author: SPEAR, J.

text:
    CHRISTOPHER C. NOBLE v. CARL E. WHITE ET AL.
    (AC 20809)
    Spear, Mihalakos and Flynn, Js.
    Argued June 7
    officially released October 2, 2001

      Christopher C. Noble, pro se, the appellant (plaintiff).

      Robert P. Hanahan, for the appellees (defendants).
   Opinion

SPEAR, J.

The plaintiff, Christopher C. Noble, appeals from the judgment of the trial court, rendered following a trial to the court, awarding him $6000 in legal fees for his representation of the defendants, Carl E. White and Kathryn White. The plaintiffs sole claim is that the court improperly found that the attorney’s fee agreement was void and unenforceable. We reverse the judgment of the trial court.

The court found the following facts. In 1992, the defendants found themselves in financial difficulties, facing the imminent foreclosure of their home, with a law day set in September, 1992. A financial consulting service, which had come to their attention through an advertisement, referred them to the plaintiff.

On August 20, 1992, the plaintiff and the defendants signed a retainer agreement for a chapter 13 filing, specifying a lump sum fee, but stating that “additional fees may be charged.” Several years later, after many transactions relating to the defendants’ financial affairs, the plaintiff continued billing the defendants for postconfirmation services. In January, 1997, the plaintiff advised the defendants that the bank holding their mortgage had revived foreclosure proceedings. In the meantime, relations between the plaintiff and the defendants had deteriorated.

On July 24,1997, facing a court hearing on a renewed motion to reopen the foreclosure proceedings, the plaintiff met the defendants in court, confronted them with an installment agreement and told them that unless they signed it then and there, he would not represent them and they would lose their home. They signed the agreement, the foreclosure action was reopened and an agreement was eventually worked out through the refinancing of the delinquent mortgage.

The installment agreement recited an array of legal services performed by the plaintiff commencing in September, 1994, and fixed the amount of fees previously incurred and the balance owed as of June 28, 1997, at $5208. The agreement also provided for installment payments of $350 monthly, with provisions for acceleration, attorney’s fees and interest if any installment was more than five days delinquent. According to the plaintiffs records, the defendants thereafter made irregular payments to the plaintiff totaling $1826, with the last payment on October 14, 1997. Subsequent to June 28, 1997, the plaintiff claims to have performed additional services for the defendants that left a balance due the plaintiff of $10,789.

The court concluded that there was sufficient evidence to find that the installment agreement was suspect and unenforceable because of the circumstances under which it was presented and signed. The court found that the plaintiff claimed that he sent a copy to the defendants in June, 1997, but that they denied receipt. The court ruled: “When an attorney prepares a document for his benefit, presents it to his clients for the first time in a courthouse, where a motion to reopen foreclosure of their home has been scheduled, and threatens to withdraw his services if the document is not signed immediately, thereby holding over their heads the loss of their home, this amounts to duress. No opportunity was given to defendants to consult with another attorney. Contracts made by an attorney with an existing client are scrutinized by our courts with great care, and if there are any doubts they will be resolved in favor of the client. McKnight v. Gizze, 107 Conn. 229, 235 [140 A. 116] (1928); DiFrancesco v. Goldman, 127 Conn. [387, 16 A.2d 828] (1940). The plaintiff cannot be permitted to recover legal fees on the basis of this installment agreement.” Although the court found the installment agreement unenforceable, it granted relief based on quantum meruit and awarded the plaintiff $6000. This appeal followed.

The plaintiffs sole claim is that the court improperly concluded that the installment agreement was obtained under duress and, therefore, was void and unenforceable. Specifically, he argues that the court’s conclusion of duress is based on clearly erroneous fact-finding. We agree.

“[0]ur function ... is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Twachtman v. Hastings, 52 Conn. App. 661, 668, 727 A.2d 791, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999).

“Contracts between attorney and client fall naturally into at least two categories: (1) those made before the relationship of attorney and client has commenced or after the relationship has terminated; and (2) those made during the relationship. The agreement between the plaintiff and the defendant, whatever it was, was made during the existence of the relationship. Courts of equity scrutinize transactions made between attorney and client during the existence of the relationship with great care and if there are doubts they will be resolved in favor of the client. McKnight v. Gizze, [supra, 107 Conn. 235]; Mills v. Mills, 26 Conn. 213, 219 [1857], Nevertheless, an attorney is not prohibited from contracting with his client respecting his fees, and a contract thus made after the commencement of the relationship of attorney and client is not per se void but will by reason of the confidential nature of the relationship be closely scrutinized by the court. No undue advantage can be taken of the relationship of attorney and client in order to procure such a contract; but where the parties are free to contract, their agreement should not be set aside or the agreed compensation withheld unless fraud has been perpetrated, undue influence exerted, material facts affecting the subject matter misrepresented or suppressed, or advantage taken of a position of confidence and trust to obtain an unconscionable advantage over the party, in which case a court of equity may grant relief from such oppression, and the attorney will be confined to a reasonable charge for compensation without regard to the attempted fixation of the value of his services.” (Internal quotation marks omitted.) DiFrancesco v. Goldman, supra, 127 Conn. 392-93.

The defendants claimed undue influence as a special defense. Although the court failed to rule on the defendants’ undue influence special defense, it did conclude that the installment agreement was obtained under duress and, thus, was void. Although the undue influence and duress doctrines are separate and distinct, they are often treated and discussed together. See, e.g., Jenks v. Jenks, 34 Conn. App. 462, 468, 642 A.2d 31 (1994), rev’d on other grounds, 232 Conn. 750, 657 A.2d 1107 (1995). We, therefore, will treat the defendants’ special defense of undue influence as one for duress.

For a party to demonstrate duress, it “must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim.” Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 549-50 n.15, 661 A.2d 530 (1995). “The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will.” (Internal quotation marks omitted.) Zebedeo v. Martin E. Segal Co., 582 F. Sup. 1394, 1417 (D. Conn. 1984).

Where a party insists on a contractual provision or a payment that he honestly believes he is entitled to receive, unless that belief is without any reasonable basis, his conduct is not wrongful and does not constitute duress or coercion under Connecticut law; see Weiner v. Minor, 124 Conn. 92, 95, 197 A. 691 (1938); Zebedeo v. Martin E. Segal Co., supra, 582 F. Sup. 1417; and the fact that consent was given, or payment was made under protest does not establish duress. Smedley Co. v. Lansing, 35 Conn. Sup. 578, 579, 398 A.2d 1208 (1978).

The defendants claimed in their special defense that the plaintiff committed a wrongful act or threat in coercing the signing of the installment agreement on the courthouse steps on the day of a hearing on the motion to reopen the foreclosure judgment by threatening that he would not proceed with the motion unless the agreement was signed.

The plaintiff challenges the court’s findings of fact that: “On July 24, 1997, facing a court hearing on a renewed motion to reopen the foreclosure, plaintiff met defendants in court, confronted them with the installment agreement and told them that unless they signed it then and there he would not represent them and they would lose their home.” Specifically, the plaintiff argues that the court improperly found duress in that the installment agreement was presented for the first time in the courthouse on the day of the hearing. We agree.

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Bugryn v. Bristol, 63 Conn. App. 98, 103, 774 A.2d 1042, cert. denied, 256 Conn. 927, 776 A.2d 1143 (2001).

On the basis of our review of the entire evidence, we are left with the definite and firm conviction that a mistake has been committed with regard to the court’s finding that the installment agreement was presented to the defendants for the first time in the courthouse on the day of the hearing on the motion. The record clearly shows that the defendants received a final copy of the installment agreement by facsimile on July 22, 1997. The fact that the actual copy that the parties signed on July 24, 1997, was the faxed copy that the defendants had received on July22,1997, shows that the defendants were not “presented” with the installment agreement for the first time on July 24, 1997, as concluded by the court. Furthermore, the record shows that the installment agreement was signed four days before the hearing, on July 24, 1997, and the hearing was held on July 28, 1997.

