author: Landau, J.

text:
    Cathy Colby v. Edwin Colby
    (10943)
    Landau, Freedman and Schaller, Js.
    Argued November 1, 1993
    decision released January 11, 1994

      Kathleen D. Stingle, for the appellant (plaintiff).

      Irene L. Cornish, for the appellee (defendant).
   Landau, J.

The plaintiff, Cathy Colby, appeals from the trial court’s granting of the defendant’s motion to modify the alimony ordered as part of a 1978 Massachusetts divorce decree that was filed in Connecticut pursuant to General Statutes § 46b-70 et seq. The plaintiff claims that the trial court improperly granted the postjudgment motion to modify (1) without a finding of a substantial change in circumstances of either party, (2) upon an express use of an improper standard in support of the modification that “the parties’ best interest would be served” and (3) without finding facts that are legally sufficient to justify the modification. We do not reach these issues, however, because the trial court, in modifying the foreign judgment in this state, failed first to find that the judgment of divorce was one in which both parties had entered appearances and failed also to apply the substantive law of the foreign jurisdiction. We find those issues to be dispositive of this appeal.

The following undisputed facts are relevant to this appeal. On November 22, 1978, the parties were divorced by the Probate Court in Hampshire county, Massachusetts. The decree provided, inter alia, that Edwin R. Colby, the defendant here, pay to Cathy E. Colby, the plaintiff here, alimony and her reasonable medical and dental expenses. The Massachusetts judgment was certified and filed in the Superior Court in Connecticut by the plaintiff on January 24, 1991, in order to enforce the judgment against the defendant, who had relocated to Connecticut. On October 28, 1991, the defendant filed a motion to modify the original alimony order, seeking a termination of alimony and a recalculation of the alimony arrearage found in a March, 1991 contempt hearing. A hearing was held on the defendant’s motion at which time only the issue of modification was addressed.

“ ‘Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. Each element of jurisdiction is dependent upon both law and fact. Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person. Facts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court are essential to jurisdiction over the subject-matter of the suit. . . .’ ” Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988). Subject matter jurisdiction, unlike personal jurisdiction, cannot be conferred on the court by waiver or consent of the parties, nor can the court confer jurisdiction on itself. Id., 427-30. “Such jurisdiction relates to the court’s competency to exercise power . . . .” (Internal quotation marks omitted.) Plasil v. Tableman, 223 Conn. 68, 80, 612 A.2d 763 (1992).

“General Statutes § 46b-71 (b) consigns to the courts of this state the power to enforce, satisfy, modify, alter, amend, vacate, set aside or suspend a foreign matrimonial judgment that has been properly filed in a Connecticut court. This subject matter jurisdiction is circumscribed, however, by General Statutes § 46b-70, which defines a foreign matrimonial judgment as ‘any judgment, decree or order of a court of any state in the United States in an action for ... divorce ... or dissolution of marriage, for the custody . . . or support of children . . . in which both parties have entered an appearance. ’ (Emphasis added.) The requirement of the entry of an appearance by both parties is a ‘threshold requirement for enforcement’ of a foreign matrimonial judgment. Morabito v. Wachsman, 191 Conn. 92, 101, 463 A.2d 593 (1983).” Mirabal v. Mirabal, 30 Conn. App. 821, 825, 622 A.2d 1037 (1993). “The language of § 46b-70 differs from that of other uniform enforcement of judgment acts; it ‘reflects the intent of the legislature to ensure that both parties have actual notice of an out-of-state proceeding, and to preclude adoption of foreign judgments obtained by a default in appearance. ’ (Emphasis added.) Rule v. Rule, 6 Conn. App. 541, 544, 506 A.2d 1061, cert. denied, 201 Conn. 801, 513 A.2d 697 (1986); Morabito v. Wachsman, supra, 101 n.9. A trial court has no competency to exercise power over an out-of-state matrimonial judgment that does not satisfy the requirements of § 46b-70.” Mirabal v. Mirabal, supra, 825-26.

While this court has the authority to determine jurisdiction; Pollio v. Conservation Commission, 32 Conn. App. 109, 113, 628 A.2d 20 (1993); we are unable to determine from the record whether the plaintiff here ever filed an appearance in the divorce proceedings in accordance with the Massachusetts rules of civil procedure. The threshold requirement for enforcement of the foreign matrimonial judgment not having been satisfied leaves unresolved the question of the jurisdiction of the trial court. This court is not in a position to hold a hearing to determine this fact and thus remands the case to the trial court for a hearing to determine whether the threshold issue has been met.

Clearly, when modifying a foreign matrimonial judgment, a Connecticut court must apply the substantive law of the foreign jurisdiction. General Statutes § 46b-71 (b). In the present case, the trial court and both parties relied wholly upon the statutes and case law of the state of Connecticut. The trial court’s failure to apply Massachusetts law constitutes plain error. 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.” (Internal quotation marks omitted.) Budlong v. Nadeau, 30 Conn. App. 61, 66, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993). Where a statute dictates that the substantive law of a foreign jurisdiction is controlling and a trial court fails to apply such law, this comprises an extraordinary situation in which the error is so obvious as to affect the fairness and integrity of the judicial proceeding. Moreover, the parties cannot agree that Connecticut law shall apply in direct contravention of the legislative intent that the substantive law of a foreign jurisdiction controls in modifying a foreign matrimonial judgment.

The judgment is reversed and the case is remanded for a hearing to determine whether the trial court has jurisdiction. If the trial court determines that it does not have jurisdiction, that court is directed to render judgment dismissing the matter; if jurisdiction is found, the court is instructed to hold a new hearing at which it is to apply the substantive law of Massachusetts.

In this opinion the other judges concurred.

       In the Massachusetts divorce action, Edwin Colby was the plaintiff and Cathy Colby was the defendant. Their designations are reversed in the Connecticut proceedings.

       General Statutes §§ 46b-70 through 46b-75 govern the enforcement of foreign matrimonial judgments. General Statutes § 46b-71 provides in relevant part: “(a) Any party to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final, has not been modified, altered, amended, set aside or vacated and that the enforcement of such judgment has not been stayed or suspended, and such certificate shall set forth the full name and last-known address of the other party to such judgment and the name and address of the court in the foreign state which rendered such judgment.
      “(b). . . A foreign matrimonial judgment so filed shall have that same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state; provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.”

       In November, 1990, the plaintiff filed a motion for contempt in Connecticut against the defendant. She failed, however, to file a certification pursuant to General Statutes § 46b-70.

       The matter of arrearages went off without prejudice to be heard at a later date.

       See footnote 2.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Samuel Packtor v. Seppala and AHO Construction Company, Inc., et al.
    (12089)
    (12090)
    O’Connell, Foti and Landau, Js.

      Argued October 26, 1993
    decision released January 18, 1994

      David A. Leff for the appellant (named plaintiff).

      Joel M. Fain, with whom, on the brief, was Andrew H. Sharp for the appellant (intervening plaintiff).

      Lawrence A. Ouellette, Jr., with whom, on the brief, was Rene G. Martineau, for the appellee (defendant J.M.H. Associates).
   Foti, J.

The plaintiff, Samuel Packtor, and the intervening plaintiff, Stop & Shop Companies, each appeals from the judgment rendered following the trial court’s granting of two separate motions for summary judgment filed by the defendant J.M.H. Associates. We affirm the judgment of the trial court.

Packtor was injured in a fall on September 13,1987, while climbing the second floor stairway, described as a “ship’s ladder,” in the Stop & Shop store at 255 East Main Street, Clinton, where he was employed. J.M.H. Associates owned the building and leased it to Stop & Shop. In an action returnable August 21,1990, Pack-tor brought suit for damages against the owner of the building and the contractor who had constructed the stairway. Stop & Shop filed a motion to intervene pursuant to General Statutes § 31-293 (a) for reimbursement of workers’ compensation payments made to its employee, Packtor, for injuries arising out of and in the course of his employment. It is uncontested that the intervention occurred within thirty days of notice as required by § 31-293. The motion was granted and Stop & Shop filed an intervening complaint on October 9, 1990.

