text:
    STATE OF CONNECTICUT v. RONALD ANGUEIRA
    (AC 17730)
    Foti, Schaller and Sullivan, Js.
    Argued November 10, 1998
    officially released February 16, 1999

      Robert J. McKay, with whom, on the brief, was Gregory A. Thompson, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Juliett Crawford, former supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to dismiss on the basis of its determination that the stipulated facts were sufficient for both the police and the trier to conclude that the defendant “operated” his motor vehicle while under the influence of liquor and (2) refused to suppress the results of the defendant’s urine tests because the tests were not commenced within two hours of operation in violation of General Statutes § 14-227a (c). We affirm the judgment of the trial court.

At the hearing on the defendant’s motions, the parties stipulated to the facts stated in the police report. On the basis of the stipulation, the trial court recited the following facts in its memorandum of decision: “At approximately 11:35 p.m. on February 25, 1995, Officer James Wines of the North Haven police department was on routine patrol. He observed a 1991 Plymouth Sundance parked in the lot of the Holiday Inn. Upon investigation, the officer found the engine running, the interior light on, and the defendant unconscious in the driver’s seat. The defendant was slumped over onto the passenger seat. On the floor of the passenger side were several empty beer bottles in an open bag. The officer was unable to awaken the defendant from outside the vehicle. Even turning on the siren of his patrol car was to no avail. The defendant finally was roused when the officer opened the unlocked driver’s side door and shook him awake. Upon opening the door, the officer immediately detected a strong odor of alcohol. The defendant was extremely disoriented and did not know where he was. He staggered as he got out of his car and had to grab onto the door for balance. The defendant attempted field sobriety tests from approximately 11:45 to 11:55 p.m. without success. He was then placed under arrest and transported to police headquarters. At the police station, the defendant stated that he had consumed six beers between 10 p.m. and 11:30 p.m. at his apartment in Branford. After the defendant received notice of his rights and of his implied consent to blood alcohol testing, he submitted to two urine tests. The results showed 0.26 and 0.23 respectively.”

The defendant filed a motion to dismiss the charge and a motion to suppress the results of his urine tests. The defendant claimed in both motions that he was not operating the motor vehicle at the time of his arrest. He argued that the state could not prove an essential element of § 14-227a (a) and that the police did not have probable cause for his arrest. The defendant also claimed that the results of his urine tests were not admissible because, in the absence of evidence of operation, there was no showing that the tests were taken within two hours of operation as required by § 14-227a (c). After the trial court denied the defendant’s motions to dismiss and suppress on the basis of stipulated facts, the defendant entered a conditional plea of nolo contendere. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion to dismiss on the basis of its conclusion that the facts were sufficient to show that the defendant operated his motor vehicle while under the influence of liquor. Generally, the defendant claims that, as a matter of law, given the facts as stipulated in this case, he was not operating his motor vehicle. The defendant argues in particular that the element of operation could not be established because no one “observe[d] [him] operating the automobile, nor was there any evidence of any time of operation.” Thus, he claims that the trial court improperly determined that the police had probable cause to arrest him and that the state could prove the essential element of operation. We disagree.

The relevant inquiry here is what constitutes operation within the meaning of § 14-227a (a). In State v. Ducatt, 22 Conn. App. 88, 93, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990), we clarified the meaning of operation, which had been previously stated by our Supreme Court in State v. Swift, 125 Conn. 399, 6 A.2d 359 (1939). In Swift, the court established the distinction between “driving” and “operating” when it approved the following jury instruction on the element of operation: “[T]he statute . . . refers to persons who shall operate a motor vehicle, and is not confined to persons who shall drive a motor vehicle. A person operates a motor vehicle within the meaning of this statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle. So if you find that the accused, while under the influence of intoxicating liquor, got into the automobile, while it was standing [at the] side of the street, and manipulated the machinery of the motor for the purpose of putting the automobile into motion, the accused being in the car and in a position to control its movements, the accused would be guilty of operating a car under the influence of intoxicating liquor, whether the automobile moved or not.” Id., 402-403.

In Ducatt, we clarified the meaning of operation by holding that the statute does not require the state to prove that the defendant intended to move the vehicle, but, rather, that the defendant, “while under the influence of alcohol . . . and while in the vehicle and in a position to control its movements . . . manipulate[d], for any purpose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects or could affect the vehicle’s movement, whether the accused moves the vehicle or not.” State v. Ducatt, supra, 22 Conn. App. 93. The requisite intent could be, for example, merely “to engage the ignition or manipulate the gearshift or release the parking brake.” Id., 92; see also State v. Marquis, 24 Conn. App. 467, 469, 589 A.2d 376 (1991).

In this case, it is clear that the police had probable cause to believe that the defendant “operated” his motor vehicle, as that term is used in § 14-227a (a). “Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that [an offense] had been committed.” (Internal quotation marks omitted.) State v. Torres, 182 Conn. 176, 189, 438 A.2d 46 (1980). Here, the police found the defendant seated behind the wheel of his car, unconscious and slumped over into the passenger seat. The engine was running and the interior light was on. The police aroused the defendant with great difficulty. The defendant was disoriented and staggered when he got out of his car. His breath smelled strongly of alcohol and he failed several field sobriety tests. On the basis of those facts, we conclude that the police had probable cause to arrest the defendant.

With regard to the defendant’s argument that direct eyewitness testimony is required to prove operation for the purpose of probable cause, our courts have repeatedly held that direct evidence of operation is not necessary to sustain a conviction of driving while intoxicated. See State v. Englehart, 158 Conn. 117, 119-20, 256 A.2d 231 (1969) (although no witness produced who actually saw defendant operating vehicle, defendant’s conviction of driving while under influence of intoxicating liquor supported by circumstantial evidence); State v. Kreske, 130 Conn. 558, 563-64, 36 A.2d 389 (1944) (direct testimony by eyewitness that defendant operated motor vehicle while under influence of intoxicating liquor not necessary for conviction). We see no reason why the rule should be any different to meet the less stringent probable cause standard.

The defendant further claims that the state could not have proven the element of operation beyond a reasonable doubt. Operation is a question of fact for the trier. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 505, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). “Proof beyond a reasonable doubt means proof which precludes every reasonable hypothesis of innocence, is consistent with guilt, and is inconsistent with any other rational conclusion. ... It need not, however, preclude every possible hypothesis of innocence.” (Citation omitted.) State v. McShea, 11 Conn. App. 338, 340, 527 A.2d 1 (1987).

In addition, our Supreme Court’s decision in State v. Englehart, supra, 158 Conn. 117, is instructive with regard to the type of evidence that may be used. “The burden of proof of [the element of operation] could be met by direct evidence or circumstantial evidence. . . . If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” (Internal quotation marks omitted.) Id., 119. “It [is] unquestionably within the province of the jury to draw a reasonable and logical inference from the facts proved. The inference may be drawn as long as it comes only from, and bears a logical relation to, the other facts which have been proved and not from facts which are merely surmised. . . . Moreover, the inference which the jury [may draw must] be wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” (Citation omitted.) Id., 121.