There were no further allegations of wrongful acts in support of the defendants’ special defense of “duress.” We conclude, therefore, that the court improperly concluded that the plaintiffs installment agreement was obtained under duress and, therefore, was void and unenforceable.

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

In this opinion the other judges concurred.

       The defendants filed a two count counterclaim for intentional infliction of emotional distress and for an alleged violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The trial court rendered judgment for the plaintiff on the counterclaim, and the defendants did not appeal. Our reversal of the judgment on the complaint does not affect the trial court’s judgment on the counterclaim.

       The defendants further claimed in support of their special defense of “duress” that the plaintiff committed a wrongful act or threat when he indicated, in writing, that a motion to withdraw had been filed in the foreclosure action, when in fact, no such motion was filed. The defendants argue that they were led to believe that the plaintiff would withdraw instead of pursuing the motion to reopen and that they would lose their home.

        The court’s memorandum of decision failed to address this alleged wrongful act. Because the claim was raised in a special defense, the defendants had the burden to request the court to address their claim or to request an articulation as to this special defense. See Spector v. Konover, 57 Conn. App. 121, 123 n.4, 747 A.2d 39, cert. denied, 254 Conn. 913, 759 A.2d 507 (2000). The defendants failed to do so, and, therefore, we need not address it.


source: Caselaw Access Project

license: Public Domain

text:
    EDGAR TATUM v. COMMISSIONER OF CORRECTION
    (AC 20432)
    Lavery, C. J., and Schaller and Spear, Js.

      Argued June 13
    officially released October 2, 2001

      Felix Esposito, for the appellant (petitioner).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, assistant state’s attorney, for the appellee (respondent).
   Opinion

SPEAR, J.

Pursuant to this court’s granting of certification, the petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He claims that, contrary to the court’s decision, his trial counsel was ineffective because, at the petitioner’s criminal trial, counsel failed (1) to call three witnesses whose testimony would have been helpful to the defense, and (2) to investigate and present an alibi defense. We affirm the judgment of the habeas court.

In State v. Tatum, 219 Conn. 721, 595 A.2d 322 (1991), our Supreme Court on direct appeal affirmed the petitioner’s underlying murder conviction and recited the following facts that the jury reasonably could have found in the criminal trial. The defendant in February, 1988, shot and killed Larry Parrett in Parrett’s home in Waterbury and wounded Anthony Lombardo, who had approached the defendant while he was knocking on Parrett’s door. When Parrett’s girlfriend, Tracy LeVasseur, opened the door, the defendant forced himself and Lombardo into the living room where Parrett and LeVasseur were smoking cocaine. LeVasseur and Lombardo left the room when the defendant and Parrett began to argue. A few moments later, Lombardo returned to find the defendant pointing a gun at Parrett. Lombardo stepped between the two men, but the defendant nevertheless fired four shots, which wounded Lombardo in the shoulder and killed Parrett.

That night, Lombardo picked out of a photographic array a photograph of a black man named Jay Frazer as the man who had shot him and Parrett. That same night, LeVasseur also selected Frazer’s photograph from an array that the police showed to her. The defendant’s photograph was not in either array. Approximately one week later, LeVasseur went to the Waterbury police and advised them that she had identified the wrong man. After a lineup in which Frazer participated, Le Vasseur told the police that he definitely was not the assailant. Thereafter, LeVasseur chose the defendant’s photograph from a photographic array as the person who had shot Parrett and Lombardo. Lombardo made no photographic identification, explaining that he preferred to see the parties in person. Lombardo and LeVasseur identified the defendant at the probable cause hearing and at trial as the man who had shot Lombardo and Parrett.

The habeas court found the following additional facts. The petitioner’s trial counsel, Thomas K. McDonough, was appointed as a special public defender to represent the petitioner. At the time of his appointment, McDonough had been a member of the Connecticut bar for approximately ten years and had handled a number of court trials as well as a number of civil appeals. Prior to representing the petitioner, McDonough’s criminal trial experience was limited to two jury trials in felony cases. McDonough’s recollection was understandably less than complete at the habeas hearing, as more than ten years had elapsed by that time.

McDonough had met with the petitioner on “numerous occasions.” McDonough also hired an investigator, and both of them met with the petitioner on at least one occasion prior to trial. Although the principal identification witnesses, LeVasseur and Lombardo, both knew the petitioner and Frazer, the petitioner initially was reluctant to discuss with McDonough his involvement with the witnesses or the victims. The petitioner became more forthcoming as time passed. Some of the information provided by the petitioner was inaccurate, and some could not be verified. That particularly was so with regard to the various alibi defenses that the petitioner discussed with McDonough. Further facts will be set forth as necessary.

We first note our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert. denied, 254 Conn. 943, 761 A.2d 760 (2000).

For the petitioner to prevail, he must prove both that trial counsel’s representation fell below an objective standard of reasonableness, making the performance deficient; Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989); and that the deficient performance actually prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The performance yardstick is whether counsel’s performance was “reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn. App. 695, 703, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995).

In Strickland, the United States Supreme Court stated that “[¡Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citation omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689.

As to the prejudice component of the Strickland test, a successful petitioner must demonstrate that there is a reasonable probability that, but for counsel’s errors, the results of the proceeding would have been different. Copas v. Commissioner of Correction, 234 Conn. 139, 147, 662 A.2d 718 (1995). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. 694. With that standard of review in mind, we now turn to the specific claims of the petitioner.

I

THE FAILURE TO CALL CERTAIN WITNESSES

The petitioner claims that his trial counsel was ineffective in not calling three witnesses to testify at the criminal trial. “The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.” State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985). We now turn to the petitioner’s claims with regard to each witness separately.

A

The petitioner first claims that his trial counsel was ineffective in not calling Ronald Gotay to testify at the criminal trial. In addition, the petitioner claims that counsel was remiss in failing even to investigate Gotay. As those claims are intertwined, we will discuss them together.

Gotay gave four statements to the police regarding the shooting incident, three of which he signed. Gotay was seventeen years old at the time of the statements and had been arrested on unrelated charges of possession of narcotics. The first statement is contained in the notes of a police detective dated March 24, 1988. The notes indicate that Gotay, upon his arrest, had stated that he was on the second floor of 24 Cossett Street, where Parrett lived on the first floor, when Parrett was killed and Lombardo was shot. He stated that he saw “Frezie” walk away from the house, but he did not want to get involved because he did not want “Frezie” to shoot him.

Gotay gave a signed and sworn statement on March 31, 1988. In that statement, Gotay stated that he heard three gunshots coming from the first floor at 24 Cossett Street while he was on the second floor at the same address. He saw a black male, whom he knew as Frazer, walking away from 24 Cossett Street. Frazer walked toward Orange Street and made a left turn on Orange Street before Gotay lost sight of him. Gotay’s statement also recited that Parrett had told Gotay that Frazer thought that Parrett had “ratted Frazer out on a recent drug bust.”

On April 7, 1988, Gotay gave a second sworn statement in which he stated that he was at 24 Cossett Street on the second floor with Manuel Vargas and a person whom he knew only as Eli. They all heard gunshots coming from the first floor. On April 27, 1988, Gotay gave a third sworn statement in which he stated that the statements he previously had given were based solely on what other people had told him and not on his knowledge. He fabricated the statements because the police told him that if he helped them with the murder, they would help him with his narcotics case. Gotay admitted that he was not at Parrett’s house at 24 Cossett Street on the night of the incident. He also stated that he never saw Frazer on that evening.

