text:
    PATRICIA A. SANSEVERINO v. COMMISSIONER OF MOTOR VEHICLES
    (AC 23781)
    SchaUer, DiPentima and McLachlan, Js.
    Submitted on briefs September 19
    officially released October 14, 2003

      Katrena Engstrom filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Drew S. Graham, assistant attorney general, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The plaintiff, Patricia A. Sanseverino, appeals from the judgment of the trial court dismissing her administrative appeal from the decision of the defendant commissioner of motor vehicles suspending her motor vehicle operator’s license for one year for having violated General Statutes § 14-227b. On appeal, the plaintiff claims that it was improper for the court to consider her conduct when the court concluded that there was sufficient evidence before the defendant’s hearing officer to find that she had refused to take a chemical alcohol breath test. We affirm the judgment of the trial court.

The record before the hearing officer reveals that the suspension of the plaintiffs motor vehicle operator’s license arose out of the following events. At approximately 2 a.m. on September 1, 2002, Officer Edward R. Lennon of the East Haven police department observed the plaintiff operating a motor vehicle in an erratic manner on several public roads in East Haven. After Lennon directed the plaintiff to the side of the road, he detected a heavy odor of alcohol about the plaintiff. When Lennon asked the plaintiff to perform field sobriety tests, she became verbally and physically abusive. Lennon arrested the plaintiff and took her to the police department. At the police department, the plaintiff was informed of her constitutional rights, read an implied consent advisory and afforded an opportunity to telephone an attorney, which she refused.

Lennon asked the plaintiff to take a breath test to determine her blood alcohol level and instructed her how to perform the breath test. The results of the first test indicted that the plaintiffs blood alcohol level was 0.225 percent. Prior to providing her sample for the first breath test, the plaintiff had to be warned not to grab the tube connected to the test instrument. When the second test was administered, the plaintiff failed to provide an adequate sample. Lennon instructed the plaintiff on the proper method of providing a sample by telling her to blow continuously into the tube until he told her to stop. The plaintiff became verbally abusive and accused Lennon of violating her rights and not having changed the mouthpiece of the test instrument. The plaintiff failed to provide an adequate sample for the third test. The plaintiff again accused Lennon of violating her rights, refused to take the test and requested the services of an attorney. Lennon terminated the test. The plaintiffs refusal to submit an adequate sample for the breath test was witnessed by Sergeant H. Butler of the East Haven police department.

The defendant informed the plaintiff by notice dated September 9, 2002, that her operator’s license had been suspended for one year, effective October 1, 2002. The plaintiff requested a hearing, and one was held on September 25,2002. The hearing officer made a subordinate finding of fact that the evidence was sufficient to indicate that the plaintiff had refused to cooperate on the second and third attempts to administer the breath test and concluded, in part, that she had refused to submit to such test. The plaintiff appealed to the Superior Court. The court concluded that there was substantial evidence to support the findings of the hearing officer and dismissed the appeal. The plaintiff now appeals to this court.

The issues raised in this appeal are accorded the limited scope of judicial review accorded by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d 865 (1996); Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986). In reviewing the decision of an administrative agency, the court must determine whether the agency’s findings of basic fact are supported by substantial evidence in the record and whether the conclusions drawn from those facts are reasonable. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).

“The determination of whether the plaintiffs actions constituted a refusal to submit to a Breathalyzer test is a question of fact for the hearing officer to resolve. Pizzo v. Commissioner of Motor Vehicles, 62 Conn. App. 571, 581, 771 A.2d 273 (2001); Altschul v. Salinas, 53 Conn. App. 391, 397, 730 A.2d 1171, cert. denied, 249 Conn. 931, 761 A.2d 751 (1999). Judicial review of administrative fact-finding under the UAPA is governed by the substantial evidence rule. Dolgner v. Alander, supra, 237 Conn. 281; see also General Statutes § 4-183 (j). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Dolgner v. Alander, supra, 281.” (Internal quotation marks omitted.) Wolf v. Commissioner of Motor Vehicles, 70 Conn. App. 76, 81-82, 797 A.2d 567 (2002).

This court has held that an operator’s refusal to take a breath test pursuant to § 14-227b need not be express and that a hearing officer may consider the operator’s conduct in determining whether she refused to take the test. “Refusal to take a breath test can occur through conduct as well as an expressed refusal. Tompkins v. Commissioner of Motor Vehicles, 60 Conn. App. 830, 832, 761 A.2d 786 (2000); see also State v. Corbeil, 41 Conn. App. 7, 19, 674 A.2d 454, cert. granted on other grounds, 237 Conn. 919, 676 A.2d 1374 (1996) (appeal dismissed September 18, 1996).” (Internal quotation marks omitted.) Wolf v. Commissioner of Motor Vehicles, supra, 70 Conn. App. 82.

The record here contains substantial evidence from which the hearing officer could have found that the plaintiff had refused to submit to the second and third breath tests. The court, therefore, properly dismissed the plaintiffs appeal.

The judgment is affirmed.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Gina Ryan et al. v. Mill River Country Club, Inc.
    (4009)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 1
    decision released June 24, 1986

      Linda D. D ’Albis, with whom, on the brief, was Paul E. Pollock, for the appellant (defendant).

      Robert B. Yules, with whom was Michael L. Riccio, for the appellees (plaintiffs).
   Dupont, C. J.

The defendant appeals from a judgment rendered by the trial court following a jury verdict for the plaintiffs. On appeal, the defendant claims that the trial court erred (1) in denying the defendant’s motion for judgment notwithstanding the verdict on the ground that there was insufficient evidence to sustain it as to the negligence count of the plaintiffs’ complaint and (2) in denying the defendant’s motion to set aside the verdict, also on the ground of insufficient evidence.

The jury could have reasonably found the following facts based upon the evidence submitted. On April 26, 1981, the plaintiff and Lois Hanson were playing golf at the defendant’s golf course. Both the plaintiff and her husband, Thomas Ryan, who was a coplaintiff in this case, had been members of the club and had played golf there for several years.'While driving a three-wheeled golf cart on a paved cart path from the seventh tee to the seventh green, the plaintiff turned the golf cart downhill along the cart path. While traveling down the path, the golf cart turned sharply to the left, throwing Hanson, the passenger, out of the cart. The cart continued until it turned over. Both the plaintiff and her passenger sustained injuries.

As a result of the accident, the plaintiff brought suit against the defendant. In addition, Lois Hanson, the plaintiff’s passenger, instituted an action naming the plaintiff as a defendant for her alleged negligence in operating the golf cart. The two cases were consolidated for trial. Written interrogatories were submitted to the jury in both cases. In the plaintiff’s case, the jury returned a verdict for the plaintiff, finding that the cart path had been maintained in a defective manner and that the defect was the proximate cause of her injuries. The jury also found contributory negligence of 30 percent on the part of the plaintiff. As a result, judgment was rendered for the plaintiffs in the amount of $262,616.90.

In the case brought against the plaintiff by her passenger, the jury returned a verdict against the plaintiff, finding that she had been negligent in her operation of the golf cart and that this negligence was the proximate cause of her passenger’s injuries. Accordingly, Hanson was awarded $235,000 in damages. The jury also found that although the defendant country club had been negligent in maintaining a defective golf course, this negligence was not the proximate cause of Hanson’s injuries.

At the conclusion of the plaintiff’s case, the defendant submitted a motion for a directed verdict on the negligence count of her complaint. The trial court reserved decision on the motion. After the jury returned a verdict for the plaintiff, the motion was denied. The defendant also filed a motion to set aside the verdict and a motion for judgment notwithstanding the verdict, both of which were denied by the trial court. The defendant subsequently filed this appeal.

The defendant’s claims of error involve the sufficiency of the evidence presented by the plaintiff in this case. The defendant argues that there was insufficient evidence to support a finding that it was negligent and that its negligence was the proximate cause of the plaintiff’s injuries. In reviewing the motion for judgment notwithstanding the verdict and the motion to set aside the verdict, the same principles are to be applied to the trial court’s action on each motion. Sauro v. Arena Co., 171 Conn. 168, 169, 368 A.2d 58 (1976); Greene v. DiFazio, 148 Conn. 419, 420, 171 A.2d 411 (1961). “If the court correctly refused to set aside the verdict, it then necessarily follows that it also properly denied the defendant’s motion for judgment notwithstanding the verdict.” Cruz v. Drezek, 175 Conn. 230, 232, 397 A.2d 1335 (1978).

