author: BEACH, J.

text:
    EDDIE ORELLANA v. COMMISSIONER OF CORRECTION
    (AC 33295)
    DiPentima, C. X, and Beach and Sheldon, Js.
    Argued January 10
    officially released April 24, 2012

      Heather Golias, special public defender, for the appellant (petitioner).

      Toni M. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, former state’s attorney, and Brenda Hans, assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Eddie Orellana, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court erred by (1) rejecting his claim that his trial counsel rendered ineffective assistance, (2) rejecting his claim that his appellate counsel rendered ineffective assistance and (3) determining that his due process rights were not violated. We affirm the judgment of the habeas court.

The following factual and procedural history is relevant to our resolution of the petitioner’s appeal. As this court set forth in State v. Orellana, 89 Conn. App. 71, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005), the jury reasonably could have found the following facts. “Prior to April 15, 2002, Jessica Jusino had assisted Christopher Chute, a detective in the narcotics enforcement bureau of the New Britain police department, as a confidential informant in narcotics arrests. At approximately noon on April 15,2002, Jusino contacted Chute and offered to arrange to have heroin delivered to a specific location in New Britain. ... By means of her cellular telephone, Jusino subsequently contacted the [petitioner] and arranged for him to deliver 350 packets of heroin to her. The [petitioner] had sold heroin to Jusino, in a similar maimer, on prior occasions.” Id., 73-74. The petitioner and another individual went to the agreed on location in a car containing 350 packets of heroin that had a street value of approximately $3500. Id., 74-75.

On April 15, 2002, the petitioner was arrested and charged with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 and 2 la-278 (b) and possession of a controlled substance with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b). He was found guilty on all three counts following a jury trial and was sentenced to a total effective sentence of thirteen years incarceration.

The petitioner appealed from the judgment of conviction and this court affirmed the judgment. See id., 73. Our Supreme Court denied certification to appeal. See State v. Orellana, 274 Conn. 910, 876 A.2d 1202 (2005). By way of an amended petition for a writ of habeas corpus, the petitioner alleged that he was denied the effective assistance of trial counsel because his trial counsel failed (1) to request an instruction limiting the jury’s consideration of prior consistent statements made by Jusino, (2) to preserve that claim for review on appeal by not challenging the trial court’s failure to give such a limiting instruction sua sponte and (3) to investigate Jusino. The petitioner also alleged that his appellate counsel rendered ineffective assistance by failing to raise on appeal the claim that the trial court erred by failing to provide a limiting instruction and by failing to claim review of that unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. The petitioner further alleged that his due process rights were violated in that the prosecutor did not disclose to the petitioner’s trial counsel that Jusino received a lenient sentence in exchange for her testimony in the petitioner’s case.

On July 15, 2010, the habeas court conducted a trial and denied the petition for a writ of habeas corpus. The court concluded that the petitioner’s claim that his trial counsel rendered ineffective assistance by failing to request a limiting instruction and by failing to preserve the issue for appeal did not succeed “primarily for lack of a showing of prejudice.” It further concluded that the petitioner failed to demonstrate the benefit that any additional investigation of Jusino by his trial counsel would have provided. Additionally, the court rejected the petitioner’s claim that his appellate counsel rendered ineffective assistance. It declined to second guess the tactical decisions of the petitioner’s appellate counsel and concluded that Golding review and plain error review likely would not have been available. Finally, the court concluded that the petitioner failed to provide any credible evidence of the existence of an undisclosed agreement or understanding between Jusino and the state. Subsequently, the court granted the petitioner’s petition for certification to appeal. Additional facts will be set forth as necessary.

I

The petitioner first claims that the court erred by rejecting his claim of ineffective assistance of trial counsel. He argues that his trial counsel rendered ineffective assistance by failing to request a limiting instruction regarding Jusino’s prior consistent statements, to take an exception to the trial court’s failure to give such an instruction sua sponte and otherwise to preserve this issue for appeal. We disagree.

This court set forth the following relevant facts in our opinion in State v. Orellana, supra, 89 Conn. App. 71. Jusino testified on cross-examination, as she had on direct examination, that she purchased narcotics from the petitioner “ ‘three or four’ ” times just “ ‘two or three days’ ” prior to April 15, 2002. Id., 90. Jusino further testified that, although she had told Chute that she had purchased narcotics from the petitioner before, she did not mention those specific instances to Chute. Id., 90-91. On recross-examination of Jusino, the petitioner’s trial counsel asked Jusino again whether she had told Chute that she purchased narcotics from the petitioner on those specific instances. Id., 91. “Jusino reiterated that she had not told Chute those details about the prior narcotics transactions. On redirect examination, the prosecutor asked Jusino whether on April 15, 2002, she had informed Chute that she had purchased drugs from the [petitioner] ‘in the past, prior to April 15,’ and Jusino replied affirmatively. . . . The [petitioner’s trial counsel also] asked Jusino several questions concerning her motivation for cooperating with Chute and testifying at trial. . . .

“After Jusino left the witness stand, the prosecutor informed the court that he wanted to recall Chute to the witness stand. The prosecutor stated that he wanted to elicit testimony from Chute that on April 15, 2002, Jusino told Chute that she had purchased narcotics from the [petitioner] on prior occasions. The prosecutor reminded the court that earlier in the trial, it had precluded the state from eliciting such testimony as evidence of the [petitioner’s] knowledge or intent. The prosecutor argued that he now wanted to elicit the testimony for a different purpose, as Jusino’s prior consistent statement. Essentially, the prosecutor argued that the [petitioner] had attempted to impeach Jusino by suggesting that on April 15,2002, she did not disclose relevant information to Chute about her prior narcotics transactions with the [petitioner]. . . .
“The court permitted the state to recall Chute and to examine him in the manner requested. Chute testified that on April 15, 2002, Jusino told him that on prior days, the [petitioner] had sold and delivered heroin to her in the area of Park and Stanley Streets in New Britain.” Id., 91-93. This court concluded that the trial court properly exercised its discretion by admitting Jus-ino’s prior consistent statements and declined to reach the petitioner’s unpreserved challenge to the lack of a limiting instruction regarding said statements. Id., 95-96.

We first set forth the relevant law. “A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ....

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . .
“To satisfy the prejudice prong for ineffective assistance claims resulting from guilty verdicts, the petitioner must demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... A reasonable probability is one [that] is sufficient to xmdermine confidence in the result.” (Citations omitted; internal quotation marks omitted.) Greene v. Commissioner of Correction, 123 Conn. App. 121, 127-28, 2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010), cert. denied sub nom. Greene v. Amone, 563 U.S. 1009, 131 S. Ct. 2925, 179 L. Ed. 2d 1248 (2011).
“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 128 Conn. App. 564, 569, 17 A.3d 539, cert. denied, 301 Conn. 925, 22 A.3d 1278 (2011).

The petitioner cannot prevail on his claim that the habeas court improperly rejected his claim that his trial counsel was ineffective. He argues that his trial counsel should have requested a limiting instruction, taken an exception to the trial court’s failure to provide a limiting instruction regarding Jusino’s prior consistent statements, i.e., that the petitioner had sold drugs to her on prior occasions, or otherwise preserved the issue for appeal. The petitioner asserts that the lack of a limiting instruction allowed the jury to use the statements as criminal propensity evidence; that is, the jury could have concluded that, because the petitioner had sold drugs to Jusino before, he was guilty of the charged offenses.

