text:
    STATE OF CONNECTICUT v. ALLAN LYLE
    (13283)
    O’Connell, Foti and Schaller, Js.
    Argued November 28, 1995
    decision released February 6, 1996

      Brian J. Kombrath, with whom, on the brief, were Patricia A. DeJuneas and Susan G. Wasserman, legal interns, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and James Bemardi, senior assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, following a jury trial, of one count of sale of narcotics in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court (1) misinstructed the jury on identification, and (2) failed to instruct the jury that it could draw an adverse inference from the state’s intentional destruction of physical evidence. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. Officer William Chase of the Bridgeport police department was assigned to the statewide narcotics task force (task force) as an undercover agent. On the evening of October 17, 1988, Officer Brian McElligott of the Stamford police department instructed Chase to make a controlled drug buy from a person known as “Jamaican Wayne.” Chase entered the Dunright Bar and asked a patron to identify “Jamaican Wayne.” The patron pointed to the defendant. Chase approached the defendant and proceeded with the controlled buy. In the men’s room of the bar, Chase took a $20 bill, the serial number of which had been recorded, out of his pocket while the defendant took a plastic bag from his coat. Chase held the bill out to the defendant, who in turn placed an amount of white powder on the bill. Chase paid the defendant $70 of task force funds.

After completing the transaction, Chase left the bar and gave both the white powder and the $20 bill to McElligott. A field test of the substance revealed the presence of cocaine. The state toxicology laboratory confirmed the presence of cocaine in the white powder two weeks later, but the $20 bill was never tested for trace amounts of cocaine. The laboratory returned the cocaine to McElligott, who put the bill and the cocaine into the task force evidence safe. On October 31, 1988, McElligott removed the $20 bill from the evidence safe and put it back into task force funds. The bill has since been circulated and was not available for testing by the defendant or for use by either party at trial.

I

The defendant raises a two part challenge to the court’s jury instructions on identity. First, he claims that the court failed to instruct on identify in conjunction with the other elements. Second, he claims that the court diluted the state’s burden by instructing the jury that it need only find the defendant “involved with” the crime beyond a reasonable doubt in order to find that the defendant sold drugs to Chase.

It is elementary that each element of a crime, including identity, must be proved by the state beyond a reasonable doubt. State v. Tatum, 219 Conn. 721, 734, 595 A.2d 322 (1991); State v. Jackson, 37 Conn. App. 491, 499, 656 A.2d 1056 (1995). The primary purpose of a jury charge is to assist the jury in applying the law correctly to the facts that it finds to be established. State v. Taylor, 37 Conn. App. 464, 469, 657 A.2d 659, cert. denied, 234 Conn. 907, 660 A.2d 859 (1995). In reviewing a constitutionally based challenge to a court’s jury instruction on an element of a crime, we must determine whether it is reasonably possible that the jury was misled. State v. Quintana, 209 Conn. 34, 50, 547 A.2d 534 (1988); State v. Cardany, 35 Conn. App. 728, 737, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 823 (1994).

“It is axiomatic that in reviewing a challenged portion of a jury charge, we must consider the charge as a whole and its effect in guiding the jury to a proper verdict. . . . We do not scrutinize an individual section of an instruction in artificial isolation from the overall charge in a microscopic search for possible error.” (Citation omitted; internal quotation marks omitted.) State v. Edwards, 39 Conn. App. 242, 248-49, 665 A.2d 611, cert. denied, 235 Conn. 924, 666 A.2d 1186 (1995).

Before instructing on the elements of the sale of narcotics, the trial court delivered general instructions. As part of the general instructions, the court explicitly told the jury that “[o]ne of [the] elements, of course, is the identification of the accused as the person who committed the crime.” Later in the general charge, the trial court repeated that the jury was to determine “ultimately that this crime was committed by the defendant beyond a reasonable doubt.”

The essence of the defendant’s claim is that the trial court improperly instructed on identity when, on a single occasion in the general portion of the charge, it instructed the jury as follows: “It’s necessary that you find that [the defendant] is the person that was involved, and whatever you would find him involved with on that particular day, [you must find him involved] beyond a reasonable doubt.” (Emphasis added.) The defendant contends that the court’s use of the words “involved with” lessened the state’s burden to prove identity, thereby allowing it to prove that the defendant was merely involved in the crime instead of the person who actually committed it. We are not persuaded.

The phrase the defendant challenges as improper was surrounded by the court’s explicit instructions that the state was required to prove beyond a reasonable doubt that the defendant was the person who committed the crime. Because our task is not to isolate individual words, but rather to examine them in the context of the entire charge, we conclude that the trial court properly instructed the jury on identity both before and after the single use of the phrase “involved with.” Upon examination of the instructions in their entirety, we cannot conclude that there is a reasonable possibility that the challenged instruction misled the jury as to the state’s burden of proving identity beyond a reasonable doubt.

II

The defendant next claims that the trial court failed to instruct the jury that it could draw an adverse inference from the state’s intentional destruction of the $20 bill as evidence. The defendant contends that had he been able to test the bill and had the test failed to reveal cocaine residue, those results could have been used to impeach Chase’s testimony. We do not agree.

Although an adverse inference instruction may be appropriate under certain circumstances, a trial court is not required to give an adverse inference instruction in every case involving missing evidence. State v. Mullings, 202 Conn. 1, 17, 519 A.2d 58 (1987). The defendant correctly states that, in order to prevail on appeal, he must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the recirculated $20 bill and that it was more probable than not that the failure to give the requested instruction affected the result of the trial. State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988).

The defendant argues that he was entitled to an adverse inference instruction on the missing bill to undercut the testimony of Chase, who stated that “Jamaican Wayne” placed the white powder inside the $20 bill. In support of that argument, the defendant contends that had the bill been available for testing and had the test revealed the absence of trace amounts of cocaine, those results would have impeached Chase’s version of the controlled buy. The defendant claims that the instruction was necessary to permit the jury to infer that “perhaps, the controlled buy did not take place as Chase testified,” thereby also permitting it to question Chase’s identification of the defendant as the person who sold him drugs.

“The failure to produce [evidence] for trial [that] is available and [that] a party would naturally be expected to [produce] warrants an adverse inference instruction against the party who would be expected to [produce that evidence], Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960). In such a situation there is a logical nexus between the failure to [produce the evidence] and an adverse inference. In other words, it makes sense to infer that the [evidence], had [it been] available . . . would [have been] adverse to the party who would naturally be expected to [produce] that [evidence] but failed to do so. State v. San- tangelo, 205 Conn. 578, 596, 534 A.2d 1175 (1987).” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 174, 665 A.2d 63 (1995).

In the present case, there is no logical nexus between the state’s failure to produce the $20 bill and the inference that, had the bill been tested and revealed an absence of cocaine, such results would have impeached Chase’s identification testimony. The identification of the person who sold the drugs to Chase was the central issue in this case. See part I of this opinion. Although the defendant pursued a mistaken identification defense at trial, Chase testified that the defendant sold him the cocaine. The presence of the bill, with or without the cocaine residue, would not have diminished Chase’s direct identification of the defendant. There is, therefore, no logical connection between the state’s failure to produce the bill and Chase’s positive identification of the defendant as the person who sold him the cocaine.

We conclude that it is not reasonably probable that the jury would have found Chase to be an unreliable witness had the bill been produced and shown to lack trace amounts of cocaine. Because the defendant has not demonstrated that the failure to give the requested adverse instruction affected the verdict, we cannot conclude that the refusal to give the instruction constituted an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in pertinent part: “Any person who . . . sells ... to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . .”

