text:
    JOSEPH DOEHRER v. COMMISSIONER OF CORRECTION
    (AC 20865)
    Lavery, C. J., and Foti and Schaller, Js.
    Argued January 15
    officially released March 26, 2002

      David R. Kritzman, for the appellant (petitioner).

      Angela R. Macchiarulo, assistant state’s attorney, with whom, on the brief, was James E. Thomas, state’s attorney, for the appellee (respondent).
   Opinion

FOTI, J.

The petitioner, Joseph Doehrer, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court improperly (1) concluded that he had failed to establish that he was denied effective assistance of counsel and (2) failed to credit the testimony of his expert witness and improperly assessed the credibility of witnesses. We affirm the judgment of the habeas court.

In November, 1983, the petitioner was convicted of murder, assault in the first degree and assault in the second degree with a firearm. He was sentenced to a total effective sentence of eighty-five years imprisonment. Our Supreme Court affirmed the judgment of conviction in State v. Doehrer, 200 Conn. 642, 513 A.2d 58 (1986).

The petitioner thereafter filed a petition for a writ of habeas corpus, and the court, conducted proceedings related thereto. The court denied the petition, concluding that the petitioner had failed to establish that his trial counsel’s performance was deficient, and granted the petitioner’s petition for certification to appeal.

The facts underlying the petitioner’s conviction are set forth in State v. Doehrer, supra, 200 Conn. 643-45, and are as follows: “There was no dispute at trial that Barry Antoni was killed by the [petitioner] on February 24, 1983. The event which precipitated the death of Barry Antoni was an incident that occurred between Patricia Antoni, the decedent’s sister, and the defendant at the apartment of a mutual acquaintance, Patrick Lyons. The evidence adduced at trial established that Patricia had gone to Lyons’ apartment about one and one-half weeks prior to the shooting to purchase cocaine. While at the apartment, she attempted to steal two grams of cocaine from Lyons and to leave the apartment without paying him for the cocaine she had consumed while there. At that point Lyons threatened her and telephoned the defendant and another man, Eugene Jarvis. When they arrived, the defendant pointed a gun at Patricia and the men inquired as to the whereabouts of the missing cocaine. Although Patricia was then too frightened to admit the attempted theft, the cocaine was eventually found where she had hidden it earlier. The defendant warned Patricia that if she reported the incident to the police, they would kill her and her family.

“Patricia testified that the defendant telephoned her several days after the apartment incident to ask whether she had paid Lyons for the cocaine she had used. The defendant suggested a meeting, which subsequently took place, to discuss the use of Patricia’s Econoline van to transport stolen goods to New York. The next time Patricia saw the defendant was the night before her brother’s death. On that evening, she accompanied the defendant and Jarvis to the apartment of the defendant’s brother, where a small group had gathered for music and also to use alcohol and drugs. After the defendant had taken Patricia home, a one hundred dollar bill was believed missing from the apartment. There was some evidence that the individuals at the party wrongly suspected Patricia of the theft. Although the bill was later found, the defendant was not aware of this fact when he went to the Antoni residence the following evening.

“On February 24,1983, at about 6 p.m., Patricia, while home at the Antoni residence in Orange, Connecticut, received a telephone call from the defendant. In response to his statement that he might stop over, Patricia told the defendant not to come because her parents had visitors, but to call back in an hour. About an hour later, Barbara Antoni, the decedent’s mother, heard a knock at the front door. As she was opening the door, the defendant and his companion Jarvis pushed their way into the house. The defendant grabbed Barbara Antoni and held a gun to her head. When she screamed, her husband, Cleto Antoni, and her son Barry emerged from rooms in the upper level of the house and ran downstairs. The defendant shot Barry, mortally wounding him, and then proceeded to shoot Cleto, hitting him in the lower abdomen. During the commotion, Jarvis struck Barbara Antoni, causing her to fall backwards to the floor. By this time, Patricia had ascended the stairs from the lower level of the house and entered the hallway. She screamed at the defendant, ‘Why are you doing this? Why are you here? What’s going on?’ The defendant replied that it was because she had stolen his money. He then pointed a gun at her and fired, hitting her in the arm. At this point, the defendant and Jarvis fled the scene.”

Before addressing each of the petitioner’s claims of ineffective assistance of counsel, we set forth our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 316, 759 A.2d 118 (2000).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel .... In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . .

“The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . . Minnifield v. Commissioner of Correction, [62 Conn. App. 68, 71-72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001)].

“Even if a petitioner shows that counsel's performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel’s unprofessionai errors, the result of the proceeding would have been different. . . . Therefore, [a] habeas court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if the claim may be disposed of on the ground of an insufficient showing of prejudice.” (Citations omitted; internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 299-301, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).

Mindful of those standards, we now examine each of the petitioner’s claims. Additional facts will be set forth as necessary to resolve the claims.

I

The petitioner first claims that his criminal trial attorney, Howard I. Gemeiner, was ineffective in representing him at his criminal trial in that he failed (1) to make an effective effort to retain an expert witness to support the theory of defense that the petitioner was legally insane or suffering from an extreme emotional disturbance at the time of the crimes, (2) to provide C. Scott Grove, a psychiatrist who had examined the petitioner prior to trial for the purpose of developing possible defenses based on the petitioner’s state of mind, with sufficient background information and documentation of the petitioner’s mental history and mental state at the time of the offenses, (3) to communicate with Grove and ascertain his professional opinion regarding whether the petitioner was suffering from a mental disease or defect or extreme emotional disturbance, (4) to introduce into evidence at trial Grove’s testimony or the testimony of another competent mental health professional in support of the petitioner’s claim that he was suffering from a mental disease or defect or extreme emotional disturbance at the time of the offenses, (5) effectively to investigate the availability of other witnesses who were with the petitioner during the period leading up to and at the time of the commission of the offenses and who could support the petitioner’s claim that he was suffering from a mental disease or defect or extreme emotional disturbance, (6) effectively to introduce into evidence at trial the testimony of other witnesses who were with the petitioner during the period leading up to and at the time of the commission of the offenses to support the petitioner’s claim that he was suffering from a mental disease or defect or extreme emotional disturbance and (7) effectively to argue to the jury in his summation that the petitioner was suffering from a mental disease or defect or extreme emotional disturbance at the time of the offenses.

At the hearing before the habeas court, the petitioner elicited testimony from Gemeiner, Grove and William Paetzold, an attorney who testified as an expert in criminal defense representation.

The court described the evidence presented during the habeas proceeding as follows: “Gemeiner testified that when he represented the petitioner in 1983 he had fourteen (14) years of practice, mostly at the felony criminal level with about ten (10) trials through verdict, but the petitioner’s case was the first murder case tried to verdict. He had had two (2) other murder cases which, by preparation of the extreme emotional disturbance defenses, had been plea bargained for manslaughter. The state had a strong case because the petitioner had intruded with another into the victim’s home where he shot three (3) family members, killing one of them. His dispute was with Patty Antoni, whom he believed stole his brother’s $100 while visiting with the petitioner in his brother’s apartment. Patty’s brother was killed, her father was shot in the abdomen, and Patty was shot in the arm and breast. Because the state appeared not to be interested in plea bargaining, he explored state of mind defenses by requesting an examination by Dr. C. Scott Grove, a psychiatrist. The petitioner was articulate and bright as well as charming, although with little formal education, and therefore he was optimistic that the defense of extreme emotional disturbance might be available to reduce the murder charge to manslaughter. However, Dr. Grove called him to tell him that the petitioner was not suffering from extreme emotional disturbance, but was ‘evil to the core’ or ‘evil incarnate,’ and that he was a cold-blooded killer and that ‘you don’t want my report and you don’t want me to testify.’ He decided that the case was going nowhere, but he had to go forward with the extreme emotional disturbance defense with the petitioner testifying about his criminal background from a dysfunctional family of an alcoholic father and a mother with emotional problems for which she was institutionalized. The petitioner had recently lost his girlfriend and a buddy by suicide, and was beset by substance abuse. [Gemeiner] hoped the petitioner could come across to the jury with enough sympathy to gain the lesser charge of manslaughter. Obviously, it failed. . . . He felt he had no choice, since [the trial judge] was known as a conservative judge who imposed the maximum penalty.

