author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. MARCIAL S.

    (AC 26479)
    Flyrm, C. J., and Harper and Dupont, Js.
    Argued September 11
    officially released November 6, 2007

      Michael L. Moscowitz, for the appellant (defendant).

      Kathryn Ward Bare, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene R. Calistro, Jr., senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

FLYNN, C. J.

The defendant, Marcial S., appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court (1) improperly admitted (a) hearsay evidence and (b) constancy of accusation testimony, and (2) improperly charged the jury on reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Beginning when the victim was approximately four years old, she periodically was sexually assaulted in her home by her father, the defendant. According to the victim’s testimony, these assaults took place sporadically and without any set pattern following the first incident. Shortly after the first incident, the victim told her older sister about what had happened. The victim does not recall how her sister reacted to the information disclosed.

The victim did not tell anybody else about the assaults until she was in the fourth grade, when she told a classmate, A, that her father was touching her inappropriately. Later, in the sixth grade, the victim also told A that she feared she was pregnant. When asked by A whom she thought the father was, the victim said it was the defendant. Because the victim requested that A keep her secret, A did not tell anybody about the victim’s disclosures. Following the victim’s birthday in February, 2003, the victim also disclosed to her classmate, B, that the defendant had molested her a few days earlier. At about the same time, in late February, 2003, the victim and the defendant were engaged in a dispute over her telephone privileges. During this same period, the defendant also was engaged in a dispute with the victim’s older sister.

On March 3, 2003, the Monday following her disclosure to B, the victim told her sixth grade teacher that “since I was four years old, my father has been touching me in inappropriate places.” The teacher had the victim repeat her disclosure to the school nurse; the teacher and the nurse then notified the department of children and families (department), which, in turn, called the local police. A police detective then arrived at the school and took the victim’s signed statement. Shortly thereafter, the defendant was arrested, and the department referred the victim to the Yale-New Haven Hospital child sexual abuse evaluation program (Yale Clinic) for a medical evaluation.

The defendant’s case was tried in November and December, 2004. Following the jury’s verdict of guilty of all counts charged, the defendant was sentenced on April 1, 2005, to a total effective term of imprisonment of forty years, suspended after thirty-five years, and ten years probation. This appeal followed. Additional facts will be set forth as necessary.

I

EVIDENTIARY RULINGS

As a preliminary matter, the state argues that this court should decline to review the defendant’s two evidentiary claims on appeal because he did not meet his burden of alleging harm as is required under State v. Sawyer, 279 Conn. 331, 358, 904 A.2d 101 (2006). We conclude that the defendant adequately briefed the issues, and, therefore, we will reach their merits.

Our review of claims of evidentiary impropriety grants to the “trial court . . . broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 44, 770 A.2d 908 (2001).

A

The defendant first claims that the court improperly admitted evidence under the medical treatment exception to the hearsay rule. Specifically, the defendant asserts that the testimony given by Janet Murphy, a nurse practitioner from the Yale Clinic, was admitted improperly because the victim was referred to Murphy by a department social worker in order to gather evidence rather than for medical treatment. Under the same logic, the defendant likewise asserts that Murphy’s written report of the medical examination was admitted improperly. We do not agree.

The following additional facts are required for the resolution of this issue. Murphy is a licensed nurse practitioner who, pursuant to General Statutes § 20-87a, may, “in collaboration with a physician licensed to practice medicine in this state, prescribe, dispense and administer medical therapeutics and corrective measures . . . .” On March 11, 2003, the victim was seen at the Yale Clinic by Murphy. An examination by Murphy revealed that the victim displayed no outward signs of physical trauma but that she had a “[c]lear history of sexual abuse by [her] biological father, including vaginal-penile penetration and oral-penile penetration.” In her testimony, Murphy stated that “normal” physical results did not surprise her because a few weeks had passed between the examination and the most recent alleged assault. Murphy also noted that the victim had reached puberty, at which point the vaginal area is able to more readily heal itself from injury. During the examination, Murphy also observed some discharge and treated the victim for a yeast infection. On March 26, 2003, Murphy completed a second physical examination of the victim that also yielded normal results.

In addition to conducting physical evaluations of the victim, Murphy also evaluated her medical history. That history revealed that when the victim was younger, she had suffered recurrent urinary tract infections. In her testimony, Muiphy stated that when imaging studies of elimination organs were performed on the victim with normal results, questions should have been raised as to the origin of the infections. Muiphy then opined that “one thing we do know is adult women who are sexually active do get more urinary tract infections than women who are not sexually active ... so it does raise that question . . . when there is more than one urinary tract infection.”

The medical treatment exception is a long-standing exception to the hearsay rule of evidence that applies to statements “made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical treatment or advice.” Conn. Code Evid. § 8-3 (5); see also State v. Aaron L., 272 Conn. 798, 814, 865 A.2d 1135 (2005). “The rationale underlying the medical treatment exception to the hearsay rule is that the patient’s desire to recover his health . . . will restrain him from giving inaccurate statements to a physician employed to advise or treat him.” (Internal quotation marks omitted.) State v. Cruz, 260 Conn. 1, 7, 792 A.2d 823 (2002); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.20.2, p. 634. Pursuant to Cruz, the sole factor to examine in determining the admissibility of evidence under the medical treatment exception is whether the statements are made within the “medical chain” for the purpose of obtaining diagnosis or treatment and are pertinent to the diagnosis or treatment sought. See State v. Cruz, supra, 7-10.

