author: Schaller, J.

text:
    State of Connecticut v. Vernon Shanks
    (11633)
    Landau, Freedman and Schaller, Js.

      Argued November 1, 1993
    decision released April 12, 1994

      Brian J. Kornbrath, with whom were Lisa M. Sosa, certified legal intern, and, on the brief, Timothy H. Everett and Julie E. Daniele, certified legal intern, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant, Vernon Shanks, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l), and of carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant presents the two following issues on appeal: (1) whether the trial court improperly failed to grant the defendant’s motion for a new trial without conducting any further inquiry to determine whether alleged prosecutorial misconduct had prejudiced the jury; and (2) whether the trial court improperly instructed the jury by failing to relate the law to the facts of the case with regard to the elements of assault in the first degree, the identification of the perpetrator and the credibility of the witnesses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1991, Robert Cosme, the victim, lived at the Marina Apartments on Main Street in Bridgeport, across the street from Coamo’s Bar. Cosme and James Peace, whose mother also lived at the Marina Apartments, had been involved for several years in a dispute. Peace had been convicted of stealing Cosme’s car. After Peace’s release from prison, he and Cosme had a fight; both men were arrested and placed on probation. Approximately two weeks prior to June 8,1991, Peace and Cosme argued because Peace’s vehicle was allegedly blocking Cosme’s vehicle. The defendant witnessed this argument, and laughed at Cosme.

On June 8, 1991, Cosme was at Coamo’s Bar from about 8 p.m. until 11:30 p.m. As Cosme left the bar, he noticed that the defendant was standing outside of the bar talking with a woman. Cosme approached the defendant and asked him why he had laughed at him during his argument with Peace. The defendant responded that he had nothing to do with that incident, and stated, “You think I’m fucking around, Robert, you think I’m fucking around. I’ll be back.”

Cosme perceived the defendant’s words as a threat. He went to his apartment to get a knife and returned to the area where he had met the defendant. The defendant, however, was no longer standing outside the bar. Cosme took the knife back to his apartment and then returned to the bar for approximately ten to twenty minutes. When Cosme crossed the street on the way to his apartment, he heard someone call “Hey, Robert.” Cosme looked in the direction of the voice and saw the defendant holding a 9 millimeter handgun. The defendant fired three shots at Cosme. The third shot struck Cosme in the right thigh, seriously fracturing his femur. Cosme spent the next three weeks recuperating at Park City Hospital.

The day after the incident, Detective Gregory Iamartino of the Bridgeport police department spoke with Cosme at the hospital. Cosme provided Iamartino with a description of the defendant and the name “Vernon.” On June 16, 1991, in response to a phone call from Cosme, Iamartino sent a patrol car to the area of Main and Whiting Streets, where Officer Paul Nikola identified the defendant as having the first name “Vernon” and meeting the physical description provided by Cosme. Nikola then contacted Iamartino, who went to the scene. Iamartino informed the defendant that he was a suspect in the shooting, and asked if the defendant would go "with him to the police station and give a statement. The defendant agreed. While at the police station, Iamartino took two photographs of the defendant.

Iamartino placed the photographs of the defendant in an album containing approximately fifty other photographs. He then gave the album to Cosme, who, without hesitation, chose the photographs of the defendant as being of the person who had shot him. Iamartino then applied for an arrest warrant and subsequently arrested the defendant.

I

The defendant first contends that we should remand this case to the trial court for a new hearing on his motion for a new trial, due to alleged prosecutorial misconduct that may have prejudiced the jury. The following additional facts are relevant to this claim. Pamela Stewart, a Bridgeport police officer, was a member of the jury. On cross-examination of the defendant, the prosecutor asked the defendant if he knew someone by the name of Victor Martinez or “Ears” Martinez. The defendant denied any personal knowledge of this individual, as the following colloquy ensued:

“[State’s Attorney]: Now, in addition to the job that you have, did you have any other jobs in the area of Main and Whiting?

“[Witness]: No, sir.

“[State’s Attorney]: You worked for a man named Ears at that location?

“[Witness]: No, sir.

“[State’s Attorney]: You know a man named Ears that works out on Main Whiting Street.

“[Witness]: No, sir.

“[State’s Attorney]: Do you know a man named Victor Martinez that works out there, sir?

“[Witness]: No, sir.

“[State’s Attorney]: Ever heard that name before?

“[Witness]: Yes, sir. I believe I heard that name before.”

Defense counsel did not object to this cross-examination. On redirect of the defendant, defense counsel touched on the defendant’s knowledge of Ears and Victor Martinez. This exchange occurred:

“[Defense Counsel]: Are they known drug dealers?

“[Witness]: Yes, sir. They are.

“[Defense Counsel]: Have you ever dealt drugs?

“[Witness]: No, sir.”

At the hearing on the defendant’s motion for a new trial, which, as written, concerned the testimony of one witness, the twelve year old daughter of the victim, counsel for the defense also presented the following: “I would like to make an additional comment, however, on the motion for a new trial. It wasn’t until I read the presentence investigation that I realized the potential net effect, disastrous effect, the mention of Mr. Hector Martinez may have had in this trial. As the court is aware, I selected a Bridgeport police officer [Stewart] as a member of this jury and all in all I thought it was a good choice. . . . There was a question that I thought . . . was fair game — are you associated with Hector Martinez — do you know Hector Martinez? I didn’t know who he was and the witness answered no, he didn’t. And we went on. But now it turns out that Hector Martinez apparently was known by the entire . . . Bridgeport police department as the person that assaulted Sergeant Lords Piccirillo during a drug raid or during some type of an outburst at one of the housing projects. I can only speculate on this argument. It would seem if he was that popular a character and perhaps by innuendo or whatever, Mr. Shanks, even though he denied his association with this Hector Martinez, that name . . . would obviously, one would think, be knowledge to other police officers on the department. I don’t know what effect that had, Your Honor. I can only say that it would appear as though, because of the . . . assault on Louis Piccirillo, [Stewart], who’s been ... [a member of the Bridgeport police department] a long time, I’m sure knows Piccirillo and . . . Martinez, who apparently is a bad, real bad character, and ultimately has been arrested for the assault on Louis Piccirillo, [and] may have had an effect on that juror’s . . . thinking processes and one would suspect . . . that outside agency would have influenced the deliberation process of that juror. And in all other respects I stand on what was contained in the written motion ”6

“When the verdict in a criminal case is challenged on the basis of allegedly prejudicial remarks made by the prosecutor, the defendant bears the burden of proving such prejudice within the context of the trial as a whole. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Evans, [10 Conn. App. 605, 608, 524 A.2d 1165 (1987)], quoting State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984).” (Internal quotation marks omitted.) State v. Wilson-Bey, 21 Conn. App. 162, 171, 572 A.2d 372, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990). While the defendant bears the burden of proof in this matter, “[a] state’s attorney should scrupulously avoid questions of probable impropriety .... State v. Piskorski, 177 Conn. 677, 719-20, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). A demonstrated deliberate effort by a prosecutor to influence the jury against the defendant through the attempted introduction of obviously inadmissible evidence may entitle the defendant to a new trial. United States v. Woods, 486 F.2d 172 (8th Cir. [1973]); State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95,46 L. Ed. 2d 74 [1975]. State v. Baker, 182 Conn. 52, 58, 437 A.2d 843 (1980).” (Internal quotation marks omitted.) State v. Binet, supra, 629.

At best, the above exposition by defense counsel during the hearing on a motion for a new trial is an offer of proof. The defendant, however, discussed how an “outside agency” may have impacted the jury decision without presenting any proof of the extrinsic matter claimed to affect the jury. In the appendix of the defendant’s brief for this court, he included copies of three newspaper articles and the affidavit in support of an arrest warrant for Martinez, all of which concern the alleged assault by Martinez on Piccirillo. None of these items was offered into evidence or even mentioned at the hearing on the motion for a new trial, and are not proper material for an appendix. See Practice Book § 4065 (d) (3) (“[w]hen error is claimed in any other ruling in a court or jury case, the brief or appendix shall include, where appropriate: the pertinent motion or pleading, if it does not appear in the record, as well as any other document which is a part of the file on appeal but is not proper for inclusion in the record” [emphasis added]).

