author: DUPONT, C. J.

text:
    LINDA KENNEDY v. QVC NETWORK, INC., ET AL.
    (15913)
    Dupont, C. J., and O’Connell, Foti, Lavery, Landau, Heiman, Schaller, Spear and Hennessy, Js.
    Argued September 18
    officially released December 24, 1996

      Donald, E. Weisman, pro se, the appellant.

      William B. Collins, for the appellee (plaintiff).
   DUPONT, C. J.

In this appeal, a nonparty aggrieved by an order of the trial court seeks reversal of that order. The question to be determined is whether a non-party must pursue redress by way of a writ of error rather than by direct appeal. This court ordered the parties and the aggrieved nonparty to attend our motion calendar hearing to show cause “why the appeal should not be dismissed because review by way of an appeal is not available to a nonparty,” citing Bergeron v. Mackler, 225 Conn. 391, 391 n.1, 623 A.2d 489 (1993).

The plaintiff in this case retained the appellant, Donald E. Weisman, as her attorney, to represent her in a personal injury action. She subsequently discharged him and hired another attorney after Weisman had expended time and money on her behalf. The plaintiff then brought an action against the defendants and, in that action, filed a motion “for release of file” directed to Weisman. After a hearing, the trial court ordered Weisman to surrender the plaintiffs file within twenty-one days of receipt of a letter from the successor attorney “insuring that all proceeds from any judgment or settlement in this case in favor of the plaintiff, Linda Kennedy, would be escrowed until final resolution of the matter.” Weisman has appealed from that order.

It is well settled that if there is no statutory right of appeal, or if there is no right to a petition for review, an appellant must use a writ of error to obtain review of an adverse final judgment. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 48, 478 A.2d 601 (1984). We conclude, on the basis of Bergeron, that Weisman has no statutory right of appeal because, although he is aggrieved, he is a nonparty, and as such should have sought a writ of error.

In determining that Bergeron controls this case, we first conclude that other related cases in which direct appeals were taken, do not apply. In Lougee v. Grinnell, 216 Conn. 483, 582 A.2d 456 (1990), and In re Mongillo, 190 Conn. 686, 461 A.2d 1387 (1983), direct appeals, rather than writs of error, were brought. In both cases, the appellants were not parties to existing Connecticut trial court actions, and were the only parties to an independent trial court proceeding in which the court had issued an order adverse to them that finally concluded the Connecticut proceedings. In Lougee, the court denied a motion to quash a subpoena issued in connection with proceedings in Texas. In Mongillo, the court issued an order fining the appellant for being late for a court proceeding. The present case and Berg-eron are distinguishable from Lougee and Mongillo because the orders sought to be reviewed in Bergeron and in this case were not made in the context of a proceeding that was entirely independent from a pending Superior Court action. In the present case, as in Bergeron, the appellant is a nonparty in an action involving others in which an order was issued that directly affected the appellant.

We conclude that cases such as Hennessey v. Bristol Hospital, 225 Conn. 700, 626 A.2d 702 (1993), and In re Baby Girl B., 224 Conn. 263, 681 A.2d 1 (1992), are also not controlling. In such cases “would-be parties” were allowed to obtain review of a denial of motions to intervene in trial court actions by direct appeal rather than by writ of error. Such “would-be parties” implicitly agree that, if they are allowed to intervene, they will be bound by any judgment the trial court may eventually render. That fact distinguishes disappointed interve-nors from the aggrieved persons in Bergeron and in the present case.

In short, we find this case distinguishable from the independent proceedings that underlay both Lougee and Mongillo, and we find the intervenor cases irrelevant to this case. We discern no meaningful distinction between the appellant in the present case and the appellant in Bergeron, and we hold that where a nonparty is aggrieved by a ruling made in the context of an ongoing action, that person’s remedy is by writ of error rather than appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       Footnote 1 of Bergeron v. Mackler, supra, 225 Conn. 391 n.1, states that the plaintiffs in error (the aggrieved nonparties) correctly pursued a writ of error because, as nonparties, their claim could not be reviewed by way of appeal.

       Review by way of appeal is governed, in general, by General Statutes § 52-263 which provides in relevant part: “Upon the trial of all matters of fact in any cause or action in the superior court ... if either party is aggrieved by the decision of the court ... he may appeal . . . from the final judgment of the court . . .

       Petitions for review may be filed to obtain review of three types of orders: orders concerning bail; General Statutes § 54-63g; orders concerning disclosure of grand jury proceedings; General Statutes § 54-47g (a); and court closure orders. General Statutes § 51-164x.

       A final judgment is required for review, regardless of whether the procedural vehicle is an appeal or a writ of error. Bergeron v. Mackler, supra, 225 Conn. 391 n.1. In this case, the appellant does seek review of a final judgment because the order requiring him to surrender the file concludes his rights in this respect and further proceedings in the action cannot affect him.

       General Statutes § 52-272 provides that writs of error may be “brought ... to the Supreme Court.” If a writ of error is the proper way to obtain review, it is the Supreme Court that has jurisdiction.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUIS CARRASCO
    (15466)
    Landau, Heiman and Daly, Js.
    Argued September 17
    officially released October 8, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOHN R. PLUMMER
    (15467)
    Landau, Heiman and Daly, Js.
    Argued September 17
    officially released October 8, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOHN J. MARTINELLI, JR.
    (14855)
    Dupont, C. J., and O’Connell and Lavery, Js.
    Argued September 17
    officially released October 8, 1996
   Per Curiam.

The judgment is affirmed.


text:
    TAMMY JAMES v. COMMISSIONER OF MOTOR VEHICLES
    (15178)
    Dupont, C. J., and Lavery and Glass, Js.
    Argued September 17
    officially released October 8, 1996
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPH T. VALECHKO v. CONNECTICUT LIGHT AND POWER COMPANY ET AL.
    (15512)
    Foti, Lavery and Daly, Js.
    Argued September 24
    officially released October 15, 1996
   Per Curiam.

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


text:
    NINE-33 VILLAGE PLAZA ASSOCIATES, LTD. v. TOWN OF EAST HAVEN
    (15320)
    Schaller, Spear and Daly, Js.
    Argued September 18
    officially released October 15, 1996
   Per Curiam.

The judgment is affirmed.


text:
    CAROL O. PURTILL v. JAMES W. PURTILL
    (13843)
    Heiman, Schaller and Hennessy, Js.
    Argued September 24
    officially released October 15, 1996
   Per Curiam.

The judgment is affirmed.


text:
    PEDRO LUIS TOSADO v. R. DOUGLAS RAMSEY ET AL.
    (15447)
    Landau, Schaller and Healey, Js.
    Argued September 26
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. PATRICIA MACKAY-LANDIN
    (13489)
    Dupont, C. J., and Landau and Daly, Js.
    Argued September 27
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    UMLIC-2 FUNDING CORPORATION v. MARIA-LUISE ELSHAZLY ET AL.
    (15488)
    Landau, Heiman and Hennessy, Js.
    Submitted on briefs September 30
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    TOWN OF HAMDEN ET AL. v. CHARLES FLANAGAN ET AL.
    (15104)
    Landau, Heiman and Hennessy, Js.
    Submitted on briefs September 30
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DIME SAVINGS BANK OF WALLINGFORD v. NICHOLAS E. ARPAIA III ET AL.
    (15390)
    Landau, Heiman and Hennessy, Js.
    Submitted on briefs September 30
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    WOOD DESIGN, INC. v. ALBERT GAROFALO
    (14650)
    Landau, Hoiman and Hennessy, Js.
    Submitted on briefs September 30
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    CENTERBANK v. NEWO, INC., ET AL.
    (15494)
    Landau, Ileiman and Hennessy, Js.
    Submitted on briefs September 30
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    FOUNDERS BANK v. KOGUT ENTERPRISES, INC., ET AL.
    (15007)
    Landau, Heiman and Hennessy, Js.
    Submitted on briefs September 30
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    E. EDWARD HAHNE v. BARRY READE
    (15056)
    Dupont, C. J., and Foti and Lavery, Js.
    Submitted on briefs September 30
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    LEONARD UDOLF v. HENRY E. JACOBS
    (14418)
    Dupont, C. J., and Foti and Spear, Js.
    Submitted on briefs September 30
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    JOHN F. STUBBS v. SUZANN O. STUBBS
    (15253)
    Dupont, C. J., and Foti and Spear, Js.
    Submitted on briefs September 30
    officially released October 22, 1996
   Per Curiam.