In the present case, both the referring social worker from the department and Murphy stated in their testimony that any evidence gathered at the Yale Clinic was incidental to the medical component of the examination. The referring social worker explained that “when we make referrals to Yale Sexual Abuse Clinic, a medical .. . examination is done. If there is evidence that’s collected, then evidence is collected. But we always do a medical examination ... if we can.” When asked by defense counsel about potential evidence gathering at the examination, Murphy responded that the examination “was more focused on medical needs.” The impetus for the examination as stated by the victim to Murphy was to “check her for any damage.” Although the defendant interprets the victim’s reasoning as corroboration for the evidence gathering function of the examination, “checking for damage” equally could have been a medically motivated statement, considering the potential for internal injury, sexually transmitted diseases or pregnancy under the circumstances of the case. Furthermore, Murphy did medically treat the victim for what she thought might have been a yeast infection on March 11, 2003, and conducted a follow-up visit on March 26.

The hearsay rule equally excepts statements made to medical personnel when seeking “advice.” See Conn. Code Evid. § 8-3 (5), supra. The victim’s statement that she was at the Yale Clinic to check for “damage” also could be interpreted to mean that she was there in search of advice about how to proceed as a victim of sexual assault. Accordingly, under the theory of either medical treatment or advice, the testimony given by Murphy, as well as her written report, properly were admitted by the court under the medical treatment exception to the hearsay rule.

B

The defendant next claims that the court improperly admitted A’s testimony in violation of the limitations to the constancy of accusation doctrine enumerated in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). The defendant asserts that A’s testimony was admitted improperly because it was offered “for substantive purposes and not to corroborate the victim’s testimony.” The state argues that the testimony properly was admitted. We agree with the state.

The following additional facts are necessary in order to resolve the defendant’s claim. At a pretrial evidentiary hearing, the court held that A could testify at trial about the victim’s multiple disclosures to her as a rebuttal to the defendant’s claim that the sexual assault allegations were a recent fabrication. The court noted that it would allow the testimony as a prior consistent statement to rebut a defense theory of recent fabrication under State v. Troupe, supra, 237 Conn. 304 n.19 (constancy of accusation doctrine does not affect otherwise admissible testimony concerning details of sexual assault allegations). The court further noted, however, that it would limit the testimony in a “Troupe like” fashion. The court reiterated this ruling at trial after an objection by defense counsel prior to A’s testimony.

At trial, the following colloquy occurred between A and the prosecutor:

“[The Prosecutor]: ... [A], did [the victim] tell you something that happened to her?
“[The Witness]: Yes.
“[The Prosecutor]: Did she tell you that anyone touched her in an inappropriate manner?
“[The Witness]: Yes.
“[The Prosecutor]: Did she say who did this to her?
“[The Witness]: Yes.
“[The Prosecutor]: Who was that person?
“[The Witness]: Her dad.
“[The Prosecutor]: When was the first time that she disclosed that to you, [A]?
“[The Witness]: Ah, about the end of fourth grade.
“[The Prosecutor]: Were there other times that she told you what was happening to her in this . . . manner we’ve already described?
“[The Witness]: Yes.
“[The Prosecutor]: Okay. How often?
“[The Witness]: Um, like twice a month.”

Prior to 1974, a prosecution for sexual assault required corroborative evidence. See General Statutes (Rev. to 1969) § 53a-68, which provided in relevant part that “[a] person shall not be convicted of any offense under this part, or of an attempt to commit such offense, solely on the uncorroborated testimony of the alleged victim, except as hereinafter provided. Corroboration may be circumstantial. ...” That requirement was then repealed by the General Assembly in Public Acts 1974, No. 74-131.

Judicial decisions rendered after that development, concerning the constancy of accusation doctrine’s rationale, were summarized recently by our Supreme Court in State v. McKenzie-Adams, 281 Conn. 486, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). “The constancy of accusation doctrine traces its roots to the fresh complaint rule . . . [t]he narrow purpose of [which] was to negate any inference that because the victim had failed to tell anyone that she had been [sexually assaulted], her later assertion of [sexual assault] could not be believed. . . . Because juries were allowed—sometimes even instructed—to draw negative inferences from the woman’s failure to complain after an assault . . . the doctrine of fresh complaint evolved as a means of counterbalancing these negative inferences. Used in this way, the fresh complaint doctrine allowed the prosecutor to introduce, during the case-in-chief, evidence that the victim had complained soon after the [sexual assault]. Its use thereby forestalled the inference that the victim’s silence was inconsistent with her present formal complaint of [assault]. . . . In other words, evidence admitted under this doctrine effectively served as anticipatory rebuttal, in that the doctrine often permitted the prosecutor to bolster the credibility of the victim before her credibility had first been attacked. . . . The fresh complaint doctrine thus constituted a rare exception to the common-law rule that prohibited rehabilitative evidence in the absence of an attack on the witness’s credibility. . . .

“In State v. Troupe, supra, 237 Conn. 303, [our Supreme Court] observed that the state and the victim both have a legitimate interest in protecting] against the unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident. On the other hand, [our Supreme Court] observed that' a defendant has an interest in not being unreasonably burdened by such accrediting or supporting evidence, which . . . generally is not admissible in the trial of crimes other than sexual assault. ... In light of these competing interests, [our Supreme Court] rejected the then existing rule that a person to whom a sexual assault victim had complained could provide substantive testimony with respect to the incident. . . . Instead, [our Supreme Court] concluded that a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. In all other respects, our current rules remain in effect. Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” (Citations omitted; internal quotation marks omitted.) State v. McKenzie-Adams, supra, 281 Conn. 539-40; see also State v. Troupe, supra, 293-305.