The defendant now asks this court to take judicial notice of those documents and remand the case to the trial court for a more extensive hearing on the motion for a new trial, at which the defendant would present evidence to support the allegations based on the information contained in the articles and affidavit. The defendant compares this situation with one of jury misconduct, where extrinsic evidence allegedly has prejudiced the jury and requires that the trial court conduct an inquiry. See State v. Migliaro, 28 Conn. App. 388, 611 A.2d 422 (1992); State v. Gonzalez, 25 Conn. App. 433, 596 A.2d 443, aff'd, 222 Conn. 718, 609 A.2d 1003 (1992). The defendant contends that the mere acknowledgment of the existence of the documents by this court through judicial notice would indicate that some extrinsic evidence was present that may have prejudiced the jury and therefore requires that the case be remanded for a new hearing. We note, however, that only one of the articles that the defendant placed in the appendix was published prior to the jury verdict. In addition, the published article that described the alleged assault on the officer did not even mention Martinez’ name.

“There are two types of facts considered suitable for the taking of judicial notice: those which are ‘common knowledge’ and those which are ‘capable of accurate and ready demonstration.’ McCormick, Evidence (2d Ed.) § 330, p. 763.” Moore v. Moore, 173 Conn. 120, 123 n.1, 376 A.2d 1085 (1977). The information contained in the articles and affidavits does not fit either of these criteria, and we decline the invitation to take judicial notice of the documents.

We conclude, therefore, that the defendant has failed to present an adequate record for appellate review of this claim.

At the motion for a new trial, the defendant asserted that the mention of Martinez may have had a “disastrous effect” on the case. Without presenting any evidence to establish the potential exposure of a member of the jury to some prejudicial extrinsic evidence, the trial court had no basis to determine that “it appears . . . that the jury panel may have been exposed to prejudicial extrinsic evidence.” State v. Migliaro, supra, 28 Conn. App. 396.

“It is not the function of this court to find facts. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988).” State v. Rios, 30 Conn. App. 712, 716, 622 A.2d 618 (1993). We are in a position similar to that of the trial court in this case, as we do not have before us the factual background necessary to determine whether the jury panel may have been exposed to prejudicial extrinsic evidence of the sort that requires us to remand the case for a new hearing on the motion for a new trial. The defendant has failed to present an adequate record for reviewing that claim.

II

The defendant next alleges that the trial court improperly charged the jury by failing to relate the law to the facts of the case with regard to the assault charge, the identification of the perpetrator, and the credibility of the witnesses. The defendant did not submit a request to charge, and made an exception at trial only as to the issue of identification.

A

The defendant contends that the trial court’s failure to relate the facts of the case to the law in its jury instructions regarding the elements of assault in the first degree deprived the defendant of his constitutional due process right to an adequately instructed jury. See State v. Lemoine, 33 Conn. App. 743, 747-54, 641 A.2d 131 (1994). The defendant concedes that he did not preserve this claim at trial, and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, our Supreme Court held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 239-40.

While we conclude that the defendant has met the first two prongs of the Golding analysis for review of his claim, the defendant has not met the third prong. The first criterion of Golding was “designed to avoid remands for the purposes of supplementing the record.” State v. Leroy, 33 Conn. App. 232, 235, 635 A.2d 305 (1993). We are able to examine the transcript of the entire trial, including the jury instructions, and the information presented there is adequate for this court to determine whether a constitutional violation has occurred.

Turning to the second prong of Golding, we must consider “whether the instructions given by the trial court were so deficient as to implicate the constitutional right of the defendant to a fair trial. A jury instruction conforms with constitutional requirements if it provides jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. . . . State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992). An instruction that fails to satisfy these requirements [violates] the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Id., 603.” (Internal quotation marks omitted.) State v. Wolff, 29 Conn. App. 524, 530, 616 A.2d 1143 (1992). The defendant’s contention that the jury instructions failed to provide an understanding of the elements of the crime charged as they pertained to this case implicates the constitutional right of the defendant to a fair trial.

We cannot conclude, however, that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. The defendant alleges that the jury instructions in this case, specifically that portion in which the trial court related the elements of assault to the specific facts of the case, resemble those found deficient in State v. Wolff, supra, 29 Conn. App. 530. In that case, the defendant was charged with four crimes, assault in the third degree of a victim over the age of sixty, assault in the third degree, and two counts of unlawful restraint in the second degree. Two of the crimes pertained to one victim, while the other two crimes pertained to a second victim. During its instructions, the court failed to explain which crime corresponded with each victim. This court stated that the “issues in this case were complicated, peculiar, and capable of differing constructions because the case involved two separate victims and similar crimes.” Id., 532. The court concluded that “[i]n such a case, ‘where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary.’ Jacques v. Carter, [2 Conn. App. 27, 33-34, 476 A.2d 621 (1984)].” Id. We further note that “[a] court’s charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial. See State v. Rose, [169 Conn. 683, 687, 363 A.2d 1077 (1975).]” State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

This case has a simpler factual and legal background than does State v. Wolff, supra, 29 Conn. App. 532. Here, the defendant was charged with two distinct crimes, assault in the third degree and carrying a pistol without a permit, and there is only one victim. At the beginning of its instructions, the court made clear that the terms “defendant” and “accused” referred to Shanks. The court read the information and §§ 53a-59 and 29-35. The court then accurately reiterated the law on both crimes, but specifically referred to the “defendant” and “this case,” and also noted that the defendant’s use of a handgun, if proved, satisfied the requirement of a “deadly weapon” as set forth in § 53a-59. Viewed in the context of the factual issues raised at trial, the instructions set forth the crime of assault in this case clearly and separately from the crime of carrying a pistol without a permit, and sufficiently related the law to the facts of the assault charge. Because we cannot determine that the alleged constitutional violation clearly exists, we therefore conclude that the defendant has failed to meet the third prong of Golding.

B

The defendant further claims that the court did not adequately instruct the jury with regard to the credibility of witnesses. The defendant contends that the court specifically pointed out the potential biases in the testimony of the defendant, but failed to enumerate potential biases in some of the state’s witnesses, particularly Cosme and his daughter, thus creating an imbalanced set of instructions. The defendant acknowledges, however, that the court did specifically instruct the jury that the testimony of the police officers, witnesses for the state, did not deserve more credence due to their status. The court also specifically instructed the jury regarding the credibility and the assessment of the qualifications of the state’s expert witness, Eric Katz, an orthopedic surgeon, whose deposition was read into the record. The court stated that “[i]n this particular case there was testimony in the form of a deposition that was read to you of an expert witness . . . in weighing the testimony of an expert you apply to him the same general rules that you apply to all witnesses such as bias and interest in the case. In addition you "will determine for yourself whether the witness has specialized knowledge and experience in the field upon which his opinion is founded.” The court then posed several questions that the jurors could ask themselves in order to evaluate the testimony of the expert witness. The defendant did not preserve at trial the issue regarding instructions on credibility, and seeks review under Golding.

We conclude again that the first prong of the Golding analysis has been met; there is an adequate record for our review of the constitutionality of this claim. We now proceed to the second prong. “Just as every claim of evidentiary error by the trial court is not truly constitutional in nature . . . every claim of instructional error is not truly constitutional in nature. We have also recognized . . . that claimed instructional errors regarding general principles of credibility are not constitutional in nature. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991).” (Citations omitted.) State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993). Thus, we must determine whether the alleged violation in this case raises an issue of constitutional significance.

In State v. Walton, supra, 227 Conn. 63, the defendant claimed that the court had framed the instructions in a biased manner by stating, “ ‘The state of Connecticut . . . looks to you as sworn officers of this court to deal with this case fairly, firmly and honestly as strong minded men and women and with the interest placed in your hands as an arm of the court to aid and uphold the law of the land by rendering a verdict of guilty if the facts and the law require such a verdict.’ ” While our Supreme Court noted that the trial court could have chosen more appropriate language, it also determined that the “defendants have clothed a non-constitutional claim in constitutional garb.” Id., 64. The court determined that the sentence at issue was “part of a passage that concerns the jury’s general duty to consider the evidence carefully and objectively . . . it strains the meaning of constitutional claims to say that this claimed instructional error is constitutional in nature.” Id., 65.

