author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. JOHN HANSEN
    (13002)
    Dupont, C. J., and Foti and Heiman, Js.

      Argued June 5
    decision released September 19, 1995

      Neal Cone, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Patricia A. Swords, state’s attorney, for the appellee (state).

      Shelley A. White filed a brief for New Haven Legal Assistance Association, Inc., as amicus curiae.
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and larceny in the sixth degree in violation of General Statutes § 53a-125b. On appeal, the defendant claims that (1) he was deprived of his right to a fair trial when evidence was introduced that he was suspected of committing other robberies in the Vernon area, had a prior arrest record, and had a habit of concealing himself behind a locked door to avoid police, (2) he was denied his rights to equal protection and due process when the state argued that his poverty provided a possible motive for committing the crimes, (3) the trial court failed to make an adequate inquiry into the defendant’s complaints concerning trial counsel and denied his application for the appointment of substitute counsel, (4) the evidence was insufficient to support a guilty verdict on the charge of robbery in the first degree, (5) the charge of the court on the issue of the presumption of innocence, the burden of proof, and the jury’s duties denied the defendant due process of law, and (6) the defendant’s conviction of both robbery in the first degree and larceny in the sixth degree violated his right against double jeopardy.

The jury could reasonably have found the following facts. At about 2:30 a.m. on January 16,1993, the victim, Christie Lawrence, was working as an assistant manager at the Mile Hill Sunoco, a twenty-four hour mini-mart in Vernon. She was behind the counter when the defendant entered the store. The defendant walked to the back of the store and removed a soda from the cooler. He then brought the soda to the counter where the victim was standing and asked the victim for a carton of Marlboro cigarettes. The victim obtained the carton of cigarettes without turning her back on the defendant and proceeded to ring up the defendant’s purchases. When the victim informed the defendant of the amount he owed for his purchases, the defendant replied that he was not going to pay. The defendant then demanded that the victim give him money. The victim refused and pleaded with the defendant not to “do this to [her].”

At this time, a customer, Eric Marandino, entered the store and made a purchase. The defendant stood aside while the victim rang up the sale. The victim was unable to say anything to Marandino about what was occurring because she was afraid.

Once Marandino left the store, the defendant again asked the victim for the money. When the victim refused, the defendant reached into his pocket and pulled out what appeared to the victim to be a knife. As the defendant returned the object to his pocket, he told the victim that he also had a gun and again demanded the money. The victim opened the drawer of the cash register and removed the money. At the defendant’s command, the victim placed the money into a bag and handed it to the defendant. The defendant fled the store carrying the money and the carton of cigarettes.

Shortly thereafter, the police responded to the victim’s 911 call. The victim was able to provide the police with a description of the defendant. One day after the incident, the victim went to the Vernon police station where she was shown a photographic array that included a photograph of the defendant. The victim identified the defendant as the person who had robbed the convenience store on January 16, 1993. The same photographic array was shown to Marandino who also identified the defendant as the person that he had seen standing by the register on the night of the robbery.

I

The defendant first asserts that he was deprived of his right to a fair trial when evidence was introduced that he was suspected of committing other robberies in the Vernon area, had a prior arrest record, and had a habit of concealing himself behind a locked door when police came to arrest him. We are unpersuaded.

In support of his claim, the defendant points to three portions of the direct testimony of Detective Donald Skewes of the Vernon police department who had been assigned to investigate the robbery at the Mile Hill Sunoco on January 16, 1993.

In the first portion of Skewes’ testimony, the state asked Skewes how he created the photographic array that was used to identify the defendant as the robber. Skewes testified that he put together a photographic array of possible suspects from the description given by the victim. He further testified that a photograph of the defendant was included because the defendant met the description given by the victim and because he was suspected of committing past robberies in the Vernon area. The defendant made no objection to Skewes’ comment that the defendant was a suspect in other robberies, nor did he move to strike the answer.

Second, the defendant points to a later portion of Skewes’ direct testimony where the state asked Skewes to describe to the jury the circumstances surrounding the execution of the arrest warrant on the defendant. Skewes testified that he had information that the defendant was in a garage on Cherry Street, but that when the police arrived the defendant fled into 29 Brooklyn Street where members of his family reside. Skewes then testified that they were allowed access into the house and were told that the defendant was upstairs. When they reached the top of the stairs, the door was locked. Skewes then testified that it was a “habit” of the defendant’s to hide behind locked doors to avoid the police. The defendant again neither objected nor moved to strike the testimony.

Finally, the defendant points to Skewes’ continued testimony regarding the photographs that were taken of the defendant after his arrest. Skewes testified that these photographs were taken to record the defendant’s current facial features because the photograph used in the photographic array was from past arrests. The defendant did not object to Skewes’ testimony regarding the defendant’s past arrests, nor did he move to strike.

The defendant concedes that he failed to object to any of the answers that he now claims as the predicate for his failure to receive a fair trial. The defendant also failed to move to strike any of the answers that he now claims to be offensive, and did not seek a curative instruction from the trial court. Thus, he claims entitlement to review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or under the plain error doctrine. Practice Book § 4185.

No useful purpose is served by again setting forth the familiar litany of the criteria that must be met for Golding review. State v. Golding, supra, 213 Conn. 239-40. “The first two conditions of Golding are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1249 (1994); see also State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994). We conclude that, here, the defendant’s evidentiary claim is not of constitutional magnitude and decline to afford review.

It is well established that “[rjobing garden variety claims of [an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. State v. Reddick, 33 Conn. App. 311, 331-32, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994); State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Evidentiary claims are not of constitutional magnitude and are thus not entitled to Golding review. See State v. Robinson, 227 Conn. 711, 741 n.22, 631 A.2d 288 (1993).” (Internal quotation marks omitted.) State v. Gross, 35 Conn. App. 631, 637-38, 646 A.2d 933, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994). Thus, the defendant’s claim regarding the admission of evidence concerning his past contacts with the police does not warrant Golding review.

The defendant does not fare any better under his claim for review pursuant to the plain error doctrine. “Practice Book § 4185 provides that this court may in the interests of justice notice plain error not brought to the attention of the trial court. Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Foreshaw, 214 Conn. 540, 546, 572 A.2d 1006 (1990). Having concluded that the testimony of which the defendant now belatedly complains did not implicate his constitutional rights so as to warrant review under State v. Golding, supra, 213 Conn. 239-40, we find that the testimony did not result in manifest injustice, and does not, therefore, warrant plain error review. See State v. Ulen, supra, 31 Conn. App. 38.

The defendant’s claim is without merit.

II

The defendant next asserts that he was denied his rights to equal protection and due process when the state argued that his poverty provided a possible motive for committing the crimes. He also claims that the harm created by the state’s argument was compounded by the trial court’s charge to the jury that evidence of motive was relevant and material to its consideration of the defendant’s guilt or innocence. We are unpersuaded.