The petitioner claims that trial counsel should have investigated Gotay and called him to testify despite his recantation because the statements could only have helped the petitioner’s defense.

The court found that the petitioner failed to carry his burden of proof under Strickland as to his allegation that trial counsel had failed to properly investigate Gotay because the investigator had been told by trial counsel to take a statement from Gotay and there was no evidence submitted about the results of that investigation. Neither the investigator nor Gotay were called to testify in the petitioner’s habeas case. The court noted in its memorandum of decision that trial counsel's strategy was “to demonstrate that the police were correct when they arrested Frazer for the crime.” Trial counsel adequately explained that he had made a decision that Gotay’s statements about police inducement would call into question the investigative techniques of the police and run counter to counsel’s theory of defense. The court also found that the decision not to call Gotay was “not below the standard of a reasonably competent criminal defense attorney.” The court concluded that the value of Gotay’s testimony was outweighed by his contradictory statements and the number of other persons who would have been available to impeach the substance of his statements impheating Frazer.

Furthermore, the court found that the persons whom Gotay indicated that he was with at the time he was on the second floor at 24 Cossett Street never gave any statements or indication of having been with or having even seen Gotay on the night of the shooting. Gotay testified that he was with “Eh,” “Robbin” and Vargas. The court noted that Eh did not testify at the trial, but that Vargas and Robert Saunders did testify. The court stated that “[t]hey were both questioned as to who was present that night, and their answers were consistent with one another. Neither testified to the presence of Gotay.”

We conclude that the court’s fact-finding was not clearly erroneous with respect to trial counsel’s decision not to call Gotay to testify at the criminal trial. In considering all of the circumstances, that was a strategic decision that was properly made by trial counsel at the time.

Moreover, the court found that the petitioner had failed to demonstrate that he was prejudiced by the failure to call Gotay. The court did not give any reasons for that conclusion; the petitioner, however, did not file a motion for articulation. The petitioner argues in his principal brief that it is “clear that prejudice resulted from this failure to investigate.” The court found that the petitioner failed to carry his burden of showing inadequate investigation because “no evidence was offered at the habeas hearing indicating that the request to investigate was not accomplished or that it was only partially completed, nor was [the investigator] called as a witness at the habeas hearing.”

We conclude that the petitioner’s claims with respect to the failure to investigate and to call Gotay to testify are without merit.

B

The petitioner next claims that trial counsel was ineffective in failing to call Miguel Vargas to testify at the criminal trial. The court stated that Vargas had claimed “in a statement given to the police that he heard three or four gunshots on February 25, 1988, at about 11:15 p.m. He further stated that he witnessed an individual described as a black male, five feet, eight inches tall, running from a house approximately three houses away from 30 Cossett Street, where Miguel Vargas was standing at the time.” That description did not match that of the petitioner, whom the court found was at least six feet, one inch tall. The court also found that it did not match Frazer’s description because Frazer was considerably smaller than five feet, eight inches tall. The court found that trial counsel directed the investigator to obtain a statement from Vargas. Neither the investigator nor Vargas was called to testify at the habeas hearing, and the court concluded that it could only speculate as to what Vargas’ testimony would have been.

Although the petitioner’s claim presents a close question, we conclude that the habeas court’s fact-finding was not clearly erroneous in leading to that court’s conclusion that the petitioner failed to carry his burden of proof with respect to the failure to call Vargas to testify. Trial counsel testified that he considered that the statement of Vargas described neither the petitioner nor Frazer. Trial counsel wanted a consistent theory of defense, namely that Frazer was the killer. Trial counsel adequately explained that he did not want to present an inconsistent theory that some other person other than Frazer was the actual shooter. That was a strategic decision that trial counsel was entitled to make.

C

The petitioner also claims that trial counsel should have called John Hilton to testify. Trial counsel interviewed Hilton at the prison where he was incarcerated and was told by Hilton that when he and Frazer were incarcerated at the same facility, he had heard Frazer state that he had “set up” the defendant. After interviewing Hilton, trial counsel concluded that his statements were not rehable because he later changed the statement to indicate that he may have heard the “set up” claim from an unidentified third person rather than directly from Frazer.

Although the petitioner claims that the court’s conclusions were clearly erroneous with respect to Hilton changing his statement, we disagree. Trial counsel testified that Hilton’s “story changed a little bit . . . [in] that maybe he didn’t hear it, but maybe somebody else had heard these things, but he wasn’t sure who this other person might have been . . . .” The petitioner claims that further testimony from McDonough indicated “[i]t did not change to the extent that I indicated that there might have been someone else other than Mr. Hilton [who] heard this, but I — there were some gaps in the story that came out while I was questioning Mr. Hilton that caused me to have some question about the veracity of his story, let me put it that way.”

The court is the sole judge of credibility, and it is the trier’s function to resolve conflicting evidence. The petitioner failed to call Hilton to testify, and we cannot conclude that it was clearly erroneous for the court to have concluded that McDonough had good cause to find Hilton unreliable.

II

THE ALIBI DEFENSE

The petitioner’s last claim is that trial counsel was ineffective in not investigating and presenting a potential alibi defense. That claim also is without merit.

The court found that the petitioner’s testimony with respect to potential alibi defenses lacked credibility. The court found that petitioner had “told counsel that at the time of the shooting that he was in California. . . . The petitioner also claimed that he told counsel he was in Connecticut with his son’s mother. Alternative alibi defenses do not add to the petitioner’s credibility. It does, however, support McDonough’s testimony that the petitioner gave him various alibis that were not able to be verified and [that] changed at various stages after the arrest.”

Trial counsel testified that he tried to verify the alibi information that the defendant had given him, but that it was either not verifiable or was inaccurate. That is an adequate explanation for not calling the alibi witnesses. None of the purported alibi witnesses testified at the habeas hearing to establish what trial counsel could have determined from an investigation or what they would have testified about at trial. The court properly concluded that counsel was not ineffective in failing to present an alibi defense.

The judgment is affirmed.

In this opinion the other judges concurred.


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. TIMOTHY J. SOLEK
    (AC 20828)
    Spear, Dranginis and Hennessy, Js.
    Argued May 31
    officially released October 2, 2001

      Lisa J. Steele, special public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satti, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Timothy J. Solek, appeals from the trial court’s judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a and 53a-8, and sexual assault in the second degree in violation of General Statutes § 53a-71. On appeal, the defendant claims that (1) the evidence was insufficient to support the conviction of sexual assault in the second degree, (2) the court improperly failed to instruct the jury on manslaughter in the first degree and manslaughter in the second degree as lesser offenses included within the greater offense of murder, and (3) the court improperly instructed the jury to disregard certain testimony and criticized the defendant’s counsel, thereby depriving the defendant of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Late in the night of May 12, 1995, the defendant and Scott Smith, after an evening of drinking together, decided to go to the victim’s apartment. The victim, a twenty-nine year old mentally disabled woman, was an acquaintance of theirs. At first, she was not interested in letting them in; however, after some persistence, they went inside. Once inside, the defendant drank beer despite the victim’s protests. He continued to antagonize her and made fun of her. The two then began to argue and she ordered him out. The defendant then said, “f*** you bitch,” and threatened that he “would tie her up and throw her in the closet and bum her.” A pushing match ensued. Smith then got behind the victim and started choking her. Meanwhile, Smith yelled to the defendant to get a knife, but finding none, the defendant grabbed a metal can opener and stabbed her in her head with it. Because she still was fighting and screaming, the defendant grabbed a clothes iron with his shirt and hit her in the head with it. He then kicked her several times while she spit up blood.

