text:
    STATE OF CONNECTICUT v. LEONORA RYAN
    (AC 15840)
    Landau, Spear and Daly, Js.
    Argued November 7, 1997
    officially released March 17, 1998

      Norman A. Pattis, special public defender, with whom, on the brief, was John R. Williams, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Leonora Ryan, appeals from the judgment of conviction, rendered after a jury trial, of inciting injury to persons in violation of General Statutes § 53a-179a. The defendant claims that (1) § 53a-179a is both vague on its face in violation of the due process clause of the fourteenth amendment to the United States constitution and overbroad in violation of the first amendment to the United States constitution and (2) the trial court abused its discretion by improperly refusing to admit into evidence a police informant’s criminal history. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1984, the defendant married Ronald Rubin. The couple had twins in 1986 and divorced in 1990. The defendant was awarded physical custody of the twins and Rubin received visitation privileges. In the fall of 1990, the defendant remarried and moved with the twins and her new husband to Hamden. During 1991, Rubin lived in Waterbury with a roommate, Ray Sturm. In October, 1991, Rubin signed an agreement whereby his children would not visit him at his Waterbury apartment because of suspicions that Sturm had sexually abused one of the twins.

Approximately six months prior to her arrest, the defendant confided in her friend, Mary M. Gleason, her belief that Rubin was responsible for the sexual abuse of the twins. The defendant also told Gleason that she disliked Rubin and would have him killed if only she knew a “hit man.” The defendant also expressed her frustration that the police were not taking her complaints seriously. At the time, Gleason was living with Edward Marco, a police informant who had a lengthy criminal record.

On December 21, 1992, Marco furnished information to Officer Mark Ciarciello of the Branford police department that resulted in an investigation, with Ciarciello posing as a hit man. After supplying Ciarciello with the defendant’s telephone number, Marco was instructed to inform the defendant that she would be contacted by Ciarciello. On December 22, 1992, Ciarciello visited the defendant’s home and received an envelope from her that contained $ 100. The defendant confided in Ciar-ciello that she had repeatedly attempted to oust Rubin from her and her children’s lives through legal channels, but had been unsuccessful. The defendant also confided to Ciarciello her belief that Rubin’s roommate had sexually abused her son, and that Rubin was “torturing” the twins and “messing up their heads.” The defendant stated that she could not “handle it anymore” and “wanted [Rubin] gone, probably after the holidays.” When Ciarciello indicated that he would need an advance on his $1000 fee, the defendant responded that Marco was planning to lend her money toward the payment of Ciarciello’s fee. The defendant then confirmed specific information regarding Rubin, including his home and work addresses, home telephone number, physical appearance, work schedule, and the make, color and partial license plate number of his car.

On December 30, 1993, Ciarciello again visited the defendant’s home and received additional money toward the payment of his fee. The defendant then indicated that she wanted the “hit” to look like an “accident” or “a drug deal gone bad.” She did not want the defendant to “disappear” because she wanted her children, the beneficiaries of Rubin’s life insurance policy, to receive the life insurance proceeds immediately.

The jury found the defendant guilty on the count of inciting injury to persons and property, but acquitted her of the count of attempted murder in violation of §§ 53a-8, 53a-49a (2) and 53a-54a. This appeal followed.

I

A

The defendant first claims that General Statutes § 53a-179a is vague on its face, in violation of the fourteenth amendment to the federal constitution. Specifically, the defendant asserts that the language in § 53a-179a that makes it a felony when one “advocates, encourages, justifies, praises, incites or solicits . . . the killing or injuring of any class or body of persons, or of any individual” is vague on its face because it “lacks a common core meaning” and sweeps so broadly that it includes speech protected by the first amendment to the United States constitution. We affirm the judgment of the trial court.

The defendant contends that the language of § 53a-179a is unconstitutionally vague because it allows a person to be prosecuted for a mere expression of opinion without any criminal intent or criminal act. By way of example, she posits that persons who simply are in favor of the death penalty could be prosecuted under the “praises” and “justifies” language in the statute, notwithstanding the absence of any intent to incite or cause harm. The defendant maintains that this interpretation of § 53a-179a would proscribe constitutionally protected speech and, therefore, render the statute unconstitutionally vague on its face. We disagree because judicial gloss makes it clear that the statute requires an intent to cause injury in addition to the proscribed language.

Preliminarily, we restate certain principles, enunciated by our Supreme Court, that guide our analysis. Pursuant to our federal and state constitutions, due process of law requires that a penal statute be sufficiently definite to warn a person of conduct that must be avoided. Where the terms of a statute are “ ‘so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application,’ ” an essential aspect of due process of law is violated. State v. Dyson, 238 Conn. 784, 796, 680 A.2d 1306 (1996). A vague and indefinite rule or standard is no rule or standard at all. Seals v. Hickey, 186 Conn. 337, 342, 441 A.2d 604 (1982). To prevail on a facial vagueness challenge, the defendant must show that the statute has no core meaning. If at least one application is not vague, the challenge cannot succeed. Additionally, the defendant’s burden is made more difficult by the strong presumption favoring the constitutionality of statutes. State v. Dyson, supra, 797; see also State v. Indrisano, 228 Conn. 795, 805, 640 A.2d 986 (1994).

Vague laws endanger first amendment rights because they may cause citizens to avoid constitutionally protected conduct for fear of incurring criminal prosecution. Where a statute is attacked as void for vagueness, and no first amendment rights are implicated, the constitutionality of the statute is determined by its applicability to the particular facts at issue. Because of the chilling effect that vague statutes can have on first amendment rights, a defendant may mount a vagueness challenge to the validity of a statute in marginal, hypothetical situations, even though the defendant’s own conduct clearly falls within the statute’s proscriptions. State v. Proto, 203 Conn. 682, 696-97, 526 A.2d 1297 (1987).

Our Supreme Court has recognized that vague statutes fail to give fair warning to persons who may be affected as to what conduct is prohibited. A statute should be reasonably specific and direct so that a person of ordinary intelligence has a reasonable opportunity to govern his or her behavior by reference to the words of the statute together with judicial gloss. “Lack of precision, however, is not, in or of itself, offensive to the requirement of due process.” Seals v. Hickey, supra, 186 Conn. 344. “Ambiguity is, unfortunately, a common statutory ailment. A degree of vagueness is endemic in many statutes. ... If the meaning of a statute can fairly be ascertained through judicial construction, however, it need not be stricken for vagueness. . . . [A]uthoritative constructions sufficiently illuminating the contours of an otherwise vague prohibition may be used to remedy the chilling effect of vague statutory language in areas affecting first amendment rights. . . .

“The meaning of unclear statutes affecting first amendment rights may be divined through recognized methods of statutory construction. References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citations omitted; internal quotation marks omitted.) State v. Proto, supra, 203 Conn. 698-99.

In seeking to determine whether § 53a-179a gives fair warning as to what conduct is criminal under the statute, we are persuaded by the well reasoned analysis in State v. Leary, 41 Conn. Sup. 525, 590 A.2d 494 (1989), rejecting a vagueness and overbreadth challenge to the constitutionality of § 53a-179a. The Leary court read into the statute “an implicit requirement that the accused intend to cause injury .... Each of the words that the legislature chose to include in the statute clearly connotes the volitional component to accomplish a specific result.” Id., 530.

