author: O’Connell, J.

text:
    State of Connecticut v. Grady T. Cobb
    (9187)
    O’Connell, Landau and Freedman, Js.
    Argued January 22
    decision released May 19, 1992

      Amoldo E. Granados, assistant public defender, with whom, on the brief, was William Holden, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Henry J. Lyons, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (3)1 and carrying a dangerous weapon in violation of General Statutes § 53-206 (a).

The defendant claims that (1) the trial court improperly instructed the jury on an alternative statutory method of committing robbery in the first degree,

(2) the state improperly commented on the defendant’s failure to testify and on evidence not in the record, and

(3) the trial court unduly restricted the defendant’s right of cross-examination. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The charges arose out of an attempted robbery of a McDonald’s restaurant on Route 1-95 in Fairfield by a knife wielding bandit who was identified as the defendant. In the early afternoon of June 11, 1989, Margo Williams was working as a cashier in McDonald’s. She had just taken cash from a customer and was about to close the cash register drawer, when the defendant came behind the counter waving a knife and ordered her not to close the drawer. By a reflex action, she closed the drawer anyway and began screaming and running as the defendant chased her. Williams first ran to the kitchen, and then without stopping, ran back to the front of the restaurant, past the customer counter and out the front door.

George Hauser, the restaurant manager, heard Williams screaming and saw her and other employees running from the counter area. At this point, the defendant turned his attention toward Hauser, pointed the knife at him, and ordered him to open the drawer. Hauser prepared to defend himself with a bun spatula, and yelled for everyone to leave the restaurant. Satisfied with the evacuation, Hauser himself ran for the door with the defendant chasing him. As they left the building, the defendant and Hauser turned in opposite directions and Hauser saw the defendant, who was still holding the knife, get into the passenger seat of a blue Cadillac.

Hauser reported the attempted robbery to an off duty police officer who happened to be on the scene. The officer approached the Cadillac and demanded the keys from the driver. Coincidentally, a state trooper was in the parking lot on the other side of the restaurant checking for stolen motor vehicles. He received a radio dispatch that a man was running around McDonald’s with a knife. The trooper drove around the building and observed people gathered by the Cadillac. The trooper removed the defendant from the Cadillac, where he was identified as the person who attempted to rob the restaurant by Hauser, Williams, and Kathleen Ianiri, a customer who had witnessed the incident. Williams and Ianiri were unable to identify the defendant at trial. The trooper then searched the Cadillac and found a knife under the front passenger seat.

I

General Statutes § 53a-133 provides two methods by which robbery may be committed. The first is the use or threatened use of force to prevent or overcome resistance to the taking of the owner’s property or to retain such property immediately after the taking. General Statutes § 53a-133 (1). The second is the use or threatened use of force to compel the owner of property to relinquish it to the robber. General Statutes § 53a-133 (2). The trial court instructed the jury on both methods. The defendant concedes that the evidence produced at trial was sufficient to support his robbery conviction under § 53a-133 (2), but contends that the evidence was insufficient to support his conviction of robbery under § 53a-133 (1).

The defendant’s concession that there was sufficient evidence to sustain a conviction under subdivision (2) does not dispose of this appeal. “[Wjhere a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.” (Internal quotation marks omitted.) State v. Tinsley, 24 Conn. App. 685, 690, 591 A.2d 448, cert. denied, 220 Conn. 902, 593 A.2d 968 (1991). Thus, we must consider whether there was sufficient evidence in the record to sustain a conviction under subdivision (1). If the evidence was not sufficient, instruction of the jury under subdivision (1) would have been improper.

When we are confronted by an insufficiency of evidence claim our scope of review is limited to a two part inquiry. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .” (Citation omitted; internal quotation marks omitted.) State v. Cain, 25 Conn. App. 503, 520, 596 A.2d 449, cert. granted, 220 Conn. 931, 599 A.2d 383 (1991).

Reviewing the evidence in the present case in accordance with this standard, we conclude that the jury reasonably could have found that when the defendant, while waving a knife, chased Williams after she had closed the cash drawer, he was threatening the immediate use of physical force on her for the purpose of overcoming her resistance to the taking of property. We also conclude that the jury reasonably could have found that the defendant was threatening the immediate use of physical force for the purpose of overcoming resistance to the taking of the money when he was wielding the knife and demanding that Hauser open the drawer and give him the money. See State v. Gilchrist, 25 Conn. App. 104, 111-12, 593 A.2d 507, cert. denied, 220 Conn. 905, 593 A.2d 970 (1991). Accordingly, we agree with the trial court that there was sufficient evidence to support its jury instruction that defined robbery under both statutory subdivisions.

II

The defendant next claims that the state’s attorney committed prosecutorial misconduct by improperly commenting on the defendant’s failure to testify and by commenting in closing argument on evidence that was not in the record.

The fifth amendment to the United States constitution and General Statutes § 54-84 both prohibit the state from commenting on an accused’s decision not to testify. This prohibition applies to indirect as well as direct comments. State v. Menzies, 26 Conn. App. 674, 696, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992). Each allegedly improper comment must be examined to determine if, in the context of the particular case, the language used was manifestly “intended to be, or was ... of such character that the jury would naturally and necessarily take it to be a [prosecutorial] comment on the failure of the defendant to testify.” (Internal quotation marks omitted.) State v. Bowens, 24 Conn. App. 642, 650, 591 A.2d 433 (1991). Although made while the jury was in the courtroom, the comments in the present case were directed to the court, not to the jury. While this fact alone would not excuse an egregious violation of the rule, it is properly taken into consideration as part of the context in which it is made. An indirect comment in argument to the court on a point of law is less serious than a comment in jury summation that asks the jury to infer that the defendant’s silence is evidence of guilt. See United States v. Robinson, 485 U.S. 25, 108 S. Ct. 864, 99 L. Ed. 2d 23 (1989).

The following colloquy between the court, defense counsel and the state’s attorney places the remarks at issue in their proper context.

“[Defense Counsel]: On February 16,1990, last Friday, my client, Grady Cobb, told you that you should take the weight for this case because it was your action, isn’t that so?
“[State’s Attorney]: That’s objected to.
“The Witness: No, it’s not true.
“The Court: Don’t answer.
“[State’s Attorney]: If such was the situation, it’s a self-serving declaration, if Your Honor please.
“[Defense Counsel]: Your Honor, it’s a completely permissible area of cross-examination.
“[State’s Attorney]: If Mr. Cobb got on the stand and testified to that, then I could see the point.
“The Court: Sustained.
“[Defense Counsel]: We take exception, Your Honor.
“The Court: It may be noted.”
The following occurred during voir dire on an exhibit:
“[State’s Attorney]: So you don’t know how long a period of time elapsed between his arrest and between the time he got to the North Avenue Correctional Institute?
“[Defense Counsel]: Objection, Your Honor. It goes beyond the scope of the documents and it goes beyond the scope of voir dire, Your Honor, with all due respect.
“The Court: I’ll allow it.
“[Defense Counsel]: Exception.
“The Witness: No, I do not.
“[State’s Attorney]: I would object, if Your Honor please.
“[Defense Counsel]: We would like to know the grounds for the objection with all due respect, Your Honor.
“[State’s Attorney]: Well, a proper foundation laid. In effect, no one knows how much time elapsed before he was brought to the correctional institution. It is incumbent upon the defendant to prove what occurred between the time he was arrested and the time he got to the correctional institution. ” (Emphasis added.)

In determining the effect of the state’s words on the jury, we may consider the effect they had on defense counsel. See State v. Jones, 215 Conn. 173, 186, 575 A.2d 216 (1990). Although defense counsel objected on evidentiary grounds, he did not object on fifth amendment or § 54-84 (b) statutory grounds. Further, defense counsel failed to request a curative instruction or move for a mistrial. From this, we infer that when these words were uttered, defense counsel did not believe that they could be construed by the jurors to mean that they should draw an inference of guilt from the defendant’s failure to testify.

The ultimate test is whether the language used by the prosecutor was clearly of such character that, in the context in which it was used, the jury would naturally and necessarily interpret it to be a comment on the failure of the defendant to testify. State v. Menzies, supra. In the present case, we conclude that in the context of the particular courtroom environment in which they were spoken, the remarks were not forbidden prosecutorial comments on the defendant’s failure to testify.

In the second prong of his prosecutorial misconduct claim, the defendant argues that in its jury summation, the state twice commented on evidence that was not in the record. The first occasion arose when the state referred to Williams, the McDonald’s employee, as being scared. Although Williams did not testify that she could not identify the defendant as the robber because she was scared, the prosecutor was entitled to draw a reasonable inference from all of the evidence that the sixteen year old girl, who was threatened by a knife wielding robber, was scared and thus unable to identify the robber at trial. In a final summation, a prosecutor may properly posit reasonable inferences that may be drawn from facts contained in the record. See American Bar Association Standards of Criminal Justice (2d Ed.) §§ 3-5.8 (a), 3-5.9; State v. Arline, 25 Conn. App. 653, 661, 596 A.2d 17, cert. granted, 220 Conn. 924, 598 A.2d 364 (1991).

