author: FOTI, J.

text:
    ROSEMARY KISH v. NURSING AND HOME CARE, INC., ET AL.
    (AC 16615)
    Foti, Landau and Daly, Js.
    Argued November 3, 1997
    officially released February 10, 1998

      Neil J. Ambrose, with whom, on the brief, was Andrew A. Cohen, for the appellants (defendants).

      Reid J. Parrington, with whom, on the brief, was Frank Bonito, for the appellee (plaintiff).
   Opinion

FOTI, J.

The named defendant, Nursing and Home Care, Inc., and the defendant insurance carrier, Connecticut Hospital Association Workers’ Compensation Trust, appeal from a decision of the workers’ compensation review board (board) affirming the commissioner’s decision. The defendants claim that the board improperly affirmed the commissioner’s (1) determination that the plaintiffs injuries arose out of and occurred in the course of her employment, and (2) refusal to grant their motion to correct. We affirm the decision of the board.

I

An examination of the board’s record discloses the following pertinent facts. The plaintiff, Rosemary Kish, is a registered nurse who was a salaried employee of the named defendant. Her responsibilities included visiting patients in their homes and overseeing their care. She made decisions concerning patient care and referred her patients to physicians and other specialists. On a normal workday, the plaintiff used her own car to visit patients and began her day by reporting to her employer’s main office at 8:30 a.m. She visited an average of five patients a day, worked out of her car, and took lunch when and where she could find the time. She also set her own work schedule and was reimbursed for her mileage. Her workday ended at approximately 4:30 p.m. and she did not return to the main office at the end of each day.

One of the plaintiffs patients was an elderly woman for whom she had reserved a commode at a New Canaan supply house because the commode the woman was using appeared unsafe. The plaintiffs supervisor told her not to deliver the commode herself, but to have the patient’s caretaker pick it up. While visiting that patient on April 26, 1994, the plaintiff noted that her physical condition had worsened and thought that her makeshift commode was unsafe and needed to be replaced as soon as possible. The plaintiff, therefore, decided to drive to the supply house to pick up the commode. While driving to the supply house, the plaintiff saw a postal truck parked on the opposite side of the street. Recalling that she had a greeting card to mail to a friend, the plaintiff stopped and parked her car. The plaintiff exited her car, crossed the street and handed the card to the mail carrier. While crossing back to her car, the plaintiff was struck by an automobile.

Although there was an unwritten agency policy that visiting nurses were not supposed to pick up or deliver items for patients, such activities were not prohibited by the agency’s policy manual. The plaintiff admitted that she knew of this policy. Furthermore, her supervisor stated that the plaintiff had no specific authorization to mail a personal letter while in the course of her employment. The supervisor agreed, however, that the patient’s commode was unsafe and needed to be replaced.

The commissioner concluded that the plaintiffs decision to pick up the commode was reasonable under the circumstances and that the plaintiff was acting in the course of her employment while doing so. She also found that the plaintiffs brief stop to mail a greeting card was so inconsequential, relative to her job duties, that it did not remove her from the course and scope of her employment. The commissioner concluded that the plaintiffs conduct was not wilful and wanton so as to preclude a workers’ compensation claim and, therefore, the plaintiffs injuries, sustained on April 26, 1994, were compensable.

The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. “[T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by [her] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993).” (Internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 475-76, 650 A.2d 1240 (1994). “The commissioner’s conclusions are accorded the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause. Fair v. People’s Savings Bank, 207 Conn. 535, 541, 542 A.2d 1118 (1988).” (Internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., supra, 477.

Although a respondent has a statutory right to appeal an adverse decision to the board, the board’s scope of review is limited. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996) (review board does not conduct de novo hearing of facts). The board “may take additional material evidence . . . only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and ‘not retry the facts.’ ” Fair v. People’s Savings Bank, supra, 207 Conn. 539; see General Statutes § 31-301 (b) (describing scope of review).

“As is the standard of review, the law governing eligibility for workers’ compensation is also well established. It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course o/the employment. There must be a conjunction of [these] two requirements ... to permit compensation. . . . McNamara v. Hamden, [176 Conn. 547, 550, 398 A.2d 1161 (1979)]. The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and [circumstance] of the accident. Id.” (Emphasis in original; internal quotation marks omitted.) Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792-93, 694 A.2d 1230 (1997).

“[T]o establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place ‘(a) within the period of employment; (b) at a place [he or she] may reasonably [have been]; and (c) while [he or she was] reasonably fulfilling the duties of the employment or doing something incidental to it.’ ” Id., 793.

The defendants argue that even assuming that the plaintiffs injuries occurred “within the period of employment,” she still has not satisfied the second and third elements of required proof. The defendants, while not conceding that the plaintiff was within the period of her employment, do not argue that the evidence suggests otherwise.

The plaintiff was on duty from 8:30 a.m. to 4:30 p.m. each working day, used her automobile to perform substantial work duties, and was paid for her services on an hourly basis, including time spent on the road between patients. The plaintiff was also reimbursed for her mileage. Because the plaintiff could reasonably be found driving her automobile in the general area of the accident during her workday, with either the express or implied permission or acquiescence of her employer, it was not improper for the commissioner to find that she was reasonably at the place where the injury occurred. Nor was it unreasonable for the commissioner to find that the plaintiff, a primary care nurse, was performing needed nursing duties after assessing that the immediate safety of her patient required the prompt replacement of the commode. The plaintiffs trip, while contrary to the instructions of her employer, furthered the interests of her employer in that it was undertaken to ensure the physical safety of an elderly and terminally ill patient. The board properly affirmed the commissioner’s determination that the plaintiffs job concerned, primarily, ensuring the physical safety and well being of her patients, and that she was reasonably fulfilling the duties of her employment by taking the trip to obtain the commode. The commissioner’s findings, therefore, were neither unreasonable nor unsupported by the subordinate facts.

The defendants argue that even if the injury occurred in the course of the plaintiffs employment, it did not arise out of her employment. They claim that it was a misapplication of the law for the commissioner to find that the plaintiffs decision to mail a personal greeting card was “inconsequential.” The defendants argue that at the time of the accident, the plaintiff was performing a personal task for her own benefit without her employer’s consent and, by doing so, took a substantial risk that she would be hit by a car.

“In determining whether an unauthorized deviation from the employment is so slight as not to reheve the employer from liability, or of such a character as to constitute a temporary abandonment of the employment, ‘[t]he true test is analogous to that applied to determine whether a deviation in agency terminates that relationship.’ Herbst v. Hat Corporation of America, 130 Conn. 1, 7, 31 A.2d 329 (1943). ‘[T]he trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it. Ritchie v. Waller, 63 Conn. 155, 165, 28 A. 29 (1893).” Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196-97, 497 A.2d 435 (1985).

Because the plaintiff was in the course of her employment while driving to pick up the commode for her patient, her slight deviation for the purpose of mailing a card did not substantially remove her from the scope of her employment. The plaintiffs actions, as found by the commissioner, were not an abandonment of her employment, but rather a deviation of inconsequential proportion. The plaintiff fully intended to bring herself back within the course and scope of her employment upon returning to her car. We conclude, therefore, that the board properly affirmed the commissioner’s determination that the plaintiffs injuries arose out of and occurred in the course of her employment.

II

The defendants next claim that the commissioner improperly denied their motion to correct and, therefore, the board should have ordered the commissioner to correct her finding. In their motion to correct, the defendants sought to have the commissioner add certain facts to her finding. The defendants posit that the commissioner was required to add these facts to her finding because the facts were material. We do not agree.

“The finding of the commissioner cannot be changed ‘unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.’ Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A. 2d 859 (1968). ‘It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted.’ . . . Id., 249. A material fact is one that will affect the outcome of the case. See Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 540, 612 A.2d 1222 (1992).” Tovish v. Gerber Electronics, 32 Conn. App. 595, 599, 630 A.2d 136 (1993), appeal dismissed, 229 Conn. 587, 642 A.2d 721 (1994) (certification granted improvidently).

The commissioner exercised her discretion in determining that the proposed facts were not material to her finding. See id., 601. We conclude that the commissioner did not abuse her discretion in making that determination.