On December 2, 1991, J.M.H. Associates filed a motion for summary judgment as to the third and fourth counts of Packtor’s complaint. J.M.H. Associates challenged Packtor’s third count, which sounded in common law negligence, as time-barred by the two year limitation period of General Statutes § 52-584. Packtor’s fourth count alleging a statutory cause of action pursuant to General Statutes §§ 29-389 and 29-391 was challenged because the injury alleged was not the type of injury that the statutes were intended to prevent. In a memorandum of decision filed April 23, 1992, the trial court, Pellegrino, J., granted the summary judgment on both counts. Packtor now appeals challenging that decision.

On May 29,1992, J.M.H. Associates filed a separate motion for summary judgment as to Stop & Shop. The motion was granted by the trial court, Maiocco, J., in a memorandum filed on January 5,1993. The trial court ruled that because Packtor’s claim was barred by the statute of limitations, Stop & Shop’s derivative right to reimbursement was likewise time-barred. Stop & Shop appeals challenging that decision. We will deal with the claims of the plaintiff and the intervening plaintiff separately.

I

Packtor claims only that the trial court improperly rendered summary judgment after concluding that General Statutes §§ 29-389 and 29-391 did not apply to the facts and circumstances of this case. We do not agree.

The fourth count of Packtor’s complaint alleged that, as a result of the failure of the defendants to provide a suitable interior stairway as mandated by § 29-389, Packtor was injured and entitled to damages pursuant to § 29-391. The undisputed facts are that access to the second floor of the building was possible only by the stairway in question, that Packtor was ascending that stairway in the normal course of his duties when injured, and that there was no fire or other emergency at the time. We agree with the trial court that the meaning of § 29-389 is plain and unambiguous. Both §§ 29-389 and 29-391 are primarily concerned with emergency stairways and unobstructed escape routes from buildings, and injuries resulting from egress or “escape from such a building in case of fire or other emergency.” (Emphasis added.) General Statutes § 29-389. We note further that these statutes are found in Chapter 541 entitled “Building, Fire and Demolition Codes. Fire Marshals and Fire Hazards. Safety of Public and Other Structures.”

“Statutes are to be applied as their words direct. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 141, 509 A.2d 1050 (1986).” River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 805, 595 A.2d 839 (1991). “ ‘When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction. . . .’ ” Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 63, 578 A.2d 1054 (1990). “The objective of statutory construction is to give effect to the intended purpose of the legislature. . . . It is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary.” (Citations omitted; internal quotation marks omitted.) Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992), quoting Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991).

We conclude that in accordance with the plain language of § 29-389 the trial court properly rendered summary judgment for the defendant as no factual predicate existed to sustain a statutory cause of action under this section.

II

A

Stop & Shop first alleges that the trial court improperly applied to its claims the two year limitation of General Statutes § 52-584 rather than the three year general tort statute of limitations, General Statutes § 52-577. Stop & Shop claims that it has an employer’s statutory cause of action, which survives the trial court’s ruling barring the employee’s remedy for a procedural deficiency. Further, it argues that its statutory cause of action is governed by the limitation in § 52-577, which applies to actions founded on a tort. Stop & Shop argues that since Packtor was injured on September 13, 1987, and the intervening complaint is dated August 22, 1990, such intervention was within the three year limitation and, therefore, is not time-barred. We are not persuaded.

General Statutes § 31-293 specifically grants an employer who has paid workers’ compensation benefits to an employee the right to join as a party plaintiff in the employee’s action against a third party tortfeasor. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990). It is an independent derivative action. Ricard v. Stanadyne, Inc., 181 Conn. 321, 323, 435 A.2d 352 (1980). It is a statutory and substantive right to reimbursement that is “in effect one of subrogation to the right of the injured employee to recover for the tort committed against him.” Stavola v. Palmer, 136 Conn. 670, 677, 73 A.2d 831 (1950). An employer who has paid, or by award has become obligated to pay, compensation may also sue the third party in his own name directly for reimbursement. If either the employer or the employee sues the third party, the other is entitled to notice and an opportunity to join in the action. Enquist v. General Datacom, 218 Conn. 19, 23, 587 A.2d 1029 (1991). An employer’s “sole means to assert any right against the plaintiff’s third party recovery [is] by way of the procedure set forth in § 31-293.” Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987).

We agree with Stop & Shop that “it would be inequitable to bar an intervention action by an employer for no other reason than that the employee failed to file his or her action within the applicable period of limitation.” (Emphasis added.) We do not bar the employer on that ground. The issue we must determine is whether the employer’s action is itself timely filed. In order to decide that question, we must first determine which statute of limitations governs the rights of an employer seeking to recover workers’ compensation benefits from a third party tortfeasor. Since an intervening employer’s statutory right to reimbursement depends on the liability of the third party to the employee, the statute of limitations applicable to the employer’s right of action must be the same as that governing the employee’s underlying action against the tortfeasor. See 101 C.J.S., Workmen’s Compensation § 1014 (b) (1958); 82 Am. Jur. 2d, Workers’ Compensation § 460 (1992); annot., 41 A.L.R.2d 1044, § 2.

An employer has no cause of action unless the employee has a cause of action. Stavola v. Palmer, supra, 678. It may be argued that the employee in this case did have a valid cause of action, but that it was barred merely by a procedural failure on the employee’s part. The action is not barred, however, by the employee’s procedural failure but by the failure of the employer to bring suit in a timely manner. If the employer had initiated the action, it would not be prosecuting its own action, but the action of the employee. Therefore, it would be illogical to grant greater rights to an employer whose rights are derivative, than to the employee from whom those derivative rights flow.

In this case, the employee’s cause of action is limited by the personal injury statute of limitations found in General Statutes § 52-584. Packtor’s injury occurred on September 13, 1987. Stop & Shop did not initiate any action until it filed a motion to intervene on August 27, 1990, well beyond the two year statute of limitations. Stop & Shop’s derivative right to reimbursement was, therefore, time-barred pursuant to § 52-584.

B

Stop & Shop also argues that General Statutes §§ 29-389 and 29-391 are applicable to the injury sustained by Packtor, that the defendants failed to provide two suitable remote means of egress, that the statutes are not limited to injuries sustained in fires or other emergencies, and that they do not require a person to be exiting a building when injured.

For the reasons stated in part I of this decision, we do not agree.

The judgment is affirmed.

In this opinion the other judges concurred.

       Packtor has appealed from the summary judgment rendered against him and Stop & Shop Companies. Stop & Shop has appealed only from the summary judgment rendered against it.

       The defendants in the substituted complaint filed January 7,1991, are Seppala & AHO Construction Company, Inc., the general contractor that constructed the premises, and J.M.H. Associates. Judgment was rendered, pursuant to a stipulation filed August 13,1992, against the defendant Seppala & AHO Construction Co. in the amount of $238,120.24, reduced by compensation benefits paid to the plaintiff in the amount of $214,120.24. The sole defendant on appeal is J.M.H. Associates.

       General Statutes § 31-293 provides in pertinent part: “(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against the third person, but the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation trader the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If either the employee or the employer brings an action against the third person, he shall immediately notify the other, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the other may join as a party plaintiff in the action within thirty days after such notification, and, if the other fails to join as a party plaintiff, his right of action against the third person shall abate. In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the mean-

        ing of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting the recovery. The rendition of a judgment in favor of the employee or the employer against the third party shall not terminate the employer’s obligation to make further compensation which the commissioner thereafter deems payable to the injured employee. If the damages, after deducting the employee’s expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with the third person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him. . . .”
      This section was recently amended by Public Acts 1993, No. 93-228, § 7, but the amendment does not affect the issue on appeal.

       General Statutes § 29-389 provides in pertinent part: “stairways and fire ESCAPES on certain buildings. Each story of a building used in whole or in part as a ... store in which more than six persons are employed or of a building used in any way not named above except a workshop or manufactory but which has a similar need of such protection, shall be provided with not less than two remote means of egress. Each story above the first story of each such building shall be provided with not less than two remote means of egress by stairways on the inside or fire escapes on the outside of such building. Such stairways and fire escapes and pas-

        sageways providing access thereto shall be constructed, designed, maintained and located in accordance with regulations issued under the provisions of section 29-292, which regulations shall provide for free and unobstructed egress from all parts of such building when the building is occupied and shall avoid undue danger to the lives and safety of its occupants from fire, smoke, fumes or resulting panic during the period of time reasonably necessary for escape from such building in case of fire or other emergency. No locks or other fastenings to prevent free escape from the inside of such building shall be installed except in mental, correctional or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency. A ladder affixed to any of the premises herein described shall not be considered a fire escape within the meaning of this section. This section shall not apply to any building used for residence or business which conforms to the stairway, fire escape and egress requirements of the state building code and state fire safety code.”
      General Statutes § 29-292, referred to above, is entitled “fire safety CODE. SMOKE DETECTION AND WARNING EQUIPMENT. CERTIFICATE OF OCCUPANCY. REVIEW OF PLANS AND SPECIFICATIONS; FEES.”