We recognize, as did the Leary court, the fundamental principle of statutory construction that penal statutes must be construed strictly in favor of the accused. State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987). Notwithstanding that rule of construction, we are also guided by two oft stated principles. “The party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality.” State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989). Where a statute is challenged as being unconstitutional on its face, the burden is especially heavy. State v. Webb, 238 Conn. 389, 407, 680 A.2d 147 (1996). Furthermore, “we must, if possible, put a judicial gloss upon the [terms under challenge] that adopts a definition that saves [them] from . . . facial vagueness and yet construes [them] as narrowly as possible in the defendant’s favor.” State v. Breton, supra, 269-70.

In seeking to adopt an interpretation of § 53a-179a that will survive a facial vagueness challenge while being construed as narrowly as possible in favor of the defendant, we also find Turner v. LaBelle, 251 F. Sup. 443 (D. Conn. 1966), instructive. In Turner, the court reviewed and upheld the constitutionality of General Statutes (1958 Rev.) § 53-44 (predecessor to § 53a-179a), while acknowledging that “[t]he most vulnerable part of [§ 53-44] is that part which penalizes praising or justifying” because of the claim that it could apply to past acts. Id., 446. In searching for the legislative intent underpinning the statute, the Turner court rejected such an interpretation and stated that “[generally it makes sense to ascribe a particular separate meaning to each of a limited number of words used disjunctively in a statute. But where the legislature, out of a desire to assure that no artful semanticist will escape the burden of the statute, employs, indiscriminately, seriatim, a number of similar words, some virtually identical, others differing slightly, the better practice would appear to be to let each help to define the other. Accordingly, we read ‘justifies’ and ‘praises’ in the sense of ‘encourages’, ‘advocates’, and ‘incites.’ ” Id. We conclude that all of the prohibited verbal acts are saved from vagueness by judicial gloss and the legislature’s intent that such acts require an intent to cause injury.

In seeking to apply further judicial gloss to the challenged language of § 53a-179a, we may also look to the published commentary to § 53a-179a. Our Supreme Court has stated that the commentary by the commission to revise the criminal statutes, although “not officially adopted by the General Assembly and . . . not determinative”; State v. Parmalee, 197 Conn. 158, 163 n.7, 496 A.2d 186 (1985); may be relied on “as a guide for determining the intention of the legislature . . . .” Id.; see also State v. Desimone, 241 Conn. 439, 456, 696 A.2d 1235 (1997); State v. Foster, 45 Conn. App. 369, 377-78, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997). The published commentary to § 53a-179a further persuades us that intent must necessarily be inferred when construing § 53a-179a. Specifically, the commentary provides that § 53a-179a “replaces and narrows the scope of prior section 53-44. The additional requirement that the advocacy be of ‘imminent’ dangerous action is compelled by relevant constitutional doctrines of free speech.” Commission to Revise the Criminal Statutes, Commentary on the Penal Code (1971), p. 69. The commission’s reference to “imminent dangerous action” supports the Leary court’s conclusion that intent must be inferred in construing § 53a-179a. Aided by the commentary, we also conclude that the legislature intended the challenged language to proscribe speech only if it supports imminent injurious action.

This conclusion is buttressed by applying another principle of statutory construction. “[Wjhen the language used [within a statute] is doubtful in meaning, the true meaning may be ascertained by considering it in the light of all its provisions ... [as well as] its title . . . .” Hazzard v. Gallucci, 89 Conn. 196, 198, 93 A. 230 (1915); see Old Saybrook v. Public Utilities Commission, 100 Conn. 322, 328, 124 A. 33 (1924). We are persuaded that the title of § 53a-179a, “Inciting injury to persons or property,” clearly illustrates the legislature’s intention that the element of intent be incorporated in the meaning of the statute.

In applying first amendment principles, the United States Supreme Court has upheld a statute against first amendment attack by acknowledging that “unlike the advocacy of ideas, advocacy of action may be restricted. Yates v. United States, 354 U.S. 298, 318, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957); Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967). Moreover, “it has never been deemed an abridgement of freedom of speech ... to make a corase of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Cox v. Louisiana, 379 U.S. 536, 555, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965).

Applying principles of statutory construction in light of the first amendment considerations that we have discussed, we conclude that the defendant’s fourteenth amendment challenge to § 53a-179a must fail.

B

The defendant claims in the alternative that even if the language of § 53a-179a is not vague on its face, it is impermissibly overbroad in violation of the principles of free speech embodied in the first amendment to the United States constitution. We are unpersuaded.

“[T]he doctrines of vagueness and overbreadth are so closely related that [s]ometimes the two are functionally indistinguishable . . . .” (Internal quotation marks omitted.) State v. Proto, supra, 203 Conn. 706. “The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the first amendment.” State v. Rivera, 30 Conn. App. 224, 229, 619 A.2d 1146 (1993); see also Secretary of State v. J.H. Munson Co., 467 U.S. 947, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984). Moreover, “[a] party has standing to raise an over-breadth claim . . . only if there [is] a realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the Court . . . .” (Internal quotation marks omitted.) State v. Rivera, supra, 229-30; see also State v. Proto, supra, 203 Conn. 682.

We are not convinced by the defendant’s hypothetical that merely being a proponent of the death penalty or otherwise engaging in constitutionally protected conduct would be impermissibly swept within the ambit of conduct that is proscribed by the language of § 53a-179a. As in Proto, the defendant here claims that the vague words of the statute permit interpretations that would violate first amendment rights. As our Supreme Court did in Proto, “we may appropriately apply the narrowing constructions of the relevant [statute] that we adopted in part [I A] to address the [defendant’s] overbreadth claims. While these constructions would not save the challenged statutes if they plainly proscribed constitutionally protected conduct . . . we conclude that the [statute] in question permissibly [bears] a construction that renders [it] free from constitutional defects.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Proto, supra, 203 Conn. 708.

The narrowing construction that we employed in part IA restricts the language of § 53a-179a to proscribe the incitement to injury of persons or property. The United States Supreme Court has held that speech that advocates a “law violation [is protected by the first amendment] except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). We conclude that the defendant’s overbreadth challenge under the first amendment to the United States constitution is also without merit.

II

The defendant next claims that the trial court abused its discretion in refusing to admit certain information into evidence regarding the criminal history and previous drug related arrest of Marco, the police informant. Marco did not testify. It is well settled that “[b]ecause of the latitude we accord trial courts on questions of relevance . . . and [b]ecause of the difficulties inherent in [the process of balancing probative value and prejudicial effect], the trial court’s decision . . . will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 804, 614 A.2d 414 (1992); State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982); State v. McClendon, 45 Conn. App. 658, 697 A.2d 1143, cert. granted on other grounds, 243 Conn. 943, 704 A.2d 799 (1997).

Our review of the record reveals that there was testimony from several witnesses regarding Marco’s criminal history and general untrustworthiness. The trial court not only made known to the jury the fact that Marco was a paid police informant, but also instructed it that it was permissible to draw a negative inference from the state’s failure to call Marco as a witness. In light of the principle that “every reasonable presumption should be given in favor of the trial court’s ruling”; (internal quotation marks omitted) Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 192, 510 A.2d 972 (1986); we conclude that the trial court did not abuse its discretion in declining to admit as evidence Marco’s prior drug related arrest and criminal history.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-179a (a) provides: “A person is guilty of inciting injury to persons or property when, in public or private, orally, in writing, in printing or in any other manner, he advocates, encourages, justifies, praises, incites or solicits the unlawful burning, injury to or destruction of any public or private property or advocates, encourages, justifies, praises, incites or solicits any assault upon any organization of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, or the police force of this or any other state or upon any officer or member thereof or the organized police or fire departments of any municipality or any officer or member thereof, or the killing or injuring of any class or body of persons, or of any individual.”

