text:
    ANTHONY W. OLIPHANT v. COMMISSIONER OF CORRECTION
    (AC 22014)
    Lavery, C. J., and Dranginis and Hennessy, Js.
    Argued October 1
    officially released December 23, 2003

      Richard C. Marquette, special public defender, for the appellant (petitioner).

      Eileen F. McCarthy, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Anthony W. Oliphant, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to meet his burden of proof on his claims that (1) it was an abuse of discretion for the trial court to require that he wear shackles during voir dire, (2) it was an abuse of discretion for the trial court to order him to appear at trial wearing a prison uniform and (3) it was a violation of his constitutional right of access to the court to deny him the use of the law library in the correctional facility in which he was housed during the preparation for his trial. We affirm the judgment of the habeas court.

The petitioner was convicted, after a jury trial, of larceny in the first degree by defrauding a public community in violation of General Statutes § 53a-122 (a) (4). He was sentenced to fifteen years incarceration, suspended after seven years. This court affirmed- the conviction. Thereafter, the petitioner filed a petition for a writ of habeas corpus, in part because he had been forced to wear restraints during jury selection. After an evidentiary hearing, the habeas court dismissed his petition on the ground that “the petitioner has failed to prove any of the allegations in his petition for a writ of habeas corpus.” From that ruling, the petitioner appeals.

At the outset, we set forth the applicable standard of review. “When the conclusions of the habeas court are attacked on appeal, they are reviewed to determine whether they are legally and logically supported by the facts or involve an erroneous application of law materially relevant to the case.” Ostoloza v. Warden, 26 Conn. App. 758, 762, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). Applying that standard to the facts of the present case, we agree with the court’s conclusion that the petitioner failed to prove any of the allegations in his petition for a writ for habeas corpus.

I

The petitioner first claims that the shackles interfered with his state and federal constitutional rights to a fair trial. We disagree.

The habeas court reviewed the relevant law regarding a criminal defendant’s right to be free of restraints during trial. See Practice Book § 42-46; State v. Taylor, 63 Conn. App. 386, 394, 776 A.2d 1154 (court may consider various factors when exercising discretion to order defendants shackled), cert. denied, 257 Conn. 907, 777 A.2d 687, cert. denied, 534 U.S. 978, 122 S. Ct. 406, 151 L. Ed. 2d 308 (2001); State v. Robinson, 38 Conn. App. 598, 603, 662 A.2d 1295 (1995), rev’d on other grounds, 237 Conn. 238, 676 A.2d 384 (1996). It then concluded that “[t]he trial court was well within its authority to determine that restraints were necessary to preserve order and security in the courtroom.”

Our review of the record reveals that the court properly determined that the petitioner did not prove his allegations on that claim. The trial court adequately detailed its rationale for requiring the petitioner’s restraint during voir dire. The trial court stated: “During the entire period of selection . . . the record should be clear that the defendant has been shackled, has remained in shackles throughout the proceedings. . . . [I]n denying [the petitioner’s] request that the shackles be removed, the court has relied on its own observations of [the petitioner’s] conduct during these proceedings and also on information that was submitted to it from independent sources. That information includes loud and very obstreperous conduct by the [petitioner] in court last week. ... It was also called to the court’s attention that the [petitioner] physically, or at least attempted, to assault his then counsel .... The attitude of the [petitioner] displayed during these times has bordered at times on the menacing if not threatening. It was called to the court’s attention that the [petitioner] recently issued what might be defined as a veiled threat directed at one of the [judicial marshals] that [would] be implemented when [the petitioner] obtained his liberty. For all of these reasons, and under all of the circumstances, the court believes that the shackles were and have remained necessary throughout these proceedings and that, as the record will note, was the recommendation of [the judicial marshal in charge at the courthouse], both to me outside of the courtroom and yesterday in the courtroom when he testified.” The conclusion of the habeas court, therefore, is supported by the facts found in the record.

The petitioner also argues that the shackling order was unduly prejudicial and that this alleged prejudice further deprived him of a fair trial. The habeas court stated that the trial court had imposed the restraints “in a way to minimize any prejudice to the petitioner, and it was the petitioner himself who exposed the restraints to potential jurors.” The record reveals that instead of taking advantage of the trial court’s offer to conceal the shackles by conducting voir dire from a seated position, the petitioner chose to walk about the courtroom and call attention to the shackles while questioning the prospective jurors. Significantly, and contrary to the petitioner’s assertions, the venire-persons indicated that the shackles did not affect their objectivity. Consequently, the habeas court’s conclusion that the petitioner did not prove the allegations in support of his claim was legally and logically correct and was supported by the facts in the record.

n

The petitioner also claims that the habeas court improperly concluded that he failed to support his allegation that the trial court abused its discretion by ordering him to appear at trial wearing a prison uniform and that his constitutional right of access to the court was not violated when he was denied the use of the law library in the correctional facility in which he was housed during the preparation for his trial. The petitioner, however, failed to raise either of those claims in his habeas petition. They were, therefore, not properly preserved for this court’s review.

“This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993). Although the petitioner’s counsel briefly discussed one of those claims at oral argument in the habeas court, that court neither ruled on nor decided any of those claims. Further, the petitioner failed to raise those issues in his habeas petition. “To review [them] now would amount to an ambuscade of the [habeas] judge.” (Internal quotation marks omitted.) Id., 14.

The judgment is affirmed.

       The facts underlying the petitioner’s arrest and conviction are set forth in detail in State v. Oliphant, 47 Conn. App. 271, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).

       The petitioner also claims that the trial court failed to hold a hearing pursuant to Practice Book § 42-46 prior to ordering his restraint during jury selection. That claim was not raised in the habeas petition. On the basis of the analysis set forth in part II, we will not review that argument.

       Practice Book § 42-46 provides: “(a) Reasonable means of restraint may be employed if the judicial authority finds such restraint reasonably necessary to maintain order. If restraints appear potentially necessary and the circumstances permit, the judicial authority may conduct an evidentiary hearing outside the presence of the jury before ordering such restraints. The judicial authority may rely on information other than that formally admitted into evidence. Such information shall be placed on the record outside the presence of the jury and the defendant given an opportunity to respond to it.
      “(b) In ordering the use of restraints or denying a request to remove them, the judicial authority shall detail its reasons on the record outside the presence of the jury. The nature and duration of the restraints employed shall be those reasonably necessary under the circumstances. All reasonable efforts shall be employed to conceal such restraints from the view of the jurors. Upon request, the judicial authority shall instruct the jurors that restraint is not to be considered in assessing the evidence or in the determination of the case.” (Emphasis added.)

       The following colloquy took place between the court and the petitioner:
      “The Court: All right. Well, I am going to instruct the jury with regard to your shackles, then, as I am required to do. But initially, at least, if you choose to remain seated, I would postpone that.

        “[The Petitioner]: There is no way to be seated, Your Honor, with regal'd to the jury instructions.”

       The following colloquy, in relevant part, took place between the petitioner and one venireperson:
      “[The Petitioner]: . . . As you see me standing before you today, wouldn’t you have to think there is something wrong with me shackled here before you today if it’s supposed to be a fair and, you know, a fair hearing, fair proceeding. Wouldn’t you say something is wrong because I am in chains?
      “[The Venireperson]: Yeah, I would.
      “The Court: Well, there is a reason for that sir. . . .
      “[The Venireperson]: Right.
      “The Court: It has nothing to do with the trial of this case, as I told you earlier.
      “[The Venireperson]: Right. I don’t know all the circumstances.”
      The venireperson was accepted by the petitioner and the state.
      The following colloquy, in relevant part, took place between the petitioner and a second venireperson:
      “[The Petitioner]: Well, tell me something. Do you think seeing me the way I am, do you think I’m innocent?
      “[The Venireperson]: That would be a decision I would have to make after hearing all the testimony.
      “[The Petitioner]: ... Do you think you can honestly be fair, as I stand here now with prison garb on, shackled?
      “[The Venireperson]: As the judge mentioned, shackles don’t come into play at this time.”
      The following colloquy, in relevant part, took place between the petitioner and a third venireperson:
      “[The Petitioner]: . . . The question is, do you think you can be impartial to me? I mean truthfully?
      “[The Venireperson]: Truthfully?
      “[The Petitioner]: Truthfully, looking at me as I am now?
      “[The Venireperson]: Truthfully, yeah, because I would want to know the situation that was brought in front of me. And I would want to make sure I knew all my bases. And I would want to make sure I knew absolutely all the information that would be needed before I make a decision, you know.
      “[The Petitioner]: Tell me, how do you feel if you were to see other people not come up here handcuffed and shackled? Would that make you feel better? . . .

