author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. HERBERT L. JACKSON
    (AC 22150)
    Dranginis, Flynn and Bishop, Js.
    Argued November 22, 2002
    officially released March 18, 2003

      Alison R. Lanoue, with whom, on the brief, was William A. Snider, for the appellant (defendant).

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

DRANGINIS, J.

The defendant, Herbert L. Jackson, appeals from the judgment of conviction, rendered after a jury trial, of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (4), conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-101, and conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-135. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal because there was insufficient evidence to sustain the jury’s verdict and (2) instructed the jury regarding the law on consciousness of guilt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the first week of January, 1996, the victims J, V and V’s one year old son moved into a new apartment. Snow had fallen that day and the streets were slippery with ice, causing their rented moving truck to get stuck in the snow. Thereafter, the two women went across the street to a convenience store to get help unloading their heavy pieces of furniture from the truck. A store clerk offered to drive them to a nearby community center to get the defendant, who was the clerk’s brother, to help move the furniture. Shortly thereafter, the defendant and his cousin, who also had agreed to help, began moving the furniture. As the snowfall increased, they stopped moving the furniture, and the defendant drove the women to their former apartment. A few minutes later, the defendant returned and explained that his car was stuck in the snow and asked the victims if he could use their telephone to call for assistance. After using the telephone, the defendant asked J if he could have her puppy as payment for moving the furniture. She told the defendant no, but that she would get him another dog from the same litter. The following day, J left the apartment and returned to discovered that the puppy was missing. She then went to the convenience store and asked the clerk to tell the defendant that she wanted him to return the dog.

On January 8, 1996, J and V, who were then sixteen and eighteen years old, respectively, invited a female friend, M, and two males, R, who is V’s cousin, and T, to their apartment to socialize. At some point, J, M and R got hungry and decided to go across the street to a McDonald’s restaurant to get something to eat. After the three left, the defendant appeared at the victims’ apartment to confront J about her accusations that he had stolen the puppy. While V and the defendant talked in the doorway, two men wearing masks, at least one of whom was armed with a gun, came up behind the defendant and forcibly pushed him forward into the apartment. Once inside, the masked men announced that it was a robbery and ordered V, her son, the defendant and T into the kitchen and to lie on the floor, where V and T were searched and robbed of their belongings. The two men then told V to take her clothes off. When she began to cry, one of the masked men hit her in the face with the handgun.

Ten minutes later, J, M and R returned to the apartment. When J knocked on the apartment door, someone inside unlocked it and, as she opened the door, one of the masked men held a gun to her face. At trial, M testified that as she walked into the apartment, she saw V crying while sitting on the kitchen floor with her pants around her ankles. At that point, the taller of the masked men forced the three to lie on the floor. Shortly thereafter, he ordered J and M to go into the child’s bedroom.

After ordering J and M to remove their clothes, the taller masked man forced them at gunpoint to perform cunnilingus on one another while he watched. J testified that at some point, the defendant walked into the bedroom and took off his jacket. He then got on his knees, and the masked man ordered J to perform fellatio on the defendant. After J tried to bite the defendant’s penis, the defendant yelled at her to stop and to “suck it right.” The defendant then pushed J onto her back and, without being told to do so by the masked man, engaged in vaginal intercourse with her. At trial, J and M testified that just before the sexual assault, the masked man told the defendant to “f-k her like she’s never been f-ked before.” During the sexual assault, the masked man ordered M to lick the defendant’s buttocks. The masked man then turned off the lights and left the bedroom, leaving M, J and the defendant in the room alone for ten minutes. Before the defendant ejaculated in J, he told her to look at his face and asked her if she wanted him to come back later that evening. T then was called into the bedroom, and the masked man grabbed him on the back of the neck and demanded that he perform cunnilingus on J and M.

Shortly thereafter, the two masked men put everyone except the defendant in the bedroom, told them to count to 100 and warned them that if they reported the incident to the police they would be killed. While the victims and their friends were waiting for the masked men and the defendant to leave, they could hear the men rummaging through the apartment as they ransacked it. The evidence established that the defendant and the others fled the scene together. A while later, the victims left the bedroom and discovered that the telephone had been ripped out of the wall. V then called the police from a neighbor’s apartment. The police arrived shortly thereafter and took J and M to a hospital, where a physician examined them and a rape counselor interviewed them.

The evidence also established that when the defendant arrived home, he neither called the police nor did he return to the victims’ apartment. Later that evening, at approximately 11 p.m., Detectives William Piascyk and Ariel Melendez interviewed the defendant in his home about the burglary, robbery and sexual assault. During their questioning, the defendant received several telephone calls from someone expressing concern about the police being at the defendant’s home. The detectives eventually asked the defendant’s father to answer the telephone. The defendant initially denied any involvement, but later stated that he had been forced to commit the sexual assault and identified his cousin, Melvin Flowers, and uncle, Steve Harrington, as those who were involved. The following day, the defendant went to the police station where he gave a voluntary statement.

In April, 1996, the defendant was arrested and charged in a three count substitute information with aggravated sexual assault in the first degree, conspiracy to commit burglary in the first degree and conspiracy to commit robbery in the second degree. The jury found him guilty as charged on all three counts. At the sentencing hearing, the court merged the conviction on the conspiracy charges and imposed a fifteen year sentence of imprisonment on them. In addition, the defendant was sentenced to twenty years imprisonment on the aggravated sexual assault count, to run consecutively to the conspiracy sentence, for a total effective sentence of thirty-five years imprisonment. The defendant’s subsequent motions for a judgment of acquittal as to both charges and for a new trial were denied. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because there was insufficient evidence to sustain his conviction. We disagree.

Preliminarily, we note that “[t]he standard of appellate review of a denial of a motion for a judgment of acquittal [challenging the sufficiency of the evidence] has been settled by judicial decision. . . . The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. . . . The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict. . . .

“[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. ... It is uniquely the province of the trier of fact, in this case the jury, to determine the import of the evidence by gauging the credibility of the witnesses. . . . The fact that certain testimony is uncorroborated, or even contradicted, does not make it insufficient to support a verdict if the testimony is believed by the trier.” (Citations omitted; internal quotation marks omitted.) State v. Arceniega, 73 Conn. App. 288, 293-94, 807 A.2d 1028 (2002).

A

We first turn to the defendant’s argument that the evidence presented at trial was insufficient to support his conviction for aggravated sexual assault in the first degree. In support of his argument, the defendant contends that the state could not prove its charge beyond a reasonable doubt because the masked man in the kitchen did not do anything to aid the defendant in the sexual assault of J nor was that masked man actually present during that assault. We are unpersuaded.

To convict the defendant of aggravated sexual assault in the first degree under § 53a-70a (a) (4), the state must prove beyond a reasonable doubt that the defendant was “aided by two or more other persons actually present.” The defendant concedes that one of the masked men directed the sexual activity between him and J, but argues that the state offered no proof that the masked man in the kitchen did anything to aid the defendant in the sexual assault of J. Without more, the defendant argues, the state has proven only that one person aided him in the sexual assault. The defendant further argues that because the phrase “actually present” is not defined in § 53a-70a, its ordinary meaning clearly conveys that because one of the masked men was in another room, he could not be “actually present” during the sexual assault of J.

The defendant correctly points out that we have not previously addressed what constitutes “actually present” for the purposes of § 53a-70a (a) (4). In construing the meaning of terms in a statute, words “must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended. . . . Where a statute does not define a term it is appropriate to look to the common understanding expressed in the law and in dictionaries.” (Citation omitted; internal quotation marks omitted.) State v. Vickers, 260 Conn. 219, 224, 796 A.2d 502 (2002).