The defendant’s second claim, that the state’s attorney improperly included facts in argument that were not in the record, pertains to the testimony of Ianiri. The defendant argues that the prosecutor improperly commented that Ianiri identified the defendant when he was sitting in the state police cruiser as the same person who was waving the knife inside the restaurant. The following is an excerpt of Ianiri’s testimony.

“Q. Can you describe the man that you saw with the knife?
“A. He was tall. He was black, probably over six feet tall. He was wearing a grey shirt. He looked a little scruffy. He had greyish, blackish hair on his face, large build.
“Q. Did you see that man sometime later?
“A. Yes, I did.
“Q. Where were you when you saw him?
“A. I was sitting in a state trooper’s car.
“Q. And where was that state trooper’s car?
“A. Located outside of McDonald’s.
“Q. And where did you see that man?
“A. In another police car.
“Q. And was that the very same man that you saw inside with the knife?
“A. Yes, it was.”

Thus, our review of the record discloses that the evidence and inferences reasonably drawn therefrom provide adequate support for the challenged statement in the prosecutor’s summation.

In the context of the whole trial, we conclude that there was no conduct on the part of the state’s attorney that “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974).

Ill

The defendant’s final claim is that the trial court unduly restricted his cross-examination in violation of his sixth amendment right to confrontation. This claim arises out of the cross-examination of Hauser, the general manager of the restaurant. The trial court sustained the state’s objection to defense counsel’s question “You are interested in the outcome of this trial, isn’t that so sir?” The defendant contends that because of Hauser’s position as the manager of the restaurant, he had an interest in the outcome of the trial beyond that of the common observer and the disallowed question went to interest, bias and motive.

It is firmly established that cross-examination regarding motive, bias, interest and prejudice “is a matter of right and may not be unduly restricted.” (Emphasis added; internal quotation marks omitted.) State v. Lewis, 25 Conn. App. 354, 358, 594 A.2d 489, cert. denied, 220 Conn. 914, 597 A.2d 336 (1991). “The right to cross-examine adverse witnesses is not absolute, however, and limitations on the scope of cross-examination are within the sound discretion of the trial court, as long as the defendant has been allowed sufficient cross-examination to meet the requirements of the confrontation clause.” Id., 357-58. The defendant’s constitutional right to confrontation is satisfied if he is given the opportunity to expose facts from which the jury can appropriately draw inferences concerning a witness’ reliability. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).

The cases that have examined a defendant’s right to confront and cross-examine witnesses confirm the rule that “[ejvery evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” (Internal quotation marks omitted.) State v. Crumble, 24 Conn. App. 57, 66, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991). The conviction in In re Marcel L., 14 Conn. App. 548, 542 A.2d 340 (1988), was reversed because the trial court foreclosed cross-examination of an entire area of inquiry that could have exposed bias, interest or motive of the only three witnesses the state offered against the defendant. This contrasts sharply with the present case, where the defendant was allowed substantial cross-examination of Hauser. He fully cross-examined him concerning conflicts between his written statement and his trial testimony and the details of the crime that he had witnessed. In addition, the defendant was permitted to cross-examine Hauser in detail concerning his ability to perceive and relate the events that took place at the restaurant. We conclude that the defendant’s right of cross-examination was not unconstitutionally restricted.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument

       General Statutes § 53-206 (a) provides in pertinent part: “Any person who carries upon his person any slung shot, air rifle, BB. gun, blackjack, sand bag, metal or brass knuckles, or any dirk knife, or any switch knife, or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length ... or any other dangerous or deadly weapon or instrument, unless such person has been granted a written permit issued and signed by the first selectman of a town, the mayor or chief of police of a city or the warden of a borough, authorizing such person to carry such weapon or instrument within such town, city or borough, shall be fined not more than five hundred dollars or imprisoned not more than three years or both. ...”

       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.”

       General Statutes § 54-84 provides: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DiPasquale Construction Corporation v. Wolfgang Zinnert et al.
    (9862)
    O’Connell, Lavery and Heiman, Js.
    Argued March 31
    decision released May 26, 1992

      Vincent T. McManus, Jr., for the appellant-appellee (plaintiff).

      David M. Reilly, for the appellees-appellants (defendants).
   Per Curiam.

This was a breach of contract suit brought by the plaintiff builder against the defendant purchasers. Written interrogatories were submitted to the jury which found that the plaintiff had “not proven” that it was ready, willing and able to perform its obligations under the contract. This was a question of fact that was resolved against the plaintiff and is disposi-tive of the appeal.

Factual issues raised in the counterclaim were resolved against the defendants.

The judgment is affirmed.


text:
    Nelseco Navigation Company et al. v. Department of Liquor Control
    (10121)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 4, 1991
    decision released May 26, 1992

      Richard E. Grushin, for the appellants (plaintiffs).

      Martin Rosenfeld, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   O’Connell, J.

The defendant department of liquor control found that the plaintiffs (1) permitted or suffered a disturbance and conducted a premises in a manner which constituted a nuisance in violation of § 30-6-A24 (a) of the Regulations of Connecticut State Agencies, and (2) allowed an intoxicated person to loiter on its premises in violation of § 30-6-A24 (c) of the Regulations of Connecticut State Agencies. The defendant suspended the plaintiffs’ liquor license for five days and offered to accept a fine to be determined in amount in lieu of the suspension. General Statutes § 30-58a.

The plaintiffs appealed to the Superior Court which affirmed the defendant’s decision and dismissed the appeal. The plaintiffs now appeal to this court from the Superior Court’s decision.

The plaintiffs contend that the trial court improperly dismissed their appeal because (1) the defendant acted arbitrarily, illegally or in abuse of its discretion as a matter of law, (2) the defendant was overreaching in the use of its police power, and (3) the plaintiffs’ right to due process was violated. We reverse the decision of the trial court.

The facts necessary to decide this appeal are as follows. The plaintiffs own and operate the M. V. Anna C (ship) which they operate primarily as the Block Island ferry. Occasionally, the plaintiffs charter the ship for private parties. On August 12,1989, the plaintiffs chartered the ship to the Savage Brothers rock band for a private cruise. Although the plaintiffs had a boat liquor permit, the charter agreement did not call for them to sell any liquor or provide any employees to serve, deliver, give or in any other manner encourage or assist in the consumption of alcohol during the cruise. The ship’s liquor inventory was securely locked away from possible access.

By the terms of the charter contract, the plaintiffs leased the vessel to the band for its exclusive use between 8 p.m. and 12:01 a.m. Under the charter agreement, the band had the obligation to maintain order on board the ship and to provide security. The activities of the passengers were under the direct control of the band and not of the plaintiffs. The plaintiffs’ responsibilities under the charter contract were restricted to navigation of the ship. The band did not sell, furnish or deliver any liquor during the cruise. It is, therefore, not disputed that any liquor consumed on the ship was brought aboard by the passengers. The event was what is colloquially referred to as a B.Y.O.B. affair. Most of the passengers were brought to the ship in chartered buses that returned them to Windsor Locks at the conclusion of the cruise. The price of the ticket included round trip transportation from Windsor Locks to New London plus the cruise and dance. Windsor Locks was apparently the assembly point for transportation to this charter cruise and dance.

About an hour after the ship sailed from New London, a disturbance broke out on board, involving a fístfíght and rowdy, assaultive conduct by some of the passengers. Many of the passengers appeared to be intoxicated. Of the estimated 1000 to 1500 passengers, witnesses estimated that between fifteen and forty people were involved in a fracas that lasted less than five minutes. The disturbance ended when the band’s security personnel locked the two most disruptive individuals in the men’s room. The captain returned the ship to the New London pier. Upon docking, the two troublemakers were turned over to the police and paramedics were called to assist an unconscious female passenger. The record does not support the finding that this woman was intoxicated. The remaining passengers were in varying stages of sobriety. After placing the two men in the custody of the police and the unconscious passenger in the care of the paramedics, the ship set sail once again and completed the cruise uneventfully.

Following a hearing, the plaintiffs’ boat permit was suspended for five days on the ground that the plaintiffs permitted a disturbance on permit premises or that an intoxicated person was permitted to loiter thereon, in violation of regulations promulgated by the defendant.

The plaintiffs’ second claim is dispositive of this appeal. The issue is whether the department of liquor control has jurisdiction over a premises when no liquor is available for sale thereon, despite the fact that the owner of the property holds a liquor permit and on other occasions and under other conditions sells liquor.

