author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. EUGENE A. BRYANT
    (AC 29064)
    Bishop, Beach and Borden, Js.

      Argued October 21
    officially released December 23, 2008

      Jodi Zils Gagne, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Peter A. McShane, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The sole issue in this appeal is whether there was sufficient evidence to identify the defendant as the perpetrator of the crimes charged. The defendant, Eugene A. Bryant, appeals from the judgment of conviction, rendered after a jury trial, of (1) burglary in the third degree in violation of General Statutes § 53a-103, (2) larceny in the third degree in violation of General Statutes § 53a-124 (a) (2) and (3) theft of a firearm in violation of General Statutes § 53a-212. The defendant claims that the trial court improperly failed to grant his motions for a judgment of acquittal because there was insufficient evidence to support the jury’s findings. We affirm the judgment of the trial court.

After the close of the state’s case, the defendant moved for a judgment of acquittal on all charges. The court denied the motion. Thereafter, at the close of all the evidence, the defendant made a second motion for a judgment of acquittal on all charges, which the court again denied. Subsequently, the jury returned a verdict of guilty on all charges, and the court rendered judgment accordingly. This appeal followed.

The jury reasonably could have found the following facts. Between 9:15 a.m. and 9:30 a.m. on May 12, 2005, Deborah Fogg left her home on 536 Boston Post Road in Waterford, where she lived with her husband, James Fogg, to visit her daughter and grandchildren. Before leaving her home, she locked all the doors and windows. After spending a few hours with her daughter and grandchildren, Deborah Fogg went shopping before returning home at approximately 12:15 p.m. Once home, she found the back door of her house broken and hanging by a single hinge. She entered her home and noticed that her electronic keyboard was missing and that her living room was in disarray. She quickly grabbed her cordless telephone and went outside to call 911 because she feared that someone was still in the house and that the individual may have discovered her gun, a Smith & Wesson .357 Magnum revolver, which she kept upstairs in her nightstand.

Deborah Fogg waited outside until Officer Richard T. Morgan and Officer Steven Bellos and his canine, Frido, arrived at her house. Frido and the officers searched the Foggs’ house to make sure the intruder was no longer present before Deborah Fogg was allowed to reenter her home. Once inside, she discovered that in addition to the living room, the Foggs’ bedroom also had been rifled through, and that she and her husband were missing the following items: a Smith & Wesson .357 Magnum revolver; an electronic keyboard, a keyboard stand and power pack; a digital camera and memory stick; a gold anklet and ring; a cordless drill and two battery packs; and a pair of binoculars. The total value of the stolen items, not including the binoculars, was $1262.39. See footnote 4.

Frido and Bellos also searched the exterior of the residence to see if Frido could pick up the intruder’s scent. Bellos and Frido walked around the entire residence several times, and the only time Frido detected a scent was when he passed the back door of the house, at which point Frido would go from the back door to the driveway and then stop, indicating to Bellos that the perpetrator had left in a vehicle. In addition to the canine search, Bellos interviewed James Cook, a neighbor. Cook stated that he saw a teal, mid-1990s Volkswagen Golf car at the Foggs’ residence and observed a man exit the vehicle and walk to the back of the Foggs’ house.

In addition to the two officers, Detective Sergeant Michael Hurley was dispatched to 536 Boston Post Road to assist in the processing of the crime scene. Hurley photographed the residence and collected physical evidence, including fingerprints, a drawer from Deborah Fogg’s jewelry box, an owner’s manual for a Craftsman drill and the gun case of the Smith & Wesson .357 Magnum revolver. The physical evidence collected by Hurley was sent to the state forensic science laboratory for analysis, and a fingerprint and thumbprint taken from the jewelry box were determined by a laboratory technician to match those of the defendant.

On the basis of the forensic laboratory results, an arrest warrant was issued for the defendant. The defendant was arrested on June 8, 2005, and the car he was driving at the time, a teal 1993 Volkswagen Golf, was impounded. Cook later identified the vehicle as being the “same exact car” he saw in the Foggs’ driveway on May 12, 2005.

The defendant claims that there was insufficient evidence to support his conviction on all three charges. More specifically, he contends that only one fingerprint was found at the scene of the crime and that he presented a valid explanation for why his fingerprint was there. We disagree.

In detemaining whether there was insufficient evidence to support a guilty verdict, “[t]he facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict. ... It is established case law that when a defendant challenges the sufficiency of the evidence, we apply a twofold test. We first review the evidence ... 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 . . . the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citation omitted; internal quotation marks omitted.) State v. Hamlett, 105 Conn. App. 862, 866, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).

Sufficient evidence was presented at trial to establish the defendant as the perpetrator of the crimes charged beyond a reasonable doubt. First, the jury was presented not only with a fingerprint that matched that of the defendant but also a thumbprint. Second, the Foggs testified that neither they, nor their children, had ever met the defendant and that the defendant had never been in their house. James Fogg further testified that no one had been in the couple’s bedroom or touched the jewelry box except for the Foggs. Third, the state presented the testimony of Bellos, who explained that Frido’s repeated behavior of walking from the back door of the Foggs’ house to the driveway and then stopping indicated that the perpetrator left in a vehicle. Fourth, the neighbor, Cook, testified that the impounded, teal 1993 Volkswagen Golf was the same vehicle he saw in the Foggs’ driveway on the day the crime was committed and that he was so sure it was the same car that he would bet his life on it. Cook also testified that on the day of the crime, he saw a man exit the teal Volkswagen Golf and walk to the back of the Foggs’ house, which is the exact location where the perpetrator gained entry into the home.

The defendant asserts that he provided a valid reason for why his fingerprint was found on the jewelry box. At trial, the defendant testified that he met Deborah Fogg at the East Lyme, Flanders Four Comers McDonald’s restaurant in April, 2005. According to the defendant, he came to her assistance after observing her in a heated discussion with a black male in the McDonald’s parking lot. The defendant got into a physical altercation with a second individual as a result of his intervention. After the fight, the defendant gave Deborah Fogg a ride to her home, and she invited him into her house so she could clean the scrapes he received during the fight. Because the cleaning supplies were in her bedroom, she and the defendant went upstairs. After she cleaned the defendant’s wounds, they began to kiss, at which time the defendant lost the backing to his earring. Deborah Fogg told the defendant to go into her jewelry box and get a backing to replace the one he had lost. Shortly, thereafter, the defendant left the residence. Deborah Fogg, on the other hand, testified that she had never had an altercation with a black male at the Flanders Four Comers McDonald’s, had never met the defendant, had never had a relationship with him and had never invited him into her home.