       After submission of briefs but before oral argument, this court released State v. Darden, 39 Conn. App. 645, 666 A.2d 831 (1995). In Darden, we held that, under the circumstances of that case, a new trial was necessary so that the trial court could consider the defendant’s due process claim under the Connecticut constitution. Id., 650. Although the defendant, in accordance with Practice Book § 4071A, notified this court and the state of his intention to rely on Darden at oral argument, he failed to characterize his claim as constitutional in nature. We therefore need not determine Darden’s applicability to this case.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    KIMBERLY S. ROBERTS v. WESTCHESTER FIRE INSURANCE COMPANY
    (14194)
    Landau, Heiman and Schaller, Js.

      Argued December 7, 1995
    decision released February 13, 1996

      Gary G. Cooper, for the appellant (defendant).

      Frank A. Bailey, for the appellee (plaintiff).
   SCHALLER, J.

The defendant appeals from the judgment of the trial court granting the plaintiffs application for an order to compel the defendant to arbitrate her claim pursuant to the underinsured motorist provision of her insurance policy. The dispositive issue on appeal is whether the trial court improperly concluded that the effect of the doctrine of collateral estoppel on the plaintiffs demand for arbitration was a coverage issue to be decided in arbitration rather than a threshold issue for the court to decide. We reverse the judgment of the trial court.

The trial court found the following facts. On August 26, 1994, the plaintiff filed an application for an order to proceed with arbitration against the defendant pursuant to General Statutes § 52-410. In the application, the plaintiff claimed that, on March 23, 1991, she sustained injuries when the car in which she was a passenger was involved in an accident. The plaintiff brought a civil action against the tortfeasor, and obtained a judgment in her favor. The amount of damages the plaintiff was awarded exceeded the tortfeasor’s insurance coverage.

The plaintiff further claimed that she was insured under an automobile liability insurance policy issued by the defendant, and she sought additional compensation from the defendant pursuant to the underinsured motorist coverage provision of the policy. The plaintiff and the defendant, however, were unable to agree on the amount of damages to which the plaintiff is entitled. The underinsured motorist portion of the plaintiffs policy provides: “If we and an ‘insured’ do not agree ... as to the amount of damages . . . either party may make a written demand for arbitration.” The plaintiff demanded, therefore, that the issue of damages be resolved by arbitration pursuant to the insurance policy and General Statutes § 38a-336. The defendant objected, arguing that the doctrine of collateral estoppel barred the plaintiff from relitigating her damages.

Section 38a-336 (c) provides that “[ejach automobile liability insurance policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. ...” “The effect of § 38-336 (c) is, therefore, to ‘remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage ....’” Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 805-806, 623 A.2d 66 (1993), aff'd, 228 Conn. 436, 635 A.2d 814 (1994), quoting Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 42, 434 A.2d 304 (1980).

“The arbitrability of a dispute, by contrast, is a legal question for the trial court to decide as a threshold matter. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 187, 520 A.2d 202 (1987); Oliva v. Aetna Casualty & Surety Co., supra, [181 Conn.] 39-40. Included in that legal question is ‘the issue of who is entitled to arbitrate a claim.’ Gaudet v. Safeco Ins. Co., 219 Conn. 391, 399, 593 A.2d 1362 (1991).” Wynn v. Metropolitan Property & Casualty Ins. Co., supra, 30 Conn. App. 806. Moreover, “[a]nissue of arbitrability ... is one that addresses the arbitrability of the claim and is capable of being decided by the court as a matter of law irrespective of the terms of the policy.” Id., 807.

“Under Connecticut law, [collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” (Internal quotation marks omitted.) Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 267, 659 A.2d 148 (1995); see also Busconi v. Dighello, 39 Conn. App. 753, 767-68, 668 A.2d 716 (1995).

In Wynn v. Metropolitan Property & Casualty Ins. Co., supra, 30 Conn. App. 807, we held that the effect of the statute of limitations on the plaintiffs demand for arbitration was a threshold issue for the court to decide. Here, the defendant objected to the plaintiffs demand for arbitration, arguing that the doctrine of collateral estoppel bars the plaintiff from relitigating the issue of damages. We conclude that in this case, as in Wynn, “there is no dispute over the scope of coverage provided by the policy. The only question is whether the plaintiff is entitled to compel arbitration.” Id. Because the defendant’s objection to the application for an order to compel arbitration does not require the trial court to interpret the language of the insurance policy, but requires the court only to apply the doctrine of collateral estoppel, the trial court improperly granted the plaintiffs application for an order to compel arbitration on the issue of damages.

The judgment is reversed and the case is remanded for further proceedings including consideration of whether the doctrine of collateral estoppel bars the plaintiff from rehtigating the issue of damages.

In this opinion the other judges concurred.

       General Statutes § 52-410 provides in pertinent part: “Application for court order to proceed with arbitration, (a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order directing the parties to proceed with the arbitration in compliance with then-agreement. ...”

       The defendant did not object to an arbitration proceeding limited to a determination of any setoffs and deductions.


author: SPALLONE, J.

text:
    GAIL M. STANDISH v. JONATHAN K. STANDISH
    (14079)
    O’Connell, Landau and Spallone, Js.

      Argued November 27, 1995
    decision released February 13, 1996

      C. Michael Budlong, with whom were Susan M. Butler and, on the brief, Kathleen A. Murrett, for the appellant (plaintiff).

      Glenn E. Coe, for the appellee (defendant).
   SPALLONE, J.

In this marital dissolution action, the plaintiff appeals from certain financial awards by the trial court. The plaintiff contends that the trial court improperly (1) modified its orders in an amended memorandum of decision in response to a motion for articulation, (2) exercised its discretion in making an order of property distribution, and (3) vacated an order requiring the maintenance of life insurance by the defendant for the benefit of the plaintiff.

On September 19,1994, after a full trial of the dissolution action, the court entered an order of dissolution as well as certain financial orders. The financial orders included the following: that the marital home be sold, that the plaintiff sign a joint tax return for 1991, that the plaintiff retain certain gifts of stock and the interest in a home in Pine Orchard, Connecticut, that the defendant retain certain antique furniture, china and silver, that the defendant pay certain alimony, that the defendant maintain the plaintiff on his health insurance for three years, that the defendant maintain life insurance with the plaintiff as primary irrevocable beneficiary, that certain automobiles be sold, and that legal expenses be borne by the respective parties. On October 7, 1994, the plaintiff filed an appeal of the judgment as well as a motion for articulation. On December 8, 1994, the court held a hearing on the motion for articulation. No testimony was heard and no new evidence was either elicited or entered into the record.

The court issued an amended memorandum of decision on December 14, 1994, and rendered a judgment thereon on December 19,1994. The amended memorandum of decision and judgment vacated, modified and amended certain of the trial court’s original orders, including financial orders. The trial court’s judgment, inter alia, vacated the original alimony orders and entered a new alimony order that altered the property distribution, ordered that the plaintiff make all payments on the first mortgage and vacated an order that the defendant maintain a life insurance policy for the benefit of the plaintiff. The court stated: “[T]his court feels that in order to effectuate justice as to be equitable to the parties it must correct certain omissions from the Memorandum of September 19, 1994, and modify or vacate certain of its orders. ” At the time of the court’s decision, however, there was neither a motion for modification before the court, nor a showing or a finding by the court of a substantial change in circumstances. The amended memorandum of decision and the judgment thereon were issued solely in response to the motion for articulation.

On December 27, 1994, the plaintiff filed with this court a motion for review of the trial court’s decision on the motion for articulation. The court granted the motion for review on February 8, 1995, but denied the relief requested. In addition, the court sua sponte ordered that an amended appeal could be filed including claims arising from the judgment and modification of December 19, 1994. The plaintiff filed an amended appeal on February 28, 1995.