The defendant then shut off the television with his shirt so as not to leave a fingerprint. He also locked the door. The defendant watched Smith remove the victim’s pants and sanitary napkin, and perform cunnilingus on her, which, according to the defendant’s written statement to the police, sexually aroused the defendant. He ordered Smith out of his way, and forcibly had vaginal and anal sex with the victim while Smith masturbated.

Finally, after some twenty minutes and after hearing an ambulance siren in the distance, Smith wanted to leave. The two threw some empty beer cans on the front lawn and left for the defendant’s apartment. After Smith borrowed a clean pair of pants from the defendant and left, the defendant called the police “because I knew that I helped kill her, but I didn’t kill her, I tried to stab her but it was self-defense.” The defendant gave police a graphic and detailed written statement of the events.

Medical evidence offered at trial established that the cause of death was strangulation. It further indicated that the victim suffered several injuries to her face, including oval shaped lacerations and bruises in a triangular pattern consistent with a clothes iron, and bruising and lacerations in and around her vaginal area consistent with blunt force trauma. Those injuries occurred either before or at about the same time as her death.

The defendant was arrested on May 14, 1995. After a trial to a jury, the defendant was convicted of murder and sexual assault in the second degree; he was acquitted of felony murder, sexual assault in the first degree and capital felony. The defendant was sentenced to a total effective term of fifty-five years imprisonment. This appeal followed.

I

The defendant first claims that the evidence was insufficient to convict him of sexual assault in the second degree because the medical evidence established that the victim was already dead, and not merely unconscious, at the time of the assault. We disagree.

The defendant properly preserved his challenge to the sufficiency of the evidence to convict him of sexual assault in the second degree by timely excepting to the court’s denial of his motion for a judgment of acquittal. See State v. Hufford, 205 Conn. 386, 397, 533 A.2d 866 (1987).

“In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citations omitted; internal quotation marks omitted.) State v. White, 64 Conn. App. 126, 132-33, 779 A.2d 776, cert. denied, 258 Conn. 910, 782 A.2d 1251 (2001).

Pursuant to § 53a-71 (a), “[a] person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (3) such other person is physically helpless . . . .’’General Statutes § 53a-65 (6) defines “physically helpless” as a person who is “unconscious or for any other reason is physically unable to communicate unwillingness to an act.”

We conclude that the jury reasonably could have found that the victim was physically helpless at the time of the assault. At trial, the state presented the testimony of the deputy chief medical examiner for the state, Edward T. McDonough. He testified that the victim died from asphyxia due to neck compression. He further testified, however, that the injuries the victim suffered to her face, including pattern injuries consistent with a clothes iron and the oval shaped indentations, occurred at about the same time as her death. He so testified on the basis of swelling in that area because swelling “is a vital process.” McDonough testified that the bruises and injuries that the victim suffered to her vaginal area occurred at or near the time of death. He testified on cross-examination that bruising may, in rare cases, occur postmortem; however, swelling must occur antemortem. Consequently, it was reasonable for the jury to conclude that the injuries the victim sustained as a result of the defendant’s assault occurred antemortem. It was reasonable for the jury to infer that the victim was rendered unconscious by either strangulation by Smith, the defendant’s striking her in the head with a clothes iron and kicking her, or a combination thereof and that therefore she was physically helpless at the time of the assault.

Even if we assume arguendo that the victim was dead at the time of the assault, we are not persuaded that the victim could not be considered “physically helpless” because she was deceased.

“Our analysis is governed by well established principles of statutory construction. Statutory construction is a question of law and, therefore, our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .

“When the statute in question is one of a criminal nature, we are guided by additional tenets of statutory construction. First, it is axiomatic that we must refrain from imposing criminal liability where the legislature has not expressly so intended. . . . Second, [criminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . Finally, unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 788-89, 772 A.2d 559 (2001).

“ ‘The rule of strict construction, however, does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent. . . . Common sense should be applied to the language of a penal statute, particularly if otherwise absurdity or frustration of the evident design of the legislature results.’ ” State v. Albert, 50 Conn. App. 715, 726, 719 A.2d 1183 (1998), aff'd, 252 Conn. 795, 750 A.2d 1037 (2000).

The resolution of whether the victim could be considered physically helpless when she was deceased turns on the definition of physically helpless in § 53a-65 (6). We conclude that the statutory language is clear and unambiguous. General Statutes § 53a-65 (6) clearly provides that a person is physically helpless if such person is ‘‘for any . . . reason . . . physically unable to communicate unwillingness to an act.” (Emphasis added.) Clearly, a person who is deceased is physically unable to communicate an unwillingness to act. The defendant’s interpretation would render absurd results, as a defendant would avoid culpability for a sexual assault in the second degree when the assault commences when the victim is alive, but concludes when the victim dead.

Our Supreme Court rejected a similar notion in State v. Usry, 205 Conn. 298, 533 A.2d 212 (1987), in which, as in this case, forensic evidence established that the defendant had intercourse with the victim near the time of death. The court wholly rejected the defendant’s argument that he could not be guilty of sexual assault in the first degree because his victim was deceased and that, at most, he could be guilty only of sexual assault in the fourth degree. Id., 317. The court stated, “It would be strange indeed if the penalty under our law would be less severe if the defendant sexually assaulted the victim and in so doing caused her death than it would be if he sexually assaulted the victim and did not cause her death. That would . . . encourage assailants to kill their victims when committing a sexual assault. Sexual assault in the fourth degree occurs when an assailant commits sexual assault on a dead body, but the assailant is not involved in causing the victim’s death. When, however, the assailant kills the victim in order to commit a sexual assault, he has committed sexual assault in the first degree.” Id., 317-18.

Similarly, in State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985), the court stated that although “[sexual assault in the first degree] does not include sexual intercourse with a victim whom the assailant finds unconscious,” a defendant is guilty of sexual assault in the first degree when the defendant strangles the victim into a state of unconsciousness.

In this case, the defendant was charged with and convicted of murdering the victim by aiding Smith in causing her death by striking her with an iron, stabbing her with a can opener and kicking her repeatedly. We conclude that, the defendant having played such a role in causing the victim’s death, his claim that he could not be found guilty of sexual assault in the second degree is wholly without merit.

II

The defendant next claims that the court abused its discretion in failing to charge the jury on manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1) as lesser offenses included within the greater offense of murder. We disagree.

“A defendant does not have a fundamental constitutional right to a jury instruction on every lesser included offense . . . rather, the right to such an instruction is purely a matter of our common law. . . . Under [State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980)], [a] defendant is entitled to an instruction on a lesser offense if, and only if ... (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Citation omitted; internal quotation marks omitted.) State v. Sotomayor, 61 Conn. App. 364, 378-79, 765 A.2d 1, cert. granted on other-grounds, 255 Conn. 952, 770 A.2d 32 (2001).

The state first argues that the defendant did not satisfy the first prong of Whistnant because his request to charge did not sufficiently state the facts supporting the lesser included offenses. We agree with the state.

“A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book [§ 42-18]. . . . Practice Book § 42-18 (a) provides in relevant part: When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . . Our Supreme Court has held that in the context of a written request to charge on a lesser included offense, [the] requirement of [Practice Book § 42-18] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.” (Citations omitted; internal quotation marks omitted.) State v. Corbin, 61 Conn. App. 496, 520-21, 765 A.2d 14, cert. granted on other grounds, 256 Conn. 910, 911, 772 A.2d 1124, 1125 (2001). “Amere general statement of the entire incident at issue does not comply with our rules of practice.” State v. Hall, 213 Conn. 579, 591-92, 569 A.2d 534 (1990); see also State v. Corbin, supra, 521 (defendant merely recited relevant statutory sections pertaining to unlawful restraint in second degree and comparison to charge of kidnapping and did not place requests in separately numbered paragraphs); State v. McPhee, 58 Conn. App. 501, 516-17, 755 A.2d 893 (defendant merely stated facts alleged in information and equated facts with lesser included offense), cert. denied, 254 Conn. 920, 759 A.2d 1026 (2000).