We address the question of whether the defendant is the proper authority to police a threat caused by the consumption of alcohol when it occurs aboard a ship. The plaintiffs argue that it was not within the defendant’s jurisdiction to police a private party on permit premises when there was no sale or delivery of alcoholic beverage thereon by the permittee or by its agent. The defendant derives its power from General Statutes § 30-6, which gives it general authority to oversee a permittee’s conduct of its liquor business. In the present case, however, the plaintiffs had locked away their liquor and were not, by any reasonable stretch of the imagination, involved in the liquor business during this cruise. They were simply sailing or operating a ship. The disturbance that occurred here was in no way related to the plaintiffs’ exercise of their privilege to dispense liquor. Even if the plaintiffs did not hold a boat permit, but instead merely operated a charter service, the identical disturbance would have occurred. Under those circumstances, the defendant clearly would not have had jurisdiction to intervene to protect the public safety. Accordingly, the mere fact that the plaintiffs had a permit, pursuant to which they sold liquor on other occasions, did not extend the defendant’s jurisdiction to this nonliquor charter. The defendant does not have jurisdiction over every social occasion where liquor is consumed.

The fallacy in the defendant’s “guardian of the public safety” argument is that the defendant does not claim to have jurisdiction over the many ships without liquor licenses plying Long Island Sound on which identical B.Y.O.B. parties may be taking place. The passengers on such nonlicensed ships are in no greater jeopardy due to the lack of the defendant’s protection. Local and state police, together with the United States Coast Guard, provide sufficient protection for the public concerning B.Y.O.B. drinking on nonlicensed ships. As evidenced by the events that occurred in this case, the police, when summoned by the captain of the ship, were on the shore awaiting the ship’s arrival. Any jurisdiction of the defendant would have been superfluous.

Underlying the defendant’s argument is its apparent belief that once a permit has been issued, the premises are subject to its jurisdiction twenty-four hours a day, seven days a week, and that there is no way in which the premises can, even temporarily, be freed from this control. The defendant argues that, “a premises can never be shorn of the jurisdiction of the [department of liquor control] as long as a permit has been issued.” The defendant fails to furnish a legal authority for this sweeping statement, nor could we locate any. The defendant’s contention is true only insofar as it means that in the operation of his liquor business, a permittee cannot excuse himself from liability on the ground that a violation was in fact committed by an agent or employee and not by the permittee personally. We do not agree with the defendant’s unsupported theory that there cannot be circumstances under which premises, otherwise used for the sale of liquor, may not be temporarily removed from the defendant’s jurisdiction.

“Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.” Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988). “An administrative agency can act only within the bounds of authority granted to it by its enabling statute and within constitutional limitations. It is wholly without power to modify, dilute or change in any way the statutory provisions from which it derives its authority . . . .” Goldberg v. Insurance Department, 9 Conn. App. 622, 626, 520 A.2d 1038 (1987). When an administrative agency takes action that exceeds its statutory authority, that action is void. Breen v. Department of Liquor Control, 2 Conn. App. 628, 634, 481 A.2d 755 (1984). The suspension of the plaintiffs’ boat permit was unrelated to the defendant’s responsibility to control the sale of liquor on the ship. See Moore v. Connecticut Liquor Control Commission, 36 Conn. Sup. 305, 314-15, 418 A.2d 955 (1980).

The two cases cited by the defendant do not support its position. Rose v. Liquor Control Commission, 124 Conn. 689, 199 A. 925 (1938), holds that a permittee is responsible for sales to minors even though the sales were not made by the permittee personally but by an employee. Further, Koval v. Liquor Control Commission, 149 Conn. 63, 67, 175 A.2d 358 (1961), requires proof of agency by the person who delivers liquor to minors. There is no contention in the present case that the passengers who brought the liquor to this ship were employees or agents of the plaintiffs.

The defendant argues that if the plaintiffs prevail they could effectively evade the liquor control laws by obtaining an annual boat permit but use their boat solely for charter cruises. The fallacy in this argument is that if the plaintiffs did not intend to sell liquor at any time, there would be no purpose in their acquiring a boat permit in the first place.

We conclude that the defendant was overreaching when it applied its regulations to the plaintiffs’ ship under the circumstances of this case.

In view of our disposition of the plaintiffs’ second claim, we do not reach the plaintiffs’ other claims.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal.

In this opinion the other judges concurred.

       The plaintiffs are the Nelseco Navigation Company, a Connecticut corporation, and its president, John R. Wronowski. Nelseco was the backer and John Wronowski was the permittee.

       Section 30-6-A24 (a) of the Regulations of Connecticut State Agencies provides in pertinent part: “No disturbances, brawls, unnecessary noises, including loud and disturbing music, [or] unlawful conduct . . . shall be permitted or suffered upon any permit premises, nor shall such premises be conducted in such a manner as to constitute a nuisance.”

       Section 30-6-A24 (c) of the Regulations of Connecticut State Agencies provides in pertinent part: “No permittee or his servant or agent shall conduct the permit premises in such a manner as to allow an intoxicated person or persons to loiter thereon.”

       General Statutes § 30-29: “A boat permit shall allow the sale and public consumption of alcoholic liquor by passengers with or without meals upon any one designated boat engaged in the transportation of passengers for hire to or from any port in this state.”

       Bring your own bottle.

       The ship’s capacity was 1600 persons. No evidence of the exact number of the passengers on the cruise was offered, nor was there evidence of the number of tickets sold. The 1000 to 1500 passenger figure stems from testimony of witnesses whose qualifications to make accurate estimates of this type were not established.

       In an attempt to use the vernacular of the sea, the plaintiffs’ counsel refers to the securing of these men as “putting them in chains.”

       In a further attempt at salty lingo, the plaintiffs’ counsel refers to putting these people “on the beach.”

       The defendant’s finding that the New London police recommended that the cruise not continue is not supported by the record. The police sergeant who made that comment testified that he was sure that it was not relayed to the ship’s captain. This is not surprising because he was not sure whether the man to whom he made the comment was a deckhand of the ship or a pier hand with no connection to the ship.

       General Statutes § 30-6, a section of the Liquor Control Act, provides in pertinent part: “(a) There shall be a department of liquor control. The department of liquor control shall have power to enforce the provisions of this chapter, and may make all necessary regulations, subject to the provisions of subsection (b) of this section, for that purpose and for carrying out, enforcing and preventing violation of all or any of the provisions of this chapter, for the inspection of permit premises, for insuring sanitary conditions, for insuring proper, safe and orderly conduct of licensed premises and for protecting the public against fraud or overcharge. ... It shall have power generally to do whatever is reasonably necessary for the carrying out of the intent of this chapter . . . .”

       See 14 U.S.C.A. § 2.


author: Lavery, J.

text:
    Dorothea K. Howard v. Malcom D. Robertson
    (10340)
    Daly, Foti and Lavery, Js.
    Argued January 14
    decision released May 26, 1992

      George M. Purtill, with whom, on the brief, was Dana M. Gilland, for the appellant (plaintiff).

      Vincent F. Sabatini, with whom, on the brief, was James R. Even, for the appellee (defendant).
   Lavery, J.

The plaintiff, Dorothea K. Howard, appeals from the trial court’s decision rendering summary judgment in favor of the defendant, Malcom D. Robertson. On appeal, the plaintiff claims that the trial court improperly granted the defendant’s motion for summary judgment because (1) the filing and the service of an application for prejudgment remedy constitutes notice satisfying the statute of limitations, (2) the defendant admitted that he had notice of the plaintiff’s claim and had allegedly received a signed complaint prior to the expiration of the earliest possible date for the statute of limitations, (3) the filing and the service of an application for prejudgment remedy constitutes civil process for the purposes of measuring the running of the statute of limitations, (4) the filing and service of an application for prejudgment remedy together with a signed complaint and writ of summons for the prejudgment remedy hearing constitutes service in accordance with General Statutes § 52-45a and commencement of an action in accordance with § 52-582, (5) the filing and service of an application for prejudgment remedy tolls the running of the statute of limitations, (6) there were material factual issues to be determined, and (7) the court failed to consider the issue of the tolling of the statute of limitations. Finally, the plaintiff claims that the trial court improperly allowed the defendant to amend his answer. We affirm the trial court’s judgment.

The following facts are relevant to this appeal. The defendant constructed a house for the plaintiff. The plaintiff refused to pay the balance due upon completion of the house because of unworkmanlike construction. In an action that preceded the present action, the defendant sued the plaintiff, who filed a counterclaim. On February 3,1986, the trial court rendered judgment awarding damages to the defendant.

The plaintiff subsequently discovered previously undetectable defects in the house. On June 21, 1988, the plaintiff’s counsel sent a letter to the defendant informing him that the plaintiff intended to file a petition for a new trial. On January 10,1989, the plaintiff filed an application for prejudgment remedy. The plaintiff’s counsel signed the summons on January 25,1989. On January 30, 1989, the defendant was served with an application for a prejudgment remedy, a writ, a summons, an order for a hearing on the prejudgment remedy, a proposed unsigned order for a prejudgment remedy, a signed complaint for a new trial and an affidavit. On February 6, 1989, after a hearing, the trial court denied the application. Neither the defendant nor his counsel appeared at the hearing.

