author: DUPONT, J.

text:
    WILLIAM ZENON v. R. E. YEAGHER MANAGEMENT CORPORATION ET AL.
    (AC 18659)
    Lavery, Landau and Dupont, Js.

      Argued January 11
    officially released April 18, 2000

      Stanley Falkenstein, with whom was Julia Morris Paul, for the appellant (plaintiff).

      Mark R. Brouillard, with whom was Colleen Creevy Cording, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiff, William Zenon, appeals from the judgment rendered in favor of the defendants following a trial to the court in this action pertaining to the lease of certain real property. On appeal, the plaintiff claims that the court improperly (1) found under Massachusetts law that a clause in a lease executed by the parties was a limitation rather than a condition subsequent, (2) concluded that a promissory note executed by one of the defendants was unenforceable under Massachusetts law and (3) dismissed the plaintiffs fraudulent conveyance claim. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff, a Massachusetts real estate broker, owned property at 11 Worcester Road, Webster, Massachusetts. A restaurant building was located on the property. The defendant Robert Yeagher (Yeagher) responded to an advertisement for the sale or lease of the premises and met with the plaintiff to discuss these possibilities. The parties eventually agreed that the named defendant, R. E. Yeagher Management Corporation (corporation), would lease the property to operate a pub style facility on the premises. During their meeting, the parties discussed the corporation’s procuring a liquor license. The court found that “[i]t is essential to a pub that alcoholic beverages be served there.” The court found that “[t]he plaintiff informed Y eagher that he held the liquor license for the restaurant and would transfer the license to the corporation after the lease agreement was signed. Unknown to Yeagher, the liquor license was held by the former tenant and not the plaintiff at that time.”

On May 19, 1994, a lease agreement was entered into between the plaintiff, as landlord, and the corporation, as tenant, with Yeagher personally guaranteeing the lease. The lease was for a period of five years. Section 37 of the lease, titled, “Occupancy Commencement Condition,” is the subject of the plaintiffs first claim on appeal. It provides: “37.1 Whereas the Tenant wishes to purchase from the Landlord the right and title of the Landlord’s Liquor License under a separate ‘Purchase and Sale Agreement’ and under a separate ‘Promissory Note,’ which License shall be resold back to the Landlord under the aforesaid agreements.

“37.2 The Landlord hereby covenants and agrees to refund the Tenant’s security deposit of Ten Thousand ($10,000.00) Dollars in full, in the event that a Liquor License is not in the name of the Tenant and in use and effect on the Leased Premises not later than three (3) months from the date of commencement of the Lease term, then this Lease Agreement shall terminate and come to end.”

Yeagher took possession of the premises on the lease commencement date, May 19, 1994. He “engaged in substantial steps to prepare for operation, such as making structural repairs and procuring additional equipment.” Yeagher also sought to procure a liquor license in the corporation’s name. In August, 1994, the plaintiff obtained the license to the restaurant on the premises from his foimer tenant’s bankruptcy estate at an auction conducted by the bankruptcy trustee. Thereafter, Yeagher applied for approval of the transfer of the license. In October, 1994, the local authority approved his application. The state liquor authority, the Massachusetts alcoholic beverage control commission, however, disapproved the transfer because the corporation was deemed to be financially unsuitable. Yeagher reapplied, but his second application was denied by the local authority.

Despite Yeagher’s failure to obtain a liquor license, the corporation remained in possession of the premises. From August 20,1994, through April, 1995, the corporation paid no rent. Yeagher consulted with his attorney about drafting a new lease agreement, but no new agreement was drawn.

When Yeagher’s attempts to obtain a liquor license failed, the parties devised a plan for the operation of the pub whereby Yeagher would operate the pub under the plaintiffs liquor license, with Yeagher acting as “manager” and the plaintiff as “owner.” The court found that “the plaintiff and Yeagher engaged in an unlawful ruse to deceive the liquor control authorities. The plaintiff pretended that it was he who owned the pub instead of Yeagher’s corporation, and Yeagher pretended that he was merely a manager rather than the principal shareholder of the corporation that owned the business. The parties went so far as to create a dummy checking account in the plaintiffs name to be used when necessary to maintain the false appearance of the plaintiffs ownership of the business.”

To carry this plan forward, the plaintiff had Yeagher execute a promissory note, payable to the plaintiff, in the amount of $16,280. Yeagher testified that he signed the note because he wanted to operate the pub; the plaintiff said that he needed the note because he was having trouble with his bank and that it was agreed that the amounts paid on the note would come from the sales of the restaurant. Yeagher paid the plaintiff $9440 on the note, but not the remainder due under its terms.

The pub opened in May, 1995. Within a few months, the corporation missed rental payments, and the plaintiff locked Yeagher out of the building on August 6, 1995. About three weeks later, fire damaged the building and its contents.

On April 26, 1996, the plaintiff filed a three count amended complaint. In count one, the plaintiff sought to collect the balance due on the promissory note. In count two, the plaintiff sought to collect rental payments from August, 1994, through August, 1995, and damages under the lease agreement. Count three stated a claim for fraudulent transfer, alleging that Yeagher fraudulently transferred real property to his wife, the defendant Marianne Yeagher, with an intent to defraud and prevent the plaintiff from securing payment on his debt. The defendants thereafter filed an answer, amended special defenses and an amended six count counterclaim.

A trial to the court was held on May 5 and 6, 1998. In a memorandum of decision dated July 8, 1998, the court ruled in favor of the defendants on all counts of the amended complaint and on counts five and six of the amended counterclaim, and for the plaintiff on counts one through four of the amended counterclaim. Only the plaintiff has appealed.

We first address the issue of what law governs our resolution of this case. Both the lease agreement and the promissory note contained choice of law provisions, providing that they shall be construed and enforced in accordance with the laws of the commonwealth of Massachusetts. At trial, the parties argued, and the court agreed, that Massachusetts substantive law governed the parties’ claims except for the allegation of fraudulent transfer, which pertained to Connecticut realty.

“Contracts clauses which require the application of the laws of other states upon breach or dispute are recognized as proper in Connecticut.” Syncsort, Inc. v. Indata Services, 14 Conn. App. 481, 484, 541 A.2d 543, cert. denied, 209 Conn. 804, 548 A.2d 443 (1988). Accordingly, we are guided by Massachusetts substantive law in deciding the plaintiffs claims concerning the promissory note and the lease. We note, however, that although we apply the substantive law of Massachusetts to decide these claims, the appropriate standard of review is a procedural issue and is governed by Connecticut law. See State v. Diaz, 226 Conn. 514, 557, 628 A.2d 567 (1993) (Berdon, J., dissenting), citing Clisham v. Board of Police Commissioners, 223 Conn. 354, 370, 613 A.2d 254 (1992); Burton v. Burton, 189 Conn. 129, 139 n.8, 454 A.2d 1282 (1983).

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct . . . .” (Internal quotation marks omitted.) Id., 236. Here, the trial court determined that the contractual commitments of the parties were a question of law to be decided in accordance with Massachusetts law. We therefore afford plenary review to these claims, the review required in such cases according to Connecticut law.

I

The plaintiff first claims that the court improperly found that the termination clause in the lease was a limitation rather than a condition subsequent. We disagree.

Count two of the plaintiffs amended complaint alleged a claim for unpaid rent and damages under the lease. The court concluded that the lease automatically terminated by virtue of its terms on August 20, 1994, and therefore the plaintiff could not collect under the lease because his claims related to events that occurred after August 20, 1994. In reaching this conclusion, the court relied on clause 37.2 of the lease, which provides: “The Landlord hereby covenants and agrees to refund the Tenant’s security deposit of Ten Thousand ($10,000.00) Dollars in full, in the event that a Liquor License is not in the name of the Tenant and in use and effect on the Leased Premises not later than three (3) months from the date of commencement of the Lease term, then this Lease Agreement shall terminate and come to end.”

In determining whether the language of the lease was a limitation that would terminate the lease upon the occurrence of a contingency without the necessity of notice or other confirmatory action or whether the language created a condition subsequent, which would require some further action such as notice to terminate the lease, the court looked to the lease agreement itself. In its memorandum of decision, the court concluded that “[c]lause 37.2 unequivocally states that upon failure to transfer the liquor license to the corporation within three months ‘this Lease Agreement shall terminate and come to end. ’ The agreement was drafted by the plaintiff and contains no notice or other requirement before termination under clause 37.2. In contrast, other provisions of the agreement contained notice before termination language, e.g., clause 16. The intent of the parties as evidenced by the unambiguous wording of the agreement was that nontransfer of the liquor license within three months ends the lease.”

