author: FOTI, J.

text:
    STATE OF CONNECTICUT v. WILLIAM JAMES
    (AC 17248)
    Foti, Landau and Hennessy, Js.

      Argued March 24
    officially released June 29, 1999

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, William James, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l), use of a firearm in the commission of a class A, B or C felony in violation of General Statutes § 53-202k and criminal possession of a weapon in violation of General Statutes § 53a-217. On appeal, the defendant claims that the evidence was insufficient to support his conviction for manslaughter in the first degree. In addition, he claims that the trial court improperly (1) instructed the jury on the duty to retreat, (2) admitted prior misconduct evidence and (3) allowed separate convictions to stand for manslaughter under § 53a-55 (a) (1) and the commission of a class B felony with a firearm under § 53-202k. The defendant finally claims that he was denied a fair trial by three incidents of purported prosecutorial misconduct during closing argument. We vacate the judgment of conviction for the violation of § 53-202k and affirm the judgment of the trial court in all other respects.

The jury reasonably could have found the following facts. On June 28,1994, the sixty-six year old defendant shot the thirty-two year old victim, Sherry Drake, causing her death. The two had a nine year intimate relationship that ended with the victim’s death. The defendant resided at 92 Hudson Street in New Haven. During a substantial portion of their relationship, the victim shared that residence with the defendant. Their relationship was characterized by specific incidents of domestic violence in which firearms were used.

On the night of June 28, 1994, at approximately 10:25 p.m., Sergeant Anthony Griego of the New Haven police department was dispatched to 92 Hudson Street. Upon his arrival, he observed the defendant standing in the doorway and, directly behind the defendant, he observed the victim lying on the floor in a pool of blood. The defendant blurted out, “I shot her because she jumped on me. Look how big she is. I shot her.” The defendant told Griego that he put the gun in the rear bedroom. Griego noted that the defendant had not sustained any gunshot or knife wounds, his clothes did not appear to be ripped, his eyes were not swollen and his face was not cut. Griego further observed that the defendant seemed “fine” and did not seem to be overly emotional.

Officer Jonathan Haddad arrived at the scene shortly thereafter. Haddad heard the defendant repeatedly state, “I told her to get off, she jumped on me, I told her to get off, so I shot her.” He also heard the defendant state, “I shot her twice and the gun is on the bed.” Haddad observed nothing about the defendant’s appearance that led him to believe that the defendant had been involved in a physical altercation, such as cuts, abrasions or bleeding. In addition, there were no weapons, guns or knives near1 the victim’s body.

A .38 caliber revolver containing four live rounds and two spent shell casings was recovered from the defendant’s bedroom. Later tests showed that the bullets that killed the victim had been fired from that weapon. The victim had been shot at close range once in the neck and once in the right armpit. Both were fatal wounds. At the time of her death, the victim had a blood alcohol level of 0.32, and a small amount of cocaine was detected in her system. In his statement to the police that night, the defendant admitted shooting the victim twice following an argument. Additional facts will be set forth where relevant to the issues on appeal.

I

The defendant first claims that there was insufficient evidence to support his conviction for the crime of manslaughter in the first degree. We disagree.

“In reviewing [a] sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). Our review is limited to determining whether the inferences drawn by the jury from the evidence presented are so unreasonable as to be unjustifiable. State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

To convict the defendant of manslaughter in the first degree, the state was required to prove beyond a reasonable doubt that (1) the defendant intended to cause serious physical injury to the victim and (2) he caused her death. See General Statutes § 53a-55 (a) (1). “The intent to cause serious physical injury required for a conviction of manslaughter in the first degree under § 53a-55 (a) (1), by definition, required a juiy’s finding that the defendant caused a physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of a bodily organ. General Statutes § 53a-3 (4).” (Internal quotation marks omitted.) State v. Allen, 28 Conn. App. 81, 89, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992).

The defendant does not contest that he caused the victim’s death; rather, he claims that the evidence was insufficient to show that he intended to cause her serious physical injury when he shot her twice at close range. A person’s intent may be inferred from his conduct, as well as the surrounding circumstances, and is an issue for the trier of fact to decide. State v. Nosik, 245 Conn. 196, 208, 715 A.2d 673 (1998). “[A] factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.” State v. Allen, supra, 28 Conn. App. 89-90.

In the present case, there was sufficient evidence from which the jury reasonably could have inferred the requisite intent to cause serious physical injury to the victim. First, the evidence showed that the defendant had been around guns most of his life, had been trained and was experienced in the use of firearms. There were times when he had as many as twenty guns in his house. He understood the extent of injury that could be inflicted by the use of a handgun. On the date in question, he fired two bullets into the victim, one entering her neck and the other entering her body through her armpit, at close range. The jury heard evidence that on two prior occasions, the defendant had shot the victim during arguments.

Further, on the night of the shooting, his statements to police reasonably could have suggested that the defendant intentionally shot the victim. Following the shooting, the defendant did not call for medical assistance for the victim, nor did he . attempt to provide medical assistance himself. The defendant admitted in his statement to the police, and during his testimony at trial, that he had shot the victim; he claimed, however, that the gun discharged while both struggled for control of the weapon. When conflicting explanations are presented, the jury is not required to accept the testimony and inferences offered on behalf of the defendant. See State v. Sauris, 227 Conn. 389, 402, 631 A.2d 238 (1993).

The evidence presented at trial was more than sufficient for the jury reasonably to have inferred that the defendant intended to cause serious physical injuiy to the victim and that the shooting was not accidental. The evidence, therefore, was sufficient to sustain a conviction of manslaughter in the first degree.

II

The defendant next claims that the trial court improperly instructed the jury on the duty to retreat imposed by General Statutes § 53a-19 (b). Specifically, the defendant claims that the trial court improperly instructed the jury that a codweller is a person who is “usually lodged in [the] premises at night.” We disagree.

Generally, “a person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . .” General Statutes § 53a-19 (a). However, “a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling . . . .” (Emphasis added.) General Statutes § 53a-19 (b). In other words, a person has no duty to retreat before resorting to the use of deadly physical force if he is attacked in his own dwelling.

The “dwelling” exception to the duty to retreat does not apply, however, if the actor is “threatened by another person who also dwells in the same place.” State v. Shaw, 185 Conn. 372, 379, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982). This codweller retreat rule was adopted by our Supreme Court from the Restatement (Second), Torts § 65 (1965) which provides: “The privilege [to defend oneself against another by force intended or likely to cause death or serious bodily harm] exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by (a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other .... The privilege . . . does not exist ... in a place which is also the dwelling of the other . . . .” (Emphasis in original; internal quotation marks omitted.) State v. Shaw, supra, 382.

During the course of the trial, conflicting evidence was presented as to whether the victim was, in fact, a codweller at 92 Hudson Street, the defendant’s home. For example, a portion of the defendant’s testimony indicated that the victim was not living at that address on the night of the incident. In other parts of his testimony, however, and in statements to police, the defendant suggested that he and the victim were living together at that time. In addition, the defendant’s son testified that the two were living together, that the victim kept her clothes in the house and that she was there the night before her death.

The defendant, in filing his written requests to charge, specifically sought that the trial court’s charge include, as part of self-defense, the defendant’s duty to retreat. The trial court instructed substantially as requested. In the defendant’s request to charge, the defendant requested that the trial court employ words such as “reside,” “lived” and “resident,” in reference to the victim’s status as a codweller. The defendant’s argument that the trial court did not “substantially” charge as requested by failing to employ these words is totally without merit.

The trial court instructed that the jury must first determine whether the state had proven that the victim was a codweller with the defendant at 92 Hudson Street and, if it found that the state had failed to prove that, it need go no further on the issue because the defendant would have no duty to retreat. The trial court went on to instruct, however, that if the jury found the victim to have been a codweller, then it had to consider whether the defendant had a duty to retreat in accordance with the rule that a person is not justified in using deadly physical force upon a codweller if he knows that he can avoid the necessity of using force or retreating with complete safety. The trial court described a co-dweller as “a person who ... is usually lodged in those premises at night.”

The defendant appears to argue, for the first time on appeal, that the trial court should have instructed that the victim should not have been considered a codweller if she was committing a crime, such as assault or robbery, or was in violation of a protective order when she entered his home. “A party is not entitled to have a claim reviewed on appeal on grounds different from those presented at trial. ... To hold otherwise would result in trial judges’ being found to have erred on questions never fairly presented to them.” (Citation omitted.) State v. Adams, 36 Conn. App. 473, 482, 651 A.2d 747 (1994), appeal dismissed, 235 Conn. 473, 667 A.2d 796 (1995).