On April 17, 1989, the plaintiff filed a writ, summons and complaint for a new trial. Service of process had been made on the defendant on April 10, 1989. The plaintiff subsequently filed an amended complaint, which the defendant answered pro se. On October 12, 1990, the defendant retained counsel. On December 26, 1990, the defendant requested leave to amend his answer to add special defenses, one of which was the statute of limitations. Despite the plaintiff’s objection, the trial court granted the defendant permission to file an amended answer. On May 1, 1991, the defendant filed a motion for summary judgment, which was granted by the trial court on June 4, 1991. The plaintiff appeals from the trial court’s decision rendering summary judgment.

The plaintiff sets forth several claims on appeal that fall into two categories—the statute of limitations and the defendant’s amended answer.

I

The Statute of Limitations

The plaintiff first claims that the filing of the prejudgment remedy application, when coupled with the service thereof on the defendant, constituted notice that satisfied the statute of limitations. The statute of limitations for a petition for new trial is three years. General Statutes § 52-582. In the present case, the trial court filed its decision on February 3,1986. Therefore, the service of the writ on the defendant must have occurred by February 3,1989, to be considered timely. It is undisputed that the defendant was served with notice of prejudgment remedy on January 30, 1989. Also, the defendant admitted that he had notice of the plaintiff’s claims prior to February 3, 1989. The plaintiff asserts that because the defendant received notice of the prejudgment remedy application, a pending civil action, prior to the expiration of the statutory period, the statute of limitations was satisfied. We disagree.

It is well settled that an action is brought on the date on which the writ is served on a defendant. Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991); Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990); Seaboard Burner Corporation v. Delong, 145 Conn. 300, 303, 141 A.2d 642 (1958); Consolidated Motor Freight Lines, Inc. v. M & M Transportation Co., supra, 109. On January 30, 1989, the defendant was served with a notice of prejudgment remedy hearing pursuant to General Statutes § 52-278c. General Statutes § 52-278c sets forth the requirements of service on a defendant of notice of intent to secure a prejudgment remedy. Section 52-278c (b) supplies the forms to be used for the application, the order and the summons required. The application for prejudgment remedy is to provide, in part, that the plaintiff “is about to commence an action against [the defendant] . . . pursuant to the attached proposed unsigned Writ, Summons and Complaint and Affidavit. ...” (Emphasis added.) Id.

“[A] writ of summons is a statutory prerequisite to the commencement of a civil action. . . . [I]t is an essential element to the validity of the jurisdiction of the court. . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiff’s complaint must contain the basic information and direction normally included in a writ of summons.” (Citations omitted.) Hillman v. Greenwich, supra, 526. “A writ must contain a direction to a proper officer for service and a command to summon the defendant to appear in court.” General Motors Acceptance Corporation v. Pumphrey, 13 Conn. App. 223, 228, 535 A.2d 396 (1988).

In the present case, the writ accompanying the prejudgment remedy documents did not specify a return date by which the defendant would have to file an appearance. This is a necessary component of a writ by which a civil action is commenced. General Statutes § 52-45a. Although the documents served on the defendant were sufficient to give notice of a prejudgment remedy hearing, they were insufficient to serve as the basis for a petition for new trial. Contrary to the plaintiff’s assertions, the prejudgment remedy documents are not the equivalent of the writ necessary pursuant to General Statutes § 52-45a, and does not satisfy the requirements of General Statutes § 52-582. Further, the language of General Statutes § 278c (b) that the plaintiff is “about to commence an action” plainly indicates that the application for prejudgment remedy, together with the documents that accompany it, do not commence an action.

“Under our rules of practice, any party may move for summary judgment once the pleadings in a case are closed. Practice Book § 379. . . . The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 384. Cummings & Lockwood v. Gray, 26 Conn. App. 293, 296-97, 600 A.2d 1040 (1991).” (Internal quotation marks omitted.) Farmington v. Dowling, 26 Conn. App. 545, 548-49, 602 A.2d 1047 (1992). In the present case, the pleadings, the affidavit of the defendant, the prejudgment remedy documents and the sheriffs return of service dated April 10, 1989, reveal that no issue of material fact existed as to whether the plaintiff complied with General Statutes § 52-582. Consequently, the trial court properly granted summary judgment for the defendant.

II

The Amended Answer

Finally, the plaintiff claims that the trial court improperly allowed the defendant to amend his answer to include special defenses, including the statute of limitations. “ ‘A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will [a reviewing] court overturn the decision of the trial court. Citizens National Bank v. Hubney, 182 Conn. 310, 312-13, 438 A.2d 430 (1980).’ Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985).” Capitol Restorations Corporation v. Construction Services of Bristol, Inc., 25 Conn. App. 681, 685, 596 A.2d 927 (1991). We will not disturb the ruling of the trial court in granting or denying amendments to the pleadings unless an abuse of discretion is clearly evident. Id. In the present case, the defendant was initially proceeding pro se. On October 12, 1990, he secured counsel. On December 26, 1990, defendant’s counsel filed a request for leave to amend the defendant’s answer to add special defenses. The plaintiff filed an objection, and the trial court held a hearing. The court overruled the plaintiff’s objection, and the defendant subsequently filed his amended answer. We conclude that the trial court acted within its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-45a provides: “commencement of civil actions, contents and signature of process. Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiff’s complaint. The writ may run into any judicial district and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.”

       General Statutes § 52-582 provides: “petition foe new teial. No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of.”

       See footnote 2, supra.

       The plaintiff erroneously argues that Consolidated Motor Freight Lines, Inc. v. M & M Transportation Co., 128 Conn. 107, 20 A.2d 621 (1941), presents an analogous situation. That case, however, involved the inclusion of a counterclaim in an answer, not a petition for new trial. In Consolidated, our Supreme Court decided that the plaintiffs receipt of notice of the defendant’s counterclaim filed prior to the expiration of the statute of limitations marked the commencement of the action set up in the counterclaim and satisfied the rules of practice. Id., 109. “For the purpose of the statute of limitations, an action upon the subject of a counterclaim is deemed to have begun when it is filed or, where permission to do so is necessary, when a proper motion for that purpose is served on the opposing party. Id., 108-109.” Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 413-14, 456 A.2d 325 (1983).

       General Statutes § 52-278c requires a proposed unsigned writ, summons, complaint, an application, an affidavit, a form of order and a form of summons.

       We note that the plaintiff did serve a proper writ, summons and complaint on the defendant on April 10,1989, after the expiration of the statute of limitations.

       The plaintiff asserts that the filing and serving of an application for prejudgment remedy tolls the running of the statute of limitations. Her brief, however, lacks any authority supporting that proposition. “ ‘Bare assertions of error without citation to legal authority may constitute an abandonment of a claim.’ ” Echols v. Balck, 9 Conn. App. 620, 622, 520 A.2d 651 (1987). We decline, therefore, to review this claim.


author: Landau, J.

text:
    North Park Mortgage Services, Inc. v. Robert Pinette et al.
    (10503)
    Norcott, Landau and Heiman, Js.
    Argued January 16
    decision released May 26, 1992

      David M. Lesser, with whom, on the brief, was F. Woodward Lewis, Jr., for the appellants (defendants).

      Edward F. Kunin, for the appellee (plaintiff).
   Landau, J.

The defendants, Robert and Nancy Pinette, appeal from the trial court’s judgment of foreclosure by sale and its denial of a motion for a written opinion. The plaintiff, North Park Mortgage Services, Inc., instituted a foreclosure action against the defendants who, in turn, filed an amended answer containing five special defenses and a five count counterclaim. The special defenses and the counterclaim alleged that the loan to the defendants, on which the foreclosure action was based (1) violated the Secondary Mortgage Act, General Statutes § 36-224/ (a), (2) was usurious under General Statutes §§ 37-4 and 37-9, (3) violated the Truth-In-Lending Act, General Statutes § 36-393 et seq., (4) was unconscionable and inequitable in derogation of General Statutes § 42a-2-302, and (5) violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b (a).

The plaintiff filed a motion to strike all counts of the counterclaim and each of the five special defenses. The trial court granted the motion without filing a written opinion stating the basis for its decision and denied the defendants’ request for an evidentiary hearing. The defendants filed a motion for reargument and for a written opinion in accordance with Practice Book § 156.* * The trial court denied the motion.

The defendants claim that the trial court improperly (1) granted the plaintiffs motion to strike their special defenses and counterclaim, and (2) denied their motion for a written opinion in accordance with Practice Book § 156. The plaintiff claims that (1) the trial court properly denied the defendants’ motion for a written decision because only one ground of decision was alleged in its motion to strike, and (2) the trial court was correct, as a matter of law, in granting their motion to strike. We agree with the defendants as to their second claim and, therefore, do not address their first claim.

