author: HENNESSY, J. LANDAU, J.,

text:
    STATE OF CONNECTICUT v. EDWARD A. OWEN
    (13341)
    O’Connell, Landau and Hennessy, Js.

      Argued October 2, 1995
    decision released January 16, 1996

      Thomas J. Rechen, special public defender, for the appellant (defendant).

      Jo Anne Sulik, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John H. Malone, supervisory assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Edward A. Owen, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injuiy to a child in violation of General Statutes § 53-21. The court imposed a total effective sentence of twenty years, execution suspended after ten years, and probation for a period of five years.

The defendant claims that the trial court improperly (1) refused to charge the juiy on (a) the timeliness of the child’s complaint, (b) the credibility of a child witness and (c) the failure of the state to call the child’s therapist as a witness, (2) refused to grant a mistrial based on the state’s improper characterization of two of its witnesses as experts, (3) failed to grant an acquittal on the sexual assault in the first degree count because there was insufficient evidence to find that the offense was committed on or after the effective date of the statute, October 1, 1989, and (4) admitted constancy of accusation testimony. We affirm the judgment of conviction of sexual assault in the second degree and risk of injury to a child and reverse the conviction of sexual assault in the first degree.

On the basis of the victim’s testimony, the jury reasonably could have found the following facts. The victim was bom October 20, 1979, and the alleged acts took place on various dates between January 21, 1988, and late 1989. The victim was fourteen years of age at the time of trial. During the period of time when the acts occurred, she resided in an apartment with her mother and the defendant. After the victim’s mother arrived at work in the morning, she would call the victim to ensure that she was preparing for school and to request that she awaken the defendant. On many occasions, when the victim woke the defendant, he would grab her hand and make her touch his penis. On one occasion the defendant grabbed the victim’s head and forced his penis into her mouth. The defendant on other occasions requested or paid the victim to dress in leotards and then wrestled with her on a bed or couch touching her breasts as they wrestled.

The last incident of improper conduct, referred to during trial as the “couch incident,” allegedly took place on or after October 1, 1989. The victim testified that during that incident the defendant touched the victim’s breast with his penis, pushed her down on the couch, removed her pants and touched her vagina with his tongue. This last incident, referred to in the information as cunnilingus, forms the basis for the sexual assault in the first degree conviction.

I

A

The defendant contends that the court improperly refused to instruct the jury that it may draw a negative inference from the victim’s failure to report the incidents of sexual abuse immediately. The incidents complained of allegedly took place during 1988 and 1989. Approximately six months after the last incident, the victim told her mother that the defendant had touched her improperly. It was not until late 1992, however, that the victim told a number of other people the details and extent of the abuse that had taken place during 1988 and 1989. The defendant argues that the long delay in reporting the abuse so weakened the victim’s credibility that it required an instruction. The defendant requested the following instruction: “However, there has also been some evidence that the complainant did not make any complaint at the time of the alleged incident. You may consider the failure to make a timely complaint as bearing upon the credibility of the witness’ later complaint and testimony in court, unless this failure has been satisfactorily explained.”

The court instead gave a constancy of accusation instruction to the jury urging them to “carefully consider all of the circumstances under which the statements were made and particularly . . . whether what she says has been constant and consistent.” Additionally, the jury had the opportunity to listen to and to observe the victim’s testimony about the allegations on both direct and cross-examination. This testimony made them aware of the length of time between the alleged offenses and the reporting of them to family and authorities.

The defendant offers no authority, nor can we find any, that requires the court to instruct the jury that the failure of the victim to make a timely complaint requires a satisfactory explanation of the delay in order to leave intact the credibility of the victim. Our Supreme Court has clearly stated that the evaluation of the timing of a victim’s statements should be left in the hands of the jury. State v. Parris, 219 Conn. 283, 292, 592 A.2d 943 (1991). The jury had before them the testimony of the victim and the witnesses as well as the court’s instructions that the weight of the evidence and the credibility of the witnesses was for them to determine. Therefore, we conclude that the trial court did not improperly refuse to charge them as requested on the victim’s failure to report promptly.

B

The defendant next claims that the court abused its discretion by refusing to charge the jury on the credibility of a child witness. The defendant requested the following charge: “In weighing the testimony of a child, you should take into consideration his youth. A young child may be more apt to err than an older person or may be amenable to any influence or suggestion which may be made to him by older persons and particularly persons closely related to him. His imagination may mislead him; its products may, to him, take on all the semblances of actual fact and he will relate them as such. The sanctity of the oath and the solemnity of legal proceedings may appeal to him less than to an adult. Perhaps these suggestions are sufficient to indicate to you that in weighing the testimony of a child, his very youth is a factor you should not overlook.”

The defendant’s contention that the court in Wilhelm v. Czuczka, 19 Conn. App. 36, 561 A.2d 146 (1989), upheld a jury instruction almost identical to that requested in this case is unavailing. In Wilhelm, the court upheld the instruction on the ground that it was not an abuse of discretion to so instruct in that case. Id., 40.

“ ‘The prevailing view . . . is that a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and, if so, the nature of that instruction.’ ” State v. James, 211 Conn. 555, 567-68, 560 A.2d 426 (1989). The victim-witness in this case was eight or nine years of age when the offenses took place and fourteen years of age at the time of trial. We do not find that the court abused its discretion in not giving the requested instruction.

C

The defendant further contends that the court improperly failed to instruct the jury on the failure of the state to call the victim’s therapist, Maureen Bond, to testify. The gravamen of the defendant’s argument is that a new trial is required because the court improperly failed to give a Secondino instruction and did not allow the defendant to argue the Secondino rule and its application to the juiy. We disagree.

The following additional facts are relevant to this issue. Bond was present when the victim told Officer Steven A. Cybulski, a youth officer with the Enfield police department, and Ann Tuller, a social worker with the department of children and families, about the incidents of sexual abuse. Both Cybulski and Tuller gave testimony concerning the details of abuse that had been related to them by the victim. The jury also heard testimony from the victim’s cousin, Desiree Sevarino and Sevarino’s mother, Roxanne Paradise, that the victim had told them about the defendant’s improper conduct.

“It is an ancient maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted. . . . ‘The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ . . . There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce.” (Citations omitted.) Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960). This rule is also applicable to criminal cases. State v. Annunziato, 169 Conn. 517, 537, 363 A.2d 1011 (1975). To satisfy the availability requirement, the defendant must put forth sufficient evidence before the jury to support a conclusion that the witness was available at the time of trial. State v. Daniels, 180 Conn. 101, 110, 429 A.2d 813 (1980).

“To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it. ... A possible witness whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered should be dispensed with on the general ground of expense and inconvenience, without anticipation that an inference may be invoked.” (Citations omitted; internal quotation marks omitted.) State v. Adams, 14 Conn. App. 119, 128-29, 539 A.2d 1022 (1988). “Whether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a question of fact for the trier. Perl v. Case, 3 Conn. App. 111, 115, 485 A.2d 1331 (1985). This court cannot reverse or modify the trial court’s determination of fact unless they are clearly erroneous.” State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989).

In making its decision, the court had before it the testimony of the victim and four constancy of accusation witnesses. The court had reviewed in camera the notes made by Bond in her role as the victim’s psychologist and found that they did not contain information relevant to the case. The court found that Bond’s testimony would have been cumulative and that the defendant did not prove at trial that Bond was available. After concluding that Bond’s testimony would be relatively unimportant and that it would result in unnecessary expense and inconvenience, the court rejected the defendant’s request for a Secondino charge.

In support of his claim that the court improperly failed to give a Secondino charge, the defendant relies on the fact that the victim testified that Bond was a therapist whom she had seen nine times, that Bond was present when she gave her statement to the police about the defendant’s actions and that she told Bond that the defendant had touched her breasts and had “licked” her. Further, the defendant contends that Bond was available to testify, and was a witness the state would naturally have produced. Furthermore, the defendant argues the state was in a superior position to know and understand the testimony she would have provided because she was the victim’s therapist.