The defendant relies on State v. Payne, 186 Conn. 179, 440 A.2d 280 (1982), to support his argument. In that case, the principal evidence offered by the state to connect the defendant to the crime consisted of two fingerprints, identified as those of the defendant, which were found on the outside of the driver’s side window of the victim’s car. Id., 181. The defendant presented evidence of the accessibility of the exterior of the victim’s car to the general public and to the defendant in areas he frequented. Id., 183 n.3. The Supreme Court concluded that the fingerprint evidence alone was insufficient to sustain the conviction because it did not “reasonably exclude the hypothesis that the defendant’s fingerprints were placed on the car at a time other than during the perpetration of the crime.” Id., 184.

The defendant’s reliance on Payne, however, is misplaced. Unlike in Payne, here the Foggs’ testimony did, if believed, reasonably exclude the hypothesis that the defendant’s fingerprint was placed on the jewelry box at a time other than during the perpetration of the crime. See id. In this context, the jury was free to disbelieve the defendant’s explanation as to why his fingerprint was found on the jewelry box. See State v. Coriano, 12 Conn. App. 196, 202-203, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987). Payne does not hold, as the defendant’s argument suggests, that simply because the defendant supplied a hypothesis that would explain the presence of his fingerprint, the jury must believe it.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny [and] (2) the value of the property or service exceeds one thousand dollars . . . .”

       General Statutes § 53a-212 (a) provides in relevant part: “A person is guilty of stealing a firearm when, with intent to deprive another of his firearm or to appropriate the same to himself or a third party, he wrongfully takes, obtains or withholds a firearm . . .

       The Foggs later found the binoculars in Deborah Fogg’s car. None of the other items reported missing was ever recovered.

       The defendant, in Ms brief, also contends that he was not the perpetrator because the perpetrator was described as being “a wMte male of average height,” and he is black and more than six feet tall. To support his argument, the defendant relies on a police report written by Morgan, which states that Cook told Bellos that he observed a white male in a teal Volkswagen Golf parked in the Foggs’ driveway and Cook’s testimony, at trial, that the man he observed was of “average height.” Those contentions, however, are without merit.
      First, the police report was never entered into evidence at trial, and Cook testified that he did not see the race or color of the man in the vehicle, nor did he give Bellos such information about the individual. Second, although Cook testified that the man he saw was of average height, which Cook considered to be “not over six feet,” whether a man more than six feet tall is of “average height” was a factual question for the jury to decide.

       Although the defendant also suggests in passing that the fingerprint found was not properly collected and therefore was not reliable evidence, he presents no separate evidentiary analysis regarding the method by which the fingerprint was collected. We therefore decline to discuss it.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GORDON L. JONES v. LINDA C. JONES
    (AC 29354)
    Flynn, C. J., and Lavine and Hennessy, Js.
    Argued October 21
    officially released December 23, 2008

      Leon M. Kaatz, for the appellant (plaintiff.

      George W. Kramer, for the appellee (defendant).
   Opinion

PER CURIAM.

Our rules of practice provide that “[i]t is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.” Practice Book § 61-10. “Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5].” (Internal quotation marks omitted.) Moreira v. Moreira, 105 Conn. App. 637, 641, 938 A.2d 1289 (2008).

The plaintiff, Gordon L. Jones, appeals from the judgment of the trial court opening the judgment of dissolution and ordering him to pay the defendant, Linda C. Jones, 50 percent of his pension benefits, adjusted for coverture and the interim period between dissolution and retirement, and 50 percent of his accrued benefits, adjusted for the period of continued service from the date of the dissolution and the date of retirement. The plaintiff claims that the court improperly (1) opened the judgment, (2) concluded that paragraph twelve of the stipulated judgment of dissolution was ambiguous, (3) concluded that his accrued leave at the time of dissolution was property subject to division between the parties and (4) concluded that the dissolution judgment was manifestly unfair without considering the totality of the circumstances. The record is inadequate for us to review the plaintiffs claims, and, thus, we affirm the judgment.

On October 23, 2006, the defendant filed a motion to open the dissolution judgment on the basis of fraud. The court held a hearing on December 22, 2006, and January 26, February 7 and 27 and March 29, 2007. The court rendered its decision on October 18, 2007. In its memorandum of decision, the court found that all of the witnesses testified credibly. It also found that the parties were married on September 10, 1983, and that two children were bom of the marriage. The plaintiff sought a dissolution of the marriage by complaint dated March 20,2001. Both parties were represented by counsel, and the court rendered judgment of dissolution on October 21, 2002, incorporating the parties’ separation agreement (agreement).

Prior to the rendering of judgment in the dissolution action, the case was pretried by a special master, and three judicial pretrials were held. The parties did not reach agreement, however, until the morning trial was to commence. The financial affidavit filed by the plaintiff on October 21, 2002, represented that he was employed as a police officer by the city of Hartford and that his gross weekly earnings were $1556 and his net income was $1037. Under deferred compensation, he reported “Hartford police pension present value 2” as $98,966. The defendant’s financial affidavit disclosed that she was employed as a receptionist by a law firm and that her gross weekly income was $300 and her net income was $230.

Following the dissolution, the qualified domestic relations order (QDRO) called for in § 12 of the agreement became a matter of disagreement between counsel for the parties. Counsel met with representatives of the city of Hartford but failed to resolve their disagreement. Frank J. Romeo III, then counsel for the defendant, filed a motion for clarification and order postjudgment dated January 8, 2004. Leon M. Kaatz, counsel for the plaintiff, filed an objection. Counsel submitted briefs following oral argument held on July 14,2004. The court found that “[i]t appears the pension provision was based on ambiguous or erroneous information” and on “the inclusion of overtime, vacation and sick pay in the computation of the value of the pension at the time of dissolution.” George Kramer, substitute counsel for the defendant, thereafter filed a motion to open the judgment.

In its October 18, 2007 memorandum of decision, the court found that the alimony provision of the agreement continued to be fair and equitable. The court also found, on the basis of testimony from Elaine Shetensky, an actuary with the city’s pension plan administrator, that the plaintiff retired from his employment with the police department in September, 2003, at which time he began to receive his pension of $6450.28 per month. On the basis of the parties’ testimony, the court found that the plaintiff was contemplating early retirement at the time of the dissolution proceedings. At the time of his retirement, the plaintiff had accrued vacation time of $13,562.44, holiday time of $33,353.55, compensatory time of $745.10 and a perfect attendance benefit of $1205.55 for a total of $48,866.64, according to Michael Matles, supervising payroll manager for the city of Hartford. The plaintiff also had accrued sick time benefits of $29,669.93, a portion of which he used to enhance his pension benefits. The accrued benefits were not included on the plaintiffs financial affidavit at the time of the dissolution of marriage. Sheldon Wishnick, a consulting actuary for Actuarial Litigation Services, testified that the value of the plaintiffs pension at the time of dissolution adjusted for coverture was $989,500. At the time of dissolution, the plaintiff had been married to the defendant for nineteen of the twenty-one years he had been a Hartford police officer.

