author: O’CONNELL, C. J.

text:
    JASON GRAY v. STATE OF CONNECTICUT
    (AC 16639)
    O’Connell, C. X, and Hennessy and Dupont, Js.
    Argued November 3, 1998
    officially released February 9, 1999

      Roger J. Frechette, with whom were Peter B. Reilly and, on the brief, David M. Reilly, for the appellant (petitioner).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher A. Alexy, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The petitioner appeals from the judgment of the trial court denying his petition for a new trial brought pursuant to General Statutes § 52-270 (a). The petitioner claims that the trial court improperly (1) denied the petition for a new trial, (2) concluded that the newly discovered evidence could have been discovered prior to the first trial, (3) found facts not supported by the record and (4) denied his discovery requests. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In 1990, the petitioner was convicted of arson in the first degree in violation of General Statutes § 53a-lll in connection with a suspicious fire that occurred in the parts department of a car dealership where he worked. During his criminal trial, the state’s expert witnesses testified that an accelerant had been used to start the fire. On direct appeal, our Supreme Court affirmed the trial court’s judgment. State v. Gray, 221 Conn. 713, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). A detailed statement of facts pertaining to the underlying criminal case is included in our Supreme Court’s decision.

The petitioner filed this petition for a new trial in 1993, claiming that newly discovered evidence warranted a new trial. Following an evidentiary hearing, the trial court denied the petition stating that the petitioner failed to exercise due diligence in preparation for his criminal trial. The trial court also stated that even if the allegedly new evidence was heard by a jury, it was unlikely to produce a different result at trial.

On appeal, the petitioner claims that the trial court abused its discretion in denying his petition. Specifically, the petitioner claims that the newly discovered evidence, concerning the contamination of chemical evidence relied on by the state’s experts, casts doubt on the reliability of their testimony. The petitioner argues that this new evidence would preclude a jury, at a new trial, from accepting the state’s theory that an accelerant had been used. In addition, the petitioner claims that one of the state’s experts gave unexpected and misleading testimony about the results of certain laboratory tests and that he could not have anticipated that testimony prior to trial. We are not persuaded.

I

The petitioner’s first three claims are subsumed under the general assertion that the trial court abused its discretion in denying his petition for a new trial. That ruling will be set aside only if there has been a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). “[E]very reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). “[W]hether a trial court has abused its discretion does not depend upon whether a reviewing court would have reached the same conclusion.” State v. S & R Sanitation Services, Inc., 202 Conn. 300, 311-12, 521 A.2d 1017 (1987).

To qualify for a new trial on the basis of newly discovered evidence, “[t]he petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987). This strict standard is meant to effectuate the underlying “equitable principle that once a judgment is rendered it is to be considered final. . . and should be left undisturbed by post-trial motions except for a good and compelling reason.” (Citations omitted.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983).

The petitioner’s theory of defense rests on the premise that the fire started accidentally, perhaps due to electrical problems, and, thus, he was innocent of any wrongdoing. Crucial to the petitioner’s criminal trial and to this petition is the relation between two chemical substances—Siloo and Xylene. Early in his criminal trial, the trial court offered the petitioner a mistrial or a continuance to obtain appropriate expert witnesses to dispute the state’s forensic report dealing with the chemical analysis of these two substances. The petitioner declined the offer.

During his trial, the petitioner called an expert who did not testify as to the nature of the chemicals. Subsequently, at the hearing on the petition for a new trial, the petitioner produced a different expert who testified in detail concerning Siloo and Xylene. The petitioner’s expert testimony, which could have been presented at the first trial to support his case, is not newly discovered material. Lombardo v. State, 172 Conn. 385, 390, 374 A.2d 1065 (1977). When a petitioner seeks a new trial for newly discovered evidence, he must have been “diligent in his efforts fully to prepare his [case] for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.” (Emphasis in original; internal quotation marks omitted.) Williams v. Commissioner of Correction, 41 Conn. App. 515, 528-29, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997).

It is well established that “[i]t is not sufficient for [the petitioner] to bring in new evidence from which a jury could find him not guilty—it must be evidence which persuades the judge that a jury would find him not guilty.” (Emphasis in original.) Lombardo v. State, supra, 172 Conn. 391. In the present case, the expert, who testified at the hearing on the petition for a new trial, could have testified at the criminal trial. From the record, it is readily apparent that the trial court did not believe that the petitioner was diligent in preparing his criminal trial evidence. In a comprehensive memorandum of decision, the trial court analyzed the expert testimony and drew appropriate inferences and reached proper legal conclusions. On the basis of the record, this court cannot conclude that if all the expert testimony was heard by the jury, it would be likely to produce a different result. In sum, we cannot conclude that the trial court’s finding constituted clear abuse of discretion.

The petitioner also claims that the testimony at the criminal trial by the state’s expert, Jack Hubbell, was misleading because there was additional information that Hubbell did not disclose to the jury. It appears that the petitioner is concerned that the lack of testimony delivered by the state’s expert rises to the level of fraud by nondisclosure. This argument is without merit.

The petitioner claims that Hubbell’s testimony, regarding the quantitative analysis of chemicals found at the crime scene, was filled with inconsistencies that are significant. The state claims that Hubbell analyzed the information to the best of his ability and testified about the quantitative conclusions, which could be derived from mass spectrometer tests. The record reflects that the trial court considered vast amounts of expert testimony and that nothing appears to have been omitted or to be factually incorrect. On the basis of these facts, we conclude that the trial court did not abuse its discretion in denying the petitioner’s petition for a new trial.

II

In his remaining claim, the petitioner argues that the trial court improperly denied his discovery requests. The petitioner sought, by interrogatories, to obtain the addresses of the witnesses that the state intended to call at his criminal trial but did not. The petitioner’s brief merely argues this contention without analysis of the law. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). Because it has not been adequately briefed, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-270 (a) provides in relevant part: “The Superior Court may grant a new trial of any action . . . for . . . the discovery of new evidence . . . .”

       The petitioner subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of Connecticut. That court dismissed the habeas petition, and the defendant appealed to the United States Court of Appeals for the Second Circuit, which affirmed the District Court’s judgment.


source: Caselaw Access Project

author: SPALLONE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT CLAY
    (AC 16279)
    Spear, Sullivan and Spallone, Js.

      Argued December 14, 1998
    officially released February 9, 1999

      Lisa Steele, special public defender, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and Scott Murphy, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Robert Clay, appeals from the judgment of conviction of tampering with physical evidence in violation of General Statutes § 53a-155 (a) (l).

The defendant claims that the evidence produced at trial was insufficient to convict him of tampering with physical evidence. Specifically, the defendant claims that the evidence was insufficient to prove that he concealed or destroyed the plastic bag and an amount of cocaine. We affirm the judgment of the trial court.