“While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved . . . the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. The minor burden of cooperation imposed by [Practice Book § 42-18] is neither unreasonable nor novel.” (Internal quotation marks omitted.) State v. DeBarros, 58 Conn. App. 673, 694, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000).

In this case, the defendant’s request to charge referred to his statement to the police, but to no particular facts stated therein. Thus, the defendant did not provide the factual predicate necessary for the charges in his request. His request is a bald assertion that the evidence supports the charges requested. Although it is necessary to be concise, the defendant must do more than point to particular exhibits or recite facts; he must analyze the law as it applies to those facts such that the court may properly rule on his request. See State v. McPhee, supra, 58 Conn. App. 517. The defendant’s request also was inadequate in that it did not place the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree in separate paragraphs. Rather, they were lumped together in one paragraph.

We therefore conclude that the defendant failed to make a proper request to charge under the first prong of Whistnant. Even if the defendant had satisfied the first prong, we conclude that his claim nevertheless would fail under the third and fourth prongs of Whistnant

“For the third and fourth requirements of Whistnant to be satisfied, there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense.” (Emphasis in original.) State v. Sotomayor, supra, 61 Conn. App. 379.

The offense of murder requires that the defendant intentionally cause the death of another; General Statutes § 53a-54a (a); while the offense of manslaughter in the first degree provides that a person is guilty when, with intent to cause serious physical injury to another person, he causes the death of such person; General Statutes § 53a-55 (a) (1); or under circumstances evincing extreme indifference to human life, he recklessly engages in conduct that creates a grave risk of death and causes the death of another. General Statutes § 53a-55 (a) (3). Manslaughter in the second degree requires the defendant to have recklessly caused the death of another person. General Statutes § 53a-56 (a) (1). We conclude that there was insufficient evidence presented to justify a finding of guilty of manslaughter in the first degree or manslaughter in the second degree and, therefore, that the defendant was not entitled to instructions on those lesser included offenses.

The defendant argues that the only evidence of his intent was found in his statement to the police, specifically, that Smith was trying to “gag” the victim. He argues that in aiding Smith, he intended only to restrain the victim, not to kill her. He farther argues that there is no evidence of planning, concealing the crime or use of a deadly weapon. He also contends that the victim’s injuries from the can opener were not consistent with an intent to kill. We reject the defendant’s assertions.

“We consistently have concluded that ‘the specific intent to kill may be proven solely by circumstantial evidence, as long as that evidence establishes beyond a reasonable doubt that the defendant had the conscious objective to take the life of another. . . . The defendant’s intent to kill, therefore, may be inferred from evidence of the defendant’s use of a deadly weapon, the manner in which the weapon was used, and the nature and number of wounds inflicted.’ ” State v. Delgado, 247 Conn. 616, 623, 725 A.2d 306 (1999). “It is axiomatic that a factfinder may infer an intent to kill from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Internal quotation marks omitted.) In re Keijam T., 221 Conn. 109, 119, 602 A.2d 967 (1992).

In this case, the defendant beat his victim with a clothes iron, stabbed her with a can opener and kicked her several times as she was spitting up blood. Such a brutal beating clearly evinces an intent to kill. The jury also reasonably could have concluded that he also attempted to conceal his crime by covering his hand with his shirt before grabbing the iron and turning off the television so as to not leave fingerprints. Therefore, we cannot “as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” State v. Ray, 228 Conn. 147, 155, 635 A.2d 777 (1993). The element of intent, which differentiates the lesser offenses from the offense charged was not sufficiently in dispute to permit the jury reasonably to have found the defendant innocent of the greater offense but guilty of either of the lesser offenses.

Ill

The defendant finally claims that the court’s jury instruction deprived him of a fair trial because the court improperly instructed the jury to disregard portions of his cross-examination of medical experts and improperly criticized defense counsel’s cross-examination of those experts, thereby undermining his credibility. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. The defendant’s theory of the case was that if the jury concluded that he had injured the victim with the can opener and clothes iron or that he had sexually assaulted her, then he had done so after Smith had killed her. Thus, when McDonough, the deputy chief medical examiner, testified, defense counsel attempted to show that death came quickly to the victim. Thus, the defense cross-examined McDonough using a textbook on forensic pathology to show that death may have come quickly. McDonough acknowledged that the text was authoritative and that he would rely on it. Defense counsel then read three paragraphs, the information in which McDonough agreed was correct. The state’s serology expert, Beryl Novich, also agreed that she considered another textbook authoritative. She found a passage that was read to her to be inapplicable to the case. The textbooks, however, were not offered as exhibits.

“Upon the direct examination of an expert witness on medical science, extracts from treatises in that science which he states are recognized by his profession as authoritative and which have influenced or tend to confirm his opinion may be used. ... In the cross-examination of the expert witness, such extracts may be used by incorporating them in questions to him to test his qualifications and to impeach his testimony.” (Citations omitted.) Kaplan v. Mashkin Freight Lines, Inc., 146 Conn. 327, 331, 150 A.2d 602 (1959); see also Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 651, 514 A.2d 352 (relevant portions of treatise may be admitted into evidence in court’s discretion if treatise is recognized as authoritative by expert witness and it influenced or tended to confirm expert’s opinion), cert. denied, 201 Conn. 809, 515 A.2d 378 (1986). Thus, the content of the textbook passages was properly before the jury in this case.

The court charged the jury in relevant part: “There was argument as well concerning matters that may not have been brought to your attention because the claim that there wasn’t evidence here to challenge, challenge the book by the doctor that was made referenced by way of cross-examination of the doctor from the chief medical examiner’s office. You’re not going to decide the case on what you didn’t hear, so don’t, at this point, don’t draw any inference from the failure of someone else to challenge somebody because the evidence you hear is for you to accept or reject in whole or in part. And, because you hear something doesn’t mean that you accept it. And, nor does it mean if you disbelieve that the contrary is true. You understand that you have to have evidence to find facts, not in a vacuum. . . . You will consider only what you believe to be the facts that have been presented from this witness stand or from the exhibits that you will have with you. If there has been mention of other things outside the area of the definition I’ve given you, oral testimony or exhibits, disregard it. You are to consider only such evidence as was admitted.” On appeal, the defendant characterizes that instruction as an improper direction to exclude testimony elicited on cross-examination. We disagree.

“Our standard of review concerning claims of instructional error is well settled. [JJury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial. . . .

“Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Marshall v. O’Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert. denied, 252 Conn. 918, 744 A.2d 438 (2000).

The defendant claims that the cited passage from the court’s jury instructions is confusing. We conclude that the instructions as a whole did not mislead the jury. The instruction apparently was an effort to instruct the jury not to draw any adverse inference from the defendant’s failure to call the authors of the texts as witnesses and to direct the jury to consider only the oral testimony and exhibits before it.

The defendant further argues in his principal brief that the court destroyed the credibility of defense counsel when, in its jury instruction, the court “said that trial counsel misled the jury in his cross-examination of the state’s medical experts by a learned treatise, and it said that trial counsel had threatened the jury in his closing argument.” The defendant directs us to no portion of the transcript in which the court criticizes counsel for misleading the juiy. We therefore reject his claim.