On the basis of the testimony of the witnesses, Bond could only repeat Cybulski’s and Tuller’s testimony. The court inspected the notes of Bond’s therapy sessions with the victim in camera, and, on the bases of that inspection, which did not reveal relevant information, and Bond’s testimony before the court in connection with the defendant’s request to inspect these notes, the court found that Bond’s testimony would be comparatively unimportant. Additionally, the record does not indicate that there was sufficient evidence before the jury to demonstrate that Bond was available to be called as a witness, as required to warrant a missing witness instruction. State v. Daniels, supra, 180 Conn. 110. We cannot find that the court’s decision not to include a Secondino instruction in its charge to the jury with reference to Bond was clearly erroneous.

II

The defendant next claims that the court improperly failed to grant a mistrial based on improper remarks made by the assistant state’s attorney. Specifically, the defendant contends that during final argument the state attempted to inflate the credibility of Cybulski, a youth officer, and Tuller, a social worker, by referring to them as experts when they had not been qualified as experts during the trial. The assistant state’s attorney also stated, in referring to the victim’s statements, that the victim’s account passed muster with Cybulski and Tuller, who are experts. The court sustained the defendant’s objection to these statements and gave the following curative instruction: “Whether or not [Cybulski and Tuller] found the child credible has nothing to do with this case. That’s your determination as to the credibility, not anyone else’s here, so obviously you are to disregard any reference to whether or not someone else thought the child was credible. ... I did not find either of those individuals [Cybulski and Tuller] to be expert and their testimony wasn’t submitted as expert testimony, at least not in my judgment .... They may be professional in their fields, but they did not qualify as being experts and so you should not consider them as such.”

The defendant claims that the assistant state’s attorney’s remarks were improper and denied him his state and federal constitutional rights to due process and a fair trial. “In analyzing the defendant’s claim, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 539-40, 529 A.2d 653 (1987). Courts have focused on several factors in determining whether prosecutorial misconduct was so serious as to amount to a denial of due process. Among the factors considered are the severity of the conduct, the frequency of the conduct, the centrality of the misconduct to the critical issues in the case and the strength of the curative measures adopted. Id., 540. In this case, the statements of the assistant state’s attorney were inaccurate and objectionable and were such as to bolster the credibility of the victim, who was the key state’s witness. On the other hand, the statements were made only on one occasion, during closing argument, and the trial court gave a curative instruction. The fact that the reference to the witnesses as experts was made only in closing argument, was not repeated and was coupled with an immediate objection by the defendant and a strong and clear curative instruction by the court convinces us that the defendant was not denied a fair trial.

Ill

The defendant further claims that there was insufficient evidence to prove that he committed an act of sexual assault in the first degree on or after October 1, 1989. We agree. Count one of the substitute information charged the defendant with violating General Statutes § 53a-70 (a) (2), sexual assault in the first degree, in that during the months of October through December, 1989, he engaged in sexual intercourse, specifically cunnilingus, with a person under thirteen years of age. The statute, § 53a-70 (a) (2), took effect on October 1,1989. The defendant contends that the victim’s testimony was the only evidence offered to prove the date on which the offense occurred, and that on the basis of that testimony the jury could not reasonably conclude beyond a reasonable doubt that the offense took place on or after October 1, 1989.

The yictim’s testimony does not present us with a specific date for the cunnilingus incident. We must conclude, however, that the jury found that the offense took place on or after October 1, 1989, because they were instructed that in order to find the defendant guilty of violating § 53a-70 (a) (2) they must find that the act of cunnilingus occurred on or after October 1, 1989, and because it is presumed that a jury follows the instruction of the court. See State v. Parris, supra, 219 Conn. 294.

In determining whether there was sufficient evidence for the jury to find that the act of cunnilingus took place on or after October 1, 1989, we review the evidence in the light most favorable to sustaining the verdict. State v. Williams, 231 Conn. 235, 251, 645 A.2d 999 (1994). In doing so, we determine whether, on the basis of the facts established and the inferences reasonably drawn therefrom, the jury could have reasonably concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Brown, 232 Conn. 431, 437, 656 A.2d 997 (1995).

The defendant does not challenge the sufficiency of the evidence that supports the jury’s finding that the cunnilingus incident occurred. The issue before us is whether the testimony supports the jury’s conclusion that the defendant committed that act on or after October 1, 1989. The state contends that the victim testified that the couch incident happened in October, 1989, and further testified that the defendant stopped living with her and her mother about six months after this final incident of sexual abuse, which also, according to the state, would place the act of cunnilingus in October, 1989. Additionally, the state argues that the constancy of accusation evidence, which is based on the victim’s December, 1992 statement that the couch incident occurred in October, 1989, clearly supports the jury’s finding.

The state supports its contention that the victim testified that the couch incident happened in October, 1989, with the following testimony:

“[Assistant State’s Attorney]: Now you indicated that the last time he touched you improperly was near your tenth birthday; is that light?
“[Victim]: Yes.
^ ^
“ [Defense Counsel]: And you testified earlier that this incident in October of ’89 was the last time that [the defendant] touched you in any way?
“[Victim]: Yes.”

This testimony is not sufficient to support the conviction. A search of the transcript of the victim’s testimony does not reveal that she testified that the act of cunnilingus or any improper touching by the defendant occurred near her tenth birthday. The evidence established that the victim had her tenth birthday on October 20, 1989. The remainder of the testimony on which the state relies, however, refers to statements made by the victim that were never admitted as substantive evidence in this trial. The questions by the assistant state’s attorney and defense counsel assume facts not in evidence. Other evidence elicited by both the prosecution and the defense clearly showed that the victim did not remember when the couch incident took place.

The state also relies on the victim’s testimony that the couch incident occurred about six months before the defendant moved out of the residence. In response to defense counsel’s question concerning how long after the couch incident the defendant moved out of the house, the victim answered: “About six months.” Defense counsel then asked: “So that would be sometime in March or April?” The victim agreed. Later, the victim again testified that the defendant left in March or April. This testimony cannot be used to establish beyond a reasonable doubt that the offense took place on or after October 1, 1989, because six months prior to March or April is September or October.

The state next argues that the testimony of the constancy of accusation witnesses establishes that the couch incident occurred on or after October 1, 1989. Cybulski testified that the victim had told him one year before the trial that the incident had happened in October, 1989. The trial court charged the jury that they could use the constancy of accusation testimony only to corroborate the constancy and consistency of the victim’s allegations. This instruction precluded the jury from using the testimony to establish the facts contained in the victim’s allegations concerning the crime. “The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions. State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991).” State v. Parris, supra, 219 Conn. 294.

In this case, the victim did not testify that the act of cunnilingus occurred on or after October 1, 1989, and the jury could not use the constancy of accusation testimony for that purpose. The evidence does not support a conclusion that the jury could have reasonably concluded beyond a reasonable doubt that the act of cunnilingus occurred on or after October 1, 1989. The defendant, therefore, could not have been found guilty of violating § 53a-70 (a) (2), sexual assault in the first degree.

IV

The defendant’s final claim is that the court improperly admitted the constancy of accusation evidence. “In sex-related [cases the constancy of accusation] hearsay exception permits a witness to testify to the declarations of the victim complaining about the incident. . . . The evidence is received to confirm the victim’s testimony by showing constancy of accusation, on the reasoning that it would be natural to make a complaint if a person had been so attacked, and unnatural if the crime had not been committed. . . . Since the purpose of the exception is to corroborate the victim’s testimony, it applies only after the [victim] has testified.” (Citations omitted.) C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.22.1; see State v. Kelley, 229 Conn. 557, 563-66, 643 A.2d 854 (1994); State v. Hammer, 188 Conn. 562, 565, 452 A.2d 313 (1982); State v. Kinney, 44 Conn. 153, 156 (1876).

The defendant relies on State v. Ouellette, 190 Conn. 84, 459 A.2d 1005 (1983), to support his allegation that the trial court admitted the constancy of accusation evidence without sufficient foundation. In State v. Ouellette, supra, 99, the court stated: “Before [constancy of accusation] evidence can be admitted . . . the trial court must find . . . that the statement was made at a time when it was natural to make it . . . .” The defendant claims that the victim did not make a detailed complaint until approximately three years after the last incident complained of and there were no findings by the court that this complaint was made at a time when it was natural to make it. The state claims that this issue has not been preserved for appellate review in that no objection was made to the testimony of any of the constancy of accusation witnesses. The defendant counters that the trial court’s failure to make the predicate findings required by Ouellette for the introduction of constancy of accusation testimony deprived him of a right to confront the witness and deprived him of a fair trial, thereby raising the trial court’s error to one of constitutional magnitude and making it reviewable under the holdings in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In the absence of any one of the four conditions of Golding, the defendant’s request for review of an unpreserved claim must fail. In applying the facts to a Golding review, an appellate tribunal is free to focus on whichever condition is most relevant in the particular circumstances. State v. Golding, supra, 240.