At trial, Officer James Krolikowski of the New Britain police department testified that while patting down the defendant’s clothing to check for weapons, he felt a lumpy object in the rear of the defendant’s pants, which he believed to be narcotics. When he turned away from the defendant to inform the other officers, the defendant moved. When Krolikowski tried to restrain the defendant, both fell to the ground. The defendant then reached into the back of his trousers, took out aplastic bag and placed the bag with its contents into his mouth. Krolikowski informed the other officers that the defendant was trying to swallow the drugs. Officer William Steck then sprayed the defendant with pepper spray, and the defendant spit out a total of twenty-three pieces of a white substance. After a field test indicated that the substance was cocaine, the defendant was arrested. During a search of the defendant, neither the plastic bag nor any other drug paraphernalia was found.

After being arrested, the defendant told the police officers that they had not recovered all of the drugs and that he had in fact swallowed some of the cocaine. Thereupon, the defendant was taken to New Britain General Hospital. He was accompanied by Officer Michael Hunt of the New Britain police department. Hunt observed the defendant vomit after the defendant was given a substance to induce vomiting. While Hunt did not see the plastic bag or any pieces of cocaine, he could not say whether the defendant had regurgitated the entire contents of his stomach.

The defendant testified that after he was sprayed with pepper spray, the officers threw him to the ground on his stomach and he kicked and thrashed about because his eyes and nose were stinging. The defendant stated that because the police would not take him to a hospital to treat him for the spray, he told them that he had swallowed some drugs. Furthermore, the defendant stated that after he told the officers that he had swallowed some drugs, they took him to the hospital where he was given a substance to induce vomiting, even though he told the hospital authorities that he had not swallowed any drugs.

The defendant argues that there was insufficient evidence produced at the trial to convict him of tampering with physical evidence. The state contends that it not only put forward evidence that the defendant concealed the plastic bag of cocaine in his mouth, but that he swallowed the plastic bag and some of the rock cocaine that it contained. The state also argues that swallowing contraband amounts to concealing it, and, if the contraband is not recovered, swallowing amounts to destroying it.

“When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the juiy’s verdict. . . . We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Harris, 49 Conn. App. 121, 131, 714 A.2d 12 (1998). The question on appeal is not whether the reviewing court believes that the evidence established guilt beyond a reasonable doubt, but whether, after reviewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Coleman, 42 Conn. App. 78, 82, 679 A.2d 950 (1996), rev’d on other grounds, 241 Conn. 784, 699 A.2d 91 (1997). While jurors may not speculate to reach a verdict, “they may draw reasonable, logical inferences from the facts proven to reach a verdict.” State v. Williams, 16 Conn. App. 75, 79, 546 A.2d 943 (1988). Deference is given to the trier of fact who had the opportunity to observe the conduct, demeanor, attitude of the trial witnesses and to assess their credibility. State v. Miranda, 41 Conn. App. 333, 338, 675 A.2d 925 (1996), rev’d on other grounds, 245 Conn. 209, 715 A.2d 680 (1998). “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).

We conclude that sufficient evidence existed for the jury reasonably to have found that the defendant tampered with the evidence in violation of General Statutes § 53a-155 (a) (1). The trial court, in denying the defendant’s motion to acquit, acted properly, reasonably, within its discretion and in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-155 provides in relevant part: “(a) A person is guilty of tampering with or fabricating physical evidence if, believing that an official proceeding is pending, or about to be instituted, he: (1) Alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding . . .
      The defendant was also found guilty of possession of narcotics in violation of General Statutes § 21a-279 (a), possession of narcotics with intent to sell by a person who is not drag-dependent in violation of General Statutes § 21a-278 (b) and possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The defendant was found not guilty of interfering with a peace officer in violation of General Statutes § 53a-167a (a), and the trial court imposed no sentence for possession of narcotics. This appeal is limited to the defendant’s conviction of tampering with physical evidence.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. MALIK NELSON
    (AC 16838)
    O’Connell, C. J., and Spear and Dupont, Js.
    Argued December 9, 1998
    officially released February 9, 1999

      Richard E. Condon, Jr., deputy assistant public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Michael Gearing Ion, state’s attorney, and James R. Dinnan, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant appeals from his conviction, following a jury trial, of manslaughter in the first degree and carrying a pistol without a permit. The sole issue claimed on appeal is that the trial court improperly instructed the jury that “reasonable doubt” is not a doubt suggested by the “ingenuity of counsel.”

The defendant relies on State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997), in which our Supreme Court, acting under its supervisory powers, urged trial courts to avoid further use of the “ingenuity of counsel” instruction. After we heard oral argument in the present case, the Supreme Court decided State v. Edwards, 247 Conn. 318, 721 A.2d 519 (1998), in which it held that the admonition in Taylor was not applicable where the trial court had instructed the jury prior to the date of the Taylor decision. The trial in the present case took place in September, 1996, and Taylor was not decided until December, 1996. Edwards, therefore, is controlling.

The judgment is affirmed.

       General Statutes § 53a-55 (a) (1).

       General Statutes § 29-35 (a).


text:
    STATE OF CONNECTICUT v. JASON COMBS
    (AC 17666)
    O’Connell, C. J., and Sullivan and Stoughton, Js.
    Argued December 17, 1998—officially
    released February 9, 1999

      Ronald S. Johnson, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anthony Troy Martin, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant appeals from the judgment of conviction rendered after he entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, to charges of possession of narcotics and sale of narcotics in violation of General Statutes §§ 21a-279a and 21a-277 (a). The defendant claims that the trial court improperly denied his motion to suppress certain evidence. We disagree and affirm the judgment of the trial court.

Because the defendant has not provided us with an adequate record for review, we decline to review his claims. The duty to provide this court with a record adequate for review rests with the appellant. Practice Book § 60-5; Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). We have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating its reasons for denying the defendant’s motion to suppress.

Practice Book § 64-1 (b) clearly establishes the procedure to be followed by an appellant. In this case, the defendant did not follow that procedure, thereby failing to ensure an adequate record for review. Under these circumstances, “[w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997); see also State v. Rios, 30 Conn. App. 712, 719-20, 622 A.2d 618 (1993) (O’Connell, J., concurring).

This court has repeatedly emphasized the necessity of compliance with § 64-1. See Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 53-54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997). Because we have not been provided with the trial court’s factual or legal basis for its rulings on the defendant’s motion to suppress, we cannot determine whether the trial court acted properly. The record is inadequate for our review of the defendant’s claim.

The judgment is affirmed.