The defendant argues that A’s testimony went beyond the limitations enumerated in Troupe because “nowhere did [the victim] testify in the case-in-chief that she was sexually assaulted twice a month, nor is the defendant charged with sexually assaulting [the victim] twice a month.” The defendant’s assertion, however, fails to appreciate the context in which A’s testimony was admitted. First, A’s testimony was admissible under the Troupe limitations to the constancy of accusation doctrine because it corroborated the timing of the victim’s complaint. Without adding impermissible details of the sexual assault allegations, A’s testimony placed the victim’s first complaint to her at “about the end of fourth grade,” with continuing disclosures occurring approximately “twice a month.” These disclosures to A corroborate the victim’s testimony because they demonstrate that the victim complained about the attacks well before her disclosure to the police when she was in the sixth grade.

Second, A’s testimony was admissible because it rebutted the defendant’s assertion that the allegations were recent fabrications. See State v. Troupe, supra, 237 Conn. 304 n.19. “[D]etails of a sexual assault complaint are otherwise admissible . . . [as] a prior consistent statement admitted to rebut a claim of recent fabrication.” Id. Under that reasoning, A’s testimony was admissible to rebut the defense’s theory that the victim fabricated her disclosure following a dispute with the defendant in late February, 2003. The court explained in overruling the defense’s objection to A’s testimony that “part of [the defense’s] theory of the case is that . . . the disclosure made on March third was a fabricated disclosure . . . that was borne [out] of some sort of quarrel over telephone privileges and the like in late February of 2003. ... If the jury finds it to be a fact, that [the victim] has been complaining about . . . these long series of attacks for a very long period of time prior to February, 2003, [it] is certainly in the court’s opinion admissible ... to rebut the . . . theory of recent fabrication.” We agree and therefore conclude that A’s testimony was properly admissible.

II

REASONABLE DOUBT STANDARD

The defendant last challenges the court’s instruction to the jury regarding the reasonable doubt standard. Specifically, he argues that the court unconstitutionally diluted the state’s burden of proof by instructing the jury that reasonable doubt is (1) “not a surmise, a guess, or mere conjecture”; (2) “areal doubt, an honest doubt”; and that (3) “if you can reconcile all of the facts proven with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty.”

The defendant did not object to those instructions at trial and now seeks Golding review. We will review the defendant’s claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because there is an adequate record, and “a claim of instructional error regarding the burden of proof is of constitutional magnitude.” State v. Howard, 88 Conn. App. 404, 429, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005). We reject all of these claims because our Supreme Court has not found similar instructions unconstitutional.

“In determining whether a trial court’s charge satisfies constitutional requirements . . . individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 334, 929 A.2d 278 (2007).

The defendant first contends that the court improperly instructed the jury that a reasonable doubt is “something more than a guess or a surmise.” Our Supreme Court recently held that this instruction was proper in State v. Davis, supra, 283 Conn. 280, stating that “this court has rejected the claim that it is improper to define reasonable doubt as ‘something more than a guess or a surmise.’ . . . We persist in the view that the instruction, when considered in light of the charge as a whole, is not improper.” (Citation omitted.) Id., 337. The next instruction cited by the defendant, that reasonable doubt is a “real doubt, an honest doubt,” has likewise been held to be proper. See id., 336 (“[t]his court consistently has held that this language is not constitutionally defective”). Our Supreme Court equally has held the last instruction cited by the defendant to be a proper instruction. See State v. Lemoine, 256 Conn. 193, 205, 770 A.2d 491 (2001) (rejecting constitutional challenge to instruction that jurors could not find defendant guilty if they could “reconcile all of the facts proven with any reasonable theory consistent with the innocence of the accused” [internal quotation marks omitted]). We therefore conclude that the court’s jury instructions did not unconstitutionally reduce the state’s burden of proving the defendant guilty beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       A culture taken from a swab of the victim’s genital area on March 11, 2003, revealed that the cause of the discharge was unknown and, according to Murphy, “not related to sexual abuse.”

       The defendant asserted that the victim had fabricated the sexual assault allegations because she was angry with him following a dispute in late February that arose when the defendant disconnected a telephone call between the victim and B.

       Our Supreme Court’s modification of the constancy of accusation rule in Troupe later was codified in § 6-11 of the Connecticut Code of Evidence, which provides: “A person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim’s allegations with the pending charge. The testimony of the witness is admissible only to corroborate the victim’s testimony and not for substantive purposes.” Conn. Code Evid. § 6-11 (c).


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VICENTE ROSA
    (AC 28186)
    Flynn, C. J., and Harper and Dupont, Js.
    Argued September 11
    officially released November 6, 2007

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Vicente Rosa, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, criminal use of a firearm in violation of General Statutes § 53a-216 and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant claims that the trial court improperly admitted evidence of his employment status. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 23, 2002, the defendant contacted the victim, Orlando Ocasio, in order to purchase a quantity of cocaine. The defendant later met the victim outside of the victim’s apartment building. At the victim’s suggestion, the two entered the building to consummate the transaction. While ascending the stairs to the victim’s apartment, the defendant pointed a nine millimeter handgun at the victim and demanded, “give me your shit.” The victim refused and reached behind his back. The defendant, fearful that the victim possessed a firearm, fired at the victim seven times. The defendant then quickly fled the scene without taking anything from the victim. Upon questioning by investigating police officers, the defendant confessed to shooting the victim. The state subsequently charged the defendant with murder, felony murder, criminal use of a firearm and criminal possession of a firearm.