A motion for articulation “is not an opportunity for a trial court to substitute a new decision . . . [for] a prior decision.” Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989). A substantial change in circumstances is required to justify the modification of a final judgment of dissolution. General Statutes § 46b-86. Because the only motion before the court was a motion for articulation and because the court failed to make a finding of a substantial change in circumstances, the trial court’s action vacating, modifying and amending its original dissolution orders was improper.

The defendant concedes that the trial court’s decision improperly modified its original decision with respect to alimony, payment of presale home expenses, life insurance and the 1991 tax return. The defendant argues, however, that although a remand is required, a new trial is unnecessary. We disagree.

Financial orders in a dissolution decree are crafted on the basis of statutory mandates and equitable considerations and as such are subject to the balancing of equities, which requires a careful consideration of the effect each order has on another; the orders are interwoven and interdependent on each other. “The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984); Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989); see also Jaser v. Jaser, 37 Conn. App. 194, 205, 655 A.2d 790 (1995); Tremaine v. Tremaine, 34 Conn. App. 785, 792, 643 A.2d 1291 (1994). We find that the trial court’s amended memorandum of decision and the judgment rendered thereon were improper and “severely impact[ed] the trial court’s original judgment. The singular implication to be drawn from the trial court’s willingness to modify the judgment is that the judgment was based on an incomplete analysis of the pertinent facts. . . . The symmetry and harmony of the tiles in the original design were so disturbed by the modification that we must reverse the original judgment and order a new trial.” (Citations omitted.) Jaser v. Jaser, supra, 205.

The judgment is reversed as to all orders except the order dissolving the parties’ marriage and the case is remanded for a new trial on all of the remaining issues.

In this opinion the other judges concurred.


author: SHEA, J.

text:
    DAVID BOURQUIN, ADMINISTRATOR (ESTATE OF GAYLE BOURQUIN) v. B. BRAUN MELSUNGEN ET AL.
    (13003)
    Dupont, C. X, and Spear and Shea, Js.

      Argued September 26, 1995
    decision released February 13, 1996

      Steven J. DeFrank, with whom, on the brief, was Ira B. Grudberg, for the appellant (plaintiff).

      Eugene A. Cooney, with whom, on the brief, was William J. Scully, for the appellee (defendant St. Francis Hospital and Medical Center).
   SHEA, J.

The plaintiff, David Bourquin, as administrator of the estate of his wife, Gayle Bourquin, brought this action on June 2, 1988, to recover damages for her wrongful death on March 4, 1987, as a result of an operation performed on April 23,1985, by the defendant Stephen Lange, a neurosurgeon, at the St. Francis Hospital and Medical Center (St. Francis Hospital). The plaintiff has appealed from a summary judgment rendered by the trial court in favor of the defendant St. Francis Hospital because of the inability of the plaintiff to produce an expert witness to testify at the prospective trial concerning the standard of care applicable to a hospital under the circumstances of the operation. The court had previously granted a motion to preclude such testimony after the plaintiff had failed to disclose such a witness within the deadline previously set by the court after the time limit established by Practice Book § 220 (D) had expired.

The plaintiff claims that the summary judgment for the hospital should be reversed because (1) he should have been allowed to disclose an expert witness qualified to testify with respect to hospital standards whom he found a short time after the motion to preclude had been granted, (2) the trial court should have permitted a proposed amendment to his complaint amplifying the specifications of negligence against the hospital by adding allegations concerning its failure to heed certain warnings on a box containing the material used by Lange in the operation on the decedent, and (3) the unamended complaint implicitly presented the same issue, capable of resolution by lay persons without expert testimony, of whether the hospital had been negligent in failing to heed those warnings, which indicated that the contents should not be used in such an operation. We agree with the court’s ruling on the first claim, but disagree with its rulings on the amendment and the motion for summary judgment. Accordingly, we reverse the judgment and remand the case for further proceedings.

The documents available to the court in considering the motion for summary judgment indicate that the plaintiff at trial would be able to present evidence to establish that on April 22, 1985, Gayle Bourquin was admitted to St. Francis Hospital for removal of a cholesteatoma above her right ear. On the following day Lange surgically removed the cholesteatoma and repaired the dura mater around her brain with a graft of commercially prepared dura mater taken from a cadaver. This human tissue material, marketed under the trade name Lyodura, was processed and packaged by the defendant B. Braun Melsungen (Melsungen), a German corporation, and was distributed by the defendant Tri Hawk International, Inc. (Tri Hawk), a Canadian corporation. From 1982 through 1985, St. Francis Hospital made several purchases of Lyodura from Tri Hawk, and the Lyodura that was used in the course of the operation on Gayle Bourquin was provided by the hospital. The plaintiff claims that the boxes containing Lyodura that Melsungen shipped to Tri Hawk bore three imprints: “For Investigational Use Only,” “For Use in Canada Only,” and “Laboratory Sample—For Testing Only.” He claims that Tri Hawk made no alteration of these warnings before shipping the boxes of Lyodura to the hospital.

About nineteen months after her operation, Gayle Bourquin began to develop symptoms of Creutzfeldt-Jacob disease (CJD), which produces a rapidly progressing dementia, disorientation and other neurological effects that inevitably result in death. She was admitted to Hartford Hospital on January 3, 1987. A diagnosis of “suspect” CJD was made when she was discharged on January 9,1987. She died on March 4,1987. The plaintiff timely disclosed that a physician specializing in neurology would testify at trial that in his opinion the decedent’s death was caused by CJD, which she contracted from an infectious Lyodura graft used in the course of her operation on April 23, 1985.

I

The plaintiffs claim that he should have been permitted to make a late disclosure of an expert witness on the subject of hospital standards relating to the procurement and investigation of human tissue to be used in operations must be determined on the basis of an abuse of discretion standard. “A trial court’s decision on whether to impose the sanction of excluding the testimony of a party’s expert witness rests within the court’s sound discretion.” Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989); Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 500-501, 602 A.2d 1040 (1992). “The determinative question for an appellate court is not whether it would have imposed a similar sanction but whether the trial court could reasonably conclude as it did given the facts presented.” Mulrooney v. Wambolt, 215 Conn. 211, 222, 575 A.2d 996 (1990)

Practice Book § 220 (D) requires any plaintiff expecting to call an expert witness at trial to disclose his name, the subject matter of his testimony, the substance of the facts and opinions he will give, and a summary of the grounds for each opinion “within 60 days from the date the case is claimed to the trial list.” If the plaintiff fails to disclose the name of any expert witness expected to testily at trial in accordance with that rule, “such expert shall not testify except in the discretion of the court for good cause shown.” Practice Book § 220 (D).

It is appropriate to review the circumstances confronting the trial court at the time it denied the plaintiffs motion to disclose his belatedly discovered expert on February 22,1993. This action was commenced on June 2, 1988. On June 7, 1988, interrogatories were served on the plaintiff seeking, inter alia, the names of the expert witnesses he intended to call at the trial and the substance of their testimony. In response thereto, the plaintiff made a timely disclosure of the name of a physician, referred to as the “state epidemiologist,” who has not thereafter been mentioned as an expert witness. The plaintiff claimed the case to the jury trial list on June 22,1992. On August 31,1992, a motion to preclude the plaintiff from presenting any expert testimony was filed for his failure to name his expert witnesses in accordance with Practice Book § 220 (D). The trial court denied the motion at a hearing on September 14, 1992, and allowed the plaintiff until December 14,1992, to disclose his experts. The plaintiff filed a supplemental disclosure on November 24,1992, in which he named two expert witnesses, a physician specializing in neurology to testify that Gayle Bourquin’s death resulted from CJD contracted from the Lyodura graft used in the course of her surgery, and an economist to testify to the value of her earning capacity.