        “[The Venireperson]: I don’t think so. . . .
      “[The Petitioner]: You don’t think so?
      “[The Venireperson]: I don’t think so, no. I think, as I already have stated . . . it’s not you .... I just want to be presented with the facts and everything that would be brought out. And then I would make my own decision on that.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DARRYL HOLLIS v. COMMISSIONER OF CORRECTION
    (AC 23200)
    Foti, West and McLachlan, Js.
    Submitted on briefs November 21
    officially released December 23, 2003

      Francis L. O’Reilly, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Christopher T. Godialis, assistant state’s attorney, and Paul J. Fer-encek, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Darryl Hollis, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. On appeal, he claims that the court abused its discretion in denying his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus. The petitioner’s statement of issues and his brief are limited to that single claim. The record is clear, however, that the court granted his petition for certification to appeal. Although the petitioner’s sole claim is unfounded in the record, we will review the entire record and the briefs to determine whether the judgment of the court should be reversed on its merits. See Mason v. Commissioner of Correction, 80 Conn. App. 142, 145, 832 A.2d 1216 (2003).

“For the petitioner to prevail on his [underlying] claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000), citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). After reviewing the record and briefs, we conclude that the petitioner has failed to sustain his burden.

The judgment is affirmed.

       Although the petitioner briefed only that issue, his brief does address, to some extent, the merits of his underlying claim of ineffective assistance of counsel.


author: DiPENTIMA, J.

text:
    JAROSLAW PALUHA v. BRAVERMAN GROUP, LLC, ET AL.
    (AC 23958)
    Lavery, C. J., and Foti and DiPentima, Js.

      Argued September 16
    officially released December 23, 2003

      William W. Taylor, for the appellant (plaintiff).

      Jeffrey W. Keim, with whom, on the brief, were Bernard Green and Anthony E. Ahem, for the appellees (named defendant et al.).
   Opinion

DiPENTIMA, J.

In this action arising out of a commercial real estate transaction, the plaintiff, Jaroslaw Paluha, appeals from the trial court’s judgment rendered in accordance with the report of the attorney trial referee (referee) in favor of the defendants Braverman Group, LLC (Braverman Group), Jack Braverman and Malvin Jacobson. Those defendants were the plaintiff’s real estate brokers. The plaintiff attacks various findings and conclusions of the referee. Because of the inadequacy of the record and the limited scope of our review, we affirm the judgment of the trial court.

The procedural facts pertinent to the plaintiffs appeal follow. The plaintiff brought this 1999 action against Braverman Group, Braverman and Jacobson, alleging breach of fiduciary duties, breach of contract, fraud and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff later filed a motion to cite in WHA Equities Corporation (WHA Equities) and Wolfgang H. Anken-brank, the purchaser of the subject property and the president of WHA Equities. That motion was granted, and the complaint was amended to allege tortious conduct on the part of Ankenbrank. The case proceeded to trial before the referee on June 12, 2002. Thereafter, the parties filed briefs. On September 24, 2002, the referee filed his eleven page report recommending that judgment be rendered in favor of Braverman Group, Braverman and Jacobson.

The referee found the following facts pertinent to the issues in the plaintiffs appeal. The plaintiff and Joseph A. Barraco were owners of commercial property in Westport. In October, 1993, the plaintiff and Barraco listed the property for sale with Braverman Group. During the period between April and September, 1994, Jacobson, as a real estate agent operating subject to the brokerage license of Braverman Group, procured a purchaser for the property, namely, Ankenbrank. On September 1, 1994, the plaintiff and Barraco entered into a final and complete purchase agreement with Ankenbrank subject to terms set forth in the agreement.

Between the time of the contract signing and the closing, Ankenbrank remained in Germany. Jacobson arranged the formation of WHA Equities, which took title to the property to facilitate the closing. Because two officers were required, Jacobson was named secretary of WHA Equities. To purchase the property, Anken-brank obtained a mortgage loan commitment that required a management agreement for the property. To accommodate the purchaser, Jacobson arranged for a management agreement between WHA Equities and S.R. Services, LLC (S.R. Services). Because the principal of S.R. Services was unavailable for signature in a timely fashion, and the management agreement had to be submitted to the bank prior to closing, Jacobson signed the agreement on behalf of S.R. Services. Jacobson was to receive no compensation from S.R. Services for acting as a liaison with WHA Equities. On November 15, 1994, the closing took place. At about thirty minutes prior to the closing, Braverman advised Barraco and his counsel that Jacobson had been involved with the purchaser of the property in forming WHA Equities and in arranging for a management contract by S.R. Services. At the closing, Braverman also raised the issue of claimed representation by Jacobson of S.R. Services and tried to negotiate an arrangement regarding future commissions with the plaintiff and Barraco. At the closing, Braverman Group was paid the commission pursuant to the listing agreement.

The referee then suggested various conclusions. He concluded that Jacobson had performed and fulfilled his obligations under the listing agreement, and had not violated any duties toward the sellers either in his involvement with WHA Equities or in the preparation of the service agreement. He further concluded that the plaintiff and his coowner, Barraco, were aware of Jacobson’s involvement with WHA Equities and S.R. Services prior to the closing. He also concluded that the plaintiff’s expert witness did not have an opinion on the value of the property as of the date of the closing. As to damages, the referee concluded that there was no evidence. As to the coowner, Barraco, whom the referee found to be a necessary party, the referee concluded that the plaintiff had not shown that he was authorized to maintain the action on Barraco’s behalf. The referee ultimately concluded that the plaintiff had failed to prove the allegations of the complaint’s first and second counts. As to the third count, the referee concluded that the plaintiff had not proved fraud under the requisite clear and convincing standard, that Bar-raco was a necessary party, that General Statutes § 52-577 bars the cause of action and that the plaintiff had failed to prove damages. As to the fourth count, the referee concluded that the plaintiff had failed to prove any unfair or deceptive act or practice by the defendants under CUTPA, that Barraco was a necessary party and that the count was barred by General Statutes § 42-HOg. The referee then recommended that judgment be rendered in favor of the defendants Braverman Group, Braverman and Jacobson on all counts directed against them.

On October 3, 2002, the plaintiff filed a motion for extension of time to file objections to the report. That motion was denied. On December 10, 2002, the plaintiff filed another motion for an extension of time to file objections to the report. The defendants filed an objection to that motion. On February 3, 2003, the court rendered judgment in accordance with the report. At that proceeding, the court was presented with an objection to the report filed by the plaintiff and dated January 29, 2003. In its ruling, the court stated the following: “It’s a total lack of civility to both the court and to brother counsel, and, there being no mechanism in the Practice Book for the filing of an objection to [a referee’s] report four and one-half months after the rendering of that report, this court refuses to accept same today, denies or overrules the objection and enters judgment on an eleven page [referee’s] report filed September 24, 2002, which includes more than sufficient findings of fact and which this court finds the conclusions therein to flow from the findings of fact.” (Emphasis added.) This appeal followed.

Significantly absent from the issues raised on appeal is any claim that the court improperly refused to accept the objections as untimely. Rather, the issues address the substance of the referee’s report and the judgment rendered in accordance with that report. Specifically, the plaintiff claims that the referee ignored critical testimony conflicting with his findings and conclusions, made improper conclusions regarding fiduciary duties of brokers, improperly found no damages, improperly found that a necessary party not in the action precluded judgment in favor of the plaintiff and improperly found that § 52-577 barred the action.