After reviewing the requests made in the defendants’ motion to correct the commissioner’s finding and award, we conclude that the requests either pertained to the credibility of witnesses or, even if granted, would not affect the outcome of the case. The board, therefore, properly refused to order the commissioner to correct her finding.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       Commissioner George A. Waldron dissented from the majority opinion authored by Commissioner Robin L. Wilson.

       The commissioner found that the plaintiff “decided that it was imperative and critical that an adequate and appropriate commode be made available to the patient . . . and that this be accomplished immediately.”


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    LINDA TRANKOVICH v. FRENISH, INC., ET AL.
    (AC 16822)
    Foti, Spear and Stoughton, Js.
    Argued December 3, 1997
    officially released February 10, 1998

      Neil J. Ambrose, for the appellants (defendants).

      James R. Wittstein, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

The named defendant, Frenish, Inc., doing business as Chamberlain Ambulance (Chamberlain), and the defendant workers’ compensation insurance earner appeal from the decision of the compensation review board reversing the decision of the trial commissioner, who dismissed the request of the plaintiff, Linda Trankovich, for an adjustment of her compensation rate and remanded the case for reconsideration of the rate. The defendants assert that the board improperly interpreted General Statutes § 31-310. We agree.

The trial commissioner made the following findings of fact. The plaintiff injured her left wrist on January 8,1994, while employed by Chamberlain, and the injury was accepted by the employer as a compensable claim and paid accordingly. She began her employment at Chamberlain in 1989 as a part-time emergency medical technician (EMT), working approximately twenty-two hours a week. She was also employed as a computer operator at Beiersdorf, Inc., until August 13, 1993. On September 1, 1993, she began full-time work for Chamberlain, working forty hours per week with the same duties as she had as a part-time EMT. The plaintiff argued that her part-time employment at Chamberlain, through August 13, 1993, should not be included in the fifty-two week statutory formula found in § 31-310 to establish her average weekly wage or, in the alternative, that her employment at Beiersdorf, Inc., should be considered concurrent employment if the fifty-two week formula applied.

The trial commissioner concluded that the plaintiffs increased hours from twenty-two to forty, with no change in job duties, was not a new contract of employment. The plaintiff does not challenge that conclusion. She did not have concurrent employment on January 8, 1994, the date of her injury; therefore, her employment at Beiersdorf, Inc., should not be included in computing the average weekly wage. We note that the findings of fact made by the trial commissioner have not been challenged. The conclusions drawn from those facts by the commissioner must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference improperly or unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).

The parties agree that the employer determined the average weekly wage of the plaintiff by adding the total wages received by her from Chamberlain during the fifty-two calendar weeks immediately preceding the week during which she was injured and dividing by the number of calendar weeks during which she was actually employed by the employer. That is precisely what § 31-310 commands. The board agreed with the commissioner that because on the date of injury the plaintiff was not working for Beiersdorf, Inc., the wages earned there were not concurrent and could not be included in deriving an average weekly wage. Nevertheless, it found inequity in calculating the benefit rate based on the total compensation received from the employer during the fifty-two weeks preceding the injury because that resulted in a weekly benefit rate far lower than the pay she received in any week during which she was working at the two jobs or was working full-time at Chamberlain. The board concluded that the calculation used failed to account for the legislature’s intent to compensate injured workers based on their loss of earning power at the time of their injuries and inaccurately reflected the plaintiffs salary. We disagree.

The pertinent language of § 31-310 could not be clearer. While it is possible that in some cases the legislature has not said what it meant, nevertheless, when statutory language is clear and unambiguous we must presume that it meant what it said. “It is well settled that a statute must be applied as its words direct.” (Internal quotation marks omitted.) All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989); Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn. App. 397, 400, 689 A.2d 1132, cert. denied, 240 Conn. 926, 692 A.2d 1282 (1997). The statute contains no exception for situations such as in this case.

The decision of the compensation review board is reversed and the case remanded with direction to reinstate the commissioner’s decision.

In this opinion the other judges concurred.

       The defendants appeal from a final judgment. Since a ministerial, noncontroversial calculation is all that remains before the commissioner, the review board’s decision amounted to a final judgment. See Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990); Vachon v. General Dynamics Corp., 29 Conn. App. 654, 657, 617 A.2d 476 (1992), cert. denied, 224 Conn. 927, 619 A.2d 852 (1993).

       General Statutes § 31-310 (a) provides in relevant part: “For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured employee from the employer in whose service he is injured during the fifty-two calendar weeks immediately preceding the week during which he was injured, by the number of calendar weeks during which, or any portion of which, the employee was actually employed by the employer .... Where the injured employee has worked for more than one employer as of the date of the injury and the average weekly wage received from the employer in whose employ he was injured, as determined under the provisions of this section, are insufficient for him to obtain the maximum weekly compensation rate from the employer under section 31-309, prevailing as of the date of the injury, his average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of concurrent employment not in excess of fifty-two weeks prior to the date of the injury, but the employer in whose employ the injury occurred shall be liable for all medical and hospital costs and a portion of the compensation rate equal to seventy-five per cent of the average weekly wage paid by him to the injured employee, alter such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contribution Act made from such employee’s total wages received from such employer during the period of calculation of such average weekly wage, but not less than an amount equal to the minimum compensation rate prevailing as of the date of the injury. The remaining portion of the applicable compensation rate shall be paid from the Second Injury Fund upon submission to the Treasurer by the employer or the employer’s insurer of such vouchers and information as the Treasurer may require. ...”


text:
    STATE OF CONNECTICUT v. MICHAEL CARTER
    (AC 16559)
    Foti, Freedman and Stoughton, Js.
    Argued November 12, 1997
    officially released February 10, 1998

      Pamela S. Nagy, special assistant public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Michael Carter, appeals from the judgment of conviction, rendered after a jury trial, of four counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), two counts of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2), and one count of commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The defendant received a total effective sentence of twenty years.

On appeal, the defendant claims that the trial court improperly refused to suppress out-of-court identifications of him made by three witnesses for the state and allowed two of those witnesses to identify him in court. The defendant also asserts that remarks made by the prosecutor during the state’s rebuttal closing argument impermissibly infringed on his constitutional right to be present at trial and to confront the witnesses against him as well as his right to testify in his own behalf. We disagree.

The jury reasonably could have found the following facts. On April 3, 1994, at approximately 5:30 p.m., the defendant, wearing a black hat, a black ski mask, black pants, a dark, long-sleeved shirt, a brown belt, work boots and a dark outer vest, entered a fast food restaurant on Whalley Avenue in New Haven. The defendant jumped over the counter, put a gun to the head of the cashier, Tishma Gomez, and ordered her to open the cash register, which she did. The defendant took money out of the register and asked Gomez and two other employees, Douglas Smith and Geneva Ham, where he could find the restaurant manager. One of the employees told the defendant that the manager was in his office in the back of the restaurant. The defendant, still brandishing his gun, directed Gomez, Smith and Ham to walk to the back of the restaurant.

When the defendant took the three employees to the back of the restaurant, Reginald Alston, the sole customer at the time of the robbery, ran next door to a video store to call the police. Alston told the dispatcher that there was a robbery in progress at the restaurant and gave a description of the robber.

When the defendant, Gomez, Smith and Ham reached the door to the manager’s office, Gomez knocked. The manager, Kenneth Wetmore, opened the door and the defendant put his gun to Wetmore’s head. The defendant demanded the money from the safe in Wetmore’s office. The defendant took the money and put it into a black pouch with a yellow design that he wore around his waist. The defendant then tied Wetmore’s hands behind his back with the cord from the office fax machine and left the restaurant.

Officer Steven Woznyk responded to the scene after hearing a transmission over his police radio regarding a robbery in progress. Woznyk parked his police car in front of two vans next door to the restaurant. As Woznyk waited for more information about the robbery, the defendant walked between the vans and stopped abruptly behind Woznyk’s police car. The defendant looked surprised and ran toward the parking lot behind the restaurant. Woznyk gave chase while simultaneously radioing a description of the defendant. When the defendant reached the fence at the back of the restaurant parking lot, he discarded his vest and jumped over the fence. In the vest pockets were the hat and mask worn by the defendant during the robbery, as well as the keys to the defendant’s New York City apartment. Later, police also found the gun used by the defendant on the ground near the vest.