Kaatz and Romeo made several attempts at completing the QDRO order. Romeo was adamant that the defendant was entitled to 50 percent of the plaintiffs pension. The court stated that the crux of the disagreement centered on the delay in benefits to be received by the defendant until 2022, the year the plaintiff becomes age sixty-five. According to Romeo, the court found, it was represented to him at the time of the dissolution negotiations that even if the plaintiff retired early, he could not receive his pension benefits until he becomes age sixty-five. In actuality, the plaintiff began to receive his pension benefits of $6450 per month as soon as he retired, but the defendant would not be able to receive benefits until the plaintiff becomes sixty-five in 2022. Kaatz, the plaintiffs counsel, acknowledged that some of the assumptions he made to calculate the plaintiffs pension in negotiating the agreement were incorrect, but he denied ever telling Romeo that the plaintiff could not retire until age sixty-five.

The court found that “a manifest injustice would occur if the defendant would not receive any pension benefits until the year 2022 while the plaintiff [already is receiving his pension benefits]. There were substantial mutual mistakes made in this case, and the judgment is opened.” The court did not identify, however, the specific, substantial mutual mistakes made or what substantial means. Moreover, the court cited no law and provided no legal analysis in support of its conclusion that manifest injustice would occur if the defendant did not receive pension benefits until 2022. Neither party filed a motion for articulation of the court’s memorandum of decision. See Practice Book § 66-5.

A judgment rendered on a stipulation of the parties is in the nature of a contract and may be opened by the court if the stipulation was entered into by mutual mistake. See Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). “Whether there has been [a mutual] mistake is a question of fact.” Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991). In this case, the court failed to identify the mistake or mistakes made. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us . . . would be entirely speculative. . . . [Speculation and conjecture . . . have no place in appellate review.” (Citation omitted; internal quotation marks omitted.) Konefal v. Konefal, 107 Conn. App. 354, 360, 945 A.2d 484, cert. denied, 288 Conn. 902, 952 A.2d 810 (2008). “Accordingly, [w]hen the decision of the trial court does not make the factual predicate of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” Watrous v. Watrous, 108 Conn. App. 813, 835, 949 A.2d 557 (2008).

The judgment is affirmed.

       The defendant cited no statute or rule of practice in her motion.

       The children have reached the age of majority.

       Counsel representing the parties testified at the hearing on the motion to open. The transcript provided to this court contains the testimony of the defendant’s trial counsel, Prank J. Romeo III, but only a portion of the testimony of the plaintiffs trial counsel, Leon M. Kaatz. The plaintiff did not provide a copy of the transcript of the defendant’s direct examination of Kaatz. The plaintiff did provide a copy of his direct examination of Kaatz.

       Section twelve of the agreement stated: “Pensions. Plaintiff shall assign to Defendant, by way of a Qualified Domestic Relations Order (QDRO), a portion of his pension presently in place for him through his place of employment. Said QDRO shall call for the payment to Defendant of an amount equal to $1,483.00 per month (one half of benefit, adjusted for coverture) starting in September 2022 and continuing until Plaintiffs decease. The foregoing notwithstanding, if the provisions of Plaintiffs pension program will allow for said payments to continue to Defendant’s decease, should Defendant outlive Plaintiff, then said QDRO shall be drafted to allow for said provision. Counsel for Plaintiff shall be responsible for the preparation of said QDRO. Except as already provided for in this paragraph, each Party shall keep and retain as his or her own property, free and clear of any claims from the other Party, any pension plans, IRA’s, 401K plans, incentive savings plans, Keogh Plans, or the like, which said Party presently owns in his or her own name or which is maintained for the benefit of said Party. Nothing contained in this paragraph shall be construed as precluding Defendant from attempting to arrange a payment plan with the administrator of Plaintiffs pension, which payment plan will be the actuarial equivalent of what is called for hereinabove but which plan will call for Defendant to receive smaller monthly payments over a longer period of time, provided that said payment plan causes no deviation in what Plaintiff will receive as his pension if the QDRO provisions first set out in this paragraph are implemented.”

       The plaintiff thereafter found employment in the security field, initially earning approximately $65,000 annually.


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. RICARDO COLLINS
    (AC 29000)
    DiPentima, Gruendel and Lavine, Js.

      Argued September 22
    officially released December 23, 2008

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      AdamE. Mattel, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Howard S. Stein, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Ricardo Collins, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation General Statutes § 53a-54a (a), felony murder in violation of General Statutes § 53a-54c and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). On appeal, the defendant claims that the trial court improperly admitted evidence of his involvement in a shooting that took place several months prior to the events that led to the current prosecution. We conclude that the danger of unfair prejudice resulting from the admission of that evidence far outweighed its probative value. Accordingly, we reverse the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Calvin Hopkins, and his former girlfriend, Quiana Staton, jointly operated a “business” in which Staton sold marijuana and Hopkins sold crack cocaine. At approximately 10:30 on the night of December 2, 2002, Hopkins went to Staton’s Bridgeport apartment in a public housing project known as the Greens. He came to the apartment carrying a large “wad of cash” and retrieved an additional $500 to $600 from Staton’s safe. Staton testified that Hopkins intended to use the money to purchase additional crack cocaine. Hopkins left Staton’s apartment with the money at approximately 12 a.m. on the morning of December 3, 2002. He spoke to Staton on his cellular telephone approximately one hour later from his car in the parking lot of the apartment complex. During that conversation, Staton looked from her window to see Hopkins in his car talking to two unknown individuals. Staton later attempted to call Hopkins’ cellular telephone at approximately 2 a.m. and again at 3 a.m. but received no answer to either of those calls.

Later that morning, at approximately 7:15, Bridgeport police were dispatched to a scene a short distance from Staton’s apartment complex where a green sedan was parked in the road preventing a school bus from passing. Upon opening the door to the vehicle, the police discovered Hopkins “reclined in the front seat with his head leaning back and what appeared to be a large amount of blood in the interior of the vehicle.”