“After the verdict, Gemeiner contacted Dr. Grove to obtain a written report to see if there was something he could use for the sentencing. He was shocked when he received the report dated December 9, 1983 .... Dr. Grove’s oral telephone report had been consistent with the facts Gemeiner had in evaluating the petitioner. The petitioner had told him that while shooting in the Antoni home, the gun jammed and had it not, he would have shot them all. The petitioner also responded to Gemeiner’s question [as to whether] he had killed someone before, [stating,] ‘don’t ask me that question.’ Now, Dr. Grove’s report contains no language of an opinion that he is a ‘cold-blooded killer,’ but ‘[t]he issue of [the petitioner] having been suffering from an ‘extreme emotional disturbance’ at that time presents problems. Although the clinical evidence I obtained was not compellingly convincing, it was nevertheless too strong to be ruled out. Unfortunately, I do not believe that further examination of this man would reveal enough clinical evidence to prove the point one way or the other; this evidence is inaccessible at this time.’ Gemeiner said he felt bagged. Had he been told this before the trial was over, he would have sought a second opinion.

“Paetzold testified that where his client has been referred to a psychiatrist who cannot give a beneficial opinion, he will seek a second opinion. He felt that Dr. Grove’s examination came too late to adjust to find another professional. Whereas here the evidence was overwhelming for the state’s case and no favorable state of mind expert, he would consider his client as a witness with other state of mind evidence.

“Dr. Grove testified that he does not know when he was first contacted by Gemeiner, but he usually sees the patient within three to four weeks. His original practice consisted of such evaluations being requested by the defense amounting to 75 percent of the total to 25 percent by the state. It gradually increased in requests by the state until this year the only requests for evaluations were by the state.

“The only dates he is positive of is the interview date of October 14, 1983, when he spent two and one-half hours in his interview of [the petitioner] and December 9, 1983, the date of his report. Considering his normal practice, he would have reviewed the material submitted to him on the day before the interview and called two days after the interview with an oral report, and he would have prepared his report the day prior to its date. He cannot account for the time delay of the report after the interview. He identified . . . his report and acknowledged that he was unable to determine one way or the other whether [the petitioner] suffered an extreme emotional disturbance on February 24, 1983. He claimed that he did not use such terms as ‘pure evil,’ ‘evil incarnate’ or ‘cold-blooded killer,’ which are vitriolic terms, not professional teims. He would have told Gemeiner exactly what was in the report.”

As part of its fact-finding function, the court found that “there is nothing discrediting Gemeiner’s testimony.” In contrast, it further found that “Grove leaves too many holes to make his testimony credible.” Further, the record reflects that Paetzold, who testified in this case for the first time as an expert witness, based his opinion testimony solely on information given to him by the petitioner. Paetzold could not explain why he believed that Gemeiner should not have relied on Groves’ medical opinion.

It is not disputed that Gemeiner was faced with overwhelming evidence against the petitioner at trial and that the state was not willing to offer the petitioner a lesser sentence in exchange for a guilty plea. Under those circumstances, Gemeiner’s only possible defense would be based on insanity or extreme emotional disturbance. Grove did not render a diagnosis in support of either defense. Gemeiner was justified in relying on Grove’s conclusions and did not see a benefit in retaining a second psychiatrist. Because there was nothing unreasonable about Gemeiner’s reliance on the unfavorable evaluation results provided by Grove, who did not suggest that Gemeiner seek a second opinion, we are unable to conclude that Gemeiner’s conduct in that regard was ineffective.

On the basis of the foregoing facts and judged under the standard set forth in Strickland, we are unable to conclude that Gemeiner’s representation was deficient in any of the seven aspects that the petitioner alleged in his petition.

II

The petitioner also claims that the court improperly failed “to credit the uncontradicted testimony of [his] expert witness” and that its “assessment of credibility of witnesses was clearly erroneous.” Those claims are without merit.

We reiterate the standard of review that applies to that aspect of the appeal. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 68 Conn. App. 190, 192, 791 A.2d 588 (2002). This court does not retry the case or evaluate the credibility of witnesses. “Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Logan v. Commissioner of Correction, 68 Conn. App. 373, 376, 791 A.2d 638 (2002).

The petitioner acknowledges that the habeas court was not required to accept as true uncontradicted expert testimony; State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993); but argues that this is one of those rare cases in which the court, despite its superior vantage point, has erred in its assessment of the testimony. He argues that because Paetzold testified that Grove had stated that an extreme emotional disturbance defense could not be ruled out, Gemeiner should have obtained a second opinion. He further claims that the court arbitrarily rejected Paetzold’s testimony. We disagree.

The petitioner’s argument must fail because it is dependent on the credibility of Grove’s testimony. Gemeiner himself testified that if Grove had told him during his telephone conversation that an extreme emotional disturbance could not be ruled out, he would have been obligated to obtain a second opinion. As we stated in part I, the evaluation of Grove’s credibility properly was for the trier of fact, the habeas court, to determine.

We likewise find no merit in the petitioner’s claim that the habeas “court’s assessment of credibility of witnesses was clearly erroneous.” It is for the court as the finder of fact to determine the credibility of and the effect to be given to the testimony. Talton v. Warden, 33 Conn. App. 171, 179, 634 A.2d 912 (1993), aff'd, 231 Conn. 274, 648 A.2d 876 (1994). It was the court’s function to assess the testimony of all the witnesses who testified at the habeas proceeding. We decline the petitioner’s invitation to disturb the court’s findings in that regard. We conclude that the court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       Having so concluded, the court, which conducted the trial in a bifurcated manner at the petitioner’s request, did not reach the issue of whether the conduct of the petitioner’s counsel caused prejudice to the petitioner.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    FRANK USOWSKI ET AL. v. BARRY J. JACOBSON ET AL.
    (AC 21398)
    Mihalakos, Dranginis and Hennessy, Js.

      Argued January 15
    officially released March 26, 2002

      Brenden P. Leydon, for the appellant (named plaintiff).

      David P. Friedman, for the appellees (defendants).
   Opinion

DRANGINIS, J.

The plaintiff Frank Usowski appeals from the trial court’s judgment of dismissal rendered in favor of the defendants. On appeal, the plaintiff claims that the court improperly (1) found that he falsely answered the defendants’ interrogatories with the intent to mislead and (2) abused its discretion in assessing a $72,216 sanction against him for allegedly answering interrogatories in bad faith. We reverse the trial court’s order that the plaintiff pay a $72,216 sanction, but affirm the judgment of dismissal.

The following facts and procedural history are necessary for our resolution of the plaintiffs appeal. This dispute arises from an alleged oral partnership agreement between the parties. The plaintiff brought a twelve count complaint against the defendants, seeking, inter alia, an accounting and dissolution of the partnership and alleging, inter alia, breach of contract, breach of fiduciaiy duty, fraudulent inducement and unfair trade practices. In the absence of a written partnership agreement, the plaintiff sought to prove that the defendant Barry J. Jacobson had held the plaintiff out to third parties as a partner in Pet Pantry Warehouse (Pet Pantry), a pet supply business. The defendants filed an answer, special defenses and counterclaims, alleging the plaintiffs failure to repay a loan, destruction of property and theft.

During discovery, the defendants made several requests for the production of documents and directed interrogatories to the plaintiff, seeking, in essence, the names of those individuals with information about the alleged partnership agreement. In response, the plaintiff produced some documents and answered the interrogatories with a list of fifteen, and then 122 names of individuals, including vendors, employees and customers of Pet Pantry. The court ordered the defendants to select four of the persons named and to depose them. If none of those deposed had knowledge of the alleged partnership, the plaintiff could be required to pay in advance to the court the cost of taking the remaining depositions. The plaintiff later amended his responses to provide the names of thirty-nine individuals. In accordance with the court-ordered procedure, four depositions were taken by the defendants and at their expense. None revealed evidence of the alleged partnership. The court ordered the plaintiff to pay a sanction for his failure to comply with discovery: $72,216, the estimated cost of all 118 of the remaining depositions. The court later modified its ruling and ordered payment for thirty-eight depositions (less one taken among the original four). Payment for any additional depositions, if taken, was ordered to be paid by the plaintiff in accordance with their actual cost. The plaintiff refused to pay the sanction and, on the defendants’ motion, the court dismissed the case because of the plaintiffs pattern of discovery abuse. This appeal followed. Additional facts will be provided as necessary to resolve the issues presented.