On January 5, 1993, the defendant hospital moved to preclude the plaintiff from calling at trial any expert witnesses not disclosed prior to the deadline of December 14,1992. At a hearing on January 18,1993, concerning the filing of a motion for summary judgment, the plaintiff admitted that he still had no expert witness available to testify on the applicable standards of care for a hospital or a neurosurgeon. On February 8, 1993, however, he moved for permission to disclose the name of a neurosurgeon to provide expert testimony on those subjects. The affidavit supporting the plaintiffs motion indicates that his attorney had contacted fourteen physicians before finding one who was willing to testify in this case.

On February 22,1993, the motion to preclude and the motion to disclose were argued at length and decided adversely to the plaintiff. The court also denied a motion for reconsideration and articulation that he filed after-wards. During the argument of the motions to preclude and to disclose, the court expressed the view that, when the plaintiff admitted at the hearing on January 18,1993, that he still had no witness to testify on the standard of care, the case had “passed the point where there should be further opportunity for any expert to come into this case.” The plaintiff never moved to extend the December 14, 1992 deadline for disclosing an expert witness. The court concluded that the circumstance that the plaintiff happened to find an expert after the deadline had passed did not constitute good cause.

We conclude that there was no abuse of discretion on the part of the trial court in refusing to grant the plaintiffs motion for late disclosure of an expert witness. The case had been pending for almost five years. The affidavit supporting the motion for late disclosure indicates that the first contact of the plaintiff with any physician occurred on January 27,1992, approximately three and one-half years after commencement of the action. Although this was a complex case involving jurisdictional problems with respect to two foreign corporations, on which considerable time was spent, there is no good reason for not having started the search for an expert witness on the standards of care involved much earlier. To be meaningful, extensions of time that establish dates for completing procedural steps necessary to bring a case to trial must be enforced with reasonable strictness to ensure the movement of cases through the judicial system. Parties have the right to assume that, when such a deadline has passed without compliance, no further extension of the time to comply will be granted, except under those extraordinary circumstances constituting good cause. The trial court could reasonably have concluded that the plaintiffs affidavit supporting his motion for late disclosure was insufficient to justify a finding of good cause.

II

The plaintiffs second claim, that the trial court should have allowed a proposed amendment to his complaint relating to the failure of the hospital to heed warnings on the box in which the Lyodura was received, is also governed by the abuse of discretion standard. “Rulings on motions to amend pleadings lie in the sound discretion of the court but that discretion is a legal discretion and is subject to review.” Wesson v. F. M. Heritage Co., 174 Conn. 236, 239, 386 A.2d 217 (1978) “ ‘In determining whether there has been an abuse of discretion, much depends on the circumstances of each case. Factors that should be considered include unreasonable delay, fairness to the opposing parties and the negligence of the party offering the amendment.’ ” Id., 240.

On March 8, 1993, after the trial court had denied his motion for late disclosure of an expert witness, the plaintiff filed a request to revise his complaint by adding the following specifications of negligence directed against the defendant hospital and its agents: “[I]n that the box in which the Lyodura came bore the designations ‘For Investigational Use Only’ and ‘For Use in Canada Only’; in that defendant’s use of Lyodura when its packaging bore the designations ‘For Investigational Use Only’ and ‘For Use in Canada Only’ manifests gross want of care and skill . . . .” The complaint, as previously revised on September 18, 1990, specified only a negligent failure (1) “properly to investigate the source of the commercially prepared human dura mater material [and] . . . the procedures under which said commercially prepared human tissue was obtained, processed and put into the stream of commerce”; (2) “to purchase said commercially prepared human tissue in accordance with standards for tissue banking . . . from an American source which was subject to standards of the American Association of Tissue Banks”; (3) “to handle, store and dispense said tissue in accordance with said standards, and of due care”; and (4) “to exercise the care of reasonably prudent persons under the circumstances.” The court denied the proposed amendment on the ground that “the addition of such allegations at this late stage in the action substantially changed the nature of the plaintiffs claims and thus would be prejudicial to the defendants.”

We agree with the plaintiff that the amendment would not necessarily have resulted in delay of the trial, which was scheduled to begin approximately six months later, nor would it have modified significantly the claims of negligence in the previously revised complaint. In earlier proceedings the hospital had learned of the plaintiffs claims regarding the warnings on the Lyodura boxes. An affidavit signed by the managing director of Melsungen in Germany on March 4, 1991, states that “each package of Lyodura shipped to Tri Hawk by Braun contained an imprint, ‘For Use in Canada Only,’ as evidenced by Attachment A.” That attachment includes the quoted designation and, beneath it, another, “For Investigational Use Only.” At a deposition of the president of Tri Hawk taken in Montreal on December 9, 1991, attended by all counsel, the plaintiff referred to the imprints on the outside of a package of Lyodura in seeking to ascertain whether any deletion had been made by Tri Hawk.

In responding on January 22, 1992, to the plaintiffs request for admissions pursuant to Practice Book § 239, the hospital “denied” that the packages of Lyodura it had received, including the one used in the operation on the plaintiffs decedent, were labeled, “For Investiga-tional Use Only.” Section 239 requires that a responding party “truthfully admit or deny the matter” that is the subject of the inquiry, unless reasons are given for the inability to do so. The hospital did not select the latter option for lack of sufficient information to respond “truthfully.” The hospital, therefore, must have been aware of the claim involving the warnings on the Lyo-dura boxes for more than one year before the amendment was offered. Accordingly, no additional time to investigate that claim would have been needed.

Even without the amendment, evidence of the warnings on the Lyodura boxes would have been relevant to prove the plaintiffs claim of negligence in failing to investigate the source of the Lyodura tissue the hospital furnished for operations on its premises. The presence of such warnings would be a material consideration in deciding whether reasonable care would have required the hospital to make some inquiry as to the source of the tissue. The hospital must have realized long before the proposed amendment the import of the claimed imprints on the Lyodura boxes with respect to the allegation of failure to investigate the source of the tissue used in operations conducted at the hospital.

“It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same . . . .” Gallo v. G. Fox & Co., 148 Conn. 327, 330, 170 A.2d 724 (1961). Furthermore, since the unamended complaint contained a general allegation that the hospital had “failed to exercise the care of reasonably prudent persons under the circumstances,” the door had been left open to the proof of any acts that might reasonably tend to prove negligence in the context of the facts pleaded. Scribner v. O’Brien, Inc., 169 Conn. 389, 399, 363 A.2d 160 (1975). The failure to seek a more specific statement may constitute a waiver of the right to obtain a more precise description of the negligence charged. Id., 400; Doerr v. Woodland Transportation Co., 105 Conn. 689, 692-93, 136 A. 693 (1927).

We also conclude that the plaintiff offered his amendment in timely fashion, despite the fact that the case had been pending for almost five years. The original allegations of negligence against the hospital had been drafted in the expectation that a qualified expert witness would testify at trial concerning the standards applicable to hospitals in procuring, storing and furnishing human tissue to be used in operations. When the ruling of the court precluded such testimony, the plaintiff realized that the focus of his claim had to be the warnings printed on the boxes containing the Lyodura, because he had no other evidence to prove negligence. He filed his request to revise his specifications of negligence approximately two weeks after the denial of his motion for late disclosure of an expert witness.

The trial court should have allowed the proposed amendment because it did not enlarge the original specifications of negligence or inject new facts into the case of which the defendant was unaware. The same evidence would have been admissible in support of the allegation that the hospital was negligent in failing to investigate the source of the Lyodura. The request to amend was filed promptly after the need for it became apparent, and no delay of the trial would have been required to enable the hospital to prepare its defense.

