author: WEST, J.

text:
    STATE OF CONNECTICUT v. FRED JOHN ANDERSON
    (AC 21322)
    Dranginis, Flynn and West, Js.

      Argued October 29, 2002
    officially released January 28, 2003

      Kent Drager, senior assistant public defender, with whom were Raymond Durelli, certified legal intern, and, on the brief, Mary Boehlert, certified legal intern, for the appellant (defendant).

      Paul E. Murray, state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appel-lee (state).
   Opinion

WEST, J.

The defendant, Fred John Anderson, appeals from the judgment of conviction, rendered after a trial to the jury, of unlawful restraint in the first degree in violation of General Statutes § 53a-95, assault in the first degree with intent to disfigure another person seriously and permanently in violation of General Statutes § 53a-59 (a) (2), and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the court improperly (1) denied his motion for a judgment of acquittal because there was insufficient evidence to prove beyond a reasonable doubt that (a) he had the requisite intent to disfigure the victim seriously and permanently, and (b) the victim in fact was seriously and permanently disfigured, and (2) admitted into evidence (a) the victim’s statement pursuant to the Whelan doctrine and (b) the victim’s hospital records. We affirm the judgment of the trial court.

The charges against the defendant arose out of a physical altercation between the defendant and the victim, who had a romantic relationship. The altercation occurred during the early morning horns of January 9, 1999. The defendant, an admitted alcoholic, had been drinking and became physically abusive toward the victim. Officer James Kiako of the Groton police department responded to a 911 telephone call from the defendant’s apartment. When he arrived, Kiako could see through a window a disheveled woman with blood around her mouth and nose. Kiako and another officer gained entry into the apartment after the defendant unlocked the interior deadbolt lock. After talking to the victim and the defendant separately, the officers arrested the defendant. The victim was hospitalized for several days for treatment of her injuries. Additional facts will be provided when they are needed to address the defendant’s specific claims.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal with respect to the charge of assault in the first degree. At trial, the defendant claimed that there was insufficient evidence from which the jury reasonably could find that the victim had suffered serious and permanent disfigurement. On appeal, the defendant also claims that there was insufficient evidence from which the jury reasonably could find that he intended to cause the victim serious and permanent disfigurement. We will review the defendant’s claim as to intent, although it was not raised at trial, because claims of insufficient evidence are of a constitutional nature and the record is adequate for our review. See State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993); State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Jefferson, 67 Conn. App. 249, 254-55, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). The defendant, however, cannot prevail on either claim of insufficient evidence.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 377-78, 796 A.2d 1191 (2002).

“Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). “Moreover, [i]n reviewing the jury verdict, it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) Id., 693.

A

The defendant’s first claim of insufficient evidence is that the state failed to prove beyond a reasonable doubt that he intended to disfigure the victim seriously and permanently. Specifically, the defendant claims that the state failed to prove that he had the conscious objective, as defined by General Statutes § 53a-3 (ll), to cause the victim’s face to be scarred because her scars are a long-term, secondary result of his action. In other words, a scar results only after a wound has healed completely. We disagree.

“To be guilty of assault in the first degree, of which the defendant was convicted, the defendant must intend to disfigure another person seriously and permanently. General Statutes § 53a-59 (a) (2). To act intentionally, the defendant must have had the conscious objective to harm the victim. General Statutes § 53a-3 (11).” (Emphasis in original.) State v. Smith, 35 Conn. App. 51, 63, 644 A.2d 923 (1994); see also State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998) (“ ‘defendant must have had the conscious objective’ ”).

“Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Smith, supra, 35 Conn. App. 63-64.

The victim’s testimony conflicted with other evidence presented about the events that occurred during the early morning hours of January 9, 1999, including some of the defendant’s testimony. Credibility, however, is a matter solely within the province of the trier of fact. See State v. Jimenez, 73 Conn. App. 664, 668, 808 A.2d 1190, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002). The victim’s statement, given several days after the incident, contained her initial account of what occurred during the night of January 8 and the early morning of January 9, 1999. The victim’s redacted statement was admitted into evidence; see part II A; and presented to the jury. The following portions of the victim’s statement are relevant to the issue of the defendant’s intent:

“The drinking problem was getting very bad, and [the defendant] got drunk almost every time we were together. I had told [the defendant] that I was tired of his drinking and I wanted him to stop. I told him if he didn’t stop, I was going to leave him.

“On the evening of January 8, 1999, [the defendant] and I were together. ... I drove him back to his apartment at [approximately] 2:30 a.m. I went inside the apartment to get my belongings. I told him inside the car, prior to entering the apartment, I was tired of his drinking and I had enough. I told him I didn’t care any more, and I wanted to get my things from the apartment and I wanted to go home. Once we got inside the apartment, I gathered my things and I went to leave. [The defendant] locked the only exit from the inside, and he put the key in his mouth. I told him I wanted to leave, but he would not open the door. I continued to tell [the defendant] I had enough and I wanted out of the relationship. I think now he had a difficult time with my rejection.

“[The defendant] was standing in the kitchen against the washing machine. I walked over near him to go toward the door. When I was about two feet away, he grabbed me and butted me in the head and face with his forehead. He said nothing when he did this. I immediately felt extreme pain, started bleeding and could feel that my nose was pushed to the side of my face. I started crying and yelling at him to look [at] what he had done. I knew my nose was broken, and I just wanted to get out of the apartment to get help. [The defendant] started taunting me, telling me I was fine and there was nothing wrong with me. He was saying Connecticut people are so weak. He told me to stay at the apartment and in the morning he would let me go. He said in the morning everything would be fine, and I should stop crying and making such a fuss over nothing.

“I continued asking [the defendant] to let me go. He refused. He became more angry and grabbed me again. He threw me to the floor and started banging my head against the floor. I was yelling and crying for him to stop. [The defendant] began to bite me on the face. He tried to bite me on the left side of the face near my ear, but he couldn’t get any skin. He then bit me on the cheek and the bottom lip. He bit me so hard I started bleeding from these cuts as well. I started telling him everything was OK and I still cared for him. This is when he let me up. I went to the bathroom and looked in the mirror at my face. I couldn’t believe what he had done to my face. I was bleeding all over. While I was looking in the mirror crying, he came into the bathroom and grabbed the mirror. He pulled the mirror off the front of the medicine cabinet, and the glass shattered out of the frame.

“I was standing in the bathroom among the glass when [the defendant] grabbed a hair dryer which was hanging on a hook. He grabbed the dryer and smashed the dryer on the left side of my head. I grabbed my head and ran from the bathroom. I ran into the kitchen and sat down at the table, holding my head and face. I ran from the bathroom not only to get away from him, but because I thought he was going to use the cord from the hair dryer to strangle me. [The defendant] followed me into the kitchen. He grabbed me from the chair and threw me to the floor again. He punched me in the left side of my chest while I was on the floor. I felt so much pain I couldn’t do anything but lay on the floor. While on the floor, he also kicked me in the chest. I was feeling so much pain, I didn’t want to live any more. [The defendant] got on top of me and grabbed my throat with both his hands. He started choking me with his hands. I couldn’t breathe, and I started to black out. I grabbed his hair with both my hands and began pulling his hair. He stopped choking me and started complaining because I grabbed his hair. I was still laying on the ground when he took his fingers and grabbed the sides of my eyes. [He] started pulling the skin of my eyes and was saying, ‘you look Chinese.’ ”

In addition to the victim’s statement, the jury viewed eight photographs of the victim’s head and face that were taken while she was in the hospital recovering from the injuries she sustained during the incident. The jury also looked at photographs of the interior of the defendant’s apartment that were taken immediately after the incident. In addition, the victim’s hospital record was admitted into evidence. Furthermore, the victim was present in the courtroom where the jury could observe the scars on her face.

