author: Heiman, J.

text:
    Metropolitan District Commission v. American Federation of State, County and Municipal Employees, Council 4, Local 184
    (13197)
    Heiman, Schaller and Spear, Js.
    Submitted on briefs December 5,1994
    decision released February 21, 1995

      J. William Gagne, Jr., and Harry B. Elliott, Jr., filed a brief for the appellant (defendant).

      Anthony J. Palermino and Gary R. Atkinson filed a brief for the appellee (plaintiff).
   Heiman, J.

The defendant appeals from the judgment of the trial court vacating an arbitration award pursuant to General Statutes § 52-418. On appeal, the defendant claims that the trial court improperly granted the plaintiff’s application to vacate the award because the evidence was not sufficient to support a finding that the plaintiff’s rights were prejudiced by the failure of the arbitration panel to hold three-way discussions. We agree with the defendant and reverse the judgment of the trial court.

The following facts are relevant to this appeal. The defendant union represents employees of the plaintiff employer. A collective bargaining agreement governs the resolution of disputes between the parties and provides for arbitration by the state board of mediation and arbitration.

In January, 1985, union steward John Holleran filed a grievance on behalf of eleven employees, requesting that the position of specialist on the night emergency crew be reclassified from labor grade five to labor grade seven. In support of its claim, the defendant union asserted that the specialist position had been assigned numerous additional duties since its last classification and that those added duties required additional skill and training and subjected the employees to increased risk. The alleged new duties included covering sewer complaints, fueling trucks with propane, participating in an emergency communication system, and maintaining the interconnection of water systems to Hamilton Standard and Bradley International Airport.

Pursuant to the collective bargaining agreement, the defendant union submitted its request for reclassification to the plaintiffs personnel department. The plaintiff denied the defendant’s request on June 22, 1987, and the defendant demanded arbitration according to the terms of the collective bargaining agreement. Because the parties could not agree on the issue to be submitted to the arbitration panel, the panel framed the issue as follows: “Has the Metropolitan District Commission properly classified the Specialist LG-5 (Shift Coverage) position? If not, what shall be the remedy?” A hearing was held on August 1, 1989, before a three person arbitration panel that consisted of a labor representative, a management representative, and a neutral member.

On July 16, 1990, the arbitration panel issued its unanimous decision in favor of the defendant union. The panel concluded that the additional duties required to be performed by those employed as specialists were significant enough to require reclassification. The plaintiff was, therefore, directed to reclassify the position to labor grade seven.

On July 25, 1990, the plaintiff applied to the Superior Court for an order vacating the award. Among its numerous claims, the plaintiff contended that its rights were prejudiced by the failure of the arbitration panel to hold three-way discussions pursuant to § 31-91-45 (a) of the Regulations of Connecticut State Agencies.* *** The plaintiff did not allege any facts to explain why the failure to hold three-way discussions was prejudicial to its rights. The defendant moved for confirmation of the arbitration award. The parties stipulated to the sole fact that the “three members of the arbitration panel . . . had no three-way discussions, either telephonically or in person, before the arbitration decision and award was issued.” No evidence of the nature of the claimed prejudice was presented to the trial court.

A hearing was held on the cross applications on September 7,1993. The trial court found that the arbitration panel had acted in violation of § 31-91-45 (a), and the court vacated the award. The trial court failed to explain, however, how the plaintiff was prejudiced by the actions of the arbitrators in any way. It further determined that a reasonable time for rendering an award had expired and declined to remand the case to the arbitration panel for a rehearing.

On appeal, the defendant claims that the trial court improperly vacated the award of the arbitration panel. The defendant asserts that the trial corut had insufficient evidence before it to support a finding that the plaintiff was prejudiced by the arbitration panel’s failure to hold three-way discussions as required by § 52-418. We agree.

“We have stated repeatedly that judicial review of arbitration awards is limited in scope . . . .” (Citation omitted; internal quotation marks omitted.) Metropolitan District Commission v. AFSCME, Council 4, 35 Conn. App. 804, 807-808, 647 A.2d 755 (1994). Our courts have “wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention.” (Citations omitted; internal quotation marks omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987); see also Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989). Judicial review of arbitration awards is, therefore, limited in scope by § 52-418 and our courts “will not disturb an arbitration award unless it clearly falls within the proscriptions of [that statute].” (Internal quotation marks omitted.) State v. AFSCME, 13 Conn. App. 461, 463, 537 A.2d 517 (1988); see also State v. Connecticut Employees Union Independent, Inc., 33 Conn. App. 737, 740, 638 A.2d 619 (1994).

In addition, “[t]he party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it falls within the proscriptions of § 52-418 of the General Statutes . . . will the determination of an arbitrator be subject to judicial inquiry.” (Internal quotation marks omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 145-46; see also Norwich Roman Catholic Diocesan Corp. v. Southern New England Contracting Co., 164 Conn. 472, 476, 325 A.2d 274 (1973). “[A] court will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings.” O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 145; see also Diamond Fertiliser & Chemical Corp. v. Commodities Trading International Corp., 211 Conn. 541, 547, 560 A.2d 419 (1989); Norwich Roman Catholic Diocesan Corp. v. Southern New England Contracting Co., supra, 476. “Absent a showing of perverse misconstruction [of the law] or positive misconduct . . . the arbitrator’s determination is not subject to judicial inquiry.” Twin Towers Associates v. Gilbert Switzer & Associates, 4 Conn. App. 538, 540, 495 A.2d 735, cert. dismissed; 197 Conn. 811, 499 A.2d 61 (1985), citing Schwarzschild v. Martin, 191 Conn. 316, 327, 464 A.2d 774 (1983).

On the basis of these principles, we conclude that the trial court improperly vacated the arbitration award.

The plaintiff relied on § 52-418 (a) (3) in support of its application to vacate the arbitration award. Section 52-418 (a) provides that the court “shall make an order vacating the award . . . (3) if the arbitrators have been guilty of misconduct in . . . [taking any] action by which the rights of any party have been prejudiced . . . .” The plaintiff, however, offered no evidence to the trial court that could establish that the actions of the arbitration panel prejudiced it in any way. General Statutes § 52-418 (a) (3); see O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 149 (claim of arbitral misconduct in refusing to hear evidence requires more than showing of error of law; must show that error deprived party of full and fair hearing). The only evidence before the court was the stipulation of the parties that no three-way discussions were held by the members of the arbitration panel. The plaintiff thus failed to meet its burden of proof and in the absence of such evidence, the trial court was required to presume that the actions of the arbitration panel were proper. Id., 145-47.

We conclude that, on the record before us, there is no basis for vacating the arbitration award on the ground of arbitral misconduct. The trial court improperly held to the contrary. See O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 153.

The judgment is reversed and the case is remanded with direction to render judgment confirming the arbitration award.

In this opinion the other judges concurred.

       General Statutes § 52-418 provides in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The defendant also claims that the trial court, pursuant to its powers under General Statutes § 52-418 (b), improperly refused to remand the case to the arbitration panel for a rehearing once the award was vacated. In light of our determination that the arbitration award was improperly vacated, we need not review this claim.

       An employee’s wages are dependent on the labor grade classification assigned to that employee’s position.

       Section 31-91-35 (b) of the Regulations of Connecticut State Agencies provides: “The parties shall present to the panel a carefully worded statement of the issue or issues in dispute between them on which the board is requested to rule. If the parties are unable to agree upon the issue or issues to be decided, the panel shall frame the issues.”

       Section 31-91-45 (a) of the Regulations of Connecticut State Agencies provides: “As promptly as possible after the date of the formal hearing and the receipt of the briefs, where the parties elect to submit briefs, the panel members will meet in an executive panel session to decide the matter submitted.”

       The trial court did not find any of the plaintiff’s other claims to be supported.

       The plaintiffs application to vacate alleged that “[t]he rights of the plaintiff were prejudiced in that no executive session was held to discuss the award.”


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Daniel J. Whalen v. Milton E. Ives, Sr.
    (12764)
    Dupont, C. J., and Landau and Spear, Js.

      Argued October 25, 1994
    decision released February 21, 1995

      Wesley W. Horton, with whom were Kevin C. Connors and Christy Scott, for the appellant (defendant).

      Daniel J. Whalen, pro se, the appellee (plaintiff).
   Spear, J.

The defendant appeals from a judgment rendered in favor of the plaintiff in the amount of $261,122.96. The defendant claims that the trial court improperly (1) conducted a hearing in damages after he filed an answer that required the clerk “automatically” to set aside an earlier default for failure to plead, (2) granted the plaintiff’s motion to strike the defendant’s notice of intention to contradict the plaintiff’s allegations at the hearing in damages, and (3) denied the defendant’s motion to file a late notice of defenses as to the hearing in damages. We disagree with all of the defendant’s assertions and affirm the judgment of the trial court.