At the scene, a physician from the medical examiner’s office recovered a bullet shell casing from Hopkins’ collar, and the currency that Hopkins had been carrying in the earlier hours of the morning was not found on his body. Two anomalous fingerprints were found on the vehicle: the defendant’s fingerprint was found on the exterior of the rear driver’s side door and that of another individual, Anthony Berrios, was found on the exterior of the front passenger door. An autopsy later revealed that Hopkins died from a gunshot wound to the head, and bullet fragments were recovered from his head.

The defendant became a suspect in this case because of his involvement in the nonlethal shooting of his cousin’s husband, Stephen Rose, in August, 2002. A firearms examiner testified at trial that the shell casing recovered from Hopkins’ collar at the scene of the homicide was fired from the same weapon that had been used in the August, 2002 Rose assault.

In the separate prosecution for the Rose shooting, the defendant was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). He also was found to have used a firearm in the commission of a class B felony in violation of General Statutes § 53-202k. In his appeal from that conviction, this court determined that “[t]he jury reasonably could have found the following facts. On the afternoon of August 28, 2002, the defendant was walking near the intersection of Pembroke and Jane Streets in Bridgeport. The victim, Stephen Rose, was driving by that intersection in his employer’s vehicle when he saw the defendant. Rose was acquainted with the defendant, who is a cousin of Rose’s then wife. Rose wanted to speak with the defendant because he believed that the defendant recently had stolen and crashed a new car that Rose had purchased for his wife.

“The victim stopped his vehicle, exited it and called to the defendant. The victim confronted the defendant about the stolen car, and the defendant denied involvement. Further conversation ensued, and the dispute escalated. The two men were standing several feet apart when the defendant pulled a gun from the waistband of his pants. The victim raised his hands in the air but did not retreat to his vehicle, and he called the defendant a ‘bitch.’ The defendant began firing his weapon into the pavement on either side of the victim, shooting four times. The bullets ricocheted, striking a nearby residence and the vehicle driven by the victim. Thereafter the victim lunged at the defendant in an attempt to tackle and disarm him. While the two men briefly were physically engaged, the defendant fired his weapon a fifth time. This gunshot entered the victim’s elbow and lodged in his upper arm, causing serious injury.

“The victim fell to his knee and clutched his wounded elbow. The defendant then struck the victim on the head with the butt of his weapon and walked away. Emergency personnel arrived and transported the victim to the hospital where he underwent surgery to remove the bullet from his arm and received stitches to repair a cut on his head.” State v. Collins, 100 Conn. App. 833, 836, 919 A.2d 1087, cert. denied, 284 Conn. 916, 931 A.2d 937 (2007).

The defendant turned himself in to the Bridgeport police in January, 2003, for the Rose shooting. During the course of the police questioning, the defendant admitted to shooting Rose but also indicated that he had since sold the gun. See id., 837 n.6. While in police custody for the Rose shooting, the defendant was also questioned with regard to the Hopkins homicide. In his statement to police, the defendant admitted meeting with Hopkins in his car to purchase drugs during the night of December 2, 2002, but denied killing him.

The defendant’s initial trial for Hopkins’ murder was declared a mistrial after the jury returned deadlocked. At the subsequent trial, which resulted in the conviction, from which the defendant appeals, the state sought to introduce evidence of the defendant’s role in the Rose assault, to which the defendant objected. The defendant, who was representing himself at the time, argued that any testimony regarding the Rose shooting would be “highly prejudicial” and of little probative value. He further argued that “[t]he state . . . has me testifying that I had a gun and it got other evidence, and I was convicted of it, and I really don’t see a need for this testimony here because ... it would inflame the jury .... I’m on trial right now for this murder case, and it’s a shooting case. It’s two shooting cases. And if they was to bring Stephen Rose, I think ... no matter what your instruction would be to the jury . . . that it still would be lingering in them that somebody got shot. And I would ask that you not allow it in.”

The court determined that the probative value of the evidence outweighed its potential for unfair prejudice; see Conn. Code Evid. § 4-3; and overruled the defendant’s objection. It did, however, instruct the jury that the evidence could not be used to infer bad character of the defendant or his tendency to commit criminal acts. The defendant later objected to similar testimony, which was also overruled.

During deliberations, the jury twice communicated to the court that it was unable to reach a unanimous verdict as to one of the counts charged. After each communication from the jury, the court instructed it to continue its deliberations, the second time giving a formal Chip Smith instruction. The jury eventually returned a verdict of guilty of murder, felony murder and robbery in the first degree on March 21, 2006. The court rendered judgment in accordance with the jury’s verdict, and the defendant was sentenced to forty-five years in prison on the merged counts of murder and felony murder and ten years on the count of robbery in the first degree. This appeal followed.

On appeal, the defendant claims that he “was deprived of a fair trial when the court allowed the state to introduce evidence about the Rose shooting.” He argues that the probative value of evidence that he had shot and injured Rose did not overcome the risk of prejudice to his defense, even with the limiting instruction given by the court. He further asserts that although it may have been probative that he once owned a gun that produced shell casings that match the one found on Hopkins’ collar, the fact that he shot Rose with that gun was irrelevant to proving anything for which such evidence would be admissible. The state, conversely, has not spent much time addressing the merits of the defendant’s arguments. Rather, it argues that his claim is unpreserved and that the defendant waived his claim by permitting his statement with regard to the Rose shooting to be admitted into evidence. Either of these arguments presented by the state, if accepted, would be dispositive of the case, and we therefore begin by addressing them.

I

A

We first address the question of whether the defendant properly preserved his claim. The state contends that because the defendant objected only to the testimony of Rose and Detective Joseph Gallagher, the defendant’s failure to object to the other instances in which evidence of the Rose shooting was admitted renders the defendant’s claim on appeal unpreserved. “Practice Book § 60-5 provides in relevant part that [this] court shall not be bound to consider a claim unless it was distinctly raised at the trial .... In order to preserve an evidentiary ruling for review, trial counsel [or the pro se party] must object ... to a ruling of evidence [and] state the grounds upon which objection is made ... to preserve the grounds for appeal. . . . These requirements are not simply formalities. . . . We consistently have stated that we will not consider evidentiary rulings where counsel did not properly preserve a claim of error by objection . . . .” (Internal quotation marks omitted.) State v. Swain, 101 Conn. App. 253, 270, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007).