Here, as we have noted, the police found the defendant in the driver’s seat, unconscious, and slumped over onto the passenger seat of the car in the Holiday Inn parking lot with the engine running and the interior light on. Several empty beer bottles were found on the floor of the car. When the police finally woke the defendant, he staggered out of his car. His breath smelled strongly of alcohol, his speech was slurred, he was disoriented, and he failed several field sobriety tests. The trial court properly concluded on the basis of the stipulated facts, that reasonable inferences could be drawn to prove beyond a reasonable doubt that the defendant operated his motor vehicle and that he did so while under the influence of liquor.

The defendant claims that his case is distinguishable from Englehart. That claim is based on the fact that, in Engleharl, the defendant’s motor vehicle was located in the roadway and, in this case, the defendant’s vehicle was in a parking lot. Those factual differences do not constitute a meaningful distinction. Because § 14-227a (a) applies to vehicles in parking lots and the defendant failed to raise any issue concerning whether the Holiday Inn parking lot qualified under the statute, the defendant has abandoned any claim that the presence of his motor vehicle in this parking lot was not a “parking area for ten or more cars . . . .” See State v. Maia, 48 Conn. App. 677, 689 n.14, 712 A.2d 956, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998) (appellate claims inadequately briefed deemed abandoned).

II

The defendant next claims that the trial court improperly refused to suppress the results of his urine tests because the tests were not commenced within two hours of operation, as required by § 14-227a (c). The trial court found that, at the police station, the defendant stated that he had consumed six beers between 10 p.m. and 11:30 p.m. at his apartment in Branford. The court also found that the first urine test was given at 12:15 a.m. The trial court reasoned that, because the defendant had been drinking in his apartment between 10:00 and 11:30 p.m. and was found in the parking lot shortly thereafter, “it is reasonable to conclude that after drinking the six beers he got in his car and drove to the Holiday Inn. Even had he left his house at 10 p.m. (which is unlikely as defendant stated he did not begin drinking until 10 p.m.), the first test was clearly within two hours allowing for driving time. It is more likely that it took defendant some time to consume six beers if he started at 10 p.m. One could reasonably conclude both tests were within two hours.” (Emphasis in original.) On the basis of the stipulated facts and the inferences that could be reasonably drawn, the trial court reasonably concluded that the test was commenced within two hours of operation as required by § 14-227a (c).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense . . . if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227a (c) provides in relevant part: “Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or mine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided ... (6) evidence is presented that the test was commenced within two hours of operation. . .

       The defendant did not challenge the state’s ability to establish the element of the offense that requires the operation of a motor vehicle in one of the prohibited areas listed in § 14-227a (a). Accordingly, we do not address that issue.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    MARINE MIDLAND BANK v. PATRICK AHERN ET AL.
    (AC 18041)
    O’Connell, C. J., and Hennessy and Stoughton, Js.
    Argued September 22, 1998
    officially released February 16, 1999

      John F. Carberry, for the appellants (defendants).

      Thomas G. Wolff, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

This appeal arises from an action brought by the plaintiff, Marine Midland Bank (bank), to foreclose a judgment lien that it recorded on a condominium owned by the defendants, Patrick Ahem and Maureen Ahem. The defendants claim that the trial court improperly (1) entered an order on January 20, 1998, that rescheduled the law day to occur less than twenty days after the January 5, 1998 order and (2) entered an order on January 5,1998, that, as a condition of the trial court’s granting of the motion to open, improperly required that “Ahern & Partners shall not transfer any moneys to any other parties even in the course of regular’ business.”

The following facts and procedural history are relevant to this appeal. The bank obtained a judgment against the defendants in the amount of $976,994.42. Subsequently, the bank recorded a certificate of judgment lien on a condominium in Greenwich owned by the defendants. By a complaint dated August 28, 1995, the bank commenced an action to foreclose the judgment hen on the defendants’ property.

After the defendants were defaulted for failure to disclose a defense, the trial court, D’Andrea, J., granted the bank’s motion for judgment of strict foreclosure on July 24,1997. The trial court set the law day as October 7, 1997.

On October 3, 1997, the defendants filed a motion to open the judgment. In support of their motion, the defendants argued that they “expect to be in a position shortly to make a proposal to [the] plaintiff for satisfaction of the plaintiffs judgment. This process has been delayed by the fact that [the] defendants must also quantify and settle certain claims for taxes by the Internal Revenue Service .... As a sign of good faith, [the] defendants . . . will tender $75,000 to [the plaintiff].” On October 6, 1997, the trial court, Hickey, J., granted the defendants’ motion “provided $75,000 is paid to the plaintiff or plaintiffs attorney on October 7, 1997, by 5 p.m.” The trial court set the new law day as November 7, 1997. The defendants paid the $75,000 as ordered by the trial court.

On October 30, 1997, the defendants filed a second motion to open the judgment. In support of their motion, the defendants made the same argument and again offered to tender $75,000 to the bank as a sign of good faith. On November 3, 1997, the trial court, Hickey, J., granted the defendants’ second motion to open. The defendants paid the bank $75,000 shortly thereafter.

On December 31, 1997, the defendants filed a third motion to open the judgment. In support of their motion, the defendants again argued that they “expect to be in a position during the first quarter of 1998 to make a proposal to [the] plaintiff for satisfaction of the plaintiffs judgment. This process has been delayed by the fact that [the] defendants must also quantify and settle certain claims for taxes by the Internal Revenue Service. . . .” The defendants again offered to make a $75,000 payment to the bank as a sign of good faith. The trial court, Hickey, J., heard the defendants’ motion to open on January 5, 1998. After hearing arguments from both parties, the trial court ordered, as a condition to its granting of the defendants’ motion to open, that “Ahern & Partners shall not transfer any moneys to any other parties even in the course of regular business.” In addition, the trial court ordered the defendants to pay $100,000 to the bank by January 7, 1998, and to produce records. The trial court set the new law day as February 3, 1998.

The defendants failed to pay the $100,000 to the bank as ordered. Thereafter, on January 20, 1998, the bank moved to amend the law day due to the defendants’ failure to make the $100,000 payment as ordered by the trial court. The trial court granted the bank’s motion and set January 23, 1998, as the new law day.

On January 22, 1998, one day before the running of the law day, the defendants appealed from the trial court’s January 5 and January 20, 1998 orders. Other facts will be discussed where relevant to the issues in the case.

I

The defendants first claim that the trial court improperly entered an order on January 20,1998, that amended the law day “so that [the law day] commenced to run less than twenty days after the January 5, 1998 order.” The defendants argue that, under Practice Book § 4009 (a), now § 63-1, they were entitled to twenty days to file an appeal from the commencement of the appeal period. The defendants further argue that the trial court set January 23, 1998, as the new law day, which is not twenty days from either the January 5 or January 20, 1998 order.