The plaintiff’s complaint alleged that the defendant received certain valuable coins, a firearm and other articles that were stolen in a burglary of the plaintiff’s home. The court granted the plaintiff’s motion for default for failure to plead on January 17, 1992, and the clerk sent notice of the default to all parties on January 22, 1992.

On February 6, 1992, the defendant filed a motion to set aside the default pursuant to Practice Book § 376. On February 25, 1992, the trial court granted the motion “if defendant files affidavit setting forth the existence of a defense, and files its answer by 3-10-92.” The defendant failed to file the necessary documents. On March 23, 1992, the plaintiff filed a claim for the hearing in damages list. On April 2,1992, the defendant filed an answer and on May 6,1992, he filed a motion to strike the case from the hearing in damages list. In the May 6 motion to strike, the defendant asserted that “the clerk of the court was obligated to automatically set aside the default pursuant to § 363A of the Practice Book.”

The trial court denied the defendant’s motion to strike, stating in its memorandum of decision that “[ajccordingly, the defendant was defaulted not because he failed to plead but because he failed to comply with an order of the court. (Practice Book § 351.)” On May 18, the defendant filed a “notice as to hearing in damages” that stated which allegations of the plaintiffs complaint he intended to deny and, if necessary, disprove. The plaintiff then filed a motion to strike that notice, asserting that the notice had not been filed within ten days of the notice of default as required by Practice Book §§ 367 and 368. The trial court granted the plaintiffs motion to strike, ruling that “the default was effective as of March 10, 1992, and notice of the court’s order was communicated to counsel on February 25, 1992.”

The defendant then filed a motion for permission to file a late “notice of defenses as to hearing in damages.” That motion was denied by the trial court, and a hearing in damages was held on July 7,1993. The trial court awarded the plaintiff compensatory damages of $78,245, which were trebled pursuant to General Statutes § 52-564. Punitive damages of $26,387.96 were also awarded, resulting in a total judgment of $261,122.96.

I

The defendant first contends that he is entitled to use Practice Book §§ 376 and 363A because both sections address the setting aside of defaults and there is no express prohibition in the rules against using the sections seriatim. He reads the rules to allow a second opportunity to set aside a default. We disagree with the defendant’s interpretation of the rules.

“The rules of statutory construction apply with equal force to Practice Book rules.” Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); Brown v. Smarrelli, 29 Conn. App. 660, 663, 617 A.2d 905 (1992) , cert. denied, 225 Conn. 901, 621 A.2d 284 (1993) . Two principles of statutory construction militate against the interpretation urged upon us by the defendant. The first principle is: “[W]hen two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes . . . [and] where there is a reasonable field of operation for each statute which does not impinge on the domain of the other, it is the court’s duty to give them concurrent effect.” (Internal quotation marks omitted.) Windham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988); see also McCarthy v. Commissioner of Correction, 217 Conn. 568, 578, 587 A.2d 116 (1991).

Practice Book § 363A took effect on October 1,1990, long after the adoption of Practice Book § 376. Just as legislatures are presumed to act with the knowledge of existing laws, so too are the judges of the Superior Court presumed to act with knowledge of existing rules when promulgating new rules. This presumption exists in order to “create one consistent body of laws.” Zachs v. Groppo, 207 Conn. 683, 696, 542 A.2d 1145 (1988); State v. Nixon, 32 Conn. App. 224, 240, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). Pursuant to Practice Book § 376, a court, upon a party’s motion, may set aside a default entered for any reason where judgment has not yet been rendered “/or good cause shown upon such terms as it may impose.” (Emphasis added.) Practice Book § 363A, however, is limited to defaults entered for failure to plead and authorizes the clerk to set aside such a default where an answer is filed before judgment is rendered. The second paragraph of § 363A works in conjunction with the first paragraph that allows the clerk to enter the default for failure to plead without placing the motion for such default on the short calendar. Prior to the adoption of § 363A, a defaulted party’s only remedy was to appeal to the court pursuant to § 376 or its predecessors. Section 363A, on the other hand, mandates that the clerk set the default aside upon the filing of the answer before judgment is entered. In return for the guaranteed set aside of the default, the defendant gives up the right to file a motion to dismiss, a request to revise or a motion to strike. The obvious purpose of § 363A is judicial economy. Such economy is achieved by eliminating the need to place motions for default for failure to plead and motions to set aside such defaults on the short calendar when an answer is filed by the defaulting party, prior to judgment. There is nothing in the rule to suggest that it was intended to provide a second opportunity to set aside the same default.

Practice Book §§ 376 and 363A can be made compatible by limiting each to its proper sphere of operation. Section 376 applies to all defaults and permits the court to set aside such defaults prior to judgment. A party who is defaulted for a reason other than failure to plead must use this section. A defendant who wants to file a pleading that precedes the answer may also resort to this section. In contrast, § 363A applies only to defaults for failure to plead and only when the defendant elects to waive the right to file preceding pleadings by filing an answer prior to judgment.

Upon being defaulted for failure to plead, the defendant must make a choice of which section to invoke. To decide otherwise would run counter to a second well settled rule of statutory construction. Neither statutes nor court rules should be interpreted in a way that leads to bizarre results. “When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results.” (Internal quotation marks omitted.) Gabrielle v. Hospital of St. Raphael, 33 Conn. App. 378, 386, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994). “[I]n construing a statute, common sense must be used and courts will assume that [the legislature intended to accomplish] a reasonable and rationale result . . . .” (Citations omitted; internal quotation marks omitted.) Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 737, 563 A.2d 1347 (1989).

Applying these principles to rule making, it becomes clear why the defaulted defendant must choose one of the rules of practice, and is precluded from using both to address the same default. If we were to adopt the interpretation advanced by the defendant, he would be able to invoke the court’s discretion pursuant to § 376, knowing full well that the court could impose conditions for setting aside the default. The defendant could then choose not to comply with those conditions (as he did here) and effectively countermand the court’s order that the default stand, absent compliance, by resorting to § 363A. This interpretation would vitiate that portion of § 376 that allows the court to set the terms on which it will set aside a default. An even more egregious result could occur when the court denies a defendant’s motion to set aside a default that had entered for failure to plead. Before judgment entered, that defendant could file an answer and the clerk would “automatically” have to set the default aside. Such action would effectively overrule the court’s order. In adopting § 363A, the judges of the Superior Court could not have intended the bizarre result of authorizing a clerk to overrule a court’s order.

A rational result may be obtained by interpreting the rules to require that the defendant elect his remedy. A defaulted defendant could take the guaranteed set aside of § 363A by filing an answer or invoke the court’s discretion pursuant to § 376. This would effect the judicial economy inherent in streamlining the short calendar pursuant to § 363A without impinging on the exercise of the court’s authority to deny a motion to set aside such a default or to attach conditions thereto pursuant to § 376.

We conclude that once the defendant invoked the court’s discretion pursuant to § 376, he was bound by the court’s order thereon and was not entitled to the benefit of § 363A with respect to the same default.

II

The defendant next claims that the court’s order striking his “notice as to hearing in damages” was improper for two reasons. First, he asserts that a motion to strike is not the proper vehicle to address such a notice and, second, he contends that the ten day period pursuant to Practice Book § 368 was never triggered because no notice of the operative default was ever sent by the clerk. We are not persuaded by either argument.

A

The defendant correctly asserts that a motion to strike tests the legal sufficiency of a pleading. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). He argues that because the attack on the notice addressed its timeliness rather than its legal sufficiency, the motion to strike was improper. In support of this argument, the defendant cites Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 528, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989), for the proposition that the proper way to raise a claim that a cause of action is time barred is by way of a special defense, not a motion to strike.

We do not need to address the issue of whether a motion to strike or a special defense is the proper way to raise a timeliness claim pursuant to § 368 because Practice Book § 373 prohibits any pleading to a notice of defenses.

Even though the plaintiff’s motion here is labeled “motion to strike” and invokes Practice Book § 151, we look to the substance of the claim rather than the form. In Killingly v. Wells, 18 Conn. App. 508, 514, 558 A.2d 1039 (1989), this court determined that the use of a form labeled “application for review” was sufficient to appeal a statement of compensation in a condemnation case even though the operative statute provided for an “Appeal by owner.” The court stated that it “was abundantly clear to all parties that the defendant’s application for review contested the town’s statement of compensation . . . .’’Id. In State v. Gonzalez, 206 Conn. 213, 219, 537 A.2d 460 (1988), the Supreme Court rejected a claim that the defendant had not waived his Miranda rights because he signed a form labeled “notice of rights” rather than a “waiver of rights” form. The Supreme Court stated that to accept such a claim would elevate form over substance under the circumstances of that case where there was a clear waiver of the defendant’s Miranda rights.