Certain additional facts are necessary to an understanding of our resolution of this issue. In his defense, the defendant called his brother and sister-in-law, Jeffrey Hansen and Donna Hansen, to offer explanations as to why the defendant could not have been the perpetrator of this robbery. Jeffrey Hansen testified that on the night of the robbery the defendant came to his house and asked if he could stay for the night and that he and the defendant spent the next day fixing Donna Hansen’s car. Jeffrey Hansen further testified that the defendant did not have any money at that time because he was unemployed and that he provided the defendant with food and cigarettes. He concluded that, if the defendant did have money at that time, the defendant would have been out drinking. Donna Hansen also testified that the defendant did not have any money at the time and that, if he did have money, he would have been out using the money to purchase alcohol.

In the state’s initial closing argument to the jury, no reference was made to the defendant’s lack of money. In the defendant’s argument to the jury, however, counsel argued that the defendant’s lack of funds made it less likely that he committed the robbery. Counsel pointed out that the witnesses to the robbery described the perpetrator as wearing a gray sweatshirt and that when the defendant was arrested he was wearing a blue sweatshirt. Counsel then stated that the defendant’s brother and sister-in-law testified that the defendant did not have much money and could not, therefore, have bought sweatshirts in different colors. Counsel further argued that Jeffrey Hansen and Donna Hansen testified that the defendant stayed at their house on the night of the robbery and spent the next day working with Jeffrey on Donna’s car and that if the defendant had any money he would instead have been out drinking. In summation, counsel again returned to the theme that the defendant was wrongly accused, arguing that the defendant would have no reason to rob a store at that time of night because no package stores or bars were open from which he could buy alcohol.

In rebuttal, the state argued that the defendant had a motive for committing the crimes: “He had no money, he was unemployed, he smoked Marlboro cigarettes.” The defendant raised no objection to the argument made by the state’s attorney in rebuttal, nor did he request a curative instruction by the trial court.

In its charge, the trial court instructed the jury that the arguments and statements made by counsel were not evidence and that the jury’s recollection of the facts controlled. In addition, the trial court informed the jury that evidence tending to establish a motive for the commission of the crimes was relevant to determining the defendant’s guilt or innocence. The trial court added that the state was not, however, required to prove that there was a motive because motive is not an element of the crimes charged. The defendant took no exception to the trial court’s instructions.

A

The defendant now asserts, for the first time on appeal, that the argument of the prosecutor in the rebuttal argument constituted a denial of his right to equal protection. We are unpersuaded.

The defendant concedes that this issue was not properly preserved in the trial court for review by this court, and we agree. Thus, he again seeks review under the rubric of State v. Golding, supra, 213 Conn. 233, or, in the alternative, the plain error doctrine. Practice Book § 4185.

We conclude that the defendant has failed to satisfy entitlement to review under the second prong of Golding, that “the claim is of constitutional magnitude alleging the violation of a fundamental right.” State v. Golding, supra, 213 Conn. 239-40. The bulk of the evidence of the defendant’s impecuniosity was elicited by the defendant himself. His brother and sister-in-law were called by the defense and testified that the defendant was without funds and that when the defendant did have money he would use it to go out drinking. On cross-examination, the defendant’s brother testified that the defendant was unemployed. In addition, the defendant attempted to use this evidence to his advantage in closing arguments to establish that if he had committed the robbery, he would have been out using the money to buy liquor rather than working with his brother on his sister-in-law’s car. In rebuttal, the state merely suggested an alternate inference to be drawn from the defendant’s lack of funds. Nor is the claimed error so egregious or obvious as to warrant plain error review. See Practice Book § 4185.

The defendant’s claim is without merit.

B

The defendant also asserts that the state’s attorney’s argument denied him due process of law. We decline to review this unpreserved claim of prosecutorial misconduct.

“We will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. . . . State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994), quoting State v. Young, 29 Conn. App. 754, 766-67, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993).” (Internal quotation marks omitted.) State v. Ricketts, 37 Conn. App. 749, 762, 659 A.2d 188 (1995).

In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. “[I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. ” (Internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 772, 653 A.2d 216 (1995), quoting State v. Williams, supra, 231 Conn. 247. “[W]e must review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) State v. Williams, supra, 246-47, quoting State v. Robinson, supra, 227 Conn. 746.

The argument by the state’s attorney was not so egregious as to deprive the defendant of a fair trial, but merely offered to the jury an alternate inference from the one suggested by defense counsel that could be drawn from the defendant’s lack of funds. In addition, even if we were to agree that the remark of the state’s attorney in her closing argument was improper, we would still be required to decline review of this unpre-served claim because the statement was an isolated and brief incident that did not constitute a pattern of conduct repeated throughout the trial. See State v. Rick-etts, supra, 37 Conn. App. 762. Such an isolated and responsive argument as now attacked by the defendant fails to implicate the defendant’s constitutional right to due process and we decline to review this claim.

Our determination that the prosecutor’s comments were not so egregious as to warrant Golding review also precludes review under the plain error doctrine. Practice Book § 4185.

Ill

The defendant next asserts that the trial court improperly (1) failed to make an adequate inquiry into the defendant’s complaints about his court-appointed counsel and (2) denied his request for substitute counsel. We disagree.

Certain additional facts are necessary to an understanding of our resolution of this issue. On January 27, 1993, the trial court appointed Lawrence Bates as special public defender to represent the defendant. In response to this appointment, the defendant informed the court that he was not satisfied with Bates and that he wanted the opportunity to choose a special public defender. The trial court indicated that it would not permit the defendant to choose and that the appointment of Bates would stand.

On May 13, 1993, the state informed the trial court that a pretrial had been unsuccessful in resolving the case and that the case should be placed on the firm jury list because the defendant had filed a motion for a speedy trial. The defendant requested permission to address the court and advised the court that he desired a change of counsel because he was not satisfied with the representation that he was receiving from Bates. The defendant stated that he felt that Bates had not done enough to represent him and that he was concerned that Bates thought he was guilty. The trial court denied the defendant’s motion, stating that the defendant’s reasons for requesting new counsel were not sufficient.

On May 18, 1993, prior to the commencement of the trial, the defendant again requested that Bates be replaced as counsel. He stated that Bates had not prepared a defense and that he would prefer to be represented by the legal clinic at the University of Connecticut. The trial court informed the defendant that it was Bates’ job to handle his defense in a professional manner and that there was nothing to indicate that Bates would not do so. In addition, the trial court assured the defendant that it would intervene if any problems were to develop during the course of the trial. The trial court did, however, give the defendant an opportunity to contact the legal clinic, which declined to represent the defendant.

On May 26, 1993, the day that the evidence commenced, the defendant again requested that Bates be relieved as his counsel and that new counsel be appointed. The defendant repeated his claims that Bates had shown him no defense, had not filed any motions in his behalf and that he did not feel he would get justice with this counsel. He also stated that he was in the process of preparing a grievance against Bates.

After a meeting with counsel, the trial court again denied the defendant’s request to relieve Bates as counsel and to appoint substitute counsel. The trial court advised the defendant that he was entitled to adequate and effective counsel but that he was not entitled to pick his own counsel. The trial court went on to state that it was his understanding that Bates had been in the case for about three months and that he had had an adequate opportunity to prepare the case. In addition, the trial court told the defendant that not every case had a defense other than an assertion that this particular defendant did not commit the crime. The trial court then concluded that Bates was able to provide the defendant with an adequate defense and that the case would go forward as scheduled.