On the basis of our review of the evidence presented at trial, we conclude that there was sufficient evidence from which the jury reasonably could have concluded that the defendant, in fact, bit the victim about the face, butted her face with his head, struck her in the head with a hair dryer, kicked her and attempted to choke her. The jury reasonably could have inferred from that evidence that the defendant had the conscious objective to cause the victim serious and permanent disfigurement and to cause that result.

B

The defendant also claims that there was insufficient evidence before the jury for it to conclude beyond a reasonable doubt that the victim suffered serious and permanent disfigurement. We do not agree.

At trial, the state called the victim to testify. The state also entered into evidence photographs of the victim taken in her hospital bed in which she is depicted as having sutured lacerations about her mouth and nose and in her scalp. Although the victim, who was a reluctant witness; see part II A; made light of the scars on her face, she was asked to stand in front of the jury so the jury could observe her face. In addition, the victim’s hospital records were admitted into evidence. Daniel Hartman, a physician board certified in emergency medicine who had treated the victim, testified. According to Hartman, every laceration will leave a scar to some extent. A physician’s main concern with facial lacerations is scarring because that is obviously visible. Hartman described the type of sutures used to treat the victim’s face. The straighter the edges of the laceration are, the less scarring will occur. Human bites leave irregular edges that are more difficult to approximate than lacerations with straight edges. Human bites are of particular concern because they present a high risk of infection.

The defendant’s argument on appeal is that there was no specific evidence that the lacerations on the victim’s face left serious scars because one of the lacerations was only one centimeter in length and the other one was slightly longer than one and one-half centimeters in length. He argues that the lacerations were treated quickly with a special form of suturing and that there was no evidence that the treatment was not effective. The victim suffered no infections at the sites of the lacerations and was not referred to a plastic surgeon for additional care. The defendant also relies on the victim’s testimony that the scarring was barely visible. Despite his acknowledging that Hartman testified that all lacerations leave scars, the defendant also argues that the state presented no evidence that the victim’s scars were permanent and that the jury is not permitted to speculate about such matters.

As we have stated, the victim was reluctant to testify against the defendant. Her lack of concern about the scars on her face is not controlling. “The victim’s attitude about the scar and the need for corrective surgery are completely irrelevant to the question of permanency.” State v. Smith, supra, 35 Conn. App. 62. The trial occurred more than eighteen months after the incident, and the jury was able to observe the scars on the victim’s face. “A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency. See note, 18 A.L.R.3d 170, 183-84.” Royston v. Factor, 1 Conn. App. 576, 577, 474 A.2d 108, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

In support of his claim, the defendant has cited a number of cases from other jurisdictions holding that a small scar on the victim’s head or face is not a serious disfigurement. Here, the victim was asked to stand directly in front of the jury so that the jury could observe the scars on her face and make its own determination as to whether her face was seriously disfigured. General Statutes § 53a-3 (4) provides in relevant part: “ ‘Serious physical injury’ means physical injuiy which creates a substantial risk of death, or which causes serious disfigurement . . . .” (Emphasis added.) Whether there is serious physical injury that causes serious disfigurement is a question of fact for the jury. See State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989).

This court addressed the question of whether the state had proved that a victim suffered serious physical injury when she sustained a one-half inch scar on her Up in State v. Nival, 42 Conn. App. 307, 678 A.2d 1008 (1996). In Nival, the state relied on the serious disfigurement element of the definition provided in § 53a-3 (4). Id., 309 n.4. “No bright line exists between physical injury and serious physical injury, and the trial court could not have determined as a matter of law that the jury could not reasonably find that [the victim] suffered serious physical injury.” Id., 309, citing State v. Almeda, supra, 211 Conn. 451.

Here, there was evidence before the jury concerning the defendant’s assault on the victim, the victim’s wounds and the treatment she received. The victim’s treating physician testified as to the nature of lacerations, human bites and scarring. The jury had an opportunity to observe the scars on the victim’s face. Accordingly, the court properly determined that the jury reasonably could have found that the evidence of the scars on the victim’s face constituted serious, permanent disfigurement. See State v. Nival, supra, 42 Conn. App. 309. We therefore conclude that the court properly denied the defendant’s motion for a judgment of acquittal.

II

We now address the defendant’s evidentiary claims. The defendant claims that the court improperly admitted into evidence (1) the victim’s written statement and (2) the victim’s hospital record. We find no merit to the defendant’s claims.

We have a well established standard by which we review claims of an evidentiary nature. “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, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 392, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002); State v. Colon, 71 Conn. App. 217, 233, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). “It is a fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) State v. Tinsley, 59 Conn. App. 4, 10, 755 A.2d 368, cert. denied, 254 Conn. 938, 761 A.2d 765 (2000).

A

The defendant first claims that the court improperly admitted the victim’s written statement to the police as substantive evidence pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), because the statement was not reliable. The defendant contends that admitting the statement into evidence was harmful to him because it contained the only evidence to support the charges of unlawful restraint and assault in the first degree. We disagree.

“The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court. See State v. Alvarez, 216 Conn. 301, 314, 579 A.2d 515 (1990) (trial court did not abuse discretion in admitting witness’ prior statement to police for substantive purposes). On appeal, the exercise of that discretion will not be disturbed except on a showing that is has been abused. Id.” State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).

The following facts are relevant to our resolution of the defendant’s claim. On the morning of January 11, 1999, Thomas J. Smith, a detective on the Groton police force, visited the victim in her hospital room. Smith talked with the victim for about one hour and took notes. He, however, did not take a statement from the victim at that time out of concern for her welfare. After the victim was discharged from the hospital, Smith visited with her in her home on January 13, 1999. At that time, Smith spent two to three hours with the victim, discussing the incident and drafting her statement about the incident on a laptop computer. When he met with her, Smith found the victim to be quite lucid. He had no trouble communicating with her, except when he could not understand her heavy accent. In those instances, Smith asked the victim to repeat herself. What the victim told Smith on January 13 was consistent with what she had told him on January 11.

Smith drafted the victim’s statement paragraph by paragraph. After he had completed a paragraph, Smith read the paragraph to the victim and asked her if changes were needed. When the four page statement had been completed, Smith read the entire statement to the victim to ensure its accuracy. It was approximately 6 p.m. when Smith and the victim finished writing her statement. Due to the late hour, Smith told the victim that he would go to the police station to print the statement and return the next day for her to sign the statement.

Smith returned to the victim’s home the next day. He gave the statement to the victim to review. Smith also read the statement to the victim. The victim expressed no disagreement with the content of the statement and signed the statement.

