text:
    LEROY A. HUTTON v. COMMISSIONER OF CORRECTION
    (AC 27876)
    Bishop, McLachlan and Lavine, Js.

      Argued April 17
    officially released July 31, 2007

      Sandra J. Crowell, assistant public defender, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVINE, J.

The petitioner, Leroy A. Hutton, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus, which alleged in relevant part that he had been denied the constitutional right to the effective assistance of counsel. On appeal, the petitioner claims that the court improperly (1) concluded that he was not denied the effective assistance of counsel (a) during plea negotiations and (b) at sentencing, and (2) required him to prove the actual plea offer. We affirm the judgment of the habeas court.

The following facts, as set forth in the court’s memorandum of decision, are relevant to our resolution of the appeal. The petitioner’s conviction of multiple offenses arose out of an armed invasion of a home in West Hartford on December 4, 1991, in which the female victim was bound and her two young children were held at gunpoint until she disclosed the location of $1000. The victim knew the petitioner, who was accompanied by two other men. The petitioner was arrested pursuant to a warrant on December 30,1991, and subsequently released on bail.

The petitioner retained an experienced attorney, Gerald Klein, to represent him. On October 22, 1992, the state filed a ten count substitute information. The petitioner was present during jury selection and when the court, Corrigan, J., recessed the proceedings until the presentation of evidence was to begin on Monday, October 26, 1992. The petitioner, however, failed to appear. Judge Corrigan denied oral motions made by Klein for a continuance, a mistrial and to withdraw as counsel. The petitioner was tried in absentia and found guilty of nine of the ten charges against him. On December 9, 1992, the petitioner was sentenced in his absence to an effective term of twenty-five years incarceration. The petitioner did not file an appeal. The petitioner was apprehended in 1997, and on April 23, 1997, the court, Espinosa, J., sentenced him to five years in prison pursuant to a guilty plea to failure to appear in the first degree, to run concurrently with the 1992 sentence.

The petitioner filed a petition for a writ of habeas corpus on February 26,1998, and a public defender was appointed to represent him. An amended four count petition for a writ of habeas corpus was filed on October 4, 2005. It alleged in count one that Klein failed to communicate to the petitioner the strength of the state’s case against him and misadvised him to reject the plea agreement, in count two that the petitioner’s conviction on three conspiracy counts violated the constitutional prohibition against double jeopardy, in count three that Klein’s representation was ineffective because he failed to present mitigating evidence at sentencing and in count four that the respondent miscalculated the petitioner’s parole eligibility date. Trial on the petition for a writ of habeas corpus commenced in April, 2006.

The court rejected the petitioner’s claim that Klein failed to communicate the state’s plea agreement to him on credibility grounds. With respect to the allegations in count three that Klein provided ineffective representation at the time the petitioner was sentenced by failing to present mitigating evidence, the court concluded that Klein did not render ineffective assistance because the evidence the petitioner was importuning Klein to present could have been viewed as an aggravating, not a mitigating, factor.

The court also concluded that Klein was not ineffective for failing to raise the double j eopardy claim. Klein’s failure to raise the claim at sentencing was not fatal to the petitioner, as it could have been raised in a direct appeal. The petitioner was in procedural default for failing to raise the claim on direct appeal. The court also affirmed the respondent’s parole eligibility calculations.

The court denied the amended petition for a writ of habeas corpus and thereafter granted the petition for certification to appeal. The court also articulated certain factual findings in response to the petitioner’s motion for articulation.

“The standard of review for a challenge to a court’s denial of a petition for a writ of habeas corpus based on a claim of ineffective assistance of counsel is well settled. The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. . . .

“Although [the] decision [to plead guilty or proceed to trial] is ultimately made by the defendant, the defendant’s attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel’s independent evaluation of the charges and defense, applicable law, the evidence and the risks and probable outcome of a trial. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction. . . .

“In Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel’s representation fell below an objective standard of reasonableness . . . and (2) that defense counsel’s deficient performance prejudiced the defense. . . .

“The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. . . . In determining whether such a showing has been made, judicial scrutiny of counsel’s performance must be highly deferential. . . . The reviewing court must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. . . .

“The second part requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. . . . The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn. App. 751, 754-55, 895 A.2d 242 (2006).

“hi Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 425, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub. nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006).

I

The petitioner claims that the court improperly determined that he was not denied the effective assistance of counsel with respect to plea negotiations. Concomitantly, the petitioner claims that the court required him to prove the actual plea offer. We disagree.

In his petition for a writ of habeas corpus, the petitioner alleged that Klein had failed to communicate to him the strength of the state’s case and misadvised him to reject the state’s offer of a plea bargain. The court found that there was “no credible evidence” that Klein failed to communicate to the petitioner the strength of the state’s case and that Klein testified credibly that the petitioner was known to his accusers, and consequently, no plausible defense of misidentification was available. Klein communicated all of this to the petitioner. Furthermore, the court found that the petitioner was unable to explain why his accusers would implicate him in the crime if he had not been involved.

Prior to trial, the state offered the petitioner a plea agreement, which the petitioner rejected. The court found that there was no credible evidence as to the terms of the state’s offer and that the petitioner’s testimony that Klein told him that the offer was a term of five years with the right to argue for less lacked credibility, as did his testimony that Klein advised him to reject the offer. The court found that Klein’s credible testimony established that he advised the petitioner of the state’s offer and properly left the decision to accept or to reject it to the petitioner. The court concluded that the factual allegations of the first count of the amended petition for a writ of habeas corpus had not been established.

The petitioner also claims that the court required him to prove the specific terms of the state’s plea offer. We disagree. The court simply found that “[tjhere is no credible evidence as to exactly what the offer was.” It found that the petitioner’s testimony that the offer was “five years with the right to argue for less” was not credible. On appeal, the petitioner appears to overlook the fact that at the time the plea offer was made, he was accused of having committed ten serious felonies.

The court’s memorandum of decision makes clear that its adjudication of the first count of the amended petition for a writ of habeas corpus was based on its credibility assessment of the petitioner and Klein. It is well established that a reviewing court is not in the position to make credibility determinations. “When reviewing the decision of the habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citations omitted; internal quotation marks omitted.) Dwyer v. Commissioner of Correction, 69 Conn. App. 551, 561-62, 796 A.2d 1212, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002). Because the petitioner’s first claim is premised entirely on issues of credibility, he cannot prevail.

II

The petitioner also claims that the court improperly determined that counsel’s assistance was not ineffective in allegedly failing to investigate and to present mitigating circumstances and to raise a claim of double jeopardy at the time of sentencing. We do not agree.

The petitioner was not present at sentencing and otherwise failed to avail himself of the fact that Klein was representing him. The court found that at the time of sentencing, the petitioner had a girlfriend, Tanya Thomas, with whom he had had a child. Klein did not call Thomas or her mother to speak on the petitioner’s behalf at sentencing. At the habeas trial, the women testified that they would have said that the petitioner was a skilled musician and a good father. The court found that Klein testified credibly that if he had known of the witnesses, he would not have asked them to speak at sentencing because what they had to say on behalf of the petitioner would not have been viewed in the petitioner’s favor. Thomas had become pregnant by the petitioner when she was sixteen and he was twenty-four. Their child was bom in September, 1991, three months before the subject crimes were committed. The court observed that impregnating a sixteen year old girl and committing a violent felony likely to result in a substantial period of incarceration “are not the hallmarks of a good father.” These facts, if presented to the sentencing court, may have been viewed as aggravating, rather than mitigating factors. For these reasons, the court concluded that Klein’s assistance at sentencing was not ineffective.