      The defendant seeks review of her unpreserved constitutional claims under the guidelines set out in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The state concedes that the claims are reviewable, but asserts that they lack merit. To prevail, the defendant now “bears the responsibility of demonstrating that [her] claim is indeed a violation of a fundamental constitutional right.” Id., 240.

       The fourteenth amendment to the United States constitution provides in relevant part: “No state shall . . . deprive any person of life, liberty or property, without due process of law . . .

       The first amendment to the United States constitution provides in relevant part: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .

       General Statutes (1958 Rev.) § 53-44, which was amended by 1969 Public Acts, No. 452, § 9, and repealed by 1969 Public Acts, No. 828, § 214, effective October 1, 1971, provided in pertinent part: “Any person who, in public or private, orally, in writing, in printing or in any other manner, advocates, encourages, justifies, praises, incites or solicits the unlawful burning, injury to or destruction of any public or private property or advocates, encourages, justifies, praises, incites or solicits any assault upon any organization of the armed forces of the United States ... or the killing or injuring of any class or body of persons, or of any individual, shall be fined not more than five thousand dollars or imprisoned not more than ten years or both. ” The statute was replaced by § 53a-179a in 1971. See 1971 Public Ads, No. 871, § 52.

       Our Supreme Court has stated that “[i]f two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phrases under the doctrine of noscitur a sociis. 2A J. Sutherland, Statutory Construction (5th Ed. Singer 1992) § 47-16 [pp. 183-84]; State v. Roque, [190 Conn. 143, 152, 460 A.2d 26 (1983)].” State v. Indrisano, supra, 228 Conn. 811.

       See footnote 5.

       Even if we did find an abuse of discretion by the trial court, the defendant here has failed to carry her burden of showing harm. See State v. Radzvilowicz, 47 Conn. App., 1, 24, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997). We are satisfied that the disputed information concerning Marco’s previous drug related arrest and his motivations to misrepresent the defendant’s intentions to the police was cumulative of other substantial testimony and evidence and would not have affected the jury’s verdict even if it had been admitted into evidence.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    PEERLESS INSURANCE COMPANY ET AL. v. THOMAS J. TUCCIARONE ET AL. CNA INSURANCE COMPANY ET AL. v. THOMAS J. TUCCIARONE ET AL. NEW LONDON FEDERAL SAVINGS BANK ET AL. v. THOMAS J. TUCCIARONE ET AL. WALTER R. SOLOMONS ET AL. v. THOMAS J. TUCCIARONE ET AL.
    (AC 16261)
    Landau, Spear and Daly, Js.

      Argued November 12, 1997
    officially released March 17, 1998

      Michael D. O’Connell, with whom, on the brief, were Kevin J. Greene and Julia B. Morris, for the appellants (named defendant et al.).

      William H. Narwold, with whom was Holly Winger, for the appellee (third party defendant Advance Transformer Company).
   Opinion

LANDAU, J.

This is a consolidated appeal following the trial court’s granting of motions for summary judgment in four cases consolidated for trial. The motions for summary judgment were granted in favor of the defendant-third party defendant Advance Transformer Company (Advance) against the defendant owners of commercial real estate that was destroyed by fire. On appeal, the owners claim that the trial court improperly granted summary judgments because genuine issues of material fact exist as to when the time commences to run so as to bar the owners’ product liability claims against Advance. We affirm the trial court’s granting of summary judgments.

The lawsuits that form the basis of this appeal arise out of a fire that occurred on September 30, 1988, in Flanders Plaza in East Lyme, which is owned by the defendants Thomas J. Tucciarone, Michael J. DiProspero, Kaj Snellman and the Snellman Limited Partnership (owners). The plaintiffs, numerous tenants of the premises and their insurance carriers, alleged that the owners are liable to them for the fire losses they sustained because the owners (1) negligently maintained the premises and (2) created a nuisance on the premises. In January, 1992, the owners asserted two claims against Advance: one for their own losses brought pursuant to the product liability statutes, General Statutes § 52-572m et seq., and one for indemnification of the claims of loss asserted by the plaintiffs. The owners claim that Advance, as the manufacturer of the ballast in a lighting fixture where the fire started, was responsible for all losses related to the fire.

On August 4, 1992, Advance filed answers and five special defenses to the owners’ claims. The relevant special defenses allege that the owners’ claims are “barred by the applicable statute of limitations.” In July, 1993, Advance filed a motion for summary judgment in each of the consolidated cases, arguing that the owners’ claims were barred by the statute of limitations, General Statutes § 52-577a (a), because they were not brought within three years of September 30, 1988. The owners objected to the motions for summary judgment, claiming that the statute of limitations did not run until a causal nexus between the act and the injury was discovered, i.e., January, 1991, when an expert, Beth Anderson, retained by the owners’ insurance carrier stated that the ballast manufactured by Advance had caused the fire. The trial court granted Advance’s motions for summary judgment, ruling that even assuming the statute of limitations did not run until the causal connection was discovered, “the statute of limitations began to run no later than October 20, 1988, when the deputy fire marshal issued his opinion that the cause of the fire was the defective ballast.” This appeal followed.

Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. See Scinto v. Stamm, 224 Conn. 524, 530, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S. Ct. 176, 126 L. Ed. 2d 136 (1993). “Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Cortes v. Cotton, 31 Conn. App. 569, 572-73, 626 A.2d 1306 (1993).

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Field v. Kearns, 43 Conn. App. 265, 270, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996). With these principles in mind, we proceed with our analysis.

I

The defendant owners first claim that the trial court improperly determined that no genuine issue of material fact existed as to when the time commences to run so as to bar the owners’ product liability claim pursuant to § 52-577a (a). That section provides in relevant part that “[n]o product liability claim . . . shall be brought but within three years from the date when the . . . property damage is first sustained or discovered . . . .” (Emphasis added.) The owners maintain that when a claim is governed by a “discovery” statute of limitations, such as the one at issue, the limitation period does not begin to run until the injured party has discovered or should have discovered the causal relationship between the product seller’s acts or omissions and their adverse effect on the injured party.

Our Supreme Court has not had occasion to construe the discovery language of § 52-577a (a). The owners argue, however, that the language of § 52-577a (a) is identical to the discovery language of the negligence statute of limitations set forth in General Statutes § 52-584, which our Supreme Court has had occasion to interpret. Assuming, arguendo, but without deciding, that our Supreme Court would give the discovery language of § 52-577a (a) the same judicial gloss it gives to § 52-584, we find, given the facts of this case, that the owners’ product liability claims against Advance are time barred nonetheless.