The bank responds that because the defendant filed this appeal one day prior to the running of the law day, which stayed the running of the law day, there is no practical relief that this court can grant, and, therefore, this argument is moot. We agree with the bank.

“ ‘Mootness implicates the subject matter jurisdiction of this court.’ Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988).” Gagnon v. Planning Commission, 24 Conn. App. 413, 415, 588 A.2d 1385 (1991), aff'd, 222 Conn. 294, 608 A.2d 1181 (1992). “The test for determining mootness of an [issue on] appeal is whether there is any practical relief this court can grant the appellant. Citicorp Mortgage, Inc. v. Hairston, 34 Conn. App. 138, 139, 640 A.2d 146 (1994). [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... If no practical relief can be afforded to the parties, the appeal must be dismissed. . . . Gagnon v. Planning Commission, [supra, 415-16].” (Internal quotation marks omitted.) ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 81, 713 A.2d 886 (1998).

When the trial court set the law day to run on January 23, 1998, it did not give the defendants twenty days to appeal as required by Practice Book § 63-1. The defendants, however, filed their appeal on -January 22, 1998, one day before the running of the law day. They cannot, therefore, claim that they were aggrieved by the court’s failure to allow twenty days for them to appeal. Furthermore, the timely filing of the appeal activated the automatic stay under Practice Book § Gill. This had the effect of staying the running of the law day, and a new law day will have to be set after this appeal in any event. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 346-47, 579 A.2d 1054 (1990); Zinman v. Maislen, 89 Conn. 413, 416, 94 A. 285 (1915). Therefore, there is no practical relief that this court can grant to the defendants. Accordingly, we dismiss this claim as moot.

II

The defendants next argue that the trial court improperly entered an order on January 5, 1998, that enjoined Ahem & Partners, a nonparty, from transferring “any moneys to any other parties even in the course of regular business.” Specifically, the defendants argue that the “trial court’s order fundamentally offends principles of due process of law” because Ahem & Partners has never been a party to the foreclosure proceedings.

The following additional facts are necessary to the resolution of this issue. Ahern & Partners is a general partnership, which is comprised of two corporate general partners. One of the corporate general partners is Harp Enterprises, Inc. Patrick Ahem and Maureen Ahem, the defendants, own all of the stock in Harp Enterprises, Inc. The other corporate general partner of Ahem & Partners is a corporation owned by Robert Wilcox and members of his family.

At the January 5, 1998 hearing on the foreclosure action, the bank argued that Ahem & Partners had assets as the result of having received a payment of $3.65 million as a fee for services rendered in a bankruptcy proceeding. The bank stated to the trial court that it was concerned about the “dissipation of this money.” The bank indicated that “already 2.4 million dollars has been paid to the other general partner, although the other general partner owns 50 percent [of Ahem & Partners].”

The defendants argue that “Ahem & Partners owes no debt to the plaintiff, was not represented in court on January 5, 1998, and was given no notice that its rights might be affected by the proceedings herein.” The defendants further argue that the “United States Constitution requires that any person be afforded due process of law before its interests in property may be affected.” The defendants appear to be arguing on behalf of Ahem & Partners. Ahern & Partners, however, is not a party to this action. This claim raises the issue of whether the defendants are the appropriate parties to raise a due process claim on behalf of Ahern & Partners in an action against the defendants in their individual capacity.

Review by way of appeal is governed in general by General Statutes § 52-263, which provides in relevant part: “Upon the trial of all matters of fact in any cause or action in the Superior Court ... if either party is aggrieved by the decision of the court or judge . . . he may appeal to the court having jurisdiction from the final judgment of the court . . . .” (Emphasis added.) Further, Practice Book § 61-1 provides: “An aggrieved party may appeal from a final judgment, except as otherwise provided by law.” (Emphasis added.) Aggrievement, in essence, is appellate standing. See Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978) (question of aggrievement essentially one of standing and unless plaintiff aggrieved by decision she had no standing to appeal). Where a party lacks standing to appeal, the court is without subject matter jurisdiction. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). “A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised. . . . [W]henever a lack of jurisdiction to entertain a particular proceeding comes to a court’s notice, the court can dismiss the proceeding upon its own motion.” (Internal quotation marks omitted.) Id., 192-93.

While the defendants are parties in the foreclosure action against them as individuals, they do not claim that they, as individuals, were deprived of due process. In addition, while Ahern & Partners may have been deprived of due process, it is not a party in the foreclosure action. The order in this case enjoined Ahem & Partners from transferring property owned by the partnership. “Property acquired by a partnership is property of the partnership and not of the partners individually.” General Statutes § 34-315. In addition, “[a] partnership is an entity distinct from its partners.” General Statutes § 34-313. A party, however, cannot raise the due process rights of another. Lowe v. Lowe, 47 Conn. App. 354, 364, 704 A.2d 236 (1997); Taff v. Bettcher, 35 Conn. App. 421, 425, 646 A.2d 875 (1994); cf. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 588, 590 A.2d 447 (1991) (exception exists in rare cases where statute violates due process because it is so vague that it is impossible for anyone to obey). We conclude, therefore, that the defendants have no standing to raise this issue. Accordingly, we dismiss this claim.

The appeal is dismissed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       The bank claims that the trial court conditionally granted the defendants’ motion to open and set a new law day of January 5, 1998. The trial court order in the record indicates that the order was granted on November 3, 1998. The order does not indicate, however, that the motion was granted with conditions and it does not indicate a new law day.

       Practice Book § 63-1 provides in relevant part: “Except where a different time is provided by statute, a party shall have twenty days from the commencement of the appeal period ... to file an appeal ....
      “Unless otherwise provided in these rules, the appeal period shall commence on the date notice of the judgment or decision is given. . . .”

       Practice Book § 61-11 provides in relevant, part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is officially released . . . but if the judge who tried the case is of the opinion . . . that an extension to appeal is sought, or the appeal is taken, only for delay, or . . . that the due administration of justice so requires, the judge may at any time, upon motion and hearing, order that the stay be terminated. . . .”

       The bank did not file a motion to terminate the automatic stay pursuant to §61-11.

       The defendants did not raise plain error on appeal.

       The defendants’ attorney stated in oral argument that he was arguing on behalf of the defendants as individuals because of their interest in Ahem & Partners. The defendants want to have the best of both worlds. They argue that, for purposes of the January 5, 1998 hearing, they were separate and distinct from Ahem & Partners and, even though they had notice and knowledge during the hearing that the trial court intended to enjoin Ahem & Partners, the partnership did not have notice. They argue, however, for purposes of this appeal, that it is appropriate for them to argue a due process claim involving the partnership because they have an interest in Ahern & Partners.

