author: DALY, J.

text:
    STATE OF CONNECTICUT v. THOMAS LATORRE
    (AC 16869)
    Lavery, Landau and Daly, Js.
    Argued September 16, 1998
    officially released January 26, 1999

      John R. Gulash, Jr., for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was John F. Blawie, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Thomas Latorre, appeals from the judgment of conviction, following a jury trial, of two counts of robbeiy in the first degree in violation of General Statutes § 53a-134 (a) (2) and with commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly (1) failed to instruct the jury on the essential elements of robbery in the first degree, (2) sanctioned a conviction under General Statutes § 53-202k, (3) instructed the jury in defining what constitutes a completion of robbery in the first degree, (4) determined that the evidence was sufficient for the jury to convict the defendant of robbery in the first degree under the second count and (5) failed to find prosecutorial misconduct on the basis of the prosecutor’s final summation. We reverse the defendant’s conviction in part and remand the case for a new trial on the two counts of robbery in the first degree and with direction to vacate the defendant’s conviction under General Statutes § 53-202k.

The jury reasonably could have found the following facts. On January 24, 1996, at about 9:59 p.m., the victims, Pedro Vega and Tommy Rodriguez, drove to the Marina Apartments in Bridgeport to pick up Vega’s girlfriend, Keesha Franveschi. After parking their car, Vega and Rodriguez proceeded to Franveschi’s apartment. They intended to meet with Franveschi and a friend and then to go to a nightclub. Franveschi’s friend was not ready to leave, however, so the others went to a liquor store without her. After the trio returned from the liquor store, Franveschi went to her friend’s apartment to help her get ready, and Vega and Rodriguez waited outside.

As Vega and Rodriguez were waiting, they were attacked by the defendant and another male who were both wearing ski masks. The defendant accosted Rodriguez while the other man accosted Vega. The defendant, while holding a gun to Rodriguez’ head, grabbed Rodriguez’ gold chain but was able to take only a few links. Meanwhile, the other man pushed Vega against a wall and demanded his money. Vega, however, did not have any money and gave his gold chain and Knicks jacket to his attacker. The attackers then walked away. Franveschi had seen the attack from her friend’s apartment, ran outside and unsuccessfully attempted to retrieve the jacket. Vega and Rodriguez lost sight of Franveschi and the attackers and then heard gunshots.

After hearing the gunshots, Vega and Rodriguez ran to Vega’s car and drove to the police station. Meanwhile, the attackers ran to their car, put the gun and Vega’s jacket in the trunk and walked away. Vega and Rodriguez soon returned to the scene with an officer, whom Franveschi led to the attackers’ car. The police had the car towed to the police station, where the officers recovered various items, including the gun and jacket. The defendant was arrested and subsequently convicted. This appeal followed.

I

The defendant first claims that the trial court improperly instructed the jury. Specifically, the defendant claims that he is entitled to have his two first degree robbery convictions reversed because the trial court failed to instruct the jury on the statutory elements of robbery.

The defendant concedes that his claim is unpreserved. Nonetheless, the defendant argues that he is entitled to appellate review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree. Under Golding, a defendant can prevail on an unpreserved claim “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. The first two Golding conditions are determinations of whether the defendant’s claim will be reviewed and the third and fourth conditions involve a review of the claim itself. State v. Burgos, 37 Conn. App. 404, 412, 656 A.2d 238, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995).

The defendant’s claim is entitled to Golding review because the defendant raises a constitutional claim involving a fundamental right and the record is adequate for review. See State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). “If justice is to be done ... it is of paramount importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime.” (Internal quotation marks omitted.) State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982); see also State v. Anderson, 212 Conn. 31, 37, 561 A.2d 897 (1989).

We turn, therefore, to the third prong of Golding. Robbery is an offense against the person, the distinguishing characteristic of which is the intimidation of the victim. Under the plain language of General Statutes § 53a-133, a person commits robbery when, in the course of committing a larceny, he or she engages in forcible conduct with a proscribed purpose. A larceny does not constitute a robbery unless the force or threat of force is for the purpose of coercing the victim in the manner described in § 53a-133. The term purpose is synonymous with the terms “object” and “intent.” Intent may be determined from the inferences drawn from the defendant’s conduct because intent is a mental process which ordinarily can be proven only by circumstantial evidence. State v. Channer, 28 Conn. App. 161, 166, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992).

During its jury charge, the trial court instructed the jurors on the statutory elements of larceny. The trial court then instructed the jury on the elements of first degree robbery. The court stated that “[r]obbery in the first degree reads, ‘A person is guilty of robbery in the first degree when, in the coruse of the commission of a crime or in the immediate flight therefrom, he or an other participant in the crime is armed with a deadly weapon.’ What crime? In the crime of larceny, and it’s being accomplished by the introduction of the use or threatened use of force, which under this statute defining robbery in the first degree, alleges as the information does, that the participants were armed with a deadly weapon. . . . There are several ways in which this offense may be committed. There are several different ways in which the force, threatened or actual use of force, can be committed. They’re not charged, all of them, in this case; it’s simply while armed with a deadly weapon. They were attempting to commit a larceny by the use or threatened use of force demonstrated by the presence of a deadly weapon.”

In its charge, the trial court did not mention the elements of robbery under § 53a-133 and merely provided the elements of first degree robbery under § 53a-134. The court cannot properly instruct the jury of the elements of § 53a-134 without first instructing the jury of the elements of § 53a-133 because, under § 53a-134, a defendant cannot be convicted of first degree robbery without first committing a robbery. The trial court failed to instruct the jury concerning the intent requirement of § 53a-133. Although the trial court’s charge arguably covered the requirement of § 53a-133 that “[a] person commits robbery when in the coruse of committing a larceny, he uses or threatens the immediate use of physical force upon another person,” the trial corut did not mention that the defendant must have engaged in that conduct “for the purpose of (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” (Emphasis added.) General Statutes § 53a-133.

The state argues that the trial court’s instructions, when read as a whole, were constitutionally adequate because they fairly presented the law in a way that could not have misled the jury. Specifically, the state contends that because the trial court repeatedly mentioned the terms “force” and “deadly weapon,” the court effectively conveyed the statutory elements of robbery under § 53a-133 to the jury. The state relies on State v. Wideman, 38 Conn. App. 581, 584, 663 A.2d 409, cert. denied, 235 Conn. 907, 665 A.2d 906 (1995), to support its argument. The state’s reliance on Wideman is misplaced.

In Wideman, this court upheld a defendant’s guilty plea to an attempted robbery charge despite the trial court’s failure to inform him specifically that § 53a-133 requires proof of the use or threatened use of physical force against another person. We concluded that the trial court’s references to the defendant about his being armed with a deadly weapon were sufficient to inform him of the nature of the crime for which he was charged since the trial court need not precisely comply with Practice Book § 31-19, formerly § 711, when there are other reasons to believe that the defendant understands the statute under which he is charged. In other words, “the concept of being aimed with a deadly weapon, by its very nature, was sufficient to convey to the defendant that the crime of robbery in the first degree included the use or threatened use of physical force on another.” Id., 586-87.

Although a trial court is not required to comply with each and every requirement of Practice Book § 39-19, the trial court is constitutionally required to instruct the jury properly on every essential element of the crime charged. State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995). A trial court’s failure to instruct the jury on an element of a crime deprives a defendant of his or her right “to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Internal quotations omitted.) State v. Gabriel, 192 Conn. 405, 414, 473 A.2d 300 (1984); see State v. Denby, 35 Conn. App. 609, 614, 646 A.2d 909 (1994), aff'd, 235 Conn. 477, 668 A.2d 682 (1995). Wideman, therefore, is not controlling.

Finally, the state has failed to meet its burden of proving that the omission in the trial court’s jury instruction was harmless. “It cannot be considered harmless error for a jury to find an accused guilty without even knowing what are the essential elements of the crimes charged.” (Internal quotation marks omitted.) State v. Anderson, supra, 212 Conn. 36. Moreover, any such error could not be cured even if we were “ ‘satisfied after the fact of conviction that sufficient evidence was before the jury so that it would or could have found that the state proved the missing element had the jury been properly instructed.’ ” Id., 37. We cannot conclude, therefore, that the court’s omission in the jury instruction was harmless.