The judgment is affirmed.


text:
    FGB REALTY ADVISORS, INC. v. JOSEPH E. OWEN ET AL.
    (15305)
    Landau, Schaller and Spear, Js.
    Argued October 1
    officially released October 29, 1996
   Per Curiam.

The judgment is affirmed.


text:
    LYN P. FINKELDEY v. ROBERT FINKELDEY, JR., ET AL.
    (15905)
    Foti, Lavery and Heiman, Js.
    Argued October 1
    officially released October 29, 1996
   Per Curiam.

The judgment is affirmed.


text:
    NEW HAVEN SAVINGS BANK v. ANTONIO SETARO ET AL.
    (15622)
    O’Connell, Lavery and Schaller, Js.
    Submitted on briefs September 30
    officially released October 29, 1996
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    GLASTONBURY BANK AND TRUST COMPANY v. ADY S. K. TONG ET AL.
    (15102)
    O’Connell, Lavery and Schaller, Js.
    Submitted on briefs September 30
    officially released October 29, 1996
   Per Curiam.

The judgment is affirmed.


text:
    NICHOLAS HANZLIK v. JAMES FRECCIA AUTO BODY WORKS, INC., ET AL.
    (15436)
    O’Connell, Lavery and Schaller, Js.
    Submitted on briefs September 30
    officially released October 29, 1996
   Per Curiam.

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


text:
    STATE OF CONNECTICUT v. DONALD A. PARENTEAU
    (14674)
    O’Connell, Lavery and Heiman, Js.
    Argued October 2
    officially released October 29, 1996
   Per Curiam.

The judgment is affirmed.


text:
    IN RE ELLENA D. ET AL.

    (15162)
    O’Connell, Lavery and Heiman, Js.
    Argued October 2
    officially released October 29, 1996

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    TOMASZ ZAWADSKI v. JAY ZALESKI ET AL.
    (15267)
    Dupont, C. J., and Foti and Schaller, Js.
    Submitted on briefs September 30
    officially released October 29, 1996
   Per Curiam.

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


text:
    LEVAUGHAN MURPHY v. CHARLES BURKE
    (15155)
    Lavery, Heiman and Healey, Js.
    Argued September 16
    officially released October 29, 1996
   Per Curiam.

The judgment is affirmed.


text:
    LEE SMITH v. AETNA LIFE AND CASUALTY COMPANY ET AL.
    (15276)
    Foti, Lavery and Spear, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

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


text:
    WILLIAM C. SMITH III v. PATRICIA ANN SMITH
    (15311)
    Foti, Lavery and Spear, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

The judgment is affirmed.


text:
    NANETTE PARDEW v. ROBIN DEXTRADEUR
    (15341)
    Foti, Lavery and Spear, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

The judgment is affirmed.


text:
    JOHN J. WEISS v. PAMELA J. WEISS
    (15259)
    Foti, Lavery and Spear, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STACEY FLOTO ET AL. v. ALBERT LEBRUN
    (15345)
    Foti, Lavery and Spear, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

The judgment is affirmed.


text:
    JEFFREY D. FISI ET AL. v. HOLLY B. CYR ET AL.
    (14913)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

The judgment is affirmed.


text:
    EDMUND L. PANTANI, TRUSTEE v. JOSEPH G. BEECHER
    (15706)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

The judgment is affirmed.


text:
    LISA MARIE YABLONSKI v. DANBURY HOSPITAL ET AL.
    (15085)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

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


text:
    MARQUESE HAYWARD-MOORE ET AL. v. MARK BROWN
    (15966)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

The judgment is affirmed.


text:
    WALTER MCVETY v. SIDETEX COMPANY, INC., ET AL.
    (15281)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

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


text:
    ROHAN RUDDOCK ET AL. v. DONNETTE BURROWES ET AL.
    (15619)
    O’Connell, Landau and Schaller, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

The judgment is affirmed.


text:
    ALICE BARONE ET AL. v. MARTIN O’CONNELL ET AL.
    (15575)
    O’Connell, Landau and Schaller, Js.
    Submitted on briefs October 28
    officially released November 12, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DEBRA SOFFER v. STUART SOFFER
    (15373)
    O’Connell, Landau and Schaller, Js.
    Submitted on briefs October 28
    officially released November 19, 1996
   Per Curiam.

The judgment is affirmed.


text:
    SHERMAN GRANOFF v. CHERYL GRANOFF
    (15551)
    O’Connell, Landau and Schaller, Js.
    Submitted on briefs October 28
    officially released November 19, 1996
   Per Curiam.

The judgment is affirmed.


text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION v. GARY COSTA ET AL.
    (16037)
    Landau, Heiman and Hennessy, Js.
    Argued October 28
    officially released November 19, 1996
   Per Curiam.

The judgment is affirmed.


text:
    MARY ANN SEPERACK ET AL. v. BRIDGEPORT HOSPITAL
    (15610)
    Dupont, C. J., and Landau and Schaller, Js.
    Submitted on briefs October 28
    officially released November 19, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DANIEL GEORGE VECE, JR. v. THERESA ROSE VECE
    (14761)
    Lavery, Spear and Glass, Js.
    Argued October 29
    officially released November 19, 1996
   Per Curiam.

The judgments are affirmed.


text:
    CARLA STERN v. LUZ E. VELILLA
    (14815)
    O’Connell, Heiman and Stoughton, Js.
    Argued October 30
    officially released November 19, 1996
   Per Curiam.

The judgment is affirmed.


text:
    ROBERT FROMER ET AL. v. DEPARTMENT OF ECONOMIC DEVELOPMENT ET AL.
    (15245)
    Foti, Lavery and Hennessy, Js.
    Argued October 29
    officially released November 19, 1996
   Per Curiam.

The judgment is affirmed.


text:
    BRIAN S. RAKICH-KELLY ET AL. v. BENTLEY MORTGAGE PREFERRED PARTNERS LIMITED PARTNERSHIP
    (15399)
    Dupont, C. J., and Lavery and Healey, Js.
    Argued October 31
    officially released November 19, 1996
   Per Curiam.

The judgment is affirmed.


text:
    ARTHUR LENZI, JR. v. THOMAS LODGE ET AL.
    (15263)
    Foti, Lavery and Schaller, Js.
    Submitted on briefs November 6
    officially released November 26, 1996
   Per Curiam.

The judgment is affirmed.


text:
    GREAT MEADOW ASSOCIATES LIMITED PARTNERSHIP v. TOWN OF ROCKY HILL
    (15479)
    Dupont, C. J., and Landau and Healey, Js.
    Argued November 6
    officially released November 26, 1996
   Per Curiam.

The judgment is affirmed.


text:
    ELMS COMMON ASSOCIATES LIMITED PARTNERSHIP v. TOWN OF ROCKY HILL
    (15480)
    Dupont, C. X, and Landau and Healey, Js.
    Argued November 6
    officially released November 26, 1996
   Per Curiam.

The judgment is affirmed.


text:
    PATRICK MCGOWAN v. WATERBURY FARRELL LIMITED CORPORATION ET AL.
    (15269)
    Landau, Spear and Healey, Js.
    Argued November 6
    officially released November 26, 1996
   Per Curiam.

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


text:
    REUBEN J. BERNIER v. JAMES W. SCOTT, JR., ET AL.
    (15445)
    O’Connell, Heiman and Daly, Js.
    Argued November 5
    officially released November 26, 1996
   Per Curiam.

The judgment is affirmed.


text:
    SUSAN HUNTER v. UNITED TECHNOLOGIES CORPORATION/PRATT AND WHITNEY AIRCRAFT DIVISION
    (15366)
    Foti, Lavery and Cretella, Js.
    Argued November 4
    officially released November 26, 1996
   Per Curiam.

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


text:
    DAVID GODIN v. HELEN GODIN
    (15596)
    Landau, Schaller and Spear, Js.
    Argued November 1
    officially released November 26, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DAVID GODIN v. HELEN GODIN
    (15118)
    Landau, Schaller and Spear, Js.
    Argued November 1
    officially released November 26, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DARIO NOLASCO ET AL. v. TOWN OF MADISON ET AL.
    (15446)
    Foti, Lavery and Cretella, Js.
    Argued November 4
    officially released November 26, 1996
   Per Curiam.

The judgment is affirmed.


text:
    CLIFFORD WREN ET AL. v. MACPHERSON INTERIORS, INC., ET AL.
    (15083)
    Foti, Schaller and Hennessy, Js.
    Argued October 31
    officially released November 26, 1996
   Per Curiam.