       General Statutes § 29-391 provides: “In any case in which any person suffers injury or in which the death of any person ensues in consequence of the failure of the owner of any building to provide the same with fire escapes or stairways as required by the provisions of sections 29-389 and 29-390 or in consequence of the failure of such owner to comply with any order of the labor commissioner, made in conformity to the provisions thereof, such owner shall be liable to any person so injured for damages for such injury; and, in case of death, such owner shall be liable in damages for the injury caused by the death of such person. It shall be no defense to any action for the recovery of such damages that the person injured or whose death ensued as aforesaid had knowledge that such building was not provided with fire escapes or stairways as required by said sections or that such person continued to work in or to occupy such building with such knowledge. The owner of any building or, if such owner is non compos mentis or a minor, the guardian of such owner or, if such owner is a nonresident, the agent of such owner having charge of such property who fails to comply with the provisions of sections 29-389 and 29-390 shall be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned not more than three months or be both fined and imprisoned.”

       Packtor does not appeal the trial court’s ruling regarding the statute of limitations.

       We note that both plaintiffs cite the introductory language of General Statutes § 29-391 — “In any case in which any person suffers injury . . .” —for the proposition that this section is not limited to emergencies. In context, the statute provides: “In any ease in which any person suffers injury or in which the death of any person ensues in consequence of the failure of the owner of any building to provide the same with fire escapes or stairways as required by the provisions of sections 29-389 and 29-390 or in consequence of the failure of such owner to comply with any order of the labor commissioner, made in conformity to the provisions thereof. . . .’’(Emphasis added.)

       J.M.H. Associates raises the issue of whether Stop & Shop has standing to seek review of Judge Pellegrino’s decision regarding the summary judgment motion against Packtor. Stop & Shop’s brief refers to Judge Pellegrino’s April 23, 1993 memorandum of decision. This seems to have been done in error since it was Judge Maiocco’s January 5, 1993 decision that directly decided the summary judgment against Stop & Shop and it is from that decision that they appeal. We conclude, however, that because Stop & Shop’s legal argument addresses its own and not the plaintiff Pack-tor’s claims, there is no issue of standing. Because Judge Maiocco’s memorandum of decision explicitly referred to Judge Pellegrino’s decision, we have considered both memoranda of decisions for purposes of this appeal.

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The three year statute of limitations in General Statutes § 52-577 applies to all actions founded on tort that are not within those causes of action carved out of § 52-577 and enumerated in General Statutes § 52-584 or other specific sections. United Aircraft Corp. v. International Assn. of Machinists, 161 Conn. 79, 107, 285 A.2d 330 (1971), cert. denied, 404 U.S. 1016, 92 S. Ct. 675, 30 L. Ed. 2d 663 (1972).

        Stavola v. Palmer, 136 Conn. 670, 73 A.2d 831 (1950), was decided under General Statutes (1949 Rev.) § 7425, a predecessor of General Statutes § 31-293. Revisions have been made to the statute, but the statute overall has remained substantially similar. See the discussion in Enquist v. General Datacom, 218 Conn. 19, 587 A.2d 1029 (1991).

       We note that Stop & Shop could have exercised its right to commence a direct action against the third party tortfeasor under General Statutes § 31-293 within the applicable limitation period regardless of the employee’s inaction.

       See, e.g., Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 586 A.2d 567 (1991) (holding that insurer’s claim seeking reimbursement of moneys paid to its insured was time-barred by one year suit provision and noting that subrogee had no greater rights than the subrogor and was equally subject to any defenses that might be asserted against subrogor).


author: Dupont, C. J.

text:
    State of Connecticut v. Janet Graham
    (10501)
    Dupont, C. J., O’Connell and Freedman, Js.

      Argued October 25, 1993
    decision released January 25, 1994

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, and John M. Massameno, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The state charged the defendant in two separate substitute informations. The two cases were joined together for a single jury trial. In the first case, for actions allegedly occurring on July 15,1988, the state charged the defendant with (1) unlawful possession of narcotics with intent to sell in violation of General Statutes § 21a-277, (2) unlawful possession of narcotics in violation of General Statutes § 21a-279 (a), and (3) larceny in the sixth degree in violation of General Statutes § 53a-125b. In the second case, the state charged the defendant with (1) larceny in the sixth degree in violation of General Statutes § 53a-125b for actions allegedly occurring between September, 1987, and August, 1988, and (2) unlawful possession of a controlled substance in violation of General Statutes § 21a-279 (c) for actions allegedly occurring during August, 1988. The jury found the defendant not guilty of the first count of the first information, unlawful possession of narcotics with intent to sell, and guilty on all of the remaining counts of both informations.

The defendant appeals from the judgments rendered in the two cases, alleging that (1) the trial court improperly admitted evidence of uncharged misconduct, (2) the trial court improperly charged the jury regarding consciousness of guilt, (3) the trial court improperly charged the jury regarding the effect of good character evidence, (4) the evidence was insufficient to sustain the larceny conviction in the second case, and (5) the trial court imposed a condition of probation that was improper.

The jury could have reasonably found the following facts. In May, 1988, an unaccounted loss of narcotics was discovered at the University of Connecticut’s John Dempsey Hospital. At the time, the distribution of narcotics to individual patients was monitored by means of proof-of-use notebooks. The hospital pharmacy, which delivered narcotics to hospital nursing stations, required the nurses to store narcotics in locked boxes and to log the distribution of narcotics. For each disbursement of narcotics, the nurse involved was required to enter on the proof-of-use sheets the date, time, and dosage of the distribution, as well as the name of the patient receiving the narcotic, the physician ordering the narcotic, and the nurse distributing the narcotic.

After a review of proof-of-use sheets, the hospital pinpointed the loss of narcotics as having occurred at the nursing station on the fourth floor. In response to the discovery, a hospital pharmacist went to the fourth floor station and encountered the defendant, who was a nurse assigned to the station. According to the pharmacist, the defendant said three times that the narcotics box was left open and anyone could have gotten inside the box.

The loss triggered a hospital investigation directed by Barry Gordon, an agent for the department of consumer protection. After discovering further losses in June, 1988, Gordon asked the hospital to assign each nurse to a particular floor. When narcotics losses began to occur on the seventh floor, Gordon conducted a video surveillance of the seventh floor nursing station. The first videotape, although of poor quality, showed the defendant, who was then assigned to the seventh floor, removing the proof-of-use notebook from the counter adjacent to the narcotics box, and going through the narcotics box for a long period of time without removing narcotics from the station.

A second videotape, recorded on July 15, 1988, showed the defendant going through the proof-of-use notebook for a long period of time without making any entries. The tape showed that after the defendant removed narcotics from the locked storage box, she failed to relock the box. The defendant also brought her pocketbook into the nursing station, and moved it to an area under a sink. Gordon compared the defendant’s actions to those of other nurses, and found her actions to be unusual.

After determining that the defendant had made an unusual entry in the proof-of-use notebook, Gordon and Theodore Pawlich, the hospital’s assistant director of public safety, sought out the defendant on July 15, 1988. The defendant saw them in a corridor and then entered a bathroom, carrying her pocketbook and a flowered tissue box. Gordon instructed Ann Horbatuck, the nurse manager of the seventh floor, to follow the defendant into the bathroom and to instruct her to come to Gordon’s office for questioning.

As Horbatuck entered the bathroom, the defendant exited a stall while a toilet was flushing. The defendant agreed to speak with Gordon and Pawlich. A few minutes later, Horbatuck and Pawlich searched the bathroom and found, in a stall disposal can, a flowered tissue box that contained a packet each of the narcotics MS Contin and Dilaudid. Pawlich testified at trial that the tissue box found in the bathroom was the same box that he had seen the defendant carrying when she entered the bathroom. Gordon and Pawlich also discovered that proof-of-use sheets for MS Contin and Dilaudid were missing from the seventh floor station.