On the first day of trial, the defendant presented an oral motion in limine outside of the jury’s presence regarding “the Stephen Rose testimony,” in which he sought to prevent the state from presenting evidence that “somebody got shot.” After the defendant presented his argument, the state indicated that it had recommended that the court hear the motion at that particular point because its next witness, Gallagher, intended to testify about the Rose shooting. Although the defendant never mentioned Gallagher in the oral motion, the state and the court appear to have understood the motion as seeking to exclude any evidence regarding the Rose shooting, and not simply to prevent Rose himself from testifying.

Both parties argued the motion on its merits, and after a brief recess, the court denied the defendant’s motion. Later, when the state began to question Gallagher regarding the Rose shooting, the defendant objected. After the jury was excused, the defendant again noted that the probative value of the testimony regarding the Rose shooting would be outweighed by its prejudicial effect. The prosecutor replied that “this was the subject of the motion in limine before this matter arose. And ... I believe the court has already ruled on this matter. I believe the defendant just wants the record to reflect his continuing objection to the court’s previous rulings.” In ruling on the objection, the court stated: “Well, again, you’re aware [of] the order that I . . . did enter. I’m obviously not going to be changing that, but for the record, your continuing objection is noted . . . .”

The defendant’s motion and later objection, the state’s responses and the court’s rulings reflect an understanding at the time that the defendant was objecting to and the court was ruling on any evidence regarding the Rose shooting—not merely the testimony of Gallagher and Rose. In addition, Practice Book § 60-5 specifically provides in relevant part that “[i]n jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.” We conclude, therefore, that the defendant was not required to object each time that the Rose shooting was mentioned and that his claim was preserved properly.

B

We now turn to the state’s argument that the defendant waived his claim. After the court denied the motion in limine and overruled the objection discussed previously, the defendant agreed to the introduction of his statement to police regarding the Rose shooting. The state argues that this agreement amounts to a waiver of his claim regarding the prejudice resulting from the introduction of testimony about the Rose shooting. The state further asserts that the defendant’s agreement to admit his statement renders any possible error regarding the admission of other evidence of the Rose shooting harmless. In other words, it asserts that because the defendant later permitted the introduction of evidence of the shooting, he could not have been harmed by the earlier introduction of similar evidence by the state. These arguments are logically and legally flawed.

The state cites several cases in support of its argument that stand for the proposition that “[a]n erroneous ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case.” (Internal quotation marks omitted.) State v. Boyd, 178 Conn. 600, 604, 424 A.2d 279 (1979). Boyd stands for the proposition that when evidence is already admitted properly, subsequent improper admission of similar evidence is harmless. The state asserts that the opposite is also true—that if evidence is admitted improperly, subsequent proper admission of similar evidence should render the earlier admission harmless. As a matter of simple logic, that is not the case.

In the present case, prior to introduction of the defendant’s statement into evidence, the state had already introduced a plethora of evidence regarding the Rose shooting. The defendant’s decision to permit his statement to be introduced can reasonably be understood to have been an attempt to limit the damage done by the earlier evidence about the Rose shooting. The statement described the ways in which the defendant was provoked by Rose prior to the shooting, and it also indicated that the defendant had since sold the gun used.

The argument that the state presents here is similar to that presented in State v. Shashaty, 251 Conn. 768, 742 A.2d 786 (1999), cert. denied, 529 U.S. 1094, 120 S. Ct. 1734, 146 L. Ed. 2d 653 (2000). In Shashaty, the trial court ordered that the pro se defendant be shackled during his trial but that the courtroom would be arranged in such a way as to prevent the jury from seeing the shackles. Id., 784. The defendant objected to the order, and the court overruled that objection. Id. As a result of the order, the defendant questioned the venire members regarding their ability to remain impartial in light of his appearing in shackles. Id. The state argued that by bringing the shackles to the attention of the venire, the defendant waived his ability to contest the shackle order on appeal. Our Supreme Court disagreed. It held that “the defendant’s decision to alert jurors to the fact that he was wearing shackles cannot serve to waive his claim that the shackling order violated his constitutional rights. ... In contrast [to the cases cited by the state], the trial court’s decision in this case to order that the defendant remain shackled was not instigated by any legal action taken by the defendant; rather the court’s decision preceded it. Therefore, because the defendant’s decision concerning how best to respond to the court’s shackling order cannot serve as the basis for a waiver of his claim, his claim is reviewable.” Id., 786.

The present case is analogous to Shashaty. Here, the court’s decision to permit the introduction of evidence regarding the Rose shooting was not instituted by any legal action taken by the defendant; instead, the court’s decision preceded it. Therefore, because the defendant’s decision concerning how best to respond to the court’s admission of the testimony cannot serve as the basis for a waiver of his claim, his claim is reviewable. See id. We will not force the defendant to choose between preserving an objection to the admissibility of evidence and attempting to ameliorate the effect that such evidence has on the jury.

II

Having addressed the state’s dispositive arguments, we turn to the merits of the defendant’s appeal. As noted previously, the defendant claims that the probative value of evidence of the Rose shooting did not overcome the risk of prejudice, even with the limiting instruction given by the court. He further asserts that although it may have been probative that he once owned a gun that produced shell casings that match the shell casing found on Hopkins’ collar, the fact that he shot Rose with that gun was not necessary to prove any element of the state’s case. The state does not directly refute the defendant’s claim on appeal. Rather, it relies on its arguments addressed previously, insisting that the defendant’s claim on appeal was waived and is unpreserved.

We begin our analysis by setting forth the applicable standard of review. “[E]vidence of prior unconnected crimes is inadmissible to demonstrate the defendant’s bad character or to suggest that the defendant has a propensity for criminal behavior [but] such evidence may be admissible for other purposes, such as to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency. . . . That evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material .... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Ellis, 270 Conn. 337, 354-55, 852 A.2d 676 (2004).

“[W]hen evidence of other crimes is offered for some proper purpose, the question of whether its prejudicial value outweighs its probative value becomes a material consideration.” State v. Mortoro, 160 Conn. 378, 391, 279 A.2d 546 (1971). Connecticut Code of Evidence § 4-3 provides: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Relevant evidence may be excluded if it would “unduly arouse the jury’s emotions, hostility or sympathy.” State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982).

The testimony relating to the Rose assault clearly fits into the category of evidence that would have unduly aroused the jury’s emotions and hostility. It painted the defendant as a gun toting criminal with a proclivity for shooting people. The evidence was not admissible for that purpose. See State v. Dunbar, 51 Conn. App. 313, 325-26, 721 A.2d 1229 (1998), cert. denied, 247 Conn. 962, 724 A.2d 1126 (1999). Consequently, the testimony would have unduly prejudiced the jury, while its probative value was minimal.