We must first set forth the applicable standard of review. “In order for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court’s intended meaning. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.” Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001).

We conclude that the first requirement of Hamilton Standard is not implicated. The record reveals that the order was reasonably clear. We must, therefore, consider whether the plaintiff in fact violated the order and whether the court abused its discretion in ordering a sanction that was not proportional to the violation and greater than that requested by the defendants. We address each issue in turn.

The plaintiff first argues that the court improperly found that there was a violation and that it improperly found that the plaintiff falsely had answered interrogatories with the intent to mislead. We are not persuaded.

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Premier Capital, Inc. v. Grossman, 68 Conn. App. 51, 59, 789 A.2d 565 (2002).

The record shows that in November, 1999, the defendants filed a motion alleging discovery abuses by the plaintiff, specifically, that the plaintiff was engaged in an effort to ambuscade the defendants with the cost and inconvenience of taking depositions of all 122 people. The court agreed and ordered the defendants to identify four individuals on the list, with whom the defendants had had no communication concerning the action and to depose them at the defendants’ expense. The court further ruled that should the four deponents fail to reveal information indicating that the plaintiff had a position of ownership, the court may order the plaintiff to pay the cost of deposing the remaining 118 individuals named. The plaintiff made no objection at that time, and in December, 1999, after the defendants identified the four deponents in a notice of deposition, the plaintiff reduced the number of names in his response to thirty-nine.

After the four depositions were taken, on March 21, 2000, the defendants filed a motion for sanctions against the plaintiff. The defendants argued that the four depositions did not shed light on the plaintiffs claims and, therefore, were evidence of the plaintiffs discovery abuse. The defendants also noted the court’s prior ruling that the plaintiff had failed to produce documents. The defendants requested a remedy, in accordance with the November, 1999 ruling, that the court order the plaintiffs to pay the costs of deposing the remaining 118 individuals. The court agreed and ordered the $72,216 sanction.

The plaintiff argues that the court improperly assessed the testimony in the four depositions that were taken. Specifically, he argues that the court improperly found that the depositions did not offer any evidence of partnership because some deponents testified that they did not remember ever being told that the plaintiff was a partner in or owner of Pet Pantry. After a thorough review of the transcripts, we conclude that the court’s finding was not clearly erroneous. The record supports the court’s finding that none of the four deponents provided any indication that the plaintiff was an owner of or partner in Pet Pantry; rather, their understanding was that the plaintiff was an employee. It is evident that each deponent had no recollection that the plaintiff ever had been referred to as an owner. Three of the four deponents viewed the plaintiff as a managerial employee. Although one deponent, Robert Ginsberg, testified that the plaintiff Douglas C. Staley had told him that he had an interest in Pet Pantry, Ginsberg also testified that the plaintiff never had made a similar claim. Moreover, he also testified that his “impression” that Staley and the plaintiff had ownership interests came principally from Staley’s statement and the plaintiffs apparent control over Pet Pantry employees and sales. We conclude that this testimony is consistent with the court’s view that the deponents viewed the plaintiff as an employee. We therefore conclude that the court properly found no evidence of a partnership relationship in the deposition testimony and reasonably concluded that the plaintiff had named 122 individuals with the intent to unnecessarily cause the defendants to expend inordinate amounts of time and money, thereby abusing the discovery process.

The plaintiff next argues that the court abused its discretion because the court’s monetary sanction was not proportional to his discovery violation. We agree.

The plaintiff, by leave of the court, modified his interrogatory responses to include only thirty-eight names. The court, therefore, should not have ordered payment for 118 depositions. The order was excessive. It also gave the defendants the option to depose any or all of the individuals at the plaintiffs cost, thus, inviting more abuse and delay. “[Discretion imports something more than leeway in decision-making. ... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . In addition, the court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 16. We therefore conclude that the sanction ordering the plaintiff to pay for the depositions was an abuse of discretion.

The plaintiff argues that the crux of his claim is that the court abused its discretion in ordering the aforementioned sanction. The plaintiff, however, has not appealed from a finding of contempt for failure to comply with a discovery order. Rather, the plaintiff appeals from a judgment of dismissal rendered against him for alleged discovery abuse. Therefore, we must also consider whether the court properly dismissed the case.

In granting the defendants’ motion to dismiss, the court took into consideration the plaintiffs failure to comply with the defendants’ request for documents; see footnote 8; his evasive answers to interrogatories and failure to make the court-ordered payments to the clerk of the court. The plaintiff, however, properly notes that he could not appeal from the discovery order without refusing to pay. See Barbato v. J. & M. Corp., 194 Conn. 245, 250-51, 478 A.2d 1020 (1984). Notwithstanding the court’s citing the plaintiffs failure to pay, we are not persuaded that the court’s dismissal was an abuse of discretion.

The record supports the court’s conclusion that the plaintiff engaged in a pattern of discovery abuse. First, the plaintiff failed to comply with the court’s orders to compel the production of requested documents by providing only certain documents. The plaintiff next provided a list of fifteen names, and then a list of 122 names, in his interrogatory responses. The court noted that the names, which appeared in paragraph form after each specific interrogatory, were merely copied from one paragraph to the next by computer. The court marked off the court calendar the defendants’ motion to compel responses, but ordered the defendants to select four individuals to depose. The court stated that if none of the witnesses had knowledge of the alleged partnership, the plaintiff would be required to pay in advance the cost of taking the remaining depositions. When the plaintiff was faced with the prospect of paying for all of the depositions, he amended his disclosure to provide thirty-nine names. As previously stated, none of the four individuals deposed offered evidence to support the plaintiffs assertion that they had information regarding the alleged partnership. In light of the plaintiffs continued resistance to disclosure and attempts to burden the defendants with unnecessary discovery, we conclude that the court properly granted the defendants’ motion to dismiss.

The judgment of dismissal is affirmed. The order that the plaintiff pay $72,216 to the clerk of the Superior Court is vacated and the case is remanded for reconsideration, consistent with this opinion, and articulation of the basis of the sanction to be imposed, if any, on the plaintiff for his discovery violation.

In this opinion the other judges concurred.

       Douglas C. Staley also was a plaintiff at trial. Because only Usowski has appealed, we refer to him in this opinion as the plaintiff unless otherwise indicated.

       The defendants are Barry J. Jacobson, Adam Jacobson, Pet Pantry Super Discount Stores, LLC, and Pet Pantry Warehouse.

       The plaintiff Douglas C. Staley also had alleged that he was a partner in the defendants’ business.

       The counterclaims subsequently were withdrawn.

       We note that the record suggests that the number of names may have been as high as 140.

       We note that before oral argument was heard, both parties gave this court notice of the Supreme Court’s decision in Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 776 A.2d 1115 (2001). We agree that the standard articulated in that case is applicable here.

       The defendants also pointed out that while the plaintiff Douglas C. Staley had made representations in this action that he was part owner of Pet Pantry, in a pending dissolution of marriage action, he failed to list Pet Pantry as an asset and indicated his salary as an employee at Pet Pantry.

       On July 17, 1998, the defendants requested the production of several documents, pursuant to Practice Book § 13-9, indicating the existence of a partnership between the parties. Among the specific requests were the plaintiffs tax returns, W-2 forms, capital contributions, and profits and losses of the alleged partnership and communications between the parties. The defendants filed a “Fifth Request for Production and Documents” on November 4, 1998, seeking documents, and a motion to compel the plaintiff to respond to the defendants’ request for documents. On April 12, 1999, the court ordered compliance; however, the plaintiffs compliance was inadequate. The plaintiff produced only a computer printout of his 1997 tax return. As a result, the court ordered that “documents requested but not produced are taken as establishing that both plaintiffs are employees of Pet Pantry and not owners or partners.”

       The court ordered the plaintiff to pay the costs for the remaining 118 depositions, an estimated total of $72,216. Upon reargument, the court modified its order such that the plaintiff was required within two weeks to pay to the clerk of the Superior Court $23,256, the cost of thirty-eight depositions (thirty-nine less one deposition already taken among the original four). A second installment was to be paid “for any of the remaining 118 disclosed witnesses’ depositions that the defendants wish to take in an amount to be determined by the court upon a proper written application by the defendants. The amount per deposition is to be determined by this court after submission of information of the actual cost per deposition to date.”