After jumping over the fence, the defendant ran through a bushy area toward the basketball courts on East Ramsdell Street. In response to Woznyk’s radio transmissions, Officer Glen Iacovetti drove to East Ramsdell Street and observed the defendant running toward him carrying a black object. Iacovetti ordered the defendant to stop and fired a warning shot at the ground. When he heard the gunshot, the defendant stopped running and dropped the object. Police later searched the area and found the defendant’s black and yellow pouch containing $1755 taken in the robbery.

After dropping the pouch, the defendant began to run again. Iacovetti was able to grab the defendant and wrestle him to the ground. Thereafter, several officers, including Woznyk, arrived and helped Iacovetti subdue and handcuff the defendant. As the officers stood the defendant up, he stated that “he wasn’t going to hurt anybody” and that “he just wanted the money.” He also said that “he was just trying to make a living” and “take a thousand today, the other thousand tomorrow.”

The defendant was then placed in the back of a patrol car. Officer Dario Aponte was watching the defendant when a radio transmission indicated that a pellet gun had been found. The defendant told Aponte that the gun was his and that his fingerprints were on it, but that it did not mean he did anything. Later, as the defendant was being removed from the police car to be viewed by Gomez, Wetmore and Alston, he asked Aponte, “How can they identify me? I had a mask on.”

I

The defendant claims that his due process rights were violated when the trial court refused to suppress out-of-court identifications made of him by three witnesses for the state and allowed two of those witnesses to identify him in court. The defendant asserts that the out-of-court identifications were made under circumstances that were unnecessarily suggestive and that the identifications themselves were unreliable.

Prior to trial, the defendant filed a motion to suppress “potential testimony and other evidence of any out-of-court and in-court identifications of the defendant.” The trial court held a suppression hearing at which the following facts were adduced. On the day of the robbery, Gomez was working as a cashier and was able to obseive the defendant for a full minute. The restaurant was well lit and Gomez saw that the defendant was wearing a black mask, black jeans and a brown vest. Gomez was able to see the defendant’s eyes, which were not covered by his mask. Gomez was also able to see the defendant’s gun, which she described as black, brown and silver. Finally, Gomez observed the defendant put the proceeds of the robbery into a black and yellow pouch. When the police arrived, Gomez gave a description of the robber and agreed to accompany the police to view a suspect. Approximately fifteen minutes after the robbery, the police drove Gomez to East Rams-dell Street. Gomez laid down in the back of the police car and, when the police instructed her to sit up, looked and observed the defendant standing in front of another police car about twelve feet away from her. Gomez immediately identified the defendant as the robber on the basis of his eyes and black jeans.

Alston was also in the restaurant at the time of the robbery and was able to see the defendant clearly for approximately two minutes. Alston noticed that the defendant was wearing a black knit hat, a black mask that covered the bottom part of his face, black pants, a long-sleeved black shirt and a black jacket or vest. Alston was also able to see the defendant’s eyes and forehead. Alston gave the police a description of the robber and agreed to accompany them to look at a suspect. Approximately twenty minutes after the robbery, Alston was driven to East Ramsdell Street. Alston pulled his jacket over his head to avoid being seen by the suspect. The defendant was then removed from a police car parked approximately two car lengths away from Alston. Alston identified the defendant as the robber on the basis of his clothing and build. In addition, Alston said that he could identify the defendant because he had seen part of his face during the robbery.

In denying the defendant’s motion to suppress, the trial court concluded that the confrontations leading to both Gomez’ and Alston’s identifications of the defendant, although suggestive, were not unnecessarily so. In addition, the court found both identifications to be rehable under the totality of the circumstances.

“It is well settled that [i]n determining whether a pretrial identification procedure violated a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless rehable based on an examination of the totality of the circumstances. ... To prevail in his claim the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances. . . . Generally, [t]he exclusion of evidence from the jury is . . . a drastic sanction, one that is limited to identification testimony which is manifestly suspect.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 685-86, 631 A.2d 271 (1993).

Here, the identification procedure used by the police was obviously suggestive. See State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986) (almost any one-to-one confrontation between victim and person whom police present as suspect presumptively suggestive). We conclude, however, that the identification procedure was justified by the “exigencies of the situation” and thus was not unnecessarily suggestive. State v. Amarillo, 198 Conn. 285, 293, 503 A.2d 146 (1986).

The identification procedure used by the police was reasonably necessary because it allowed the witnesses to view the suspect while their memories of the incident were still fresh, thus ensuring the reliability of their identifications. See State v. Collette, supra, 199 Conn. 311; State v. Aversa, 197 Conn. 685, 694 n.3, 501 A.2d 370 (1985) (prompt on scene confrontations more likely to be accurate). Furthermore, the one-to-one show-up procedure was reasonably necessary to allow the police to “eliminate quickly any innocent parties so as to continue the investigation with a minimum of delay.” State v. Amarillo, supra, 198 Conn. 293. Our Supreme Court has remarked that “[a]n immediate viewing of the suspect may be justified where it [is] important for the police to separate the prime suspect gold from the suspicious glitter, so as to enable them ... to continue their investigation with a minimum of delay. State v. Collette, supra, 310-11, quoting State v. Maturo, 188 Conn. 591, 596, 452 A.2d 642 (1982).” (Internal quotation marks omitted.) State v. Wooten, supra, 227 Conn. 686-87.

The defendant argues that because Woznyk observed a suspect matching the description of the robber discard a jacket containing a black mask before jumping over the fence and because the defendant made incriminating statements to the police immediately after he was handcuffed, the exigencies of the situation did not require the witnesses immediately to identify the defendant to verify that they had the proper person. We disagree. The fact that the police had information suggesting that the defendant was the robber does not render the one-to-one identification procedure unnecessary. Moreover, the evidence adduced at the suppression hearing indicated that Woznyk momentarily lost sight of the defendant when he jumped over the fence. Finally, if either Gomez or Alston “had been unable to identify the defendant or had excluded him as a suspect, the police would have had to continue their investigation .... See In re Juvenile Appeal (83-EF), 190 Conn. 428, 437, 461 A.2d 957 (1983).” State v. Wooten, supra, 227 Conn. 687.

Even if we were to assume that the out-of-court identifications were unnecessarily suggestive, the identifications were reliable under the totality of the circumstances. “To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, we must weigh the corrupting effect of the suggestive procedure in light of certain factors such as the opportunity of the [witnesses] to view the criminal at the time of the crime, the [witnesses’] degree of attention, the accuracy of [the witnesses’] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. . . . State v. Theriault, [182 Conn. 366, 373-74, 438 A.2d 432 (1980)]; Manson v. Brathwaite, [432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)]; State v. Evans, 200 Conn. 350, 356, 511 A.2d 1006 (1986).” (Internal quotation marks omitted.) State v. Wooten, supra, 227 Conn. 687-88.

In the present case, both Gomez and Alston had sufficient opportunity to view the defendant during the robbery. Both witnesses testified that the lighting in the restaurant was good and were able to provide the police with detailed descriptions of the clothing worn by the robber. Gomez testified that her attention was focused on the defendant when he jumped over the counter and that he was “very close.” Alston testified that he was paying close attention to the defendant because he had a gun. Both witnesses’ descriptions of the defendant to the police were accurate and were made within twenty minutes of the robbery. Finally, both witnesses immediately and positively identified the defendant as the robber. We conclude, therefore, that the out-of-court identifications of the defendant by Gomez and Alston were sufficiently reliable to be considered by the jury.

II

The defendant next claims that remarks made by the prosecutor during the state’s rebuttal closing argument impermissibly infringed on his constitutional right to be present at trial and to confront the witnesses against him as well as his right to testify in his own behalf. We disagree.