There is nothing in the plaintiff’s motion to strike that addresses the legal sufficiency of the defendant’s notice of defenses. The sole claim made by the plaintiff is that the notice was untimely. This “motion” is, therefore, more properly viewed as an objection to the filing of the notice rather than a pleading that attacks the contents of the notice. Although the trial court ruled that the “motion is appropriate to address the legal sufficiency of what is in effect an answer,” we may affirm the trial court’s ruling on an alternative ground supported by the record. See Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992); Latimer v. Administrator, 216 Conn. 237, 252, 579 A.2d 497 (1990); In re Jennifer G., 29 Conn. App. 689, 693, 617 A.2d 921 (1992).

It is necessary to treat the plaintiff’s motion as an objection in order to achieve a rationale result in reading § 367, notice of defenses, § 368, ten day rule, and § 373, no pleading to notice, together. To hold that a late notice cannot be attacked would make the ten day provision superfluous and inoperative. Rules of practice, as must statutes, must be read to give effect to all of their provisions. Berger v. Tonken, 192 Conn. 581, 589, 473 A.2d 782 (1984); State v. Roque, 190 Conn. 143, 150-51, 460 A.2d 26 (1983); Hayes v. Travelers Indemnity Co., 26 Conn. App. 418, 421, 601 A.2d 555 (1992). To hold the plaintiff strictly to the label on his filing would exalt form over substance. Because the substance of the plaintiff’s motion was the objection to the defendant’s notice as untimely, it was a proper filing. The court’s action in granting the motion was the functional equivalent of sustaining the objection to the late notice.

B

The defendant further asserts that there was no notice of a default that triggered the ten day provisions of § 368. He also claims in the alternative that § 368 provides that a notice of defenses can be filed, in the case of a denial of a motion to strike, within ten days from the expiration of the time limited for pleading over. The defendant’s notice here was filed within ten days of the trial court’s denial of his motion to strike the case from the hearing in damages list.

We address the defendant’s alternative claim first because it is easily refuted. The part of § 368 that he cites refers only to a situation where a party has a right to plead over. After the court denied the defendant’s motion to strike this case from the hearing in damages list, the defendant could not have pleaded over because he had already been defaulted for failure to plead. Therefore, the defendant’s reliance on this part of § 368 is misplaced.

We now address, the defendant’s claim that there was no notice of default that would trigger the ten day period. His argument rests on two bases: (1) the trial court’s statement that the defendant was defaulted for failure to comply with conditions set by the court and not for failure to plead; and (2) the trial court’s statement that the notice of default that triggered the ten day period was the court’s order of February 25,1992. The defendant asserts: (1) that the clerk never sent notice that he was defaulted for failure to comply with the conditions set by the court in its February 25,1992 order; and (2) if the ten day period ran from February 25,1992, he was in the position of having the ten days expire before his March 10,1992 deadline for compliance with the conditions set by the court. These assertions are without merit.

The trial court’s order of February 25,1992, granting the defendant’s motion to set aside the default for failure to plead on certain conditions constituted what is commonly referred to as a nisi order. Ballentine’s Law Dictionary defines nisi as: “Unless, if not: except.” Such orders are conditional and empower the affected party either to avoid an adverse order of the court or to cause an existing adverse order to be set aside or vacated by complying with the specified conditions. The present case is an example of the latter type of nisi order. The defendant was empowered by the trial court to effect a set aside of the default for failure to plead by complying with the two conditions set by the court. If the defendant had timely complied with those conditions, the default would have been set aside effective as of the date of compliance without the need for further action by the court. By failing to comply with those conditions, the defendant failed to effect the set aside and, therefore, remained in default for failure to plead.

The notice that triggered the ten day provisions of § 368 was, therefore, the January 22, 1992 notice of default for failure to plead. Because that default was never set aside, the trial court’s statements that the defendant was defaulted for failure to comply with the conditions set on February 25,1992, and that the order of February 25 was the notice of default, were of no consequence. Although the trial court referred to Practice Book § 351, no disciplinary default entered on February 25,1992, because the trial court did not order the defendant to do anything. The court granted the defendant the opportunity and the means to effect a set aside of the default, but the defendant’s failure to comply with the conditions and take advantage of that opportunity was not a violation of a court order.

The plaintiff’s assertion that the February 25,1992 order of the trial court could not be notice because the ten days would have run prior to the expiration of the time period within which the defendant could have complied with the court’s conditions is also without merit. We agree that the February 25 order was not notice of a default for the reasons discussed previously. The ten day period after February 25, 1992, is irrelevant because the ten day period for filing a notice of defenses began to run from the January 22, 1992 notice and had expired before the defendant filed his motion to set aside the default on February 6,1992. The trial court’s incorrect statements regarding the notice and the default, therefore, did not affect the defendant’s rights.

Normally a default conclusively determines liability. Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987). Pursuant to § 367, a defaulted defendant who files a timely notice of defenses can contradict the allegations of the complaint and prove matters of defense in addition to contesting the amount of damages. This approximates what the defendant would have been able to do if he had filed an answer and special defenses. In order to obtain this extraordinary relief, the defendant must act within ten days of the notice of a default “[i]n all actions where there may be a hearing in damages . . . .” (Emphasis added.) Practice Book § 368. A party who allows the ten day period from the notice of a default to expire without filing a notice of defenses does so at his peril. The defendant elected to appeal to the court’s discretion pursuant to § 376 without filing a timely notice of defenses as a precaution in the event the court denied his motion to set aside the default. He then chose to ignore the opportunity presented by the court to effect a set aside of the default. The trial court properly precluded the May 18,1992 notice of defenses because the ten day period for doing so had expired over three and one-half months earlier.

Ill

The defendant’s final claim is that the trial court improperly denied his motion to file a late notice of defenses as to a hearing in damages. The defendant’s motion to file a late notice of defenses was addressed to the sound discretion of the trial court. We reverse discretionary rulings of the trial court only where such discretion has been abused and has caused prejudice or injustice. See State v. Denby, 35 Conn. App. 609, 620, 646 A.2d 909 (1994); State v. Harrison, 34 Conn. App. 473, 484, 642 A.2d 36, cert. denied, 231 Conn. 907, 642 A.2d 36 (1994); Coble v. Maloney, 34 Conn. App. 655, 661, 643 A.2d 277 (1994). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Citations omitted; internal quotation marks omitted.) Burke v. Avitabile, 32 Conn. App. 765, 770-71, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993).

In view of all of the circumstances here, including the fact that the notice of defenses was filed more than three and one-half months late, we conclude that the trial court did not abuse its discretion in denying the motion to file a late notice of defenses.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 376 provides in pertinent part: “A motion to set aside a default where no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose. ...”

       Practice Book § 363A provided at the time of the action: “Where a defendant is in default for failure to plead pursuant to Sec. 114, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar.
      “If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the court, the clerk shall set aside the default.”

       Practice Book § 351 provides in pertinent part: “If a party fails to comply with an order of court . . . he may be nonsuited or defaulted by the court.”

         Practice Book § 367 provides: “In any hearing in damages upon default suffered or after a denial of a motion to strike, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff’s complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall he be permitted to prove any matter of defense, unless he has given written notice to the plaintiff of his intention to deny such right or to prove such matter of defense.”

       Practice Book § 368 provides in pertinent part: “In all actions in which there may be a hearing in damages, notice of defenses [as allowed by § 367] must be filed within ten days after notice from the clerk to the defendant that a default has been entered, and in case of the denial of a motion to strike, within ten days from the expiration of the time limited for pleading over.”

       General Statutes § 52-564 provides: “treble damages for theft. Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       Practice Book § 376 was adopted in 1978.

       We note that Practice Book § 363A was amended effective as of October 1,1992, to provide: “If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the court.”

       See footnote 2.

       Practice Book § 112 sets out the pertinent order of pleading as: “(1) The plaintiffs complaint. (2) The defendant’s motion to dismiss the complaint. (3) The defendant’s request to revise the complaint. (4) The defendant’s motion to strike the complaint. (5) The defendant’s answer (including any special defenses) to the complaint. . . .” Practice Book § 113 provides that except where the court rules otherwise, the filing of a pleading “will waive the right to file any pleading . . . which precedes it in the order of pleading provided in [§ 112].”

       Our discussion is focused on Practice Book § 363A as it existed at the time of the pleadings in this case. The amended § 363A requires resort to the court’s discretion if a claim for a hearing in damages or a motion for judgment is filed before the answer is filed.

       See footnote 5.