At trial, the victim was a reluctant witness. She was bom in Spain and was educated in Spain, France and Italy. She came to the United States in 1979. Although the victim is a citizen of the United States and holds a Connecticut operator’s license, she testified that she cannot read English. When the court reporter asked her to spell her name, the victim could not state the letters of her name in English. The victim testified that she learned to speak English by watching television and that she prepared for the tests for citizenship and for her operator’s license by memorizing the material as one would memorize the words to a song. She claimed that both examinations were given orally. She also testified that she had a degree in psychology from Old Dominion University, where she studied under just one professor, who instructed her in Italian.

The victim had known the defendant for approximately five months before the incident. At trial, she denied that the defendant caused her injuries and claimed that they were the result of her butting the defendant and cutting her lip on a beer bottle. She also testified that she wanted to leave the defendant’s apartment when she was bleeding, but that the defendant restrained her to prevent her from operating an automobile when she was in no condition to do so. When the state presented her with her written statement, the victim said that she did not recognize it, although she acknowledged her signature on the statement. The victim testified that she did not read the statement when Smith gave it to her and that she thought she was signing a document to have the charges against the defendant dropped.

Thereafter, the state sought to introduce the victim’s statement for substantive purposes pursuant to State v. Whelan, supra, 200 Conn. 753. The defendant objected, arguing that the statement should not be admitted because it was unreliable due to the effects of the pain medication that the victim was taking at the time she gave and signed the statement and because she could not read English. The court conducted a hearing concerning the taking of the victim’s statement and, thereafter, admitted the prior inconsistent statement for substantive purposes. Portions of the statement concerning the defendant’s prior misconduct were redacted. The redacted statement was published to the jury.

On appeal, the defendant acknowledges that the victim’s written statement meets the four-pronged test of Whelan, but argues that the statement was signed under circumstances that make it unreliable. The defendant acknowledges that under Whelan, a prior inconsistent statement may be used for substantive purposes if it is signed by the witness, as the signature serves to authenticate the statement. He argues that in this instance, however, because the victim could not read the statement prepared by Smith, she did not realize what she was signing, and therefore her signature on the statement failed to authenticate it. The defendant also argues that Smith’s testimony regarding the circumstances under which he took the victim’s statement and under which she signed the statement cannot be used to authenticate her signature.

In Whelan, our Supreme Court adopted “a rule allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” Id. Our Supreme Court reasoned that “[t]he jury can . . . determine whether to believe the present testimony, the prior statement, or neither. Moreover, prior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy.” Id., 750.

Subsequently, our Supreme Court has recognized that the circumstances under which a prior inconsistent statement was made may taint the statement’s reliability. See State v. Mukhtaar, 253 Conn. 280, 750 A.2d 1059 (2000). “[A] prior inconsistent statement that fulfills the Whelan requirements may have been made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of the witness. In such circumstances, the trial court must act as a gatekeeper to ensure that the statement does not go to the jury for substantive purposes. We emphasize, however, that the linchpin of admissibility is reliability: the statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process. In the absence of such a showing by the party seeking to exclude a statement that meets the Whelan criteria, the statement is admissible as substantive evidence; like all other evidence, its credibility is grist for the cross-examination mill.” Id., 306-307.

Here, the court followed the procedure our Supreme Court established to fulfill the court’s gatekeeping responsibility under Mukhtaar to ensure the reliability of the victim’s written statement. “If a statement meets the four Whelan requirements, it will be deemed admissible, unless the party seeking to exclude it makes a preliminary showing of facts that, if proven true, would grievously undermine the statement’s reliability. If such a showing has been made — and we leave the methods and contours of such a showing to the discretion of the trial court — the court should then hold a hearing to determine the truth of those facts and whether they do, in fact, grievously undermine the reliability of the statement. The ultimate question for the trial court, therefore, is whether, notwithstanding the statement’s satisfaction of the Whelan requirements, the circumstances under which the statement was made nonetheless render it so unreliable that a jury should not be permitted to consider it for substantive purposes.” Id., 307 n.27. “[T]he trial court’s factual findings on this issue will not be disturbed on appeal unless they are clearly erroneous.” Id., 307 n.26.

Smith testified and was cross-examined outside the presence of the jury about the manner in which he took the victim’s statement. In ruling that the victim’s statement would be admitted for substantive purposes, the court read extensively from Mukhtaar and made factual findings. The court found that the victim did not want to be in court to testify against the defendant and that her claimed inability to read English was questionable. The court also found that the defendant presented no evidence to indicate, in light of the totality of the circumstances in which the victim made and signed the statement, that it was untrustworthy and that its admission into evidence would subvert the fairness of the fact-finding process.

On the basis of our review of the transcript of the victim’s testimony, the statement and Smith’s testimony at the Mukhtaar hearing, we conclude that the court’s findings of fact are not clearly erroneous and that it did not abuse its discretion in admitting the victim’s inconsistent statement into evidence. The defendant had the opportunity to cross-examine the victim. Her credibility and that of all witnesses was a matter for the jury to decide. Furthermore, the defendant testified at trial, and portions of his testimony lend credibility to the victim’s statement.

B

The defendant’s second evidentiary claim is that the court improperly admitted into evidence the victim’s hospital records and Hartman’s testimony regarding the records without the victim’s consent to reveal the contents of the records. The defendant has asserted that claim pursuant to General Statutes § 52-146o. We are not persuaded.

After the victim testified, the state offered her hospital records to be placed into evidence. The defendant objected, asserting that the victim had not waived her right to keep the records confidential pursuant to § 52-146o. The state responded that the defendant did not have standing to assert the victim’s right to keep the records confidential and that the language of the statute limits its application to civil proceedings. The court overruled the defendant’s objection, noting, among other things, that § 52-146o applies to civil, not criminal proceedings. A redacted version of the victim’s hospital records was admitted into evidence.

Although the defendant’s claim is of an evidentiary nature, he correctly points out that the claim is to be resolved by statutory construction. Statutory construction is a question of law to which a plenary standard of review applies. See State v. Vickers, 260 Conn. 219, 223, 796 A.2d 502 (2002); State v. Hackett, 72 Conn. App. 127, 132, 804 A.2d 225, cert. denied, 262 Conn. 904, 810 A.2d 270 (2002). “According to our long-standing principles of statutory [interpretation], our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Hackett, supra, 132.

“As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions.” (Internal quotation marks omitted.) Fimi-ani v. Star Gallo Distributors, Inc., 248 Conn. 635, 642, 729 A.2d 212 (1999). “A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.” (Internal quotation marks omitted.) Schiappa v. Ferrero, 61 Conn. App. 876, 882, 767 A.2d 785 (2001). “It is our duty to interpret statutes as they are written. . . . Courts cannot, by construction, read into statutes provisions which are not clearly stated. . . . The legislature is quite aware of how to use language when it wants to express its intent to qualify or limit the operation of a statute.” (Citations omitted; internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 825, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).