Here, case law directs us to the ordinary meaning of “actually present.” In State v. Edwards, 201 Conn. 125, 513 A.2d 669 (1986), our Supreme Court explained that in the context of accomplice liability, the victim’s sensory perception by observation, feeling or belief is sufficient to show that the accomplice was “actually present” during the commission of the robbery. Id., 133. The defendant in Edwards was charged with one count of robbery in the second degree as an accessory in violation of “§ 53a-135 (a) (1) [which] requires that the person who commits the robbery be ‘aided by another person actually present.’ ” Id., 132. Our Supreme Court concluded that the defendant, as the driver of the getaway car, was not ‘actually present’ during the robbery because the victim was not aware of the defendant until after the commission of the robbery. Id., 134-35. Although we acknowledge that Edwards is instructive on the interpretation of “actually present,” we conclude that it is distinguishable from the facts of the present case.

The facts here indicate that J was aware of the presence of the two masked and armed men in her apartment during the robbery and sexual assault. Furthermore, the masked man in the kitchen was more than merely present innocently at the crime scene; he aided the defendant by holding the other victims at bay. In addition, the other victims were restrained from preventing the sexual assault from occurring and from calling for the emergency assistance of the police.

In the circumstances of this case, we therefore conclude that it is the victim’s objective and subjective awareness, and not the physical proximity of the perpetrator in the room where the sexual assault took place, as the defendant suggests, that controls the factual determination that the masked man in the kitchen was “actually present” during the sexual assault and that his use of force against J and her friends in the apartment contributed to her victimization.

From the cumulative effect of the evidence and the reasonable inferences drawn therefrom, we conclude that the jury reasonably could have found that the defendant was guilty of aggravated sexual assault in the first degree. Accordingly, the court properly denied the defendant’s posttrial motion for a judgment of acquittal.

B

Next, the defendant claims that the evidence adduced at trial was insufficient to support his conviction of conspiracy to commit burglary in the first degree or conspiracy to commit robbery in the second degree because the evidence failed to show that he entered into an agreement with the two masked men. The evidence indicates otherwise.

The standard of review set forth in part I A applies as well to this claim. Initially, we note that to convict the defendant of the crime of conspiracy to commit burglary in the first degree and conspiracy to commit robbeiy in the second degree, the state must establish that a conspiracy existed. “To establish the crime of conspiracy [to commit burglary and robbeiy . . . the state must show] that an agreement was made between two or more persons to engage in conduct constituting [the crimes of burglary and robbery] and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . While the state must prove an agreement [to commit burglary and robbery], 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. . . . Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 669, 804 A.2d 810 (2002).

Viewed in the light most favorable to sustaining the verdict, the record clearly establishes that the defendant entered into an agreement with the two masked men for the purpose of burglarizing the victims’ apartment, and robbing them and their Mends of any cash or jewelry they had in their possession. The jury reasonably could have inferred from the evidence that the defendant and the masked men concocted a ruse to gain entry into the victims’ apartment, whereby the defendant pretended to go to the apartment to talk to J about her accusations that he had stolen her dog. Furthermore, V testified that the defendant warned the two masked men when J and her friends returned home from the McDonald’s restaurant. The jury also heard testimony that the masked men ordered everyone but the defendant into the bedroom. Moreover, the defendant testified that when the masked men left the apartment, they somehow knew that the defendant had parked his car across the street from the victims’ apartment. Although the defendant gave testimony that contradicted the witnesses’ testimony, including his statements that he was forced to participate in the sexual assault and that he did not form a plan with the two masked men, it was within the jury’s province to believe or disbelieve any testimony, and to weigh conflicting evidence and to determine the credibility of the witnesses. See State v. Colon, 71 Conn. App. 217, 225, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

Accordingly, we conclude that there was sufficient evidence to establish that an agreement between the defendant and the two masked men existed. The court did not improperly deny the defendant’s motion for a judgment of acquittal.

II

The defendant’s final claim is that the court gave an incomplete instruction to the jury regarding the law on consciousness of guilt. Specifically, the defendant argues that the court improperly failed to remind the jury that he provided an innocent explanation for his evasive conduct. He further argues that the court’s jury instructions should have included an explanation that innocent people may have feelings of guilt. Therefore, he claims that the court’s omission made it reasonably possible that the jury was misled. We disagree.

In reviewing the defendant’s claim, we adhere to the well settled rule that “[a] jury instruction must be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.

... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Citation omitted; internal quotation marks omitted.) State v. William C., 71 Conn. App. 47, 83, 801 A.2d 823, cert. granted on other grounds, 262 Conn. 907, 810 A.2d 277 (2002).

We are also mindful that “[t]he decision whether to give an instruction on flight, as well as the content of such an instruction, if given, should be left to the sound discretion of the trial court.” State v. Hines, 243 Conn. 796, 816, 709 A.2d 522 (1998).

The defendant acknowledges in his brief that challenges concerning his proposed instruction have been rejected by this court and by our Supreme Court. He asks us, nevertheless, to reconsider previous decisions that have rejected challenges similar to the one that he has raised. See State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986); State v. Watts, 71 Conn. App. 27, 35, 800 A.2d 619 (2002); State v. Holmes, 64 Conn. App. 80, 88, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001). We decline the defendant’s invitation to depart from well established precedent.

Accordingly, because the defendant’s request to charge was an inaccurate statement of the applicable law and because the court’s jury instructions, taken as a whole, were correct in law, we conclude that the court properly refused to give the excluded portion of the defendant’s requested charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70a (a) provides in relevant part: “A person is guilty of aggravated sexual assault in the first degree when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense ... (4) such person is aided by two or more other persons actually present. ...”

       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-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

         General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and ... (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

       In accordance with our policy to protect the privacy interests of the victims of sexual abuse, we decline to identify the victims or others through whom the victims’ identity may be revealed. See General Statutes § 54-86e.

       At trial, the defendant claimed that he gave the two names only after the detectives questioned him about who kept calling him.

       Our Supreme Court has further explained that it is not necessary to prove that an accused was actually present at or actively involved in the actual commission of a crime to sustain a conviction under the accessory statute, General Statutes § 53a-8. Proof that the accused intentionally assisted in the commission of the crime is sufficient. See State v. Haddad, 189 Conn. 383, 400, 456 A.2d 316 (1983); see also State v. Edwards, supra, 201 Conn. 135, citing State v. Miller, 14 Or. App. 608, 513 P.2d 1199, 1201 (1973), for the proposition that the element of “actually present” was proven when the defendant was aided by another person “standing in the parking lot twenty-five feet from the victim whom she observed during the course of the attack." (Emphasis in original.)


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    KAREN BERGIN v. DEPARTMENT OF CORRECTION
    (AC 22311)
    Lavery, C. J., and Foti and Schaller, Js.
    Submitted on briefs December 10, 2002
    officially released March 18, 2003

      Barry D. Guliano filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and William J. McCullough and Philip M. Schulz, assistant attorneys general, filed a brief for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Karen Bergin, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) denying her motion, filed pursuant to General Statutes § 31-315, to open the commissioner’s decision denying her claim for benefits. We affirm the decision of the board.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. The plaintiffs late husband, Donald Bergin, Jr. (Bergin), began working for the defendant state of Connecticut in the department of correction in 1974. He initially was employed as a correction officer and subsequently was promoted to lieutenant and then captain. He maintained an active lifestyle and exercised regularly. On June 30, 1997, he voluntarily retired and accepted an enhanced pension package offered by the defendant. At the time of his retirement, Bergin was forty-five years old. On September 16, 1997, he suffered a heart attack while jogging. He died shortly thereafter. At the time of his death, he was survived by the plaintiff and their four children.