Before reaching those issues, we address the limited scope of our review. As previously stated, the plaintiff did not raise on appeal the court’s refusal to consider his objection. Accordingly, the court’s ruling stands, and this court must consider the issues on appeal as if no objection had been filed. Further, the plaintiff did not seek an articulation of the trial court’s ruling rendering judgment in accordance with the report with the terse phrase “enters judgment on an eleven page [referee’s] report filed September 24, 2002, which includes more than sufficient findings of fact and which this court finds the conclusions therein to flow from the findings of fact.”

When there is no objection filed to an attorney trial referee report, “the [plaintiff] is precluded from effective appellate review . . . .” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986). In addition, when there is an inadequate record for this court’s review, this court will decline to afford review. Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 202-203, 819 A.2d 227 (2003). The extent of the remaining review will be addressed with each claim.

I

The plaintiff claims that the referee improperly found a number of facts. As to those claims, because of the lack of objections, the court’s review is severely circumscribed. “In Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. 518, the seminal case examining the procedures for matters heard by an attorney referee, our Supreme Court held that [w]ith respect to the various claims of error relating to the merits of the factual findings made by the attorney referee, as well as the judgment rendered by the trial court based thereon, the defendant is precluded from effective appellate review by its failure to file a motion to correct the report of the referee pursuant to Practice Book § 438 [now § 19-12] or an objection to acceptance thereof pursuant to Practice Book § 440 [now § 19-14]. The court declined to review the factual findings because [a] litigant cannot wholly ignore established procedures for the protection of its rights . . . and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” (Internal quotation marks omitted.) Tarka v. Filipovic, 45 Conn. App. 46, 51-52, 694 A.2d 824, cert. denied, 242 Conn. 903, 697 A.2d 363 (1997). Here, because the plaintiff effectively failed to file an objection to the referee’s report, we decline to review the challenged findings of fact.

II

The plaintiff next claims that the court improperly rendered judgment in accordance with the referee’s report because the referee claimed that the plaintiff did not prove damages. As to the claim of damages, “[w]e recognize that [t]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 68, 717 A.2d 724 (1998).

Because the determination of damages is a question of fact and the plaintiff effectively failed to file an objection to the referee’s report, “the [plaintiff] is precluded from effective appellate review . . . .” Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. 518. Therefore, this court will not review the findings of fact.

III

The plaintiff also claims that the referee made a number of improper legal conclusions. As to the legal conclusions the plaintiff is contesting, this court reviews the court’s adoption of the referee’s report as it applies the law to the facts found.

“[B]ecause the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. . . . Where legal conclusions are chai-lenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the . . . referee.” (Internal quotation marks omitted.) Shapero v. Mercede, 77 Conn. App. 497, 501-502, 823 A.2d 1263 (2003).

We decline to review the plaintiffs claims because the record before us is inadequate. The plaintiff failed to file a motion for articulation with respect to the court’s acceptance of the referee’s report. In Alliance Partners, Inc. v. Oxford Health Plans, Inc., supra, 263 Conn. 192, the plaintiff real estate services provider brought an action against the defendant health maintenance organization for money owed in connection with the plaintiffs representation of the defendant when it leased certain real estate. A referee issued a report recommending judgment for the defendant. Id., 193. The trial court accepted the report and rendered judgment for the defendant. Id. From that judgment, the plaintiff appealed. In denying the appeal, our Supreme Court stated that “[i]t is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The [appellant’s] failure to seek an articulation of the trial court’s decision to clarify the aforementioned issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Citation omitted; internal quotation marks omitted.) Id., 204.

As we often have stated: “It is incumbent on the appellant to provide an adequate record for appellate review. See Practice Book § 60-5. Here, the plaintiff did not seek an articulation of the court’s findings. See Practice Book § 66-5. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claim] would be entirely speculative.” (Internal quotation marks omitted.) Santangelo v. Elite Beverage, Inc., 65 Conn. 618, 622, 783 A.2d 500 (2001).

In the present case, it is unclear from the court’s memorandum of decision whether it ruled on the basis of the facts found or the legal conclusions drawn therefrom, which, although not binding, nevertheless factored into the referee’s report. For example, the court did not expressly determine whether the referee properly concluded that the plaintiffs failure to bring Bar-raco into the action precluded the trier from rendering judgment, that the plaintiffs failure to bring his action in accord with § 52-577 precluded review or that no fiduciary duty of loyalty was violated at the time of the alleged breach. We cannot ascertain whether the court concluded that the plaintiffs failure to comply with § 52-577, his failure to join Barraco or his inability to prove a breach of fiduciary duties precluded the plaintiff from obtaining relief as a matter of law. Alternatively, we do not know whether the court decided those claims on the basis of the evidence or lack thereof noted by the referee. The transcript provides only that judgment was rendered “on an eleven page [referee’s] report filed September 24, 2002, which includes more than sufficient findings of fact and which this court finds the conclusions therein to flow from the findings of fact.” Accordingly, we decline to review the plaintiffs claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant WHA Equities Corporation was not included in the judgment, but it joined the remaining defendants in the brief filed in this appeal. See Practice Book § 60-4.

       The referee’s report was silent as to the other defendant, WHA Equities. At the time of the appeal, it did not appear that judgment had been rendered in favor of or against WHA Equities. Nevertheless, the judgment against Braverman Group, Braverman and Jacobson is a final judgment for purposes of appeal pursuant to Practice Book § 61-3 because it disposed of all causes of action against them.

       On May 23, 2001, the court granted Ankenbrank’s motion to dismiss for insufficient service of process.

       In 2000, our rules of practice were amended to repeal the rules providing for a motion to correct and the filing of exceptions (Practice Book §§ 19-12, 19-13). What remains is a one step process of review through Practice Book § 19-14, titled “Objections to Acceptance of Report.”


author: McLACHLAN, J.

text:
    LEWIS M. RESS, TRUSTEE v. TOWN OF SUFFIELD
    (AC 23807)
    Lavery, C. J., and McLachlan and Peters, Js.
    Argued October 20
    officially released December 23, 2003

      Barbara M. Schellenberg, with whom, on the brief, was Vincent M. Ma,rino, for the appellant (plaintiff).

      Edward G. McAnaney, for the appellee (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, Lewis M. Ress, trustee, appeals from the trial court’s judgments dismissing his tax appeals. He claims that the court improperly concluded that his burden of establishing overvaluation was not met and that a property owner may seek relief from overvaluation pursuant only to General Statutes § 22a-45. We affirm the judgments of the trial court.

This case concerns consolidated tax appeals involving five unimproved lots owned by the plaintiff in Suf-field. After purchasing the lots, the plaintiff challenged their valuations, as determined by the town assessor, due to the presence of wetlands on the properties. Thereafter, the Suffield board of assessment appeals reduced the valuations by approximately 10 percent. Unsatisfied, the plaintiff filed appeals with the Superior Court pursuant to General Statutes § 12-117a. Following the close of evidence, the court found that the plaintiff had not sustained his burden of establishing overvaluation. This appeal ensued.

The plaintiff claims that the court improperly concluded that he had not met his burden of establishing overvaluation. We agree with the trial court.

“Section 12-117a, which allows taxpayers to appeal the decisions of municipal boards of tax review to the Superior Court, provide [s] a method by which an owner of property may directly call in question the valuation placed by assessors upon his property . . . .” (Internal quotation marks omitted.) Konover v. West Hartford, 242 Conn. 727, 734, 699 A.2d 158 (1997). In an appeal pursuant to § 12-117a, “the trial court hears the tax appeal de novo on the premise that, throughout, it is the taxpayer who bears the burden of establishing an overassessment . . . .” Ireland v. Wethersfield, 242 Conn. 550, 557, 698 A.2d 888 (1997).

We review a court’s determination in a tax appeal pursuant to the clearly erroneous standard of review. “Under this deferential standard, [w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 23, 807 A.2d 955 (2002).

The question in this case before both the trial court and the board of assessment appeals was the extent to which wetlands impact the plaintiffs properties. The plaintiff argues that the valuations by the board of assessment appeals did not reflect the true impact.