Because we have concluded that the trial court’s failure to instruct the jury on the intent requirement of § 53a-133 was harmful error and mandates reversal of the first degree robbery conviction, we need not address the defendant’s arguments that the jury was never instructed regarding the requirements that the force be used or threatened against another person and that it must occur in the course of committing a larceny.

II

The defendant’s second claim on appeal is that his conviction under General Statutes § 53-202k must be set aside. Specifically, the defendant claims that his conviction must be reversed because, under State v. Dash, 242 Conn. 143, 698 A.2d 297 (1997), § 53-202k is merely a sentence enhancement provision, not a crime under which he could be convicted.

In view of the fact that we have determined that the defendant’s conviction of robbery in the first degree must be vacated, the defendant’s conviction under § 53-202k must fall. Nonetheless, even if we had upheld the defendant’s first degree robbery conviction, we would be constrained to vacate his conviction under § 53-202k. As the defendant points out, in Dash, our Supreme Court concluded that § 53-202k was intended to serve as a sentence enhancement provision, not as a separate crime under which a defendant could be convicted; § 53-202k merely establishes an additional five year penalty for a defendant who commits a class A, B or C felony with a firearm. Id., 149. Although it was not decided until six months after the defendant was convicted, Dash applies retroactively to this case. See State v. Tinsley, 47 Conn. App. 716, 720, 706 A.2d 1008, cert. denied, 244 Conn. 915, 713 A.2d 833 (1998). Accordingly, even if his conviction of robbery in the first degree had not been reversed, the defendant would be entitled to have his conviction under § 53-202k vacated. See State v. Carter, 47 Conn. App. 632, 649, 708 A.2d 213, cert. denied, 244 Conn. 909, 713 A.2d 828 (1998).

Our conclusions on the defendant’s first and second claims are dispositive of this appeal. We will address the defendant’s claim regarding the instruction as to the definition of a completed first degree robbery because it is likely to arise on retrial. We will also address the defendant’s claim that the evidence was insufficient to support his conviction on the second count of first degree robbery because its disposition could support the defendant’s acquittal on that count. See State v. White, 229 Conn. 125, 141, 640 A.2d 572 (1994).

Ill

The defendant’s third claim on appeal is that the trial court improperly instructed the jury about what constitutes a completed first degree robbery. Specifically, the defendant claims that the trial court reduced the state’s burden of proof by instructing the jury that a robbery is complete even if it is interrupted before the robber can permanently deprive the owner of his or her property.

The defendant failed to preserve this claim at trial. He therefore seeks review pursuant to Golding. The state focuses on the third prong of Golding, arguing that no constitutional violation clearly exists that deprived the defendant of a fair trial. We agree with the state.

The trial court instructed the jury that a “robbery is a larceny, [the] taking of property of another with the intent to permanently deprive the owner of their property. A person commits larceny when, with intent to permanently deprive another of property or to appropriate the same to himself, he wrongfully takes, obtains, withholds such property from an owner. So that’s the simple generic definition of a larceny. Does it have to be completed? No. A crime may be interrupted uncompleted, things can go awry, but the intent in the mind of the accused at the time the act is taking place is the question.” The defendant argues that he was deprived of a fair trial because the trial court’s instruction essentially amounted to a charge on attempt, but because the trial court failed to charge the jury on the statutory elements of attempt, it unconstitutionally diluted the state’s burden of proof.

The defendant misunderstands the difference between the robbery statutes and the attempt statute. The trial court neither intended to instruct nor instructed the jury on the statutory elements of attempt. Under § 53a-133, a larceny becomes a robbery when the perpetrator, through the use or threatened use of force, intends to deprive another of property permanently. The defendant does not provide, nor can we find, authority supporting the proposition that a defendant commits only attempted robbery and not first degree robbery where the defendant intends to deprive another of property through the use or threatened use of force, actually does deprive the owner of that property, yet fails to deprive the owner of the property permanently because he or she is apprehended. Accordingly, the defendant has not demonstrated that the “alleged constitutional violation clearly exists and clearly deprived [him] of a fair trial . . . .” State v. Golding, supra, 213 Conn. 240.

IV

The defendant’s fourth claim on appeal is that the evidence was insufficient to convict him of the second count of first degree robbery. Specifically, the defendant claims that because he was charged as a principal, the juiy was not instructed about accomplice liability, and that because the evidence showed that the defendant did not use or threaten to use force against Vega or actually deprive Vega of his property, the defendant could be convicted under the second count only as an accomplice.

We conclude that the evidence was sufficient to convict the defendant as a principal in the robbery against Vega. The plain language of § 53a-134 clearly indicates that a person is guilty of first degree robbery when in the course of a robbery, “he or another participant in the crime ... is armed with a deadly weapon . . . .” Here, even though an unidentified male accosted Vega, the evidence clearly established that the defendant, while standing next to Vega, threatened Rodriguez with a pistol. The defendant threatened the immediate use of force against Vega while robbing Rodriguez because the defendant and the other man were acting in concert to commit the crime. Therefore, we conclude that the evidence was sufficient to prove that the defendant acted as a principal in the robbery of Vega.

The judgment is reversed only as to the defendant’s conviction of two counts of robbery in the first degree and of committing a class A, B or C felony with a firearm and the case is remanded for anew trial on those charges. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . .

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm . . . shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person . . . without a permit to carry the same . . . .”

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct, which aids in the commission of the larceny.”

       Practice Book § 39-19, formerly § 711, provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered . . . .”


source: Caselaw Access Project

author: FREEDMAN, J.

license: Public Domain

text:
    GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS v. LOWELL P. WEICKER, JR.
    (AC 17460)
    Landau, Spear and Freedman, Js.

      Argued September 23, 1998
    officially released January 26, 1999

      Julia B. Morris, with whom, on the brief, were Michael D. O’Connell and Matthew W. Den Ouden, for the appellant (plaintiff).

      Daniel R. Schaefer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, for the appellee (defendant).
   Opinion

FREEDMAN, J.

This is an appeal from the judgment of the trial court denying the plaintiffs request for a writ of mandamus to compel the defendant to commence negotiations with the plaintiff pursuant to General Statutes § 47-66h (a). We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff brought this mandamus action alleging that, pursuant to General Statutes § 47-66h (a), the defendant is required to enter into a trust agreement with each willing indigenous Indian tribe. The plaintiff alleged that in March, 1991, it informed the defendant of its willingness to enter into a trust agreement pursuant to § 47-66h (a). The plaintiff further alleged that at all times since March, 1991, the defendant has refused to enter into a trust agreement or to institute a process of dialogue and negotiation leading to a trust agreement. The plaintiff claimed that it was therefore deprived of a clear legal right, and sought a writ of mandamus ordering the defendant “to begin negotiation of a trust agreement with the plaintiff [Golden Hill Paugussett Tribe of Indians] as mandated by § 47-66h.”

The defendant filed an answer and three special defenses. The trial court, in denying the request for mandamus, considered only the third special defense, that is, that the Indian Affairs Task Force (task force) failed to issue a final report containing trust agreement recommendations, a condition precedent to the defendant’s entering into a trust agreement according to § 47-66h. The trial court rendered judgment for the defendant concluding, in light of the statute, its legislative history and other extrinsic evidence, that (1) the 1991 report of the task force was the final report, (2) this final report did not contain any recommendations as to trust agreements as required by § 47-66h and (3) a writ of mandamus could not issue in the absence of trust agreement recommendations in the final report. It is from that judgment that the plaintiff appeals.

Before turning to the specific issues involved, it is important to note that “[a] party seeking a writ of mandamus must establish: (1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to performance of that duty; and (3) that the plaintiff has no adequate remedy at law. . . . Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus. ... In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity.” (Citations omitted; internal quotation marks omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990).

“Even [if] the plaintiff has a legal right to the matter sought, the writ will not issue if that right be nothing more than a naked right. In addition to a bare legal right, he must have a proper interest in, and a proper purpose to be served by, the doing of the act sought to be ordered. ... If the right sought to be enforced is or has become a mere abstract right, the enforcement of which will be of no substantial or practical benefit to the petitioner, the writ will not issue though otherwise the applicant would be entitled to it.” (Internal quotation marks omitted.) Sotire v. Stamford, 19 Conn. App. 505, 514, 563 A.2d 1021, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989).

Section 47-66h (a) provides that the governor shall enter into a trust agreement with each willing indigenous Indian tribe, and that any such trust agreement “shall be consistent with recommendations on trust agreements contained in the final report of the Indian AJfairs Task Force made pursuant to special act 87-103.” (Emphasis added.) It is important to understand the history of this statute and the task force prior to analyzing the claim of the plaintiff.