Ill

After its motion to preclude any testimony in behalf of the plaintiff from experts not previously disclosed had been granted, the hospital, on March 8, 1993, filed a motion for summary judgment, claiming that, without expert testimony, the plaintiff would be unable to establish the standard of care applicable to a hospital and to prove a deviation from that standard causally related to the death of Gayle Bourquin. At the hearing on the motion, the plaintiff contended that the allegations of negligence relied on—the hospital’s disregard of the imprints on the Lyodura boxes delivered to the hospital and its failure to investigate the source of that substance in the light of those warnings—were not so complex as to require expert testimony. The trial court disagreed with the plaintiffs argument and granted the hospital’s motion.

The criteria for granting a motion for summary judgment are well established. “The party moving for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which under applicable principles of substantive law, entitle him to judgment as a matter of law. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). The test is whether the moving party would be entitled to a directed verdict if the uncontroverted essential facts contained in the supporting affidavits or other documents were established at trial. Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198, 319 A.2d 403 (1972). “ ‘In Connecticut, a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.’ ” Id.

This court has approved the grant of a summary judgment in a medical malpractice case when, as in this case, it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding the applicable standard of care. Guzze v. New Britain General Hospital, 16 Conn. App. 480, 484—85, 547 A.2d 944, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988). We have also upheld the setting aside of a verdict when such testimony has been precluded by an order of the trial court because of the plaintiffs untimely disclosure of the name of his expert. Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 509 A.2d 552 (1986). “It is well settled that the plaintiff cannot prevail unless there was positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary.” Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982). The plaintiff claims that his case falls within the exception, because the acts of negligence on which he now relies are the failure of the hospital to heed the warnings printed on the Lyodura boxes and to investigate their significance.

In this state, decisions indicating that the exception to the general requirement of expert testimony in medical malpractice cases might be applicable have involved foreign objects discovered in the body of a patient after surgery or abnormal injuries sustained during surgery. Id., 308 (needle found in patient after hernia operation); Console v. Nickou, 156 Conn. 268, 274-75, 240 A.2d 895 (1968) (needle left in patient after delivery of child); Allen v. Giuliano, 144 Conn. 573, 575, 135 A.2d 904 (1957) (lacerations to patient’s leg in removal of cast); Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927) (piece of surgical instrument left in patient after nose operation). In other jurisdictions, courts have found the jurors’ common knowledge adequate for understanding the basis for the malpractice claim without expert testimony in a variety of circumstances. LaRoche v. United States, 730 F.2d 538, 541 and n.5 (8th Cir. 1984) (placing permanent fillings in teeth that dentist should have known were infected); Carlsen v. Javurek, 526 F.2d 202, 207-208 (8th Cir. 1975) (dispute as to whether nurse-anesthetist had used anesthetic that surgeon had instructed her not to use); Gault v. Poor Sisters of St. Frances Seraph of the Perpetual Adoration, Inc., 375 F.2d 539, 557 (6th Cir. 1967) (administration of wrong medication because containers appeared similar).

The record indicates that Tri Hawk, the Canadian distributor of Lyodura, inquired in 1979 about applying for an investigational device exemption (IDE) for Lyo-dura from the Food and Drug Administration (FDA) in order to market that product in the United States. It appears that Melsungen, the producer, was aware of the attempt to make Lyodura available in this country. Such an exemption “permits a device that otherwise would be required to comply with a performance standard or to have premarket approval to be shipped lawfully for the purpose of conducting investigations of that device.” 21 C.F.R. § 812.1 (a) (1995). The FDA requires that the package containing an investigational device be properly labeled to include this statement: “ ‘CAUTION-Investigational device. Limited by Federal (or United States) law to investigational use.’ ”21 C.F.R. § 812.5 (a) (1995). Before any IDE may be used on a patient, an informed consent must be obtained. 21 C.F.R. §§ 50.20, 812.100 and 812.150 (a) (5) (1995).

Melsungen terminated its efforts to introduce Lyo-dura into the United States and imposed a territorial limitation in its agreement with Tri Hawk limiting the distribution of that product to Canada. Although the Lyodura boxes are claimed to have borne the imprint, “For Use in Canada Only,” Tri Hawk, during the early 1980s, apparently without having complied with the FDA requirements for an IDE permit, sold and shipped packages of Lyodura to various hospitals in the United States with that imprint as well as “For Investigational Use Only” and “Laboratory Sample—For Testing Only.” The record does not indicate whether the latter designations were intended to be equivalent to the caution required by the FDA or are related to similar labeling requirements imposed by Canadian authorities. In a letter to Tri Hawk responding in 1979 to its request concerning an IDE for Lyodura, the FDA explicitly warned that “ [a]ny commercial distribution of this product prior to our approval of an application for premarket approval . . . would be regarded as a violation of the Federal Food, Drug, and Cosmetics Act.” The letter also advised that, if Tri Hawk should obtain approval of an IDE for Lyodura, any shipment of the product into the United States must be labeled to state that it is “For Investigational Use Only.”

We conclude that the plaintiffs claim that the hospital was negligent in failing to investigate the source of the Lyodura it received from Tri Hawk, in the light of the alleged warnings on the packages, does not present an “esoteric or uniquely medical issue” requiring expert testimony for its determination. See Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn. App. 383, 387, 505 A.2d 741 (1986). Whether reasonably prudent hospital personnel would have been alerted by the imprints to inquire about their significance is a question that can be resolved on the basis of the common knowledge that jurors possess. The failure to observe or heed a warning is not a novel basis for finding negligence. See Buck v. United States, 433 F. Sup. 896, 900 (M.D. Fla. 1977).

Similarly, the requisite causal relationship between the hospital’s alleged negligence and the death of Gayle Bourquin is capable of resolution without any expert testimony other than that of the expert whose opinion on the cause of death has been properly disclosed. That opinion indicates that the decedent contracted CJD from an infectious Lyodura mater graft used in the course of her operation. If the jurors should find that a reasonable inquiry about the significance of the imprints would have led the hospital to discover that the use of Lyodura on a patient in this country was a violation of federal law, they could reasonably conclude that the hospital would have supplied some alternative substance for the operation that did not violate federal law. Thus, a finding that failure to heed the warnings on the boxes was the proximate cause of death would not be unsupported by the evidence.

We are convinced, therefore, that the trial court should not have granted the hospital’s motion for summary judgment because of the plaintiffs inability to provide expert testimony on the appropriate standard of care for a hospital in purchasing human tissue for use in operations performed by neurosurgeons.

The judgment in favor of the defendant hospital is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The court also granted a motion of the defendant Lange for a summary judgment against the plaintiff. No appeal has been taken from that judgment.

       A cholesteatoma is “[a] kind of cyst or cystlike tumor affecting mainly the middle ear . . . but sometimes also the bone of the mastoid, the external ear canal, the spinal cord, or the brain.” 1 J. Schmidt, Attorneys’ Dictionary of Medicine (1995), p. C-179.

       The dura mater is “[t]he outermost and toughest of the three membranes (meninges) enveloping tire brain and spinal cord.” 1 J. Schmidt, Attorneys’ Dictionary of Medicine (1995), p. D-159.

       The original complaint alleged a product liability claim against Melsungen. The trial court dismissed the action against that corporation for lack of personal jurisdiction.

       The plaintiff obtained a default for failure to appear against Tri Hawk and a judgment for 83,167,829.26.

       Prior to the amendment that became effective on October 1,1995, Practice Book § 220 (D) provided: “In addition to and notwithstanding the provisions of subsections (A), (B) and (C) of this section, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert, shall not testify except in the discretion of the court for good cause shown.”


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. ELISEO RIVERA
    (14991)
    Heiman, Schaller and Stoughton, Js.
    Argued October 24, 1995
    decision released February 13, 1996

      Bruce A. Sturman, public defender, for the appellant (defendant).