A

The defendant first claims that the trial court failed to make an adequate inquiry into his complaints about his court-appointed counsel. We disagree.

Our Supreme Court has held that a trial court has “a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel . . . .” State v. Robinson, supra, 227 Conn. 726; see also State v. Gonzalez, 205 Conn. 673, 685, 535 A.2d 345 (1987). “The extent of an inquiry into a complaint concerning defense counsel lies within the discretion of the trial court.” State v. Robinson, supra, 725. A trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints. Id., 726; State v. High, 12 Conn. App. 685, 689, 533 A.2d 1217 (1987).

Here, the defendant was given numerous opportunities to clearly place upon the record his claim for disqualification of his court-appointed counsel. The trial court, having been fully informed as to the nature of the complaints, did not improperly fail to make a further inquiry into the defendant’s claims. The defendant’s complaints were fully articulated in the course of each of the arguments. The defendant’s renewed objections to his representation by appointed counsel were not different or any more substantial than his original complaints. The defendant’s claim that the trial court improperly failed to make adequate inquiry into his complaints is, therefore, without merit. See State v. Gonzalez, supra, 205 Conn. 683-85.

B

We next turn to the claim that the trial court improperly denied the defendant’s motions for the court to remove Bates as counsel and to appoint new counsel.

A request by a criminal defendant that his appointed counsel be discharged and new counsel be appointed may be granted only if it is supported by a substantial reason. Id., 683; State v. Lee, 32 Conn. App. 84, 100, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994). “While a criminal defendant’s right to be represented by counsel implies a degree of freedom to be represented by counsel of defendant’s choice . . . this guarantee does not grant a defendant an unlimited opportunity to obtain alternate counsel on the eve of trial.” (Internal quotation marks omitted.) State v. Lee, supra, 101; see also State v. Gonzalez, supra, 683. The resolution of the question as to whether the circumstances of the case warrant the appointment of new counsel is one addressed to the exercise of the discretion of the trial court. State v. Gonzalez, supra, 683; State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986); State v. Lee, supra, 100.

Applying this standard to the record before us, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion to discharge his counsel and for the appointment of substitute counsel. It appears that the primary complaint that the defendant asserted against counsel was that counsel did not believe the defendant not guilty and had not discussed a defense with him. It is clear that the position of the defendant was that he had not committed the crime, while the state was in a position to offer the evidence of the victim who had already identified the defendant as the perpetrator from a photographic array, and a witness who had already identified the defendant as being present in the store when he came in to purchase eggs. Furthermore, the defendant acknowledged that he had been made aware of these facts by counsel.

The defendant has failed to show that the trial court abused its discretion in refusing to replace counsel.

IV

The defendant next asserts that the evidence produced by the state was insufficient to support his conviction of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). In support of this claim, the defendant asserts that the state was obligated to prove that the defendant actually possessed a firearm at the time of the robbery. We are not persuaded.

Before reaching the merits of the defendant’s claim, we note that the defendant has conceded that the claim was not preserved for appellate review. Although the defendant did file a postverdict motion for judgment of acquittal, that motion addressed only a claim that he could not be convicted without proof of an explicit threat. The defendant does, however, request review of this unpreserved claim under State v. Golding, supra, 213 Conn. 233. We conclude, however, that the defendant’s alleged constitutional violation does not clearly exist and did not clearly deprive him of a fair trial. See id., 239-40. The defendant’s claim must, therefore, fail.

Pursuant to § 53a-134 (a) (4), a person is guilty of robbery in the first degree when, in the commission of the crime of robbery, that person “displays or threatens the use of what he represents by his words or actions to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” This portion of the statute is satisfied when the state has proven beyond a reasonable doubt that the defendant represented by his words or conduct that he has a firearm; the state need not prove that the defendant actually had a gun. State v. Dolphin, 195 Conn. 444, 449, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978).

The defendant appears to claim support for his position because of the language found in General Statutes § 53a-135. He argues that because a violation of § 53a-135 (a) (2), is a lesser included, offense of § 53a-134 (a) (4), it is clear that the legislature intended that the greater offense require proof of the presence of an actual firearm. This interpretation of the two statutes has already been rejected by our Supreme Court. State v. Evans, 200 Conn. 350, 511 A.2d 1006 (1986). In Evans, the court stated that “[u]pon examination of General Statutes §§ 53a-134 (a) (4) and 53a-135 (a) (2) . . . we find that there is a significant difference between the two statutes. . . . [I]t is clear that the essential difference between §§ 53a-134 (a) (4) and 53a-135 (a) (2) is the type of weapon used. The former is limited to firearms; the latter includes firearms but is not limited to them. . . . This difference indicates a clear legislative intent to impose a greater penal sanction where robbery is committed with the representation of the use of a firearm.” (Citations omitted; internal quotation marks omitted.) Id., 359.

The state was not, therefore, required to prove that the defendant possessed an actual firearm in order to convict him of a violation of General Statutes § 53a-134 (a) (4). The state’s burden was satisfied when it proved beyond a reasonable doubt that the defendant threatened the use of what he represented to be a firearm.

The defendant’s claim is without merit.

V

The defendant next claims that the trial court’s instructions on the state’s burden of proof, the presumption of innocence, and the jury’s duties deprived him of due process of law. Specifically, the defendant challenges the following statements made by the trial court in its charge: (1) “A reasonable doubt is a doubt for which a valid reason can be assigned.” (2) “Areasonable doubt is not a doubt . . . suggested by the ingenuity of counsel or any of the jurors, which is not justified by the evidence or the lack of evidence.” (3) “Areasonable doubt is ... is a real doubt, an honest doubt.” (4) “[I]f all of the evidence and the reasonable and logical inference is drawn there is equally two ways, one toward innocence and one toward guilt, you must give it the direction which tends towards innocence.” (5) “If you can, in reason, reconcile all of the facts proved with any reasonable theory consistent with innocence of the accused, then you cannot find the defendant guilty .... If the facts you find proven or the evidence you deem credible is consistent with or may be reasonably explained by any hypothesis other than [that] the accused is guilty, you must return a verdict in favor of the accused.” (6) “The state of Connecticut and its people look to you as sworn officers of this court . . . with the interest placed in your hands as an arm of the court.” and (7) “[T]he law is made to protect society and innocent persons, and not to protect guilty ones.” We disagree.

The defendant took no exception to any of the instruction now challenged on appeal and the defendant’s claim is not properly preserved for our review. The defendant, therefore, seeks review under State v. Golding, supra, 213 Conn. 233. All of the language now challenged has been found not to implicate a defendant’s constitutional rights and fails to meet the second prong of Golding. We, therefore, decline to review the defendant’s claim.

The defendant’s first challenge is to the trial court’s instruction that ‘ ‘a reasonable doubt is a doubt for which a valid reason can be assigned.” This charge has consistently withstood claims of constitutional impropriety and, therefore, does not warrant Golding review. State v. Brown, 35 Conn. App. 699, 708-709, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994); State v. Smith, 35 Conn. App. 51, 71-72, 644 A.2d 923 (1994); State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993); see also State v. Kelley, 229 Conn. 557, 567-68, 643 A.2d 854 (1994).