The testimony of several individuals was introduced at trial regarding the Rose shooting. The portion of the testimony relevant to the crimes for which the defendant was on trial was simply that which would prove that he had at some time owned a gun that produces shell casings that match the one found on Hopkins’ collar. It would have been sufficient for the state simply to introduce evidence to that effect without going into the details of the defendant’s involvement with the assault on Rose. Cf. State v. Mortoro, supra, 160 Conn. 387-91 (reversing judgment where court admitted evidence of defendant’s planning armed holdup unrelated to charges at issue); State v. Dunbar, supra, 51 Conn. App. 325-26 (prosecution for unlawful possession of weapon reversed because evidence admitted of prior arrest for weapon violation).

Concluding that the court abused its discretion in admitting the prejudicial testimony does not end our inquiry, however. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 352, 904 A.2d 101 (2006). The standard for demonstrating harmful error requires the defendant to show that “the jury’s verdict was substantially swayed by the error.” Id., 357. Further, a “nonconstitutional error is harmless when an appellate court has fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) Id.

In the present case, the defendant met this burden. The defendant’s first trial resulted in a hung jury and a mistrial. Similarly, in the trial that resulted in a verdict and from which the defendant appeals, the jury twice indicated that it was deadlocked, although it did not indicate on which charge it was unable to reach a consensus. There was no eyewitness to the crime, and the only tangible evidence linking the defendant to the crime was the shell casing and a fingerprint. Given the overall strength bf the state’s case, we cannot say that we have a fair assurance that the error did not substantially affect the verdict. See id., 358-60.

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

In this opinion the other judges concurred.

       The defendant also claims that (1) an improper jury instruction regarding the defense theory deprived him of his rights pursuant to the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution and (2) the court permitted the defendant to waive his right to competent counsel without properly determining that such waiver was voluntary, intelligent and knowing. In light of our disposition of the defendant’s principal claim, we do not consider these claims, as it is unlikely that they will arise on remand. See Prentice v. Dalco Electric, Inc., 280 Conn. 336, 339 n.3, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007).

       The victim was alternatively known as Calvin Atkins and “C-Hop.”

       As will be discussed, during the defendant’s trial for the Hopkins murder, the jury heard testimony about his involvement in the Rose shooting. We therefore briefly set forth the facts of that earlier case.

       The defendant’s initial objection to the testimony took the form of an oral motion in limine.

       “The putpose of the [Chip Smith] instruction is to prevent a hung jury by urging the jurors to attempt to reach agreement. It is a settled part of Connecticut jurisprudence . . . . D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (2d Ed. 1997) § 4.4, p. 245.” (Internal quotation marks omitted.) Monti v. Wenkert, 287 Conn. 101, 112 n.4, 947 A.2d 261 (2008).

       We note that Rose was never called as a witness at trial.


author: BEACH, J.

text:
    JOHN MLECZKO v. HAYNES CONSTRUCTION COMPANY ET AL.
    (AC 29049)
    DiPentima, Beach and Robinson, Js.

      Argued October 10
    officially released December 23, 2008

      Norman J. Voog, with whom, on the brief, was Christopher J. Molyneaux, for the appellant (plaintiff).

      Richard L. Aiken, Jr., for the appellees (defendants).
   Opinion

BEACH, J.

The plaintiff, John Mleczko, appeals from the decision of the workers’ compensation review board (board) affirming the finding and dismissal of his claim against the defendant Haynes Construction Company by the workers’ compensation commissioner (commissioner). On appeal, the plaintiff claims that the board improperly affirmed the commissioner’s finding that his injuries were not compensable. We affirm the decision of the board.

The commissioner found the following facts. On Friday, November 12, 2004, the plaintiff was employed by the defendant as a project manager for a Marriott hotel project in Stamford. After returning from lunch on that day, the plaintiff was notified of a leak in room 801 of the hotel. The plaintiff and John Lindell, the property owner’s construction manager, inspected the leak. The plaintiff thereafter telephoned John Martin, the superintendent of Aspetuck Roofing, to have someone from his firm attend to the leak. Martin advised the plaintiff that he was two hours away from Stamford, that he would see what he could do about getting to the site and would return the plaintiffs call. The plaintiff advised Sheldon Moir, superintendent for the defendant, that Martin might not be able to come to Stamford until Monday.

In response, the plaintiff, Lindell and Moir went to the roof of the hotel to identify the source of the leak. Moir testified that he identified and remedied the source of the leak. Martin testified that when he telephoned the plaintiff a second time at approximately 4:25 p.m., he was informed that Moir had identified and remedied the cause of the leak. Martin was not coming to Stamford to correct the roof leak, and this fact was communicated to the plaintiff.

Between 4:30 and 5 p.m., the plaintiff went to the Telluride Restaurant. He returned to his office around 6 p.m. and did paperwork for approximately one hour. At approximately 7:30 p.m., he left his employer’s premises and went to the nearby Southport Brewing Company Restaurant (restaurant), where he ate and consumed alcohol with Darryl Meierhoff, a former employee of the defendant. After leaving the restaurant, the plaintiff sustained multiple injuries when he was struck by a car while crossing Broad Street in Stamford at approximately 8:20 p.m.

The plaintiff claimed before the commissioner that at the time of his injury, he was doing the work of his employer, was where he should have been and was benefiting his employer. In his finding and dismissal, the commissioner noted Meierhoff s testimony that the plaintiff had left the restaurant to see if Martin had arrived and to shut down the office. The commissioner, however, did not credit this version of events. Rather, he found that Martin was not coming to the job site to correct the roof leak on the evening in question and that this fact was communicated to the plaintiff prior to the end of the normal workday. Accordingly, the commissioner found that there was no reason for the plaintiff to remain on the job. The commissioner found that the plaintiff was not on his employer’s premises when he was struck by a car on Broad Street, a public highway. The commissioner concluded that the plaintiffs injuries did not arise out of or occur in the course of the employment. Thereafter, the plaintiff appealed to the board. The board affirmed the commissioner’s decision, and this appeal followed.

The standard of review in workers’ compensation appeals is well established. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the . . . board nor this court has the power to retry facts.” (Citation omitted; internal quotation marks omitted.) Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 272, 901 A.2d 1176 (2006). “[0]n review of the commissioner’s findings, the [review board] does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether or not the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. . . . The finding of the commissioner cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. ... It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . .” (Internal quotation marks omitted.) Chester v. Derby, 96 Conn. App. 207, 220, 899 A.2d 624, cert. denied, 280 Conn. 909, 907 A.2d 88 (2006).