The crux of the plaintiffs claim is that the court misconstrued the lease provision. Specifically, the plaintiff claims that the court improperly read into the lease the requirement of a transfer of the liquor license. The plaintiff claims that under the unambiguous language of the lease provision, there is no requirement that a transfer of the liquor license occur, and that the court improperly relied on statements made surrounding the creation of the lease. According to the plaintiff, the lease implicitly requires that if the tenant wants to terminate the lease, it must notify the landlord for the security deposit to be returned. The plaintiff claims that the lease provision created a condition subsequent requiring some confirmatory act on the part of the defendants, and that because the defendants failed to notify the plaintiff of their intent to terminate the lease, the lease remained in full force and effect.

“A lease for a term of years may properly be made subject to termination at a specified time, upon the occurrence of an event or events within the control of the party electing to terminate.” Loitherstein v. International Business Machines Corp., 11 Mass. App. 91, 93, 413 N.E.2d 1146 (1980), review denied, 383 Mass. 890, 441 N.E.2d 1042 (1981). Such a provision creates a conditional limitation “if it is declared in the lease, that the same shall expire on the happening of any contingency. In such cases, whenever the contingency happens, the lease is determined by its own limitation, without any entry or other act to be done by the lessor.” (Internal quotation marks omitted.) Markey v. Smith, 301 Mass. 64, 69, 16 N.E.2d 20 (1938).

“Conditions subsequent are generally held to be for the benefit of the lessor or his assigns, and confer upon him or them an option whether to enter upon breach of condition or to allow the lessee to continue in possession under the lease.” Id., 70. “The provision for reentry is . . . the distinctive characteristic of an estate upon condition; and when it is found that by any form of expression the grantor has reserved the right, upon the happening of any event, to reenter, and thereby revest in himself his former estate, it may be construed as such.” (Internal quotation marks omitted.) Id., 69. “The distinction between an estate upon condition and the limitation by which an estate is determined upon the happening of some event is a familiar one. In the latter case the estate reverts to the grantor, or passes to the person to whom it is granted by limitation over, upon the mere happening of the event upon which it is limited, without entry or other act; while in the former, an entry upon breach of condition is requisite to revest the estate.” Id., 71.

“[A] contract is to be construed to give a reasonable effect to each of its provisions if possible.” McMahon v. Monarch Life Ins. Co., 345 Mass. 261, 264, 186 N.E.2d 827 (1962). “The object of the court is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose.” USM Corp. v. Arthur D. Little Systems, Inc., 28 Mass. App. 108, 116, 546 N.E.2d 888 (1989). “A lease is to be read in the light of the circumstances of its execution . . . .” Robert Industries, Inc. v. Spence, 362 Mass. 751, 753, 291 N.E.2d 407 (1973). “It is fundamental that, in the construction of the language of a lease, it is proper to read together the different provisions therein dealing with the same subject matter, and where possible all the language used should be given a reasonable meaning. . . . Every deed is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time it was executed.” (Citation omitted; internal quotation marks omitted.) Markey v. Smith, supra, 301 Mass. 70. “Expressions in our cases to the effect that evidence of circumstances can be admitted only after an ambiguity has been found on the face of the written instrument have reference to evidence offered to contradict the written terms.” Robert Industries, Inc. v. Spence, supra, 754.

Here, the court concluded that “[t]he intent of the parties as evidenced by the unambiguous wording of the agreement was that nontransfer of the liquor license within three months ends the lease.” While clause 37.2 in the lease did not specifically mention the “transfer” of a liquor license, this clause must be read in conjunction with the immediately preceding clause, clause 37.1, which provides that the tenant wishes to purchase from the landlord the right and title to the landlord’s liquor license under a separate agreement. Both clauses appear under the same section of the lease concerning the lease’s commencement. Construing the provisions together, it can be concluded only that upon the failure of the transfer of the liquor license from the landlord to the tenant within the first three months of the commencement of the lease, the lease terminated.

Furthermore, clause 37.2 provides that “in the event that a Liquor License is not in the name of the Tenant and in use and effect on the Leased Premises not later than three (3) months from the date of commencement of the Lease term” the lease shall terminate. It is undisputed that a liquor license was not in the name of the tenant within three months from the commencement of the lease.

Clause 37.2 of the lease does not contain a notice or other requirement prior to termination of the lease. The fact that other provisions of the lease contained such language of condition subsequent indicates that clause 37.2 was not intended to contain such language. The court properly found that the language in the lease was a conditional limitation, which caused the lease to terminate upon the occurrence of the contingency, namely, the failure of a liquor license to be in the tenant’s name and in use within three months of the commencement of the lease. This interpretation is consistent with the language, background and purpose of the lease. Yeagher, through his corporation, intended to operate a pub style facility on the premises, and it was essential to the operation of such facility that Yeagher be able to serve alcoholic beverages. It is evident that the intent of the parties, as manifested by the language used in the lease, was to terminate the arrangement in the event that the defendants could not serve alcohol on the premises, and thus, not operate a pub style facility.

The plaintiff also claims that the court improperly found that the defendants did not waive the termination clause of the lease. The plaintiff claims that even if the lease automatically terminated upon the failure of a liquor license to be in the name of the corporation within three months, the defendants waived this provision by failing to make a timely demand for return of the security deposit. The plaintiff claims that the parties, by their words and conduct, intended to continue their relationship. We are not persuaded.

The court found “that the defendants never waived this termination clause. The plaintiff knew the defendants sought legal advice regarding the creation of a new agreement and refund of the security deposit. Significantly, the defendants ceased paying rent until the pub opened for business the following year. Consequently, the lease expired on August 20, 1994.”

Under the facts and circumstances of this case, we are unable to conclude that the court’s finding of no waiver was improper. “[W]aiver implied by a person’s conduct. . . must be unequivocal and must allow room for no other explanation . . . .” Boston Helicopter Charter, Inc. v. Agusta Aviation Corp., 767 F. Sup. 363, 372 (D. Mass. 1991). Here, it was not shown that the defendants unequivocally intended to waive the termination clause in the lease.

Because the lease was no longer in effect after August 20,1994, and the defendants did not waive the termination clause, the court properly found for the defendants on this count.

II

The plaintiff next claims that the court improperly found that the promissory note was unenforceable and rendered judgment for the defendants on count one of the amended complaint. The plaintiff claims that the court improperly relied on Hastings Associates, Inc. v. Local 369 Building Fund, Inc., 42 Mass. App. 162, 675 N.E.2d 403, review denied, 424 Mass. 1108, 678 N.E.2d 1334 (1997), in deciding this claim. A resolution of this claim requires us, in part, to review the court’s findings of fact, which we review under the clearly erroneous standard; Powers v. Olson, 252 Conn. 98, 104-105, 742 A.2d 799 (2000); and to determine whether the court properly determined that Hastings Associates, Inc., governs this case.

The following additional facts are necessary to our resolution of this claim. In count one of the amended complaint, the plaintiff sought to collect from Yeagher on a promissory note. The court, however, concluded that the note was unenforceable. The basis for the court’s conclusion was its finding that the plaintiff and Yeagher had conspired to defraud the liquor control authorities after Yeagher’s attempts to secure a liquor license failed. The court concluded that “[ojperation of the pub by means of the deceit described above rendered this enterprise unlawful under Massachusetts liquor laws. The question arises as to whether a coconspirator can expect a court to enforce agreements which are made to facilitate, foster, or support patently illegal activity. The court holds that, under Massachusetts law, such agreements are unenforceable.”

The court relied on Hastings Associates, Inc., and 2 Restatement (Second), Contracts §§ 181 and 182 (1981), in reaching its decision. In finding that the promissory note was unenforceable, the court stated: “The present case is indistinguishable from Hastings [Associates, Inc.]. The sale of alcoholic drinks is the essence of a pub. The promissory note served to undermine the Massachusetts liquor licensing system and permit prohibited conduct to occur. Both parties willingly and knowingly engaged in this subterfuge in order to achieve their own goals despite the strong public policy concerning control over who may sell alcoholic refreshments. . . . The promissory note was integral to implement the unlawful operation of the pub because the plaintiff demanded its creation as part of the transaction.”

Hastings Associates, Inc., involved a claim for breach of a lease agreement. On appeal, the defendant claimed that the plaintiffs contract claim was barred because the lease agreement was predicated on an illegal transfer of the defendant’s liquor license. Hastings Associates, Inc. v. Local 369 Building Fund, Inc., supra, 42 Mass. App. 173. The Massachusetts Appeals Court agreed with the defendant and concluded that the agreement was unenforceable. Id. The court found that the parties’ actions pursuant to the lease agreement effectively resulted in an illegal transfer of the defendant’s liquor license to the plaintiff in violation of Mass. Gen. Laws c. 138, §§ 2 and 23. Id., 174. The court, however, held that the finding of an illegality alone was not sufficient to invalidate the agreement. Id.,175. “[CJourts do not go out of their way to discover some illegal element in a contract or to impose hardship upon the parties beyond that which is necessary to uphold the policy of the law .... We must examine and weigh all of the circumstances: what was the nature of the subject matter of the contract; what was the extent of the illegal behavior; was that behavior a material or only an incidental part of the performance of the contract . . . what was the strength of the public policy underlying the prohibition; how far would effectuation of the policy be defeated by denial of an added sanction; how serious or deserved would be the forfeiture suffered by the plaintiff, how gross or undeserved the defendant’s windfall.” (Citations omitted; internal quotation marks omitted.) Id.