       We have held that “where a nonparty is aggrieved by a ruling made in the context of an ongoing action, that person’s remedy is by writ of error rather than appeal.” Kennedy v. QVC Network, Inc., 43 Conn. App. 851, 854, 686 A.2d 997 (1996).


text:
    STATE OF CONNECTICUT v. JAMEL BURKE
    (AC 17733)
    Landau, Spear and Hennessy, Js.

      Argued September 28, 1998
    officially released February 16, 1999

      Theresa M. Dalton, assistant public defender, for the appellant (defendant).

      Ellen Jawitz, assistant state’s attorney, with whom, on the brief, was Maureen Keegan, acting state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Jamel Burke, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c and burglary in the third degree in violation of General Statutes § 53a-103 (a). The defendant claims (1) that the trial court improperly instructed the jury on self-defense or, in the alternative, that the evidence was insufficient to disprove the defendant’s claim of self-defense, (2) that the evidence of causation was insufficient to sustain a finding of probable cause on the felony murder charge and (3) that the trial court improperly denied the defendant’s motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that he caused the victim’s death and that the death occurred in flight from the burglary. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 27, 1995, the victim, John J. Walsh, Jr., was working at the Fox Cafe as a doorman. A Fox Cafe employee found the victim on the ground in the Fox Cafe parking lot with blood flowing from his right temple. The victim was taken to the Waterbury Hospital emergency room where he was subsequently removed from life support.

On the basis of a tip, the police questioned David Monell regarding the homicide. After questioning Monell, the police obtained a search and seizure warrant for the defendant’s person and residence. The police brought the defendant to the police station, where he gave the police a written, signed statement. The defendant indicated that on May 27, 1995, while at a party, he and Monell talked about breaking into a car to obtain a car stereo. They drove to the Fox Cafe where they noticed a Dodge Caravan with a car stereo and an alarm. They pulled into the parking lot next to the Fox Cafe, and the defendant approached the Caravan with a flashlight and a screwdriver while Monell waited in his car. Using the screwdriver, the defendant popped the front passenger window, setting off the car alarm, and reached in to open the Caravan door.

The defendant quickly removed the car stereo from the Caravan using the screwdriver and started to walk back to Monell’s car when he heard the victim running after him. The defendant threw the stereo at the victim to stop him. The victim kept running, however, and tackled the defendant. A struggle ensued, during which the defendant swung both fists at the victim until he stopped struggling. When the defendant returned to Monell’s car, he noticed that he still had the screwdriver in his hand and “figured that [he] stuck the . . . guy with the screwdriver.” The defendant left the scene in Monell’s car and returned to the party. The defendant told Monell that he thought that he “might have stabbed the guy.” Other facts will be discussed where relevant to the issues on appeal.

I

A

The defendant first claims that the trial court improperly instructed the juiy on self-defense. Specifically, the defendant argues that the trial court misled the jury by directing it to find that the defendant’s use of force constituted deadly physical force and by injecting the right of the victim to make a civilian arrest into the self-defense instruction.

The defendant failed to raise these claims at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine.

“In Golding, [our Supreme Court] held: [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Cole, 50 Conn. App. 312, 318, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217 (1998).

The record is adequate to review the alleged claim of error. In addition, we recognize that “the defendant has a constitutionally guaranteed due process right to establish a defense. . . . The right to establish a defense, however, is not limitless. The defense sought to be established must be legally cognizable as a valid defense to the crime charged.” (Citations omitted.) State v. Amado, 42 Conn. App. 348, 357-58, 680 A.2d 974 (1996), remanded for reconsideration, 242 Conn. 906, 697 A.2d 368 (1997), on reconsideration, 50 Conn. App. 607, 719 A.2d 45 (1998), cert. granted, 247 Conn. 953, 723 A.2d 811 (1999). The defendant’s claim is not of constitutional magnitude because self-defense is not legally cognizable as a valid defense to a felony murder charge; id., 362; and, therefore, does not warrant review under Golding.

The defendant urges this court to reconsider the bright line rule established in State v. Amado, supra, 42 Conn. App. 362, that self-defense is not available as a defense to a charge of felony murder in violation § 53a-54c. The defendant argues that the facts in this case do not comport with the rationale behind felony murder because he broke into an unoccupied motor vehicle and, therefore, was less likely to involve danger to life in the event of resistance by the victim. The defendant’s argument does not persuade us to revisit the rule articulated in Amado.

B

The defendant next claims that the evidence was insufficient to disprove his claim of self-defense beyond a reasonable doubt. This claim fails because self-defense is not available as a defense to a charge of felony murder in violation of § 53a-54c. State v. Amado, supra, 42 Conn. App. 362. Because the defendant’s claim of self-defense was not properly before the trier of fact, the state did not need to disprove that claim beyond a reasonable doubt.

II

The defendant next claims that the evidence was insufficient to sustain a finding of probable cause on the felony murder charge because the state failed to prove that he caused the death of the victim as required under the felony murder statute.

The defendant failed to raise this claim at trial and now seeks review under Golding and the plain error doctrine. The defendant’s claim is reviewable under Golding because the record is adequate for review and the claim is of constitutional magnitude because “ ‘[A]rticle first, § 8, of the Connecticut constitution, as amended, provides in part that “[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law.” ’ State v. Boyd, 214 Conn. 132, 135, 570 A.2d 1125 (1990).” State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992).

The defendant argues that, absent a statutory definition of “death” in the penal code, the common law definition applies. Specifically, the defendant argues that “[t]he common law defined death as ‘the cessation of life,’ and set a medical standard of the stoppage of the circulatory and respiratory systems.” The defendant further argues that the victim’s circulatory and cardiovascular functions had not ceased at the time he was taken to the hospital, and that his removal from life support relieves the defendant of criminal responsibility for the victim’s death by removing the causation element.

While this appeal was pending, our Supreme Court decided State v. Guess, 244 Conn. 761, 715 A.2d 643 (1998). In Guess, our Supreme Court held “as a matter of common law that death as used in the Penal Code includes an irreversible cessation of the functioning of the brain . . . .” Id., 764. Therefore, the subsequent removal of the victim from the respirator is irrelevant if the evidence is sufficient to show that there was an irreversible cessation of the functioning of the victim’s brain as a result of the defendant’s actions.

“In making a finding of probable cause, the trial court must determine whether the evidence offered would warrant a person of reasonable caution to believe that the accused had committed the charged offense. In re Keijam T., 221 Conn. 109, 115, 602 A.2d 967 (1992); State v. Mitchell, 200 Conn. 323, 336, 512 A.2d 140 (1986)." State v. Marra, supra, 222 Conn. 513. “Evidence is not required to rise to a significant level of trustworthiness in order to meet the probable cause standard.”. State v. Lewis, 245 Conn. 779, 808, 717 A.2d 1140 (1998). “The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear [t]hat there is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. ... We have held, however, that where the evidence offered at a probable cause hearing is insufficient to establish probable cause, the trial court lacks jurisdiction over the defendant’s person.” (Citation omitted; internal quotation marte omitted.) State v. Marra, supra, 222 Conn. 513.