The law governing eligibility for workers’ compensation is also well established. “It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. There must be a conjunction of [these] two requirements ... to permit compensation. ... An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or to the conditions under which it was required to be performed. . . . [C]ases have held that an injury [occurs] in the course of the employment when it takes place (a) within the period of the employment, (b) at a place where the employee may reasonably be and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it. . . . There must be a conjunction of [these] two requirements [of the test] . . . to permit compensation. . . . The former requirement [of arising out of the employment] relates to the origin and cause of the accident, while the latter requirement [of occurring in the course of employment] relates to the time, place and [circumstance] of the accident. . . . Whether an injury arose out of and in the course of employment is a question of fact to be determined by the commissioner. ... If supported by competent evidence and not inconsistent with the law, the commissioner’s inference that an injury did or did not arise out of and in the course of employment is, thus, conclusive.” (Citations omitted; internal quotation marks omitted.) Id., 216-17.

On appeal, the plaintiff claims that the commissioner improperly failed to find that Broad Street was part of the employer’s premises, that he reasonably could be expected to be there and that he was fulfilling the duties of his employment when was returning to work after dinner to see whether Martin had arrived. We disagree.

The commissioner found, as a factual matter, that the plaintiffs injuries did not arise out of or occur in the course of his employment. Bearing in mind our customary deference to such factual determinations; id.; we conclude that the findings of the commissioner, as affirmed by the board, reasonably support the factual determination that the plaintiffs injuries did not arise out of or occur in the course of his employment. The commissioner found that the plaintiff was not on the defendant’s premises at the time of the accident. The commissioner did not credit the plaintiffs version of events that at the time of the injury, he was fulfilling duties of employment and found that the plaintiff was not reasonably expected to be on Broad Street, a public highway, at the time of the injury. The commissioner did not credit Meierhoff s testimony that following dinner, the plaintiff was going to see if Martin had arrived at the hotel and was going to shut the office down. Rather, the commissioner credited Moir’s testimony that Martin was not coming to the Stamford Marriott job site on the day in question and that this fact was communicated to the plaintiff prior to the end of the normal workday. As the sole arbiter of the weight of the evidence and the credibility of witnesses, the commissioner was free to credit the defendant’s version of events, which, was that the plaintiff was engaged in a social venture and was not doing anything to benefit his employer when he was injured while crossing Broad Street after leaving the off premises restaurant.

The plaintiff argues that even if Martin was not coming to Stamford on the night in question, he had a good faith belief that Martin would come and his good faith belief was sufficient to establish that he was engaged in the business of his employer when he was struck by a car. The plaintiff cannot prevail on this argument. The commissioner did not find that he had a good faith belief that Martin would be in Stamford that night. Rather, the commissioner found that Martin was not coming to the Stamford Marriott job site on the day in question, that this fact was communicated to the plaintiff prior to the end of the normal workday and that there was no reason for the plaintiff to remain on the job.

“[I]t bears remembering that a commissioner’s [finding] that an injury did not arise out of [or occur in the course of] employment is a finding of fact. As such, it may be reversed only if it is not supported by the evidence or is inconsistent with the law.” Ryker v. Bethany, 97 Conn. App. 304, 311, 904 A.2d 1227, cert. denied, 280 Conn. 932, 909 A.2d 958 (2006). The commissioner found that the plaintiff, who had no reason to remain on the job, left work to eat dinner at an off premises restaurant. After leaving the restaurant, the plaintiff subsequently was struck by a car while crossing a public highway that was not part of his employer’s premises. The commissioner did not find that the plaintiff, in any way, was fulfilling the duties of his employment at the time of his injury. As far as is known, the plaintiff was struck by a car while doing something having no connection with the duties of employment.

After a careful review of the record, and bearing in mind the deference we give to a commissioner’s factual findings, we conclude that the findings of the commissioner reasonably support the factual determination that the plaintiffs injuries did not arise out of or occur in the course of his employment and that this conclusion is not inconsistent with the law. See Mazzone v. Connecticut Transit Co., 240 Conn. 788, 794, 694 A.2d 1230 (1997) (“ [temporary suspension of work by an employee for a permitted rest period, or lunch hour, or for satisfying the wants of nature . . . have not been generally held sufficient to break the continuity of the employment” [internal quotation marks omitted]); Spatafore v. Yale University, 239 Conn. 408, 409, 684 A.2d 1155 (1996) (injury sustained by employee while returning from lunch break not in course of employment); Woodley v. Rossi, 152 Conn. 1, 4-5, 202 A.2d 136 (1964) (commissioner fully justified in concluding claimant failed to sustain her burden of proving compensable injury where employment ceased prior to accident); Guiliano v. O’Connell’s Sons, 105 Conn. 695, 701, 136 A. 677 (1927) (“[it cannot] be contended that after [a] day’s work and while absent from [his] employer’s premises [an employee] would, during this absence, still be in the course of . . . employment”).

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

      AIG Claim Services, Inc., the workers’ compensation insurance carrier for Haynes Construction Company, also was named as a defendant. In the interest of simplicity, we refer in this opinion to Haynes Construction Company as the defendant.

       The plaintiff additionally claims that the commissioner improperly failed to find whether he reasonably was fulfilling the duties of his employment or doing something incidental to his employment at the time of the iryury. The plaintiff, however, did not file a motion to correct. That notwithstanding, given the commissioner’s findings that there was no reason for the plaintiff to remain on the job and that the plaintiff left his employer’s premises to get something to eat, we can infer that the commissioner found that at the time of the accident, the plaintiff was returning from a meal eaten off premises and was not fulfilling the duties of employment.

       The plaintiff argues that the hotel site, the office and the area in between, which included Broad Street, comprised his employer’s premises. He avers that on the evening in question, he stayed in Stamford waiting for Martin to arrive. After he left the restaurant, he contends that he walked by the hotel site to see if Martin had arrived, and, thus, he was on his employer’s premises when he was struck by a car on Broad Street while returning to the office.
      Under these facts, the plaintiff contends, the commissioner properly should have applied the principles set forth in Davis v. State, No. 03822 CRB-02-98-05 (August, 17,1999) (as matter of law, claimant’s injury occurred on employer’s premises where road on which injury occurred was owned and maintained by employer). The commissioner did not find that the plaintiff returned to the hotel to find Martin after leaving the restaurant and, thus, was between job sites at the time of the injury. The commissioner did not credit the plaintiff’s version of events, and the principles in Davis are not applicable to this case.


author: FLYNN, C. J.

text:
    GABRIEL BLOOMFIELD v. COMMISSIONER OF CORRECTION
    (AC 28993)
    Flynn, C. J., and DiPentima and Mihalakos, Js.