The court in Hastings Associates, Inc., then analyzed these factors in light of the facts of that case. The court found that the plaintiffs illegal use of the license was not incidental to the plaintiffs claim and that this element so permeated the parties’ transaction as to be controlling. Id., 176. As to the plaintiffs claim that it would suffer a substantial forfeiture and the defendant a windfall, the court stated: “While the cases bespeak a judicial tolerance for relatively insubstantial violations of licensing statutes or regulations, particularly when failure to enforce the contract results in substantial unfairness to one or both contracting parties, the public interest in freedom of contract is sometimes outweighed by public policy, and in such cases the contract will not be enforced.” (Internal quotation marks omitted.) Id., 177. Citing 2 Restatement (Second), supra, § 181, the court concluded that the liquor licensing requirements are for the protection of the public and common good; Hastings Associates, Inc. v. Local 369 Building Fund, Inc., supra, 42 Mass. App. 177-78; and “[h]ere, where the plaintiffs application for its own license was denied, the parties by their arrangement effectively substituted their own judgment for that of the local licensing authority. To permit the plaintiff to recover under its illegal arrangement would reward it for its illegal conduct and would contravene public policy by elevating the plaintiffs private interests over those of the public.” Id., 178.

The plaintiff in the present case claims that the trial court’s reliance on Hastings Associates, Inc., was misplaced because that case is distinguishable. The plaintiff claims that unlike in Hastings Associates, Inc., the sale of a liquor license was not inseparable from the lease of the premises and that the elements for an illegal transfer of a liquor license were not present here. The plaintiff also claims that unlike in Hastings Associates, Inc., where the lease agreement itself was predicated on illegal conduct, the lease agreement here was not found to be illegal by the court. Finally, the plaintiff claims that the illegal conduct here was not a material part of the contract between the parties, namely, the lease agreement.

The plaintiff, however, misunderstands the issue before the court. Count one of the amended complaint alleged nonpayment of a promissory note executed by the plaintiff and Yeagher. In deciding whether the note was enforceable, the court was confronted with the issue of whether the note was executed to advance the illegal conduct of the parties and whether the plaintiff should be allowed to assert in court any right based on an illegal transaction. The plaintiff asserts that the issues are whether the lease between the plaintiff and the corporation was valid and whether the parties’ illegal conduct was material to the lease agreement. These issues are irrelevant.

We agree with the trial court that the holding in Hastings Associates, Inc., governs this case. Here, the parties twice unsuccessfully attempted to transfer the liquor license to the premises from the plaintiff to the corporation. Thereafter, and subsequent to the execution of the lease, the parties devised a plan whereby Yeagher would operate the pub under the plaintiffs liquor license as “manager” with the plaintiff as “owner.” The court found this to be an “unlawful ruse to deceive the liquor control authorities.” Yeagher testified that as part of the arrangement, the plaintiff demanded that Yeagher execute a promissory note payable to the plaintiff in the amount of $16,280. The execution of this note was integral to the implementation of the unlawful operation of the facility. The parties, by their conduct, effected an illegal transfer of the plaintiffs liquor license to the defendants and effectively substituted their judgment for that of the licensing authority. Although Hastings Associates, Inc., involved a claim pursuant to a lease, its principles apply to the validity of the promissory note here in question. Accordingly, pursuant to Hastings Associates, Inc., the plaintiff could not recover under its illegal arrangement. The judgment of the trial court on this count was proper.

Ill

The plaintiffs final claim is that the court improperly dismissed count three of the amended complaint. Count three alleged a claim for fraudulent conveyance, liability for which depended on the defendants’ liability as to counts one and two. The court held that because it found for the defendants on counts one and two, the issue of fraudulent conveyance in count three was rendered nugatory. The plaintiff claims that if he succeeds on appeal as to his claims concerning counts one and two, then count three should be reinstated on remand. Because we have concluded that the judgment of the trial court as to counts one and two was proper, this claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this case are Robert Yeagher, Marianne Yeagher and R. E. Yeagher Management Corporation.

       This appeal concerns the judgment for the defendants on the plaintiff s amended complaint only, as the plaintiff has not raised any claims as to the judgment for the defendants on counts five and six of their counterclaim awarding Yeagher and the corporation $10,000 for the plaintiffs failure to return the security deposit.

       Section 181 of the Restatement (Second) of Contracts provides: “If a party is prohibited from doing an act because of his failure to comply with a licensing, registration or similar requirement, a promise in consideration of his doing that act or of his promise to do it is unenforceable on grounds of public policy if (a) the requirement has a regulatory purpose, and (b) the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DAVID KENNETT v. COMMISSIONER OF CORRECTION
    (AC 18931)
    Schaller, Spear and Stoughton, Js.
    Argued December 1, 1999
    officially released April 18, 2000

      Donald D. Dakers, special public defender, for the appellant (petitioner).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

In the criminal case that gave rise to the petitioner’s petition for a writ of habeas corpus, the petitioner, David Kennett, was convicted of nine counts of sexual assault in the first degree, one count of attempt to commit sexual assault in the first degree, two counts of kidnapping in the first degree, two counts of threatening, two counts of sexual assault in the fourth degree and one count of interfering with the execution of a search warrant. The petitioner was sentenced to a total effective sentence of eighty-two years, execution suspended after fifty-four years. This court affirmed the judgment of conviction in State v. Kennett, 25 Conn. App. 801, 592 A.2d 434 (1991).

In his amended petition, the petitioner alleged that he was denied his state and federal constitutional rights to effective assistance of counsel on the grounds that his trial counsel (1) failed to require the court to be present at and preside during the voir dire of potential jurors, (2) failed to request DNA testing to establish that the petitioner did not have sexual relations with the victims, (3) refused to let the petitioner testify, (4) failed to move for a mistrial when the prosecutor advised the court that the mother of one of the victims had told the prosecutor that she recognized one of the jurors as someone who knew the father of one of the victims and (5) failed to file a motion to compel the state to produce a white sweatshirt that was worn by one of the victims. The habeas court dismissed the petition and denied the petitioner’s subsequent petition for certification to appeal.

The habeas court’s dismissal of the petition for a writ of habeas corpus was predicated on (1) the voir dire having taken place prior to our Supreme Court’s decision in State v. Patterson, 230 Conn. 385, 400, 645 A.2d 535 (1994), which imposed the requirement that the trial judge be present to oversee voir dire, (2) the lack of sufficient substance for DNA testing, (3) credibility determinations with respect to the witnesses, (4) the fact that the subject juror was an alternate who never participated in deliberations and (5) uncertain testimony as to whether a white sweatshirt, a sweater or a blouse had been worn by one of the victims. The court found that the petitioner had failed to rebut the strong presumption that “counsel's conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford, v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, that he has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    DELORES D. STEWART v. LEROY STEWART
    (AC 17791)
    (AC 18086)
    Schaller, Mihalakos and Zarella, Js.
    Argued February 25
    officially released April 18, 2000

      Delores D. Stewart, pro se, the appellant (plaintiff).

      Julia von Schilling, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Delores D. Stewart, appeals in AC 17791 from the trial court’s denial of her “motion for payment,” in which she alleged that she was owed back alimony. The trial court ruled that the plaintiffs claim had been previously denied by the court in 1993 and that the judgment had been affirmed by this court in Stewart v. Stewart, 41 Conn. App. 906, 675 A.2d 10, cert. denied, 237 Conn. 929, 678 A.2d 484 (1996). We conclude, as to the plaintiffs claims in AC 17791, that the trial court correctly ruled that the matter had been previously determined in Stewart v. Stewart, supra, 906. Accordingly, the denial of the plaintiffs motion for payment is affirmed.

The plaintiff appeals, in AC 18086, from the trial court’s denial of her motion to modify alimony. The plaintiff claims on appeal, in essence, that the court abused its discretion in refusing to increase her alimony on the basis of a substantial change in circumstances consisting of deterioration in her health.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).

“[I]n determining [whether there has been an abuse of discretion] the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). “[W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Crowley v. Crowley, 46 Conn. App. 87, 90-91, 699 A.2d 1029 (1997).

The trial court found, inter alia, that “the plaintiffs health is no worse now than what may have comprised her failing health in 1991.” We conclude, on the basis of the evidence presented to the trial court, that the court reasonably could have concluded that the plaintiff failed to establish the claimed change in her circumstances. Accordingly, the court did not abuse its discretion in denying the motion for modification.