The defendant’s second challenge is to the trial court’s instruction that a reasonable doubt is not a “doubt . . . suggested by the ingenuity of counsel or any of the jurors, which is not justified by the evidence or lack of evidence.” Again, this charge has been held not to represent a claim of constitutional dimension and is thus not entitled to Golding review. State v. Smith, supra, 35 Conn. App. 71-72; see also State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992); State v. Boykin, 27 Conn. App. 558, 572, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

The defendant’s third challenge is to the trial court’s instruction that a reasonable doubt is a “real doubt, an honest doubt.” This language has been held to not have reduced in any way the state’s obligation to prove the guilt of the accused beyond a reasonable doubt and thus is not entitled to Golding review. State v. Smith, 26 Conn. App. 279, 282, 600 A.2d 1036 (1991), citing State v. Thomas, 214 Conn. 118, 120, 570 A.2d 1123 (1990); see also State v. Findlay, 198 Conn. 328, 346, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).

The defendant’s fourth challenge is to the trial court’s charge with respect to the so called “two inference rule,” which instructs the jury that if all of the evidence and the reasonable and logical inferences drawn therefrom point equally to guilt and innocence, the jury must find the defendant innocent. The defendant asserts that the result of this is to suggest that a preponderance of the evidence standard is implicated. Our review of the jury charge, however, discloses that the trial court on numerous occasions properly instructed the jury that the burden of proof rested with the state to prove the defendant guilty beyond a reasonable doubt and explained those terms fully and accurately. In addition, this charge has been previously upheld against constitutional attack and, thus, the defendant is not entitled to review of this unpreserved claim pursuant to State v. Golding, supra, 213 Conn. 233. See State v. Smith, 219 Conn. 160, 167, 592 A.2d 382 (1991); State v. Dyson, 217 Conn. 498, 504, 586 A.2d 610 (1991).

The defendant’s fifth challenge concerns language in the trial court’s charge that he claims imposed an obligation on the defendant to offer a defense so that jurors would be able to “legitimize their votes.” The language used by the trial court, however, has consistently withstood constitutional attack and we will not review the defendant’s unpreserved claim. See State v. Findlay, supra, 198 Conn. 348; State v. Lopez, 37 Conn. App. 509, 513-15, 657 A.2d 647 (1995).

The defendant’s final two attacks on the trial court’s charge concern the statements that the jurors are “sworn officers of this court” and “an arm of the court” and that “the law is made to protect society and innocent persons, and not to protect guilty ones.” Again, these charges have withstood constitutional challenge and the defendant cannot satisfy the second Golding prong. State v. Colon, 37 Conn. App. 635, 639, 657 A.2d 247 (1995); see also State v. Francis, 228 Conn. 118, 133-36, 635 A.2d 762 (1993).

Finally, the defendant asserts that even if no single incident in the charge warrants a reversal of his conviction, the cumulative effect of all of these alleged improprieties deprived him of due process of law. This argument has been squarely rejected in State v. Rob inson, supra, 227 Conn. 746-47. Thus, again the defendant cannot meet the threshold demand of the second prong of Golding.

We note, however, that even if we were to afford review of these seven attacks on the jury instructions, the defendant could not prevail. “When examining a jury charge, we do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation. State v. Fleming, 198 Conn. 255, 268, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). We read the instructions as a whole to determine whether a reasonable possibility that the jury was misled by the charge exists. State v. Castonguay, 218 Conn. 486, 498, 590 A.2d 901 (1991); State v. Dizon, 28 Conn. App. 444, 447, 611 A.2d 432 (1992); State v. Fernandez, 27 Conn. App. 73, 84-87, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992).” State v. Andrews, 29 Conn. App. 533, 540, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993). Applying that test, the charge as a whole was fair, just and adequate to the task of leading the jury to a fair and reasoned result.

VI

Finally, the defendant asserts that his constitutional guarantee against double jeopardy has been violated by his conviction and sentencing for both a robbery in the first degree and larceny in the sixth degree.

We note that the defendant’s claim is raised for the first time on appeal and is not, therefore, properly preserved for our review. The state has conceded, however, and we agree, that larceny in the sixth degree is a lesser included offense of robbery in the first degree; see State v. Tinsley, 181 Conn. 388, 396-97, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); and that the conviction of both offenses constitutes double jeopardy.

The defendant has thus been subjected to double jeopardy by virtue of the fact that multiple punishments have been imposed for the same offense. See State v. Chicano, 216 Conn. 699, 721-22, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). The remedy for such a violation is to combine the conviction for larceny in the sixth degree with the conviction for robbery in the first degree and to vacate the larceny in the sixth degree sentence. Id., 725.

The judgment is reversed only as to the sentence on the conviction of larceny in the sixth degree and the case is remanded with direction to combine the defendant’s larceny conviction with his robbery in the first degree conviction and to vacate his larceny in the sixth degree sentence.

In this opinion the other judges concurred.

       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 of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       General Statutes § 53a-125b (a) provides: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”

       The defendant also asserts that his own counsel compounded the unfairness when on cross-examination he asked questions that fleshed out the police belief that the defendant was suspected in several other robberies in the Vernon area. We decline to afford review of this portion of the claim because it implicates a claim of ineffective assistance of counsel. Our Supreme Court has consistently emphasized “ ‘that a claim of ineffective assistance of counsel is more properly pursued on a petition for a new trial or on a petition for a writ of habeas corpus rather than on direct appeal.’ ” State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); see also State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990). Nothing in the claim made here requires that we abandon this preference for orderly process. Thus, we decline to review on direct appeal that part of this claim that more properly turns on effective assistance of counsel.

       Upon application by the New Haven Legal Assistance Association, Inc., we permitted the filing of an amicus brief relating to this issue.

       In its charge, the trial court instructed the jury with respect to motive as follows: “Whenever a person is on trial for a criminal offense, it is proper to show whether that person possessed any motive to commit the offense. The state does not, however, have to prove motive, since evidence of motive does not establish any element of the offense charged. However, such evidence is both relevant and material, and it may have a tendency to strengthen the state’s case when an adequate motive can be shown.
      “Evidence tending to show the existence or nonexistence of motive may be a relevant factor in the inquiry as to the guilt or innocence of the defendant. This factor is to be weighed by you [along] with all the other evidence in the case. The role that motive plays in any particular case necessarily varies with the strength of the other evidence in the case. The other evidence may be such as to justify a finding of guilty without any motive being shown. On the other hand, it may also be so weak without a disclosed motive, the guilt of the defendant could not [be] established beyond a reasonable doubt. It is up to you, as judges of the facts, to decide whether the defendant possessed any motive to commit the offense, and to give it such weight as you think it is entitled, under the circumstances.”

       We note that although the defendant also points to the trial court’s instruction to the jury on motive, he makes no claim on appeal that the charge was legally incorrect or improper. He claims only that the harm of the state’s attorney’s comment was compounded by the trial court’s charge.