During the course of the state’s rebuttal closing argument, the prosecutor attacked the defendant’s credibility stating: “This defendant’s story is just senseless. The defendant just seemed to make things up as he went along. Remember, he’s had approximately the last eighteen months to concoct his story. He listened to the state's case and weaved his tale in between the lines.” (Emphasis added.) The prosecutor then provided examples of how the defendant had tailored his testimony to fit the state’s case. The defendant did not object to any of the remarks made by the prosecutor dining the state’s rebuttal closing argument. Nevertheless, the defendant argues that his claim is entitled to review under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The defendant relies almost exclusively on our Supreme Court’s recent decision in State v. Cassidy, 236 Conn. 112, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), to make out a claim that his rights to be present at trial and to confront the witnesses against him were infringed on by remarks made by the prosecutor during rebuttal closing argument. In Cassidy, the court reversed the defendant’s convictions for kidnapping, robbery and unlawful restraint because “the prosecutor’s argument invited the jury to draw an inference adverse to the defendant solely because he asserted his constitutional right to be present at trial and, [as a result,] unreasonably interfered with the defendant’s free exercise of that right.” Id., 120. The objectionable remarks made by the prosecutor in Cassidy were as follows: “ ‘Now also consider, you notice that the witnesses come in and out and there’s no witnesses in court, while the other witnesses are testifying, and that ensures that you’re going to hear just that person’s version of the story. They’re not going to doctor it up to fit the other person’s version of the story. There’s one witness in this case who heard every other witness testify. He heard the whole story before he told you the story. That means when the defendant took the stand, and I would submit to you that during the three days of trial, hearing all of the witnesses, the defendant had ample time to doctor up his version of the story.’ ” Id., 121.

At the conclusion of closing arguments, the defendant moved for a mistrial or, in the alternative, for a curative instruction to the jury. Id., 122. Both requests were denied by the trial court. Id.

The court’s decision in Cassidy was based, in part, on the fact that the comments made by the prosecutor were misleading to the jury because “it [was] by no means certain that the jurors were . . . aware of the fact that the other trial witnesses were not permitted in the courtroom when not testifying” due to the existence of a sequestration order. Id., 124. More importantly, however, the court found that “the prosecutor, in clear, direct and unambiguous terms, urged the jury to conclude that the defendant, solely by virtue of his presence throughout the trial and in stark contrast to the sequestered state witnesses, had been able to concoct a story tailored to meet the state’s case. ” (Emphasis in original.) Id., 125. The court stated that “[i]n arguing to the jury that the defendant had been able to ‘doctor up’ his testimony simply because, in contrast to the state’s witnesses, the defendant had been present during the entire trial, the prosecutor invited the jury to draw an inference adverse to the defendant solely because of the defendant’s exercise of his constitutional right to confront the witnesses against him.” (Emphasis added.) Id., 127-28.

The court qualified its ruling by noting that the defendant placed his credibility in issue by electing to testify and that “the prosecutor, in his closing argument, was free to challenge the defendant’s version of the facts by reference to any evidence properly adduced at trial.” Id., 128. The court recognized that the prosecutor was not “prohibited from arguing . . . that the defendant had tailored his testimony to fit the state’s case,” provided that such argument was linked “solely to the evidence and not, either directly or indirectly, to the defendant’s presence at trial.” Id., 128 n.17.

Here, unlike in Cassidy, the defendant did not object to any of the prosecutor’s remarks and thus can prevail only if he satisfies the Evans-Golding criteria for appellate review of his unpreserved constitutional claim. After a thorough review of the record and transcripts, we find that the defendant’s claim fails both the third and forth prongs of Golding.

We find the present case to be distinguishable from Cassidy in several respects. First, the prosecutor’s remarks did not ask the jury to draw an inference adverse to the defendant solely because he exercised his constitutional right to confront the witnesses against him. Rather, the prosecutor challenged the defendant’s credibility as a witness and provided specific examples, based on the evidence adduced at trial, to illustrate how the defendant had tailored his testimony to fit the state’s case. Those examples included the defendant’s explanation as to why he was wearing a shirt in his mug shot similar to that worn by the robber, his description of the color of the undershorts he was wearing at the time of the robbery, his unsupported claim that he was beaten by the police and his explanation as to why a set of keys found in the pocket of the vest worn by the robber fit the door to his New York City apartment. By relying on the evidence adduced at trial to argue that the defendant had tailored his testimony to fit the state’s case, the prosecutor engaged in the exact sort of argument approved by our Supreme Court in Cassidy. In addition, the prosecutor did not attempt to mislead the jury, nor did he juxtapose the defendant’s presence at trial with the sequestration of the state’s witnesses as did the prosecutor in Cassidy.

The defendant argues that the prosecutor’s remark that the defendant tailored his testimony after “listen [ing] to the state’s case” was improper and violated the principles of Cassidy because it “clearly referred” to the defendant’s presence at trial “as the reason why [he] was able to fabricate his testimony.” When taken in context with the other remarks made by the prosecutor during rebuttal closing argument, we do not find that the prosecutor’s vague reference to the defendant’s presence at trial clearly violated the defendant’s constitutional right to be present at trial and to confront the witnesses against him or that the remark clearly deprived the defendant of a fair trial. See State v. Golding, supra, 213 Conn. 240.

The defendant also claims that the remarks made by the prosecutor infringed on his constitutional right to testify in his own behalf. This court recently considered a similar claim in State v. Shinn, 47 Conn. App. 401, 704 A.2d 816 (1997). In Shinn, we relied on the principles of Cassidy to reverse the defendant’s conviction for attempted murder because remarks made by the prosecutor during the state’s rebuttal closing argument “invited the jury to draw an adverse inference from the veiy fact of the defendant’s decision to exercise his fundamental right to testify in his own behalf.” Id., 414.

The remarks made by the prosecutor in Shinn were as follows: “ ‘You heard repeated references this afternoon that Mr. Shinn got up and testified. That is his right, if he wants to do that, he has the perfect right to do that. That is up to him. He also has a right not to testify. Obviously, ladies and gentlemen of the jury, he heard evidence during the course of the state’s case that he felt was, is strong, and so convincing to you, that he felt obligated to get up there and testify and give you a story. . . . And if he thought . . . that the state’s evidence was too weak in this case, why did he decide to get up here and testify? That’s for your judgment to consider.’ ” (Emphasis in original.) Id., 408. As in the present case, the defendant did not object to the prosecutor’s remarks and sought review pursuant to the Evans-Golding doctrine. Id., 408.

In analyzing the defendant’s claim in Shinn, we emphasized that it did not involve a comment by a prosecutor relating to the “credibility of a defendant who takes the stand,” but rather a comment relating to “the fact that a defendant chose to exercise his constitutional right to testify, not to the content of that testimony.” Id., 409-10. We then concluded that the statements made by the prosecutor were impermissible because they “were not merely comments on the credibility of the defendant’s testimony, but rather were statements that directly linked his decision to testify with his guilt.” Id., 414.

In the present case, the defendant argues that “had [he] known the state [would] reduce his defense to a fabricated story merely due to his decision to take the stand, it might easily have stifled his decision to exercise [his right to testify in his own behalf.]” The defendant’s argument misconceives both the facts of this case and our Supreme Court’s holding in Cassidy. In addition, the comments made by the prosecutor in this case are distinguishable from those made by the prosecutor in Shinn.

Here, the prosecutor did not challenge the defendant’s credibility “merely” because he chose to testify in his own defense, but rather because the defendant’s testimony contradicted the substantial physical and testimonial evidence introduced by the state. In Cassidy, our Supreme Court recognized that “when the defendant elected to testify, he placed his credibility in issue, thereby subjecting himself to cross-examination under ‘the same rules and tests which could by law be applied to other witnesses.’ State v. McClendon, 199 Conn. 5, 12, 505 A.2d 685 (1986). Moreover, the prosecutor, in his closing argument, was free to challenge the defendant’s version of the facts by reference to any evidence properly adduced at trial.” State v. Cassidy, supra, 236 Conn. 128; see State v. Shinn, supra, 47 Conn. App. 413.

The statements made by the prosecutor were proper comments on the credibility of the defendant’s testimony and did not invite the jury to draw an inference adverse to the defendant solely on account of the defendant’s assertion of his constitutional right to testify in his own behalf. The defendant, therefore, has failed to establish that a constitutional violation clearly exists and clearly deprived him of a fair trial.

Even if we were to assume that the prosecutor’s remarks were improper, the defendant would not be entitled to a new trial because the state has established that the allegedly objectionable comments were harmless beyond a reasonable doubt. See State v. Cassidy, supra, 236 Conn. 129; see also Coy v. Iowa, 487 U.S. 1012, 1021, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988); State v. Lewis, 211 Conn. 185, 190, 558 A.2d 237 (1989).