The denials of the plaintiffs motions for payment of alimony arrearage and for modification of alimony are affirmed.


author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. TYWAAN REEVES
    (AC 19028)
    O’Connell, C. J., and Foti and Healey, Js.

      Argued December 14, 1999
    officially released April 18, 2000

      Jerald S. Barber, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HEALEY, J.

The defendant, Tywaan Reeves, was found guilty, after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of failure to appear in the first degree in violation of General Statutes § 53a-172 (a) and two counts of tampering with a witness in violation of General Statutes § 53a-151 (a). This appeal followed.

On appeal, the defendant claims that the trial court acted improperly in unduly restricting his cross-examinations of the state’s principal witnesses concerning their bias and motive in testifying against the defendant. We affirm the judgments of the trial court.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. At approximately 6 p.m. on February 21, 1998, Marcus Russell, age seventeen, and his girlfriend, Shaluanda Elliot, age fourteen, were watching television at his apartment on Hilton Drive in West Haven. Shortly before 6:30 p.m., Russell and Elliot left his apartment to walk her to her home on Homeside Avenue. As they were walking, Russell and Elliot noticed that three black males were following them. Both Russell and Elliot recognized two of the individuals as the defendant and Willie Minor. Elliot also recognized the third individual as John Walton. Russell told Elliot to keep walking. Both did so. When Russell and Elliot reached Glade Street, which was a few blocks from Homeside Avenue, they noticed that the three individuals who had been following them had disappeared. Shortly thereafter, however, when they had reached Terrace Street, they saw that the defendant and Minor had reappeared behind them and were again following them.

When Russell and Elliot reached Homeside Avenue, the defendant shouted at them, “You all stop walking.” Russell turned around and said, “What?” and continued walking. The defendant then said, “You all gots to stop walking. I’m going to shoot.” The defendant approached them, and both Russell and Elliot saw a gun in his hand. He stated to Russell, “You violated me,” and that he was going to “run [Russell’s] jewels.” Both men wore dark jackets and masks that covered the lower half of their faces. Thereafter, the defendant held the gun against Russell’s chest. At the defendant’s direction, Minor “popped” a gold chain that Russell was wearing from around his neck. This chain had a round medallion with a depiction of the Virgin Mary on it and was worth approximately $600. Russell was also directed to remove a gold ring from his finger and to give it to the defendant. This ring had rubies and cubic zirconias on the band and a picture of the Virgin Mary on its face, and it was worth about $80. The defendant, telling Russell that he knew that he had more jewelry, checked Russell’s wrists for bracelets, but found none. The defendant and Minor then fled toward Glade Street.

Both Russell and Elliot immediately ran the short distance to Elliot’s house and told her mother, Luray Elliot, what had happened. Angered over this situation, Elliot’s mother, Elliot, Russell and several neighbors went to Glade Street to try to find the defendant.

In the meantime, the police were called and told of the robbery. David Cahill, an officer with the West Haven police department, was dispatched to the area. Upon his arrival, he spoke to Russell and Elliot, who told him that the defendant had robbed them at gunpoint. He learned that the two alleged robbers were black males, both dressed in dark coats and dark pants, and that they had worn masks that covered the lower half of their faces. He also got a description of the gold chain and the gold ring. Cahill was familiar with the defendant in that he lived in the area. The police dispatcher learned that the defendant lived at an apartment at 54 Glade Street and sent Officers Steven Viele and Pauline Sires, who had been in radio contact with Cahill, to that address to find him.

Cahill proceeded to the defendant’s apartment on foot, but Viele and Sires arrived there before him. Emily Reeves, the defendant’s grandmother, answered Sires’ knock on the apartment door. Sires told her that the defendant was a suspect in a robbery that had just occurred and that they wanted her consent to search the apartment. She consented and pointed out the defendant’s room for them. In that room, Viele and Sires observed two dark jackets, one on a bed and the other on the floor, which were similar to the jackets worn by the alleged robbers. The jackets later were determined to belong to the defendant and Minor. The officers continued to search the bedroom, but the defendant was not there. In that bedroom there was a closet about six feet high and four feet to five feet wide, with sliding doors, one to each side. At the time Viele approached the closet, the right closet door was fully closed but the left door was fully opened. As he stood up from examining the right side of the closet, Viele saw a piece of jewelry in front of a stack of clothes on a shelf. It was “very bright,” it was “gold with clear stones” and “red colored stones on it,” and the face of the ring . . . had an inscription of . . . the Virgin Mary.” No gun was found during that search.

The police did not locate the defendant that night, but apprehended him several days later on February 26, 1998. He posted a bond, and his trial was eventually set to begin on April 21, 1998.

In March, 1998, while the defendant was still out on bond, Elliot was with her mother in her mother’s car on Glade Street when the defendant approached the car. He apologized to “her for sticking [Russell] up when [she] was with him,” and he told her that “he wanted to be friends” and that “he was stupid for doing it.” Later, on April 20, 1998, after Russell had been subpoenaed to attend court on that day, which was when the defendant’s trial was scheduled to commence, the defendant pulled up in a car as Russell was coming out of his house. The defendant got out and started to speak with Russell. After Russell told him that he had been subpoenaed, the defendant “asked him not to go to court and if [he] did to give a false statement.” He also told Russell that “if [Russell] [needed] any money, he [would] give it to [him] and anything [he] wanted or needed or whatever.” Russell rejected the defendant’s offer. The next day, Russell told Joseph Zampano of the state’s attorney’s office about this incident.

On the day that the defendant had approached Russell, i.e., April 20, 1998, the defendant called Elliot's mother and told her that he knew that she and Elliot had been subpoenaed to go to court the next day. He talked to her about their not saying they were sure it was him, and he wanted to know if Elliot had talked to the state’s attorney. She said that Elliot had spoken with the state’s attorney. He then wanted to know what Elliot had told the state’s attorney, and her mother said that she did not know. The defendant said that he “needed” to know what she said “so he knew what he would be walking up against when he came into the courtroom.” He went on to say that “it is not like I’m going to do anything to you guys, I just want to know what I am walking up against when I go into the courtroom.” Elliot’s mother said that she did not know what her daughter had said as she was not in the room with her. The defendant then asked her if Elliot was home because he wanted to speak with her. She replied that Elliot was not home. The next day Elliot’s mother reported this by telephone to Zampano at the state’s attorney’s office.

On April 21, 1998, the defendant went to court, but before his case was called for trial, he left the courthouse and did not return. The police found him on May 21, 1998, in New Haven and he was rearrested.

Our analysis of the defendant’s claim of improper restriction of his right of cross-examination is guided by familiar constitutional principles. “It is axiomatic that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. U.S. Const., amends, VI, XIV . . . Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Pointer v. Texas, 380 U.S. 400, 403-404, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) The primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985). In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, [supra, 318]; State v. Lubesky, supra, 482.” (Citation omitted; internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 584-85, 678 A.2d 924 (1996).

The United States Supreme Court has stated: “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Emphasis in original.) Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985); see State v. Joyner, 225 Conn. 450, 478, 625 A.2d 791 (1993); State v. Jones, 22 Conn. App. 665, 667, 578 A.2d 667 (1990). The Beliveau court also stated: “The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. State v. Johnson, 21 Conn. App. 291, 293, 573 A.2d 1218 (1990). Only relevant evidence may be elicited through cross-examination. State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . . State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988). . . . State v. Kelley, 229 Conn. 557, 562, 643 A.2d 854 (1994).” (Internal quotation marks omitted.) State v. Beliveau, supra, 237 Conn. 585.

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. [State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995)]; Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569, 657 A.2d 212 (1995); State v. Kelley, supra, 229 Conn. 563; State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992) . . . .” (Citations omitted.) State v. Beliveau, supra, 237 Conn. 585-86. “The proffering party bears the burden of establishing the relevance of the offered testimony.” Id., 586.

“ ‘In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.’ State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986).” State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992).

“The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.” (Citations omitted.) State v. Gaynor, supra, 182 Conn. 508; see also State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). We must, therefore, conduct a two-step analysis, determining first whether the cross-examination permitted to defense counsel comported with sixth amendment standards; see Davis v. Alaska, supra, 415 U.S. 308; and second, whether the trial court abused its discretion in restricting the scope of that cross-examination. State v. Payne, 219 Conn. 93, 111, 591 A.2d 1246 (1991); State v. Castro, 196 Conn. 421, 424-25, 493 A.2d 223 (1985); State v. Gaynor, supra, 510; State v. Colon, 28 Conn. App. 231, 235, 611 A.2d 902, cert. denied, 223 Conn. 922, 614 A.2d 827 (1992). “The constitutional standard is met when defense counsel is ‘permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ Davis v. Alaska, supra, 318; United States v. Vasilios, [598 F.2d 387, 389 (5th Cir. 1979)].” State v. Gaynor, supra, 509.