       The defendant claims that the actions of the state’s attorney violated his right to equal protection under both the state and federal constitutions. See U.S. Const., amend. XIV, § 1; Conn. Const., art. I, §§ 1 and 20. The defendant has failed, however, to provide us with an independent analysis of his state law claim. In the absence of such analysis, we decline to review that claim and limit our analysis to the federal constitution. See State v. Robinson, 227 Conn. 711, 721, 631 A.2d 288 (1993); State v. Pinnock, 220 Conn. 765, 776 n.3, 601 A.2d 521 (1992).

       We note that the defendant’s claim is not directed at the admission of the evidence, but is directed instead to the propriety of the arguments of the prosecutor. The cases cited by the defendant in his brief are cited only for the proposition that such evidence may be inadmissible. The defendant has not cited to a case that addresses the situation here, where evidence of the defendant’s finances was produced by the defendant himself and later used by the state in its closing argument.

       We also note that even if we were to afford review of this claim the result would not change. In determining whether prosecutorial misconduct was so serious as to amount to a due process violation, some of the factors that we examine are the extent to which the misconduct was invited by defense argument, the severity of the misconduct, the centrality of the misconduct to the critical issue, and the strength of the state’s case. State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987); State v. Harvey, 27 Conn. App. 171, 181, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). Here, the entirety of the argument by the state was invited by the defense evidence and argument, the alleged misconduct was not severe and not pervasive, it was not connected to the critical issue in the case and, finally, the evidence of the guilt of the defendant was overwhelming in light of the fact that two eyewitnesses identified the defendant as the perpetrator.

       We note that the factual bases for the defendant’s claims are predicated on the perceived ineffective assistance of his trial counsel. We decline to review that portion of the defendant’s claims that implicate the competency of counsel because such claims are more properly raised on habeas. See State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990); State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); see also footnote 3.

       See General Statutes § 54-82m and Practice Book § 965A et seq.

       The information filed against the defendant charged him with robbery in the first degree in violation of subdivision (3) or (4) of General Statutes § 53a-134 (a). The jury was, therefore, instructed on the requirements of both subdivisions. The jury returned a verdict of guilty under § 53a-134 (a) (4) only.

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

       The defendant concedes that he is “[tjreading familiar ground” in raising this claim on appeal and states that the issue is raised “if no more than to preserve the issue for federal review.”

       The defendant was sentenced to eighteen years on the charge of robbery in the first degree and three months on the charge of larceny in the sixth degree. The defendant’s sentences were ordered to run concurrently for a total effective sentence of eighteen years.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICHARD BEMBER
    (13406)
    Lavery, Heiman and Hennessy, Js.

      Argued May 30
    decision released September 19, 1995

      Linda S. Denholtz, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

This is an appeal by the defendant from a judgment of conviction, after a jury trial, of the crime of escape in the first degree in violation of General Statutes §§ 53a-169 (a) (2) and 18-100 (e). The disposi-tive issue is whether a jury instruction that allowed the jury to find the defendant guilty of first degree escape either by leaving a community residence or by failing to report to his parole officer is legally insufficient as a matter of law. We answer in the affirmative on the basis of State v. Woods, 234 Conn. 301, 662 A.2d 732 (1995), and we reverse the judgment.

The bill of particulars alleged that the defendant committed the crime of escape in the first degree by failing to reside at his approved community residence at 299 West Avenue in Bridgeport and by failing to report to his parole officer as directed.

The facts pertinent to this appeal are as follows. In April, 1992, the defendant was transferred into the supervised home release program pursuant to § 18-100 (e). At the time of his transfer, the defendant met with his parole officer and signed an agreement containing twenty-one conditions of release. One of the conditions was to report as directed to his parole officer. From April 30,1992, until July 15,1992, the defendant reported as instructed. On July 15, 1992, the defendant called to inform his parole officer that he was ill. The defendant reported the following week as instructed, but then missed two subsequent appointments. After reporting on August 12, 1992, the defendant did not report for two subsequent appointments.

The parole officer made several attempts to ascertain the defendant’s whereabouts. He testified that he made two home visits to the defendant’s residence, a two-story rooming house, but was unable to locate the defendant. He also testified that he mailed the defendant two letters at the defendant’s address to advise him of the necessity to report. Because the letters, which had return addresses, were not returned to the parole officer, he testified that he assumed that they had been delivered.

The parole officer testified that, on an October 9, 1992 home visit, Liz Jones, who claimed to be the landlord, told him that the defendant no longer resided at that address. In direct contradiction to this testimony, Angelo Framularo, the owner of the rooming house, stated that Jones was neither the landlord nor a resident of his rooming house and that the defendant was a continual resident from July, 1992, to April, 1993. Fra-mularo also testified that tenants had often experienced difficulties in receiving their mail and that he made an effort to ensure that the residents did receive it. Framularo testified that he was present on one occasion when the defendant received a letter from the parole department.

The dispositive issue on this appeal is whether the trial court’s instruction to the jury that it could find the defendant guilty of escape in the first degree solely on the basis of his repeated failures to report to his parole officer was legally improper.

The trial court instructed the jury as follows: “Our Supreme Court has construed escape as used in General Statutes § 53a-169 to mean absconding from supervision. This definition would include leaving the community residence or repeated failures to report as scheduled. . . . The state has charged the defendant with the crime of escape, as I have defined it for you. Yet keep in mind that the state has alleged that the defendant committed the crime of escape in one of two ways—-namely by leaving a community residence or by failing to report to his parole officer.” The defendant took an exception to this charge on the issue of whether nonreporting to a parole officer would be considered escape.

“To determine whether an error in the charge to the jury exists, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict.” (Internal quotation marks omitted.) Id., 307. “A failure to provide adequate instructions on the elements of a crime, because of its potential for violation of the defendant’s due process rights . . . invokes the reasonably possible standard of review. In this case, because the alleged error relates to the elements of the crime charged, reversal of the defendant’s conviction and a new trial are mandated if, in the context of the charge as a whole, it is reasonably possible that the jury was misled. . . . Under the facts and circumstances of this case, we conclude that a reasonable possibility exists that the jury was misled as to the conduct that constitutes an escape under § 53a-169 (a) (2).” (Citations omitted; internal quotation marks omitted.) Id., 308.

“The jury was charged that it could find the defendant guilty if it found only that he had repeatedly failed to report. Such an instruction improperly equates failure to report with an escape. While failure to report may be evidence that the defendant has left his designated place of confinement, it is not enough, standing alone, to prove an unauthorized physical departure from the designated place of confinement. Such a departure is necessary for there to be an ‘escape’ within the meaning of § 53a-169 (a) (2).” Id., 311. Evidence that the parole officer sent letters and visited the designated residence might well support a finding of physical departure. “Although we recognize that such evidence existed in this case, the reasonable possibility that the jury was misled to convict the defendant solely because of his failure to report requires a reversal of his conviction.” Id., 312.