The defendant does, however, specifically refer to that part of the court’s instruction that stated: “One other thing, and I’m not critical of counsel, but I do want you to put this beside you, you’re not here for, as I said, any penalty phase. So, the emotional argument concerning his life hangs in the balance and how you think tomorrow, six months or three years from now, [is] improper. That’s a veiled threat, it shouldn’t be. You’re here to decide this case under your oath to do the right thing based on the evidence you’ve heard, the credible evidence that you believe is true. So, put aside something emotional that has to do with sympathy for anybody.” We conclude that the defendant’s claim that this statement undermined the credibility of defense counsel is without merit.

The principles guiding a trial judge in conducting a criminal trial are well established. “Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. ... In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. . . . Consistent with his neutral role, the trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so.” (Citations omitted; internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 769-70, 760 A.2d 82 (2000).

The defendant, in his principal brief, indicates that the remark that prompted the instruction was defense counsel’s statement in closing that “proof beyond a reasonable doubt is not a patchwork quilt. Proof beyond a reasonable doubt is a seamless whole. It is that kind of evidence that makes you confident in your decision now, tomorrow, next week, next year and ten years from now.” Our review of the transcript, however, suggests that the court’s concern centered on the broader impact of defense counsel’s closing argument in that it appealed to the jury to consider that the defendant’s life was in jeopardy and that the jury may be faced with doubts about the outcome for years to come. “An appeal to emotions, passions, or prejudices improperly diverts the jury’s attention away from the facts and makes it more difficult for it to decide the case on the evidence in the record.” State v. Alexander, 254 Conn. 290, 307, 755 A.2d 868 (2000).

In this case, the court properly intervened to ensure that the jurors considered the defendant’s guilt or innocence, not on the basis of the punishment that he might receive, but on the basis of the evidence adduced. The court did not appear partisan in doing so. To the contraiy, it specifically told the jury that it was not being critical of counsel. The court repeatedly instructed that the jurors are “the sole and exclusive judges of the facts,” and further stated that “if I made any reference to the position of the state or the accused, I assure [you that] it’s not my intention to convey to you directly or indirectly any feelings on behalf of this court as to what the outcome of the case should be.”

The court’s passing remark that defense counsel made an “veiled threat” would not have affected the jury’s consideration of the evidence or of whether the state had established its burden of proof in light of the court’s instruction that the jury decide the issues for itself. See State v. Patavino, 51 Conn. App. 604, 611, 724 A.2d 514 (concluding that curative instruction sufficiently eliminated possible prejudice to defendant that might arise from court’s threat of contempt to defense counsel), cert. denied, 249 Conn. 919, 733 A.2d 236 (1999). “Unless there is a clear indication to the contrary, a jury is presumed to follow the court’s instructions.” (Internal quotation marks omitted.) State v. Coughlin, 61 Conn. App. 90, 96, 762 A.2d 1 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001).

The judgment is affirmed.

In this opinion the other judges concurred.

       Acid phosphatase, a substance found in semen, was found in the victim’s oral, vaginal and anal cavities.

       Smith was also arrested and charged in connection with the incident. See State v. Smith, 65 Conn. App. 126, 782 A.2d 175 (2001). On June 28, 1995, the court granted the defendant’s motion to sever the two cases. Separate probable cause hearings ensued and, pursuant to Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the defendant’s statements were not admitted into evidence in Smith’s case, and Smith’s statements were not admitted in the defendant’s case. Consequently, judges in the two hearings on px-obable cause made different findings, leading the defendant and Smith to be charged differently.

       The defendant’s claim as to the sufficiency of the evidence is limited to whether the jury reasonably could have concluded that the victim was physically helpless at the time of the assault. Therefore, we assume that the jury reasonably concluded that the defendant caused the injuries to the victim’s face and vaginal area. We note, however, that the evidence clearly supports such a finding.

       General Statutes § 53a-73a (a) provides in relevant part that a person is guilty of sexual assault in the fourth degree when “(3) such person engages in sexual contact with an animal or dead body . . . .”

       The defendant's factual basis in his request to charge was as follows: “The defendant’s statement to the police (Exhibit 43) indicates at worst an intent to cause serious injury but does not include an intent to cause the death of the victim. No other evidence was offered as to the defendant’s mental state. Those same acts could also be found to have been reckless in that the defendant was aware of a substantial risk of death to the victim and consciously disregarded that risk [and] assuming that Scott Smith was choking the victim at the time, such conduct would be [a] gross deviation from the standard of conduct of a reasonable person.”

       The defendant argues that his requests to charge adequately described the fads so as to meet the first prong of Whistnant. He urges this court to compare his requests to those deemed adequate in State v. Arena, 235 Conn. 67, 76-77, 663 A.2d 972 (1995). We conclude that Arena is inapposite. In that case, the defendant was convicted of robbery in the first degree. Id., 68. On appeal, the defendant claimed that he was entitled to a charge on robbery in the second degree as a lesser included offense. Id., 72-73. Our Supreme Court held that the instruction was appropriately requested because it “contained a complete statement of the essential facts [that] would have justified the court in charging in the form requested.” (Internal quotation marks omitted.) Id., 76.
      In that case, however, the charge required the defendant to display or threaten “the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument”; General Statutes § 53a-135 (a) (2); and the defendant referred to the testimony of two clerks that he had carried a plastic shopping bag that he placed on the counter and that they thought the bag contained a firearm. Id., 72-73 n.6. Here, the only facte that 1he defendant referred to are “[t]hose same acts” that are in his written statement to the police. See footnote 5.

       As to the second prong of Whistnant, it is well settled that “manslaughter in the first and second degrees . . . are lesser included offenses within the crime of murder.” (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 66 n.11, 621 A.2d 728 (1993).

       The defendant argues that the jury reasonably could have concluded that his statement, “I tried to grab her iron with my shirt but it didn’t work,” meant that he intended to threaten to hit the victim, but that the threat did not work. We find that claim wholly without merit.

       McDonough testified that he could not determine how quickly the victim became unconscious or how long she remained in that state.

       The text, V. DiMaio, Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques (2d Ed. 2000), provided information on the current methods of detecting semen, the rate at which sperm decomposes, whether contusions may form postmortem and how long it takes for a person to become unconscious when that person’s carotid arteries are compressed.

       The textbook, entitled Forensic Science: An Introduction to Criminalistics, was used in an effort to impeach the witness on the rate of sperm decomposition.

       In its closing argument to the jury, the state argued in relevant part: “And then you have a woman who becomes unconscious. According to Dr. McDonough, he can’t tell you based on his field of expertise how long she would be unconscious before she actually died. He can’t do that. The state would submit that we will hear from the defense argument that according to some guy named DiMaio, and DiMaio, you never saw him, some fancy book they bring into court here, remember that, you know, that’s a book, and books can all be interpreted, we didn’t hear from this guy, DiMaio, did we, who said that strangulation occurs in two seconds or ten minutes or thirty hours. Doctor said I can’t tell. That’s your witness, not some book that you don’t even know what it says.”
      In its rebuttal closing argument, the state further argued: “I mean, why would we need fifteen of you if we just go and pick up DiMaio’s book? Did you hear anybody on that witness stand, and look over to it now, did you hear a doctor get up there and testify about what DiMaio says in his book?”


author: SHEA, J.

text:
    STATE OF CONNECTICUT v. JOSE PRAT
    (AC 19492)
    Spear, Mihalakos and Shea, Js.

      Argued December 7, 2000
    officially released October 9, 2001

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph Corradino, assistant state’s attorney, for the appellee (state).
   Opinion

SHEA, J.