Our rules of practice require that a motion to strike raising claims of legal insufficiency separately set forth each such claim of insufficiency and distinctly specify the reason or reasons for each such claimed insufficiency. See Practice Book § 154. A general statement in a motion to strike that the complaint does not state a claim on which relief can be granted is usually deemed not to comply with the requirements of Practice Book § 154. Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986). A motion to strike that lacks specificity, but adequately submits the material issue to the court, however, is sufficient to comply with Practice Book § 154. Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988). The trial court is required to specify in writing the legal basis of its conclusion where more than one ground of decision is set forth in the motion to strike. See Practice Book § 156.

The failure of the trial court to specify the way in which each special defense and counterclaim failed to set forth properly a defense or cause of action leaves a reviewing court in a position that it cannot determine the basis on which the trial court acted. This is especially true where, as here, the special defenses and the counts of the counterclaim allege an intricate mosaic of causes of action and defenses consisting of multiple levels and numerous alternative claims.

The defendants could have invoked Practice Book § 4051 and requested the trial court to articulate the basis of its decision more fully; see Braun v. Edelstein, 17 Conn. App. 658, 661, 554 A.2d 1102, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989); and thereafter moved for review in this court under Practice Book § 4054; Jazlowiecki v. Cyr, 4 Conn. App. 76, 79, 492 A.2d 516 (1985); in an effort to satisfy their burden of providing an adequate record for appellate review. Practice Book § 4061; State v. Laracuente, 205 Conn. 515, 520, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988); DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983). Under normal circumstances, we will not remand a case to correct a deficiency the appellant should have remedied. Carpenter v. Carpenter, 188 Conn. 736, 739 n.9, 453 A.2d 1151 (1982); Scherr v. Scherr, 183 Conn. 366, 368, 439 A.2d 375 (1981); Dixon v. Trubisz, 17 Conn. App. 216, 218, 551 A.2d 1259 (1988). Under the circumstances here, however, we deem the failure of the defendants to seek articulation or review a matter more of form than of substance. It is akin to the failure of the trial court, having made a final order, to prepare a judgment file. See Lehto v. Sprout, 9 Conn. App. 441, 445, 519 A.2d 1214 (1987). Here, the defendants, by filing a motion for reargument and for a written decision, followed every realistic avenue in attempting to obtain a more specific ruling from the trial court. The basis of the defendants’ motion was that more than one issue was presented in the plaintiff’s motion to strike and that the trial court’s ruling was “incomplete and unintelligible in its present form.” In denying the motion, the trial court made clear that it believed only one issue was presented in the motion to strike and that a written opinion was not required. Thus, under these particular facts we decline to follow Carpenter, Scherr, and Dixon because we conclude that the defendants’ motion for a written decision satisfied their burden of attempting to provide an adequate record for appellate review.

We will resort to our supervisory power under Practice Book § 4183 to extricate ourselves from the procedural quagmire in which we find ourselves. This supervisory power includes, inter alia, “the power to make appropriate postappeal orders”; Guss v. Guss, 1 Conn. App. 356, 365, 472 A.2d 790 (1984) (Borden, J., concurring), quoting In re Juvenile Appeal (83-BC), 189 Conn. 66, 81, 454 A. 2d 1262 (1983); see also O’Neill v. O’Neill, 13 Conn. App. 300, 304, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); and the power to “modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal.” Practice Book § 4183. This power, however, does not allow litigants to circumvent other rules of practice designed to promote judicial efficiency and justice. “The unique circumstances of this case . . . require that we exercise our power of supervision and control over proceedings on appeal ... in the spirit of the purpose of our rules, namely, to facilitate business and advance justice.” (Citation omitted.) O’Bymachow v. O’Bymachow, 10 Conn. App. 76, 78, 521 A.2d 599 (1987).

The trial court’s summary granting of the plaintiff’s motion to strike provides us with no basis on which to determine whether it acted properly in granting the motion and on what legal basis it relied in reaching its conclusion. In the absence of an articulation of its reasoning, “it would be sheer speculation for this court to assume that the trial court applied the incorrect legal standard.” State v. Crumpton, 202 Conn. 224, 232, 520 A.2d 226 (1987); Carothers v. Capozziello, 215 Conn. 82, 105, 574 A.2d 1268 (1990); DiBerardino v. DiBerardino, 213 Conn. 373, 385, 568 A.2d 431 (1990). “As we have indicated, the appellate record concerning this matter is such that the issue is not amenable to meaningful review. ‘It is the duty of the judge who tried the case to set forth the basis of his decision.’ Powers v. Powers, [183 Conn. 124, 125, 438 A.2d 845 (1981)]. ‘An articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification.’ State v. Wilson, [199 Conn. 417, 435, 513 A.2d 620 (1986)].” Rostain v. Rostain, 213 Conn. 686, 694-95, 569 A.2d 1126 (1990). For the reasons set out previously, we remand this case, sua sponte, for further articulation. To do otherwise would require this court to speculate on the reasoning of the trial court, which we cannot do.

Once the trial court has articulated the legal basis for granting the plaintiff’s motion to strike, “it should promptly file its findings and conclusions with the clerk of this court for our review. In addition, we want to emphasize that in remanding this case we intimate no view on the issue to be resolved by the trial court.” Ros-tain v. Rostain, supra, 695. Accordingly, we do not address the defendants’ first claim.

The case is remanded to the trial court for articulation in accordance with this opinion.

In this opinion the other judges concurred.

       Although the motion referred to Practice Book § 157, the applicable rule of practice, Practice Book § 156, is referred to within the body of the motion. We will treat the motion as one under the provisions of Practice Book § 156.

       The defendants’ motion to strike stated in relevant part: “Pursuant to § 152 of the Practice Book, the plaintiff herein moves to strike the first, second, third, fourth and fifth special defenses and all counts of the counterclaim contained in defendant’s Amended Answer dated January 18,1991 on the grounds that they do not state a claim on which relief can be granted.”

       Practice Book § 156 provides: “Whenever a motion to strike is filed and more than one ground of decision is set up therein, the judge, in rendering the decision thereon, shall specify in writing the grounds upon which that decision is based.”

       Although the plaintiffs motion to strike does not adequately submit the material issues to the court, because the defendants failed to object to the form of the motion to strike, and because Practice Book § 154 is not jurisdictional in nature, we will consider the motion to strike in the form presented to the trial court.

       The first special defense and the first count of the counterclaim alleged that the mortgage violated the Secondary Mortgage Act, General Statutes § 36-224Z (a), in that “the mortgage charged loan fees, points, commissions, transaction fees or similar prepaid finance charges which . . . exceeded 10 percent of the principle amount of the loan.”
      The second special defense and second count of the counterclaim alleged that the mortgage was not a bona fide mortgage because it violated the Secondary Mortgage Act, and it violated the Truth-in-Lending Act, and is unconscionable and usurious under General Statutes §§ 37-4 and 37-9 in that “the interest charged is greater than the statutory limit of 12 percent and/or because the mortgage loan was made for a greater amount of money than was actually received . . . and/or because the plaintiff took and received more charges than is permitted by law . . . . ” (Emphasis added.)
      The third special defense and third count of the counterclaim alleged that the mortgage violated the Truth-in-Lending Act, General Statutes § 36-393 et seq. in that “it has violated the public policy of the state of Connecticut as set forth in [General Statutes] § 36-393a (a) by not making ‘meaningful disclosure of credit . . . terms so that prospective debtors . . . have an opportunity to compare more readily the various credit . . . terms available to them and the opportunity to avoid uninformed use of credit ....’” Among the material omissions alleged are (1) that the prepaid finance charges exceeded 10 percent of the principal loan, (2) that the loan was usurious under General Statutes §§ 37-4 and 37-9, and (3) the amount financed and the finance charge.
      The fourth special defense and fourth count of the counterclaim alleged that the plaintiff’s actions alleged in special defenses one, two, three and five and in counts one, two, three and five of the counterclaim violate General Statutes § 42a-2-302 because (1) the prepaid finance charges exceeded 10 percent of the principal loan and (2) the mortgage was not bona fide because of the usurious interest rate.
      The fifth special defense and fifth count of the counterclaim alleged that the mortgage is unfair and deceptive in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b (a), for one or all of four reasons: (1) the prepaid finance charges exceeded 10 percent of the principal loan; (2) the interest rate was usurious, (3) the plaintiff violated the public policy of the Truth-in-Lending Act by failing to make meaningful disclosures; and (4) the plaintiff violated General Statutes § 42a-2-302.


author: Heiman, J.

text:
    State of Connecticut v. Council 4, AFSCME
    (10582)
    O’Connell, Heiman and Freedman, Js.
    Argued February 21
    decision released May 26, 1992

      Barbara J. Collins, for the appellant (defendant).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (plaintiff).
   Heiman, J.