       Practice Book § 64-1 (b) provides: “If the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision in any case covered by paragraph (a), the appellant may file with the appellate clerk a notice that the decision has not been filed in compliance with paragraph (a). The notice shall specify the trial judge involved and the date of the ruling for which no memorandum of decision was filed. The appellate clerk shall promptly notify the trial judge of the filing of the appeal and the notice. The trial court shall thereafter comply with paragraph (a).”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JUAN MALDONADO
    (AC 18016)
    Foti, Sullivan and Daly, Js.
    Argued December 11, 1998
    officially released February 9, 1999

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Juan Maldonado, appeals from the judgment of conviction, rendered after a trial by a three judge panel, of murder in violation of General Statutes § 53a-54a, possession of a sawed-off shotgun in violation of General Statutes § 53a-211 and assault in the second degree in violation of General Statutes § 53a-60. On appeal, the defendant claims that the trial court abused its discretion in denying his motion for a presentence psychiatric examination that he filed pursuant to General Statutes § 17a-566. We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. In July, 1994, the defendant was living with his girlfriend, Marisol Santiago, in a third floor apartment on Bond Street in Hartford. On the morning of July 29, 1994, the defendant accused Santiago of being unfaithful with Armando Rivera, the manager of a grocery store located on the first floor of the defendant’s apartment building. The defendant told Santiago that he was going to kill Rivera, punched her and threw her to the floor. The defendant retrieved a knife from the kitchen and threatened Santiago with it. Santiago grabbed the knife, closing her hand around its blade. The defendant then pulled the blade upward, severely cutting the area between Santiago’s thumb and forefinger. The wound caused extensive bleeding and required several stitches. The defendant left the apartment before the police could apprehend him.

Several hours later, the defendant retrieved a sawed-off shotgun from a garage near his apartment and went to the grocery store. As the defendant approached, he observed Rivera come out of the store and then go back inside. After the defendant entered the store, he and Rivera struggled over the shotgun and one round was fired into the floor. Rivera then fled with the defendant in pursuit. The defendant then shot Rivera as Rivera yelled: “My son, my son.” The defendant fired a second time, hitting Rivera and causing him to fall to the ground. The defendant then approached Rivera, reloaded the shotgun with two more cartridges and shot Rivera once in the head, saying: “So you stop screwing around with women.”

Later that day, the defendant went grocery shopping with a friend. When they finished shopping, they drank beer and smoked marijuana together. The defendant, who had talked about the shooting, admitted to his friend on the following morning that he had committed the murder. He thereafter went to New Jersey, where he worked at an auto body shop using a different name. In January, 1995, the defendant was arrested and returned to Connecticut where, after voluntarily waiving his right to remain silent, he gave an oral and written confession in which he admitted to the killing.

The defendant was convicted on October 18, 1996, after the trial court unanimously concluded that the state had proven the defendant guilty beyond a reasonable doubt of all three offenses charged. In addition, the trial court concluded that the evidence submitted by the defendant was insufficient to prove, by a fair preponderance of the evidence, his affirmative defense of mental disease or defect. On December 5, 1996, the defendant moved, pursuant to § 17a-566, for permission to have a psychiatric examination prior to sentencing. Following a hearing on that motion, the trial court unanimously concluded that the defendant was not a danger to others and, by a majority, concluded that he was not a danger to himself. Accordingly, the trial court denied the defendant’s motion.

The sole issue before this court is whether the trial court abused its discretion in denying the defendant’s motion for a presentence psychiatric examination pursuant to § 17a-566. The defendant alleges that the trial court’s denial was a “plain, obvious abuse of discretion . . . not amply supported by the record and violates logic and reason.” We do not agree.

A court may order a psychiatric evaluation of a defendant only if it appears to the court that such person has a psychiatric disability and is a danger to himself or others. General Statutes § 17a-566. The trial court, acting on a motion pursuant to § 17a-566, may rely on evidence such as psychiatric reports, the defendant’s personal history and background, as well as the defendant’s testimony and demeanor at trial. See State v. Chance, 236 Conn. 31, 62, 671 A.2d 323 (1996). It is within the discretion of the trial court to grant or deny such a motion. State v. DeAngelis, 200 Conn. 224, 241, 511 A.2d 310 (1986).

“The purpose of an examination under [§ 17a-566] is not to determine competency to be sentenced. That section presumes that a convicted defendant will be sentenced. The purpose of an examination under [§ 17a-566] is to allow the commissioner of mental health to make recommendations as to certain offenders concerning the sentence to be imposed and the place of confinement.” Id., 238-40. Nevertheless, “[w]here the court has adequate psychiatric documentation of the defendant’s mental condition, there is no need for it to utilize the statutory provisions concerning further examinations. . . . The presence of some degree of mental illness does not prevent or avoid the imposition of sentence by the court nor does it necessarily require that the court ‘blindly and automatically implement the statutory machinery’ providing for psychiatric examinations.” (Citation omitted.) State v. Gates, 198 Conn. 397, 405, 503 A.2d 163 (1986).

The contested affirmative defense, the pivotal issue at trial, was whether the defendant lacked capacity, due to a mental disease or defect, to appreciate the wrongfulness of his conduct or to control his conduct within the requirement of the law. In support of his defense, the defendant presented the testimony of two psychiatrists, Peter Zeman and Donald Grayson, along with records from the Capitol Region Mental Health Center (health center) and mental health treatment records from the department of correction. The defendant agrees that the evidence presented during the trial on his affirmative defense is relevant to the trial court’s § 17a-566 determination.

The health center records disclose that the defendant first sought a diagnostic evaluation in October, 1993. He complained that in 1990, “Ramon, a black shadow man,” first came to him, calling his name and was thereafter present on occasion. The defendant denied receiving instructions from Ramon. The defendant was discharged from the health center for failing to attend the program. His discharge summary showed that the defendant had made conflicting statements, and it concluded that it was unlikely that he suffered from a schizophrenic disorder and indicated a primary diagnosis of psychosis, secondary to cocaine abuse.

Before trial, both Zeman and Grayson submitted reports indicating that they believed that the murder had been committed while the defendant was in a psychotic state that was the result of chronic paranoid schizophrenic illness. At trial, however, both acknowledged serious reservations about the defendant’s credibility, particularly with regard to his drug and alcohol abuse. In discussions with Zeman, the defendant indicated that he believed that he had killed “Ramon, the shadow man.” The defendant, however, never mentioned Ramon in his confession and never indicated a manifestation of the shadow man between the time of the murder and his apprehension in 1995. In addition, the defendant did not disclose to Zeman that he had threatened to kill Rivera because of his jealousy, or that he had searched out the murder weapon, secreted it in a canvas bag and concealed it following the murder. He also failed to tell Zeman about going grocery shopping, drinking beer and smoking marijuana with his friend after the murder and about planning and executing his move to New Jersey.

Grayson also based his initial diagnosis on the defendant’s self-reported history of a psychotic illness. He, as did Zeman, questioned the defendant’s credibility concerning his drug and alcohol abuse. Grayson indicated that the defendant was not actively psychotic when he gave his confession and that the ingestion of cocaine can cause a “cocaine psychosis” that is indistinguishable from the clinical presentation of paranoid schizophrenia. The defendant did not tell Grayson of his activities both prior to, and subsequent to, the murder. Grayson indicated that both before and after the murder, the defendant acted in a competent fashion and showed that he was more in touch with reality than Grayson had originally thought. When told of the defendant’s final words to the victim, Grayson concluded that it would be inconsistent for the defendant to have thought Rivera was Ramon.