Further investigation revealed that the defendant was the only person who was assigned to work during every period of time when a loss of narcotics occurred. The investigation also disclosed that there were no losses during two periods of time in July when the defendant was not working.

On the date of the defendant’s arrest, the Bristol police received an anonymous telephone call directing them to search for a brown plastic bag in a dumpster behind St. Joseph’s Church in Bristol. The police found the bag, which contained a prescription container bearing the name of the defendant’s daughter, as well as a variety of pharmaceutical items. The police contacted the hospital because they believed that the items had been taken from the hospital. The director of the hospital’s pharmacy, Michael Rubino, examined the bag. At trial, Rubino testified that he believed that several items had come from the hospital, and that the items were removed wrongfully from the hospital. Testimony also revealed that the dates and labels of other pharmaceutical items found in the bag indicated that they were taken from several nursing homes between 1984 and 1988. The defendant had worked at those nursing homes during this period of time.

I

The defendant claims that the trial court improperly admitted two sets of uncharged misconduct evidence. The first set of evidence concerned unaccounted for drug losses at the hospital on various dates during the two month period prior to July 15,1988, which the state claimed was admissible in the first case as misconduct evidence that satisfied an exception to the prior uncharged misconduct rule. The second set of evidence concerned the items from the plastic bag that were identified as being from nursing homes where the defendant had worked, which the state claimed was similarly admissible in the second case. The state argued that the evidence was admissible as uncharged misconduct evidence that satisfied the identity, intent, and common scheme exceptions to the uncharged misconduct rule. The trial court admitted both sets of evidence over the defendant’s objections.

Evidence of a defendant’s uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime. State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Sierra, 213 Conn. 422, 428, 568 A.2d 448 (1990). Exceptions to this rule have been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. State v. Mooney, supra; State v. Sierra, supra. Such evidence may also be used to establish knowledge; State v. Ulen, 31 Conn. App. 20, 28, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993); or to complete the story of the charged crime “by placing it in the context of nearby and nearly contemporaneous happenings.” (Internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 424-25, 630 A.2d 1043 (1993).

Uncharged misconduct evidence must satisfy a two part test in order to be admitted under one of the exceptions. First, the evidence must be relevant and material to at least one of the claimed exceptions, and, second, the evidence’s probative value must outweigh its prejudicial effect. State v. Cooper, supra, 425; State v. Mooney, supra, 127; State v. Sierra, supra, 429. Since the admission of uncharged misconduct evidence is a decision within the discretion of the trial court, we will draw every reasonable presumption in favor of the trial court’s ruling. State v. Cooper, supra, 426-27. We will reverse a trial court’s decision only when it has abused its discretion or an injustice has occurred. Id., 427; State v. Mooney, supra.

In order for uncharged misconduct evidence to have any probative value with regard to the issue of intent, the state must make a preliminary showing sufficient to support a jury finding that it was the defendant who committed the misconduct. State v. Wilson, 199 Conn. 417, 449, 513 A.2d 620 (1986). In this case, the state has made a sufficient showing. In regard to the evidence of unaccounted for drug losses, the state introduced evidence that the defendant was the only nurse on duty at the time and place when each drug loss occurred during the two month period prior to July 15, 1988. In regard to the nursing home items obtained from the plastic bag, the state made four showings that linked the defendant to the items or the bag. First, the state produced evidence indicating that the items in the bag were taken from the nursing homes during a time period when the defendant had worked at the nursing homes. Second, testimony by the director of the hospital’s pharmacy indicated that several items in the bag had come from the hospital where the defendant was an employee and at a time when the defendant had access to the items. Third, the bag contained a prescription container bearing the name of the defendant’s daughter. Finally, the state produced a written statement of the defendant’s husband, a defendant in a related matter, Bruce Graham, in which Graham stated that he had removed a plastic bag containing pharmaceutical items from his and the defendant’s house, and had thrown the bag into the dumpster. On the basis of these showings, we conclude that the state has made preliminary showings sufficient to support a finding that it was the defendant who committed both sets of misconduct.

The trial court concluded that both sets of uncharged misconduct evidence were admissible because they tended to establish intent. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.” State v. Sauris, 227 Conn. 389, 406, 631 A.2d 238 (1993). Evidence is relevant “if it tends to support the conclusion [for which it is offered], even to a slight degree. . . .” (Citations omitted; internal quotation marks omitted.) Id.

With regard to the evidence of drug losses, we conclude that the evidence had a tendency to prove that the defendant intended to deprive the hospital of narcotics or to appropriate drugs to herself. In regard to the nursing home items, the trial court could have reasonably concluded that the evidence implicated the defendant in the unlawful taking of the property of another, and that this was relevant to the issue of whether the defendant had the intent to commit the charged crimes. See State v. Baldwin, 224 Conn. 347, 355, 618 A.2d 513 (1993) (evidence that defendant had sold drugs in the past is relevant to nature of his possession of drugs at time of charged crime). The trial court could reasonably have concluded further that the probative value of the two sets of evidence outweighed their prejudice to the defendant. Therefore, the trial court did not abuse its discretion in admitting the evidence as uncharged misconduct evidence.

II

The defendant claims that the trial court’s jury instructions regarding consciousness of guilt violated the defendant’s constitutional rights under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution by diluting the state’s burden of proof and by burdening the defendant’s right to testify. The defendant challenges the following portion of the trial court’s instructions to the jury: “ ‘[Consciousness of guilt’ may be circumstantial evidence of guilt. . . . If . . . you find [the] defendant gave false testimony at trial, this may be evidence of consciousness of guilt.” At trial, the defendant did not object to this instruction. She seeks to prevail, however, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

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 a 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. 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). The first two conditions of Golding are met here because there is an adequate record for review and the right not to be convicted except upon proof beyond a reasonable doubt is a constitutional right. Summerville v. Warden, 29 Conn. App. 162, 178 n.4, 614 A.2d 842, cert. granted on other grounds, 224 Conn. 918, 617 A.2d 172, 173 (1992). Upon a review of the merits, however, we conclude that no constitutional violation exists that clearly deprived the defendant of a fair trial.

Although a jury may reject a defendant’s testimony, a jury cannot infer from its disbelief of the testimony that any of the facts denied by the defendant were true. State v. Coleman, 14 Conn. App. 657, 671-72, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988). Thus, a trial court cannot instruct a jury that it may use its disbelief of a defendant’s testimony as proof of a fact necessary to a determination of guilt. State v. Murdick, 23 Conn. App. 692, 702, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991); State v. Coleman, supra, 673. Such an instruction violates a defendant’s constitutional rights by diluting the state’s burden of proof and by burdening the defendant’s right to testify. State v. Murdick, supra; State v. Coleman, supra, 670-76.

A trial court may, however, instruct a jury to consider a defendant’s false testimony at trial as evidence of consciousness of guilt. State v. Murdick, supra, 703; State v. Coleman, supra, 676-77, and cases cited therein; see State v. Brown, 199 Conn. 14, 26-27, 505 A.2d 690 (1986). A jury may also consider consciousness of guilt in determining whether the defendant is guilty. State v. Brown, supra, 27. In this case, the trial court did not instruct the jury that it could base its finding of guilt on its disbelief of the defendant’s testimony. Rather, the trial court properly instructed the jury that it could consider false testimony as evidence of consciousness of guilt, and that, in turn, consciousness of guilt may be evidence of guilt. Since the challenged instruction did not deprive the defendant of due process under either the state or federal constitution; id.; and since consciousness of guilt may be considered along with other evidence in determining guilt; United States v. Morales, 577 F.2d 769, 772-73 (2d Cir. 1978); we conclude that the defendant has failed to demonstrate that a constitutional violation exists that clearly deprived her of a fair trial.