At the probable cause hearing, the state introduced a written statement signed by the defendant in which the defendant admitted to the police that he broke into the Caravan. He also admitted that “I got the stereo out of the Caravan real quick. I started to walk back to [Monell], and I heard someone’s feet. I saw a white guy running at me, so I threw the radio at the guy to stop him from running after me. The guy kept running after me and tackled me and we both fell to the ground. . . . I was struggling with the guy and started swinging both my fists at the guy and then the guy stopped struggling. When I got back to [Monell’s] car, I still had the screwdriver in my hand and figured that I stuck the white guy with the screwdriver.”

At that hearing, the state also introduced an autopsy report by Thomas Gilchrist, a forensic pathologist. Gilchrist’s autopsy report indicated that the victim sustained a stab wound to the right temporal area. The report indicated that “the wound was rectangular in configuration with minute radiating lacerations at the corners, is obliquely oriented and measures 0.8 cm in length and 0.2 cm in width. . . . The underlying wound track proceeds from right to left and slightly from front to back for a depth of 12-14 cm into the brain. There is basilar subarachnoid hemorrhage.” The report also noted other lacerations and abrasions on the victim. The postmortem diagnoses indicated a “penetrating stab wound of the head” with “laceration of brain,” “subarachnoid hemorrhage,” and “pulmonary and cerebral edema.”

Attached to the autopsy report was a handwritten medical report from Waterbury Hospital made by Steven Burke, a physician. The report indicated that the victim was transported to the Waterbury Hospital emergency room as a “trauma alert.” The medical staff noted that he had a head injury and was unresponsive. The medical staff initiated cardiopulmonary resuscitation (CPR). The report indicated that the victim had a heart rate of forty and a blood pressure of eighty. Following CPR and the introduction of medication, the victim’s heart rate and blood pressure rose. His pupils were fixed and dilated, and he had a neuroresponse of three on the Glasglow Coma Scale. The victim was brought to the operating room for intracranial pressure monitoring, and his breathing was supported by a ventilator. An electroencephalogram (EEG) taken of the victim showed that he had no brain activity. A second EEG was taken on the following day and showed no brain activity.

We conclude that this evidence is sufficient for the trial court to make a finding of probable cause because the evidence offered would warrant a person of reasonable caution to believe that the accused stabbed the victim in the head with a screwdriver and that the wound caused irreversible cessation of the functioning of the victim’s brain. Thus, a constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial; therefore, the defendant’s claim fails under the third prong of Golding.

Ill

The defendant finally claims that the trial court improperly denied his motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that the defendant was guilty of felony murder. Specifically, the defendant argues that the evidence was insufficient to prove that the defendant caused the victim’s death and that the death occurred in flight from the burglary.

“In order to obtain a conviction for felony murder the state must prove, beyond a reasonable doubt, all the elements of the statutorily designated underlying felony, and in addition, that a death was caused in the course of and in furtherance of that felony.” State v. Castro, 196 Conn. 421, 428-29, 493 A.2d 223 (1985). “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. James, 237 Conn. 390, 435, 678 A.2d 1338 (1996).” (Internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 670, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

A

The defendant first argues that the evidence was insufficient to establish the element of causation by proof beyond a reasonable doubt. Specifically, the defendant argues that the state did not present any evidence regarding causation because it did not present testimony from medical personnel at Waterbury Hospital regarding the circumstances of the victim’s death, did not ask the medical examiner what caused the victim’s death and did not introduce the autopsy report and handwritten medical report from Waterbury Hospital in evidence.

“In order for legal causation to exist in a criminal prosecution, the state must prove beyond a reasonable doubt that the defendant was both the cause in fact, or actual cause, as well as the proximate cause of the victim’s injuries.” W. LaFave & A. Scott, Criminal Law (1972) § 35.

The state produced the following evidence at trial. The state introduced the signed voluntary statement by the defendant in which he admitted that he broke into a Caravan in the parking lot of the Fox Cafe in Waterbury. He admitted that he had a screwdriver, which he used to break into the Caravan window and to remove the stereo. He “got the stereo out of the Caravan real quick.” He heard someone coming and “saw a white guy running at [him]. . . . The guy kept running after [him] and tackled [him] and [they] both fell to the ground.” The defendant and the victim were struggling. The defendant was swinging both fists at the victim and then the victim stopped struggling. When the defendant returned to the car he realized that he still had the screwdriver in his hand and “figured that [he] stuck the white guy with the screwdriver.” He told Monell that he thought he “might have stabbed the guy.” The next day, he threw the screwdriver in a kitchen trash bag, which he tied up and threw in a dumpster.

The officers dispatched to the scene indicated that a white male was on the ground bleeding from the head. A bystander was holding a towel on the wound and there was a lot of blood. The victim was taken by ambulance to Waterbury Hospital.

At trial, the defendant admitted that, during the struggle, he “began to feel around on the ground to look for something to try to knock him off of me with.” He found something and “swung it up at him.” The victim then fell down on top of him. When he got back to the car the defendant realized that he had a screwdriver in his hand. The defendant described the screwdriver as flat head screwdriver about four to five inches in length with a blue and clear handle.

Gilchrist, a forensic pathologist, testified that the autopsy he performed indicated that the victim had a stab wound in front of his right ear. The wound was eight mm in length, about two mm in width and shaped like an “elongated rectangle with squared ends.” There were “little tiny lacerations at each comer of the rectangle about a millimeter or so long and there is some abrasion around the edges of the rectangle.”

Gilchrist further testified that a neuropathological examination was done on the victim’s brain, a process in which the brain is “fixed and allowed to become more amenable to detailed examination.” He testified that the track of the wound in the brain was four inches and the total length of the wound was almost five inches. On the basis of his examination of the skull area, Gilchrist testified that the object causing the wound was relatively blunt and would have required considerable force to penetrate the skin and bone in that area. He concluded that the stab was caused by a bladed screwdriver.

He further testified that the “wound track passes through and severs the midbrain area which is a very vital area and at that point [the victim] was completely incapacitated. ... If there was a struggle between two people taking place, it ceased at that point on the part of the victim. . . .’’On the basis of these facts, we conclude that it was reasonable and logical for the trier to conclude that the defendant stabbed the victim in the head with the screwdriver.

Gilchrist testified that there were sliding abrasions or brush bums around the victim’s left eye. He indicated that these wounds “could well be perimortem” or from around the time of death. In describing the difference between premortem, postmortem and perimortem, Gilchrist stated that “in many of our injuries, we cannot tell the difference between absolute antimortem and absolute postmortem so we use the term perimortem. This would be the case here. The person does not die instantly. They may have vital functions go on even though their brain function is ceased. These wounds here are obviously not postmortem, but, they certainly could well be perimortem.” He further testified that the victim “survived in the hospital for a day—a day and a half almost.”