The habeas court concluded that the petitioner’s present claim “fail[ed] primarily for lack of a showing of prejudice.” It noted that other testimony revealed that Jusino had purchased drugs from the petitioner on prior occasions, and, accordingly, the challenged prior statements were cumulative. Additionally, the court reasoned that the trial court instructed the jury that the state’s evidence that the petitioner sold heroin to Jusino in the past was admitted solely to show the existence of intent and knowledge by the petitioner and that such evidence was not permitted to be considered for criminal propensity. Because absent clear evidence to the contrary, juries are presumed to follow courts’ instructions; State v. Nance, 119 Conn. App. 392, 405, 987 A.2d 376, cert. denied, 295 Conn. 924, 991 A.2d 569 (2010); the court concluded that the petitioner failed to show prejudice.

We agree with the court’s reasoning. The petitioner has not demonstrated that his trial counsel’s failure to request a limiting instruction regarding Jusino’s prior consistent statements logically undermines confidence in the integrity of the result of the trial. The evidence was cumulative of other testimony and involved statements Jusino made to Chute, the thrust of which was already in evidence through other testimony. Additionally, the testimony was subject to the more general limiting instruction on prior misconduct. Likewise, for these reasons, the petitioner has not shown that his trial counsel’s failure to preserve the issue for appeal caused prejudice; that is, the petitioner has not demonstrated that even if the issue was preserved for appeal, there would have been a reasonable probability of success.

n

The petitioner next claims that the court erred by rejecting his claim of ineffective assistance of his appellate counsel. He contends that counsel was ineffective by failing to raise the unpreserved claim regarding the omission of a limiting instruction as to Jusino’s prior consistent statements and by failing to claim review of that unpreserved claim pursuant to State v. Golding, supra, 213 Conn. 233, or the plain error doctrine. See Practice Book § 60-5. We disagree.

“The [performance prong] of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . The right to counsel is not the right to perfect representation. . . . [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions. . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. . . . Most cases present only one, two, or three significant questions. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones. . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 131 Conn. App. 805, 808-809, 29 A.3d 166 (2011).

As stated in part I of this opinion, our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is clearly erroneous as to the facts found and plenary as to the legal conclusion reached, to wit, whether the petitioner suffered a violation of his constitutional rights. Myers v. Commissioner of Correction, supra, 128 Conn. App. 569.

The petitioner’s appellate counsel testified at the habeas trial that he did not believe that the claim that the trial court did not give a limiting instruction regarding Jusino’s prior consistent statements to Chute was viable. The habeas court found that the petitioner’s appellate counsel chose to present only those claims that he believed were strongest. This finding is not clearly erroneous, and as the court noted, we “will not, with the benefit of hindsight, second guess the tactical decisions of appellate counsel.” (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

As we discussed in part I of this opinion, we do not conclude that the petitioner’s limiting instruction claim had a reasonable probability of prevailing on appeal. Accordingly, because the claim lacked merit, the petitioner cannot meet his burden of showing that his appellate counsel’s conduct fell below the level of reasonably competent representation. Likewise, review pursuant to State v. Golding, supra, 213 Conn. 233, or the plain error doctrine likely would have been denied; if review were granted, it likely would not have succeeded on the merits for reasons previously stated. The petitioner cannot sustain such burdens, and, accordingly, we reject his claim.

m

The petitioner finally claims that his due process rights pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), were violated when the prosecutor did not disclose to the petitioner’s trial counsel that Jusino received a favorable sentence in exchange for her testimony during the petitioner’s trial. We disagree.

“In [Brady v. Maryland, supra, 373 U.S. 83] . . . the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment].” (Internal quotation marks omitted.) Walker v. Commissioner of Correction, 103 Conn. App. 485, 492, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007). A claim premised on a Brady violation in the context of an alleged undisclosed agreement or understanding between a cooperating witness and the state presents a mixed question of law and fact. The questions of fact axe subject to review under the clearly erroneous standard, and the court’s conclusion that the petitioner was not deprived of his due process rights is subject to plenary review. See Elsey v. Commissioner of Correction, 126 Conn. App. 144, 154, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011). “The prerequisite of any claim under the Brady, Napue [v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)] and Giglio [v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972)] line of cases is the existence of an undisclosed agreement or understanding between the cooperating witness and the state.” State v. Ouellette, 295 Conn. 173, 186, 989 A.2d 1048 (2010).

The petitioner’s claim fails because the court found that the petitioner had failed to “[offer] any credible evidence of an undisclosed agreement or understanding between Jusino and the state.” The petitioner’s assertion that Jusino received favorable treatment in exchange for her testimony in his case was surmise; even the facts on which the surmise is based are speculative. In fact, the court found: “[The prosecutor’s] offer to speak to a judge on Jusino’s behalf, Jusino’s receipt of money from Chute following the seizure of the drugs from the petitioner’s car and Jusino’s criminal record had all been disclosed to [the petitioner’s trial counsel] prior to Jusino’s testimony at the petitioner’s criminal trial.” Accordingly, we readily conclude that the court’s finding is not clearly erroneous and that the court did not improperly conclude that the petitioner’s due process rights were not violated.

The judgment is affirmed.

In this opinion the other judges concurred.

       The spelling of the petitioner’s first name has varied from “Eddy” to “Eddie” throughout the proceedings in the underlying criminal case, direct appeal and habeas case.

       See Strickland v. Washington, supra, 466 U.S. 687.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JASON GONZALEZ
    (AC 32805)
    DiPentima, C. J., and Alvord and West, Js.

      Argued January 17
    officially released April 24, 2012

      Glenn W. Falk, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Richard Colangelo, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Jason Gonzalez, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8 and 53a-55a. On appeal, the defendant claims that the evidence at trial was insufficient to support the jury’s verdict. Specifically, the defendant argues that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal. We reverse in part the judgment of the trial court.

Only two witnesses who were at the scene testified at trial. First, Kenny Jackson testified that on the evening of December 25, 2007, he was celebrating Christmas with friends in a third floor apartment located in Building 13 of the Roodner Court housing complex in Norwalk. Jackson and his friends were drinking alcohol, and at approximately 9 or 10 p.m., he went down to the first floor of the building to purchase marijuana and crack cocaine. When Jackson arrived downstairs, he encountered Donald Wilson, the defendant and some women. Jackson testified that he asked the men, “[w]ho’s straight?” meaning that he was looking to pin-chase drugs. Wilson told Jackson that he had drugs to sell. Wilson and Jackson went upstairs to the second floor of the building to conduct the transaction.

On the second floor, the victim was also celebrating Christmas with his family in his mother’s apartment. After learning about the drug transaction going on in the hallway, the victim came out of the apartment into the hallway. Jackson testified that the victim then gave Jackson and Wilson a look signifying his disapproval of the transaction. Jackson and Wilson returned downstairs to the first floor. The victim followed them downstairs and gave them another disapproving look. Jackson told Wilson that they should wait until the victim left before conducting the transaction.