In examining the decision of the trial court on the defendant’s motions, the evidence is to be considered in the light most favorable to the plaintiff. See Bielaska v. Waterford, 196 Conn. 151, 155, 491 A.2d 1071 (1985); Cruz v. Drezek, supra, 232; Reilly v. DiBianco, 6 Conn. App. 556, 573, 507 A.2d 106 (1986). The trial court’s refusal to set aside a verdict is entitled to great weight and its decision will not be disturbed on appeal unless the court clearly abused its discretion. See Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983); Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25 (1986); Vazzano v. Slater, 6 Conn. App. 1, 4, 502 A.2d 440 (1986); Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 584, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986). “The test employed in analyzing a sufficiency of the evidence claim is whether or not, on the basis of the evidence introduced, a reasonable jury, properly motivated, could bring in a verdict against the defendants. Pelletier v. Bilbiles, 154 Conn. 544, 548-49, 227 A.2d 251 (1967).” Bielaska v. Waterford, supra, 156.

Here, the plaintiff presented extensive evidence, in the form of testimony and exhibits, upon which the jury could have reasonably based its verdict. Evidence was introduced regarding the uneven nature of the golf cart path and the absence of any guardrails to keep the carts on the path or any warning signs to advise cart users to proceed with caution in the area of the accident. Furthermore, the plaintiff offered expert testimony regarding the slope of the hill where the accident occurred and the uneven nature of the cart path which, in the opinion of the plaintiffs expert witness, would have been one of the proximate causes of the accident. Finally, evidence was introduced that the defendant was aware of the defective condition, that the defendant knew, through one of its employees, of two prior accidents in the same area and that the defendant failed to take any action to remedy the defect. Under these circumstances, there was ample evidence upon which the jury could have based its verdict for the plaintiff. Thus, the defendant’s claims that the trial court erred in denying its motions for judgment notwithstanding the verdict and to set aside the verdict are without merit.

As part of its claim that the trial court erred in denying its motion to set aside the verdict, the defendant claims that the verdict in this case is not consistent with the verdict in the companion case brought by Hanson, the plaintiff’s passenger, and, therefore, that a new trial should be ordered in this case on the negligence issue.

The defendant’s claim is without merit for several reasons. First, the verdicts are not inconsistent. In response to specific interrogatories, the jury indicated that in both cases the defendant “was negligent in the design, maintenance or construction” of the golf course. The jury found that this negligence was the proximate cause of the plaintiff’s injuries, but not of her passenger’s injuries. It also found that the plaintiff was 30 percent contributorily negligent. This was consistent with the finding in the companion case that the plaintiff’s negligence was the proximate cause of her passenger’s injuries. The jury could have concluded that, although the defendant was negligent in its design, maintenance or construction of the golf course, this negligence was not the proximate cause of Hanson’s injuries. Second, even if we were to agree with the defendant that the verdicts were inconsistent, there was no showing by the defendant that consistent verdicts were required in the two cases. “[T]he rule has been laid down that a verdict does not necessarily have to be set aside on appeal because of its inconsistency with another verdict.” 76 Am. Jur. 2d 122-23, Trial § 1154. Although inconsistent verdicts in the same case may be grounds for a new trial; see Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 577-78, 479 A.2d 781 (1984); Marko v. Stop & Shop, Inc., 169 Conn. 550, 556-57, 364 A.2d 217 (1975); there is no requirement for consistent verdicts in two separate cases which were consolidated for trial. See 89 C. J.S. 164-65, Trial § 500. Although there was only one jury, it rendered two separate verdicts in two distinct cases. Thus, the defendant’s claim is unpersuasive.

There is no error.

In this opinion the other judges concurred.

       “Plaintiff’ in this decision refers to Gina Ryan.

       As part of its insufficiency claims, the defendant argues that the plaintiff has also failed to prove that the defendant had notice of any specific defect on its premises and that the defendant’s failure to warn the plaintiff about a condition of which she was already aware is without legal significance. Neither of these claims was raised at trial or in the defendant’s preliminary statement of issues. This court is not required to consider claims unless they were distinctly raised at trial or arose subsequently to trial. See Practice Book § 3063; Trubowitz v. Trubowitz, 5 Conn. App. 681, 685, 502 A.2d 940 (1985). Accordingly, we decline to review the defendant’s claims.


text:
    Edythe Sochard et al. v. St. Vincent’s Medical Center et al.
    (3788)
    Dupont, C. J., Borden and Daly, Js.

      Argued April 9
    decision released June 24, 1986

      Mary K. Zackrison, with whom, on the brief, was Thomas M. Yuditski, for the appellant (plaintiff).

      James F. Stapleton, with whom, on the brief, was Peter M. Nolin, for the appellee (named defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment rendered pursuant to a directed verdict for the defendants in this medical malpractice action. She claims that the trial court erred in excluding certain expert medical testimony.

The following facts are not in dispute. The plaintiff’s decedent, Jerome Sochard, entered the defendant’s emergency room suffering from what was diagnosed as a myocardial infarction. Emergency treatment resulted in the stabilization of the patient’s condition, after which he was admitted to the hospital’s intensive care unit by Walter Lucia, the patient’s cardiologist. The patient’s condition remained stable until 3:30 a.m. when he experienced irregular heartbeats and a reduced heart rate. The attending nurse informed an intern on duty, and the patient’s dosage of a medication was increased which stabilized his condition. Lucia visited the patient the following morning and, after speaking with him for several minutes, concluded that he was in a stable condition. Soon after the doctor left, the patient went into cardiac arrest and died despite efforts at cardiopulmonary resuscitation and the insertion of a pacemaker.

The plaintiff brought this action for wrongful death alleging that the defendant hospital, acting through its nurses and interns, failed to monitor the decedent properly and failed to communicate the decedent’s difficulties to the attending cardiologist on a regular'basis. It is also alleged that the defendant failed to insert a pacemaker or to monitor the patient in a proper manner prior to cardiac arrest.

During the course of the trial, the plaintiff introduced evidence that the defendant failed to observe its duty of care by neglecting to insert a Swan-Ganz catheter at 3:30 a.m., when it became apparent that the patient was susceptible to further cardiac difficulty. The patient’s expert witness, Norman Cagin, a physician specializing in cardiology, testified that the failure to employ this diagnostic device made it impossible to determine whether the patient was suffering from hypovolemia, which the plaintiff alleges may have caused the patient’s death. The plaintiff’s expert witness was then asked the following hypothetical question: “Doctor, do you have an opinion, with reasonable medical probability, that St. Vincent’s Hospital, through its failure to use recognized and available diagnostic modalities and techniques, substantially increased the risk of Mr. Sochard’s dying?” The defendant’s counsel objected to the question for failure of the plaintiff to lay a proper foundation.

The defendant’s objection focused on the lack of subordinate facts from which the expert witness could form an opinion as to what caused the patient’s death, and the absence of any evidence demonstrating that the decedent died from a condition other than a contractile failure of the heart, a condition which neither party alleged was treatable. The plaintiff argued that, had the defendant employed proper testing procedures, it might have been shown that the patient was suffering from hypovolemia, a treatable condition in approximately 80 percent of the cases. The plaintiff claims that the defendant’s allegedly negligent conduct precluded her from establishing the cause of the patient’s death. The trial court sustained the defendant’s objection and disallowed the question because it was not based upon the evidence in the case.

The facts assumed in a hypothetical question must have their basis in the evidence on the record. See Engelke v. Wheatley, 148 Conn. 398, 410-11, 171 A.2d 402 (1961); see generally McCormick, Evidence (2d Ed. 1972) § 14. Whether a proper foundation has been laid to support a hypothetical question is an issue of fact for the trial court. Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 670, 482 A.2d 91 (1984). “A hypothetical question may not be asked of an expert where it is so lacking in material, relevant and essential facts.” State v. Gaynor, 182 Conn. 501, 509-10, 438 A.2d 749 (1980). “ ‘[Wjhere the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error.’ Engelke v. Wheatley, [supra, 411].” Spoto v. Hayward Mfg. Co., supra.

The plaintiff does not argue on appeal that there was any evidence of a cause of death other than contractile failure. She relies on § 323 (a) of the Restatement (Second) of Torts and argues that once evidence has been introduced that a defendant’s negligent act or omission increased the risk of harm to a person, and that harm was in fact sustained, it becomes a question for the jury as to whether that increased risk caused the harm. While this may be a proper interpretation of the Restatement, it does not apply to the facts of the present case because there was no evidence that the patient died from a condition which would have been detected by the use of the Swan-Ganz catheter. There was, therefore, no proof that the increased risk of harm of which the plaintiff complains, namely death due to hypovolemia, was in fact sustained. Although there are uncertainties of proof inherent in some medical malpractice cases which may warrant some relaxation of the quantum of evidence required for the basis of a hypothetical question, there must be some evidence that the allegedly negligent conduct caused the plaintiffs injury. In this case, to allow the jury to find that the defendant’s conduct increased the risk of the decedent’s death would be to impose liability based on mere speculation and conjecture. See Ardoline v. Keegan, 140 Conn. 552, 558-59, 102 A.2d 352 (1954); Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975 (1985). The trial court’s finding that there was insufficient evidence to support the proposed hypothetical question was not clearly and manifestly erroneous.