In his brief to this court, the petitioner notes that at sentencing, Klein took exception to the court’s having conducted the trial in the petitioner’s absence. Klein pointed out that the petitioner had not been convicted of any prior crime and challenged the credibility of the victim solely as to her prior knowledge of the petitioner. Furthermore, Klein disputed that the subject crimes were the sole cause of the mental health issues of the victim’s son. The court responded that it had “no facts except for the lack of a prior criminal record to warrant any mitigation of sentence.” The petitioner’s principal legal argument here is that he was denied the effective assistance of counsel because Klein failed to investigate mitigating circumstances to present to the court.

Subsequent to oral argument, the petitioner submitted Miller v. Martin, 481 F.3d 468 (7th Cir. 2007), a recent case from the United States Court of Appeals for the Seventh Circuit, which he asserts supports his claim. Despite the petitioner’s assertion to the contrary, we find the facts of Miller to be distinguishable from the facts here. In Miller, although the defendant was tried in absentia, he was present at the time of sentencing and represented by counsel. Id., 470. At sentencing, the Miller defendant’s counsel was certain that the state appellate court “would order a new trial, because, he believed, the trial in absentia was a nullity. He therefore told [the defendant] not to speak at all during the sentencing hearing .... For his own part, [counsel] also remained mute, except to tell the sentencing court at the outset of the hearing that [the defendant] does not recognize the validity of the trial or the authority of the Court to proceed to disposition at this time.” (Internal quotation marks omitted.) Id.

In reviewing the defendant’s appeal from the denial of his petition for a federal writ of habeas corpus, the Seventh Circuit agreed with the defendant that United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), rather than Strickland, was the proper standard to apply but that under either standard the defendant was denied the constitutional right to effective assistance of counsel at sentencing. Miller v. Martin, supra, 481 F.3d 472-73. The Seventh Circuit noted that “in certain types of cases, prejudice is so likely that case-by-case inquiry into prejudice is not worth the cost, and so it is presumed. [Strickland v. Washington, supra, 466 U.S. 692.] This occurs when (1) the defendant is denied counsel at a critical stage; (2) counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; or (3) counsel is called upon to represent a client in circumstances under which no lawyer could provide effective assistance. [United States v. Cronic, supra, 466 U.S. 659-61] . . . .” (Internal quotation marks omitted.) Miller v. Martin, supra, 472. The Seventh Circuit concluded that the second Cronic exception applied. Id. “[C]ases have emphasized that the second Cronic exception is exceedingly narrow. . . . For it to apply, the attorney’s failure must be complete. . . . [C]ourts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.” (Citations omitted; internal quotation marks omitted.) Id., 472-73.

We need not detain ourselves long with Miller, as it is inapposite to the facts here. The habeas court properly determined that Klein made an appropriate strategic decision not to have Thomas and her mother speak at sentencing. We also disagree that Klein did nothing on the petitioner’s behalf at the time of sentencing. The petitioner’s own recitation of facts brings that to light. Klein spoke in mitigation of the petitioner’s sentence, which the sentencing court noted—the petitioner did not have a prior criminal record. The second Cronic factor, therefore, does not apply; Klein’s representation was strategic and provided the court with information in mitigation of the sentence.

The petitioner also claims that the court improperly concluded that Klein did not provide ineffective assistance of counsel because he did not inform the court that the petitioner’s conviction of the conspiracy charges was in violation of the constitutional prohibition against double jeopardy and that the sentences on those charges were illegal. The petitioner properly argues that the double jeopardy clause of the fifth amendment protects against multiple punishments for the same offense. State v. Coltherst, 87 Conn. App. 93, 112, 864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005). “Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.” (Internal quotation marks omitted.) Id.

Claims of multiple punishments for the same offense may be raised on direct appeal, when not raised before the trial court. See State v. Snook, 210 Conn. 244, 263, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). The petitioner did not file a direct appeal and raised the claim of an illegal sentence for the first time in this collateral habeas corpus proceeding. He is, therefore, in procedural default. To prevail on a claim of an illegal sentence in a collateral habeas proceeding, a petitioner must demonstrate both good cause for failing to raise the claim on direct appeal and actual prejudice. See Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). The petitioner failed to appeal from his judgment of conviction because he absconded, which does not constitute good cause. We need not decide whether he has suffered actual prejudice.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also claimed that the respondent, the commissioner of correction, improperly calculated his parole eligibility. After our Supreme Court decided Baker v. Commissioner of Correction, 281 Conn. 241, 914 A.2d 1034 (2007), the petitioner withdrew this claim in his reply brief.

       The petitioner was convicted in absentia of burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-8, conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-101 (a) (2), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) (B) and (C), conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-92 (a) (2) (A) (B) and (C), robbery in the first degree in violation of General Statutes §§ 53a-8 and 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4) and two counts of risk of injury to a child in violation of General Statutes §§ 53a-8 and 53-21. The jury found the petitioner not guilty of conspiracy to commit injury or risk of injury to a child in violation of General Statutes §§ 53-21 and 53a-48 (a).

       A letter to the appellate clerk’s office from the petitioner’s public defender states in part that “[t]he Seventh Circuit held that it was an unreasonable application of federal law for the state court not to grant relief when trial counsel’s sole argument at sentencing was to object to [the Miller defendant’s] being tried in absentia. ... In the case of the defendant in Miller], similarly to [the petitioner’s] case, the trial judge stated that ‘he could not find any mitigating factors.’ ”

       Our discussion of the Cronic factors is limited to the scope of the petitioner’s argument in this case and is not intended to have further application. Strickland is the standard by which claims of ineffective assistance of counsel are reviewed in this jurisdiction.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    WILLIAM A. STUART ET AL. v. RICHARD M. FREIBERG
    (AC 27919)
    DiPentima, McLachlan and Dupont, Js.

      Argued April 24
    officially released July 31, 2007

      Sandra J. Akoury, with whom, on the brief, was Paul J. Pacifico, for the appellants (plaintiffs).

      Stephen H. Gross, with whom was John K. McDonald, for the appellee (defendant).
   Opinion

McLACHLAN, J.

The plaintiffs, William A. Stuart and Jonathan Stuart, appeal from the judgment of the trial court rendered following the granting of the motion filed by the defendant, Richard M. Freiberg, to strike all four counts of the plaintiffs’ complaint. The plaintiffs claim that the court improperly granted the motion to strike because (1) the motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41, (2) they pleaded sufficient facts to support their claims, (3) the court concluded that they did not allege the existence of a legally cognizable duty of care owed by the defendant and (4) the court concluded that the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., was not applicable to their claim of professional malpractice. Because we agree with the plaintiffs’ first claim, we reverse the judgment of the trial court and do not address the remaining claims.

The following procedural history and facts, as alleged in the complaint, are relevant to the plaintiffs’ appeal. The plaintiffs and Kenneth J. Stuart, Jr. (Stuart, Jr.), who is not a party to this action, are brothers and the only children and heirs of Kenneth J. Stuart, Sr. (Stuart, Sr.). Stuart, Jr., is the executor of Stuart, Sr.’s estate, the trustee of Stuart, Sr.’s living trust and the general partner of Stuart & Sons, L.P. The plaintiffs commenced a prior action against Stuart, Jr., and others, claiming that Stuart, Jr.’s actions in his capacity as executor, trustee and general partner dissipated the assets of the estate, trust and limited partnership.

The defendant, a certified public accountant, was the accountant for the estate, trust, limited partnership and Stuart, Jr., individually. The plaintiffs commenced the present action, claiming that the defendant was aware that Stuart, Jr., was commingling his personal funds with those of the estate, trust and limited partnership and that Stuart, Jr., used the assets of those entities for his own personal expenses. They further alleged that the defendant did not reflect certain transactions in the financial summaries, compilations and statements that he prepared on behalf of the estate, trust and limited partnership, and that he provided misleading and inaccurate information to the plaintiffs, knowing that they would rely on his representations. The plaintiffs’ complaint alleged that the actions of the defendant constituted fraud, negligent misrepresentation, professional malpractice and a violation of CUTPA.