Jackson then testified that the victim then began walking toward the front door of the building, followed by Jackson and Wilson. The defendant was in the hallway near the front of the building. As the victim walked out of the building, the defendant said, “Merry Christmas.” When the victim did not respond, the defendant called him an “asshole.” The victim reentered the building and asked the defendant what he had said to him. In an attempt to calm the situation, Jackson told the victim, “[the defendant] didn’t say anything to you.” The defendant then pulled out a gun and said, “Yeah, I didn’t say anything. I didn’t say anything to you.” The victim grabbed the gun, and he and the defendant began to struggle for control of the weapon. Jackson fled the scene.

The second witness was Frederick Paulk, the victim’s brother (Paulk), who testified that he heard gunshots a couple minutes after the victim left the second floor apartment. Paulk exited the apartment and looked over the balcony, where he observed the victim and the defendant struggling. Paulk saw a woman holding the defendant around the waist and telling him to stop. Then, Paulk observed Wilson pointing a gun at the victim. Paulk told Wilson to stop, saying, “[d]on’t do it.” The defendant and the victim broke loose from each other and the victim fell against a wall. Paulk saw Wilson shoot the victim and then back out of the building, using the defendant as a shield. Paulk did not observe anyone other than Wilson with a gun. Finally, Gerard Petillo, a forensic science examiner, testified that he was unable to determine whether the bullets recovered from the victim’s body and from the crime scene were fired from the same firearm. He also testified, however, that one Glock semiautomatic firearm fired the shell casings that were recovered from the scene.

The defendant was arrested and, following a jury trial, he was convicted of manslaughter in the first degree with a firearm as an accessory in violation of §§ 53a-8 and 53a-55a. The court sentenced the defendant for his conviction of criminal possession of a firearm to five years to serve, two years of which was the mandatory minimum. The court sentenced the defendant for his conviction of carrying a pistol without a permit to five years to serve, one year of which was the mandatory minimum. The sentences for the conviction of criminal possession of a firearm and carrying a pistol without a permit were to run consecutively with each other, but concurrently with the manslaughter conviction. The court sentenced the defendant for the manslaughter conviction to a term of forty years to serve, five years of which was the mandatory minimum. Finally, the court imposed a sentence enhancement of five years for the commission of an A, B or C felony with a firearm in violation of General Statutes § 53-202k, which was to run consecutively to the previously imposed sentences. Thus, the court imposed a total effective sentence of forty-five years to serve, ten years of which was the mandatory minimum. This appeal followed.

The defendant claims that the evidence at trial was insufficient to support the jury’s verdict of guilty of manslaughter in the first degree with a firearm as an accessory. We agree.

“We begin by setting forth the appropriate standard of review. Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . .
“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .
“[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such consideration as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Citations omitted; internal quotation marks omitted.) State v. Billie, 123 Conn. App. 690, 695-96, 2 A.3d 1034 (2010).

In order to prove that a defendant is guilty of manslaughter in the first degree with a firearm as an accessory under §§ 53a-8 and 53a-55a, “the state must prove that the defendant, acting with the intent to cause serious physical injury to another person, intentionally aided a principal offender in causing the death of such person or of a third person, and that the principal, in committing the act, used, carried, or threatened to use a firearm.” (Emphasis added.) State v. Gonzalez, 300 Conn. 490, 496, 15 A.3d 1049 (2011). “To be guilty as an accessory, one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it. . . . Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there.” (Citation omitted; internal quotation marks omitted.) State v. Ashe, 74 Conn. App. 511, 517, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003).

“Since under our law both principals and accessories are treated as principals ... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms ... a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the [conviction] must stand.
“To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime. . . . Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the [principal] must be distinguished from the criminal intent and community of unlawful purpose by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it.” (Citation omitted; internal quotation marks omitted.) State v. Conde, 67 Conn. App. 474, 484, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

Here, there was insufficient evidence to prove beyond a reasonable doubt that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson, the principal, in committing manslaughter in the first degree with a firearm. The state argues that the defendant was properly convicted upon sufficient evidence, both direct and circumstantial, and from the “intricate chain of eminently reasonable and logical inferences flowing from the evidence.” We disagree. The record is devoid of any evidence that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson in the commission of the crime of manslaughter. Moreover, there were no facts before the jury from which it reasonably could have inferred that the defendant engaged in such conduct. The testimony adduced at trial indicated that the defendant pointed a gun at the victim, and the two then began struggling for the weapon. The record contains no evidence, however, as to how the gun came into Wilson’s possession, nor any evidence of any conduct by the defendant which reasonably could be interpreted as assisting Wilson.

The state argues that Wilson and the defendant were associated in the drug trade, that the victim was interfering with a drug transaction and that the defendant aided Wilson in shooting the victim by “providing the weapon and introducing it into the situation.” First, the only circumstantial evidence suggesting that the defendant was associated in the drug trade with Wilson was that they were together when Wilson told Jackson that he would sell him drugs and that the defendant possessed a gun and pointed it at the victim. The state cites cases reciting the well established correlation between drug dealing and firearms. See, e.g., State v. Cooper, 227 Conn. 417, 426 n.5, 630 A.2d 1043 (1993). We note, however, that this court has stated that in Cooper and cases like it, guns, or testimony about the presence of guns, were properly admitted into evidence because the evidence was “relevant and material for reasons other than a well established correlation between drug dealing and firearms.” (Emphasis added; internal quotation marks omitted.) State v. Mozell, 36 Conn. App. 672, 676, 652 A.2d 1060 (1995); see id., 677-78 (court improperly admitted gun into evidence in absence of any evidence tying gun to alleged conspiracy, but admission was harmless).

Moreover, the defendant’s presence near Wilson at the time Jackson inquired about purchasing drugs is insufficient to establish his involvement in the transaction. See, e.g., State v. Fair, 118 Conn. App. 357, 362, 983 A.2d 63 (2009) (defendant’s mere presence not enough to support inference of dominion or control for conviction of illegal possession of narcotics, but where other pieces of evidence tie defendant to dominion and control, finder of fact may consider presence and draw inferences from that presence and other circumstances linking defendant to crime); State v. Madison, 116 Conn. App. 327, 336, 976 A.2d 15 (presence in high crime area alone insufficient to establish reasonable and articula-ble suspicion for purposes of fourth amendment), cert. denied, 293 Conn. 929, 980 A.2d 916 (2009); State v. Rodriguez, 11 Conn. App. 140, 149, 525 A.2d 1384 (1987) (mere fact, without more, that person is associating with or in presence of others who are suspected of criminal activity does not establish probable cause to arrest or search that person).

Although the defendant brandished a gun at the victim, the evidence suggests that this event occurred independently of the drug transaction. There was no evidence that the defendant participated at all in the drag transaction. Jackson testified that the defendant said, “Merry Christmas,” and the victim did not respond, which angered the defendant, prompting him to call the victim an “asshole.” This exchange, in turn, led to the altercation between the defendant and the victim. The evidence suggests that the defendant and Wilson were associated with each other on the night of the shooting, but there is no evidence inviting a reasonable inference that this association was related to the drag trade. State v. Green, 261 Conn. 653, 672-73, 804 A.2d 810 (2002) (evidence insufficient to convict defendant of conspiracy to commit murder where only evidence that could support inference of conspiracy was that defendant and confederates were friends, defendant may have had dispute with victim and defendant and confederates simultaneously shot at victim). Thus, in the absence of any evidence tying the defendant to the drug transaction, we cannot conclude that the evidence was sufficient for the jury to infer that the defendant was associated in the drug trade with Wilson.