The plaintiff’s second claim of error is related to her first claim. She argues that the trial court erroneously directed the verdict for the defendant for lack of evidence to prove causation. The plaintiff concedes that the only evidence as to causation was that portion of her expert’s testimony which was disallowed by the court. Since we hold that the trial court’s prohibition of this testimony was proper, we find that the direction of the defendant’s verdict was also proper. See Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 581-82, 501 A.2d 1214 (1985).

There is no error.

In this opinion the other judges concurred.

       The plaintiff brought this wrongful death action individually and as executrix of the decedent’s estate. As used in this opinion, the plaintiff refers to Edythe Sochard individually and as executrix of the estate.

       This action was commenced against Cardiovascular Associates, P.C., Walter Lucia, M.D., and St. Vincent’s Medical Center. A verdict was directed in favor of all three defendants. An appeal was taken but was subsequently withdrawn as to that portion of the judgment relating to Cardiovascular Associates, P.C., and Walter Lucia, M.D. As used in this opinion, the defendant refers to St. Vincent’s Medical Center.

       A myocardial infarction is a “region of dead or dying tissue in the muscle of the heart which is the result of an obstruction to the blood circulation . . . . ” Schmidt, Attorney’s Dictionary of Medicine.

       It is disputed whether the intern visited the patient during the night. The patient’s attending physician was not called.

       Hypovolemia is a “condition in which the volume or quantity of blood in the body is below normal.” Schmidt, Attorney’s Dictionary of Medicine.

       A contractile failure of the heart was described by Lucia as meaning the inability of the heart to pump due to heart muscle loss.

       Section 323 sets forth in pertinent part that “[o]ne who undertakes . . . to render services to another ... is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm . . . .” Restatement (Second), Torts § 323.

       Those authorities cited by the plaintiff which impose liability for the deprivation of a “chance” for survival do not compel a different result than we have reached. See Hicks v. United States, 368 F.2d 626 (4th Cir. 1966); James v. United States, 483 F. Sup. 581 (N.D. Cal. 1980); Evers v. Dollinger, 95 N. J. 399, 471 A.2d 405 (1984); Kallenberg v. Beth Israel Hospital, 45 App. Div. 2d 177, 357 N.Y.S.2d 508 (1974); Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978);
        Herskovits v. Group Health Cooperative, 99 Wash. 2d 609, 664 P.2d 474 (1983); Restatement (Second), Torts § 323 (a). All of the plaintiffs authorities address themselves to situations where the cause in fact of the injui’y; is known.


author: Per Curiam.

text:
    Ernest Selmquist et al. v. Department of Liquor Control et al.
    (3605)
    Borden, Spallone and Bieluch, Js.
    Argued May 6
    decision released June 24, 1986

      W. Paul Flynn, with whom was Howard A. Lawrence, for the appellants (plaintiffs).

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard, M. Sheridan, assistant attorney general, for the appellee (named defendant).

      Stuart A. Margolis, for the appellees (defendants Michael Algiere et al.).
   Per Curiam.

In this appeal, the trial court dismissed the plaintiffs’ administrative appeal from the action of the named defendant, the state department of liquor control. That action authorized the removal of a liquor license from Darien to East Haven. The principal claim of the plaintiffs is that General Statutes § 30-52 bars the removal authorized here.

In Breen v. Department of Liquor Control, 2 Conn. App. 628, 481 A.2d 755 (1984) (Breen I), this court read General Statutes § 30-52 in accordance with the construction urged by the plaintiffs in this case. Thereafter, however, the Supreme Court granted certification to appeal from our decision and reversed our judgment in response to a motion filed on the ground that Public Acts 1985, No. 85-361, which became effective on June 27,1985, rendered the issues moot. See Breen v. Department of Liquor Control, 5 Conn. App. 432, 499 A.2d 432 (1985) (Breen II). That public act clarified that the intent of General Statutes § 30-52 was to permit, under certain circumstances, the removal of a liquor license from one town to another, and it specifically-validated any prior action of the department authorizing such a removal. It is clear that the Supreme Court’s action as reported in Breen II controls this case. We have considered the arguments of the plaintiffs attempting to distinguish this case from Breen II, and find them to be without merit.

There is no error.


author: Hull, J.

text:
    State of Connecticut v. Gladys Hobson
    (2862)
    Hull, Spallone and Bieluch, Js.

      Argued February 14
    decision released June 24, 1986

      John R. Williams, for the appellant (defendant).

      PaulM. Scimonelli, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Julia DiCocco Dewey and Paul J. Devlin, assistant state’s attorneys, for the appellee (state).
   Hull, J.

After a trial to a jury, the defendant was convicted of larceny in the third degree in violation of General Statutes § 53a-119 (8) and § 53a-124. In this appeal from that judgment, she claims that the trial court erred in three respects: (1) in refusing to suppress the fruits of two searches of her home; (2) in failing to declare a mistrial because of alleged jury misconduct; and (3) in denying her motion for judgment of acquittal based on insufficiency of the evidence. We find no error.

When ruling on the defendant’s motion to suppress, the trial court could reasonably have found the following facts. In September of 1982, officer John Dattilo of the New Haven police department obtained a warrant authorizing a search of the defendant’s Hazel Street home for drugs which Dattilo believed were being sold by one of the defendant’s adult sons who lived with her. While executing that warrant, Dattilo observed many articles of clothing of differing sizes, some with store tags still attached, various kinds of consumer goods, including stereo equipment, five television sets, cameras, projectors and numerous pieces of jewelry. Because of the quantity and diversity of goods, Dattilo suspected that some of the merchandise was stolen. He therefore recorded the serial numbers of several of the items and through a later computer check determined that two of them, a Sony television set and a handgun, had been reported stolen. On the basis of this information, Dattilo obtained a second warrant authorizing him to search the defendant’s home and person and to seize the television and the gun.

On October 7, 1982, accompanied by other officers including Francis Cacioli, the detective in the New Haven police department who was in charge of the theft recovery unit, Dattilo entered the defendant’s house to execute the warrant. In addition to seizing the two items listed in the search warrant, the officers took approximately 148 other articles they reasonably believed might be stolen. In an attempt to determine whether any of the additional items was in fact stolen, the police put them on display at headquarters and invited members of the public to view them. Several individuals identified items as their property, and the defendant was charged with larceny of those items and of the television set and the gun. At trial, the defendant moved to suppress the television set, the gun and the other objects, claiming that both searches were invalid and that the items seized were, therefore, the inadmissible fruits of an illegal search. The trial court denied the motion.

The defendant’s first claim on appeal is that, during their initial search of her home, the police, by obtaining the serial numbers from the gun and the television set, conducted a search of those items. She argues that this search was unlawful because the warrant under which the police entered her home authorized them to look for drugs and drug paraphernalia only, an undertaking which one of the police officers who was present at the initial search conceded would not be aided by looking for the serial numbers. We reject the defendant’s assertion that the police “searched” the television set and the gun.

Our Supreme Court has recognized that when a police officer observes items in open view that observation does not constitute a search. State v. Federici, 179 Conn. 46, 56, 425 A.2d 916 (1979); see also Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 6, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed. 2d 218 (1971). Here, the police officers saw the television set in open view in the defendant’s bedroom while they were executing a valid search warrant. Accordingly, their discovery of the television set clearly did not constitute a search. We decline to hold, as the defendant urges, that the view of the television set became a search solely because the police moved it away from the wall to uncover its serial number. “ ‘[S]ome investigative procedures designed to obtain incriminating evidence from the person are such minor intrusions upon privacy and integrity that they are not generally considered searches or seizures subject to the safeguards of the fourth amendment.’ Bouse v. Bussey, 573 F.2d 548, 550 (9th Cir. 1977).” United States v. Viera, 644 F.2d 509, 510-11 (5th Cir.), cert. denied, 454 U.S. 867, 102 S. Ct. 332, 70 L. Ed. 2d 169 (1981). We hold that the police conduct in this case was of such a nature.

The defendant also claims that the police searched the gun by looking for its serial number. There was, however, no testimony at the suppression hearing as to where the serial number on the gun was located, and, therefore, no basis for determining whether or not a search of that item occurred. Accordingly, the trial court did not err in denying the defendant’s motion to suppress.

The defendant next claims that by seizing 148 items in addition to the two authorized by the warrant, the police, during their second search of her home, conducted a general search in violation of the fourth amendment to the United States constitution and article 1, § 7 of the Connecticut constitution. The state contends that the seizure of these items was lawful under the plain view doctrine.