In 1987, the task force was established “to review existing statutes, budgets, agencies and programs affecting Connecticut Indians.” Special Acts 1987, No. 87-103. The task force was given a nonexclusive list of topics for study and recommendation, and was directed to submit a report to the governor and General Assembly on or before January 1, 1989.

In 1989, the task force submitted its first report to the General Assembly. The report recommended, in part, that “the Governor shall pursue a trust agreement with each willing indigenous Tribe; such trust agreement shall define the special nature of the state’s relationship with each particular tribe.” The report also recommended an extension of the task force’s authorization for an additional thirteen months, until February 1, 1990, for further study of several topics including “[fjurther description and review of trust agreements.” By Public Acts 1989, No. 89-368, § 28, the legislature amended Special Acts 1987, No. 87-103, by extending the period for the report of the task force until February 1, 1990. It also added “description and review of trust agreements” to the list of topics for the task force to consider. Section 17 of Public Acts 1989, No. 89-368, was the genesis of § 47-66h, presently at issue.

In 1990, the task force submitted its second report to the General Assembly. In the section entitled “Recommendations, 1990,” the task force suggested, “[tjhat the language of 17 (a) requiring tribal-state trust agreements to be consistent with recommendations developed by the Indian Affairs Task Force be deleted as a potentially unconstitutional delegation of power and an interference with state and tribal sovereignty.” Under the section entitled “Discussion of Issues,” a subsection entitled “What is a trust agreement?” includes a “partial list of matters which might be negotiated in trust agreements.” In another subsection entitled “Fiscal Impact of Trust Agreements,” the task force concluded that because only the Golden Hill Paugussett Tribe had expressed readiness to enter into a trust agreement, the part-time efforts of one representative of the state would be fully adequate to negotiate such agreements. The 1990 report concluded by requesting another extension of the task force to consider outstanding issues. In this section of the report, the task force noted that “useful insights may be gained through review of the initial steps of the trust agreement process and that these might be incorporated in future legislation.”

By Special Acts 1990, No. 90-25, the legislature extended the reporting period of the task force until February 1, 1991. Special Acts 1990, No. 90-25, did not change the requirement that trust agreements be consistent with any trust agreement recommendations contained in the final report of the task force. The act specifically provided that “review and analysis of the trust agreement process” be one of the items for the task force to study and make recommendations. In 1991, the task force issued its final report, which did not include any trust agreement recommendations.

I

We first consider whether the trial court properly concluded that the 1991 report constituted the final report of the task force, and that this final report did not contain trust agreement recommendations as required by § 47-66h. The plaintiff contends that the legislative intent would best be served by finding that the necessary recommendations were contained in the 1989 report and were supplemented in the 1990 report and that, therefore, the 1990 report constituted the “final report” on the issue.

In support of its argument, the plaintiff notes that the legislature allowed for serial reporting by the task force. Specifically, although Special Acts 1987, No. 87-103, provided that the task force was to submit its report to the governor and General Assembly on or before January 1, 1989, the act further stated that “[t]he task force may report recommendations, in whole or in part, at any time prior to said date.” This language is reiterated in § 28 (c) of Public Acts, 1989, No. 89-368, which extended the reporting period of the task force until February 1, 1990, and subsection (c) of Special Acts 1990, No. 90-25, which extended the reporting period until February 1, 1991. We disagree with the plaintiff, however, and conclude that the statutory language, the legislative history and the factual record support the trial court’s conclusion that the final report for proposes of § 47-66h was the report issued in 1991.

As previously noted, § 47-66h provides that a trust agreement “shall be consistent with recommendations . . . contained in the final report” of the task force. (Emphasis added.) The task force issued three reports, in 1989, 1990 and 1991. The first report, in 1989, recommended that the governor enter into a trust agreement with each willing indigenous tribe. It also requested an extension until February 1,1990, for the study of several topics including “further description and review of trust agreements.” The 1990 report contained a section about trust agreements, including a “partial list of subjects which might be negotiated in trust agreements.” It did not, however, contain any specific recommendations regarding trust agreements as required by § 47-66h.

The 1990 report requested that the task force be extended again, noting that it believed that “useful insights may be gained through review of the initial steps of the trust agreement process and that these might be incorporated in future legislation.” This language supports the inference that the task force did not view its work as complete with regard to trust agreements. Special Acts 1990, No. 90-25, again extended the life of the task force until February 1, 1991. Pursuant to this act, among the topics that the task force was to continue to study was the “review and analysis of the trust agreement process.” As the trial court noted, this language supports the inference that the work of the task force was not yet complete as far as trust agreements were concerned. The legislative history of Special Acts 1990, No. 90-25, further supports this conclusion. Specifically, the Senate proceedings reflect that in addition to extending the life of the task force, one of the purposes of the act was to enable the task force to continue to study certain issues, including trust agreements.

. The plaintiff claims that the trial court improperly relied on evidence outside of the legislative record in support of its conclusion that the final report was the 1991 report. Specifically, the trial court relied on a series of internal task force documents from the summer and fall of 1991 that discuss the continuing need for a final report. Further, in a July 20, 1990 memorandum from Senior Attorney David Keith Leff of the office of legislative research to Representative John W. Thompson, chairman of the task force, responding to the question of when trust agreements may be negotiated, Leff concluded that there was no final report. The trial court also relied on the plaintiffs responses to interrogatories, in which the plaintiff stated that the final report of the task force was not submitted to the governor and General Assembly until November 21, 1991. The plaintiff does not claim that these materials were irrelevant, only that it was not necessary for the court to consider them. The plaintiff cites no authority in support of this proposition and we conclude that the court properly considered these items in arriving at its decision.

The trial court correctly determined that the final report of the task force was the 1991 report, and that this report did not contain any trust agreement recommendations. Even if we were to agree that all of the reports collectively constitute the final report, our conclusion that the task force failed to issue a final report containing trust agreement recommendations would remain unchanged. In so ruling, we disagree with the plaintiff that the trial court should have given greater weight to a letter dated February 22, 1991, from Representative Thompson to Governor Weicker. This letter indicated, in part, that a final report would be forthcoming. It specifically stated that the task force had not changed its previous recommendations, and therefore did not see a need to restate them. The trial court provided several reasons why it deemed this letter insufficient to prove that “final” as used in § 47-66h denotes “decisive” or “conclusive” as the plaintiff had argued.* The trial court’s ruling in this regard is fully supported by the other evidence that it considered.

II

Having concluded that the task force did not issue recommendations regarding trust agreements in its final report, we next consider whether the trial court properly denied the plaintiffs request for a writ of mandamus.

As previously noted, a writ of mandamus will not issue for the enforcement of a naked or abstract right. See Sotire v. Stamford, supra, 19 Conn. App. 514. According to § 47-66h, any trust agreement entered into between the governor and a willing indigenous Indian tribe shall be consistent with recommendations of the task force regarding trust agreements. Because the task force did not issue a final report containing trust agreement recommendations, the plaintiff possesses a mere naked or abstract right. As such, the trial court properly concluded that the writ of mandamus could not lie because the enforcement of the right to have the defendant enter into negotiations would be of no substantial or practical benefit to the plaintiff. Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-66h (a) provides: “Effective October 1, 1990, the Governor shall enter into a trust agreement with each willing indigenous Indian tribe. Any such trust agreement shall define the powers and duties possessed by the tribe that is party to the agreement and shall be consistent with recommendations on trust agreements contained in the final report of the Indian Affairs Task Force made pursuant to special act 87-103.”

       The complaint originally named Governor Lowell P. Weicker, Jr., as the defendant. The plaintiff filed its second amended complaint on May 31, 1996, naming Governor John G. Rowland as the defendant.

       The defendant also asserted as special defenses that (1) § 47-66h is unconstitutional and (2) § 47-66h violates the principle of separation of powers and improperly interferes with the executive branch.

       Public Acts 1989, No. 89-368, § 17 (a) provides: “Effective October 1, 1990, the governor shall enter into a trust agreement with each willing indigenous Indian tribe. Any such trust agreement shall define the powers and duties possessed by the tribe that is party to the agreement and shall be consistent with recommendations on trust agreements contained in the final report of the Indian Affairs Task Force made pursuant to special act 87-103, as amended by section 28 of this act.”