The plaintiff filed a claim with the commissioner seeking benefits under four different theories. The plaintiff sought benefits pursuant to General Statutes §§ 5-145a 31-306 and 31-284. The plaintiff also filed a claim for benefits on the basis of repetitive trauma. The essence of the repetitive trauma claim was that the daily stress caused by Bergin’s employment duties caused him to suffer from hypertension, which was a substantial factor in his subsequent heart attack. On December 3, 1999, the commissioner issued his findings. The commissioner concluded that Bergin was not an employee at the time of his death and, therefore, not eligible for workers’ compensation benefits. The commissioner therefore dismissed the plaintiffs claim and declared that the other issues she had raised were moot.

On February 4, 2000, the plaintiff, pursuant to § 31-315, filed a motion to open the December 3, 1999 decision. She argued that the commissioner addressed only her § 5-145a claim and failed to address the remaining claims. The defendant filed a motion in opposition, and the commissioner denied the plaintiffs motion to open on March 8, 2000.

The plaintiff appealed to the board from the commissioner’s denial of the motion to open. At the hearing, the plaintiff conceded that she could not prevail on the § 5-145a claim because Bergin died after he retired from his employment with the state. See Gorman v. Waterbury, 4 Conn. App. 226, 231-32, 493 A.2d 286 (1985). The board issued its written decision, denying the plaintiffs appeal. The board limited its review to the commissioner’s denial of the motion to open. The board concluded that the commissioner did not abuse his discretion in denying the plaintiffs motion because the commissioner addressed all of the plaintiffs claims for benefits. The board also stated that the plaintiff had failed to provide any medical evidence to a reasonable degree of medical certainty that the decedent’s employment activities caused his hypertension and subsequent fatal heart attack. The plaintiff now appeals from the board’s decision.

At the outset, we note the limited scope of review that the procedural posture of this case affords us. The plaintiff never filed a motion to correct the findings of the commissioner; therefore, she is unable to challenge those findings now. See Krevis v. Bridgeport, 63 Conn. App. 328, 334-35, 777 A.2d 196 (2001). Moreover, the plaintiff never directly appealed to the board from the commissioner’s dismissal pursuant to General Statutes (Rev. to 1997) § 31-301. Our review, therefore, is limited to the issue of whether the board properly affirmed the commissioner’s decision to deny the plaintiffs motion to open.

The defendant argues that the board’s decision should be affirmed because § 31-315 is not applicable to this case. Specifically, the defendant contends that the plain language of § 31-315 limits its applicability to cases in which there is an “award” or “voluntary agreement” and, in the present case, the commissioner dismissed the plaintiffs claims. We disagree.

We note that “[i]t is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Citations omitted; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 798, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).

Although the issue of whether § 31-315 applies in situations where the commissioner has denied the claim for workers’ compensation benefits has not been subjected to judicial review, we recognize that it has been addressed by the board. In Murray v. Black Tie Limousine, No. 3306 CRB-3-96-3 (August 21, 1997), the commissioner dismissed a claim for benefits after the claimant’s attorney failed to appear at the formal hearing. The attorney subsequently filed a motion to open pursuant to § 31-315, which the commissioner granted. The respondent employer and insurer appealed to the board, arguing that § 31-315 applies only in those cases involving an award of compensation or a voluntary agreement, not those in which an order of dismissal was entered. The board disagreed with the respondents’ interpretation for several reasons.

First, the board noted that the plain language of the statute grants the commissioner the same power as any court to open or to modify a judgment in addition to the authority to open an award or voluntary agreement. Furthermore, the board relied on the last sentence of § 31-315, which provides that the commissioner shall retain jurisdiction over “claims for compensation, awards and voluntary agreements” during the entire compensation period. Last, the board observed that § 31-301, which provides an avenue for the direct appeal from an award by the commissioner, does not mention dismissal orders. If the board accepted the respondents’ argument, the bizarre result of leaving the claimant without any right to appeal would occur. The board concluded that “it is apparent from a common-sense reading of the statute that ‘award’ encompasses dismissal orders as well as orders to pay compensation.” Murray v. Black Tie Limousine, supra, No. 3306 CRB-3-96-3. The board reached a similar result in Aubin v. Union City Steel, No. 03463 CRB-07-96-11 (May 14, 1998).

Although we are not bound by the board’s intexpretation of § 31-315, we agree with its decisions in Murray and Aubin. We are mindful of the “principles underlying Connecticut practice in [workers’] compensation cases: that the legislation is remedial in nature . . . and that it should be broadly construed to accomplish its humanitarian purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation.” (Internal quotation marks omitted.) Daubert v. Naugatuck, 71 Conn. App. 600, 608, 803 A.2d 343, cert. granted on other grounds, 261 Conn. 942, 808 A.2d 1135 (2002). We conclude, therefore, that § 31-315 is applicable in cases in which the commissioner has denied benefits to a claimant.

We now address the issue of whether the board properly affirmed the commissioner’s decision to deny the plaintiffs motion to open. As a preliminary matter, we identify the apphcable standard of review. The decision to open an award is within the discretion of the commissioner. Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541, 612 A.2d 1222 (1992).

Our Supreme Court has stated that “[although the commission may modify awards under certain circumstances, its power to do so is strictly limited by statute.” Marone v. Waterbury, 244 Conn. 1, 15, 707 A.2d 725 (1998). “Section 31-315 allows the commission to modify an award in three situations. First, modification is permitted where the incapacity of an injured employee has increased, decreased or ceased, or . . . the measure of dependence on account of which the compensation is paid has changed .... The plaintiff has not alleged that either of these contingencies has occurred. Second, the award may be modified when changed conditions of fact have arisen which necessitate a change of [the award]. The plaintiff has pointed to no change of fact necessitating a change in the original award. Third, [t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. This provision extends the commission’s power to open and modify judgments to cases of accident . . . to mistakes of fact . . . and to fraud . . . but not to mistakes of law. . . . This provision, however, does not independently confer authority to modify awards for reasons not otherwise enumerated in § 31-315.” (Citations omitted; internal quotation marks omitted.) Id., 16-17.

In the present case, the first two situations for which the commissioner has the authority to modify an award are inapplicable. The issue, therefore, is whether the commissioner had the authority under the third ground to open the order of dismissal. Our Supreme Court has stated that “[t]his provision extends the commission’s power to open and modify judgments to cases of accident; Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 188, 123 A. 9 (1923); to mistakes of fact; Fair v. Hartford Rubber Works Co., 95 Conn. 350, 355, 111 A. 193 (1920); and to fraud; Grabowski v. Miskell, 97 Conn. 76, 84, 115 A. 691 (1921); but not to mistakes of law.” Marone v. Waterbury, supra, 244 Conn. 17. Our review of the record does not reveal any accident, mistake of fact or fraud.

The plaintiff also argues that the principles of equity require the reversal of the board’s decision. “In discussing the power to grant equitable relief, our Supreme Court has stated that [c]ourts of equity may grant relief from the operation of a judgment when to enforce it is against conscience, and where the appellant had no opportunity to make defense, or was prevented from so doing by accident, or the fraud or improper management of the opposite party, and without fault on his [or her] own part. . . . Fraud, accident, mistake, and surprise are recognized grounds for equitable interference, when one, without his [or her] own negligence, has lost an opportunity to present a meritorious defense to an action, and the enforcement of the judgment so obtained against him [or her] would be against equity and good conscience, and there is no adequate remedy at law. . . . Equity will not, save in rare and extreme cases, relieve against a judgment rendered as the result of a mistake on the part of a party or his [or her] counsel, unless the mistake is unmixed with negligence .... [T]he rule is founded on the necessity of the case; for if it was otherwise, petitions to set aside or enjoin judgments at law would become too common, and a court of equity be compelled generally to revise decisions at law which on legal principles should be final.” (Citations omitted; internal quotation marks omitted.) O’Neil v. Honeywell, Inc., 66 Conn. App. 332, 338-39, 784 A.2d 428 (2001), cert. denied, 259 Conn. 914, 792 A.2d 852 (2002).