The defendant, Council 4 of the American Federation of State, County and Municipal Employees, appeals from the trial court’s judgment vacating an arbitration award in favor of Phillip Beaudry, one of its members. The defendant claims that the trial court improperly (1) vacated the award on public policy grounds, (2) reviewed the merits of the issues submitted to arbitration when the issue of arbitrability was not raised by the plaintiff, (3) vacated the award even though it conformed to the submission, and (4) vacated the award on the ground of the indefiniteness of the remedy even though the submission did not restrict the arbitrator’s choice of remedy. We affirm the trial court’s judgment.

The pertinent facts may be summarized as follows. The plaintiff state of Connecticut and the defendant union entered into a collective bargaining agreement that was effective from July 1, 1988, to June 30, 1991. Beaudry, who was employed by the department of income maintenance as an eligibility technician, was a member of the defendant bargaining unit.

Beaudry’s employment was characterized by a series of lengthy absences caused by a psychiatric disorder. On November 27, 1989, he returned to work part-time after a nearly three month leave. Shortly thereafter, while training to operate the department’s computer system, Beaudry secretly created a false case file naming himself as the recipient of welfare benefits. From December 12, 1989, until some time in February, 1990, Beaudry cashed approximately $1640 in public assistance checks he received as a result of the false case file. On March 9, 1990, Beaudry gave the Connecticut state police a written statement admitting that he had received and cashed the checks.

The plaintiff discharged Beaudry effective March 28, 1990, for misuse of state funds, a legitimate ground for dismissal under state personnel regulations. See Regs., Conn. State Agencies § 5-240-5a. On April 26, 1990, the defendant filed a grievance under the parties’ collective bargaining agreement. After a hearing on June 21, 1990, a hearing officer found that the plaintiff discharged Beaudry for misuse of state funds, which constituted “just cause” under the collective bargaining agreement.* The defendant next demanded arbitration in accordance with the collective bargaining agreement. The parties submitted the following questions for the arbitrator’s consideration: “Was the Grievant, Phillip Beaudry, dismissed for just cause? If not, what shall the remedy be?”

At the arbitration hearing, the defendant did not dispute that Beaudry wrongfully acquired state moneys. The defendant contended that Beaudry was not discharged for just cause because his acts were not volitional, but rather were caused by an incapacitating mental disorder that the plaintiff knew about when it fired him. The defendant argued that because Beaudry was a disabled employee, his discharge violated General Statutes § 5-244. It argued further that Beaudry’s discharge violated General Statutes § 46a-60 (a) (l).

The arbitrator found that although Beaudry’s actions constituted “just cause for discharge, absent clear evidence of mitigatory factors of great weight,” the circumstances of this case did not amount to just cause because Beaudry’s “acts of misconduct flowed out of, or were caused by, his mental illness, albeit episodic in nature” and “were not willful or volitional or within his capacity to control.” On the basis of these findings, the arbitrator awarded Beaudry reinstatement, back pay, seniority and benefits and reimbursement for those medical bills paid by Beaudry that would have been paid by the plaintiff had Beaudry not been discharged. The arbitrator allowed the plaintiff to deduct, however, an amount equal to any earnings, welfare payments and unemployment payments received by Beaudry as well as an amount reflecting the working days Beaudry spent in the hospital between March 28, 1990, and the date of his reinstatement. It further allowed the plaintiff to deduct, as a disciplinary suspension, a sum equal to sixty days pay. The arbitrator awarded Beaudry interest on the aforementioned award equal to “eleven (11%) percent per annum... until March 31, 1991; and ten (10%) percent per annum, both as prescribed by the National Labor Relations Board when directing reinstatement of wrongfully discharged employees.” Finally, the arbitrator ordered the matter remanded to the parties to structure a job for Beaudry that would ensure that his “capabilities and experience are utilized as fully as possible and that he receives proper compensation, while at the same time assuring, to the maximum degree possible, that his assignment and duties will not put him in a position to harm clients, [the department], fellow employees, himself or the state.”

The plaintiff filed an application to vacate the arbitration award in the Superior Court. See General Statutes § 52-418. The trial court found that (1) Beaudry was discharged for just cause, (2) the arbitration award violated Connecticut’s public policy of not rewarding theft from the state, (3) the award was too indefinite with respect to the plaintiff’s obligation to structure a new position for Beaudry, and (4) the award of 11 percent interest violated General Statutes § 37-3a. Accordingly, the trial court rendered judgment vacating the arbitration award.

I

The defendant claims that the trial court improperly vacated the arbitration award on public policy grounds because the trial court was empowered to review only whether the award conformed to the parties’ submission. We disagree.

General Statutes § 52-418 (a) provides in pertinent part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . . . (4) if the arbitrators have exceeded their powers . . . .” The trial court’s analysis under this provision ordinarily is limited to whether the arbitration award conformed to the submission. East Haven v. AFSCME, Council 15, Local 1662, 212 Conn. 368, 371, 561 A.2d 1388 (1989); Malecki v. Burnham, 181 Conn. 211, 213, 435 A.2d 13 (1980); Gennarini Construction Co. v. Messina Painting & Decorating Co., 5 Conn. App. 61, 65, 496 A.2d 539 (1985). Where the award is challenged as repugnant to the public policy of this state, however, the statute allows our courts to vacate the award even if it conforms to the submission. Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339, 555 A.2d 406 (1989); State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290, 508 A.2d 80 (1986); see also New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 416, 544 A.2d 186 (1988); Stratford v. Local 134, IFPTE, 201 Conn. 577, 590-91, 519 A.2d 1 (1986). Further, the parties’ collective bargaining agreement explicitly provides for judicial review of the award in light of public policy considerations.

A public policy challenge to an arbitration award is rooted in the principle that the parties cannot expect “ ‘conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.’ ” Watertown Police Union Local 541 v. Water-town, supra, 339-40; Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); Stamford v. Stamford Police Assn., 14 Conn. App. 257, 259, 540 A.2d 400 (1988). “[T]he public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [a collective bargaining agreement] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed pub-lie interests. ...” (Citations omitted; internal quotation marks omitted.) Watertown Police Union Local 541 v. Watertown, supra, 340. In undertaking public policy review of an arbitration award, we are not “concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award.” Board of Trustees v. Federation of Technical College Teachers, supra.

This state’s compelling public policy of not tolerating the knowing misappropriation of state funds by state officials or employees cannot be disputed. General Statutes § 53a-119 (6), which explicitly proscribes such conduct, represents an unequivocal legislative articulation of this policy. The public policy of discouraging fraud generally is firmly rooted in our common law as well. See Broome v. Beers, 6 Conn. 198, 210-12 (1826); Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985).

The trial court properly found that the arbitration award contravened Connecticut’s public policy of not countenancing the knowing misappropriation of state moneys by state officials or employees. The parties “cannot expect any arbitration award which condones illegal payment or contravenes public policy to receive judicial endorsement.” State v. R.A. Civitello Co., 6 Conn. App. 438, 442, 505 A.2d 1277, cert. denied, 199 Conn. 810, 508 A.2d 770 (1986).

II

The defendant next claims that the trial court improperly vacated the arbitration award as contrary to public policy because the public policy of discouraging discrimination against the mentally ill outweighs the public policy of not rewarding state officials and employees who knowingly misappropriate state funds.

The defendant contends initially that the trial court failed to consider the public policy of discouraging discrimination against the mentally ill. The trial court’s memorandum makes clear, however, that it was well aware that the arbitrator determined that just cause to discharge Beaudry did not exist because Beaudry’s psychiatric disorder rendered his acts of misconduct nonvolitional. The trial court nonetheless concluded that our state’s policy of not tolerating embezzlement by state employees required it to vacate the arbitration award. We cannot say that the trial court’s conclusion was unreasonable. Although the arbitrator found that Beaudry’s mental illness caused him to misappropriate funds, it did not find that Beaudry’s discharge was motivated by an intent to discriminate against the mentally ill. Under the circumstances of this case, the trial court reasonably could have concluded that, even accepting the arbitrator’s factual findings, the arbitral award’s contribution to the policy of minimizing discrimination against the mentally ill; see Conn. Const., art. I, § 20, as amended by article XXI of the amendments; did not outweigh the damaging consequences to the concomitant policy goal of refusing to countenance the knowing misappropriation of state moneys.

In light of our disposition of these issues, we need not consider the remaining issues raised by the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       As a result of the state police investigation, Beaudry was arrested and subsequently admitted into the pretrial program of accelerated rehabilitation for a period of two years. See General Statutes § 54-56e. As a condition of granting the application for accelerated rehabilitation, Beaudry was required to reimburse the state for the moneys taken and to remain under psychiatric supervision. Beaudry repaid the state $1614 on or about April 16, 1990.

       Article 16, § 1, of the parties’ collective bargaining agreement provides: “No permanent employee who has satisfactorily completed the working test period shall be demoted, suspended or dismissed except for just cause. Just cause may include but is not necessarily restricted to incompetency, inefficiency, neglect of duty, misconduct or insubordination.”