In support of their argument, the owners cite two Supreme Court cases that are relevant, Catz v. Rubenstein, 201 Conn. 39, 513 A.2d 98 (1986), and Burns v. Hartford Hospital, 192 Conn. 451, 472 A.2d 1257 (1984). Each is a medical malpractice case in which motions for summary judgment were granted pursuant to § 52-584. In Bums, the parents of a young child became aware of a streptococcal infection in his leg in November, 1975, caused by a contaminated intravenous tube. After the child was treated, the parents were told the child would fully heal with time. In August, 1977, the parents took their child to another physician who attributed the failure of the child’s leg to develop to scar tissue related to the infection. Suit was commenced against the alleged tortfeasors in November, 1978. Burns v. Hartford Hospital, supra, 453. Summary judgment was granted because suit was not brought within two years of the parents’ being told the infection was caused by the contaminated intravenous tube. Our Supreme Court affirmed the judgment, reasoning that “[t]he statute requires that the injured party bring suit within two years of discovering the injury. General Statutes § 52-584. In this context an injury occurs when a party suffers some form of actionable harm. The harm need not have reached its fullest manifestation before the statute begins to run.” Id., 460.

Our Supreme Court further explained actionable harm in Catz v. Rubenstein, supra, 201 Conn. 39, where a woman went to her physician in July, 1979, because of a lump in her breast. She was told her mammogram was negative for cancer. After she found a second lump, the woman went to another physician who, on May 1, 1980, performed surgery and diagnosed cancer. In April, 1982, a third physician told the woman that the August, 1979 lump was related to her cancer. The woman commenced suit against the first physician in June, 1982. Id., 40-42. The trial court granted summary judgment because the suit was not brought within two years of May 1, 1980. Id., 42. In reversing the judgment, our Supreme Court said: “A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence. Prosser & Keeton, Torts (5th Ed.) § 30, pp. 164-65; Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); Busko v. DeFilippo, 162 Conn. 462, 466, 294 A.2d 510 (1972); Moore v. Bunk, 154 Conn. 644, 649, 228 A.2d 510 (1967). They are therefore necessary ingredients for ‘actionable harm.’ Consequently, the plaintiffs’ decedent did not have an ‘injury’ as contemplated by the statute until she discovered or in the exercise of reasonable care should have discovered a causal relationship between the defendant’s allegedly negligent diagnosis of August, 1979, and subsequent lack of treatment, and the metastasis of her cancer, which she discovered on May 1, 1980. Only then did she sustain ‘actionable harm.’ Burns v. Hartford Hospital, supra, [192 Conn. 460].” Catz v. Rubenstein, supra, 44.

In the case before us, the owners’ real estate was destroyed by fire on September 30, 1988. The fire marshal’s report, dated October 20, 1988, identified the cause of the fire as the ballast in a lighting fixture. Therefore, following the reasoning of Bums, the owners here suffered actionable harm on October 20, 1988, when the fire marshal not only identified the cause of the fire but also the manufacturer of the ballast, Advance. The owners did not have to wait until they received Anderson’s report before bringing suit because “harm need not have reached its fullest manifestation before the statute begins to run.” Burns v. Hartford Hospital, supra, 192 Conn 460. “The focus is on the plaintiffs knowledge of facts, rather than on discovery of applicable legal theories.” (Internal quotation marks omitted.) Catz v. Rubenstein, supra, 201 Conn. 47. Because the owners did not bring their product liability claims against Advance until January, 1992, the actions were not commenced within three years of the date when the property damage was sustained or discovered, and, therefore, they are time barred.

II

The owners’ second claim on appeal is that their indemnification claims are governed by General Statutes § 52-598a rather than § 52-577a. In light of our decision to affirm the judgments rendered on the jury’s verdicts for the defendants in the plaintiffs’ cases-in-chief; see New London Federal Savings Bank v. Tucciarone, 48 Conn. 89, 709 A.2d 14 (1998); we dismiss the owners’ indemnification claims as there is no practical relief that we can afford them. See Metro Mobile CTS of Fairfield County, Inc. v. Dept. of Public Utility Control, 243 Conn. 235, 702 A.2d 1179 (1997).

The judgments are affirmed.

In this opinion the other judges concurred.

       In three of the cases, Advance was impleaded as a defendant and the owners cross claimed against them; in the fourth case, the owners filed a third party complaint against Advance.

       There were additional defendants in all four cases, but those parties are not relevant to these appeals.

       Although it is not mandatory, we note that the preferred manner of pleading is to identify specifically the number of the statute relied on; see Practice Book § 109A (a); so that the issue will be clarified for the benefit of all interested parties, including the court. See Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 768 n.9, 657 A.2d 668 (1995), appeal dismissed, 236 Conn. 744, 674 A.2d 1324 (1996); see also Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988).

       General Statutes § 52-584, titled, “limitation of action for iiyury to person or property,” provides in relevant part: “No action to recover damages for iiyury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained, or discovered . . . .” (Emphasis added.)

       Other cases cited by the owners are not relevant because they concern either a common-law product liability claim or personal injury claims involving latent injuries or damage to property resulting from a latent defect.

       Unlike the situation in negligence actions against health care providers, the owners did not have to make reasonable inquiry and provide a certificate of good faith before bringing an action against Advance. See General Statutes § 52-190a.

       General Statutes § 52-598a provides: “Limitation of action for indemnification. Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.”

       At oral argument, the owners claimed that even though there were defendants’ verdicts in the cases-in-chief, they were entitled to attorney’s fees related to the defense of the plaintiffs’ claims. The owners failed, however, to allege attorney’s fees in their complaint or to include them in their prayer for relief.


text:
    STATE OF CONNECTICUT v. BRUCE IVERSON
    (AC 16029)
    Landau, Spear and Dupont, Js.

      Argued December 15, 1997
    officially released March 17, 1998

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cynthia Serafini, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Bruce Iverson, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell, in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly (1) ruled that he could not ask his own witness a question in the presence of the jury, knowing that the witness intended to invoke his privilege against self-incrimination in response to that question, and (2) denied his “motion to reopen the evidence and, in the alternative, for a mistrial.” We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 13, 1994, Nicholas Dematteis and Tracy Canale, detectives of the Waterbury police department, observed the defendant in the alley between 12-16 Bronson Street and 18 Bronson Street placing what appeared to be a brown paper bag into a hole at the base of the steps at 18 Bronson Street. As the detectives approached him, they observed the defendant drop two small plastic bags containing white chips. Dematteis retrieved both bags and, on the basis of his training and experience, concluded that they contained crack cocaine. The defendant was arrested, searched, handcuffed and placed in the back of a police vehicle. Dematteis then pulled out the brown paper bag from the hole in the steps and found twenty small plastic bags similar in size and color to the two bags that the defendant had dropped earlier.

I

The defendant first argues that the trial court improperly refused to permit him to ask his witness, Quentin Myers, before the jury, a question to which the defendant knew the witness intended to invoke his privilege against self-incrimination.* We do not agree.

The gravamen of the defendant’s defense at trial was that the crack cocaine found by the detectives was not his and that they had lied in their testimony about observing him (1) put the brown paper bag in the hole in the bottom of the steps and (2) drop the two plastic bags to the ground. To support this defense, the defendant first called another witness, Horace Peterson, who testified, inter alia, that drugs were bought and sold on Bronson Street every day, that drugs were often found in a churchyard directly across the street from 18 Bronson Street, that on the morning of the defendant’s arrest, a boy, about fifteen or sixteen years old, who went by the name Quentin, was seen selling drugs to someone who had pulled up in a car, that someone had yelled “TNT,” and that Quentin threw something that looked white and “might have been a plastic bag” into some bushes and ran into 18 Bronson Street.