At trial, the state sought to introduce the defendant’s oral statement made during booking that he had been unemployed at the time of the victim’s shooting. The . defendant objected, arguing “probative value versus prejudice.” The court ruled that the evidence was probative with regard to the charge of attempt to commit robbery, the predicate crime of the felony murder charge, and admitted the evidence. The state subsequently relied on this evidence during its closing argument, stating in relevant part: “Sometime around midnight on December 24, 2002, [the defendant] ordered up some drugs from Orlando Ocasio. He didn’t really want drugs. What he wanted was money. It was the day before Christmas. He was unemployed. He needed the money to pay bills.”

I

The defendant’s primary contention on appeal is that the admission of evidence that he was unemployed at the time of the incident at issue violated his state and federal constitutional rights to a fair trial and equal protection of the laws. The defendant acknowledges that these claims were not preserved at trial and requests that we afford them Golding review.

Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), a claim is reviewable if the record is adequate to review the claim, and “the claim is of constitutional magnitude alleging the violation of a fundamental right . . . .” Because we are unconvinced that the defendant’s claim is one of constitutional magnitude, we decline to afford it review.

As a preliminary matter, we note that “[w]e previously have held that questions designed to show that a defendant is poor and, thus, might have a motive to commit a crime are not of constitutional magnitude and, accordingly, do not satisfy the second prong of Golding.''’ State v. Perry, 58 Conn. App. 65, 68, 751 A.2d 843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000). Such is the case here. The defendant’s claim is essentially an evidentiary, and not a constitutional, matter. “Evidentiary claims are not of constitutional magnitude and are thus not entitled to Golding review.” (Internal quotation marks omitted.) State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Despite the defendant’s assertion that equal protection and fair trial issues “plainly [arise] if the jury is allowed to use unemployment when deciding on guilt in attempted robbery cases,” he provides no persuasive authority for such a proposition. Rather, each case relied on by the defendant treats the matter as an evidentiary, as opposed to a constitutional, inquiry. Simply “[p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). We accordingly decline to review defendant’s claim pursuant to Golding.

II

We next turn to the defendant’s nonconstitutional argument that evidence of his unemployment was unduly prejudicial and, thus, improperly admitted into evidence. We cannot conclude that the court abused its discretion in determining that this evidence was not so unduly prejudicial as to outweigh its probative value.

We begin our analysis by noting that “[u]nless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 219, 881 A.2d 160 (2005).

“ [E] vidence is relevant if it has a tendency to establish the existence of a material fact. . . . Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . .

“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The trial court . . . must determine whether the adverse impact of the challenged evidence outweighs its probative value.” (Internal quotation marks omitted.) State v. Cummings, 91 Conn. App. 735, 743-44, 883 A.2d 803, cert. denied, 276 Conn. 923, 888 A.2d 90 (2005).

Evidence of unemployment generally is relevant to one’s motive to attempt robbery. See State v. Perry, supra, 58 Conn. App. 69 (“[financial condition and employment status may be relevant to a defendant’s motive to commit a crime and, thus, are admissible on purely nonconstitutional evidentiary grounds”). The fact that the defendant was unemployed at the time that these crimes occurred made it more likely that he would resort to theft to obtain funds than if he were employed and had a steady stream of income. Although evidence of the defendant’s unemployment may have been far from conclusive, “[e]vidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree . . . .” (Internal quotation marks omitted.) State v. Cummings, supra, 91 Conn. App. 743.

The defendant next argues that, regardless of its probative value, evidence of a generalized condition of poverty or unemployment, without an articulated concrete or immediate need for funds, is per se unduly prejudicial. Although we may be inclined, in certain circumstances, to agree that evidence of a defendant’s chronic poverty may improperly arouse the emotions of a jury, we are not convinced that such a result follows in a case such as the one at bar in which only evidence of the defendant’s unemployment at the time of the crime has been introduced. Unlike the defendant, we recognize a distinction between evidence of chronic poverty and evidence of unemployment at a relevant time, as even a well-to-do person may be unemployed at times.

Accordingly, we conclude that the court did not abuse its discretion in determining that the probative value of the evidence of the defendant’s unemployment was not outweighed by its prejudicial effect.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant provided a written statement to the police, which was read to the jury, in which the defendant confessed to the aforementioned series of events and further stated that he had “needed money to pay bills for the apartment.”

       The defendant relies on a litany of cases from other jurisdictions that have so held. See, e.g., People v. Wilson, 3 Cal. 4th 926, 939, 838 P.2d 1212, 13 Cal. Rptr. 2d 259 (1992) (“[e]vidence of a defendant’s poverty or indebtedness generally is inadmissible to establish motive to commit robbery or theft, because reliance on poverty alone as evidence of motive is deemed unfair to the defendant, and the probative value of such evidence is considered outweighed by the risk of prejudice”), cert. denied, 507 U.S. 1006, 113 S. Ct. 1648, 123 L. Ed. 2d 269 (1993); State v. Mathis, 47 N.J. 455, 472, 221 A.2d 529 (1966) (“relationship between the deceased and defendant of creditor and debtor may be competent as to motive . . . but, in general terms, there must be something more than poverty to tie a defendant into a criminal milieu” [citation omitted]), on appeal after remand, 52 N.J. 238, 245 A.2d 20 (1968), rev’d, 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855 (1971). We find these cases to be distinguishable from the case at bar.