Second, the evidence does not support a reasonable inference that the defendant aided Wilson merely by introducing the weapon into the situation. Although the state cites State v. Turner, 252 Conn. 714, 751 A.2d 372 (2000), in support of this argument, that case is inapposite. In Turner, our Supreme Court concluded that there was sufficient evidence to establish that the defendant had the requisite intent to kill the victim, as required for a conviction of murder as an accessory. Id., 747. Our Supreme Court stated that the jury reasonably could have found that the defendant aided the principal because on the night of the shooting, the defendant began “ ‘dancing around’ ” on the street comer opposite from the victim. Id., 749. Our Supreme Court then stated that the jury reasonably could have concluded that the defendant’s unusual behavior was “meant to distract the victim and bystanders while [the principal] approached from behind to shoot the victim.” Id. In the present case, the defendant did not provide any assistance to the principal. Although the defendant pointed a gun at the victim and then stmggled for control of the weapon, this conduct alone does not support a reasonable inference that he, by so acting, intentionally aided the principal in killing the victim.

In addition, our Supreme Court in Turner stated that the jury reasonably could have inferred that the defendant gave the principal the weapon used in the shooting. A witness testified in Turner that the shooter used a weapon of the same type that had been in the defendant’s possession a week before the shooting. Id., 749-50. Here, the gun that the defendant pointed at the victim was the same gun that Wilson used to shoot the victim. There is no evidence, however, that would support a reasonable inference that the defendant gave the weapon to Wilson. Unlike in Turner, where the defendant gave the principal the weapon in advance of the crime, in this case the most the evidence suggests is that Wilson acquired the weapon in the midst of the struggle between the victim and the defendant. See State v. Green, supra, 261 Conn. 671-73; State v. Cobbs, 203 Conn. 4, 13, 522 A.2d 1229 (1987) (evidence insufficient to sustain conviction of felony murder where no witness claimed to have seen defendant commit any crime, no knife was recovered from defendant and no proceeds of underlying robbery were discovered on defendant); compare State v. Foster, 202 Conn. 520, 536, 522 A.2d 277 (1987) (evidence sufficient to convict defendant of criminally negligent homicide as accessory where defendant intentionally aided principal by giving him knife); State v. Harris, 49 Conn. App. 121, 131-32, 714 A.2d 12 (1998) (evidence sufficient to sustain conviction of manslaughter as accessory where defendant was gang leader, defendant gave weapon to gang member and directed him to shoot victim). Thus, we conclude that there was insufficient evidence that the defendant intentionally aided Wilson in shooting the victim.

We recognize that “it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Na’im B., 288 Conn. 290, 296, 952 A.2d 755 (2008). “The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Emphasis added; internal quotation marks omitted.) State v. Coleman, 304 Conn. 161, 169, 37 A.3d 713 (2012). Applying this rule, we conclude that the jury could not have inferred reasonably and logically that there was sufficient evidence to convict the defendant of manslaughter in the first degree with a firearm as an accessory.

The judgment is reversed with respect to the defendant’s conviction of manslaughter in the first degree with a firearm as an accessory and with respect to the sentence enhancement pursuant to § 53-202k, and the case is remanded with direction to render judgment of acquittal on that charge and to resentence the defendant on the remaining charges; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant also was convicted of criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant does not challenge his conviction of these counts on appeal.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-55a (a) provides in relevant part: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. ...”
      General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       The defendant also claims that prosecutorial impropriety in closing argument deprived him of a fair trial. Because we conclude that the evidence was insufficient to support the jury’s verdict, we do not address this claim.

       The defendant also argues that there was insufficient evidence that he intended to cause serious physical injury to the victim. Because we conclude that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal, we do not address this claim.

       We note that because we must reverse the defendant’s conviction of manslaughter, we must also vacate the sentence enhancement which the court imposed pursuant to § 53-202k, because the defendant’s conviction of criminal possession of a firearm in violation of § 53a-217, a class D felony, and carrying a pistol without a permit in violation of § 29-35 (a), do not constitute A, B or C felonies as required by § 53-202k.


author: PELLEGRINO, J.

text:
    LUMI ZHUTA v. REMO TARTAGLIA
    (AC 33560)
    DiPentima, C. J., and Sheldon and Pellegrino, Js.

      Argued March 8
    officially released April 24, 2012

      David A. Hill, Jr., for the appellant (defendant).

      Tracey E. Hardman, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant, Remo Tartaglia, appeals from the judgment of the trial court rendered in favor of the plaintiff, Lumi Zhuta, finding that the defendant owed $60,000, together with $32,800 in interest and $9000 in attorney’s fees, on a promissory note the defendant executed in favor of the plaintiff. On appeal, the defendant claims that because the record shows that the plaintiff considered the balance due on the promissory note to be only $20,000, the trial court’s finding that a $60,000 balance was due on the note was clearly erroneous. We disagree and accordingly affirm the judgment of the trial court.

The trial court made the following findings of fact. On December 1, 1999, the plaintiff lent the defendant $200,000. This loan was memorialized by a promissory note executed on December 1, 1999, by the defendant to the plaintiff. The terms of the note required the defendant to pay to the plaintiff simple interest at the rate of 8 percent per annum, payable monthly, and to repay the full principal balance by November 1, 2002. The note also required the defendant to pay attorney’s fees should collection on the note be required.

Within two weeks of the execution of the note, the defendant paid the plaintiff $140,000. This prompted the parties to make handwritten amendments to the note to reflect the balance due to be $60,000 and that the due date for repayment of that balance was November 1, 2001. The defendant thereafter paid monthly interest on the note beyond its due date, and through June, 2004; however, the defendant never paid the principal amount of $60,000. The trial court found that, while there was evidence of other transactions between the parties as members of other corporate entities, those transactions had no relevance to the claim under the note, and that the balance due on the note was $60,000. The trial court therefore rendered judgment in favor of the plaintiff.

The defendant submits a single claim on appeal: that the trial court’s finding of a $60,000 balance due on the promissory note was clearly erroneous because the plaintiff testified that he believed that a payment of $40,000 made to him by the defendant in 2001 reduced the principal balance on the note to $20,000.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted.) Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

We note at the outset that the defendant’s interpretation of the evidence in the record has no meaningful bearing on our analysis. “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Id., 222.

Although the defendant concedes that the plaintiffs testimony stating that he believed that the balance due on the promissory note had, in fact, been reduced to $20,000 by the defendant’s $40,000 payment to him in 2001 was not a binding judicial admission, the defendant nonetheless asserts that the plaintiffs testimony to that effect was, at the very least, a nonbinding evidentiary admission, that, taken together with other trial evidence, demonstrates that the court’s finding of a $60,000 balance due on the promissory note was clearly erroneous.

Our independent review of the record reveals that it sufficiently supports the trial court’s finding that the balance due on the promissory note was $60,000 and that other transactions between the parties after the promissory note was executed were undertaken in their capacities as members of other corporate entities, which were unrelated to the debt arising under the promissory note.