This case is controlled by Infante v. Porvath, 29 Conn. App. 465, 615 A.2d 1073 (1992).

The judgment is affirmed.


text:
    MCHUGH CONSTRUCTION, INC. v. HAMMERMILL BUSINESS CORPORATION, INC., ET AL.
    (14600)
    Foti, Schaller and Hennessy, Js.
    Argued October 31
    officially released November 26, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOHN BENJAMIN BURTON
    (15078)
    O’Connell, Lavery and Spear, Js.
    Argued November 12
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS G. KUCEJ v. LAURA H. DELGRANDE
    (15709)
    Dupont, C. J., and O’Connell and Heiman, Js.
    Submitted on briefs November 13
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MICHAEL RODRIGUEZ
    (14997)
    Dupont, C. J., and Landau and Spear, Js.
    Argued November 13
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    CHARLENE KAISER v. JOHANNES VAN DER GIESSEN
    (15136)
    Dupont, C. J., and Landau and Spear, Js.
    Argued November 13
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. SALVATORE ANGELICO
    (14672)
    Dupont, C. J., and Lavery and Healey, Js.
    Argued November 12
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    WESLEY DAYTON v. MANSOUR MOUSSAVIAN ET AL.
    (15555)
    Dupont, C. J., and Sehaller and Daly, Js.
    Argued November 12
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CLARENCE MILNER
    (15019)
    O’Connell, Sehaller and Hennessy, Js.
    Argued November 7
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS DRIVER v. RICHARD J. FELIX
    (14469)
    Dupont, C. J., and Schaller and Daly, Js.
    Argued November 12
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DONNA OPPEL v. CLARENCE OPPEL III
    (15084)
    Dupont, C. J., and O’Connell and Lavery, Js.
    Argued November 12
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JUAN ROMO
    (14677)
    Lavery, Schaller and Hennessy, Js.
    Argued November 14
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RICARDO KEARSE
    (15023)
    Lavery, Schaller and Hennessy, Js.
    Argued November 14
    officially released December 3, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. KEITH S. MORDASKY
    (15581)
    Dupont, G. J., and Foti and Heiman, Js.
    Argued December 2
    officially released December 24, 1996
   Per Curiam.

The judgment is affirmed.


text:
    BERKELEY FEDERAL BANK AND TRUST, FSB v. LAWRENCE H. GABEL ET AL.
    (14899)
    O’Connell, Heiman and Spear, Js.
    Argued December 3
    officially released December 24, 1996
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    STATE OF CONNECTICUT v. ALLEN TART
    (15660)
    O’Connell, Heiman and Spear, Js.
    Argued December 3
    officially released December 24, 1996
   Per Curiam.

The judgment is affirmed.


text:
    VINCENT SABATINI v. JOSEPH ANCONA ET AL.
    (14869)
    Lavery, Landau and Hennessy, Js.
    Argued December 3
    officially released December 24, 1996
   Per Curiam.

The judgment is affirmed.


text:
    VINCENT D’ANDREA v. INTERSTATE STEEL ERECTORS, INC., ET AL.
    (15158)
    Lavery, Landau and Hennessy, Js.
    Argued December 3
    officially released December 24, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. WILLIE L. SPANN
    (14057)
    Lavery, Landau and Hennessy, Js.
    Argued December 3
    officially released December 24, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CARLTON KRAFT
    (14930)
    O’Connell, Lavery and Spear, Js.
    Argued December 4
    officially released December 24, 1996
   Per Curiam.

The judgment is affirmed.


author: SCHALLER, J.

text:
    JUDITH STILES v. HARTFORD CASUALTY INSURANCE COMPANY
    (14987)
    Poli, Heiman and Schaller, Js.
    Submitted on briefs June 7
    officially released December 31, 1996

      William J. Sweeney, Jr., and David M. Fisher filed a brief for the appellant (plaintiff).

      Philip F. von Kuhn filed a brief for the appellee (defendant).
   SCHALLER, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. The plaintiff claims that the trial court improperly (1) granted the defendant’s motion to reargue its original motion for summary judgment and (2) determined that § 1 (f) of Public Acts 1993, No. 93-297 (P.A. 93-297), codified at General Statutes (Rev. to 1995) § 38a-336 (f), did not permit her to claim underinsured motorist benefits under her employer’s insurance policy with the defendant. The second issue, which is dispositive, was decided by our Supreme Court in Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, 238 Conn. 285, 679 A.2d 925 (1996), after oral argument in this case. In accordance with this decision, we reverse the judgment of the trial court.

The following allegations made by the plaintiff in her May 20, 1994 complaint are relevant to our resolution of this appeal. On October 16, 1992, the plaintiff was operating a motor vehicle owned by her employer, Willow Brook Shopper, Inc., when a vehicle operated by Donna Dumont collided with her car. The plaintiff suffered injuries and brought a claim for damages against Dumont. The plaintiff received compensation that exhausted the automobile liability coverage of Dumont’s insurance, but did not fully compensate the plaintiff for her injuries. The defendant, Hartford Casualty Insurance Company, refused to pay the plaintiff underinsured motorist benefits pursuant to her employer’s insurance policy.

On March 20, 1994, the defendant filed a motion for summary judgment arguing that General Statutes (Rev. to 1995) § 31-284 (a) precluded the plaintiffs claim for underinsured motorist benefits. The plaintiff objected on the ground that by enacting P.A. 93-297, § 1 (1), the legislature intended to allow persons injured in the course of their employment to seek underinsured motorist benefits under their employer’s insurance policies. On April 19,1995, the trial court denied the motion for summary judgment.

On June 8, 1995, the defendant filed a motion to reargue its motion for summary judgment. The defendant argued that “it appears that the trial court’s attention was not directed to the fact that P.A. 93-297 brought about a substantive change in the law that could not be applied retroactively. Moreover, P.A. 93-297 affirmatively provided that the amendment to the statute was to apply to acts or omissions occurring on or after January 1, 1994.” The plaintiff objected, arguing that pursuant to Practice Book § 204B, a motion to reargue must be filed within twenty days of the issuance of the notice of a decision. The plaintiff further asserted that the court had not improperly denied the motion for summary judgment.

On June 26,1995, the trial court reversed itself, vacating its original order and granting the defendant’s motion for summary judgment. The court determined that P.A. 93-297, § 1 (f), applied only to acts or omissions occurring on or after January 1, 1994.

The plaintiff claims that pursuant to P.A. 93-297, § 1 (f), she may recover underinsured motorist benefits under her employer’s insurance policy. She argues that the legislative history of the statute demonstrates that the act was intended to abrogate the harsh results of the workers’ compensation exclusivity provision.* ** Section 31-284 (a) provides in relevant part: “An employer shall not be hable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . .” In CNA Ins. Co. v. Colman, 222 Conn. 769, 773, 610 A.2d 1257 (1992), our Supreme Court held that under the Workers’ Compensation Act, an “employer is insulated from bearing any costs arising out of workplace injuries in excess of those provided by worker’s compensation.” (Emphasis in original.) An employee “who can receive workers’ compensation benefits is therefore barred from collecting under his employer’s uninsured motorist coverage.” Id., 774; see also Bouley v. Norwich, 222 Conn. 744, 610 A.2d 1245 (1992).

Public Act 93-297, § 1 (f), enacted after CNA Ins. Co. v. Colman, supra, 222 Conn. 769, provides: “Notwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured’s otherwise applicable uninsured and underinsured motorist coverage.” While P.A. 93-297, § 1 (f), clearly overrules CNA Ins. Co., the issue is whether the statutory amendment applies to the plaintiffs particular circumstances. P.A. 93-297, § 29, provides that “[§] 1 . . . shall be applicable to acts or omissions occurring on or after January 1, 1994.” Notwithstanding the specific language of § 29, however, our Supreme Court held in Reliance Ins. Co J that an examination of legislative history revealed that “P.A. 93-297 was intended to be clarifying legislation and, as such, must be accepted as a declaration of the legislature’s original intent pertaining to the interplay between the uninsured motorist provisions of General Statutes § 38a-336 and the workers’ compensation exclusivity provision of General Statutes § 31-284. . . . Consequently, we conclude that an employee is not barred from recovering uninsured motorist coverage benefits against his or her employer’s insurer in regard to a motor vehicle accident that occurred prior to the effective date of P.A. 93-297.” (Citation omitted.) Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, supra, 238 Conn. 291.