       Furthermore, even if we were to hold that evidence of the defendant’s unemployment had been unduly prejudicial, we nonetheless would conclude that the admission of this evidence would have constituted harmless error. See State v. Gonzales, 272 Conn. 515, 527, 864 A.2d 847 (2005) (appellant bears burden of establishing that impropriety of evidentiary ruling of nonconstitutional magnitude was probably harmful to him). The state also introduced evidence demonstrating the defendant’s concrete need for money in the form of a written confession, read to the jury, the admission of which has not been contested on appeal. Therein, the defendant stated that at the time of the incident at issue, he “needed money to pay bills for the apartment.” Thus, the evidence at issue was merely cumulative of the criminal motive the defendant himself had conceded.


author: BISHOP, J.

text:
    LABEEBAH AHMAD ET AL. v. YALE-NEW HAVEN HOSPITAL, INC., ET AL.
    (AC 27605)
    Bishop, Gruendel and Cretella, Js.

      Argued September 11
    officially released November 6, 2007

      Henry F. Murray, with whom were Elizabeth A. Conklin and, on the brief, Daniel E. Livingston and Deborah L. McKenna, for the appellants (plaintiffs).

      Kim E. Rinehart, with whom were Jeffrey R. Bobbin and, on the brief, Rachel Lebejko Priester, for the appellees (defendants).
   Opinion

BISHOP, J.

In this action, the plaintiffs seek compensatory and punitive damages and declaratory and injunctive relief, claiming that the defendants, Yale-New Haven Hospital, Inc., Yale-New Haven Health Services Corp. and Bridgeport Hospital, engaged in a deliberate pattern and practice of concealing information from their patients regarding the availability of free or reduced cost care from the hospitals’ free bed funds, charged and collected from uninsured patients for hospital services at rates higher than insured patients and beyond the cost of care as required by state law, and engaged in abusive, oppressive and unethical debt collection practices. The plaintiffs appeal from the trial court’s denial of their motion for class certification of this action. We affirm the ruling of the trial court.

In their nine count amended complaint, the plaintiffs allege that they all received various services from the defendants Yale-New Haven Hospital, Inc., or Bridgeport Hospital and thereby incurred financial obligations to the defendants. The plaintiffs claim that they did not pay their hospital bills because they had no insurance or other means to pay for the services rendered and that the defendants, therefore, should have known that they were eligible for free or reduced cost care through the defendant hospitals’ free bed funds. The plaintiffs allege that the defendants failed to notify them about the availability of such care, and because they were denied the opportunity to apply for the free bed funds and had no funds with which to pay their medical bills, they were subjected to the defendants’ oppressive debt collection practices.

On the basis of the foregoing allegations, the plaintiffs claim that the defendants violated General Statutes § 19a-509b (bed funds statute) by failing to provide information regarding the availability of funds to pay their hospital charges and the procedures for applying for such funds. The plaintiffs also assert a common-law claim for fraudulent nondisclosure predicated on the defendants’ alleged breach of their duty to provide notice under the bed funds statute. The plaintiffs further claim that the defendants violated General Statutes § 19a-673 (collecting at cost statute) by collecting from the plaintiffs more than “cost,” as that term is defined by statute. Finally, the plaintiffs assert violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., premised on the underlying conduct set forth in the other causes of action.

Following discovery, the plaintiffs moved for class certification of all of their claims. The plaintiffs sought certification of “all uninsured individuals who received or are receiving or will receive medical care from the [defendants, and who were or are or will be subject to the [defendants’ debt collections procedures at any time after 1991 . . . .” They further sought certification of “[a]ll partially insured individuals who received or are receiving or will receive medical care from the defendants, and who paid or will pay more than a nominal amount toward the cost of said care, and who were or are subject to the [defendants’ debt collections procedures at any time after 1991.” By memorandum of decision filed January 25, 2006, the court denied the plaintiffs’ motion for class certification. The court further articulated its decision on March 24,2006, concluding that the plaintiffs failed to meet the predominance test of Practice Book § 9-8 because common issues of law and fact would not be the object of most of the efforts of the litigants and that the extensive individualized issues relating to the injury and causation elements substantially outweighed any efficiencies that might be achieved by adjudicating common questions of law or fact through a class action. This appeal followed.

We first set forth the standard of review governing class certification orders. “Atrial court must undertake a rigorous analysis to determine whether the plaintiffs have borne the burden of demonstrating that the class certification requirements of Practice Book §§ 9-7 and 9-8 have been met. ... A trial court nonetheless has broad discretion in determining whether a suit should proceed as a class action. ... As long as the trial court has applied the proper legal standards in deciding whether to certify a class, its decision may ... be overturned [only] if it constitutes an abuse of discretion. . . .

“[I]n determining whether to certify the class, a [trial] court is bound to take the substantive allegations of the complaint as true. . . . That does not mean, however, that a court is limited to the pleadings when determining whether the requirements for class certification have been met. On the contrary . . . class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the [plaintiffs’] cause of action . . . and ... it [sometimes] may be necessary for the court to probe behind the pleadings before coming to rest on the certification question. ... In determining the propriety of a class action, [however] the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [the class action rules] are met. . . . Although no party has a right to proceed via the class mechanism . . . doubts regarding the propriety of class certification should be resolved in favor of certification. . . .

“The rules of practice set forth a two step process for trial courts to follow in determining whether an action or claim qualifies for class action status. First, a court must ascertain whether the four prerequisites to a class action, as specified in Practice Book § 9-7, are satisfied. These prerequisites are: (1) numerosity— that the class is too numerous to make joinder of all members feasible; (2) commonality—that the members have similar claims of law and fact; (3) typicality—that the [representative] plaintiffs’ claims are typical of the claims of the class; and (4) adequacy of representation—that the interests of the class are protected adequately. . . .