       Practice Book § 373 provides: “The plaintiff shall file no pleading to such notice, but may meet the facts set up therein by any proper evidence.”

       Practice Book § 151 is entitled “Motion to Strike.”

       General Statutes § 8-132 provides for judicial review of such compensation in a condemnation case and is entitled “Appeal by owner.”

       See footnote 5.

       An example of the former is an order by this court that an appellant’s appeal will be dismissed if the appellant’s brief is not filed by a certain date. If the appellant fails to file the brief on or before the designated date, the dismissal enters as of that date without further order of the court.

       See footnote 3.

       The defendant’s claim that he was entitled to notice of his own failure to comply with the nisi order defies logic and common sense. In addition, such a requirement would place an unnecessary and onerous burden on the clerk’s office because the clerk would have to set up a system to monitor such orders and to notify noncomplying parties of that which they already know.


author: Landau, J.

text:
    State of Connecticut v. John Laccone
    (12667)
    Landau, Speae and Hennessy, Js.

      Argued November 30, 1994
    decision released February 21, 1995

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

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Corinne Klatt, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court improperly (1) excluded a letter written by a state’s witness and thereby restricted cross-examination of that witness on an issue directly related to her truthfulness, (2) unduly restricted the defendant’s direct examination of a defense witness, and (3) diluted the state’s burden of proof in its instructions to the jury.

The jury reasonably could have found the following facts. At 10:30 p.m. on December 25,1991, two Waterbury police officers responded to a report of a child in distress at the apartment of the Chasse family. Upon arrival, the officers were directed by the defendant to the kitchen, where they found a motionless child bleeding from her mouth and nose with distinct facial bruises. The officers succeeded in resuscitating the child, after which they observed a visible bulging on the left side of her head, significant reddish bruises inside her left ear and bruises on the right side of her face.

Earlier that evening, the victim and her mother, Valerie Daigle, had attended a party with the defendant, his sister Tammy Chasse, other members of the Chasse family and Cynthia Mosman, a friend of the Chasses. At this time, the defendant and Daigle had been dating for about four months. At 9:45 p.m., the group left the party, intending to go to the Chasses’ apartment. The defendant, Daigle and the victim rode together. En route, the defendant and Daigle argued and, upon arrival, Daigle went into the apartment alone.

Approximately five minutes later, the defendant walked into the apartment carrying the victim. He carried her into the kitchen, did not place her on the floor, and greeted his sister, Tammy Chasse. He then carried the victim into the bedroom, placed her on a bed and began to take off her snowsuit. Upon being placed on the bed, the victim began to gasp for air. Chasse attempted mouth-to-mouth resuscitation, but the child began bleeding from the mouth and nose and, when laid on the kitchen table, the left side of her head began to swell. Mosman witnessed these events.

The defendant claimed that the victim’s injuries occurred when he placed her on the floor in the kitchen after carrying her inside. He testified that the victim saw Chasse, became excited, began to run toward her and fell, hitting her head on the wooden sink cabinet. He claimed that, upon hitting her head, the victim made a moaning noise and looked surprised, but otherwise appeared to be all right. He then brought her into the bedroom to take off her snowsuit, at which point she stopped breathing. Tammy Chasse corroborated the defendant’s version of these events.

Physician Marc Simms, medical director of the pediatric ambulatory care unit at St. Mary’s Hospital, examined the victim the following morning. He diagnosed the victim as having suffered multiple trauma, including a skull fracture, brain contusions, extensive bleeding under the scalp, many bruises about the face, eyes, jaw and ear lobes, bruises around her left knee, the small of her back and left shoulder, and a fracture just above her right wrist. While most of those injuries were new, some, including the wrist fracture, had occurred prior to December 25.

Simms, who testified for the state, concluded that the victim’s injuries were inconsistent with those that would be incurred by a child of her age and height running into a cabinet. He concluded that the injuries were not accidental and were caused by multiple impacts, including “a very severe impact” of her head against a hard, flat surface.

The victim was treated upon initial admission to St. Mary’s Hospital by Neeta Patel, a pediatric resident. Patel, also testifying for the state, agreed that the victim’s injuries were caused by multiple trauma and not by a child of her size and age running into a cabinet. This opinion was also adopted by Alok Bhargava, a pediatric neurologist, who concluded that a significant amount of force caused the victim’s head injuries. Finally, Betty Spivak, a physician and director of the pediatric intensive care unit at Hartford Hospital, testified that the victim’s skull and brain injuries indicated a very powerful impact against a flat, smooth surface. Spivak concluded that, in order for the victim to have caused these injuries by running into a cabinet, she would have had to have been moving at approximately 22 m.p.h. Spivak agreed with Simms and Patel that while some of her injuries predated December 25, the victim’s head injuries had occurred on that evening.

The defendant’s expert, Robert Harkins, a physician engaged in family practice, testified after reviewing the victim’s medical records, X rays and scans. He concluded that she suffered “a single episode of blunt trauma to cause the ear and scalp bruising and fracture of skull and contusion of brain.” He further concluded that the victim had not been injured by child abuse and that her injuries were “reasonably explained or explainable by the reported trip, fall, and resuscitation attempts.”

Following a jury trial, the defendant was convicted and sentenced to a total effective sentence of thirteen years incarceration, execution suspended after eight years, with five years probation. This appeal followed.

I

The defendant’s initial claim is that the trial court improperly excluded from evidence a letter written by Mosman, a key state’s witness. To support this claim, he asserts that the letter was admissible as a relevant prior inconsistent statement and as an admission of specific misconduct showing a lack of veracity. The defendant also maintains that the trial court’s ruling excluding the letter violated his constitutional right to confront and cross-examine an adverse witness.

The following additional facts are relevant to this claim. Mosman testified on behalf of the state. At the time of the incident, she was an emancipated minor living with the Chasse family because of difficulties in her own home. The defendant cross-examined Mosman extensively regarding discrepancies in her direct examination as well as between her two written statements, one written for the police on the evening of the incident and one written subsequently at the request of Tammy Chasse.

When she was asked on cross-examination whether she considered herself to be a truthful person, Mosman responded that she did. The defendant then offered to introduce a letter signed by Mosman, dated November 21,1991. The letter, which Mosman acknowledged having written, was addressed to Chasse and stated in part, “Dear Tammy, Thanks so much for telling me what I’ve been like. I am going to try hard to stop lying. I stopped doing other things so I can stop lying.”

The state objected to the introduction of the letter, arguing that the defendant’s use of it would be an improper method of impeaching Mosman’s veracity. The state also asserted that no foundation had been laid for introduction of the letter. The court agreed that the defendant had not established a foundation and offered him an opportunity, in the absence of the jury, to do so. In so ruling, the court noted that the letter, absent a foundation, did not rebut Mosman’s testimony that she considered herself at the time of trial to be a truthful person.

On cross-examination for the purpose of establishing a foundation, Mosman testified that at some point prior to November, 1991, Chasse had written her a letter accusing her of lying. The accusation was general, with no mention of a specific instance of lying. Mos-man testified that her November 21 letter was in response to this accusation. In addition to maintaining that the accusation had been false, she explained that she had written what she had “in order to stay on [Chasse’s] good side . . . .” Because she was living with the Chasses at the time and was not comfortable with the situation in her own home, Mosman testified that she had wanted to appease Chasse with the contents of the letter.

Following this testimony, the defendant again attempted to introduce the letter. The trial court refused to permit it, noting that the letter was not proper impeachment material in that the defendant had failed to establish any connection between it and Mos-man’s trial testimony.

A

The defendant first argues that the trial court improperly excluded the letter in that it constituted a prior inconsistent statement. He contends that while Mosman testified on cross-examination that she considered herself to be a truthful person, she had stated a contradictory opinion in the November, 1991 letter. Consequently, the letter should have been admitted for the purpose of impeaching Mosman’s veracity.

“It is well established that the trial court has broad discretion in ruling on the admissibility and relevancy of evidence. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). A court’s ruling on such evidentiary matters will not be reversed unless the defendant shows a clear abuse of discretion. State v. Watkins, 14 Conn. App. 67, 73, 527 A.2d 1157, cert. denied, 208 Conn. 804, 545 A.2d 1102 (1988).” State v. Quinones, 21 Conn. App. 506, 513, 574 A.2d 1308, cert. denied, 215 Conn. 816, 576 A.2d 546 (1990).