“As an intermediate appellate court, we must follow the precedent of our Supreme Court .... Burton v. Planning Commission, 13 Conn. App. 400, 409, 536 A.2d 995 (1988), aff'd, 209 Conn. 609, 553 A.2d 161 (1989).” (Internal quotation marks omitted.) State v. Zoravali, 34 Conn. App. 428, 440 n.10, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994).

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion for summary judgment, and for further proceedings.

In this opinion the other judges concurred.

       In view of our resolution of tire dispositive issue, we do not review the first issue.

       Because this case had already been placed on the assignment list, the defendant moved for permission to file its motion for summary judgment pursuant to Practice Book § 379, and the trial court granted permission.

       “ ‘The standard of review of a trial court decision granting a motion for summary judgment is well settled and is not challenged in this case. Pursuant to Practice Book § 384, summary judgment 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. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).’ . . . Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 588 n.10, 674 A.2d 1290 (1996).” (Citation omitted.) Cirillo v. Sardo, 41 Conn. App. 664, 667, 676 A.2d 1388, cert. denied, 239 Conn. 904, 652 A.2d 998 (1996).

       Representative Richard D. Tulisano stated: “Since this law doesn’t go into effect until . . . January, 1994 ... I think the courts might look at this as [a] restatement of legislative intent .... I just note that we have always understood that the workers’ comp, carriers had a lien on any proceeds and therefore, they were always covered and I think a Supreme Court decision was just out of the ordinary in this area.” H.R. Proc., Pt. 27, 1993 Sess., p. 9674.

       The plaintiffs eligibility for workers’ compensation benefits has not been contested in this action.

       See Prudential Property & Casualty Ins. Co. v. Bannon, 233 Conn. 243, 250 n.5, 658 A.2d 567 (1995).

       A motion for reconsideration or reargument raising the point that 8 29 of P.A. 93-297 was not addressed in the court’s opinion in Reliance Ins. Co. was denied.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. BENJAMIN CAMPFIELD
    (11386)
    Landau, Heiman and Daly, Js.
    Argued September 17
    officially released December 31, 1996

      Erskine D. McIntosh, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Donald Browne, state’s attorney, and Cornelius Kelly, assistant state’s attorney, for the appellee (state).
   DALY, J.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of attempted murder in violation of General Statutes (Rev. to 1995) §§ 53a-49 and 53a-54a (a) and two counts of attempted assault in the first degree in violation of General Statutes (Rev. to 1995) §§ 53a-49 and 53a-59 (a). The defendant claims that (1) certain prearrest and trial identification procedures violated his right to due process, (2) the warrantless search of his automobile violated his right to be free from unreasonable searches, (3) the admission into evidence of his refusal to submit to a gun powder residue test violated his rights to counsel, to due process and against self-incrimination, (4) the trial court improperly instructed the jury that one can simultaneously possess the intent to cause death and the intent to cause serious physical injury, (5) the judgments of conviction of attempted murder and attempted assault in the first degree violated the guarantee against double jeopardy, (6) the jury verdicts were not supported by sufficient evidence, and (7) the trial court improperly denied his request to instruct the jury regarding the definition of “planned” as it is used in § 53a-49. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. At approximately midnight on April 10, 1991, Trumbull police officer Kevin Hammel saw a dark colored BMW with Georgia license plates turn onto Main Street and proceed north. The automobile rapidly accelerated and Hammel, traveling behind it, tracked its speed with the radar in the police vehicle. Before Hammel could activate his overhead lights or siren, the driver of the BMW pulled over and stopped. As Hammel approached the BMW, he noted that it appeared to be brown or dark in color. Hammel asked the driver for his operator’s license, registration and insurance identification card. Because the driver did not have his license in his possession, Hammel wrote the driver’s date of birth on the insurance card and radioed police headquarters and ascertained that the driver had a valid Connecticut operator’s license. Hammel gave the driver an oral warning and released him.

Shortly after midnight, Ivan Mikolic was driving with a passenger, Tracey O’Connor, in his automobile on Stonehouse Drive in Trumbull. Mikolic and O’Connor noticed that an automobile with four round headlights was closely following them and occasionally flashing its high beams. Mikolic recognized the automobile as a BMW. Mikolic turned into a driveway to allow the BMW to pass. After passing Mikolic’s vehicle, the BMW made a U-turn toward Mikolic’s vehicle and stopped, while Mikolic pulled back out of the driveway to proceed in the direction he and O’Connor had been driving. Thinking that the driver of the BMW needed help, Mikolic drove to within a short distance of it and parked at an angle so that his headlights illuminated both the automobile and its driver. The defendant was the driver of the BMW, which was dark in color and appeared to be brown. After several seconds, the defendant pointed a gun and fired five shots at Mikolic and O’Connor. Bullets entered the hood, the left front tire, mud flap, fender and driver’s side door, and shattered the driver’s side window. Mikolic and O’Connor ducked and drove away, and the defendant drove away in the opposite direction. Mikolic and O’Connor abandoned Mikolic’s vehicle because of the flat left front tire. They ran to O’Connor’s house and called the police.

Hammel and other police officers subsequently arrived at O’Connor’s house and spoke with Mikolic and O’Connor. Hammel noted the similarities between Mikolic’s description of the driver and the automobile involved in the shooting and the driver and BMW he had stopped earlier that evening on Main Street in Trumbull. On the basis of those similar descriptions, the Trumbull police staked out the defendant’s house about a quarter mile from the shooting incident and notified the surrounding towns’ police departments about the incident so that they could assist in locating the defendant. A short time later, at approximately 2 a.m., the defendant and his automobile were found by the Bridgeport police at the intersection of Hollister and Stratford Avenues. Hammel went to the scene and identified the defendant as the driver he had stopped earlier. He then removed the insurance identification card from the glove compartment, saw the driver’s date of birth that he had written on the card at the earlier traffic stop and noticed that the car appeared to be blue.

Officer Susan Hamilton of the Trumbull police department drove Mikolic and O’Connor to Bridgeport to view the defendant. As they approached the location where the police were holding the defendant, Mikolic and O’Connor recognized the defendant’s car, although it now appeared to them to be blue. Hamilton then turned the police vehicle’s lights toward a group of police officers and others. Mikolic and O’Connor identified the defendant as the man who had shot at them earlier. The defendant later admitted that he owned a .38 caliber revolver, but claimed that hé had last seen it several days before at his residence. At trial, Mikolic and O’Con-nor again identified the defendant as the individual who had shot at them on the evening in question.

I

The defendant first asserts that the admission of the out-of-court and in-court identifications of him by Mikolic and O’Connor violated his due process rights under article first, §§ 8 and 9, of the Connecticut constitution. After a full evidentiary hearing, the trial court denied the defendant’s motion to suppress the out-of-court identification pursuant to the fifth and fourteenth amendments to the federal constitution. The defendant now claims that the out-of-court identification tainted the in-court identification and that the admission of both identifications violated the Connecticut constitution. Because these claims are raised for the first time on appeal, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

A party can prevail on a claim not adequately presented at trial only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. “Under Golding . . . this court is free to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. ...” (Citations omitted; internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 603, 669 A.2d 562 (1995). We, therefore, focus here on the third prong of Golding, i.e., whether the alleged constitutional violation clearly exists and, if so, whether it clearly deprived the defendant of a fair trial. We conclude that the defendant cannot prevail on this claim because a constitutional violation does not clearly exist.

In reviewing a trial court’s decision to admit evidence of identification, “[w]e will reverse the trial court’s ruling . . . only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the issue of the reliability of an identification involves the constitutional rights of an accused, [however] we are obliged to examine the record scrupulously to determine whether the facts found [by the trial court] are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Citations omitted; internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 155, 665 A.2d 63 (1995). We inquire “whether the identification procedure was unnecessarily suggestive . . . [and if so] . . . whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) Id., 155-56. “[Reliability is the linchpin in determining the admissibility of identification testimony . . . .” (Internal quotation marks omitted.) Id., 157, quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

To prevail on this claim, the defendant must establish that the identification was both unnecessarily suggestive and unreliable under the totality of the circumstances. State v. Figueroa, supra, 235 Conn. 155-56. Because our determination that the identifications were reliable would obviate the need to determine whether they were “unnecessarily suggestive”; see id.; we address the reliability issue first.