       The plaintiff also argues that the sanction was not requested by the defendants and was, therefore, an abuse of discretion. We note that the record does not support that contention. That claim, therefore, does not form the basis of our conclusion.

       The defendants filed their motion to dismiss in response to the plaintiffs failure to make court-ordered payments to the clerk of the court.

       See footnote 8.

       With respect to the interrogatories, one of the plaintiffs responses, dated April 6, 1999, stated, “[M]any past and present employees, vendors and customers of Pet Pantry, including but not limited to . . . Usowski family members and Staley family members [in a list of approximately fifteen specific names].” On April 9, 1999, the defendants filed a motion to compel the plaintiff to provide responsive interrogatory answers. The defendants, through their counsel, also wrote two letters to the plaintiff, requesting compliance and pointing out inadequacies in the plaintiffs production. The defendants filed a second motion to compel, dated September 8, 1999, seeking full compliance with the court’s April 12, 1999 order.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. MICHAEL L. DAVIS
    (AC 20124)
    Dranginis, Flynn and McDonald, Js.

      Argued January 23
    officially released March 26, 2002

      Michael L. Moscowitz, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva Lenczewski, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Michael L. Davis, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to possess a narcotic substance with the intent to sell in violation of General Statutes §§ 53a-48 and 21a-277 (a). The defendant was found not guilty of transportation of a narcotic substance with the intent to sell in violation of General Statutes § 21a-277 (a), possession of a narcotic substance with the intent to sell in violation of § 21a-277 (a), transportation of a narcotic substance with the intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b) and possession of a narcotic substance with the intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b).

On appeal, the defendant raises two issues. First, the defendant claims that there was insufficient evidence before the jury to permit it to find him guilty of conspiracy to possess a narcotic substance with the intent to sell in violation of §§ 53a-48 and 21a-277 (a). Second, the defendant claims that it was illogical for the jury to convict him of the charge when the jury acquitted him of all the other charges. Because we conclude that there was sufficient evidence for the jury to find that the state proved each of the elements of the conspiracy count while finding that the state failed to prove one or more necessary elements of the remaining charges, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Between September and November, 1997, the defendant was involved in a drug trafficking operation with Kevin Lucas, Yolanda Crespo and Michelle Yorker in the Waterbury area. On November 24, 1997, Waterbury police observed the defendant, Lucas and Crespo enter the defendant’s car in an area known for its drug activity. Pursuant to a warrant, the police stopped the vehicle and arrested the occupants. At that time, the police seized seven glassine bags of heroin with the stamp “death row” on them. At approximately the same time, the police executed a search warrant at 415 Willow Street, which was suspected to be the home base of the drug operation. As a result of that search, the police seized eighty separately packaged baggies of cocaine and a large rock of cocaine. The police also seized various drug paraphernalia, including a digital scale and sandwich bags with the comers cut off, which are commonly used in the packaging and sale of dmgs.

At trial, both Yorker and Crespo testified for the state. Yorker testified that she entered into an agreement with Lucas whereby she allowed him to use her apartment in exchange for paying her rent. On two occasions, she saw the defendant in her apartment assisting Lucas in cutting and packaging dmgs. She also testified that the defendant drove Lucas in his car to a location to sell dmgs.

Crespo testified that she sold drags for Lucas and that the defendant often drove her and provided protection for her as she made the sales. On one occasion, she gave the defendant $500 from her drag sales to hold for Lucas. Crespo also testified that she saw the defendant assisting Lucas in the apartment by tying up the baggies that Lucas was filling with dmgs. She testified that the defendant would drive Lucas to the train station for the purpose of traveling to New York to purchase dmgs. When Lucas returned from New York, the defendant would pick him up.

The jury returned a verdict of guilty of conspiracy to possess a narcotic substance with the intent to sell in violation of §§ 53a-48 and 21a-277 (a). Thereafter, the defendant was sentenced to fourteen years in the custody of the commissioner of correction. This appeal followed.

I

First, the defendant claims that the state failed to present sufficient evidence to support his conviction of conspiracy to possess a narcotic substance with intent to sell. We do not agree.

“In reviewing claims of insufficiency of the evidence, an appellate court employs a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Corbin, 61 Conn. App. 496, 517-18, 765 A.2d 14, cert. granted on other grounds, 256 Conn. 910, 911, 772 A.2d 1124, 1125 (2001).

“To sustain a conviction under § 53a-48 (a), the state needs to prove beyond a reasonable doubt (1) that a defendant intended that conduct constituting a crime be performed, (2) that he agreed with one or more persons to engage in or cause the performance of such conduct and (3) that he or any one of those persons committed an overt act in pursuance of such conspiracy. General Statutes § 53a-48 (a).” State v. Vasques, 68 Conn. App. 194, 209, 792 A.2d 856 (2002). “While the state must prove an agreement, the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts.” (Citation omitted; internal quotation marks omitted.) State v. Conde, 67 Conn. App. 474, 491, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

“Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to agree or conspire and (b) the intent to commit the offense which is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of the offense.” (Emphasis in original; internal quotation marks omitted.) State v. Beccia, 199 Conn. 1, 3-4, 505 A.2d 683 (1986). Possession with intent to sell cocaine in violation of § 2 la-277 (a) requires a specific intent to sell, including not just delivery of narcotics which is paid for in cash by someone else, but also other forms of actual or attempted transfer from one person to another. See D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (2d Ed. 1997) § 15.3, p. 690.

After carefully reviewing the evidence adduced at trial, we conclude that there was ample evidence, both direct and circumstantial, to prove beyond a reasonable doubt that the defendant entered into a conspiracy to possess a narcotic substance with intent to sell. The defendant was actively involved in the scheme by acting as a driver, providing protection for Crespo while she sold drugs and helping in the packaging of the drugs. “An overt act is an essential ingredient of the crime of conspiracy; it may be committed by either coconspirator. . . . Furthermore, [t]he size of a defendant’s role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends. . . . Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation.” (Citation omitted; internal quotation marks omitted.) State v. Fuller, 58 Conn. App. 567, 580, 754 A.2d 207, cert. denied, 254 Conn. 918, 759 A.2d 1026 (2000).

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence presented to the jury was sufficient to have permitted it to find that the defendant knowingly entered into a conspiracy to possess a narcotic substance with the intent to sell. The eighty bags of contraband cocaine that were seized were packaged in a manner permitting the inference that they were intended for sale and not personal use. There was evidence that Lucas obtained supplies of the narcotics from New York and that the defendant drove Lucas to and from the train station when he left and returned with the contraband. Yorker’s apartment was regularly used for the packaging and distribution of the drugs and the defendant participated in the cutting and packaging. The defendant transported at least one of the street dealers to her assigned location and protected her while she sold the drugs. On one occasion, the defendant took cash proceeds from a street dealer and transmitted them to Lucas. All of this was evidence of an agreement between the defendant and Lucas and others to possess or exercise dominion or control over a narcotic substance with a knowledge of its presence and narcotic character and with the specific intent to sell it to others or to deliver it, and of the overt acts taken in furtherance of the illegal conspiracy.

II

The defendant next claims that the guilty verdict was illogical in light of the not guilty verdict on the remaining charges. This claim has no merit.

The defendant concedes that the verdict is not inconsistent but asserts that it is illogical because the jury’s conclusion was not reasonably and logically reached. The gravamen of the defendant’s claim is that it is illogical for the jury to have found him guilty of conspiracy to possess a narcotic substance with intent to sell while finding him not guilty of transportation of a narcotic substance with intent to sell, possession of a narcotic substance with intent to sell, transportation of a narcotic substance with the intent to sell within 1500 feet of a school and possession of a narcotic substance with intent to sell within 1500 feet of a school.

“While an inconsistent verdict is not objectionable in itself, its inconsistency may be considered insofar as it supports a claim that the jury’s conclusion was not reasonably and logically reached.” (Internal quotation marks omitted.) State v. Weiner, 61 Conn. App. 738, 746-47, 767 A.2d 1220, cert. denied, 256 Conn. 902, 772 A.2d 600 (2001). With this in mind, however, “a defendant can be not guilty of a substantive crime and guilty of conspiring to commit the substantive crime. Conspiracy has long been recognized as an offense separate and distinct from the commission of the substantive offense. . . . The commission of the substantive offense and a conspiracy to commit it are separate and distinct crimes.” (Citations omitted; internal quotation marks omitted.) State v. Bush, 33 Conn. App. 253, 263, 635 A.2d 820 (1993), cert. denied, 228 Conn. 923, 638 A.2d 37 (1994).