Under § 53a-19, before resorting to the use of deadly physical force, an “actor shall not be required to retreat if he is in his dwelling . . . .” For purposes of § 53a-19, the term “dwelling” is defined as “a building which is usually occupied by a person lodging therein at night .....” General Statutes § 53a-100. We find, therefore, that the trial court’s description of a codweller as “a person who also is usually lodged in those premises at night” was not improper. (Emphasis added.) We conclude that the trial court’s instructions on the duty to retreat were correct in the law, adapted to the issues and sufficient to guide the jury. See State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).

Ill

The defendant next argues that the trial court improperly admitted prior misconduct evidence to show motive, intent and the absence of mistake or accident. We do not agree.

On the night of the killing, June 28, 1994, the defendant voluntarily gave a statement to police, which was taped. Included in this statement was the defendant’s acknowledgment that, on two prior occasions, he and the victim had physical altercations that resulted in the victim’s being shot. One such incident occurred during the early morning of December 4, 1991. The second incident occurred on February 22,1994. Following both incidents, the defendant gave statements to police fully disclosing the details of those incidents. The defendant’s June 28, 1994 statement was admitted into evidence, in its entirety, without objection.

Thereafter, the state, in an offer of proof outside the presence of the jury, indicated to the trial court that it intended to introduce the two statements that the defendant had given police following his previous physical confrontations with the victim on December 4,1991, and February 22, 1994, respectively. It is the introduction of the December 4, 1991 statement that the defendant now claims was improper. In the December 4,1991 statement, which was introduced as a full exhibit and read in its entirety to the jury, the defendant described the incident as follows: On the morning of December 4, 1991, between 1 and 1:30 a.m., the victim attempted to gain entrance to the defendant’s home at 92 Hudson Street. The defendant refused to allow the victim to come in. At some point, however, she was able to get inside, holding what the defendant described as a three and one-half to four foot ax handle. The defendant asked the victim to leave, but she refused.

The defendant then retrieved a .22 caliber pistol that he had placed under a pillow in his bedroom. He told the police that he took out the pistol to “see if [he] could frighten her to leave . . . .” After he displayed the handgun, however, the victim jumped on top of him on the bed and the two started to wrestle. During the altercation, which lasted “a couple of minutes . . . the gun went off about two or three times and [the victim] stopped tussling.” He admitted that his finger was “probably” on the trigger of the gun while he and the victim were fighting. After the weapon was fired, the victim got up and walked out. It was later determined that the victim had sustained a gunshot wound to the chest.

The state argued that this prior incident was relevant to the issue of the defendant’s intent and to refute a claim of accident. The defendant argued that such evidence was not relevant to the issue of intent and, because the defendant clearly did not intend to murder the victim during the prior incident, such evidence could not be used to prove that he intended to murder the victim on June 28, 1994.

The trial court, after reviewing both statements, admitted them for the limited purpose for which they were being offered. Thereafter, when the jury returned to the courtroom, the trial court gave the following limiting instruction: “Now, in the course of the next two witnesses, you are going to hear evidence or testimony concerning two statements that the defendant made on prior occasions. One of those occasions being on December 4, 1991, and the other on February 23, 1994. This is another limiting instruction that I am about to give you. The evidence which you will hear about those statements is going to be admitted for a limited purpose. That is on the issues of intent, motive, the absence of mistake or accident, and who was the initial aggressor, all of which I will deal with when I give you my final charge on the law. The bottom line very simply right up front is that there are very limited puiposes for which those statements are going to be offered, and those are the purposes that I have just identified for you. You are expressly prohibited from using that evidence as evidence of any bad character of the defendant or as any evidence of a tendency on his part to commit criminal acts. If you find the evidence credible . . . you can consider it for the sole and limited propose of assisting you in determining those issues, that is, intent, motive, the absence of mistake or accident and the question of who was the initial aggressor. You can’t consider the evidence for any other purpose.”

In the trial court’s final instructions to the juiy, it charged as follows: “I gave you a charge in the case when you heard the statements of the defendant that were given in 1991 and in 1994, I think it was. I’m referring specifically to certain evidence, namely, the defendant’s statements to the police on December 4, 1991, and on February 23,1994 . . . . They were admitted for a limited purpose, that is, on the issues of intent, motive, and the absence of mistake or accident and who was the initial aggressor. I do riot mean to emphasize the statements or to give them any special weight in your eyes, I simply want to be sure that you understand that your consideration of these statements is strictly limited to the specific puiposes for which I allowed them into evidence. You are expressly prohibited from using the statements as evidence of the bad character of the defendant or as evidence of a tendency to commit criminal acts. If you find any of this evidence credible . . . you may consider it solely to assist you in determining the issue to which I have limited it and for no other purpose. ...”

Generally, “[ujncharged misconduct evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions, and its probative value must outweigh its prejudicial effect.” State v. Weidl, 35 Conn. App. 262, 265, 644 A.2d 1313, cert. denied, 231 Conn. 914, 648 A.2d 160 (1994). “Evidence of uncharged misconduct may not be admitted to show a person’s propensity to commit a certain type of crime, but it is admissible to prove issues such as motive, intent, opportunity, or a common scheme or system of criminal activity.” State v. Plaza, 23 Conn. App. 543, 549, 583 A.2d 925 (1990), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991). “Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983).

“Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” (Internal quotation marks omitted.) State v. Ulen, 31 Conn. App. 20, 28, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). In applying these principles to the facts of this case, we conclude that the trial court did not abuse its discretion in admitting the evidence in question.

The trial court concluded that the evidence concerning the December 4, 1991 incident was relevant to the issues of motive, intent, and as to whether the incident in question was an accident. In his December 4, 1991 statement to police, the defendant indicated that he pulled out the gun before being attacked. In addition, he stated that during his altercation with the victim, the gun was in his hand and that his finger was “probably” on the trigger. He also admitted that the pistol discharged “about two or three times” before the victim “stopped tussling.”

The defendant’s statement was relevant, not necessarily to prove intent in and of itself, but rather “to establish, in connection with the question of intent, a pattern of behavior and an attitude toward the [victim] that is indicative of the defendant’s state of mind.” State v. Tucker, 181 Conn. 406, 415, 435 A.2d 986 (1980). In short, the evidence was admissible to show that the victim’s death resulted from an intentional act rather than from an accident. Id., 416. As our Supreme Court has noted, “[b]ecause intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon.” State v. Baldwin, 224 Conn. 347, 355, 618 A.2d 513 (1993).

After a finding that the evidence is relevant to the issue of motive or intent, the trial court must then decide whether the admission of that evidence is warranted because its probative value outweighs its prejudicial effect. State v. Aponte, 50 Conn. App. 114, 123, 718 A.2d 36, cert. granted, 247 Conn. 926, 719 A.2d 1169 (1998). Here, the trial court, in noting that the evidence was probative on the issue of motive, intent, and as to whether the shooting was accidental, concluded that it was not unduly prejudicial. We agree. The jury had learned that the defendant had shot the victim on two prior occasions through his statement of June 28, 1994, which had already been admitted into evidence without objection. The trial court observed also that parts of the statement actually “reflect[ed] to the defendant’s benefit.” In addition, the trial court repeatedly cautioned the jury on the limited use of this evidence. We find, therefore, that the trial court did not abuse its discretion in allowing into evidence the defendant’s prior misconduct in the form of his 1991 statement to police.

IV

The defendant next claims that he was denied a fair trial by the prosecutor’s repeated acts of purported misconduct during closing argument. We do not agree.

It is well established that prosecutorial misconduct can occur in the course of closing argument. See State v. Atkinson, 235 Conn. 748, 768-69, 607 A.2d 276 (1996). “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” State v. Ferrone, 96 Conn. 160, 169, 113 A. 452 (1921). “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). In order to deprive a defendant of his constitutional right to a fair trial, the prosecutor’s conduct must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987).

The defendant points to three purported instances of prosecutorial misconduct that occurred during closing argument. We will review each specific instance in turn.

A

During the defense portion of the trial, the defendant called Ronald Anderson, a clinical psychologist, as a witness, who diagnosed the defendant as a battered spouse, and testified that the defendant, at times, legitimately feared for his life, but, at other times, had warm feelings for the victim. To rebut this testimony, Anderson was cross-examined about the defendant’s aggressive behavior. In so doing, the state examined Anderson concerning twelve prior incidents of violence that were documented in police reports detailing the defendant’s criminal conduct from 1989 to 1994. The questions concerning the information in those reports were allowed solely to test the basis for Anderson’s opinions about the defendant.