In its memorandum of decision, the trial court found: “The indispensable evidence relied upon by Zeman and Grayson was the defendant’s portrayal of Ramon, the shadow man. Both doctors agreed that it was self-serving and both agreed that cocaine abuse could provide the auditory and visual hallucinations purportedly suffered by the defendant. In his testimony, Grayson expressed serious reservation about the diagnosis he [first] arrived at. . . .He acknowledged that the defendant’s coherence and lucidity prior to and subsequent to the shooting plus his history of mistruths about cocaine abuse seriously impugned his diagnosis of paranoid schizophrenic illness. Grayson acknowledged that cocaine intoxication can produce symptoms of exacerbated acute paranoid schizophrenia.”

Again, the defendant agrees that the evidence presented during the trial is relevant to the trial court’s determination under § 17a-566. “The acceptance or rejection of the opinions of the expert witness is a matter peculiarly within the province of the trier of fact and its determination will be accorded great deference by this court.” (Internal quotation marks omitted.) Feigenbaum v. Waterbury, 20 Conn. App. 148, 152, 565 A.2d 5 (1989). The defendant concedes that “[c]ertainly the trial court was free to disbelieve any or all of the psychiatric testimony” presented both at trial and during the § 17a-566 hearing. We agree.

The defendant argues, however, that the trial court ignored or failed to consider mental health treatment records from the department of correction. The defendant argues that this evidence “shows [the defendant’s] ongoing and serious mental illness and intermittent suicidal thoughts and gestures.” He argues that the state failed to produce any evidence in rebuttal of these records.

It must be noted, however, that in denying the defendant’s motion for a presentence psychiatric examination, the trial court did not file a memorandum of decision. In an unsigned transcript, the trial court writes simply that it had concluded, “based on the testimony and the evidence, that the defendant is not a present danger to others. And the majority of the panel does not find that he is presently a danger to himself.” Therefore, the weight that the trial court gave to the evidence from the department of correction cannot be determined. Further, we cannot address the trial court’s discretion in evaluating that evidence as a relevant factor in predicting the defendant’s future behavior. The defendant has failed to demonstrate that the trial court abused its discretion in denying his motion.

The defendant also argues that the trial court may have applied the wrong standard of proof in denying his motion for a presentence psychiatric evaluation. He argues that a mere facial showing is sufficient. We presume that the trial court employed the proper standard in following the law. See Bank of Boston Connecticut v. Avon Meadow Associates, 40 Conn. App. 536, 543, 671 A.2d 1310, cert. denied, 237 Conn. 905, 674 A.2d 1329 (1996) (unless contrary appears in record, we presume trial court acted properly and considered applicable legal principles). Absent a record to the contrary, we presume that the trial court considered all of the evidence regarding the defendant’s mental state presented both at the trial and at the § 17a-566 hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       The three judges were impaneled pursuant to General Statutes § 54-82, which provides in relevant part: “(a) In any criminal case, prosecution or proceeding, the party accused may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.
      “(b) If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges to be designated by the Chief Court Administrator, or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly. ...”

       General Statutes § 17a-566 (a) provides in relevant part: “Except as provided in section 17a-574 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers . . . may if it appears to the court that

        such person has psychiatric disabilities and is dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the division. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the division for additional examination or should be sentenced in accordance with the conviction. Such examination shallbe conducted and the report made to the court not later than fifteen days after the order for the examination. Such examination may be conducted at a correctional facility if the defendant is confined or it may be conducted on an outpatient basis at the division or other appropriate location. If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the division for a period not to exceed sixty days, except as provided in section 17a-567 provided the hearing may be waived by the defendant. Such commitment shall not be effective until the director certifies to the court that space is available at the diagnostic unit. While confined in said diagnostic unit, the defendant shall be given a complete physical and psychiatric examination by the staff of the unit and may receive medication and treatment without his consent. The director shall have authority to procure all court records, institutional records and probation or other reports which provide information about the defendant.” (Emphasis added.)

       The trial court’s unanimous conclusion that the defendant had not proven his affirmative defense of mental disease or defect is not an issue on appeal.

       In addition to testifying at trial, Zeman testified again at the § 17a-566 hearing.

       The defendant also presented a supplemental hearing report from Zeman, a letter from the office of adult probation and an incident report from the department of correction dated August 2, 1996.

       While the defendant argues that the trial court did not sufficiently articulate its decision, the record does not disclose that a motion for articulation was filed.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. KEVIN MIDDLEBROOK
    (AC 16863)
    Landau, Schaller and Dupont, Js.
    Argued November 5, 1998
    officially released February 9, 1999

      Katherine S. Goodbody, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom were Russell C. Zentner, assistant state’s attorney, and, on the brief, John T. Redway, state’s attorney, and John Ventorilli, certified legal intern, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Kevin Middlebrook, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, larceny in the first degree in violation of General Statutes § 53a-122 3and criminal mischief in the third degree in violation of General Statutes § 53a-117. On appeal, the defendant claims that the trial court improperly (1) admitted prior misconduct evidence with respect to the issues of intent and motive, (2) admitted a postarrest statement of the defendant as evidence of his consciousness of guilt, (3) admitted evidence of the prearrest silence of the defendant, (4) determined that the evidence presented by the state was sufficient to sustain the conviction, (5) excluded the testimony of a witness regarding third party commission of the crimes charged, (6) instructed the jury and (7) considered and commented on inaccurate information at sentencing. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 22, 1991, the Middletown and Cromwell police departments responded to three residential burglaries. The first of these burglaries occurred in Middle-town and the second in Cromwell. The third burglary, the subject of the charges in this case, occurred on Ledge Road in Cromwell. All of the burglaries occurred between the hours of noon and 1 p.m. on a sunny day.

At the scene of the first burglary, the front door of the house had been broken down and there was a fresh puddle of what appeared to be motor oil on the driveway. There was also a trail of oil that the police followed from the first crime scene to the second. The front door of the second burglarized house had been broken down and there was a fresh puddle of oil on the driveway. The police followed a trail of oil from the second crime scene to the third crime scene on Ledge Road in Cromwell. Here also, the front door had been broken down and a fresh puddle of oil was found on the driveway.

Detective Ronald Cornell of the Cromwell police department was called to investigate the Ledge Road burglary. When he arrived, he investigated the residence for signs of a burglary. He also dusted the front storm door for latent fingerprints. Cornell was able to lift two prints from the storm door, one from the inside and one from the outside of the aluminum frame. Cornell sent the fingerprints to the state forensic laboratory for identification. No further action was taken until 1995, when Connecticut obtained its automated fingerprint identification system. At that time, the fingerprint that was found on the outside of the storm door was identified as that of the defendant.