After the promissory note was executed between the parties in their personal capacities, a corporate entity of which the plaintiff was a member called J & L Enterprises, LLC, which operated a business called the Pie Plate, entered into a written lease agreement with Waterbury Shopping Center, LLC, another corporate entity, of which the defendant was a member. The trial court was aware of transactions between the parties under this lease agreement but specifically found that they “had no reference to the claim to enforce payment of the note” and that the defendant in his individual capacity “did not provide any evidence that he paid [the plaintiff] the principal and interest due on the note he executed made payable to [the plaintiff].” These are findings of facts that can be overturned only if they are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 221. The record supports the trial court’s findings.

The defendant asks this court to discern from record testimony that he not only remitted $40,000 to the plaintiff, but, in addition, to determine that both parties believed that this payment was made in partial satisfaction of the promissory note. The defendant’s reassertion of this claim implores this court to make findings of fact that are outside our scope of review. As our Supreme Court has stated, “[w]e cannot retry the facts or pass upon the credibility of the witnesses.” Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975); see Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972). “It is well settled that this court cannot find facts, nor, in the first instance, draw conclusions of facts from primary facts found, but can only review such findings to see whether they might legally, logically and reasonably be found.” (Internal quotation marks omitted.) Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982). The findings of the trial court are supported by the evidence, and the defendant has not met his burden of showing that the trial court’s decision was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    MARIANNE HOWATSON v. RICHARD FRIEDBERG
    (AC 32886)
    Lavine, Espinosa and West, Js.
    Argued March 14
    officially released April 24, 2012

      Richard Friedberg, pro se, the appellant (defendant).

      Gary I. Cohen, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The self-represented defendant, Richard Friedberg, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Marianne Howatson. At points in his brief, the defendant asserts that the court abused its discretion, the evidence does not support the court’s financial awards and the court was biased against him. The defendant, however, provided no legal analysis to support those assertions. We therefore deem any claim the defendant sought to present to this court abandoned. See Duve v. Duve, 25 Conn. App. 262, 264, 594 A.2d 473 (“claim was neither factually developed, nor supported by case citations”), cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992).

“[T]he right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Id. It is well settled that appellate courts “are not required to review claims that are inadequately briefed. . . . We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn. App. 601, 603, 10 A.3d 59 (2010).

The judgment is affirmed.


author: BORDEN, J. ALVORD, J.,

text:
    ADRIANA RUIZ ET AL. v. VICTORY PROPERTIES, LLC
    (AC 32852)
    Robinson, Alvord and Borden, Js.

      Argued December 1, 2011
    officially released May 1, 2012

      Michael T. Petela, with whom, on the brief, was Angelo Cicchiello, for the appellant (plaintiffs).

      Frederick M. Vollono, for the appellee (named defendant).
   Opinion

BORDEN, J.

The plaintiffs, Adriana Ruiz and Olga Rivera, appeal from the grant of summary judgment in favor of the defendant Victory Properties, LLC. On appeal, the plaintiffs claim that the trial court improperly concluded that, under the undisputed facts of the case, the defendant owed them no duty. We agree with the plaintiffs and, accordingly, reverse the judgment of the trial court.

The plaintiffs brought this complaint in negligence, and moved for a prejudgment remedy, which the court, after an evidentiary hearing, granted in part. Thereafter, the defendant moved for summary judgment, which the court granted. This appeal followed.

The record discloses the following undisputed facts, as stated by the trial court in its memorandum of decision on the motion for summary judgment. “On the date of this incident, May 14, 2008, the defendant . . . was the owner and landlord of a six-family apartment building located at 138 North Street, New Britain, Connecticut. Saribel Cruz resided in a third floor apartment with her son Luis who was ten years old. Ms. Cruz is the aunt of Adriana Ruiz, who was seven years old. Adriana resided in another apartment with her mother, Olga Rivera. Some buckets, trash, rocks, and broken concrete pieces were located in the backyard of the building. Prior to the incident on May 14, 2008, one tenant had complained to the landlord about the conditions of the backyard.

“On the date of the incident, a number of the children were playing in the backyard, watched by a number of adults. It was common for children who lived in the building, often joined by other neighborhood children, to play in the backyard, where they would sometimes ride or park their bikes, and where they would sometimes use a basketball hoop that had been set up. On this pleasant May day, Luis Cruz decided to see if he could split a rock by throwing it to the ground. He took a large rock from the backyard up to his family’s third floor apartment and threw it from the window or [the] balcony to the ground. He saw his cousin Adriana below and yelled to her to get out of the way, but the rock hit her in the head, and she was badly injured.”

The court also noted the following in a footnote regarding the object that hit Ruiz: “Olga Rivera has submitted an affidavit in opposition to summary judgment in which she states, ‘upon information and belief . . . Luis Cruz, a minor child, picked up a loose piece of concrete or cinder block’ and dropped it from the balcony, hitting Adriana. For purposes of summary judgment, an affiant is not permitted to offer evidence upon information or belief, but rather must offer evidence as would be admissible at trial. The transcripts of witnesses at the prejudgment remedy hearing all describe the object thrown by Luis as a ‘rock.’ From the photographs attached as exhibits to the plaintiffs opposition papers, and from the description of the photographs by Saribel Cruz, it appears that the families in the building may have used the term ‘rock’ to describe either an actual rock or any large heavy piece of concrete. For consistency, the court will use the term ‘rock,’ as have the witnesses in the exhibits.”

At the outset, we note our standard of review. “Summary judgment is appropriate when the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Thus, because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary . . . .” (Internal quotation marks omitted.) Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 572-73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006).

I

The plaintiffs contend that the court improperly granted the defendant’s motion for summary judgment on the ground that the defendant owed no duty to the plaintiffs. We agree.

“The existence of a duty of care is a prerequisite to a finding of negligence.” Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand.” (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). “If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994).

Our Supreme Court has stated that “the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998).

“In negligence cases [such as the present one] in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty [owed] to the plaintiff.” Malloy v. Colchester, 85 Conn. App. 627, 633-34, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004). “The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor’s responsibility should not extend to the theoretically endless consequences of the wrong. . . . Even where harm was foreseeable, [our Supreme Court] has found no duty when the nexus between a defendant’s negligence and the particular consequences to the plaintiff was too attenuated.” (Internal quotation marks omitted.) Id., 634. Put another way, “[i]t is a well established tenet of our tort jurisprudence that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 575.

Ordinarily in tort law, whether a defendant’s conduct is tortious is determined by the jury; the jury decides whether the defendant acted reasonably, which ordinarily includes, either explicitly or implicitly, whether the defendant should have reasonably foreseen the adverse consequences of its conduct. DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 620-21, 2 A.3d 963, cert. granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010). When, however, a court determines that no tort duty exists because the consequences of the alleged tortfeasor’s conduct were too remote to be reasonably foreseeable, what the court is doing is concluding, as a matter of law, that no reasonable juror could find that the defendant should have foreseen the adverse consequences of its conduct. Thus, the question of foreseeability is, in the first instance, a jury question on the issue of negligence, and only becomes a legal question for the court when the defendant claims that the consequences of its conduct were not reasonably foreseeable and, therefore, it owed no duty of care to the plaintiffs.

The plaintiffs argue that the court improperly framed the issue as it did, claiming that the question of duty is based on the foreseeability of the general nature of the harm and not the exact manner in which the harm occurred. In response, the defendant argues that it owed no duty to the plaintiffs, as a matter of law, because this accident was caused by another child, and was simply unforeseeable. We agree with the plaintiffs.