During closing argument, the prosecutor sought to argue that Anderson’s conclusions that the defendant was a “battered spouse” and had a “passive submissive” personality were incorrect in view of his testimony on cross-examination dealing with the numerous police reports, many of which portrayed the defendant as the aggressor. The defendant contends that the argument was improper because the prosecutor was using the police reports as “substantive evidence” rather than as evidence admitted for the limited purpose of testing Anderson’s conclusions.

In determining whether this claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant. State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). In doing this, “we focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” State v. Williams, 41 Conn. App. 180, 190, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996).

Our review of the remarks leads us to conclude that, while the prosecutor may have come very close to overstepping the bounds when referring to the police reports, even if he did make substantive use of the evidence, he did so briefly and that use was neither egregious nor blatant. “Because the challenged conduct occurred solely during the prosecutor’s closing argument, by definition it did not evince a pattern of conduct that was repeated throughout the trial. ” State v. Provost, 49 Conn. 56, 65, 713 A.2d 879 (1998), aff'd, 251 Conn. 252, 741 A.2d 295 (1999).

Further, the trial court gave a limiting instruction in referring to Anderson’s testimony, as well as to the use of the police reports, and cautioned the jury that it was “expressly prohibited from using any of this evidence as evidence of any bad character on the part of the defendant or of a tendency by him to commit criminal acts.” The jury is presumed to follow the trial court’s instructions. State v. Richardson, 214 Conn. 752, 757, 574 A.2d 182 (1990). We conclude, therefore, that this claim is without merit.

B

The defendant has also claimed that the state argued improperly that the defendant was predisposed to commit murder because he had three felony convictions, evidence of which was introduced during the cross-examination of the defendant for the sole purpose of attacking his credibility. Specifically, the defendant claims that the prosecutor improperly used evidence of the prior convictions as “misconduct evidence” in his references to them during closing argument. We do not agree.

The prosecutor remarked during his closing argument: “Now, there’s one thing I want you to keep in mind during the course of your deliberations on this case and it’s a very common sense principle, ladies and gentlemen, and that is a very simple phrase, you can’t tell a book by its cover. You can’t do that. I’m sure many of you when you walked into this courtroom when you were first called here for jury duty and you sat in those seats and you heard Judge Licari read the information and you heard that [the defendant] was charged with murder and two other charges involving weapons violations, I’m sure most of you if not all of you had that reaction. You’re saying to yourself, holy mackerel, this guy, a seventy year old man and he’s in here with a cane, and the fellow is charged with murder and two weapons violations. It’s inconceivable. It’s just inconceivable that someone who looks like this gentleman over here could be charged with that type of conduct. And I’m sure that probably was going through most of your minds. Don’t be fooled by that. Don’t be fooled by appearances. You know, let me ask you this, does anybody know, anybody of you, any one of you on this jury know what a so-called killer looks like? You know, if you look it up in a dictionary, you looked under killers, is it going to have a picture of a certain type of individual? I think many of you have that probably stereotypical view that a killer is somebody who is perhaps a young man, could be black or white, perhaps someone who is muscular looking . . . might have some tattoos, might have a very mean looking face, may be even some scars here and there from gunshots or knives or whatever, that’s our typical view of what a murderer looks like. Don’t be fooled by appearances, ladies and gentlemen. You know appearances are deceiving. You cannot tell by looking at someone whether or not they’re a murderer. You simply can’t do that. I’d ask you to bear that in mind in this case. You know, if you looked at [the defendant] when you first walked in here, you probably said to yourself, geez, you know, looks like a nice old guy, you know, seventy year old guy was sitting there with a cane, he looks harmless, he looks like he wouldn’t hurt anybody, but you heard, that he’s been convicted of felonies three times. Three times. Not once, not twice, but three times. And this is the same gentleman since—who since 1987 on almost a continuous basis has illegally possessed countless firearms. In fact, he’s had so many firearms, he can’t even keep track of them. He can’t remember where they came from, who bought them or where they came from.” (Emphasis added.)

Even if we assume, arguendo, that the isolated references to the defendant’s three felony convictions were inappropriate, the trial court’s instructions to the jury were more than sufficient to ensure that the defendant was not denied a fair trial. During the trial, when the defendant was asked on cross-examination about his prior felony convictions, the trial court instructed the jury as follows: “Ladies and gentlemen, I am allowing that evidence in about prior felony convictions only on the issue of credibility. I’ll explain that to you later, but you cannot consider that evidence of prior convictions as any evidence of any bad character on the part of the defendant or any tendency on his part to commit criminal acts. It is confined to credibility subject to the caveat I gave you earlier about one of those convictions being the predicate for one of the elements of one of the prior crimes.” (Emphasis added.)

Then, in its final charge, the trial court stated: “During the course of this trial, there was testimony concerning previous felony convictions on the part of several witnesses including the defendant, that evidence was offered and admitted for one puipose only, to address the question of the credibility or believability of the witness. A witness’ conviction of a prior felony may be weighed by you, the jury, in testing the credibility of the witness but for that purpose only. You are not required to disbelieve a witness because he has previously been convicted of a felony, it is simply something you may take into account in judging his credibility if you find that it bears at all on that credibility. . . . You cannot consider any conviction of the defendant as evidence of bad character or of a tendency to commit criminal a,cts.” (Emphasis added.)

We conclude that the challenged remarks, to the extent that they were inappropriate, were isolated and brief and did not reflect a pattern of misconduct in the context of the entire trial.

C

The defendant also claims that the prosecutor improperly appealed to the sympathy of the jury. We disagree.

During closing argument, the prosecutor remarked as follows: “You know, during this trial unfortunately [the victim] couldn’t be here with us. [The defendant] made sure of that. And there’s no question that over the years [the victim] had been involved in some things that no one of us can condone. She was involved in domestic abuse, she obviously used alcohol to an excess and she was involved in drugs as well and none of us condone that, but you know something, ladies and gentlemen, despite all of those problems she doesn’t deserve to be dead. She doesn’t deserve—she didn’t deserve to die at the hands of [the defendant]. You know, [the victim] for all her indiscretions paid the ultimate price in this case; she lost her life. She’s not going to have the opportunity to get to [the defendant’s] nice ripe old age of seventy years old, she’s not going to have that opportunity. [The defendant] wants you to believe that he acted in self-defense and he wants you to acquit him of all the charges here, of all the charges. You know, this gives new meaning to the phrase three strikes you’re out. He shot her twice before and now this is time number three and now he wants to try to convince you that he acted in self-defense and in this last shooting he killed her, not only just caused her injury, but he killed her.”

A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990). Such appeals may cause the jury’s attention to be diverted from its duty to decide the case on the evidence. State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). A prosecutor may, however, present arguments with logical force and vigor. State v. Sherman, 38 Conn. App. 371, 401, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). Our review of the challenged remarks leads us to conclude that they were not improper. Even if the challenged remarks were inappropriate because they were made as an appeal for sympathy for the victim, they were not egregious or part of a pattern of misconduct throughout the trial.

Any impropriety was offset by the trial court’s final charge, in which it told the jury: “Certain things are not evidence and you may not consider them in deciding what the facts are. These nonevidential things include: One, arguments and statements by the attorneys. The lawyers are not witnesses, what they have said during the course of the trial or in their closing arguments is intended to help you interpret the evidence, but it is not evidence. You should weigh and consider the arguments of counsel as to the facts, but if the facts as you remember them differ from the way I or the lawyers have stated them, your memoiy of them controls. If you believe that any attorney stated a personal opinion about the guilt or innocence of the defendant or about the credibility of any witness, you can disregard such opinions because they are exclusively yours to make.”

The trial court also specifically instructed that the jury should not be “influenced by any sympathy for the accused, his family, for the victim or her family or for any other person who might in any way be affected by your decision.” To the extent that the prosecutor’s remarks may have been inappropriate, they did not deprive the defendant of a fair trial.

V

The defendant finally claims that his conviction for the use of a firearm in the commission of a class A, B or C felony in violation of General Statutes § 53-202k should be vacated. We agree.

In State v. Dash, 242 Conn. 143, 146, 698 A.2d 297 (1997), our Supreme Court addressed whether § 53-202k constituted a separate substantive offense, and concluded that it is only a sentence enhancement provision and not a separate offense of which a defendant could actually be convicted. The state concedes, and we agree, that Dash is controlling here and that the defendant’s conviction under § 53-202k should be vacated. Accordingly, we remand the case to the trial court to vacate that conviction and to resentence the defendant.