The defendant then called Myers as a witness and made an offer of proof of Myers’ testimony outside the presence of the jury. Myers’ counsel initially informed the trial court that Myers did not want to testily. The defendant argued that Myers should be required to testify, at least during the voir dire examination, to determine if he would assert his fifth amendment rights in response to individual questions. The trial court agreed with the defendant, saying it would rely on the guardian ad litem and counsel to protect Myers’ rights.

During voir dire, Myers testified as to his age, residence and certain events that occurred on October 13, 1994. On cross-examination by the state, Myers denied throwing anything into the bushes or onto the sidewalk, yelling “TNT” and stuffing a brown paper bag into a hole in the steps. The following colloquy then took place:

“Q. Mr. Myers, on October 13, 1994, were you selling drugs on Bronson Street?
“A. Was I selling drugs? Yes.
“Q. You were selling drugs—”

At that point, Myers’ court-appointed attorney objected and moved to strike the answer. The trial court granted the motion and permitted Myers to consult with his attorney and guardian ad litem. After the conference, the trial court questioned Myers:

“The Court: Now, what is your mind? Is your mind that you wish to take advantage of your privileges?
“Myers: I’m taking the fifth.
“The Court: You wish to take the fifth amendment?
“Myers: Yes.”
Because Myers invoked his privilege against self-incrimination during voir dire as to whether he sold drugs on Bronson Street on October 13, 1994, the state argued that he should not be permitted to testify at all for the defense as the state would not be able to cross-examine him effectively. The defendant argued that Myers should be required to invoke his privilege to the question in front of the jury. In rejecting both arguments, the trial court ruled that Myers would be permitted to testify in response to all questions he had been asked during voir dire except “he would not be asked by either party before the jury a question concerning his selling drugs on the day in question since the fifteen year old witness has invoked properly his privilege not to incriminate himself in that regard.”

Myers, testifying before the jury, denied throwing anything into the bushes or onto the sidewalk, denied yelling “TNT,” denied stuffing a brown paper bag into a hole in the steps and iterated that he did not throw anything onto the ground on October 13, 1994.

It is widely held that “it is improper to permit a witness to claim a testimonial privilege in front of the jury where the witness’s intention not to testify is known beforehand.” United States v. Chapman, 866 F.2d 1326, 1333 (11th Cir.), cert. denied, 493 U.S. 932, 110 S. Ct. 321, 107 L. Ed. 2d 312 (1989); see also United States v. Doddington, 822 F.2d 818, 822 (8th Cir. 1987); United States v. Crawford, 707 F.2d 447, 449 (10th Cir. 1983); United States v. Lyons, 703 F.2d 815, 818 (5th Cir. 1983); United States v. Fricke, 684 F.2d 1126, 1131 n.7 (5th Cir. 1982), cert. denied, 460 U.S. 1011, 103 S. Ct. 1250, 75 L. Ed. 2d 480 (1983); Commonwealth v. Gagnon, 408 Mass. 185, 196, 557 N.E.2d 728 (1990); People v. Dyer, 425 Mich. 572, 576, 390 N.W.2d 645 (1986) ; People v. Thomas, 51 N.Y.2d 466, 472, 434 N.Y.S.2d 941, 415 N.E.2d 931 (1980); State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746 (1993).

Our appellate courts follow that general rule. Our Supreme Court has stated: “It is firmly established that [n] either [the state nor the defendant] has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him. State v. Bryant, 202 Conn. 676, 683, 523 A.2d 451 (1987) , quoting United States v. Lacouture, 495 F.2d 1237, 1240, reh. denied, 503 F.2d 568 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S. Ct. 631, 42 L. Ed. 2d 648 (1974); State v. Daley, 11 Conn. App. 185, 188, 526 A.2d 14 (1987). The rule is grounded not only in the constitutional notion that guilt may not be inferred from the exercise of the Fifth Amendment privilege but also in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations. The jury may think it high courtroom drama of probative significance when a witness ‘takes the Fifth.’ In reality the probative value of the event is almost entirely undercut by the absence of any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination. Bowles v. United States, 439 F.2d 536, 541-42 (D.C. Cir. 1970), cert. denied, 401 U.S. 995, 91 S. Ct. 1240, 28 L. Ed. 2d 533 (1971).

“Accordingly, we have held that a witness may not be called to the stand in the presence of the jury merely for the purpose of invoking his privilege against self-incrimination. State v. Person, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991); State v. Bryant, supra, [202 Conn. 683]; State v. Reddick, 197 Conn. 115, 126-28, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). Such testimony is not relevant, and could be prejudicial.” (Internal quotation marks omitted.) State v. Dennison, 220 Conn. 652, 660-61, 600 A.2d 1343 (1991).

The defendant relies on dicta in State v. Bryant, supra, 202 Conn. 686, to assert that his case should fall within an exception to the well established general rule. The argument is without merit. The Bryant language, as obiter dicta, is not binding precedent; even if it were, it is not instructive.

We first note that an affirmative answer to the question would not have been exculpatory to the defendant. The fact that the witness may have sold drugs on Bronson Street on the day in question does not mean that the defendant did not stuff a paper bag containing twenty plastic bags of crack cocaine into a hole at the base of the steps at 18 Bronson Street or that the defendant did not drop two additional bags of crack cocaine to the ground, as observed by the detectives.

Furthermore, permitting Myers to invoke his privilege against self-incrimination in front of the jury could result only in speculation as the jury attempted to draw inferences from the unanswered question. See State v. Dennison, supra, 220 Conn. 660-61. The defendant hoped to gain some benefit from the witness’ invocation of the privilege in the presence of the jury. This is impermissible.

II

In his second claim, the defendant asserts that the trial court improperly denied his motion to open the evidence and to allow the jury to hear Myers testily that he was selling drugs on October 13, 1994. The defendant claims that Myers waived his right to invoke the fifth amendment as to the question of his selling drugs when he answered the earlier questions. The defendant asserts that because Myers denied throwing drugs or anything else into the alley, he should have been able to impeach Myers’ credibility with the fact that Myers was selling drugs on that date. Because he was denied the opportunity to impeach Myers’ credibility, the defendant claims that he was denied a fair trial. We disagree.

In response to the defendant’s claim, the state argues that Myers, a juvenile not versed in the law or court procedure, merely blurted out his answer and, therefore, did not knowingly and intelligently waive his right. The state further claims that Myers’ attorney immediately objected to the question and requested the answer to be stricken. Immediately after he was given the opportunity to consult his attorney and guardian ad litem, Myers invoked his privilege against self-incrimination under the provisions of the fifth amendment in response to the trial court’s inquiry.

The trial court ruled on the defendant’s alternative motion from the bench, saying that it was satisfied from its own observations of Myers during the voir dire hearing that “at the time he blurted out that response he was confused, upset emotionally and did not understand his right to invoke his own privilege to remain silent. As the transcript of the voir dire hearing reveals ... he thought he had to answer truthfully and did not understand that he could invoke his privilege to remain silent. . . . We do not find a testimonial waiver.”