After the fingerprint had been identified, Cornell attempted to question the defendant about the burglary, but the defendant refused to talk to him. The police then obtained an arrest warrant for the defendant. The defendant was arrested and taken to the Cromwell police station, where he was advised of his Miranda rights, which he waived. When Cornell informed the defendant that he was a suspect in the Ledge Road burglary, the defendant replied, “Tve never been to Cromwell.” After trial and conviction, this appeal followed. Additional facts will be set forth in the opinion as they become necessary.

I

The defendant first claims that the trial court improperly admitted evidence of a prior burglary committed by the defendant for the purpose of proving intent and motive. We conclude that the trial court properly admitted the prior misconduct evidence.

The state introduced evidence, through the testimony of Christine Kehayes, of a burglary committed in Orange on April 19, 1991. Kehayes lived in a raised ranch style house that was two houses from the comer of her street. Sometime between noon and 1 p.m. on that day, she was taking a bath when she heard a loud bang on her front door. Kehayes immediately got out of the tub and looked out the bedroom window. She noticed a car parked in the driveway, but did not recognize it.

Kehayes was getting dressed when she heard another loud bang. She ran down the stairs and confronted a man in her house. The intruder stated that he was looking for his friend and ran out through the back door, which had been broken in. Immediately after the man left her house, Kehayes called 911 and the police arrived shortly thereafter. Kehayes was unable to identify the man who broke into her house because she had seen only his back. She gave a general physical description of the man.

Sergeant Neil Hathaway of the Orange police department, one of the investigating officers, noticed stains of what appeared to be oil going from the driveway into the street. Hathaway dusted the back door for fingerprints and was able to lift a latent print. The defendant stipulated that the fingeiprint was his. After the defendant had been arrested for the Ledge Road burglary, Cornell asked the defendant if he knew about the burglary in Orange. The defendant admitted that he had committed the Orange burglary and that he had been interrupted by a woman there.

The law in Connecticut on the admissibility of prior misconduct evidence is clear. Evidence of prior misconduct, because of its prejudicial nature, is inadmissible to show that the defendant is guilty of a subsequent crime. State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970). “Evidence of other misconduct, however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity .... Such evidence, however, to be admissible must also be relevant and material.” (Citations omitted; internal quotation marks omitted.) State v. Moore, 49 Conn. App. 13, 21, 713 A.2d 859 (1998). “Uncharged 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. Cooper, 227 Conn. 417, 427, 630 A.2d 1043 (1993).” (Internal quotation marks omitted.) State v. Moore, supra, 22. “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. O’Neill, 200 Conn. 268, 274, 511 A.2d 321 (1986). Therefore, every reasonable presumption should be given to uphold the trial court’s decision.

In the present case, the trial court held a hearing, out of the presence of the jury, in which it heard testimony as to conditions surrounding the Orange burglary. The trial court did not allow the state to offer evidence of the Orange burglary for the purpose of proving identity. The court specifically limited the scope of the evidence to proving only intent and motive.

“Because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon. See State v. Tucker, 181 Conn. 406, 415, 435 A.2d 986 (1980).” State v. Baldwin, 224 Conn. 347, 355, 618 A.2d 513 (1993). When a trial court determines whether it will allow prior misconduct evidence, it needs to examine the similarities between the prior conduct and the current crime. State v. Henry, 41 Conn. App. 169, 178, 674 A.2d 862 (1996); State v. Carsetti, 12 Conn. App. 375, 381, 530 A.2d 1095, cert. denied, 205 Conn. 809, 532 A.2d 77 (1987).

After hearing the similarities of the two burglaries, the trial court stated: “The court has painstakingly analyzed the offer and the burglary which is before the court—and I mean painstakingly. And the court is aware of numerous similarities between both crimes. Same time of the day, 12-1 p.m., both homes are raised ranches, one house is the second from the comer and the other is the third from the corner. Both were forced entry, no tools. In both situations the suspect parked the car in the driveway. The perpetrator was strong enough to bust through a door. Oil deposits were left in each driveway. Although there was some disparity in the testimony where one said reddish brown, possibly transmission oil, one said oil, there was never any offer to the court by anybody with any expertise, nor was there any sample taken, nor was any other [test] done, so I don’t think—I think it’s a similarity under the circumstances. The court also believes that a crime is committed in broad daylight in the middle of the day at a home demonstrates a certain bravado or boldness and is somewhat unusual. And the court realizes it must consider not each and every one of these things in isolation but cumulatively to determine whether it is sufficiently unique as to the issue of identity. And the court finds that both burglaries, these so-called similarities, either standing alone or together are not sufficiently unique to qualify as a signature crime. . . . However, the court is going to allow this testimony on the issue of intent and on the issue of motive for the alleged burglary of [Ledge Road] on May 22, 1991.” (Emphasis added.)

The trial court then determined whether the evidence was relevant. “Next, the court has to consider whether or not the evidence is [relevant] or material to at least one of the circumstances encompassed by the exception here, and I find that there [are] two. The court finds that it is relevant to the issue of intent and the issue of motive.”

Finally, the court balanced the evidence’s probative value against its prejudicial effect. The court stated, “Evidence is prejudicial when evidence tends to have an adverse affect upon a defendant beyond tending to prove the fact or issue that justifies [its] admission into evidence and there have been four categories of prejudice articulated by our Supreme Court and one is [where the evidence] unnecessarily [arouses] the [jury’s] emotions, hostility or sympathy; two, may create distracting side issues; three, where evidence and counterproof will consume an inordinate amount of time; and four, where one party is unfairly surprised and unprepared to meet the evidence. The court finds that none of those areas exist here .... The exercise of wise discretion requires the trial court to consider whether other evidence equally probative and less prejudicial is here to the state .... [T]here appears that there is no other evidence available to the state. . . . I think it’s a high degree of probative value. I see [no] prejudice to the defense for the admissibility of this evidence.” It is true that the misconduct evidence introduced was remarkably similar both in kind and location to the evidence before the jury in this trial. “These factors, however, make the evidence that much more probative. United States v. Jones, 913 F.2d 1552, 1566 (11th Cir. 1990) (probative value of evidence heightened by similarity); United States v. Dunbar, 614 F.2d 39, 42 (5th Cir.), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980) (virtually identical evidence ‘highly relevant’ on intent issue).” State v. Baldwin, supra, 224 Conn. 355.

Additionally, the trial court protected the defendant from any undue prejudice by issuing a limiting instruction to the jury before Kehayes testified about the Orange burglary. When the state called Hathaway, the trial court gave a similar limiting instruction to the jury. Under these circumstances, we conclude that the trial court did not abuse its discretion and properly admitted evidence of the Orange burglary for the limited purpose of proving intent and motive.