The defendant was sentenced as follows: manslaughter in the first degree—twenty years imprisonment, suspended after ten years, followed by three years probation; use of a firearm in the commission of a class A, B or C felony—five years imprisonment to run consecutively; and criminal possession of a firearm— two years imprisonment to run concurrently with count one. Accordingly, although the total effective sentence in this case was proper, it must be modified to reflect the fact that § 53-202k was not a separate offense. See State v. Dash, supra, 242 Conn. 150; State v. Carter, 47 Conn. App. 632, 649, 708 A.2d 213, cert. denied, 244 Conn. 909, 713 A.2d 828 (1998).

The judgment is reversed in part and the case is remanded with direction to vacate the defendant’s conviction for use of a firearm in the commission of a class A, B or C felony in violation of General Statutes § 53-202k and to resentence the defendant for manslaughter in the first degree and criminal possession of a weapon to a total effective sentence of twenty-five years imprisonment, execution suspended after fifteen years, with three years of probation to follow. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when he possesses a firearm . . . and (1) has been convicted of ... a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216 . . . .” During trial, the defendant stipulated that on July 17, 1987, he was convicted of a class D felony.

       The defendant was charged with the crime of murder in violation of General Statutes § 53a-54a. The defendant requested that the trial court instruct the jury on manslaughter in the first degree, as a lesser included offense of murder. The jury returned a verdict of guilty of the lesser offense.

       The defendant’s written request to charge provided in relevant part: “The law does not encourage the use of deadly force, and in most circumstances, a person must retreat from a perceived harm, if he is capable of doing so with complete safety. [The defendant] would not have been justified in using physical force if you are convinced the state proved beyond a reasonable doubt that (1) [the defendant] had a duty to retreat, and if such retreat was completely safe and available ....
      “Under the self-defense provisions, a person has no duty to retreat if the confrontation occurs in his home. You have heard conflicting testimony concerning whether [the victim] lived at 92 Hudson [Street]. If you find that [the victim] did not reside at 92 Hudson [Street], then [the defendant] had no duty to retreat from the encounter. If you believe that [the victim] was a resident of 92 Hudson [Street], then you, the jury, must determine whether safe retreat was available, and whether the defendant knew of it.”
      In addition, during closing argument, defense counsel stated: “Now, ordinarily in your own home if you’re attacked by somebody you have no obligation to retreat. In this case, there may be a duty to retreat. This is an issue for you to resolve if you find that [the victim] was a codweller living there with [the defendant], in other words, at that time. Because if that’s a fact then she has some protections by virtue of being there in her home as well as his home, and therefore he would have some duty to retreat.”

       The court instructed on the defendant’s duty to retreat as follows: “There are three separate circumstances under which a person is not justified in using deadly physical force. If the state proves beyond a reasonable doubt any one of these circumstances, you shall find that the defendant was not justified in using deadly physical force. You must consider each circumstance separately and independently of the others and your decision on any one of them is not controlling on the rest. . . .
      “Under the third circumstance, a person is not justified in using deadly physical force upon a codweher. . . .
      “As a general rule, a defendant is not required to retreat in his own dwelling before he may use force. A dwelling is defined in our law as a place which is usually occupied by a person lodging therein at night. Usually occupied means customary or routine nightly occupancy. To this general rule there is an exception which you may or may not apply here, that will be for you to determine as a question of fact. That exception is that one claiming self-defense in his own dwelling has the duty to retreat from a codweller before he may employ force against that codweller. A codweller is a person who also is usually lodged in those premises at night.
      “Accordingly, you must first determine if the state has proven that [the victim] was a codweller with the defendant at 92 Hudson Street. If the state has failed to prove that [the victim] was a codweller, then you go no further on this issue as the defendant would have no duty to retreat. If, however, you find that the state has proven that [the victim] was a codweller with the defendant, you would then consider whether the defendant had a duty to retreat in accordance with the following rule. Under the third circumstance, a person is not justified in using deadly physical force upon a codweller if he knows that he can avoid the necessity of using such force or retreating with complete safety. This means both that retreat was completely safe and available and that the defendant knew it. Complete safety means without any injury whatsoever to him. As I have said, self-defense requires you to focus on the person claiming self-defense on what he reasonably believed under the circumstances and it presents a question of fact as to whether a retreat with complete safety was available and whether the defendant knew it. The law stresses that self-defense cannot be retaliatory, it must be defensive and not punitive so you must ask yourself, did the defendant know that he could avoid the use [of] deadly force by retreating with complete safety. If so, and yet he chose to pursue the use of deadly physical force, you shall reject the self-defense claim. If you find that the state has proven beyond a reasonable doubt that the defendant and [the victim] were codwellers and that a retreat with complete safety was available to the defendant and that the defendant knew it, but did not retreat, you shall then find that the state has proven beyond a reasonable doubt that the defendant was not justified in using deadly force.”

       The relevancy of this evidence must be viewed in light of the admission of additional evidence, also introduced in the form of the defendant’s statement to police, concerning the second incident, which occurred on February 22, 1994. In his statement at that time, the defendant admitted shooting the victim during a physical confrontation. After stating that he had shot the victim in the hip, the defendant indicated that the incident “could have been a lot worse” because he “could have reached up a little higher . . . [and] have hit her through the chest.” Later during that statement, the defendant stated: “I’m not gonna let her beat me up—beat up on me any time she feels like it now, that’s where we have a problem, ya know, we can’t talk it out, ya know. . . . She’s not going to beat up on me anytime she feels like it.” This additional evidence supports our conclusion that the December 4, 1991 incident evidences “a pattern of behavior and an attitude toward the victim that is indicative of the defendant’s state of mind.” State v. Tucker, supra, 181 Conn. 415.
      Additionally, while it appears that the defendant objected to the introduction of this evidence at trial, he has not claimed on appeal that its admission was improper. He argues only that the introduction of the evidence concerning the 1991 incident was improper. So, while we note the introduction of this evidence at trial in our analysis of the defendant’s claim on appeal, we do not undertake an independent review of the propriety of that admission.

       The defendant subsequently acknowledged this potential benefit by requesting the trial court to instruct the jury that it could consider the statements in assessing who was the initial aggressor for purposes of the defendant’s claim of self-defense. The defendant also argued that the facts set forth in the 1991 statement were exculpatory rather than inculpatory.

       The state argues that we should not review this claim because the defendant raised no objections to the use of the police reports and did not seek a limiting instruction regarding this evidence when it was admitted. The defendant claims that this evidence was admitted for the limited purpose of testing Anderson's diagnosis and that an appropriate limiting instruction was sought. We agree that this claim should be reviewed.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    PATRICIA KELLY v. LAWRENCE KELLY
    (AC 18054)
    Spear, Sullivan and Dupont, Js.

      Argued February 23
    officially released June 29, 1999

      William C. Bieluch, Jr., for the appellant (plaintiff).

      Mille M. Fazzio, for the appellee (defendant).

      Elizabeth T. Sharpe, for the minor children.
   Opinion

DUPONT, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s postjudgment motions. The plaintiff also appeals from the decision of the trial court denying her motion to reargue. The plaintiff claims that the trial court (1) violated her due process rights by granting the defendant’s motions without holding an evidentiary hearing and (2) improperly modified the August 20,1996 dissolution judgment without finding a material change in circumstances since the prior order of the court or without finding that such modification was in the children’s best interests. We reverse the judgment of the trial court in part and affirm it in part.

The following facts and procedural history are relevant to this appeal. On August 20, 1996, the trial court dissolved the parties’ marriage and awarded sole custody of their minor children to the plaintiff, with reasonable visitation rights in the defendant. The dissolution judgment incorporated by reference the parties’ separation agreement, which contained the terms and conditions of custody and visitation of the two minor children. Since the date of the dissolution judgment, the parties have filed numerous motions concerning the issues of custody and visitation of the minor children. Five of those motions are the subject of this appeal.

On November 5, 1997, the defendant filed a motion to modify the dissolution judgment to seek joint custody of the children on the ground that there was a substantial change in circumstances of the parties because the defendant was being denied visitation by the plaintiff. The defendant also filed a motion seeking an order finding the plaintiff in contempt for failing to comply with the agreement of the parties concerning visitation.