In this case, the jury reasonably could have found the defendant not guilty on counts two, three, four and five because the state failed to prove some necessary elements of each of these crimes, which were not necessary to be proved to convict the defendant of conspiracy to possess narcotics with intent to sell.

For example, with regard to count two, it is possible that the jury was left with a reasonable doubt as to whether the state had proved that the defendant had exercised such knowing dominion or control over the drugs to constitute possession. That is a necessary element of both simple possession or possession with intent to sell narcotics, but is not a necessary element of conspiracy to possess narcotics with intent to sell. See State v. Walton, 227 Conn. 32, 53, 630 A.2d 990 (1993). With respect to count three, the jury may have been left with reasonable doubt that the defendant had actually transported the drugs although he had agreed and conspired to do so. The jury could have found that other members of the conspiracy possessed or transported the drugs. With respect to counts four and five, the jury reasonably could have determined that the state failed to prove that the place of the proposed transactions that had been agreed upon, or the necessary transportation to that point, occurred within 1500 feet of a school, a necessary element of both of the those crimes but not of the crime charged in count one.

There was sufficient evidence to convict the defendant on count one, and it was not illogical for the jury to reach a not guilty verdict on the remaining charges. See State v. DeCaro, 252 Conn. 229, 242-45, 745 A.2d 800 (2000).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter . . . shall be imprisoned . . . and may be fined ... or be both fined and imprisoned . . . .”


author: LAVERY, C. J.

text:
    WALLINGFORD CENTER ASSOCIATES v. BOARD OF TAX REVIEW OF THE TOWN OF WALLINGFORD
    (AC 20377)
    Lavery, C. J., and Schaller and Flynn, Js.
    Argued October 29, 2001
    officially released March 26, 2002

      Jeffrey W. Keim, with whom, on the brief, was Bernard Green, for the appellant (Captiva Realty Company).

      Janis M. Small, town attorney, for the appellee (defendant).
   Opinion

LAVERY, C. J.

This appeal relates to an appeal taken to the trial court from a property revaluation. The issue is whether a person who takes title to a parcel of land while an appeal from the revaluation of the property is pending in the trial court may intervene into the appeal that was taken by the previous owner, in order to contest a new assessment that is based on the same valuation. A threshold issue is whether, pursuant to Jones v. Ricker, 172 Conn. 572, 375 A.2d 1034 (1977), this appeal has been rendered moot by the fact that the administrative appeal into which the new owner sought to intervene no longer is pending. We hold that the appeal is not moot and that the new owner should have been allowed to intervene into the previous owner’s appeal. Accordingly, we reverse the judgment of the trial court insofar as the court failed to extend it to the years that the new owner owned the property, and we direct the court to amend the judgment to apply to those years.

The present action began when the plaintiff, Wallingford Center Associates (Wallingford Center), appealed to the defendant board of tax review of the town of Wallingford (board), challenging the valuation of its property on the grand list of 1991. The board upheld the tax assessor’s valuation, and Wallingford Center appealed from the board’s decision to the Superior Court. Subsequently, Wallingford Center amended its appeal to include the assessments for the 1992,1993 and 1994 tax years. On December 2, 1994, while the matter was pending before the Superior Court, title to the subject property passed to Captiva Realty Company (Captiva). On June 13, 1997, Captiva filed a motion to be joined as a party plaintiff in Wallingford Center’s appeal so that it could amend the complaint filed by Wallingford Center to include challenges to the assessments for the years 1995 and thereafter. The court denied Captiva’s motion, apparently agreeing with the board’s argument that Captiva had to exhaust its administrative remedies by taking its own appeal to the board, and that Captiva could not bypass the administrative process by intervening in Wallingford Center’s appeal and challenging tax assessments on the property for the years that it, and not Wallingford Center, owned the property. On December 6,1999, the court sustained Wallingford Center’s appeal, concluding that the valuation of $2,104,700 placed by the tax assessor on the property was not congruent with the fair market value of the property, which the court found to be $1.5 million. The court therefore ordered corrections to be made to the valuations for the years 1991, 1992, 1993 and 1994.

After the court rendered judgment, Captiva filed this appeal, challenging the court’s denial of its motion to be joined as a party.

Before reaching the merits of the appeal, we must first address the threshold issue of whether this appeal is rendered moot by the fact that there no longer is a pending action into which Captiva can intervene. In Jones v. Ricker, supra, 172 Conn. 573, the plaintiffs sought a writ of mandamus to order a town planning and zoning commission to issue a certificate of approval for a subdivision plan. Several owners of nearby property filed a motion to intervene as party defendants, and their motion was denied. Id., 574. Subsequently, the trial court rendered judgment ordering that the certificate be issued and, after judgment was rendered, the would-be intervenors appealed from the denial of their motion to intervene. The Supreme Court dismissed that appeal as moot. Id., 577. The court held that the appeal was moot because the mandamus action was no longer pending, and the only relief sought by the plaintiff in the action had been granted and executed. Id., 576. The Supreme Court held that under those circumstances, no practical relief could be afforded the would-be intervenors who had opposed the issuance of the certificate. Id., 577.

We believe the present situation is distinguishable from that presented in Jones. It is well established that an appeal is considered moot if there is no possible relief that the appeals court can grant to the appealing party, even if the court were to be persuaded that the appellant’s arguments are correct. Hilton v. New Haven, 233 Conn. 701, 726, 661 A.2d 973 (1995). Here, we believe there is relief that can be granted to Captiva, if it should prevail on its argument, even though there no longer is a proceeding into which it could intervene. Captiva’s argument is that the $1.5 million valuation of the property established in Wallingford Center’s appeal became the valuation of the property until the next mandated decennial revaluation in the year 2000. For that reason, Captiva maintains that it is entitled to a tax refund from the town of Wallingford (town), which, during the years of Captiva’s ownership, assessed the property in question based on the $2,400,700 valuation that was held to be excessive in Wallingford Center’s appeal. Captiva argues that if it had been allowed to intervene, it could have asserted its right to a refund for overpayment of taxes for the years 1995 through 1999.

Assuming that Captiva’s argument is persuasive, as we find that it is, there is relief that can be granted to Captiva without the need for any further trial court proceedings. As we will discuss in more detail, Captiva should have been allowed to intervene so that the judgment would have applied not only to the years Wallingford Center owned the property, but to the years that it was owned by Captiva. Once Captiva had been made a party, it would have been entitled to the same relief that Wallingford Center obtained on appeal. The relief that Captiva should have received can be given to it simply by directing the trial court to open the judgment, grant Captiva’s motion to intervene and to amend the judgment to cover the years of Captiva’s ownership. Such an amendment would be a simple ministerial act. Because that relief is available to Captiva despite the fact that there no longer is a pending trial court proceeding, this appeal is not moot.

Turning to the merits of Captiva’s argument, Captiva contends that it should have been joined as a party plaintiff so that its claims that it was overassessed for the years 1995 and thereafter could be joined with Wallingford Center’s claims that it was overassessed for the years 1991 through 1994. The board argues that Captiva had no statutory right to intervene in Wallingford Center’s appeal and that Captiva’s sole remedy for its alleged overassessment was to bring its own appeal to the board, and, if unsuccessful there, to bring its own appeal to the trial court.

Captiva filed a motion for permission to be made a party plaintiff in Wallingford Center’s appeal; it did not seek intervention as a matter of right. “The denial of a motion ... for permissive intervention is reviewed with an abuse of discretion standard.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 142, 758 A.2d 916 (2000). We agree with Captiva that the court abused its discretion when it held that Captiva lacked standing to intervene because it had not exhausted its administrative remedies before coming to the trial court.

“It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review. ... In addition, the administrative agency may be able to resolve the issues, making judicial review unnecessary. . . .