Ill

The defendant also claims that the trial court’s jury instructions regarding good character evidence violated her constitutional rights under the fourteenth amendment to the federal constitution and article first, § 8, as amended, of the Connecticut constitution, by diluting the state’s burden of proof and by burdening the principle of guilt beyond a reasonable doubt. The defendant challenges the following portion of the trial court’s instructions to the jury: “Evidence of good character is not of itself sufficient to raise a reasonable doubt of the guilt of the defendant. . . . Sufficient evidence in order to raise a reasonable doubt of guilt must be believed by you.” At trial, the defendant did not object to this instruction. She seeks to prevail, however, under Golding or plain error review. Although the first two conditions of Golding are met because there is an adequate record for review and because the defendant’s claim is of constitutional magnitude; Michelson v. United States, 335 U.S. 469, 476, 69 S. Ct. 213, 93 L. Ed. 2d 168 (1948); we conclude that a review of the merits of the defendant’s claim shows that no constitutional violation exists that clearly deprived the defendant of a fair trial.

Since a person of previous good character may commit a crime, proof of good character is not a defense to a criminal charge. State v. McGuire, 84 Conn. 470, 485, 80 A. 761 (1911). Good character, if proven, is a circumstance for the jury to consider along with the other facts established in the case. State v. McGuire, supra, 486; see State v. Alderman, 83 Conn. 597, 602, 78 A. 331 (1910). If the facts establish beyond a reasonable doubt that the accused committed the charged crime, then evidence of good character is “no longer of any weight.” State v. McGuire, supra. Thus, a trial court may instruct a jury that where it determines after considering all the evidence, including character evidence, that the facts establish guilt beyond a reasonable doubt, evidence of good character will not by itself warrant an acquittal. Id.; State v. Alderman, supra, 602-603; see State v. Greenberg, 92 Conn. 657, 663, 103 A. 897 (1918).

“In reviewing a constitutionally based challenge to the court’s instruction to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction.” State v. Adams, 225 Conn. 270, 290, 623 A.2d 42 (1993). In this case, it is not reasonably possible that the trial court’s instructions regarding character evidence misled the jury because the instructions, taken as a whole, were consistent with established principles. The trial court instructed the jury to consider character evidence along with all of the other evidence in determining whether a reasonable doubt existed as to the defendant’s guilt. The court also informed the jury that if other evidence implicated the defendant in the charged crime, good character evidence in and of itself would not be sufficient to raise a reasonable doubt. The instructions as a whole were proper and the defendant was not constitutionally deprived of a right due her or of a fair trial.

IV

We next consider whether the evidence presented at trial was sufficient to sustain the defendant’s conviction of larceny in the sixth degree for actions allegedly occurring at the hospital between September, 1987, and August, 1988. The defendant contends that the state failed to present sufficient evidence for the jury to find that pharmaceutical items were wrongfully taken from the hospital during the alleged time frame. We disagree.

The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Gray, 221 Conn. 713, 719-20, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from the facts, that the cumuIative effect of the evidence established guilt beyond a reasonable doubt. State v. Baldwin, supra; State v. Gray, supra, 720; State v. Allen, supra.

In this case, Rubino, the director of the hospital’s pharmacy, testified as a state’s witness that he had examined the items in the plastic bag found in the dumpster on August 5, 1988. Rubino stated that he could positively identify some items in the bag as having come from the hospital, and that among those positively identified were items with hospital packaging from 1988. Rubino further stated that the items with 1988 labeling had a value of less than $250. On the basis of this testimony, a jury could have reasonably found that the defendant wrongfully took pharmaceutical items, valued at less than $250, from the hospital in 1988. Thus, the jury reasonably could have found that the evidence was sufficient to establish guilt beyond a reasonable doubt for larceny in the sixth degree.

y

The defendant also claims that the trial court improperly imposed a condition of probation that requires her “to provide for the proper care and cleanliness of the children and the home.” At oral argument, the defendant also claimed that the court improperly imposed a condition ordering her not to allow “any child of hers under thirteen (13) years of age to be left at home unattended without an adult.” The defendant contends that the conditions are not reasonably related to the purposes of probation and violate her constitutional rights to due process of law. The defendant properly objected to the conditions at sentencing.

When sentencing a defendant to probation, a trial court has broad discretion to impose conditions. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988); State v. Golding, 14 Conn. App. 272, 282, 541 A.2d 509 (1988), rev’d on other grounds, 213 Conn. 233, 567 A.2d 823 (1989); see General Statutes § 53a-30. Nevertheless, this discretion is not unlimited, as statutory and constitutional constraints must be observed. State v. Smith, supra. General Statutes § 53a-30 enumerates the conditions that the trial court may impose on a defendant. The only conditions that could be construed as relating to either of the challenged conditions are enumerated in § 53a-30 (a) (11) and § 53a-30 (a) (3). On appeal, we review whether the trial court abused its statutory discretion in imposing a condition of probation. See State v. Smith, supra.

Probation conditions serve two primary purposes. “[They] are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.” (Internal quotation marks omitted.) Id., 165. Because probation is part of a criminal sentence, probation conditions often restrict the liberty rights of a probationer by imposing “serious restraints on a probationer’s life-style, associations, movements and activities.” State v. Reid, 204 Conn. 52, 55, 526 A.2d 528 (1987); see State v. Smith, supra, 164-65. Nevertheless, a condition of probation may diminish a probationer’s liberty rights “only to the extent necessary for his reformation and rehabilitation.” State v. Smith, supra, 166.

We conclude that the conditions regarding cleanliness of the home and care and cleanliness of the children do not serve to rehabilitate or to reform the defendant because they do not relate to the defendant’s behavior involved in her convictions for larceny and drug crimes. Furthermore, the conditions are not reasonably related to the public protection purpose of probation. On the basis of the convictions of the defendant, the defendant is potentially harmful to the public as a possessor of drugs and as a thief. The public cannot be harmed because of alleged housekeeping deficiencies. Nor does the public safety and welfare hinge on whether a child is allowed to remain at home unattended.

The judgments are affirmed; the cases are remanded to the trial court with direction to delete the conditions of probation stating that the “defendant is to provide for the proper care and cleanliness of the children and the home” and that the defendant is not to allow “any child of hers under thirteen (13) years of age to be left at home unattended without an adult.”

In this opinion the other judges concurred.

       The trial court also admitted, as substantive evidence relating to the second case, the items found in the plastic bag that were identified as being from the hospital. The state did not charge the defendant with any crimes relating to the nursing home items.

       In regard to the evidence of unaccounted for drug losses, the trial court found that the evidence was relevant because it helped establish a fact in issue, “most notably intent and identity.” The court, nevertheless, stated that it had “some difficulty” categorizing the evidence as prior misconduct evidence. The court stated that if it was labeled prior misconduct evidence, it fell within the exceptions to the prior misconduct rule, most notably intent, identity, and common scheme. The court also stated that the probative value of the evidence outweighed any prejudice to the defendant.
      In regard to the evidence obtained from the plastic bag, the court stated that it believed the evidence was relevant, and that its probative value outweighed any prejudice. The court also explained to the jury before it heard the evidence that this evidence was not offered to prove the bad character of the defendant, or her propensity to commit the charged crimes. The court stated that the evidence was offered only to prove intent, identity, or system of conduct.

       The trial court’s jury instruction regarding consciousness of guilt states in pertinent part: “There is an area of law called consciousness of guilt. Whenever a person is on trial for a criminal offense, it is proper to show that person’s conduct as well as any declarations made by him or her subsequent to the alleged criminal offense which may facially have been influenced by that criminal act. State of mind which is characterized as ‘consciousness of guilt’ may be circumstantial evidence of guilt. ... If [the] defendant made statements and you find that those statements are false, or if you find [the] defendant gave false testimony at trial, this may be evidence of consciousness of guilt. It is up to you as judges of the facts to decide whether certain acts, statements or conduct of the defendant . . . reflect consciousness of guilt and to consider such in your deliberations in conformity with the law.”

       The trial court’s jury instruction regarding good character evidence states in pertinent part: “Evidence of good character is not of itself sufficient to raise a reasonable doubt of the guilt of the defendant. . . . Sufficient evidence in order to raise a reasonable doubt of guilt must be believed by you. This character evidence when considered with aU the other evidence in the case may be sufficient to raise a reasonable doubt in your mind as to her guilt. If there is other evidence in the case, implicating the defendant in the crime for which she is being tried, evidence of good character is not in and of itself sufficient to raise a reasonable doubt.” (Emphasis added.)