The defendant moved to strike all of the counts in the plaintiffs’ complaint “on the grounds that they are legally insufficient and fail to allege any facts that would indicate [that the] defendant is hable to [the] plaintiffs” without further specificity. The defendant submitted a memorandum of law in support of the motion at that time. The plaintiffs filed an objection to the motion to strike, claiming, inter aha, that the motion merely provided a general statement that their complaint was legally insufficient and failed to state the basis for the claimed insufficiency in the motion itself. The court issued its memorandum of decision on April 27, 2006, in which it concluded that the plaintiffs failed to allege conduct sufficient to state a cause of action in fraud, that there was no privity between the plaintiffs and the defendant, that the complaint failed to allege the existence of a legally recognized duty of care owed by the defendant to the plaintiffs and that a professional malpractice claim was not cognizable under CUTPA. The court struck the complaint in its entirety. The plaintiffs did not file a new pleading; see Practice Book § 10-44; and the court rendered judgment in favor of the defendant. This appeal followed.

The plaintiffs first claim that the court improperly granted the defendant’s motion to strike because the motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41, a claim that also had been raised before the trial court. The plaintiffs argue that the failure to comply with Practice Book § 10-41 rendered the motion fatally defective. We agree. The resolution of that issue is dispositive of the appeal; accordingly, we do not reach the plaintiffs’ remaining claims.

The standard of review in an appeal from the granting of a motion to strike is well established. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review ... is plenary.” (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). If a party wants to challenge the legal sufficiency of a complaint, the proper procedural vehicle is the motion to strike. Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency “shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”

“Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted. . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself. ” (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn. App. 9, 13-14, 779 A.2d 198 (2001).

In the present case, the plaintiffs, in opposing the defendant’s motion to strike, clearly did not waive the motion’s noncompliance with Practice Book § 10-41. The plaintiffs objected to the defendant’s motion on that ground in their brief filed with the trial court and have raised that issue on appeal. If the plaintiffs had not objected to the form of the motion to strike, we would have considered the motion in the form presented to the trial court because Practice Book § 10-41 is not jurisdictional in nature. See Bouchard v. People’s Bank, 219 Conn. 465, 468 n.4, 594 A.2d 1 (1991); Blancato v. Feldspar Corp., 203 Conn. 34, 36 n.3, 522 A.2d 1235 (1987); Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986).

Here, an objection to the form of the motion was made. The motion itself failed to set forth separately each claim of insufficiency and failed to specify distinctly the reasons for each claimed insufficiency. Simply stating that all of the counts “are legally insufficient” and that they “fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs” cannot be considered compliance with Practice Book § 10-41. The complaint was in four counts, and the defendant gave several reasons for his challenge to the causes of action as alleged by the plaintiffs in his memorandum of law in support of the motion. Those reasons, however, were not contained in the motion itself, and the fact that they were provided in the accompanying memorandum of law does not save the motion from being considered “fatally defective.” See Barasso v. Rear Still Hill Road, LLC, supra, 64 Conn. App. 13-14.

Accordingly, because the defendant’s motion failed to set forth each claim of insufficiency and failed to specify the grounds of insufficiency as required by Practice Book § 10-41, we must conclude that the court improperly granted the motion to strike.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to strike and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Practice Book § 10-41 provides: “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”

       Initially, it may appear that form is being elevated over substance by adhering strictly to Practice Book § 10-41. That section, however, clearly places the burden on the party filing the motion to strike to state the grounds of the claimed insufficiency in the text of the motion. As correctly noted by the Superior Court in Bucon, Inc. v. ARC Icesports Danbury, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-99-0160473-S (February 8, 2001), if that procedure is not followed, it puts the party opposing the motion and the court to the task of trying to locate in the accompanying memorandum of law the various claims of insufficiency that are being made. “In poorly organized briefs, such a hunt for grounds presents the hazard of missing claims or responding to observations that the movant does not actually assert as grounds.” Id.

       There is one decision by this court in which we concluded that it was proper for the trial court to consider the reason proffered in the motion to strike together with additional information provided in the supporting memorandum of law. In Rowe v. Godou, 12 Conn. App. 538, 539, 532 A.2d 978 (1987), rev’d on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988), the defendants requested the court to strike the plaintiffs complaint on the ground that the action was “ ‘barred by statute,’ ” but they failed to cite the statutory authority. The supporting memorandum of law identified the applicable statute as General Statutes § 7-308. Rowe v. Godou, supra, 540.
      We concluded that a motion to strike that lacks specificity but which adequately submits the material issue to the court is sufficient to comply with Practice Book § 10-41 (then § 154). Rowe v. Godou, supra, 541-42. Our Supreme Court, in reviewing that issue on appeal, stated that it agreed with our reasoning, and the result that we reached, in deciding that issue. Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988). Here, the defendant’s motion to strike did not adequately submit the material issue to the court.


author: SCHALLER, J.

text:
    WANDA VINE v. ZONING BOARD OF APPEALS OF THE TOWN OF NORTH BRANFORD ET AL.
    (AC 25837)
    Schaller, McLachlan and Gruendel, Js.

      Submitted May 25
    officially released July 31, 2007

      Daniel C. Bums and Pasquale Young, for the appellant (plaintiff).

      John M. Gesmonde, for the appellee (named defendant).

      Frank S. Marcucci, for the appellee (defendant M & E Construction, Inc.).
   Opinion

SCHALLER, J.

This zoning appeal returns to this court on remand from our Supreme Court; Vine v. Zoning Board of Appeals, 281 Conn. 553, 916 A.2d 5 (2007); for resolution of the claim of the plaintiff, Wanda Vine, that the trial court improperly determined that the defendant zoning board of appeals of the town of North Branford (board) had the authority to grant a variance after it previously had denied the first application for a variance by the defendant M & E Construction, Inc. (M & E). We affirm the judgment of the trial court.

In the plaintiffs first appeal to this court, she claimed that “the court improperly determined that (1) the hardship claimed by M & E was not self-created, (2) the claimed hardship was not merely financial, (3) the ‘purchaser with knowledge’ rule did not apply and (4) material differences existed between the application for the variance at issue in this appeal and the application M & E filed in 2001 that was denied, which permitted the board to reverse its 2001 decision.” Vine v. Zoning Board of Appeals, 93 Conn. App. 1, 2-3, 887 A.2d 442 (2006), rev’d, 281 Conn. 553, 916 A.2d 5 (2007). In a divided opinion, the majority of this court concluded that the board lacked authority to grant the variance because any hardship incurred by M & E was purely financial in nature. Id., 7. As a result of this conclusion, the majority of this court did not reach the other issues raised by the plaintiff. Id., 3 n.4. Additionally, the majority stated: “In both its brief and at oral argument, the board noted that a purpose of zoning is to eliminate nonconformities as quickly as possible and that the elimination of a nonconforming use may serve as an independent basis for the granting of a variance. See Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 572, 785 A.2d 601 (2001). That issue, however, was raised neither before the board nor the trial court and, therefore, is not properly before this court. See Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 247, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). Furthermore, the defendants have not raised that issue as an alternate ground for affirming the court’s decision. We, therefore, decline to consider that argument. See New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2005).” Vine v. Zoning Board of Appeals, supra, 3 n.3.