In addition, on cross-examination, Gilchrist was asked: “Now, you testified as to the puncture wound in the temple, did you not agree that is the cause of it?” Gilchrist responded: “Yes.” Gilchrist was then asked: “Would you not agree nothing else on this body is life threatening in any fashion?” Gilchrist responded: “That’s correct.” There is nothing in the transcript indicating what the word “it” refers to, nor did the previous questions discuss the victim’s death.

Although there is no direct evidence that the stab wound caused the victim’s death, “[i]n this process of review, 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. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [trier of fact] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [trier of fact], would have resulted in an acquittal. ... 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 [trier’s] verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Crespo, supra, 246 Conn. 670-71. “While the [trier of fact] 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 [trier] to conclude that a basic fact or-an inferred fact is true, the [trier] 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.” (Internal quotation marks omitted.) Id., 671.

We conclude that a rational trier of fact could have reasonably found that the defendant stabbed the victim in the head with a screwdriver and that the screwdriver penetrated four to five inches into the vital midbrain area, causing the victim to be completely incapacitated. The trier could have further inferred that the wound caused brain damage that resulted in the victim’s death. “[I]n considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 195, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997). “That the [trier of fact] might have drawn other possible inferences from [the evidence] is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt. ” (Internal quotation marks omitted.) State v. Patterson, 229 Conn. 328, 332, 641 A.2d 123 (1994).

On the basis of the facts and the inferences reasonably drawn from the facts, viewed in the light most favorable to sustaining the verdict, we conclude that the cumulative force of the evidence established that the defendant caused the victim’s death beyond a reasonable doubt.

B

The defendant next argues that “the state failed to prove beyond a reasonable doubt that the death of the victim occurred in the course of, in furtherance of, or in the flight from the crime of burglary.” Specifically, the defendant argues that “[t]he state presented no evidence to controvert the defendant’s testimony that he terminated his flight when he realized the victim was pursuing him.”

The state introduced the defendant’s written, signed statement to the police in evidence at trial. The defendant admitted in his statement that “I got the stereo out of the Caravan real quick. I started to walk back to [Monell], and I heard someone’s feet. I saw a white guy running at me, so I threw the radio at the guy to stop him from running after me. The guy kept running after me and tackled me and we both fell to the ground. ... I was struggling with the guy and started swinging both my fists at the guy and then the guy stopped struggling. When I got back to [Monell’s] car, I still had the screwdriver in my hand and figured that I stuck the white guy with the screwdriver.” At trial, however, the defendant testified that he tried to give himself up and tried to return the radio to the victim. We note that “[t]he [jury] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Pauling, 47 Conn. App. 483, 487, 706 A.2d 981 (1998). Therefore, the jury was free to believe the defendant’s written statement and to reject his testimony at trial. Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the victim’s death occurred in the course of, in furtherance of, or in the flight from the burglary.

We conclude that the trial court properly denied the defendant’s motion for judgment of acquittal because there was sufficient evidence to prove beyond a reasonable doubt that the defendant committed felony murder.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit . . . burglary . . . and, in the course of and in furtherance of such crime or flight therefrom, he . . . causes the death of a person other than one of the participants

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . .
      “[W]e will review an unpreserved claim under the plain error doctrine only in those truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of a public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 687, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

       We are aware that the Supreme Court has granted certification in State v. Amado, supra, 247 Conn 953. The defendant’s petition for certification in Amado was granted, limited to the issue of whether this court properly concluded that “the defense of self-defense does not apply to a charge of felony murder as a matter of law.” (Internal quotation marks omitted.) Id.

       In addition, we decline to review the defendant’s claim under the plain error doctrine because self-defense is not a valid defense to a felony murder charge; State v. Amado, supra, 42 Conn. App. 362; and, therefore, any error would not affect the fairness and integrity of and public confidence in the judicial proceedings.

       The defendant submitted to this court an affidavit by Polly Stephens, a physician at Waterbury Hospital, which translated the abbreviations and medical symbols used in Burke’s report. The state stipulated to the inclusion of Stephens’ affidavit.

       The Glasglow Coma Scale is “[a] scale for evaluating and quantitating the degree of coma by determining the best motor, verbal, and eye opening response to standardized stimuli. ... A score of 7 or less is classed as coma . . . .” Taber’s Cyclopedic Medical Dictionary (15th Ed. 1985).

       Intracranial pressure is “[t]he pressure upon the outer surface of the brain and the inner surface of the skull. ...” 1 J. Schmidt, Attorney’s Dictionary of Medicine (1996), p. 1-156. Intracranial pressure monitoring is the measuring of this pressure. J. Schmidt, Attorney’s Dictionary of Medicine (March 1996 Cum. Sup., p. 133). The normal pressure of the fluid is less than 15 millimeters of mercury. Id.

       Electroencephalogram is “[a] tracing or linear record of the electric currents generated by the brain. . . . It is useful in detecting and localizing brain injuries . . . .” 1 J. Schmidt, Attorney’s Dictionary of Medicine (1996) p. E-42.

       The defendant testified as follows:
      ”Q. What happened next, Jamel?
      “A. I turned, and I saw this man running at me.
      * ** *
      “Q. What did you say to him, if anything?
      “A. I said you caught me. I give up.
      ❖ ^ ❖
      “Q. What did Mr. Walsh say when you say you’ve caught me, I give up?
      “A. He had screamed at me. He screamed, ‘Fuck you, nigger, I’m going to kill you.’
      “Q. What did you do when you heard that?
      ‘‘A. I tried to throw the radio back to him.
      “Q. How did you try to throw the radio back to him?
      “A. I had ihe radio in my hands, both hands, and threw it underhand to him. I didn’t want to break the radio. . . .
      “Q. What did you say when you tossed the radio to him underhand?
      “A. I said, here, take it. I give up.
      “Q. How did he act when you tossed the radio toward him?
      “A. He batted it back down on the ground.
      “Q. How did you feel?
      “A. I was scared. I just turned and ran.”


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. GARY LEE ROGERS
    (AC 16880)
    Sehaller, Spear and Sullivan, Js.
    Argued November 30, 1998
    officially released February 16, 1999

      PaulR. Kraus, special public defender, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was John Smriga, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Gary Lee Rogers, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the second degree in violation of General Statutes § 53a-56) On appeal, the defendant claims that the evidence presented at trial was insufficient to sustain his conviction. Specifically, the defendant claims that the evidence was insufficient to prove that he recklessly caused the death of the victim. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The incident that formed the basis of this conviction took place in an apartment building in Bridgeport where the victim, Angel Cruz, had lived for several years. The defendant, who had known the victim for thirty-five years, had been living with the victim in the victim’s apartment for about one month because the defendant had been having marital problems. On cross-examination, the defendant testified that on February 20, 1996, the victim called the police with a robbery report, and the police mistakenly arrested the defendant. He was released from jail on March 15, 1996. At about 5:20 p.m. on March 19, 1996, the victim was at his brother’s apartment in the same complex when the defendant came and asked the victim to open his apartment for him. The victim at first refused the defendant’s request but then consented. The victim let the defendant into his apartment and then went back to his brother’s apartment for approximately twenty minutes and then returned to his own apartment.