       Prior to sentencing, defense counsel took exception to certain conditions recommended by the state, including the conditions regarding the care and cleanliness of the children and home. The defendant herself spoke at the sentencing hearing and argued against the conditions.

       General Statutes § 53a-30 provides in pertinent part: “(a) When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant: (1) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment; (2) undergo medical or psychiatric treatment and remain in a specified institution, when required for that purpose; (3) support his dependents and meet other family obligations; (4) make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance; (5) if a minor, (A) reside with his parents or in a suitable foster home, (B) attend school, and (C) contribute to his own support in any home or foster home; (6) post a bond or other security for the performance of any or all conditions imposed; (7) refrain from violating any criminal law of the United States, this state or any other state; (8) if convicted of a misdemeanor or a felony, other than a capital felony, a class A felony or a violation of section 21a-278, 21a- 278a, 53a-55, 53a-56, 53a-56b, 53a-57, 53a-58 or 53a-70b or any offense for which there is a mandatory minimum sentence which may not be suspended or reduced by the court, and any sentence of imprisonment is suspended, participate in an alternate incarceration program; (9) reside in a residential community center or halfway house approved by the commissioner of correction, and contribute to the cost incident to such residence; (10) participate in a program of community service labor in accordance with section 53a-39c; (11) satisfy any other conditions reasonably related to his rehabilitation. . . .”


author: Lavery, J.

text:
    Lance Bowers v. Commissioner of Correction
    (11937)
    O’Connell, Lavery and Heiman, Js.
    Argued November 1, 1993
    decision released January 25, 1994

      Denise Ansell, special public defender, for the appellant (petitioner).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Lavery, J.

The petitioner appeals from the denial of his petition for a writ of habeas corpus. He claims that the habeas court improperly determined that (1) the petitioner’s guilty plea was valid and made knowingly and voluntarily, and (2) the petitioner received effective assistance of counsel. We affirm the judgment of the habeas court.

The relevant facts are undisputed. On February 14, 1984, after having been refused entry into the house of his estranged girlfriend’s parents several times, the petitioner returned with his cousin. The petitioner carried a pistol, his cousin carried a rifle and they both wore stocking masks. After kicking in the front door, the petitioner shot his girlfriend’s stepfather, killing him. The petitioner then threw the murder weapon into a river behind the high school.

Before he died, the victim identified the petitioner to police, as did the former girlfriend. After his arrest, the petitioner confessed to the murder. While awaiting trial, the petitioner wrote letters to the presiding judge and state’s attorney in which he admitted his crime and sought leniency. He pleaded guilty under the Alford doctrine on September 18, 1984, pursuant to a plea agreement under which he was sentenced to twenty-eight years in prison. During the plea canvass, the petitioner stated that he understood the charges against him and the Alford doctrine, and that he had discussed the charges and his plea with his attorney, his mother and an incarcerated uncle. The petitioner did not appeal.

More than six years later, the petitioner sought habeas relief. After a hearing, the trial court denied the petition. This appeal resulted.

I

The petitioner claims that his plea was not made knowingly and voluntarily and was, therefore, invalid. To be valid, guilty pleas must be made voluntarily and knowingly. State v. Gilnite, 202 Conn. 369, 381, 521 A.2d 547 (1987). The validity of guilty pleas can be challenged before sentencing pursuant to Practice Book § 720 and on direct appeal. The petitioner, however, first attacked his plea in this habeas petition. “[T]his court strongly disfavor[s] collateral attacks upon judgments because such belated litigation undermines the important principle of finality. . . .” (Citations omitted; internal quotation marks omitted.) Daley v. Hartford, 215 Conn. 14, 27, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). Therefore, we will review the claim only where the petitioner demonstrates “good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . .” (Citations omitted.) McIver v. Warden, 28 Conn. App. 195, 198, 612 A.2d 108, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992), quoting Giannotti v. Warden, 26 Conn. App. 125, 129, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).

Cause turns on “whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. . . . [For example,] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . would constitute cause under this standard.” Jackson v. Commissioner of Correction, 227 Conn. 124, 137, 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). The cause and prejudice standard, however, “is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertance or ignorance. ” (Emphasis added.) Valeriano v. Bronson, 209 Conn. 75, 83, 546 A.2d 1380 (1988).

The petitioner has failed to demonstrate good cause. He claimed that he was surprised to learn of the actual crimes charged during the plea canvass. He was present, however, when the charges against him were read during his probable cause hearing, and again when he entered his plea. Further, his trial counsel testified that he thoroughly discussed the charges with the petitioner. The petitioner admitted as much during the plea canvass. The record undermines the petitioner’s claims regarding his knowledge of the crimes of which he was accused.

The petitioner also claimed that he was never told that he could challenge his plea before sentencing or on appeal. The petitioner’s trial counsel, however, testified that he “took some pains” in discussing the petitioner’s options and eventualities in light of the petitioner’s age and academic background. Further, the petitioner admits that, after he learned of the possibility of appeal and habeas corpus, he waited almost six years to file his petition. He testified that he did so to be sure that he “knew enough about it.” Ignorance, however, does not establish good cause. See id.

Thus, the petitioner failed to establish good cause for his failure to raise this issue at trial or on direct appeal. Cause and prejudice must be established conjunctively. Johnson v. Commissioner of Correction, 218 Conn. 403, 419, 589 A.2d 1214 (1991). Because we find that the petitioner failed to demonstrate good cause for failing to raise this claim on direct appeal, we need not address the claim of prejudice, and we cannot review the petitioner’s claim.

II

The petitioner next claims that he received ineffective assistance of counsel. He maintains that trial counsel was deficient by failing (1) to adequately explain the plea and advising him to accept it, and (2) to pursue a defense of extreme emotional disturbance.

“We first consider our scope of review. Although the underlying facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. ...” (Citations omitted; internal quotation marks omitted.) Daniels v. Warden, 28 Conn. App. 64, 68, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992).

The right to effective assistance of counsel is firmly grounded in the sixth and fourteenth amendments to the United States constitution. Falby v. Commissioner of Correction, 32 Conn. App. 438, 629 A.2d 1154 (1993). Our Supreme Court has adopted the two-pronged analysis of Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to evaluate the effectiveness of counsel’s assistance. Davis v. Warden, 32 Conn. App. 296, 302, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993). “Under this analysis . . . the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice.” Id.

In order to prove his counsel’s performance was deficient, the petitioner must first establish that his counsel made errors so serious as to cease functioning as the constitutionally guaranteed counsel. Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991). “The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . .We will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citations omitted; internal quotation marks omitted.) Davis v. Warden, supra.

The first ground on which the petitioner claims that his trial counsel’s performance was deficient is that counsel failed to explain the plea adequately. The record, however, undermines his claim. The petitioner’s trial counsel testified that he thoroughly reviewed the charges with the petitioner, taking special pains to do so in light of the petitioner’s age and academic background. Further, trial counsel knew that the petitioner had discussed the plea with his mother and an uncle incarcerated at Somers prison. During the plea canvass, the petitioner admitted that he had discussed the plea with his counsel at length and that he was satisfied with his counsel’s advice. We must presume that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, supra, 689. The record reveals nothing that would taint, let alone defeat, this presumption.

Next, the petitioner claims that his trial counsel’s performance was deficient because counsel advised the petitioner to accept the plea. Here too, the record disproves the claim. The state’s case against the petitioner consisted of two eyewitnesses, a confession and two inculpatory letters. Had he gone to trial, the petitioner would have faced a jail term far longer than twenty-eight years. Under the circumstances, accepting the plea can be considered sound trial strategy. The petitioner’s claim fails.

The petitioner further claims that his trial counsel’s performance was deficient due to his failure to pursue a potential defense of extreme emotional disturbance. Effective assistance of counsel includes competent pretrial investigation. Summerville v. Warden, 29 Conn. App. 162, 171, 614 A.2d 842, cert. granted on other grounds, 224 Conn. 918, 617 A.2d 172, 173 (1992). “[Cjounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id., 172-73.