At trial, the plaintiff introduced the testimony of an appraiser as to the highest and best use of the plaintiffs lots in light of wetlands impact. To establish overvaluation, the plaintiff’s appraiser relied primarily on the soil map sketch obtained from the Suffield conservation commission. The sketch was created by Suffield town engineer Gerald Turbet, who testified that he created it by tracing the boundaries of the wetlands from an enlarged town soil map onto a subdivision map of the plaintiffs lots and that it was not drawn to scale, nor did it accurately depict the location of wetland boundaries on the plaintiffs properties. He indicated that the use of soil maps is but a first step in determining precise wetland contours; the property in dispute must then be examined by a soil scientist. Testifying on behalf of the plaintiff, the chairperson of the Suffield conservation commission confirmed that protocol. Having heard that testimony, the court concluded that “the use by the plaintiffs appraiser of a ‘not to scale’ Hartford County soil survey overlaid onto a subdivision map of the lots ... is not a credible substitute for a soil engineer’s survey of the wetlands on the subject lots . . . .” (Citation omitted.)

It is basic to our jurisprudence that credibility determinations are within the exclusive province of the court. See Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). “Because a tax appeal is heard de novo, a trial court judge is privileged to adopt whatever testimony he reasonably believes to be credible.” (Internal quotation marks omitted.) Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 755-56, 699 A.2d 81 (1997). Having heard the testimony of the appraiser and his valuation methodology, the court was free to find it unpersuasive. Likewise, the court was equally free to find credible the testimony of Turbet discrediting the soil map sketch’s accuracy.

In a tax appeal, the court may “consider any facts that are relevant to determining whether a taxpayer actually has been overassessed.” Konover v. West Hartford, supra, 242 Conn. 741. “If the trial court finds that the taxpayer has failed to meet his burden . . . [it] may render judgment for the town on that basis alone.” Ireland v. Wethersfield, supra, 242 Conn. 557-58. On the basis of our review of the record, we conclude that the court properly determined that the plaintiff failed to satisfy his burden of establishing overvaluation.

The plaintiff also claims that the court improperly concluded that the properties could not be revalued unless and until the conservation commission acts on an application for wetland permits filed by the plaintiff. Although the court did not expressly state that the relief available to a property owner pursuant to § 22a-45 is the exclusive remedy for a taxpayer seeking relief due to wetlands impact, the language of the court’s memorandum of decision seems to suggest that it is the exclusive remedy. We agree with the plaintiff that § 12-117a is not so limited. There may be instances when it is necessary to have a determination as contemplated by § 22a-45 to demonstrate permissible use to establish value; there may also be instances, for example, when the town’s soil maps are sufficiently accurate and based on actual field identifications such that a full regulatory determination as to use is unnecessary to establish the regulatory impact on the value of the property.

In all cases, the burden remains on the property owner, as a threshold issue, to establish overvaluation. It was therefore necessary for the plaintiff to show what portion or portions of his lots were burdened by the wetlands regulations. Because the plaintiff has not satisfied that burden, he cannot satisfy his burden of establishing overvaluation of his lots due to the wetlands regulations.

The judgments are affirmed.

In this opinion the other judges concurred.

       Those valuations were on the October 1, 1999 grand list.

       General Statutes § 12-117a provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application . . . with respect to the assessment list ... to the superior court for the judicial district in which such town or city is situated

       The plaintiff argues that as the town relies on that soil map sketch to issue notices of violation, the town should therefore be estopped from contesting its accuracy. The' plaintiff overlooks the fact that a penalized property owner may challenge the accuracy of a soil map.
      General Statutes § 22a-44 (a) provides in relevant part: “If the inland wetlands agency or its duly authorized agent finds that any person is conducting' or maintaining any activity, facility or condition which is in violation of . . . the regulations of the inland wetlands agency, [it] may issue a written order ... to such person ... to cease immediately such activity or to correct such facility or condition. Within ten days of the issuance of such order the agency shall hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect. . .

       Turbet explained that his sketch was “based on maps, not actual field identifications,” and described it as “an approximation of the wetland soils.”

       The plaintiff did not have a surveyor or soil engineer examine the property, nor did he attempt to procure a license from the conservation commission.

       General Statutes § 22a-45 provides in relevant part: “Any owner of wetlands and watercourses who may be denied a license in connection with a regulated activity affecting such wetlands and watercourses, shall upon written application ... be entitled to a revaluation of such property to reflect the fair market value thereof in light of the restriction placed upon it by the denial of such license or permit . . . .”


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. TERRANCE WORTHAM
    (AC 22788)
    Bishop, McLachlan and Hcnncssy, Js.

      Argued September 9
    officially released December 30, 2003

      Gerald E. Bodell, special public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satti, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Terrance Wortham, appeals from the judgment of conviction, rendered following a jury trial, of attempt to commit murder with a firearm in violation of General Statutes §§ 53a-49, 53a-54a (a) and 53-202k, assault in the first degree with a firearm in violation of General Statutes §§ 53a-59 (a) (5) and 53-202k, carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 and criminal possession of a firearm in violation of General Statutes § 53a-217. On appeal, the defendant claims that the trial court (1) improperly concluded that the cumulative force of the evidence presented by the state was sufficient to disprove beyond a reasonable doubt his defense of justification and (2) violated his constitutional rights by providing a misleading jury instruction on self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 5, 2000, between 8 p.m. and 8:30 p.m., four teenage girls, D, E, S and L, were walking along William Street in Bridgeport when they saw the defendant and Ahmed Jefferson arguing. The girls were familiar with both men. At one point, D, S and L stopped to speak with Jefferson, but E continued to walk ahead. As E neared the defendant, he screamed: “If you’re not Ahmed, don’t come near me! Don’t come near me!” At that point, a gunfight broke out between the defendant and Jefferson. The evidence revealed that the defendant fired thirteen gunshots from his .45 caliber weapon and that Jefferson fired five gunshots from his .38 automatic weapon. Neither man was injured in the exchange.

E was caught in the crossfire and struck by gunshots in the temple, jaw and shoulder. Ballistics testing determined that E was hit by one bullet fired by the defendant and one bullet fired by Jefferson. D also was shot, suffering a gunshot wound in the left leg. The testimony concerning the initiation of the gunfight was in conflict because each eyewitness was facing a different direction at the onset of the gunfire. E testified that the defendant pulled his gun out first and was the first to fire. E also testified that she did not see Jefferson with a gun.

Another witness, D, testified that before the shooting erupted, Jefferson asked the defendant whether he was looking for him and what the defendant planned to do now that he had found him. D further testified that the defendant responded: “I’ll show you who’s bad,” to which Jefferson retorted: “Yeah, I’m bad.” Contrary to E’s version of the events, D testified that Jefferson was the first to fire. D testified, however, that when Jefferson pulled out his gun, “there [were] shots just going everywhere.” In addition, D testified that when she saw Jefferson’s gun pulled out, she was not looking in the defendant’s direction. At one point, however, D stated that she was able to see both men firing at each other. Although L initially testified to having no memory of who shot first that night, she subsequently identified the defendant as the man who pulled out his gun first. Finally, S testified that Jefferson pulled out his gun and was the first to fire. Yet, S also testified that her back was toward the defendant at the time the first gunshots were fired.

At trial, the defendant presented the affirmative defense of self-defense. On the basis of that evidence, the jury found him guilty of the crimes of attempt to commit murder with a firearm, assault in the first degree with a firearm, carrying a pistol or revolver without a permit and criminal possession of a firearm. This appeal followed.

I

On appeal, the defendant contends that the state failed to disprove beyond a reasonable doubt his justification defense. Specifically, the defendant argues that the state did not present evidence that directly defeated Ms claim of self-defense. He argues that the evidence made it absolutely clear that he was not the imtial aggressor and, as such, there was no evidence to refute Ms reasonable belief that Jefferson was about to use deadly force and no proof that the defendant was not justified in firing back. We disagree.