On January 13, 1998, the defendant filed three additional motions. The defendant’s motion for referral to the family relations office sought an order requiring the parties to mediate certain issues as set forth in the August 20, 1996 dissolution decree and agreement incorporated therein. Another motion sought to modify the August 20,1996 agreement of the parties concerning therapy sessions and to modify a January 6,1997 stipulation of the parties regarding certain conditions of the defendant’s visitation of the minor children. A third motion requested an order finding the plaintiff in contempt and requiring the children and the plaintiff to resume therapy in accordance with their written stipulation for judgment.

At the short calendar hearing on January 26, 1998, the trial court heard arguments from counsel as to the pending motions. The plaintiffs counsel requested that the motions be dismissed and, in the alternative, that he be allowed to present witnesses to address the allegations contained in the motions. The trial court, however, granted the defendant’s motions, stating, “No hearing. No evidence.”

Subsequently, on March 30, 1998, in response to the plaintiffs motion requesting that the trial court articulate its reasons for granting the defendant’s motions without an evidentiary hearing, the trial court filed a written articulation. In its articulation, the trial court stated that it was familiar with the file, having conducted “an extensive evidentiary hearing concerning postjudgment visitation in 1997.” The court noted that most of the postjudgment filings relate to visitation, pickup and drop-off arrangements, transportation and telephone calls to and from the minor children. The court detailed its prior involvement with the file as to visitation rights, and its review of the transcripts of hearings conducted by another judge on visitation. Basically, the trial court’s reasons for not scheduling an evidentiary hearing were that “micromanaging” the file was consuming too much valuable court time, counsel of the parties could not agree as to the existing court orders, an evidentiary hearing could not be scheduled for six weeks and the court had prior knowledge of the file and the transcripts of other hearings on the subject of visitation. The question is whether an evidentiary hearing was required, given the nature of the motions to be decided and the circumstances as described by the trial court.

The plaintiff first claims that the trial court improperly granted the defendant’s motion modifying the August 20, 1996 judgment concerning custody without finding that a material change of circumstances had occurred or that the order sought to be modified was not based on the best interests of the children. We agree.

The authority to render orders concerning custody and visitation is found in General Statutes § 46b-56, which provides in relevant part: “(a) In any controversy before the Superior Court . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . . .” That section further provides that in “modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . .” General Statutes § 46b-56 (b). “[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child.” (Internal quotation marks omitted.) Walshon v. Walshon, 42 Conn. App. 651, 657, 681 A.2d 376 (1996).

“To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided .... Rather, the trial court’s discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.” (Citations omitted.) Borkowski v. Borkowski, 228 Conn. 729, 737-38, 638 A.2d 1060 (1994).

The effect of the trial court’s granting of the defendant’s motion to obtain joint custody was to modify the August 20, 1996 judgment awarding sole custody of the minor children to the plaintiff. In this case, however, the trial court made no finding of a substantial change in circumstances or concerning the best interests of the children. Hall v. Hall, 186 Conn. 118, 120-21, 439 A.2d 447 (1982) (paramount concern in ordering custody is best interests of child); Brubeck v. Brubeck, 42 Conn. App. 583, 585, 680 A.2d 327 (1996) (trial court must find material change in circumstances since prior order of court before modifying custody, but ultimate test is best interests of child). Accordingly, the trial court’s modification of the dissolution decree without a requisite finding was improper, and the defendant’s motion for a modification of custody should not have been granted.

One of the defendant’s motions sought modification of a January 6,1997 stipulation of the parties concerning visitation in which the defendant agreed not to go to the plaintiffs house or to the Glenbrook community center. The plaintiff claims that the trial court improperly granted this motion without holding an evidentiary hearing.

Pursuant to § 46b-56, a trial court may at any time modify any proper order regarding visitation. In modifying an order concerning visitation, the trial court shall “be guided by the best interests of the child . . . .” General Statutes § 46b-56 (b). Here, the trial court orally granted the motion modifying visitation without a hearing and evidence concerning the children’s best interests. The modification sought by the defendant was not trivial in view of the history of the parties; the effect of the trial court’s granting of the motion was to permit the defendant to visit the children at the plaintiff s home and at the Glenbrook community center. A review of the record in this case reveals numerous incidents involving disputes between the parties at the plaintiffs home that resulted in police intervention. Given the history of this bitter and protracted dissolution case and the hostility between the parties as noted by the trial court in its articulation, and as evidenced by the myriad of post-judgment filings concerning the issue of visitation, the change in visitation here constituted a substantial modification of the previous visitation order. We therefore conclude that the trial court should have held an evidentiary hearing to determine whether such modification was in the best interests of the children. The granting of this motion without such a hearing was improper.

The next ruling of which the plaintiff complains ordered the resumption of therapy with a particular therapist as previously ordered. The plaintiff claims that she should have been able to introduce evidence in connection with her objection to the defendant’s motion concerning which therapist should be hired for the family members and who should pay for it. In the absence of an evidentiary hearing, she claims a denial of federal and state constitutional rights. To determine which therapist should treat the mother, father and children, it was necessary to take evidence. The court was aware that “a substantial amount of evidence would be offered” and that a child psychologist was present to testify. As to this failure to hold an evidentiary hearing, we conclude that the plaintiff must be given a reasonable opportunity to be heard. Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993). “It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved. . . . Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Citation omitted; internal quotation marks omitted.) Id.; see also Woodward v. Woodward, 44 Conn. App. 99, 103, 686 A.2d 1010 (1997).

The plaintiff next argues that the trial court violated her due process rights by finding her in contempt without holding an evidentiary hearing. We agree.

“Contempts of court may be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court. Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985).” (Internal quotation marks omitted.) Duve v. Duve, 25 Conn. App. 262, 269, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992). The plaintiffs alleged failure to comply with the visitation order is, therefore, indirect contempt because it occurred outside the presence of the trial court. See id.

“A finding of indirect civil contempt must be established by ‘sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony. ... A trial-like hearing should be held if issues of fact are disputed.” (Citation omitted; emphasis added.) Bunche v. Bunche, 36 Conn. App. 322, 324, 650 A.2d 917 (1994). “Due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. . . . Because the inability of [a party] to obey an order of the court, without fault on his part, is a good defense to a charge of contempt . . . the [party] had the right to demonstrate that his failure to comply with the order of the trial court was excusable.” (Citations omitted; internal quotation marks omitted.) Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994).

Here, in its articulation, the trial court noted that it had held a lengthy hearing on February 24,1997, a short calendar date, concerning other postjudgment motions relating to visitation, pickup and drop-off of the children. The court also referred to an evidentiary hearing held on April 7, 1997, before another court in which the court expressed concern for the hostility between the parties, the court’s micromanaging the daily activities of the plaintiff and the defendant concerning visitation and the negative effect the parties’ conduct was having on the children. The court acknowledged that witnesses were present and ready to testify and that substantial evidence would be offered, resulting in a lengthy hearing. The court rendered its decision based on “the court’s prior knowledge of the file, argument of counsel, its prior hearing, the facts and information contained in the portion of the file furnished by the parties to the court, and the transcript of Judge Kavanewsky’s findings, opinions and orders taking into account the practical effect of the pressure on the court system with inadequate staff and time to hear each matter, and balancing the seriousness of the other cases that were on the docket which had not utilized extensive court time.”

The trial court’s finding of contempt based on the unsworn representations of counsel was improper. “A judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper proceeding.” Gattoni v. Zaccaro, 52 Conn. App. 274, 284, 727 A.2d 706 (1999). Furthermore, the trial court’s reliance on findings and evidence from prior evidentiary hearings was insufficient to satisfy the due process rights guaranteed to the plaintiff because those hearings involved motions and factual disputes different from the one for contempt before the court. Here, the factual issues of whether the plaintiff failed to comply with various court orders concerning visitation and therapy and the reasons for any such noncompliance were disputed. The trial court did not hold an evidentiary hearing to resolve those issues. The trial court’s contempt finding, therefore, lacked evidentiary support. Accordingly, we conclude that the trial court improperly held the plaintiff in civil contempt and that a new hearing is required on the defendant’s motion for contempt.

The plaintiffs final claim concerning the issue of whether she was entitled to an evidentiary hearing concerns the defendant’s motion for referral to the family relations office. She claims that the trial court improperly granted this motion without holding an evidentiary hearing. We are not persuaded. This claim does not directly involve issues of custody and visitation. Moreover, the plaintiff has failed to cite any legal authority to support her claim that she is entitled to an evidentiary hearing to determine whether a referral is needed.