The trial court determined that the out-of-court identification was neither unnecessarily suggestive nor unreliable under the totality of the circumstances. In reviewing that determination, we consider the following factors: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. See State v. Mitchell, 204 Conn. 187, 202, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

As the trial court noted, the victims saw their assailant, who was visible in their automobile headlights, the victims testified that they looked at the face of their assailant to determine if they knew him or if he needed assistance, their description of their assailant to the police was consistent with the defendant’s appearance at the out-of-court identification, the victims displayed a high level of certainty that the defendant was their assailant, and the time between the shooting and the confrontation was only approximately two horns. We conclude that the out-of-court identification was reliable under the totality of the circumstances. We, therefore, need not consider whether the victims’ identification was unnecessarily suggestive. State v. Figueroa, supra, 235 Conn. 157. The defendant’s right to due process was not violated by the admission of the out-of-court identification. By extension, the defendant’s right to due process was not violated by the in-court identification because the in-court identification could not have been tainted by an out-of-court identification that was, itself, proper. We conclude that a violation of a constitutional right did not clearly exist. The defendant has failed to satisfy the third prong of Golding.

II

The defendant next claims that the warrantless search of his automobile violated article first, § 7, of the Connecticut constitution. Because he did not raise this issue in the trial court, the defendant again seeks review under State v. Golding, supra, 213 Conn. 233. The state maintains that this claim is not reviewable because the trial court made no factual findings that would satisfy the first prong of Golding.

We first consider whether the record is adequate for review. Under Golding, a conclusion of law can properly be made by an appellate court even if the trial court was never asked to make, and never made, such a determination, as long as the factual record is adequate to provide the basis for such a conclusion. State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994). In the present case, Hammel testified that when he arrived in Bridgeport on the evening in question, he observed the defendant in custody in the back seat of a Bridgeport police car. The defendant’s car was empty and bore the same license plates as the vehicle he had stopped in Trumbull earlier that evening. Hammel testified that because the color of the automobile now appeared different from the color it had appeared to be during the earlier stop, he reached into the glove compartment to ascertain whether the insurance card on which he had written the driver’s date of birth during the earlier stop was present. He determined that it was. On the basis of that testimony, we conclude that the trial court record in this case contains the factual basis for appellate consideration of the defendant’s claim.

We next consider whether the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. In State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), our Supreme Court held that where a defendant is restrained as a result of a lawful custodial arrest and has remained at the scene of the arrest, his vehicle may be searched incident to the arrest. Id., 424, citing New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). Badgett raised no state constitutional claim. In State v. Delossantos, 211 Conn. 258, 266-67, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989), we held, pursuant to article first, § 7, of the Connecticut constitution that when police officers make a lawful custodial arrest of an occupant of an automobile, and the arrestee is detained at the scene, the police may contemporaneously search the interior compartment of the automobile without a warrant. See also State v. Waller, 223 Conn. 283, 290, 612 A.2d 1189 (1992). For that purpose, the passenger compartment encompasses all the space reachable without exiting the vehicle. State v. Delossantos, supra, 267. Such a search is a valid search incident to an arrest without consideration of whether there is probable cause to believe that the motor vehicle contained contraband or evidence pertaining to a crime. Id. Hammers warrantless search of the glove compartment in the present case was, therefore, permissible.

Moreover, even if the search had been improper, it did not clearly deprive the defendant of a fair trial because there was ample other evidence that the defendant was the same driver of a dark colored BMW whom Hammel had stopped earlier in the evening. Hammel recognized the defendant as the driver of the BMW that he had stopped in Trumbull earlier, the automobile had the same Georgia license plates, relatively little time had passed since the earlier stop, and the earlier stop had occurred in close proximity to the location where the defendant was taken into custody. Thus, the action did not clearly deprive the defendant of a fair trial. See State v. Golding, supra, 213 Conn. 233. Because the defendant has failed to satisfy the third prong of Golding, he cannot prevail on this claim.

Ill

The defendant next asserts that the trial court improperly admitted into evidence his refusal to take the atomic absorption test (AAT). Specifically, the defendant claims that the admission of that evidence violated his constitutional rights (1) to counsel, in violation of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution; (2) to due process, in violation of article first, §§ 8 and 9, of the Connecticut constitution; and (3) against self-incrimination in violation of article first, § 8, of the Connecticut constitution. These claims were not raised at trial and are raised for the first time on appeal under State v. Golding, supra, 213 Conn. 233. We conclude that the defendant’s claims fail to satisfy the third prong of Golding.

A

The defendant argues, for the first time on appeal, that the admission into evidence of his refusal to submit to the AAT violated his right to counsel under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

He claims that he was twice advised of his Miranda rights prior to his arrival at the Trumbull police station, and that, upon his arrival there, he stated that he wanted to speak with an attorney. He further claims that he was subsequently asked to submit to an AAT and that he refused. The state argues that the record fails to show that any request was made of the defendant to take the AAT after a request for counsel was made, if such a request was ever made. It claims that his “right to silence” was respected and that there is no indication in the record that he ever invoked his right to counsel.

It is axiomatic that the questioning of a suspect must cease once a clear request for counsel has been made. State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988). In this case, however, Hammel testified that the defendant never invoked his right to speak to an attorney and that all questioning stopped when he refused to answer further questions. The credibility of a witness is a matter for the trial court. Habura v. Kochanowicz, 40 Conn. App. 590, 594, 672 A.2d 512 (1996). We conclude that the third prong of State v. Golding, supra, 213 Conn. 233, is not satisfied because no constitutional violation clearly existed.

B

The defendant next claims that his refusal to submit to the AAT should have been excluded because it violated his privilege against self-incrimination under article first, § 8, of the Connecticut constitution.

“ [Compulsion which makes a suspect or accused the source of real or physical evidence does not violate a person’s constitutional rights as it is not such as compels communications or testimony.” (Internal quotation marks omitted.) State v. Chesney, 166 Conn. 630, 640, 353 A.2d 783, cert. denied, 419 U. S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974). Thus, our Supreme Court has held that the taking of paraffin tests does not violate the fourth and fifth amendments because “[i]n the taking of paraffin tests . . . [t]here is no testimonial compulsion either directly, as in confession, or indirectly, as in polygraph tests. Consequently, applying paraffin casts to the accused’s hands [does] not violate the fourth and fifth amendments any more than fingerprinting.” Id., 640, citing State v. Chin Lung, 106 Conn. 701, 723, 139 A. 91 (1927). Similarly, the involuntary taking of an AAT involves no testimonial compulsion either directly, as in a confession, or indirectly, as in a polygraph test. See State v. Chesney, supra, 640.

We conclude that because the AAT does not involve communications or testimony, the request that a defendant submit to such a test does not constitute questioning and the refusal to submit to the AAT does not constitute the invocation of the right to remain silent. Thus, the admission of the defendant’s refusal to submit to the AAT did not violate article first, § 8, of the Connecticut constitution.

C

The defendant also claims that the admission of his refusal to submit to the AAT violated his right to due process because it was used as an indication of silence in the face of accusation. Again, because such a test does not involve testimony or communications, the refusal to submit to it does not constitute invocation of the right to remain silent, and admission of the evidence of such refusal does not constitute commentary on a defendant’s choice to remain silent. The claim does not rise to the level of a constitutional violation, and the third prong of Golding is therefore not satisfied.

Moreover, even if the defendant’s claims regarding the admission into evidence of the defendant’s refusal to submit to the AAT had been of constitutional magnitude, the admission of such testimony was harmless because the trial court failed to give the jury the charge requested by the state, that such evidence could be used to infer consciousness of guilt. The third prong of Golding is not satisfied, and the claim is, therefore, not entitled to further review.

IV

The defendant next claims that the trial court’s instruction improperly permitted the jury to render inconsistent guilty verdicts on the counts of attempted murder under §§ 53a-49 and 53a-54a and attempted assault in the first degree under §§ 53a-49 and 53a-59. The defendant relies on this court’s decision in State v. Williams, 39 Conn. App. 18, 663 A.2d 436 (1995), for the proposition that one cannot simultaneously possess the intent to cause death and the intent to cause serious physical injury. That decision, however, was recently reversed by our Supreme Court; State v. Williams, 237 Conn. 748, 679 A.2d 920 (1996); and is dispositive of this issue.

