was frivolous; the defendant’s argument on appeal did have some merit, even though it did not warrant reversal. See id.

There is no error, and the plaintiff’s motion for sanctions is denied.

In this opinion the other judges concurred.

       On February 11, 1988, the plaintiff filed an amended complaint. Any difference between the original complaint and the amended complaint is inconsequential for the purpose of stating the plaintiffs allegations.

       The defendant also raises two other claims. First, the defendant claims that “it was error for the trial court to permit the injunction to continue.” Because the defendant offers no argument or case support for this assertion, we decline to review it for failure to brief the issue. See Alderman v. RPM of New Haven, Inc., 20 Conn App. 566, 569 n.1, 568 A.2d 1068 (1990). The defendant also requests that this case be remanded to permit evidence of the existence of a partnership agreement and consideration of his counterclaim. As to the consideration of evidence on this counterclaim, because we find that the court did not abuse its discretion in dismissing the defendant’s counterclaim, we need not reach this claim.

       For the purposes of the counterclaim, the defendant is considered the plaintiff.

       We note that the defendant’s counsel filed a motion to withdraw with this court and that this motion was denied on December 19, 1988.