Our Supreme Court granted the petitions for certification filed by the board and M & E, limited to the following issue: “Did the Appellate Court properly conclude that the variance granted by the named defendant, the zoning board of appeals of the town of North Branford, was improper because the hardship was merely financial?” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 277 Conn. 918, 895 A.2d 794 (2006). Our Supreme Court acknowledged that “the Appellate Court . . . was technically correct when it determined that the board previously had not raised or preserved for review the claim that it properly had granted the variance because it would reduce a preexisting nonconforming use under Stancuna [v. Zoning Board of Appeals, supra, 66 Conn. App. 572] and Adolphson [v. Zoning Board of Appeals, 205 Conn. 703, 708-10, 535 A.2d 799 (1988)].” Vine v. Zoning Board of Appeals, supra, 281 Conn. 567.

Due to the “extraordinary circumstances” of this case, our Supreme Court determined that review of the defendants’ claim that Stancuna and Adolphson applied was warranted. Id., 569. The court explained: “First, the issue before us is a pure question of law and does not involve the exercise of discretion by the board or the trial court. Second, unlike the trial court in nonadministrative appeals, the board, which was the initial decision maker in this case, is a party to this appeal and raises the issue that we review. Consequently, we know how the board would have ruled on the issue if it had been raised previously, and there is no possibility that we might usurp its discretion by reviewing it. Third, the record is adequate for review, the issue has been fully briefed by all of the parties, and considering the claim could result in no unfair surprise or prejudice to the plaintiff.” Id.

Our Supreme Court concluded that Stancuna and Adolphson provided an alternate ground for affirming the decision of the board because “granting the variance would increase the size and buildable area of the lots, resulting in a development that more nearly conforms to the technical requirements of the town’s zoning regulations.” Id., 570. “This conclusion disposes of all of the plaintiffs claims on appeal to the Appellate Court relating to the merits of M & E’s application for a variance. The Appellate Court must address on remand, however, the plaintiffs claim that the board improperly reversed its denial of M & E’s first application for a variance because material differences existed between the first application and the application under review in this appeal.” Id., 572.

The facts underlying this appeal were set out at length in our previous opinion. “M & E acquired real properties located at 66, 72 and 76 Notch Hill Road in North Bran-ford (town). Those properties, described in the land records as lots 26, 26A and 26B, were created by a subdivision approved in 1968 and are located in a zoning district designated as R-40. In 1977, the town amended its zoning regulations and included a requirement for a 150 foot buildable square on a lot for properties in the R-40 district. In 2001, M & E sought to combine the three lots into two proposed lots, designated A and B, and to build a residential home on each. A portion of proposed lot A was encumbered by an aboveground utility easement for electrical transmission lines that Connecticut Light and Power Company had obtained in 1981 after initiating condemnation proceedings.

“On October 15, 2001, the board denied M & E’s first application for a variance. On November 15, 2002, M & E filed a second application for a variance with respect to two sections of the town’s zoning regulations. First, § 24, schedule B, requires a minimum 150 foot square on each building lot. Second, § 6.25 provides that ‘[i]n determining compliance with minimum lot area and shape requirements of these Regulations, land subject to easements for drainage facilities and underground public utilities may be included, but not . . . easements] for above-ground public utility transmission lines . . . .’ Because of the utility easement, the 150 foot square could not be located on the proposed lot A. A variance, therefore, was needed to build M & E’s proposed residential dwelling.

“On April 14, 2003, the board held a public hearing on M & E’s application. Despite expressing some concerns about the project, the board granted the variance by a four to one vote. M & E was notified of the approval by a letter from the board dated April 15, 2003. Notice of the approval was published in the New Haven Register on April 17, 2003.

“On April 24, 2003, the plaintiff appealed from the board’s actions to the trial court. On July 7, 2004, the court issued its memorandum of decision and dismissed the plaintiffs appeal. The court concluded that the property was subject to an ‘uncommon’ hardship as a result of the utility easement that resulted from the condemnation proceeding and that the comprehensive zoning plan would not be affected. The court, quoting one of the board members, stated: The record reveals that the variance is so nominal and the impact so minimal on neighbors and the lot in general that it is form over substance to require M & E to comply with the minimum square lot requirements.” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 93 Conn. App. 3-5.

As instructed by the remand from our Supreme Corut, the sole issue for our consideration is the plaintiffs claim that the board lacked the authority to grant M & E’s second application for a variance because no material differences existed between the first application and the second application. The following additional facts are necessary for our discussion. In July, 2001, M & E submitted an application to the board for a variance for the adjoining properties located at 66 and 72 Notch Hill Road. Following a public hearing held on October 15, 2001, the board, by a three to one vote, denied the application for a variance.

At the April 14,2003 public hearing on M & E’s second application for a variance, Paul Lamber, a professional engineer, stated that the proposed lot line that separated lot A from lot B was changed in the second application for a variance to accommodate the proposed driveway. The board also learned, for the first time, that the property was assessed and had been taxed as three separate building lots. Finally, the board was made aware of the scope and substantial effect of the easement on the subject property.

As a preliminary matter, we set forth our standard of review and the applicable legal principles. “Trial courts defer to zoning boards and should not disturb their decisions so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . The trial court should reverse the zoning board’s actions only if they are unreasonable, arbitrary or illegal. . . . The burden of proof is on the plaintiffs to demonstrate that the zoning board acted improperly. . . .

“When a party files successive applications for the same property, a court makes up to two inquiries. The first is to determine whether the two applications seek the same relief. The zoning board determines that question in the first instance, and its decision may be overturned only if it has abused its discretion. ... If the applications are essentially the same, the second inquiry is whether there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided. . . . For an appellate court, the only question is whether the trial court’s finding as to the zoning board’s decision is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Laurel Beach Assn. v. Zoning Board of Appeals, 66 Conn. App. 640, 645-46, 785 A.2d 1169 (2001); see Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988); Sharp v. Zoning Board of Appeals, 43 Conn. App. 512, 522-23, 684 A.2d 713 (1996).

With respect to the first' inquiry, we conclude that the board implicitly determined that the two variance requests sought essentially the same relief, namely, permission not to comply with the 150 foot square requirement contained in the zoning regulations. We therefore focus on the second inquiry, which is whether the board properly determined that there had been a change of conditions or other considerations had intervened that materially affected the merits of the matter decided.

The board did not articulate its reasons for approving the variance in favor of M & E. The court therefore properly searched the record. See Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 532, 772 A.2d 624 (2001) (“[w]here . . . the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision”); see also Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991). In its memorandum of decision, the court stated that the record revealed: (1) the board inquired about the changes that occurred between the two applications; (2) the proposed property line dividing lots A and B was moved to accommodate the proposed driveway; (3) it was brought to the attention of the board that the property had been taxed, assessed and sold independently since 1968; and (4) the board discussed its concerns regarding the enormity of the easement. The court also concluded that the board found these factors to be material considerations affecting the merits of the application. It further determined that sufficient evidence in the record demonstrated that the board did not act unreasonably or illogically by reversing its prior denial of the variance.

On appeal, the plaintiff argues that moving the location of the proposed driveway did not constitute a material change to warrant a reversal of the prior decision of the board. She further contends that the information regarding the tax status and scope of the easement did not relate to the use of the land and therefore “cannot result in a finding of a material change in circumstances concerning the land.” We do not agree.

In Laurel Beach Assn. v. Zoning Board of Appeals, supra, 66 Conn. App. 642-43, the applicant filed a request for a zoning permit and a special exception in order to build a home, which initially was denied. After the town had removed the special exception requirement, the applicant, approximately ten years after the denial, filed a second request, which the board granted. Id., 644. The record before the zoning board revealed that, as part of the second application, the applicant had submitted “several photographs of the lots, copies of checks and tax bills showing that both lots [were] taxed separately by the city and by the plaintiff, subdivision maps and a certificate of title with related documentation showing the property’s chain of title.” Id.,

647. This information had not been presented to the zoning board at the time of the initial application. Id., 650. “As a result, the zoning board could have properly granted the [second application for a] permit . . . even if it did view the relief requested as substantially similar.” Id., 648; see also Consolini v. Inland Wetlands Commission, 29 Conn. App. 12, 17, 612 A.2d 803 (1992) (significant change in conditions and intervening considerations where representative of developer did not attend hearing after being informed matter would not be heard, but attended subsequent hearing and provided oral testimony and written evidence); Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 50-52, 609 A.2d 1043 (1992) (change in circumstances existed where board learned of flooding problems justifying board in denying second request for permit after it previously had granted permit, but applicant had failed to begin work in timely manner).