“ ‘ “[Wjhere a police officer has a warrant to search a given area for specified objects, and in the course of the search comes across some other article of incriminating character, the property is seizable under the plain view doctrine.” United, States v. Pacelli, 470 F.2d 67, 70 (2d Cir. 1972), cert. denied, 410 U.S. 983, 93 S. Ct. 1501, 36 L. Ed. 2d 178 (1973), citing Coolidge v. New Hampshire, 403 U.S. 443, 465, 514-16, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).’ United States v. Canestri, 518 F.2d 269, 274 (2d Cir. 1975).” State v. Pepe, 176 Conn. 75, 79, 405 A.2d 51 (1978). The plain view doctrine may be invoked to validate the seizure of contraband or stolen goods not mentioned in a warrant where two requirements are satisfied: (1) the initial intrusion which enabled the police to view the items was lawful; and (2) the police had probable cause to believe that the items were contraband or stolen goods. State v. Pepe, supra.

Here, the first precondition for application of the plain view doctrine was fulfilled. The police had a legitimate prior justification for being in a position to view the merchandise; they were executing a valid warrant to search for and seize the television set and the gun. Whether the requirements for applying the doctrine were met, therefore, turns on whether there was probable cause to believe that the seized items were stolen. Probable cause to believe that goods are stolen exists when there is enough trustworthy information supporting that proposition that a person of reasonable caution would be justified in believing it. See State v. Asherman, 193 Conn. 695, 705, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1984). “The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.” State v. Acquin, 187 Conn. 647, 657, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983).

In addition to the television set and the gun, the state introduced into evidence several other items which were seized during the second search of the defendant’s home: a pocket watch, a cameo pin, a bracelet, an earring, some coins, a creamer, a sugar bowl, a gravy ladle and accompanying tray, and a ring. When the police seized these items, they had extensive information to support their hypothesis that they were stolen. Before the police went into the defendant’s home to execute the first warrant, they had probable cause to believe that narcotics were being sold from the home, and in fact, when they entered the home on that occasion, they found narcotics and narcotics paraphernalia. They knew, on the basis of their training and experience, that stolen clothing and consumer goods are often accepted in lieu of cash as payment for drugs, and they saw large quantities of such items in the defendant’s home: stacks of designer jeans in different sizes, a rack containing articles of clothing that still had store tags attached to them, stereos, cameras, television sets and several pieces of jewelry. When the police entered the home to execute the second warrant, having the information gained from the first search in mind, they again found similar objects present. They also discovered a couple of trash bags full of silverware and similar objects, some with initials or inscriptions-which did not refer to the defendant or her sons. Also present was a case of exercise equipment, and a fur coat with initials that did not match those of any of the occupants of the house.

“Our cases have made clear that ‘[tjhere is often a fine line between mere suspicion and probable cause, and “[tjhat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.” Brinegar v. United States, [338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)].’ State v. Penland, 174 Conn. 153, 155-56, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).” State v. Acquin, supra. Here, the evidence available was sufficient to cross this line and provide the police with probable cause to believe that the articles were stolen.

In light of these factors, we accept the state’s contention that the technical requirements for invocation of the plain view doctrine were satisfied. There is, however, an additional limitation to application of the doctrine; it may not be used to permit a general or exploratory search. Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Onofrio, 179 Conn. 23, 40, 425 A.2d 560 (1979). The application of the doctrine to validate the seizure of some of the the articles found in the defendant’s home would have such an effect. Here, the second warrant was extremely precise, authorizing the seizure of only two specified articles: the gun and the television. In spite of this, and even though they found the television and the gun in the defendant’s bedroom where they knew the articles had previously been located, the police searched several other rooms of the house, including the attic. As a result of the search of the attic, the police discovered and seized the creamer, sugar bowl, and the gravy ladle and its tray. In searching for and seizing these items, the police ignored the limits of the warrant and thereby conducted a general or exploratory search in violation of the prohibition on unreasonable searches and seizures in both our state and federal constitutions. Accordingly, the trial court erred in refusing to suppress these items.

The trial court correctly determined that the items seized from the defendant’s bedroom should not be suppressed. The police had a warrant authorizing them to seize the television and the gun, and they knew that the gun and television were previously located in the defendant’s bedroom. The police, therefore, had authority to enter the defendant’s bedroom and search that room to the extent necessary to find the gun and the television. While lawfully present in the defendant’s room the police saw, in open view on or around the defendant’s dresser, the pocket watch, pin, bracelet, earring, coins and ring. They had, as discussed above, probable cause to believe that those items were stolen. Accordingly, under the plain view doctrine, the police were entitled to seize those items. State v. Pepe, supra, 79.

Having determined that the trial court should have suppressed the gravy ladle, tray, sugar bowl and creamer, we must decide what remedy should be awarded to the defendant. To prove the defendant committed larceny in the third degree, the state was required to show that the value of the stolen items she received or retained exceeded $1000. General Statutes § 53a-124. To establish the value of the stolen items, the state elicited testimony from Joseph Pari, an auctioneer and appraiser. Pari testified that the market value of the television set when stolen was approximately $400. He estimated that the combined value of the other items taken from the defendant’s bedroom, exclusive of the television and the gun, was approximately $542.65. He testified that the combined value of the four items taken from the attic was approximately $80. Stephen Prindle, the owner of a gun store, testified that the market value of the gun on October 7, 1982, was approximately $100. Given this evidence, the jury could reasonably have concluded that the combined fair market value of the items legally seized was over $1000 as required to sustain a conviction under General Statutes § 53a-124. Had the court properly suppressed the bowl, creamer, ladle and tray, the jury would have been allowed to consider the value of only the television, gun, watch, pin, bracelet, earring, coins and ring which the state’s experts testified was approximately $1042.65.® Accordingly, even had the trial court properly suppressed the items found in the attic, there would still have been sufficient evidence from which the jury could have found that the defendant committed larceny in the third degree. We conclude, therefore, that the trial court’s error was harmless.

The defendant next claims that the trial court erred in denying her motion for mistrial based on alleged juror misconduct. Before the close of evidence, while an argument was being made with the jury absent, defense counsel claimed to have heard someone in the adjoining jury deliberation room shout that “It’s a one of a kind earring. She remembers what it was.” After the incident occurred, defense counsel moved for a mistrial, and the court denied the motion and noted the defendant’s exception. The defendant now claims that any premature juror deliberation requires reversal if the jurors did more than merely refresh their memory of the evidence. We reject the defendant’s argument.

In State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980), our Supreme Court held that “it is error of constitutional magnitude for the trial judge expressly to instruct the jurors that they may discuss the case among themselves prior to its submission to them . . . .” Accord State v. Castonguay, 194 Conn. 416, 434, 481 A.2d 56 (1984). In this case, however, the trial court did not expressly allow the jurors to deliberate prematurely. In fact, it affirmatively told them not to. Where a trial court does not authorize the jury to deliberate prematurely, a finding of error is not automatic. In such circumstances, “[t]he test is ‘whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.’ United States v. Klee, [494 F.2d 394, 396 (9th Cir. 1974)].” State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982). Here, there is no indication that the fairness of the defendant’s trial was in any way affected by any premature deliberation. “A trial court has a large measure of discretion in dealing with a motion for a mistrial; State v. Martinez, 173 Conn. 541, 544, 378 A.2d 517 (1977); and its decision as to the fairness of the trial must be afforded great weight.” State v. McCall, supra, 77. The trial court did not abuse its discretion in denying the defendant’s motion for mistrial.

The defendant claims that the state failed to prove two of the elements of the crime of larceny beyond a reasonable doubt: that the defendant possessed the stolen items, and that she possessed them knowing that they were probably stolen. “Appellate review of such a claim requires us to undertake a two step analysis. ‘We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985).” State v. Brown, 198 Conn. 348, 352, 503 A.2d 566 (1986). Applying this standard, we conclude that the evidence was sufficient to support the jury’s verdict.

The defendant first challenges the sufficiency of the state’s proof that she possessed the stolen items. “In criminal law, the word ‘possession’ generally denotes ‘ “an intentional control of a designated thing accompanied by knowledge of its character.” [Citation omitted.]’ State v. Harris, 159 Conn. 521, 531, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 [1971]; see Webster, Third New International Dictionary.” State v. Kas, 171 Conn. 127, 130, 368 A.2d 196 (1976). The evidence presented at trial, construed in the light most favorable to sustaining the verdict, showed that the defendant owned and lived in the house from which the items were seized. She admitted to possessing, in fact she claimed to own, the television which was found in her bedroom. As discussed above, the pocket watch, pin, bracelet, earring, coins and ring were also found in the defendant’s bedroom, as was the gun. The objects were on top of her dresser or in the dresser area. The jury can hardly be deemed to have engaged in speculation by concluding that the defendant possessed items that were found out in the open in her own bedroom. The defendant was not merely present in the home when the objects were found; see id.; she owned the home and she lived there. See State v. Chisolm, 165 Conn. 83, 84, 328 A.2d 677 (1973) (evidence that defendant possessed narcotics found in locked bin in basement insufficient where defendant did not live on premises and where state did not show that tenants of premises did not have access to the bin).