We begm by noting that the “standard for reviewing sufficiency claims m conjunction with a justification offered by the defense is the same standard used when examining claims of insufficiency of the evidence. . . . In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the mferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Pranckus, 75 Conn. App. 80, 85, 815 A.2d 678, cert. demed, 263 Conn. 905, 819 A.2d 840 (2003).

“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty. . . . We are mindful as well that [t]he state has the burden of disproving the defense of justified use of force . . . beyond a reasonable doubt. . . .Whether the defense of the justified use of force, properly raised at trial, has been disproved by the state is a question of fact for the jury, to be determined from all the evidence in the case and the reasonable inferences drawn from that evidence. . . . As long as the evidence presented at trial was sufficient to allow the jury reasonably to conclude that the state had met its burden of persuasion, the verdict will be sustained.” (Internal quotation marks omitted.) Id., 85-86.

To support his contention, the defendant wholly relies on the testimony of D, who stated that she saw Jefferson pull his gun out first. D also stated, however, that at the time she saw Jefferson fire gunshots, she was looking at Jefferson and could not see the defendant. D further testified that as a bullet struck her leg, causing her to fall to the ground, she was able to see the defendant with a gun. In contrast, E stated that the defendant fired first. Finally, a third witness, L, identified the defendant as the man who pulled his gun out first.

“It is the jury’s right to accept some, none or all of the evidence presented. . . . Moreover, [e]vidence is not insufficient . . . because it is conflicting or inconsistent. [The jury] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject. . . . We do not sit as a [thirteenth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Citations omitted; internal quotation marks omitted.) Id., 87-88. Accordingly, we conclude that the evidence was sufficient to sustain the verdict.

II

The defendant’s second claim on appeal is that the court violated his constitutional rights by providing misleading jury instructions on the claim of self-defense. We note that the defendant did not take exception to the court’s instructions as given at trial. Accordingly, he seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “We will review the defendant’s claim because the record is adequate for review and because the right to establish a defense is constitutional in nature. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).” (Internal quotation marks omitted.) State v. Shelly, 78 Conn. App. 513, 515, 827 A.2d 759, cert. denied, 266 Conn. 910, 832 A.2d 74 (2003). We have stated that “[a]n improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension.” (Internal quotation marks omitted.) Id. Consequently, we review the claim under the third prong of Golding.

“Even though we review this claim under the third prong of Golding, we note that [w]hen the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial . . . is seriously undercut.” (Internal quotation marks omitted.) Id., 515-16.

“[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) Id., 515.

A

The defendant first argues that the jury was misled by the court’s instruction on the elements of self-defense.

The portion of the charge to which the defendant takes exception was: “In this case, if you find proven beyond a reasonable doubt that the victim was not using ... or about to use deadly physical force, or inflict great bodily harm upon the defendant, and if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that the victim was using or about to use deadly physical force or about to inflict great bodily harm upon the defendant, then the defendant would not be justified in using deadly physical force upon the victim.” (Emphasis added.) The defendant argues that the instruction as given, using the conjunction “and,” rather than the requisite “or,” denied him the benefit of any reasonably subjective test by the jury.

“We repeatedly have indicated that the test a jury must apply in analyzing the second requirement [of General Statutes § 53a-19 (a)], i.e., that the defendant reasonably believed that deadly force, as opposed to some lesser degree of force, was necessary to repel the victim’s alleged attack, is a subjective-objective one. The juiy must view the situation from the perspective of the defendant.” (Internal quotation marks omitted.) State v. Clark, 264 Conn. 723, 731, 826 A.2d 128 (2003). We begin, therefore, with the components involved in the subjective-objective portion of a self-defense claim.

“The subjective-objective inquiry into the defendant’s belief regarding the necessary degree of force requires that the jury make two separate affirmative determinations in order for the defendant’s claim of self-defense to succeed. First, the jury must determine whether, on the basis of all of the evidence presented, the defendant in fact had believed that he had needed to use deadly physical force, as opposed to some lesser degree of force, in order to repel the victim’s alleged attack. . . . If the jury determines that the defendant had not believed that he had needed to employ deadly physical force to repel the victim’s attack, the jury’s inquiry ends, and the defendant’s self-defense claim must fail. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the juiy must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant’s circumstances. . . . Thus, if a jury determines that the defendant’s honest belief that he had needed to use deadly force, instead of some lesser degree of force, was not a reasonable belief, the defendant is not entitled to the protection of § 53a-19.” (Emphasis in original; internal quotation marks omitted.) Id., 732.

The charge in this case is identical to the charge that was at issue in State v. Clark, supra, 264 Conn. 733. There, our Supreme Court stated that such a charge was “improper because it inject[s] an element into the self-defense calculus that need not be considered, namely, whether the victim was, in fact, using or about to use deadly force.” (Emphasis in original.) Id., 732. The court stated that “[ajccording to a plain reading of this instruction . . . the state had to prove both elements in order for the jury to reject the defendant’s claim of self-defense.” (Emphasis in original.) Id., 734. Because the effect of that charge served to increase “the state’s burden of disproving self-defense,” the court concluded that this instruction was not harmful to the defendant. (Emphasis in original.) Id. As a result, the claim failed to satisfy the third prong of Golding. Id.

The facts here are very similar to those involved in Clark. Hence, following the reasoning of our Supreme Court, we conclude that, although this portion of the charge was not correct, it was not harmful to the defendant because it increased the state’s burden of disproving self-defense. Thus, the claim fails under the third prong of Golding.

B

The defendant next contends that the court failed to instruct the jury that if the state failed to disprove the defendant’s claim of self-defense, it must find the defendant not guilty. We disagree.

We previously considered the adequacy of a jury instruction explaining the defense of justification in State v. Montanez, 71 Conn. App. 246, 253, 801 A.2d 868, cert. denied, 261 Conn. 935, 806 A.2d 1069 (2002). In Montanez, the instruction failed to convey the natural consequence that if the state was unable to disprove a claim of self-defense, the defendant must be found not guilty. Id., 250. This court held that “part of a legally adequate instruction as to the defense [of justification] should convey that the effect of a finding that the state has failed to disprove the defense requires the jury to render a verdict in the defendant’s favor. The court must unambiguously instruct the jury that it must find the defendant not guilty if it finds that the state has not disproved the defense.” (Emphasis in original.) Id., 253. We stated that “[t]he defendant’s right to avail himself of the claimed defense, and to receive a technically accurate instruction as to the defense itself, would be of no value if the jury was left to ponder the significance of its ultimate finding in regard to the defense.” Id., 254-55. As a result of the inadequate charge, this court concluded that the instruction was misleading to the jury. Id., 255.

The present case is distinguishable from Montanez. Here, the court’s initial definition of self-defense was “a means by which the law justifies the use of force that would otherwise be illegal.” Later in the charge, the court stated: “If the state has not disproved [the defense of justification] beyond a reasonable doubt and you find that the defendant was legally justified in his use of deadly physical force, you must find the defendant not guilty.” (Emphasis added.) Obviously, the instruction in this case included the language missing from the charge at issue in Montanez. In fact, this charge is consistent with our holding in Montanez. As such, we conclude that this charge, when read as a whole, was sufficient to guide the jury properly in its deliberations.

C

The defendant’s final contention is that it was misleading for the court to charge the jury regarding the initial aggressor, provocation and duty to retreat exceptions to the defense of self-defense. As a preliminary matter, we note that during the charging conference, the defendant agreed that jury instructions regarding § 53a-19 (b) and (c), commonly referred to as the duty to retreat and initial aggressor exceptions to the self-defense statute, were appropriate in this case. Moreover, during closing arguments, the defendant highlighted evidence to persuade the jury that the exceptions did not apply in this case. Although we have stated that “[a] defendant cannot change his strategy on appeal ... a party may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him.” (Internal quotation marks omitted.) State v. Davis, 76 Conn. App. 653, 662, 820 A.2d 1122 (2003). Nonetheless, we review the claim because the record is clear, and “[a]n improper instruction on a defense ... is of constitutional dimension.” (Internal quotation marks omitted.) State v. Shelly, supra, 78 Conn. App. 515.