The Supreme Court determined that, although “§§ 53a-54a and 53a-59 (a) (1) require the same mental state, namely a specific intent . . . the particular intents required to violate these statutes are not the same. For each intent, a distinct conscious objective is sought. . . . We conclude that, under the appropriate circumstances, a defendant can simultaneously intend to cause the death of, and intend to cause serious physical injury to, the same victim.” (Citations omitted; internal quotation marks omitted.) Id., 754-57. The defendant attempted, at oral argument, to distinguish Williams from his own case by pointing out that in Williams, the defendant was convicted of assault in the first degree, whereas here, the defendant was convicted of attempted assault in the first degree. This is a distinction without consequence. The Supreme Court’s analysis in Williams is confined to the mental states that §§ 53a-54a and 53a-59 (a) (1) require. Pursuant to § 53a-49 (a), a person is guilty of an attempt to commit a crime if he or she acts with the same “kind of mental state required for the commission of the crime . . . .” (Emphasis added.) The intent required, therefore, to commit an assault in the first degree must be the same as the intent required to commit attempted assault in the first degree. Whether one has that intent in no way alters the intent to violate the assault statute. We conclude, therefore, that because the defendant could have possessed both intents simultaneously, the trial court’s instruction to that effect did not permit the juiy to return legally inconsistent verdicts.

V

The defendant next claims that the sentences for his convictions of attempted murder and attempted assault in the first degree violate the guarantee against double jeopardy in the fifth and fourteenth amendments to the constitution of the United States and article first, § 9, of the Connecticut constitution. With respect to these unpreserved claims, he again seeks review under Golding. Again focusing on the condition most relevant in the circumstances; see State v. Rose, 41 Conn. App. 701, 706-707, 679 A.2d 197, cert. denied, 239 Conn. 906, 682 A.2d 104 (1996); we conclude that the third prong of Golding is not satisfied because a constitutional violation does not clearly exist.

As an initial matter, we reject the defendant’s argument that article first, § 9, entitles him to greater protection against double jeopardy than does the federal constitution. This court, in State v. Adams, 38 Conn. App. 643, 654-56, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995), thoroughly examined this claim. We concluded that “ ‘[o]ver the last fifty years, [the Blockburger rule] has consistently been applied by Connecticut courts in analyzing double jeopardy claims arising from multiple convictions and punishments imposed in a single trial. . . . Connecticut’s citizens have no realistic expectation that they will have these double jeopardy claims scrutinized by a test that is more protective than the Blockburger test.’ ” (Citations omitted.) Id., 655-56, quoting State v. Laws, 37 Conn. App. 276, 294-95, 655 A.2d 1131 (1995); see also State v. Gilchrist, 24 Conn. App. 624, 629, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991) (declining to extend same evidence test, which concerns successive prosecutions, to single prosecution cases). We decline, therefore, to review independently the defendant’s claim under the state constitution.

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. . . . State v. Greco, [216 Conn. 282, 290-91, 579 A.2d 84 (1990)]. . . . Traditionally we have applied the Blockburger test to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial. State v. Lonergan, [213 Conn. 74, 79, 566 A.2d 677 (1989)].” (Internal quotation marks omitted.) State v. Nixon, 231 Conn. 545, 550-51, 545 A.2d 1264 (1995). If, as the defendant was charged, there was any element that the state was required to prove under one offense that was different from an element that the state was required to prove under the other offense, “ ‘the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’ ” Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), quoting Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975).

In order to prove the defendant guilty of attempted murder, the state was obligated to establish that he engaged in intentional conduct constituting a substantial step toward intentionally causing the death of another person. In order to prove the defendant guilty of assault in the first degree, the state was obligated to establish that he engaged in intentional conduct constituting a substantial step toward intentionally causing serious physical injury to another person. See State v. Fernandez, 27 Conn. App. 73, 96, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 133 (1992). As we explained in part IV of this opinion, our Supreme Court has determined that the particular intents required to commit these crimes are not the same. Thus, a conviction for attempted murder requires proof that the defendant possessed the intent to cause another’s death, while a conviction of attempted assault in the first degree requires proof that the defendant possessed the intent to cause serious physical injury. Each offense, therefore, requires proof of an element that the other does not. Consequently, the statutory violations charged are not the same for double jeopardy purposes, and there is no constitutional violation.

VI

The defendant further asserts that there was insufficient evidence to sustain his conviction of attempted murder and attempted assault in the first degree. The defendant, however, fails to specify which element or elements of which crime he contends were not supported by sufficient evidence. The defendant merely maintains that “the perpetrator never said anything to the victims, there was no history of any ill will, there was no evidence of any physical injury to the victims, none of the bullets entered the passenger compartment, and there was no evidence of any ‘planning’ within the meaning of § 53a-49 . . . .” A fact finder may infer criminal intent from the presence of some of those factors, but the absence of those factors in the context of this case is irrelevant, the result of good fortune or both. Nevertheless, because the factors cited by the defendant would pertain, in the appropriate case, to the issue of whether a defendant possessed the requisite intent to commit the crimes charged, we will review his claim on that basis.

In reviewing claims of evidentiary insufficiency, we first “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. . . .Ordinarily, intent can only be inferred by circumstantial evidence; it may be and úsually is inferred from the defendant’s conduct.” (Citation omitted; internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 541, 679 A.2d 902 (1996). “Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Internal quotation marks omitted.) State v. Williams, supra, 237 Conn. 757.

“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 . . . intentionally does . . . anything which, under the circumstances as he believes them to be, is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes (Rev. to 1995) § 53a-49 (a). Thus, the state was required to prove beyond a reasonable doubt that the defendant took a substantial step toward intentionally causing the deaths of O’Connor and Mikolic; General Statutes (Rev. to 1995) § 53a-54a; and that the defendant took a substantial step toward intentionally causing them a serious physical injury. General Statutes (Rev. to 1995) § 53a-59 (a) (1). As we have discussed in part IV, one can possess the specific intent to cause a victim’s death and the specific intent to cause a victim serious physical injury simultaneously. “It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted [, if any,] and the events leading up to and immediately following the incident.” 1 B. Holden & J. Daly, Connecticut Evidence (1996 Sup.) § 66, citing State v. Guess, 39 Conn. App. 224, 240, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995); moreover, an intent to cause death may be inferred from such circumstantial evidence. 1 B. Holden & J. Daly, Connecticut Evidence (1988) § 66, citing State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986).

Mikolic and O’Connor each testified that the defendant pointed the gun directly at them. Mikolic testified that the defendant fired five shots at them. Hammel testified that one bullet penetrated the driver’s side door, another was deflected by the hood near the windshield and a third entered the front fender near the driver’s door. He further testified that the bullets were fired from a high caliber handgun. We conclude, therefore, that the evidence presented at trial and the inferences that reasonably could be drawn from that evidence were sufficient to have allowed the jury to conclude beyond a reasonable doubt that the defendant possessed the requisite intent to commit the four charged crimes.

VII

Finally, the defendant argues that the trial court improperly failed to instruct the jury on an element of criminal attempt. Specifically, he claims that the trial court’s denial of his request to instruct the jury concerning the definition of “planned,” as that term is found in § 53a-49 (a) (2), violated his right to due process. In his request to charge, the defendant sought instructions defining “planned” as entailing a “method of design or act, procedure or arrangement for accomplishment of a particular act or objective.”

A jury charge must be considered from the standpoint of its effect on the jury in guiding it to a proper verdict. State v. Delgado, 13 Conn. App. 139, 145, 535 A.2d 371 (1987). “ ‘In a criminal proceeding, there is no duty to charge the jury in the identical language requested as long as the charge is accurate, adequate and its substance properly includes material portions of the defendant’s request.’ State v. Suarez, 23 Conn. App. 705, 710, 584 A.2d 1194 (1991).” State v. Pettway, 39 Conn. App. 63, 75-76, 664 A.2d 1125, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995). The trial court’s “responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.” (Internal quotation marks omitted.) State v. Delgado, supra, 145.

First, § 53a-49 (a) (2) requires an accused to have undertaken a substantial step toward committing the intended crime. This standard focuses on what act remains to be done to commit the intended crime and not what acts have been done. State v. Hanks, 39 Conn. App. 333, 341, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995). The defendant’s request to charge concerning planning, however, attempts to shift the focus to what acts have been done and, therefore, does not accurately reflect Connecticut law.