II

The defendant next claims that the trial court improperly admitted evidence of the defendant’s postarrest statement to prove his consciousness of guilt. We disagree.

At trial, Cornell testified that the defendant, after voluntarily waiving his Miranda rights, agreed to talk to him. Cornell told the defendant that he was under arrest for committing a burglary in Cromwell. The defendant denied committing the crime and stated emphatically that he had never been in Cromwell. The defendant made this statement even though his fingerprint had been found at the scene of the Ledge Road burglary and he had not denied that it was his fingerprint.

The defendant offered evidence that the area of Cromwell where the burglary occurred was less than one mile from the Berlin town line and, because there was no sign indicating the town line, it was reasonable to infer that the defendant could have entered Cromwell without having known that he had done so.

A trial court may admit “[e]vidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, [which] is ordinarily the basis for a charge on the inference of consciousness of guilt.” State v. Oliveras, 210 Conn. 751, 759, 557 A.2d 534 (1989). The trial court, however, should admit only that evidence where its probative value outweighs its prejudicial effect. State v. Maturo, 188 Conn. 591, 597-98, 452 A.2d 642 (1982). “In seeking to introduce evidence of a defendant’s consciousness of guilt, ‘[i]t is relevant to show the conduct of an accused [e.g., refusing to talk to the police prior to being arrested], as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act.’ ” (Emphasis in original.) State v. Adams, 36 Conn. App. 473, 481, 651 A.2d 747 (1994), appeal dismissed, 235 Conn. 473, 667 A.2d 796 (1995).

The defendant argues that, because there was evidence presented that suggests that he did not knowingly lie to the police, his statement to the effect that he had never been in Cromwell is not admissible as consciousness of guilt. The defendant further argues that because there existed an equally reasonable explanation for his statement, it was insufficient to bolster the state’s fingerprint evidence and, therefore, was highly prejudicial. We disagree.

The defendant applies the wrong standard. As we stated in Adams, “Once the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity . . . .” Id. Prior to his arrest, the defendant had refused to talk to the police about the Ledge Road burglary. When Cornell informed the defendant, after placing him under arrest, that he was under arrest for the Ledge Road burglary, the defendant emphatically stated that he had never been in Cromwell. Given these facts, the jury reasonably could have inferred that the defendant’s statement was an attempt to deceive the police. The trial court did not abuse its discretion in admitting the postarrest statement of the defendant.

III

The defendant’s third argument is that the trial court improperly admitted evidence of his prearrest silence. We are not bound to hear a claim unless it was raised in the trial court. Practice Book § 60-5. Our review of the record and transcripts fails to disclose any instance where the defendant objected to the state’s offer of his prearrest silence.

The defendant does not argue that the admission of the evidence of his prearrest silence violated any of his constitutional rights. See Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980) (prosecutorial use of defendant’s prearrest silence does not violate defendant’s right to fair trial). Because no constitutional right is involved, we decline to review the defendant’s claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

IV

The defendant’s fourth claim is that the evidence was insufficient to support a judgment of conviction. We disagree.

When 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. . . . State v. James, 237 Conn. 390, 435, 678 A.2d 1338 (1996). In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 670, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999); see also State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). “Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if 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. Crump, 43 Conn. App. 252, 256, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

The state presented evidence that the defendant’s fingerprint was found on the outside of the front storm door at the Ledge Road house. The defendant did not dispute that it was his fingerprint. Michael Supple, a fingerprint examiner at the state forensic laboratory, testified that weather conditions could affect the quality and longevity of a latent print. Supple also testified that a fingerprint found on the inside of a storm door, not exposed to the weather, would last longer than one found on the outside of an aluminum storm door that was exposed to the weather, which being 98 percent water would evaporate. Supple further testified that he believed a warm, sunny day would speed up the evaporation process.

On cross-examination, Supple stated, however, that there was no scientific method by which to determine the age of a fingerprint or what exact weather conditions would cause a fingerprint to disappear. Supple indicated that he had never studied the effects of weather on a fingerprint, but it was his opinion that a fingerprint exposed to the weather would disappear more quickly than one that was protected from the elements.

Gary Lesser, a meteorologist, testified as to the weather in Middletown, which adjoins Cromwell, for the months of March, April and May, 1991. The average temperature during that period was above average, and May 22, 1991, was a sunny day.

When asked on cross-examination if the meteorological readings were necessarily identical to the conditions in Cromwell, Lesser admitted that the conditions would not necessarily be the same. He also admitted that it could be raining at one address in Cromwell, and not be raining at another.

The victim’s house is located on a dead-end street. The victim testified that the defendant had never been a guest at the house and had no reason to be there. The victim also testified that the storm door was used by the family as the primary entrance to the house. Additionally, the victim’s son testified that the storm door was exposed to the elements. Except for the two fingerprints found on the storm door, no other fingerprints were found. The state argues that those facts create enough circumstantial evidence to allow the jury reasonably to infer that the defendant placed his fingerprint on the storm door at the time of the Ledge Road burglary. We agree.

The defendant argues that there was not enough direct evidence to show that the defendant placed the fingerprint on the storm door at the time of the burglary; therefore, the state did not prove beyond a reasonable doubt that the fingerprint was placed on the door at the time of the burglary. The defendant applies the wrong standard. “We . . . note that while it is necessary that the jury find that each element of the crime be proven beyond a reasonable doubt, it is not necessary that each of the basic and inferred facts underlying these conclusions be proven beyond a reasonable doubt.” State v. Cintron, 39 Conn. App. 110, 120, 665 A.2d 95 (1995).

In addition to the fingerprint evidence, the jury had before it substantial circumstantial evidence: the defendant’s prearrest silence, the defendant’s postarrest statement and the prior misconduct evidence to prove intent and motive. “[I]t is the cumulative impact of a multitude of facts that establishes guilt in a case involving substantial circumstantial evidence.” Id. We conclude that the evidence was sufficient for a jury to find beyond a reasonable doubt that the defendant committed the Ledge Road burglary.

V

The defendant’s next claim is that the trial court improperly excluded the testimony of Hugh Doney as to third party commission of the crime charged. We conclude that the trial court properly excluded the hearsay evidence.

The defendant offered evidence that Steven Aylward had told Doney that Aylward had committed the Ledge Road burglary. The trial court held a hearing outside the presence of the jury to determine the admissibility of the statements. Doney testified that he and Aylward committed several burglaries across the state in 1991. Doney stated that Aylward and he were arrested in New York around Memorial Day, 1991, for a burglary that they had committed.

Doney testified that Aylward would break in the front doors of the houses that they burglarized. He further testified that Aylward and he “did a few down off the Berlin Turnpike,” but that he did not know the exact towns. Doney and Aylward took their stolen goods to New York to buy drugs.