The defendant’s final claim is that the state did not produce sufficient evidence to prove beyond a reasonable doubt that she possessed the items knowing they were probably stolen. We disagree. “To convict a defendant of the crime of receiving stolen goods, it is necessary for the state to prove beyond a reasonable doubt that he had actual knowledge that the goods were stolen when he received them. State v. Pambianchi, 139 Conn. 543, 546, 95 A.2d 695 [1953]; State v. Newman, 127 Conn. 398, 400, 17 A.2d 774 [1940]. Ordinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen.” State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961). Given the quantity, diversity, and condition of the consumer goods, jewelry and clothing present in the home, a reasonable man of honest intentions would have concluded that the items were stolen. The jury, therefore, could infer that the defendant had the requisite actual knowledge that the goods were probably stolen. Additionally, we note that possession of recently stolen property “raises a permissible inference of criminal connection with the property, and if no explanation is forthcoming, the inference of criminal connection may be as a principal in the theft, or as a receiver under the receiving statute, depending upon the other facts and circumstances which may be proven.” State v. Palkimas, 153 Conn. 555, 559, 219 A.2d 220 (1966). The trial court did not err in denying the defendant’s motion for judgment of acquittal.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-119 (8) provides in pertinent part: “A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner.”
      General Statutes § 53a-124 (a) provides in pertinent part: “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The value of the property or service exceeds one thousand dollars.”

       As a result of the search, narcotics and paraphernalia were discovered.

       The defendant does not challenge the search of her home, nor could she since the first warrant authorized the police to search the entire home for narcotics and paraphernalia. Rather, it is the “search” of the gun and the television which the defendant claims was unlawful on the first visit.

       A search occurs where police conduct violates some expectation of privacy an individual holds in an object or place and that expectation is one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring).

       In United States v. Viera, 644 F.2d 509, 510-11 (5th Cir.), cert. denied, 454 U.S. 867, 102 S. Ct. 332, 70 L. Ed. 2d 169 (1981), the court held that the police did not conduct a search of a piece of luggage by lightly pressing their hands along its exterior to prepare it for sniffing by a narcotics detection dog.

       The defendant also claims that the police “searched” other items by looking for their serial numbers, and thereby unlawfully exceeded the scope of the warrant. She has not, however, provided an adequate record for the court to determine the merits of this claim. While there was testimony at the suppression hearing that the police copied down serial numbers from many items, there was no testimony as to where the serial numbers were located. Accordingly, we cannot determine whether any search of those items occurred, and cannot, therefore, determine the merits of the defendant’s claim.

       There has been extensive dispute in the United States Supreme Court; see Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); over whether a third requirement, that the police discover the items inadvertently, should be applied. While this area has not been definitively resolved, it is clear that in Connecticut “inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.” State v. Couture, 194 Conn. 530, 547, 482 A.2d 300, cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1984).

       Where the seized object is evidence, as opposed to contraband, the police must have probable cause to believe that it was “reasonably related, in an evidentiary sense, to the commission of the crime.” State v. Onofrio, 179 Conn. 23, 41, 425 A.2d 560 (1979).

       While the defendant asserted that the television and the gun should be suppressed as the fruits of the unlawful first search, she did not claim, nor could she claim given the warrant, that the seizure of the television and the gun was unlawful independent of the first search. Since we have rejected the defendant’s argument as to the first “search,” we find no basis for suppressing the television and the gun now.

       The comment apparently referred to the testimony of one of the state’s witnesses in which she related that her home had been burglarized and also described some of the articles, including an earring, which had been taken.

       Generally, when faced with a claim of insufficient evidence, we review the evidence as presented at trial since if the evidence os presented were insufficient to support a guilty verdict, then “the state would be barred by double jeopardy principles from retrying the defendant, and [she] would be entitled to a judgment of acquittal rather than a new trial. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).” State v. Grant,
        6 Conn. App. 24, 32, 502 A.2d 945 (1986). Here, however, we do not need to review the sufficiency of the evidence as to the defendant’s possession of the items seized from the attic since we have already determined that they should have been suppressed and even without those items there was sufficient evidence that the value of the property exceeded $1000.


author: Borden, J.

text:
    State of Connecticut v. Thomas D. Hansen
    (4109) (4123)
    Hull, Borden and Bieluch, Js.
    Argued April 4
    decision released June 24, 1986

      Carl Schuman, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Cara Eschuk, law student intern, for the appellant (state).

      Averum J. Sprecher, for the appellee (defendant).
   Borden, J.

The state appeals, with the permission of the trial court, from the judgments of that court dismissing with prejudice the two informations against the defendant. The decisive issue is whether, in the light of the recent case of State v. Fleming, 198 Conn. 255, 502 A.2d 886 (1986), a trial court may dismiss an information on the ground that the affidavit supporting the arrest warrant did not establish probable cause. We hold that a trial court may not, and we find error.

The defendant, who was on probation, was arrested pursuant to a warrant, supported by affidavit, and charged with sexual assault in the fourth degree and risk of injury to a child. Shortly thereafter, he was arrested and charged with violation of probation. That arrest was also pursuant to a warrant supported by an affidavit which restated in shorter form essentially the allegations recited in the first affidavit. The defendant moved to dismiss both informations on the ground that the underlying affidavits did not establish probable cause. On April 1, 1985, the trial court concluded that the affidavits did not establish probable cause in either case and dismissed both informations, with prejudice, pursuant to Practice Book § 815 (9). These combined appeals followed.

The state argues that State v. Fleming, supra, which was decided on January 7,1986, subsequent to the decision of the trial court in this case, mandates reversal. In Fleming, the court overruled State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965) (insufficient arrest warrant affidavit deprives court of personal jurisdiction over the defendant), and held that “an illegal arrest imposes no jurisdictional barrier to a defendant’s subsequent prosecution . . . . ” State v. Fleming, supra, 262-63. Thus, Fleming established that the insufficiency of an arrest warrant affidavit to establish probable cause cannot serve as the basis for a motion to dismiss an information. It is clear that Fleming controls this case.

The defendant argues that the state should not be permitted to rely on Fleming in this appeal because the state did not question the validity of Licari in the trial court. We disagree.

We have recognized that the rule requiring claims on appeal to have first been made at trial “applies to the state as well as to the defendant.” State v. Martin, 2 Conn. App. 605, 612, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). In this case, however, the reasons for that rule do not suggest that it be applied to bar consideration of Fleming, and sound appellate discretion counsels otherwise.

“The policies behind the requirement that claims be made at trial in order to be reviewed on appeal”; State v. Cosby, 6 Conn. App. 164,173, 504 A.2d 1071 (1986); are principally to permit the trial court to correct any errors before it is too late, and thus to conserve judicial resources and to avoid the spectacle of the trial court proceedings becoming “a Kafkaesque academic test which [the trial judge] may be determined on appeal to have failed because of questions never asked of him or issues never clearly presented to him.” Id., 174. Although prior to Fleming our Supreme Court had hinted that the continued vitality of Licari was suspect; see, e.g., State v. Heinz, 193 Conn. 612, 629, 480 A.2d 452 (1984); State v. Gallagher, 191 Conn. 433, 438-39, 465 A.2d 323 (1983); when the trial court rendered its decision in this case, Licari was still the law and the trial court was obligated to apply it. Thus, there is no reason to believe that, had the state argued the inapplicability of Licari in the trial court, the decision of the trial court would have been any different.

Furthermore, while this appeal was pending, Fleming was decided, unequivocally stripping the trial court’s ruling of its theoretical underpinnings. To permit the trial court’s ruling to stand and thus to end these prosecutions on a basis which is no longer the law would be to deny “recognition to society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978); Ohio v. Johnson, 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984).

The defendant also argues that the trial court’s ruling was based on Practice Book § 815 (9) and that Fleming did not eliminate that Practice Book provision. Practice Book § 815 (9) provides for dismissal of an information because of “[djefenses or objections based on the insufficiency of the affidavit relied upon for the issuance of the arrest warrant. ...” The defendant argues in effect that Practice Book § 815 (9) provides a sufficient independent basis for the trial court’s action without regard to Fleming. We disagree. Practice Book § 815 (9) was specifically based on the now abandoned rule of Licari. See Orland, Connecticut Criminal Practice § 815.2. Thus, the reason for the rule no longer exists. See Southland Corporation v. Vernon, 1 Conn. App. 439, 446 n.6, 473 A.2d 318 (1984). To accept the defendant’s argument would be to render Fleming a nullity.

There is error in each case, the judgments dismissing the informations are set aside and the cases are remanded for further proceedings according to law.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Patrick Franklin v. Brenda Lucille Dunham et al.
    (4291)
    Dupont, C. J., Borden and Daly, Js.
    Argued April 10
    decision released June 24, 1986

      Thomas C. Coughlin, with whom was Thomas B. Coughlin, for the appellant (named defendant).

      Carey Donovan, certified legal intern, with whom were William Garfinkel and, on the brief, Mark Lawhead, legal intern, for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted this action to seek custody of his minor daughter. The mother and the maternal grandmother of the child are the defendants. From the judgment of the trial court awarding custody to the plaintiff with reasonable visitation to the grandmother, this appeal ensued.