“A common law privilege for communications made by a patient to a physician has never been recognized in this state.” Edelstein v. Dept. of Public Health & Addiction Services, 240 Conn. 658, 662, 692 A. 2d 803 (1997). “In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. The court is to go no faster and no further than the legislature has gone. . . . A legislative intention not expressed in some appropriate manner has no legal existence.” (Internal quotation marks omitted.) Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).

Section 52-146o prohibits, except in specific circumstances, a physician, surgeon or health care provider from disclosing information about a patient or information communicated by a patient without the patient’s consent. The language of the statute is clear and unambiguous as to the proceedings to which it applies, specifically, “in any civil action or any proceeding preliminary thereto or in any probate, legislative or administrative proceeding . . . .” General Statutes § 52-146o (a). We need look no further than the words of the statute for the type of action to which it applies. It applies to civil actions, not to criminal actions. There is no question that the present matter is a criminal action. The defendant may not rely on § 52-146o to exclude the victim’s hospital records and Hartman’s testimony from evidence. The court, therefore, properly admitted the victim’s hospital records and Hartman’s testimony into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

         State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (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 iivjury to such person or to a third person . . . .”

       General Statutes § 53a-3 (11) provides in relevant part: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result

       The defendant argued that the state overcharged him by alleging assault in the first degree pursuant to General Statutes § 53a-59 (a) (2). In his appellate brief, the defendant concedes that the state probably could have convicted him of assault in the second degree in violation of General Statutes § 53a-60 (a) (1) (intent to cause serious physical injury to another person) because the victim sustained a broken nose and rib. “Assault in the third degree in violation of [General Statutes] § 53a-61 (a) (2) could be a lesser included offense of assault in the first degree in violation of § 53a-59 (a) (2).” State v. Smith, 35 Conn. App. 51, 59, 644 A.2d 923 (1994).

       The defendant argues on appeal that his claim is one of constitutional nature rather than an evidentiary one. Where the court improperly has admitted a statement under Whelan, a defendant is denied the opportunity to impeach a witness for motive, bias and interest, which implicates the protection of the confrontation clause. See State v. Portee, 55 Conn. App. 544, 560 n.12, 740 A.2d 868 (1999), cert. denied, 252 Conn. 920, 744 A.2d 439 (2000). Because we conclude that the court did not abuse its discretion in admitting the victim’s statement for substantive purposes, the defendant’s constitutional right to confrontation was not implicated.

       Smith had been a member of the Groton police department for fourteen years, nine as a detective.

       The victim's adult daughter was present during both of Smith’s visits.

       The defendant’s first trial ended in a mistrial after the victim approached a member of the jury to ask for mercy for the defendant.

       General Statutes § 52-146o (a) provides: “Except as provided in sections 52-146c to 52-146j, inclusive, and subsection (b) of this section, in any civil action or any proceeding preliminary thereto or in any probate, legislative or administrative proceeding, a physician or surgeon, as defined in subsection (b) of section 20-7b, shall not disclose (1) any communication made to him by, or any information obtained by him from, a patient or the conservator or guardian of a patient with respect to any actual or supposed physical or mental disease or disorder or (2) any information obtained by personal examination of a patient, unless the patient or his authorized representative explicitly consents to such disclosure." (Emphasis added.)

       Because we resolve the defendant’s claim pursuant to our construction of the statute, we need not determine whether the defendant had standing to assert the victim’s right to keep the records confidential.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LUBA N. HILL v. JOHN R. WILLIAMS ET AL.
    (AC 22149)
    Schaller, Flynn and Bishop, Js.
    Submitted on briefs October 31, 2002
    officially released January 28, 2003

      Luba N. Hill, pro se, the appellant (plaintiff), filed a brief.

      Norman A. Pattis filed a brief for the appellee (named defendant).
   Opinion

PER CURIAM.

The plaintiff, Luba N. Hill, representing herself, brought an action against her former attorney, John R. Williams, seeking damages based upon various legal theories. The question presented by this appeal is whether in granting summary judgment the trial court properly concluded that the complaint sounded only in tort theories and not in contract and was therefore barred by the tort statutes of limitations. We reverse the judgment of the trial court in part.

The issue before the court invokes our plenary power to review the legal effect of pleadings and to review the grant of a summary judgment. See Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905 (“question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo”), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001); Stingone v. Elephant’s Trunk Flea Market, 53 Conn. App. 725, 729, 732 A.2d 200 (1999) (“ ‘[sjummary judgment may be granted where the claim is barred by the statute of limitations’ ”); Baldwin v. Jablecki, 52 Conn. App. 379, 381, 726 A.2d 1164 (1999) (“ ‘interpretation of pleadings is always a question of law for the court’ ”). “Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.” (Emphasis in original; internal quotation marks omitted.) Dietter v. Dietter, 54 Conn. App. 481, 489, 737 A.2d 926, cert. denied, 252 Conn. 906, 743 A.2d 617 (1999). “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.” (Internal quotation marks omitted.) Macricostas v. Kovacs, 67 Conn. App. 130, 133, 787 A.2d 64 (2001). “The modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988).

On March 23, 1999, the plaintiff commenced the present action. Her complaint contains a variety of allegations that sound in tort. The preamble of the complaint also states that this case “is filed as a breach of contract” between the plaintiff and the defendant. The defendant first moved for summary judgment on April 19, 2000. The defendant’s counsel was not able to attend the first hearing on his motion, which the court denied on May 8, 2000. Almost ten months after that denial, on February 22, 2001, the defendant filed another motion for summary judgment. Neither party filed affidavits supporting or opposing the motion. The court held a hearing and, on May 31, 2001, granted the defendant’s renewed motion for summary judgment.

The plaintiff first claims that the court’s denial of the motion for summary judgment on May 8, 2000, prohibited the defendant from subsequently filing an essentially identical motion. There is no dispute that the defendant’s counsel was not able to attend the hearing to argue the first motion for summary judgment. The court noted in its memorandum of decision that the defendant simply refiled the motion for summary judgment that had been denied previously but stated that the earlier motion had been denied “without prejudice and [the] court expressly provided that the defendant could file a new motion for summary judgment.”

“[Although a judge should not lightly depart from a prior ruling on a motion before the same or a different judge, the prior ruling is not binding.” Barnes v. Schlein, 192 Conn. 732, 734, 473 A.2d 1221 (1984); see also Wagner v. Clark Equipment Co., 259 Conn. 114, 130-31, 788 A.2d 83 (2002). We must bear in mind that where there have been different decisions on the same point of law, “the important question is not whether there was a difference but which view was right.” (Internal quotation marks omitted.) Barnes v. Schlein, supra, 734. In light of the circumstances of this case, where the court denied the initial motion “without prejudice,” we conclude that the court acted properly in reconsidering the defendant’s motion for summary judgment.

The plaintiffs second claim calls on us to conclude that the court improperly granted summary judgment in favor of the defendant because the complaint contained the statement: “This lawsuit is filed as a breach of contract between John Williams and his client, the plaintiff.” If the complaint sounds in breach of contract, the six year statute of limitations provided by General Statutes § 52-576 is applicable. However, if the complaint merely pleads legal malpractice or other claims sounding in tort, the applicable statutes of limitations would be at most three years, and, by virtue of the dates it sets out, the complaint would be time barred. See General Statutes §§ 52-577 and 52-584.