Doney stated that Aylward also committed burglaries on his own or with Aylward’s wife. Doney testified that Aylward discussed his other burglaries with him. Doney stated that he felt that Aylward was candid with him and that “it’s kind of just a feeling that I had because we were both heroin addicts and there’s no reason for him to lie about the burglaries . . . .” The defendant attempted to enter a statement that Aylward made to Doney in the end of May, 1991, regarding a burglary that Aylward allegedly had committed at that time at a police officer’s house. The victim in the present case is a police officer.

The state objected to this proffered statement on hearsay grounds. The defendant claimed that it fell into the residual exception to the hearsay rule. The trial court sustained the objection. We agree that the trial court properly excluded the statement.

“Hearsay is an out-of-court statement that is offered to establish the truth of the facts contained in the statement.” (Internal quotation marks omitted.) States. Williams, 48 Conn. App. 361, 367, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998). Hearsay is admissible if it comes within one of the many recognized exceptions to the hearsay rule.

Our Supreme Court established the test for whether evidence is admissible under the residual exception to the hearsay rule in State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985). To be admissible under the residual exception (1) there must be a reasonable necessity for the statement’s admission and (2) the statement must be supported by the “equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” Id. “[T]he necessity requirement is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.” (Emphasis added.) Id., 665.

Our Supreme Court adopted the definition of unavailability found in rule 804 (a) of the Federal Rules of Evidence. State v. Bryant, 202 Conn. 676, 694, 523 A.2d 451 (1987) (specifically adopting rule 804 (a) (1)); State v. Munoz, 233 Conn. 106, 140, 659 A.2d 683 (1995) (implicitly adopting rule 804 [a] [1] through [5]).

We first examine whether the proffered statement was necessary. The defendant was attempting to show that a third party had committed the Ledge Road burglary. An admission by a third party that he, rather than the defendant, had committed the burglary would certainly be important to the defendant’s defense. We note, however, that the proffered statement was that of a witness who testified, not only at the pretrial hearing, but at trial as well. The defendant argues that this factor is not sufficient to exclude the testimony. We disagree.

The declarant was clearly available and able to testify. The defendant, therefore, could have attempted to acquire the evidence from the declarant himself. Our Supreme Court has implied that the unavailability of the declarant and the ability of the party to secure the information from other sources should be considered conjointly. See State v. Hines, 243 Conn. 796, 810, 709 A.2d 522 (1998) (unavailability of witness coupled with fact that only he could offer requested testimony satisfies necessity requirement). Accordingly, the defendant did not meet the required showing of necessity to admit the statement under the residual exception to the hearsay rule.

Even if we were to decide that the proffered statement meets the necessity requirement, we find that the trial court properly addressed the issue of the statement’s trustworthiness. Doney admitted that Aylward and he were heroin addicts, driving to New York on an almost daily basis to satisfy their habits. The trial court addressed the statement’s trustworthiness as follows: “[W]ith all due respect sir, these are two [burglars] riding back and forth daily from New York to sell jewelry .... They’re heroin addicts and you want me to pul; in what he said—I’m not putting any of these burglaries on this gentleman’s integrity, but you tell me that that’s got sufficient reliability and trustworthiness as does the sanctity of an oath, and that is what the exceptions to the hearsay rule are. . . .

“I don’t think it has the particularized guar antees of trustworthiness that we have to have and of course be satisfied with it before something is put into evidence and goes before the jury. . . . I’m not satisfied that it rises to the level of particularized guarantees of trustworthiness.”

The trial judge was in a position to assess the witness’ credibility and demeanor and is vested with the discretion to determine if a third party statement is trustworthy. See State v. Jones, 46 Conn. App. 640, 647, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). The trial court did not abuse its discretion as evidentiary gatekeeper.

The defendant also argues that Aylward’s statement should have been admitted as a declaration against penal interest. Connecticut has adopted the requirement of the Federal Rules of Evidence for the admission of statements against penal interest that the declarant be unavailable. State v. Bryant, supra, 202 Conn. 692-94. The defendant argues that the declarant, when called to testify at the pretrial hearing, denied having committed a crime to which he pleaded guilty. The mere fact that the declarant pleaded guilty to a crime, but states that he did not commit that crime, does not make him unavailable. After a thorough review of the transcripts, we conclude that Aylward was not being evasive as to his answers and was not claiming his fifth amendment privilege, nor was he testifying to a lack of memory. The trial court did not abuse its discretion in excluding Doney’s hearsay evidence under both the residual exception and the statement against penal interest exception to the hearsay rule.

VI

The defendant’s sixth claim is that the trial court improperly instructed the jury regarding (1) the fingerprint evidence, (2) consciousness of guilt, (3) Aylward’s nolo contendere plea, (4) Aylward’s prior convictions and (5) identity. We conclude that the trial court’s instructions were proper.

The standard of review of jury instructions is well settled. “A charge to the jury is not to be critically dissected nor are individual instructions to be judged in artificial isolation from the overall charge. . . . State v. Taylor, 196 Conn. 225, 231, 492 A.2d 155 (1985). In reviewing a challenge to jury instructions, we must examine the charge in its entirety. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury. . . . The court is under no duty at any time to charge in the exact language requested. . . . Failure to charge precisely as proposed by a [party] is not error where the point is fairly covered in the charge. ” (Internal quotation marks omitted.) State v. Otto, 50 Conn. App. 1, 10, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998).

A

The defendant argues that the trial court should have instructed the jury that (1) the object touched by the defendant must have been relatively inaccessible to the defendant and (2) where fingerprint evidence is the only or principal evidence, it cannot sustain a conviction. We disagree.

The trial court instructed the jury that “[a] conviction may not stand on fingerprint evidence alone unless the prints were found under such circumstances that they could have been made only at the time the crime was committed, which is what the state claims it has proven in this case. Therefore, if you conclude that the state has shown the defendant has left his fingerprint on an incriminating object, in this case the exterior of the storm door, and that the only reasonable explanation for the presence of that print is that the defendant placed it there when he entered the house committing the crimes charged and that the other elements of the crime charged had been proven to you, then you must find the defendant guilty. ” The trial court had previously instructed the jury to consider whether the Ledge Road house was accessible to the defendant. When we review the instruction in its entirety, we conclude that the defendant’s first claim has no merit.

The defendant’s reliance on State v. Lytell, 206 Conn. 657, 663, 539 A.2d 133 (1988), for the proposition that where fingerprint evidence is the sole or principal evidence, that evidence alone cannot sustain a conviction is misplaced. While the defendant’s proposition of law is correct, the facts in the present case do not present that issue. The jury had before it substantial circumstantial evidence from which it could have reasonably inferred that the defendant was the person who committed the crimes. We conclude that the trial court properly instructed the jury on the issue of fingerprint evidence.