The court, in its memorandum of decision, as the plaintiffs argue, based its conclusion of no duty on the contention that the harm suffered by Ruiz was not foreseeable. In order to establish the element of duty, however, the focus of the inquiiy is not on the specific manner in which the harm occurred but instead on whether the general nature of the harm which Ruiz suffered was foreseeable. “[S]o long as harm of the general nature as that which occurred is foreseeable there is a basis for liability even though the manner in which the accident happens is unusual, bizarre . . . .” (Internal quotation marks omitted.) Pisel v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980). Therefore, whether a landlord, in the defendant’s position, should have been able to foresee the exact manner in which ten year old Luis Cruz would play with the large rock, and ultimately injure Ruiz, is not the proper inquiry.

In this instance, the inquiry regarding foreseeability should depend on whether a reasonable landlord, knowing that dangerous debris is present in a common area where children are known to play, would be able to foresee that a child was likely to suffer harm of the general nature that Ruiz suffered here as a result of children playing in that very area. The proper application of the doctrine that the court must focus on the general nature of the harm suffered, and not the specific manner in which the harm occurred, depends in part on the level of generality with which the nature of the harm is defined. In other words, the more specifically the harm is defined the more it becomes the specific manner in which the harm occurred. For example, in the present case, one could define the harm along the following spectrum of generality: getting hurt by a large rock; getting hurt by a large rock thrown by another child; getting hurt by a large rock thrown by another child from the third floor of the apartment building.

Although a jury might find it not foreseeable that a ten year old child would carry a large rock up to a third floor balcony, throw it off, and hit someone below, defining the harm of the general nature in that way as a matter of law would be too specific; it would transform the general nature of the harm into the specific way in which the harm occurred. Instead, we conclude that the appropriate level of generality in the present case is getting hurt by a large rock thrown by another child, and that was certainly foreseeable. Put another way, we think that this case is close enough to the margin of reasonable foreseeability that it would be inappropriate to foreclose the foreseeability inquiry as a matter of law.

The defendant argues, however, that to find a duty under the facts of this case would drastically change the dynamic of the relationship between landlord and tenant, as it would make a landlord strictly liable for the actions of the children of their tenants while they are playing in common areas of the property. The defendant further argues that our jurisprudence is typically against extending a duty in situations where a defendant has no control over the person causing the injury, and that here Ruiz’ injuries were due to the intentional act of Luis Cruz, a person over whom the defendant had no control. In support of that argument the defendant relies heavily on case law that discusses situations where a landlord does not owe its tenants a duty to protect them from injuries caused by the intentional or criminal acts of a third party. The defendant’s arguments, however, are unpersuasive and mischaracterize the plaintiffs’ claim.

Under the facts of this case, and in particular in light of the fact that Luis Cruz yelled out a warning before he let the rock drop, it is clear that he did not intentionally harm Ruiz. Furthermore, the plaintiffs have not alleged, and are not claiming, that the defendant failed to protect them from the intentional acts of Luis Cruz. They are claiming that the defendant neglected its property and left it in a dangerous condition that caused a foreseeable injury to Ruiz.

The defendant permitted the backyard of its apartment building to remain Uttered with dangerous debris knowing that that very location was used as a play area for children who resided in the building. The defendant can be charged with notice of the dangerous nature of the area, because the summary judgment court found it to be undisputed that one tenant had complained to the defendant about the conditions of the backyard. Nonetheless the yard contained, as the summary judgment court found to be undisputed, “[s]ome buckets, trash, rocks, and broken concrete pieces . . . .’’Ajury could find it foreseeable that one child would pick up a piece of the debris and throw it, thus injuring another child.

In determining whether a duty of care exists, the second consideration is whether there are reasons of public policy to extend such a duty to the defendant under the circumstances. “[I]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.” (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005). “[A] totality of the circumstances rule ... is most consistent with the public policy goals of our legal system, as well as the general tenor of our tort jurisprudence.” Id., 121. We apply these four factors and conclude that imposing a duty of care on the defendant under the circumstances of the present case is not inconsistent with public policy.

Under the first factor, the court looks to the normal expectations of the parties in the activity under review. The activity under review here is the use of a common area of an apartment building by tenants and their children. The plaintiffs argue that the defendant failed to conform to the reasonable expectations of the tenants, in that the common areas of an apartment building should be adequately maintained so that they are safe for tenants and their families. The plaintiffs further posit that there is a strong public policy that landlords need to be held accountable when they ignore the responsibility of maintaining a safe environment. It is not unreasonable for a tenant to expect a landlord to maintain the common areas of its properties and keep them free of dangerous debris, especially when a landlord has knowledge that children often play in the area in question. Additionally, it is unreasonable for a landlord to expect that it can continue to conduct its business, while ignoring its obligation to maintain common areas and address tenant safety concerns.

The second factor, encouraging participation in the activity, also favors imposing a duty. “[This] factor requires [consideration of] the benefits, if any, of encouraging the underlying activity . . . .” Seguro v. Cummiskey, 82 Conn. App. 186, 196, 844 A.2d 224 (2004). As a matter of public policy, it is desirable to promote the maintenance of common areas in properties such as the apartment building in this case, so that children can socialize and play in safe environments. A finding against the imposition of a duty would discourage parents from allowing their children to play and utilize the common areas of apartment buildings. It would also require tenants in such dwellings to exercise a much higher degree of vigilance in monitoring their children’s activities in order to prevent exposure to potentially dangerous materials. There is certainly a strong public policy in favor of facilitating and encouraging children to play and socialize without forcing an overly heightened degree of vigilance upon parents.

The third factor, which is the likelihood that imposing such a duty would lead to increased litigation, is an admittedly weaker factor; it does not, however, compel the conclusion that imposing a duty of care on the defendant is inconsistent with public policy. Extending liability to those landlords or property owners who fail to use reasonable care to maintain a safe environment in common areas in order to protect their tenants from foreseeable harm, will not unnecessarily increase litigation but, rather, will provide an incentive to landlords and property owners to act responsibly toward their tenants.

Finally, the fourth factor, concerning the decisions of other jurisdictions, is not particularly helpful because there are multiple ways in which our sister states handle the question of duty with respect to premises liability. As there is no compelling reason grounded in public policy to shield the defendant from its duty, we therefore conclude that the defendant owed the plaintiffs a reasonable duty of care.

The dissent concludes, to the contrary, that “the defendant cannot be held liable to the plaintiffs for the harm caused by an eighteen pound concrete cinder block being dropped from a third story balcony onto the head of Ruiz.” We disagree.

First, it is not undisputed that the rock that hit Ruiz weighed eighteen pounds, or that it was even a concrete cinder block. As we indicated, although there was some testimony to that effect before the prejudgment remedy court, the summary judgment court did not determine that factual assertion to be undisputed, and in fact simply referred to the item as a large rock. Second, even if it were ultimately determined to have weighed eighteen pounds, we think that the weight of the rock and the place from which it was thrown are precisely the types of foreseeability inquiries that are more appropriately left to the jury, rather than to the court as a matter of law.

n

In addition, to the extent that the court relied on the doctrine of superseding cause to reach its decision, the plaintiffs argue that the court improperly applied that doctrine. We agree.