       See footnote 7.

         The final report states: “The Task Force concluded that Public Act 89-368 has important implications and far-reaching legislative concerns with respect to the relationship between the State of Connecticut and its indigenous Native American Tribes. The Task Force also concluded that more time is needed to fully assess the short and long term effectiveness of P.A. 89-368. A1 this time the Task Force on Indian Affairs has decided not to initiate any new remedial legislation. The final recommendation of the Task Force was to request that the Program Review Committee undertake a review of the Connecticut Indian Affairs Council.”

       The section of the 1990 report entitled “What is a trust agreement?” states: “Under P.A. 89-368 § 17 (a) and Raised Bill No. 6000 § 8 (a) & (c), the Task Force on Indian Affairs has provided that each indigenous Indian tribe may enter into a trust agreement with the state which shall define ‘the mutual obligations of the tribe and the state of Connecticut in relation to each other.’
      “These trust agreements may involve the whole range of governmental duties and actions and will cover subjects that are of particular concern to the tribes and the state or its subdivisions. A partial list of matters which might be negotiated in trust agreements would include: 1) services the state will provide to the tribe, e.g., maintenance of roads, provision of signs or boundary fences, surveying, expert advice on forestry, environmental protection, sanitation or building codes, stocking of fish, or provision of fish and game officers; 2) tribal duties in return for services, e.g., following state regulations on lumbering, protection of wetlands, or bag and season limits on hunting and fishing or developing its own regulations in cooperation with state agencies; 3) provisions for law enforcement on the reservation of major crimes and those committed by non Indians, by state police or municipal police or, someday, in cooperation with tribal deputies; 4) the applicability or not of state taxes to transactions involving the reservation; 5) the possible provision by the state of assistance in developing tribal governmental structures and codes or in planning for tribal economic development; and 6) the funding of such services the state may undertake to provide.
      “The trust agreement provision is designed to create a method for sorting out the present confusion on the part of the state and the tribes regarding what governmental actions are allowable by each or are required by each in a way that will be sensitive to the individual circumstances and needs of each tribe. It is hoped that trust agreements can fill the gaps existing in the absence of federal involvement with Connecticut tribes and that the state and tribal governments can use these negotiated agreements to meet the needs and concerns of both.”

       Senator Steven Spellman stated: “Basically, this bill does two things. ... It extends the life of the Task Force on Indian Affairs in regard to their reporting date from February 1, 1990 to February 1, 1991, and it increases their areas of concern to address tribal funds, Indians who are not indigenous tribes in Connecticut, the issue of sovereignty, review and analysis of the trust agreement process and also the definition of ‘care and management of reservation lands.’ ” (Emphasis added.) 33 S. Proa, Pt. 10, 1990 Sess., p. 3270, remarks of Senator Steven Spellman.

       The memorandum states: “The law requires that these [trust] agreements define the powers and duties possessed by the tribe and be consistent with recommendations on trust agreements contained in the final report of the Indian Affairs Task Force. Although the 1990 task force report discussed in general what might be included in a trust agreement, there have been no official recommendations on the subject (Legislative Task Force on Indian Affairs, Report to General Assembly, 2/90, at 11 and 12). Furthermore, with the extension of the task force until February 1, 1991, including a mandate to review and analyze the trust agreement process, there is no final report.”

       The letter states: “I am pleased to inform you that the Indian Affairs Task Force completed its duties on the evening of January 31, 1991. A small subcommittee of the Task Force has been delegated to draft a brief report for your consideration.
      “The task force believes that Public Act 89-368 was important and far-reaching legislation concerned with relationships between the State of Connecticut. and its indigenous Native American tribes. As a consequence, all issues that were referred to us were discussed, but at this time the Task Force has decided not to initiate any new or remedial legislation. Instead, the Task Force will recommend to the Program Review Committee that it undertake a review of the Connecticut Indian Affairs Council. The task force has not changed its previous recommendations on the other matters referred to us, and therefore did not see a need to restate them. Those recommendations will need further deliberation by committees of cognizance in the General Assembly.”

       The reasons stated by the trial court were: “(1) [The letter] relies on Representative Thompson’s belief that the task force can incoiporate the recommendations as to trust agreements contained in the 1990 report into the 1991 report, yet there is no statutory basis for this belief; (2) the letter states the opinion of Representative Thompson alone without any indicia that the letter or its contents were adopted by the entire task force . . . and (3) the actual 1991 report does not state that it incorporates by reference the recommendations of the 1990 report, despite the sentiment shared by Representative Thompson in [the letter].” (Emphasis in original.)

       Because we conclude that the writ would not lie in any event as it seeks the enforcement of a naked or abstract right, it is unnecessary to consider the plaintiffs argument that recommendations of the task force are not a condition precedent to the defendant's entering into a trust agreement.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. ROLAND GAINER
    (AC 16166)
    Lavery, Hennessy and Sullivan, Js.
    Argued September 21, 1998
    officially released January 26, 1999

      John M. Barton III, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Roland Gainer, appeals from judgment of conviction, rendered after a court trial, of robbery in the first degree in violation of General Statutes § 53a-134, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134, burglary in the first degree in violation of General Statutes § 53a-101, conspiracy to commit burglary in violation of General Statutes §§ 53a-48 and 53a-101, larceny in the second degree in violation of General Statutes § 53a-123, conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 and 53a-123 and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court improperly (1) ruled that a five year old child was competent to testify when a competency hearing failed to demonstrate that the witness had the ability to relate the events of the incident that occurred over a year earlier and the witness’ trial testimony showed his inability to do so and (2) inferred essential facts from its disbelief of the defendant’s testimony and his failure to call witnesses to support his alibi, whereby the trial court’s findings of guilt were not supported by evidence proven beyond a reasonable doubt. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. The victim, Wanda Matos, was residing at an apartment on Chapel Street in New Haven in December, 1994. On Friday, December 9, 1994, Matos was at home with her then four year old son, Joaguim Rogers, her cousin’s nine year old son and a seventeen year old friend when the defendant, who was known to Matos, and an unidentified man entered the apartment. While Rogers was sitting on Matos’ lap, the unidentified man grabbed Matos’ hair, put a gun to her head and demanded her jewelry and money. The unidentified man then took Matos’ jewelry from her person. During this encounter, Rogers was yelling and became hysterical, causing the unidentified man to become nervous and to say to the defendant, “Let’s go, let’s go.” The defendant ignored him, demanded to be given the gun and said, “I feel like shooting this bitch. I should shoot you, bitch.” Rogers continued crying and screaming and the defendant told Matos that if she did not quiet him, he would.

The defendant next demanded Matos’ money and threatened to shoot her if she did not comply. Matos told the two men that there was a bag containing $8000 under a brick outside the window. One of the men retrieved the money, and both men left. Matos ran downstairs to a restaurant on the first floor of the building, where someone called the police and Matos reported the crime.

When the police arrived soon thereafter, Matos told them she had been robbed at gunpoint, named the defendant as a perpetrator and gave his description. Other witnesses told police that they saw two males exit the door next to the restaurant and saw them get into a small, beat-up four door vehicle with one taillight out and Connecticut license plates, which was driven by a black female named Audrey. Matos later identified the defendant’s picture but never followed up by going to the precinct to give the police a statement.

An arrest warrant was procured, and the defendant was subsequently arrested. He waived his right to a jury trial and was tried to the court in February, 1996. The defendant was convicted on all charges. This appeal was taken from that judgment.

I

The defendant first claims that the trial court improperly ruled that a five year old witness was competent to testily. Specifically, the defendant argues that the trial court abused its discretion in determining that Rogers, the five year old son of the victim, was competent to testify, despite the witness’ inability to recount basic details regarding the events at issue in this trial. We disagree.

Prior to the commencement of trial, the court held a hearing to determine whether Rogers was competent to testify. During the competency hearing, the prosecutor asked Rogers a series of questions to determine whether he understood the difference between telling a lie and telling the truth and whether he knew that he would be punished if he did not tell the truth. Rogers responded that he promised to tell the truth. Thereafter, the state attempted to have Rogers sworn in as a witness, to which defense counsel objected, claiming that the proper showing regarding competency had not been made. The trial court agreed, which prompted the state to then ask Rogers whether he understood that he was in court, who the judge was and that it was important to tell the truth to the judge. Defense counsel again objected and questioned Rogers’ ability to testify primarily on the basis of his age. The trial court determined that it was satisfied that the witness had met the legal requirements for competency, noted the defendant’s exception and then swore in Rogers as a witness.