      Kevin T. Kane, state’s attorney, with whom, on the brief, was Keith Currier, legal intern, for the appel-lee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims that the trial court improperly excluded testimony of the victim’s mother relating to the victim’s statement to her ten days prior to his death concerning his fear of his demise. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the morning of December 31, 1993, Shawn Suarez went to 40 Crystal Avenue, a high rise apartment building in New London, to visit Miguel Morales, whose girlfriend resided on the sixth floor of the building, also known as building C. Suarez was accompanied by Edwin Conception. They arrived at building C and found Miguel Morales in his girlfriend’s apartment with Miguel’s brother, Benjamin, and some others. Later in the morning, the defendant arrived. The defendant had his girlfriend’s young son with him.

The group sat around the apartment, watching television and talking. Later in the morning, Suarez, Conception, Miguel Morales and the defendant left the apartment and went down to the first floor of building C. The four men went outside onto the plaza. The defendant walked off by himself. None of the men saw in which direction he went. The other three men decided to return to the apartment.

As the three men entered the building, Suarez saw Richard Morales standing in the lobby of building C. Suarez knew Richard Morales because they had grown up together. Suarez stopped to talk with Richard Morales while Conception and Miguel Morales went down the hallway to the elevator to return upstairs. When Suarez stopped to talk with Richard Morales, no one else was in the lobby.

As Suarez and Richard Morales stood talking, the defendant entered the lobby from the hallway and stood against a pillar in the lobby area. The defendant and Richard Morales did not speak to each other. Richard Morales’ back was turned toward a set of glass doors, and his right side was exposed to the defendant. The defendant was wearing a black jacket, black jeans and a black hood mask that covered parts of his forehead and nose, and had holes cut into the mask for the eyes. The mask was one that Suarez had loaned to the defendant a few days before December 31, 1993.

After he spoke with Richard Morales, Suarez started to walk toward the elevator. No one else was in the lobby other than the defendant and Richard Morales, and no one was outside the doorway. As Suarez walked down the hallway toward the elevator, he heard a loud bang and began to run. Suarez ran upstairs to the apartment occupied by Miguel Morales’ girlfriend.

Several minutes later, the defendant knocked and entered the apartment. The defendant had the nickname “Sick.” The defendant said, “I’m sick, that’s why they call me Sick.” The defendant then said, “I busted that nigger” or “I bust him.” The word bust, used in that context, means to shoot.

The defendant, Suarez, and Benjamin Morales then went to the lobby and observed a number of police officers as well as other persons in the lobby. The victim, whom the police identified as Richard Morales, was lying on the floor in front of the glass doors. The police were taking photographs of people in the lobby area.

Officer Christopher Miller responded to an emergency call regarding the shooting and, when he arrived at the scene, he found the victim lying on the floor in the southeast comer of the lobby. The victim was lying on his back with his head toward the wall and his feet toward the lobby. Miller observed that the victim had suffered a gunshot wound to the head. The victim was breathing and was bleeding from his forehead. Soon after Miller’s arrival on the scene, ambulance personnel transported the victim to Lawrence and Memorial Hospital.

Later in the day, the defendant went to Suarez’ house on Redden Avenue. The defendant and Suarez had a conversation in the parking lot and the defendant said to Suarez, “I ain’t no joke.” Suarez interpreted “I ain’t no joke” to mean that the defendant was not a person to “mess with.”

The next night, the defendant again went to Suarez’ house. The defendant told Suarez several times that “he was no joke,” and also said several times that he “ain’t nothing to be messed with.” He also said that he “got his propts,” an expression that means he “got his respect.” The defendant also asked Suarez: “Are the brothers mad at me for I had to do what I had to do?” Suarez asked the defendant if he felt bad about “busting” someone, and the defendant answered that “he wasn’t thinking about that.” The defendant and Suarez went into the bathroom and Suarez asked the defendant how he had killed the victim. The defendant answered, “I blasted that nigger.”

The victim died on January 3, 1994, at Lawrence and Memorial Hospital. An autopsy established that the victim died as a result of a gunshot wound to the head with extensive injury to the brain. The bullet had entered the back of the head in the occipital region on the right side. A forensic examination of the distribution of numerous particles of gun powder residue on the back of the victim’s sweatshirt indicated that the bullet that killed the victim was fired from a distance of one to two feet.

On January 5, 1994, detectives interviewed the defendant. He admitted that he was at 40 Crystal Avenue on the day of the shooting, and said that he was there visiting with Benjamin and Miguel Morales at their apartment. He said that Suarez and Conception were also at the apartment. He stated that at the time of the shooting, he was in the apartment and that someone in the apartment noticed a commotion in the parking lot and that, subsequently, he went downstairs to see what was happening. He also told the police that, on the day of the shooting, he was wearing a green colored coat and a hat. The defendant denied any involvement in the killing of the victim. A few days after the shooting, the defendant was arrested.

Following a jury trial, the defendant was convicted of murder in violation of General Statutes § 53a-54a. On appeal, the defendant asserts as his only claim that the trial court improperly refused to permit the victim’s mother to testify about statements that the victim made to his mother concerning his fear that something was going to happen to him because he owed a debt to his girlfriend’s mother. We are unpersuaded.

Certain additional facts are necessary to an understanding of our resolution of this issue. Prior to resting his case-in-chief, the defendant made an offer of proof consisting of a statement made by Eugenia Morales, the mother of the victim, to the New London police on January 3, 1994. The defendant asserted that he had Eugenia Morales under subpoena, and that he was offering her statement as indicative of what she would testify to if called as a witness. According to the defendant’s synopsis of her statement, Eugenia Morales said that “she saw her son, [the victim], the Tuesday prior to Christmas at her apartment. At that meeting [the victim] was crying and he told his mother that if anything happens to him that she, his mother, should tell her sister or her brother the following. That [his girlfriend’s] mother told him he got somebody from New York who can do something about it. Eugenia Morales represents that [the victim] owed money presumably to [his girlfriend’s] mother. She continued to explain that her son told her that [his girlfriend’s] mother threatened to get him for the loss or theft of drugs or money. Eugenia Morales explained that [the victim] lived with [his girlfriend] from the last time he was released from jail until this night, approximately one month prior to his death. Eugenia Morales suspects [his girlfriend’s] mother of involvement in [the victim’s] death.”

The trial court questioned the defendant regarding the relevance of the proffered testimony, and the defendant responded that it was admissible to show “at the least, the victim’s mother suspected that somebody other than the defendant committed the crime.” The defendant further asserted that the mother’s testimony was admissible under the state of mind exception to the hearsay rule. The defendant also argued that the testimony has “a strong indicia of reliability” because the conversation at issue took place in the context of a mother-son relationship as opposed to a relationship between strangers. The defendant maintained that, therefore, the trial court should admit the evidence, “because it suggests to the jury that somebody other than the defendant committed the crime.”

The state objected to admission of the evidence, asserting that it was double hearsay and irrelevant. The state argued that, at best, the proffered testimony consisted of speculation that an unknown third party may have had a possible motive to kill the victim. After the state’s argument, the trial court questioned the defendant in an effort to clarify the defendant’s theory of admissibility of the proffered testimony. The defendant indicated that his principal claim for the admissibility of the testimony was the state of mind exception to the hearsay rule. The defendant also reiterated that the victim’s statement to his mother “bears great indicia of reliability.” The trial court sustained the objection interposed by the state, thereby declining to permit the victim’s mother to testify about the alleged conversation.