“Viewing the charge as a whole, we are persuaded that it is reasonably possible that the jury was misled to believe that it could find the defendant guilty of escape in the first degree solely on the basis of his failure to report to his supervising officer as scheduled. We conclude, therefore, that the court’s charge to the jury did not fulfill its mandate to be accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.” (Internal quotation marks omitted.) Id.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-169 provides in pertinent part: “(a) A person is guilty of escape in the first degree (1) if he escapes from a correctional institution or (2) if he escapes from any public or private, nonprofit halfway house, group home or mental health facility or community residence to which he was transferred pursuant to subsection (e) of section 18-100 or from his abode to which he was released pursuant to subsection (f) of section 18-100 and he is in the custody of the commissioner of correction or is required to be returned to the custody of said commissioner upon his release from such facility . . .

       General Statutes § 18-100 (e) provides: “If the commissioner of correction deems that the purposes of this section may thus be more effectively carried out, he may transfer any person from one correctional institution to another or to any public or private nonprofit halfway house, group home or mental health facility with the concurrence of the warden, superintendent or person in charge of the facility to which said person is being transferred. Any inmate so transferred shall remain under the jurisdiction of said commissioner.”

       On May 27, 1992, the parole officer informed the defendant that his parole status was being reduced from intensive to maximum, requiring the defendant to report only once a week.

       We set forth the testimony to show that it was a matter of credibility whether the defendant was living at the community residence.


author: SPEAR, J.

text:
    CHANDRA K. MCDUFFEE v. SCOTT MCDUFFEE
    (13799)
    (13800)
    O’Connell, Herman and Spear, Js.

      Argued June 6
    decision released September 19, 1995

      Sheila S. Horvitz, for the appellant (plaintiff).

      Jonathan W. A. Ruhe, for the appellants (intervenor Leo Santucci et al.).

      Mark R. Brouillard, for the appellee (defendant).
   SPEAR, J.

This is the consolidated appeal of the plaintiff mother and the intervening maternal grandparents. The plaintiff appeals from the trial court’s postjudgment order granting temporary custody of her minor child to the defendant, the child’s father. The plaintiff claims that the trial court’s granting of temporary custody to the defendant violated her right to due process because the trial court refused to continue the case until her criminal trial had concluded. The intervening maternal grandparents appeal from the trial court’s revocation of their visitation rights. They claim that the trial court improperly (1) suspended their visitation rights in an ex parte hearing, and (2) failed to recuse itself after engaging in ex parte communications.

The factual and procedural history of this case is lengthy and complex. The essential relevant facts, however, are as follows. The marriage of the plaintiff and the defendant was dissolved on April 30, 1990, with custody of the minor child awarded to the plaintiff subject to reasonable, supervised visitation by the defendant. On July 18,1993, the plaintiff was arrested in New Hampshire on felony charges including attempted murder. She was incarcerated on some of the days that the subject custody motion was heard. Because of the plaintiffs incarceration, the maternal grandparents intervened in the postjudgment dissolution proceedings, and they and the defendant filed motions for temporary custody of the child. Hearings on the defendant’s motion took place on divers days between February 3, 1994, and May 25, 1994.

The plaintiff filed a motion, dated January 27, 1994, requesting a continuance of the custody hearing that was scheduled to be heard February 3,1994. She sought a continuance because her criminal case was scheduled to commence on February 7, 1994. The plaintiff made no allegation that she was incarcerated at the time. The trial court denied this request. On May 25, 1994, the plaintiffs attorney again requested a continuance because the conclusion of the plaintiffs criminal trial was imminent, and, if acquitted, she would be available to testify at the custody hearing. The court denied the motion and issued its decision on June 2,1994, awarding temporary custody to the defendant. The plaintiff was acquitted of the criminal charges on May 27, 1994, and this appeal ensued.

On April 7, 1994, the trial court heard an ex parte motion by the defendant to suspend the visitation rights of the maternal grandparents. The motion alleged that the maternal grandparents had violated the conditions of the court’s visitation order. After hearing the motion in open court, the trial court suspended the visitation rights of the maternal grandparents and ordered the defendant’s counsel to immediately fax notice of its order to other counsel of record.

On April 27, 1994, the maternal grandparents filed a motion to vacate the ex parte order suspending their visitation rights, and on May 3,1994, they filed a motion to recuse the trial court judge who entered the ex parte order from hearing any “further matters regarding this case.” The trial court granted the motion to vacate the ex parte order and denied the motion to recuse. The trial court thereafter completed the temporary custody hearing and awarded temporary custody to the defendant. We affirm the judgment of the trial court and dismiss the appeal of the intervening maternal grandparents because it is moot.

I

We turn first to the plaintiffs appeal. The sole issue in the appeal is whether the trial court improperly denied her motion for a continuance. She argues that the denial of her continuance request violated her due process rights pursuant to the fourteenth amendment to the constitution of the United States.

We agree with the plaintiff that a natural parent has a protected liberty interest in a relationship with her child and, therefore, has a constitutional right to be present and to be heard at hearings affecting that relationship. See Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981); In re Jonathan P., 23 Conn. App. 207, 579 A.2d 587 (1990). We disagree, however, with the plaintiffs assertion that these principles were violated in this case. The cases on which the plaintiff principally relies are inapposite because they all involve state sanctioned action against the parent that does not appear, which is not present in this case.

The plaintiffs claim that her due process rights were violated is without merit. She confuses her own inaction in failing to arrange to be present or to provide testimony at the hearing with an affirmative action by the trial court denying her the right to be present. This is a private custody dispute, and the court did nothing to prevent the plaintiff from appearing. The record is devoid of any indication that the plaintiff availed herself of any of the procedures that would have allowed her to provide evidence or to be present. We conclude, therefore, that the trial court did not violate the plaintiffs due process rights.

We turn next to the question of whether the court’s decision to deny the continuance request was an abuse of discretion. It is well established that “[a] trial court has broad discretion in granting or denying motions for continuances and ‘[e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.’ Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1990).” Gaudio v. Gaudio, 23 Conn. App. 287, 312, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).

Here, although the plaintiff asserts that she was released from custody on May 27, 1994, two days after the court denied her continuance request, the trial court had no way of knowing what her release date would be when it denied the continuance motion. As our Supreme Court noted in In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 440, 446 A.2d 808 (1982), the trial court did not abuse its discretion because “the date of the respondent’s release was a matter of speculation. Whatever the virtues of hindsight, the trial court cannot be charged with failing to anticipate accurately the date of the respondent’s actual release.” We, therefore, conclude that the trial court did not abuse its discretion in light of all of the circumstances before it at the time of the continuance requests.

II

A

In their first issue on appeal, the intervening maternal grandparents claim that the trial court engaged in improper ex parte communication by hearing the defendant’s motion to suspend their visitation rights without notice to any of the other parties. They also assert that the trial court improperly failed to schedule a timely hearing at which all the parties could be present to challenge the motion to suspend the visitation rights. In their brief, the grandparents claim that “the court’s order regarding visitation . . . should be reversed and remanded for [an] appropriate hearing.”