The plaintiff also appeals from the trial court’s denial of her motion to reargue. We note, however, that the plaintiff asserts in her statement of issues that the trial court improperly denied her motion to reargue without holding an evidentiary hearing, and that the plaintiff does not raise any other claims in her brief relating to her appeal from the trial court’s denial of her motion to reargue. Practice Book § 11-12 specifically provides that a “motion to reargue shall be considered by the judge who rendered the decision or order. Such judge shall decide, without a hearing, whether the motion to reargue should be granted.” (Emphasis added.) The plaintiffs claim is therefore without merit.

The judgment is reversed in part and the case is remanded for an evidentiary hearing on the defendant’s motions for contempt, modification of custody, and modification of the parties’ agreements as to therapy and visitation. In all other respects, the judgment is affirmed.

In this opinion the other judges concurred.

      A motion for review filed in this court by the plaintiff on February 27, 1998, was accompanied by a “History of the Case” that contained a five and one-half page list of the various motions filed by both parties since September, 1994.

       On January 29, 1998, the plaintiff filed this appeal. On February 6, 1998, the plaintiff filed a motion for stay pending appeal and a motion to reargue. The trial court denied both motions. On February 27,1998, the plaintiff filed an amended appeal from the trial court’s denial of her motion for stay and motion to reargue. This court dismissed the port ion of the plaintiffs amended appeal that raised a stay question.

       The trial court correctly lists, in its articulation, the defendant’s motions that were before it, which the judgment file shows as all granted. The trial court, however, in its articulation, changes the outcome of two of the motions and does not rule on another. The articulation states that “[a] January 26, 1998 family services referral would be fruitless" and that “[i]n effect, the January 26,1998 order changed the pre-January 26,1998 status of the parties: (1) The location of the visitation pickup and drop-off changed, (2) the children were ordered to resume the previous court-ordered therapy with the therapist designated in that order, not the therapist unilaterally chosen by the plaintiff mother, (3) the plaintiff would pay modest attorney’s fees to the defendant, the amount of which was not then determined, (4) the custody modification and ail other motions, did not intend to change the custody orders in effect as of January 26, 1998, and (5) the mother was found in contempt for interfering with visitation but no sanctions were ordered.” (Emphasis added.) In effect, the articulation changes the prior judgment as to the motions concerning custody and the family relations referral. The articulation states that custody was not changed and that a referral to family services was not warranted, in effect denying rather than granting the defendant’s motions. “[PJroper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision .... An articulation, however, is not an opportunity for a trial court to substitute a new decision [or] to change the reasoning or basis of a prior decision.” (Citation omitted; internal quotation marks omitted.) Walshon v. Walshon, 42 Conn. App. 651, 655-56, 681 A.2d 376 (1996). Accordingly, we are constrained to follow the transcript of the oral decision and the judgment file signed by the trial judge, which reflect that the motions to modify custody and for a referral to family relations were granted.
      None of the defendant’s motions relates to a request to modify drop-off and pickup locations for visitation with the children, as is stated in the trial court’s articulation. A motion to delete a paragraph of the parties’ prior agreement relating to visitation was not discussed in the articulation, although granted in the judgment file and orally.

      The parlies in 1his case filed other postjudgment motions concerning visitation, resulting in the trial court’s micromanaging every minute detail of pickup and drop-off. For example, on February 24,1997, at a lengthy short calendar hearing, the court had established detailed visitation guidelines. The children were to be picked up in a Roman Catholic church nearest to the Whitestone bridge; each party was to telephone ihe other one hour prior to the designated visitation; the court entered orders in case one of the parties arrived late; the plaintiff was ordered to have another adult with her to drive; neither party was to bring a camera; and the exchange of visitation would lake place inside the church, parish hall or rectory.

       The trial court was understandably concerned about judicial economy and about the parties’ inability to manage a peaceful relationship for the benefit of their children.

       In this case, the court granted the motion for referral although its articulation states that a referral would be fruitless. See footnote 3.


author: SPALLONE, J.

text:
    STEVEN M. MAILHOT v. COMMISSIONER OF MOTOR VEHICLES
    (AC 18422)
    Foti, Landau and Spallone, Js.
    Argued March 29
    officially released June 29, 1999

      Richard F. Paladino, for the appellant (plaintiff).

      Roberto Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

SPALLONE, J.

This appeal is taken after an administrative department of motor vehicles per se hearing and from the trial court’s judgment dismissing the appeal. We affirm the judgment of the trial court.

The plaintiff, Steven M. Mailhot, challenged the decision of the defendant commissioner of motor vehicles (commissioner) suspending the plaintiffs motor vehicle operator’s license for refusing to submit to a chemical test of his breath or urine pursuant to General Statutes § 14-227b (c). The hearing officer found the issues in favor of the defendant, including a finding that the plaintiff refused to take the test. The plaintiff appealed to the trial court, which found that there was sufficient evidence in the record to support the hearing officer’s finding that the plaintiff refused to submit to the required test for alcohol level. This appeal followed.

The plaintiff claims that the trial court improperly upheld the action of the commissioner admitting into evidence the A-44 report and supplemental report by concluding that the A-44 report contained an endorsement by a third party who had witnessed the plaintiffs refusal to take the test. The plaintiff also claims that the trial court improperly upheld the hearing officer’s order suspending the plaintiffs license, citing the same reasons stated in his first claim.

In essence, the plaintiffs claim is based on an interpretation of the requirement in § 14-227b (c) that “[t]he police officer shall prepare a written report of the incident .... The report shall be made on a form approved by the Commissioner of Motor Vehicles [the A-44 report contested here is the approved form] and shall be subscribed and sworn to ... by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. ...”

The construction of a statute is a question of law, and, therefore, the review on appeal is plenary. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Thus, when determining a question of law referencing the interpretation of a statute, a broader standard of review is invoked than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 718, 546 A.2d 830 (1988); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 5, 434 A.2d 293 (1980).

Section 14-227b-19 (a) of the Regulations of Connecticut State Agencies provides that “[t]he written report filed by the arresting officer shall be admissible into evidence at the hearing if it conforms to the requirement of subsection (c) of Sec. 14-227b of the General Statutes.” The plaintiff argues that the A-44 report, the police report, should not have been admitted into evidence at the administrative hearing because it did not include an endorsement by a third person as required by § 14-227b (c) in the event of a refusal to take the test. In the present case, the A-44 report was sworn to by Sergeant Cliff Barrows, the arresting officer. In addition to Barrows’ signature, Officer Charles Della Rocco signed as a witness to the refusal. The hearing officer, in determining whether a third person witnessed the refusal, counted the plaintiff and both police officers. The plaintiff insists that the signatures of three police officers are required. We find the plaintiffs position to be without merit.

The fundamental objective when engaging in statutory interpretation is to ascertain and give effect to the apparent intent of the legislature. To accomplish this end, we look to the actual wording of the statute, the legislative histoiy and the circumstances surrounding its enactment. State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995).

The Superior Court, each time that it has ruled on the requirements of the statute, has repeatedly rejected the notion that three police officers have to sign the A-44 repoit. Since 1993, our trial courts have held that in a refusal case the signature of two police officers on the A-44 report fulfilled the statutory requirement of § 14-227b (c). Clearly, the statute requires that, in addition to the person charged and the arresting officer, any refusal to take the test must be witnessed by a third party. Obviously, the intent of this provision is to avoid a “my word against yours” situation.

This court concludes that, in addition to the requirement that the A-44 report be subscribed and sworn to by the arresting officer, when the person arrested refuses to take the test, the signature of only one other witness is needed.

We hold that § 14-227b (c), where there is a refusal to take the test by the party arrested, requires, at a minimum, the presence of three persons, i.e., the person charged, the arresting officer and a third party witness, who may or may not be the same person who took the arresting officer’s oath.

Accordingly, we conclude that the trial court, in concluding that the hearing officer properly admitted into evidence the A-44 report and that the hearing officer properly suspended the plaintiffs driver’s license, acted reasonably and prudently in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227b (c) provides: “If the person arrested refuses to submit to such test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period and shall issue a temporary operator’s license or nonresident operating privilege to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report, shall be made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight."

         See, e.g., Vojick v. Commissioner of Motor Vehicles, Superior Court, judicial district of New London, Docket No. 537452 (July 22, 1997); Tuttle v. Commissioner of Motor Vehicles, judicial district of Hartford-New Britain at Hartford, Superior Court, Docket No. 555532 (June 28, 1996) (17 Conn. L. Rptr. 221); Montambault v. Commissioner of Motor Vehicles, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 553094 (December 19, 1995); Kall v. Commissioner of Motor Vehicles, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 705030 (December 21, 1994); Yankofske v. Dept. of Motor Vehicles, Superior Court, judicial district of Waterbury, Docket No. 110470 (March 3, 1993).