The constancy of accusation rule “is an evidentiary rule of long standing in this jurisdiction.” State v. Dabowski, 199 Conn. 193, 199, 506 A.2d 118 (1986). In its application to this case the claim does not rise to the constitutional level required by the second prong of Golding. See State v. Battle, 39 Conn. App. 742, 750, 667 A.2d 1288 (1995). Furthermore, even if this issue had been preserved, it is evident from the record that the defendant took full advantage of his opportunity to cross-examine the victim and each constancy of accusation witness. His right to confront the witnesses against him was fully preserved.

We also decline to review this claim under the plain error doctrine. “Plain error is reserved for extraordinary situations where the existence of the error is so obvious that it affects public confidence in the fairness and integrity of judicial proceedings.” State v. Goodrum, 39 Conn. App. 526, 541-42, 665 A.2d 159 (1995). The defendant’s claim does not warrant such review.

The judgment is affirmed as to the conviction of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21; the judgment is reversed as to the conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and the case is remanded with direction to render a judgment of acquittal of sexual assault in the first degree and to resentence the defendant accordingly.

In this opinion O’CONNELL, J., concurred.

LANDAU, J.,

concurring in part, dissenting in part. I concur with the majority insofar as it affirms the judgment of conviction for sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21.1 disagree, however, with the majority’s conclusion that the evidence was insufficient to support the jury’s verdict of guilty on the charge of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2). I must, therefore, respectfully dissent.

“ ‘The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. . . . The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.’ . . . State v. Wagner, 32 Conn. App. 417, 429-30, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).” State v. Crosby, 36 Conn. App. 805, 820, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995).

The victim’s testimony established the following facts. The victim’s birthday was October 20, and she turned ten in October, 1989. The last time the defendant sexually abused her was when he performed an act of cunnilingus upon her sometime near her tenth birthday. The defendant moved out of the victim’s house in March or April, 1990, which was about six months after the incident occurred. Moreover, the time period surrounding the victim’s birthday in October, 1989, was the only time frame mentioned in connection with the “couch incident.”

The linchpin of the majority’s conclusion that the evidence was insufficient to allow the jury to find that the alleged act of sexual abuse occurred after October 1, 1989, is that it was elicited from the victim on questions that assumed facts not in evidence. This evidence, however, was admitted without objection. “If evidence is admitted without objection, it is given such weight as the trier of fact deems it is worth. State v. Rawls, [198 Conn. 111, 118, 502 A.2d 374 (1985)]; State v. Banks, 194 Conn. 617, 620, 484 A.2d 444 (1984); State v. Ruth, 16 Conn. App. 148, 152, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).” State v. Kulmac, 230 Conn. 43, 71, 644 A.2d 887 (1994).

“In cases in which . . . evidence has been admitted without objection, we have held that the trier of fact could have relied on . . . the matters stated therein, for whatever they were worth on their face. Sears v. Curtis, 147 Conn. 311, 317, 160 A.2d 742 (1960); Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987); Danahy v. Cuneo, 130 Conn. 213, 217, 33 A.2d 132 (1943). . . . [E]vidence is reliable to the extent that it has rational probative force. State v. John, 210 Conn. 652, 663, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Carey, 228 Conn. 487, 495-96, 636 A.2d 840 (1994).

“As explained by Professor McCormick: If [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. . . . This principle is almost universally accepted. . . . The principle applies to any ground of incompetency under the exclusionary rules. It is most often invoked in respect to hearsay, but it has been applied to evidence vulnerable as secondary evidence of writings, opinions, evidence elicited from incompetent witnesses or subject to a privilege, or subject to objection because of the want of authentication of a writing, of the lack-of-knowledge qualification of a witness, or of the expertness qualification. 1 C. McCormick, Evidence (4th Ed. 1992) § 54, pp. 219-20. . . . [Ajppellate review of the sufficiency of the evidence . . . properly includes . . . evidence even if such evidence was admitted despite a purportedly valid objection.” (Citation omitted; internal quotation marks omitted.) State v. Carey, supra, 228 Conn. 496.

Construing the evidence admitted in the light most favorable to sustaining the verdict, the cumulative effect of the victim’s testimony that the couch incident occurred somewhere near her tenth birthday in October, 1989, together with her testimony that the defendant vacated the apartment in March or April, 1990, approximately six months after the incident, is sufficient evidence for the jury reasonably to have concluded that the alleged act occurred after October 1, 1989.

I would affirm the judgment as to count one.

        Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).

       The trial court, reviewed these notes at a hearing in connection with the defendant’s request to examine Bond’s notes for exculpatory information. At this hearing, the court also heard testimony from Bond regarding the notes.

       Although not part of the trial court’s reasoning, it is worthy to note that the trial court gave the jury a Secondino instruction in connection with the failure of the victim’s mother to testify, and that the defendant, in his summation to the jury, forcefully and repeatedly made the argument that Bond was the victim’s therapist and had information that the victim shared with her, and that the state could have called Bond as a witness, but failed to do so.

       Public Acts 1989, No. 89-359.

       The court instructed the jury as follows: “The state alleges that the charge of sexual assault in the first degree occurred between October and December of 1989. The date of October 1, 1989, is very important with respect to this particular charge of sexual assault in the first degree because this particular section of the Connecticut General Statutes § 53a-70 (a) (2), did not become law until October' 1, 1989.
      “A person can not be convicted of committing a crime until the assault which would make his conduct a crime becomes law. Therefore, I instruct you that even if you find the defendant—that the defendant committed the crime of sexual assault in the first degree under § 53a-70 (a) (2), you may not find him guilty of this crime unless you also find that the act of cunnilingus which constituted the crime was committed on or after October 1, 1989.”

       The basis for the assumptions that the defendant last touched the victim improperly near her tenth birthday in October comes from the interview with Cybulski, Bond and Tuller one year before the trial and repeated in the constancy of accusation testimony given by Cybulski.

       The state questioned the victim about the date of the couch incident as follows:
      “Q. When was this now, if you remember?
      “A. It was when my mom went to New Britain to see my brother.
      “Q. Now do you remember, if that was near any particular event in your life, such as a birthday?
      “A. I don’t remember.
      “Q. You remember telling someone it was near your tenth birthday in October?
      “A. Yes. It was in the wintertime.
      “Q. I’m sorry?
      “A. It was in the winter.”
      Defense counsel also questioned the victim about the date of the incident:
      “Q. Let me go into the incident in 1989 that you say happened on the couch in the living room. Your birthday is in October, isn’t it?
      “A. Yes.
      “Q. And it’s on October 20th?
      “A. Yes.
      “Q. And in 1989 you were ten years old?
      “A. Yes.
      “Q. Now, would you say that the incident that you testified about on the couch in the living room happened within a week before your birthday or after your birthday?
      “A. I don’t remember.
      “Q. Could it have been within two weeks?

        “A. I can’t remember.
      “Q. So you don’t know exactly when it happened?
      “A. No.
      "Q. Could it have been before October of ’89?
      “A. I don’t remember.’’

       A defendant can prevail on an unpreserved claim “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KENNETH PRUTTING
    (13588)
    Foti, Schaller and Hull, Js.