“The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. . . . [W]e have recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate. In light of the policy behind the exhaustion doctrine, these exceptions are narrowly construed.” (Citations omitted; internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 11-13, 756 A.2d 262 (2000). For example, amere conclusory assertion that the administrative agency will not reconsider its decision does not mean that resort to the agency would be futile; Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993); nor does the fact that the fact finder previously indicated how it would decide the claim. Housing Authority v. Papandrea, 222 Conn. 414, 428-30, 610 A.2d 637 (1992). Futility is more than mere allegation that the administrative agency might not grant the relief requested. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 559-60, 529 A.2d 666 (1987).

Here, the allegation of futility is much more than conclusory, and we believe that had Captiva appealed to the board seeking a lower valuation, it would have been a futile act. At the time that the board claims that Captiva should have filed an appeal with the board, the board was engaged in vigorously defending, in Wallingford Center’s appeal, the very same valuation that Captiva would have been attacking. It simply is unrealistic for the town to maintain that Captiva could have obtained relief from the board under those circumstances. The board could not have given Captiva relief without backing away from the position it was taking in Wallingford Center’s appeal. Giving relief to Captiva would have been an act that was inconsistent with the board’s position in the trial court proceeding underlying this appeal, and we are unwilling to assume that the board would have acted in any way but in a consistent manner. For that reason, we hold that it would have been futile for Captiva to have pursued its remedy before the board, and we hold that exhaustion of that administrative remedy was not a necessary prerequisite to Captiva’s intervening into Wallingford Center’s appeal.

In light of the fact that it would have been futile for Captiva to have appealed the property’s valuation to the board, the trial court abused its discretion when it refused to permit Captiva to intervene in Wallingford Center’s appeal, which was the only proceeding in which it had a chance of obtaining relief. In addition to holding that the court should have granted Captiva’s motion for permissive intervention, we hold that a subsequent property owner such as Captiva is entitled to intervene in a pending valuation appeal as a matter of right.

In Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn. App. 140, we observed that Connecticut appellate cases often have relied on rule 24 of the Federal Rules of Civil Procedure in determining issues of intervention and, in those decisions, the courts have spoken approvingly of the rule. See, e.g., Milford v. Local 1566, 200 Conn. 91, 94, 510 A.2d 177 (1986); Horton v. Meskill, 187 Conn. 187, 192, 445 A.2d 579 (1982); State Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990). As we stated in Rosado: “Cases involving rule 24 (a) establish four requirements that an intervenor must show to obtain intervention as of right. The motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant’s interest must be impaired by disposition of the litigation without the movant’s involvement and the movant’s interest must not be represented adequately by any party to the litigation.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 160.

Taking those requirements in sequence, we find Captiva’s application to intervene to have been timely, even though it was made on June 13, 1997, two and one-half years after Captiva took title to the property. Captiva’s purpose in seeking to intervene was to add the assessments for the years it owned the property to the assessments already being contested by Wallingford Center. General Statutes § 12-117a sets no time limit for adding newly issued assessments to an existing appeal, and although Captiva’s application certainly was made long after the 1995 assessment was issued, “[a]s a general matter, the timeliness requirement is applied more leniently for intervention of right than for permissive intervention because of the greater likelihood that serious prejudice will result.” (Emphasis in original; internal quotation marks omitted.) Washington Trust Co. v. Smith, 241 Conn. 734, 744, 699 A.2d 73 (1997). We note that Captiva’s application to intervene was filed two and one-half years in advance of the date Wallingford Center’s appeal was concluded and also that no one was prejudiced by Captiva’s filing for intervention when it did. In light of those facts, and applying the more lenient standard for timeliness applicable to intervention as of right, we hold that Captiva’s application was timely.

The next two criteria, i.e., the requirements that the applicant have a direct and substantial interest in the subject matter of the litigation and that the movant’s interest must have been impaired by the disposition of the litigation without the movant’s involvement, can be considered together. The board argues that because Wallingford Center’s appeal concerned only assessments for the years that Captiva did not own the property, Captiva’s interest could not be affected by the court’s judgment. We do not find that argument persuasive.

When Captiva took title to the subject property, it gained a direct and substantial interest in the issue of whether the property had been properly revalued in 1991 because the property tax assessments for the next five years of Captiva’s ownership, until the reassessment in 2000, would be based on that valuation. That fact gave Captiva a direct and substantial interest in the subject matter of the litigation, which was whether the base valuation, which would be used in determining assessments issued beginning in 1992 and continuing until the next revaluation, was proper. Also, as can be seen by the town’s refusal to refund any of Captiva’s property tax payments even after Wallingford Center’s appeal established that the valuation on which they were based was too high, it is clear that Captiva’s interest definitely was impaired by the litigation’s having been concluded without Captiva’s having been involved. Finally, the fact that the town was unwilling to give Captiva the benefit of Wallingford Center’s judgment shows without question that Captiva’s interest was not represented adequately by any party to the litigation.

Because Captiva satisfied all four requirements, it should have been allowed to intervene in the litigation as a matter of right to add to the challenged assessments the assessments for the years 1995 through 1999.

Ordinarily, when we have found that a motion for intervention improperly was denied, we remand the matter to the trial court with direction to grant the application for intervention and to continue with the trial court appeal. Such a remand is not possible here, however, because the trial court appeal has ended. Nevertheless, there is relief that can be granted to Captiva under the circumstances.

We can conceive of no argument that the board could have made, and the board has offered none, to convince the trial court, once Captiva was made a party plaintiff, that although the property was overvalued when it was in Wallingford Center’s hands, it was not overvalued while it was owned by Captiva. As Judge Devlin aptly observed in Resnik v. New Haven, 12 Conn. Sup. 47 (1943): “It is not the named person against whom the assessment is made. A ‘person assessed’ is a person whose property is assessed. It is not the party who is assessed but the property. When [the new owner] became the owner of this property, it became, and the original owner ceased to be, a ‘person assessed’, that is, a person whose property is assessed.” (Emphasis in original.) Id., 49-50. Furthermore, once the valuation of the property is established, it cannot be changed (absent the occurrence of factors not present here) until the next statutorily mandated revaluation. See DeSena v. Waterbury, 249 Conn. 63, 74-75, 731 A.2d 733 (1999).

Accordingly, the same arguments that convinced the trial court that the value of the property was $1.5 million in Wallingford Center’s hands would, of necessity, have convinced the court that its value was $1.5 million during the years that Captiva owned it. Because of that, no further evidence would have to be taken, even if we could remand this case to the trial court for further proceedings, and no further argument would be necessary. We note that the issue of the property’s proper valuation has been decided and that decision has not been appealed. It would be appropriate, if there were still a viable proceeding into which Captiva could intervene, for the trial court’s judgment to apply to the years during which Captiva owned the property prior to the date of judgment. That result can be accomplished by our directing that the judgment be amended, despite the fact that the appeal has been concluded.

The judgment is reversed only insofar as the trial court failed to make Captiva Realty Company a party to the appeal and failed to extend the judgment’s applicability to the years 1995 through 1999, and the case is remanded with direction to grant the motion for intervention as a party plaintiff by Captiva Realty Company and to amend the judgment by setting $1.5 million as the value of the subject property to apply to the years 1995 through 1999.

In this opinion the other judges concurred.

       As we explain in the text of our opinion, the present case is saved from mootness by the fact that the relief that the new owner seeks can be given by this court without further trial court proceedings. That rare circumstance is the exception, rather than rale, and we observe that to avoid dismissal on the basis of mootness, would-be intervenors who have a colorable claim to intervention as a matter of right would be well advised to appeal immediately from the denial of their motion to intervene. See Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 497 A.2d 780 (1985).

       General Statutes § 12-117a provides in relevant part: “If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year . . . .”