In this case, the defendant claims that the jury instructions were unbalanced due to specific comments by the court as to the defendant’s credibility, without similar comments as to that of Cosme and his daughter. The defendant argues that in its instructions, the trial court “stressed” that the jury should consider the defendant’s interests. In context, the instruction regarding the defendant’s credibility, however, was evenhanded. The court instructed the jury as follows: “An accused person is not obligated to take the witness stand in his own behalf. On the other hand, he has a perfect right to do so as the defendant here has done. In weighing the testimony he has given, you should apply the same principles by which the testimony of other witnesses is tested and that necessarily involves a consideration of his interests in the case and the importance to him of the outcome of the trial. An accused person having become a witness stands before you just like any other witness. He is entitled to a fair and careful consideration of his testimony but at the same time he must have his testimony tested and measured in the same way as any other witness including the elements of his interest in the decision you are to render.”

The defendant focuses on the statement that the jury’s review of the credibility of the defendant “necessarily involves a consideration of his interests in the case.” We conclude that it would “strain the meaning of constitutional claims”; id., 65; to elevate this claimed instructional error to one of constitutional import. Because the defendant has failed to meet the second prong of Golding on this issue, we will not review this claim.

C

The defendant also alleges that the trial court failed to instruct the jury properly that the identity of the defendant as the perpetrator had to be proved by the state beyond a reasonable doubt. The defendant did preserve this claim for review. After the court charged the jury, the defendant excepted to the court’s instructions. Counsel for the defendant stated: “[T]he only question that I have is that I didn’t hear the court indicate that not only must the elements of the crime be proven beyond a reasonable doubt but the identity of the person that committed that, as a threshold issue, must be proven [beyond] a reasonable doubt.”

“It is axiomatic that a jury must find that the defendant on trial before it was the person who committed the alleged offense in order to render a verdict of guilty.” State v. Smith, 7 Conn. App. 715, 718, 510 A.2d 219, cert. denied, 201 Conn. 804, 513 A.2d 699 (1986). In State v. Walker, 9 Conn. App. 373, 376-77, 519 A.2d 83 (1986), cert. denied, 202 Conn. 805, 520 A.2d 1286 (1987), we noted that “[t]he court . . . properly instructed the jury that each essential element, including identity, had to be proved by the state beyond a reasonable doubt. A review of the charge as a whole leads us to the conclusion that it is not reasonably possible that the jury was misled as to the state’s burden of proof.” (Emphasis added.)

Our review of the complete jury instructions in this case also leads us to conclude that it is not reasonably possible that the jury was misled as to the necessity of determining the identity of the perpetrator beyond a reasonable doubt. At the outset of the instructions, the court noted that where it used “defendant” and “accused,” those terms referred to Shanks. The court further noted that it wanted to make “clear to you— the burden which rests upon the state to prove the accused guilty of the crime charged beyond a reasonable doubt necessarily involves proof that he was present at the scene of the crime when-it was committed.”

The court thereafter instructed the jury that in order to find the defendant guilty of the assault charge, “the state must prove beyond a reasonable doubt the following elements: That the defendant caused serious physical injury to another person by means of a deadly weapon and that the defendant did so with the specific intent to cause such injury to that person.” (Emphasis added.) The court continued to refer to the defendant as it explained further the elements of the crime as related to this case. The court concluded by stating, “If you find that the state has proven beyond a reasonable doubt that the defendant caused serious physical injury to another person by means of a deadly weapon, in other words, handgun, and that the defendant intended to cause such injury to the victim, your verdict will be guilty of assault in the first degree as to this count.” (Emphasis added.)

As to the charge of carrying a pistol without a permit, the court read the statute and then stated: “In order to convict the defendant of this offense [the] state must prove beyond a reasonable doubt two essential elements: That the defendant carried a pistol or revolver upon his person while outside his dwelling house or place of business and that he did not have a permit.” (Emphasis added.) The court further explained the elements of the offense. We conclude that it was not reasonably possible that the jury was misled to believe that the identity of the defendant as the perpetrator of the crimes did not have to be proved beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged by substitute information. The defendant was also originally charged with attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a, but those charges were dismissed at the close of the state’s case-in-chief.

       General Statutes § 53a-59 provides in pertinent part: “(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

       General Statutes § 29-35 provides in pertinent part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. ...”

       The following colloquy occurred between the prosecutor and Cosme:
      “[State’s Attorney]: Why did you go get a knife?
      “[Witness]: Well, because I figured ... I was going to have to defend myself. He said he was going to come back.
      “[State’s Attorney]: What did that mean to you?
      “[Witness]: I figured he was going to get a weapon or something . . . .”

       Although the prosecutor here referred to Martinez as Victor, Martinez’ first name is Hector.

       We note that the defendant brought this motion for a new trial pursuant to Practice Book § 902, which concerns alleged errors by the trial court during the course of the trial. The defendant’s contention of new evidence, namely that of prosecutorial misconduct, should have been brought in a petition for a new trial, pursuant to Practice Book § 904 and General Statutes § 52-270. See State v. Curley, 25 Conn. App. 318, 595 A.2d 352, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991). We conclude, however, that the failure of the defendant to bring the motion pursuant to Practice Book § 904 will not preclude our review in this case, as the defendant presented to the trial court the grounds for its request and the trial court ruled upon that request.

       We also note the recommended purposes of an appendix as set forth in comment 8 c. to Practice Book § 4065. W. Horton & S. Cormier, Conneetieut Practice — Practice Book Annotated, Rules of Appellate Procedure (1994). That comment states in pertinent part: “The most effective use of the appendix today is to reproduce exhibits or lengthy portions of statutes that are to be used in oral argument.”

         In State v. Migliaro, supra, 28 Conn. App. 396, this court commented, “Here, the trial court was presented with sufficient indicia that at least one juror had been exposed to potentially prejudicial extrinsic evidence to trigger the trial court’s duty to investigate the potential jury misconduct further. The trial court knew that a juror brought a medical book into the courthouse. It also knew that medical evidence was critical to the jury’s resolution of the issue of the cause of the victim’s death, the primary and most hotly contested issue in the case.” (Emphasis added.) In State v. Gonzalez, supra, 25 Conn. App. 438, one juror sent the judge a note, after deliberations had begun, requesting to talk with the judge because “something was said by [another juror] that may have prejudiced the jury.” The trial court refused, and this court remanded the ease for further inquiry. There the trial court had the knowledge that a prejudicial statement may have been made, although it did not know the content of that statement. This court most recently decided State v. Brown, 33 Conn. App. 339, 343, 635 A.2d 861 (1993), in which an anonymous note was sent to the court claiming that an individual named Dana, who had recently served on a jury, reported to the writer of the anonymous note that the jurors had “overheard the sheriffs ‘betting that the defendant would be found guilty because he was black and from New York.’ In addition, the letter stated that Dana told the author that she had overheard one sheriff tell another that a Wilton detective showed one of the witnesses some pictures because ‘the witness couldn’t remember what the guy looked like.’ ” The defendant introduced a claim of jury misconduct at his motion for a new trial. The trial court denied the motion, and this court refused to remand the case for a further inquiry regarding the juror misconduct, reasoning that the trial court knew the nature of the alleged misconduct and had an adequate factual basis to make its conclusion. Id., 346. In the present case, the court had no evidence that a juror may have been exposed to extrinsic evidence of any sort, such as a book, statement or conversation linking the defendant to Martinez and Martinez to the alleged assault on the officer, that could have had an impact on the case.

       In his reply brief and at oral argument, the defendant waived his claim that the court improperly instructed the jury by failing to relate the law to the facts of the case with regard to the elements of the crime of carrying a pistol without a permit.

       The defendant set forth the following in his brief: “The defendant has a fundamental constitutional right to a jury trial. Art I. § § 8 & 19, Conn. Const.; Amend. VI & XIV, U.S. Const.... Essential to the jury trial is the right to adequate jury instructions.” Although the defendant invokes the state constitution in support of his claims of improper jury instruction, “we limit our analysis to the federal guarantee in light of his failure independently to analyze the state constitution.” State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       We note that “[w]hereas the first two conditions of Golding are determinations of whether a defendant’s claim will be reviewed, the third prong constitutes a review of the merits. See Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992) (‘[h]aving surmounted the threshold requirements for review . . . the plaintiff is entitled to a determination of the merits of his claim under the third criterion’).” State v. Leroy, 33 Conn. App. 232, 236 n.2, 635 A.2d 305 (1993); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852 (1993).