The plaintiffs causes of action for the most part are intentional torts governed by § 52-577, resulting in a statute of limitations of “three years from the date of the act or omission complained of.” General Statutes § 52-577. The plaintiffs claims of negligence and reckless, wanton or wilful misconduct are governed by § 52-584, which provides that the cause of action must be brought within two years “from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” General Statutes § 52-584.

Viewing all of the events pleaded by the plaintiff in her complaint in the light most favorable to her; see LaFlamme v. Dallessio, 261 Conn. 247, 262, 802 A.2d 63 (2002); we note that all of the alleged tortious misconduct took place while the defendant was representing the plaintiff. That relationship ended on February 6, 1995. The plaintiff commenced her action on March 23, 1999, more than four years after discharging the defendant and, therefore, more than four years after any such tortious conduct could have occurred. The plaintiffs causes of action that sound in tort are, therefore, time barred by the application of §§ 52-577 and 52-584.

The plaintiff argues, however, that her complaint also alleges a breach of contract and, therefore, § 52-576 provides the appropriate statute of limitations. We agree with the plaintiff. Although not artfully pleaded, parts of her complaint sound in breach of contract.

Our Supreme Court has recognized that not all claims against an attorney are necessarily actions in tort. See Stowe v. Smith, 184 Conn. 194, 198-99, 441 A.2d 81 (1981); Robbins v. McGuinness, 178 Conn. 258, 261-62, 423 A.2d 897 (1979). In the present case, the complaint goes beyond being merely “couched in the language of tort . . . .” Shuster v. Buckley, 5 Conn. App. 473, 478, 500 A.2d 240 (1985).

The plaintiff, in her complaint, describes the matters for which the defendant was hired and the dates on which the parties created the relevant agreements. Specifically, on March 27, 1993, the defendant agreed “to represent the plaintiff in a civil action against her ex-husband.” On April 14, 1993, the defendant agreed “to represent the plaintiff in her family case to appeal her divorce, obtain accurate support and obtain sole custody of the Hill children.” And finally, on May 3, 1993, the defendant agreed “to represent the plaintiff in her legal malpractice suit against her [former] divorce attorney.” The plaintiff then describes her complaint as a “breach of contract lawsuit.”

At several points in the complaint, the plaintiff refers not only to the defendant’s failure to proceed in several actions, but also to the defendant’s refusals to take certain actions in furtherance of the matters for which the defendant had been hired. The New College Edition of the American Heritage Dictionary of the English Language (1981) defines the word “refuse” as “to decline to do.” It goes on to state: “Refuse is used of a positive, unyielding, sometimes brusque decision not to act, accept, or do something.” Id.

Use of the word “refuse” imports an intentional act rather than some inadvertence or negligent act or omission on the part of the defendant in breach of the agreements between the parties. For example, after describing the complaint as a “breach of contract lawsuit” in the preamble, the twenty-fourth count (incorporating language from a previous count) alleges that the defendant “refused to file [the] correct motion to obtain correct support” and “refused to schedule hearings ... to obtain correct support,” actions which would appear to be required of him under the alleged April 14,1993 agreement. This count and several others allege that the defendant is hable to the plaintiff for his “breach of duty.” The court implicitly treated this language as meaning only the duty of reasonable care considered in negligence cases. However, a duty also may arise pursuant to a contract such as allegedly existed in this case. Moreover, the same course of conduct may sound both in tort and in contract; see 57A Am. Jur. 2d, Negligence §§ 119-25 (1989); and the court should apply the relevant statute of limitations to each claim.

The allegations described apply to a breach of contract claim. We, therefore, disagree with the court’s holding that the plaintiffs complaint “failed ... to include any counts alleging breach of contract . . . .”

The court, in reaching that holding, stated “the Connecticut Supreme Court has allowed plaintiffs to initiate actions against attorneys in both tort and contract only where each claim is clearly alleged in separate counts.” The trial court cited Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 494 n.5, 605 A.2d 862 (1992), as support for this proposition. We do not read Westport Bank & Trust Co. as authority for the proposition for which the court cited it, namely, that tort and contract theories must be plead in separate counts for the contract theory to be legally viable. The plaintiff in Westport Bank & Trust Co. alleged in separate counts that the defendant in that case breached an attorney-client contract and committed legal malpractice. Id. At no point did the court hold that separating the claims of tort and contract into distinct counts was a prerequisite to the recognition of a claim sounding in contract. See id. “We have uniformly approved the use of a single count to set forth the basis of a plaintiff s claims for relief where they grow out of a single occurrence or transaction or closely related occurrences or transactions, and it does not matter that the claims for relief do not have the same legal basis.” Veits v. Hartford, 134 Conn. 428, 438-39, 58 A.2d 389 (1948); see also Knapp v. Walker, 73 Conn. 459, 461, 47 A. 655 (1900) (fraud and breach of contract claims made in single count); Burns v. Koellmer, 11 Conn. App. 375, 385-86, 527 A.2d 1210 (1987) (complaint contained contractual, quasi-contractual theories of recovery in same count).

“If the defendant had wished to distinguish more particularly the theories invoked by the pleadings, his recourse was a request to revise the pleadings.” Burns v. Koellmer, supra, 11 Conn. App. 387; see also Practice Book § 10-35. If the defendant was not satisfied with the state of the pleadings after any such revision, he could have filed further requests for revision.

The trial court also relied on our decision in Shuster v. Buckley, supra, 5 Conn. App. 473. We believe that Shuster is readily distinguishable from the plaintiffs case. In Shuster, unlike the present case, the complaint made no averment that the claim was brought as a breach of contract. See id. It was only after the trial court in Shuster already had granted the defendant’s motion for summary judgment based on the tort statute of limitations in § 52-577 that the plaintiff in that case attempted to add a count alleging breach of contract to his complaint. Id., 475-76.

We conclude that the six year statute of limitations set forth in § 52-576 applies to the plaintiffs complaint insofar as it seeks to hold the defendant liable for his refusal to perform his duties pursuant to his contracts with the plaintiff. “In an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted.” Kennedy v. Johns-Manville Sales Corp., 135 Conn. 176, 180, 62 A.2d 771 (1948). According to the pleadings, the plaintiff first hired the defendant on March 27, 1993, and eventually discharged the defendant on February 6,1995. Any alleged breach of contractual duty on the defendant’s part, triggering the six year statute of limitations, would have occurred during that span of time. The plaintiff commenced the present action on March 9, 1999. With fewer than six years passing between when the defendant was first hired and the date the action commenced, the present action must have been brought within the contract statute of limitations set by § 52-576. It was, therefore, improper for the court to grant the defendant’s motion for summary judgment on the entire complaint where that complaint alleged a breach of contractual duty.

We conclude on the basis of our review of the record that allegations sounding in contract are contained in the preamble and in counts 13, 24, 35, 54, 65, 76, 87, 95, 116, 127, 138, 149, 160, 171, 182, 193, 201, 216, 232, 247, 262 and 277.

The judgment is reversed only as to those allegations sounding in contract and the case is remanded for further proceedings on those allegations.