“The test for determining whether a court may infer a testimonial waiver of the privilege against self-incrimination is set forth in Klein v. Harris, 667 F.2d 274, 287 (2d Cir. 1981). A testimonial waiver is not to be inferred lightly. Smith v. United States, 337 U.S. 137, 150, 69 S. Ct. 1000, 93 L. Ed. 1264 (1949); State v. Altrui, [188 Conn. 161,] 169 [448 A.2d 837 (1982)]. It should be inferred only under the most compelling circumstances. Klein v. Harris, supra, 288; State v. Altrui, supra [169]. The two-prong test set forth in Klein v. Harris, supra, 287, states: ‘[A] court should only infer a waiver of the fifth amendment’s privilege against self-incrimination from a witness’ prior statements if (1) the witness’ prior statements have created a significant likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth, and (2) the witness had reason to know that his prior statements would be interpreted as a waiver of the [privilege] . . . .’ The second prong of the Klein test requires a two-fold analysis.

“The requisite ‘reason to know’ that a waiver might be inferred should be found only if the witness’ prior statements were (a) testimonial, meaning that they were voluntarily made under oath in the context of the same judicial proceeding, and (b) incriminating, meaning they did not merely deal with matters collateral to the events surrounding the commission of the crime, but directly inculpated the witness on the charges at issue. Klein v. Harris, supra, [667 F.2d] 288. Both prongs of this test must be satisfied in order for the court to be able to infer a testimonial waiver.” (Emphasis in original.) DeMartin v. Manson, 2 Conn. App. 496, 503-504, 480 A. 2d 578, cert. denied, 194 Conn. 807, 483 A. 2d 275 (1984).

The short answer to the defendant’s claim is that Myers’ responses to the questions preceding the question about selling drugs were not incriminating. They did not inculpate Myers on the charges at issue, i.e., the defendant’s possession of a narcotic substance with an intent to sell. Nor did the answers cause confusion of the issue before the jury. Finally, Myers had no reason to know that the responses would be interpreted as a waiver of his privilege against self-incrimination.

The trial court found that the “fifteen year old confused, emotionally upset youngster did not understand his privilege to remain silent” until he had conferred with his court-appointed lawyer and guardian ad litem. To waive his privilege against self-incrimination, a witness must have some basic understanding of the fifth amendment privilege. If he had no understanding of the privilege, Myers’ answer could not be freely and voluntarily given. See Klein v. Harris, supra, 667 F.2d 288; State v. Altrui, supra, 188 Conn. 170; DeMartin v. Manson, supra, 2 Conn. App. 503-504; see also United States v. Silverstein, 732 F.2d 1338, 1345 (7th Cir. 1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L. Ed. 2d 785 (1985). Thus, the trial court was correct in not inferring a testimonial waiver from Myers’ nonincriminating responses.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides: “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, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       The fifth amendment to the United States constitution provides in relevant part: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”

       TNT refers to the Waterbury police tactical narcotics team.

       The trial court appointed a guardian ad litem and legal counsel for Myers, who was fifteen years old at the time of trial

        “While we can imagine a case in which a defendant’s constitutional right to call witnesses on his behalf might arguably require that a witness who refuses to testify be called, this is not such a case.” (Emphasis added.) State v. Bryant, supra, 202 Conn. 686.

       The motion filed by the defendant was titled “Motion to Reopen Evidence and Allow Answer into Evidence and in the Alternative for a Mistrial.” The trial court denied the motion to open evidence. Prior to sentencing, the defendant filed another motion for a mistrial, which the trial court, confirming its prior decision, also denied.

       The trial court also stated, “We conclude that there is no compelling reason to permit Bruce Iverson to reopen the trial to attempt to present inadmissible evidence which came to his attention during the trial. State v. Carter, 228 Conn. [412, 636 A.2d 821 (1994)].”

       The defendant also argues that even if the response blurted out by Myers is not deemed to be a waiver of his privilege against self-incrimination, the response was nevertheless admissible under the prior testimony exception to the hearsay rule. When the defendant argued his motion in the trial court, he relied solely on the “waiver issue” and failed to draw the court’s attention to any hearsay exception claim. We will not review this unpreserved, improperly raised evidentiary claim on appeal. See State v. Goodrum, 39 Conn. App. 526, 543, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995).


author: DALY, J.

text:
    STATE OF CONNECTICUT v. FUNDADOR VEGA
    (AC 16850)
    Foti, Landau and Daly, Js.

      Argued November 3, 1997
    officially released March 17, 1998

      Richard T. Meehan, Jr., special public defender, for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Donald A. Browne, former state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Fundador Vega, appeals

from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). The defendant claims that the trial court improperly (1) failed to charge the jury on the lesser included offenses of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3),* manslaughter in the second degree in violation of § 53a-56 (a) (l), and criminally negligent homicide in violation of General Statutes § 53a-58 (a), (2) admitted into evidence hearsay statements of the victim, and (3) admitted evidence of prior acts of physical abuse by the defendant against the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim and the defendant were married and had three children. The defendant also had a son, J, from a previous marriage, who lived with his mother, the defendant’s ex-wife, Evelyn Pinto. On Wednesday, November 9, 1994, the victim and the three children left their apartment on North Avenue in Bridgeport and went to live with Pinto and J at their home on Sheridan Street. On that day, J saw a revolver by the console of the defendant’s car. He had never before seen his father in possession of a gun. That evening, while the defendant and J were working together at the defendant’s cleaning business, the defendant inquired whether J had seen the victim and the children. J did not reveal their whereabouts.

On November 10, 1994, the defendant reported to the Bridgeport police that his wife and three children were missing and that his wife was having an affair with another man. That evening, Officer Kenneth Kubel was dispatched to the Sheridan Street apartment where he spoke to the victim. He observed a scratch and a bruise on her left cheek. The officer then returned to police headquarters where he spoke to the defendant. The defendant stated that he had visited the Sheridan Street apartment and that he and the victim had argued about the defendant’s belief that she was cheating on him. The defendant reported that the victim tore his jacket and tore from his body a gold chain and watch.

On November 11, 1994, the defendant drove the victim and two of their children to the North Avenue apartment. En route, the defendant asked the victim if she would come back and live with him, and the victim refused. When the family arrived at the apartment, the victim began to pack the children’s clothes. While the defendant, the victim, two of their children, and the defendant’s stepdaughter were in a bedroom in the apartment, the defendant again asked the victim whether she would return to live with him. The victim again refused, whereupon the defendant retrieved the gun, returned to the bedroom and shot the victim four times.

Later that day, the defendant surrendered to the police in Brooklyn, New York. He admitted buying the murder weapon on the street for $150. He stated that he was in love with his wife but that he felt she was having affairs with other men. He claimed that he shot the victim when she told him she would no longer let him see their children. At trial, the defendant presented evidence that he suffered severe brain damage as a result of an automobile accident and that this injury affected his self-control. This, combined with the fear of losing his children, precipitated the shooting.

I

The defendant first claims that the trial court improperly denied his request to charge the jury on the lesser included offenses of manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide. We note at the outset that manslaughter in the first and second degrees and criminally negligent homicide are lesser included offenses within the crime of murder. State v. Edwards, 214 Conn. 57, 63, 570 A.2d 193 (1990).

“ ‘There is no fundamental constitutional right to a jury instruction on every lesser included offense’; State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980); rather, the right to such an instruction is purely a matter of our common law. ‘A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.’ Id., 588.” State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996).