In Barry v. Quality Steel Products, Inc., 263 Conn. 424, 436-39, 820 A.2d 258 (2003), our Supreme Court stated: “[T]he doctrine of superseding cause no longer serves a useful purpose in our jurisprudence when a defendant claims that a subsequent negligent act by a third party cuts off its own liability for the plaintiffs injuries. We conclude that under those circumstances, superseding cause instructions serve to complicate what is fundamentally a proximate cause analysis. Specifically, we conclude that, because our statutes allow for apportionment among negligent defendants; see General Statutes § 52-572h; and because Connecticut is a comparative negligence jurisdiction; General Statutes § 52-572o; the simpler and less confusing approach to cases, such as the present one, where the jury must determine which, among many, causes contributed to the plaintiffs’ injury, is to couch the analysis in proximate cause rather than allowing the defendants to raise a defense of superseding cause.” The court then explained that its holding is limited to cases in which a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence, and that its holding does not necessarily affect those cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct. Id., 439 n.16.

The defendant argues that, even if it did owe a duty to the plaintiffs, Luis Cruz was an “unforeseeable” intentional tortfeasor and that, therefore, the young boy’s actions cut off any potential liability of the defendant. It is clear from the undisputed facts, however, that the actions of Luis Cruz were neither intentional nor criminal and thus, according to Barry, application of the superseding cause doctrine would not be appropriate. At the same time, our Supreme Court in Barry, did not decide that intervening events would no longer play a role in assessing liability for negligent conduct. Instead, it held that analysis of causation issues relating to such events should be governed by the general law of proximate cause rather than by the assignment of a dispositive role to any one of the causes contributing to a plaintiffs injury. Barry v. Quality Steel Products, Inc., supra, 263 Conn. 446. One reason underlying the court’s decision was its recognition of the dominant role that comparative negligence has come to play in our assignment of responsibility for personal injury. Id., 442-46. Here, however, the court determined that Luis Cruz’ actions were “the most proximate cause” and, therefore, assigned his role in this unfortunate event as the dispositive cause, disregarding any potential contributory roles of other causes such as the defendant’s failure to maintain a safe common area. It was improper for the court to foreclose the plaintiffs from recovery merely because another party may have subsequently contributed to Ruiz’ injury. The inquiry by a court in such a circumstance should be whether the allegedly negligent conduct of any actor was a proximate cause and then each actor would pay his or her proportionate share, regardless of whether another’s conduct also contributed to the plaintiffs injury.

“Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfea-sors will be held liable for the consequences of their actions. . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct. ... In negligence cases ... in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty to the plaintiff.” (Internal quotation marks omitted.) Malloy v. Colchester, supra, 85 Conn. App. 633-34. Therefore, since we have already determined the question of whether a duty was owed by the defendant, it would be repetitive for us to engage in an analysis concerning proximate cause.

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

In this opinion ROBINSON, J., concurred.

ALVORD, J.,

dissenting. The case at bar is a very tragic case involving a young child who suffered serious injuries from an eighteen pound cinder block that had been dropped on her head by a ten year old playmate from the third floor balcony of the landlord’s six unit apartment building. While I in no way condone the failure of the landlord to remove the cinder blocks and other debris from the yard of its rental property, I cannot agree with the majority that the child’s injuries were a reasonably foreseeable consequence of the landlord’s conduct. Accordingly, I respectfully dissent.

This is an appeal from a summary judgment rendered against the plaintiffs, Adriana Ruiz and Olga Rivera, in favor of the defendant, Victory Properties, LLC, in an action for negligence. The trial court concluded that there were no genuine issues of material fact as to whether the defendant owed a duty to the plaintiffs under the circumstances of this case. In reaching this determination, the court was required to consider the facts in the light most favorable to the plaintiffs, the nonmoving parties. Interface Flooring Systems, Inc. v. Aetna Casualty & Surety Co., 261 Conn. 601, 605, 804 A.2d 201 (2002).

In their complaint, the plaintiffs alleged that the defendant landlord owned an apartment building in New Britain (property), that the plaintiffs were lawful tenants of the property and that the defendant failed to remove “debris and loose concrete and cinder blocks” from the property. The complaint further alleged that another tenant of the property, a minor, “picked up a loose piece of concrete/cinder block from a large pile of other broken pieces of cement and cinder blocks loosely located in the backyard of the subject [property, carried said piece of concrete to the third floor apartment of said subject [p]roperty, walked out onto the back porch and dropped said large piece of concrete/cinder block from the third floor balcony onto the head of [Ruiz], who was standing in the immediate vicinity of the exterior back wooden porch of said property.”

Following a hearing on the plaintiffs’ application for a prejudgment remedy, they submitted a brief summarizing the testimony and evidence presented at that hearing. The plaintiffs, after repeating the allegations in their complaint, proceeded to describe the object dropped from the balcony as either a “concrete block” or a “cement block” several times throughout the brief. In its memorandum of decision on the application for a prejudgment remedy, the court, Vacchelli, J., stated the facts of the case: “In that accident, [Ruiz], then age seven, was struck on the head by an eighteen pound concrete block dropped by another child playing on a third floor balcony above her.”

On appeal before this court, the plaintiffs consistently have represented that Ruiz was hit by a large piece of concrete or a cinder block. In their appellate brief, the plaintiffs stated that the ten year old playmate “picked up an eighteen pound piece of concrete/cinder block from a large pile of other loose broken pieces of concrete/cinder blocks located in the backyard of the [subject [premises.” Thrice more in their brief they refer to the “eighteen pound cinder block” or “eighteen pound brick” as being the object that struck Ruiz. Reviewing the facts in the light most favorable to the plaintiffs, and there being no argument to the contrary, I refer to the object dropped on Ruiz’ head as an eighteen pound cinder block.

With these facts in mind, it is necessary to review our case law to determine whether the defendant can be held legally accountable for Ruiz’ injuries. The majority opinion first sets forth the applicable principles for determining whether the defendant owed a legal duty to Ruiz and then focuses on the foreseeability of the harm that she suffered. It frames the inquiry as “whether a reasonable landlord, knowing that dangerous debris is present in a common area where children are known to play, would be able to foresee that a child was likely to suffer harm of the general nature that [Ruiz] suffered here as a result of children playing in that very area” and concludes that “the appropriate level of generality in the present case is getting hurt by a large rock thrown by another child, and that was certainly foreseeable.” I disagree and conclude that simply getting hurt by the cinder block is too general a standard to be used for the test of foreseeability.

By employing a foreseeability test that incoiporates such a high level of generality to the harm in this case, the majority essentially has created a strict liability standard. The term “general harm” logically cannot be extended to incorporate any injury that occurs by a piece of debris left in the landlord’s common area. “It is impractical, if not impossible, to separate the question of duty from an analysis of the cause of the harm when the duty is asserted against one who is not the direct cause of the harm. In defining the limits of duty, we have recognized that [w]hat is relevant ... is the . . . attenuation between [the defendant’s] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand. ... It is a well established tenet of our tort jurisprudence that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable.” (Citation omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 574-75, 717 A.2d 215 (1998).