       General Statutes § 5-244 provides: “When an employee has become physically or mentally incapable of, or unfit for, the efficient performance of the duties of his position, by reason of infirmities due to advanced age or other disability, the appointing authority shall recommend to the commissioner of administrative services that the employee be transferred to less arduous duties or separated from state service in good standing.”

       General Statutes § 46a-60 (a) provides in pertinent part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or by his agent, except in the case of a bona fide occupational qualification or need ... to discharge from employment any individual . . . because of the individual’s . . . present or past history of mental disorder . . . .”

       Article 15, § 9 (c), of the parties’ collective bargaining agreement provides in pertinent part: “The arbitrator’s decision shall be final and binding on the parties in accordance with Connecticut General Statutes Section 52-418, provided, however, neither the submission of questions of arbitrability to any arbitrator in the first instance nor any voluntary submission shall be deemed to diminish the scope of judicial review over arbitral awards, including awards on arbitrability, nor to restrict the authority of a court of competent jurisdiction to construe any such award as contravening the public interest. ” (Emphasis added.)

       The arbitrator found only that Beaudry’s acts of misconduct were not volitional. He did not find that Beaudry’s acts were not performed knowingly.


text:
    State of Connecticut v. John C. Hoeplinger
    (9791)
    Daly, O’Connell and Heiman, Js.
    Argued March 24
    decision released May 26, 1992

      Ira B. Grudberg, with whom, on the brief, was Steven D. Eeker, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). He claims that (1) the jurors’ inappropriate conduct, coupled with the brevity of their deliberations, violated his right to a fair trial, (2) the trial court improperly excluded a tape recording of a 911 telephone call he had made, and (3) the prosecutor, in his closing argument, improperly commented on the defendant’s failure to testify. We affirm the trial court’s judgment.

This case involves the second trial of the defendant, John C. Hoeplinger, for killing his wife in their Easton home in the early morning of May 7,1982. The defendant was indicted by a grand jury and charged with murder in violation of General Statutes § 53a-54a (a). See General Statutes § 54-45. He was convicted, after a jury trial, of manslaughter in the first degree, a lesser included offense. See General Statutes § 53a-55 (a) (1). We affirmed that judgment of conviction. State v. Hoeplinger, 9 Conn. App. 147, 517 A.2d 632 (1986). Our Supreme Court granted certification, reversed our judgment, and remanded the case to us with direction to set the judgment aside and to remand the case to the Superior Court for a new trial. State v. Hoeplinger, 206 Conn. 278, 537 A.2d 1010 (1988). The defendant again elected a jury trial, and again was convicted of manslaughter in the first degree. This appeal followed.

The defendant’s second trial lasted more than four weeks. The state presented a case based on a complex web of circumstantial, largely forensic, evidence. More than thirty witnesses testified. More than 250 exhibits were introduced. The transcript of the proceedings filled over 2600 pages. Numerous expert witnesses testified in considerable detail regarding sophisticated forensic analyses, including blood spatter analysis, blood typing, absorption elution, latus crust testing and bulbochaete, seta and diatom analyses. The state also presented evidence regarding the defendant’s marital problems and his history of spousal abuse. There was no eyewitness to the crime.

The state theorized that the defendant attacked the victim while she slept on a couch in the family room of their house, dragged her outside to a wooded area off the driveway, dragged her to a second wooded area, returned her to the house, placed her on the same couch on which he had initially assaulted her and smashed in her skull with a brick. The defendant vigorously disputed the state’s evidence and the inferences that the state asked the jury to draw from it, argued that the state’s evidence contained manifest inconsistencies and presented affirmative evidence to support his theory of third party guilt.

I

The defendant first claims that the jurors’ inappropriate conduct, coupled with the brevity of their deliberations, violated his right to a fair trial. The following additional facts are necessary to resolve this issue. Counsel delivered final arguments during the morning of October 18, 1990. The trial court charged the jury that afternoon. The jury returned a verdict of guilty of manslaughter in the first degree at 3:55 p.m. the following day.

On October 23, 1990, the defendant filed a motion for a new trial, claiming that “[t]he jury did not properly or sufficiently consider the evidence in the case.” On November 30,1990, the trial court held an eviden-tiary hearing on the defendant’s motion for a new trial. At the evidentiary hearing, the defendant’s current wife testified that she heard periodic outbursts of laughter coming from the jury room from about 12:15 p.m. on October 19, 1990, until just before the jury delivered its verdict. She further testified that the loudest outburst occurred just before the jury delivered its verdict. The defendant also testified at the evidentiary hearing that on October 19,1990, he heard sounds of laughter coming from the jury room. He estimated that the average time between the episodes of laughter was twenty minutes and that the loudest outburst came just before the jury returned its verdict. The defendant claimed that the jurors’ conduct, viewed in light of the brevity of their deliberations and the complexity of the case, deprived him of his right to a fair trial by an impartial jury. See U.S. Const., amend. VI; Conn. Const., art. I, § 19. The trial court denied the defendant’s motion without comment.

Although the trial court did not place its reasons for denying the motion on the record, the defendant did not seek articulation of the basis of that decision. See Practice Book § 4051. Thus, we can only speculate as to which of the many legitimate reasons for denying the motion for a new trial that the trial court in fact employed. Where a motion for a new trial is based on juror misconduct, the rule in this state is that, regardless of the impropriety of the jurors’ actions, the defendant cannot prevail unless it appears that the misconduct was occasioned by the prevailing party or someone on his behalf, that the misconduct indicated an improper bias in the jurors’ minds and that the misconduct harmed the defendant. See State v. Asherman, 193 Conn. 695, 735-36, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Perhaps the trial court did not credit the testimony of the two witnesses. If so, its action is virtually unreviewable. See Speed v. DeLibero, 215 Conn. 308, 314, 575 A.2d 1021 (1990) (the trial court in the best position to judge the credibility of witnesses). Perhaps the trial court believed the two witnesses but concluded that the defendant had failed to establish prejudice. See Asherman v. State, 202 Conn. 429, 442, 521 A.2d 578 (1987). Perhaps it found that the juror misconduct was not occasioned by the state. State v. Asherman, supra. On the record before us, it is impossible to discern the basis on which the trial court denied the motion for a new trial.

The appellant bears the burden of providing us with a record adequate to review a claimed error. State v. Laracuente, 205 Conn. 515, 520, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). Our role “ ‘is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.’ ” State v. Tirado, 194 Conn. 89, 92, 478 A.2d 606 (1984); State v. Chairamonte, 189 Conn. 61, 64, 454 A.2d 272 (1983). Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative. See State v. Tirado, supra, 92-93.

Because the defendant has not provided us with an adequate record on which to review his claim, his claim must fail.

II

The defendant next asserts that the trial court improperly excluded a tape recording of a 911 telephone call he had made.

The jury reasonably could have found the following additional facts, which are necessary to resolve this issue. On May 7, 1982, at 4:55 a.m., the defendant called 911 and requested that an ambulance be sent to his house at 15 Deerfield Drive, stating “my wife is in serious shape,” “she’s bloody,” and “[the blood is] all over her face and head.” Officer Raymond Osborne of the Easton police department arrived at the scene at 5:01 a.m. and found that the front porch light, the lights adjacent to the driveway and the interior house lights were on. Osborne then observed the defendant emerge from the house sobbing, distraught and shaken, declaring “she’s got blood all over her.” The defendant admitted Osborne into the house and led him to the family room, where Osborne saw the defendant’s wife lying face up on a couch, wrapped in a sheet and blankets. Osborne observed that the victim’s skull appeared to be caved in and that there was much blood on and around her head.

Officer Richard Schwartz, also of the Easton police department, arrived on the scene by 5:07 a.m. Upon entering the house, Schwartz observed the defendant kneeling next to wife, sobbing and shaking.

Rose Marie Brunetti, an Easton police department dispatcher, had received the defendant’s call and dispatched Osborne and Schwartz. The caller identified himself as John Hoeplinger and told her that he needed an ambulance because his wife was seriously hurt.

When the defense attempted to introduce the tape recording into evidence, the state interposed a hearsay objection. The defendant claimed that the tape recording was not hearsay because it was not being offered to prove the truth of its contents but to corroborate testimony regarding the defendant’s demeanor at the scene. The defendant claimed alternatively that the tape recording was admissible under the excited utterance and best evidence exceptions to the hearsay rule. The trial court sustained the state’s objection, concluding that the evidence was hearsay that fell under no recognized exception to the prohibition on such testimony.