In the present case, the plaintiff failed to file a motion to correct the commissioner’s findings or to file a direct appeal from the commissioner’s dismissal of the claim for benefits. It appears that the board’s decision was a result of the plaintiffs failure to utilize her available procedural options. We conclude, therefore, that the plaintiff is not entitled to equitable relief.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 5-145a provides in relevant part: “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to a member of . . . state personnel engaged in guard or instructional duties in the Connecticut Correctional Institution, Somers, Connecticut Correctional Institution, Enfield-Medium, the Carl Robinson Correctional Institution, Enfield, John R. Manson Youth Institution, Cheshire, the Connecticut Correctional Institution, Niantic, the Connecticut Correctional Center, Cheshire, or the community correctional centers . . . who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568, except that for the first three months of compensability the employee shall continue to receive the full salary which he was receiving at the time of injury in the manner provided by the provisions of section 5-142. Any such employee who began such service prior to June 28,1985, and was not covered by the provisions of this section prior to said date shall not be required, for purposes of this section, to show proof that he successfully passed a physical examination on entry into such service.”

       General Statutes § 31-306 (a) provides in relevant part: “Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease . . .

       General Statutes § 31-284 (a) provides: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the iqjury or from enforcing any agreement for additional compensation.”

       The plaintiff testified that Donald Bergin, Jr., did not develop hypertension until after he started working as a correction officer. Donald S. Gross-man, a board certified physician in internal medicine, treated Donald Bergin, Jr., for hypertension from 1976 until 1994. Grossman testified that protracted periods of stress from employment could cause hypertension. Grossman also stated that in his opinion, to a reasonable degree of medical certainty, stress from Donald Bergin, Jr.’s job was a substantial factor in causing his hypertension, and the hypertension was a substantial factor in causing his heart attack.

       The plaintiff failed to file a motion for a correction of finding pursuant to § 31-301-4 of the Regulations of Connecticut State Agencies. The plaintiff, therefore, is unable to challenge the findings of fact on appeal. See Krevis v. Bridgeport, 63 Conn. App. 328, 334-35, 777 A.2d 196 (2001).

       General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”

       In its written decision, the board used the term “motion to reopen.” We note that because the decision had never been opened, the appropriate term is a motion to open. See Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 537 n.1, 612 A.2d 1222 (1992); National Iron Bank v. Gelormino, 28 Conn. App. 7, 8 n.1, 609 A.2d 666 (1992).

       See footnote 5.

       General Statutes (Rev. to 1997) § 31-301 (a) provides in relevant part: “At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board . . . .”


author: PETERS, J.

text:
    LESLIE A. HARLAN ET AL. v. NORWALK ANESTHESIOLOGY, P.C., ET AL.
    (AC 22039)
    Lavery, C. X, and Dranginis and Peters, Js.

      Argued December 3, 2002
    officially released March 18, 2003

      James R. Fogarty, with whom, on the brief, was Carolyn Alexander Collins, for the appellants (plaintiffs).

      Frank W. Murphy, with whom was Kara A. T. Murphy, for the appellee (defendant Norwalk Hospital Association).

      Robert J. Cooney, with whom was Suzannah K. Nigro, for the appellees (named defendant et al.).
   Opinion

PETERS, J.

This case concerns the tragic circumstances of a new mother who, immediately after giving birth to a healthy baby, suffered a stroke that left her with severe physical and psychological handicaps. The underlying issue is whether a jury reasonably could have found that her stroke resulted from a preexisting brain defect rather than from the malpractice of her anesthesiologist. This issue comes to us by way of challenges to the instructions that the trial court gave to the jury and to the restraints that the court imposed on closing argument. The trial court accepted the verdict of the jury in favor of the anesthesiologist, denied the mother’s motion to set the verdict aside and rendered a judgment accordingly. The mother and her husband have appealed. We affirm the judgment of the trial court.

The plaintiff, Leslie A. Harlan, and her husband, Scott Spector, an ophthalmologist, filed an eight count complaint against a number of defendants, including Richard Hughes, her attending anesthesiologist, and his employer, Norwalk Anesthesiology, P.C. Each of the defendants denied liability. A jury, in response to an interrogatory, found that Hughes was not liable for malpractice because he had not deviated from the standard of care of an anesthesiologist entrusted with the care and treatment of the plaintiff.

On appeal, the plaintiff challenges (1) the instructions of the trial court with respect to learned treatises and to statements that allegedly were admissions and (2) the limitations that the court imposed on closing argument by the plaintiffs counsel, including the court’s ruling that Hughes and Norwalk Anesthesiology, P.C., were not, as a matter of law, agents of the defendant Norwalk Hospital Association (Norwalk Hospital). If the court engaged in some reversible error, we must then consider (3) whether the plaintiffs malpractice action was barred by the plaintiffs failure to produce an expert to rebut Hughes’ expert testimony about the cause of the plaintiffs injury.

The jury reasonably could have found the following facts. On the morning of March 7, 1995, the plaintiff was admitted to Norwalk Hospital because she was suffering labor pains associated with her pregnancy. At 6 p.m., because of signs of mild fetal distress, her obstetricians decided to perform a cesarean section rather than allowing normal vaginal delivery. During the operation, which began twenty minutes later, the plaintiffs blood pressure decreased. To remedy this situation, Hughes gave her injections of ephedrine and robinal. As a result, her blood pressure rose beyond what it should have been. In response, Hughes gave the plaintiff an injection of labatelol, which reduced the plaintiffs blood pressure to a normal range.

A healthy baby was delivered at 6:28 p.m. and was greeted joyfully by the plaintiff and her husband. At 7:05 p.m., accompanied by Hughes, her obstetrician and a nurse, the plaintiff was moved to a recovery room. Her blood pressure was somewhat high. Although she complained of a headache, she otherwise was behaving normally. She was alert, her color was good, and she was not slurring her words.

At 7:15 p.m., after transferring the plaintiffs care to another anesthesiologist, Hughes left the hospital. The nurse left fifteen minutes later, after having checked on the plaintiffs condition and having observed that the plaintiff was not demonstrating any difficulty.

At 7:30 p.m., the plaintiff suffered a stroke. Hughes immediately ordered a CT scan and returned to the hospital.

Later tests established that the plaintiff had a congenital defect in the blood vessels on the left side of her brain. These blood vessels burst as a result of hormonal and fluid changes that are released into a woman’s system after childbirth. According to several defense experts, this congenital brain defect, rather than changes in her blood pressure, caused the stroke.

The plaintiff introduced no expert testimony to the contrary. Although many experts testified on her behalf, they questioned the propriety of the injections that were intended to stabilize her blood pressure but did not discredit the tests that established her congenital brain defect. The plaintiff has not alleged that she was surprised by the disclosure of these tests or by expert testimony describing the linkage between her brain defect and her stroke. Indeed, in her reply brief she concedes that the trial court admitted into evidence all that she had sought to introduce.