The defendant now claims that the trial court improperly deemed the witness competent to testify because the witness failed to relate the events of the incident at issue during the competency hearing. A close review of the transcript indicates, however, that while the defendant objected to the witness’ being deemed competent to testify on numerous grounds, he did not object specifically to the witness’ failure to demonstrate an intelligible recollection of the facts. Because the defendant made numerous objections, however, he may have believed that he objected on this ground, and, therefore, we will review the evidentiary claim.

Our Supreme Court has stated that “[i]n determining the competency of a proposed witness the trial court should consider the capacity of the witness to receive correct sense impressions, to comprehend the facts to be developed, to recollect and narrate facts intelligently, and to appreciate the moral duty to tell the truth. . . . State v. Boulay, 189 Conn. 106, 108, 454 A.2d 724 (1983).” (Emphasis in original; internal quotation marks omitted.) State v. Weinberg, 215 Conn. 231, 242, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

On the issue of the measure of capacity required for a determination of competency, we look for guidance to the federal courts. “Rule 601 of the Federal Rules of Evidence provides that, except where otherwise provided by the rules, ‘[e]very person is competent to be a witness . . . .’ Pursuant to this rule, the federal courts treat questions of competency as simply one aspect of the credibility of a witness. 3 J. Weinstein & M. Berger, Evidence § 601 [05]. Federal Rule 601 has not been construed, however, as eliminating a court’s power to prevent a witness from testifying. To the contrary, a court maintains the obligation to ensure that a witness’ testimony meets the minimum standard of credibility necessary to permit a reasonable person to put any credence in that testimony. As noted commentators have acknowledged: ‘In making this determination the court will still be deciding competency. It would, however ... be more accurate to say that the court will decide . . . minimum credibility. This requirement of minimum credibility is just one aspect of the requirement of minimum probative force—i.e., relevancy. Regardless of terminology, the trial judge may exclude all or a part of the witness’ testimony on the ground that no one could reasonably believe the witness could have observed, remembered, communicated or told the truth with respect to the event in question.’ 3 J. Weinstein & M. Berger, supra, § 601[01].” Id., 242-43.

Rule 601, “as applied by the federal courts, establishes a reasoned approach to determining the admissibility of a witness’ testimony.” Id., 243. The Weinberg court adopted “the rule that where the competency of a witness is challenged, the threshold question to be answered by the court is whether the testimony of that witness is minimally credible. If the testimony of a witness passes the test of minimum credibility, and is otherwise relevant, the testimony is admissible and the weight to be accorded it, in light of the witness’ incapacity, is a question for the trier of fact.” Id., 243-44.

In his brief, the defendant points to inconsistencies in the witness’ testimony to support his claim that the trial court improperly determined that the witness was competent to testify because the witness failed to demonstrate an ability to comprehend intelligently the facts at issue. The defendant specifically refers to testimony in which the witness stated that the event in question took place in the summer because “it was raining” and that he looked out the window and saw the police catch the defendant and the other man, handcuff them and put them in a police car. Upon redirect examination, the witness altered his testimony and said that he did not see the defendant arrested and handcuffed because he was in the bathroom. The record makes it clear, however, that the incident occurred on December 9, 1994, and that the defendant was not arrested on the charges in this case until four months later.

The defendant’s focus on the inconsistencies in the witness’ testimony is in essence an attack on the "witness’ credibility. State v. Bonello, 210 Conn. 51, 70, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d 664 (1989). “Inconsistencies in testimony and witness credibility are matters that are within the exclusive purview of the [trier of fact] to resolve at trial.” State v. Smith, 46 Conn. App. 600, 608, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997). The defendant correctly points out that the witness’ testimony was inconsistent. These inconsistencies, however, neither demonstrate that the witness does not have an intelligent comprehension of the facts, nor prevent the witness from meeting the minimum credibility requirement. See State v. Weinberg, supra, 215 Conn. 244-45 (despite fact that witness experienced uncontrollable delusions and auditory and visual hallucinations, including hallucinations about defendant, court held that trial court did not abuse its discretion in finding that witness possessed sufficient powers of observation, recollection, narration and truthfulness to meet threshold requirement of minimum credibility). Inconsistencies do not render a witness’ testimony incredible as a matter of law. State v. White, 229 Conn. 125, 143-44, 640 A.2d 572 (1994); see also State v. Anonymous (83-FG), 190 Conn. 715, 722, 463 A.2d 533 (1983).

Furthermore, a failure to demonstrate an intelligible recollection of the facts at issue can later be rectified through the witness’ testimony. See State v. Rodriguez, 180 Conn. 382, 391, 429 A.2d 919 (1980) (even though proper foundation had not been laid establishing competency at preliminary hearing, had testimony later been given to satisfy the applicable test, any error in preliminary ruling would not be considered harmful). Here, the witness demonstrated that he was able to recollect and narrate the facts intelligently.

During the competency hearing, the witness accurately related that he came to court that morning by train, that he had a one year old brother, that he was five years old and was going to be six, that the color of the prosecutor’s pen was white and that there was a judge in the courtroom. The witness further demonstrated that he appreciated a moral duty to tell the truth, that it was bad to lie and he would be punished if he lied and he promised to tell the truth.

Thereafter, on direct examination, the witness testified that “two guys” came into his mother’s apartment, that he knew only one and identified that person as the defendant. The witness also testified that the defendant had a gun in his hand, “pointed the gun at my mommy” and that he was sitting on his mother’s lap when the defendant held the gun to his mother’s head. Further questioning of the witness by the state elicited that no one had “shot a bullet out of the gun” and that the defendant and the other man took jewelry from his mother and money from outside the window. This testimony by the witness corroborated his mother’s testimony. Furthermore, any inconsistencies in this witness’ testimony were not so substantial as to alter the trial court’s judgment of the credibility of this important prosecution witness. See State v. Green, 194 Conn. 258, 266, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). It is for the trier of fact, in this case, the trial court, to decide whether to believe all or a part of a witness’ testimony and to determine the credibility of the witness. See State v. Sirimanochanh, 31 Conn. App. 452, 455, 625 A.2d 832 (1993); see also State v. McCarthy, 197 Conn. 166, 179, 496 A.2d 190 (1985).

“Because the competency of a witness is a matter peculiarly within the discretion of the trial court, its ruling will be disturbed only in a clear case of abuse or of some other error in law. State v. Siberon, 166 Conn. 455, 457, 352 A.2d 285 (1974); State v. Orlando, [115 Conn. 672, 675, 163 A. 256 (1932)]; Kuczon v. Tomkievicz, 100 Conn. 560, 572-73, 124 A. 226 (1924).” State v. Rodriguez, supra, 180 Conn. 389. We cannot say that, under these facts, the court abused its discretion in determining that the witness was able to receive correct sense impressions, to comprehend facts to be developed, to recollect and narrate facts intelligently and to appreciate the moral duty to tell the truth in order to meet the threshold requirements of minimum credibility. We, therefore, conclude that the trial court did not abuse its discretion in finding the witness competent to testify at trial.

II

The defendant next claims that the trial court improperly inferred essential facts from its disbelief of the defendant’s testimony and his failure to call witnesses to support his alibi, whereby the trial court’s findings of guilt were not supported by evidence proven beyond a reasonable doubt. Although the defendant did not preserve this issue for review, “[o]ur Supreme Court has stated that sufficiency of the evidence claims necessarily meet the four prongs of Golding. State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993). . . . State v. Adorno, 45 Conn. App. 187, 194, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).” (Internal quotation marks omitted.) State v. Blocker, 46 Conn. App. 734, 740, 700 A.2d 1186, cert. denied, 243 Conn. 946, 704 A.2d 799 (1997).

The defendant essentially argues that the evidence presented failed to establish beyond a reasonable doubt his participation in the crimes for which he was convicted. He argues that the trial court, while stating its findings of fact in support of its judgment of guilt, improperly expressed disbelief in the defendant’s alibi that he was not in New Haven at the time of the incident and then used that disbelief to conclude the opposite to be true. The defendant claims, therefore, that the trial court’s statements improperly “diluted the requirement that a criminal conviction can only be supported by proof beyond a reasonable doubt” in violation of the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).” (Internal quotation marks omitted.) State v. Blocker, supra, 46 Conn. App. 740-41.