“To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial. United States v. Elliott, 571 F.2d 880, 909 (5th Cir. 1978); Gordon v. United States, 438 F.2d 858, 865 (5th Cir. 1971). State v. Gaynor, supra, [182 Conn. 510]; see State v. Shindell, 195 Conn. 128, 141, 486 A.2d 637 (1985). Once it is established that the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will apply [e]very reasonable presumption ... in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).” (Internal quotation marks omitted.) State v. Castro, supra, 196 Conn. 426; State v. Cepeda, 51 Conn. App. 409, 418, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999).

It is necessary here to set out certain additional facts. During the cross-examination of Elliot, the defendant asked who lived at her home at 29 Homeside Avenue besides her and her mother. She responded that her brother and sister lived there and gave their ages as twenty-one and sixteen, respectively. She was then asked, “And no one else resides at the house with you there?” The state objected on the ground of relevance. Thereafter, the jury was excused, Elliot left the courtroom and the court asked for an offer of proof on relevance. Defense counsel stated that “this matter involves a dispute between the alleged victim and [the defendant], and part of that dispute concerns the minor child that resides in the house, and that is the minor child of [Russell] and this witness, and I just wanted to establish that fact, you know, that plays a part in this matter.” The court asked defense counsel to repeat what he had stated regarding the minor child of this witness. Counsel then stated that the child was Elliot’s and Russell’s, and that “there [have] been continuing disputes about that minor child and [the defendant], and I think that . . . part of the motivation here for this witness concerns that minor child.” The court then stated: “So, you are trying to establish some animosity between . . . Russell and [Elliot] and [the defendant].” Counsel agreed, stating: “Over . . . this minor child, yes sir.”

At that time, the state asserted that “there was no minor child at the time of the robbery,” that it was not relevant, that it was far more prejudicial to Elliot and the state than it was probative, and that the minor child in question had not even been conceived, let alone born, at the time of the robbery. During the ensuing colloquy, the court asked defense counsel if there was any dispute that “this minor child was not in existence or conceived as of the date of the alleged robbery?” Defense counsel asked the court, “May I have a moment?” Defense counsel then stated, “No .... There is no dispute that the child was not there.” The court then sustained the state’s objection. Essentially, the court did so because the minor child had not even been conceived at the time of the robbery in February, 1997, and because the paternity rumors concocted by the defendant while he was in jail in 1998 were wholly irrelevant.

Elliot’s mother testified for the state after her daughter’s testimony had concluded. On direct examination, she testified that Russell was Elliot’s boyfriend. On cross-examination, she admitted that she had so testified on her direct examination. Defense counsel then asked, “They are more than that, aren’t they?” She answered, “They are boyfriend and girlfriend.” The next question was, “Aren’t they just more than boyfriend and girlfriend?” She replied, “Yeah. They are boyfriend and girlfriend.” At this point, the state objected and the court asked defense counsel, “What is the relevancy [of] that? Are you asking to get into the nature of their relationship?” Defense counsel said that he was.

The jury then was excused and Elliot’s mother was asked to wait out in the hall. Defense counsel maintained that Elliot’s mother had given a statement to the police in which she said that the defendant “was going around town telling people that [the defendant] was the father of [Elliot’s] daughter” and that Elliot’s mother had said that she was “upset” about that. Defense counsel claimed “that because that goes to part of why this witness . . . Russell and . . . Elliot are creating this story and trying to get [the defendant] based on this, you know, their retribution, I guess, for harm to reputation.” He maintained further that “these events,” unlike his claim about the minor child being alive at the time of the robbery, “occurred around the time of this trial, the April 21st date, and again it goes directly to their motivation to come here and testify that—again, we claim it for that bias. It is relevant to their motivation and bias to testify against [the defendant].” The state objected, claiming that it was “highly prejudicial” and arose out of a scenario made up by the defendant. Defense counsel agreed with the court that the defendant’s claim here was that Elliot’s mother “had a motive or bias or prejudice to testify against [the defendant] concerning the events of April of ‘98 . . . because of what [the defendant] had been saying.” The court then proposed, without any objection, that the appropriate way to resolve this claim was to have Elliot’s mother return to the witness stand, in the absence of the jury, and allow defense counsel to ask her whatever questions he saw fit after which the court would rule.

Thereupon, Elliot’s mother was examined by the defendant and the state at some length. She conceded that she had been “upset” by the defendant telling people that he had slept with her daughter and that he was “discussing” the possibility that he was the father of Elliot’s child. Elliot’s mother testified also that she had first spoken to the defendant on about July 13, 1998, about these “rumors” when he called her from jail, where he had been incarcerated since his apprehension on May 21,1998. According to Elliot’s mother, this conversation included not only the defendant’s “mouthing off’ about being the father of Elliot’s child, but also her telling him that “he better stop lying and stop making [her] daughter look like a whore.” In addition, she stated that a photograph the defendant used in spreading these “rumors” actually was a photograph of the defendant and Elliot’s identical twin sister, not of the defendant and Elliot. Although Elliot’s mother was “upset” by the “rumors,” which she knew were not true, she felt that after she yelled at the defendant she was no longer “upset.”

After hearing this testimony, the court ruled again that the proffered evidence at issue was irrelevant. As was the case with the minor child, the court believed that the time frame was persuasive. The court pointed out that the testimony of Elliot’s mother about the events of April 20,1998, took place some months before the defendant circulated rumors about sleeping with Elliot and fathering her child. Further, the court noted that Elliot’s mother had reported these events concerning the defendant’s tampering of April, 1998, within one day of their occurrence to Zampano of the state’s attorney’s office a number of months before the defendant even started the rumors. The court opined that the events about which Elliot’s mother was testifying took place in April, 1998, which she reported immediately to Zampano, and that testimony could not have been influenced by the rumor testimony that was not created by the defendant until four months later in July, 1998.

The defendant, on appeal, argues that the court unduly restricted his cross-examination into the bias and motive of Elliot and her mother. In doing so, he raises a sixth amendment confrontation claim without having raised any such issue at trial. In like fashion, and for the first time, he joins this with a similar claim under our state constitution. In raising these constitutional claims for the first time on appeal he seeks review pursuant to the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

On appeal, the claim for review must meet all four prongs of the Golding analysis to be successful. State v. Krzywicki, 39 Conn. App. 832, 836, 668 A.2d 387 (1995). “We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. App. 924, 618 A.2d 531 (1993); see State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992); State v. Golding, supra, 213 Conn. 240; State v. Dukes, 29 Conn. App. 409, 421, 616 A.2d 800 (1992), cert. denied, 224 Conn. 928, 619 A.2d 851 (1993). “The defendant must show that his claim is of constitutional magnitude involving the violation of a fundamental constitutional right pursuant to the second prong of Golding. State v. Golding, supra, [239].” State v. Krzywicki, supra, 836. This, the defendant has not done.

The threshold question is whether the cross-examinations of Elliot and her mother by defense counsel satisfled the sixth amendment standard set out previously. Applying the principles set out earlier, we determine that the defendant’s claim is not of constitutional magnitude but, rather, deals with an evidentiary question for which the standard of review is that of whether an abuse of discretion has been shown. We reach this determination cognizant of the fact that it must first be established that the court’s rulings on the scope of cross-examination are not constitutionally defective before we can employ the abuse of discretion standard of review to what is then the propriety of an evidentiary claim. As to both Elliot and her mother, the defendant’s claims prove to be evidentiary and not constitutional in nature.

As to both Elliot and her mother, the defendant was allowed cross-examination, as was his right, that could have elicited facts that would tend to show motive, interest, bias and prejudice. That right was not unduly restricted. It must be noted that the constitutional right of cross-examination guarantees the opportunity for effective cross-examination, and that does not mean cross-examination “that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, supra, 474 U.S. 20. That right does not include, in a word, “unrestricted” cross-examination. Moreover, only relevant evidence can be elicited through cross-examination, and the court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. The matter of relevancy was clearly involved in the issue of both Elliot’s and her mother’s testimony. We agree with the time frame analysis of the trial court on the relevancy issues as to their testimony. This applies not only to the issue of the minor child, who was not even conceived at the time of the robbery, but to the rumors concerning the defendant sleeping with Elliot and being the father of her minor child, rumors the defendant concocted while he was in jail. Permitting the defendant to reap the benefit of his own self-manufactured evidence in advancing a constitutional argument is, to say the least, unusual if not bizarre.

This is hardly a case where there was a “denial of all meaningful cross-examination into a legitimate area of inquiry [which would thus fail] to comport with constitutional standards under the confrontation clause.” (Internal quotation marks omitted.) State v. Santiago, supra, 224 Conn. 331. Elliot’s mother admitted during her examination by the state that she had been “angry” and “upset” with the defendant for confronting her daughter at gunpoint, but that she no longer felt that way. On cross-examination, she admitted that when the defendant called from jail in July, 1998, she “lied” in response to his query as to whether Elliot was at home. Defense counsel also asked her if she “lied about anything else,” but did not follow up that question when an objection to it was overruled. Again, before the jury on cross-examination, Elliot’s mother testified that she no longer was upset and did not hold any grudges against the defendant for robbing Elliot at gunpoint, but she still would not let him talk to her.