I

We turn first to the plaintiffs disagreement with the court’s instructions to the jury. In two respects, the court limited the jury’s use of certain evidence as relevant only to the jury’s evaluation of the credibility of the witnesses whom it had heard. The plaintiff argues that the juiy should have been permitted to make substantive use of (1) excerpts from a learned treatise that was an exhibit at trial and (2) inconsistent statements by defense witnesses. We will address each of these claims of impropriety separately. In the absence of essential findings of fact, we find neither claim to be persuasive.

A

The learned treatise issue arose as follows. The trial court permitted a medical treatise, Clinical Anesthesia (P. Barash, B. Cullen & R. Stoelting eds., 2d Ed. 1992), to become an exhibit at trial. Excerpts from this learned treatise discussed the management of changes in a patient’s blood pressure. The treatise did not address the management of obstetrical anesthesiology. Nonetheless, the plaintiff wanted the jury to consider these excerpts for their substantive merits rather than, as the court ruled, for their relevance to the credibility of a defense expert witness.

The plaintiff sought the admission of the learned treatise into evidence not through direct examination of her own witnesses but through cross-examination of an expert witness produced by Hughes. “Connecticut permits the introduction of professional and scientific treatises and journals on cross-examination of an expert witness to impeach the expert’s testimony if the expert has either relied on the work in direct examination or acknowledged the work as accepted by the profession. Conn. Code Evid. § 8-3 (8).” Musorofiti v. Vlcek, 65 Conn. App. 365, 383, 783 A.2d 36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001); see also Cross v. Huttenlocher, 185 Conn. 390, 395, 440 A.2d 952 (1981); C. Tait, Connecticut Evidence (3d Ed. 2001) § 7.11.2, p. 539.

The court declined the plaintiffs request that the excerpts should be made available to the jury without restriction. It ruled that they would be admissible only “for the purpose of this [j]ury assessing the credibility of this witness and the reliability of this witness’ expert testimony. It is not [for] the purpose of . . . [establishing] that the treatise creates the standard of care.”

The trial court had the authority to limit the admissibility of the excerpts from the learned treatise because the plaintiff had not satisfied the factual preconditions for their plenary consideration. The expert witness through whom the plaintiff introduced the treatise into evidence acknowledged having a copy of the treatise in his office. The court found, however, that he had not accepted the treatise as authoritative. The plaintiff has not challenged the validity of this finding.

The plaintiff maintains, however, that, as a matter of law, the trial court acted improperly because it overlooked § 8-3 (8) of the Connecticut Code of Evidence. We review issues of statutory construction in a plenary fashion. King v. Sultar, 253 Conn. 429, 437-38, 754 A.2d 782 (2000); Millward Brown, Inc. v. Commissioner of Revenue Services, 73 Conn. App. 757, 761, 811 A.2d 717 (2002).

The plaintiff cites the provision of § 8-3 (8) that permits introduction of professional and scientific treatises on cross-examination of an expert witness if the expert has either relied on the work in direct examination or acknowledged the work as accepted by the profession. This language codifies preexisting Connecticut law. Musorofiti v. Vlcek, supra, 65 Conn. App. 383. Indeed, the code in its entirety “is a restatement ... of our current evidentiary case law.” D. Borden, “The New Code of Evidence: A (Very) Brief Introduction and Overview,” 73 Conn. B.J. 210, 212 (1999).

On its face, the plaintiffs argument cannot succeed because the court found that she had not met the preconditions set out in the code. More fundamentally, however, the plaintiffs reliance on § 8-3 (8) is misplaced. She construes the code provision as stating a rule that mandates the admission of a learned treatise for substantive purposes. The code provision does not say that. The heading of § 8-3 is “Hearsay Exceptions: Availability of Declarant Immaterial.” Its opening words are: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness . . . .” (Emphasis added.) Section 8-3 (8), therefore, did not require the court to admit the learned treatise into evidence for all purposes. Section 8-3 (8) does not purport to circumscribe the discretion generally afforded to a trial court to determine the admissibility of evidence in light of the facts of record.

In sum, we conclude that the trial court had the authority to limit the admissibility of the learned treatise to use for credibility purposes. The plaintiff failed to elicit the necessary foundation for admissibility in her cross-examination of the defendants’ expert witness. She has failed to present any alternate reason that would require plenary admission of the treatise into evidence.

B

The plaintiffs alternate claim of instructional error rests on the refusal of the trial court expressly to characterize certain statements by the defendants as admissions and its consequent failure to instruct the jury that it could make substantive use of such alleged admissions. We review a court’s instructions to ascertain whether they reasonably could be said to have misled the jury. See, e.g., Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 150, 801 A.2d 775 (2002); Marchell v. Whelchel, 66 Conn. App. 574, 588-89, 785 A.2d 253 (2001). Instructions that are correct as a matter of law cannot be characterized as misleading. The charge was correct in this case because the plaintiffs claim lacked the required factual foundation. Accordingly, the plaintiff cannot prevail on this claim.

The plaintiffs argument centers on her allegation that, in various depositions and interrogatory answers, the defendants and their agents made statements about the time at which Hughes gave the plaintiff injections to stabilize her blood pressure. In her view, because this trial testimony was inconsistent with their deposition and interrogatory testimony, their statements should have been described to the jury as admissions.

The trial court unconditionally admitted the trial testimony and the deposition and interrogatory evidence. The court permitted the plaintiff to use the earlier statements in her cross-examination of defense witnesses. The court instructed the jury, however, that it could use such possible inconsistencies only to evaluate the credibility of the witnesses that it had heard. By contrast, the court instructed the jury that the plaintiffs out-of-court statements were proof of the facts described therein.

The plaintiff did not question the sufficiency of the court’s charge on inconsistent statements until the court had completed charging the jury. She acknowledged that she had not previously raised any issue with respect to this charge.

The fundamental difficulty with the plaintiffs claim, however, is not that it was made at the eleventh hour. The difficulty, instead, is that she did not provide a foundation for her claim when she made it. Her argument lacked both a legal and a factual basis. She cited no authorities in support of her objection to the trial court. She did not identify the statements that allegedly were admissions except to refer generally to the testimony of four specified defense witnesses “to the extent that there are inconsistent statements] made by them.” That was not enough. “Whether a party’s statement is a judicial admission or an evidentiary admission is a factual question for the trial court.” C. Tait, supra, § 8.16.3, p. 585; see also Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983). The plaintiff does not claim that she ever asked the trial court to make such a finding.

We conclude, therefore, that the trial court properly instructed the jury in this case. The court properly declined the plaintiffs request that the jury should be entitled to make substantive use of excerpts from a learned treatise or from alleged inconsistencies in the testimony of defense witnesses. In both respects, the court properly limited the evidence to bear- only on the credibility of the witnesses whom the jury had heard.

II

The plaintiff also claims that the verdict should be set aside because, in her view, the trial court improperly restricted her closing argument to the jury. To remand this case for a new trial, we would have to decide that the court acted in abuse of its discretion. See, e.g., Skrzypiec v. Noonan, 228 Conn. 1, 15-16, 633 A.2d 716 (1993); Marchell v. Whelchel, supra, 66 Conn. App. 586. We are persuaded that the court did not do so.

The plaintiff claims that the trial court improperly (1) restricted the time for her closing argument to one hour, (2) disallowed the presentation of an argument on adverse inferences, (3) limited the use of enlargements and (4) disallowed an argument with respect to a claim of apportionment between some of the defendants. We disagree with each of these claims.