       The defendant in his reply brief raised for the first time the issue that the court should have instructed the jury on the dangers of misidentification by the victim-eyewitness. See, e.g., United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). “It is a well established principle that arguments cannot be raised for the first time in a reply brief. Protter v. Brown Thompson & Co., 25 Conn. App. 360, 363-64 n.2, 593 A.2d 524 (1991); L. F. Pace & Sons, Inc. v. Traveler’s Indemnity Co., 9 Conn. App. 30, 45 n.8, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 866 (1986).” State v. Torres, 31 Conn. App. 443, 445-46 n.1, 625 A.2d 239 (1993). We decline to review this claim.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    City of Danbury v. Jorman M. Hovi et al.
    (13071)
    Considered March 14
    decision released April 12, 1994

      Daniel T. Eberhard, in support of the motion.

      JormanM. Hovi, pro se, in opposition to the motion.
   Per Curiam.

This is a foreclosure action brought by the plaintiff city of Danbury against the defendants, Jorman M. Hovi and Joan L. Hovi. The plaintiff moves to dismiss the appeal for lack of a final judgment. The dispositive issue in this case is whether a final judgment exists where summary judgment has been granted in a foreclosure action, but the amount of debt and the method of foreclosure have yet to be determined.

In its complaint, the plaintiff sought foreclosure of several municipal tax, sewer and water liens. On October 20, 1993, the plaintiff moved for summary judgment. The trial court granted the plaintiffs motion on November 15, 1993. In its order, the trial court indicated that summary judgment was “granted as to liability only.” The court also ordered that the case be “assign[ed] for findings on debt and entering of foreclosure judgment.” On December 3,1993, the defendant appealed from the entry of summary judgment.

The trial court’s order granting summary judgment clearly reveals that the amount of debt owed to the plaintiff, as well as whether the foreclosure should be strict or by sale, has not yet been determined. In Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 597 A.2d 1289 (1991), we dismissed an appeal from the entry of summary judgment for lack of a final judgment because the trial court had yet to determine the amount of the debt, the attorney’s fees or whether the foreclosure should be strict or by sale. “A judgment such as the one rendered herein is interlocutory in character and is not a final judgment from which an appeal properly lies.” Mac’s Car City, Inc. v. DiLoreto, 33 Conn. App. 131, 132, 634 A.2d 1187 (1993) (appeal from summary judgment rendered in action to foreclose judgment lien was dismissed for lack of final judgment because appeal was taken before trial court determined amount of debt and attorney’s fees and whether foreclosure should be strict or by sale).

“The lack of final judgment is a threshold question that implicates the subject matter jurisdiction of this court.” Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993), citing Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992). Because this appeal was not taken from a final judgment, it must be dismissed. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985).

The plaintiff’s motion to dismiss the appeal is granted.

       While the plaintiff’s complaint names other defendants, they are not parties to this appeal. When certain of the liens were due and payable, Jorman M. Hovi and Joan L. Hovi were the record owners of the subject property. In 1986, however, the defendant Jorman M. Hovi, as trustee, became the record owner of the property. Therefore, we refer to Jorman M. Hovi as the defendant.


author: O’Connell, J.

text:
    Ratick Combustion, Inc. v. State Heating, Piping and Cooling Work Examining Board
    (12311)
    O’Connell, Landau and Schaller, Js.

      Argued December 9, 1993
    decision released April 12, 1994

      Michael A. Arcari, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Robert M. Langer, assistant attorney general, for the appellant (defendant).

      Stuart A. Margolis, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from the trial court’s judgment in this declaratory judgment action. The plaintiff is a Connecticut corporation and the defendant is the state heating, piping and cooling work examining board (board). On appeal to this court, the defendant challenges the validity of the board’s ruling on the basis of claimed defects in the board’s membership. We vacate the judgment and remand for further proceedings.

In 1988, the plaintiff requested that the board issue a declaratory ruling under General Statutes (Rev. to 1987) § 4-176. Specifically, the plaintiff requested the board to determine whether boiler cleaning is included in the definition of heating, piping and cooling work in General Statutes § 20-330 (5). On October 13,1988, the board issued a declaratory ruling to the effect that boiler cleaning is included in the statutory definition of heating, piping and cooling work. Because this ruling was adverse to the plaintiff, it brought an action in the Superior Court for a declaratory judgment under General Statutes (Rev. to 1987) § 4-175.

After the pleadings were closed, confusion as to the nature of the action entered the case. For example, the plaintiff referred to its declaratory judgment action as an administrative appeal. On March 16,1990, the plaintiff claimed the action to the administrative appeals trial list, yet, in its June 22, 1990 trial brief, the plaintiff stated that it was seeking a declaratory judgment. After the case had been dismissed for the plaintiff’s failure to prosecute with due diligence, the plaintiff moved to restore it to the administrative appeals trial list. On January 19, 1993, the trial court stated in its memorandum of decision that “[although [the plaintiff] now brings this action for a declaratory judgment, the court treats it as an appeal from the ruling of the [defendant] board.” (Emphasis added.) Following its analysis of the issues, the trial court set the board’s declaratory ruling aside and remanded the matter to the board for further proceedings. Despite the court’s treatment of the matter, the judgment file refers to the action as seeking a declaratory judgment. This appeal followed.

As a threshold matter, we must address an issue not raised by either party. This court has the inherent authority to identify and decide issues sua sponte where we find noncompliance with a substantive, as opposed to procedural, requirement. Lo Sacco v. Young, 210 Conn. 503, 508, 555 A.2d 986 (1989). “This court has consistently held that jurisdictional limitations are not waived by a failure to object to the defect, and the court may raise such a jurisdictional defect on its own motion.” Id. In this case, the court’s treatment of the plaintiffs declaratory judgment action as an adminstrative appeal violated a substantive statutory requirement implicating the trial court’s jurisdiction. Accordingly, we address this issue sua sponte and find it dispositive of the appeal.

The version of § 4-176 in effect when this proceeding commenced, which governs this appeal, gave an administrative agency two options upon its receipt of a petition for a declaratory ruling. Significantly, the remedies of a party aggrieved by a declaratory ruling turned on which option the agency chose. Under option one, the agency could have conducted a fact-finding hearing pursuant to §§ 4-177 and 4-178, in which case the remedy for an aggrieved party would have been an administrative appeal pursuant to § 4-183. Under the second option, however, where an agency issues its ruling without holding a hearing, the statute provided that “the remedy for an aggrieved person shall be an action for a declaratory judgment under § U-l 75 . . . .” (Emphasis added.) General Statutes (Rev. to 1987) § 4-176. Because the board did not hold a hearing in the present case, the exclusive remedy available to the plaintiff was an action for a declaratory judgment under General Statutes (Rev. to 1987) § 4-175. There was no authority for an administrative appeal pursuant to General Statutes § 4-183.

Our conclusion is supported by a decision of the Appellate Session of the Superior Court. In Shearson

American Express, Inc. v. Banking Commissioner, 39 Conn. Sup. 462, 466 A.2d 800 (1983), the plaintiff appealed the trial court’s dismissal of its administrative appeal under General Statutes § 4-183 from a declaratory ruling of the banking commission. The plaintiff argued that a party aggrieved by an administrative agency’s declaratory ruling had an election to pursue either an administrative appeal under § 4-183 or a declaratory judgment under § 4-175. Id., 463-64. In affirming the trial court’s dismissal of the plaintiff’s appeal, the court held that a declaratory judgment action was the exclusive remedy in such a situation. Id., 466.

Under the reasoning of the Shearson decision, the trial court would have had no jursidiction to hear an administrative appeal in the first instance, and it cannot confer jurisdiction on itself by converting the statutorily required declaratory action into an administrative appeal. It is axiomatic that administrative appeals exist only under statutory authority; Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 663 (1988); and the parties cannot confer jurisdiction on the court by agreement. Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988).

Administrative appeals are limited by § 4-183 to agency decisions or orders in contested cases. Furthermore, judicial review of an administrative agency’s decision is confined to the record; General Statutes § 4-183 (f); Billings v. Commission on Human Rights & Opportunities, 18 Conn. App. 241, 244, 557 A.2d 147 (1989); whereas declaratory judgment actions require an evidentiary hearing. The record in this case indicates that the requisite evidentiary hearing was not held. Finally, although a remand to the agency is explicitly provided for by statute in an administrative appeal; General Statutes § 4-183 (g); Gervasoni v. McGrath, 36 Conn. Sup. 297, 301, 418 A.2d 952 (1980); such disposition is not permissible in a declaratory judgment action. See Practice Book §§ 389 through 394.