As required by Whistnant, we first consider whether the defendant’s request to charge constituted an appropriate instruction. “A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book § 854.” (Internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. 261. At the time of the trial in this case, § 854 provided in relevant part that “[w]hen there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based and, the evidence to which the proposition would apply . . . .” “We have held that, in the context of a written request to charge on a lesser included offense, this requirement of § 854 [that the request state the supporting evidence] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested. . . . State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990).” (Internal quotation marks omitted.) State v. Tomasko, supra, 261-62.

The defendant’s written request to charge on the lesser included offenses was a mere recitation of the pertinent statutory sections. The defendant simply asked the court to instruct the jury that it could consider the lesser included offenses of manslaughter in the first and second degrees and criminally negligent homicide. The defendant did not include any citation of authority or enumerate those facts that he believed supported the requested charge. His failure to do so is fatal to his claim. See State v. Ostroski, 201 Conn. 534, 558-59, 518 A.2d 915 (1986); State v. McIntosh, 199 Conn. 155, 159, 506 A.2d 104 (1986). The request in this case, like the request in State v. McIntosh, supra, 161, “contains nothing more than a skeletal list of statutory subsections.” “While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved . . . the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. The minor burden of cooperation imposed by [Practice Book § 854] is neither unreasonable nor novel.” (Internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. 262.

The defendant argues that although the request to charge was not supported by a detailed statement of facts, it is nonetheless improper for a court to fail to charge on lesser included offenses when warranted by the evidence. The defendant contends that there was significant evidence before the trial court to support the requested charge. Specifically, the defendant contends that there was evidence at trial that he suffered brain damage as a result of a motor vehicle accident. He points out that his ability to form the specific intent necessary for the crime of murder was an issue in the case on the basis of this evidence. Accordingly, he argues that the court should have instructed the jury on the lesser included offenses for the same reasons it instructed the jury on the defenses of diminished capacity and extreme emotional disturbance. In this regard, we note again that “[t]here is no fundamental constitutional right to a jury instruction on every lesser included offense suggested by the evidence . . . . It is therefore incumbent on the defendant to request such an instruction.” State v. Whistnant, supra, 179 Conn. 583. Moreover, we are not persuaded that a trial court’s awareness of the factual basis for a requested charge, even if proven, constitutes an acceptable alternative to a party’s compliance with the rules of practice. See State v. Ramirez, 16 Conn. App. 284, 289, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988). The defendant failed to make a proper request for an instruction on the lesser included offenses under the first prong of Whistnant. Accordingly, the trial court’s refusal to charge was justified.

II

The defendant next claims that the trial court improperly admitted into evidence statements of the victim that either constituted hearsay or were irrelevant. We agree with the defendant, but conclude that the introduction of the victim’s statements was harmless.

The facts relevant to this claim are as follows. Officer Kubel testified on direct examination by the state that when he was dispatched to the Sheridan Street apartment on the evening of November 10,1994, he observed that the victim had a scratch and a bruise on her left cheek. When he later met with the defendant at police headquarters, he obseived that the defendant’s clothing was torn and noted that the defendant complained that the victim had ripped his gold chain and watch off of him.

On cross-examination, Kubel testified that the defendant was not under arrest on November 10 and that he did not place him under arrest or apply for an arrest warrant. At the conclusion of cross-examination, the state made an offer of proof that it would seek to elicit from Kubel on redirect examination the substance of his conversation with the victim. The state represented that Kubel would testify that the victim told him that the bruise and scratch were sustained two days earlier. Kubel would also testily that infliction of this injury constituted a misdemeanor and that he could not make a warrantless arrest on a misdemeanor two days after the incident.

The defendant objected to the admission of the victim’s statement to Kubel on the ground that it was inadmissible hearsay. The defendant argued that the statement constituted an accusation against him on which there could be no confrontation. The defendant also argued that even if Kubel did not identify the defendant as the source of the injury, the victim’s statements still would be inadmissible because, in that case, the testimony regarding the injury would be irrelevant. The state argued that although the statement constituted hearsay, it was admissible to show Kubel’s state of mind. The state also argued that it should be permitted to examine Kubel in the manner suggested because on cross-examination the defense raised the issue of why there was no arrest. The defendant argued that Kubel’s state of mind was irrelevant. The trial court overruled the defendant’s objection and the state asked the following question of Kubel: “On cross-examination [defense counsel] asked you a question whether you had made an arrest, and you responded no. Would you tell the members of the jury why there was no arrest made that night, please?” Kubel responded: “Yes, because [the victim] stated that the assault took place and the bruises she sustained on her cheek occurred two days prior, on the 8th, and that’s a misdemeanor, and you can’t make a warrantless misdemeanor arrest two days later.”

“It is an elementary premise of evidentiary law that a statement made out-of-court that is offered to establish the truth of the facts contained in the statement is hearsay. ... A statement that is offered to show its effect upon the hearer, however, is not hearsay.” (Citations omitted; internal quotation marks omitted.) State v. Robinson, 213 Conn. 243, 258-59, 567 A.2d 1173 (1989). According to the state, the substance of Kubel’s conversation with the victim was offered to show the effect that the statement had on Kubel, namely, why he did not arrest the defendant for assault. Accordingly, the statement was not hearsay. It was, however, inadmissible. “Evidence is only admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case.” Id., 259. Neither Kubel’s state of mind nor his subsequent conduct was in issue in the case. The fact that Kubel did not arrest the defendant or apply for an arrest warrant does not tend to establish whether the defendant was guilty of murder. See id.

Although we find that the trial court improperly admitted this evidence, the question remains whether the admission was harmful. “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. . . . The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Citation omitted; internal quotation marks omitted.) State v. Robinson, supra, 213 Conn. 259. The defendant makes no showing of how the admission of Kubel’s statement affected the result in this case. Furthermore, the defendant “opened the door” to this subject on cross-examination when he asked Kubel whether he made an arrest of the defendant after the events of November 10, 1994. “[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); State v. Crowley, 22 Conn. App. 557, 562, 578 A.2d 157, cert. denied, 216 Conn. 816, 580 A.2d 62 (1990). The defendant has failed to meet his burden and we find that his second claim on appeal fails.

Ill

In his final claim, the defendant asserts that the court improperly admitted evidence of prior acts of abuse inflicted by the defendant against the victim. The state offered the testimony of the defendant’s son, J, on this issue. On cross-examination, J testified that although he knew his father was looking for the victim and the children, he did not tell him that they were staying at the Sheridan Street apartment. On redirect examination, the state asked J if he had a reason not to tell his father, and J responded that he did. Upon further questioning by the state, J testified that he had seen his father hit the victim “many times” and that was the reason he did not tell his father where the victim and the children were staying.

“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible.” (Internal quotation marks omitted.) State v. Harris, 43 Conn. App. 830, 835, 687 A.2d 544 (1996). “The rationale of [the rule preventing evidence of guilt of other crimes] is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged.” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 161, 665 A.2d 63 (1995). “We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony.” (Citations omitted; internal quotation marks omitted.) State v. Harris, supra, 836. “To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant. . . to at least one of the . . . exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the . . . evidence.” (Citation omitted; internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 425, 630 A.2d 1043 (1993).