The plaintiff claims that her malpractice case was so complex that she needed more than one hour to present it properly. She directs us to State v. Nyman, 55 Conn. 17, 18-19, 10 A. 161 (1886), which, relying on the proposition that “[f]rom time immemorial . . . each party . . . has had the privilege of being heard by two counsel,” held that a statutory one hour limit did not apply when a criminal defendant was represented by two counsel. Id. The case before us is not a criminal case, and this plaintiff did not have two counsel. More important, as best we can tell, Nyman has never been cited in any subsequent Supreme Court or Appellate Court decision for the plaintiffs proposition. The more persuasive authority is Practice Book § 15-7, which provides that “[t]he argument on behalf of any party shall not occupy more than one hour, unless the judicial authority, on motion for special cause, before the commencement of such argument, allows a longer time.” See also General Statutes § 52-209. We conclude that the trial court did not abuse its discretion in declining to find that the plaintiff had established “special cause” for a longer argument.

The plaintiff further claims that the trial court abused its discretion by denying her permission to argue, in her closing argument, that the jury should draw an adverse inference from the defendants’ failure to call certain witnesses to testify. In response to a defense motion, the court precluded the plaintiff from making this “missing witness” argument because she had failed to establish the availability of the allegedly missing witnesses. See General Statutes § 52-216c; Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 367, 805 A.2d 130 (2002); Krupien v. Rai, 56 Conn. App. 247, 249, 742 A.2d 1270 (1999), cert. denied, 252 Conn. 931, 746 A.2d 793 (2000). We agree with the court. It was not sufficient for the plaintiff to show that each of the “missing witnesses” had a valid state license that showed a state address. A license holder has no obligation to be in this state at any particular period of time.

The plaintiff also argues that the trial court abused its discretion by denying her request that, at closing argument, she be able to present enlargements of certain parts of the trial transcript. The court precluded the plaintiff from presenting the enlargements because of the plaintiffs failure to comply with the court’s order that opposing counsel be notified, in advance, of an intention to use such a demonstrative aid. The court, however, permitted the plaintiff, in her closing argument, to read from the transcript or to write excerpts out on a board in the courtroom. The plaintiff does not claim that she complied with the court’s notice order. She does not question the court’s authority to enter such an order. We are persuaded that the court did not abuse its discretion by enforcing its notice order in the manner that it did.

The plaintiffs final claim with respect to her closing argument is that she should have been permitted to inform the jury about a pending motion for apportionment of liability among the various defendants. We need not review the merits of this claim in light of our rejection of the plaintiffs other claims of impropriety. Without a persuasive argument that the jury verdict absolving Hughes was flawed, it is irrelevant that, had the outcome been different, various defendants might have had legal claims against each other.

We conclude, therefore, that the plaintiff has failed to demonstrate that the trial court improperly limited her closing argument to the jury. The court acted well within its discretionary authority to monitor the propriety of the arguments that the plaintiff sought to present to the jury.

Ill

Although we have affirmed the judgment of the trial court in all respects, it bears noting that, even if one of the plaintiffs arguments had been persuasive, she still could not have prevailed. We would have had to affirm the judgment of the court “because it reached the right result, even if it did so for the wrong reason.” Kalas v. Cook, 70 Conn. App. 477, 485, 800 A.2d 553 (2002); see also Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 151, 709 A.2d 1075 (1998).

The defendants were entitled to a judgment on then-behalf because the plaintiff failed to present an expert witness to address the relationship between her injury and her brain defect. In her appellate briefs, she has not contested the existence of this brain defect. Indeed, she has not addressed the brain defect in any fashion.

Presumably, the plaintiff expected the jury to uphold her malpractice claim of improper blood pressure treatment as the cause of her stroke, despite the existence of her brain defect. She does not maintain that, in the course of trial, she contested the existence of the brain defect. A fortiori, she presented no expert evidence that might have explained to the jury the impact of the brain defect on her claim that Hughes was guilty of malpractice. Her expert witness discussed the proper treatment for fluctuations in blood pressure and nothing else.

Our courts repeatedly have held, however, that a malpractice action can only rarely be pursued without expert evidence to educate the jury about the appropriate standard of care of a treating physician in the circumstances that the physician encountered. “The requirement of expert testimony . . . serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard. . . . Expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.” (Citation omitted; emphasis in original; internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002). “[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard.” (Internal quotation marks omitted.) Amsden v. Fischer, 62 Conn. App. 323, 331, 771 A.2d 233 (2001); see also Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). “Except in the unusual case where the want of care or skill is so gross that it presents an almost conclusive inference of want of care . . . the testimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a physician . . . and that the defendant failed to conform to that standard of care.” (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 687, 748 A.2d 834 (2000).

These precedents control this case. The jury was entitled to expert guidance about the relationship between her blood pressure irregularities, her brain defect and her stroke. Without expert testimony, the jury might well have gone astray in its assessment of whether Hughes’ conduct comported with the standard of care demanded in these circumstances. The relationship between the relevant events was not so obvious, the alleged failure to exercise due care was not so gross, that the plaintiff was relieved of the burden of providing such expert testimony.

We do not know, of course, why the jury decided, even without expert guidance, that Hughes was not liable to the plaintiff because he had not deviated from the standard of care of an anesthesiologist entrusted with the care and treatment of the plaintiff. We do know that, if the jury had decided differently, the trial court would have been required to set that verdict aside as a matter of law.

No one can learn of the plaintiffs tragic injury without compassion for her physical and mental state. Nonetheless, we conclude that the trial court properly addressed the plaintiffs instructional claims and had the authority to limit aspects of her closing argument to the jury. We further conclude that, in the absence of the requisite expert testimony, the jury had no basis for holding her anesthesiologist responsible for her stroke.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because Spector’s claim is entirely derivative of his wife’s claim, we will refer to Leslie A. Harlan as the plaintiff in the singular.

       These defendants included the plaintiffs obstetricians and the hospital where she suffered the stroke. The plaintiff settled her claim with the obstetricians before trial. Other defendants then filed notices of apportionment claims against the obstetricians. The plaintiff does not claim that any other defendant owed her any duty independent of that of Hughes and his anesthesiology private corporation.

       Jury interrogatory number one asked: “Do you find that the defendant, Dr. Richard Hughes, deviated from the standard of care in the care and treatment of the plaintiff, Leslie A. Harlan, on March 7, 1995?” The jury answered, “No.”

       Connecticut Code of Evidence § 8-3 (8) provides: “To the extent called to the attention of an expert witness on cross-examination or relied on by the expert witness in direct examination, a statement contained in a published treatise, periodical or pamphlet on a subject of history, medicine, or other science or art, recognized as a standard authority in the field by the witness, other expert witness or judicial notice.” (Emphasis added.)

       The instructional issue arose in the following procedural context. The court discussed all of its'proposed jury instructions with all counsel in a two day charge conference. Although the plaintiff, through counsel, participated in the conference, she did not raise the issue that inconsistent statements might be evidentiary admissions.

       Although two attorneys participated in the case, they were members of the same law firm.

       General Statutes § 52-209 provides in relevant part that “[i]n a trial before the Superior Court, counsel shall not occupy more than one hour in argument, unless the court, on motion for special cause, before the commencement of the argument, allows a longer time. . . .”

       General Statutes § 52-216c provides in relevant part: “No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party’s cause may be drawn from the failure of any party to call a witness at such trial. However, counsel l'or any party to the action shall be entitled to argue to the trier of fact during closing arguments . . . that the jury should draw an adverse inference from another party’s failure to call a witness who has been proven to be available to testify. ” (Emphasis added.)