In State v. Cassidy, supra, 236 Conn. 131-32, the court based its decision that the prosecutor’s remarks were not harmless on the fact that (1) the state’s case rested entirely on the uncorroborated testimony of the victim, (2) the relative credibility of the defendant and the victim was critical to the jury’s resolution of the case, (3) there was no independent evidence of the crimes to assist the jury in that determination, and (4) the trial court failed to give a curative instruction as requested by the defendant. Similarly, in State v. Shinn, supra, 47 Conn. App. 417, “the defendant and the victim . . . were the only witnesses with firsthand knowledge of the events pertinent to the attempted murder charge. The critical question to be resolved by the jury, therefore, was which of the two eyewitnesses was telling the truth.”

In contrast to the state’s cases in both Cassidy and Shinn, here the state’s case did not rest entirely on the uncorroborated testimony of a single victim. As previously discussed, the defendant was identified as the robber shortly after the robbery by three witnesses, two of whom later identified him in court. The defendant fled when confronted by the police and discarded a vest and pouch that were later identified as belonging to the robber. In addition, the vest contained the hat and mask worn by the robber as well as the keys to the defendant’s New York City apartment. Finally, the defendant made several incriminating statements after being taken into custody.

Although the credibility of the defendant was important to the jury’s resolution of the case, it was not critical due to the existence of independent evidence of the crime, including the physical evidence and the testimony of the other witnesses for the state. Finally, the defendant did not seek a curative instruction nor did he object in any way to the prosecutor’s remarks. See State v. Oehman, 212 Conn. 325, 338, 562 A.2d 493 (1989) (conclusion that comments made by prosecutor did not result in prejudice to defendant sufficient to warrant reversal of conviction buttressed by defendant’s failure to make prosecutorial misconduct claim at trial, or to object to portions of prosecutor’s summation complained of on appeal).

Given the facts of this case, we are persuaded that the allegedly improper comments made by the prosecutor were harmless beyond a reasonable doubt. Accordingly, we affirm the defendant’s convictions on the kidnapping and robbery charges.

Ill

As a final matter, we note that the parties were permitted to file supplemental briefs to address the issue of whether the defendant’s conviction for committing a class A, B or C felony with a firearm pursuant to § 53-202k should be vacated because that statute is a sentence enhancement provision and not a separate crime.

Our Supreme Court has recently held that “§ 53-202k is a sentence enhancement provision and not a separate crime.” State v. Dash, 242 Conn. 143, 150, 698 A.2d 297 (1997). In Dash, the court recognized that the defendant’s total effective sentence was proper, but modified the judgment to “reflect the fact that § 53-202k does not constitute a separate offense.” Id. Accordingly, the defendant is entitled to have his conviction under § 53-202k vacated.

The judgment is reversed in part and the case is remanded with direction to vacate the defendant’s conviction under § 53-202k and to resentence the defendant to a total effective term of imprisonment of twenty years in accordance with this opinion.

In this opinion the other judges concurred.

       The trial court merged the defendant’s conviction for robbery in the first and second degrees relating to Kenneth Wetmore, one of the victims, and thereafter sentenced the defendant to fifteen years on the first degree robbery charge. The trial court also imposed fifteen year sentences for each of the four kidnapping charges and a ten year sentence on the remaining second degree robbery charge, all to be served concurrent with the defendant’s sentence for first degree robbery. Finally, the trial court imposed a five year sentence for the crime of committing a class A, B or C felony with a firearm to be served consecutive to defendant’s sentence for the first degree robbery.

       James Stephenson, a criminologist at the state police forensic science laboratory with experience examining firearms, testified that the gun used by the defendant was a pellet gun that was inoperable because “there were fifteen pellets lodged within the interior portion of the barrel.” Stephenson also testified that there was no way to tell whether the gun was operable without opening it up and inspecting it.

       Because the defendant failed to preserve his claim that the out-of-court identification of him made by Wetmore resulted in a violation of his due process rights, he can prevail on his claim only if: “(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.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
      We find that the defendant has not provided this court with a record adequate to review his claim. The defendant did not object to Wetmore’s out-of-court identification of him at the suppression hearing or at trial. As a result, we have “no way of divining what evidence the state might have presented to rebut the defendant’s claim of an unconstitutional identification procedure . . . .” State v. Tatum, 219 Conn. 721, 727 n.11, 595 A.2d 322 (1991); see State v. Crosby, 36 Conn. App. 805, 819-20, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995) (without necessary factual and legal conclusions regarding reliability of out-of-court identification furnished by trial court, court on appeal left to speculate).

       Because we find that the ou1 ,-of-court identifications made by Gomez and Alston were not unconstitutional, their subsequent in-court identifications of the defendant need not be excluded. State v. Correia, 33 Conn. App. 457, 465, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994); see also State v. Gagnon, 18 Conn. App. 694, 706, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989) (absent tainted pretrial identification, unnecessary to review suggestibility of in-court identification).

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” This right is applied to state prosecutions through 1he due process clause of the fourteenth amendment to the federal constitution. See Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Munoz, 233 Conn. 106, 143 n.1, 659 A.2d 683 (1995) (JBerdtm, J., concurring).
      Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . . .”

       The constitutional right to testify in one’s own behalf is rooted in the guarantees of the fifth, sixth and fourteenth amendments to the United States constitution. See Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); State v. Paradise, 213 Conn. 388, 404, 567 A.2d 1221 (1990).

        Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”

       See footnote 3.

       The court noted that the prosecutor’s statements also infringed on the defendant’s constitutional right to testify in his own behalf; however, because the defendant did not raise that claim, the court did not base its decision on it. State v. Cassidy, supra, 236 Conn. 128 n.16.


author: O’CONNELL, C. J.

text:
    PHOENIX LEASING, INC. v. PETER KOSINSKI
    (AC 16763)
    O’Connell, C. J., and Spear and Freedman, Js.
    Argued December 5, 1997
    officially released February 10, 1998

      Joshua W. Cohen, for the appellant (defendant).

      Seymour N. Weinstein, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The defendant appeals, following a trial to the court, from the judgment in favor of the plaintiff in an action brought to enforce a California judgment. The defendant claims that the trial court improperly (1) found that the California court had jurisdiction over the defendant and (2) denied his special defense of unreasonable disposition of collateral in violation of article nine of the Uniform Commercial Code. The defendant further claims that the plaintiff is barred from recovering judgment in this state because it failed to comply with article nine of the Uniform Commercial Code. We affirm the judgment of the trial court.

The plaintiff brought this action to enforce a $37,199.18 judgment rendered in the Superior Court for Marin County, California, against KCM, Inc., doing business as Kosinski Associates (KCM), and Peter Kosinski. The Connecticut action was brought solely against Peter Kosinski.

The factual predicate for the California action was the plaintiffs lease of certain construction estimating equipment and software to KCM and Kosinski’s personal guarantee of KCM’s performance. The guarantee contained the following forum selection clause: “It is agreed that exclusive jurisdiction and venue for any legal action between the parties arising out of this Guaranty shall be in the Superior Court for Marin County, California.” Pursuant to that clause, the plaintiff obtained the California judgment and subsequently brought the Connecticut action to enforce it. Because the California judgment was obtained by default based on the defendant’s failure to appear, the plaintiff could not proceed under the Uniform Enforcement of Foreign Judgments Act. General Statutes § 52-604. Accordingly, the plaintiff instituted this proceeding as a common law action.

I

This case implicates the full faith and credit clause of the United States constitution, which explicitly provides in article four, § 1, that “Full Faith and Credit shall be given in each State to the . . . judicial Proceedings of every other State. . . .” “As a matter of federal law, the full faith and credit clause requires a state court to accord to the judgment of another state the same credit, validity and effect as the state that rendered the judgment would give it.” Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 56, 570 A.2d 687 (1990).

The United States Supreme Court has declared that interpretation of the full faith and credit clause is a question of federal law and that state courts are bound by its decisions concerning the criteria for applying the clause. Thomas v. Washington Gas Light Co., 448 U.S. 261, 271 n.15, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980). The federal rule includes the proposition that lack of jurisdiction in the original state renders a foreign judgment void. Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 U.S. 691, 704-705, 102 S. Ct. 1357, 71 L. Ed. 2d 558 (1982). “A party can therefore defend against the enforcement of a foreign judgment on the ground that the court that rendered the judgment lacked personal jurisdiction, unless the jurisdictional issue was fully litigated before the rendering court or the defending party waived the right to litigate the issue.” Parker Plastics, Inc. v. Laundon, supra, 214 Conn. 56. The defendant argues that the California judgment is not entitled to full faith and credit in Connecticut because the California court lacked jurisdiction over him. Because the California court did not litigate jurisdiction, we must address that issue here.