The record in the present case reveals that M & E, at the hearing on its second application for a variance, submitted information to the board that it did not have at the time of the first hearing. The record further reveals that by moving the location of the proposed driveway, the impact to the wetlands area was lowered. As a result of the board becoming aware of these matters, it reasonably could have concluded that other considerations had intervened that materially affect the merits of the matter decided. See Laurel Beach Assn. v. Zoning Board of Appeals, supra, 66 Conn. App. 645-46. As aptly noted in the dissenting opinion in our previous decision, “[t]he board in this case simply did not have important information at the time it made its decision on the first application. It subsequently was presented with a much more accurate depiction of the situation surrounding the three approved subdivision lots and the scope of the aboveground utility easement. ” Vine v. Zoning Board of Appeals, supra, 93 Conn. App. 24 (McLachlan, J., dissenting). On the basis of this record, we conclude that the trial court properly determined that the board acted fairly and with proper motives or upon valid reasons when it granted M & E’s second application for a variance.

The judgment is affirmed.

In this opinion the other judges concurred.

       The town of North Branford, also a defendant at trial, is not a party to this appeal.

       Steve DeFrank, a member of the board, commented that “based upon the representation that the fact I was not aware of potentially a material fact that wasn’t raised the last time they came that there is some small difference with regard to the driveway ... I would vote to approve [the application].” Our Supreme Court, however, has instructed that mere utterances of an individual member do not constitute a formal, official collective statement of the entire board. See Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).

       We are mindful of our Supreme Court’s decision in Mynyk v. Board of Zoning Appeals, 151 Conn. 34, 193 A.2d 519 (1963). In that case, the applicant applied for a certificate of approval of the location of a proposed gasoline station. Id., 35. At the public hearing, the discussion focused on the issue of the effect of the proposed station on traffic, with several neighboring property owners submitting written objections. Id., 36. After being denied by the defendant board of zoning appeals, the applicant filed a request to open the matter and to submit additional evidence. Id. The board never acted on this request, and the applicant appealed to the Court of Common Pleas. Id. While the appeal was pending, the applicant made a second application to the board for a certificate of approval, and a hearing was held on April 4, 1961. Id., 36-37. On that day, the applicant withdrew his appeal of the denial of his first application. Id., 37. Following this hearing, the plaintiffs second application was granted by the board. Id. The Court of Common Pleas sustained an appeal, filed by several neighboring property owners, contesting the board’s decision. Id.
      The plaintiff appealed to our Supreme Court, which affirmed the judgment of the trial court. Specifically, the court stated: “At the hearing, no change of conditions or alteration of circumstances was shown. Each side merely took advantage of the opportunity thus afforded to offer further and more extensive evidence, all of which could have been produced at the first hearing.” Id., 38. In other words, the applicant and the neighbors provided the board with additional evidence with respect to facts that were already known to the board at the time of the first hearing, namely, of the issue of the impact of the gasoline station on traffic. The board was not provided with any new topics for consideration. That fact distinguishes Mynyk from the present case, in which the board received information regarding the tax status and the scope of the easement, matters that had not been presented to the board at the first hearing.

       We note that the plaintiff does not argue that the board’s claims regarding the tax status of the properties and the scope of the easement are barred by the doctrine of res judicata.


author: Per Curiam.

text:
    JAMES DILLARD v. COMMISSIONER OF CORRECTION
    (AC 27422)
    Flynn, C. J., and Gmendel and Harper, Js.
    Argued April 25
    officially released June 26, 2007
   Per Curiam.

The appeal is dismissed.


text:
    ANTONIO RIBEIRO v. DEPIANO, GENTILE, CZEPIGA AND SOARES, P.C.
    (AC 28072)
    DiPentima, McLachlan and Lavine, Js.
    Argued May 31
    officially released June 26, 2007
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CHUCK W. BUDZ
    (AC 27493)
    Bishop, Lavine and Dupont, Js.
    Argued May 24
    officially released June 26, 2007
   Per Curiam.

The judgment is affirmed.


text:
    GUY EUGENE v. COMMISSIONER OF CORRECTION
    (AC 27411)
    Flynn, C. J., and Bishop and McLachlan, Js.
    Argued May 29
    officially released June 26, 2007
   Per Curiam.

The appeal is dismissed.


text:
    LIEN NEDWED v. HEINZ VONKUTHY
    (AC 27423)
    Schaller, Harper and Peters, Js.
    Argued May 24
    officially released June 26, 2007
   Per Curiam.

The judgment is affirmed.


author: BERDON, J.

text:
    STATE OF CONNECTICUT v. DAN L. MOORE
    (AC 26736)
    Flynn, C. X, and DiPentima and Berdon, Js.
    Argued February 14
    officially released July 31, 2007

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

BERDON, J.

The defendant, Dan L. Moore, appeals from the judgment of conviction, rendered after a jury trial, of three counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), four counts of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (4), and one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4). During trial, one of the state’s witnesses, James Brooks, a coconspirator in the robbery, altered his testimony during cross-examination, absolving the defendant and, during redirect examination by the state, invoked his fifth amendment protections, refusing to testify further. The defendant claims that the court improperly denied his motion to strike testimony elicited by the state during the redirect examination of Brooks. We agree with the defendant and reverse the judgment of the court.

The defendant was charged in connection with a robbery that occurred on October 6, 2002, in Windsor. A group of seven individuals was in or near their cars in the parking lot of the Ranch House restaurant when a dark blue minivan was driven adjacent to them. Several men got out of the van, and the driver, Corey Wallace, remained inside the van. One of the men, Brooks, pointed a shotgun at the group while another, Andrew Cromwell, searched them. One witness testified that a third person stood near the van and told the victims to cooperate. After all seven individuals were searched, the men got back inside the van, threw two of the victims’ wallets out a window and drove away. In total, approximately $30, a silver necklace and a cellular telephone were stolen.

The victims immediately called 911 to report the robbery and the license plate number of the van. Shortly after the robbery was reported, a Hartford police officer saw the van as it stopped near Main and Sanford streets in Hartford. The driver, Wallace, ignored police efforts to stop the van, instead leading police from four different police departments on a high speed chase until the van eventually was brought to a stop on Interstate 84. Brooks, Cromwell, Wallace and the defendant were detained and arrested.

Later that night at the Windsor police station, the seven victims viewed photographic arrays containing photographs of Brooks, Wallace, Cromwell and the defendant. Three victims identified Brooks as the gunman. One victim identified Cromwell as an assailant. None of the victims identified Wallace. One victim identified the defendant, but he stated that he thought the defendant was the driver.

At trial, Brooks, Cromwell and Wallace testified against the defendant pursuant to plea agreements. On direct examination, Brooks testified that the defendant was present during the robbery and at some point got out of the van to pick up a wallet that Cromwell had taken from a victim and thrown on the ground. He also testified that the defendant threw the wallet out of the van as they drove away. This testimony generally was consistent with testimony given by the victims and by Wallace and Cromwell, although Brooks’ overall depiction of the evening’s events varied from the testimony of others in several respects.