       In denying the plaintiffs motion to set aside the verdict, the court reiterated that the reason for its preclusion order was that, in fairness, the defendants should have been given “an equal opportunity” to present enlargements.


text:
    STATE OF CONNECTICUT v. EDWARD T. HATCH
    (AC 22164)
    Foti, Mihalakos and Peters, Js.
    Argued October 22, 2002
    officially released March 18, 2003

      Elizabeth Gleason, assistant public defender, with whom was G. Douglas Nash, public defender, for the appellant (defendant).

      Julia K. M. Conlin, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Corinne L. Klatt, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

This case concerns the validity of a plea agreement. The issue is whether a plea is knowing and voluntary if the defendant is not informed, at the time of the plea hearing, that his contemplated period of probation would require compliance with special conditions. This is an issue of first impression. Although we conclude that a defendant must be apprised of these conditions when entering a guilty plea, we affirm the judgment of the trial court because the court had no duty itself to inform the defendant of his ability to withdraw the plea.

The state charged the defendant, Edward T. Hatch, with larceny in the sixth degree pursuant to General Statutes § 53a-125b. On October 12,2000, the defendant entered a plea of guilty to the larceny count and to being a persistent offender pursuant to General Statutes (Rev. to 1999) § 53a-40 (c), now (e). At that time, the court formally accepted the plea bargain and advised the defendant that he would be required to serve five years of incarceration, suspended, and three years of probation.

The trial court deliberately stayed the sentencing proceeding from October to April to give the defendant the opportunity to demonstrate his eligibility for probation by remaining in drug counseling and providing urine samples. The defendant remained drug free during this period.

At the sentencing hearing, the court informed the defendant that his probation was subject to the “condition of regular probation, which mostly every defendant in the state gets.” The court then imposed the following conditions on the defendant’s probation: (1) the defendant would be required to continue his drug treatment; and (2) the defendant would be required to provide random urine samples for drug testing. This was the first time that the defendant was informed of these conditions to his probation. The defendant immediately protested, but did not move to withdraw his guilty plea.

In this appeal, the defendant maintains that the trial court’s belated disclosure of these special conditions violated his constitutional right to due process. The fact that the court denominated these conditions as standard provisions does not make them so. The state agrees with the defendant that conditions of drug testing and treatment are special conditions of probation. See State v. Durkin, 219 Conn. 629, 631, 595 A.2d 826 (1991); State v. Thorp, 57 Conn. App. 112, 114, 747 A.2d 537, cert. denied, 253 Conn. 913, 754 A.2d 162 (2000); State v. Gaston, 56 Conn. App. 125, 126 n.1, 741 A.2d 344 (1999).

The defendant does not challenge the authority of the court to add special conditions to his probation. See General Statutes (Rev. to 1999) § 53a-30 (a) (13), now (16). He claims, instead, that he should have been informed of these conditions at the time of the plea hearing rather than at the time of the sentencing hearing. Because of the delay in receiving this important information, he maintains that the trial court, after hearing the defendant’s objection at the sentencing hearing, should have advised him of his right to withdraw his plea pursuant to the provisions of Practice Book §§ 39-26 and 39-27.

Before we can address the merits of the defendant’s claim, however, we must determine whether his claim is properly before us. Ordinarily, a defendant who challenges the propriety of a sentence should move to withdraw his guilty plea. Practice Book § 39-26; State v. Badgett, 220 Conn. 6, 16, 595 A.2d 851 (1991); State v. Webb, 62 Conn. App. 805, 810, 772 A.2d 690 (2001). Because the defendant did not do so, he arguably failed to preserve his claim before the trial court. We nonetheless can address his claim if it qualifies for appellate review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that it does not.

“Under the Golding doctrine, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) State v. Gordon, 69 Conn. App. 691, 695, 796 A.2d 1238 (2002).

The defendant’s claim meets two of the Golding requirements. The record is adequate for our review. The propriety of a guilty plea implicates a defendant’s due process rights. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Andrews, 253 Conn. 497, 502-503, 752 A.2d 49 (2000). We must, therefore, determine whether a due process violation clearly exists. See State v. Golding, supra, 213 Conn. 239-40. This is the central inquiry in most Golding cases.

The crux of the defendant’s claim of a due process violation is that he had no way of knowing, at the time he entered his guilty plea, that his probation would be subject to the special conditions attached by the court. See State v. Andrews, supra, 253 Conn. 502-503. In his view, it was reasonable for him to expect to be bound by the standard conditions of probation that are set out in § 53a-30. He argues, however, that it was not reasonable for him to be bound by conditions relating to drug treatment and testing that are not listed as standard or special conditions in our statutes.

Our inquiry is twofold. We must first determine whether a court must disclose to a person who contemplates pleading guilty the nonstandard conditions of probation that he will face at the time of sentencing. We must then determine whether, if a court has not made such a disclosure before the time of sentencing, it must apprise the defendant of his right to withdraw his guilty plea.

I

It is hornbook law that a plea of guilty does not pass constitutional muster if the plea is not knowing and voluntary. Id. At the time of taking a plea bargain, a court is obligated to inform a defendant of four constitutional rights that are waived by a guilty plea. Practice Book § 39-19 (5); State v. Andrews, supra, 253 Conn. 503. The question in this case is whether the court has any further responsibility to inform such a defendant of the details of the sentence that the court will impose.

Some cases have held that the court need inform the defendant only of the direct consequences of his plea. See In re Jason C., 255 Conn. 565, 572-73, 767 A.2d 710 (2001); State v. Andrews, supra, 253 Conn. 505-14. In those cases, the court limited the direct consequences of a plea to those listed under Practice Book § 39-19. Those consequences include: “the mandatory minimum and maximum possible sentences; Practice Book § [39-19 (2) and (4)]; the maximum possible consecutive sentence; Practice Book § [39-19 (4)]; the possibility of additional punishment imposed because of previous conviction(s); Practice Book § [39-19 (4)]; and the fact that the particular offense does not permit a sentence to be suspended. Practice Book § [39-19 (3)] . . . (Citation omitted; internal quotation marks omitted.) State v. Andrews, supra, 505.

Because Practice Book § 39-19 does not expressly require the disclosure of special conditions of probation, the state maintains that the court had no duty to inform the defendant of such conditions. None of the cases cited by the state, however, addresses the disclosure of special conditions of probation. The state relies on State v. Andrews, supra, 253 Conn. 512-13 (parole eligibility is not direct consequence of guilty plea), and Sherbo v. Manson, 21 Conn. App. 172, 183-84, 572 A.2d 378 (misinformation about court recommendation for placement at Whiting Forensic Institute not direct consequence), cert. denied, 215 Conn. 808, 809, 576 A.2d 539 (1990). In another case, on which the state relies, we held that the trial court was not required to disclose the direct and indirect consequences of a plea, but that case is distinguishable because the court found that the defendant, at all relevant times, had been fully aware of all aspects of his plea bargain. State v. Winer, 69 Conn. App. 738, 748-49, 796 A.2d 491, cert. denied, 261 Conn. 909, 806 A.2d 50 (2002).

Is a substantive change in special conditions of probation a direct consequence of a plea that a trial court must disclose? Perhaps disclosure may not be required if the defendant could have discovered the condition that the court intended to impose by searching our case law, statutes or rules of practice. This is not such a case. Although § 53a-30 (a) (13), now (16), authorizes a court to add whatever conditions to probation the court deems appropriate to fulfill the goal of reforming the defendant and preserving the safety of the general public; State v. Pieger, 240 Conn. 639, 647, 692 A.2d 1273 (1997); the statute does not limit the court’s authority in any predetermined way.