      Argued October 23, 1995
    decision released January 23, 1996

      Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen Sedensky, assistant state’s attorney, for the appellee (state).
   SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of first degree manslaughter in violation of General Statutes § 53a-55 (a) (3), carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b), and criminal possession of a pistol in violation of General Statutes § 53a-217. The defendant claims that the trial court improperly (1) admitted portions of a witness’ signed statement into evidence as a prior inconsistent statement, (2) precluded the introduction of a prior conviction of a state’s witness as impeachment evidence and permitted the introduction of the defendant’s prior convictions as impeachment evidence, thereby denying the defendant his due process right to a fair trial by applying different standards for the admission of impeachment evidence offered by the state, (3) instructed the jury on manslaughter in the first degree as a lesser included offense, (4) compelled the defendant to begin trial in prison clothes and required the defendant to be shackled during trial, (5) refused to grant the defendant’s requests for continuances and (6) denied the defendant’s motion for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 22, 1989, the defendant, Kenneth Pmtting, was in an argument on the premises of the R Place Cafe in Bridgeport. His brother, Jimmy Prutting, was present during the argument. The owner of the R Place Cafe, Frank Messenger, told the defendant and his brother to leave. When they refused, Messenger shoved the defendant and his brother out the front door.

The defendant reentered the premises moments later with a gun and fired two shots. Moving to the doorway, the defendant fired two more shots, one of which killed the victim, John Fitzmorris.

I

The defendant first claims that the trial court improperly admitted portions of a witness’ signed statement as a prior inconsistent statement under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The defendant argues only that the statement was not inconsistent with the witness’ testimony at trial. We disagree.

“A prior inconsistent statement can be used for substantive purposes ... if (1) the statement is written and is signed by the declarant, (2) the declarant has personal knowledge of the facts stated, and (3) the declarant testifies at trial and is subject to cross-examination.” State v. Hermann, 38 Conn. App. 56, 67, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995), citing State v. Whelan, supra, 200 Conn. 753.

The following additional facts are relevant to this claim. The state called Roger Hatfield as a witness. Hatfield testified that he was with the victim, whom he had known for about five years, at the R Place Cafe on September 22,1989, when Fitzmorris was shot to death. When asked to describe what led up to the shooting, Hatfield stated: “First off, I got to make a statement because that statement I made was wrong.” The state then produced the statement to which Hatfield was referring, and Hatfield identified it as the statement that he gave to police on September 27, 1989.

Hatfield proceeded to testify that, on September 22, 1989, he and the victim had argued at the R Place Cafe, and another individual became involved. A fight then began, but Hatfield sat down and no longer involved himself. Messenger came from the back of the bar and was hit with a glass or bottle. Hatfield testified that he then heard shots from the front and the back of the bar. Hatfield witnessed an individual with a moustache and goatee fire shots from near the doorway of the cafe, and he saw the victim hit the floor. Hatfield further testified that he could identify the person who fired the shots from the doorway if he saw the person again, but when the state asked Hatfield if he saw that person in the courtroom, Hatfield replied that he did not.

The state then asked Hatfield about the statement he gave to police on September 27, 1989. Hatfield recalled being shown an array of numbered photographs and telling the police that either photograph five or six was a photograph of the person who shot Fitzmorris from the doorway. Hatfield also acknowledged telling police that he had not seen anyone with a gun other than the person at the front door and not telling police that shots were fired from the back of the bar. The police had asked Hatfield to mark on a diagram of the R Place Cafe where the person firing the gun was, and Hatfield had made only one mark, by the doorway. The state then offered Hatfield’s September 27, 1989 statement to police as a prior inconsistent statement.

The defendant objected to the introduction of Hatfield’s statement, arguing that because Hatfield did not testify that he saw anyone with a gun other than the person in the doorway that his testimony was not inconsistent with his statement to police that he had not seen anyone else with a gun. The defendant also asserted that Hatfield’s testimony, that the person who fired shots from the doorway was not in the courtroom, was not inconsistent with his statement that photograph five or six of the array was of the person who had fired the shots from the doorway. The trial court thereafter admitted as substantive evidence, over the defendant’s objection, Hatfield’s redacted September 27, 1989 statement.

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. ...” (Citations omitted; internal quotation marks omitted.) State v. Zollo, 36 Conn. App. 718, 723, 654 A.2d 359, cert. denied, 234 Conn. 906, 650 A.2d 859 (1995). This standard does not vary for the court’s determination of whether two statements are inconsistent. State v. Laccone, 37 Conn. App. 21, 28, 654 A.2d 805 (1995). “ ‘Whether there are inconsistencies between the two statements is properly a matter for the trial court. ... In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined.’ ” Id., quoting State v. Whelan, supra, 200 Conn. 748 n.4.

In this case, Hatfield made two statements describing what occurred at the R Place Cafe on September 22, 1989. We must determine whether the trial court abused its discretion in determining that the statements were inconsistent. At trial, Hatfield testified that shots were fired from the front and the back of the bar. In his statement to police, however, Hatfield did not mention shots coming from the back of the bar. In fact, Hatfield told police that he had not seen anyone with a gun other than the person in the front doorway. Moreover, police asked Hatfield to indicate on a diagram of the cafe where the shooter was when the shooter fired the gun, and Hatfield made a mark by the front doorway only.

Hatfield also testified that he did not see the person in the courtroom who had fired shots from the doorway in the courtroom, although the defendant was in the courtroom. In his statement to police, Hatfield had stated that photograph five or six in the array was of the shooter, although he added that he was not sure. Photograph five was of the defendant. We note that the trial court could also have considered Hatfield’s testimony at trial that “I got to make a statement because that statement I made was wrong.”

“Inconsistencies may be shown not only by contradictory statements but also by omissions. ... A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made.” State v. Whelan, supra, 200 Conn. 748-49 n.4. Although Hatfield’s statements were not diametrically opposed, we conclude that it was within the trial court’s discretion to determine that the two statements were inconsistent. Considering Hatfield’s testimony as a whole and its entire effect, we conclude that the trial court did not abuse its discretion in admitting Hatfield’s statement to police as a prior inconsistent statement.

II

The defendant next claims that the trial court improperly (1) precluded the introduction of a conviction of a state’s witness as impeachment evidence and (2) permitted the introduction of four of the defendant’s prior convictions as impeachment evidence and refused to limit references to the defendant’s convictions as unnamed felonies. The defendant further claims that the trial court denied the defendant’s due process right to a fair trial by applying different standards for the admission of impeachment evidence offered by the state and by the defendant. We find no merit in the defendant’s claims.

“The credibility of a witness may be attacked by introducing the witness’ conviction of a crime if the maximum penalty for that conviction is imprisonment exceeding one year. See General Statutes § 52-145 (b); State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). . . . Three factors have usually been identified as of primary importance in considering whether a former criminal conviction is to be admitted: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time. State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982). We will not disturb the trial court’s determination as to the admissibility of a prior conviction to impeach a witness absent an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Webb, 37 Conn. App. 722, 731-32, 657 A.2d 711 (1995).

A

The defendant specifically claims that the trial court improperly precluded the introduction of a state’s witness’ prior conviction of extortion as impeachment evidence. After the state called Messenger as a witness, the defendant sought to introduce Messenger’s 1974 extortion conviction. The trial court concluded that the conviction was too remote to be admissible.

“While leaving the matter to the general discretion of the trial court, [our Supreme Court has] sanctioned a general guideline for the determination of remoteness that parallels rule 609 (b) of the Federal Rules of Evidence. Rule 609 (b) establishes a ten year limitation from conviction or release from resulting confinement upon the use of the conviction for impeachment purposes unless the probative value of the conviction substantially outweighs its prejudicial effect. . . . [W]e recognize that convictions having special significance on the issue of veracity may surmount the standard ten year bar .... State v. Sauris, [227 Conn. 389, 409-10, 631 A.2d 238 (1993)].” (Citations omitted; internal quotation marks omitted.) State v. Webb, supra, 37 Conn. App. 732.

Messenger’s conviction of extortion fell outside the general ten year guideline. While we recognize that a conviction of extortion is a form of larceny and therefore has significance on the issue of veracity, we conclude that the trial court did not abuse its discretion when it precluded the introduction of Messenger’s nineteen year old conviction of extortion. “The trial court, because of its intimate familiarity with the case, is in the best position to weigh the relative merits and dangers of any proffered evidence.” State v. Geyer, 194 Conn. 1, 13, 480 A.2d 489 (1984); State v. Rivera, 221 Conn. 58, 73, 602 A.2d 571 (1992).

Because the defendant was not entitled to the introduction of Messenger’s prior conviction for impeachment purposes, the defendant’s claim under the confrontation clause of the sixth amendment to the federal constitution also fails. State v. Carter, 228 Conn. 412, 432, 636 A.2d 821 (1994).