We conclude that the trial court was without jurisdiction to treat this matter as an administrative appeal and to remand it to the board.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendant raises the following issues on appeal: (1) Did the trial court improperly fail to apply § 2 of Public Acts 1989, No. 89-25, to validate the actions of the board? (2) Did the trial court improperly reject the common law rule that a majority of all the actual members of a board may form a quorum to conduct business? and (3) Did the trial court improperly conclude that the state heating, piping and cooling work examining board did not have a quorum when it rendered its declaratory ruling to the plaintiff?

       General Statutes (Rev. to 1987) § 4-176 provides: “Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an aetionfor declaratory judgment under section Jf-175 unless the agency conducted a hearing pursuant to sections Jr 177 and b-178for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section k-183. If the agency fails to exercise its discretion to issue sueh a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.” (Emphasis added.)

       General Statutes § 20-330 (5) defines heating, piping and cooling work as “the installation, repair, replacement, maintenance or alteration of any apparatus for piping, appliances, devices or accessories for heating systems, excluding sheet metal work; air conditioning and refrigeration systems, boilers, including apparatus and piping for the generation or conveyance of steam and associated pumping equipment, but on and after July 1,1984, shall not include solar work . . . .”

       General Statutes (Rev. to 1987) § 4-175 provides: “The validity or applicability of a regulation or order of any agency may be determined in an action for declaratory judgment brought in the superior court for the judicial district of Hartford-New Britain, if the regulation or order, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may not be rendered unless the plaintiff has requested the agency to pass upon the validity or applicability of the regulation or order in question, pursuant to section 4-176, and the agency has either so acted or has declined to exercise its discretion thereunder.”
      General Statutes § 4-175 was completely rewritten by Public Acts 1988, No. 88-317, effective July 1, 1989.

       General Statutes (Rev. to 1987) § 4-176 was completely revised by Public Acts 1988, No. 88-317. The new procedure no longer requires a declaratory judgment action, but is not applicable here because the amendment expressly provides that it would take effect July 1,1989, and be applicable only to proceedings commenced on or after that date. This case was not commenced on or after that date.

       See footnote 4.

       Under Practice Book § 391 (f), “[i]ssues of fact necessary to the determination of the [declaratory judgment] may be submitted to the jury as in other actions.”


author: Dupont, C. J.

text:
    Kevin Jon Weidenbacher v. Donna J. Duclos et al.
    (12236)
    Dupont, C. J., Foti and Lavery, Js.
    Argued January 4
    decision released April 12, 1994

      Richard G. Kent, with whom, on the brief, was Stuart M. Katz, for the appellant (petitioner).

      Louis RisCassi, for the appellees (respondents).
   Dupont, C. J.

The petitioner, Kevin Jon Weidenbacher, appeals from the judgment of the trial court dismissing his habeas corpus petition. He claims that the trial court improperly determined that he did not have standing to bring a habeas corpus petition for the purpose of establishing his paternity. We affirm the judgment of the trial court.

The state trial referee to whom the matter had been referred found that the respondents, Donna J. Duelos and Edward L. Duelos, were married on October 14, 1988. On October 31, 1988, a son, Grant Edward Duelos, was born to the respondents. His birth certificate lists Edward L. Duelos as the father. On November 14,1990, the respondents’ marriage was dissolved. The judgment of dissolution provided that Grant Duelos was the issue of the respondents’ marriage, and awarded custody to Donna Duelos. Edward Duelos received liberal visitation rights, and was ordered to pay $135 per week in child support. The habeas referee concluded that Edward Duelos is the “legitimate, legal father” of Grant Duelos.

The petitioner labels his action, brought December 15,1992, as “Habeas Corpus Concerning Custody of Child,” and alleges that he is the natural father of Grant Edward Duelos, that he is a fit person to have custody of and control over and visitation rights with the child, that the child’s welfare will best be served by placing the child in his custody, and that the child’s mother refuses to surrender the child. The petitioner seeks immediate physical custody or immediate rights of visitation, and claims that he has no other plain, speedy or adequate remedy at law. The return by both respondents denies that the petitioner is the father of the child, and alleges that the petitioner has brought three other actions in the Superior Court and Probate Court for the district of Middletown arising out of the same circumstances. The petitioner first brought a Superior Court action, which was withdrawn on July 13,1992. He next filed a petition in the Probate Court, which appointed for the minor child an attorney who filed a written brief in that court arguing that the case should be dismissed. The case was dismissed on October 14,1992, pursuant to General Statutes § 46b-172a. Finally, a third party motion to intervene in the dissolution action was withdrawn on November 30, 1992. The dissolution action went to judgment in 1990.

In regard to the habeas petition currently at issue, the respondents filed a motion to dismiss the petition on the ground that the petitioner lacked standing. The referee granted the motion to dismiss stating that “Connecticut courts have not extended the use of the writ of habeas corpus to a putative father seeking to challenge the paternity of a legitimate child.” The referee also cited the strong public policy interest in protecting children from the “effects of illegitimacy” and in maintaining the “integrity of family relationships.” The petitioner appeals from the judgment dismissing the petition.

General Statutes § 52-466 authorizes the filing of an application for a writ of habeas corpus. “A habeas corpus action has long been recognized in Connecticut as the proper procedure to determine the custody of a minor child. Kearney v. State, 174 Conn. 244, 249, 386 A.2d 223 (1978); Adamsen v. Adamsen, 151 Conn. 172, 178, 195 A.2d 418 (1963); 2 Stephenson, Conn. Civ. Proc. § 259.” Nye v. Marcus, 198 Conn. 138, 140-41, 502 A.2d 869 (1985).

In contrast to the usual habeas corpus case, the illegality of confinement is not at issue in a custody matter. Pi v. Delta, 175 Conn. 527, 530, 400 A.2d 709 (1978); Howarth v. Northcott, 152 Conn. 460, 464, 208 A.2d 540 (1965). Rather, “[a] habeas corpus petition concerning a minor child’s custody is an equitable proceeding in which the trial court is called upon to decide, in the exercise of its sound discretion, the custodial placement which will be best for the child. Nye v. Marcus, [supra, 198 Conn. 141]; McGaffin v. Roberts, 193 Conn. 393, 403, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).” Evans v. Santoro, 6 Conn. App. 707, 709, 507 A.2d 1007 (1986). “The legal rights of no one, including a parent, are allowed to militate against this.” Doe v. Doe, 163 Conn. 340, 343, 307 A.2d 166 (1972). Although the best interests of the child are the main concern of the court, that issue cannot be litigated by a party who lacks standing. Nye v. Marcus, supra, 141.

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981). “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded. Flast v. Cohen, [392 U.S. 83, 99-100, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1967)].” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978). While determining the existence of a “legal interest” requires consideration of the merits of a case, “standing” depends on whether the complainant’s interest is arguably within the zone of interests protected by the relevant statute or constitutional guarantee. Id.

In reaching its conclusion that the petitioner did not have standing to seek a writ of habeas corpus, the trial court quoted Forestiere v. Doyle, 30 Conn. Sup. 284, 286, 310 A.2d 607 (1973), stating that in order to bring his petition, the petitioner needed to have a “special interest,” the essential elements of which are “parenthood, cohabitation and support.” The petitioner argues that he has standing to litigate a habeas corpus petition on the basis of his allegations of parenthood and financial support of Grant Duelos, which he claims constitute a special interest in the custody of that minor child. He cites Doe v. Doe, supra, 163 Conn. 340, and Pi v. Delta, supra, 175 Conn. 527, as authority for his position.

In Doe v. Doe, supra, 163 Conn. 340, the petitioner filed a petition for a writ of habeas corpus to obtain custody and visitation rights as to Craig and Beverly, two minor children. His petition alleged that he was the biological father of Craig only, but treated both children equally as his own; that the respondent was the mother of both children; that during the ten years he and the respondent had lived together, she held out the petitioner to the community as the father of both children; and that he supported the children. Id., 341-42. The respondent successfully moved to quash the petition on the grounds that the petitioner had failed to allege guardianship of either child by reason of marriage or adjudication and that, as to Beverly, he had failed to allege parenthood.

On the petitioner’s appeal from the denial of standing to petition for visitation rights, the Doe court determined that the trial court did not improperly grant the motion to quash insofar as it related to Beverly, because the petitioner did not allege parenthood or guardianship. Id., 345. The court set aside the judgment, however, insofar as it related to Craig, in light of Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), which held that “ ‘[t]he private interest ... of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” Doe v. Doe, supra, 163 Conn. 340, has been interpreted as holding, among other things, that “only parents or legal guardians of a child have standing to seek habeas corpus relief.” Nye v. Marcus, supra, 198 Conn. 143.