Second, the trial court’s charge, while not explicitly defining the term planned, fully explicated the elements of criminal attempt and provided guidance for a proper verdict under Connecticut law. On several occasions, the trial court instructed the jury that the state must prove that the defendant engaged in conduct that was a substantial step in a course of conduct that he planned to end in his commission of either of the intended crimes. It further instructed that preparation to commit a crime, on its own, is not necessarily sufficient, but that some preparation might be sufficient. In regards to planning, the court stated that “in order for the criminal course of conduct of the defendant to be planned, it is not necessary for the state to prove when he formed the plan or that he had it in mind for any particular period of time.” The trial court’s instructions, therefore, did not violate the defendant’s right to due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of two counts of reckless endangerment in Iho first degree under General Statutes (Rev. to 1995) § 53a-63.

       The at omie absorption test is designed to detect the presence of gunpowder residue.

       Verdicts are legally inconsistent if “the existence of the essential elements for one offense negates, the existence of the essential elements for another offense of which the defendant also stands convicted.” State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993); State v. King, 216 Conn. 585, 594-95, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991).

       “Although the Connecticut, constitution does not include a double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution encompasses protection against double jeopardy.” State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995), citing Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

       “The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. . . (Citations omitted; internal quotation marks omitted.) State v. Nixon, supra, 231 Conn. 555. The defendant offers no evidence of contrary legislative intent.

       The defendant’s contention that no one was injured by the gunshots is particularly irrelevant where, as here, one is convicted of an inchoate offense.

       General Statutes § 53a-49 (a) provides in pertinent part: “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 . . . (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 tire crime.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. TAVARES COSBY
    (14048)
    Foti, SchaUer and Hennessy, Js.
    Argued October 31
    officially released December 31, 1996

      John E. Doran, and David Griffin, certified legal interns, with whom was Richard Emanuel, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, were Donald, A. Browne, state’s attorney, and Gerard Eisenman, assistant state’s attorney, for the appellee (state).
   FOTI, 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 (Rev. to 1995) § 53a-134 (a) (l) and assault in the first degree in violation of General Statutes (Rev. to 1995) § 53a-59 (a) (l). On appeal, the defendant claims that (1) the evidence was insufficient to establish his guilt of the crimes charged, (2) the trial court improperly admitted evidence and (3) the trial court improperly instructed the jury on circumstantial evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On February 27,1993, at approximately 6:20 p.m., the victim, Harold Spain, owner of Harold’s Market in Bridgeport, was in his store when he heard someone say “stick up.” Two men wearing ski masks had entered the store. One man, carrying a rifle, wore a blue mask, a blue jacket and blue denim pants. The other man was wearing a brown mask and a brown jacket. The second man proceeded to take about $300 from the cash register. The victim was ordered to lie down on the floor, and for approximately twenty minutes the two robbers searched for more money. During the search, they closed the window blinds and locked the door. The victim was ordered to get up and lock the door. Instead, the victim ran out of the store and was shot in the left thigh.

The victim later identified the man who shot him as Tavares Cosby, the robber dressed in blue who had the rifle. Cosby, who lived in the area, had been a customer but, due to a disagreement, the victim had not allowed the defendant into the market for two or more months. Approximately two hours prior to the robbery, the victim had left the store to go to church. As he drove away, he heard someone across the street say, “I’m going to get ya.” There were fifteen to twenty men there and the victim did not see who had said it. He turned his car around and went back to the group and observed the defendant, dressed as he usually was in a blue jacket and blue denims, waving at him. The victim alleged that this was the man who later shot him. The victim had known the defendant for nine or ten years. For several years, the defendant had entered the store three or four times a day. The defendant had a “funny type figure” and “a sort of impediment with his speech.” The defendant’s posture was distinctive because he did not stand upright. The victim also recognized the defendant’s eyes through the ski mask. The victim, therefore, was able to make an in-court identification of the defendant.

I

The defendant claims that the evidence was insufficient to sustain his conviction. “ ‘When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).’ State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.” (Emphasis in original.) State v. Hamilton, 30 Conn. App. 68, 71-72, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994).

The jury has the opportunity to observe the conduct, demeanor and attitude of the witnesses and to gauge their credibility. State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). Jurors are not expected to lay aside matters of common knowledge or their own observations and experiences, but, rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. State v. Cintron, 39 Conn. App. 110, 119, 665 A.2d 95 (1995).

The defendant claims that the evidence was insufficient to convict him of the crimes charged because it did not establish his identity as one of the robbers or as the person who had shot the victim. He argues that no facial identification was made and that the remaining alternative means of identification were unreliable and, therefore, insufficient. He also argues that there should have been a lineup with the participants wearing masks to validate the victim’s “corporeal” identification, or a “voice-up” to validate the victim’s voice identification.

For purposes of admitting any out-of-court identification, the test to be applied is reasonable probability. State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). “Absent constitutional barriers, so long as the witness has identified the defendant with reasonable probability, whether the identification is the result of a photo display, a line-up, a show-up or otherwise, the evidence is admissible.” State v. Ledbetter, 185 Conn. 607, 612, 441 A.2d 595 (1981). The defendant has no constitutional right to a lineup, nor does the state have a constitutional duty to conduct one. State v. Tatum, 219 Conn. 721, 729, 595 A.2d 322 (1991).

The victim based his identification of the defendant on the defendant’s voice, posture and eyes, and on the victim’s familiarity with the defendant. Under all of the circumstances, the identification testimony was determined to be reliable and, therefore, admissible. See State v. Hamele, 188 Conn. 372, 378, 449 A.2d 1020 (1982). We, therefore, do not agree with the defendant that to find that the defendant was one of the robbers, the jury had to resort to speculation and conjecture and to draw unwarranted inferences from the facts presented.

The defendant also claims that even if the evidence was sufficient to establish his identity as one of the robbers, it was not sufficient to establish that he was the one who shot the victim. He argues that, even if the evidence demonstrated that he had a rifle in the store, that does not necessarily lead to the conclusion that he shot the victim because the other robber could also have had a gun. The defendant’s reliance on State v. Mandrell, 199 Conn. 146, 506 A.2d 100 (1986), is misplaced. The defendant was actually seen to be in possession of the firearm. The second robber was not observed with a firearm at any time during the robbery. In Mandrell, the defendant was never seen with the weapon, a bottle, in his possession, and the reasonable possibility that the second perpetrator struck the victim with the bottle was not excluded. In the present case, the jury could reasonably have inferred that it was the defendant, the only person seen to be in possession of a firearm, who fired at the victim. The jury is free to use common sense in considering the evidence introduced. State v. Crump, 43 Conn. App. 252, 257, 683 A.2d 402 (1996). There was sufficient evidence for the jury to find the necessary element of identity.

II

The defendant next claims that the trial court improperly admitted evidence in two specific instances relating to the critical, contested issue of identification.

The trial court has broad discretion in ruling on the admissibility and relevancy of evidence and will be overturned only upon the showing of a clear abuse of the court’s discretion. State v. Kiser, 43 Conn. App. 339, 361, 683 A.2d 1021 (1996).

“ ‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. State v. Blake, 69 Conn. 64, 76, 36 A. 1019 (1897). . . . Evidence is irrelevant or too remote if there is “such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.” State v. Kelly, 77 Conn. 266, 269, 58 A. 705 (1904). A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. State v. Briggs, [179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980)] .... Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985).’ . . . C. Tait & J. LaPlante, [Connecticut Evidence (2d Ed. 1988)] § 8.1.1, pp. 225-26.” (Emphasis in original.) State v. Prioleau, 235 Conn. 274, 305-306, 664 A.2d 743 (1995).

A

The defendant objected to the introduction into evidence of the photographic array on the basis of relevancy and because its prejudicial effect outweighed its probative value. In the absence of the jury, the trial court conducted a hearing on the defendant’s motion to suppress the array, allowing the state, through its offer of proof, to demonstrate relevancy. The trial court denied the motion but indicated that it would rule on its admissibility during the course of the trial. Following the completion of Sergeant Mary Ann Notarangelo’s testimony, and during the victim’s testimony, the array, which had been marked for identification purposes only, was allowed to be admitted as a full exhibit by the court. Notarangelo had compiled the photographic array.

The defendant argues that because the victim could identify the defendant as a person he had known for years, there was no reason to allow the photographic array to show that he had a particular person in mind, therefore making it irrelevant, especially because the victim never saw the face of the perpetrator. He argues that there was no legitimate need for this presentation of a “mug shot” and that the admission was harmful.

While it is true that the victim could not see facial features because both individuals wore masks, the purpose of the photographic identification was to establish that it was the defendant, the person known by the victim from the neighborhood and the person he believed to be the one in the mask, who shot him.