B

The defendant next claims that the trial court’s instruction regarding consciousness of guilt evidence was incomplete. The defendant sought to have the trial court add to its charge language to the effect that if the jury found that the defendant’s statement was not made to avoid detection but, rather, was due to a lack of knowledge or mistake, the jury could not consider it as consciousness of guilt. We do not agree.

Our Supreme Court has stated that a consciousness of guilt instruction “may be given when a party has made material misstatements because such fabrication or falsification implies that that party believes his or her case to be weak or unfounded.” State v. Banks, 194 Conn. 617, 621, 484 A.2d 444 (1984). The postarrest statement was in evidence. “[I]f it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence.” State v. Adams, supra, 36 Conn. App. 481.

The defendant’s conclusion that the charge was incomplete is incorrect. The trial court, earlier in its instructions, cautioned the jury that it was to take into consideration whether any contradictions in the evidence were the result of an intentional misstatement or merely an “innocent lapse of memory.”

Reviewing the charge as a whole, the trial court instructed the jury on the substance of the defendant’s request. The trial court correctly instructed the jury.

C

The defendant’s third claim is that the trial court improperly failed to instruct the jury that Aylward’s nolo contendere plea had the same effect as a guilty plea, thus suggesting that the jury had to find independently that Aylward had committed the crime to which he plead nolo contendere. The defendant argues that the trial court impermissibly placed the burden of proof on the defendant. We are not persuaded.

When Aylward testified, the trial court instructed the jury that a nolo contendere plea, followed by a finding of guilty, was equivalent to a conviction, although a nolo contendere plea was not the same as an admission. The trial court did not instruct the jury in its final instructions that a plea of nolo contendere was equivalent to a conviction. This omission, however, did not shift the burden of proof to the defendant. At the beginning of its instructions, the trial court reminded the jury that it was to follow its previous limiting instructions. Furthermore, the trial court, at numerous times, instructed the jury that the state always had the burden of proof on every element of the crime. We conclude that the instruction did not cause the jury to believe that the defendant had the burden of proof.

D

The defendant claims that “the [trial] court refused to instruct the jury that the other burglary convictions of Mr. Aylward could have been used to evaluate [his] credibility . . . .” The defendant is incorrect. The trial court specifically stated, “One of the witnesses presented to you, Steven Aylward, admitted to you that he was convicted of multiple burglaries. And this testimony is admissible on the question of the credibility of Mr. Aylward. That is the weight that you will give his testimony.” (Emphasis added.) The defendant’s claim is 'without merit.

E

The defendant claims that the trial court’s instruction improperly suggested that the identity of the perpetrator had been established. This claim is without merit.

The trial court stated that “[identification of the defendant is a question of fact for you to decide, taking into consideration all of the information presented to you in the course of the trial. The state has the burden of proving beyond a reasonable doubt that the defendant was the perpetrator of each crime with which he was charged .... The identification of the defendant may not stand on fingerprint evidence alone unless the prints were found under such circumstances that they could have been impressed only at the time the crime was committed.”

The defendant argues that the instruction on the elements of the crimes charged improperly suggests the identity of the defendant had been established. The language that the defendant claims is improper came after the trial court delivered its instruction regarding the state’s burden of proof as to the defendant’s identity. The fact that the trial court told the jury that “the state must prove beyond a reasonable doubt that the defendant knowingly and unlawfully entered the premises” does not suggest that the court believed that the defendant’s identity had been proven. The trial court’s instruction was proper.

VII

The defendant’s final claim is that the trial court made improper comments at the sentencing hearing. Because we conclude that the defendant waived this issue, we decline to review it.

Our review of the transcript indicates that the defendant failed to object to the trial court’s comments regarding Aylward’s lifestyle. The defendant does not claim Golding review, nor does he claim plain error. We therefore decline to review it.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-122 provides in relevant part: “(a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”

       General Statutes § 53a-117 provides in relevant part: “(a) A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he: (1) Intentionally or recklessly (A) damages tangible property of another, or (B) tampers with tangible property of another and thereby causes such property to be placed in danger of damage . . . .”

       We note that a violation of § 53a-117 is a Class B misdemeanor. The statute of limitations for the state to prosecute a defendant on a misdemeanor charge is one year. General Statutes § 54-193. The state, in the present case, did not prosecute the defendant on the misdemeanor charge within the requisite one year limitation period. The criminal act occurred on May 22, 1991, and the application for the arrest warrant of the defendant was not executed until January, 1996.
      At first blush it might appear that we must reverse the defendant’s convic1ion of criminal mischief in the third degree. That is not the case. The statute of limitations is not a jurisdictional bar to prosecution; it is an affirmative defense, which must be raised and can be waived. State v. Littlejohn, 199 Conn. 631, 639-40, 508 A.2d 1376 (1986); State v. Coleman, 48 Conn. App. 260, 269, 709 A.2d 590, cert, granted on other grounds, 245 Conn. 907, 718 A.2d 15 (1998).
      After a thorough review of the file, transcripts and briefs, we conclude that the defendant never raised the statute of limitations as an affirmative defense to the charge of violating § 53a-117, criminal mischief in the third degree. Because the statute of limitations is not a jurisdictional defense to prosecution, we are barred from reviewing the claim on appeal.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       In his reply brief, the defendant, claims that the limiting instruction was insufficient to negate the prejudicial effect of the testimony concerning the Orange burglary. The defendant’s claim is without merit.
      The trial court instructed: “I just want you to be aware that the testimony that I believe she is going to give is admitted for a limited purpose and that is limited only to the intent and motive of the alleged burglary of [Ledge Road] in Cromwell. You are expressly prohibited from using this evidence that I’m anticipating right now, as evidence of the tendency to commit criminal acts of the defendant. [Your] use, if you chose to use it, is strictly limited to the intent of the alleged perpetrator and the motive of the alleged perpetrator on May [22], 1991, at [Ledge Road].”

       “The testimony is only being offered for you to consider—if you find it credible. That’s your call—on the issue of the intent of the perpetrator on May 22, 1991, in Cromwell and the motive of the perpetrator on May 22, 1991, on [Ledge Road] in Cromwell.”

       The defendant argues in his reply brief that Supple’s testimony does not meet the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The defendant did not object to Supple’s testimony at trial, and extensively cross-examined Supple about the basis of his opinions regarding the effects of weather on fingerprints. We, therefore, will not discuss that argument further.

       Rule 804 of the Federal Rules of Evidence provides in relevant part: “(a) Definition of unavailability. ‘Unavailability of a witness’ includes situations in which the declarant ... (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant’s statement; or (4) is unable to be present or to testily at the hearing because of death or then existing physical or mental illness or infirmity . . . .”

       The defendant also claimed that the state’s argument at the sentencing hearing regarding the amount of damages at the Middletown burglary was improper. The defendant fails to put forth a claim for Golding review and fails to claim plain error and, therefore, we decline to review that claim.