“The United States Supreme Court has consistently held . . . that the judgment of another state must be presumed valid, and the burden of proving a lack of jurisdiction rests heavily upon the assailant. . . . Furthermore, the party attacking the judgment bears the burden of proof regardless of whether the judgment at issue was rendered after a full trial on the merits or after an ex parte proceeding.” (Citations omitted; internal quotation marks omitted.) Id., 57. The defendant is attempting to mount a collateral attack on the California judgment. To be successful, he must establish that the California judgment is void, not merely voidable. Rathkopf v. Pearson, 148 Conn. 260, 265, 170 A.2d 135 (1961). “Broadly stated, this would require proof of the lack of a legally organized court or tribunal; lack of jurisdiction over the subject matter, the parties, or both; or want of power to grant the relief contained in the judgment.” Id.

The defendant focuses on lack of jurisdiction over his person. “Unlike subject matter jurisdiction, however, personal jurisdiction may be created through consent or waiver.” United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985). Thus, in commercial transactions, parties often consent to resolve disputes in a particular jurisdiction by incorporating forum selection clauses into their contracts. Connecticut case law is clear that the courts will uphold an agreement of the parties to submit to the jurisdiction of a particular tribunal. Id., 42; Fairfield Lease Corp. v. Romano’s Auto Service, 4 Conn. App. 495, 498, 495 A.2d 286 (1985).

The defendant argues that the forum selection clause at issue here does not provide California with personal jurisdiction over him because it fails to establish the minimum contacts required by due process before a court may exercise jurisdiction over a defendant. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945). The defendant cites no cases in which the minimum contacts rule has been relied on to void a forum selection clause. Indeed, forum selection clauses have generally been found to satisfy the due process concerns targeted by the minimum contacts analysis. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

“The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness. [T]he foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. . . . This basic tenet of foreseeability has given rise to the specific corollary that parties to a contract may agree in advance to submit to the jurisdiction of a given court .... Absent a showing of fraud or overreaching, such forum clauses will be enforced by the courts. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10-12, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972).” (Citations omitted; internal quotation marks omitted.) United States Trust Co. v. Bohart, supra, 197 Conn. 41-42.

In the present case, there is no evidence of fraud or overreaching by the plaintiff. Rather, the defendant claims that he failed to read the guarantee containing the forum selection clause, despite the fact that as a businessman he was accustomed to entering into business contracts. “ ‘The general rule is that where a person [who is] of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is [that person’s] duty to read it and notice of its contents will be imputed to [that person] if [that person] negligently fails to do so. . . .’ ” First Charter National Bank v. Ross, 29 Conn. App. 667, 671, 617 A.2d 909 (1992), appeal dismissed, 228 Conn. 203, 635 A.2d 796 (1994) (certification improvidently granted). This rule is qualified by the intervention of fraud, artifice or mistake not due to negligence. Id. The evidence showed that the lease and guarantee were presented to the defendant by his corporate controller; no representative of the plaintiff was present. There was no evidence of coercion, fraud or mistake. Thus, the defendant had a duty to read the guarantee and cannot now plead his self-induced ignorance of its contents.

The defendant argues that by signing the guarantee containing the forum selection clause, he waived his rights under the due process clause of the United States constitution. The defendant then claims that since his “waiver” was not intentional, knowing and voluntary, it was not valid. The defendant’s argument is flawed for two reasons. First, the defendant fails to identify a single case holding that a forum selection clause constitutes a waiver of due process rights. The defendant mistakenly cites D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S. Ct. 775, 31 L. Ed. 2d 124 (1972), for this proposition. Contrary to the defendant’s suggestion, Overmyer held only that parties to a contract may agree in advance to waive their due process rights to notice and a hearing. Id., 185-87. Although Overmyer mentions the well established ability of parties to agree in advance to submit to the jurisdiction of a particular court, it never asserts that such an agreement constitutes a waiver of due process rights.

Second, the defendant’s attempt to analogize this case to those involving contractual jury trial waivers is unpersuasive. As noted, there is no case law holding that a forum selection clause constitutes a waiver of a constitutional right. On the other hand, a waiver of the right to a jury trial does constitute a waiver of a constitutional right under Connecticut law. See Skinner v. Angliker, 211 Conn. 370, 373, 559 A.2d 701 (1989); L & R Realty v. Connecticut National Bank, 46 Conn. App. 432, 440, 699 A.2d 291, cert. granted, 243 Conn. 933, 702 A.2d 641 (1997); Connecticut National Bank v. L & R Realty, 46 Conn. App. 443, 445, 699 A.2d 297, cert. granted, 243 Conn. 933, 702 A.2d 641 (1997). Thus, forum selection clauses are clearly distinguishable from contractual juiy trial waivers.

We conclude that the forum selection clause in the guarantee was valid and did not violate the defendant’s due process rights. Thus, the trial court properly found that the California court had jurisdiction over the defendant and that the California judgment was valid.

II

The defendant’s second and third claims are based on article nine of the Uniform Commercial Code and concern the plaintiffs disposition of the equipment that had been the subject of the lease. In his second claim, the defendant argues that the trial court improperly denied his article nine special defense, which alleged that the plaintiff failed to give him notice of its intention to dispose of the collateral and failed to dispose of the collateral in a commercially reasonable manner. The trial court concluded that this special defense was a matter that should have been raised in the California proceeding and could be raised here only by opening the California judgment. Such opening would be a collateral attack on the California judgment and is prohibited by the full faith and credit clause of the United States constitution.

We agree with the trial court that “[ajbsent a finding that the California judgment was invalid because of lack of jurisdiction, this court could not, as defendant hoped, open the judgment and consider special defenses that could have been litigated in the California proceeding, since allowing such a collateral attack would be a failure to accord full faith and credit to a judgment that must be treated as res judicata as to all of the claims and potential defenses that could have been made to them.”

The defendant contends that his special defense did not constitute an attack on the underlying bases of the California judgment, but rather that it concerns the plaintiffs postjudgment activities. The defendant then claims that he is entitled to a setoff based on the plaintiffs repossession and sale of the collateral. The trial court did grant the defendant a setoff of $40. The only evidence before the trial court regarding the satisfaction of the California judgment was that the collateral was sold for approximately $40. There was no other evidence before the trial court regarding the value of the collateral. Under these circumstances, the trial court awarded the only setoff warranted by the evidence before it.

The defendant’s third claim is that the plaintiff is barred from recovering judgment in this state because it failed to comply with article nine of the Uniform Commercial Code. That claim is nothing more than an articulation of the defendant’s special defense of unreasonable disposition of collateral. Since we conclude that the trial court properly denied the defendant’s special defense, there is no reason to address the defendant’s third claim separately.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant, however, failed to allege in his special defense that the collateral was sold after the California judgment was rendered.


text:
    CAROL GRASS v. KENNETH GRASS, EXECUTOR (ESTATE OF ETHEL H. GRASS), ET AL.
    (AC 16748)
    Foü, Landau and Daly, Js.

      Argued December 12, 1997
    officially released February 10, 1998

      Roger Sullivan, for the appellants (named defendant et al.).

      Edward Domnarski, with whom, on the brief, were Thomas A. Cloutier and Jeffrey C. Eddy, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendants, Kenneth Grass, as executor of the estate of Ethel H. Grass, and Ronald Grass, appeal from the judgment rendered by the trial court that sustained the appeal by the plaintiff, Carol Grass, from an order of the Probate Court for the district of Madison. The defendants claim that the trial court improperly (1) determined that the bank account at issue was a joint deposit account within the meaning of General Statutes § 36a-290 and (2) imposed on the defendants the burden of establishing by clear and convincing evidence that the decedent did not intend to create such an account. We reverse the judgment of the trial court.