       The amended complaint also named as defendants Williams’ wife and the law firms and individuals who have been associated with Williams’ law practice in recent, years. On September 28, 1999, the trial court, granted a motion to strike and dismissed the action with respect to all of the defendants except for John Williams and the estate of Sue Wise. The estate of Sue Wise filed a motion for summary judgment separate from that of the defendant Williams. The court granted the Wise estate’s motion on January 10, 2002. The sole remaining defendant for purposes of this appeal is John R. Williams, to whom we will refer as the defendant in this opinion.

       The complaint also contains thirteen numbered paragraphs at its beginning which we will refer to as its “preamble” because they come before the plaintiff begins separately numbering the counts of her complaint.

       This summary judgment motion was the procedural vehicle which the defendant used to assert that the complaint sounded only in tort and not in contract. The defendant argued that, since the complaint set forth all relevant dates, it mandated judgment for the defendant because all of his alleged breaches of duty occurred more than three years prior to the commencement of the action and were therefore barred by the applicable tort statutes of limitations. In addition, the plaintiff set out the dates on which she claimed to have engaged the defendant in a contract for legal services, and, as with the tort claims, we are able to ascertain the date she commenced the action against the defendant and determine from that record whether the dates set forth occurred within six years of the commencement of the action. For those reasons, supporting affidavits and counter affidavits were unnecessary for the court to determine what was essentially a legal issue.

       We note that the defendant’s answer and special defenses did not plead a specific statute of limitations, but stated generally “[e]ach and every claim of the plaintiff is barred by the applicable statute of limitations.”

       According to General Statutes § 52-576, “[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues.”

       We do not comment on the legal sufficiency of any counts of the complaint sounding in contract in terms of whether they set out each and every necessary element of a contract claim because that issue was not raised and is not before us.

       Black’s Law Dictionary (7th Ed. 1999) defines a legal duty as “a duty arising by contract or by operation of law; an obligation the breach of which would be a legal wrong.”


text:
    STATE OF CONNECTICUT v. JOSEPH HOSKIE
    (AC 22786)
    Schaller, West and Shea, Js.
    Submitted on briefs October 28, 2002
    officially released January 28, 2003

      Joseph Visone filed a brief for the appellant (defendant).

      Michael Dearington, state’s attorney, and Lisa A. Riggione and Maxine V. Wilensky, senior assistant state’s attorneys, filed a brief for the appellee (state).
   Opinion

WEST, J.

The defendant, Joseph Hoskie, appeals from the judgment of conviction, rendered following a trial to the court, of two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 and one count of unlawful restraint in violation of General Statutes § 53a-95. On appeal, the defendant claims that the trial court improperly (1) admitted prior misconduct evidence and (2) allowed the state to qualify a police officer as an expert witness where the state had not provided any notice prior to trial that the witness would testify as an expert. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. The victim resided alone in a first floor apartment in a six unit building at 466 Legion Avenue in New Haven. On the evening of March 14, 2000, the victim returned home from church at approximately 10:30 p.m. Unbeknownst to the victim, the defendant, who was a former boyfriend, had secreted himself on the second floor landing of the apartment building and was lying in wait for her. As the victim was unlocking the door to her apartment, the defendant rushed down stairs and assaulted her, pinning her against the wall and wresting the apartment keys from her. The victim attempted to get away from the defendant but was unable to overpower him. As the defendant, still holding the victim, attempted to unlock the door to the apartment, one of the victim’s neighbors, Vanessa Richardson, was drawn into the hallway by the victim’s screams. Richardson asked the victim if she wanted her to call the police, and the victim responded in the affirmative. At that point, the defendant dragged the victim from the apartment building and across a field in front of the apartment building. The defendant then forced the victim into his car.

The defendant drove the victim to Milford. He told the victim that he was going to tie her up, place her in a basement and kill her. He stopped the automobile on a side street. While parked, the defendant received a call on his cellular phone indicating that the police were looking for him. In apparent response to that call, the defendant became enraged and began hitting the victim while repeating that he hated her and that he was going to kill her. He then proceeded to strangle the victim, although he released his grip before she lost consciousness.

The defendant subsequently dragged the victim from the vehicle and retrieved a roll of masking tape from the trunk. He told the victim that he was going to tape her eyes and mouth, and repeated his threat that he was going to place her in a basement and kill her. After several failed attempts to tape the victim’s mouth, the defendant ordered her to place a call to the New Haven police department. The defendant instructed the victim to tell the police that she was dining with a male friend at a restaurant in Bridgeport and that she was fine. During the ensuing conversation, the victim told the police to disregard Richardson’s earlier telephone call requesting police assistance. Following that conversation, the police called the victim back twice in an attempt to ascertain her location and to make sure that she was unharmed.

Following those conversations with the police, the defendant took the victim to his apartment in West Haven. Despite the presence of a police patrol car circling the parking lot of his apartment building, the defendant brought the victim into his apartment. Shortly thereafter, the police knocked on the door to the apartment, and the victim, at the defendant’s direction, opened the door. The police escorted the victim outside and arrested the defendant. Additional facts will be set forth as necessary.

I

We first address the defendant’s claim that the court improperly admitted evidence of prior uncharged misconduct. Specifically, the defendant argues that the court should not have admitted evidence that he threatened the victim on several occasions prior to the incident for which he was charged. We disagree.

“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. . . . The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. . . . [Prior misconduct] [e]vidence may be admissible, however, 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. . . .

“We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh [its] prejudicial effect .... Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review . . . therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. O'Neil, 261 Conn. 49, 80-81, 801 A.2d 730 (2002).

In the present case, the prosecution sought to introduce seven incidents of prior misconduct, arguing that they were relevant to establish the defendant’s intent to injure or to terrorize the victim. Following a hearing on the state’s motion to introduce the prior misconduct evidence, the court ruled that the state would be allowed to present evidence regarding four of those seven incidents. The defendant claims that the introduction of the prior uncharged misconduct was more prejudicial than probative because the state had “ample other evidence” to establish his intent to physically harm or to terrorize the victim. We disagree.

We note that the defendant does not dispute that the prior misconduct evidence was relevant to the issue of intent. His sole claim regarding that evidence is that because it was cumulative of other, more probative evidence of his intent to harm or to terrorize the victim, the prejudicial effect of that evidence outweighed its probative value. Even if we were to conclude that the prior misconduct evidence was cumulative and that its probative value thereby was diminished, the defendant retains the burden of showing that the probative value of that evidence, however minimal, was outweighed by the danger of unfair prejudice to him. In assessing the admissibility of prior misconduct evidence “[t]he problem is . . . one of balancing the actual relevancy of [that evidence] in light of the issues and the other evidence available to the prosecution against the degree to which the [fact finder] will probably be roused by the evidence.” (Internal quotation marks omitted.) State v. Baldwin, 224 Conn. 347, 357, 618 A.2d 513 (1993).

In the present case, it is unlikely that the introduction of the prior misconduct evidence prejudiced the defendant. The prior misconduct evidence introduced by the state, while probative on the issue of intent, involved relatively minor incidents in comparison to the details of the assault and kidnapping with which the defendant was charged. Those incidents of prior misconduct involved isolated and short-term confrontations during which the defendant grabbed the victim and pulled her hair, shoved her and made a threatening statement regarding her to a third person.