“Second, if the foregoing criteria are satisfied, the court then must evaluate whether the certification requirements of Practice Book § 9-8 are satisfied. These requirements are: (1) predominance—that questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) superiority—that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. . . . Because our class certification requirements are similar to those embodied in rule 23 of the Federal Rules of Civil Procedure, and our jurisprudence governing class actions is relatively undeveloped, we look to federal case law for guidance in construing the provisions of Practice Book §§ 9-7 and 9-8. . . . Finally, we give greater deference to a trial court’s decision to certify a class than to its decision declining to do so.” (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 626-28, 894 A.2d 240 (2006). With this background in mind, we turn to the plaintiffs’ claim.

The plaintiffs claim that the court abused its discretion by not conducting the proper analysis when reviewing their petition for class certification. Specifically, the plaintiffs claim that the court improperly held that individual issues predominate over the general legal and factual claims. We disagree.

As noted, the rules of practice provide that an action may be maintained as a class action if questions of law or fact common to the members of the class predominate over any questions affecting only individual members. “[T]he fundamental purpose of the predominance inquiry is to determine whether the economies of class action certification can be achieved . . . without sacrificing procedural fairness or bringing about other undesirable results. . . . [C]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof. . . .

“In order to determine whether common questions predominate, [a court must] . . . examine the [causes] of action asserted in the complaint on behalf of the putative class. . . . Whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue will have in each class member’s underlying cause of action. . . . Common issues of fact and law predominate if they ha[ve] a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief. . . . [When], after adjudication of the classwide issues, [the] plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individualized] claims, such claims are not suitable for class certification. . . .

“[N]umerous [federal] courts have recognized [however] that the presence of individualized damages issues does not prevent a finding that the common issues in the case predominate. ... In assessing the predominance requirement in cases involving individualized damages, the [c]ourt’s inquiry is limited to whether . . . the proposed methods [for computing damages] are so insubstantial as to amount to no method at all. . . . [The plaintiffs] need only come forward with plausible statistical or economic methodologies to demonstrate impact on a class-wide basis. . . . Particularly [when] damages can be computed according to some formula, statistical analysis, or other easy or essentially mechanical methods, the fact that damages must be calculated on an individual basis is no impediment to class certification. . . .

“It is primarily when there are significant individualized questions going to liability that the need for individualized assessments of damages is enough to preclude [class] certification. See, e.g., [Sikes v. Teleline, Inc., 281 F.3d 1350, 1366 (11th Cir.)] (These claims will involve extensive individualized inquiries on the issues of injury and damages—so much so that a class action is not sustainable.) [cert. denied sub nom. Sikes v. American Telephone & Telegraph Co., 537 U.S. 884, 123 S. Ct. 117, 154 L. Ed. 2d 143 (2002)]; [Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1234, 1240 (11th Cir. 2000)] (declining to certify a class because most, if not all, of the plaintiffs’ claims will stand or fall ... on the resolution of . . . highly case-specific factual issues and liability for damages is a necessarily individualized inquiry) [cert. denied sub nom. Zeirei Agudath Israel Bookstore v. Avis Rent-A-Car Systems, Inc., 532 U.S. 919, 121 S. Ct. 1354, 149 L. Ed. 2d 285 (2001)]. Klay v. Humana, Inc., [382 F.3d 1241, 1259-60 (11th Cir. 2004)]; see also Kohn v. American Housing Foundation, Inc., 178 F.R.D. 536, 542-44 (D. Colo. 1998) (class certification inappropriate because injury suffered by each class member was highly individualized and could not be separated from causation inquiry).

“These standards inform us that a court should engage in a three part inquiry to determine whether common questions of law or fact predominate in any given case. First, the court should review the elements of the causes of action that the plaintiffs seek to assert on behalf of the putative class. . . . Second, the court should determine whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member’s entitlement to monetary or injunctive relief. . . . Third, the court should weigh the common issues that are subject to generalized proof against the issues requiring individualized proof in order to determine which predominate. . . . Only when common questions of law or fact will be the object of most of the efforts of the litigants and the court will the predominance test be satisfied.” (Citations omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 329-32, 880 A.2d 106 (2005).

In denying the plaintiffs’ motion for class certification, the court enumerated the various elements of each of the plaintiffs’ claims and identified many aspects of the plaintiffs’ claims that would require individualized inquiry. The court noted that establishing a violation of the bed funds statute would involve an individualized inquiry into what information the defendants possessed about each plaintiff, whether the defendants reasonably believed that each plaintiff had limited funds to pay the bill, whether each plaintiff applied for free care, whether each plaintiff signed a notice of free care funds, whether the plaintiffs saw signs relating to free care or whether they had any discussions with hospital personnel relating to free care. Additionally, the court noted that the plaintiffs must also demonstrate that any violation of the bed funds statute by the defendants caused them injury. Such a requirement would necessitate individualized proof relating to issues of the eligibility of each plaintiff and whether the knowledge of the statute would have resulted in the plaintiffs applying for the funds. The plaintiffs’ claims would require proof relating to the issue of lack of notice and whether that lack of notice caused the alleged injuries. The court observed that the notice requirement alone would require individualized proof on each case because the manner of notice was different in each case. Moreover, the bed funds statute went into effect on October 1, 1991, and was amended on October 1, 2003. The court concluded, therefore, that the requirements of proof will vary depending on the dates of treatment of each plaintiff.