On cross-examination, Brooks changed his testimony. He testified that the defendant had been dropped off at a nightclub, Club Pyramid, prior to the robbery and was picked up after the robbery. Brooks testified that he was encouraged to implicate the defendant in order to get a favorable plea agreement. On redirect examination, the state questioned Brooks about the details of his plea proceedings, including his dialogue with the court, Miaño, J., during the plea proceedings and the facts to which Brooks had agreed to testify. The state also asked Brooks about a conversation he had had with the prosecutor about going to trial. Prior to the conclusion of redirect examination, Brooks invoked his fifth amendment right and refused to testify further, precluding any opportunity for recross-examination by the defendant. The court denied the defendant’s motion to strike Brooks’ redirect testimony from the record.

On appeal, the defendant claims the court should have granted his motion to strike the state’s redirect examination of Brooks. He argues that because he did not have the opportunity to question the witness about issues raised during redirect examination, he was deprived of his right to confront the witness under the sixth amendment to the United States constitution. We agree.

“When material new matters are brought out on redirect examination, the Confrontation Clause of the Sixth Amendment mandates that the opposing party be given the right of recross-examination on those new matters.” United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991). On redirect examination, the state raised new issues that had not been explored during direct examination, including Brooks’ dialogue with Judge Miaño at the plea canvass and a conversation between Brooks and a prosecutor regarding the plea. The defendant’s inability to recross-examine the witness, therefore, is no different from a situation in which cross-examination has been precluded. See id., 1375-76.

“The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination .... The sixth amendment is satisfied when the defendant is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Paredes, 35 Conn. App. 360, 365, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994); see also State v. Castro, 196 Conn. 421,425, 493 A.2d 223 (1985).

“The extreme sanction of striking the testimony of a witness should be resorted to only where the invocation of the [fifth amendment] privilege blocks inquiry into matters directly relating to the crime charged and not those which are merely collateral . . . .” State v. Valeriano, 191 Conn. 659, 666-67, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984). “To reconcile a defendant’s rights under the confrontation clause with a witness’ assertion of the fifth amendment privilege, a court must initially consider: (1) whether the matter about which the witness refuses to testify is collateral to his or her direct testimony, and (2) whether the assertion of the privilege precludes inquiry into the details of his or her direct testimony. . . . [T]he sixth amendment is violated when a witness asserts the privilege with respect to a non-collateral matter and the defendant is deprived of a meaningful opportunity to test the truth of the witness’ direct testimony.” (Citations omitted; emphasis in original.) Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir.), cert. denied, 502 U.S. 926, 112 S. Ct. 341, 116 L. Ed. 2d 281 (1991).

Our first inquiry is whether the matters about which Brooks refused to testify were collateral to his redirect testimony. “A subject of inquiry must serve to explore more than general credibility or it is collateral.” (Internal quotation marks omitted.) State v. Paredes, supra, 35 Conn. App. 367. “Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness’s testimony may be used against him. ... On the other hand, if the witness by invoking the privilege precludes inquiry into the details of his direct testimony, there may be a substantial danger of prejudice because the defense is deprived of the right to test the truth of his direct testimony and, therefore, that witness’s testimony should be stricken in whole or in part . . . .” (Citations omitted.) United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822, 84 S. Ct. 60, 11 L. Ed. 2d 55 (1963); see also State v. Roma, 199 Conn. 110, 117-18, 505 A.2d 717 (1986). “Evidence tending to show the motive, bias or interest of an important witness is never collateral or irrelevant. It may be . . . the very key to an intelligent appraisal of the testimony of the [witness].” (Internal quotation marks omitted.) State v. West, 274 Conn. 605, 641, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

The issues raised during the state’s redirect examination of Brooks were not collateral matters. The details of Brooks’ plea agreement, which included a promise to testify against the defendant and a recitation of the facts to which he would testify, bore directly on the truthfulness of the testimony, not on his general character or credibility. Conversations with the prosecutor about going to trial also dealt directly with the truth of Brooks’ testimony. This testimony was not collateral evidence of general bias because it explored more than general credibility. In contrast, in Dunbar v. Harris, 612 F.2d 690, 694 (2d Cir. 1979), the United States Court of Appeals for the Second Circuit held that it was unnecessary to strike direct examination testimony because it was collateral where on cross-examination the witness refused to answer questions related to his involvement in drug dealings other than those with which the defendant was charged. Information about the witness’ drug dealings did not relate to his direct testimony or the crimes for which the defendant was charged. Id. In this case, the details of the plea agreement and conversations with the prosecutor related to the crime with which the defendant was charged and might have demonstrated why Brooks changed his testimony or what version of events was accurate. The details of the plea agreement, particularly the factual basis to which Brooks agreed at the plea hearing, was evidence of Brooks’ potential bias or interest as to the crimes charged and directly relevant to the truth of those matters to which he testified; therefore it was not collateral or irrelevant.

We must next consider whether the assertion of the privilege precluded inquiry into the details of Brooks’ redirect testimony. “The question is whether the defendant’s inability to examine the witness precludes [the] defendant from testing the truth of the witness’ direct testimony ... or whether the answers solicited might have established untruthfulness with respect to specific events of the crime charged.” (Internal quotation marks omitted.) State v. Paredes, supra, 35 Conn. App. 367.

The defendant did not have the opportunity to test the truth of Brooks’ testimony with regard to the details of his conversation with Judge Miaño at the plea hearing and his conversation with the prosecutor prior to the defendant’s trial. These issues were directly relevant to the truth of Brooks’ direct testimony because they explored whether he had agreed to testify about his understanding of the facts or some other version of the facts urged by the prosecutor. These issues were raised for the first time during redirect examination, and because Brooks refused to testify any further, the defendant did not have any opportunity to test the truth of Brooks’ statements. We conclude that it was improper to allow the jury to consider the redirect testimony of Brooks because the issues raised on redirect were not collateral, and the defendant did not have the opportunity to test the truth of the Brooks’ testimony.

Having determined that the court acted improperly by not striking the redirect testimony, we must determine whether the error was harmful. “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).

The corut’s failure to strike Brooks’ redirect testimony was not harmless. The court allowed the state to explore the details of Brooks’ plea agreement and conversations with the prosecutor, but blocked the defendant’s opportunity to do the same. This witness’ exculpatory evidence was very important to the defendant’s case. Further, none of the victims conclusively identified the defendant from a photographic array shortly after the robbery. The testimony of the cocon-spirators, therefore, was the only direct evidence that linked the defendant with the crime. Their testimony and the testimony of the victims varied in several respects, notably the number and actions of the assailants during the robbery. Both of the other coconspira-tors, Wallace and Cromwell, had accepted plea agreements in exchange for their testimony implicating the defendant. They were subject to the same motive and bias of implicating another conspirator in exchange for a lenient sentence that was the subject of Brooks’ redirect examination. We conclude that the failure to strike Brooks’ redirect examination was not harmless.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant claims that Brooks improperly was allowed to invoke the fifth amendment protections against self-incrimination. We will not review this claim because the defendant did not raise the issue at trial. We will assume, without deciding, that the fifth amendment was invoked properly and proceed directly to the defendant’s sixth amendment claim. See State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986).

       Accordingly, because our conclusion on this issue is dispositive, we need not address the defendant’s additional claims regarding prosecutorial impropriety and failure to instruct the jury on accomplice testimony.

       Testimony varied, but anywhere from two to four men got out of the van.

       The police used “stop sticks,” devices that punctured one of the van’s tires.

       The following questioning on redirect examination by the state concerned Brooks’ dialogue with Judge Miaño during his plea hearing:
      “Q. And when I indicated to Judge Miaño, at the time of your plea, that [the defendant] was present in the van with you, Mr. Cromwell and Mr. Wallace was driving, and a discussion took place where it was agreed upon to rob some individuals in that parking lot, and the van did turn around and approach those individuals, and you got out and [the defendant] was present, you agreed with the facts that I expressed to the court [and that they were] the basis for the crime that you were pleading guilty to, correct?
      “A. Yes, I agreed.
      “Q. And part of that crime was conspiracy to commit robbery, [and that] was that you and others had an agreement to go and rob individuals—
      “A. Right.