By contrast, the conduct for which the defendant was convicted involved his kidnapping of the victim, and continuous physical and mental abuse of her during a three hour period. The “other evidence” relating to intent cited by the defendant consisted of testimony by the victim and Richardson regarding his words and actions during the kidnapping and assault. The victim testified that the defendant dragged her across a field and forced her into his car. She testified that the defendant repeatedly stated that he was going to kill her. She stated that at one point, the defendant, while repeating that he was going to kill her, slapped her several times, grabbed her by the hair and then strangled her until she nearly lost consciousness. The victim testified that the defendant subsequently attempted to tape her mouth shut and that he stated that he was going to tie her up, place her in a basement and kill her. Richardson, the victim’s neighbor, testified that while responding to the victim’s screams, she witnessed the victim struggling with the defendant in the hallway. Richardson stated that she saw the defendant grab the victim by the hair and drag her out of the apartment, intentionally striking her head against the banister as they exited the building. Given the potent character of the evidence regarding the charged conduct, we conclude that the nature of the prior misconduct evidence was unlikely to arouse emotions of hostility and prejudice on the part of the fact finder. See State v. Greene, 69 Conn. App. 463, 472, 794 A.2d 1092 (admission of evidence harmless error where prejudicial impact of challenged evidence overshadowed by graphic nature of unchallenged evidence), cert. denied, 260 Conn. 934, 802 A.2d 89 (2002).

Moreover, because the case was tried to the court rather than to a jury, the defendant must overcome a greater presumption regarding the likelihood that the fact finder would misuse such evidence in a manner that could unduly prejudice the defendant. “A judge is presumed to have performed his duty properly unless the contrary appears.” Brash v. Brash, 20 Conn. App. 609, 612, 569 A.2d 44 (1990). In the present case, the judge carefully weighed the probative value of all the prior misconduct evidence that the state wanted to introduce and admitted only four of the seven acts, concluding that those incidents were relevant on the issue of intent because they involved acts or threats directed at the actual victim in the present case. Nevertheless, having allowed the prior misconduct evidence, the court’s memorandum of decision and its statements during the sentencing hearing emphasized the events underlying the criminal charges involved in the present case. From the record before us, we can discern no prejudicial impact resulting from the admission of the challenged evidence. Accordingly, we conclude that the court did not abuse its discretion in admitting the evidence of prior misconduct.

II

The defendant next claims that the court improperly allowed a state’s witness to testify as an expert when that witness had not been disclosed as an expert prior to trial. The defendant claims that allowing that expert testimony (1) violated the rules applicable to criminal discovery pursuant to Practice Book § 40-11 (a) (4) and (2) infringed on his right to confrontation as guaranteed by the sixth amendment to the United States constitution. We disagree.

The following additional facts are necessary for our disposition of the defendant’s claim. The state called Detective John Valleca of the New Haven police department as a witness during its case-in-chief. Valleca testified that during his initial interview with the victim, she was not very communicative, and that she appeared frightened and was shaking. The prosecution then asked Valleca whether the fact that the victim was uncommunicative was a surprise to him. Defense counsel objected on the ground of relevance, and the court sustained the objection. The prosecution then offered to qualify Valleca as an expert witness on the basis of his background and experience in dealing with victims of domestic abuse. Defense counsel objected on the ground that the state had not disclosed the witness as an expert. The court overruled that objection, noting that although Valleca was not disclosed specifically as an expert, he nevertheless was disclosed as a witness prior to trial. Following his qualification as an expert witness, Valleca testified that it was his experience that victims of domestic abuse are frequently uncommunicative and frightened during initial interviews.

A

“We review claims of improper admission of expert testimony under an abuse of discretion standard.” (Internal quotation marks omitted.) State v. Pereira, 72 Conn. App. 107, 120, 806 A.2d 51 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003). “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 654, 805 A.2d 823, cert denied, 262 Conn. 917, 811 A.2d 1293 (2002).

The defendant concedes that the state disclosed Valleca as a witness prior to the start of trial and does not dispute that the state laid an adequate foundation to qualify Valleca as an expert at trial. The defendant argues, however, that his right to mandatory discovery pursuant to Practice Book § 40-11 (a) (4) was violated when the court allowed the state to qualify Valleca as an expert witness and allowed Valleca to testify as such when he had not been disclosed on the witness list specifically as an expert. We disagree.

We note at the outset that the defendant’s reliance on Practice Book § 40-11 (a) (4) is misplaced. Section 40-11 (a) (4) does not concern disclosure of expert witnesses. Rather, that section concerns disclosure of pretrial reports or statements of experts that are intended for use by the prosecuting authority as evidence at trial. As such, that section has no relevance to the present case, where the defendant challenges the admission of expert testimony during trial.

Disclosure of witnesses in criminal proceedings is governed by Practice Book § 40-13. Practice Book § 40-13 (a) provides in relevant part: “Upon written request by a defendant . . . the prosecuting authority . . . shall promptly . . . disclose to the defendant the names and, subject to the provisions of subsections (g) and (h) of this section, the addresses of all witnesses that the prosecuting authority intends to call in his or her case in chief and shall additionally disclose to the defendant: (1) any statements of the witnesses in the possession of the prosecuting authority or his or her agents, including state and local law enforcement officers, which statements relate to the subject matter about which each witness will testify . . . .” That rule does not require the state to disclose either the nature of the witness’ proposed testimony or whether that witness will be testifying as a fact witness or as an expert witness. In the present case, the state disclosed to the defendant both Valleca’s name and the official report that he prepared in connection with his investigation. In doing so, the state did all that was required of it under the applicable rules of practice.

Accordingly, we conclude that the court did not abuse its discretion in allowing Valleca to testify as an expert witness. See State v. Henry, supra, 72 Conn. App. 652-56 (where detective not designated specifically as expert prior to trial, court did not abuse discretion in allowing detective to testify as expert on matter within professional experience); Annecharico v. Patterson, 44 Conn. App. 271, 278-79, 688 A.2d 1341 (1997) (where former state police trooper disclosed as fact witness prior to trial, court did not abuse discretion in allowing former trooper’s expert opinion testimony regarding point of impact of automobile collision on basis of observation of accident scene).

B

The defendant also claims that the eleventh hour disclosure of Valleca as an expert and the admission of his expert testimony improperly infringed on the defendant’s right of confrontation as guaranteed by the sixth amendment to the United States constitution. Specifically, the defendant claims that the court’s failure to grant a continuance deprived him of the opportunity to cross-examine Valleca effectively concerning the conclusion to be drawn from the victim’s unresponsive demeanor. We are not persuaded.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination .... The right of confrontation is preserved if defense counsel is permitted to expose to the [trier of fact] the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) State v. Abernathy, 72 Conn. App. 831, 836, 806 A.2d 1139, cert. denied, 262 Conn. 924, 814 A.2d 379 (2002).