To support his insufficiency argument, the defendant claims that the trial court, as fact finder, improperly concluded from its disbelief of the defendant’s alibi that the defendant was present at the time of the incident. The defendant claims further that this effectively diluted the state’s burden to prove its case beyond a reasonable doubt. The trial court’s statement at issue here is: “The alibi was at least very convenient. The crime was the ninth; the alibi wrapped around the ninth, eighth, ninth and tenth. Although, the court had no knowledge as to the availability of these witnesses and therefore did not attempt to draw a Secondino inference, it was clear that had the defendant produced several witnesses, he could strengthen his case, but he didn’t have them there. The woman who kicked him out, the stepmother, [his two sisters], Sonny Garrett. No attempt was made to call any of them [or] the two cousins he supposedly drove to Georgia with.” We agree with the defendant that this comment was improper.

“It is axiomatic under Connecticut law that, while a [trier of fact] may reject a defendant’s testimony, ‘a [trier of fact] in rejecting such testimony cannot conclude that the opposite is true.’ State v. Alfonso, 195 Conn. 624, 634, 490 A.2d 75 (1985), quoting Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); see also State v. Carter, 196 Conn. 36, 50, 490 A.2d 1000 (1985) (Shea, J., dissenting) (trier cannot make affirmative factual finding from disbelief of testimony); State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972) (jury cannot make affirmative finding from disbelief of obviously concocted alibi testimony of defendant). Thus, under Connecticut law, the [trier of fact] is not permitted to infer, from its disbelief of the defendant’s testimony, that any of the facts which he denied were true.” State v. Coleman, 14 Conn. App. 657, 671-72, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

While we agree with the defendant that the trial court made an improper comment regarding the lack of additional alibi witnesses and possibly improperly inferred essential facts from its disbelief of the defendant’s testimony and his failure to call witnesses to support his alibi, “[t]his assumption, however, does not end the inquiry because such an error is harmless if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. . . . State v. Tucker, 226 Conn. 618, 624, 629 A.2d 1067 (1993); see State v. Cerilli, 222 Conn. 556, 584, 610 A.2d 1130 (1992).” (Internal quotation marks omitted.) State v. Faust, 237 Conn. 454, 470, 678 A.2d 910 (1996).

After careful consideration of the whole record, we are persuaded that any impropriety in the trial court’s statements in its findings of fact to support its judgment of conviction was harmless beyond a reasonable doubt. Abundant evidence adduced at trial established that the defendant had committed the crimes with which he was charged. The state produced two eyewitnesses, the victim and her five year old son, who each testified that the defendant was one of the perpetrators. Both of these witnesses further testified that the defendant had entered Matos’ apartment, placed a gun to her head while her son was sitting on her lap, threatened to shoot her and the child and took jewelry from her person as well as the bag of money that was outside a window. Matos additionally testified that the day before the incident, she saw the defendant in her neighborhood and he was speaking with a mutual friend who knew that Matos was getting money together to post bond for her boyfriend. “The trier of fact determines with finality the credibility of witnesses and the weight to be accorded their testimony. State v. Crump, 201 Conn. 489, 491, 518 A.2d 378 (1986). Any part of a witness’ testimony may be believed or disbelieved by the trier of fact. State v. Rolhenberg, 195 Conn. 253, 257, 487 A.2d 545 (1985); see also State v. Amarillo, 198 Conn. 285, 289, 503 A.2d 146 (1986). This court does not retry the case or evaluate the credibility of the witnesses. State v. Amarillo, supra [289].” (Internal quotation marks omitted.) State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). Therefore, viewed in a light most favorable to sustaining the trial court’s verdict, the evidence clearly established the defendant’s guilt beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       At 1 rial, Matos test iñed that she was collecting money from a cquaintances of her boyfriend, Edward “Boo" Andrews, in order to post bond for Andrews, who was in jail and charged with murder. Matos was eight months pregnant with Andrews’ child at the time of the robbery.

       Matos identified the assailants as “Ro” and “Snag A Tooth.” At trial, the defendant testified on his own behalf that he was not in New Haven at the time of the incident but was at his father’s house in New Jersey. In addition, Matos told police that the perpetrators took only $1000 because she thought that the police might have thought that she was selling drugs because of her known relationship with Andrews.

       General Statutes § 54-86h provides in relevant part: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault . . . shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”

       Defense counsel expanded on his objection stating: “Well, I just think he is too young. I think that he has given all the right answers and—but, it seems to me that the law on this focuses on not so much the general ability to tell the truth but appreciating the meaning of an oath .... And again going back to the idea that this witness is now five, almost six and being asked to relate to an incident occurring at a time when he was four almost five. ... I think it is pushing things to say that he could be a competent witness as we normally think of them in a court of law.” Soon thereafter, defense counsel reiterated: “Your Honor, apparently [the assistant state’s attorney indicated that] besides the victim in this particular case there are only a couple of police officers who would obviously be testifying of what they were told after the incident. They weren’t present as witnesses. So, this witness becomes an extremely important one. And one in addition is not an uninterested witness in the sense that presumably the child has been with the mother since the date of the incident. They probably have talked about wha.t took place. I assume they would. All of which adds up to creating an extremely difficult situation to ask a five year old child to come in here and relate something again that occurred in a stressful situation when he was four years old. And I would object to it on that basis.”

       See footnote 4.

       Even if the trial court had improperly determined that the witness was competent to testify, the defendant must demonstrate that this error was harmful by including in his brief those portions of the transcript of the witness’ testimony that evidence the witness’ inability to comprehend intelligently the facts sought to be developed or to recollect and narrate intelligently those facts. This was not done. It was demonstrated, as set out in this opinion, that any deficiency regarding a shown ability to comprehend facts intelligently was satisfied by testimony later given.

       Furthermore, the trial court, expressed concern about the credibility of the defendant’s alibi defense because of conflict tag testimony of the defendant and his father. A review of the transcript reveals that the defendant’s father testified that the defendant came to visit him “every Thursday,” while the defendant testified that, he could not remember when he last visited his father prior to December, 1994.


author: LANDAU, J.

text:
    CLOSE, JENSEN AND MILLER, P.C. v. FRANK LOMANGINO ET AL.
    (AC 17201)
    Landau, Sullivan and Dupont, Js.
    Argued November 2, 1998
    officially released January 26, 1999

      Neil F. Murphy, Jr., with whom, on the brief, was P. Jo Anne Burgh, for the appellants (named defendant et al.).

      Karen K. Clark, with whom, on the brief, were Donald W. Doeg and Richard M. Dighello, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants Frank Lomangino and Adrienne Lomangino appeal from the judgment rendered in favor of the plaintiff, Close, Jensen and Miller, P.C. The jury rendered verdicts in favor of the plaintiff on both its complaint and on the defendants’ counterclaim. On appeal, the defendants claim that the trial court improperly (1) prohibited them from using the deposition of one of the plaintiffs former employees to impeach the testimony of the plaintiffs project manager, (2) refused to charge the jury in accordance with Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), and (3) failed to set aside the verdicts on the ground that the law and evidence required the jury to find that the plaintiff was negligent per se. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In August, 1987, the parties entered into an oral agreement whereby the plaintiff was to provide the engineering services necessary for the defendants to obtain approval to subdivide a parcel of real property they owned in the town of Somers. The Somers planning commission approved a twenty-six lot subdivision in November, 1989. As of that date, the plaintiff had billed the defendants $133,184.20 for services rendered; the defendants paid only $60,230 of that fee.

The plaintiff thereafter commenced suit against the defendants to foreclose a mechanic’s lien or, in the alternative, in quantum meruit to collect the fees it alleged were due. The defendants asserted a three count counterclaim against the plaintiff alleging negligence, breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In sum, the defendants claimed that the plaintiff failed to complete the subdivision plans in a timely and competent manner. The case was tried to a jury, which rendered verdicts in favor of the plaintiff on its complaint and on counts one and two of the defendants’ counterclaim. The trial court denied the defendants’ motions to set aside the respective verdicts and a motion for remittitur. This appeal followed.

I

The defendants first claim that the trial court improperly refused to permit them to use the deposition of one of the plaintiffs former employees, John McAvoy, to impeach the credibility of the plaintiff’s project manager on cross-examination. We do not agree.