“Our analysis of [these claims] is guided by the principle that [t]he court . . . has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding. . . . We thus review all of the evidence adduced at trial in order to discern whether there had been a sufficient basis from which the jury reasonably could conclude that the defendant [(1) was the initial aggressor, (2) had a duty to retreat prior to using force against the victim and (3) provoked the attack].” (Citations omitted; internal quotation marks omitted.) State v. Whitford, 260 Conn. 610, 625, 799 A.2d 1034 (2002). The state presented the testimony of four eyewitnesses, two of whom suffered severe injuries during the exchange of gunfire. From that testimony, the jury reasonably could have found evidence of provocation in the defendant’s statements that “[i]f you are not [Jefferson] don’t come near me,” and, “I’ll show you who’s bad.”

Furthermore, the evidence presented to the jury as to who was the first to draw a firearm and who was the first to fire was in conflict. As a result, the jury was free to decide who, in fact, was the initial aggressor. Finally, the evidence showed that two of the witnesses were able to flee to safety without being injured. From that evidence, the jury could have found that a safe retreat was possible.

Because our review of the record identifies evidence from which a jury reasonably could have found that the defendant (1) was the initial aggressor, (2) had a duty to retreat and (3) provoked the attack, we conclude that it was not misleading to the jury for the court to charge on those issues. Accordingly, the defendant’s claim fails to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the land of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm . . . shall be imprisoned for a term of five years . . . .”

       Although the defendant was charged with two counts of assault in the first degree with a firearm in violation of General Statutes §§ 53a-59 (a) (5) and 53-202k, the jury found him not guilty of the second count.

       General Statutes § 53a-19 (a) provides: “Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defencl himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       At the time of the event, the witnesses were minors between the ages of thirteen and fifteen years old. Because of their age, they will be referred to by initials to protect their respective identities. See General Statutes § 54-86e.

       We note that the defendant made a motion for a judgment of acquittal at the close of the state’s case, arguing in part that the evidence was insufficient to establish his guilt. That motion was denied. The defendant renewed his motion, on the same grounds, at the close of his case. As such, the defendant properly preserved his claim for review on appeal.

       During the state’s direct examination, the exchange with D was as follows:
      “[The Prosecutor]: Who was the first person you saw with a gun?
      “[The Witness]: [Jefferson] was the first person I saw.
      “[The Prosecutor]: When you saw [Jefferson] with a gun, could you see the [defendant]?
      “[The Witness]: Nope.
      “[The Prosecutor]: What did you see [Jefferson] do with the gun?
      “[The Witness]: He [pulled] out the gun and then — I guess he started shooting — I don’t know, I ran.”
      On cross-examination, D testified:
      “ [Defense Counsel]: But to the best of your recollection, it was [Jefferson] that pulled out the gun first and started firing—
      “[The Witness]: Yeah, that’s—
      “[Defense Counsel]: — the shots.
      “[The Witness]: — who I saw first.”

       D testified as follows:
      “[Defense Counsel]: [D]o you recall telling the police that you saw fire coming out of the gun — out of [Jefferson’s] gun? . . .
      “[The Witness]: Yeah.
      “[Defense Counsel]: Okay. But you weren’t looking at [the defendant] at that point. You were looking at—
      “[The Witness]: No, I wasn’t looking at him.
      “[Defense Counsel]: — [Jefferson], correct?
      “[The Witness]: Yeah.
      “[Defense Counsel]: Okay. And it’s when you fell to the ground after you were hit that you were able to see [the defendant] pointing the gun at [Jefferson]; is that right?
      “[The Witness]: Yeah.”

       E testified as follows:
      “[Defense Counsel]: And do you know who fired first?
      “[The Witness]: [The defendant],
      “[Defense Counsel]: And how do you know that?
      “[The Witness]: Because he pulled out first.
      “ [Defense Counsel]: Okay. But you indicated that you didn’t see [Jefferson] with a gun, correct?
      “[The Witness]: I seen him pull it out first. He was the one who fired first.
      “[Defense Counsel]: You never saw [Jefferson] with a gun?
      “[The Witness]: No.”

       A fourth witness, S, was not directly asked who fired first.

       At the close of the court’s charge, the court asked whether the defendant had any exceptions. Counsel replied, “I have no exceptions, Your Honor.”

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions axe 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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       See footnote 5.

       See footnote 5.

       In addition, we note that the jury instruction at issue in this case comports with the model jury instruction cited by this court in State v. Montanez, supra, 71 Conn. App. 253 n.4.

       General Statutes § 53a-19 (b) provides in relevant part: “Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating . . . .”

       General Statutes § 53a-19 (c) provides in relevant part: “Notwithstanding tlie provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force . . . .”

       The following colloquy occurred:
      “[Defense Counsel]: “Insofar as our request, [it] would simply be for a charge on [General Statutes §] 53a-19, and I really don’t have any objection to [subsections] (b) or (c). I think that they would pertain here, so I don’t disagree with [the state] that they should be given. . . .
      “The Court: Well, if you have any special—
      “[Defense Counsel]: Well, I have—
      “The Court: — wording you want, you can bring it to the court’s attention.
      “[Defense Counsel]: No. I have the factual. I’d just ask the court to read the statute as is ... .”

       On the issue of the duty to retreat, defense counsel argued: “This is a justifiable self-defense, and we would submit in that regard that these girls couldn’t avoid being shot. They couldn’t retreat, they never had a chance. So, if it happened the way that we submit that it did, that Jefferson pulls out his gun and starts to fire, certainly, it was clear the girls didn’t have a chance to get away or retreat. [The defendant], being on the receiving end of that, he certainly didn’t have a chance to retreat or get away. His option, which he chose to take, was to take out his gun and return fire in an attempt to save himself, which he was able to do in the circumstances.”
      In addition, with regard to the issue of initial aggressor and provocation, the defendant argued: “And finally, in regard to self-defense, notwithstanding the provisions of [General Statutes § 53a-19 (a)], a person is not justified in using physical force when, with the intent to cause physical injury or death to another person, he provokes the use of physical force by such other person or he is the initial aggressor. We submit that he was none of the — of those here, that he didn’t provoke the use of physical force by Mr. Jefferson, nor was he the initial aggressor.”


author: BISHOP, J.

text:
    JANET DEMARKEY ET AL. v. BRIAN FRATTURO ET AL.
    (AC 23336)
    Bishop, West and McLachlan, Js.
    Argued September 16
    officially released December 30, 2003

      Daniel A. Benjamin, for the appellants (plaintiffs).

      Robert W. Lotty, for the appellee (defendant Gertrude Rivas).
   Opinion

BISHOP, J.

Christopher DeMarkey appeals from the judgment of the trial court rendered after the jury’s verdict in favor of the defendant Gertrude Rivas. The plaintiff makes the following claims on appeal: (1) the trial court improperly allowed the admission of hearsay evidence; and (2) the court improperly charged the jury on apportionment of liability. We disagree and affirm the judgment of the trial court.

The plaintiff brought this action to recover for personal injuries sustained in a collision allegedly resulting from the defendant’s negligent operation of a motor vehicle. The defendant denied having been negligent and raised the plaintiffs contributory negligence as a special defense. After trial, judgment was rendered in favor of the defendant in accordance with the jury verdict.

In reaching its verdict, the jury reasonably could have found the following facts. On October 10, 1997, at approximately 11:30 p.m., the defendant was driving northbound on Hope Street in Stamford. At the same time, the plaintiff, then fifteen years old, also was running in the direction of Hope Street as he was being chased by three young men, one of whom originally was a defendant in this action. In an effort to flee those individuals, the plaintiff ran into the street where he was struck by the defendant’s vehicle. As a result, he sustained permanent injuries.

Officers Michael Mann and Joanne Anzenberger of the Stamford police department arrived at the scene shortly after the accident. They immediately began their investigation of the collision and the events leading to it. Mann primarily focused on the collision while Anzenberger concentrated on the chase. Pursuant to the investigation, Mann and Anzenberger prepared reports that consisted of, inter alia, statements from witnesses regarding the incident as well as diagrams depicting the events leading to the collision.