In Pi v. Delta, supra, 175 Conn. 527, standing was further extended to a biological father who sought a writ of habeas corpus to determine custody of his four illegitimate children despite the absence of any allegation that a period of support and cohabitation had existed. The court perceived “no valid reason for denying the admitted natural father of an illegitimate child at the least the opportunity to obtain a judicial determination of custody where, as here, there is an allegation that the present custodian is unfit and that the interests of the children will best be served by a change in custody.” Id., 533. Here, the petitioner argues that the dismissal of his petition for a writ of habeas corpus should likewise be set aside, as “there clearly has been an allegation which is supported by substantial evidence that the [petitioner] is the father uf the minor child.”

Regardless of the petitioner’s allegation of paternity in the present suit, neither Doe nor Pi controls our disposition of this case. Unlike the petitioner in Doe, the petitioner here does not allege that he played a significant part in raising the child he claims to be his son, nor does he allege that the present custodian is unfit, or that the child was bom out of wedlock. The petitioner merely alleges that it would be in the child’s best interest for him to have custody or visitation rights. The allegation that the present custodian was unfit played an important role in the Pi court’s decision. Pi v. Delta, supra, 175 Conn. 533; see also General Statutes § 45a-610; McGaffin v. Roberts, supra, 193 Conn. 406.

Although relevant, the differences between the allegations of the petitions in the cases cited by the petitioner and the allegations in this case are minor in comparison to the crucial distinction between this case and the cases on which the petitioner attempts to rely. In both Doe and Pi, the petitioners were unwed fathers of children who had been born out of wedlock. In this case, the petitioner is seeking to establish parental rights to a child who was born during wedlock. There is a presumption in this state that a child born during wedlock is the child of the husband, which presumption may be rebutted only by clear and convincing proof that the child is illegitimate. Holland v. Holland, 188 Conn. 354, 357, 449 A.2d 1010 (1982); Schaffer v. Schaffer, 187 Conn. 224, 226, 445 A.2d 589 (1982). The petitioner in essence claims that he has standing to seek the opportunity to rebut that presumption.

In contrast to a child born out of wedlock, whose putative father may file a claim for paternity pursuant to General Statutes § 46b-172a, a child born during wedlock may not have his or her legitimacy challenged by a stranger to the marriage. Indeed, the statutes allowing a challenge to the presumption of legitimacy are very limited in scope. General Statutes § 46b-160 (a) entitles a mother to institute proceedings to establish the paternity of a child “born or conceived out of lawful wedlock, including one bom to, or conceived by, a married woman but begotten by a man other than her husband.” (Emphasis added.) Additionally, General Statutes § 46b-55 (b) authorizes a child born during a marriage that is terminated by a dissolution or divorce decree to establish the identity of his biological father within one year of the judgment of divorce or decree of dissolution if the child is found not to be the issue of the marriage. In this case, the judgment of dissolution specifically provided that the child was the issue of the respondents’ marriage. Furthermore, both of the respondents, the mother of the child and her ex-husband, who was ordered in the dissolution decree to support the child and who has done so, deny that the petitioner is the father.

This state does not have a statute that authorizes an outsider to a marriage to initiate proceedings to establish his paternity of a child born during that marriage. In light of the existence of § 46b-160 (a), it is clear that the legislature was aware of the category of children that are born during wedlock but are not sired by the husband. We must assume that the legislature has consciously chosen to exclude parties outside the marriage from those entitled to raise the issue of paternity.

The petitioner’s interest in establishing his paternity of a child born during wedlock is not one that is protected by the statutes or caselaw of this state. See Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 492. Consequently, the trial court properly dismissed his petition for a writ of habeas corpus for lack of standing.

The judgment is affirmed.

In this opinion the other judges concurred.

       No counsel was appointed for Grant Duelos in the habeas proceeding, although one was appointed in a prior action involving him in the Probate Court. Because the threshold question for the trial court was jurisdictional, namely whether the petitioner had standing to bring a writ of habeas corpus, it was not necessary to appoint counsel. Nye v. Marcus, 198 Conn. 138, 146, 502 A.2d 869 (1985).

       The petitioner, simultaneously with the petition for habeas corpus, filed a motion for a court-ordered blood test of Donna Duelos and Grant Duelos, to which the respondents objected. The referee refused to act on the motion because of the dismissal of the habeas petition.

       General Statutes § 46b-172a provides in pertinent part: “(a) Any person claiming to be the father of a child bom out of wedlock may at any time . . . file a claim for paternity with the court of probate for the district in which either the mother or the child resides . . . .” The Probate Court dismissed the petition for lack of jurisdiction because Grant Duelos was bom in wedlock.

       General Statutes § 52-466 provides in pertinent part: “(a) An application for a writ of habeas corpus shall be made to the superior court or to a judge thereof for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty

       In his petition for either custody or visitation rights regarding Grant Duelos, the petitioner'does not allege that the respondent Donna Duelos has “illegally confined or deprived” the child of his liberty. The petitioner, however, bases his right to either remedy on his alleged paternity. If a court has jurisdiction of a habeas corpus petition seeking custody, it also has jurisdiction to award visitation. See Evans v. Santoro, 6 Conn. App. 707, 709, 507 A.2d 1007 (1986).

       The petition contains no allegation that the petitioner has provided support to Grant Duelos. Such an allegation, however, would not give the petitioner standing, in light of the other facts of this case.

         General Statutes (Cum. Sup. 1967) § 45-43 provided in part: “The mother of each illegitimate child under twenty-one years of age shall be the sole guardian of the person of such child.” That sentence has since been deleted from the statute, which has been further amended and transferred to General Statutes § 45a-606.

       The United States Supreme Court has determined that as a matter of social policy, a state may deny an outsider to a marriage the opportunity to challenge the presumption that a child born during that marriage is that of the husband. Neither the alleged biological father nor the child has a fundamental right to maintain a parent-child relationship with the other. Michael H. v. GeraldD., 491 U.S. 110, 109 S. Ct. 2333, 105 L. Ed. 2d 291 (1989).

       The interest of a putative father in obtaining custody or visitation rights to a child he claims is his may be protected through General Statutes §§ 46b-57 or 46b-59. Custody and visitation may not, however, be collaterally attacked after a judgment as to those matters has been rendered.


text:
    Citicorp Mortgage, Inc. v. James H. Hairston et al.
    (13173)
    Dupont, C. J., Lavery, Landau and Schaller, Js.
    Considered March 2
    decision released April 12, 1994

      William K. Eisenman, in support of the motion.

      Charles I. Miller, in opposition to the motion.
   Per Curiam.

The plaintiff moves to dismiss the defendants’ appeal from a judgment of strict foreclosure. The dispositive issues in this case are whether the appeal is moot, and whether the appeal is frivolous and taken solely for the purpose of delay.

The entry of judgment of strict foreclosure followed the defendants’ failure to file a timely application for protection from foreclosure under General Statutes § 49-3 Id et seq. On appeal, the defendants challenge the adequacy of the notice provision of the statute. In its motion to dismiss, the plaintiff contends that even if the defendants were to prevail on appeal, they would not be eligible for relief in the trial court under § 49-31d et seq. and, as a result, the appeal is frivolous, as well as moot.

Whether the defendants would ultimately be granted relief under the statute is not the proper test for determining mootness of an appeal. The test, instead, is whether there is any practical relief this court can grant the appellant.

If this court decides the issues on appeal in favor of the defendants, the defendants will be permitted to submit an application for foreclosure protection pursuant to the provisions of § 49-31d et seq. Because there is some practical relief this court could grant the defendants, the appeal is not moot. See Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); see also Amalgamated Transit Union v. Laid-law Transit, 33 Conn. App. 1, 5, 632 A.2d 713 (1993).

Furthermore, this appeal does not meet the standards for a frivolous appeal under Texaco, Inc. v. Golart, 206 Conn. 454, 464, 538 A.2d 1017 (1988), nor does it fall within the category of appeals taken only for delay as in Wilton v. McGovern, 33 Conn. App. 517, 636 A.2d 870 (1994), and Connecticut National Bank v. Zuckerman, 31 Conn. App. 440, 624 A.2d 1163 (1993).