The following additional facts are necessary for our resolution of this issue. McAvoy was graduated from the University of Connecticut with a degree in engineering in May, 1987, and immediately began to work for the plaintiff. At the plaintiffs direction, he worked on the development of the defendants’ subdivision plan. The defendants took McAvoy’s deposition prior to trial. The plaintiffs president, John Miller, and Douglas Shanley, project manager for the subdivision plan, both attended McAvoy’s deposition. Shanley testified at trial on behalf of the plaintiff. On cross-examination, the defendants asked Shanley about the amount of experience McAvoy had preparing subdivision plans. According to the defendants, Shanley’s response was inconsistent with McAvoy’s deposition. Because Shanley was present at McAvoy’s deposition, the defendants wanted to use McAvoy’s deposition to impeach Shanley’s veracity and ability to recall. The plaintiff objected to such use of the deposition claiming that McAvoy’s testimony was mere hearsay. Neither party called McAvoy to testify.

On appeal, the defendants argue that the trial court improperly refused to let them use McAvoy’s deposition, claiming that the deposition was not hearsay because it was a statement used to impeach credibility, rather than for the truth of its contents, citing State v. Rochette, 25 Conn. App. 298, 302-303, 594 A.2d 1006, cert. denied, 220 Conn. 912, 597 A.2d 337 (1991), cert. denied, 502 U.S. 1045, 112 S. Ct. 905, 116 L. Ed. 2d 806 (1992). Although we agree with the rule of law cited by the defendants, we disagree that the rule applies to the facts of this case. Contrary to their assertion, the defendants did offer McAvoy’s deposition for the truth of its contents.

“In the context of a civil case, our Supreme Court, in accepting a common law right to cross-examination, stated ‘[t]he right of cross-examination is not a privilege but [is] an absolute right and if one is deprived of a complete cross-examination he has a right to have the direct testimony stricken.’ Gordon v. Indusco Management Corporation, 164 Conn. 262, 271, 320 A.2d 811 (1973); see also Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 140 n.10, 439 A.2d 282 (1981). This right does not, however, permit the defendant to present evidence that is irrelevant or otherwise inadmissible.” Jacobs v. Thomas, 26 Conn. App. 305, 317, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992).

“ ‘[I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. Murphy v. Murphy, 74 Conn. 198, 50 A. 394 (1901); State v. McGowan, 66 Conn. 392, 34 Atl. 99 [1895].’ Finch v. Weiner, 109 Conn. 616, 620, 145 A. 31 (1929).” Murphy v. Wakelee, 46 Conn. App. 425, 431, 699 A.2d 301, cert. granted on other grounds, 243 Conn. 956, 704 A.2d 805 (1997). “The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. State v. Carmon, 47 Conn. App. 813, 817, 709 A.2d 7, cert. denied, 244 Conn. 918, 714 A.2d 7 (1998). Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . State v. Bova, 240 Conn. 210, 219, 690 A.2d 1370 (1997).” (Internal quotation marks omitted.) Wright v. Hutt, 50 Conn. App. 439, 455, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998).

“Hearsay is an out-of-court statement offered to establish the truth of the matters contained therein. State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981).” State v. Rochette, supra, 25 Conn. App. 303. In Rochette, the defendant testified that she did not make a telephone call to a particular person on a certain day. During rebuttal, the state offered a telephone message under the business records exception to the hearsay rule to contradict the defendant’s testimony. “The telephone message was not offered to establish the truth of the [defendant’s statements concerning her] child’s medical condition but rather, was offered to contradict the defendant’s statement that she had not [made the call] on October 3 and referred to chemotherapy. Testimony that refutes evidence or impeaches a witness’ credibility is proper during rebuttal, and the message, therefore, was properly admissible for this purpose. State v. Peary, 176 Conn. 170, 174-75, 405 A.2d 626 (1978) [cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979)]; Vazzano v. Slater, 6 Conn. App. 1, 5, 502 A.2d 440 (1986).” State v. Rochette, supra, 303.

Here, the defendants claim that McAvoy’s deposition was not being offered for the truth of the matter. In reality, however, the purpose of the defendants’ offering the deposition was to illustrate a discrepancy between Shanley’s and McAvoy’s testimony. See footnote 3; see also State v. Vinal, 205 Conn. 507, 512, 534 A.2d 613 (1987). The issues are ones of fact, i.e, how much experience McAvoy had prior to working on the defendants’ subdivision plan, and of credibility, i.e., who is telling the truth or had the better memory. The jury is the arbiter of those issues. See State v. Aponte, 50 Conn. App. 114, 124, 718 A.2d 36, cert. granted on other grounds, 247 Conn. 926, 719 A.2d 1169 (1998); State v. Sanchez, 50 Conn. App. 145, 159, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). If the defendants wanted to contradict Shanley’s testimony, they could have called McAvoy as a witness. The trial court, therefore, properly refused to permit the defendants to use McAvoy’s deposition to impeach Shanley on cross-examination by illustrating a contradiction in their testimony, which goes to the truth of the matter.

II

The defendants’ second claim is that the trial court improperly refused to give the jury an instruction that it could draw a negative inference from the plaintiffs failure to call McAvoy as a witness in accordance with Secondino v. New Haven Gas Co., supra, 147 Conn. 672. The trial court refused to give the Secondino charge, stating that McAvoy’s testimony was only cumulative. The essence of the defendants’ claim is that because they assumed that McAvoy was the plaintiffs employee who devoted the most time to the project, he was the individual whom the plaintiff would most likely call as a witness. We do not agree.

To analyze the defendants’ claim, we look to the allegations of the complaint. Very simply, it is a collection action. The plaintiff was required to allege and prove that it was engaged to provide services for the defendants, that the services were provided, the amount of time it took to provide the services, and the amount and reasonableness of its fees and other expenses it incurred on behalf of the defendants. The plaintiff called Miller, its president, and Shanley, the project manager for the subdivision plan, to testify during its case-in-chief; it did not call McAvoy, a technician who worked on the subdivision plan. Miller and Shanley testified as to the scope of the plaintiffs agreement with the defendants, the nature and scope of the services performed by the plaintiff, the plaintiffs billing practices, the fees charged the defendants, the reasonableness of the fees, the amount paid by the defendants and the amount of the fees outstanding. No evidence was offered to show that McAvoy was familiar with the plaintiffs billing practices or accounts receivable. To prove its cause of action, no additional witnesses were necessary.

“The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause. . . . [Secondino v. New Haven Gas Co., supra, 147 Conn. 675.] To take advantage of this rule permitting an adverse inference, the party claiming the benefit must show that he is entitled to it. ... State v. Oliver, 48 Conn. App. 41, 45, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998). That is, the party claiming the benefit of the ruling must show that the witness is available and that the witness is one whom the party would naturally produce. . . .Id.; Secondino v. New Haven Gas Co., [supra, 675]. A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce. Secondino v. New Haven Gas Co., supra, 675.

“Appellate courts will not disturb a trial court’s Secondino ruling absent a clear abuse of the trial court’s discretion. See State v. Grant, 221 Conn. 93, 106, 602 A.2d 581 (1992). In reviewing claims that the trial court abused its discretion, great weight is attached to the trial court’s decision and every reasonable presumption is given in favor of its correctness. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). State v. Barnes, 47 Conn. App. 590, 594, 706 A.2d 1000 (1998).”(Intemal quotation marks omitted.) In re Lauren R., 49 Conn. App. 763, 776-77, 715 A.2d 822 (1998).

Here, the defendants failed to establish that they were entitled to an adverse inference because they failed to demonstrate that McAvoy was a witness whom, by reason of his relationship to the plaintiff or to the issues in the plaintiff’s case-in-chief, the plaintiff would naturally be expected to call. There was evidence that McAvoy no longer worked for the plaintiff but that he still lived and worked in Connecticut. The defendants could have subpoenaed McAvoy to testify but did not. “ ‘The failure of a party to call as a witness a person who is available to both parties and who does not stand in such a relationship to the party in question or to the issues that that party would naturally be expected to produce him if his testimony was favorable affords no basis for an unfavorable inference.’ Secondino v. New Haven Gas Co., supra, 147 Conn. 676.” In re Lauren R., supra, 49 Conn. App. 777. The defendants also failed to establish that McAvoy’s testimony would have been anything other than cumulative. We, therefore, conclude that the trial court did not abuse its discretion in refusing to give a Secondino charge to the jury.