“It is an elementary rule of evidence that the credibility of a witness may be attacked by showing a materially inconsistent prior statement.” G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 60-61, 411 A.2d 31 (1979). While this is true, “[t]o be admissible, the court must first be persuaded that the statements are indeed inconsistent.” State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). “Whether there are inconsistencies between the two statements is properly a matter for the trial court. . . . In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined.” (Citations omitted.) State v. Whelan, 200 Conn. 743, 748 n.4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

In this case, Mosman was asked on cross-examination, “Would you consider yourself to be a truthful person?” She answered “Yes,” in effect that, at that point in time, she considered herself truthful. The defendant offered the letter, which had been written approximately one year prior to the trial, as an inconsistent statement. In the letter, Mosman indicated that in November, 1991, she had been lying and intended to stop doing so. Mosman did not testify at trial that she had never lied or that in November, 1991, she considered herself to be a truthful person. It is entirely consistent that a person who considered herself untruthful could, one year later, have reassessed that opinion. As the trial court stated, “This letter says: I am going to try hard to stop. And, who am I and who is anyone, except through the avenue of cross-examination, to determine if she stopped and when she stopped.” Considering Mosman’s explanation of why she had written the letter, it was well within the trial court’s discretion to determine that Mosman’s two statements were not inconsistent.

The defendant also argues that the letter was admissible as an admission of specific misconduct showing a lack of veracity. He makes this claim for the first time before this court. “It is a rule of long standing that in the absence of exceptional circumstances, claims of error not raised distinctly at the trial will not be reviewed on appeal.” Saradjian v. Saradjian, 25 Conn. App. 411, 419, 595 A.2d 890 (1991); see Practice Book § 4185. “Nothing in the record before us establishes that this case presents exceptional circumstances warranting departure from our well-established rule limiting appellate review to claims distinctly raised in the trial court.” Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983). Accordingly, we decline to review this claim.

B

The defendant also argues that the trial court’s ruling violated his right to confront and cross-examine an adverse witness as guaranteed by the sixth amendment to the federal constitution and article first, § 8, of the Connecticut constitution. He contends that the exclusion of the letter and, consequently, of cross-examination regarding the letter prevented him from adequately exploring Mosman’s veracity and bias, issues that reflected on her credibility as a witness. We disagree.

“The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).” State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985). The sixth amendment is satisfied when the defendant is “permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Castro, 196 Conn. 421, 425, 493 A.2d 223 (1985).

“ ‘The confrontation right, however, is not absolute and is subject to reasonable limitation. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985).’ ” State v. Lewis, 220 Conn. 602, 621, 600 A.2d 1330 (1991). “The extent of cross-examination beyond that necessitated by the constitution rests within the discretion of the trial court.” Id., 622. Therefore, our courts first determine whether the defendant’s cross-examination satisfied the sixth amendment standards as enunciated in Davis v. Alaska, supra, 415 U.S. 318. If so, “[t]he general rule is that further restrictions on the scope of cross-examination are within the sound discretion of the trial judge. . . .” (Citations omitted; internal quotation marks omitted.) State v. Castro, supra, 196 Conn. 424-25. “ ‘ “To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.” . . . Once it is established that the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will apply ‘[e]very reasonable presumption ... in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.’ ” (Citations omitted.) Id., 426.

Our threshold inquiry, then, is whether the defendant’s cross-examination of Mosman satisfied the principle enunciated in Davis v. Alaska, supra, 415 U.S. 318. The defendant proposed to introduce the letter and then to inquire about it on cross-examination in order to impeach Mosman’s veracity. The defendant, however, was otherwise permitted to explore her character for truthfulness. On direct examination, Chasse testified that Mosman was a chronic liar, as did Annie Laccone, the defendant’s mother. On cross-examination, Mosman was asked extensively about her troubled background and inconsistencies between her two statements. “In determining whether the cross-examination of [Mosman] was unduly restricted it is the entire cross-examination which we must examine.” State v. Asherman, 193 Conn. 695, 721, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Using this standard, we must conclude that the defendant’s rights were not violated. The defendant was permitted to expose the jury to sufficient facts from which it could pass on Mosman’s veracity. The constitutional threshold having been satisfied, it was within the trial court’s discretion whether to admit further evidence on that issue. We cannot conclude that the court abused its discretion in excluding the letter.

The defendant also asserts on appeal that the letter went to the issue of Mosman’s bias. That is, he claims that cross-examination regarding the letter would have shown that Mosman harbored resentment toward Chasse. Such evidence, he concludes, would reasonably tend to indicate that Mosman’s testimony might be influenced by bias.

“Cross-examination regarding motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979).” State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985). The defendant claims that the trial court’s ruling prevented him from exposing the jury to facts tending to show bias. We note, however, that the theory on which the defendant offered the letter at trial did not implicate bias. The purpose of the defendant’s offer was to impugn Mosman’s general veracity, not her bias against Chasse.

It is clear from the record that the defendant was allowed wide latitude to cross-examine Mosman on issues relating to credibility. Under the circumstances, we cannot conclude that the defendant was denied his constitutional right of confrontation. “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. In this instance, the defendant has put a constitutional tag on a nonconstitutional claim. State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).” State v. Vitale, supra, 197 Conn. 403.

We conclude that the trial court did not improperly exclude from evidence the November 21 letter.

II

The defendant next claims that the trial court improperly precluded him from presenting evidence of Mos-man’s bias through the direct examination of a defense witness. In that he failed to take an exception when the trial court sustained the state’s objection to his line of inquiry, the defendant concedes that this claim is unpreserved. He maintains, however, that this claim is entitled to review pursuant to the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as reformulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Beyond his mere assertion that this claim implicates the sixth amendment to the federal constitution and article first, § 8, of our state constitution, the defendant presents us with no analysis to support his claim for Evans-Golding review. Because the defendant has faded to brief this issue adequately, we will not review it. Practice Book § 4065; State v. Cain, 25 Conn. App. 503, 524, 596 A.2d 449 (1991), aff’d, 223 Conn. 731, 613 A.2d 804 (1992).

Ill

In his final claim, the defendant argues that the trial court’s instructions unconstitutionally diluted the state’s burden of proving guilt “beyond a reasonable doubt.” Although the defendant did not take an exception to the instructions on this theory, he once again claims review under the Evans-Golding doctrine.

As the defendant concedes, the challenged instructions are similar to jury instructions that have repeatedly been approved by our Supreme Court. See, e.g., State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993); State v. Gomez, 225 Conn. 347, 353-54, 622 A.2d 1014 (1993); State v. Adams, 225 Conn. 270, 290-91, 623 A.2d 42 (1993); State v. Ireland, 218 Conn. 447, 457, 590 A.2d 106 (1991); State v. Dyson, 217 Conn. 498, 504-505 n.3, 586 A.2d 610 (1991). In such cases, the court concluded that similar instructions did not unconstitutionally dilute the state’s burden of proof when viewed in the context of the entire charge. See State v. Lytell, 206 Conn. 657, 664, 539 A.2d 133 (1988) (test whether jury charge as whole presents case adequately to jury so that no injustice is done). The defendant has thus failed to establish a clear violation of a fundamental constitutional right as required by the third prong of the test set forth in State v. Golding, supra, 213 Conn. 239-40.

Controlling precedent notwithstanding, the defendant suggests the possibility that our Supreme Court may want to revisit this matter. We leave his invitation to that court and conclude that his claim before this court must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Mosman was the only purported eyewitness who testified that the victim was never placed on the floor and did not incur her injuries by running into the cabinet. Her testimony directly contradicted that of the defendant and Tammy Chasse, the only witnesses who claimed to have observed the victim fall against the cabinet.

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . .

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right . . . to be confronted by the witnesses against him . . . .”

       Social relationships may ‘ ‘have a tendency to show bias. When the issue involves the relationship between a witness and a party, cross-examination of the witness to demonstrate this relationship is a matter of right which may not be unduly restricted. Alford v. United States, 282 U.S. 687, 51 S. Ct. 218, 75 L. Ed. 624 (1931). This may also be true in many cases involving the relationship of witnesses to each other.” State v. Asherman, supra, 193 Conn. 720.

       “[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.” State v. Golding, supra, 213 Conn. 239-40.