B

The defendant next claims that the trial court improperly permitted the introduction of four prior convictions of the defendant that were more than ten years old. The defendant also claims that the trial court improperly refused to require the state to refer to the defendant’s three robbery convictions as unnamed felonies.

Our review of the record reveals that the trial court permitted the state to impeach the defendant’s credibility by introducing a 1993 conviction of an unnamed felony, a 1992 conviction of an unnamed felony, a 1984 conviction of robbery in the first degree, a 1982 conviction of robbery in the first degree, a 1982 conviction of robbery in the second degree and a 1981 conviction of an unnamed felony. Because the defendant’s trial took place in 1993, only three of the convictions admitted as impeachment evidence were more than ten years old. We review the defendant’s claim based on the trial court’s admission of the three prior convictions more than ten year's old.

The trial court stated that the prior convictions were not too remote to be used as impeachment evidence. The court further stated that, because robbery involves a larcenous intent and the defendant was not charged with a crime similar to robbery, the state could specifically identify the robbery convictions. We conclude that the trial court did not abuse its discretion by admitting the defendant’s prior convictions as impeachment evidence and by refusing to require the state to refer to the defendant’s prior robbery convictions as unnamed felonies.

We have held that it is within the trial court’s discretion to admit a defendant’s prior conviction of robbery under the exception to the ten year bar for convictions having special significance on the issue of veracity. See State v. Irving, 27 Conn. App. 279, 290, 606 A.2d 17, cert. denied, 222 Conn. 907, 608 A.2d 694 (1992). The admission of the defendant’s 1981 conviction of an unnamed felony, however, does not clearly fall within the exception. The record in this case does not disclose whether the unnamed felony had the special significance on the issue of veracity needed to overcome the ten year bar. “We do not presume error; the trial court’s ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden of demonstrating to the contrary.” State v. Crumpton, 202 Conn. 224, 231, 520 A.2d 226 (1987). Because nothing in the record indicates otherwise, we conclude that the trial court applied the correct legal standard. Id., 232. We, therefore, cannot say that the trial court abused its discretion by permitting the state to introduce the three convictions that were more than ten years old.

The trial court also correctly concluded that the mention of the robbery convictions in this case did not create the high degree of prejudice that exists where a prior crime is similar to the offense being tried. State v. Nardini, supra, 187 Conn. 522. In this case, the defendant was charged in the alternative with murder, attempted murder, and attempted assault in the first degree, as well as with carrying a pistol without a permit and criminal possession of a pistol. Furthermore, the robbery convictions reflected larcenous intent and, thus, were probative of dishonesty in the general sense. State v. Crumpton, supra, 202 Conn. 233; State v. Webb, supra, 37 Conn. App. 732. We conclude, therefore, that the trial court’s decision to permit the state to identify specifically the defendant’s prior convictions of robbery was within its discretion.

The defendant also claims that the trial court denied his due process right to a fair trial by applying different standards for the admission of impeachment evidence offered by the state and by the defendant. See State v. Torres, 210 Conn. 631, 645, 556 A.2d 1013 (1989). Because we have concluded that the trial court applied the appropriate standard for the admission of the state’s and the defendant’s impeachment evidence, this claim fails.

Ill

The defendant next claims that the trial court improperly instructed the jury on manslaughter in the first degree as a lesser included offense of murder. The defendant argues that manslaughter in the first degree requires the element of “circumstances evincing an extreme indifference to human life,” which is not needed to commit the greater offense of murder, and that, therefore, the trial court deprived the defendant of his right to notice under article first, § 8, of the Connecticut constitution and the fourteenth amendment of the federal constitution. The defendant further argues that the trial court deprived him of his right to notice by instructing the jury on the lesser included offense absent a request from either party. We find no merit in the defendant’s claim.

The defendant did not object to the jury charge at trial, and now asserts that he is entitled to appellate review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). On appeal, the claim must meet all four prongs of the Golding analysis to be successful. Id., 239-40. We have stated previously that “[w]e are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).

The third prong of the Golding analysis requires that “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 213 Conn. 240. “When determining whether one crime is a lesser included offense of another crime, the reviewing court must consider whether ‘it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser . . . .’ State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Proof of a lesser included offense must not require proof of any element that is not needed to commit the greater offense. State v. Castro, 196 Conn. 421, 429, 493 A.2d 223 (1985).” State v. Guess, 39 Conn. App. 224, 237, 665 A.2d 126 (1995).

The defendant argues that § 53a-55 (a) (3) requires proof of the additional element of “circumstances.” Our Supreme Court has stated, however, that the only difference between the elements of murder and manslaughter in the first degree pursuant to § 53a-55 (a) (3) is the requisite intent. State v. Crafts, 226 Conn. 237, 250, 627 A.2d 877 (1993). We cannot say, therefore, that “circumstances” is anything more than an integral part of the description of the required mental state for § 53a-55 (a) (3).

It follows that “by virtue of General Statutes § 53a-45 (c) a murder indictment is deemed to notify a defendant that he may be found guilty of homicide in any lesser degree than that charged.” State v. Maselli, 182 Conn. 66, 71, 437 A.2d 836, cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1980), citing State v. Rodriguez, 180 Conn. 382, 405, 429 A.2d 919 (1980). “[H]aving been given notice of the most serious degree of culpable intent by the murder indictment, [the defendant] is implicitly given notice of those lesser included homicides that require a less serious degree of culpable intent.” State v. Rodriguez, supra, 405. We conclude, therefore, that the trial court did not deprive the defendant of his right to notice by instructing the jury, even absent a request by either party, on the lesser included offense of manslaughter in the first degree.

IV

The defendant next claims that the trial court improperly compelled the defendant to begin trial in prison clothes and required the defendant to be shackled during trial without justifying the use of restraints on the record. The defendant argues that the trial court thereby violated Practice Book § 967 and his rights under article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution. We find no merit in the defendant’s claims.

“ ‘The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. . . . The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.’ Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied, 426 U.S. 954, 96 S. Ct. 3182, 49 L. Ed. 2d 1194 (1976). In order to implement that presumption, ‘courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).’ ” (Citation omitted.) State v. Woolcock, 201 Conn. 605, 613, 518 A.2d 1377 (1986); see also State v. Tweedy, 219 Conn. 489, 505, 594 A.2d 906 (1991).

A

A defendant may not be compelled to stand trial in prison clothes. State v. Williamson, 206 Conn. 685, 704, 539 A.2d 561 (1988). This right derives from and reinforces the presumption of innocence. Estelle v. Williams, supra, 425 U.S. 501.

The following additional facts are necessary for resolution of this issue. Before the defendant’s trial began, the trial court noted on the record that the defendant was appearing in “institutional clothing” despite having been given a twenty-four hour continuance to procure other clothing. The defendant’s counsel responded that the defendant had procured other clothing, and that the defendant also had been informed that other clothes were available in the public defender’s office. The defendant’s counsel then indicated that the defendant, nevertheless, “was opting to wear his institutional clothing.” The court concluded: “That is his choice and his election. He’s agreed to do that. Just as long as it is clear on the record that is his choice.”

The defendant then made a statement for the record. The defendant stated that his mother had sent him some other clothes, but they did not fit. The defendant continued: “Plus I wanted to state for the court that right now I want to go to trial.” Finally, the defendant stated: “I’d like to have my own clothes. But them clothes . . . .”

“ ‘[T]he failure to make an objection to the court as to being tried in [prison] clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.’ ” State v. Williamson, supra, 206 Conn. 704, quoting Estelle v. Williams, supra, 425 U.S. 512-13. Although the defendant indicated that he would prefer to have his own clothes, the defendant did not object to beginning trial in prison clothing. In 1'act, the defendant’s counsel indicated that it was the defendant’s choice to wear prison clothes. Furthermore, despite the court’s bringing the issue of the defendant’s prison clothes to the defendant’s attention, the defendant stated that he wanted his trial to begin immediately. We cannot conclude that the trial court compelled the defendant to begin trial in prison clothes. The trial court, therefore, did not violate the defendant’s constitutional rights or violate Practice Book § 967.