In the absence of notice from other sources, the defendant persuades us that the addition of special conditions relating to drug testing and treatment during his time on probation is a direct consequence of a plea. Such required disclosures would be limited to the facts of this case. We doubt, for example, that the court at sentencing would have had the authority to lengthen the period of probation as a result of the defendant’s disagreement, of any kind, with his probation officer.

Our conclusion comports with the court’s “affirmative, nondelegable duty to clarify the terms of a plea agreement.” State v. Garvin, 242 Conn. 296, 309-10, 699 A.2d 921 (1997). A defendant cannot make an intelligent and knowing decision with regard to a probation sentence without any knowledge of the special conditions attached thereto.

II

In light of our conclusion that a special condition of probation is a direct consequence of a guilty plea that a defendant has the right to know about at the time of his guilty plea, we must address the consequences of the court’s failure to advise the defendant of this information. Specifically, the question is whether the court had the obligation, at sentencing, to advise the defendant that in light of his awareness of the special conditions of his probation, he should consider withdrawal of his guilty plea.

“The proper procedure for challenging the knowing and voluntary nature of the plea is by a motion to withdraw the plea before the conclusion of the proceeding at which sentence is imposed.” State v. Badgett, supra, 220 Conn. 16; State v. Webb, supra, 62 Conn. App. 810. If the defendant does so after the acceptance of the plea, then the defendant must prove one of the grounds for withdrawal set forth in Practice Book § 39-27.

The responsibility for withdrawing a guilty plea lies with the defendant. Section 39-26 requires an affirmative act by the defendant — filing the motion to withdraw or, if after the acceptance of the plea, filing such a motion and proving one of the grounds listed in Practice Book § 39-27. Our case law states that a defendant’s failure to so move usually precludes review of the alleged defects of a guilty plea. State v. Badgett, supra, 220 Conn. 16. Nowhere do our rules of practice or our case law impose a duty on the court to file such a motion or to remind the defendant to do so. Accordingly, the onus is on the defendant, not the court.

The record reveals that the defendant did not move to withdraw his guilty plea. At the sentencing hearing on April 9, 2001, the defendant stated his understanding that the plea agreement was for “regular probation” without any special conditions. The court responded that the defendant was on “regular probation” and ended the hearing.

At all times relevant to this appeal, the defendant was represented by counsel. Once the defendant expressed his confusion over the terms of the guilty plea, defense counsel could have moved to withdraw the plea. At the very least, counsel could have asked for a continuance to confer with the defendant. Despite the court’s late explanation as to the special conditions of probation, it was the defendant who had the laboring oar to seek withdrawal of his guilty plea.

Because the court did not have a duty to remind the defendant of the withdrawal procedure, we conclude that there was no due process violation. The defendant’s claim, therefore, does not satisfy the third prong of Golding. Accordingly, we need not address the fourth Golding provision with respect to harmless error.

The judgment is affirmed.

In this opinion the other judges concurred.

       At a supermarket, the defendant hid approximately $250 of film in his shirt and then attempted to leave the store without paying for the film.
      The defendant was also charged with the crime of failure to appear on February 24, 2000. This charge was nolled according_to the plea agreement.

       The state argues that the definition of probation includes any condition of probation imposed by the court. The state relies, however, only on the unpublished opinion of United States v. Rice, 937 F.2d 614 (9th Cir. 1991) (holding that plea agreement silent as to conditions of probation includes all conditions reasonable under the circumstances unless agreement expressly provides otherwise), cert. denied, 502 U.S. 1071, 112 S. Ct. 966, 117 L. Ed. 2d 132 (1992). Aside from lacking precedential value, it is not a case that addresses special conditions.

       Practice Book § 39-26 provides: “A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”
      Practice Book § 39-27 provides that “[t]he grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       Aside from arguing that Golding applies, the defendant contends that his objections before the court constituted a motion to withdraw his plea. The defendant relies on State v. Morant, 13 Conn. App. 378, 536 A.2d 605 (1988). In that case, the defendant, himself, informed the court during the sentencing hearing that he was pressured to plead guilty. Id., 384. On appeal, we held that the defendant’s assertion was a motion to withdraw his plea and instructed the court to determine if withdrawal was warranted. Id., 385-86. Unlike the defendant in Morant, the defendant in this case did not expressly state that his plea was involuntary. The defendant’s confusion over the terms of the plea agreement does not constitute a motion to withdraw.

       General Statutes (Rev. to 1999) § 53a-30 (a) provides: “When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant: (1) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment; (2) undergo medical or psychiatric treatment and remain in a specified institution, when required for that purpose; (3) support his dependents and meet other family obligations; (4) make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance; (5) if a minor, (A) reside with his parents or in a suitable foster home, (B) attend school, and (C) contribute to the his own support in any home or foster home; (6) post a bond or other security for the performance of any or all conditions imposed; (7) refrain from violating any criminal law of the United States, this state or any other state; (8) . . . participate in an alternate incarceration program; (9) reside in a residential community center or halfway house approved by the Commissioner of Correction, and contribute to the cost incident to such residence; (10) participate in a program of community service labor in accordance with section 53a-39c; (11) participate in a program of community service in accordance with section 51-181e; (12) . . . undergo specialized sexual offender treatment; (13) satisfy any other conditions reasonably related to the defendant’s rehabilitation. . . .” Subdivision (13) in the 1999 revision of the General Statutes is subdivision (16) in the 2003 revision.

       The state argues that we should affirm the trial court’s judgment because the conditions imposed are reasonable. We are not questioning the court’s authority to impose a special condition under General Statutes (Rev. to 1999) § 53a-30 (a) (13), or the reasonableness of the conditions in this case. Rather, we are concerned with whether the defendant should be apprised of such conditions prior to entering a plea of guilty.

       The court must inform the defendant dining the plea canvass that the defendant has “the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.” Practice Book § 39-19 (5).

       Our Supreme Court has never held that, under any and all circumstances, the requirements of our rules of practice constitute the universe of direct consequences of a guilty plea. State v. Andrews, supra, 253 Conn. 507 n.8.

       The defendant argues that his guilty plea meets two of the grounds for withdrawal provided by Practice Book § 39-27. Specifically, the guilty plea should be withdrawn because it was involuntary and the sentence imposed exceeded that specified by the agreement. See footnote 3.

       The colloquy between the court and the defendant was as follows:
      “The Court: Mr. Hatch, as far as being a persistent larceny offender, five years in jail suspended, three probation. That’s the agreement reflected in the transcript. Conditions are, you continue on the drug treatment, random urines.
      “The Defendant: Excuse me, Your Honor?
      “The Court: Yes, sir.
      “The Defendant: At the time that we had our agreement, you told me that you were going to put me on regular probation. . . .
      “The Court: You are on regular probation.
      “The Defendant: Now, you are saying there’s a condition to continue with drug treatment. Our agreement is, as I understood it, was five months, bail commissioner’s office, three times a week, with random urinanalysis, continue with the drug treatment program that I was in. . . .
      # ‘í Í
      “The Court: . . . I’m just adhering to an agreement that was made with you. As far as terminology, you used regular probation. You are on regular probation. As a condition of regular probation, which mostly every defendant in this court or any other court in the state gets, is for drug evaluation and or treatment. . . . Mr. Hatch, you have an exception to my ruling. . . . Five years suspended, three probation. ... I would suggest, Mr. Hatch, you go to room 105, check in there. And, I wish you luck in the future, sir.. . .
      * * *
      “The Court: Mr. Hatch, you’re all done. Thank you very much.
      “The Defendant: Appeal the decision.”

       We decline to address the defendant’s arguments regarding the propriety of his plea under Practice Book § 39-27. These arguments involve the merits of a motion to withdraw a guilty plea.