Before reaching the merits of this claim, we consider, sua sponte, whether the issue is moot. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) McCallum v. Inland Wetlands Commission, 196 Conn. 218, 225, 492 A.2d 508 (1985). The grandparents’ claim that the ex parte order should be reversed is moot because prior to the appeal the trial court vacated its order that suspended their visitation rights. No actual controversy exists and no practical relief can be afforded to the maternal grandparents. Accordingly, the appeal as to this issue is dismissed as moot.

B

The second issue in the maternal grandparents’ appeal is: “Did the court err in refusing to recuse itself for having engaged in improper ex parte communication.” As to this issue, the grandparents claimed that “[t]he court, Potter, J., should be ordered to recuse itself from further hearing on this matter or any future issue involving this case.” The grandparents do not identify any further hearing that may take place regarding the suspension of their visitation rights, and our review of the appellate record discloses none. Whether Judge Potter will preside over other proceedings in this case is entirely speculative. Because we are left to speculate whether this relief may be necessary in the future, the appeal as to this issue is dismissed as moot. See id.

The judgment is affirmed; the appeal of the interve-nors is dismissed as moot.

In this opinion the other judges concurred.

       The trial court’s memorandum of decision does not specifically refer to either temporary custody motion. The court, however, granted temporary custody to the defendant without any reference to the intervening maternal grandparents’ motion.

       We note that the New Hampshire state’s attorney requested that the plaintiffs ball be revoked by motion dated March 31, 1994.

       The fourteenth amendment to the constitution of the United States provides in pertinent part: “No State shall . . . deprive any person of . . . liberty . . . without due process of law . . . .”

       The plaintiff cites the following cases in support of the proposition that her due process rights were violated. Barnes v. Fucci, 563 So. 2d 175 (Fla. 1990) (trial court’s denial of incarcerated mother’s writ of habeas corpus ad testificandum violated mother’s due process right to be present and have opportunity to be heard); In re Render, 145 Mich. App. 344, 377 N.W.2d 421 (1985) (state’s termination of parental rights of incarcerated mother without malting affirmative effort to secure her presence at hearing violated her due process rights); Burts v. Burts, 227 Va. 618, 316 S.E.2d 745 (1984) (court’s refusal to allow mother into chambers to be present and participate in hearing regarding support issues was direct act that denied mother her due process rights).

       The plaintiff could have arranged to have given a deposition, to testify via telephone or to seek a writ of habeas corpus ad testificandum.


author: SPEAR, J. O’CONNELL, J.,

text:
    STATE OF CONNECTICUT v. MATTHEW MCNALLY IV
    (13226)
    O’Connell, Spear and Hennessy, Js.

      (One judge dissenting)

    Argued May 2
    decision released September 19, 1995

      Burton M. Weinstein, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, were Catherine Brannelly Austin, assistant state’s attorney, and, on the brief, Walter D. Flanagan, state’s attorney, and for the appellee (state).
   SPEAR, J.

The defendant appeals from the judgment of conviction of assault in the third degree in violation of General Statutes § 53a-61 (a) (l). On appeal, the defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal because the state failed to produce sufficient evidence to establish beyond a reasonable doubt that the defendant committed the assault, (2) excluded expert opinion testimony as to the intoxication of certain witnesses, and (3) excluded evidence concerning the victim’s civil action against the defendant’s father. We affirm the judgment of the trial court.

Although the evidence was hotly disputed, the jury reasonably could have found the following facts. On January 23, 1992, the victim, Michael Draxdorf, went to a bar in Danbury with two friends. They remained at this bar for approximately four hours, during which time they consumed between three and four pitchers of beer. They left the bar around midnight and went to McNally’s Pub, where they were denied admission because they refused to pay the cover charge. The victim, however, was allowed to enter the premises to use the men’s room. While in the men’s room, the victim lost his balance and accidentally broke a window. The victim asked one of the doormen to summon the manager so that he could explain what had happened. The doorman went to the bar and spoke with the defendant, Matthew McNally IV. After speaking with the doorman, the defendant went into the men’s room. He then approached the victim, yelling, “You broke my window,” and punched the victim. The victim and his two companions, James Manaforte and Frank Neves, were pushed out the door and attacked by patrons of McNally’s Pub. The jury convicted the defendant of assault in the third degree, and this appeal ensued.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal. In support of this claim, the defendant argues that the state failed to produce sufficient evidence to establish beyond a reasonable doubt that it was the defendant who assaulted the victim. We disagree.

We review a sufficiency of the evidence claim by applying a well established two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). It is not our function in this review to retry the case or pass on the credibility of witnesses. State v. Johnson, 26 Conn. App. 433, 436, 602 A. 2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992). Furthermore, it is axiomatic that in the course of this review “[w]e do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Citations omitted; internal quotation marks omitted.) State v. White, 229 Conn. 125, 142-43, 640 A.2d 572 (1994).

Manaforte, a companion of the victim, testified that he saw the defendant punch the victim and made an in-court identification of the defendant as the assailant. The victim and Neves, also a companion of the victim, both described the assailant by age, build and hair color. Their testimony enabled the jurors to compare the descriptions of the assailant to the defendant seated before them. The jury was entitled to reject the defendant’s argument that Manaforte was too intoxicated to make a reliable identification. Furthermore, it was within the province of the jury to determine that Mana-forte, Neves and the victim were more credible than the defendant and his father, who had testified that the victim was the aggressor and that the defendant did not punch the victim. As “we must defer to the jury’s assessment of the credibility of the witnesses”; id., 143; we conclude that there was sufficient evidence from which the jury reasonably could have determined that the defendant was the person who assaulted the victim. Therefore, the defendant’s sufficiency of the evidence claim must fail.

II

The defendant next argues that the trial court improperly excluded expert opinion testimony that the victim and his companions were intoxicated at the time of the incident. We are not persuaded by the defendant’s arguments.

A

The defendant challenges the trial court’s ruling that excluded the following question asked of Sergeant Daniel Mulvey of the Danbury police department by defense counsel: “[Wjere you able to observe . . . whether or not based on your experience and training as a police officer, [Manaforte] appeared to you to be intoxicated or impaired when you interviewed him at the hospital that evening?” The state objected to the question as leading, and the objection was sustained by the court.

In his brief, the defendant argues that the question was not leading and, therefore, should have been allowed. “A question is leading if it suggests an answer in accord with the examiner’s view of the matter rather than calling for an expression of the witness’s observations . . . . C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.12.1, p. 159.” (Internal quotation marks omitted.) State v. Russell, 29 Conn. App. 59, 67, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992).

In reviewing whether a trial court has properly determined that a question is leading, our Supreme Court has held that “[tjhe trial court’s rulings on leading questions must stand unless prejudice has resulted from their admission.” Id., 67-68. The defendant was not prejudiced by the court’s ruling that the question was leading because he subsequently was able to elicit testimony from Mulvey regarding Manaforte’s intoxication. Specifically, Mulvey testified that Manaforte’s speech was clear but his eyes were bloodshot. He further testified that consuming three two quart pitchers of beer would impair one’s memory. Therefore, even though the defendant was not allowed to ask Mulvey if he believed that Manaforte was intoxicated, he was allowed to ask other questions regarding Manaforte’s intoxication. Consequently no prejudice resulted from the trial court’s decision to sustain the objection to the question as leading.