       The defendant challenges the following jury instructions, given by the trial court as part of its final charge: “The burden of proving the defendant guilty beyond a reasonable doubt requires that the state produce sufficient evidence to create in your minds a strong and abiding conviction in the guilt of the defendant. The evidence must be so sufficient that it leaves no room in your minds for any presumption of the defendant’s innocence.
      “The term reasonable doubt has no technical or unusual meaning. You can understand and appreciate its real meaning by placing emphasis on the word reasonable. A reasonable doubt is not a doubt raised by someone for the sake of raising a doubt. It is not a conjecture, it is not a guess, it is not a surmise. A reasonable doubt is not hesitation springing from feelings of sympathy or pity. A reasonable doubt is a doubt founded upon the evidence. It is a doubt that grows out of the evidence or lack of evidence in a particular case. It is a doubt for which you, in your minds, can give a reason based upon the evidence or lack of evidence. A reasonable doubt is a square and honest doubt. It is the kind of doubt that would make a reasonable person hesitate to act.
      “If the facts that you find to have been proven can reasonably be explained in any other way than that the defendant is guilty, you must of course render your verdicts in his favor. Absolute certainty in the affairs of life, however, is almost never obtainable. And, the law does not require absolute certainty on the part of the jury, to authorize guilty verdicts.
      “What is required, ladies and gentlemen, is that guilt must be proven beyond a reasonable doubt. Proof beyond a reasonable doubt is proof of a sufficiently convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs.”


author: O’Connell, J.

text:
    State of Connecticut v. Kenneth Wokoma
    (11979)
    O’Connell, Heiman and Schaller, Js.
    Argued November 28, 1994
    decision released February 21, 1995

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant was charged in a two count information with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and robbery in the second degree in violation of General Statutes § 53a-135 (a) (l). The jury acquitted the defendant of the charge of robbery in the first degree but found him guilty of the count charging robbery in the second degree.

The defendant claims that the trial court improperly instructed the jury on accessorial liability. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On March 29,1992, Vincent Muse stopped at his cousin’s apartment building to repay her $20. As he waited on the front porch for her to let him in, a Hispanic male, later identified as Jose Cruz, stepped onto the porch from the first floor apartment and told Muse, “You’re caught out,” street parlance for “This is a robbery.”

Muse and Cruz grappled until Cruz feigned having a gun, and Muse ceased struggling. When he realized that Cruz did not have a gun, Muse resumed fighting, and the two struggled into the backyard of the apartment building.

At this point, Cruz called out a name, and the defendant came out of the back door of the apartment. He approached Muse and demanded, “Where’s the money?” The defendant then went through Muse’s pockets, taking a $20 bill. The defendant and Cruz then ran back into the apartment.

Muse ran to another apartment and called 911. The police came and knocked on the first floor apartment door, but there was no response. The landlord came and let them into the apartment, where they found the defendant and Cruz. No gun was found.

The defendant raised no objection to the trial court’s main jury charges on robbery in the first degree and robbery in the second degree, neither of which included an instruction on the possibility of accessorial liability under General Statutes § 53a-8 (a).

During its deliberation, the jury sent the court a message asking the following question: “If [the defendant] came out and aided Cruz in the crime, but did not know that Cruz displayed what he represented by his words and conduct to be a firearm, is [the defendant] guilty of robbery in the first degree?”

The trial court responded with a supplemental instruction that included the statement that the defendant “could be found guilty of robbery in the second degree as long as you find proven beyond a reasonable doubt that he came out and aided Cruz in the robbery as I have defined that term for you.”

The defendant did not take exception to the supplemental instruction, but now contends that the supplemental instruction was a defective accessorial liability instruction because it did not include the elements of such liability set forth in § 53a-8. The state counters that the court was not attempting to give a charge on accessorial liability under § 53a-8, rather it was attempting to clarify the applicable subsection of § 53a-135, the robbery in the second degree statute, i.e., “(a) [a] person is guilty of robbery in the second degree when he commits robbery . . . and (1) he is aided by another person actually present . . . .” (Emphasis added.)

That the trial court was instructing on the “aided by another person actually present” portion of the second degree robbery statute and not on the accessory statute is clear from the substance of the instruction. The accessory statute would be equally applicable to first degree or second degree robbery. The court, however, specifically negated a conviction of first degree robbery, but allowed a second degree conviction if the defendant was present and aided Cruz while possessing the requisite intent.

The defendant proffers no authority that would warrant our holding that conviction of robbery in the second degree under § 53a-135 (a) (1) requires proof beyond a reasonable doubt of the elements of the accessory statute, § 53a-8. The usual rules of statutory construction militate against such interpretation. The robbery in the second degree statute and the accessory statute were enacted at the same time as part of the original penal code. Public Acts 1969, No. 828. “[Statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.” 84 Century Ltd. Partnership v. Board of Tax Review, 207 Conn. 250, 263, 541 A.2d 478 (1988). If the defendant was correct, § 53a-8, which establishes accessorial liability, would cover the entire field, and subdivision (1) of the robbery in the second degree statute would be rendered unnecessary.

The defendant also argues that the supplemental instruction would allow the defendant to be convicted even if he was merely an innocent bystander with no intent to commit robbery. This argument ignores two references to robbery “as I have defined that term for you.” This is a clear reference to the robbery instruction in the main charge, which contains a complete and proper instruction on the specific intent required for robbery. We cannot isolate the supplemental charge from the main charge. They must be read together. State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986); State v. Hopkins, 25 Conn. App. 565, 571, 595 A.2d 911, cert. denied, 220 Conn. 921, 597 A.2d 342 (1991). Reading them together, we conclude that a person could not be considered an innocent bystander if he harbored the intent described therein.

It is not relevant that the defendant may have been the “person actually present” who aided the principal rather than being the principal who was aided by another person. It is well established that an accomplice may be charged as if he was the principal offender. State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery ... he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm if

       General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present

       There was disputed evidence that the defendant was armed when he came out of the building.

       General Statutes § 53a-8 provides in relevant part: “criminal liability for acts of another, (a) 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.”

       The complete supplementary jury charge was as follows: “I can’t answer that question in the exact language that you gave it to me, and I am going to put it in somewhat more legalistic terms, but I am going to deal with the specific hypothetical that you gave and not anything further.
      “An instruction would read as follows: If the defendant came out and you do not find proven beyond a reasonable doubt that he displayed what he represented by his words or conduct to be a firearm, and you do not find proven beyond a reasonable doubt that he knew that Cruz had displayed what he represented to be a firearm but the defendant aided Cruz in the robbery as I have defined that term for you, the defendant could not be found guilty of robbery in the first degree but could be found guilty of robbery in the second degree as long as you find proven beyond a reasonable doubt that he came out and aided Cruz in the robbery as I have defined that term for you.”


text:
    State of Connecticut v. Milton E. Ives, Sr.
    (12620)
    Dupont, C. J., and Heiman and Spear, Js.

      Argued November 1, 1994
    decision released February 21, 1995

      Hubert J. Santos, with whom, on the brief, was Hope C. Seeley, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were Patricia Swords, state’s attorney, and Nina Rosen, assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from a judgment of conviction of larceny in the first degree by receiving stolen property in violation of General Statutes §§ 53a-119 (8) and 53a-122 (a) (2), larceny in the first degree as an accessory in violation of General Statutes §§ 53a-8* * and 53a-122, and burglary in the third degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-103. The defendant claims that the trial court improperly (1) denied his motion to suppress evidence, (2) limited his cross-examination of the complainant, (3) denied his motion for acquittal that was based on a double jeopardy claim, and (4) denied his motion for acquittal that was based on the theory that, as a matter of law, one cannot be an accessory to an accessory.

The jury reasonably could have found the following facts. The defendant, Milton Ives, owned and operated a used furniture and antique shop known as the Barn Sale. The defendant buys and sells and collects coins. In November, 1990, Daniel Whalen contacted the defendant and offered to sell him some items. The defendant met Whalen at Whalen’s home and viewed the items that Whalen was interested in selling. Whalen also showed the defendant his coin collection, which included a Standing Liberty quarter collection. The defendant complimented Whalen on his collection and offered to buy a rare 1916 Standing Liberty quarter. During this meeting, the defendant saw Whalen retrieve the coins from a safe in his laundry room.

In December, 1990, the defendant asked Rodney Stevens if he knew anyone who would burglarize Whalen’s home and steal the coins. The defendant offered Stevens $5000 for Whalen’s 1916 Standing Liberty quarter. Pursuant to this conversation, Stevens arranged for Ronald Foley and Angelo Piazza to steal the coins. On January 3,1991, Whalen reported to the state police that his coin collection had been stolen.

On January 15, 1991, Foley was arrested on other charges and informed the police of his and others’ participation in the burglary. Stevens was arrested in March, 1991, for his part in the burglary. On June 12, 1991, the state police learned that the defendant had sent coins that matched the description of the stolen coins to the American numismatic association certification service (ANACS) for certification. On June 21, 1991, the police executed a search warrant at the Barn Sale. Whalen accompanied the police and identified nineteen coins as his. The defendant was subsequently arrested, tried and convicted.

I

The defendant first claims that the trial court improperly denied his motion to suppress all evidence found from the search of the Barn Sale. He challenges the validity of the warrant on three grounds: (1) the warrant affidavit failed to establish probable cause; (2) the information set forth in the warrant affidavit was stale; and (3) the affiant recklessly or intentionally omitted facts that negated probable cause in violation of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). We are not persuaded by the defendant’s arguments.