The court also noted that individualized inquiries would be required as to the plaintiffs’ other claims. In regards to the CUTPA claims, the court noted that the plaintiffs would need to present individualized evidence that they were eligible for free care funds and would have applied and received funds had notice of their availability been provided by the defendants. The court referred to the requirement of individualized proof that each plaintiff was uninsured as defined by the collecting at cost statute and that they each paid more than cost on the basis of the relevant cost to charge ratio in effect at the time they were treated. The court further noted that each member of the prospective class would be subjected to different affirmative defenses asserted by the defendants, including laches, res judicata and collateral estoppel.

In support of their contention that they have met the predominance requirement of Practice Book § 9-8, the plaintiffs focus on the behavior of the defendants and claim that because the defendants had a policy of concealing the existence of free or reduced health care, that this generalized proof is sufficient to justify class certification. As noted by the court, however, the allegation of a systemic policy is not sufficient to establish predominance. This is precisely the type of argument rejected by our Supreme Court in Collins. In Collins, the plaintiffs argued that they met the predominance requirement of Practice Book § 9-8 on the basis of the defendants’ “company-wide policy,” which constituted common issues among the class members. The court rejected this argument stating, inter alia, that “the plaintiffs essentially conflate the predominance requirement of Practice Book § 9-8 with the commonality requirement of Practice Book § 9-7. . . . [T]he commonality prerequisite simply requires the existence of a question of law or fact that is common to the class. . . . [T]he predominance criterion is far more demanding in that it requires a probing inquiiy to determine whether the common issues that are subject to generalized proof are more substantial than the issues subject only to individualized proof.” (Citation omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 275 Conn. 342. The Collins court further concluded that the plaintiffs ignored the fact that they had to prove causation and injury for each class member. Id.

The rationale employed in Collins is applicable to the case at hand. Even if the plaintiffs were to establish that the defendants had a policy of concealing the availability of free or reduced cost care, extensive individualized proof would still be required, as noted, regarding the manner and extent of harm to each class member. Thus, as in Collins, the plaintiffs must still prove causation and injury for each class member. In its analysis, the court specifically enumerated many instances in which individualized proof would be required of the plaintiffs and concluded that the common issues did not predominate over the individual issues. Because the court properly performed its predominance inquiry, and its findings are supported by the record, we cannot conclude that it abused its discretion in denying the plaintiffs’ motion for class certification.

The ruling of the trial court denying the plaintiffs’ motion for class certification is affirmed.

In this opinion the other judges concurred.

       The plaintiffs named in this action are Labeebah Ahmad, Mario Maldonado, Isabel Maldonado, Maria Davidson, Quinton White, Angella Jackson, Delisa Tolson, Terry Reese and Carmen Ramirez.

       The plaintiffs’ appeal challenges the denial of class certification on counts alleging various causes of action, including three counts alleging violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Because an order denying class certification for an action under CUTPA is an appealable final order under General Statutes § 42-110h, which provides that an order determining whether a CUTPA claim can be maintained as a class action “shall be immediately appealable by either party, ” and the CUTPA claims are inextricably intertwined with the plaintiffs’ remaining claims, the denial of class certification in this instance is an appealable final judgment. See Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 29-30, 836 A.2d 1124 (2003).

       Some of the plaintiffs did not receive the services personally but are financiallyresponsible for services rendered to arelative. Forinstance, Maria Davidson, Angella Jackson and Mario Maldonado and Isabel Maldonado are responsible for bills incurred for the treatment of their minor children. Quinton White is responsible for bills incurred for the treatment of his late wife.

       Billing and collection procedures for both defendant hospitals are controlled by the defendant Yale-New Haven Health Services Corp.

       The rules governing class actions in Connecticut include General Statutes § 52-105 and Practice Book §§ 9-7 and 9-8. General Statutes § 52-105 provides: “When the persons who might be made parties are very numerous, so that it would be impracticable or unreasonably expensive to make them all parties, one or more may sue or be sued or may be authorized by the court to defend for the benefit of all.” See footnotes 6 and 7 for the text of Practice Book §§ 9-7 and 9-8, respectively.

       Practice Book § 9-7 provides: “One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

       Practice Book § 9-8 provides: “An action may be maintained as a class action if the prerequisites of Section 9-7 are satisfied and the judicial authority finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient abdication of the controversy.”


author: GRUENDEL, J.

text:
    ROBERT V. CIMMINO v. HOUSEHOLD REALTY CORPORATION ET AL.
    (AC 27768)
    Flynn, C. J., and Gruendel and Berdon, Js.
    Argued September 5
    officially released November 13, 2007

      Robert V. Cimmino, pro se, the appellant (plaintiff).

      Jonathan S. Bowman, with whom was Jason A. Buchsbaum, for the appellee (named defendant).

      Juris V. Zauls, for the appellee (defendant Karen I. Tucker).
   Opinion

GRUENDEL, J.

The plaintiff, Robert V. Cimmino, appeals from the judgment of the trial court dismissing his action against the defendants, Household Realty Corporation (Household) and Karen I. Tucker, for lack of subject matter jurisdiction. On appeal, the plaintiff claims that the court improperly concluded that he lacked standing. We disagree and, accordingly, affirm the judgment of the trial court.

The underlying facts are as follows. The plaintiff, an attorney licensed to practice law in Connecticut, originally owned, with his wife, certain property in Sherman known as 37 Anderson Road. In an effort to insulate the property from creditors, a complex series of transactions followed, in which various interests in the property were passed to the plaintiffs children, Christopher A. Cimmino and Tucker. Ultimately, an entity named Lincoln Commercial Services foreclosed on the property and thereafter conveyed title to Christopher A. Cimmino and Tucker.