A review of all the evidence, particularly that of Elliot and her mother in the light of the excluded inquiries, shows that from the relevant evidence and the issues actually litigated, the defendant was not unduly restricted on his cross-examination. The evidence shows that he was allowed to expose to the jury the facts from which the jury, as the judges of credibility and finders of fact, could properly draw the necessary inferences to aid it in determining the reliability of the witnesses’ testimony. We note that the defendant did not get into the tampering charges with Elliot, but only the robbery. It bears pointing out that Elliot’s testimony about the robbery was essentially cumulative as well as corroborative of Russell’s testimony. A reading of the transcript shows that the defendant was permitted a wide range of inquiry on cross-examination and that the challenged limitation did not prevent him from “sufficiently investigating.” Thus, the constitutional requisites of the sixth amendment were adequately met.

Turning to the issue of whether the court abused its discretion in its challenged rulings on cross-examination, we decide that it did not. As we already have discussed, in light of the circumstances of the challenges and the rulings, the trial court reasonably could have concluded as it did. It is apparent that the court was aware that it had the right and “indeed, [the] duty, to exclude irrelevant evidence.” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 219, 690 A.2d 1370 (1997), quoting State v. Pratt, 235 Conn. 595, 604, 669 A.2d 562 (1995). As noted, defense counsel had a wide range of inquiry on cross-examination. The defendant had the burden of showing that “the restrictions imposed upon [the] cross-examination were clearly prejudicial.” (Internal quotation marks omitted.) State v. Castro, supra, 196 Conn. 426; see State v. Bova, supra, 220. He has not done so. The rulings, which were all on evidentiary matters, were proper. The trial court did not abuse its discretion and, therefore, did not violate the defendant’s constitutional right to confrontation.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . .”

       General Statutes § 53a-172 (a) provides: “A person is guilty of failure to appear in the first degree when (1) while charged with the commission of a felony arid while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, or (2) while on probation for conviction of a felony, he wilfully fails to appear when legally called for a violation of probation hearing.”

       General Statutes § 53a-151 (a) provides: “A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony elude legal process summoning him to testify or absent himself from any official proceeding.”

       Russell was not acquainted with Walton and did not recognize him.

       Walton did not reappear and he no longer had any part in the events that transpired subsequently.

       According to the evidence, in street talk “to violate” someone means to “disrespect” someone, “like [Russell] did something to [the defendant].” Also, in street talk, “run your jewels” or “run your stuff’ means take your jewelry and give it to me, or it means you are being robbed.

       At that time, Elliot’s mother did not know the defendant or Minor. She went to Glade Street because Russell and Elliot said that was the direction in which the defendant and Minor ran from the robbery scene and because she knew that the defendant “hung out” there.

       When the defendant testified in his own behalf, he admitted that the black jacket on the bed was his. A city of New Haven infraction ticket issued to Minor was found in the other jacket, which was dark blue.

       The defendant did not come back to the Glade Street apartment that night or the next night.

       According to Elliot’s mother, the defendant told Elliot that he was going to get a job and pay her back for the chain.

       Although Elliot was at home, her mother did not want the defendant to speak with her.

       Between April 22, 1998, and May 5, 1998, the defendant had been living at his girlfriend’s house in New Haven.

       In State v. Beliveau, supra, 237 Conn. 586, our Supreme Court stated: “The proffering part y bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant. State v. Barnes, supra, 232 Conn. 747; Williams Ford, Inc., v. Hartford Courant Co., supra, 232 Conn. 571; Hall v. Burns, 213 Conn. 446, 452, 569 A.2d 10 (1990). Relevance may be established in one of three ways.
      “First, the proffering party can make an offer of proof. See State v. Kulmac, 230 Conn. 43, 63, 644 A.2d 887 (1994); State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986). Second, the record can itself be adequate to establish the relevance of the proffered testimony. See State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992); see also State v. Pittman, 209 Conn. 596, 602-605, 553 A.2d 155 (1989); State v. Hackett, 182 Conn. 511, 517-20, 438 A.2d 726 (1980). Third, the proffering party can establish a proper foundation for the testimony by stating a ‘good faith belief that there is an adequate factual basis for his or her inquiry. ‘A good faith basis on the part of examining counsel as to the truth of the matter contained in questions propounded to a witness on cross-examination is required.’ 1 C. McCormick, Evidence (4th Ed. 1992) § 49, p. 187. A cross-examiner may inquire into the motivation of a witness if ho or she has a good faith belief that a factual predicate lor the question exists. See United States v. Peterson, 808 F.2d 969, 978 (2d Cir. 1987); State v. Barnes, supra, 232 Conn. 747.” See also State v. Orhan, 52 Conn. App. 231, 246, 726 A.2d 629 (1999).

       After the state’s remarks, the colloquy proceeded as follows:
      “[State’s Attorney]: [T]he fact that any robbery victim has a child or doesn’t have a child isn’t relevant to credibility. That is her private business.
      “The Court: The only thing I can understand is that if there was some animosity between this witness . . . and Marcus Russell and [the defendant], that there was some hard feelings between them that might give rise to a motive to testily falsely, I could see that as an issue of credibility.
      “[State’s Attorney]: Your Honor, if I could, because the court is operating in a vacuum here—
      “The Court: Yes, I am.
      “[State’s Attorney]: Now, at the time of the robbery, in recent months when some of the tampering went on and the state is, you know, not going to get [into] the business with the child because I think it is not relevant here.
      “Apparently, this defendant has told other people that he fathered the child. He has made up stories. He had his picture taken with her twin sister. There is no evidence of any relationship. This was created in recent months by the defendant, and I just don’t think [that] without some substantial showing he should be allowed to get into that. If he claims he is the father of the child, then he should have a blood test today.
      “The Court: Was the minor child living in the home at the time of the robbery?
      “[State’s Attorney]: The minor child was not bom, Your Honor, at the time of the robbery. I have to count back. I don’t think it was even conceived at the time of the robbery.
      “The Court: Is that the case, [defense counsel]?
      “[Defense Counsel]: Well, Your Honor, the events of this matter concerning February 21, 1997, and also the alleged tampering—
      “[State’s Attorney]: In fact, I can represent [that] it was not conceived at the time. I just want to make sure Your Honor is clear on the facts. It was not even a concern.
      “The Court: Go ahead.
      “[Defense Counsel]: And the charges also involved actions which occurred as late as April and July, April of this year; and part of this witness’ motivation to testily here is her animosity toward my client concerning the alleged paternity dispute over her child. That is what I was trying to elicit, Your Honor. That part of her motive or bias today is the fact [of] that animosity toward my client based on his comments before her child.
      “[State’s Attorney]: Your Honor, I just want to make sure we are all on the same page here. Is counsel claiming there is a question on paternity of the child?

        “[Defense Counsel]: I’m not claiming that.
      “[State’s Attorney]: Absent that, and I’m glad to hear that, this is really, I think, highly inappropriate, intrusive and far more prejudicial to the state and to this witness than probative. I realize there may be some people who want to try to make an implication because a young person has a child that there is something wrong with that. That is her right, and that is her private business. And I think to intrude on that is really improper and really offensive to her, and it is offensive to me.
      “The Court: It appears that—is there any dispute, [defense counsel], that this minor child was not in existence or conceived as of the date of the alleged robbery? Is that in dispute?
      “[Defense Counsel]: May I have a moment, Your Honor. No, Your Honor. There is no dispute that the child was not there.
      “The Court: Then the objection is sustained.
      “[State’s Attorney]: And, Your Honor, may I make a motion in limine. Any attempt to reopen this should be out of the presence of the jury.
      “The Court: I think [defense counsel] understands the ruling. Should there be any change in circumstances, I think that this area is subject to be reopened for any reason, I would ask that you bring that to my attention in the absence of the jury.”

       AH the witnesses had been sequestered during trial.

       This photograph had been taken before his 1998 incarceration.

       The evidence disclosed that a tape recording had been made of the defendant’s telephone call on July 13, 1998, to Elliot’s mother, in which these rumors were discussed.

       The defendant, who admitted to two felony convictions, testified in his own behalf. Not only did he deny, among other things, that a robbery took place as claimed, given the circumstance that the minor child involved was not even conceived at the time of the robbery serves also to point out the highly prejudicial effect to the state of allowing the defendant to pursue that line. Even relevant evidence that is sufficiently prejudicial may be excluded on cross-examination. See State v. Booth, 250 Conn. 611, 645-46, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000); see also State v. Stevenson, 53 Conn. App. 551, 572, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999).