The defendant argues that the exhibit was part of a “rogue’s gallery” that “undoubtedly left the jury with the impression that the defendant had been arrested before and possibly convicted. The record is clear, however, that the trial court carefully ensured that the exhibit did not furnish an indication of the origin of the six photographs it contained, or an implication that any photograph depicted was from a prior arrest. A juror examining the exhibit would have no reasonable belief, based on its format, that any photograph was derived from a prior arrest. Further, the court carefully instructed the jury as to the purpose and reason for the exhibit as follows: “Now you recall that—before I go any further on with this charge on identification, you may recall that there was placed into evidence a photo array that was prepared by Sergeant Notarangelo and was shown to the victim, Mr. Spain, for the purpose of saying if he could identify from those pictures the person he was describing to the police as one of the two perpetrators, the one who had on the blue mask and he did, in fact, select a photo of the defendant, Mr. Cosby. I think that you should keep that in perspective. The photo array process was not done for the purpose of having Mr. Spain make an identification of the perpetrator because that is the face he saw, but because he had already explained to the police who he believed to be the person wearing the blue ski mask and for the police’s information he was shown pictures so he could satisfy the police as to what person it was that he had determined to be the person behind the mask. So the photo wasn’t used to identify him, only to give the police the information as to the person who he was identifying as to one of the perpetrators; but this can raise a proper concern with the defendant because there would be reference to the fact that the police had a photo of the defendant and you should understand that the police have many pictures of people. Simply because the police have a person’s picture does not mean that he has ever committed a crime before or since, so please understand that there is no connotation of guilt of any kind simply because some picture of the defendant was in the possession of the police. You should not speculate as to how that picture got into their possession or why it was in their possession.”

We conclude that the trial court did not improperly admit the evidence on the basis of relevancy. We also conclude that the trial court properly conducted a balancing test weighing the probative value of that exhibit against the prejudicial effect it might have if it was admitted.

B

The defendant next claims that the trial court improperly allowed hearsay evidence to come before the jury. The following additional information is relevant to this claim. On cross-examination of Notarangelo, the following exchange occurred:

“[Defense Counsel:] Okay. But [Spain] didn’t identify him because he could see the face of that person at the scene right?

“A. That’s correct.

“Q. In other words, he indicated that they both wore masks and he couldn’t see their faces?

“A. That is correct.

“Q. Okay. But his identification, you said that was—for whatever reasons he made the identification, it wasn’t because he saw their faces at the scene; is that correct?

“A. Not the face per se, but he did comment about—their faces because they were masked; is that fair?

“Q. And that’s what he told you?

“A. That’s correct.”

On redirect examination by the prosecutor, the following exchange occurred:

“[Prosecutor:] Sergeant Notarangelo, on cross-examination you told us that he could not see the faces because of the ski masks. That’s what he told you?

“A. That’s correct.

“Q. Did he tell you whether or not he could identify anything about the faces themselves in spite of the ski masks?

“[Defense Counsel:] I would object, Your Honor, because it’s hearsay and I think since the victim is going to be the next witness that I think we should hear it from him.

“The Court: I think perhaps you might have opened the door, counselor, from the questions that you asked relating to the fact that this witness indicated that he told her that he couldn’t see the face. She attempted to explain it a little bit, but it wasn’t the question you asked. Rightfully, you restricted her to your question. But I think the state has the right to expand upon it. I’ll allow it. You may have an exception.”

The state then asked the witness the following questions:

“Q. Sergeant Notarangelo, did he tell you in spite of the masks there was something about that he recognized either of the individuals?

“A. Yes.

“Q. All right. What was that?

“A. The taller individual, the party who he stated shot him, was his eyes?

“Q. He recognized the eyes?

“A. Yes.”

During recross-examination of the witness, it was determined that in the victim’s written statement, he did not mention that he had recognized the defendant’s eyes. The court thereafter sustained the defendant’s objection when the state attempted to question the witness about what the victim had said.

The state concedes, and we agree, that the questioned evidence constituted hearsay. “Hearsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein.” State v. Rinaldi, 220 Conn. 345, 359, 599 A.2d 1 (1991). The state, however, argues that the defendant “opened the door” by eliciting a hearsay response during its cross-examination and, further, that even if the court should not have admitted this evidence, it was harmless error. We need not determine the harmlessness claim because we conclude that the trial court properly admitted this hearsay testimony because the defendant opened an inquiry into the topic on cross-examination and, thus, allowed inquiry by the state on redirect.

“[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); State v. Aleksiewicz, 20 Conn. App. 643, 656, 569 A.2d 567 (1990). “ ‘The party who initiates discussion on the issue is said to have “opened the door” to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.’ ” State v. Paulino, 223 Conn. 461, 467, 631 A.2d 720 (1992). This rule allows the state, after the defendant has introduced pieces of evidence for his own advantage, to place the evidence in its proper context. State v. Graham, supra, 13. After the “door has been opened,” the trial court, in the exercise of its discretion, may allow further inquiry into the subject matter, after balancing the harm to the state in restricting the questioning with the prejudice suffered by the defendant in allowing the rebuttal. State v. Paulino, supra, 468. We will not overturn the trial court’s decision unless the trial court has abused its discretion. State v. Jones, 205 Conn. 638, 666-67, 534 A.2d 1199 (1982).

Considering the totality of the circumstances, the trial court could reasonably have concluded that the state’s inquiry was necessary to place the previously offered testimony about the victim’s statements to the witness regarding identification in its proper context. We conclude, therefore, that the court acted within its discretion in admitting the very limited inquiry.

Ill

The defendant asserts that the trial court improperly instructed the jury on direct and circumstantial evidence. The defendant neither filed a request to charge nor noted an exception to the instructions he now challenges. He seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine. Practice Book § 4061 (formerly § 4185).

The defendant’s complaint is not that the trial court incorrectly explained the concepts of direct and circumstantial evidence, or that any part of the charge was not according to the law, but rather that the charge was misleading or inadequate.

“The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.” State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978). We review the entire charge to determine if it adequately guided the jury to a correct verdict. State v. Pratt, 235 Conn. 595, 613, 669 A.2d 562 (1995). Viewing the charge as a whole, we conclude that it is not reasonably possible that the jury was misled or that an injustice resulted by virtue of the trial court’s charge. The trial court’s charge on direct evidence was correct in law, as was the instruction on circumstantial evidence. The defendant has not satisfied the third prong of Golding because he has failed to demonstrate that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

Plain error 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. State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990).” (Internal quotation marks omitted.) State v. Sawyer, 32 Conn. App. 854, 856-57, 632 A.2d 372, cert. denied, 228 Conn. 911, 635 A.2d 1230 (1993). The claimed error here is not so egregious or obvious as to merit such review. The instructions read as a whole did not result in an “unreliable verdict or miscarriage of justice. . . .” (Citations omitted; internal quotation marks omitted.) State v. Harvey, 27 Conn. App. 171, 187, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). Plain error review is not warranted.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 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: (1) Causes serious physical injury to any person who is not a participant in the crime . . .

       General Statutes (Rev. to 1995) § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . ."

       In denying the motion to suppress, the court stated: “As I started to rule earlier, I am now going to rule that—I am going to allow the state to pursue this area of its inquiry. However, not to the extent that went in here because a lot of what was said by this witness was permitted for the purpose of allowing the court to understand the general circumstances that prevailed. A lot of it involved hearsay utterance from the victim which the victim can testify himself. But the extent of the testimony of this witness could be to evidence that she took a statement from the victim, that she received a description of the perpetrator from the victim and names from the victim without necessarily going into what they are unless defense counsel wishes to do that on cross-examination. And that as a result of that, she prepared a photo array and the victim in fact selected one of the individuals as the person he believed to be the perpetrator and that would be foundation to allow that to be entered as a full exhibit perhaps when other criteria is met when the victim testifies. I think—I’m trying to limit it, but I can’t limit it completely. I mean, I’m not trying to say that’s all you can ask, just as long as it is within the scope of what I just referred to. Defense may have an exception to the court’s ruling.”

       Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 23SMD: The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

       We need not consider a claim on appeal unless it was directly raised at the trial. Practice Book § 4061 (formerly § 4185). “This court reviews rulings solely on the ground on which the party’s objection is based.” State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971); State v. Busque, 31 Conn. App. 120, 127, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994).

       Wo soe no practical purpose in setting forth the applicable portions of the trial court’s insfruction on direct and circumstantial evidence.