A significant issue at trial was whether the plaintiff had run directly into the path of the defendant’s vehicle from the school driveway or whether he had run along the sidewalk prior to crossing into the travel portion of the street and into the vehicle’s path. Both Mann and Anzenberger testified on that issue, as did the defendant, the plaintiff, and the various witnesses to the collision and the events leading to it. At the conclusion of the trial, the court gave the jury written interrogatories that had been agreed to by all the parties. The jury ultimately returned a verdict in favor of the defendant and submitted those completed interrogatories to the court. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that it was improper for the court to admit hearsay testimony regarding the path along which he was running prior to being struck by the defendant’s vehicle. We agree, but conclude that the admission of the evidence was harmless.

The following additional facts are relevant to our discussion of the plaintiffs claim. On cross-examination, the defendant’s counsel requested that Mann read from his police report a statement obtained during an interview with three witnesses, two of whom had been defendants in the action. The requested statement was that “Chris DeMarkey had run along the side of the school, continuing to run straight out onto Hope Street, and was struck at the entrance to the lot, southern entrance.” Before Mann read that excerpt, however, the plaintiffs counsel objected to the statement on the ground that it was inadmissible hearsay. The defendant’s counsel argued that the statement was not hearsay, as it was the product of Mann’s contemporaneous interview of three people, two of whom had been parties to the litigation. The court overruled the objection and admitted the statement into evidence. With those additional facts, we now turn to the plaintiffs claim.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and [those] rulings will not be disturbed on appellate review absent [an] abuse of that discretion.” (Internal quotation marks omitted.) Hartford Housing Authority v. DeLeon, 79 Conn. App. 300, 306, 830 A.2d 298 (2003).

An out-of-court statement used to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception applies. State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). Police reports are normally admissible under the business records exception to the hearsay rule. Paquette v. Hadley, 45 Conn. App. 577, 581, 697 A.2d 691 (1997). Statements of witnesses repeated in those reports, however, are not generally admissible. Id. Nevertheless, such statements may still avoid prohibition by falling within the admissions exception to the hearsay rule. Id. Pursuant to that exception, the words of a party opponent are generally admissible against him or her. State v. Markeveys, 56 Conn. App. 716, 719, 745 A.2d 212, cert. denied, 252 Conn. 952, 749 A.2d 1203 (2000).

In the present case, the record does not support the defendant’s contention that the hearsay statement was admissible as an admission. The declaration does not fall within that exception because the declarant was unidentifiable. To fall within that exception, one must be able to identify the declarant clearly as a party to the litigation. See Kelly v. Sheehan, 158 Conn. 281, 284-86, 259 A.2d 605 (1969) (holding that hearsay declaration found within hospital record inadmissible as admission because record did not clearly reflect that party had made statement). Here, the record reflects Mann’s inability to identify the source of the declaration. Thus, it is unclear whether the statement was made by one or both of the defendants who were interviewed by Mann or by the third party who was not a defendant.

We therefore conclude that the testimony at issue was hearsay and, thus, was admitted improperly. Once introduced, it should have been stricken from the record and the jury told specifically to ignore it. Yet, troubling though the admission of the testimony is, we think that, viewed in the context of the entire record, the incorrect ruling was benign.

“[Bjefore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.” Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990). The harmless error standard in a civil case is whether the improper ruling “ ‘would likely affect the result’ ” of the case. Id. Because that determination is context specific, we can sustain the verdict in this case only if we can say with fair assurance, after review of the whole record, that the admission of Mann’s testimony did not likely affect the jury’s ultimate decision.

Upon review, the record reveals that the substance of the improperly admitted hearsay statement merely was cumulative of other validly admitted evidence. See id., 155 (if improperly admitted hearsay evidence merely is cumulative of other validly admitted evidence, its admission does not constitute reversible error). In the present case, the jury had before it a diagram prepared by Anzenberger, depicting the plaintiffs path before he was struck by the defendant’s vehicle. The markings on the diagram indicated that it was prepared according to information provided by Shane Dixon and Thomas Marino, Jr., who also were defendants. In addition, the jury was presented with two other diagrams depicting Mann’s impressions of the plaintiffs path before he was struck by the defendant’s vehicle. Each of the three diagrams was admitted without objection and indicated that the plaintiff had run directly into the street immediately prior to being struck by the defendant’s vehicle. Thus, the erroneously admitted hearsay testimony that “Chris DeMarkey . . . [ran] straight out onto Hope Street” clearly was cumulative of the diagram evidence. Moreover, there was nothing so inflammatory about this evidence that its admission created a risk of distorting the jury’s perception of the remaining evidence. See Swenson v. Sawoska, supra, 215 Conn. 153. Furthermore, there was supplementary evidence in support of the defendant’s verdict; the hearsay testimony merely was one isolated piece of evidence in the context of a five day trial.

Consequently, despite the improper admission of the statement from the police report, in light of all the properly admitted evidence at trial, we do not believe that there was any likelihood that the admission of the hearsay evidence influenced the judgment of the jury. We therefore conclude that the improper admission was harmless and, as a consequence, that the plaintiffs assignment of error is unavailing.

II

The plaintiffs second claim is that the court improperly charged the jury regar ding apportionment of liability. It is the plaintiffs position that the court’s charge on apportionment contained errors of law and failed to guide the jury sufficiently in reaching a proper verdict. We do not agree.

The plaintiff asserts two arguments in support of his claim. We will analyze each of those arguments in turn.

A

The plaintiff argues that the court’s charge regarding proximate cause as it related to the apportionment of negligence improperly permitted the jury to consider the entire universe of negligent persons in determining the percentage of the defendant’s liability, rather than limiting that universe to parties and those persons with whom the plaintiff had reached settlements in the action. According to the plaintiff, the instruction misguided the jury to include the negligence of a nonparty within its calculus of liability, which nullified the percentage of the defendant’s responsibility for causing the plaintiff’s injuries. To resolve that claim, we examine both the jury charge requested by the plaintiff and the actual charge given by the court.

The plaintiff requested, in pertinent part, that the court charge the jury per General Statutes § 52-572h (f), which provides in relevant part that “[t]he jury . . . shall specify ... (4) the percentage of negligence that proximately caused the injury ... in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons . . . and ... (5) the percentage of such negligence attributable to the [plaintiff].” The plaintiff also requested that the court instruct the jury to consider only whether parties and settled persons were negligent and, if so, whether such negligence proximately caused the damage to the plaintiff.

The plaintiff contends, however, that the court failed to charge the jury as requested. According to the plaintiff, the court’s only reference to proximate cause as it related to apportionment was the following instruction: “There are situations that [the plaintiff] can only recover if there is a proximate cause. But in this case, it’s the proximate causation of negligence of either the defendant driver, the pedestrian, [the defendant Brian Frat-turo] or anyone else. So, proximate cause can be — and for our purposes, all those causations are going to hit 100 percent.”

The plaintiff contends that that instruction clearly was an improper statement of the law and, therefore, failed to provide the juiy with sufficient guidance in reaching the verdict. Viewing the charge as a whole, however, we conclude that there is no reasonable probability that the jury was confused or misled by that part of the court’s instruction.

Our standard of review for claims of instructional error is well established. “[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict .... Our standard of review on this claim is whether it is reasonably probable that the jury was misled.” (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn. App. 306, 311, 819 A.2d 844 (2003). The test of a court’s charge is not whether it is exhaustive, perfect or technically accurate, but whether it correctly adapts the law to the case in question, fairly presents the case to the jury in such a way that injustice is not done to either party and provides the jury with sufficient guidance in reaching a correct verdict. Id., 311-12; Olshefski v. Stenner, 26 Conn. App. 220, 223-24, 599 A.2d 749 (1991).