Here, the alleged negligent conduct of the defendant was its failure to remove “debris and loose concrete and cinder blocks” from its property, thereby creating “a dangerous and unsafe condition.” The complaint also alleged that the defendant knew or should have known that children assembled and played games on that property. The plaintiffs’ basic claim, as I see it, is that Ruiz would not have been injured if the defendant had removed the debris from its property because then there would have been no cinder block for a child to carry up the stairs and to drop from the third floor balcony.

Applying the standards previously discussed, I would frame the relevant duty inquiry as whether the defendant would reasonably foresee that a ten year old child would pick up an eighteen pound cinder block, carry it up several flights of stairs to the third floor of the apartment building and drop it on the head of the seven year old Ruiz. This incident happened even though there were adults present to supervise the children and the ten year old playmate saw his younger friend standing in the area below the balcony when he dropped the cinder block into the backyard. I conclude that the harm suffered is too attenuated from the alleged negligent conduct of the defendant. It certainly was foreseeable that a child might trip and fall over the debris or even throw a piece of concrete at another child. In this case, the ten year old, if he had thrown the eighteen pound cinder block at Ruiz in the backyard, could not have caused the type of harm that she suffered by having it dropped three stories onto her head. I cannot agree that the defendant would reasonably foresee that its conduct in leaving cinder blocks and other debris in the backyard would result in the catastrophic result in this case. “To hold otherwise would be to convert the imperfect vision of reasonable foreseeability into the perfect vision of hindsight.” Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 486, 523 A.2d 940 (1987).

I therefore conclude that, under the particular circumstances of this case, the defendant landlord cannot be held liable to the plaintiffs for the harm caused by an eighteen pound cinder block being dropped from a third story balcony onto the head of the minor plaintiff. The law should not countenance the extension of legal responsibility to such an attenuated result. I would affirm the judgment of the trial court and, accordingly, I respectfully dissent.

       The plaintiff Olga Rivera brought this action as a parent and next friend of her minor daughter, Adriana Ruiz, and on her own behalf.

       The trial court also granted summary judgment in favor of John R. Kovalcik and Intepros, Inc., parties that had been cited in by the plaintiffs as party defendants. John R. Kovalcik and Intepros, Inc., named Saribel Cruz and Delis Cabrera as apportionment defendants in an apportionment complaint.
      The plaintiffs have only appealed the trial court’s judgment rendering summary judgment in favor of Victory Properties, LLC, and we refer herein to Victory Properties, LLC, as the defendant.

       Although, on the summary judgment proceedings, the parties submitted affidavits and the transcript of the prejudgment remedy proceedings as well as the court’s memorandum of decision on those proceedings, the summary judgment court issued a specific memorandum of decision stating all of the facts that it considered to be undisputed. We therefore confine our statement of the facts of the case to those facts determined by the summary judgment court to be those that are undisputed.

       The plaintiffs also claim that the court improperly disregarded the doctrine of law of the case, arguing that the instant issues were previously ruled on at the prejudgment remedy hearing and that, therefore, the summary judgment court should not have opened what had already been decided. In light of our conclusion that summary judgment was improperly granted on the ground that the defendant owed no duty to the plaintiffs, we need not reach this claim.

       The defendant cites to an Illinois Appellate Court decision, Trice v. Chicago Housing Authority, 14 Ill. App. 3d 97, 302 N.E.2d 207 (1973), for the proposition that it does not owe a duty to the plaintiffs because of Luis Cruz’ status as a third party. In Trice, the plaintiffs argument was that the landlord had a police duty to stop intentional criminal acts. Id., 100-101. Not only does the present case not deal with a criminal act, but the plaintiffs here do not suggest that the defendant should have protected them from Luis Cruz, a third party; the plaintiffs merely seek a ruling that the defendant is held accountable for its violation of its duty to maintain safe common areas of its premises. The defendant’s reliance on Spencer v. Nesto, 46 Conn. Sup. 566, 764 A.2d 224 (2000), is similarly misplaced. In that case, the superseding cause doctrine was applied to the criminal acts of a landlord’s tenant, not unintentional acts.

       The plaintiff Olga Rivera brought this action as parent and next friend of the plaintiff Adriana Ruiz, her minor daughter, and on her own behalf.

       “The test for determining legal duty is a two-pronged analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis. . . . The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. ... [In other words], would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” (Citation omitted; internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 114-15, 869 A.2d 179 (2005).

       The trial court, in discussing the ramifications of extending a duty of care to the defendant under the circumstances of this case, made the following astute observations: “What would be the limitation of liability on a landlord for personal injury to a tenant if liability is imposed in this case? Suppose there is heavy lawn furniture in the backyard? What about the sandbags or weights used to stabilize a patio umbrella or a moveable basketball backboard? (In fact, one photograph submitted as an exhibit in this case shows a large rock used to stabilize the basketball hoop apparatus in this backyard.) What about a flowerpot near the back steps? If thrown off a balcony, practically anything can constitute a dangerous missile.”

       The majority contends that the size and the nature of the object were not undisputed. It concludes that the object is a large rock. To me, this conclusion strengthens the defendant’s argument that imposing a legal duty under the circumstances of this case would result in strict liability for any objects left in common areas by landlords. Is a landlord obligated to remove every rock, every branch and every piece of debris from its property to avoid liability for possible injuries to a child caused by the irresponsible actions of another child?

       As noted in the majority opinion, the plaintiffs also claim that the trial court improperly disregarded the doctrine of the law of the case. See footnote 4 of the majority opinion. Simply stated, a judge is not bound to follow a previous judge’s ruling in an earlier stage of the proceedings if the subsequent judge is now of the opinion that the previous ruling was incorrect. See Breen v. Phelps, 186 Conn. 86, 98-99, 439 A.2d 1066 (1982).

       Nothing in the record indicates that there were any previous incidents in which children threw backyard debris from the building’s balconies.

       Because I conclude that there is no legal duty because the harm was not reasonably foreseeable, it is not necessary to undertake a public policy analysis. See Monk v. Temple George Associates, LLC, supra, 273 Conn. 114-15. Nevertheless, I agree with the trial court that extending liability under the circumstances of this case would create substantial economic and social costs. In its memorandum of decision, the court thoughtfully stated: “It cannot be ignored that this incident was precipitated by a child acting, as children often do, in a playful but irresponsible manner. To create liability for landlords in this situation would likely discourage landlords from renting apartments to families with young children. It would surely drive up the economic costs associated with maintaining and insuring rental properties, without a concomitant benefit of safeguarding against conditions and hazards that are much more prevalent than the one here. Recognizing such a duty, rather than contributing to the welfare of the public, is more likely to create a new burden on families looking for affordable rental housing. Though imposing liability on the defendant would surely be a benefit to the [minor] plaintiff and her family, the overall economic and societal costs militate against such an imposition in like situations.”

       In part II of its opinion, the majority concludes that the trial court also improperly relied on the doctrine of superseding cause to reach its decision. I disagree with that interpretation. Nevertheless, assuming arguendo that the court erroneously applied the doctrine, this court may uphold the judgment “because [the trial court] reached the right result, even if it did so for the wrong reason.” (Internal quotation marks omitted.) Weigold v. Patel, 81 Conn. App. 347, 353 n.5, 840 A.2d 19, cert. denied, 268 Conn. 918, 847 A.2d 314 (2004).