The defendant failed to request a continuance upon learning that Valleca would testify as an expert witness. The defendant also did not request a continuance following Valleca’s testimony. The defendant does not cite any cases suggesting that a court has an obligation to inquire sua sponte if a party desires a continuance. Absent a request for a continuance, the court reasonably could have assumed that the defendant was satisfied with going forward with the trial at that time, and we cannot now speculate as to how the court would have responded to a timely request for a continuance.

Moreover, the record before us discloses that the constitutional standard of confrontation was satisfied and that the defendant was not prejudiced by the lack of a continuance. The defendant was given ample opportunity to cross-examine Valleca and to attempt to undermine the credibility of his testimony. The record reveals that the defendant used that opportunity to good advantage. For example, the defendant established that Valleca did not include in his report the fact that the victim was rmcommunicative and appeared to be frightened despite Valleca’s having testified during direct examination that such demeanor was typical of domestic abuse victims. He also elicited from Valleca the fact that the victim did not appear to have any bruises or other evidence of physical injury when he attempted to interview her. He also questioned Valleca concerning his failure to examine the defendant for evidence that he had assaulted the victim. Thus, it does not appear from the record before us that the defendant’s cross-examination of Valleca was constitutionally impaired.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty ol' kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with the intent to (A) inflict physical injury upon him ... or (C) terrorize him . . . .”

       The first incident of prior misconduct that the court heard about involved an encounter between the parties on December 17, 1999. The victim had gone to the home of (he defendant’s brother to deliver some of the defendant’s mail, and the defendant confronted her regarding the ownership of a car. During the argument, the defendant grabbed the victim by the collar and began yelling, “I will hurt you.” On December 22, 1999, the defendant went to the victim’s workplace and refused to leave the premises, remaining there for approximately one hour despite requests for him to leave. When he eventually did depart, he gestured toward the victim as if he were going to grab her by the face. Later that same day, the defendant was waiting in the parking lot of the victim’s workplace. Although the police were called, the defendant left prior to their arrival. The final incident involved a telephone call that the defendant placed to pastor Robert Mills, who was a pastor to both the defendant and the victim. During that conversation, the defendant stated that he was going to harm the victim.

       Practice Book § 40-11 (a) provides in relevant part: “Upon written request by a defendant . . . the prosecuting authority . . . shall promptly . . . disclose in writing the existence of and allow the defendant ... to inspect, copy, photograph and have reasonable tests made on any of the following items . . .
      “(4) Any reports or statements of experts made in connection with the offense charged including results of physical and mental examinations and of scientific tests, experiments or comparisons which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial . . . .”


text:
    STATE OF CONNECTICUT v. GABRIEL BLOOMFIELD
    (AC 22038)
    Foti, Mihalakos and Bishop, Js.
    Argued October 25, 2002
    officially released January 28, 2003

      Gerald E. Bodell, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Gabriel Bloomfield, appeals from the judgment of conviction, rendered after a trial to the court, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The defendant asserts that the conviction is flawed because the court (1) failed to advise him of his constitutional right to a jury trial and (2) found him guilty when the evidence was insufficient to establish guilt beyond a reasonable doubt. We are not persuaded and affirm the judgment of the trial court.

The following facts are pertinent to our resolution of the defendant’s appeal. The defendant had been a friend of the victim, Alvin Slaughter, for a number of years. On April 10, 2000, at approximately midnight, the victim entered a bar where the defendant was present. An argument ensued, and the two men then departed. The victim went back to his apartment where his cousins, Bernard Foster and Zachary Dixon, were staying. As all three were about to depart, the defendant knocked on the door, and the victim answered. The victim denied the defendant entry into the apartment. The defendant then grabbed the victim and pushed him into the door. A struggle occurred, and the victim was stabbed several times. Dixon came to the victim’s aid by hitting the defendant, who then fell down stairs. The victim was taken to a hospital and treated for multiple stab wounds. His left lung had collapsed partially, and his spleen and left kidney were bleeding.

The defendant also appeared at the hospital seeking treatment for a thumb wound. Renato Crea, a Waterbury police officer, was dispatched to the hospital to investigate the stabbing and noticed that the defendant matched the description given of the assailant. Crea arrested the defendant.

At trial, the defendant claimed he stabbed the victim in self-defense. He further claimed that he had an open retractable knife in his hand when he knocked on the victim’s door, but that the knife was being used only to open a marijuana blunt. He further testified that he used the knife only when he was attacked by the victim and the cousin. On May 18, 2001, the defendant was sentenced to fifteen years in prison, with five years special parole.

I

The defendant first claims that the court failed to canvass him properly at trial regarding his right to have a jury trial.

The following additional facts are necessary for our resolution of the defendant’s claim. On April 10, 2000, the defendant was arraigned, at which time he and other arraignees were advised, inter alia, of their right to plead not guilty and to have a trial by court or by jury. Subsequently, the defendant entered a not guilty plea and elected to be tried by a jury. On August 30, 2000, the defendant’s attorney sought to change his client’s election to a court trial. At that time, the court thoroughly canvassed the defendant that this would be the defendant’s final election. The court then found that the defendant knowingly, intelligently and voluntarily waived his right to a jury trial. On December 11 and 19, 2000, the defendant sought a jury trial, but the motions were denied in both instances.

“The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case.” (Internal quotation marks omitted.) State v. Chapman, 46 Conn. App. 24, 30, 698 A.2d 347, cert. denied, 243 Conn. 947, 704 A.2d 800 (1997), cert. denied, 523 U.S. 1063, 118 S. Ct. 1393, 140 L. Ed. 2d 652 (1998). “The determination of whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Internal quotation marks omitted.) State v. Henton, 50 Conn. App. 521, 528, 720 A.2d 517, cert. denied, 247 Conn. 945, 723 A.2d 322 (1998).

This case is governed by our decisions in State v. Chapman, supra, 46 Conn. App. 24, and State v. Tangari, 44 Conn. App. 187, 688 A.2d 1335, cert. denied, 241 Conn. 901, 693 A.2d 304, cert. denied, 522 U.S. 867, 118 S. Ct. 177, 139 L. Ed. 2d 118 (1997). Because those decisions fully address the dispositive issues raised in the first claim in this appeal and provide the applicable law, and given that the defendant was canvassed fully as to his constitutional right to a jury trial and waived that right, we are bound by such precedent. We conclude that in light of the totality of the circumstances on the record, the defendant waived his right to a jury trial and that his waiver was made knowingly, intelligently and voluntarily.

II

The defendant’s second claim is that the evidence was insufficient to find him guilty of assault in the first degree. “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the [finder of fact] if there is sufficient evidence to support the [finder of fact’s] verdict.” (Internal quotation marks omitted.) State v. Oberdick, 74 Conn. App. 57, 61, 810 A.2d 296 (2002).

The state presented evidence that the defendant attacked the victim and that the defendant had stated that he would kill the victim. There was testimony by Kent Burgwardt, the emergency room physician who treated the victim, that the victim’s injuries were life threatening. “[The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Gauthier, 73 Conn. App. 781, 787, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003). Therefore, we conclude that there was sufficient evidence before the court to convict the defendant.

The judgment is affirmed.

       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