The facts do not appear to be in dispute. On September 11,1979, a daughter was born to the plaintiff and the child’s mother, who were nineteen and sixteen years old respectively at the time. The parents were never married but the plaintiff acknowledged paternity of the child. The plaintiff attended the University of Connecticut from September, 1978, until his graduation in May, 1982, when he received a B.S. degree in business administration. During his undergraduate years, the plaintiff maintained a relationship with the child. The mother has led a nomadic existence and the child has been under the care of the defendant grandmother since 1983. Because the grandmother, age forty-two, has been employed full time, she was obliged to obtain aid to dependent children to pay for weekday child care.

In June, 1983, the plaintiff became employed as a psychiatric aide in a community health center, and was married in December, 1984. The plaintiff’s wife is employed as an assistant manager of a department store and is amenable to becoming a stepmother. The grandmother has been satisfactorily caring for the child with sporadic appearances by the mother. In 1984, the plaintiff had difficulty in exercising his visitation rights and the situation became exacerbated. This custody action followed. Both parties provide suitable accommodations for the child and the trial court found that both the grandmother and the plaintiff were fit and capable of caring for the child. The family relations officer recommended that the defendant grandmother be awarded custody. The trial court awarded custody to the plaintiff with reasonable visitation rights accorded to the grandmother. The court gave no visitation rights to the defendant mother. The defendant mother appealed, claiming that the trial court erred in granting custody to the plaintiff when it was in the best interests of the child to remain with the defendant grandmother.

The defendant mother claims that the trial court abused its discretion by reaching a conclusion which is not supported by the evidence. The trial court may exercise broad discretion to determine what is in the best interests of the child. Our review in cases involving family matters is limited and is warranted only if the trial court clearly abused its discretion. Cappetta v. Cappetta, 196 Conn. 10,16-17, 490 A.2d 996 (1985); Kearney v. State, 174 Conn. 244, 249, 386 A.2d 223 (1978); Evans v. Santoro, 6 Conn. App. 707, 714, 507 A.2d 1007 (1986). Our authority cannot be substituted for the authority of the trial court because of a mere difference of opinion, and, unless there is a clear abuse of discretion, our interference with the trial court’s action is unwarranted. Presutti v. Presutti, 181 Conn. 622, 627,436 A.2d 299 (1980). In a controversy between a parent and a stranger, the parent has the stronger right to custody unless the child’s welfare clearly requires that custody be placed in the stranger. Hao Thi Popp v. Lucas, 182 Conn. 545, 551, 438 A.2d 755 (1980). “The term ‘stranger’ means anyone not a parent. It may include relatives, friends, or child care agencies.” Id., 551 n.3; In re Juvenile Appeal (Anonymous), 177 Conn. 648, 662 n.12, 420 A.2d 875 (1979). Because the trial court is in a better position than the Appellate Court to assess the surrounding circumstances, appearance and demeanor of the parties in a domestic relations matter, its decision should not be disturbed unless it abused its discretion; every reasonable presumption should be given in favor of its correctness. Jacobsen v. Jacobsen, 177 Conn. 259, 262-63, 413 A.2d 854 (1979); Holden & Daly, Connecticut Evidence § 35, pp. 62-64.

The defendant grandmother relied heavily on the recommendation of the family relations officer that custody be awarded to the grandmother. “We have never held, and decline now to hold, that a trial court is bound to accept the expert opinion of a family relations officer. As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert’s opinion the court finds probative and helpful.” Yontef v. Yontef 185 Conn. 275, 281, 440 A.2d 899 (1981).

The defendant mother made no showing legally sufficient to require reversal of the trial court’s custody order. The trial court found that the plaintiff was a fit custodial parent who enjoyed a positive relationship with his child and felt that contact should be maintained with the grandmother. It is the trial court that must exercise its discretion to determine what is in the best interests of a child. On the record before us, we do not find that the trial court abused its discretion by awarding custody to the plaintiff.

There is no error.

In this opinion the other judges concurred.

       Subsequent to oral argument in this court, the defendant mother moved to reargue pursuant to Practice Book § 3111H on the ground that the trial court lacked subject matter jurisdiction because the action was not commenced as a habeas corpus action as required by General Statutes § 46b-1 (8). We deny the motion to reargue. General Statutes § 46b-l (8) provides that “[mjatters within the jurisdiction of the superior court deemed to be family relations matters shall be matters affecting or involving ... (8) habeas corpus and other proceedings to determine the custody and visitation of children .... ” (Emphasis added.) Thus, while habeas corpus is the usual method of bringing a custody and visitation claim before the court; see, e.g., Evans v. Santoro, 6 Conn. App. 707, 709, 507 A.2d 1007 (1986); it is not the exclusive method, and the court had subject matter jurisdiction to entertain this action.


text:
    John Curran, Trustee v. Allan C. Debek, Administrator (Estate of Anthony E. Debek), et al.
    (4228)
    Dupont, C. J., Hull and Spallone, Js.
    Submitted on briefs June 3, 1986
    decision released June 24, 1986

      Robert G. Zanesky filed a brief for the appellant (named defendant).

      Roy W. Moss filed a brief for the appellee (plaintiff).
   Per Curiam.

After this matter was scheduled for oral argument, the parties requested that they be allowed to waive oral argument and that this appeal be decided on the records and briefs.

We granted permission to waive oral argument and, after our review of the record and briefs, we find the defendant’s claims of error lacking in merit.

There is no error.


text:
    State of Connecticut v. James Jenkins
    (2896)
    Dupont, C. J., Hull and Daly, Js.
    Argued April 29
    decision released June 24, 1986

      Christopher C. Sheehan and John E. Sparks, certified legal interns, with whom was Todd Fernow, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were David Cohen, assistant state’s attorney, James G. Clark, deputy assistant state’s attorney, and Barbara Farrell, legal intern, for the appellee (state).
   Dupont, C. J.

After a trial to a jury, the defendant was convicted of sexual assault in the first degree, a violation of General Statutes § 53a-70 (a), assault in the second degree, a violation of General Statutes § 53a-60 (a) (1), and robbery in the third degree, a violation of General Statutes § 53a-136 (a). The defendant appeals from the judgment rendered thereafter, claiming that the trial court erred (1) in rejecting the defendant’s proposed jury charge on the dangers of eyewitness identification and (2) in violating the defendant’s federal and state constitutional rights to a fair trial and an impartial jury by the trial court’s allegedly improper treatment of defense counsel throughout the course of the trial.

The jury could have reasonably found the following facts based upon the evidence presented. While the victim was walking home from work at night, a male approached her from behind and to her right. The man crossed in front of the victim, looked at her, and said something in English, which the victim did not understand. The man then snatched the victim’s purse from her shoulder, made faces at her, and ran off. The entire incident lasted approximately two to three minutes and took place in an area illuminated by several street lights and a traffic light. The victim, who had good eyesight at the time, was able to observe her assailant at close range.

After trying, unsuccessfully, to hail a passing automobile, the victim walked down the middle of the road toward her home. The same male then reappeared and confronted her again. The victim recognized him as the man who had taken her purse. The victim understood that the man was asking her for money. When she indicated that she had no money, the assailant grabbed the victim by her hair, dragged her across the sidewalk, and threw her onto some nearby hedges. The victim, who was lying face down at the time, struggled with her assailant, who continued to drag her along the ground by her hair. After striking the victim several times, the assailant pulled her underneath the porch of a house. The area underneath the porch was partially illuminated by nearby street lights.

Once underneath the porch, the victim momentarily lost consciousness. When she regained consciousness, the victim, whose clothes had been removed, was lying face down and was being sexually assaulted by her assailant. At the same time, the assailant was also pulling the victim’s hair and repeatedly banging her head into the ground. After leaving momentarily to investigate a noise, the assailant returned and sexually assaulted the victim again.

The assailant later searched the victim’s purse for several minutes. The victim, who was still in a face down position, was able to observe the assailant while he searched her purse. Although her left eye was severely injured as a result of the beating, the victim could still see her assailant clearly out of her right eye. The assailant then read the victim’s name on her social security card and asked her if that was her name, to which the victim responded affirmatively. After again hearing noises from outside the porch, the assailant threw the victim’s slacks at her and left her under the porch.

After getting dressed and putting her belongings back inside her purse, the victim went to the sidewalk and tried to call for help. The victim also observed her assailant, who ran away when he saw the victim trying to get help. She then went to the door of the same house where she had been assaulted and banged against the door with her body. A woman opened the door and the victim crawled inside and asked her to call the police. The victim was later taken to the hospital and treated for her injuries, which included a blow-out fracture to the orbit of her left eye, and multiple cuts, bruises and bites on various parts of her body.