        “Q. —is that correct?
      “A. Right.
      “Q. And you agreed to that factual basis as part of the conviction for conspiring to commit the robbery, correct?
      “A. Right.
      “Q. Do you recall Judge Miaño indicating to you and asking you certain questions about your plea? He said, ‘Sir, I’m going to ask you some questions, there’s no rush, I want you to make sure you understand everything 100 percent. If there is something you don’t understand, no matter how small or trivial it might appear, I want you to feel free to interrupt me and either consult with your attorney . . . who is seated there in the courtroom and, or interrupt me and ask me to explain it more clearly. All right, sir?’
      “A. Yes.
      “Q. And he asked you about the crime of robbery and the facts that I alleged constitute it, and you agreed with those facts?
      “A. Yes.
      “Q. And he asked you [that] if you had any thoughts or concerns or questions, that you should interrupt him?
      “A. Yes.
      “Q. And you never interrupted him and said, ‘Oh, I’m sorry, Judge Miaño, what [the prosecutor] says is not correct because [the defendant] wasn’t there at all.’ You never said that to the judge, did you?
      “A. I said it in the beginning.
      “Q. In the beginning, where?
      “A. When you called me down there that day to talk to me before I even went in front of the—um, whatever, it was implicated that if I was called upon. So, I’m not thinking that I’m going to be called to testily against this man, and, and lie, so I just agreed with whatever was said. . . .
      “Q. Mr. Brooks, isn’t it true that you and I never spoke until after your plea was entered—
      “A. Right.
      “Q. —on January 27—
      “A. Right.
      “Q. —and Judge Miaño indicated that as a part of that plea, you would continue to express the factual basis of your plea, including testifying against [the defendant], and after doing that and he accepted that plea and continued the case for sentencing, it was only at that point in time that you and I ever discussed anything about what you would particularly testily to in this trial; is that correct?
      “A. Right.
      “Q. And your lawyer . . . was there at the time?
      “A. Right.
      “Q. And my inspector, Steve Freddo, was there?
      “A. Right.
      “Q. Correct.

        “A. Right.
      “Q. And we had a discussion, and at that time we said to you, ‘We only want you to recall and say what you recalled as truthfully as you can without us putting any words in your mouth or telling you what to say.’ Do you recall that?
      “A. Yes.
      “Q. And you recall saying, there, with your attorney, in front of us, that that’s exactly what you were doing and that’s what you were going to do? Remember saying that to us? . . .
      “A. I remember saying, um—telling you what was happening, and you, being the good [prosecutor] that you are, just kept asking the same question and question, so I gave you what you wanted to hear.
      “Q. Excuse me. Did you ever tell or say, at that conference, that I’m just going to tell you whatever you want to hear . . . ?
      “A. No.
      “Q. No, never said that. In fact, during the course of our discussions, isn’t it true we had a discussion about [the defendant] going to trial on these factual bases with the evidence that the state had?
      “A. Right.
      “Q. And didn’t you express concern about [the defendant] going to trial based on the evidence, including your testimony that was anticipated to say he was there during the robbery and participated; do you remember that?
      “A. I remember that and I . . . Your Honor, can I talk to you?”

       Of the seven victims who viewed photographic arrays, including the defendant’s photograph on the night of the robbery, only one victim identified the defendant as an assailant. That victim stated that he thought the defendant was the driver of the van, but this was inconsistent with all other evidence presented.


author: DiPENTIMA, J.

text:
    JOHN PICKERING ET AL. v. THERESA RANKIN-CARLE
    (AC 27638)
    Flynn, C. J., and Bishop and DiPentima, Js.

      Argued March 22officially
    officially released July 31, 2007

      Jeffrey D. Cedarfield, for the appellant (defendant).

      Louis M. Pocelli, with whom, on the brief, was John T. Grillo, for the appellee (named plaintiff).
   Opinion

DiPENTIMA, J.

In this personal injury action arising from a motor vehicle accident, the defendant, Theresa Rankin-Carle, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff John Pickering. On appeal, the defendant claims that the court gave the juiy improper instractions. Specifically, the defendant argues that the court improperly (1) instructed the jury on negligence and (2) returned the jury for further deliberations with instructions to reconsider the court’s charge with respect to pain and suffering. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to our discussion of the issues on appeal. This case arises from a motor vehicle accident that occurred on June 3, 2000, in Norwich. The defendant was traveling on Route 2 and took the exit ramp to get onto Route 32. The defendant stopped her vehicle at a stop sign at the end of the exit ramp. The accident occurred when the defendant attempted to turn left onto Route 32 south at the bottom of the exit ramp and collided with the plaintiffs camper, which was traveling north on Route 32. The plaintiff claimed that the accident was due to the negligence and carelessness of the defendant, arguing both common-law and statutory negligence on the basis of the defendant’s failure to grant him the right-of-way. The defendant denied that she was careless or negligent and alleged a special defense of contributory negligence on the part of the plaintiff.

At trial, following the conclusion of the evidence, the court charged the jury on the applicable law, which included an explanation of the common law with respect to negligence and rules that govern drivers followed by a recitation of the stop sign statute, General Statutes § 14-301 (c). During deliberations, the jury requested that the court provide it with a copy of § 14-301 (c), the court’s instruction and the plaintiffs testimony with respect to his actions as he approached the defendant’s vehicle. The requested items were provided to the jury, which then continued its deliberations. The jury found in favor of the plaintiff. This appeal followed. The defendant challenges both the court’s initial charge and subsequent instructions to the jury when the court asked the jury to return for further deliberations. We will address each claim in turn.

I

The defendant’s first claim is that the court improperly instructed the jury on negligence with respect to the right to proceed. Specifically, the defendant asserts that the court improperly failed to include in its instructions any possible circumstances in which a person without the right-of-way at an intersection would still have the “right to proceed.” We disagree.

As a preliminary matter, we identify the applicable standard of review and set forth the legal principles that govern our resolution of the defendant’s instructional claims. A challenge to the validity of jury instructions presents a question of law over which this court has plenary review. Otero v. Housing Authority, 86 Conn. App. 103, 106, 860 A.2d 285 (2004). “When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 572-73, 898 A.2d 178 (2006).

In its charge to the jury, the court first provided both an explanation of the common law with respect to negligence and the rules governing drivers and then a recitation of § 14-301 (c). The defendant’s initial and supplemental requests to charge essentially requested that the court instruct the jury that even though the defendant did not have the right-of-way, she would not be negligent if she exercised reasonable care under the circumstances and acted as a prudent person, thus giving her a “right to proceed.”* *** Although the court rejected that specific “right to proceed” nomenclature, its instructions conveyed the same general principle. Read as a whole, the instructions were properly adapted to the law and provided the jury with sufficient guidance, and no injustice was done. See Vertex, Inc. v. Waterbury, supra, 278 Conn. 572-73. Moreover, we note that the defendant testified that at the time of the accident, she thought Route 32 was a one-way road and that she did not look back seconds prior to driving onto Route 32 to check whether cars were approaching from the plaintiffs direction. We conclude, therefore, that the court properly charged the jury on the negligence claim.

II

The defendant next challenges the court’s jury instructions returning the jury for further deliberations to correct the mathematical inaccuracy of its initial award. Specifically, the defendant asserts that when doing so, the court improperly reminded the jury to consider whether an award for pain and suffering was appropriate. We are not persuaded.