The defendant claims that the trial court’s ruling was improper, and that the trial court should have admitted the proffered testimony in accordance with either the state of mind exception to the hearsay rule or the residual exception to the hearsay rule. We do not agree.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993), appeal withdrawn January 7, 1994.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291 (1995).

We first address the defendant’s assertion that the proffered testimony should have been admitted under the state of mind exception to the hearsay rule. “ ‘Hearsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein. State v. Cruz, 212 Conn. 351, 356, 562 A.2d 1071 (1989).’ State v. Rinaldi, 220 Conn. 345, 359, 599 A.2d 1 (1991). As such, it is inadmissible.” State v. Duntz, 223 Conn. 207, 232-33, 613 A.2d 224 (1992). “An out-of-court statement is not hearsay, however, if it is offered to illustrate circumstantially the declarant’s then present state of mind, rather than to prove the truth of the matter asserted.” State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993). Of course, such an out-of-court statement by a declarant would only be admissible “to show his state of mind where his mental state is relevant. ...” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Duntz, supra, 233.

“Whether the victim’s state of mind is relevant depends, however, on the nature of the issues at trial. A defendant’s articulated or implied theory of defense may make the victim’s state of mind material to the determination of the defendant’s guilt or innocence.” State v. Crafts, 226 Conn. 237, 253, 627 A.2d 877 (1993). Furthermore, we note that although “a victim’s fear of another individual is admissible when relevant to the issues at trial . . . such cases have generally involved the testimony of a witness’ personal observations of the victim’s fear of the defendant.” (Emphasis added.) State v. Blades, supra, 225 Conn. 633.

The defendant’s primary theory of defense, as indicated by his own testimony, was that he was upstairs in building C visiting with friends at the time of the shooting. He did not raise a defense that implicated his or the victim’s state of mind. Moreover, neither the defendant nor the state put the victim’s state of mind into issue at trial. Therefore, the proffered testimony, offered to illustrate circumstantially the victim’s then present state of mind, was not relevant. Cf. State v. Crafts, supra, 226 Conn. 254 (victim’s state of mind relevant because defendant’s assertion throughout trial was that he was not guilty of murder because “victim” still alive); State v. Blades, supra, 225 Conn. 635 (victim’s state of mind relevant because defendant invoked defense of extreme emotional disturbance to charge of murder asserting that his conduct resulted from provocation by victim).

If the defendant had introduced evidence at trial that another individual possessed the motive and intent to murder the victim, and the proffered testimony was offered to illustrate circumstantially the victim’s fear of that individual, it still would not have been relevant. “Evidence is relevant only if it has some tendency to establish the existence of a material fact.” (Internal quotation marks omitted.) State v. Duntz, supra, 223 Conn. 233. The victim’s alleged statements would have been irrelevant because the jury could not have reasonably drawn an inference from those statements that some unnamed, unidentified person had such an antagonistic relationship with the victim so as to have had the motive and intent to kill him. Id. “[T]he jury could not have drawn such an inference solely from the statements of the victim without resorting to impermissible speculation.” Id.

We next address the defendant’s assertion that the proffered testimony was admissible under the residual exception to the hearsay rule. “An out of court statement is hearsay when it is offered to establish the truth of the matters contained therein. ... As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions. . . . The purpose behind the hearsay rule is to effectuate the policy of requiring that testimony be given in open court, under oath, and subject to cross-examination. . . . The residual, or catch-all, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992).

“The reliability of a witness’ hearsay statement is essential because the opposing party does not have the opportunity to cross-examine out-of-court declarants to test the truthfulness of their statements. State v. Lawson, 23 Conn. App. 358, 362, 580 A.2d 87 (1990).” State v. Smith, 35 Conn. App. 51, 59, 644 A.2d 923 (1994). There is no indication here that the victim’s statement to his mother was sufficiently reliable and trustworthy to satisfy the residual exception to the hearsay rule. There is no special sanctity attached to a statement allegedly made by a son to a mother such as to vest it with the aura of reliability necessary to invoke the residual exception. Other than the assertion by counsel as to his opinion of the reliability of the statement, nothing was produced to establish the key point of reliability. Moreover, the proffered testimony did not contain information necessary to the resolution of the case. State v. Dollinger, 20 Conn. App. 530, 539, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). The victim’s fear that his girlfriend’s mother had threatened to retain a nameless individual to “do something about it” and that his girlfriend’s mother threatened to “get him” because of an ambiguous debt relating to drugs or money was not necessary to the determination of whether the defendant committed the crime with which he was charged. State v. Erhardt, 17 Conn. App. 359, 369, 553 A.2d 188 (1989).

We thus conclude that the trial court did not abuse its discretion in determining that the proffered evidence was not admissible under either the state of mind exception or the residual exception to the hearsay rule.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       Richard Morales' last name is spelled “Moralis” in the trial transcript. We use the spelling that appears in the substitute information.

       The statement was not offered as an exhibit at trial. The content of the statement comes from the defendant’s synopsis made during the offer of proof.

       The shooting took place on December 31, 1993.

       The defendant appears to have invoked both the state of mind exception to the hearsay rule and the so-called residual exception to the hearsay rale.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. LARRY SHEETS
    (13170)
    Landau, Schaller and Hennessy, Js.
    Argued October 27, 1995
    decision released February 13, 1996

      BethMerkin, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Michael A. Pepper, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Larry Sheets, appeals from the judgment of conviction, rendered after a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that the trial court improperly (1) precluded him from fully questioning prospective jurors, (2) allowed the state to use extrinsic evidence and misconduct evidence in its rebuttal presentation and (3) precluded him from rehabilitating his alibi witness. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On December 23, 1992, the defendant entered a convenience store on Whalley Avenue in New Haven, indicated that he had a gun in his waistband and demanded that the two employees, Abu Ibrahaim and another clerk, give him the cash in the store’s register. The defendant then took the cash and some lottery tickets and ran from the store. On December 29, 1992, less than one week after the first robbery, the defendant went back to the store and confronted Ibrahaim again. The defendant, grasping the handle of a gun in his waistband, demanded cash from the register. Taking the cash, he ran from the store. The police arrested the defendant on the basis of information received from a confidential informant, and Ibrahaim identified the defendant as the perpetrator of the robberies after seeing his picture in a photographic array.

I

The defendant first claims that the court precluded him from fully questioning prospective jurors. He claims that the court precluded him from asking prospective jurors whether they could separate the robberies if they knew that the same clerk was working at the store during both robberies. He asserts that if the jurors learned for the first time at trial that the same clerk was on duty during both robberies and would be the identification witness as to each robbery, they would have difficulty keeping the two robbery counts separate and distinct during their consideration of the evidence.

The following question exemplifies the questions at issue: “If you hear that the same man was robbed twice, and in his mind it was by the same person, would you be able to keep those two incidents separate?” The court sustained the state’s objection to this question, ruling that the defendant was “precluded from asking these jurors whether or not, if the same victim is robbed within a six day period, whether or not that would have an effect on their ability to keep the charge separate.” The court further stated: “In this particular case I think it is inappropriate, and your questions, as you frame them, indicate that they would have difficulty. I assure you that I will charge the jury appropriately, and I think that the simple question is whether or not they could keep both incidents separate as they would be charged to do.” The trial court even advised defense counsel on how to ask the question in a proper manner. The court told counsel that if she asked questions probing the ability of the prospective juror to keep the two incidents separate without mentioning the fact that the same person was robbed in both incidents, the question would be acceptable.

The state argues that evidence of the two robberies was admissible as to each charge in a joint trial because together the evidence proved identity and a common scheme. The admissibility of the evidence, therefore, creates a factual issue concerning whether each robbery was corroborative of the defendant’s guilt in the other robbery. For the defendant to present to a prospective juror the fact that the same clerk was robbed twice and then to ask whether he or she could keep the charges separate constituted an improper attempt to obtain in advance the prospective juror’s view on the significance of a particular fact.