According to the defendant’s statement to the police on March 20, 1996, prior to the victim’s entering the apartment, the defendant could hear him yelling and erasing in the hallway. When the victim entered his apartment, he was cursing and pointing his finger at the defendant. The defendant said to the victim, “Man, I didn’t do nothing.” As the defendant was walking away, the victim kept pushing him. The defendant went to the refrigerator, and the victim told him to close the door. The defendant then watched television, and the victim hit him. The defendant told the victim no one ever hit him except his mother. The defendant then picked up his vest and went to a chair near the window when he heard the victim pick up a vase. The defendant claims that the victim charged at him with the vase. He shook the victim so that the victim dropped the vase and, as he was pushed aside by the defendant, the victim went out the window. The victim died in a hospital two days after the incident. The victim weighed approximately 123 pounds, was five feet four inches tall and was fifty-one years old. The defendant weighed approximately 190 pounds, was five feet eleven inches tall and was forty-six years of age.

Harold Wayne Carver, the state’s chief medical examiner, testified that the victim had sustained seven broken ribs and a broken pelvis and that the cause of death was a blunt traumatic brain injury consistent with a fall from a second floor window onto a hard surface.

The defendant claims that he cut his finger trying to grab the victim’s leg to prevent him from going out the window. The defendant testified, “I did not even have any thought of the window being there. I just did like this here and pulled him in front, just pulled him fast like that and that is why he went out the window. I had no intention of throwing Angel. I loved Angel all my life and still love him. I am very sorry, but I did not mean to hurt Angel.” After the incident, the defendant left the apartment, walking past the victim’s body without attempting to render any assistance. The defendant spent the night in an abandoned building. The next day he turned himself in and gave a statement to the police.

The victim’s brother, Miguel Cruz, testified that about three or four weeks before the incident the defendant told him that he was going to hurt his brother—was going to punch him until he killed him. Miguel Cruz testified that afterwards the victim and the defendant became friends again.

The sole issue in this appeal is whether the evidence is sufficient to support a verdict that the defendant recklessly caused the death of the victim.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997). 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 [trier of fact’s] verdict of guilty. Id. 490.” (Internal quotation marks omitted.) State v. Kondracki, 51 Conn. App. 338, 342, 721 A.2d 567 (1998).

“We are guided by the well established principle that ‘[t]he trier of fact may accept or reject the testimony of any witness.’ State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376, cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541 (1996). It is the trier of fact’s ‘exclusive province to weigh the conflicting evidence and determine the credibility of witnesses.’ State v. Hooks, 30 Conn. App. 232, 239, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We give deference to the evidence and the reasonable inferences drawn therefrom that support the trial court’s determination of guilt. State v. Dukes, 46 Conn. App. 684, 690, 700 A.2d 119 (1997).” State v. Kondracki, supra, 51 Conn. App., 342-43. Our review of the record and briefs indicates that the jury acted reasonably and rationally in its fact-finding function when it found that the defendant acted recklessly in this matter.

The judgment is affirmed.

       General Statutes § 53a-56 provides in relevant part: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . .

       General Statutes § 53a-3 (13) provides: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .”


author: DALY, J.

text:
    TROY MOZELL v. COMMISSIONER OF CORRECTION
    (AC 17282)
    Foti, Hennessy and Daly, Js.

      Argued December 7, 1998
    officially released February 16, 1999

      Sarah F. Summons, special public defender, for the appellant (petitioner).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Michael Dearinglon, state’s attorney, and Christopher A. Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

DALY, J.

The petitioner, Troy Mozell, appeals from the dismissal of his petition for a writ of habeas corpus, in which he sought to vacate his conviction of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b) and conspiracy to possess narcotics with intent to sell in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b). The petitioner claimed in the habeas court that his appellate counsel rendered ineffective assistance by neglecting to raise certain issues in his direct appeal.

On appeal, the petitioner claims that the habeas court improperly determined that the petitioner did not sustain his burden of proof that his appellate counsel was ineffective and fell below the required standard of reasonable competence by failing to brief or argue all of the alleged errors claimed at trial. “There is nothing fundamentally unfair about applying the same standard of prejudice to the performance of his appellate counsel that we would be required to apply to the performance of his trial counsel . . . .” Bunkley v. Commissioner of Correction, 222 Conn. 444, 461, 610 A.2d 598 (1992).

“[T]o prevail on this claim, [the petitioner] must establish (1) that his appellate counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law, and (2) that this lack of competency contributed so significantly to the affirmance of his conviction as to have deprived him of a fair appeal, thus causing an unreliable conviction to stand. See Valeriano v. Bronson, 209 Conn. 75, 84-86, 546 A.2d 1380 (1988); accord Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If 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.” Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990).

“To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made errors so serious that [he] was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment. . . . 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. . . .

“To satisfy the second prong, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . The petitioner must establish that, as a result of his trial counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . . The second prong is thus satisfied if the petitioner can demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn. App. 695, 701-702, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995).

“While 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.” (Internal quotation marks omitted.) McIver v. Warden, 28 Conn. App. 195, 202, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992).

“ ‘Experienced 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.’ ” Valeriano v. Bronson, supra, 209 Conn. 89. Appellate advocates select what in their professional judgment, are the most promising issues for review. Id. “Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” (Internal quotation marks omitted.) State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989).

“It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment. ... A reviewing court must be ‘highly deferential’ to counsel’s decision and judge the action ‘from counsel’s perspective at the time.’. . . Thus, our action in reaching the petitioner’s challenge based on ineffective assistance of counsel will further the goals of finality and minimize intentional defaults as well as provide relief for petitioners who have been denied their constitutional rights in appropriate cases.” (Citations omitted.) Valeriano v. Bronson, supra, 209 Conn. 87-88.

With the framework for our standard of review in place, we move to the issue of whether the petitioner was denied effective assistance of appellate counsel because counsel’s performance allegedly fell below the standard of reasonably competent counsel. The petitioner’s appellate counsel testified in the habeas proceedings that he had reviewed the trial transcripts, considered and researched thirty-one possible issues, including the nine raised by the petitioner in his writ, and consulted with Dana Mozell’s appellate counsel. Both attorneys determined that there was a dearth of potentially successful issues and concentrated on the issue with the most potential, whether the trial court properly admitted into evidence a gun possessed by a charged coconspirator and the testimony of another charged coconspirator concerning the gun. The petitioner’s appellate counsel testified that, although this court determined that the trial court had improperly admitted the gun and testimony concerning it, we determined that it was harmless error.