The plaintiffs motion to dismiss is denied.


text:
    Sheila L. Gibson v. Keith A. Gibson
    (12820)
    Dupont, C. J., O’Connell, Freedman and Spear, Js.
    Considered March 14
    decision released April 12, 1994

      Wesley W. Horton, in support of the motion.

      William J. Eddy and William J. Tracy, Jr., in opposition to the motion.
   Per Curiam.

The plaintiff in this dissolution of marriage action has filed a motion to strike the issue of post-judgment counsel fees from the defendant’s brief. The dispositive issue is whether this court’s January 27, 1994 dismissal of the defendant’s amended appeal, which raised the issue of counsel fees, precludes the defendant from addressing this same issue in his brief on the main appeal.

The facts in this case are undisputed. The parties’ marriage was dissolved by the trial court on August 26, 1993. On September 14,1993, the defendant appealed to this court from the judgment of dissolution. Thereafter, the plaintiff filed a motion for counsel fees in the trial court. During a hearing held on October 21,1993, the trial court granted the plaintiff’s motion for counsel fees in the amount of $5000.

On November 15, 1993, the defendant filed an amended appeal to include a challenge to the postjudgment award of counsel fees. On November 22, 1993, the plaintiff moved to dismiss the amended appeal as untimely. Practice Book § 4006 provides in pertinent part: “Should the trial court, subsequent to the filing of the appeal, make a ruling which the appellant desires to have reviewed by this court, the appellant shall file an amended appeal form in the trial court within twenty days from the issuance of notice of the ruling. . . .” In this case, the defendant failed to amend his appeal within the twenty day period. Therefore, this court granted the plaintiffs motion to dismiss the amended appeal on January 27, 1994.

Despite the dismissal of the amended appeal, the defendant’s brief, filed on February 4,1994, addressed the issue of the trial court’s award of counsel fees to the plaintiff. In response, the plaintiff filed a motion to strike that portion of the defendant’s brief as improper in light of the dismissal of the amended appeal.

Practice Book § 4183 provides in part that this court “may ... on its own motion or upon motion of any party ... (3) order improper matter stricken from . . . a brief . . . .” Because this court’s dismissal of the untimely amended appeal precluded the defendant from raising the issue of counsel fees, the portion of the defendant’s brief addressing this issue is “improper matter” that should be stricken from his brief. To hold otherwise would be to allow the defendant to circumvent the order of this court dismissing his untimely amended appeal.

The plaintiff’s motion to strike is granted.


author: Spear, J.

text:
    State of Connecticut v. Mitchell Rosedom
    (11269)
    Dupont, C. J., O’Connell and Speak, Js.

      Argued January 18
    decision released April 19, 1994

      Charles L. Howard, special public defender, with whom, on the brief, was Gregory T. D Auria, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and James Bernardi, assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court improperly (1) denied his motion to suppress physical evidence and (2) admitted multiple copies of police inventory forms. We affirm the judgment of the trial court.

I

The defendant first claims that the trial court improperly denied his motion to suppress a beeper and money taken from his jacket and trouser pockets after they were discovered during a pat down by Officer Richard Bartlett and Sergeant Richard Conklin of the Stamford police department. At the close of the hearing, which took place on February 16 and 17, 1990, the trial court denied the defendant’s motion to suppress, but did not comply with Practice Book § 4059 because it did not issue a written memorandum or transcribe and sign its oral decision. “While we do not condone the court’s failure to comply with § 4059, and would decline in most instances to search the transcript to ascertain the factual basis in support of the trial court’s ruling, we would not exalt form over substance if the deficiency were of a technical nature.” State v. Rios, 30 Conn. App. 712, 714, 622 A.2d 618 (1993). In this case, the trial court’s failure to issue a written memorandum or set forth in the transcript any factual findings to support its decision is not a technical deficiency. Rather, it is a fatal flaw that prevents our review of the merits of the defendant’s claim. Id., 715.

The defendant relies on State v. MacNeil, 28 Conn. App. 508, 515, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), in which this court noted that we “may resort to the evidence produced in support of the [trial] court’s ruling on a suppression motion when, as here, the [trial] court does not make detailed factual findings to support its decision.” In MacNeil, however, “the court had issued a memorandum of decision in ruling on the suppression motion and on appeal the court simply resorted to evidence as set forth in the transcript to ascertain the factual findings to support the decision.” State v. Rios, supra, 30 Conn. App. 714. Here, in contrast, no written memorandum of decision was issued.

The transcript of the suppression hearing does not reveal any specific findings by the trial court that would support its decision to uphold Bartlett and Conklin’s pat down of the defendant. The court may have decided that the beeper and bulges of money felt as if they could have been weapons and were discovered as the result of a valid Terry pat down, or that the search of the defendant was incident to arrest and, therefore, did not require that the police obtain a search warrant. Without any specific findings of fact, however, we cannot determine the basis of the court’s ruling and thus cannot review the merits of the defendant’s claim.

It is the appellant’s duty to take the necessary steps to provide us with an adequate record for appellate review. Practice Book § 4061; Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); State v. Rios, supra, 30 Conn. App. 715; State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). The defendant could have ensured the adequacy of the record by filing a motion for articulation pursuant to Practice Book § 4051 asking the trial court to set forth the basis and reasoning for its decision, or by filing a motion to compel the trial court to file a memorandum of decision pursuant to Practice Book § 4183. He elected to do neither. When our rules of practice are not followed, and the record is not rectified, we are left to guess or speculate as to the existence of a factual predicate. See Holmes v. Holmes, supra, 319; State v. Rios, supra, 719-20 (O’Connell, J., concurring). As it is not the function of this court to find facts, we decline to review this claim.

II

The defendant next claims that the trial court abused its discretion when it admitted certain documents into evidence under two independent rules of evidence. Specifically, he argues that he was prejudiced by multiple admissions of the same police inventory forms. We disagree.

During the testimony of Officer William Biasetti of the Stamford police department, the state offered four documents as business records: an inventory of seized property form (form I), a Stamford police department inventory form (form II), and two receipts for seized property. Each document identified the defendant and the items seized in connection with his arrest. The state offered these documents to establish the chain of custody of the seized items and the documents were admitted as an exhibit over the defendant’s objection.

Later in the trial, during the testimony of Conklin, the state offered a second inventory of seized property form (form III) that was virtually identical to form I. Form III identified the denominations of currency seized from the defendant, which were relevant to prove intent to sell. Because Conklin could not recall the exact denominations he had seized during the pat down of the defendant, form III was admitted over the defendant’s objection as a past recollection recorded.

During the testimony of Sergeant Charles Rondano of the Stamford police department, the state offered another inventory form (form IV) as a business record to establish chain of custody. Form IV differed from form II in that it contained notations made by Rondano, the property room supervisor, as to the movement of the beeper and money to and from the property room. Form IV was also admitted into evidence over the defendant’s objection.

The defendant argues that multiple admissions of the same document cause confusion and mislead the jury as to the document’s significance. He claims, therefore, that he was prejudiced by the admission of forms III and IV.

“The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992); State v. Colton, 227 Conn. 231, 258, 630 A.2d 577 (1993); State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990); State v. Lee, 32 Conn. App. 84, 95, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993).

Form III, admitted during Conklin’s testimony, was “simply cumulative and supplementary” to form I. “It is within the trial court’s discretion to admit or exclude evidence that is cumulative.” State v. Polanco, 26 Conn. App. 33, 38, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991); State v. Mason, 186 Conn. 574, 581, 442 A.2d 1335 (1982). The trial court did not abuse its discretion when it admitted form III because it was virtually identical to form I, and thus was unlikely to have had an effect on the jury. See Schnabel v. Tyler, 32 Conn. App. 704, 712, 630 A.2d 1361, cert. granted, 227 Conn. 932, 632 A.2d 708 (1993); see also Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 490, 586 A.2d 1157 (1991).

In contrast, form IV, admitted during Rondano’s testimony, was not identical to form II and was thus not merely cumulative. Unlike form II, form IV contained Rondano’s notations, which were relevant to establishing the chain of custody. The mere fact that form IV contained some of the same evidence that was admitted during Biasetti’s testimony does not make it cumulative. Rather, “ ‘[t]o the extent that evidence presents new matter, it is obviously not cumulative with evidence previously received.’ ” State v. Parris, 219 Conn. 283, 293, 592 A.2d 943 (1991); State v. Parsons, 28 Conn. App. 91, 106, 612 A.2d 73, cert. denied, 223 Conn. 920, 614 A.2d 829 (1992). Thus, admission of form IV containing Rondano’s notations, rather than being prejudicially cumulative, covered new matter by demonstrating that the items seized were properly secured. Our review of the record leads us to conclude that the trial court did not abuse its discretion when it admitted form IV into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who . . . possesses with intent to sell . . . any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. ...”