On November 12, 1999, Christopher A. Cimmino and Tucker executed a note on the property in the amount of $296,000, which was secured by a mortgage in favor of Household. In his amended complaint, the plaintiff alleged that he and Tucker agreed that he would make payments on the note. The plaintiff further acknowledged that in August, 2002, he defaulted on that obligation. As a result, Household commenced an action of foreclosure against Christopher A. Cimmino and Tucker.

Thereafter, Christopher A. Cimmino and Tucker entered into a stipulated judgment with Household. A judgment of strict foreclosure entered, and a deed to the property was delivered to Household. Prior to the recording of that deed, the plaintiff filed the present action to set aside the judgment of foreclosure. Household subsequently filed a motion for summary judgment in which it alleged, inter alia, that the plaintiff lacked standing to bring any claims against Household because the plaintiff did not have any interest in the subject property, nor was he a party to either the note or the mortgage foreclosed upon. The court agreed and dismissed the plaintiffs complaint. From that judgment, the plaintiff now appeals.

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent. . . . Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Citations omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). “Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 574, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). Our review of the question of the plaintiffs standing is plenary. See West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 12, 901 A.2d 649 (2006).

“Standing is established by showing that the party ... is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action].” (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006).

At the time that Household commenced the foreclosure action, the plaintiff possessed no ownership right in the property. As the court observed, he had no legal, recorded title interest in the property. Moreover, the plaintiff was not a party to the note or mortgage being foreclosed. “It is well settled that one who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract .... Under this general proposition, if the plaintiff is neither a party to, nor a contemplated beneficiary of, [the] agreement, she lacks standing to bring her claim for breach of the agreement.” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993). The plaintiffs argument resembles that of the defendant in Barnes v. Upham, 93 Conn. 491, 107 A. 300 (1919), to which our Supreme Court replied that “the defendant, by a conveyance of the equity, had parted with his entire interest in the premises. As the record title stood he had no interest in the premises sufficient to give him a standing in the foreclosure proceedings, and therefore was not in law entitled to notice.” Id., 494. The same logic applies here.

The plaintiff nevertheless maintains that his claim to ownership of the property “rests in the creation of a constructive trust” between him and the record owners of the property, Christopher A. Cimmino and Tucker. That claim was not presented to the trial court. The plaintiffs amended complaint never referenced a “constructive trust” nor did it request the imposition thereof by the court. Contra Maris v. McGrath, 269 Conn. 834, 836, 850 A.2d 133 (2004); Menard v. Gaskell, 92 Conn. App. 551, 554-55, 885 A.2d 1254 (2005); Cadle Co. v. Gabel, 69 Conn. App. 279, 284, 794 A.2d 1029 (2002).

“The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 856, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001); see also Restatement, Restitution, Quasi Contracts and Constructive Trusts § 160, comment (c), p. 642 (1937). Under our rules of practice, “[a] party seeking equitable relief shall specifically demand it as such, unless the nature of the demand itself indicates that the relief sought is equitable relief.” (Emphasis added.) Practice Book § 10-27. The plaintiff made no such demand in the present case. As such, he cannot now complain that the court failed to impose a constructive trust.

Although the plaintiffs complaint contained many demands, it did not include either a demand for the imposition of a constructive trust or equitable relief generally. For that reason, this case is distinguishable from Giulietti v. Giulietti, supra, 65 Conn. App. 813. In that case, “the plaintiffs’ complaint included both requests for specific equitable relief, and a general prayer for other and further relief as the court deemed necessary and appropriate. . . . [T]he plaintiffs [also] specifically argued for the imposition of a constructive trust in their posttrial brief . . . .” Id., 860-61. As a result, the Giulietti court concluded that “it was clear from the complaint that equitable relief was being sought, even though the plaintiffs did not specifically request a constructive trust.” Id. That is not the case here. Moreover, the precise question posed in Giulietti was whether the trial court had abused its discretion in imposing a constructive trust, which required us to make eveiy reasonable presumption in favor of upholding the trial court’s ruling. See ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007). By contrast, the question in the present case is whether the court improperly failed to impose a constructive trust despite the fact that the complaint did not contain such a demand. We answer that queiy in the negative.

The plaintiff failed to demonstrate a specific, personal and legal interest in the foreclosure action between Household, Christopher A. Cimmino and Tucker. See Wesley v. Schaller Subaru, Inc., supra, 277 Conn. 538. We therefore conclude that the court properly determined that the plaintiff lacked standing to maintain his action to set aside the judgment of foreclosure.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although Household cited the plaintiff into the foreclosure action as a party who may have an interest in the property, it withdrew the action as to the plaintiff prior to the judgment of foreclosure. The plaintiff did not move to be made a necessary party, as provided by Practice Book §§ 9-6 and 9-18, nor did he move to open the judgment of foreclosure on that ground.

       The plaintiffs complaint at various points demanded that the court (1) set aside the judgment of foreclosure, (2) set aside the deed delivered to Household, (3) enjoin Household from recording the deed, (4) declare the deed delivered to Household null and void, (5) declare the stipulation of judgment null and void, (6) set aside the stipulation of judgment, (7) enjoin Tucker from conveying the property to Household, (8) enjoin Tucker from executing and delivering a stipulation of judgment to Household and (9) enjoin Household from recording the deed from Tucker. No other relief was requested.