The petitioner’s trial counsel had a psychiatrist evaluate the petitioner. The psychiatrist ruled out an insanity defense but reported that he needed more information to evaluate a possible defense of extreme emotional disturbance. The petitioner’s trial counsel decided not to pursue that possibility further. At the habeas hearing, the trial counsel explained that his decision was based on the strength of the state’s case. The petitioner had confessed to the police and written inculpatory letters to the judge and the state’s attorney. Further, before he died, the victim identified the petitioner, as did the petitioner’s girlfriend. In short, trial counsel believed that going to trial would have been “suicide” for the petitioner.

Trial counsel’s decision to forgo further investigation was also based on his belief that a defense of extreme emotional disturbance would not have been possible. Because the petitioner had been denied entry to the victim’s home several times earlier in the day, and because he returned armed and wearing a mask, trial counsel believed a claim of extreme emotional disturbance would be fruitless. Further, the calculated manner in which the petitioner disposed of the murder weapon would have undermined the claim.

Finally, if the petitioner had gone to trial, he risked a much greater sentence than the twenty-eight years imposed. In light of the substantial evidence against the petitioner, the facts that undermined a claim of extreme emotional disturbance and the potentially long sentence to which the petitioner was exposed, the petitioner’s trial counsel made a reasonable decision not to pursue a defense of extreme emotional disturbance. Therefore, counsel’s assistance was constitutionally adequate.

To succeed on this claim, the petitioner had to prove both prongs of the Strickland test. Because the petitioner has failed to demonstrate that his trial counsel’s conduct was deficient, we need not consider whether he was prejudiced thereby. His claim of ineffective assistance, therefore, must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Practice Book § 720 provides in relevant part: “A defendant may withdraw his plea of guilty ... as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       The petitioner need not satisfy the cause and prejudice test to obtain review of his claim of ineffective assistance of counsel because, if a petitioner succeeds on the merits of his claim, he will necessarily have proven both cause and prejudice. Valeriano v. Bronson, 209 Conn. 75, 83-84, 546 A.2d 1380 (1988).

       While effective assistance of counsel is also guaranteed by article first, § 8, of the Connecticut constitution, the petitioner frames his claim only under federal law. We shall likewise limit our review.


author: Freedman, J.

text:
    State of Connecticut v. Steven Correia
    (12840)
    Dupont, C. J., Foti and Freedman, Js.
    Argued October 29, 1993
    decision released January 25, 1994

      Francis T. Mandanici, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary E. Baran, assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that (1) the trial court improperly (a) refused to give a jury instruction as required by State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and (b) refused to admit as an exhibit a prior inconsistent statement under State v. Whelan, supra; (2) the trial court improperly required the defendant to sit at the defense table and to submit to a one-on-one identification in front of the jury; and (3) the trial court improperly denied the defendant’s motion for a mistrial after the state indirectly commented on the defendant’s failure to testify in its closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 16,1981, the victim and her roommate went to the Agora Ballroom in New Haven. They left the bar around 1:30 a.m. and walked to the victim’s car located in a nearby parking lot. The victim unlocked the car, got into the driver’s seat and unlocked the passenger door. When the roommate got into the front passenger seat, she saw a man with a gun bending down at the driver’s window. She said, “Oh my God.” The victim turned and saw the defendant pointing a gun at her. The victim offered the defendant money and her car. The defendant responded, “Shut up and let me in.” The victim unlocked a rear door and let him in the car. The defendant continued to point the gun at the victim. When the victim looked into the rear-view mirror, the defendant told her to look straight ahead and drive. At the defendant’s direction, the victim drove a few blocks, and was then told to stop the car. The defendant told the victim and her roommate to get out of the car, he told the victim to open the trunk, and then ordered the roommate to get in. The defendant then locked her in the trunk.

The victim and the defendant got back into the car, the victim in the driver’s seat and the defendant in the passenger seat. All the while, the defendant kept the gun pointed at the victim. The defendant demanded her money. The victim told him she had only $5 and that her roommate did not have any money. The victim gave the defendant her $5. The defendant then directed her to continue driving. After she drove a few blocks, he told her to stop and get out of the car. The defendant took her by the arm, with the gun still pointed at her, and led her to a large field. The defendant ordered the victim to remove her jacket and to lay it on the ground. He ordered the victim to remove her clothes and forced her to perform oral sex on him, and then ordered her to lie down. The defendant penetrated the victim vaginally. During the vaginal penetration, the defendant supported himself on his right elbow while he continued to point the gun, held in his right hand, at the victim. The assault lasted between fifteen and twenty minutes. After the assault, the defendant told the victim to get dressed. When she picked up her jacket, her car keys fell to the ground. The defendant and the victim tried unsuccessfully to find the keys. They went to the car to get a flashlight, returned to the field, found the car keys and walked back to the car.

When they returned to the car, the defendant told the victim to let her roommate out of the trunk. After the roommate was released from the trunk, all three got into the car. The defendant was in the backseat with the gun pointed at the victim. The victim drove until the defendant told her to stop the car. He asked the women for their addresses and phone numbers. They wrote them down and the defendant compared them with their driver’s licenses and checkbooks. The defendant ordered the victim to get out of the car. He led her down the street a short distance and threatened her with harm if she went to the police.

The victim returned to the car and the defendant continued down the street. The victim told her roommate that the defendant had raped her and drove to Saint Raphael Hospital. The roommate told the emergency room staff that the victim had just been raped. The victim was examined and the police were called. Both women gave statements to the police. The next morning the victim looked through numerous photographs but was unable to identify anyone.

In 1986, five years later, the victim was contacted by Sergeant Michael Sweeney of the New Haven police department who told her he had some photographs he wanted to show her. Sweeney showed the victim an array of photographs. The victim immediately identified the defendant as the man who had kidnapped and raped her.

At trial, in 1992, the jury convicted the defendant on all counts charged. This appeal followed.

I

The defendant first claims that the trial court improperly refused to give a jury instruction as required by State v. Whelan, supra, and refused to admit, as an exhibit, a prior inconsistent statement under Whelan. We disagree.

The following facts are pertinent to the disposition of this claim. On the night of the sexual assault, the victim gave a written and signed statement to the police. In this statement, she told the police that her assailant had hidden his face most of the time and her only description of outstanding facial features was that she thought he might have a long chin. At trial, the victim testified that she had ample opportunities to observe the defendant, and that she would never forget his face. The defendant offered the statement given to the police on the night of the sexual assault as a prior inconsistent statement offered for its truth. Portions of the statement that the defendant claimed constituted prior inconsistent statements were read to the jury, the victim testified with regard to the statement, and the defendant extensively cross-examined the victim with regard to the statement. The trial court, however, refused to instruct the jury that the victim’s statement to the police on the night of her sexual assault could be taken for its truth and refused to admit the written statement as an exhibit.

A

The defendant claims that the trial court improperly refused to instruct the jury that the statement to the police could be taken for its truth. To support his claim, the defendant relies on State v. Whelan, supra. Whelan sets forth the rule that a prior inconsistent statement should be admitted to prove the truth of the matter asserted, provided the statement is in writing, signed by a declarant who has personal knowledge of the facts stated, and the declarant testifies at trial and is subject to cross-examination. Id. The trial court found that the victim’s statement to the police on the night of the sexual assault met the criteria set forth in Whelan.

We must, therefore, determine whether Whelan requires the trial court to instruct the jury that such prior inconsistent statements may be taken for their truth. The defendant relies on State v. Tatum, 219 Conn. 721, 595 A.2d 322 (1991), and State v. Graham, 21 Conn. App. 688, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990), for the assertion that such a jury instruction is required. These cases, however, involve jury instructions that specifically instructed the jury that a prior inconsistent statement could not be used for its truth but only to impeach the witness. That is not the situation here. Here, the trial court instructed the jury to make its decision by considering “all of the testimony and exhibits received into evidence. . . . The evidence is the sworn testimony both on direct and cross-examination, the exhibits which have been received into evidence and anything that the lawyers agreed on.” The victim’s prior inconsistent statements were a part of that testimony to be considered as evidence. Absent a limiting instruction, evidence presented at trial is taken for its truth. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.5.1; 1 C. McCormick, Evidence (4th Ed. 1992) § 54, and cases cited therein. Here, unlike in State v. Tatum, supra, and in State v. Graham, supra, because there was no limiting instruction made, the jury was free to take the prior inconsistent statements made by the victim as true.