After a jury trial and a verdict of guilty on both counts of the information, the defendant, Jose Prat, has appealed from the judgment convicting him of assault in the first degree in violation of General Statutes § 53a-59 (a) (l), as charged in the first count of the information, and carrying a dangerous instrument in violation of General Statutes (Rev. to 1997) § 53-206 (a), as charged in the second count. The trial court sentenced the defendant to a term of imprisonment of twenty years on the charge of assault in the first degree, execution suspended after fifteen years and five years probation, and to a term of imprisonment of three years on the second count of carrying a dangerous instrument. The court ordered that the sentence of three years on the second count run concurrently with the fifteen year sentence on the first count, resulting in a total effective sentence for both offenses of twenty years, execution suspended after fifteen years and five years probation. On appeal, the defendant claims that (1) the court improperly instructed the jury regarding the charge of assault in the first degree and thereby violated his due process rights, (2) the court improperly permitted the state to amend the information to allege a violation of § 53-206 (a) and (3) the evidence was insufficient to support his conviction of the crime of carrying a dangerous instrument in violation of § 53-206 (a). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 11 p.m. on January 3, 1997, the victim, Michael Bamum, was walking on Bamum Avenue in Stratford. Four young men, including the defendant, Anthony Ramirez, Tremaine Irby and Peter Cortijo, were standing in a driveway adjacent to Bamum Avenue. One of the men observed the victim walking and called him over. Being familiar with two of the men standing in the driveway, Cortijo and Ramirez, the victim entered the driveway. The defendant proceeded to strike the victim in the head with a baseball bat. The victim lost consciousness and remained in a hospital for four days.

Two officers of the Stratford police department, Frederick Wilcoxson and Robert Joy, had parked their unmarked police car on Bamum Avenue at about 11 p.m. on that evening. Wilcoxson observed four young men walking on Bamum Avenue and subsequently enter a driveway on that street. He then noticed the victim walking on Bamum Avenue and saw that one of the men standing in the driveway had called the victim over. The victim was standing in the driveway with the four men when Wilcoxson observed that two of the young men raised their arms displaying baseball bats. Joy also witnessed the defendant strike the victim with a baseball bat. Wilcoxson saw only one of the youths, the defendant, strike the victim on the head with a bat and then strike him two more times while the victim was lying on the ground. Wilcoxson and Joy ran from their parked vehicle across the street to the driveway, but before they arrived, the four men fled from the driveway. Wilcoxson retrieved one baseball bat from the driveway and two others at the end of the driveway in the area to which the four youths had ran.

At trial, the defendant called as a witness Louis Buso, a man who lived in the house at the end of the driveway that was the scene of the attack. Buso testified that on the night of the assault, he had heard some people yelling in his driveway and that he had observed about five persons kicking a young man and hitting him with their fists and baseball bats. He could not identify any of the youths involved in the assault.

The defendant filed two motions for a judgment of acquittal on the ground of insufficient evidence to support a finding of guilty, which the trial court denied. After the final arguments of counsel, the court, in its charge to the jury, instructed the jurors that, with respect to the first count of the amended information, which charged the defendant with assault in the first degree, the defendant could be found guilty if the jury concluded that the three elements of § 53a-59 (a) (1) had been established beyond a reasonable doubt: (1) the defendant intended to cause serious physical injury to another person; (2) he in fact caused serious physical injury to that person; and (3) he caused that injury by means of a dangerous instrument. The court also instructed the jurors that they could find the defendant guilty of assault in the first degree if they found that the defendant was an accessory to the assault on the victim. The court read the applicable portion of the accessory statute, General Statutes § 53a-8 (a), stating: “A person, acting with the mental state required for the commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.” The court also explained that “[e] very one is a party to a crime who actually commits it or does some act forming part of it, or who assists in its actual commission or the commission of any part of it.”

The jury returned a verdict of guilty of assault in the first degree as an accessory on the first count of the information and guilty on the second count, which charged the defendant with carrying on his person a dangerous instrument, namely, a baseball bat, without a written permit. This appeal followed.

I

On appeal, the defendant first contends that the court violated his due process rights by instructing the jury that it could convict him of assault in the first degree as an accessory when he had been charged as a principal offender in the original and amended informations.

“Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct.” State v. Fleming, 198 Conn 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). “[T]he propriety of a charge on ‘aiding and abetting’ is predicated on the basis of the sufficiency of the evidence heard during the course of the trial, not on the mention of such charges in pretrial documents.” State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979).

The defendant relies on the decision of this court in State v. Steve, 11 Conn. App. 699, 529 A.2d 229 (1987), aff'd, 208 Conn. 38, 544 A.2d 1179 (1988). In that case, the defendant was charged as a principal with the crimes of robbery in the first degree and assault in the first degree. Before trial, he filed a motion for a bill of particulars stating the specific nature of the offense or offenses charged, the time, place and manner in which the offenses were committed, the specific acts performed by the defendant which constituted all necessary elements of the crimes charged, and the names and addresses of all persons the state alleged were involved. Id., 701. The response of the state indicated that the defendant was the only person who had participated in committing the crimes charged. At the trial, there was evidence that the defendant was an accomplice of another man who actually had shot the victim in the course of a robbery. This court concluded that the defendant had been unfairly prejudiced in defending himself “[i]n light of the state’s particularization of the offenses, both in its bill of particulars and in its representation up until the close of the evidence”; id., 706-707; and that the defendant “was justified in believing that the state was not proceeding upon the theory of accessory liability and in relying upon the prior expressed particularization of the two charges.” Id., 707.

The present case is distinguishable from Steve. The defendant in this case never filed a motion for a bill of particulars, nor did he claim that he was otherwise misled by the state concerning accessory liability. It was the defendant himself who called the witness who testified that from his residence at the end of the driveway, he had observed about five persons, none of whom he could identify, kicking the victim and hitting him with their fists and baseball bats. The state never presented any evidence that anyone other than the defendant had participated in the assault. The only evidence supporting the charge on accessorial liability was provided by the defendant. The defendant could not have been surprised by the evidence on accessorial liability as he presented it at trial.

The trial judge, before final arguments, informed both counsel during a conference in chambers that he intended to charge on accessorial liability. The defendant had the same opportunity as the state to prepare his final arguments to the jury on the subject of his liability as an accessory. “Thus, unlike the situation in Steve, the defendant here was specifically put on notice by the trial court, prior to [final arguments], that the issue of accessorial liability was ... in the case.” State v. Williams, 220 Conn. 385, 390, 599 A.2d 1053 (1991). We conclude that the charge on accessorial liability was appropriate and affirm the judgment of the trial court on the first count of the information.

II

In challenging the verdict on the second count of the amended information, which charged the defendant with carrying “upon his person a dangerous instrument, to wit: a baseball bat, without a written permit in violation of [§] 53-206 (a) of the Connecticut General Statutes,” the defendant raises two issues: (1) whether the court improperly permitted the state to amend the information to allege a violation of § 53-206 (a) from carrying a dangerous weapon to carrying a dangerous instrument and (2) whether the evidence was sufficient to convict the defendant of the crime of carrying a dangerous instrument in violation of § 53-206 (a).

A

Practice Book § 36-18 provides in relevant part: “After the commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. . . .” “The sole limiting requirement under [Practice Book] § 624 [now § 36-18], is that no additional or different offense may be charged in an amendment, and no substantive rights of the defendant may be prejudiced by an amendment.” State v. Morris, 49 Conn. App. 409, 415-16, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998). “Practice Book § 624 [now § 36-18] is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. ... It is the defendant’s burden to provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which [he] must defend.” (Citation omitted; internal quotation marks omitted.) Id., 415. It is within the trial court’s discretion to allow an amendment to the information. On appeal, review of the trial court’s decision to permit an amendment to the information is one of abuse of discretion. Id., 416.

In this case, the state sought to amend the information to charge the defendant with carrying a dangerous instrument, rather than a dangerous weapon. Pursuant to § 53a-59 (a), “[a] person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .” A close reading of the statute reveals that it treats a deadly weapon and a dangerous instrument as equivalent alternatives.