A

The defendant first asserts that the search warrant affidavit did not establish probable cause because it contained insufficient facts from which a reasonable inference could be drawn that the items to be seized would be found either at his residence or business. He claims that the search violated the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, and, therefore, the evidence obtained pursuant to the search of his business should have been suppressed by the trial court. We do not agree.

“Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Emphasis in original; internal quotation marks omitted.) State v. Vincent, 229 Conn. 164, 171, 640 A.2d 94 (1994). The defendant claims that the warrant affidavit did not satisfy the second element needed to establish probable cause because the affidavit failed to establish that the items would be found at either the defendant’s business or residence.

“ ‘The role of an appellate court reviewing the validity of a warrant is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed.’ ” State v. Duntz, 223 Conn. 207, 215, 613 A.2d 224 (1992). “In determining whether the warrant was based upon probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom. . . . We view that information, however, in the light most favorable to the issuing judge’s determination of probable cause, and [i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination.” (Citation omitted; internal quotation marks omitted.) Id., 216.

From the allegations set forth in the search warrant, the issuing magistrate reasonably could have concluded that there was probable cause that the stolen property would be found at either the defendant’s residence or his place of business. On June 20,1992, search and seizure warrants were issued to seize the contents of the stolen safe, including, but not limited to, numerous coins, a revolver, oriental rugs, and any records showing business transactions with Stevens. Paragraph six of the affidavit sets forth the facts showing that the defendant had knowledge of the coins and their location in the safe. It stated that the defendant visited Whalen’s home a few weeks prior to the burglary, and at this time, the defendant saw the coins and where they were kept in the safe. Paragraph eleven of the affidavit stated that the defendant told Whalen that he did not own a 1918 over 17 Standing Liberty quarter and that his 1916 Standing Liberty quarter was of an inferior grade. From this information, coupled with the fact that the defendant is a coin collector and offered Whalen between $3000 and $5000 for the 1916 coin, the magistrate could reasonably have inferred that the defendant had a motive to acquire coins belonging to Whalen.

The affidavit contained further facts that supported an inference of probable cause. It stated that the defendant admitted knowing Stevens, and that Stevens had tried to sell coins consistent with Whalen’s collection at about 2:30 p.m. on January 3, 1991, the day of the burglary. It also alleged that the defendant submitted coins to ANACS for appraisal on January 23, February 1, and February 4,1991. The dates, denominations and grades of these coins were identical to the coins that were stolen from Whalen.

It was reasonable for the issuing judge to infer that by June 20, 1991, when the affidavit was signed, the coins had been returned by ANACS to the defendant. As the defendant is an avid coin collector who expressed an interest in Whalen’s coins because of their superior quality, it was a reasonable inference for the judge to conclude that the defendant would retain at least some of the coins at either his business or residence.

“The nexus between the items sought and the place to be searched may be inferred from the type of crime, the nature of the evidence, the extent of an opportunity for concealment and normal inferences as to where a criminal would likely hide the item. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Vincent, 30 Conn. App. 249, 257, 620 A.2d 152 (1993), aff’d, 229 Conn. 164, 640 A.2d 94 (1994). It was reasonable for the magistrate to conclude that the coins would be stored either among the defendant’s collections at his residence or among the items for sale at his business, and, accordingly, probable cause existed to search both places.

B

The defendant next claims that the warrant was invalid because the facts alleged in the affidavit were too remote in time from the actual search. He argues that the four month lapse between the burglary and the issuance of the search warrant caused the factual allegations to become stale, and, thus, there was no probable cause to believe that items listed in the affidavit would be found in his residence or business on June 21, 1991. We disagree.

Proof of existence of probable cause for issuance of a search warrant must include facts so closely related to the time of issuance of the warrant as to justify a finding of probable cause at that time. Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 77 L. Ed. 260 (1932); State v. Vincent, 229 Conn. 164, 174, 640 A.2d 94 (1994). In our determination of whether the four month passage of time precluded a finding of probable cause there is no formulaic rule to be applied, but rather the question of staleness must be determined on a case by case basis. State v. Vincent, supra, 174.

In this case, the police officers were given authority to search the defendant’s business and residence for the items that were stolen from Whalen’s safe, specifically, numerous valuable coins. They were also authorized to search for any canceled checks or records evidencing business transactions with Stevens. It was reasonable to believe that an avid coin collector who had previously expressed an interest in the coins would keep at least some of them for a period of time as part of his collection. Furthermore, because the coins were not inherently incriminating and were likely to remain on the defendant’s premises, probable cause dissipated less rapidly than if they were consumable or inherently incriminating. State v. Carbone, 172 Conn. 242, 251, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977). It was reasonable for the issuing judge to have inferred that it was likely that the canceled checks and business records were on the premises.

Under these circumstances, we conclude that the four months between the facts alleged and the challenged search did not preclude a finding of probable cause.

C

The defendant’s final claim with regard to the search warrant is that even if probable cause existed, the warrant was nonetheless invalid because material information was omitted in violation of Franks v. Delaware, supra, 438 U.S. 154.

In order to prevail on a Franks claim, the defendant must prove: (1) that a false statement or omission was intentionally or recklessly made in the affidavit; and (2) that the factual misstatement or omission is material to the finding of probable cause. State v. Rodriguez, 223 Conn. 127, 142-43, 613 A.2d 211 (1992); State v. Copeland, 22 Conn. App. 98,100, 576 A.2d 567 (1990). The defendant claims that the following information was intentionally or recklessly omitted from the affidavit: (1) the defendant’s residence had been searched by Detective Sergeant Frank Griffin, one of the affiants, on March 27,1991, on a matter totally unrelated to the Whalen burglary, (2) during this search, the defendant gave the detective coins for Whalen to identify and (3) these coins were shown to Whalen, who failed to identify them as coins that were stolen from his house in January, 1991.

The fact that Whalen had failed to identify certain coins would not have precluded the issuing judge’s determination that probable cause existed. The defendant was in possession of many coins other than those that he gave to the detective and was free to choose selectively the coins given to Whalen for review, and it would have been reasonable for the issuing judge to conclude that the defendant had chosen to retain possession of the stolen coins. After reviewing the omitted facts, we conclude that even if the challenged omissions had been included in the application there would have been probable cause to support the issuance of the search warrant. This conclusion eliminates the need to determine whether the omission was made either intentionally or recklessly. See State v. Just, 185 Conn. 339, 359-60, 441 A.2d 98 (1981). Accordingly, the defendant was not entitled to have the evidence suppressed on the basis of a Franks claim.

II

The defendant’s second claim is that his convictions of larceny in the first degree by receiving stolen property and larceny in the first degree as an accessory violated his state and federal constitutional rights against double jeopardy. We find no such violation.

The double jeopardy clause protects a defendant from multiple punishments for the same offense. State v. Lonergan, 213 Conn. 74, 78-79, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). To be entitled to this type of double jeopardy protection, the defendant must satisfy both prongs of a two prong test. “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 571-72, 638 A.2d 578 (1994); State v. Snook, 210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Roy, 34 Conn. App. 751, 768, 643 A.2d 289, cert. granted on other grounds, 231 Conn. 918, 648 A.2d 166 (1994).

Our first inquiry is to determine whether both offenses arose from the same transaction. In making that decision, we analyze the language of the information. State v. Roy, supra, 34 Conn. App. 768; State v. Nita, 27 Conn. App. 103, 113, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329 (1992). The first count of the amended information and bill of particulars charges the defendant with larceny in the first degree in violation of §§ 53a-122 and 53a-119 (8). The first count alleges that “sometime between January 3, 1991, and June 21,1991, at the ‘Barn Sale’ located on Route 6 in Windham, Connecticut, the defendant Milton Ives, with intent to deprive Daniel Whalen of property, namely coins, wrongfully received, retained, and disposed of those coins knowing that they had probably been stolen.” The third count of the amended information and bill of particulars further charges the defendant with being an accessory to larceny in the first degree in violation of §§ 53a-8 and 53a-122 in that “on or about January 3,1991, the defendant, Milton Ives, solicited, requested, commanded, importuned, and intentionally aided Rodney Stevens in depriving Daniel Whalen of property . . . .” Given that the two offenses occurred on separate days and in different places, they were not part of the same transaction, but rather were two separate transactions. Cf. State v. Roy, supra, 768 (holding that offenses arose out of same transaction because they were alleged to have occurred at same time and place). We conclude, on the basis of our review of the information, that the crimes charged did not arise out of the same act or transaction.