       Although the statute is not ambiguous, we also note the legislative history. A fair reading of the remarks of State Senator Clinton A. Leonhardt, in moving for passage of the bill providing for this legislation, clearly indicates that in addition to the person charged and the arresting officer, the signature of only one other person is required. Senator Leonhardt stated, inter alia, “First of all, no one can be asked to be given this test unless they have been arrested for probable cause for driving under the influence so there has to be some independent source of the arrest; erratic driving, speeding, and then the smelling of the breath and that sort of thing. The police officer has to have independent cause for administering the test. In line 113 of the Bill, it provides for two different tests to be given. If there is a refusal the police officer has to say so under oath. It has to be in front of a third party so its not something the police officer is making up on his own and then very importantly, the bill makes provision for an immediate post suspension hearing ... so that the Constitutional due process rights of drivers are protected.” 24 S. Proc., Pt. 18, 1981 Sess., pp. 5672-73.


author: SCHALLER, J.

text:
    NATIONAL LOAN INVESTORS LIMITED PARTNERSHIP v. HERITAGE SQUARE ASSOCIATES ET AL.
    (AC 18074)
    Landau, Schaller and Daly, Js.
    Argued February 23
    officially released June 29, 1999

      Mark T. Kelly, for the appellant (defendant Anne M. Fox).

      Frederic S. Ury, with whom, on the brief, were Neal L. Moskow and Deborah M. Garskof for the appellee (plaintiff).
   SCHALLER, J.

The defendant Anne M. Fox, a former partner of the defendant Heritage Square Associates (Heritage), appeals from the judgment of the trial court in favor of the plaintiff, National Loan Investors Limited Partnership. On appeal, Fox claims that the trial court improperly applied the federal statute of limitations provided in the Financial Institutions Reform, Recovery, and Enforcement Act, 12 U.S.C. § 1821 (d) (14) (FIRREA), to conclude that the plaintiffs action was timely filed. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On October 28,1987, Heritage, acting by its three partners, Joseph P. Wagenseller, Virginia F. Wagenseller and Fox, executed and delivered a promissory note in favor of Mechanics & Farmers Savings Bank (Mechanics & Farmers) in the principal amount of $500,000. The note was secured by a second mortgage on real property located in Fairfield that was to be subdivided into a number of condominium units and sold separately. The partners individually guaranteed payment on the note, together with reasonable attorney’s fees, through a separate written agreement. The note, which was payable on or before November 1, 1988, was not paid when due. Thereafter, Heritage made four partial payments after the due date of the note, the last being made on September 4, 1990. On June, 15 1990, Heritage executed a document, which by its terms discharged and released Fox from any and all liabilities incurred by Heritage, including the note, and indemnified her from any claims or debts against Heritage.

On August 9, 1991, Mechanics & Farmers was declared insolvent and taken over by the Federal Deposit Insurance Corporation (FDIC) as its receiver. On October 29, 1993, the plaintiff purchased the note from the FDIC’s servicing agent, the Consolidated Asset Recovery Corporation (Consolidated). Thereafter, the first mortgagee foreclosed its mortgage, and Mechanics & Farmers, the FDIC and Consolidated were not able to recover any funds.

On August 10, 1995, the plaintiff began this action to recover the amount owed under the terms of the note. In count one of the complaint, the plaintiff sought recovery against Heritage for breach of contract. In count two, it sought recovery against the defendants Joseph Wagenseller, Virginia Wagenseller and Fox in their capacities as individual guarantors of the note. Among other defenses, the defendants claimed that the plaintiff’s cause of action was barred by the six year statute of limitations provided for in General Statutes § 42a-3-118. Fox also filed a cross complaint against Heritage and Joseph Wagenseller alleging that she withdrew from the partnership in June, 1990, at which time Heritage and Joseph Wagenseller, jointly and severally, agreed in writing to indemnify and to hold her harmless from any claims or debts that Heritage had previously incurred or might incur in the future.

In its memorandum of decision, the trial court adopted the attorney trial referee’s recommendation and rendered judgment in favor of the plaintiff against Heritage and against the Wagensellers arid Fox as guarantors of the note, jointly and severally, in the amount of $140,218.71. On the first count of the complaint, the trial court determined that Heritage was hable to the plaintiff for breach of contract. On the second count, the trial court determined that the individual defendants were liable to the plaintiff as guarantors of the note.

With regard to the defendants’ statute of limitations special defense, the trial court concluded that the action was not barred by either the state or federal statutes of limitation. The trial court determined that the state statute of limitations was tolled by partial payments made after the due date on the note. Because the last . payment was made on September 4,1990, the plaintiffs claim, dated August 10, 1995, was timely filed within the state six year limitations period. The trial court also determined that even if the state statute of limitations had expired, the plaintiff was afforded a new six year period in which to bring a claim that commenced with the FDIC’s appointment as receiver on August 9, 1991, pursuant to 12 U.S.C. § 1821 (d) (14). As an assignee of the FDIC, the plaintiff was afforded the benefit of the extended six year limitations period, which would allow the proper filing of a claim through August 9, 1998. The trial court therefore accepted the attorney trial referee’s conclusion that the present action was not barred by the statutes of limitation found in either § 42a-3-118 or 12 U.S.C. § 1821 (d) (14) and rendered judgment in favor of the plaintiff. The trial court also rendered judgment in favor of Fox against Heritage and Joseph P. Wagenseller on her cross complaint seeking indemnification for any judgment against her. This appeal followed.

On appeal, Fox argues that the statute of limitations provided in 12 U.S.C. § 1821 (d) (14) does not apply to the plaintiff because it is “personal” to the FDIC by virtue of its status as receiver and, therefore, it is not capable of assignment to the plaintiff. The plaintiff argues conversely that by virtue of the assignment, it steps into the shoes of the assignor and, therefore, derives all the rights, remedies and benefits that are incidental to the note, including the extended limitations period provided in 12 U.S.C. § 1821 (d) (14). The dispositive issue for us, therefore, is whether the plaintiff, as an assignee of the FDIC, receives the benefit of the extended six year limitations period provided in 12 U.S.C. § 1821 (d) (14).

Statutory interpretation is a question of law, and, therefore, our review is plenary. North Haven v. Planning & Zoning Commission, 220 Conn. 556, 561, 600 A.2d 1004 (1991). When interpreting statutes, we rely on well established principles of statutory construction. “[Ojur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Castagno v. Wholean, 239 Conn. 336, 339, 684 A.2d 1181 (1996). It is axiomatic, however, that when the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. See Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990).

Because the federal statute is silent as to whether the extended hmitations period applies to assignees who purchase defaulted assets from the FDIC, a number of courts have turned to state law and common-law principles governing assignments to resolve the issue. See Federal Financial Co. v. Hall, 108 F.3d 46, 48 (4th Cir.), cert. denied, 522 U.S. 858, 118 S. Ct. 157, 139 L. Ed. 2d 102 (1997); Remington Investments, Inc. v. Kadenacy, 930 F. Sup. 446, 449 (C.D. Cal. 1996); Federal Financial Co. v. Levine, 248 App. Div. 2d 25, 28, 679 N.Y.S.2d 679, 681 (1998); Federal Financial Co. v. Gerard, 90 Wash. App. 169, 949 P.2d 412 (1998). Of those courts considering this issue, nearly all have extended the federal limitations period to assignees. See, e.g., United States v. Thornburg, 82 F.3d 886 (9th Cir. 1996); Federal Deposit Ins. Corp. v. Bledsoe, 989 F.2d 805 (5th Cir. 1993); Bruin Holdings v. Moderski, 960 F. Sup. 62 (M.D. Pa. 1996); Federal Financial Co. v. Levine, supra, 679 N.Y.S.2d 682. In Bledsoe, the United States Court of Appeals for the Fifth Circuit noted that “[i]t is an axiomatic principle of statutory construction that in effectuating Congress’ intent courts are to fill the inevitable statutoiy gaps by reference to the principles of the common law.” Federal Deposit Ins. Corp. v. Bledsoe, supra, 810. The Bledsoe court found support for the proposition of filling gaps within the federal statutes with state common-law principles in Justice Jackson’s concurring opinion in D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942) (Jackson, J., concurring), where he stated that “ ‘[t]he Federal courts have no general common law . . . [b]ut that is not to say that wherever we have occasion to decide a Federal question which cannot be answered from Federal statutes alone we may not resort to all of the source material of the common law. . . Federal Deposit Ins. Corp. v. Bledsoe, supra, 810, quoting D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., supra, 469-72.