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. DANIEL MILLS
    (AC 18460)
    Lavery, Spear and Daly, Js.

    Argued January 19
    officially released April 18, 2000

      Auden Grogins, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The defendant, Daniel Mills, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (4), attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-123 (a) (3), and inciting injury to persons in violation of General Statutes § 53a-179a. The defendant claims that the trial court improperly denied (1) his motion to suppress identification testimony that was based on a claimed violation of the defendant’s right to due process under the fourteenth amendment to the United States constitution and (2) his motion for a new trial that was based on the court’s allegedly improper dismissal of a juror. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On May 10, 1996, the victim, Daniel Penn, was walking home at about 2 a.m. when he was approached by two young men. The young men stood on either side of him, and one of them put a gun to his head and said, “Give me what you got.”

Although the lighting was somewhat dim because tree branches obscured the streetlight above, Penn was able to get a good look at both men. Penn described the gunman, who had put on a ski mask as he approached Penn, as being about five feet, eleven inches tall, skinny, and wearing a black jacket, black pants, white sneakers and a mask. The other man, identified later as the defendant, was shorter than Penn, with short hair, light brown skin and a small mustache. This second man was wearing a black leather jacket and brown designer boots.

Penn used the distraction of an oncoming car to flee. As Penn fled, yelling loudly, the gunman dropped to one knee, aimed his weapon at Penn and said, “Why don’t we just pop him?” The defendant said twice, “Shoot him.” Penn reached his home and the police were contacted.

Joseph Foti, a uniformed officer with the New Haven police department, met Penn and radioed in a description of the two men. Penn and Foti then went to an area where a suspect was being held. Penn viewed the suspect, who was flanked by officers and was brightly illuminated, and concluded that he was definitely not one of the two men, as he was too big, too tall and his boots were different.

Foti drove to another location where a second suspect, the defendant, was being detained. Even before Foti stopped the car, Penn viewed the well-lighted suspect and twice said, “That’s him.” Penn concluded that it was the shorter assailant because of his brown boots, leather jacket and the peculiar nature of his “squinty” eyes, something that Penn stated he would “never forget.” Foti asked Penn if he was absolutely positive it was the same man. Penn stated that he had no doubt that it was the same person, as he remembered the defendant’s face and other characteristics. The defendant was arrested as a result of the identification, and a trial commenced on February 18, 1998. In addition to identifying the defendant that night, Penn identified the defendant at trial from a group of seven black men, all dressed similarly to the defendant.

At the end of closing arguments, but before the court had charged the jury, a juror spoke with the court and expressed concern that the lawyers apparently agreed that the contested issue was identification of the defendant. The juror, a psychologist in private practice, had completed his doctoral dissertation some twenty year's ago on the effects of misleading information on eyewitness testimony and memory. This information was not revealed to counsel at voir dire.

The court asked the juror if he felt that in reaching a verdict he might draw on his studies or special qualifications in this area. The juror confided that he was unsure whether he could refrain from revealing his specialized knowledge during deliberations. The court expressed concern that the juror’s specialized knowledge was beyond that of an ordinary juror and, if discussed in deliberations, might influence the jury as a type of expert testimony not of record. The court then dismissed the juror from service.

I

The defendant contends that the court improperly denied his motion to suppress Penn’s identification of the one-on-one show-up procedure because it violated his fourteenth amendment right to due process. We disagree.

“Upon review of a trial court’s denial of a motion to suppress, [t]he court’s conclusions will not be disturbed unless they are legally and logically inconsistent with the facts. State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). . . . State v. MacNeil, 28 Conn. App. 508, 512-13, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). The trial court’s factual findings will be reversed only if they are clearly erroneous.” (Internal quotation marks omitted.) State v. Owens, 38 Conn. App. 801, 804, 663 A.2d 1094, cert. denied, 235 Conn. 912, 665 A.2d 609 (1995).

“In determining whether identification procedures violate a defendant’s due process rights, [t]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail in his claim, the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances. . . . An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. ... If the procedures used to identify the defendant were not unnecessarily suggestive, we need not independently analyze whether the identification was reliable. . . . State v. Taylor, 239 Conn. 481, 498-99, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable. State v. White, 229 Conn. 125, 162, 640 A.2d 572 (1994). Generally, [t]he exclusion of evidence from the jury is ... a drastic sanction, one that is limited to identification testimony which is manifestly suspect. State v. Wooten, 227 Conn. 677, 685-86, 631 A.2d 271 (1993) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 246-47, 710 A.2d 732 (1998).

A one-on-one show-up does place upon the identification process an inherent level of suggestiveness and susceptibility to misidentification. State v. Middleton, 170 Conn. 601, 607-608, 368 A.2d 66 (1976). Show-ups, however, and procedures like them “tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay.” State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987). The show-up identification used here involved the defendant standing with police on either side of him, with streetlights and car lights illuminating him. This scenario does retain an element of suggestiveness, but is not in itself so unduly suggestive such that it was improper. See State v. Wooten, supra, 227 Conn. 686 (confrontation between victim and suspect seated in back of police car suggestive, but not unnecessarily so); compare State v. Askew, 55 Conn. App. 34, 40 and n.5, 739 A.2d 274, cert. denied, 251 Conn. 918, 740 A.2d 866 (1999).

Furthermore, the identification was reliable on the basis of the totality of the circumstances. See State v. Reddick, 224 Conn. 445, 465, 619 A.2d 453 (1993) (reliability of unduly suggestive identification is linchpin of admissibility). The reliability of an identification procedure is considered under various factors, such as “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [his] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Davis, 198 Conn. 680, 683-84, 504 A.2d 1372 (1986).

In the present case, Penn had ample opportunity to view the defendant. Although the light available was dim, Perm was able to see the defendant clearly from very close range. See, e.g., State v. Small, 1 Conn. App. 584, 588-89, 474 A.2d 460 (1984) (witness viewed assailant from distances of two feet and six feet). Shortly after the incident, Penn provided an accurate description of the defendant to the police before any identification took place. As Foti recalled, Penn described “a light skinned black male, approximately five [feet], seven [inches], wearing a black jacket, blue jeans and light brown boots.” This information was articulated, as perceived by the officer, “very well.” See, e.g., State v. Davis, supra, 198 Conn. 684 (robbery victim provides accurate, detailed description). At the moment of identification, Penn did not hesitate to identify the defendant as one of the two individuals who attempted to rob him. See, e.g., State v. Austin, supra, 244 Conn. 249 (witness identified defendant immediately and with no uncertainty). Approximately forty minutes, at most, had passed between the crime and the confrontation. See, e.g., State v. Gettes, 42 Conn. App. 472, 478, 680 A.2d 996, cert. denied, 239 Conn. 921, 682 A.2d 1009 (1996) (approving fifteen day interval between viewing of defendant and identification, and citing additional cases).

Penn was not searching for just anyone, but the individuals who robbed him. Penn’s conclusion that the first suspect was not the person who robbed him “is not evidence of an initial misidentification but rather demonstrates the conduct of a witness exercising independence of judgment under stressful circumstances.” State v. Perez, 198 Conn. 68, 74, 502 A.2d 368 (1985). Given his conduct, Penn demonstrated that he was “an unlikely candidate for subliminal seductions.” Id., 75. Accordingly, we cannot conclude that the show-up violated the defendant’s right to due process under the fourteenth amendment to the United States constitution.

II

The defendant contends that the court improperly denied the defendant’s motion for a new trial on the basis of his claim that the court improperly dismissed a juror. We disagree.

The court, and not this tribunal, is in the best position to determine what effect, if any, the juror’s special knowledge might have had on other jurors. Accordingly, “ ‘[t]he trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.’ State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987); State v. Anthony, 172 Conn. 172, 175, 374 A.2d 156 (1976).” State v. Tucker, 226 Conn. 618, 630, 629 A.2d 1067 (1993). A trial court may dismiss a juror who is unable to perform his or her duties upon a finding of “cause.” State v. Allen, 216 Conn. 367, 378, 579 A.2d 1066 (1990); see also General Statutes § 54-82h (c). “On appeal, the defendant bears the burden of showing that the rulings of the trial court resulted in a jury that could not judge his guilt impartially. State v. Marra, 195 Conn. 421, 432, 489 A.2d 350 (1985).” State v. Tucker, supra, 630-31.

The court did not abuse its broad discretion in dismissing the juror. The uniqueness of the juror’s dilemma only highlights the numerous possibilities that arise with regard to juror dismissal. For example, in State v. Rokus, 191 Conn. 62, 71, 463 A.2d 252 (1983), a juror expressed concern that he recognized a police officer who was going to testify. The juror told the court that he did not know the officer very well and had not seen him in three years. Id. The juror also added that he would not give any undue preference to the officer’s testimony. Id. The court excused the juror, and our Supreme Court concluded that the trial court’s action was not improper. Id., 71-72.