III

The defendants’ final claim is that the trial court improperly failed to set aside the verdicts because the law and evidence required the jury to find that the plaintiff was negligent per se. The substance of the defendants’ claim is that Shanley testified on cross-examination that he was unaware of a July, 1988 amendment to the town’s inland wetlands regulations,* **** and his unfamiliarity with the town’s regulations caused undue delay and expense as the subdivision plans had to be redrafted. The defendants, therefore, conclude that the plaintiff was negligent per se and should not have prevailed on either its case-in-chief or on the defendants’ counterclaim. We are not persuaded.

The trial court gave the following instruction to the jury on the issue of negligence per se. “In Connecticut, the unexcused violation of a statute, ordinance or administrative regulation is negligence per se or negligence as a matter of law. You have heard an admission by Mr. Shanley that, although he was the chief engineer for the project, he did not know the applicable Somers wetlands regulations. You have also heard testimony that [the plaintiff] filed with the conservation commission a subdivision map, which contained lots and roads in a wetlands area, in violation of section 6.4 of the inland wetlands and watercourse regulations of the town of Somers.

“You have heard testimony from witnesses and have been provided exhibits in the form of minutes from the meetings of the conservation commission which show that the commission requested on two separate occasions that [the plaintiff] remove the road and lots out of the wetlands, as contained on the plans they created and submitted, [defendants’] exhibits twelve and thirteen.

“If you find that [the plaintiffs] conduct was an unexcused violation of the town’s regulations, you must find that there was negligence as a matter of law. You must then determine whether, as the [defendants] contend, this negligence per se proximately caused their injury by creating further delay in the subdivision approval process.”

Our review of a trial court’s refusal to set aside a verdict has been defined. “In determining whether a verdict should be set aside, the court is obligated first to review the evidence giving it a construction most favorable to sustaining the jury’s verdict. ... In addition, the trial court’s refusal to disturb the jury verdict is entitled to great weight, and every reasonable presumption should be given in favor of its correctness. ... In reviewing this issue, our sole responsibility is to decide whether, on the evidence presented, the jury could fairly reach the conclusion they did.” (Citations omitted; internal quotation marks omitted.) Lester v. Resort Camplands International, Inc., 27 Conn. App. 59, 68-69, 605 A.2d 550 (1992). “It is the province of the jury to weigh the evidence and determine the credibility and the effect of testimony; and we must decide the question whether on the evidence presented, the jury could have fairly reached [its] verdict . . . .” (Internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 99, 709 A.2d 14 (1998).

To prove a claim of negligence or negligence per se, the defendant had to prove by a preponderance of the evidence each of the following elements: duty, breach, proximate cause and damages. See Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). The evidence cited in the briefs of both parties indicates that the evidence as to the elements was well controverted. Jurors are the arbiters of fact, including credibility. See State v. Sanchez, supra, 50 Conn. App. 145. They are free to believe all, some or none of a witness’ testimony. In the absence of interrogatories that explain a jury’s verdict, we will not disturb the verdict where the record reveals that the factual issues were in dispute and the jury reasonably could have found as it did. The trial court, therefore, properly refused to set aside the verdicts in favor of the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       L & B Holding Company, a defendant in the trial court by virtue of its having a mortgage interest in the subject real property that was subordinate to the plaintiffs mechanic’s lien, is not a party to this appeal. We refer in this opinion to Frank Lomangino and Adrienne Lomangino as the defendants.

       The trial court directed a verdict in favor of the plaintiff on the defendants’ CUTPA count.

       The following exchange took place during the defendant’s cross-examination of Shanley:

        “Q. I’d like to focus once again, if I may, on Mr. McAvoy. You indicated that prior to this subdivision you believed that he had been working on three other subdivisions, is that so?
      “A. Yes, that’s correct.
      “Q. Do you remember what they were?
      “A. Yes, I do.
      “Q. And when did you acquire this knowledge, i.e., the three subdivisions that he was working on?
      “A. I remember the subdivisions that he was working on that were in the office at the time as well as some of the other subdivisions that I was working on. So, it’s generally a memory from that time.
      * **
      “Q. Let me ask you this generally though while I’m on it, you attended all depositions that led up [to] this trial, did you not?
      “A. No.
      * *
      “Q. Were you at Mr. McAvoy’s?
      “A. Yes.
      * * *
      “Q. And did he testify in your presence—
      “[Plaintiffs Counsel]: Your Honor, I would object. I think anything Mr. McAvoy said at that deposition would be hearsay.
      “[Defense Counsel]: If I may continue the question, this whole thing started with his knowledge about what Mr. McAvoy had done and based within his knowledge I suggest that Mr. McAvoy’s sworn statement [was] in his presence. And I’m showing the witness the deposition, Your Honor.
      “[Plaintiffs Counsel]: And I claim it. The reason for it?
      “[Defense Counsel]: I’m not doing it for the truth of the matter therein, just whether or not—within his knowledge bank and just laid the foundation—he was present to hear Mr. McAvoy.
      “The Court: Well, he might have been present to hear what Mr. McAvoy has said but he’s not going to be able to tell us.
      “[Defense Counsel]: I respectfully say that it would be part of his knowledge bank six months ago what Mr. McAvoy said with regard to this very subject as to how many—
      “The Court: Well, the best source of that will be Mr. McAvoy himself.
      * * *
      “[Defense Counsel]: Now, we deliberately framed our question to this witness as to his knowledge, and, therefore, I claim it on the basis if he had knowledge of [what] Mr. McAvoy, who is the actor, immediately his underling ... to whom he reported, said. Not necessarily for the truth of the matter contained, therein, but the fact that Mr. Shanley knew because of his presence which was acknowledged and the foundation of what Mr. McAvoy had said in direct response to the very same question. And it’s contradictory in the minimum to the fact that Mr. McAvoy had worked on three or four other subdivisions and the like and on that basis we respectfully claim it and our right to cross-examine him on it.

      “[Plaintiffs Counsel]: [I]f he’s not offering it for the truth of the matter asserted, it’s irrelevant. If you’re just saying, I’m offering it to show that the two parties have a difference of opinion, what difference does it make? If you’re offering if for the truth of the matter asserted and that Mr. McAvoy saying he had no experience, you’re saying he did have experience, it denies me the right to cross-examine Mr. McAvoy on that issue and I could throw out maybe the names of the three subdivisions and say, perhaps he’d say, yes, you’re right. I’m sorry I was wrong at that point but at this point in time, again, I agree it’s hearsay.
      “The Court: I’ll sustain your objection at this time. You can have an exception.” (Emphasis added.)

       There was evidence that McAvoy, although no longer employed by the plaintiff, lived and worked within this state and was otherwise available to testify.

       The defendants mistakenly assert that McAvoy was a necessary witness because the plaintiff needed to establish, through his testimony, the intimate details of the work he did on the subdivision plan.

       We note that, on October 1, 1998, subsequent to the trial of this matter and submission of briefs to this court, Public Acts 1998, No. 98-50, which prohibits the giving of a Secondino jury instruction in civil cases, went into effect. Public Act No. 98-50 provides, “No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party’s cause may be drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments, except where prohibited by section 52-174 of the general statutes, that the jury should draw an adverse inference from another party’s failure to call a witness who has been proven to be available to testify.”

       The relevant portion of the defendants’ cross-examination of Shanley is as follows:
      “Q. Are you unaware as you sit here that the town of Somers has specific wetland requirements for distances between the septic system and a wetland, and a house and a wetland?
      :|! * *
      “A. Let’s be very clear. Didn’t they amend the regulations July fifth, 1988?
      “Q. If they did, I’m not aware of that.
      “A. In the middle of your project you were unaware of the amendment to the wetlands regulations in the town of Somers?
      * * *
      “Q. Wouldn’t you agree that these wetland regulations, if they existed, would have a significant impact on the design of the subdivision?
      “A. Certainly.”

       Although the defendants based a portion of their cross-examination of Shanley on a supposed change in the inland wetlands regulations, the defendants have not pointed to any evidence that this amendment was, in fact, adopted.

       We note that the first count of the defendants’ counterclaim alleges negligence only, not negligence per se, and does not allege a violation of any regulation or amended regulation. The defendants did not move to amend their pleading to conform to the evidence. The trial court gave the defendants’ requested jury instruction on negligence per se. The plaintiff did not object.

       The jury heard evidence that the delay in the approval of the subdivision plan was due in part to drainage rights problems, clear cutting of wetlands, access approval and other nonengineering issues beyond the plaintiffs control.