While in the hospital, the victim selected a photograph of the defendant as her assailant from one of two different photographic arrays shown to her by the police. The two arrays contained over one hundred photographs. She stated that she was positive that the defendant was the man who had assaulted her. She again identified him in a photographic array of another eight pictures. The victim also made an in-court identification of the defendant at trial.

The defendant’s first claim of error is that the trial court erred by refusing to give a requested jury charge on the dangers of eyewitness identification. The defendant argues that in order to minimize the danger of misidentification in this case, a jury instruction based upon Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), should have been given. The defendant claims that he was substantially prejudiced by the trial court’s refusal to give the requested instruction.

At trial, just prior to closing arguments, defense counsel stated that he had a request to charge based on the language used by Justice Harlan in Simmons v. United States, supra. The trial court inquired whether defense counsel was making a formal request to charge or merely submitting a copy of the case to the court. When defense counsel replied that it was a request to charge, the trial court refused to accept it, stating that the charge was not submitted in the proper form. In granting defense counsel an exception, the trial court stated that it would accept a properly drafted charge, but would not accept the photocopied excerpt from Simmons offered by defense counsel.

Our Supreme Court has approved the incorporation of the language from Simmons v. United States into a properly drafted jury instruction. In State v. Harden, 175 Conn. 315, 321-22, 398 A.2d 1169 (1978), it was observed that “ ‘[w]hile a defendant is not entitled to a reading of all that was said about the dangers of misidentification in United States v. Wade [388 U.S. 218, 228-36, 87 S. Ct. 1926, 18 L. Ed. 2d 1149] and Simmons v. United States [supra, 383-84], we would think it reasonable that a properly drafted instruction, drawing particularly on Mr. Justice Harlan’s language in Simmons, should be given if requested. Whether failure to do so would constitute reversible error would depend upon the circumstances.’ United States v. Fernandez, 456 F.2d 638, 643-44 (2d Cir. [1972]); see also United States v. Evans, 484 F.2d 1178, [1188] (2d Cir. [1972]).” (Emphasis added.) State v. Harden, supra; see also State v. Tinsley, 181 Conn. 388, 393-94, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981). In this case, defense counsel failed to submit a properly drafted request to charge on the issue of identification. See Practice Book § 852; State v. McIntosh, 199 Conn. 155, 158-59, 506 A.2d 104 (1986). Instead, the trial court was merely given a photocopied excerpt from Simmons immediately prior to final oral argument. The excerpt from Simmons was not a properly drafted request to charge because it contained material inappropriate for a charge such as the Simmons court’s holding and references to another case and to a prior page of the Simmons decision. It was not a single proposition of law clearly and concisely stated, containing facts supported by the evidence to which the legal proposition applied.

Even if the requested jury instruction had been submitted in the proper form, our review of the charge to the jury on this issue, when examined as a whole, indicates that the instructions fairly and adequately presented the case to the jury so that no injustice was done to either party in the case. See State v. Davis, 198 Conn. 680, 686, 504 A.2d 1372 (1986); State v. McKnight, 191 Conn. 564, 583, 469 A.2d 397 (1983); State v. Tinsley, supra, 394; State v. Harden, supra, 322; State v. Frazier, 7 Conn. App. 27, 37 n.3, 507 A.2d 509 (1986). Here, the trial court stated that it would include the substance of the defendant’s requested instruction on misidentification in its charge to the jury, even though the charge was not submitted in the proper form. Defense counsel conceded that the trial court “probably will cover seventy-five to eighty percent” of the requested instruction in the court’s actual charge to the jury. It is not error for a trial court to refuse to charge a jury in the exact words of a requested instruction, as long as the requested charge is given in substance. See State v. Harrell, 199 Conn. 255, 269-70, 506 A.2d 1041 (1986); State v. Falcone, 191 Conn. 12, 26, 463 A.2d 558 (1983). The court's charge basically incorporated the substance of Simmons and no error was committed by the court as to its charge on identification.

The defendant’s second claim of error is that the trial court’s treatment of defense counsel throughout the course of the proceedings violated the defendant’s federal and state constitutional rights to a fair trial and an impartial jury. The defendant claims that various statements made by the trial court went beyond the scope of permissible commentary and resulted in substantial prejudice to him. Although no objection was made at trial to the allegedly prejudicial remarks, the defendant argues that because the remarks implicate a fundamental constitutional right and a fair trial, his claim may properly be reviewed under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The state argues that this court should not review this claim because the defendant did not object to the court’s comments at trial, nor did he file a motion for a mistrial based upon judicial misconduct. This court may review the defendant’s claim "where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, supra, 70. Claims of improper judicial commentary, similar to those raised by the defendant, have been held to be appropriate subjects for appellate review under Evans. See, e.g., State v. Fernandez, 198 Conn. 1, 9-10, 501 A.2d. 1195 (1985); State v. Mack, 197 Conn. 629, 638, 500 A.2d 1303 (1985). The review in this case is limited to whether any of the trial court’s statements about which the defendant complains deviated from the impartiality required of the court to such an extent that it infringed on the defendant’s right to a fair trial. The defendant identifies seven comments which he claims were improper and resulted in substantial prejudice to him. He does not claim that any single comment was so prejudicial as to deprive him of a fair trial but that the totality of the comments did.

Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. See U.S. Const., amend. XIV; Conn. Const., art. I, § 8; Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 (1941). In a criminal trial, the judge is more than a mere moderator of the proceedings, and it is his responsibility to conduct a trial in a manner which approaches an atmosphere of impartiality. Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942); State v. Fernandez, supra, 10-12; State v. Gordon, 197 Conn. 413, 424D-425, 504 A.2d 1020 (1985).

The victim in this case could testify only with the aid of an interpreter, and the trial court could reasonably be expected to make comments or ask questions for the purpose of clarifying the testimony of the victim. Such comments or questions by the trial court are permissible and often necessary, as long as the trial court does not appear to be taking a position of advocacy or its comments on the evidence presented do not direct or advise the jury on how to decide a particular issue. See State v. Mack, supra, 641; State v. Frazier, supra, 31. The defendant’s characterization of the trial court’s comments as “bullying and sarcastic” and his assertion that “the judge showed a disturbing tendency to belittle counsel’s efforts to develop major themes relating to identification” are difficult to substantiate since a reviewing court is limited to an examination of a printed record and lacks the benefit of observing the exchanges between the participants involved in the conduct of the trial. See State v. Fernandez, supra, 13; see also United States v. Nazzaro, 472 F.2d 302, 304 (2d Cir. 1973); United States v. Grunberger, 431 F.2d 1062, 1067 (2d Cir. 1970).

Two of the allegedly prejudicial remarks of the court occurred outside of the presence of the jury and did not affect his right to a fair trial. The other comments did not, either singly or together, deprive the defendant of a fair trial. The comments to which the defendant objected were interspersed over a five day trial. Furthermore, in its charge to the jury, the trial court specifically instructed the jury not to consider its comments or conduct, or its exchanges with either counsel, in reaching a decision. Such curative instructions are entitled to great weight and ordinarily prevent an appellate court from finding that the trial court committed reversible error. State v. Fernandez, supra, 17. The trial court’s comments did not deprive the defendant of his right to a fair trial or an impartial jury.

There is no error.

In this opinion the other judges concurred.

       The victim, whose native language is Spanish, understands little or no English and testified at trial with the aid of an interpreter.

       While a jury charge on the dangers of misidentification may be given in an appropriate case, the failure to give such a charge is not reversible error where the defendant’s conviction was not based upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent. See State v. Davis, 198 Conn. 680, 685, 504 A.2d 1372 (1986); State v. George, 194 Conn. 361, 375, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). In this case, the testimony of the victim regarding her identification of the defendant as her assailant was not uncertain, unclear or inconsistent.

       Practice Book § 852 provides: “Prior to the beginning of the arguments, sufficient copies of written requests to charge the jury must be filed with the clerk, who shall forthwith hand a copy to the judicial authority and to all other parties. Requests shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the facts supported by the evidence to which the proposition would apply. Requests to charge should not exceed fifteen in number, unless, for good cause shown, the judicial authority permits the filing of an additional number. If a request to charge is granted, the judicial authority shall apply the proposition of law to the facts of the case. A principle of law should be stated in but one request and in but one way. Requests attempting to state in different forms the same principle of law as applied to a single issue are improper.”

       These comments occurred during cross-examination of the victim on the defendant’s motion to suppress identification evidence. They are:
      “[Defense Counsel]: How long did that first confrontation take place?
      “The Court: Does she understand the word confrontation? Ask it right.” Later on during the hearing on the motion to suppress, as defense counsel attempted to cross-examine the victim regarding her identification of her assailant, the following exchange took place:
      “[Defense Counsel]: Well it’s too important to — I’m going to try one more time.
      “The Court: Go ahead. But I would say that we should move along.”