B

“As a general proposition, a criminal defendant has the right to appear in court free from physical restraints. . . . Grounded in the common law, this right evolved in order to preserve the presumption favoring a criminal defendant’s innocence, while eliminating any detrimental effects to the defendant that could result if he were physically restrained in the courtrooom.” (Internal quotation marks omitted.) State v. Tweedy, supra, 219 Conn. 505. “The negative connotations of restraints, nevertheless, are without significance unless the fact of the restraints comes to the attention of the jury.” Id, 508.

The following additional facts are necessary for resolution of this issue. The defendant filed with the trial court a motion for rectification asking the trial court to “specify on what occasion two jurors were present in the courtroom when the defendant was in handcuffs.” The trial court responded that: “The only information brought to the court’s attention about the defendant being seen in handcuffs was that he had been seen, handcuffed, by two of the state’s witnesses.”

The defendant attempts to rest his claim solely on his own statement at sentencing that jurors had seen him shackled. Such a statement, however, does not provide evidence that the jury saw or otherwise knew of the defendant’s restraints. Id., 507 and n.14 (defense counsel’s claim that defendant’s restraints were visible from jury box was not appropriate offer of proof to substantiate claim). Because there is no evidence in the record that jurors saw the defendant in restraints, we find no merit in the defendant’s claim that he was denied a fair trial.

V

The defendant next claims that by refusing to grant the defendant a continuance before trial the court denied him due process of law and a fair trial under article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution. The defendant also claims that the trial court improperly refused to grant him a continuance in order to replace counsel before sentencing. We find no merit in the defendant’s claims.

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s decision will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge al the time the request is denied,” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Hamilton, 228 Conn. 234, 239-40, 636 A.2d 760 (1994).

A

The following additional facts are necessary to a resolution of the defendant’s claim that the trial court denied him a fair trial by refusing to grant a continuance before trial. On the day that jury selection began, September 14,1993, the defendant requested time to study his case and to give his attorney the names of his witnesses. The defendant stated that he had not had access to his legal papers and had not been able to telephone his attorney. The defendant also stated, however, that because the case was then four years old, he had been ready to go to trial numerous times. Moreover, he told the court, “right now I want to go to trial.”

In considering the defendant’s motion, the court asked the defendant’s counsel if he was prepared to go to trial. The defendant’s counsel responded that he had been assigned the case several years earlier, that he was prepared and had conducted an independent investigation, and had met with the defendant the previous day and at an earlier time for a pretrial. He also noted, however, that the defendant had indeed been unable to respond to his letters or to telephone him.

In denying the defendant’s motion for a continuance, the trial court noted that the defendant’s counsel would have the opportunity during the next day of jury selection to confer with the defendant. The court also stated that it would see that the defendant had access to his legal papers. Considering the court’s stated reasons, as well as the information presented by the defendant and his counsel, we conclude that the trial court did not arbitrarily deny the defendant’s request for a continuance. The defendant’s case was four years old, his counsel has been assigned the case two years before trial and had conducted an independent investigation, the defendant requested the continuance as jury selection was about to begin, and the defendant stated that he wanted to begin trial immediately. We conclude that the trial court did not abuse its discretion.

B

The following additional facts are necessary to a resolution of the defendant’s claim that the trial court improperly refused to grant him a continuance in order to replace counsel before sentencing. At his sentencing, on November 12, 1993, the defendant requested the court to postpone his sentencing so that he could have an attorney present who would assist him on appeal. The court denied the defendant’s request stating that the defendant had no right to appeal until he was sentenced. We conclude that the court did not abuse its discretion in denying the defendant’s request for a continuance because the defendant had ample time to acquire new counsel for the purpose of appealing his convictions.

VI

The defendant claims finally that his remarks at sentencing amounted to a pro se motion for a new trial pursuant to Practice Book § 902, and that the court improperly denied the motion. Because our review of the record demonstrates that the defendant did not make a motion for a new trial at his sentencing, we do not review the defendant’s claim.

The judgment is affirmed.

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 ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon Ms person, except when such person is within Ms dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes § 29-37 (b) provides in relevant part: “Any person violating any provision of subsection (a) of section 29-35 may be fined not more than one thousand dollars and shall be imprisoned not less than one year nor more than five years, and, in the absence of any mitigating circumstances as determined by 1he court, one year of the sentence imposed may not be suspended or reduced by the court. . . .”

       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 has been convicted of ... a class B felony .... For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       The redacted statement provided in pertinent part:
      “Q. In your own words, tell me what happened] leading up to the shooting.
      “A. Me and Johnny Joe were at the bar drinking and we were fooling around. We were fooling around, we started exchanging words, and then it started getting serious. We stood there arguing and we almost got into it. Then this other guy came over and he started sticking up for Johnny Joe. I think it was over a beer. Then me and this other guy that stood up for Johnny Joe started to go at it. Then Johnny Joe tried to stop the two of us from going at it. I walked away and then Frank came over to where Johnny Joe and the rest of the guys were arguing. And as soon as Frank got over to them, Frank got hit in the head with a glass or a bottle. There were about four to six people there. My buddy held me from going there.
      “Q. Who were the four to six people?
      “A. The only ones I know were Johnny Joe and Frank. The other ones I only know by face.
      “Q. Go on.
      “A. Right after Frank got hit at least two shots went off. Johnny Joe fell to the floor.
      “Q. Where was the man standing when he fired at least two shots?
      “A. By the front door.
      “Q. I’m showing you photo array number one, do you recognize the guy with the gun that shot Johnny Joe?
      “A. I think it was five or six but I’m not sure.
      “Q. What happened] after Johnny Joe got shot?
      “A. I ran near the back of the bar and I squatted down there. It was [quiet] for about a minute. I got back up and as soon as I got back up there were about four or five more shots fired and that’s when I ran right out the backdoor.
      “Q. Did you see who was shooting at this time?
      “A. No, because they were coming from outside in the front of the bar.
      “Q. About how many total shots were fired?
      “A. About seven or eight shots.
      “Q. Did you see anyone else with a gun?
      “A. No.”
      The photographic array was also admitted as a full exhibit.

       Convictions having special significance on the issue of veracity may surmount the standard ten year bar. State v. Sauris, supra, 227 Conn. 410. “[Cjrimes involving larcenous 'intent imply a general disposition toward dishonesty or a tendency to make false statements.” (Internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 435, 630 A.2d 1043 (1993). “Our General Statutes § 53a-119 (5) defines extortion as a form of larceny.” State v. Garcia, 7 Conn. App. 367, 372, 509 A.2d 31 (1986).

       Because the defendant provides no separate analysis for his claim under article first, § 8, of the Connecticut constitution, we do not address it. See State v. Sauris, supra, 227 Conn. 413 n.18.

       The trial court record available to us does not reveal the specific charge involved in the 1981 unnamed felony.

       See footnote 1.

       General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed !<: demonstrate hatmleFsnoss of the alleged const il ill tonal violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       In State v. Rodriguez, 180 Conn. 382, 403 n.17, 429 A.2d 919 (1980), our Supreme Court stated that the state of mind involved in § 53a-55 (a) (3) “requires recklessness and ‘circumstances evincing an extreme indifference to human life.’ This last phrase indirectly bears upon the defendant’s state of mind.”

       General Statutes § 53a-45 (c) provides: “The court or jury before which any person indicted for murder or held to answer for murder after a hearing conducted in accordance with the provisions of section 54-46a is tried may find such person guilty of homicide in a lesser degree than that charged.”

       Practice Book § 967 provides in relevant part: “An incarcerated defendant . . . shall not be required during the course of a trial to appear in court in the distinctive attire of a prisoner or convict.”

       See footnote 7.

       The defendant was interrupted by the trial court and did not complete this sentence.

       The defendant argues that, even though he acknowledged at his sentencing that he agreed to proceed with jury selection on September 14, 1993, his acquiescence was based on a representation that counsel would request a continuance at a later dat e if his legal materials were not provided. The representation to which the defendant refers, however, was not on the record and nothing indicates that it was a circumstance present before the trial court when it denied the defendant’s request for a continuance. In our review of the trial court’s denial of the defendant’s request for a continuance, we must consider only the circumstances existing when the trial court made its ruling, particularly the reasons presented at the time the request is denied. State v. Hamilton, supra, 228 Conn. 240.