      Argued October 27
    officially released December 23, 2008

      Lisa A. Vanderhoof, special public defender, for the appellant (petitioner).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Gabriel Bloomfield, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims on appeal that the court abused its discretion in denying his petition for certification to appeal. We disagree and dismiss the appeal.

The record reveals the following facts and procedural history. On April 10, 2000, the petitioner was arraigned and charged by way of short form information with the crimes of assault in the first degree in violation of General Statutes § 53a-59 and threatening in the second degree in violation of General Statutes § 53a-62. The information did not specify any subsections of the two statutes charged. On August 30, 2000, the petitioner, represented by counsel, appeared before the court, Damiani, J., and elected a court trial. Following a thorough canvass, the court accepted the petitioner’s waiver of his right to a jury trial, finding it to be knowing, intelligent and voluntary. On December 7, 2000, the state filed a substitute long form information charging the petitioner with two counts of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3). The petitioner filed a motion to change his trial election and to reinstate a jury trial on December 11, 2000. Judge Damiani denied the motion, citing his previous canvass of the petitioner.

Prior to commencement of the petitioner’s trial on December 19, 2000, the court, O’Keefe, J., noted that the petitioner had not been put to plea on the substitute information including the charges of attempt to commit murder, and referred the matter to Judge Damiani for clarification. Judge Damiani struck the substitute information on the ground that it impermissibly added charges subsequent to the petitioner’s plea and court trial election. A significant effect of this striking was that the defendant no longer faced charges of attempt to commit murder. The state thereafter filed a second substitute long form information, charging the petitioner in the alternative with two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3). The effect of this third information was that the petitioner was not charged with threatening, as lodged in the first information, and the assault charges were limited to only two of the five possible ways of violating the assault statute, § 53a-59 (a).

The petitioner’s trial commenced before Judge O’Keefe on December 19,2000, and continued to February 26, 2001. On February 27, 2001, the court found the petitioner guilty of intentional assault in the first degree in violation of § 53a-59 (a) (1). The court subsequently dismissed the second count of the substitute information, assault in the first degree in violation of § 53a-59 (a) (3), which charged reckless conduct.

This court affirmed the trial court’s judgment of conviction; see State v. Bloomfield, 74 Conn. App. 674, 813 A.2d 1052, cert. denied, 263 Conn. 905, 819 A.2d 839 (2003); and the petitioner subsequently filed a petition for a writ of habeas corpus. The petitioner’s amended petition, filed June 27, 2006, alleged ineffective assistance against both his trial and appellate counsel. The petitioner alleged that his trial counsel failed to prepare adequately for trial. The petitioner further alleged that his trial counsel was ineffective in failing to object, to move for a continuance or to move to dismiss the charges in the second substitute long form information, on the ground that they constituted new charges, and, consequently, the petitioner should have been put to plea and allowed to change his court trial election. The petitioner asserted that his appellate counsel also was ineffective for failing to raise this issue on appeal.

Following a trial of the matter, the habeas court, Jones, J., denied the petition and denied the petitioner’s subsequent petition for certification to appeal. The court found that the preparation by the petitioner’s trial counsel met the appropriate standard. The court further held that neither trial counsel nor appellate counsel was ineffective with regard to the filing of the second substitute long form information. The court determined that, because the petitioner could not have been convicted under both subdivision (1) of § 53a-59 (a), requiring intentional action, and subdivision (3), requiring reckless action with regard to the same act, the petitioner was not exposed to an additional penalty of incarceration as a result of being charged under the second substitute long form information. The court thereafter denied the petitioner’s petition for certification to appeal. The present appeal followed.

We begin by setting forth the applicable standard of review. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Dwyer v. Commissioner of Correction, 102 Conn. App. 838, 840, 927 A.2d 347, cert. denied, 284 Conn. 925, 933 A.2d 724 (2007).

On appeal, the petitioner argues that the habeas court abused its discretion in denying his petition for certification to appeal following the court’s denial of his petition for a writ of habeas corpus. At the heart of the petitioner’s argument is his claim that, following the state’s filing of its second substitute long form information, by which the state charged the petitioner alternatively under subdivisions (1) and (3) of § 53a-59 (a), he should have had the right to replead and reelect a jury trial because the counts of the substitute information constituted new charges. The petitioner argues that both his trial and appellate counsel were ineffective in failing to press this claim in the appropriate respective circumstances.

It is fundamental that “[t]he sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial. . . . When the state’s pleadings have informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty. . . . Further, [w]e have held that [u]nder our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.” (Citations omitted; internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 381-82, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see also State v. Vincent, 194 Conn. 198, 204-205, 479 A.2d 237 (1984) (information charging that “the defendant had committed the crime of ‘Burglary 3’ in violation of General Statutes § 53a-103 in the first count and the crime of ‘Larceny 3’ in violation of General Statutes § 53a-124 in the second count” held constitutionally sufficient though specific subsections of statute not listed).

The original short form information, in which the state charged the petitioner with assault in the first degree under § 53a-59, provided him with notice of the crimes with which he would be charged. Subsection (a) of that statute provides: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person; or (4) with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person; or (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.” General Statutes § 53a-59 (a).

The state was entitled to fulfill its constitutional duty by providing the petitioner with the “statutory name of the crime with which [he was] charged . . . .” (Internal quotation marks omitted.) State v. Spigarolo, supra, 210 Conn. 382. As a result of this initial information, the state put the petitioner on notice as to all five subdivisions of § 53a-59 (a). When the state filed its second substitute long form information, it did not file new charges, as the petitioner claims; instead, the information specified the two subdivisions under which the state was alternatively charging the petitioner with assault in the first degree, as opposed to the five subdivisions it originally had charged. Because the state charged the petitioner in the alternative with either intentional or reckless assault based on the same act, and he could not be convicted of both, the habeas court correctly determined that the petitioner was not exposed to additional potential incarceration under the second substitute information. The petitioner therefore was sufficiently informed of the charges against him at the time he elected a court trial, and neither his trial counsel nor his appellate counsel was ineffective in failing to argue as the petitioner suggests.

We conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 230 Conn. 616. The court, therefore, did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or . . . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       We note further that it is the defendant's burden to request “a bill of particulars more precisely defining the manner in which the defendant committed the offense.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 382.