Section 53-206 (a) prohibits carrying on one’s person fourteen specifically named weapons “or any other dangerous or deadly weapon or instrument” without a written permit signed by an authorized town official. General Statutes § 53a-3 (7) defines a dangerous instrument as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (6) defines a deadly weapon to mean “any weapon, whether loaded or unloaded, from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles. The definition of ‘deadly weapon’ in this subdivision shall be deemed not to apply to section 29-38 or 53-206.”

Because the baseball bat used by the defendant to strike the victim in this case would not ordinarily be viewed as a “dangerous weapon,” we conclude that the trial court properly allowed the amendment to the information that substituted “dangerous instrument” for “dangerous weapon.” In the circumstances of this case, the amendment removed a possible source of jury confusion. Further, the defendant fails to explain how he was unfairly prejudiced by the amendment to the information. Accordingly, this claim is without merit.

B

The defendant’s additional claim that there was insufficient evidence to convict him of carrying a dangerous instrument in violation of § 53-206 (a) is similarly without merit. Specifically, the defendant contends that because of the absence of evidence at trial that he did not possess a permit for the “dangerous instrument,” namely, the baseball bat that he had used to strike the victim, he could not have been convicted for violating § 53-206 (a).

“When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. . . . We then determine whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 331, 662 A.2d 1199 (1995). In the present case, the jury reasonably could have concluded beyond a reasonable doubt that the defendant lacked a permit to carry a dangerous instrument.

Undoubtedly, the lack of a permit is an essential element of the crime, which the state has the burden of proving. At trial, Officer Wilcoxson testified on cross-examination by the defendant that he was acquainted with the weapons permit records of the town of Stratford and that he had examined those records before coming to court on that day. He testified that no person had ever been issued a permit to carry a baseball bat in the town of Stratford and that the defendant had never received such a permit from the town.

On the basis of the foregoing, we conclude that the defendant’s claim of the lack of sufficient evidence before the jury regarding whether he possessed a permit to carry a dangerous instrument is without merit.

Ill

During the oral argument of this case, this court expressed some concern over the defendant’s conviction of both assault in the first degree in violation of § 53a-59 (a) (1) and carrying a dangerous instrument in violation of § 53-206 (a) because the same act, i.e., striking the victim with a baseball bat, formed the basis for his conviction of both crimes and implicated double jeopardy principles. On December 12, 2000, this court ordered that the parties submit supplemental briefs on the following issue: “Was the defendant properly convicted of both assault in the first degree by causing serious physical injury with a dangerous instrument and carrying a dangerous instrument where the instrument was a baseball bat that became a dangerous instrument only because it was used in the assault?” Both parties have submitted additional briefs as ordered.

The fifth amendment to the constitution of the United States provides in part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” That provision is known as the double jeopardy clause. In North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), the United States Supreme Court construed the clause to provide three separate guarantees: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” In this case, we are concerned with only the last of these protections.

A baseball bat is not a dangerous instrument simply because it is being carried by a person in a public place without a permit. The testimony at trial indicates that no permit to carry a baseball bat has ever been issued by the town of Stratford. Of the four youths who had baseball bats in their possession at the time of the crime, the defendant was the only one who was arrested and charged with carrying a dangerous instrument in violation of § 53-206 (a). The definition of a dangerous instrument pursuant to § 53a-3 (7) “means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” The defendant’s bat became a dangerous instrument only because he used it to inflict a serious injury on the victim, thus satisfying the requirement of § 53a-59 (a) of causing serious physical injury to another person by means of a dangerous instrument and supporting his conviction of assault in the first degree and the sentence of twenty years imposed for that act. The court properly directed that the sentence of three years, which was imposed for carrying a dangerous instrument, should run concurrently with the sentence on the conviction of assault in the first degree.

Nevertheless, it cannot be denied that the same act, that is, striking the victim with a baseball bat, is the sole basis for both crimes and that the separate sentence for carrying a dangerous instrument in violation of § 53-206 (a) raises the concern of double punishment for the same offense as prohibited by the fifth amendment to our federal constitution. Although the double jeopardy issue is academic insofar as the defendant’s term of imprisonment is concerned, the defendant’s having one less conviction for a crime on his record may possibly benefit him at some time in the future.

The United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), established the criteria for determining whether multiple charges constitute the same offense for double jeopardy purposes. “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., 304. “In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars .... The issue, though essentially constitutional, becomes one of statutory construction.” (Citations omitted; internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 8-9, 629 A.2d 386 (1993).

Confining the double jeopardy inquiry to the “relevant statutes, the information, and the bill of particulars”; id., 8; we are constrained to conclude that the defendant’s conviction of both assault in the first degree in violation of § 53a-59 (a) (1) and carrying a dangerous instrument in violation of § 53-206 (a) does not constitute “multiple punishments for the same offense” in violation of the double jeopardy clause of the fifth amendment to our federal constitution. Each statute requires proof of an element to support a conviction that is not found in the other. Assault in the first degree; General Statutes § 53a-59 (a) (1); requires that an offender intend to cause serious physical injury to another person and that he actually “[cause] such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .” No such requirement of an intent to cause physical injury or causing such injury is contained in § 53-206 (a), which prohibits the carrying of a dangerous or deadly weapon or instrument on one’s person without a permit. That statute specifically designates approximately twenty items as falling into that category and alternately proscribes “any other dangerous or deadly weapon or instrument, unless such person has been granted a written permit . . . .” Section 53-206 (a) requires for a violation only that a person carry a dangerous or deadly weapon or instrument on his person without a permit. As noted in part II B of this opinion, the lack of a permit is an essential element of the crime. It does not require the additional elements of an intent to cause serious physical injury to another person and causing such injury to that person, which are required by § 53a-59 (a) (1) for a conviction of assault in the first degree.

The interaction between § 53a-59 (a), assault in the first degree, and § 53-206 (a), carrying a dangerous instrument, is created by § 53a-3 (7). The definition of a dangerous instrument as “any instrument . . . which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious injury,” forms the basis for treating as a dangerous instrument the baseball bat that was used by the defendant to strike the victim and to cause him to suffer a serious physical injury. Such interaction, however, does not make assault in the first degree the same offense as carrying a dangerous instrument on one’s person because each of those offenses requires proof of facts that are unnecessary to prove a violation of the other.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . .

       General Statutes (Rev. to 1997) § 53-206 (a.) provides in relevant part: “Any person who carries upon his person any slung shot, air rifle, BB. gun, blackjack, sand bag, metal or brass knuckles, or any dirk knife, or any switch knife, or any knife having an automatic spring release device by which a blade is released from 1he handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length, or any martial arts weapon or electronic defense weapon, as defined in section 53a-3, or any other dangerous or deadly weapon or instrument, unless such person has been granted a written permit . . . shall be fined not more than five hundred dollars or imprisoned not more than three years or both. . . . The issuing authority may request the applicant’s fingerprints and full information concerning his criminal record and make an investigation concerning the suitability of the applicant to carry any such weapon. ...”

       On appeal, the defendant has briefed his claim of insufficient evidence only with respect to the second count of the information charging him with carrying a dangerous instrument without a written permit. No such claim has been briefed claiming insufficiency of the evidence to support the finding of guilty on the first count of assault in the first degree.

       Wo note that pursuant to Practice Book § 60-5, this “court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” In accordance with Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98, 644 A.2d 325 (1994), “our sua sponte invocation of plain error review is warranted when the following requirements are satisfied: (1) we discuss the rule and articulate why it is appropriate; and (2) we give the parties an opportunity to brief the issue.” State v. Washington, 39 Conn. App. 175, 179, 664 A.2d 1153 (1995). “To prevalí under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 546, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000).