       Practice Book § 4059 provides in pertinent part: “[I]n criminal cases, in ruling upon . . . motions to suppress under Sec. 820, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. ... If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. ...”

        Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       Practice Book § 4051 provides: “An original and three copies of a motion for rectification or articulation shall be filed with the appellate clerk and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the appellate clerk.
      “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court or the appellate court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the court in which the appeal is pending under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based.
      “Corrections made before the record is prepared shall be included in it. If the record has been prepared, the appellate clerk may prepare a supplemental record, to be distributed in the same way as the original record.”

       Practice Book § 4183 provides in relevant part: “The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (I) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .”
      This court and the Supreme Court, however, have both been reluctant to order articulation sua sponte if the appellant fails to move for articulation under Practice Book $ 4051. See, e.g., Ginsburg v. Fusaro, 225 Conn. 420, 430-31, 623 A.2d 1014 (1993); Berlin v. Commissioner of Revenue Services, 207 Conn. 289, 295, 540 A.2d 1051 (1988); J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987); Buchetto v. Haggquist, 17 Conn. App. 544, 548, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989); Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984). “ ‘[Ujnder normal circumstances, this court will not remand a case to correct a deficiency that the appellant should have remedied.’ ” Economy Sales & Service. Co. v. Family Center Pharmacy, Inc., 33 Conn. App. 822, 825, 639 A.2d 1042 (1994), quoting Plati v. United Parcel Service, 33 Conn. App. 490, 494-95, 636 A.2d 395 (1994).


text:
    Nina O’Brikis et al. v. Supermarkets General Corporation
    (11867)
    Landau, Heiman and Schaller, Js.
    Argued January 14
    decision released April 19, 1994

      Barry N. Silver, with whom, on the brief, were Alan E. Silver and Richard A. Thomas, for the appellants (plaintiffs).

      Ronald G. Weller, with whom was John Stephen Papa, for the appellee (defendant).
   Schaller, J.

The plaintiffs, Nina O’Brikis and Gerald O’Brikis, appeal from the judgment of the trial court rendered after a jury trial that culminated in a general verdict for the defendant, Supermarkets General Corporation doing business as Pathmark of Orange. On appeal, the plaintiffs contend that the trial court improperly refused to give their requested jury instruction on contributory negligence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of August 29, 1986, the plaintiffs drove to the Pathmark in Orange to do their grocery shopping. The named plaintiff entered the store without her husband, who was detained at the entrance, and went to the meat department in the rear of the store. After a brief conversation with a friend, the named plaintiff realized that her husband was not yet in the store. She went to the front of the store through the produce aisle to look for her husband. She claimed that as she walked through the produce aisle she slipped and fell on some grapes and water, sustaining injuries.

On July 28,1988, the plaintiffs filed a two count complaint alleging that the defendant was negligent in failing to remedy a dangerous and defective condition of grapes and water on the floor of the produce aisle. The plaintiffs alleged that the combination of grapes and water caused the named plaintiff to slip, fall and sustain knee injuries, and aggravated a preexisting arthritic condition, resulting in 5 percent permanent injury. In the second count, the plaintiff Gerald O’Brikis alleged that the injuries suffered by his wife have and will continue to render him liable for costly medical expenses. The defendant denied those allegations in its answer and asserted a special defense of contributory negligence. The jury returned a general verdict for the defendant and the court denied the plaintiffs’ subsequent motion to set aside the verdict.

The plaintiffs bring this appeal contending that the trial court improperly refused to give their requested jury charge that the named plaintiff “had a right to assume that the floor was reasonably safe to walk upon, and until she knew or ought in the exercise of reasonable care to have known it was not, she was not charged with any duty to exercise special care. While she was proceeding down the produce aisle, she was warranted in directing her attention to the goods which the defendant had on display rather than to the floor, if she was acting as a reasonably prudent person would under the circumstances.” Because we conclude that the general verdict rule governs, we need not address the plaintiffs’ specific claim of instructional error.

The general verdict rule provides that, where a jury returns a general verdict in favor of a party, and no party submits special interrogatories, an appellate court properly presumes that the jury found in favor of the prevailing party on every issue. Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993); see also Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987); Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Coluci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981); Johnson v. Pagano, 184 Conn. 594, 596, 440 A.2d 244 (1981); Blancato v. Randino, 33 Conn. App. 44, 47, 632 A.2d 1144 (1993). “The rule applies whenever a verdict for one party could reasonably be rendered on one or more . . . distinct defenses.” (Citations omitted; internal quotation marks omitted.) Curry v. Burns, supra, 786; see also Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964); accord Finley v. Aetna Life & Casualty Co., supra, 203-204; LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982).

In Curry v. Burns, supra, 225 Conn. 801, our Supreme Court limited the application of the general verdict rule to five categories: “(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Emphasis added.)

This case falls squarely within the fourth category, “denial of a complaint and pleading of a special defense.” In its answer, the defendant denied the allegations of negligence set forth in the complaint and raised a special defense of contributory negligence. Because it is unclear whether the general verdict reached by the jury was premised on a finding of an absence of negligence on the part of the defendant, or on a finding of contributory negligence on the part of the named plaintiff, the general verdict rule must be applied. Parties who want to preclude application of the general verdict rule may seek a special verdict on each count or “elicit specific grounds for the verdict by submitting interrogatories to the jury.” Curry v. Burns, supra, 225 Conn. 785; see also Pedersen v. Vahidy, 209 Conn. 510, 514, 552 A.2d 419 (1989); Ziman v. Whitley, 110 Conn. 108, 113-15, 147 A. 370 (1929).

Furthermore, we reject the plaintiffs’ contention that “the various grounds of negligence alleged are often so interlocked as to make it difficult to consider them separately and formulating interrogatories to obtain separate findings on the various claims would complicate the work of court, jury and counsel. Ziman v. Whitley, [supra, 110 Conn. 115].” (Internal quotation marks omitted.) Curry v. Burns, supra, 225 Conn. 787; Finley v. Aetna Life & Casualty Co., supra, 202 Conn. 203. Rather, we conclude that the elements involved in establishing a cause of action exist apart from proof of contributory negligence; that is, the plaintiff must prove the existence of a dangerous and defective condition before the issue of causation is reached. Since the plaintiffs made no attempt to submit interrogatories as permitted by Practice Book § 312, the general verdict in favor of the defendant creates a presumption that all of the issues were found in its favor. See Cadrain v. Kent Condominiums, Inc., 24 Conn. App. 554, 555, 590 A.2d 475 (1991); see also Hanlon v. Stettbacher, 13 Conn. App. 571, 573, 538 A.2d 705 (1988). In any event, the general verdict rule precludes review of the plaintiffs’ challenge to the instructions on contributory negligence where it is impossible to tell whether the jury verdict for the defendant was based on a finding of an absence of negligence on the part of the defendant, or on a finding of contributory negligence on the part of the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       Notwithstanding our conclusion that the general verdict rule is dispositive of this case, we note that the instructions to the jury on the law of contributory negligence were sufficient. In its charge to the jury, the trial court stated in part: “The plaintiff is under a duty to exercise the care which an ordinarily prudent person would use under the circumstances to avoid suffering injuries .... A person in order to use reasonable care . . . must make reasonable use of his or her senses and faculties and know and appreciate whatever facts a reasonably prudent person under the circumstances would know, see, and appreciate.” (Emphasis added.)
      The phrase “under the circumstances” in the instruction given by the trial court conveys the factors to be considered by the jurors in determining whether a patron in a supermarket ought to be found contributorily negligent. It is well settled that the question of reasonable care under the circumstances is a question for the jurors, to which we ask them to bring their common experiences to bear in assessing the wisdom of the plaintiffs action. See Amendola v. Geremia, 21 Conn. App. 35, 571 A.2d 131, cert. denied, 215 Conn. 803, 574 A.2d 217 (1990); L’Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933). To charge the jury as the plaintiffs request, would, in fact, impermissibly invade the province of the jury. Furthermore, the common law duties of exercising reasonable care and being watchful of one’s surroundings are entrenched in our law and we should be wary of departing from the wisdom of this course of action.