Because no record was made before the Probate Court, the trial court conducted a trial de novo and made an independent determination without regard to the result reached by the Probate Court. See Andrews v. Gorby, 237 Conn. 12, 14-17, 675 A.2d 449 (1996). The trial court found that on October 22,1992, the decedent, Ethel H. Grass, met with Heather DeSilio, manager of the Liberty Bank in Clinton (bank), for the purpose of opening a regular savings account in her name and the name of her daughter, the plaintiff. She was told that the bank would allow her to open the account without her daughter being present. The account was opened with a temporary authorization card signed by Ethel H. Grass. An initial deposit of $60,000 was made by Ethel H. Grass, using a check drawn on her account with another bank. DeSilio then gave her a permanent authorization card for the purpose of obtaining her daughter’s signature. The permanent authorization card contained Ethel H. Grass’ signature and social security number, and the printed name of the plaintiff. The plaintiff never signed the authorization card, nor was she aware during her mother’s lifetime of the existence of the account.

Because the plaintiffs name appeared on the account, the bank set up the account as a joint account on its computer system. In addition, DeSilio testified that the plaintiff could have withdrawn funds from the account if a teller failed to verify whether her signed authorization card was on file; however, such a withdrawal would have been improper and would have subjected the bank to liability for any funds withdrawn without Ethel H. Grass’ approval.

Following the initial deposit, there was no further activity on the account. Ethel H. Grass died on November 1, 1993.

The trial court concluded that the evidence established that the account was a joint account. The court then determined that the defendants had not sustained their burden to show, by clear and convincing evidence, that Ethel H. Grass did not intend to create joint ownership in the account and, therefore, had failed to rebut the statutory presumption created by § 36a-290. Because we conclude, as a matter of law, that a joint account was never created, we find it unnecessary to address the second issue raised by the defendants.

A bank is indebted to its account holders for the amount of the funds that they have deposited. Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 87, 486 A.2d 630 (1985). Pursuant to § 36a-290 (a), “a bank is authorized to release up to the entire balance of a joint account to each and any coholder who so demands. . . . [T]his authorization not only provides protection for payor banks but also recognizes a sufficient property interest in each coholder to warrant characterizing all such deposits as a ‘debt due’ to each coholder . . . .” Fleet Bank Connecticut, N.A. v. Carillo, 240 Conn. 343, 350, 691 A.2d 1068 (1997). Our Supreme Court has stated that “[a] signature card is essential to the creation of a bank account . . . .” Frigon v. Enfield Savings & Loan Assn., supra, 87.

It is clear that, under Connecticut law, “ ‘coholders of a joint account are considered owners of the entire account’ . . Fleet Bank Connecticut, N.A. v. Carillo, supra, 240 Conn. 351, quoting Masotti v. Bristol Savings Bank, 43 Conn. Sup. 360, 364, 653 A.2d 836 (1994), aff'd, 232 Conn. 172, 653 A.2d 179 (1995); with access to the entire amount therein. Whether a joint account has been established, however, depends solely on the deposit contract governing the account. See General Statutes §§ 36a-315 through 36a-323 (Deposit Account Contract Act).

In the present case, the only signed agreement between Ethel H. Grass and the bank was the authorization card, which the bank employed as its signature card for depositors. At the time the account was opened, however, the bank provided her with a deposit account contract, the provisions of which were incorporated by reference in the signature card. The deposit account contract provided in relevant part: “Joint Accounts. Accounts opened in the name of more than one (1) person . . . shall be held by us for the exclusive use of those persons who sign an authorization form for the account and may be paid to any of such persons during the lifetime of all of them or to the survivor or survivors of them.” (Emphasis added.)

The plaintiff relies on Alaimo v. First National Bank of Thompsonville, 24 Conn. Sup. 369, 190 A.2d 924 (1963), for the proposition that a signature card need not be signed to create a joint account with a right of survivorship. The plaintiffs reliance is misplaced. In Alaimo, the court held that “where the intent of a deceased depositor to create a joint account and the bank’s agreement to do so are sufficiently established, the survivor may take the balance, although there is no evidence he knew of the account.” Id., 373. In the present case, the clear language of the deposit account contract provided that the bank agreed to establish a joint account only as to “those persons who sign an authorization form.”

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. . . . When only one interpretation of a contract is possible, the court need not look outside the four comers of the contract. ... In addition, [t]he circumstances surrounding the making of the contract, the purposes which the parties sought to accomplish and their motives cannot prove an intent contrary to the plain meaning of the language used. . . . Finally, [t]he court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn. App. 109, 113-14, 679 A.2d 372 (1996). Therefore, its proper interpretation is a matter of law.” (Internal quotation marks omitted.) DeCarlo & Doll, Inc. v. Dilozir, 45 Conn. App. 633, 638-39, 698 A.2d 318 (1997). “It is axiomatic that a party is entitled to rely upon its written contract as the final integration of its rights and duties. . . . [A]ny ambiguity in the contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 279, 654 A.2d 737 (1995).

We conclude that there is no ambiguity in the deposit account contract. The contract provides that each party must sign an authorization form (i.e., signature card) before he or she can properly obtain access to the funds in the account. Therefore, the signature of each party named on the account is a prerequisite to the establishment of a joint account as to that party.

In sum, the parties’ rights and obligations are set forth in the deposit account contract, which contract is not ambiguous. The proper interpretation of the contract, therefore, is a matter of law. In determining that a joint account had been established, the trial court improperly examined the intent of Ethel H. Grass in opening the account, and because her intent was irrelevant, the judgment cannot stand.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       The plaintiffs appeal from the order of the Probate Court was taken pursuant to General Statutes § 45a-186. The plaintiff claimed that she was aggrieved by the order and decree of the Madison Probate Court, McManus, J., that allowed the proceeds of the bank account at issue to be paid to the executor of the estate of Ethel Grass.

       The defendant Liberty Bank, where the decedent’s bank account was opened, is not involved in this appeal. We refer in this opinion to Kenneth Grass and Ronald Grass as the defendants.

       DeSilio testified that under the deposit account contract, the signature of each party named on the account is required before the account becomes a joint account as to that party and that the plaintiff, not having signed the authorization card, was not a joint account holder.

       General Statutes § 36a-290 provides in relevant part: “(a) When a deposit account has been established at any bank ... in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them. . . .
      “(b) The establishment of a deposit account. . . which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds. . . .”

       The signature card signed by the depositor in Alaimo v. First National Bank of Thompsonville, supra, 24 Conn. Sup. 369, stated: “ ‘We hereby agree to the By-laws . . . and the agreement printed on the reverse side.’ . . .” Id., 370. The reverse side provided in relevant part: “ ‘We hereby agree with each other that any money which is now deposited or may hereafter be deposited to the joint credit of our account . . . shall be subject to the provisions of this agreement to the effect that either of us shall have full power at all times to draw . . . any or all of such money so deposited; and that upon the death of either of us, any money then standing to the credit of said joint account shall belong to the survivor’ . . . .” Id., 370-71.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. JAMAR MCKNIGHT
    (AC 16683)
    Landau, Spear and Daly, Js.
    Argued November 7, 1997
    officially released February 10, 1998

      Dante R. Gallucci, special public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, Donald A. Browne, former state’s attorney, and Cornelius J. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Jamar McKnight, 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 violated his right of confrontation under the sixth amendment to the United States constitution and the constitution of Connecticut, article first, § 8, by refusing to permit him to cross-examine a state’s witness concerning a prior inconsistent statement. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of August 1, 1993, at the Marina Village apartments in Bridgeport, Sadie Harp told a neighbor, Samantha Henderson, that she was angry with her former boyfriend, Fernandez Jackson, and was going to have her cousins, the defendant and Akida McKnight, kill him. Shortly thereafter, a friend of Harp’s, George Wright, drove Harp to the McKnights’ home on Lafayette Street in Bridgeport. Harp later left with Akida McKnight and the defendant.

Wright drove Harp and the McKnights back to an area in Marina Village where Jackson might be found. They located Jackson, who was outside conversing with Derrick Colson and Ronald Reed. Wright dropped off the passengers a short distance from where Jackson was standing. Colson observed that the defendant was brandishing a gun and warned Jackson to run. Harp tried to prevent the defendant from shooting Jackson by grabbing his arm, but the defendant pushed her away. The defendant fired eight or nine shots at Jackson, causing his death. The defendant then pointed the gun at Colson, who noticed that the gun chamber was empty. Colson chased the defendant for a short distance. Henderson saw that the defendant had a gun in his hand, but she did not see the shooting. Wright saw neither the gun nor the shooting.