In Connecticut, it is well established in the common law that an assignee stands in the shoes of the assignor. See Leonard v. Bailwitz, 148 Conn. 8, 13, 166 A.2d 451 (1960); Mall v. LaBow, 33 Conn. App. 359, 363, 635 A.2d 871 (1993), cert. denied, 229 Conn. 912, 642 A.2d 1208 (1994); Second Exeter Corp. v. Epstein, 5 Conn. App 427, 430, 499 A.2d 429 (1985). Because the note in the present case is a negotiable instrument; see General Statutes § 42a-3-104; we look to Connecticut’s Uniform Commercial Code to determine the rights of an assignee of a note. The above common-law principle is codified by General Statutes § 42a-3-203 (b), which provides that the “[tjransfer of an instrument . . . vests in the transferee any right of the transferor to enforce the instrument . . . .” Because the plaintiff stands in the shoes of the FDIC by virtue of the assignment, the plaintiff is vested with all of the FDIC’s rights, remedies and benefits that are incidental to the note. Thus, it would appear- that the plaintiff should also receive the benefit of the extended limitations period. See National Enterprises, Inc. v. Caccia, 252 App. Div. 2d 398, 675 N.Y.S.2d 350 (1998); Jackson v. Thweatt, 883 S.W.2d 171 (Tex. 1994); Federal Financial Co. v. Gerard, supra, 90 Wash. App. 177. The policy underlying this rule is “to assure the holder in due course a free market for the paper”; General Statutes § 42a-3-203, comment 3; and is consistent with the purpose and intent of FIRREA.

In 1989, Congress established FIRREA to “ ‘facilitate the efficient recovery of the assets of failed institutions.’ ... To accomplish the goal of recovering assets, the statute affords the [FDIC] an expanded Statute of Limitations which runs from the date of its appointment as conservator or receiver of a failed banking institution . . . .” (Citations omitted.) Federal Financial Co. v. Levine, supra, 679 N.Y.S.2d 681. The extended statute of limitations serves as “a mechanism for providing the receiver with an adequate time to pursue those claims which the financial institution could not successfully pursue prior to its failure.” Id. Furthermore, the drafters of the statute of limitations provision intended it to “be construed to maximize potential recoveries by the Federal Government by preserving to the greatest extent permissible by law claims that would otherwise have been lost due to the expiration of hitherto applicable limitations periods.” 135 Cong. Rec. S10205 (daily ed. Aug. 4, 1989) (statement of Senator Donald Riegle).

Commenting on Congress’ intent in enacting FIRREA, the Fifth Circuit noted that “to hold that assignees are relegated to the state statute of limitations would serve only to shrink the private market for the assets of failed banks. It would require the FDIC to hold onto and prosecute all notes for which the state statute of limitations has expired because such obligations would be worthless to anyone else. This runs contrary to the policy of allowing the FDIC to rid the federal system of bank assets.” Federal Deposit Ins. Corp. v. Bledsoe, supra, 989 F.2d 811. Thus, “[e]xtending the benefit of the Federal Statute of Limitations to purchasers of defaulted assets furthers the statute’s purpose because it enhances the marketability of these assets by permitting purchasers a longer period of time to bring suit . . . .” (Citations omitted.) Federal Financial Co. v. Levine, supra, 679 N.Y.S.2d 681.

Fox argues, however, that there is another fundamental component of the common law of assignments that circumscribes the common-law maxim that the assignee stands in the shoes of the assignor. The maxim, more fully stated, provides: “Unless a contrary intention is manifest or inferable, an assignment ordinarily carries with it all rights, remedies and benefits which are incidental to the thing assigned, except those which are personal to the assignor and for his benefit only.” (Emphasis added.) 6A C.J.S. Assignments § 76. Fox claims that the statute makes clear that the incidental benefit of an extended limitations period is in fact personal in nature and for the benefit of the FDIC when acting as conservator or receiver.

The argument Fox posits is based on the analysis adopted by the United States District Court for the Eastern District of Virginia in WAMCO, III, Ltd. v. First Piedmont Mortgage Corp., 856 F. Sup. 1076, 1081 (E.D. Va. 1994). The court in WAMCO, III, Ltd., held that the right to rely on the extended limitations period arises solely from the Resolution Trust Corporation’s status as conservator or receiver and is therefore a personal benefit that is not assignable. We are not persuaded by this reasoning. Rather, we adopt the position taken by the Appellate Division of the New York Supreme Court in Federal Financial Co. v. Levine, supra, 679 N.Y.S.2d 682.

The court in Levine noted that the rationale utilized in WAMCO, III, Ltd., “has not been followed by the other appellate courts which have ruled on this issue, including the Virginia State Supreme Court [see Union Recovery Ltd. Partnership v. Horton, 252 Va. 418, 424, 477 S.E.2d 521, cert. denied, 520 U.S. 1167, 117 S. Ct. 1430, 137 L. Ed. 2d 539 (1997); see also Global Financial Services, Inc. v. Duttenhefner, 575 N.W.2d 667 (N.D. 1996); Twenty First Century Recovery, Ltd. v. Mase, 279 Ill. App. 3d 660, 216 Ill. Dec. 513, 665 N.E.2d 573 (1997); Federal Financial Co. v. Gerard, supra, 90 Wash. App. 169]. These courts have concluded that the Federal receiver’s right to sue within the extended limitations period is inherent in the possession of the instruments it holds, and is among the rights, remedies and benefits which are incidental to the instrument assigned, rather than merely a right personal to the assignor only. [See Union Recovery Ltd. Partnership v. Horton, supra, 424; Global Financial Services, Inc. v. Duttenhefner, supra, 667; Federal Financial Co. v. Gerard, supra, 169.] The WAMCO court’s reasoning has also been rejected by the Fourth Circuit Court of Appeals, which recently applied Virginia law to reach the conclusion that the FIRREA limitations period applies to assignees.” Federal Financial Co. v. Levine, supra, 679 N.Y.S.2d 681-82; see Federal Financial Co. v. Hall, supra, 108 F.3d 46.

The court in Levine concludes by stating that “the sound weight of authority supports extending the Federal Statute of Limitations to purchasers of defaulted notes, and rejecting the minority view that the Federal limitations period is personal to the receiver and does not inure to the benefit of assignees.” Id., 682. We likewise agree that to interpret the federal limitations period as personal to the FDIC would contravene Congress’ intent in enacting FIRREA. We conclude therefore that because the plaintiff stands in the shoes of the FDIC by virtue of the assignment, the plaintiff is vested with all of the FDIC’s rights, remedies and benefits that are incidental to the note including the benefit of the extended limitations period. The trial court determined correctly that the plaintiff, as assignee of the FDIC, timely filed this action within FIRREA’s six year limitations period that was extended to August 9, 1998.

The judgment is affirmed.

In this opinion the other judges concurred.

       Heritage, Fox, Joseph P. Wagenseller and Virginia F. Wagenseller were the defendants named in this matter; however, only Fox appeals from the judgment of the trial court.

       Title 12 of the United States Code, § 1821 (d) (14) provides in relevant part: “(A) In general. Not withstanding any provision of any contract, the applicable statute of limitation with regard to any action brought by the Corporation as conservator or receiver shall be (i) in the case of any contract claim, the longer of (I) the 6-year period beginning on the date the claim accrues; or (II) the period applicable under State law ....
      “(B) Determination of the date on which a claim aceraes. For purposes of subparagraph (A), the date on which the statute of limitation begins to run on any claim described in such subparagraph shall be the later of (i) the date of the appointment of the Corporation as conservator or receiver; or (ii) the date on which the cause of action accrues.”

       Additionally, Fox claims that the trial court improperly determined that the running of the state statute of limitations; General Statutes § 42a-3-118 (a); could be tolled as to her by .the actions of the other defendants. We do not address this claim, however, because the dispositive issue on appeal is whether the plaintiff is entitled to the benefit of the six year limitations period embodied in 12 U.S.C. § 1821 (d) (14).

       These partial payments totaled $455,000.

       The defendants relied on the following four special defenses: (1) the doctrine of laches; (2) the expiration of the statute of limitations; (3) the failure to enter into timely settlement negotiations; and (4) the breach of the covenant of good faith and fair dealing.

       General Statutes § 42a-3-118 (a) provides in relevant part: “[A]n action to enforce the obligation of a party to pay a note payable at a definite time must be commenced -within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.”

       This amount includes the principal sum of $77,876, interest in the amount of $48,405, attorney’s fees of $11,775 and a per diem amount of $2162.71.