       Practice Book § 902 provides in pertinent part: “Upon motion of the defendant, the judicial authority may grant him a new trial if it is required in the interests of justice. . . .”


author: DUPONT, C. J.

text:
    JONI L. MARK v. HARRY H. MARK
    (14885)
    Dupont, C. J., and Lavery, Landau, Heiman and Schaller, Js.
    Considered October 11
    decision released December 27, 1995

      Lori Welch-Rubin, in support of the motions.

       December 27, 1995, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   DUPONT, C. J.

The defendant appealed from the trial court’s postjudgment denial of his motion to modify alimony and a judgment of contempt. Subsequently, he amended his appeal to challenge two other judgments of contempt of the alimony order. The plaintiff moves this court to dismiss the appeal and the amended appeal on the basis of the defendant’s alleged continual pattern of contemptuous conduct, or, in the alternative, to stay the appeal until the defendant purges himself of contempt under the rationale of Greenwood v. Greenwood, 191 Conn. 309, 464 A.2d 771 (1983).

When a party seeks appellate intervention to overturn an adjudication of contempt while simultaneously isolating himself or herself from the consequences of an adverse ruling on appeal or from further orders of the trial court, appellate review may be withheld and the case dismissed unless the appellant demonstrates a willingness to comply with the trial court’s order. Id., 313. The question raised by the plaintiffs motions is whether, on the facts of this case, the Greenwood holding should be extended to allow an unconditional dismissal of the defendant’s appeal because of his behavior.

The defendant appellant has continually failed to comply with court orders regarding alimony in this matter. He has been found in contempt three times and has paid the purge amounts only when he has been jailed or threatened with incarceration. The amount of alimony owed, which is the subject of the three findings of contempt, is based on the original alimony order upheld in Mark v. Mark, 38 Conn. App. 920, 659 A.2d 1239, cert. denied, 235 Conn. 934, 659 A.2d 1239 (1995). As of September 20,1995, the defendant owed an arrearage of $59,260 as found by the trial court. The defendant does not challenge the accuracy of this amount on appeal.

The defendant has established a pattern of contemptuous conduct. He has continually failed to comply with the court orders of support, and then has repeatedly purged himself of contempt only when jailed or threatened with incarceration by the court. This conduct places the plaintiff in the position of continually expending legal resources, while leaving her without support for lengthy periods of time. We conclude that a litigant who displays a calculated and continued pattern of contemptuous conduct in defiance of the authority of the courts of this state should not be afforded the opportunity to seek our intercession to disturb an adjudication rendered by the trial court. We, therefore, grant the plaintiffs motions to dismiss the defendant’s appeal as amended.

The plaintiff, a fifty-seven year old social worker, instituted the underlying dissolution action against the defendant, a sixty-two year old ophthalmologist, in September, 1991. The trial court, Hon. Margaret Driscoll, state trial referee, rendered judgment dissolving the parties’ thirty year marriage on August 26, 1993. Pursuant to this judgment, the defendant was ordered to pay the plaintiff alimony of $800 per week until the plaintiffs death, remarriage, or cohabitation. This court affirmed the dissolution judgment and the alimony award contained therein. See Mark v. Mark, supra, 38 Conn. App. 920.

While the appeal was pending, and before it was decided, on February 4, 1994, the defendant filed a motion to modify the alimony award. He alleged a substantial change in circumstances and requested that the alimony award be reduced. On April 27, 1994, the plaintiff filed a motion for contempt alleging that the defendant failed to make the $800 weekly alimony payments as ordered on August 26,1993, and was in arrears. On May 2, 1995, the trial court, Pittman, J., considered the defendant’s motion for modification and the plaintiffs motion for contempt.

With respect to the defendant’s motion for modification of alimony, the court found that the only change of circumstances since the August, 1993 judgment was the defendant’s voluntary restructuring of his business. The court denied the defendant’s motion for modification. In regard to the plaintiffs motion for contempt, the court determined that the defendant was in wilful contempt of the court’s orders to pay alimony and found an arrearage of $33,500 as of January 9,1995. The court ordered the parties to stipulate to the current arrearage or, if a stipulation could not be reached, to return to court. The defendant was ordered to pay to the plaintiff the sum of $10,000 on or before July 1, 1995, to reduce the arrearage. He was ordered to pay the current alimony of $800 per week plus $200 per week in reduction of the arrearage. In addition, the defendant was ordered to pay $1500 in counsel fees on or before September 1, 1995.

On May 18, 1995, the defendant filed a motion for stay of the May 2, 1995 orders pursuant to Practice Book § 4047 indicating that he intended to appeal from those decisions. The defendant filed this appeal pro se on June 7, 1995.

On June 26, 1995, the trial court considered the defendant’s motion for stay. The defendant argued that he could not comply with the court’s orders regarding alimony and that the court’s orders were grossly in error. The plaintiffs counsel objected to the stay. The trial court denied the motion for stay.

The trial court also considered the plaintiffs motion for contempt filed on May 24, 1995. In the motion for contempt, the plaintiff alleged that the defendant was in contempt of the trial court’s May 2, 1995 orders as he had not made any basic alimony payments of $800 per week. In addition, he had not made any payments of $200 per week toward the arrearage. On June 26, 1995, the court granted the motion for contempt. In conjunction with the contempt finding, the court ordered the defendant incarcerated until he purged himself by paying $2536.80. The defendant paid the purge amount the same day the order entered.

The defendant filed a motion for review of the denial of his motion for stay of the May 2, 1995 contempt order. On July 19, 1995, this court granted review but denied the relief requested.

On July 21, 1995, the defendant filed an amended appeal challenging the May 2, 1995 finding of contempt and the June 26,1995 decisions of the trial court. On July 24,1995, the plaintiff filed another motion for contempt, claiming that the defendant had failed to pay the weekly alimony of $800, the weekly payment of $200 toward the arrearage and the payment of $10,000 due July 1, 1995. The plaintiff filed two other motions for contempt alleging the same grounds on August 18, 1995, and August 30, 1995.

On September 20, 1995, the defendant was again found in wilful contempt and committed to the custody of the commissioner of correction for failure to pay the alimony as ordered. The court, Munro, J., found that there was a total alimony arrearage of $59,260 as of September 20, 1995. The court set the purge amount at $32,829.80, which included $30,000 on the arrearage, $2500 toward plaintiffs counsel fees and $329.80 in costs. Upon payment of the purge amount, the defendant was to be released from custody. The court also ordered that the defendant continue to pay the $800 per week alimony award and $200 per week toward the arrearage as ordered by Judge Pittman on June 29,1995.

On September 22, 1995, the trial court, Munro, J., accepted a purge plan and released the defendant from custody. On October 2,1995, the trial court ordered the defendant to pay $1600 to the plaintiff on that date, which reduced the arrearage to $29,260. The defendant was ordered to make payments to the plaintiff on the arrearage pursuant to a schedule and to continue to pay the $800 per week alimony, as previously ordered. On July 24, 1995, the plaintiff filed a motion to dismiss the defendant’s appeal because he had been found in contempt by the trial court on May 2, 1995 and on June 26, 1995. On September 22, 1995, the plaintiff filed an amended motion to dismiss alleging that the defendant was again in contempt.

We have discretion to dismiss an appeal where the appellant is in contempt of the orders of the trial court. Greenwood v. Greenwood, supra, 191 Conn. 313; Broderick v. Broderick, 20 Conn. App. 145, 146, 565 A.2d 3 (1989); Croke v. Croke, 4 Conn. App. 663, 665 n.3, 496 A.2d 235 (1985); see Practice Book § 4183 (9). This court and our Supreme Court have considered a number of factors in determining whether an appeal should be dismissed due to the contemptuous conduct of the appellant. Some of those factors include the number of times the appellant was held in contempt, whether it is likely the appellant will continue to frustrate any order of the court that may be issued in connection with the same matter, whether the appellant has appeared when summoned to court, and whether the appellant has ever purged himself of the contempt. See Greenwood v. Greenwood, supra, 313; Broderick v. Broderick, supra, 146.