The trial court did instruct the jury on credibility of witnesses. In that portion of the charge, the trial court included as one of six criteria to consider in determining a witness’ credibility, an instruction that the jury may consider the consistency of a witness’ testimony. This, however, is not the same as a charge that the victim’s prior inconsistent statement may be used for impeachment purposes only. Absent a limiting instruction, the jury was free to take the victim’s prior inconsistent statement as true. We hold that an affirmative instruction that such prior inconsistent statements may be taken for their truth, while being a correct statement of the law, is not mandatory under State v. Whelan, supra.

B

The defendant next claims that the trial court improperly refused to admit the prior inconsistent written statement as an exhibit.

“When a witness admits making the statement, additional documentary evidence of inconsistency might be deemed to have been merely cumulative. State v. McDowell, 179 Conn. 121, 127, 425 A.2d 935 (1979).” State v. Graham, supra, 704; see also G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 61, 411 A.2d 31 (1979). Here, the witness victim admitted making the statement to the police. Defense counsel read the relevant portions of the statement to the jury several times and the trial court also permitted defense counsel to argue the statement’s truth to the jury. Therefore, the portions of the statement that the defendant claimed consisted of prior inconsistent statements were before the jury and the witness’ credibility had been called into question. Any further evidence of the inconsistency would have been cumulative. “The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. State v. Boles, [223 Conn. 535, 549, 613 A.2d 770 (1992)].” (Internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 258, 630 A.2d 577 (1993). Viewing the testimony of the victim in its entirety, we conclude that the trial court did not abuse its discretion in refusing to admit the victim’s written statement to the police as a full exhibit.

II

The defendant next claims that the trial court improperly required the defendant to sit at the defense table and to submit to a one-on-one identification in front of the jury. We disagree.

The following facts are necessary for the disposition of this claim. Prior to trial, the defendant filed a motion to suppress the out-of-court identification of a photograph of the defendant made by the witness in 1986. After the hearing on the motion to suppress, the defendant conceded that there was no evidence of suggestive procedures and, thus, that the out-of-court identification was admissible. The defendant also conceded that the out-of-court identification could not be claimed to have tainted any in-court identification. The defendant was not present at this suppression hearing.

The defendant then moved to suppress any in-court identification on the ground that such identification would lack probative value because of the eleven year time period since the date of the sexual assault. The defendant also expressed concern over the inherent suggestiveness of any in-court identification. The trial court denied the motion. The defendant then requested a waiver of his presence at trial. This request was denied.

The defendant asserts that the in-court identification of the defendant violated the defendant’s right to due process. Our Supreme Court has addressed the question of in-court identifications on a number of occasions. While it is true that in-court identifications are inherently suggestive, they are not impermissible. State v. Tatum, supra, 729. The United States Supreme Court has not established guidelines for in-court identification procedures. State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986), citing United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986). Nor has it “indicated that in-court identifications must be made in a way that is not suggestive. United States v. Domina, [supra].State v. Smith, supra. Additionally, where an out-of-court identification is not unconstitutional, a subsequent in-court identification need not be excluded. Id. “[T]he manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court. ... In such cases, the defendant’s protection against the obvious suggestiveness in any courtroom identification confrontation is his right to cross-examination ... or other practical procedures designed to lessen the degree of suggestiveness. . . .” (Citations omitted; internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 470, 619 A.2d 453 (1993).

In State v. Reddick, supra, the defendant contested the in-court identification procedure as impermissibly suggestive because, as here, the defendant was the only black man in the courtroom. There, our Supreme Court concluded that, because the defendant had not requested any less suggestive in-court identification procedures, the court could not “characterize the trial court’s denial of the motion to waive the defendant’s presence as an abuse of discretion.” Id., 471. Here, as in Reddick, the defendant did not request any less suggestive in-court identification procedure. In light of the fact that the defendant did not request any less suggestive in-court identification procedures, we conclude that the trial court properly denied the defendant’s motion to waive his presence at trial and allowed the in-court identification.

Ill

The defendant’s final claim is that the trial court improperly denied the defendant’s motion for a mistrial after the state, in its closing argument, indirectly commented on the defendant’s failure to testify. We disagree.

The following facts are pertinent to the disposition of this claim. The state, at the end of its closing argument, argued to the jury, “And I would ask you as you go over the evidence carefully. Think about what [the victim] said, her demeanor, your observations of her. And as you do, say the evidence proves that [the defendant] is guilty. [The defendant] should not be allowed in the courtroom to twist the evidence and distort the evidence because the evidence proves that he was guilty . . . .’’At this point, the defendant asked to be heard outside the presence of the jury. The trial judge said, “One moment.” The state then briefly concluded its closing argument. The trial judge immediately addressed the jury stating, “In anticipation of one thing that [defense counsel] may ask me to say to you, and I’m going to make my remarks to you about both closing arguments. [The assistant state’s attorney] just mentioned that [the defendant] may have tried to twist the testimony. His lawyer conducted cross-examination. [The defendant] didn’t try to twist anything. He did not testify in this case. He doesn’t try to twist anything. So, I should correct you on that.” The defendant then objected to the state’s closing argument.

Later, in the charge to the jury, the trial court stated, “[The defendant] has not testified here. And I’ve told you a number of times and you all agreed, and we’ve gone over this, that a defendant does not have to testify. And you all agreed it was a good idea, much better than when a person has to prove their innocence. And I don’t think that [the assistant state’s attorney] was trying to highlight the fact that a person did not testify. What she was calling attention to was the fact that on cross-examination these people were vigorously cross-examined, the witnesses for the state. There’s nothing wrong with that. There is nothing wrong with that. That’s what lawyers do. I’ve told you that. And that’s not [the defendant’s] trying to twist anything. That’s [defense counsel’s] trying to defend his client to the best of his ability. There’s nothing wrong with that.”

The defendant contends that the argument by the state was an indirect comment on the defendant’s failure to testify. It is well established that the state may not directly or indirectly comment on the defendant’s failure to testify. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). “The ultimate test of whether a prosecution argument indirectly and impermissibly comments on the defendant’s failure to testify is whether, because of its language and context, the jury would naturally and necessarily interpret it as comment on the defendant’s failure to testify. . . . A significant factor in applying this test is whether the argument calls for information or explanations which only the defendant could be expected to supply.” (Citations omitted.) State v. Allen, 9 Conn. App. 169, 179, 517 A.2d 1043 (1986), rev’d on other grounds, 205 Conn. 370, 533 A.2d 559 (1987).

Here, the state’s comment that the defendant was trying to twist the evidence is not one that the jury would “naturally and necessarily” have interpreted as a comment on the defendant’s failure to testify. It does not call for any information or explanations that only the defendant could be expected to supply. The statement did not call for any information at all; it is merely a comment on the defendant’s case. We conclude, therefore, that the trial court properly denied the defendant’s motion for a mistrial.

The judgment of the trial court is affirmed.

In this opinion the other judges concurred.

       Our review of the transcript reveals that defense counsel did not request an in-court lineup but claimed that the burden is on the state to request such an in-court lineup if the state wants to make an in-court identification.
      “[Defense Counsel]: The court is familiar with the Practice Book section where the state can move for a lineup. There’s a specific Practice Book section and that’s what the state should do if they want an in-court identification. They should move for some type of lineup. So, I am trying to waive the presence of my client. If that is denied, then I’m saying that the only circumstance by which he should be allowed in court for any identification is if the state conducts a lineup here in court.
      “The Court: Okay. Your request for waiver of his presence is denied. Your request for lineup is denied.
      “[Defense Counsel]: I’m not — I know Tatum gets into that. I want to be clear. And I disagree with Tatum. They sort of suggest that perhaps the defense should move for the lineup. I think the — but it’s an evidence thing. It’s somewhat dicta. I think the burden is on the state; that if they want an in-court identification, the burden should be on the state to move for a lineup and let the state conduct the lineup, because I basically don’t have the facilities. I don’t have the power to bring in people. I don’t have subpoena powers to bring in — fill a courtroom up of people.
      “The Court: You do not want to initiate a procedure that is going to be beneficial in the identification of your client.
      “[Defense Counsel]: Many people consider that a tactical decision but I think the burden should be on the state.”