       During the cross-examination of the woman who let the victim into her home after the assault, regarding the lighting conditions at night at the scene of the assault, the following exchange occurred:
      “[Defense Counsel]: I object to that, Your Honor. I didn’t ask her about under there yet.
      “The Court: Well, I want to know what it’s all about. Dark is what? It’s a relative situation. We’re going to have to pin it down and let her know, let her be able to tell us what her part of observation would be in the natural light at that time of night, at that location.”
      Defense counsel then proceeded to ask the witness further questions which established the darkness of the area in question.
      During the defendant’s cross-examination of the police officer who showed two groups of photographs to the victim, the court made the following comment to defense counsel in ruling on an objection by the state:
      “The Court: Well, we don’t need the argument, the question is confusing. Place it again. You know, you could argue, but I don’t call for it. If I don’t call for it, you can’t do it.”
      The defendant’s other objections involve comments by the trial court, during the defendant’s cross-examination of the victim. They are as follows:
      “[Defense Counsel]: Ask her if she wants a recess. This is very important.
      “The Court: Oh no. We move right along.”
      Moments later, the following exchange took place:
      “[Defense Counsel]: Ask her if I’m frightening her by being up here?
      “The Interpreter: No. She’s never been in Court. She’s never gone through this. She’s tired.”
      “The Court: Are you having a private little chat here?
      “[Defense Counsel]: No, your Honor.
      “The Court: Do you want to put a question?
      “[Defense Counsel]: If I might say, off the record,—
      “The Court: Not off the record. Go ahead.
      “[Defense Counsel]: I don’t want to frighten the woman.
      “The Court: I understand that.”

       The trial court’s instructions to the jury on this issue were as follows: “This is an adversary situation. You have to understand that. These Gentlemen are opposed. This Gentleman has filed an information, he’s charged that man with crimes. He’s defending him. I’m not a referee, I’m a Judge of the Court. I just don’t decide things based on the momentary thought. So you have to understand that your concern is with the State of Connecticut and the Accused. So whether Counsel or I, in any way, have exhibited any conduct whatever that you find — that you don’t feel is appropriate in your values don’t let that interfere with your deliberations in regard to this case. Your function is your function and it should be unimpaired by any other personality feeling. How I speak to him ... or how he responds to me doesn’t bear on this case. I don’t know of any basis for you to be concerned with that. But on the other hand, if it’s there you never know. So put it out of your mind.”


text:
    State of Connecticut v. Marvin Lee Jones
    (2926)
    Dupont, C. J., Hull and Borden, Js.

      Argued April 8
    decision released June 24, 1986

      John F. Kavanewsky, Jr., with whom was Hillary E. Zitter, for the appellant (defendant).

      Harry Weller, special assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Dennis O’Connor, assistant state’s attorney, James G. Clark, deputy assistant state’s attorney, and Mary Glassman, law student intern, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70. The sole issue is whether the trial court erred in excluding the defendant’s offer of evidence of the victim’s reputation pursuant to General Statutes § 54-86f (4), which is the “constitutional rights” portion of the rape shield statute. We find no error.

From the state’s evidence, the jury could reasonably have found the following facts: The victim and the defendant met in a bar on a winter evening where the defendant initiated a conversation with her. The victim declined the defendant’s offer to smoke marihuana and went outside to get some air. The defendant followed her, forced her into his car and drove her to a park where he sexually assaulted her. When the defendant’s car became stuck in deep snow, he left the car to shovel it out. The victim escaped and ran through the park to a police cruiser. The police officer returned with the victim to the defendant’s car and arrested the defendant.

The defendant testified essentially as follows: The victim approached him in the bar and initiated a conversation with him. She accompanied him to his car and they drove to the park at her request. On the way, she hugged and kissed him, and when they arrived at the park they engaged in consensual sexual intercourse and smoked marihuana. The victim asked to borrow twenty dollars from the defendant to buy food for her child, but he said that he did not have any money. She then asked to go home to her child. When the defendant’s car got stuck in the snow, the victim helped him try to shovel the car out. The defendant told the victim that he would not leave his car but that she could walk home if she wished. She left.

In the absence of the jury, the defendant made an offer of proof of the testimony of a defense witness, Alvin Albert. On appeal, the defendant challenges the court’s exclusion of the following portion of his offer of proof: Albert testified that he had known the victim for about four years and had had contact with her on about four occasions in that time period. He testified that “[h]er reputation in the community is that she dates black guys, Spanish men. In a bar or club, she’ll approach you, you buy her a drink and then you have full liberty to do whatever you want when she comes out and says, ‘Let’s go and party.’ ” When asked “whether or not money is involved in these incidents occasionally?” he answered, “Off and on, on some occasions, yes.” He also testified that her reputation for veracity about sexual conduct was that “[w]hen one guy tells another guy, then she denies it and when she feels herself getting boxed up in the corner, she makes the threat of T am calling the police.’ The only reason why she didn’t call the police on me is because she knew about the picture that I had of her when me and her were together, because she asked me for money that time and I told her no . . . .” The trial court sustained the state’s objection to Albert’s testimony, but did permit him to give the jury his negative opinion of her reputation for truth and veracity generally.

The defendant claims that the court erred because the proffered testimony was admissible pursuant to General Statutes § 54-86f (4). That statute provides that, in certain sexual assault prosecutions, “no evidence of the prior sexual conduct of the victim may be admissible unless such evidence is . . . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.”

More particularly, he argues that the excluded evidence shows a pattern of behavior of the victim which corroborated the defendant’s testimony that the sexual intercourse between them was consensual. Thus, he argues, exclusion of the evidence violated his constitutional right of confrontation and his due process right to call witnesses in his defense. See State v. Cassidy, 3 Conn. App. 374, 380, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). He also argues that the proffered evidence regarding the victim’s moral character was so critical to her credibility that excluding it violated the same constitutional rights. We disagree.

First, the offer of proof consisted mainly of testimony about the victim’s reputation for engaging in a pattern of meeting black or hispanic men in bars and consensually engaging in sex with them, sometimes involving money. General Statutes § 54-86f “limits proof to evidence of ‘sexual conduct,’ which phraseology . . . permit[s] only specific instances of conduct and prohibits] all proof of reputation or personal opinion of the victim’s sexual conduct.” Tait & LaPlante, Connecticut Evidence (1985 Sup.) § 8.3g, pp. 108-109. This reading of the statute, which was enacted “specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault . . . for policy purposes”; State v. Cassidy, supra, 379; is consistent with the long standing judicial skeptical view about the reliability of reputation evidence. That view is that such evidence is usually based on hearsay, rumor and gossip. State v. Gelinas, 160 Conn. 366, 369, 279 A.2d 552 (1971); Richmond v. Norwich, 96 Conn. 582, 594, 115 A. 11 (1921). Requiring, as the statute does, that the strong policies of the statute be overcome only by evidence which does not have the inherent infirmity of reputation or lay opinion evidence, as in this case, can hardly be viewed as violating the defendant’s constitutional rights to confront the victim or to present a defense.

Second, the gist of Albert’s testimony about the victim’s reputation for veracity concerning sexual conduct was that when one of her sexual partners would tell another man, she would become angry, deny the conduct and threaten to call the police. This testimony was so tangentially related, if at all, to the version offered by the defendant that it did not violate the defendant’s constitutional rights to exclude it. The defendant’s testimony did not tend to establish the essential facts which Albert’s testimony purported to establish, namely, that the victim caused the defendant to be arrested because he tarnished her reputation by kissing and telling. Similarly, the vague mention of money in Albert’s testimony hardly qualifies for a constitutionally required fit with the defendant’s testimony that the victim, after sexual intercourse, asked to borrow twenty dollars from him to buy food for her child. Neither the defendant’s testimony nor the offer of proof of Albert’s testimony tended to establish, as the defendant appears to argue, that the sexual intercourse was consensual because it was in exchange for money.

The defendant’s final argument, namely, that the offer of proof established the victim’s immoral character and thus critically affected her credibility, is without merit. The defendant was allowed the opportunity to impeach the victim’s credibility with Albert’s testimony regarding her reputation for veracity. We simply do not see, nor has the defendant explained, how Albert’s opinion of her reputation regarding sexual conduct with others was “so relevant and material to” the victim’s credibility on the issue of consent “that excluding it . . . violate[d] the defendant’s constitutional rights.” General Statutes § 54-86f (4). The cases from other jurisdictions on which the defendant relies either did not involve a rape shield statute like ours or are factually distinguishable.

There is no error.

In this opinion the other judges concurred.

       Albert had previously testified that he had a nude photograph of the victim taken after they had engaged in sexual relations. The photograph was marked for identification but was not offered into evidence.

       The defendant also raises a claim regarding testimony of Albert that, about three weeks before the trial, the victim had made a false complaint to the police about a man who had been at her apartment. Examination of the transcript, however, indicates that the defendant withdrew that offer because “[ojbviously, that [other case] hasn’t been tried yet.”