       Within the time set for filing an appeal from the denial of its motion to intervene, Captiva filed a notice of intention to appeal, also known as a reservation of the right to appeal. The parties were asked to brief whether that filing saved the appeal from being dismissed as moot in light of the completion of the trial court proceedings. Although we hold that Captiva’s appeal is not moot, we have decided to answer that question for the guidance of future litigants. The purpose of filing a notice of intention to appeal is to preserve until the end of the action an aggrieved party’s right to appeal an order that is a final judgment in its own right. Since 1996, Practice Book § 61-5 has provided that the notice of intention to appeal is effective in only two situations. One situation is where the deferred appeal is to be taken from a judgment that disposes of all the causes of action brought by or against a party so that that person is not a party to any remaining complaint, counterclaim or cross complaint. Interpreting the rules liberally, as Practice Book § 60-2 requires us to do when strict adherence will work surprise or ipjustice, we believe that the denial of a motion to intervene, which results in the intervenor’s complaint’s being omitted from the case, can be viewed as satisfying that requirement. Therefore, if there were any question about the timeliness of Captiva’s appeal, the filing of the notice rendered the appeal timely. The filing could not, however, remedy the mootness problem that usually occurs when a would-be intervenor files an appeal after the case has gone to judgment. An appeal is moot when there is no relief that can be granted to the appellant, even if he should prevail on his arguments. Hilton v. New Haven, 233 Conn. 701, 726, 661 A.2d 973 (1995). Mostpostjudgment appeals filed by would-be intervenors will be moot because the relief sought, i.e., intervention into the underlying action, cannot be granted once the action has gone to judgment. As we stated in footnote 1, to avoid potential mootness problems, would-be intervenors who have a colorable claim to intervention as a matter of right should appeal immediately from the denial of their motion to intervene.

       In the future, when a person who takes title to property while a valuation appeal is pending is allowed to intervene as a party plaintiff to the appeal, that person will then be an “applicant” who is entitled to amend the appeal to contest subsequent years’ assessments as provided in General Statutes § 12-117a. Although we are cognizant that the word “applicant” as used in § 12-117a refers specifically to a person who has been aggrieved by a decision of the board of tax review or board of assessment appeals and who has then made application in the nature of an appeal therefrom to the Superior Court, we do not think that the legislature meant to preclude subsequent owners from intervening in a pending appeal to challenge assessments issued to the subsequent owner while the original owner’s appeal is pending.
      The legislative history indicates that when the provision allowing amendment of the appeal to contest subsequent assessments was being considered by the Senate, the sole comment on the proposed amendment was made by Senator Paul J. Falsey, who observed: “The bill would allow subsequent difficulties that arose alter the original appeal to be included in the pending action.” 11 S. Proc., Pt. 6, 1965 Sess., p. 2058, remarks of Senator Paul J. Falsey. Nothing in the legislative history of the amendment indicates that the “further difficulties with 1he property,” that the amendment was enacted to remedy were limited to just those assessments levied against the person who owned the property at the time of the revaluation and who filed the appeal.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. LARRY MCCOWN
    (AC 21578)
    Schaller, Dranginis and Daly, Js.
    Argued November 26, 2001
    officially released April 2, 2002

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Larry McCown, appeals from the judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-8 and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, and possession of a weapon in a motor vehicle in violation of General Statutes (Rev. to 1993) § 29-38. On appeal, the defendant claims that the trial court improperly precluded (1) a defense witness from testifying during a hearing on the defendant’s motion to suppress evidence, (2) defense counsel from arguing to the jury about the likely effects of the defendant’s age on his ability to realize the intent of others and (3) defense counsel from cross-examining a state’s witness about the circumstances of her testimony in other cases and on what had transpired during a court recess. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of November 20,1994, the defendant, along with Isaac Council and Council’s girlfriend, were driving on County Street in New Haven in a silver station wagon. Upon seeing a gathering of people in front of 69 County Street, Council, who was driving the vehicle, slowed and stated, “There go those guys.” Council then drove to the residence of Thomas Rogers’ girlfriend on Ashmun Street. Upon arriving at the residence, the defendant, Council and Council’s girlfriend exited the car and entered the apartment. The defendant, Council and Rogers went into the living room and talked for a period of five to ten minutes before leaving in the station wagon.

Council once again drove along County Street, with Rogers sitting in the front passenger seat and the defendant sitting in the rear passenger seat. All three individuals were wearing masks. The station wagon approached 69 County Street, and a series of shots were fired from the passenger side of the vehicle. After the initial round of firing, the defendant exited the vehicle, looked around the area and then returned to the vehicle. Council then moved the car forward several feet, and a second series of shots were fired from the passenger side of the vehicle. As a result of the shootings, one individual was killed and another was shot in the arm. The state forensic ballistic laboratory report revealed that two .45 caliber guns had been used in the shooting.

Fifteen to twenty minutes after initially leaving the apartment of Rogers’ girlfriend, the defendant, Council and Rogers returned, with Council and Rogers both in possession of a gun. They went into the living room, where they spoke loudly and laughed about “see[ing] people running” and “someone [getting] hit.” Council then instructed his girlfriend to go with Rogers’ girlfriend to get the vehicle cleaned at a car wash. While in the process of vacuuming the car, Rogers’ girlfriend discovered a shell casing on the passenger side of the car. After Rogers’ girlfriend showed the casing to Council’s girlfriend, the two disposed of it.

The defendant went to the New Haven police department on December 1, 1994, to talk to detectives about the shootings that occurred on November 20,1994. The defendant admitted to being present in the car during the shootings, but claimed that he did not fire a weapon and had not known what Council and Rogers intended to do when they returned to County Street. The defendant subsequently was arrested on March 8,1997. After a jury trial, the defendant was convicted on all four counts and sentenced to a total of sixty-five years imprisonment. This appeal followed.

I

The defendant first claims that the court improperly prevented a defense witness from testifying during the suppression hearing after she violated the court’s sequestration order. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. Prior to trial, the court issued a sequestration order, preventing any witnesses who would testify from being present during the testimony of the other witnesses. The defendant filed a motion to suppress the statement he gave to the New Haven police on December 1, 1994, claiming that he had not voluntarily waived his right to remain silent. During the suppression hearing, the state called Detective Ralph Dinello, who had taken the defendant’s statement. While Dinello testified, the defendant’s mother, Helen McCown, was present in the courtroom. When the defendant called his mother to the witness stand during the suppression hearing, the state objected, stating that she should be prevented from testifying because she violated the court’s sequestration order.

Initially, the defendant’s attorney claimed that he thought Helen McCown could be present during the testimony. After a brief recess, the defendant’s attorney then argued that he did not know that McCown was present during Dinello’s testimony and sought permission from the court to allow her to testify for the limited purpose of establishing the defendant’s age, education and reading ability. The court ruled that because McCown had violated the sequestration order, she would not be permitted to testify dining the suppression hearing. It is the defendant’s contention that the court’s decision precluding McCown from testifying was excessive and affected his right to present a defense.

“The right to have witnesses sequestered is an important right that facilitates the truth-seeking and fact-finding functions of a trial. . . . Sequestration serves a broad purpose. It is a procedural device that serves to prevent witnesses from tailoring their testimony to that of earlier witnesses; it aids in detecting testimony that is less than candid and assures that witnesses testify on the basis of their own knowledge. . . . In essence, it helps to ensure that the trial is fair.” (Citations omitted; internal quotation marks omitted.) State v. Nguyen, 253 Conn. 639, 649-50, 756 A.2d 833 (2000); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 122d, pp. 1202-1203.

We will not reverse the court’s remedy for a violation of a sequestration order absent a finding that the court abused its discretion. See State v. Mincewicz, 64 Conn. App. 687, 696, 781 A.2d 455, cert. denied, 258 Conn. 924, 783 A.2d 1028 (2001). “We acknowledge, however, that, under particular circumstances, the unjustified exclusion of a witness’ testimony can amount to a deprivation of the defendant’s right to present a defense. ... If an impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. . . . The standard for determining whether a nonconstitutional error is harmless is that [t]he defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Emphasis added; internal quotation marks omitted.) Id. “On appeal, every reasonable presumption in favor of the trial court’s discretionary ruling will be made.” (Internal quotation marks omitted.) State v. Nguyen, supra, 253 Conn. 654.

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts .... Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law. ... It is a right which derives not only from the general fairness requirements of the due process clause of the fourteenth amendment but also, and more directly, from the compulsory process clause of the sixth amendment.” (Citations omitted; internal quotation marks omitted.) State v. Nguyen, 52 Conn. App. 85, 102, 726 A.2d 119 (1999), aff'd, 253 Conn. 639, 756 A.2d 833 (2000).