Within those particular parameters, we return to the plaintiffs claim. The plaintiff correctly notes that the court improperly indicated that the negligence of any individual may be considered when determining the percentage of the defendant’s liability. Jury instructions, however, cannot be read in a vacuum. Sevigny v. Dibble Hollow Condominium Assn., Inc., supra, 76 Conn. App. 311. Read as a whole, the charge properly instructed the jury to consider the appropriate persons in making its apportionment determinations. The court repeatedly emphasized that the jurors were to determine the negligence of “the other parties, defendant driver and the pedestrian” without reference to any other individual.

Furthermore, the defendant asserts that even if the court improperly instructed the jury, the jury’s conclusion, as shown by its answers to the interrogatories, makes any alleged improper instruction harmless. We agree.

The interrogatories completed by the jury reveal that it did not consider the negligence of a nonparty or settled person in apportioning the percentage of the defendant’s negligence that proximately caused the plaintiffs injuries. The jury apportioned 100 percent of the fault between the plaintiff, the defendant Thomas Marino, Jr., who had been defaulted, and the defendants with whom the plaintiff had reached settlements in the action. That is a clear indication that the jury was not, in fact, misled by the instruction at issue.

We conclude that the court’s instructions provided the jury with sufficient guidance in reaching the correct verdict and, to the extent that they were at all improper, our review of the record convinces us that it is highly improbable that any impropriety had any effect on the verdict. As a consequence, the plaintiffs argument fails.

B

The plaintiffs final argument is that the court’s charge was improper in that it permitted the jury to apportion liability without first examining the negligence of the defendant in violation of § 52-572h. We find that argument unavailing.

As previously set forth, jury instructions must be read as a whole and must be considered from the standpoint of their effect on the jurors in guiding them to a proper verdict. Sevigny v. Dibble Hollow Condominium Assn., Inc., supra, 76 Conn. App. 311. The determinative question is whether it is reasonably probable that the jury was misled. Id.

The plaintiff posits that the jury was misled and that it reached an improper verdict due to the following instruction regarding the apportionment of liability: “You can fill in [the interrogatories] any way you want. You can fill in the last line, the middle line, the top line; however you want to approach it, you can do that. You’re not bound ... to finish Gertrude Rivas first and DeMarkey as second and the others. You can do it in any manner you wish . . . .” We are not persuaded.

If read in isolation, the instruction could have the potential to mislead the jury. Our role, however, requires us to gauge each jury instruction in the context of the charge as a whole, rather than by individual component parts. Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 603, 662 A.2d 753 (1995). So viewed, we believe the jury had ample guidance to apportion accurately the defendant’s liability and, thus, to reach a proper verdict. In instances too numerous to catalog profitably here, the jury had previously received explicit instructions to determine the negligence of the defendant prior to that of the plaintiff, the defaulted parties or the settled persons in the case.

Moreover, our review of the record persuades us that it is improbable that the court’s later instruction regarding the interrogatories had any effect on the ver-diet. Subsequent to receiving the portion of the charge at issue, the court again impressed on the jury the need to first ascertain the liability of Rivas before assessing that of the other parties. Finally, the first two interrogatories provided by the court required that the jury examine the liability of the defendant only. Once more, we conclude that the jury was properly guided in examining the defendant’s fault. Viewed in its entirety, the court’s instruction provided the jury with ample guidance with regard to the proper manner in which to apportion liability and, consequently, in reaching a proper verdict. As such, the plaintiffs claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       Janet DeMarkey and Frank DeMarkey instituted the action individually on behalf of their minor child, Christopher DeMarkey. Once Christopher DeMarkey reached the age of majority, the parents amended their complaint to include him as a plaintiff. Although the parents, too, have appealed from the judgment of the trial court, in this opinion we refer to Christopher DeMarkey as the plaintiff.

       Also named as defendants were Brian Fratturo and his father, Harry Fratturo; Thomas Marino, Jr., and his father, Thomas James Marino; Frank D’Acunto, Jr., and his father, Frank D’Acunto, Sr.; Austin Lewis and his father, Melvin Lewis; and Shane Dixon and his grandmother, Bessie Williams. Prior to trial, a default was entered against Thomas Marino, Jr., and the action was withdrawn as against the Fratturos, the D’Acuntos, the Lewises, Thomas James Marino, Dixon and Williams after they reached settlements with the plaintiff. Thus, the only remaining defendants at trial were Rivas and Thomas Marino, Jr. Because Marino’s liability was not an issue in this appeal, we refer to Rivas as the defendant throughout this opinion.

       The events leading to the chase were in dispute. What was not in dispute, however, was that prior to the chase, the plaintiff and the defendant Brian Fratturo had been drinking beer on the grounds of the Springdale School. At approximately 11:30 p.m., a group of young men arrived, most of whom later were named as defendants in this action. A conflict ultimately ensued, causing the plaintiff to run away as three young men chased him.

       As to the apportionment of liability, the jury found the following:
      “Gertrude Rivas: Zero percent.
      “Brian Fratturo: 30 percent.
      “Austin Lewis: 12 and one-half percent.
      “Shane Dixon: 12 and one-half percent.
      “Frank D’Acunto: 12 and one-half percent.
      “Thomas Marino: 12 and one-half percent.
      “Christopher DeMarkey: 20 percent.
      “Total: 100 percent.”

       The three individuals interviewed were Shane Dixon, Thomas Marino, Jr., and Richard Robinson. Of the three, only Dixon and Marino were named as defendants in this action. See footnote 2.

       To be clear, although the defendant does not explicitly make the argument, it appears from the record that he essentially asserted that the statement was admissible pursuant to the exception to the hearsay rule for admissions because the court could infer from the police report that the statement was likely made by either of the two parties to the litigation.

       The court stated the following outside the presence of the jury: “I and the Appellate Court have a difference of opinion as to what constitutes hearsay. I will, as I always, report the English rule, and the civil cases are very simple; to the effect that it can be if it’s hearsay, the judge will then rule or indicate to the jurors that it is hearsay, and they should treat it or what weight they wish to give it. . . . So, my position as the trial judge here, I’ll exercise my discretion. I will allow the statement to come before the jury; it can be read. I will caution the jury that it might contain some hearsay. And they can show whatever weight they wish to give to the statement.!’

       The business records exception is codified in General Statutes § 52-180, which provides in relevant part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.” See also Conn. Code Evid. § 84.

       Statements of witnesses contained in a police report add another level of hearsay, as they are not based on the entrant’s personal knowledge. As such, some exception to the hearsay rule must be found to justify their admission. See Hutchinson v. Plante, 175 Conn. 1, 5, 392 A.2d 488 (1978) (holding that portions of police officer’s report containing statements made to him by witnesses to accident were not admissible under statute like General Statutes § 52-180 because witnesses did not have business duty to make statements).

       For example, properly admitted evidence of the defendant’s attentiveness to her driving, that she was traveling at a low rate of speed, the lack of light in the area and that trespassers were not allowed on the school grounds at the time of the accident all was before the jury.

       See footnote 2.

         In fact, the charge the plaintiff identifies as improper does not seem so erroneous when read in its entirety. The court actually instructed the jurors to fill in the interrogatories in any manner they wanted to as long as they “compl[ied] with the concepts of law [the court] gave [them].”

       Those two interrogatories stated the following:
      “Please answer yes or no to interrogatories 1 and 2.
      “1. Was defendant Gertrude Rivas negligent in that she was inattentive and failed to maintain a proper lookout for pedestrians upon the roadway and did such negligence proximately cause injuries or damage to the plaintiff, Christopher DeMarkey?
      “2. Was defendant Gertrude Rivas negligent in that she operated the vehicle driven by her at unreasonable rates of speed, given the conditions at hand in violation of Connecticut General Statute, section 14-218a and did such negligence proximately cause injuries or damage to the plaintiff, Christopher DeMarkey?
      “If the answer to interrogatory no. 1 and 2 is no, defendant, Gertrude Rivas’ apportionment of liability is zero, in interrogatory H.”
      In addition, we note that contrary to the plaintiffs assertion, the jury’s unnecessary apportionment of all the parties’ negligence does not belie a finding by this court that the jury understood the court’s instruction that they first consider the negligence of the defendant.