The following additional facts are necessary for our resolution of the defendant’s claim. The jury returned its verdict, finding the defendant 80 percent responsible and the plaintiff 20 percent responsible for the accident. It awarded the plaintiff $15,000 in economic damages but did not award him any noneconomic damages for pain and suffering. After calculating the percentages, the jury awarded the plaintiff a total of $3000. In the jury’s allocation of damages, the jury specified that the award included $7765 for future economic damages. The court took note of the inconsistency in the jury’s mathematical calculations and instructed the jury to correct the total award. The court also took that opportunity to remind the jurors that “if you find the defendant was also responsible for any pain and suffering associated with the incident, then you have to consider an award of pain and suffering and you have to consider whether there is a disability that is a result of the incident.” The jury continued its deliberations and returned with a final verdict finding the defendant 80 percent responsible and the plaintiff 20 percent responsible, and awarding the plaintiff $12,000 in economic damages and $65,000 in noneconomic damages for a total award of $77,000. The total damages award was then reduced to $61,600 on the basis of the jury’s finding that the plaintiff had been 20 percent comparatively negligent.

As this court has stated previously, “[t]he [trial] court plays an essential role in supervising the jury and in ensuring that the verdict is reasonable and lawful.” Maag v. Homechek Real Estate Services, Inc., 82 Conn. App. 201, 210, 843 A.2d 619, cert. denied, 269 Conn. 908, 852 A.2d 737 (2004). “The control of the court over the verdict of the jury is limited but salutary.” (Internal quotation marks omitted.) Van Nesse v. Tomaszewski, 265 Conn. 627, 634, 829 A.2d 836 (2003). General Statutes § 52-223 provides: “The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration.” See also Practice Book § 16-17. “A decision with regard to an order for reconsideration rests within the court’s sound discretion.” Maag v. Homechek Real Estate Services, Inc., supra, 210; see also Cruz v. Drezek, 175 Conn. 230, 242-3, 397 A.2d 1335 (1978).

The defendant does not challenge the court’s action in returning the jury for further deliberations. Rather, the defendant contends that the instruction the court gave when returning the jury was improper. Specifically, the defendant claims that the court’s instruction with respect to “pain and suffering” was improper. On the basis of the facts and circumstances of this case, we cannot agree. As stated previously, our review with respect to a challenged jury instruction is plenary; Otero v. Housing Authority, supra, 86 Conn. App. 106; and it is the instructions as a whole that we consider on appeal rather than any particular challenged language in isolation. See Vertex, Inc. v. Waterbury, supra, 278 Conn. 572. The jury’s original verdict awarded all of the plaintiffs claimed economic damages, including an award for future surgery. The jury did not, however, award any noneconomic damages. When instructing the jury to correct its mathematical calculations, the court also reminded the jury to consider whether the defendant was liable for any pain and suffering or any permanent injury. On the basis of the facts and circumstances, that instruction was reasonable and provided the proper guidance to the jury. Because the jury awarded the plaintiff medical expenses, which were related to his treatment for neck, back and shoulder pain, the jury necessarily found that he had experienced pain. See, e.g., Lombardi v. Cobb, 99 Conn. App. 705, 709, 915 A.2d 911 (2007) (jury award inconsistent where “jury awarded the plaintiff the entire amount of medical expenses [including treatment for shoulder and back pain] and lost wages that she had claimed but did not award her any noneconomic damages”); see also Schroeder v. Triangulum Associates, 259 Conn. 325, 332, 789 A.2d 459 (2002) (“[i]t is not reasonable for the jury to have found the defendant liable for the expense of . . . surgery, but not liable for the pain and permanent disability necessarily attendant to such intrusive surgery”).

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to trial, the plaintiff Rosemary Pickering withdrew the second count of the plaintiffs’ two count complaint, which alleged loss of consortium as to her. We therefore refer in this opinion to John Pickering as the plaintiff.

       “Although Connecticut has adopted the doctrine of comparative negligence; see General Statutes § 52-572h (b); our statutes retain the term contributory negligence. See, e.g., General Statutes §§ 52-114 and 52-572h (b).” (Internal quotation marks omitted.) Juchniewicz v. Bridgeport Hospital, 281 Conn. 29, 32 n.4, 914 A.2d 511 (2007).

       General Statutes § 14-301 (c) provides: “The driver of a vehicle shall stop in obedience to a stop sign at such clearly marked stop line or lines as may be established by the traffic authority having jurisdiction or, in the absence of such line or lines, shall stop in obedience to a stop sign at the entrance to a through highway and shall yield the right-of-way to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard.”

       The court provided the following explanation on general principles of negligence in its charge: “Negligence is doing something that a reasonably prudent or careful person would not do under the circumstances or failing to do what a reasonably prudent or careful person should do under the circumstances, and the duty is to use reasonable care. Reasonable care is defined as the care that an ordinarily prudent or careful person would use in view of the surrounding circumstances. You determine the question by putting an ordinarily prudent or careful person in the circumstance and say to yourself, ‘What should such a person have done?’ It’s the care that a person should use under the surrounding circumstances, that is, in view of the facts that were known or the facts that the parties should have known at the time. The standard of care, reasonable care, never varies. That’s always the standard, but the amount of care that ought to be used in order to constitute reasonable care can vary with the circumstances. In circumstances where there’s not much danger that’s likely, depending on what the circumstances are, a slight amount of care might be all that’s necessary for it to be reasonable. Whereas if the circumstances change, and there’s greater risk, depending on what the circumstances are, then a greater amount of care is what’s required in order for it to be reasonable.”
      With respect to the common-law rules governing drivers, the court provided the following instruction: “The care that a driver of a motor vehicle must use is that of a reasonable and prudent driver under the circumstances, that is, considering the traffic, the weather, the road conditions and those kinds of surrounding circumstances. The claims of the plaintiff' are ones that arise from the common law of negligence and not from a specific statute, initially. These are largely common sense requirements and don’t require any further explanation. ... [A] driver cannot escape the legal responsibility for an accident by saying that he or she did not see the other party in time to avoid the collision or did not properly perceive the traffic situation in order to avoid the collision if in fact she could or should have done so had the person been using reasonable care.”

       Practice Book § 42-16 provides that jury instructions are reviewable if “the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. . . .” Cf. Yale University School of Medicine v. Collier, 206 Conn. 31, 39-40, 536 A.2d 588 (1988).

       We note that the cases cited by the defendant in support of her first instructional claim are dissimilar to the present case both factually and procedurally and provide no credence to her argument that the court’s instruction on negligence was improper. In Randazzo v. Pitcher, 17 Conn. App. 471, 553 A.2d 1158 (1989), we held that the court’s instruction “resulted in a lack of adequate guidance to the jury regarding the plaintiffs principal claim in the case.” (Emphasis added.) Id., 474. Neither Randazzo nor Peckham v. Knofla, 130 Conn. 646, 650, 36 A.2d 740 (1944), involved questions relating to the stop sign statute, but rather General Statutes §§ 14-242 (e) and 14-245, respectively. We note that “[t]he right-of-way rule of § 14-245 is inapplicable to an intersection controlled by a stop sign . . . .” Velardi v. Selwitz, 165 Conn. 635, 640, 345 A.2d 527 (1974). Finally, Clement v. DelVecchio, 140 Conn. 274, 278, 99 A.2d 123 (1953), did not involve an instructional claim, and the general proposition stated in that case does not create any conflict with respect to the instructions as a whole given by the court in the present case.

       It appears that the jury calculated only 20 percent of the amount awarded for noneconomic damages rather than 80 percent in its initial award.

       We note that prior to reaching a verdict, the jury asked the court whether “it was standard policy that if the defendant is 80 percent negligent that the plaintiff should automatically . . . receive non-economic damages.” The court addressed the jury and answered that question in the negative. In addition, the court explained to the jury, that it was “entitled to find, if this is the way you find, the evidence that he has not suffered any pain, that he has not suffered any disability in which case he has not proved any noneconomic damages and is not entitled to an award.”