The defendant’s sole claim on appeal is that the trial court violated his federal and state constitutional rights of confrontation by prohibiting him from cross-examining Colson about a prior inconsistent statement that he made in a companion case. The state objected to the cross-examination claiming that Colson had invoked his privilege against self-incrimination at the prior proceeding, and the court ultimately sustained the objection.

Our examination of the transcript in the prior proceeding reveals that Colson was called to the witness stand and, after the clerk began to swear him in, Colson interrupted, stating: “I don’t have no evidence concerning this case. I’m not swearing to anything. I don’t have any evidence concerning this case. I just told the gentleman outside this is a ploy to put me on the stand. I don’t know nothing about it.” Because Colson’s attorney was not present in the courtroom, the trial court granted a continuance to permit Colson to consult with counsel. The following day, after Colson had conferred with his counsel, he invoked his privilege against self-incrimination.

At the trial in this case, defense counsel argued that he should be able to cross-examine Colson regarding his prior statement because the statement was inconsistent with Colson’s testimony in this case and because it was made before Colson had invoked his fifth amendment privilege. The state argued that the statement was inadmissible because Colson’s subsequent invocation of his fifth amendment privilege was sufficient to protect the prior statement. The trial court sustained the state’s objection.

A review of the transcript in this case is helpful in resolving the defendant’s claim. Initially, defense counsel asked Colson how he responded in the earlier proceeding to a question about whether he saw who shot Jackson. In sustaining the state’s objection, the trial court stated that Colson’s statement that he had no evidence in the case is “a lot different” from a statement that he did not see who had shot Jackson. The court stated: “Well, the answer to [whether Colson saw who shot Jackson] has got to be, because it’s cross-examination and I presume impeachment purpose, it’s got to be directly related to that question and answer. What you’ve just given me is a protestation .... [The statement] doesn’t deal directly with the subject other than the blanket statement that T don’t know anything about this thing’ .... The fact remains that I haven’t seen any evidence to impeach him with the question that you have asked him.” These statements evidence the court’s concern that the prior statement was not necessarily inconsistent with Colson’s testimony in this case. Defense counsel then proposed another question that he intended to ask, namely, whether Colson told anyone that he had no evidence about the case. The court told defense counsel that “you’re just isolating on a preamble statement that he was asked before he asserted his fifth amendment right. . . . From the moment he took the stand his protestations were about his testimony . . . the judge was concerned with his fifth amendment right and his right to counsel . . . .” The court concluded that the prior statement must be considered in its context and that it was within the purview of the privilege against self-incrimination.

“ ‘The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).’ State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985).” State v. Laccone, 37 Conn. App. 21, 30, 654 A.2d 805 (1995), appeal dismissed, 235 Conn. 746, 669 A.2d 1213 (1996). “A claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: (1) whether the constitutional standard has been met; and (2) if so, whether the court nonetheless abused its discretion.” (Internal quotation marks omitted.) State v. Torrice, 20 Conn. App. 75, 87, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989). “ ‘In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of witnesses. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) . . . State v. Valentine, 240 Conn. 395, 407, 692 A.2d 727 (1997), quoting State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992).

“The confrontation right, however, is not absolute and is subject to reasonable limitation. . . . The extent of cross-examination beyond that necessitated by the constitution rests within the discretion of the trial court. . . . Therefore, our courts first determine whether the defendant’s cross-examination satisfied the sixth amendment standards as enunciated in Davis v. Alaska, supra, 415 U.S. 318. If so, [t]he general rule is that further restrictions on the scope of cross-examination are within the sound discretion of the trial judge.” (Citations omitted; internal quotation marks omitted.) State v. Laccone, supra, 37 Conn. App. 30.

Our decision in Laccone, is instructive. In Laccone, the defendant argued that the trial court improperly “excluded a letter written by a state’s witness and thereby restricted cross-examination of that witness on an issue directly related to her truthfulness . . . .’’Id., 23. The defendant argued that exclusion of the letter violated his right to confront and cross-examine witnesses as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We stated that the threshold inquiry in addressing the defendant’s claim was whether the defendant’s cross-examination of the witness satisfied the principles enunciated in Davis v. Alaska, supra, 415 U.S. 318. Accordingly, we will consider, as we did in Laccone, whether the defendant was permitted to expose to the jury facts from which it could appropriately draw inferences relating to Colson’s reliability.

As in Laccone, the defendant in this case was permitted to explore Colson’s character for truthfulness. On cross-examination, Colson testified that he was currently residing at a correctional facility and that he had been convicted of felonies in 1987, 1989 and 1995. The defense asked Colson whether he was a drug dealer at the time of the incident and Colson testified that he was. The defense brought out the fact that Colson spoke to the police about the shooting in December, 1993, and on one occasion prior to that, but that he never told the police that the defendant had shot Jackson. In addition, the defense brought out the fact that Colson had refused to sign the statement that he gave to the police in December, 1993.

In determining whether Colson’s cross-examination was unduly restricted, the entire cross-examination must be examined. State v. Valentine, supra, 240 Conn. 407. Applying this standard, we conclude that the defendant was permitted to expose to the jury sufficient facts from which it could pass on Colson’s veracity. See State v. Laccone, supra, 37 Conn. App. 31. We are persuaded that the trial court’s determination that Colson invoked his fifth amendment privilege, even if improper, did not violate the defendant’s rights under the sixth amendment. “The constitutional threshold having been satisfied, it was within the trial court’s discretion whether to admit further evidence on that issue.” Id.

“In the absence of a violation of the defendant’s constitutional rights, the improper invocation of the [fifth amendment] privilege [constitutes] evidentiary rather than constitutional error.” State v. Wilkes, 236 Conn. 176, 187, 671 A.2d 1296 (1996) (improper invocation of privilege by counsel on behalf of witness). “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.” (Internal quotation marks omitted.) Id., 188.

“It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made ... in other proceedings which contradict those made upon direct examination.” (Internal quotation marks omitted.) Falls v. Loew’s Theatres, Inc., 46 Conn. App. 610, 612, 700 A.2d 76 (1997). “It is the province of the trial court to determine whether a prior statement is in fact inconsistent with statements advanced at trial.” Drew v. K-Mart Corp., 37 Conn. App. 239, 249, 655 A.2d 806 (1995). “In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined.” (Internal quotation marks omitted.) State v. Laccone, supra, 37 Conn. App. 28.

It is evident from the colloquy between the trial court and defense counsel that part of the reasoning for the court’s ruling was that it determined that Colson’s prior statement was not inconsistent with his testimony at the trial. Colson’s prior statement may properly be viewed as a protestation to testifying and not as a statement that he did not know who had shot Jackson. “As in all evidentiary matters, the trial court has broad discretion in passing on the admissibility of prior inconsistent statements.” Drew v. K-Mart Corp., supra, 37 Conn. App. 249. In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the court’s ruling on evidentiary matters. State v. Dwyer, 45 Conn. App. 584, 585, 696 A.2d 1318, cert. denied, 243 Conn. 910, 701 A.2d 335 (1997). On that basis, we cannot conclude that the trial court abused its discretion in refusing to admit the prior statement.

Even if the trial court’s ruling was improper, the defendant has failed to meet his burden of establishing that the ruling constituted harmful error. The defendant contends that because Colson was the only eyewitness presented by the state to identify him as the gunman, the exclusion of Colson’s prior statement that he had no evidence regarding the case was sufficient to affect the verdict and thus constituted harmful error. As previously noted, however, there was extensive cross-examination of Colson regarding his credibility. The defendant was able to show that Colson had three felony convictions, was a drug dealer, had delayed in informing the police, was presently incarcerated and had made no written statements implicating the defendant. We are persuaded that the defendant has failed to meet his burden of establishing harmful error.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The right to confrontation is fundamental to a fair trial under both the federal and state constitutions. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Jarzbek, 204 Conn. 683, 707, 529 A.2d 1245 (1987) [cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988)]; State v. Reardon, 172 Conn. 593, 599-600, 376 A.2d 65 (1977). It is expressly protected by the sixth and fourteenth amendments to the United States constitution; Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Pointer v. Texas, supra, [403]; and by article first, § 8, of the Connecticut constitution. State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925).” (Internal quotation marks omitted.) State v. Cassidy, 236 Conn. 112, 122, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996).