“The right to question each juror individually by counsel shall be inviolate.” Conn. Const., art. I, § 19, as amended by art. four of the amendments. General Statutes § 54-82f further provides: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. ...” “The extent to which parties should be allowed to go in examining jurors as to their qualifications is a matter largely resting in the sound discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused, and where harmful prejudice appears to have been caused thereby.” Sherman v. William M. Ryan & Sons, Inc., 126 Conn. 574, 578, 13 A.2d 134 (1940).

Our Supreme Court has distinguished a question as to the qualifications of the jurors from a hypothetical question. Id. “[Hjypothetical questions intended to elicit from a juryman in advance what his decision will be under a certain state of the evidence or upon a certain state of facts should not be permitted by the trial court. A party has no right to assume the facts of a case about to go on trial, and ascertain the juror’s opinion in advance.” Id.

In this case, the questions would have allowed into the voir dire the fact that the same person was the victim of both robberies, suggesting that it may be difficult to keep the two incidents separate. The trial judge sustained the objections of the assistant state’s attorney to the defense counsel’s questions. Because defense counsel had no right to ask jurors their opinions on an assumed set of facts, we conclude that the trial court properly exercised its discretion in prohibiting the question. See id., 579.

II

The defendant’s second claim is that the trial court improperly allowed the state to cross-examine the defendant’s alibi witness, Monica Robinson, regarding a domestic incident that was not relevant to the robbery charges. The defendant contends that the state questioned Robinson in an attempt to show prior misconduct by the defendant. The state argues that although the prior statements of Robinson concerned the defendant’s misconduct, they were not admitted to prove that the defendant engaged in the misconduct, but to establish the status of the relationship between Robinson and the defendant. Robinson, the defendant’s girlfriend, testified that on December 23 and 29,1992, she and the defendant were in bed together due to illness. The state further argues that the court admitted only the witness’ inconsistent statements concerning the incident, and that these statements were relevant to the credibility of her alibi testimony.

In its cross-examination of Robinson, the state asked a series of questions that suggested that shortly before the robberies, Robinson made a complaint to the police concerning an altercation at her residence involving the defendant. She had told the investigating officer that the defendant was her ex-boyfriend and that she saw him smash her car windshield with a stick. The questions further suggested that the defendant had asked Robinson for $10 and that she had refused to give it to him because she believed that the money would be used for drugs. At trial, Robinson denied that she had made a complaint against the defendant, that she had referred to him as her ex-boyfriend, that she had seen him breaking the windshield or that he had asked her for $10 that she had believed he would use to buy drugs.

The state introduced rebuttal testimony to prove that shortly before the robberies, a police officer answered a criminal complaint made by Robinson against the defendant. The investigating officer testified that Robinson had referred to the defendant as her former boyfriend. Because Robinson testified on direct examination that the defendant was her boyfriend at the time the robberies took place, during cross-examination, the state explored their relationship and the criminal complaint regarding the altercation and the smashing of the windshield. The purpose of this inquiry was to allow the jury to gauge the credibility of Robinson’s testimony.

As a general rule, evidence of a criminal defendant’s prior crimes or misconduct is not admissible. State v. Crumpton, 202 Conn. 224, 228, 520 A.2d 226 (1987). Evidence of prior uncharged misconduct may be used, however, to impeach the credibility of a defense witness. State v. Cooper, 227 Conn. 417, 430-31, 630 A.2d 1043 (1993). “ ‘The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court.’ ” State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986).

In this case, the evidence of the relationship between the defendant and Robinson was material and relevant to establish whether Robinson’s alibi testimony was credible. Because Robinson was an alibi witness for the defendant, the state had a right to attack her credibility. In the course of cross-examination, the state had a right to adduce the defendant’s prior uncharged misconduct as long as it was relevant and its probative value outweighed its prejudicial impact. State v. Williamson, 206 Conn. 685, 698, 539 A.2d 561 (1988).

The question that we now address is whether the questions involving prior uncharged misconduct were more prejudicial than probative. The evidence was highly probative because it focused on the defendant’s alibi defense, which was necessarily a central part of the case. Robinson was the sole witness who testified that the defendant was at her apartment during the commission of the robberies. The testimony was that the defendant was Robinson’s boyfriend and both were ill and confined to bed together during both robberies. The state inquired as to the status of the relationship between Robinson and the defendant and whether at the time of the robberies the status of the relationship was consistent with Robinson’s alibi testimony. These questions and the rebuttal testimony of the officer tended to weaken Robinson’s credibility. The trial court diminished the prejudicial effect of the evidence by giving the following limiting instruction: “Now, you heard some evidence in the case regarding an incident where the defendant, Monica Robinson and her mother were involved, and a New Haven police officer was called there. It was not offered to prove that the incident, in fact, occurred .... The evidence was only admitted in trial to test the credibility of Monica Robinson.”

Considering the purpose of the challenged evidence and the trial court’s limiting instruction, we cannot conclude that as a matter of law the court abused its discretion in finding that the probative value of the evidence outweighed its prejudicial effect and in admitting prior uncharged misconduct by the defendant. See State v. Brown, supra, 199 Conn. 58.

Ill

The defendant’s final claim is that the trial court improperly precluded him from rehabilitating his alibi witness by excluding the entry into evidence of his notice of alibi and the related testimony of the clerk of court. In cross-examining Robinson, the state asked her to explain why she did not contact the police or the state’s attorney to tell them that the defendant was with her at the time the robberies occurred. She replied that it was not her responsibility to do so. Robinson also claimed that she wrote a letter to the clerk of the court stating that the defendant was with her at the times the robberies were committed. The clerk testified that he was the keeper of the file and, after examining it, did not find that it contained a letter from Robinson.

The defendant filed a notice of alibi defense in accordance with the requirements of Practice Book § 763, stating that he would rely on the testimony of Robinson to show that he was with her. The defendant argues that it was the state’s responsibility to contact Robinson. The state argues that neither the statutes nor the rules of practice require it to contact an alibi witness.

Outside the presence of the jury, the defendant moved to have the state’s demand for notice of alibi defense and the defendant’s notice of alibi defense and amended notice of alibi defense introduced into evidence as full exhibits through the testimony of the clerk of court. The state countered by pointing out that there had been discussions between the state and defense counsel concerning Robinson’s correct address. Additionally, the state argued that the decision to contact Robinson involved trial tactics and that inquiries into the notice of alibi defense documents, and the actions taken in connection with them, could lead to the state’s attorney’s and defense counsel’s being required to testify. The trial court sustained the state’s objection to the defendant’s motion to make the notice of alibi defense documents full exhibits and held that they were not relevant to the issues raised at trial. The court further concluded that the notice of alibi documents were filed simply to comply with the rule set out in Practice Book § 763.

“[0]ur standard of review regarding challenges to a trial court’s evidentiary rulings is clear. Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Indrisano, 29 Conn. App. 283, 291, 613 A.2d 1375 (1992), quoting State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990).” (Internal quotation marks omitted.) State v. Johnson, 29 Conn. App. 584, 587-88, 617 A.2d 174 (1992) , appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993) (certification improvidently granted). The alibi testimony of Robinson was fully presented to the jury and her reasons for not contacting the police were also given. Robinson also testified that the state had not contacted her. The defendant has not shown that the state’s failure to contact Robinson, even with the knowledge that the defendant planned to use her as an alibi witness, was relevant. Under the circumstances of this case, we cannot conclude that the court abused its discretion or that the defendant was substantially prejudiced by the court’s ruling.

The judgment is affirmed.

In this opinion the other judges concurred.