In this case, the defendant challenged the original alimony order, which was upheld on appeal. He then filed this appeal from the denial of a motion for modification of the alimony order and filed an amended appeal from the contempt orders. The defendant has been found in wilful contempt three times and has paid the purge amount for each contempt or the amount set by the trial court but has continued his pattern of wilfully failing to pay the alimony award.

In Broderick v. Broderick, supra, 20 Conn. App. 146, we did not dismiss an appeal where “the defendant was found in contempt by the trial court and an arrearage of $7000.50 for alimony and child support was found.” In Broderick, the defendant had been found in contempt five times, had consistently made the demanded payments after the contempt findings, and had paid the purge amount for the most recent contempt finding. This court, nevertheless, decided the Broderick appeal on the merits “to lay to rest any lingering hope that the defendant may possess that the trial court might be found to have committed error and its judgment reversed.” Id., 146-47.

The Broderick decision is distinguishable from this case in one important aspect. The amount of the support orders had not yet been upheld on appeal in Broderick so that the defendant may have entertained a “lingering hope” that the amount of alimony and child support would be found to be inappropriate. In the present case, the defendant has already had an appellate determination upholding the alimony award and has nevertheless persisted in abusing the judicial system to avoid payment of court ordered support until he is threatened with incarceration or is actually incarcerated.

The plaintiffs motions to dismiss the defendant’s appeal as amended are granted.

In this opinion the other judges concurred.

       The trial court indicated in its oral decision: “The defendant is not entitled to disregard his duty to his former wife or his legal obligation to abide by the orders of the court, in order to engage in restructuring part of his business to make it more convenient for himself. The court finds that the only substantial change in the defendant’s balance sheet, since the decree is a voluntary one by the defendant, related to the Broadway property in North Haven. He cannot use that as atool to reduce or terminate his alimony and the motion is denied.”

       The court found that as of May 2,1995, the defendant owed an arrearage of $45,900.

       The defendant filed a motion for extension of time to appeal the May 2, 1995 decisions to June 12, 1995, which was granted by the trial court.

       Practice Book § 4047 provides in relevant part: “In non-criminal matters in which the automatic stay provisions of Sec. 4046 are not applicable and in which there are no statutory stay provisions, application for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case . . . .”


author: PER CURIAM.

text:
    RIMIKO CAFFE v. BENEDICT CAFFE
    (12819)
    Dupont, C. J., and Foti and Daly, Js.
    Argued December 11, 1995
    decision released January 23, 1996

      Gary Oberst, with whom was Joshua Rammerman, for the appellant (defendant).

      Barbara L. Cox, with whom, on the brief, was William F. Gallagher, for the appellee (plaintiff).
   PER CURIAM.

This is an appeal from the judgment of the orders of support in a dissolution of marriage action. The defendant’s primary claim is that the court failed to consider the appropriate statutory criteria in determining its alimony and child support awards.

The court, in its original memorandum of decision and in its articulation of that decision, failed to cite any statute or to discuss or to state that it had considered the statutory criteria of General Statutes §§ 46b-81 and 46b-82. The court’s only relevant conclusion was that the fault for the irretrievable breakdown of the marriage was that of the defendant. Although a court need not make express findings on each of the statutory criteria, or give equal weight to each of them, it should, at least, make some reference to the statute or statutes involved so that appellate courts will have guidance as to whether a court’s discretion is being exercised properly. See Ippolito v. Ippolito, 28 Conn. App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).

The judgment is reversed as to financial orders only and the case is remanded for a new trial.


text:
    BARBARA MARTIN ET AL. v. TOWN OF PLAINVILLE ET AL.
    (13797)
    Dupont, C. X, and Lavery and Spear, Js.
    Argued October 26, 1995
    decision released January 23, 1996

      Steven Errante, with whom, on the brief, was David J. Vegliante, for the appellant (named plaintiff).

      David J. Mathis, with whom, on the brief, was Joseph M. Musco, for the appellee (named defendant).
   PER CURIAM.

The named plaintiff, Barbara Martin, appeals from the judgment of the trial court rendered in this personal injury action after the court granted the defendant town of Plainville’s motion to strike counts one and two of the complaint alleging injury to the plaintiff and loss of consortium on behalf of the plaintiffs husband, respectively. The principal issue raised in this appeal is whether the trial court correctly dismissed the plaintiffs claim for damages for personal injuries resulting from an alleged defect in a sidewalk, located in the defendant town, on the ground that the description of the injuries contained in the notice filed pursuant to General Statutes § 13a-149 was insufficient to satisfy the “general description” notice requirements of that statute.

The plaintiff, through her attorney, filed notice of a fall with the office of the town clerk in the town of Plainville via certified mail. In her letter of notice, the plaintiff stated that she had retained legal representation in connection with “injuries she sustained in a fall.” The letter of notice also stated that she “was injured after she tripped over a defect in the sidewalk.” No other information was provided as to the nature of the injuries sustained by the plaintiff or as to the nature of the defect in the sidewalk.

The town moved to strike the two counts of the plaintiffs complaint that pertained to it on the ground that the notice was defective in that (1) it failed to provide a “general description” of the plaintiffs injury, as required by § 13a-149, and (2) it failed to describe the nature of the defect alleged to have caused the plaintiffs fall.

In granting the town’s motion to strike, the trial court found that the “notice fails entirely to provide a ‘general description’ of the injuries alleged to have been suffered.” In light of that ruling, the trial court did not reach the issue of whether the failure to describe the alleged defect with greater particularity provided an alternative basis for granting the motion. Accordingly, the town has presented an alternate ground on which it asserts that the trial court’s ruling may be affirmed, namely, whether an assertion of a “defective sidewalk” contained in a notice filed pursuant to § 13a-149 is sufficient to satisfy the general description requirements of the statute.

In its memorandum of decision, the trial court viewed its conclusion “as harsh but compelled by the cases and the statute given the facts presented in this case.” Specifically, the trial court concluded that the decision rendered in Marino v. East Haven, 120 Conn. 577, 182 A. 225 (1935), was directly on point and dispositive. In Marino, notice indicating that the plaintiff “fell and was injured” was held to be insufficient as a matter of law because of its failure to give a general description of the plaintiffs injuries. Id., 580. In that case, the plaintiff subsequently filed an amendment to his complaint alleging that he did not intend to mislead the defendant and that the defendant was not, in fact, misled. Upon sustaining the trial court’s ruling on the defendant’s second demurrer, the Supreme Court held that “this defect could not be remedied or its consequences avoided by proof of the allegations of the amended complaint setting up absence of intention to mislead or of actual misleading effect. Although these allegations, if made material by opportunity for the operation of the facts alleged, as in case of inaccuracy as distinguished from total lack, would present questions of fact, no such opportunity is open here, the instance being one of entire absence of an essential element of the notice, fatal to its sufficiency as a matter of law.” Id., 580-81.

We agree with the trial court’s assessment that Marino v. East Haven, supra, 120 Conn. 577, controls the outcome of the present case. We also conclude that the principles of stare decisis and the fact that we are an intermediate court prevent us from reexamining or reevaluating Supreme Court precedent. See Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 553, 596 A.2d 463 (1991), rev’d on other grounds, 222 Conn. 541, 610 A.2d 1260 (1992) (whether Supreme Court holding should be reevaluated and possibly discarded not for this court to decide); Board of Education v. Bridgeport Education Assn., 9 Conn. App. 199, 203-204, 518 A.2d 394, cert. denied, 202 Conn. 802, 519 A.2d 1206 (1987); see also O’Connor v. O’Connor, 4 Conn. App. 19, 20, 492 A.2d 207 (1985), rev’d on other grounds, 201 Conn. 632, 519 A.2d 13 (1986) (whether traditional rule of lex loci delicti should be reevaluated and possibly discarded in appropriate circumstances not for this court to decide).

The judgment is affirmed.

       The named plaintiff is the sole appellant in this appeal. We refer to her in this opinion as the plaintiff.

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       The plaintiffs original complaint was filed against the town of Plainville and the abutting landowners, Robert Bostrom and Bonnie Bostrom. Pursuant to a request to revise, the plaintiff filed a revised complaint that contained four counts. The first two counts were against the town of Plainville, and the latter two counts were against the abutting landowners. The trial court rendered summary judgment on behalf of the abutting landowners leaving the town of Plainville as the sole defendant in this action.