Prior to the commencement of the state’s redirect examination of J outside the presence of the jury, the state alerted the court to its intention to ask J why he did not tell the defendant that the victim and the three children were staying at the Sheridan Street apartment. The defendant objected, arguing that to the extent this question elicited evidence of the defendant’s prior misconduct, it was irrelevant and highly prejudicial. The court noted, however, that, since the defendant was not contesting the fact that he shot and killed the victim, J’s testimony regarding acts of prior misconduct by the defendant toward the victim would not prejudice the defendant on that issue. The court observed that the evidence might in fact support the defendant’s defense of extreme emotional disturbance. The court then added: “And it could be just it’s motive and it may show intent to kill. It may show predisposition. ... I mean, after all, he is charged with murder here. And if it’s alleged and conceded that he took a gun and fired three bullets into this woman and left her dying in a closet, I don’t know why collateral issues can’t be addressed to show the motivation, predisposition to do that.” In overruling the defendant’s objection, the court permitted the state to ask J the limited question of why he did not tell the defendant where the victim and children were staying, but prohibited the state from inquiring about specific acts of abuse by the defendant of which J was aware and about those acts that were remote in time.

The defendant contends that the purpose of the state’s inquiry was to show J’s state of mind, which was not relevant to any of the exceptions for admission of prior acts of misconduct. He contends further that the admission prejudiced his defense of extreme emotional disturbance by portraying him as a wife abuser, and that this prejudice substantially outweighed the probative value of J’s state of mind.

It appears that the trial court determined that J’s testimony was relevant to at least one of the circumstances encompassed by the exceptions to the rule against admissibility of evidence of prior uncharged acts of misconduct, such as motive or intent. The problem here is that the evidence was not offered for that purpose. “The degree to which any evidence is material and relevant must be assessed in light of the fact or issue that it was intended to prove.” State v. Geyer, 194 Conn. 1, 7, 480 A.2d 489 (1984). According to the state, the purpose of J’s testimony was both to explain why J did not tell the defendant where the victim was and to demonstrate the defendant’s state of mind at the time of the victim’s death. While we question whether J’s state of mind was relevant to any issue in the case, the defendant’s state of mind was relevant. Although the defendant did not contest that he shot and killed the victim, he raised the defense of extreme emotional disturbance, to which issues of motive and intent are relevant.

When relevant evidence of other crimes is offered, “the trial court must still consider whether its prejudicial tendency outweighs its probative value before ruling upon its admissibility.” (Internal quotation marks omitted.) State v. Braman, 191 Conn. 670, 676, 469 A. 2d 760 (1983). Because of the difficulties inherent in this balancing process, we will uphold the trial court’s ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion or an injustice appears to have been done. Id.; State v. Harris, supra, 43 Conn. App. 837. The trial court limited the scope of the state’s inquiry, thereby lessening any potentially prejudicial impact of the evidence. We conclude that the trial court did not abuse its discretion in admitting J’s testimony.

Assuming, arguendo, that J’s testimony was improperly admitted, we find that its admission was harmless in light of other evidence of abusive conduct by the defendant. “ ‘It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.’ ” Higgins v. Karp, 243 Conn. 495, 506, 706 A.2d 1 (1998). “The question is whether the claimed erroneous action of the trial court is likely to have affected the result of the trial. ” State v. Marshall, 45 Conn. App. 66, 78, 694 A.2d 816, cert. granted on other grounds, 241 Conn. 925, 697 A.2d 361 (1997). “ ‘One factor to be considered in determining whether an improper ruling on evidence is a harmless error is ‘whether the testimony was cumulative’ . . . .” State v. Wearing, 46 Conn. App. 741, 756, 701 A.2d 41, cert. denied, 243 Conn. 937, 702 A.2d 645 (1997), quoting State v. Milner, 206 Conn. 512, 529, 539 A.2d 80 (1988).

James Merikangas, a medical expert who testified to the defendant’s brain damage and offered his opinion regarding whether the circumstances surrounding the shooting affected the defendant’s capacity for self-control, testified on cross-examination to his knowledge of prior assaultive conduct by the defendant against both the victim and the defendant’s ex-wife. Thus, J’s testimony that he saw the defendant hit the victim at times in the past was merely cumulative of other validly admitted, unobjected to evidence. See State v. Gonzales, 186 Conn. 426, 430 n.2, 441 A.2d 852 (1982) (admission of hearsay evidence, although potentially prejudicial, not harmful because cumulative of that previously and properly given). Accordingly, we reject the defendant’s claim that the trial court’s admission of J’s testimony was harmful.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-ii4a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be delermined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when . . . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       General Statutes § 53a-58 (a) provides: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, except where the defendant caused such death by a motor vehicle.”

       Practice Book § 854 was amended, effective October 1, 1996, to require a statement of essential facts only if requested by the court.

       The defendant’s request to charge stated the following: “The defendant requests that the court instruct the jury on the following lesser included offenses, in addition to the lesser included offense of manslaughter under Section 53a-55 (a) (2):
      “(1) Manslaughter in the first degree, Connecticut General Statutes Section 53a-55 (a) (3): ‘(a) a person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.’
      “(2) Manslaughter in the second degree, Section 53a-56 (a) (1): ‘(a) A person is guilty of manslaughter in the second degree when: (1) he recklessly causes the death of another person . . . .’
      “(3) Criminally negligent homicide, Connecticut General Statute Section 53a-58 (a): ‘(a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person ....’”

       Although the trial transcript reveals that the defendant asserted that admission of the victim’s statement violated his constitutional right to confront witnesses against him, he did not address this claim on appeal.

       The state asked the following questions and elicited the following answers from the defendant’s son:
      “[Assistant State’s Attorney]: Mr. Vega, Attorney Meehan, who is the lawyer that asked you questions besides myself, asked you on what’s called cross-examination if you had called your father and told him that the children and [the victim] were at the house on either Thursday or Friday after they came on Wednesday. Do you remember him asking those questions?
      “A. Excuse me?
      “Q. Do you remember the lawyer asking you those questions? In other words, did you call your father on Thursday after Carmen had come to the house with the children? Do you remember that question and your answer was that you didn’t?
      “A. I didn’t.
      “Q. Okay. Was there a reason why you didn’t tell your father—and the question is going to be a yes or no answer at this point—is there a reason why you didn’t tell your father that Carmen and the children were at your house on the Thursday or Friday?
      “A. I don’t understand. What you saying?

        “Q. Was—what I want to know is, did you have a reason why you didn’t tell your father that Carmen, who was killed, and the children were at your house on Sheridan Street?
      “A. Yes.
      “Q. Okay. And was that reason because of your observations of the physical relationship—in other words, how Carmen Vega and your father, Funda-dor Vega, were?
      “A. I don’t—I didn’t hear.
      “Q. Do you understand? Okay. Let me ask you this way. Did you ever see your father hit Carmen Vega before—
      “[Defense Counsel]: Objection. Leading, Your Honor—
      “Q.—she moved to the house?
      “The Court: Well, it’s a yes or no answer. Overruled.
      “[Assistant State’s Attorney]: Did you ever see your father hit Carmen Vega before she came to the house?
      “A. Yes.
      “Q. And how many times did you see that happen?
      “A. Seen it many times.
      “Q. And did that affect you—in other words, was that any reason why you didn’t [tell] your father where Carmen was?
      “A. Yes.”