It should be noted that the United States Supreme Court has stated that the exclusion of witness testimony when there is no fault by the defendant or his attorney is not the preferred remedy for a violation of a sequestration order. See Holder v. United States, 150 U.S. 91, 92, 14 S. Ct. 10, 37 L. Ed. 1010 (1893). It did state, however, that “the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.” (Emphasis added.) Id. That court, however, has not specified what would be the “particular circumstances” that would warrant the exclusion of a witness who inadvertently violates a sequestration order. Several federal circuits have cautioned against excluding a witness from testifying when a sequestration order is violated. “The exclusion of a witness is a strongly disfavored sanction because of the severe consequences it holds for the defendant.” United States v. Hobbs, 31 F.3d 918, 922 (9th Cir. 1994). “Because exclusion of a defense witness impinges upon the right to present a defense, we are quite hesitant to endorse the use of such an extreme remedy.” (Internal quotation marks omitted.) United States v. Rhynes, 218 F.3d 310, 321 (4th Cir. 2000).

Although we appreciate the ramifications to which the exclusion of witness testimony can lead, our courts have recognized that the remedy for violating a sequestration order is “guided by a primary concern for the fairness of the trial, not the culpability of the [offender].” (Internal quotation marks omitted.) State v. Sherman, 38 Conn. App. 371, 414, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). There is no question that the sequestration order was violated in this case. The defendant’s claim rests on the remedy the court imposed. In excluding McCown’s testimony, the court ensured the fairness of the trial. The defendant sought to have his mother testify that his intellectual capabilities prevented him from being able to waive his constitutional rights. By having the opportunity to listen to Dinello’s testimony, McCown had the ability to tailor her testimony to that of Dinello’s, thereby inhibiting the truth seeking and fact-finding functions that a sequestration order seeks to ensure. McCown, after listening to the testimony of Dinello, could have shaped her testimony to conform to Dinello’s observations of the defendant while he was questioning him and, thus, could have testified that the defendant usually portrayed those characteristics when he was confused or did not know what was happening around him. In State v. Robinson, 230 Conn. 591, 601, 646 A.2d 118 (1994), our Supreme Court found it probable that a correction officer who testified in violation of a sequestration order had tailored his testimony to support the testimony of his fellow officers, noting that he had a motive to shape his testimony. Equally, McCown had a motive here to modify her testimony to match Dinello’s. Fairness, therefore, required the court to bar McCown from testifying to ensure that the reasons for having the sequestration order were not compromised.

Even if the court’s decision to prevent McCown from testifying were improper, the defendant had the opportunity to put forth the same evidence in another form. The ruling prevented only McCown from testifying, not anyone else. Thus, the court did not abuse its discretion in precluding McCown’s testimony during the suppression hearing.

II

The defendant next claims that the court improperly prevented his attorney from arguing to the jury during his closing argument about the likely effects of the defendant’s age on his ability to realize the intent of others. We disagree.

The following additional facts are needed for our resolution of the defendant’s claim. During the defendant’s closing argument, the following exchange took place between defense counsel, the state and the court:

“[Defense Counsel]: Now, let’s look at [the defendant], sixteen years old at the time, seven—
“[Prosecutor]: Objection, there’s no evidence of that.
“The Court: Sustain the objection.
“[Defense Counsel]: I would just respectfully say, Your Honor, that his birthday is—
“[Prosecutor]: Objection, Your Honor, there’s no evidence of that.
“The Court: Sustain the objection.”

It is the defendant’s contention that the court’s exclusion of that aspect of his closing argument to the jury infringed on his right to be heard through counsel and “ ‘deprived [him] of the full and fair participation of his counsel in the adversary process.’ ”

“In general, the scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations. . . . While we are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight control over argument is undesirable when counsel is precluded from raising a significant issue.” (Citations omitted; internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 59-60, 612 A.2d 755 (1992).

“Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest an inference from facts not in evidence.” (Emphasis in original; internal quotation marks omitted.) Id., 58.

In this case, there was no evidence presented to the jury from which it could infer that the defendant, at seventeen years of age, lacked the capacity to recognize the intent of others. Although the age of the defendant was presented to the jury, there was no mention during the course of the trial of how the defendant’s age related to his inability to realize what was occurring around him. As such, the court did not abuse its discretion when it limited the scope of closing arguments to those facts that were in evidence or to the reasonable inferences that could have been drawn from those facts.

Ill

The defendant finally claims that the court improperly prevented defense counsel from cross-examining a state’s witness about the circumstances of her testimony in the cases of Council and Rogers, and about what had transpired during a recess. It is the defendant’s contention that the court infringed on his right to cross-examine a witness by limiting his ability to probe into the witness’ credibility by ascertaining whether the state’s attorney had coached the witness. We disagree.

The following additional facts are necessary for our disposition of the defendant’s claim. During the testimony of Monique Little, the jury was excused to enable the court to hear counsel concerning a motion outside the jury’s presence. While the jury was excused, Little became visibly upset. The court called a brief recess to allow Little to compose herself. During the recess, the state’s attorney spoke with Little. While cross-examining Little, the defendant was prevented from inquiring into the substance of the conversation that occurred during the recess.

During Little’s testimony in this case, a redacted version of her testimony from the two prior cases was read into evidence as prior consistent statements. On recross-examination, the defendant was prevented from inquiring into who the state’s attorney was in the prior cases and how much contact Little had had with that attorney.

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Cepeda, 51 Conn. App. 409, 416, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999). “To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.” (Internal quotation marks omitted.) Id., 418.

“Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable.” (Citation omitted; internal quotation marks omitted.) Id., 416; see also 1 B. Holden & J. Daly, supra, § 67c, pp. 504-505.

“It is axiomatic that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Cepeda, supra, 51 Conn. App. 415-16.

Our review of the record and transcripts reveals that the court properly limited the scope of the defendant’s cross-examination of Little. Defense counsel was permitted to inquire into whether Little and the state’s attorney had spoken during the recess. Additionally, the defendant questioned Little about the number of conversations that she had had with the state’s attorney in preparation for this case. The court, however, did not allow the defendant’s counsel to ask about the contents of the conversation that took place during the recess, nor was he permitted to ask about the number of times that Little had spoken with the state’s attorney in preparation for her testimony in the trials of Council and Rogers.

The limitations that the court put on the scope of the cross-examination did not unconstitutionally inhibit the defendant from challenging Little’s credibility. The defendant was given wide latitude to question Little about the events concerning this case and was given sufficient opportunity to probe into whether she was coached before giving her testimony in this trial. The testimony prohibited by the court had no relevance to Little’s credibility, nor to the facts of this case. The court permitted Little to testify as to the number of times that she had spoken with the state’s attorney regarding the instant matter. The number of times Little spoke with the state’s attorney prior to other proceedings has no correlation to whether she was testifying truthfully in this case. The defendant has failed to establish that the court’s restrictions clearly were prejudicial. As such, the court did not abuse its discretion in limiting the scope of the defendant’s cross-examination of Little.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-8 (a) provides in relevant part: “A person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-54a (a) provides in relevant part: “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 . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does . . . anything which, under the circumstances as he believes them to be, is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes (Rev. to 1993) § 29-38 (a) provides in relevant part: “A person who knowingly luis, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued . . . shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . .

       The defendant disputed that portion of the state’s evidence. In a statement he gave to a New Haven police detective on December 1, 1994, the defendant claimed that he never exited the vehicle. Rather, upon arriving at Rogers’ girlfriend’s residence, Rogers and Council spoke outside of the car where the defendant could overhear Council telling Rogers to “calm down” and Rogers saying, “fuck that.”

       A subsequent search by the police failed to recover the shell casing.

       Council and Rogers were convicted in separate trials. Their convictions were upheld on appeal. See State v. Rogers, 50 Conn. App. 467, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998); State v. Council, 48 Conn. App. 919, 714 A.2d 733, cert. denied, 245 Conn. 920, 717 A.2d 236 (1998).

       In arguing to the court, the defendant’s attorney stated: “I addressed— I’m sorry, I addressed this issue to the sheriff. I originally thought that she could be present and then—” before he was interrupted by the court.

       The following colloquy took place between the defendant’s attorney and Little:
      “[Defense Counsel]: Did you talk to [the state’s attorney] as recently as the last recess in the hallway?
      “[Witness]: Yes.”

       The following colloquy took place between the defendant’s attorney and Little:
      “[Defense Counsel]: How many times did you speak to [the prosecutor] before giving your evidence today?
      “[Witness]: Once.
      “[Defense Counsel]: Just one time?
      “[Witness]: Once or twice.
      “[Defense Counsel]: Just two times or more than two times?
      “[Witness]: Twice, over the phone and today at his office.”