Because the state objected only on hearsay grounds, we must first determine whether the court correctly concluded that the tape recording was excludable hearsay. “Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. . . .” (Internal quotation marks omitted.) State v. Wills, 221 Conn. 518, 522, 605 A.2d 1359 (1992). We will review the claim of inadmissibility only on the ground offered to the trial court. State v. Weinberg, 215 Conn. 231, 246, 575 A.2d 1003, cert. denied, U.S. , 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

“A statement made out of court that is offered to establish the truth of the facts contained in the statement is hearsay. Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902). The test is whether the statement is offered to prove the truth of the matters in the statement. If it is, it is hearsay; if offered for some other purpose, it is not. State v. Miller, 154 Conn. 622, 629, 228 A.2d [136] (1967).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.1.1. A statement that is offered, not for the truth of its contents, but to establish only that the conversation had actually taken place, is not hearsay. State v. Miller, supra. The defendant offered the tape recording not for the truth of its contents but to establish that he made a telephone call to the police emergency number and to show the defendant’s state of mind when he made the call. As such, the tape recording was not hearsay. The trial court incorrectly concluded that it was.

Our inquiry does not, however, end with the conclusion that the trial court improperly excluded this evidence. We must next determine whether the error was harmful. The defendant concedes that his entitlement to the admission of this evidence is based only on evidentiary, not constitutional, grounds. “When atrial 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. . . .” (Citations omitted; internal quotation marks omitted.) State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990). Because the tape recording was cumulative evidence, the defendant cannot make this showing.

The jury had the following evidence before it. The defendant called the 911 emergency number and requested that an ambulance be sent to his address. When Osborne arrived at the scene, approximately six minutes after the defendant had called 911, the defendant was sobbing, distraught and shaken. In addition, when Schwartz arrived at the scene within twelve minutes of the call, the defendant was kneeling next to his wife, sobbing and shaking.

Thus, the jury had before it evidence that the defendant called 911 to report his wife’s injuries. Further, the evidence of the defendant’s state of mind at 5:01 and 5:07 a.m. was sufficient evidence of his state of mind at 4:55 a.m., the time he called 911, to render the tape recording cumulative as to this point as well. Accordingly, the defendant cannot show that the trial court’s refusal to admit the tape recording constituted reversible error. See State v. McIver, 201 Conn. 559, 564, 518 A.2d 1368 (1986).

Ill

In his final claim, the defendant asserts that the prosecutor, in his closing argument to the jury, improperly commented on the defendant’s failure to testify. We disagree.

The following additional facts are necessary to resolve this issue. Henry Lee, the chief criminalist for the state of Connecticut and director of the forensic laboratory for the Connecticut state police, and Herbert MacDonell, director of the laboratory for forensic science, an independent consulting laboratory, testified during the state’s case-in-chief as to the presence of medium velocity blood spatter patterns on the defendant’s jeans. Both testified that this evidence was consistent with the defendant’s being in the vicinity of the victim when she was beaten. On cross-examination, both witnesses testified that medium velocity spatter also can be caused simply by shaking a bloody hand.

In his closing argument, the prosecutor reminded the jury that Lee and MacDonell testified to the presence of medium velocity blood spatter on the defendant’s jeans, and suggested that this evidence was consistent with the defendant being in the area of the beating at the time it was inflicted. The prosecutor then asked, “But did you hear anybody—any bit of testimony from anyone indicating that would have occurred any other way than by being next to the beating? Was there any testimony—did you hear anybody’s testimony of anybody seeing Mr. Hoeplinger going like this, walking around the premises?” The defendant objected to these questions as improper comments on his failure to testify and requested a curative instruction. The trial court instructed the jury that the defendant was not obligated to present any evidence. The defendant took no further objection or exception.

The defendant claims that the prosecutor’s remarks were an indirect comment on his failure to testify because they raised questions that only he reasonably could have been expected to answer. See State v. DeMartino, 7 Conn. App. 292, 295, 508 A.2d 809 (1986). He asserts that because he was the only person present when blood got on his clothes, only he could have been expected to offer an explanation as to the source of the blood.

Prosecutorial comment on a defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution; Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); as well as by Connecticut statute. General Statutes § 54-84 (a).* Similarly, a prosecutor may not pose questions in his closing argument that only the defendant can answer. State v. Bowens, 24 Conn. App. 642, 650, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991); State v. DeMartino, supra. The state may, however, “ ‘comment on a defendant’s failure to call witnesses to contradict the factual character of the government’s case; United States v. Dioguardi, 492 F.2d 70, 81-82 (2d Cir.), cert. denied, 419 U.S. 873 [95 S. Ct. 134, 42 L. Ed. 2d 112] (1974); as well as his failure to support his own factual theories with witnesses. United States v. Rodriguez, 556 F.2d 638, 641 (2d Cir. 1977); United States v. Lipton, 467 F.2d 1161, 1168 (2d Cir. 1972), cert. denied, 410 U.S. 927 [93 S. Ct. 1358, 35 L. Ed. 2d 587] (1973).’ United States v. Bubar, 567 F.2d 192, 199 (2d Cir.), cert. denied, 434 U.S. 872, 98 S. Ct. 217, 54 L. Ed. 2d 151 (1977).” State v. Allen, 9 Conn. App. 169, 178-79, 517 A.2d 1043 (1986), rev’d on other grounds, 205 Conn. 370, 533 A.2d 559 (1987). In reviewing a claim of indirect prosecutorial comment on a defendant’s failure to testify, we determine whether the language used was “manifestly intended to be, or was ... of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” (Internal quotation marks omitted.) State v. Menzies, 26 Conn. App. 674, 696, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992); State v. Bowens, supra.

The prosecutorial remarks at issue in this case could not reasonably have been construed as an improper comment on the defendant’s failure to testify because the prosecutor did not identify the defendant as the only person who could provide the missing explanations. See State v. Menzies, supra, 697. The prosecutor’s rhetorical question regarding whether any witness testified as to how the spattered blood could have gotten on the defendant’s pants if the defendant were not near the victim during the beating was in fact answered by both Lee and MacDonell, who testified that similar patterns could have been cast off from a person’s hand. The prosecutor’s query as to whether anyone testified to having seen the defendant walking around the premises “going like this” also could have been answered by someone other than the defendant. Indeed, Ralph and Joan Altieri, the defendant’s neighbors, testified that they noticed that lights were on in the defendant’s house and on his deck and driveway late on the night of the incident. Joan Altieri testified that the premises were “lit up like a park” at 3 a.m., contrary to the Hoeplingers' usual practice. Clearly, these witnesses could reasonably have been expected to testify regarding whether they saw the defendant walking around the premises that night. This is not the “exceedingly rare case where the defendant alone could possibly contradict the government’s testimony.” United States ex rel. Leak v. Follette, 418 F.2d 1266,1269 (2d Cir. 1969), cert. denied sub nom. Leak v. Follette, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 (1970); State v. Evans, 165 Conn. 61, 72, 327 A.2d 576 (1973).

Our review of counsel’s final argument leads us to conclude that the language complained about could not reasonably be construed as an improper comment on the defendant’s failure to testify and that the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The entire exchange was as follows: “[Prosecutor]: There’s some medium velocity spatter on the defendant’s jeans identified by Dr. Lee. There’s some identified by Dr. MacDonell. There’s other ways you can get medium velocity spatter other than by hitting somebody with a brick, okay. So what can you infer from that? Well, if you believe that it corroborates all the other evidence, you believe he was in the area of the beating at the time the beating was inflicted. Could it have been done another way? Sure, it could have been done another way. Is it likely under the circumstances or the facts as you have them here? I don’t know; you have to decide that. But did you hear anybody—any bit of testimony from anyone indicating that would have occurred any other way than by being next to the beating? Was there any testimony—did you hear anybody’s testimony of anybody seeing Mr. Hoeplinger going like this, walking around the premises?

      “[Defense Counsel]: If the court please, I object to that, because I think the inference there is clear and I think he should know that’s improper, because all of this happened long before the police arrived on the scene. And I think that’s a direct attempt to invoke the fact that this man exercised his constitutional privilege. And I would ask the court to instruct the jury accordingly.
      “[Prosecutor]: Absolutely not, Your Honor. I prefaced it by indicating what other people observed. I thought I made that clear and—
      “The Court: Well, I’d just remind the jury that it is the sole burden of the state and—and I will tell you in the charge that Mr. Hoeplinger has no obligation to present any evidence in this case in defense. And I will go into great detail about that. But in the meantime, any thoughts about what the defense has offered is to be erased from your mind as far as this particular subject matter that [the prosecutor] is considering or addressing.” (Emphasis added.)

       Although the defendant asserts that his rights under both the state and federal constitutions were violated, he does not provide us with a separate analysis of his state constitutional claim. Both we and the Supreme Court have declined to review a defendant’s state constitutional claim, deeming it to have been abandoned, when the defendant has not separately briefed and analyzed that claim. See, e.g., State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Redente, 19 Conn. App. 521, 531 n.5, 563 A.2d 1365 (1989). That declination, however, does not mean that we are not able to review such a claim if we choose to do so. See State v. Geisler, 25 Conn. App. 282, 283-84 n.2, 594 A.2d 985, cert. denied, 200 Conn. 918, 597 A.2d 342 (1991).