B

The defendant asserts that he, as a police officer, should have been allowed to give his expert opinion regarding the intoxication of the victim and his companions at the time of the incident. We disagree.

In reviewing this claim, we adhere to the well established standard that “[t]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed.” State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985).

In this instance, the trial court properly excluded the defendant’s expert opinion regarding intoxication because expert testimony is not appropriate when the jury is capable of determining the issue based on its own knowledge and experience. State v. Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986). The defendant correctly points out that a police officer’s expert opinion regarding intoxication was ruled admissible evidence in State v. Lamme, 19 Conn. App. 594, 563 A.2d 1372 (1989), aff'd on other grounds, 216 Conn. 172, 579 A.2d 484 (1990). Lamme is distinguishable from this case because in Lamme the officer’s opinion was based on field sobriety tests and the officer’s interpretation of those tests. In this case, however, the witness did not conduct field sobriety tests, but rather relied solely on his observation of the victim and his companions to formulate his opinion.

The expert opinion was properly excluded on the ground that a determination of a person’s intoxication based solely on observation and not on an interpretation of sobriety tests is within the general knowledge of the jury. The defendant presented ample evidence of the victim’s and his companions’ consumption of alcohol, as well as their conduct and appearance. On the basis of this evidence, the jury was able to determine their level of intoxication. The defendant’s expert opinion was “a superfluous attempt to put the gloss of expertise, like a bit of frosting, upon inferences which lay persons were equally capable of drawing from the evidence.” (Internal quotation marks omitted.) State v. Kemp, supra, 199 Conn. 478-79.

Ill

Lastly, the defendant claims that the trial court improperly excluded testimony from his father concerning the victim’s civil action in which the victim named the father as the assailant. The state claims that the testimony was properly excluded because it was hearsay and cumulative, and because any probative value was outweighed by the confusion it would cause the jury.

The following facts are necessary for the disposition of this issue. On cross-examination, the victim acknowledged that he had initiated a civil action against McNally’s Pub in which he named the defendant’s father as the assailant. The victim was also cross-examined regarding his testimony at a deposition that the father was the assailant. During the direct examination of the father, the defendant’s counsel asked: “And that afternoon [at the deposition] . . . did [the victim] identify you as the person who hit him in the nose?” The father answered: “Several times.” The court sustained the state’s objection on hearsay grounds and ordered the response stricken. The defendant’s counsel then asked the father: “Are you a defendant in a civil suit brought by [the victim] claiming that you hit him in the nose?” The father answered: “Yes, I am.” The court again sustained the state’s objection and stated that it would not allow the defendant’s counsel to question the father regarding the victim’s identification of the father as the assailant.

This proffered evidence was merely cumulative and its exclusion, therefore, was harmless. The victim personally testified and admitted that he had identified the defendant’s father as his assailant when he testified at the deposition and that he had sued the defendant’s father alleging that the father had assaulted him. This court has held that “the defendant has the burden of proving the harmfulness of any alleged erroneous exclusion of evidence, when, as here, it does not involve a constitutional issue. . . . Although the evidence was relevant to [the defense], it was cumulative. . . . Even if the evidence had been admissible, its exclusion, therefore, could not have been harmful.” (Citations omitted.) State v. Pitt, 28 Conn. App. 825, 833, 612 A.2d 60 (1992). The testimony of the defendant’s father would simply have corroborated the victim’s own admission, making such testimony not only cumulative but of little or no value to the jury.

The judgment is affirmed.

In this opinion HENNESSY, J., concurred.

O’CONNELL, J.,

dissenting. I disagree with the portion of the majority opinion relating to opinion evidence concerning the intoxication of the victim and his two companions. I believe the testimony at issue should have been treated as lay opinion testimony, not as expert testimony.

The common law has long recognized intoxication as an exception to the general rule that witnesses may testify only to facts that they have observed and not to their opinions. Sydleman v. Beckwith, 43 Conn. 9, 12, (1875). It is elementary evidentiary law that any lay witness may testify that a person is intoxicated. D’Amato v. Johnston, 140 Conn. 54, 58, 97 A.2d 893 (1953); State v. Jones, 124 Conn. 664, 668-69, 2 A.2d 374 (1938); State v. Katz, 122 Conn. 439, 442, 189 A. 606 (1937). “The condition of intoxication and its common accompaniments are a matter of general knowledge. The statement that a person is intoxicated is not so much the expression of an opinion as it is the statement of a conclusion drawn from observation.” 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 117d (3).

The majority confuses intoxication with the condition of being under the influence of liquor. “To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985). Despite the apparently clear language of Sanders, a later case from this court leaves it unclear as to whether the legislature intended to create a level of inebriation less than intoxication when it used the expression “under the influence of intoxicating liquor” in General Statutes § 14-227a. State v. McKenna, 11 Conn. App. 122, 129-32, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 931 (1987). Notwithstanding this uncertainty, the phrase “under the influence of intoxicating liquor” is a statutory term of art of concern to the law only in so far as it relates to the operation of a motor vehicle.

The defendant relies on State v. Lamme, 19 Conn. App. 594, 563 A.2d 1372 (1989), aff'd on other grounds, 216 Conn. 172, 579 A.2d 484 (1990), but the majority distinguishes the two cases because in Lamme, the police officer qualified as an expert when he testified as to the defendant’s inebriation based on field sobriety tests administered and interpreted by the officer, and there were no such tests conducted in this case. There was, however, a second police officer involved in Lamme, and that officer’s testimony as to the defendant’s inebriation was admitted as lay opinion because it was based, not on the officer’s expertise, but simply on what he had observed. Id., 605. The example of the second officer’s testimony is closer to the situation here.

The point I am making is that in the present case no motor vehicle was involved; the defendant sought to give his opinion only as to whether the victim and his companions, who were the state’s three key witnesses, were intoxicated, not whether they were under the influence of liquor. As such, his testimony was admissible as lay opinion. Whether he could also have qualified as an expert is irrelevant, as are case authorities concerning motor vehicle operation.

The majority properly states the rule that expert evidence is not appropriate when the jury is capable of determining the issue based on its own knowledge and experience. That rule, however, does not apply to exclude lay opinion evidence of intoxication. Such evidence is admissible under the principle that all relevant evidence is admissible unless specifically excluded by some rule of law. State v. Bryant, 202 Conn. 676, 688, 523 A.2d 451 (1987). No rule excludes lay opinion of intoxication.

The exclusion of this evidence was prejudicial to the defendant. The identification of the defendant was critical here. The events occurred suddenly and lasted only a few seconds. Whether the state’s key witnesses were intoxicated to the extent that their powers of observation and perception might have been dulled or distorted was vital to the defense in this case.

For these reasons, I respectfully dissent from the majority opinion. I would reverse the conviction and grant a new trial.

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       Mulvey investigated the victim’s complaint and interviewed the victim and his companions.

       The defendant was a Danbury police officer and the son of the owner of McNally’s Pub, where the assault occurred.