The juror in this case expressed less certainty of his ability to be impartial than did the juror in Rokus. The juror in this case could not assure the judge that he could keep his specialized knowledge private. The juror also could not assure the judge that he would not use his specialized knowledge regarding identification during jury deliberations. It is within a judge’s discretion to dismiss a juror where, as here, that juror possesses a specialized area of knowledge beyond the typical juror that may unduly influence jury deliberations. See State v. Wylie, 10 Conn. App. 683, 696, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987) (excuse of juror because of greater than ordinary knowledge of weapons valid peremptory challenge).

Other courts have noted the importance of addressing in the jury selection process juror bias on the basis of a juror’s expertise. In State v. Saunders, 992 P.2d 951, 962-64 (Utah 1999), the Supreme Court of Utah reversed a trial court’s decision to halt questions by attorneys of jurors who had claimed specialized knowledge of child sexual abuse in a case where the defendant was accused of sexual abuse of a child. “As a general rule, trial judges have some discretion in limiting voir dire inquiry. . . . That discretion is most broad when it is exercised with respect to questions that have no apparent link to any potential bias. However, the trial judge’s discretion narrows to the extent that questions do have some possible link to possible bias, and when proposed voir dire questions go directly to the existence of an actual bias, that discretion disappears. The trial court must allow such inquiries.” (Citation omitted.) Id., 963; see also Brooks v. Zahn, 170 Ariz. 545, 552, 826 P.2d 1171 (App. 1991) (attorney should have questioned juror with specialized knowledge in nursing during voir dire).

Furthermore, the defendant cannot show that the dismissal resulted in any harm to him. The defendant speculates that this juror would have been beneficial to the defendant had he remained on the jury because the juror, with his specialized knowledge, likely viewed identifications as being less accurate than does the average citizen. We cannot speculate as to what a juror would have concluded within the confines of the jury deliberation. See Mack v. LaValley, 55 Conn. App. 150, 160, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999). The defendant has not shown how the dismissal of the juror created unfairness to the defendant. Accordingly, the court did not abuse its discretion in dismissing the juror.

The judgment is affirmed.

In this opinion the other judges concurred.

       After hearing argument on the motion to suppress, the court ruled, stating: “The nature of one-on-one show-ups is somewhat suggestive, but it is allowed. The law is clear on that. The question then becomes, was it unnecessarily suggestive, and police really didn’t do anything to suggest to Mr. Penn (hat this is the person that he should pick out. The nature of the show-up, of course, does suggest that a person is a suspect, but there is no other way to do it, and it is allowed because this particular procedure can, if done in a fair fashion as it was here, can quickly, conclusively, eliminate a person as a suspect. So, it is allowed. The question of whether Mr. Penn’s identification on that night and here in court today, whether that is reliable, the answer is yes, based on the totality of the circumstances. Mr. Penn had—it wasn’t a fleeting glance at these people. It was an observation over a significant period of time. The lighting was dim, but he said he had no trouble seeing. He gave a detailed description of the people that he had encountered. There was not a long lapse of time between the event and the identification. Apparently, his description matched the description of the defendant when he was apprehended. The level of Mr. Penn’s certainty appeared to be very high.
      “For those reasons, I will deny your motion to suppress.”

       The crime occurred at approximately 2 a.m., and the call to Foti from an officer nearby occurred at 2:38 a.m. that a second suspect, who ultimately was identified as the defendant, had been found.


author: SPEAR, J.

text:
    ALBERT DUMONT v. HANS WAGNER ET AL.
    (AC 19673)
    Lavery, Schaller and Spear, Js.

    Submitted on briefs December 15, 1999
    officially released April 18, 2000

      Paul J. Garlasco filed a brief for the appellant (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SPEAR, J.

The plaintiff, Albert Dumont, appeals from the judgment for the defendants, Hans Wagner and Brenda Wagner, that was rendered after a hearing in damages on the plaintiffs claim of breach of contract. The hearing in damages was held after a default was entered against the defendants. The plaintiff claims that the trial court improperly applied the Home Improvement Act (act), General Statutes § 20-418 et seq., to bar the plaintiffs claim without any basis in law or fact. We agree and reverse the judgment of the trial court.

The complaint alleged that the plaintiff entered into an oral contract with the defendants to provide them with Kraftmade cabinets at a price of $5592.72. The plaintiff claimed that he purchased the cabinets at a Home Depot store and had Home Depot deliver them to the defendants’ home. The defendants refused to pay.

The plaintiff brought a breach of contract action and obtained a default judgment after the defendants failed to appear. Thereafter, the plaintiff claimed the matter for the hearing in damages list, and at the hearing presented evidence in support of his claim. At the conclusion of the hearing, the trial court reserved decision and thereafter rendered judgment for the defendants because the court found that “the transaction [fell] under the provisions of Connecticut General Statutes §§ 20-419 and 20-429 and [was] therefore barred.”

In its memorandum of decision, the court stated: “A proper interpretation of the oral contract and the testimony of the plaintiff is that not only was the plaintiff to deliver the cabinets to the defendants’ home, but in addition he was to install them. He was not the manufacturer of the units or engaged in the business of selling them. If a purchase of the units is all that the defendants sought, they could have made a direct purchase. The court finds that the defendants, by entering into the oral contract, ejected the units not only to be delivered but also installed.”

We review a trial court’s finding of facts under the clearly erroneous standard. “[Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The court’s legal conclusions are subject to plenary review. “[Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” Id., 221. We conclude that the court’s factual finding was clearly erroneous. Its legal conclusion that the act applies was based on an erroneous factual finding and cannot stand.

We have reviewed all of the evidence and find nothing to support, directly or indirectly, a factual conclusion that the plaintiff was to install the cabinets or that the defendants expected him to do so. The only evidence was from the plaintiff, who testified that the agreement called for him to supply the cabinets by way of having them delivered from Home Depot. The plaintiff testified that he purchased the cabinets and put them on his credit card, and that the cabinets were delivered by Home Depot to the defendants’ home in accordance with the oral agreement. The defendants were to repay the plaintiff for the cost of the cabinets plus any interest charged.

We conclude that there was no basis whatsoever for the court’s factual finding that the contract required the plaintiff to install the cabinets. “A factual finding is clearly erroneous when it is not supported by any evidence in the record . . . .” Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 345-46, 736 A.2d 824 (1999).

Because the court found that the plaintiff agreed to install the cabinets, the court concluded that §§ 20-419 and 20-429 of the act applied to bar the plaintiffs claim. That legal conclusion is without any factual foundation and is, therefore, improper.

The judgment is reversed and the case is remanded for a new hearing in damages.

In this opinion the other judges concurred.

       General Statutes § 21M19 (4) provides in relevant part: “ ‘Home Improvement’ includes, but is not limited to, the . . . replacement, remodeling, alteration, conversion, modernization, improvement . . . of . . . any land or building . . . designed to be used as a private residence . . . .”

       General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing . . .

       The trial court initially notified the plaintiff of its judgment for the defendants by postcard dated May 18, 1999. The court heard the plaintiffs motion to set aside the judgment on June 1, 1999. During the colloquy at that hearing, the court stated: “He delivered, he put them in.” In response, counsel stated that the plaintiff did not so testify. After that hearing, the court rendered its memorandum of decision on July 13, 1999.


text:
    INVERSIONES LITUANES, S.A. v. E.P. COMPANY INAMCO (CAMIN STOCK COMPANY), S.A. v. E.P. COMPANY
    (AC 18662) (AC 18665)
    O’Connell, C. X, and Landau and Spear, Js.

    Argued January 24
    officially released April 18, 2000

      Howard C. Eckenrode, for the appellants (plaintiffs).

      David J. Scully, for the appellee (defendant).

       The listing of judges reflects their seniority status on, this court as of the date of oral argument.

   Opinion

PER CURIAM.

These consolidated appeals are taken by the plaintiffs, Inversiones Lituanes, S.A., and Inamco (Camin Stock Company), S.A., from judgments rendered in favor of the defendant, E.P. Company, following a consolidated trial to the court. The plaintiffs claim that the court improperly concluded that (1) a third set of promissory notes replaced and canceled two sets of prior promissory notes that were the basis of the plaintiffs’ causes of action and (2) determined that the third set of promissory notes constituted a novation. We affirm the judgments of the trial court.

The bases of the plaintiffs’ appeals are predicated on fact bound issues, including the credibility of witnesses. The standard of review this court applies to factual issues is the clearly erroneous standard. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). “[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Wheeler v. Foster, 44 Conn. App. 331, 334, 689 A.2d 523 (1997). After reading the briefs, hearing the arguments of the parties and reviewing the record, we cannot conclude that the court’s findings of fact were clearly erroneous.

The judgments are affirmed.

       The court found, among other things, that there was no consideration for either of the first two sets of promissory notes.