Even if we were to conclude that the charges arose out of the same transaction, the defendant’s claim must fail because we are not persuaded that the two offenses constitute the same offense for double jeopardy purposes. Both our Supreme Court and this court have continually applied the test promulgated in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), to determine whether two offenses constitute the same offense for double jeopardy purposes. State v. Nixon, 32 Conn. App. 224, 236, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995); State v. Chicano, 216 Conn. 699, 705-707, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. Nita, supra, 27 Conn. App. 114-15. “It is fundamental constitutional law that where the charges arise out of the same transaction, they are not the same offense for double jeopardy purposes if each statute requires proof of a fact that the other does not.” State v. Fudge, 20 Conn. App. 665, 669, 569 A.2d 1145, cert. denied, 214 Conn. 807, 573 A.2d 321 (1990).

A comparison of the two offenses reveals that each requires proof of an element that is different from the elements of the other crime. The first count, which alleges larceny by receiving stolen goods under §§ 53a-119 (8) and 53a-122 (a) (2), required the state to prove that the defendant (1) received, retained or disposed of the coins (2) knowing that the coins were stolen. In contrast, to prove larceny as an accessory in violation of §§ 53a-8 and 53a-122 the state had the burden of proving that the defendant (1) solicited, requested, commanded, importuned or aided Stevens (2) in wrongfully taking the coins from Whalen’s residence.

In our determination of whether each crime contains an element not found in the other, we examine the relevant statutes, information and the bill of particulars. State v. Nixon, supra, 32 Conn. App. 237. Except for the intent permanently to deprive Whalen of the coins, none of the elements of larceny as an accessory is an element of larceny by receipt of stolen goods. It is clear that each crime contains at least one element not found in the other. Therefore, they are not the same offense for double jeopardy purposes under Bloekburger. State v. Fernandez, 27 Conn. App. 73, 95, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992); State v. Roy, supra, 34 Conn. 771.

We also find the defendant’s reliance on the common law rule against holding the defendant liable for both larceny and receipt of stolen goods unpersuasive in rebutting the presumption that the two crimes are separate under Bloekburger. This common law rule is limited to the proposition that the person guilty of the actual theft cannot also be guilty of receiving the same goods. State v. Palkimas, 153 Conn. 555, 560, 219 A.2d 220 (1966). This rule is inapplicable here because there is no claim that the defendant actually stole the goods, but rather that he had someone else steal the goods. Because the defendant was not the actual thief, he can be convicted of larceny as an accessory and larceny by receipt of goods.

We conclude that the defendant’s punishments for larceny in the first degree by receiving stolen goods and larceny in the first degree as an accessory did not violate the constitutional prohibition of multiple punishments for the same offense.

Ill

The defendant claims that the trial court improperly restricted his cross-examination of Whalen and prevented him from presenting evidence of a judgment entered against Whalen in a dissolution action in violation of his rights under the fifth, sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution. The defendant argues that these limitations prevented him from showing that Whalen had the motive to arrange for the theft of his own coins. We disagree.

The following additional facts are necessary for the resolution of this issue. At trial, the defendant claimed in his defense that Whalen had arranged the burglary to satisfy the preexisting judgment by framing the defendant and filing a civil suit against the defendant in which he sought damages significantly higher than the value of the coins. To prove this theory, the defendant wanted to cross-examine Whalen concerning the terms of the dissolution judgment. The trial court refused to permit the defendant to pursue this line of questioning because it held that the evidence failed to show a direct connection between Whalen and the burglary. The trial court also refused to permit the defendant to offer evidence of Whalen’s failure to comply with the financial obligations set forth in the dissolution judgment.

“A defendant may give evidence concerning a third party’s involvement with the crime, as long as there is some evidence which directly connects the third party with the crime. . . . [I]t is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” (Citation omitted; internal quotation marks omitted.) State v. Ireland, 218 Conn. 447, 451, 590 A.2d 106 (1991). “It is not enough [however] to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant was accused.” (Citations omitted; internal quotation marks omitted.) State v. Sauris, 227 Conn. 389, 401, 631 A.2d 238 (1993).

Because the admissibility of such evidence is governed by the rules of relevance, the proffered evidence taken alone or together must render the guilt of the third party more certain or probable. The evidence that the defendant sought to admit is too tenuous to be considered relevant. Although the fact that Whalen had an outstanding dissolution judgment may show Whalen’s need for money, it fails to raise more than a mere suspicion. As the trial court noted, a civil lawsuit is a slow and uncertain method of raising funds. Furthermore, there is no connection between Stevens and Whalen. Stevens testified that he had lied to Foley by telling him that he had been to Whalen’s house and seen the safe in order to ensure that Foley would take part in the burglary. Under these circumstances, the trial court did not abuse its discretion in concluding that the evidence of Whalen’s dissolution judgment was not relevant.

IV

The defendant’s final claim is that the trial court improperly denied his motions for judgment of acquittal because there was insufficient evidence to support the jury’s conviction of larceny in the first degree as an accessory and burglary in the third degree as an accessory. Under § 53a-8, a person may be convicted as an accessory if, “acting with the mental state required for the commission of an offense, [he] solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense . . . .” The defendant argues that, as a matter of law, one cannot be convicted of being an accessory to an accessory. We are not persuaded by the defendant’s argument. Rather, we believe that the defendant has misconstrued the basic tenets of accessorial liability as set forth in § 53a-8.

“When a claim on appeal challenges the sufficiency of the evidence we first review the evidence in the light most favorable to sustaining the jury’s verdict; next we determine, whether, upon the facts 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. ...” (Citations omitted; internal quotation marks omitted.) State v. Holder, 18 Conn. App. 184, 194, 557 A.2d 553 (1989).

We conclude that there was sufficient evidence from which the jury could have reasonably found the defendant guilty of larceny in the first degree as an accessory and burglary in the third degree as an accessory. The defendant argues that because he never actually communicated with the principals of the crime, Foley and Piazza, but only with Stevens, he cannot be an accessory to Foley and Piazza’s crimes. This argument is wholly without merit. The purpose of accessorial liability is to impose alternative liability on those who solicit or aid others in the commission of crimes. See State v. Hopkins, 25 Conn. App. 565, 568-69, 595 A.2d 911, cert. denied, 220 Conn. 921, 597 A.2d 341 (1991). Using the defendant’s reasoning, a person could easily escape liability by having an intermediary communicate with the principals of a crime. Were we to accept this line of reasoning, it would thwart the purpose of imposing accessorial liability.

In order to prove accessorial liability, the state must prove beyond a reasonable doubt that the defendant had both the intent to help the principal and the intent to commit the crime. State v. Vincent, 194 Conn. 198, 207, 479 A.2d 237 (1984). The evidence presented at trial showed that the defendant helped the principals by providing them with a map to Whalen’s house. The fact that the defendant did not give the map directly to either Foley or Piazza but to Stevens does not eliminate the defendant’s liability as an accessory. By giving the map to Stevens, the defendant not only aided the principals but also demonstrated his intent to facilitate the commission of the crime. We conclude that there was sufficient evidence to sustain a verdict of guilty.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .
      “(8) Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen . . . .”

       General Statutes § 53a-122 (a) provides in pertinent part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and .... (2) the value of the property . . . exceeds ten thousand dollars . . . .”

       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-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.”

       An initial attempt to rob Whalen’s house proved futile as Foley and Piazza were unable to find the house. The defendant thereafter provided Stevens with a map showing the location of Whalen’s house. Stevens gave this map to Foley and Piazza.

       As the defendant has failed to provide us with a separate analysis of the state constitution, we will review the claim only under the federal constitution. State v. Pinnock, 220 Conn. 765, 776 n.3, 601 A.2d 521 (1992).

       Cases subsequent to Franks have extended the rule to include material omissions from an affidavit. See State v. Weinberg, 215 Conn. 231, 237, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990).

       As the defendant has failed to provide us with a separate analysis of the state constitution, we will review the claim under only the federal constitution. See footnote 6.

       The coins were stolen on January 3,1991. The receiving offense occurred between January 3 and June 27, 1991.

       “The Bloekburger test is a rule of statutory construction and its application does not result in a conclusive presumption. . . . Clear legislative intent may indicate that the two crimes are to be treated as one for double jeopardy purposes and thereby rebut the presumption under Bloekburger." (Citation omitted; internal quotation marks omitted.) State v. Nixon, supra, 32 Conn. App. 238-39. No such legislative intent has been shown here. See State v. Ford, 33 Conn. App. 143, 148, 634 A.2d 1188 (1993).

       See footnote 8.

         Whalen has instituted a civil suit against the defendant seeking money damages. The judgment in Whalen’s favor was affirmed on appeal to this court. Whalen v. Ives, 36 Conn. App. 7, 654 A. 2d 798 (1995).