Furthermore, the petitioner has failed to present an analysis of any of the nine issues he asserts that his appellate counsel should have pursued. Absent such a discussion, he fails to show that he could have prevailed on any other issue and, therefore, the habeas court properly found that the petitioner failed to sustain his burden of proof and denied the writ of habeas resulting in this appeal.

In a case that is tried to the court, such as this case, “the judge is the sole arbiter of the credibility of witnesses and the weight to be given to their specific testimony. ... It is the right of the trier of fact to draw reasonable and logical inferences from the facts that it finds to be proved. . . . We cannot substitute our judgment for that of the habeas court.” (Citations omitted.) Johnson v. Commissioner of Correction, supra, 36 Conn. App. 703. In view of the petitioner’s failure to sustain his burden of proof on the first prong, we need not consider the second prong of Strickland.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic: substance hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The petitioner alleged that appellate counsel failed to argue and brief the foEowing nine issues: (1) failing to strike the jury panel due to racial imbalance, (2) permitting the results of afield test for cocaine, (3) permitting evidence concerning a group known as the “Island Brothers,” (4) denying the motion in limine to exclude testimony concerning evidence destroyed by the state, (5) permitting testimony concerning laboratory tests when the written report had been destroyed, (6) fading to strike testimony of certain witnesses since the state had not compEed with the discovery requirements in suppressing exculpatory materials, (7) failing to sever the case from that of Dana MozeE, (8) challenging the trial court’s acting as an advocate and (9) failing to strike the testimony of a witness whose statement was lost.

       See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       The petitioner and his brother, Dana Mozell, were tried jointly; both were convicted.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. JAMES GRANT
    (AC 17163)
    O’Connell, C. J., and Lavery and Landau, Js.
    Argued December 3, 1998
    officially released February 16, 1999

      PaulR. Kraus, special public defender, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Catherine Brannelly-Austin, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278 (b). He claims that the trial court (1) abused its discretion in admitting into evidence a brown paper bag and a toxicology report that identified the contents of the bag as narcotics and (2) improperly found that there was sufficient evidence to support his conviction. We affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. On the morning of July 24, 1996, Detectives Patrick Deeley and Nicholas DeMatteis of the Waterbury police department were conducting undercover surveillance for drug activity in an area of Waterbury known for its heavy narcotics traffic. On the basis of information from confidential informants, the detectives went to this area specifically to look for the defendant. Both detectives knew the defendant from prior investigations and could readily identify him.

At approximately 9:20 a.m., they found the defendant sitting alone in a dark colored car that was parked at the corner of Hawkins and Pearl Streets with the engine running. As DeMatteis drove the unmarked police car behind the defendant’s parked vehicle, the detectives observed a female approach the defendant’s car and lean inside the car through the front passenger window. The defendant was facing the female and holding a brown paper bag. The female handed money to the defendant, who took it, reached into the paper bag and handed her a small item from inside the bag. On the basis of their experience and training, the detectives deduced that they had witnessed a drug transaction. Consequently, DeMatteis exited the vehicle, approached the defendant and told him to shut off the engine. The defendant, instead, drove away at a high rate of speed. The detectives pursued the defendant in their car. In the midst of the pursuit, the defendant slowed down, drove close to the curb and threw a brown paper bag out of the front passenger window. Deeley observed the bag land in front of 34 Hawkins Street near the inside edge of the sidewalk. Deeley also noticed that the bag was crumbled up and resembled a Frisbee.

The detectives continued chasing the defendant until they lost sight of him in the vicinity of Bishop and Burton Streets. DeMatteis and Deeley continued their search for more than five minutes in an unsuccessful effort to locate the defendant. They then returned to 34 Hawkins Street to retrieve the paper bag that the defendant had thrown out of the window. DeMatteis located the bag lying in the same spot where Deeley had seen it land. Deeley noted that the bag was in the same condition as when it was thrown and did not appear to have been tampered with or opened. The bag contained twenty-one plastic bags of what toxicology tests showed to be cocaine and nineteen plastic bags of what tests showed to be heroin.

I

The defendant first argues that the trial court improperly admitted the brown paper bag and the toxicology report into evidence. He claims that the prejudicial effect of that evidence outweighed its probative value and, therefore, the trial court abused its discretion in allowing them into evidence. We disagree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citations omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998). “Evidence is considered relevant when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.” (Internal quotation marks omitted.) State v. Garcia, 37 Conn. App. 619, 634, 657 A.2d 691, cert. denied, 234 Conn. 917, 661 A.2d 97 (1995).

In the present case, the detectives’ testimony established that the defendant was observed holding the brown paper bag, retrieving a small item from it, exchanging that item for cash, driving off with the bag and later throwing it from the car. Furthermore, the detectives testified that they retrieved the bag in the same location and in the same condition as when they saw it leave the defendant’s possession. Because the detectives’ testimony connected the defendant with the paper bag, both the bag and the toxicology report of its contents were relevant to establish that the defendant possessed narcotics with the intent to sell. As such, the probative value of the evidence clearly outweighed its prejudicial effect. We therefore conclude that the trial court did not abuse its discretion in admitting the evidence.

II

The defendant next claims that the evidence was insufficient to support his conviction. Specifically, the defendant argues that the evidence adduced at trial was insufficient to conclude that he was the driver of the automobile in question and the owner of the bag of drugs found on the street.

“Our courts utilize a two part analysis when reviewing a challenge to the sufficiency of evidence. State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). ‘We first review the evidence in the light most favorable to sustaining the guilty verdict.’ Id. ‘We then determine, upon the facts thus established and the inferences reasonably drawn therefrom, whether any rational trier of fact could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ Id. In the review process, the probative force of the evidence is not diminished if it consists, in whole or in part, of evidence that is circumstantial rather than direct. Id., 420-21. Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).” State v. Paredes, 35 Conn. App. 360, 372, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994).

“[T]o prove possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence and exercised dominion and control over it. . . . Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternate theoiy of constructive possession, that is, possession without direct physical contact. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) State v. Thompson, 46 Conn. App. 791, 797-98, 700 A.2d 1198 (1997).

Here, the jury was presented evidence that the defendant was the person in the car and knew of the presence of the narcotics in the paper bag and had control of them. Two experienced detectives familiar with the defendant identified him as the driver of the car and observed him receive money from a female and give her an item from a paper bag in a high drug traffic area. The defendant fled in his car when DeMatteis ordered him to shut off his engine. Deeley then observed the defendant throw the paper bag from his car and the detective noted its location and condition. The detectives returned to that location and retrieved the bag. Those facts give rise to a reasonable inference that the defendant knew of the presence of the drugs in the bag and that he exercised dominion and control over the drugs. See id. On the basis of this evidence, we conclude that the jury reasonably could have found that the defendant was the driver of the car and was in constructive possession of the narcotics in the paper bag.

The judgment is affirmed.

In this opinion the other judges concurred.